text:
    FARMERS-MERCHANTS BANK & TRUST COMPANY, et al. v. SOUTHERN STRUCTURES, LLC, et al.
    No. 13-926.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Ward F. Lafleur, Mahtook & Lafleur, L.L.C., Lafayette, Louisiana, for Defendant/Appellant, Nucor Building Systems Sales Corporation.
    Allan L. Durand, Attorney at Law, Lafayette, Louisiana, for Plaintiff/Appellee, Farmers-Merchants Bank & Trust Company of Breaux Bridge.
    Keith E. Thibodeaux, Attorney at Law, St. Martinville, Louisiana, for Defendant/Appellee, Southern Structures, LLC.
    James Lawhern, MH Precision Systems, Inc., Florence, Alabama, for Defendant/Appellee, MH Precision Systems, Inc.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|!Defendant, Nucor Building Systems Sales Corporation, appeals the trial court’s judgment in favor of Plaintiff, Farmers-Merchants Bank & Trust Company of Breaux Bridge (FM Bank). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Southern Structures, LLC was in the business of manufacturing components for metal buildings. Southern Structures secured multiple loans from FM Bank between 2005 and 2007 to purchase various large items of equipment, including a Franklin flange unit, a type of metal fabricating equipment used in the construction of various metal items. At all relevant times, FM Bank held a first perfected security interest in the flange unit.

In November 2009, negotiations commenced between Nucor, Southern Structures, and MH Precision Systems, Inc. MH Precision was allegedly acting as the agent of Southern Structures and the broker for the sale of the flange unit. In December 2009, Southern Structures sold the used flange unit to Nucor. Nucor subsequently had the equipment shipped to its plant in South Carolina. Southern Structures defaulted on its loan with FM Bank, and when FM Bank attempted to inventory its collateral, it discovered that the flange unit was gone. FM Bank later learned that the flange unit had been sold and was in possession of Nucor.

FM Bank sued Southern Structures, MH Precision, and Nucor for the return of the equipment and damages. Nucor filed a cross-claim against MH Precision, asserting that it had purchased the flange unit from MH Precision who Nucor 12believed was either the seller of the flange unit or the agent of Southern Structures as the seller. Nucor also filed a motion for summary judgment, claiming that it purchased the equipment from MH Precision in good faith pursuant to La.R.S. 10:1-201(9) and as such was not liable to FM Bank. The trial court denied Nucor’s motion for summary judgment. The case then proceeded to trial on the merits wherein the trial court rendered judgment in favor of FM Bank and against Nucor, MH Precision, and Southern Structures, jointly, severally, and in solido, in the amount of $276,000.00 together with legal interest from the date of judgment and all court costs.

Nucor is before this court alleging three assignments of error and one alternative assignment of error. Nucor contends that: (1) the trial court erred as a matter of law when it held Nucor personally liable for damages and/or in finding Nucor in bad faith regarding the purchase of the flange unit; (2) the trial court erred as a matter of law when it found it had subject matter jurisdiction of the in rent action because Nucor is not subject to personal liability and neither in rent nor quasi in rent jurisdiction existed over the flange unit because it is not located in Louisiana; and (3) the trial court erred in finding that Nucor was not a buyer in the ordinary course of business entitled to keep the flange unit free of FM Bank’s security interest because MH Precision was the seller of the flange unit, the sale occurred in MH Precision’s ordinary course of business, and Nu-cor was a good faith purchaser. Alternatively, and only in the event that this court finds bad faith premised on some type of negligence standard suggested by the trial court, Nucor contends that the trial court erred in finding Nucor liable in solido with the other Defendants, Southern Structures and MH Precision, and instead, should have allocated fault under La.Civ.Code art. 2324(B).

JijLAW

In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted), the supreme court held:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s finding; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Additionally, appellate courts review the interpretation of statutes de novo and render judgment on the record without deference to the legal conclusions of the trial court. Cleco Evangeline, LLC v. La. Tax Comm’n, 01-2162 (La.4/3/02), 813 So.2d 351.

DISCUSSION

Assignment of Error Number One

Did the trial court err in finding that La.R.S. 10:9-315(a) (3) created a statutory avenue for a secured party to hold a third-party purchaser personally liable for damages?

Nucor contends that the trial court erred in finding it personally liable to FM Bank. Nucor argues that the trial court erred in finding that La.R.S. 10:9-315(a)(3) created a statutory avenue for a secured party to hold a third-party purchaser personally liable for damages. Louisiana Revised Statutes 10:9-315(a)(3) provides:

(a) Disposition of collateral: continuation of security interest; proceeds. Except as otherwise provided in this Chapter:
_k...
(3) a purchaser of collateral incurs no personal liability on account of an unauthorized transfer unless he has failed to act in good faith.

Nucor takes issue with the trial court’s statement that because La.R.S. 10:9-315(a)(3) “clearly state[s] that a ‘good faith’ purchaser [of collateral] incurs no personal liability, thus by inference, a bad faith purchaser under the statute incurs personal liability.” Nucor argues that La.R.S. 10:9-315(a)(3) does not support the conclusion that only upon a showing of bad faith, which Nucor believes is a relaxed standard of proof, does a purchaser in an unauthorized transaction incur personal liability.

In support, Nucor contends that under La.R.S. 10:9-315(a)(3)’s predecessor statute, La.R.S. 10:9-306(2), a high burden of proof was required to impose personal liability on a purchaser in an unauthorized transaction. The predecessor statute, La. R.S. 10:9-306(2), provided that the buyer had no personal liability “unless he has conspired with the debtor to defeat the interest of the secured party.” In 2001, the Louisiana legislature amended the statute to provide for no personal liability of a buyer “unless he has failed to act in good faith.” La.R.S. 10:9-315(a)(3). Despite the revision, Nucor contends that the legislature did not intend to change the law to lessen the burden of proof required to hold a third-party purchaser personally liable for damages under the amended statute. Rather, Nucor alleges that the correct standard is a finding of both conspiracy and willful/purposeful conduct on the part of the purchaser to defraud or to defeat the bank’s security interest, which cannot be supported based on the evidence.

| fiIn opposition, FM Bank and Southern Structures contend that the evidence supports the trial court’s judgment on this point.

We find that Nucor’s argument lacks merit. The requirement of a conspiracy was dropped under the amended statute, La.R.S. 10:9-315(a)(3). We believe that such a change is significant: the original statute required the virtual equivalent of a crime, and the amendment reduced that to merely a lack of good faith. We interpret this amendment to mean that the legislature intended to reduce the burden of proof required to impose personal liability on the buyer. It is a core principle of legislative interpretation that, when the legislature amends a law to word it differently, the courts must presume that the legislature intended to change the law. SWAT Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294.

Accordingly, we find that the trial court did not err in finding that La.R.S. 10:9-315(a)(3) created a statutory avenue for a secured party to hold a third-party purchaser personally liable for damages.

Did the trial court err in finding that Nucor’s knowledge of FM Bank’s security interest in the ñange unit amounted to bad faith for purposes of personal liability under La.R.S. 10:9-31S(a)(3)?

In further support of its argument that the trial court erred in finding it personally liable to FM Bank, Nucor contends that the trial court erred in finding that Nucor’s knowledge of FM Bank’s security interest in the flange unit amounted to bad faith for purposes of personal liability under La.R.S. 10:9-315(a)(3). In opposition, FM Bank and Southern Structures contend that the evidence supports the trial court’s judgment on this point.

Louisiana Revised Statutes 10:9-315(a)(3) provides for no personal liability on a purchaser, such as Nucor, unless it has failed to act in good faith. The trial | ficourt concluded that Nucor and MH Precision, together with Southern Structures, acted in bad faith to attempt to deprive FM Bank of its security interest. The following evidence supports the trial court’s conclusion.

The seller, Southern Structures, was either out of business or going out of business at the time of the sale. In negotiating the sale, Larry Blanchet, the owner of Southern Structures, Jim Lawhern, the owner of MH Precision, and Rich Huber and Glenn Wilber, Nucor employees, met at Southern Structures’ yard in Broussard, Louisiana. All agreed that Nucor would purchase the flange unit and all had knowledge that FM Bank had a hen on the equipment. Nucor was made aware that bank consent was necessary when it received an email from Lawhern that Southern Structures had to “get with the bank and give me an asking price.” However, the negotiations continued, and Lawhern disclosed to Nucor in an email that “I spoke with the owner. He thinks he can keep the bank at bay for a month.” Southern Structures had paid over $500,000.00 for the flange unit but was willing to sell it for only 60% of that amount, despite the fact that there was only about six months of use on the equipment.

