author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Michael L. PERCY, Appellant.
    No. 48,922-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Louisiana Appellate Project By: Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, District Attorney, Cloyce C. Clark, III, Tommy J. Johnson, Suzanne M. Owen, Karelia A. Stewart, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PITMAN & GARRETT, JJ.
   PITMAN, J.

| ¶A jury convicted Defendant Michael L. Percy of the responsive verdict of unauthorized entry of a place of business. The trial court sentenced Defendant to the maximum sentence of six years at hard labor and fined him $1,000, in default of which he would serve 60 days in jail. Defendant now appeals his conviction and sentence. For the following reasons, we affirm Defendant’s conviction and affirm his sentence as amended.

FACTS

Defendant was charged with simple burglary in violation of La. R.S. 14:62 and possession with intent to distribute Schedule I controlled dangerous substance, i.e., marijuana, in violation of La. R.S. 40:966(A)(1).

At trial, Jamal Raman testified that he is the owner of H & S Grocery, which is located at 4001 Hollywood in Shreveport. Mr. Raman explained that H & S Grocery is an enclosed structure that is approximately 2,000 square feet with walls that are “probably around six feet, seven feet high.” He stated that the building has three doors which are locked when the store is not open for business. He testified that, in December 2012, the store was operated from 9 a.m. to 8 p.m. He explained that his store has been burglarized many times, so he had a surveillance system, an alarm, a caged door and a cinder block wall installed. Mr. Raman testified that, on the night of December 18, 2012, and the morning of December 19, 2012, the alarm system at H & S Grocery was triggered three times during the hours the store was closed. When he arrived at H & S Grocery on the morning of December 19, 2012, he observed that the cinder block wall had been completely knocked down and that approximately $7,000 worth of cigarettes, alcohol, lighters and other items were missing from inside the 12store. He testified that he met with Shreveport Police Ofe. Chris Lee and that they viewed the surveillance video from the previous evening. Mr. Raman stated that he recognized the person on the video as a regular customer, but did not know the person’s name. He explained that he received information about the person on the video after offering a $500 reward and that he gave that information to the police. Mr. Raman identified Defendant as the person on the surveillance video.

Ofc. Lee testified that he responded to an alarm at 4001 Hollywood on December 19, 2012. He explained that, upon arrival, he noticed a hole in the back wall of the store and then made contact with Mr. Ra-man. Ofc. Lee stated that he and Mr. Raman noted the merchandise missing from the store and then watched the surveillance video. He testified that he took photographs of the surveillance video with his phone so that he could share the photos with other detectives. Ofc. Lee identified Defendant as the person in the surveillance video.

Det. Angie Wilhite of the Shreveport Police Department testified that she worked on the follow-up investigation on December 20, 2012. She explained that she and other officers used the information Mr. Raman had gathered to determine the identity of the person on the surveillance video and, after talking to people in the neighborhood, they learned of a man named Michael who lived at 3935 Miles Street with his girlfriend, Daphne Griffin. She stated that they contacted Ms. Griffin at her place of work and Ms. Griffin gave them permission to search her residence at 3935 Miles Street. She further stated that she and the other officers went to 3935 Miles Street, took Defendant into custody, performed a protective sweep and then | ^conducted a search of the residence. Det. Wilhite explained that they found cigarettes, lighters and alcohol in the residence that matched the description of the items taken from H & S Grocery. She also testified that they found a sledgehammer with paint on it that matched the paint color on the exterior of H & S Grocery, along with marijuana and flavored blunt rollers, inside the residence.

Cpl. Brian Lauzon of the Shreveport Police Department testified that he also responded to 3935 Miles Street on December 20, 2012. He explained that he performed the initial protective sweep of the house and that, while not involved in the search of the house, he did observe marijuana on a table in the back bedroom. Lt. Carl Townley of the Caddo Parish Sheriffs Office testified as an expert in the investigation of narcotics and possession with intent to distribute narcotics. Lt. Townley testified that the substance collected from 3935 Miles Street was marijuana that appeared to be packaged for resale purposes. ,

A unanimous jury convicted Defendant of the responsive verdict of unauthorized entry of a place of business, in violation of La. R.S. 14:62.4, and acquitted him of the drug charge.

The trial court sentenced Defendant to the maximum sentence of six years at hard labor and fined him $1,000, in default of which he would serve 60 days in jail.

Defendant appeals his conviction and sentence.

\ ¿DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Defendant argues that the evidence presented at trial was insufficient to prove that he committed unauthorized entry of a place of business. Defendant contends that the photographs used to identify him were cell phone photographs taken of the surveillance video and were of poor quality. He argues that there was no evidence linking the sledgehammer with white paint on it found at 3935 Miles Street to the paint on the wall of H & S Grocery. He also alleges that the testimony of Mr. Raman that the wall of H & S Grocery was “probably” six feet in height is -not sufficient to prove that the wall was at least that height, a requirement contained in La. R.S. 14:62.4.

The state argues that the evidence presented at trial was sufficient to sustain Defendant’s conviction of unauthorized entry of a place of business. The state contends that Mr. Raman’s testimony regarding the height of the walls of H & S Grocery was sufficient to prove that the business presented a barrier of at least six feet. The state also contends that Mr. Raman’s testimony that the person on the surveillance tape was a regular customer of H & S Grocery, his in-court identification of Defendant and Ofc. Lee’s testimony that Defendant was the person in the surveillance video were all sufficient to identify Defendant as the person who intentionally entered H & S Grocery during closed hours without authority.

The standard of appellate review for a sufficiency of the evidence claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential |selements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992); State v. Smith, 47,983 (La.App.2d Cir.5/15/13), 116 So.3d 884. See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its 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 trier of fact makes credibility determinations and may accept or reject the testimony of any witness. 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). A reviewing court may not impinge on the fact finder’s discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

When a defendant claims that he was not the person who committed the crime, the Jackson rationale requires that the state negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047, citing State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, and State v. Neal, 00-0674 (La.16/29/01),6 796 So.2d 649. Positive identification by only one witness is sufficient to support a defendant’s conviction. Id.

Thus, in order for Defendant’s convictions to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the essential elements of unauthorized entry of a place of business. This offense was committed on or about December 18 and 19, 2012. On the dates of the offense, La. R.S. 14:62.4(A) defined unauthorized entry of a place of business as follows:

Unauthorized entry of a place of business is the intentional entry by a person without authority into any structure or onto any premises, belonging to another, that is completely enclosed by any type of physical barrier that is at least six feet in height and used in whole or in part as a place of business.

The knocking down of the exterior cinder block wall in order to enter the store demonstrates that Defendant intended to enter H & S Grocery. Mr. Raman testified he is the owner of H & S Grocery and that Defendant was not authorized to be inside H & S Grocery during the hours the store was closed for business. Mr. Raman’s testimony also demonstrated that H & S Grocery is a place of business, i.e., a small grocery store, that is a completely enclosed structure. The state proved the height of the walls of H & S Grocery with Mr. Raman’s testimony that the walls are “probably around six feet, seven feet high.” Therefore, the state proved the essential elements of unauthorized entry of a place of business beyond a reasonable doubt.

As proof of Defendant’s identity as the perpetrator, the state introduced two color photographs of the perpetrator’s face taken from the surveillance video. At trial, Mr. Raman stated that the person in the photographs was a regular customer of H & S Grocery and identified | ^Defendant as the person in those photographs. Defendant’s presence at trial also afforded the jury the opportunity to compare the appearance of the person in