According to the supreme court, the evidence must be reviewed in the light which most favorably supports the judgment. Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993). “Courts can only take judicial notice of a fact that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence!.]” Walker v. Halliburton Servs., Inc., 93-722, p. 3 (La.App. 3 Cir. 3/1/95), 654 So.2d 365, 368, writ denied, 95-1507 (La.9/22/95), 660 So.2d 481.

Based on the evidence, the trial court reasonably concluded that Nucor knew about a lien and acted to deprive FM Bank of its security interest. Nucor, through |7its employee, Huber, admitted that it received the email regarding “keep[ing] the bank at bay.” Although several Nucor representatives testified at trial, there is no evidence in the record to explain why the Nucor representatives did not make further inquiries about the lien with FM Bank. Given the foregoing, it is reasonable to conclude that Nucor was not in good faith in this transaction.

We find that the trial court did not err in finding that Nucor’s knowledge of FM Bank’s security interest in the flange unit amounted to bad faith for purposes of personal liability under La.R.S. 10:9 — 315(a)(3). Nucor’s assignment of error is without merit.

Assignment of Error Number Two

In its second assignment of error, Nucor contends that the trial court erred in finding that subject matter jurisdiction existed over the claim at issue. Nucor alleges that FM Bank does not have a claim for money damages premised on in personam liability against Nucor. Insofar as FM Bank’s petition seeks a lien right on the flange unit at issue, Nucor contends that FM Bank’s claim is against the property itself, without which there would be no recovery against Nucor. Since the flange unit is located at the Nucor plant in South Carolina, Nucor alleges that the trial court lacked subject matter jurisdiction over such a claim against the property because neither quasi in rem nor in rem jurisdiction existed.

In opposition, FM Bank and Southern Structures contend that the trial court had subject matter jurisdiction of the matter via personal jurisdiction.

Louisiana Code of Civil Procedure Article 6(A) provides that personal jurisdiction “is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding.” One of the specific methods by which a court can acquire personal jurisdiction is “[t]he submission of the party fito the jurisdiction of the court ... by the waiver of objection to jurisdiction.” La. Code Civ.P. art. 6(A)(3). When a foreign corporation makes a general appearance in a lawsuit in Louisiana and files an answer, it submits itself to the jurisdiction of the Louisiana courts with respect to that litigation. Hancock Bank v. Alexander, 344 So.2d 21 (La.App. 3 Cir.1977).

In the present case, the Nucor representatives physically came to Louisiana to examine the equipment prior to purchasing it. FM Bank subsequently filed this suit against Nucor claiming damages and seeking recognition of its security interest in the equipment. Nucor filed an answer, made a general appearance, and never objected to the jurisdiction. Therefore, we find that the trial court had personal jurisdiction over Nucor. Nucor, having submitted itself to the personal jurisdiction of the trial court, is subject to having the issue of FM Bank’s security interest resolved by the trial court.

The real issue raised in this assignment of error, however, is whether the trial court had jurisdiction over the flange unit for the purpose of recognizing a lien. This issue is not covered by La.Code Civ.P. art. 6 or La.Code Civ.P. art. 8. Rather, this issue is covered by the Uniform Commercial Code (UCC). In that regard, “Louisiana enacted Article 9 of the [] (UCC) as Chapter 9 of the Louisiana Commercial Laws, effective on January 1, 1990.” Tetra Applied Techs, Inc. v. H.O.E., Inc., 03-1523, p. 4 (La.App. 3 Cir. 5/26/04), 878 So.2d 708, 710. Chapter 9 “regulates the creation of conventional real security in most movables and supplants the law of pledge and chattel mortgage with a security interest.” Id. at 711. “Chapter 9 permits possession to be gained or lost according to an agreement Inbetween the parties without otherwise affecting the rights of the secured party” “[b]y separating the consequences of possession from the privilege or priority given by the security.” Id.

The general rule in Louisiana is that the validity and effect of a lien or privilege on movable property are determined by the law of the state where the movable property was located at the time the lien was created. Figuero v. Figuero, 303 So.2d 801 (La.App. 3 Cir.1974). The highest courts of many states have spoken upon the subject, and the weight of authority is that a valid security interest which is recorded in the state where it is executed continues to have the same effect when the mortgaged property is removed to another state. See, e.g., Gen. Motors Acceptance Corp. v. Nuss, 195 La. 209, 196 So. 323 (1940); Universal C.I.T. Credit Corp. v. Hulett, 151 So.2d 705 (La.App. 3 Cir.1963).

In the present case, FM Bank loaned Southern Structures money for the purchase of various items of new equipment in 2005. The flange unit, which was located in Louisiana, was included among these items. The flange unit, as well as all of the other equipment owned by Southern Structures, was the subject of a Commercial Security Agreement dated December 15, 2005. This granted a UCC security interest to FM Bank over the flange unit and all other equipment owned by Southern Structures. The subsequent relocation of the flange unit from Louisiana to South Carolina does not affect FM Bank’s security interest as Louisiana courts have the authority to recognize a lien on property that was in the state when a valid security interest was created. Thus, Nu-cor’s assignment of error is without merit.

Assignment of Error Number Three

Nucor contends that the trial court erred when it found that the transaction between MH Precision and Nucor did not occur in the ordinary course of business. ImNucor alleges that it was in good faith as a matter of law and that MH Precision dealt with Nucor regarding the sale in the course of its usual or customary business practices. Nucor contends that the trial court’s judgment was based on the erroneous conclusion that MH Precision was merely a broker or agent, rather than a seller, in the transaction.

In opposition, FM Bank contends that the transaction was really between Southern Structures and Nucor rather than MH Precision and Nucor. FM Bank contends that the transaction between Southern Structures and Nucor did not occur in the ordinary course of business.

Thus, we must first decide whether the trial court’s conclusion that Nucor purchased the flange unit directly from Southern Structures, rather than from MH Precision, was reasonable under the facts of this case. We must then decide whether the trial court erred in finding that the transaction between Southern Structures and Nucor did not occur in the ordinary course of business.

The Seller of the Flange Unit

The evidence supporting the trial court’s ruling that the flange unit was sold directly from Southern Structures to Nu-cor is based in large part upon the deposition testimony of Lawhern, the owner of MH Precision. Specifically, Lawhern testified that he was initially contacted by Nucor to find it a new flange unit. As a new flange unit eventually proved to be too expensive, Lawhern testified that Nucor asked him to look for a used unit. Law-hern testified that he was contacted by Southern Structures and told that a slightly used flange unit was available for sale, which information he then passed on to Nucor. Lawhern testified that Nucor representatives came to Southern Structures in Broussard, Louisiana, to have the equipment operated in their presence to satisfy themselves |T1that it worked. Lawhern testified that MH Precision was not in the business of fabricating metal products and had no use, in its business, for any of the Southern Structures’ equipment.

The record further contains other evidence and witness testimony showing that Nucor was aware that the equipment was owned by Southern Structures, which was no longer in business. There is evidence that the Nucor officials went to lunch with the Southern Structures officials to discuss the possible sale at length. There is evidence showing that the flange unit was shipped directly from Southern Structures to Nucor. Additionally, the evidence indicates that Nucor dealt with Lawhern of MH Precision several times over many years, but always as a broker.

The trial court found that the Nucor representatives were not credible on the issue of whether Nucor knew that Law-hern was acting as a broker rather than a seller. We note that Lawhern testified by video deposition. As such, the trial court was able to view Lawhern while he was testifying as well as the Nucor representatives who testified at trial.

Nucor attempts to overcome this evidence with the fact that the purchase order was on a MH Precision purchase order form. In its reasons for judgment, however, the trial court noted that the purchase order does not list MH Precision as the buyer. The trial court stated that the purchase order merely designated Southern Structures as the seller and Nucor as the delivery destination. The trial court indicated that a buyer was not specified on the purchase order. Additionally, although Huber of Nucor testified that he believed Nucor was buying the flange unit from MH Precision, the trial court specifically found that it did not believe Huber’s testimony on that point.

112Based on the above evidence, it was reasonable for the trial court to conclude that Southern Structures was the seller and Nucor was the buyer. Accordingly, the trial court’s judgment was not manifestly erroneous in this regard.

Ordinary Course of Business

Since Southern Structures is the seller, we must decide whether the transaction between Southern Structures and Nucor occurred in the ordinary course of business. In that regard, La.R.S. 10:1-201(9) provides that a “ ‘Buyer in ordinary course of business’ means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind.”

Louisiana Revised Statutes 10:9-320 defines a buyer of goods, in pertinent part, as:

(a) Buyer in ordinary course of business. Except as otherwise provided in Subsection (e), a buyer in ordinary course of business, other than a person buying farm products from a person engaged in farming operations, takes free of a security interest created by the buyer’s seller, even if the security interest is perfected and the buyer knows of its existence.
(b) Buyer of consumer goods. Except as otherwise provided in Subsection (e), a buyer of goods from a person who used or bought the goods for use primarily for personal, family, or household purposes takes free of a security interest, even if perfected, if the buyer buys:
(2) for value;
(3) primarily for the buyer’s personal, family, or household purposes; and
(4) before the filing of a financing statement covering the goods.

11sThe Uniform Commercial Code Comment, which follows La.R.S. 10:9-320 (emphasis added), provide that:

3. Buyers in Ordinary Course. Subsection (a) derives from former Section 9-307(1). The definition of “buyer in ordinary course of business” in Section 1-201 restricts its application to buyers “from a person, other than a pawnbroker, in the business of selling goods of that kind.” Thus subsection (a) applies primarily to inventory collateral. The subsection further excludes from its operation buyers of “farm products” (defined in Section 9-102) from a person engaged in farming operations. The buyer in ordinary course of business is defined as one who buys goods “in good faith, without knowledge that the sale violates the rights of another person and in the ordinary course.” Subsection (a) provides that such a buyer takes free of a security interest, even though perfected, and even though the buyer knows the security interest exists. Reading the definition together with the rule of law results in the buyer’s taking free if the buyer merely knows that a security interest covers the goods but taking subject if the buyer knows, in addition, that the sale violates a term in an agreement with the secured party.
As did former Section 9-307(1), subsection (a) applies only to security interests created by the seller of the goods to the buyer in ordinary course. However, under certain circumstances a buyer in ordinary course who buys goods that were encumbered with a security interest created by a person other than the seller may take free of the security interest, ....

Louisiana Revised Statutes 10:9-102(48) defines “Inventory” as: “goods, other than farm products, which:”

(A) are leased by a person as lessor;
(B) are held by a person for sale or lease or to be furnished under a contract of service;
(C) are furnished by a person under a contract of service; or
(D) consist of raw materials, work in process, or materials used or consumed in a business.

“Equipment” is defined as “goods other than inventory, farm products, or consumer goods.” La.R.S. 10:9-102(38).

1 uThus, the key distinction in the present case is whether the flange unit is classified as inventory or equipment used in the manufacturing of products. If the flange unit is considered inventory, then it is in Southern Structures’ ordinary course of business. If the flange unit is considered equipment used in the manufacturing of products, it is not in Southern Structures’ ordinary course of business.

In the present case, witness testimony provides the following evidence. Southern Structures was the seller. Southern Structures was in the business of manufacturing metal components for metal buildings, not manufacturing and/or selling metal fabricating equipment such as the flange unit. Southern Structures eventually went out of business. The flange unit was never an inventory item in Southern Structures business.

The foregoing testimony indicates that the flange unit was not inventory used in the ordinary course of business of Southern Structures. Rather, the flange unit was a specialty piece of equipment used in the manufacturing process that was subject to FM Bank’s lien. In addition to the foregoing testimony, there was no evidence presented that the sale was in the ordinary course of the business of Southern Structures. Accordingly, we find that the trial court did not err when it found that the transaction between Southern Structures and Nucor did not occur in the ordinary course of business. Nucor’s assignment of error is without merit.

Alternative Assignment of Error

Since we find that Nucor acted in bad faith, we must consider Nucor’s alternative assignment of error. Nucor alleges that there is no supportable finding of any type of intentional tort or willful action on the part of Nucor. As such, the trial court’s finding that Nucor was liable in solido with Defendants is error under 11sLa.Civ.Code art. 2324(B). Nucor contends that since it was the least culpable, it should only be cast with five to ten percent fault.

Louisiana Civil Code Article 2324 provides, in pertinent part:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation-. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.

Our review of the record indicates that the trial court found that Nucor conspired with Southern Structures to defraud FM Bank. Nucor’s purchase while FM Bank was being kept at bay was not a negligent act. It was intentional. That is what the trial court found, i.e., a conspiracy to commit an unlawful act. In this case, the unlawful act was a sale of equipment with knowledge of a lien against it and without any notification to the bank holding the lien in violation of La.R.S. 14:72.4. Hence, we agree with the trial court’s finding of solidary liability.

Accordingly, we find that the trial court did not err in this regard. Nucor’s assignment of error is without merit.

DECREE

The judgment rendered by the trial court is affirmed. All costs of this appeal are assessed against Nucor Building Systems Sales Corporation.

AFFIRMED.

      . Plaintiff's exhibits and testimony on behalf of Mark Sibley, an FM Bank employee and senior lender, show that promissory notes were executed by Southern Structures in favor of FM Bank on the following dates and in the following amounts: (1) June 7, 2005, in the amount of $4,000,770.00; (2) August 14, 2007, in the amount of $750,020.00; (3) August 14, 2007 in the amount of $300,045.00; and (4) August 14, 2007, in the amount of $1,469,092.77.

      . Louisiana Code of Civil Procedure Article 8 discusses in rem jurisdiction, otherwise known as jurisdiction over property,

      . Louisiana Revised Statutes 14:72.4 is entitled "Disposal of property with fraudulent or malicious intent.”


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Matthew FRUGE v. Dr. Lynn FORET.
    No. 13-1071.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      J. Gregory Bergstedt, Elizabeth F. Shea Fraser, Wheeler & Bergstedt, Lake Charles, LA, for Defendant-Appellant, Dr. Lynn Foret.
    John L. Hammons, Cornell R. Flournoy, Nelson & Hammons, Shreveport, LA, for Plaintiff-Appellee, Matthew Fruge.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, JOHN E. CONERY, Judges.
   PAINTER, Judge.

| ,This appeal presents the limited issue of whether a pre-trial settlement with the Patients’ Compensation Fund (the Fund) should be applied as a credit to the damages awarded at trial against a non-settling healthcare provider. In this case, the trial court rendered judgment in favor of the plaintiff in excess of the statutory limit, then reduced the amount to the cap as provided by law and cast the defendant healthcare provider in judgment for the statutorily limited amount of $100,000.00 plus legal interest and costs. There was no credit or reduction given for amounts received by the plaintiff from his settlement with the Fund. The healthcare provider does not appeal the judgment against him insofar as it finds him liable for damages or as to the amount of damages awarded. He appeals only the trial court’s refusal to apply the payment by the Fund as a credit to reduce the amount owed by him under the judgment. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Matthew Fruge began treating with Dr. Lynn Foret for various complaints, but his major problem was with recurrent dislocation of his shoulder. Dr. Foret performed surgery on Mr. Fruge’s right shoulder, which involved the insertion of a screw. Following the surgery, Mr. Fruge developed an infection at the incision site. Another doctor performed a surgical procedure to drain the wound. Mr. Fruge continued to have problems with infection. The screw was removed in a third surgical procedure on January 29, 2002. His shoulder continued to dislocate. He eventually had to have a fourth surgery which fused the joint. After a Medical Review Panel rendered a decision in which one panelist found in favor of Dr. Foret and two panelists found in favor of Mr. Fruge, he filed this suit against Dr. Foret.

| ¡¿Prior to trial, the Fund reached a settlement agreement with Mr. Fruge and paid him a total of $600,000.00 in full settlement of his claims against it. The case against Dr. Foret proceeded to bench trial. The trial court found that Dr. Foret committed malpractice and that Mr. Fruge was entitled to damages in the amount of $700,000.00 for physical pain and suffering, mental anguish and distress, residual disability, loss of the quality of life, interference with daily activities, and loss of earning capacity and $65,936.48 in future medical care and related benefits incurred after the date of injury. The judgment reduced the amount to $500,000.00 pursuant to La.R.S. 40:1299.42(B)(1) and ordered that Dr. For-et’s liability was limited to $100,000.00 plus legal interest from September 20, 2002 until paid plus costs of the proceedings pursuant to La.R.S. 40:1299.42(B)(2). The judgment also found Mr. Fruge to be in need of future medical care. The judgment made no mention of the settlement ■with the Fund and gave Dr. Foret no credit therefor.

Dr. Foret appeals, contending only that the trial court miscalculated the damage award because it did not first reduce the amount awarded to the statutory cap and then further reduce the amount awarded by the $600,000.00 received by Mr. Fruge from the Fund prior to trial. As such, Dr. Foret contends that he owes nothing under the judgment. To the contrary, Mr. Fruge contends that the trial court correctly ruled that Dr. Foret must pay the $100,000.00 limit of his liability and that the settlement with the Fund prior to trial has no effect on the financial liability imposed by the judgment on Dr. Foret.

Mr. Fruge filed a motion to supplement the record with a copy of the receipt and release evidencing his settlement with the Fund. “Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. The receipt and release document was not part of the | atrial court record. Counsel for Mr. Fruge contends that the trial court did not rule on their motion to hold the record open for the receipt and release and admits that the document was never offered into evidence. Therefore, we deny the motion to supplement. However, for the reasons that follow, we affirm the judgment of the trial court finding that Dr. Foret must pay $100,000.00 plus legal interest and costs.

DISCUSSION

The Louisiana Medical Malpractice Act (the Act), at La.R.S. 40:1299.42, provides in relevant part as follows:

B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
D. (1) Evidence of an advance payment is not admissible until there is a final judgment in favor of the plaintiff, in which event the court shall reduce the judgment to the plaintiff to the extent of the advance payment.
(2) The advance payment shall inure to the exclusive benefit of the defendant or his insurer making the payment.
(3) In the event the advance payment exceeds the liability of the defendant or the insurer making it, the court shall order any adjustment necessary to equalize the amount which each defendant is obligated to pay, exclusive of costs.
(4) In no case shall an advance payment in excess of an award be repayable by the person receiving it.
(5) In the event that a partial settlement is executed between the defendant and/or his insurer with a plaintiff for the sum of one hundred thousand dollars or less, written notice of such settlement shall be sent to the board. Such settlement shall not bar the continuation of the action against the patient’s compensation fund for excess sums in which event the court shall reduce any judgment to the plaintiff in the amount of malpractice liability insurance in force as provided for in R.S. 40:1299.42(B)(2).

Dr. Foret argues that the amount received in settlement from the Fund by Mr. Fruge was an “advance payment” under the Act and that a credit for the |4payment must be given in the judgment to reduce his liability. He reasons that “A plaintiff is not entitled to recover damages from the [Fund] before an admission of liability has been made by the defendant [healthcare] provider, then recover again after a judgment has been rendered against the defendant [healthcare] provider.”

Mr. Fruge, on the other hand, argues that the settlement between him and the Fund “has no legal effect whatsoever on the financial liability imposed by the judgment on Dr. Foret.”

Whether or not the trial court correctly applied the provisions of the Act in rendering judgment against Dr. Foret poses a question of law. “Appellate review of a question of law is simply a decision as to whether the lower court’s decision is legally correct or incorrect.” Jim Walter Homes, Inc. v. lessen, 98-1685, p. 5 (La.App. 3 Cir. 8/31/99), 732 So.2d 699, 702 citing Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118). Then, if we find that a reversible error of law was made, we review the facts de novo. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

In written reasons for judgment, the trial court stated:

The Louisiana Medical Malpractice Act, specifically [La.R.S.] 40:1299.42(0 Limitation of Recovery, provides that any advanced payment made by the defendant [healthcare] provider or his insurer to or for the plaintiff or any other person, may not be construed as an admission of liability for injuries or damages suffered by the plaintiff or anyone else in action brought for medical malpractice. This statute in the Medical Malpractice Act in 40:1299.42(D)(2) further states that the advanced payments shall inure to the exclusive benefit of the defendant or his insurer making the payment.
In reading these two provisions of the [M]edical [Mjalpractice [A]ct together, the court determined that credit for any advanced payments is only given if the payment was made by a defendant healthcare provider or his insurer. In this instanee[,] the [Fund] settled with the [p]laintiff before trial, making an advanced payment. However[,] the [Fund] is neither a defendant healthcare provider[ ] nor his insurer....
IsAfter a trial on the merits, the Court found Dr. Foret liable for the plaintiffs injuries ... The [Fund] settled with [plaintiff] prior to the trial to protect its own interest. Section 40:1299.42(D)(2) of the Louisiana Medical Malpractice Act is unambiguous in stating that any advanced payments shall inure to the exclusive benefit of the defendant or his insurer making the payment. Dr. Foret has not paid anything; therefore[,] he cannot receive any credit. The settlement before trial between the plaintiff and the [Fund] does not constitute an advanced payment in the context of the [M]edical [M]alpractiee [A]ct[;] therefore[,] it is not considered a credit in favor of Dr. Foret to be applied to the judgment rendered by this court.

We find that the trial court was legally correctly in its application of the relevant provisions of the Act to the judgment against Dr. Foret, and we agree with the trial court’s reasoning. The Act is clear in its pronouncement that: “[t]he advance payment shall inure to the exclusive benefit of the defendant or his insurer making the payment.”

DECREE

Finding that the judgment correctly reduced the award to the statutory limitation and made no adjustment for amounts received in settlement by Mr. Fruge from the Fund prior to trial, we affirm the trial court’s judgment. Costs of this appeal are assessed to Defendant-Appellant, Dr. Lynn Foret.

AFFIRMED.

CONERY, J., Concurs.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Alex SIGUE.
    No. 13-1072.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Alex Sigue.
    Herbert Todd Nesom, District Attorney-33rd Judicial District, Joe Green, Assistant District Attorney-33rd Judicial District, Oberlin, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

11 After severely beating a prison guard, Defendant, an inmate at the Allen Parish Correctional Center, was convicted by a jury of battery of a correctional facility employee, a violation of La.R.S. 14:34.5. The State subsequently filed a bill of information alleging that Defendant was a fourth habitual offender pursuant to La. R.S. 15:529.1. After a habitual defender hearing, the trial court determined that Defendant was a fourth habitual offender and sentenced him to thirty years at hard labor, consecutive to any sentences already being served. Defendant appeals. For the following reasons, we affirm the trial court’s judgment and Defendant’s sentence.

I.

ASSIGNMENTS OF ERROR

On appeal, the Defendant raises the following assignments of error for our consideration:

(1) the trial court erred in finding Defendant to be a fourth felony offender since the predicate offense used to establish his incarceration as an offender was improperly used to enhance his sentence;
(2) the trial court erred in permitting the prosecution to elicit testimony at trial regarding an alleged prior manslaughter conviction;
(3) the trial court erred in denying Defendant’s “Objection to Multiple Offender Bill;” and
(4) Defendant was not sufficiently identified as the same person who entered pleas of guilty to the predicate offenses alleged by the State in the habitual offender bill of information.

J2.II-

LAW AND DISCUSSION

Assignment of Error Number One

In his first assignment of error, Defendant argues the habitual offender adjudication subjected him to a double enhancement, as the adjudication was based, in part, upon his earlier manslaughter conviction, the same offense that the State used to prove an element of battery of a correctional center employee. Louisiana Revised Statutes 15:529.1(D)(l)(b) states that “any challenge to a previous convietion which is not made before sentence is imposed may not thereafter be raised to attack the sentence.” As Defendant failed to raise this issue in his written “Objection to Multiple Offender Bill” or in his oral argument at the habitual offender hearing, the issue was not preserved for appellate review, and he is precluded from raising it for the first time here. See State v. Elie, 10-1494 (La.App. 3 Cir. 10/5/11), 74 So.3d 1216, writ denied, 11-2786 (La.4/13/12), 85 So.3d 1246; see also State v. Ayche, 07-753 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, writ denied, 08-2291 (La.1/30/09), 999 So.2d 752, and writ denied, 08-1115 (La.2/13/09), 999 So.2d 1140.

Assignment of Error Number Two

In his second assignment of error, Defendant argues the trial court, in his jury trial, erred by allowing the State to elicit testimony regarding his prior manslaughter conviction, as it was an improper reference to evidence of other crimes.

The State cites State v. Rice, 31,871, pp. 11-12 (La.App. 2 Cir. 3/31/99), 736 So.2d 956, 964-65, writ denied, 99-1314 (La.10/15/99), 748 So.2d 464, which addressed an analogous situation:

Evidence of other crimes is generally inadmissible in the guilt phase of the trial unless the probative value of the evidence outweighs its prejudicial effect and other safeguards are met. State v. Hamilton, 478 So.2d 123, 129 (La.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). Exceptions to the prohibition of references to other crimes exist when the state offers the evidence of other crimes to prove a material issue which has independent relevance for purposes other than to show the character of the defendant. State v. Thompson, 532 So.2d 1160 (La.1988).
La. C.E. art. 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transition that is the subject of the present proceeding.
La.C.Cr.P. art. 720 provides that evidence “which relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding or other crimes for which the accused was previously convicted” shall be admissible without prior notice to the defendant.
The defendant’s prior conviction falls within an exception to the inadmissibility of other crimes because the state offered it to prove a material issue, the legal 1 confinement of the defendant, which has independent relevance other than to show the character of the defendant. Furthermore, pursuant to La.C.Cr.P. art. 720, the state was not required to give the defendant prior notice because the prior conviction for armed robbery was related to conduct that constituted an integral part of the offense of aggravated escape.
Even if the “other crimes” evidence should have been held inadmissible, the trial error would be subject to a harmless error analysis on appeal. When the verdict is “surely unattributable to the error,” the trial error is harmless. State v. Ingram, 29,172 (La.App.2d Cir.1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505. The defendant testified that he had been incarcerated for armed robbery. Thus, the evidence of defendant’s prior armed robbery conviction was available to the jury, and the verdict is therefore “surely unattributable” to the state’s reference to the armed robbery conviction in its opening statement.

Here, the record indicates that the trial court limited the scope of questioning regarding Defendant’s past conviction of manslaughter to “the reason why he was initially incarcerated, and [to show] he would have still been incarcerated legally for that crime.” To demonstrate the battery at issue was a felony-grade offense, the State had to show that Defendant was in the custody of the Department of Public Safety and Corrections or was being detained in a correctional facility. As such, the trial court’s ruling here was valid. Even if the court erred, said error would be harmless, pursuant to Rice, 736 So.2d 956. In light of testimony from multiple witnesses that Defendant advanced on the sixty-two-year-old guard and punched him several times, the verdict was surely not dependent upon the jury’s knowledge that he had a prior manslaughter conviction. Thus, if error occurred, the verdict was surely unattributable to the error.

Defendant cites State v. Marsalis, 04-827 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, in which the defendant argued that a State witness should not have been allowed to refer to his incarceration in a maximum security area. However, Marsalis did not address a scenario in which evidence of a prior offense at issue was introduced. Thus, we find Marsalis distinguishable and conclude that it should not be read as authority to prohibit such evidence in cases involving La.R.S 14:34.5. Further, pursuant to Marsalis and Rice, even if an error occurred, it was harmless. As such, this assignment lacks merit.

Assignment of Error Number Three

In his third assignment of error, Defendant argues the trial court erred by denying his objection to the habitual offender bill. Specifically, he objected to the use of the predicate offenses, alleging that his guilty pleas to those offenses were not knowing and voluntary. He complained that he was not advised at any of those plea proceedings that they could be used for future sentence enhancement. Defendant is asking this court to reconsider established law stating that a defendant need not be advised of the collateral consequences of a guilty plea. State v. Guzman, 99-1753, 99-1528 (La.5/16/00), 769 So.2d 1158; State v. Jackson, 362 So.2d 1082 (La.1978). While Defendant acknowledges this long-standing jurisprudence, he suggests it has been modified or superseded by the Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, the Court held that defense counsel must advise a non-citizen defendant of the possible deportation-related consequences of a guilty plea. Further, Padilla is rooted in the right to counsel guaranteed by the Sixth Amendment of the United States Constitution.

| fiWhile Defendant presents a germ of an argument, he fails to explain why Padilla should be extended to collateral issues other than deportation or cases relating to right to counsel. In the absence of an argument regarding why Padilla should be extended, this assignment lacks merit.

Assignment of Error Number Four

In his final assignment of error, Defendant argues the State failed to prove he “was the same person who entered guilty pleas to the predicate offenses alleged in the habitual offender bill. As discussed above, La.R.S. 15:529.1(D)(l)(b) states that “any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.” Here, Defendant did not raise his argument in his written “Objection To Multiple Offender Bill” or at the habitual offender hearing. As such, Defendant failed to preserve the issue for appeal. See Elie, 74 So.3d 1216, State v. Jones, 11-649 (La.App. 4 Cir. 10/19/11), 76 So.3d 608, writ denied, 11-2545 (La.3/30/12), 85 So.3d 116.

III.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment and Defendant’s sentence.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Philip Bonnette PEPITON, III v. Amy TURNER.
    No. 13-1199.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Andrea D. Aymond, Attorney at Law, Marksville, LA, for Plaintiff/Appellant: Philip Bonnette Pepiton, III.

      Chad P. Guillot, Attorney At Law, Marksville, LA, for Defendant/Appellee: Amy Turner.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_JjThe plaintiff, Philip Bonnette Pepiton, III, appeals the trial court’s judgment awarding primary domiciliary custody to the defendant-appellee, Jade Turner. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Pepiton and Turner are the parents of Cole Pepiton, who was born in March 2009. Pepiton and Turner never married. Pepiton was eighteen years old at the time of Cole’s birth; Jade was sixteen. Since Cole’s birth, extensive litigation has ensued over his custody.

In August 2010, Pepiton filed “Rules to Establish Filiation, Child Visitation/Custody, and Child Support,” in which he sought an award of joint custody on an equal-sharing basis until Cole reached school age. Following a September 2010 hearing, a consent judgment was rendered by the trial court awarding joint custody and naming Turner as the primary domiciliary parent and awarding Pepiton visitation from Thursday at 6:00 p.m. through Sunday at 6:00 p.m. on alternating weekends.

In January 2011, Turner filed a “Petition for Change of Custody and Child Support,” urging that the current plan was not in Cole’s best interests. Following a February 2011 hearing, the trial court rendered a consent judgment in June 2011, designating the parties as co-domiciliary parents and setting forth a detailed visitation plan.

In May 2012, Pepiton filed a “Rule for Reduction of Child Support and for Incidental Relief.” In June 2012, the trial court rendered an Interim Order reducing | gPepiton’s child support payment and maintaining shared custody of Cole. In July 2012, Turner filed a “Rule for Contempt; For Increase in Child Support; and for Modification of Child Custody.” The trial court rendered a consent judgment in July 2012, maintaining shared custody and designating Pepiton and Turner co-domiciliary parents.

In July 2018 Pepiton filed a “Rule to Modify Child Custody and Child Support,” urging that he be designated primary domiciliary parent subject to visitation by Turner. Turner also filed a “Rule to Modify Child Custody and Child Support” in July 2013, urging that she be named primary domiciliary parent.

The trial court rendered a considered decree in August 2018, naming Turner the primary domiciliary parent and setting forth a detailed visitation schedule. Pepi-ton now appeals.

ISSUES

Pepiton assigns as error:

1. The trial court erred in modifying the existing custody order by failing to find that Jade Turner proved that such modification of custody was in the best interest of the child.
2. The trial court clearly abused its discretion in granting primary custody of Cole to Jade Turner when the trial court’s own application of the twelve relevant factors in determining the best interest of the child to the facts of this case favored Phillip Pepiton.
3. The trial court erred in failing to give appropriate consideration to maintaining the continuity and stability of the child’s environment in awarding Jade Turner primary custody when Jade admittedly moved multiple times, away from both sides of the child’s family, while the father maintained his residence near both his family and Jade’s family.

DISCUSSION

The law is well-settled that the trial court’s finding in custody matters is entitled to great weight on appeal because it is in a superior position to assess the |sbest interests of the child based on the testimony of the witnesses and parties. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. On appeal, we will not reverse a trial court’s custody ruling in the absence of an abuse of discretion by the trial court. Id. The best interests of the child are of the utmost importance. La.Civ. Code art. 131; Deason v. Deason, 99-1811 (La.App. 3 Cir. 4/5/00), 759 So.2d 219. In considering the child’s best interests, pursuant to La.Civ.Code art. 134, the court may consider the following factors:

(1) 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.

|4The trial court gave extensive oral reasons at the conclusion of the hearing discussing the Article 134 factors and concluding that “[I]t’s so close it’s not even worth the parties bickering over. They are fighting over so much in regards to the child, but so little territory to fight over because everything is so close between the parties.” Pepiton’s main argument is that Turner has moved several times while he has stayed in the same residence. Turner’s main argument is that Cole is now school-aged and needs to be in one residence during the week, and that Pepiton’s parents primarily care for Cole. The trial court specifically found that Turner did not move to thwart visitation by Pepiton. At the August 2018 hearing, the trial court heard the testimony of Turner, Pepiton, and Pepiton, Jr. (Phillip’s father).

Turner testified that she graduated from Pineville Beauty School in November 2012, and is employed as a barber in Creóla, Louisiana, earning approximately $1,500.00 per month. She had recently moved into a rental home in Grant Parish with Cole and her daughter, who was two years old. Turner said that she was engaged and living with her fiancé in Rapides Parish, but that they broke up due to his infidelity.

Turner testified that Cole will be entering either Colfax Head Start or the daycare that her daughter attends. She said that Cole has played “wee-ball” for the past two years and football last fall. On cross-examination, Turner was asked where she had lived. Originally, she lived with Pepiton, then her mother’s house, at LSUA while attending college, back to her mother’s house, with her fiancé, and now in her own rental house. She said she briefly stayed at her mother’s house while awaiting the completion of her rental house.

|fiTurner testified that her aunt owns the barber shop where she works and that her uncle and his wife live nearby in Tioga with their daughter. She testified that her mother and Cole’s paternal grandparents live in Avoyelles Parish.

Pepiton testified that he lives in Plaucheville, Louisiana, with his pregnant girlfriend in a house owned by his father. He said that he is currently disabled from a motor vehicle accident and receives disability benefits of $1,000.00 per month for himself and $500.00 per month for Cole. While he is not employed and receives no income, he helps out as his father’s nursing home doing “things that [the maintenance man is] not smart enough to do.” Pepiton testified that his father purchased his vehicles and four-wheeler and pays all of his bills, including his insurance.

Regarding his accident, Pepiton said that he had a brain injury, broken femur, multiple fractures in his back, and that most of the bones in his face were crushed. Although he has no physical limitations, Pepiton was unaware of when he might return to work. He did state that he was taking online classes through LSU Eunice that he pays for with a federal grant.

Pepiton said that he takes care of Cole when he has him and that they go to the nursing home, where many of his relatives work, “to hang out.” Pepiton has lived in Avoyelles Parish his entire life and has numerous family members who reside there.

Pepiton, Jr. testified that Cole has many maternal and paternal relatives living in Avoyelles Parish. He said that although he owns the house that his son lives in, his son pays the note. Pepiton, Jr. said that he sees Cole daily when his son has him because they have adjoining properties. Although all of the bills are in his name, Pepiton, Jr. said that his son pays them except for the insurance.

lfiThe trial court referred to the “youthful mistakes” made by both parties. We agree, and view Turner’s many moves as steps taken to get her life in order and become an independent adult. The record demonstrates that Pepiton has not had to move in order to make his own way because his father provides for all of his needs. The trial court noted Turner’s “great maturity in her staying on her own two feet, not living off of her momma and moving and getting her own place and getting her rent and so on.” Nevertheless, the trial court found that both parents have a deep and genuine love for the child. We do not doubt that, but due to the child’s need to start school, it is impossible to maintain a shared custody arrangement. We find that the trial court did not abuse its discretion in finding that Turner moved to better her life rather than for any reason that would hinder Pepiton’s access to his son.

The trial court found that a shared residence is impossible due to the distance between the parties (Avoyelles Parish to Grant Parish). The trial court noted that “the reasonability and care for the child exercised previously by each party again is going to be pretty much even now, it’s probably evened out over the years and I think both parties have done well.” Nevertheless, the trial court awarded Turner primary domiciliary custody, and we find no abuse in that award.

CONCLUSION

The judgment of the trial court awarding primary domiciliary custody to the defendant-appellee, Jade Turner, is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Philip Bon-nette Pepiton, III.

AFFIRMED.

      . At the time this litigation began Jade Turner, the mother of the child, was a minor; thus, her mother, Amy Turner, was substituted as the proper party. Jade has since reached the age of majority and all references to "Turner” throughout this opinion refer to Jade.


text:
    Todd GRANTHAM v. Bonnie JOHNSON.
    No. 13-1081.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Mitchel M. Evans, II, DeRidder, LA, for Defendant-Appellant, Bonnie Johnson.
    Tina L. Wilson, Lake Charles, LA, for Plaintiff-Appellee, Todd Grantham.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   PAINTER, Judge.

| defendant, Bonnie Johnson, appeals the trial court’s judgment granting Plaintiff, Todd Grantham’s, motion for summary judgment and declaring that Johnson’s homestead exemption had been forfeited. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

In October 2005, judgment was rendered against Darren Johnson, Bonnie Johnson, and Debbie Mathis awarding damages to Todd Grantham resulting from a conspiracy by them “to inflict injury by gunshot upon plaintiff, TODD GRANT-HAM.” Additionally, Darren Johnson pled guilty to a criminal charge of attempted second degree murder. The record contains no indication of a criminal conviction against either Defendant herein or Mathis. In April 2010, Plaintiff filed this suit asking for a declaratory judgment declaring the homestead exemption inapplicable to certain property owned by Bonnie Johnson and asserting that the obligation arose out of a conviction of a felony. See La.R.S. 20:1(C)(8). Plaintiff filed a motion for summary judgment with regard to the applicability of the homestead exemption to the property. The trial court granted the motion and rendered judgment in favor of Plaintiff. Defendant appeals.

DISCUSSION

“After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La.Code Civ.P. art 966. “The interpretation of a statute is a question of law that may be decided by summary judgment.” State Farm Mut. Auto. Ins. Co. v. U.S. Agencies, L.L.C., 05—728 p. 3 (La.App. 1 Cir. 3/24/06), 934 So.2d 745, 747, writ denied, 06-933 (La.6/16/06), 929 So.2d 1288.

The homestead exemption for homeowners is established by La. Const, art. 7, § 20. Louisiana Revised Statutes 20:1(A)(2) provides that:

The homestead is exempt from seizure and sale under any writ, mandate, or process whatsoever, except as provided by Subsections C and D of this Section. This exemption extends to thirty-five thousand dollars in value of the homestead, except in the case of obligations arising directly as a result of a catastrophic or terminal illness or injury, in which case the exemption shall apply to the full value of the homestead based upon its value one year before such seizure. This homestead exemption from seizure and sale shall extend automatically to the proceeds from any property insurance policy received as a result of damage caused by a gubernatorially declared disaster to a homestead and that are held separately in an escrow account identified as insurance proceeds paid from the damage of a homestead for its repair or replacement.

However, La.R.S. 20:1(C) provides for certain debts to which the homestead exemption will not apply, including: “any obligation arising from the conviction of a felony or misdemeanor which has the possibility of imprisonment of at least six months.” La.R.S.20:l(C)(8).

Plaintiff argues that because the judgment of the court awarded damages for a conspiracy to injure him, and because Darren Johnson was convicted of a felony as a result of the actions which led to the civil judgment against Defendant, the judgment arises out of Darren Johnson’s conviction and that, as a result, the homestead exemption does not apply to Defendant’s property. The trial court in oral reasons for ruling stated:

To me, I read that case more in terms of how do you define the words “arising from”? What does that mean? And whether you cite the Ellis case for that or whether you get out the Webster’s dictionary, it means those things: originating from, growing out of, flowing from, arising out of.
The comparison issues that the Court looks to would be things like, under bankruptcy law, you cannot discharge a debt for an intentional tort. And that’s what Ms. Johnson was found to have Iscommitted. She was found specifically by the Court in a judgment that has been rendered final — there was no appeal, and that is a final judgment — that she conspired with the shooter to commit murder. It was attempted murder because the person didn’t die, of that individual.
And I cannot go behind that judgment to determine whether I think that that was an appropriate judgment or not an appropriate judgment. That judgment is final and found that Ms. Johnson was a co-conspirator. There’s no factual question. She was not criminally convicted, but her co-conspirator under this judgment that she is solidarily liable with was convicted. And so, to me, the plain reading of that language is this is an obligation arising from the conviction of a felony.
The only other like matter that I can compare it with is the solidary obligation articles of the Civil Code, which finds that a solidary obligor is responsible for the entirety of a debt with their other solidary obligors, even if they’re only— There’s no apportionment of fault. Although I realize the judgment in this matters found that although Ms. Johnson was solidarily liable with Mr. Johnson and Ms. Mathis, the Court apportioned percentages of fault. For what purpose, I’m not sure. But the law seems to be clear to me that solidary means solidary.

On appeal, Defendant asserts that this interpretation of the statute was erroneous. Since this matter concerns interpretation of a statute, which is a question of law, as well as a motion for summary judgment, it must be reviewed by the court de novo. Broussard v. Hilcorp Energy Co., 09-449 (La.10/20/09), 24 So.3d 813.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. Munden v. State, Division of Administration, 2001-2826, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 689, 641, writ denied, 2003-1532 (La.10/03/03), 855 So.2d 310. A statute shall be construed to give meaning to the plain language of the statute, and courts may not extend statutes to situations that the legislature never intended to be covered. A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 4 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 870.

Chamberlain ex rel. Wilmer J. v. Kennedy, 03-488, pp. 5-6 (La.App. 1 Cir.12/31/03), 868 So.2d 753, 757.

We further note that “[t]he right of homestead exemption is in this state a constitutional right, and the terms by which it is granted should not be narrowed by either the legislature or the courts.” Lyons v. Andry, 31 So. 38, 39-40, 106 La. 356, (La.1901); see also In re Chalin, 21 B.R. 885 (W.D.La.1982). Also relevant to our interpretation of this statute is the fact that the provision by which Plaintiff seeks to deny Defendant her homestead exemption is penal in nature. “[I]t is likewise well established that penal statutes are strictly construed.” Fontenot v. Reddell Vidrine Water Dist., 02-439, p. 7 (La.1/14/03), 836 So.2d 14, 20. Therefore, it is incumbent upon this court to narrowly interpret the provision of La.R.S. 20:1(C)(8) which Plaintiff is attempting to use to relieve Defendant of her homestead exemption. We cannot, therefore, broaden this exception to the homestead exemption to circumstances other than those clearly intended by the legislature, i.e., where the person claiming the homestead exemption has been convicted of “a felony or misdemeanor which has the possibility of imprisonment of at least six months.” Since Bonnie Johnson has not been so convicted, the obligation sought to be enforced does not arise out of a conviction for the purposes of La.R.S. 20:1. Accordingly, we find that Plaintiff is not entitled to summary judgment as a matter of law.

CONCLUSION

For these reasons, the judgment granting Plaintiffs motion for summary judgment is reversed. This matter is remanded to the trial court for further proceedings in keeping with this court’s determinations herein. Costs of this appeal are assessed to Plaintiff, Todd Grantham.

REVERSED AND REMANDED.

      . Defendant in brief indicates that the charges brought against her and Mathis were dropped.


author: AMY, Judge.

text:
    STATE of Louisiana v. Lawrence LAFLEUR.
    No. 13-1082.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Trent Brignac, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, Ville Platte, LA, for Appellee State of Louisiana.
    Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant Lawrence Lafleur.
    Lawrence Lafleur, Pine Prairie, LA, in proper person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe defendant was convicted of forcible rape and sentenced to thirty years at hard labor. The defendant appeals. For the following reasons, we affirm the defendant’s conviction, vacate his sentence, and remand for resentencing.

Factual and Procedural Background

In April of 1994, the victim, J.T., was alone in a washateria in Mamou, Louisiana, when she was approached by a masked man who demanded money. Although J.T. attempted to give the man her washing money, he instead forced her into the was-hateria bathroom and raped her. J.T. drove immediately to the Mamou police and reported the rape. However, she was unable to identify her attacker.

A sexual assault examination was performed, and J.T.’s sexual assault examination kit was forwarded to the Acadiana Criminalistics Laboratory. Seminal fluid was identified on J.T.’s vaginal swabs, on some socks she had been holding during the rape, and on J.T.’s pants. At the time, the lab was unable to process DNA, so J.T.’s sexual assault examination kit was stored. Eventually, the vaginal swabs were sent to a lab, Orchid Cellmark, in Dallas, Texas, where they were processed for DNA. The results were sent back to the Acadiana Criminalistics Laboratory for analysis. Thereafter, an analyst determined that the DNA results from J.T.’s sexual assault examination kit matched a profile in the DNA database. That profile belonged to the defendant, Lawrence La-fleur.

After the analyst notified the Mamou police about the match, the defendant was arrested. While in custody, the defendant made several inculpatory statements to the police and signed a permission to search form allowing the police to take a blood sample. The defendant’s blood sample was sent to the Acadiana |2Criminalistics Laboratory where testing confirmed that the defendant’s DNA matched the DNA retrieved from J.T.’s vaginal swabs.

The State subsequently charged the defendant with forcible rape, a violation of La.R.S. 14:42.1. After a trial, the defendant was found guilty of that charge. Thereafter, the trial court sentenced the defendant to thirty years at hard labor.

The defendant appeals, asserting in his counseled brief that:

1. The trial court erred in admitting expert testimony based on a report where the Appellant was not given the opportunity to confront and cross-examine the person who prepared the report, in violation of his constitutional rights of confrontation and cross-examination.
2. The trial court erred in sentencing the offender to a 30-year sentence without articulating a factual basis for its sentence and for failing to consider aggravating and mitigating circumstances as required by La.Code Crim. P. art. 894.1.
3.The trial court committed an error patent by failing to give offender credit for time served as part of his sentence.

The defendant has also filed a pro se brief, asserting as error therein:

1. The trial court erred by not allowing the jury to hear the original statement of the defendant from November 7, 2011[,] in violation of La.C.E. art. 901.
2. The trial court erred when it failed to order a mistrial when the Assistant District Attorney, Marcus Fontenot, made a prejudicial statement in the presence of the jury, in violation of La. C.Cr.P. art. 771 and 774.
3. The trial court erred when it failed to grant a motion for mistrial when defense attorney Kelly Tate made an objection to a state actor alleged prior crimes[sic], in violation of La.C.Cr.P. art. 771.
4. The trial court erred when it allowed expert witness, Caroline Booker, to testify about facts that she had no personal knowledge of, in violation of La.C.E. art. 703.
5. The trial court erred when it allowed the use of stipulations to deprive the defendant of his right of confrontation, in violation of U.S. Const. Amend. Six.
|36. The trial court erred when it allowed the State to file an amended Bill of Information during the trial and denied the defense’s motion for continuance, in violation of U.S. Const. Amend. Six.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. We observe one error patent which requires vacating the defendant’s sentence and remanding for resentencing. The defendant was convicted of forcible rape, a violation of La.R.S. 14:42.1. The sentencing provisions of La.R.S. 14:42.1(B) state that “[w]hoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” The record indicates that, when asked what portion of the sentence was “without benefit,” the trial court stated that “Well I think it is, it’s certainly the 85%, whatever it is, that’s what it is.”

As it is unclear how many years of the defendant’s sentence were actually imposed without the benefit of probation, parole, or suspension of sentence, we find that the defendant’s sentence is indeterminate. See La.Code Crim.P. art. 879. Accordingly, we vacate the defendant’s sentence and remand for resentencing.

Admissibility of Expert Testimony

The defendant asserts that the trial court erred in permitting Caroline Booker, an analyst with the Acadiana Criminalis-tics Laboratory, to testify concerning the results of DNA analysis that was conducted by another analyst. The record reflects that, during her testimony, the State questioned Ms. Booker |,tabout DNA testing that was done on the vaginal swabs from J.T.’s sexual assault examination kit. The defendant objected on the basis that the testing had been done by Orchid Cellmark, a private laboratory, and that because Ms. Booker had not done the testing herself, she had no knowledge of the testing and that the testimony would violate the defendant’s Sixth Amendment right to confrontation. The trial court overruled the objection.

Thereafter, Ms. Booker testified that Orchid Cellmark sent the data to her, that she reviewed it, drew her own conclusions, and inputted the resulting profile into the DNA database. According to Ms. Booker’s testimony, the male profile obtained from the vaginal swabs matched a profile in the DNA database. Ms. Booker testified that the matching profile belonged to the defendant. Thereafter, the police obtained a blood sample from the defendant, and Ms. Booker performed additional testing to confirm that the DNA profile obtained from the defendant’s blood sample matched the profile obtained from the vaginal swabs from J.T.’s sexual assault examination kit.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the admission of “testimonial” hearsay violates the Confrontation Clause found in U.S. Const. amend. VI. In Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the Court held that a forensic report that contained a certification concerning the defendant’s blood alcohol level constituted testimonial hearsay and that, because the testifying expert had neither signed the certification, nor observed nor performed the test, the admission of the report through the testimony of the expert violated the Confrontation Clause. However, in Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the Supreme Court found no violation of the Confrontation Clause where an expert testified that | Bthe defendant’s DNA profile matched a DNA profile which belonged to the perpetrator of a sexual assault and which was developed by another non-testifying expert. In State v. Bolden, 11-2435, pp. 4-5 (La.10/26/12), 108 So.3d 1159, 1161-62, the Louisiana Supreme Court addressed the admissibility of such testimony, stating:

No error under the Confrontation Clause occurs when a DNA expert testifies that in his or her opinion the DNA profile developed from a sample taken from defendant matches the DNA profile developed by other, non-testifying technicians from biological samples taken from the victim of a sexual assault if: the tests on the victim’s samples were conducted before the defendant was identified as the assailant or targeted as a suspect, {Williams, — U.S.-, 132 S.Ct. 2221], ... the tests are conducted by an accredited laboratory, ... and the report of the test results itself is not introduced as a certified declaration of fact by the accredited laboratory.

Our review of the record indicates that the expert in this case, Ms. Booker, testified that the defendant’s DNA profile matched the DNA profile developed by other, non-testifying technicians. Ms. Booker testified that she performed confirmatory testing after the DNA database initially indicated that the DNA profile identified from the victim’s vaginal swabs was a match to the defendant’s DNA profile. The record does not indicate that the defendant had been identified as a suspect before the DNA database match. Further, the report of the test results was not introduced into evidence at trial. Although Ms. Booker offered no testimony or evidence concerning Orchid Cellmark’s accreditation status, our reading of the record reveals that neither the Acadiana Criminalistics Laboratory nor Orchid Cell-mark’s accreditation status was at issue during the trial. In particular, we observe that Ms. Booker was qualified as an expert without any questioning concerning the Acadiana Criminalistics Laboratory’s accreditation status and that the defendant did not cross-examine Ms. Booker on this issue. See also State v. Grimes, 11-984 (La.App. 4 Cir. 2/20/13), 109 So.3d 1007, writ denied, 13-625 (La.10/11/13), 123 So.3d 1216.

Further, Confrontation Clause errors are subject to a harmless error review. State v. Hawkins, 96-766 (La.1/14/97), 688 So.2d 473. In Hawkins, 688 So.2d at 478 (alteration in original), the supreme court addressed harmless error review, stating:

An error is harmless if the verdict rendered was surely unattributable to the error. La.Code Crim.P. art. 921. The correct standard of review is as follows:
Confrontation errors are subject to a Chapman [v. State of Cal., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ] harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at 684, 106 S.Ct. at 1438.

State v. Wille, 559 So.2d 1321 (La.1990).

Our review of the record reveals that, even if the trial court erred in permitting Ms. Booker to testify about the lab work done by Orchid Cellmark, that error was harmless. The record indicates that, although Ms. Booker’s testimony was important to the prosecution’s case, in that the defendant was identified as a suspect because of the database match from the defendant’s DNA profile to the unknown male profile obtained from J.T.’s vaginal swabs, the defendant made several statements in which he confessed his involvement in the crime. In | particular, the defendant corroborated several details of J.T.’s account of the events of April 22, 1994. The defendant admitted that when J.T. told him that she didn’t have any money, he told her “if you can’t give me no money then you know, you know, let’s have sex[,]” and that he forced J.T. into the washateria bathroom. Further, the defendant admitted that even though J.T. asked him to stop, he had intercourse with her. Thus, based on our review of the record, even if the trial court erred in admitting the testimony about the lab results obtained by Orchid Cellmark, any such error would be harmless.

This assignment of error is without merit.

Recording of November 7, 2011 Interview

The defendant argues that the trial court erred in failing to have the recording of his custodial statement taken on November 7, 2011, played for the jury. According to the defendant, if the recording had been played, the jury would have heard him make an allegedly exculpatory statement. Our review of the record does not reveal that the defendant requested that the recording be played for the jury. Additionally, the record indicates that Chief Greg Dupuis testified about the defendant's November 7, 2011 statement without any objection by the defendant concerning the recording. We also observe that the transcript of the November 7, 2011 statement was not introduced into evidence and was not submitted to the jury. Accordingly, we find that the defendant has failed to preserve this issue for review and has waived this assignment of error. See La.Code Crim.P. art. 841.

Testimonial Remarks by the Prosecutor

The defendant also asserts that the trial court erred in failing to order a mistrial after the prosecutor impermissibly made testimonial remarks during | Rclosing arguments. However, our review of the record indicates that the defendant did not object to the allegedly impermissible statements. Thus, the defendant has not preserved this issue for appellate review. See La.Code Crim.P. art. 841 and State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied, 10-2682, 10-2706 (La.4/25/11), 62 So.3d 85, 89.

Other Crimes Testimony

The defendant contends that the trial court erred in failing to grant a mistrial on- the basis of impermissible statements concerning other crimes evidence elicited from Chief Dupuis, one of the State’s witnesses.

According to the record, the following colloquy occurred during the State’s questioning of Chief Dupuis:

Q: Well Chief Dupuis[,] did the defendant have a different version of the facts
on the November 8th statement?
A: Yes sir he did.
Q: What did he tell you at that time?
A: At that [time] he said that there was no drugs involved as he stated earlier....

The defense objected to this statement and speculated that a mistrial might be appropriate. Outside the presence of the jury, the State argued that there was no “other crime” because Chief Dupuis had stated that there were “no drugs involved” (emphasis added). The defendant argued that the jury would make the inference that at one time he had said there were drugs involved. The trial court overruled the objection.

InLouisiana Code of Evidence Article 404(B) provides, in relevant part, that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Our review of the record reveals that Chief Dupuis’ statement does not constitute evidence of any “other crimes, wrongs, or acts[.]” Thus, we find no error in the trial court’s decision to overrule the defendant’s objection. Further, the admission of other crimes evidence is subject to a harmless error analysis, and, absent a reasonable possibility that any erroneous admission contributed to the verdict, reversal is not required. State v. Stevens, 11-175 (La.App. 3 Cir. 10/5/11), 74 So.3d 803, writ denied, 11-2496 (La.3/30/12), 85 So.3d 115. Even if the trial court’s admission of the statement was erroneous, we find that, after reviewing the record, there is sufficient evidence to support the defendant’s conviction. The record indicates that, although J.T. was unable to identify her attacker, the defendant’s DNA profile was consistent with the DNA profile recovered from the vaginal swabs in J.T.’s sexual assault examination kit. Notwithstanding the DNA evidence, the defendant made incul-patory statements wherein he corroborated the victim’s statement and details of the crime. The defendant admitted that he attempted to rob the victim, and that when she told him she didn’t have any money, he told her that they could have sex instead. Further, the defendant admitted that he forced the victim into the washateria bathroom and had intercourse with her even though she told him to stop. Accordingly, we find that any potential error was harmless.

This assignment of error is without merit.

| toExpert Testimony Concerning Receipt and Testing of Sexual Assault Examination Kit in 199Jp

The defendant next complains that the trial court erred in permitting Ms. Booker to testify as to events for which she had no personal knowledge. The defendant specifically points to Ms. Booker’s testimony about the crime lab’s processing of the sexual assault examination kit in 1994, including who submitted and received the kit, and that semen was identified on the vaginal swabs from the kit. Our review of the record indicates that, not only did the defendant fail to object to this testimony, but that defense counsel questioned Ms. Booker about the starting date of her employment at the crime lab and who actually received the sexual assault examination kit. Accordingly, we find that the defendant has failed to preserve this issue for appellate review. See La.Code Crim.P. art. 841.

Use of Stipulations

Additionally, the defendant argues that the trial court erred in permitting the attorneys to stipulate about the testimony of former Assistant Chief of Police Roland Reed, who passed away before trial. The defendant contends that this stipulation violated his right to confrontation under U.S. Const, amend. VI. The record indicates that the prosecutor and the defense stipulated that Asst. Chief Reed delivered the sexual assault examination kit to the Acadiana Criminalistics Laboratory in 1994. The record also indicates that, having stipulated to this testimony, the defense did not object to it. Thus, we find that the defendant failed to preserve this issue for appellate review. See La.Code Crim.P. art. 841.

As previously discussed, Confrontation Clause errors are subject to a harmless error review. Hawkins, 688 So.2d 473. Although the stipulation concerned evidence which ultimately led to the defendant’s identification as a |nsuspect in the rape of J.T., the record indicates that the defendant admitted that he forced J.T. into the washateria bathroom and raped her. Thus, even if the trial court erred in allowing the stipulation, we find that any such potential error was harmless.

This assignment of error is without merit.

Amended Bill of Information

The defendant asserts that the trial court erred in permitting the State to file an Amended Bill of Information and in denying the defendant’s motion for continuance. The record indicates that, immediately before the start of voir dire, the State moved to file an Amended Bill of Information which changed the date of the alleged offense from April 24, 1994, to April 22, 1994. The defendant objected to the amendment and, on the basis that the amendment might prejudice the defendant, the defense moved for a continuance. The trial court permitted the amendment and denied the motion for continuance.

In State v. Williams, 44,418, p. 8 (La.App. 2 Cir. 6/24/09), 15 So.3d 348, 353-54, writ denied, 09-1746 (La.3/26/10), 29 So.3d 1250, the second circuit addressed the State’s authority to amend indictments, stating:

The prosecutor has the authority under La. C. Cr. P. art. 487 to make substantive amendments to an indictment at any time before the beginning of trial, subject to the defendant’s right under La. C. Cr. P. art. 489 to move for a continuance if the amendment led to his prejudice. State v. Crochet, 05-0123 (La.6/23/06), 931 So.2d 1083. The purpose of a continuance is to protect defendant from surprise or prejudice which may result from such amendment. State v. Cleveland, 25,628 (La.App.2d Cir.1/19/94), 630 So.2d 1365. When the state requests an amendment to the bill of information before the first prospective juror is called, the defendant’s remedy is a motion for continuance, not an objection to the amendment. State v. Ignot, 29,745 (La.App.2d Cir.8/24/97), 701 So.2d 1001, writ denied, 99-0336 (La.6/18/99), 745 So.2d 618.

| ^Accordingly, the defendant’s remedy was to seek a continuance, not an objection to the amendment to the bill of information. Granting or denying a continuance is within the broad discretion of the trial court. State v. Martin, 93-285 (La.10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995). Absent an abuse of that discretion, the trial court’s decision will not be overturned. State v. Ray, 42,096 (La.App. 2 Cir. 6/27/07), 961 So.2d 607. Our review of the record indicates that defense counsel only posited that the amendment “may prejudice the defendant[,]” and offered no specific explanation of the possible prejudice. Thus, we find no abuse of discretion on the part of the trial court in permitting the amendment and denying the defendant’s motion for continuance.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Lawrence Lafleur, for forcible rape is affirmed. The defendant’s sentence is vacated and the matter is remanded for resentencing.

CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED FOR RESENTENCING.

      . The victim's initials are used pursuant to La.R.S. 46:1844(W).

      . Having vacated the defendant’s sentence, we do not address his assignments of error concerning his sentence.

      . The defendant specifically points to a statement made by the prosecuting attorney de-ing closing arguments about the prosecutor's aunt’s propensity to dye her hair.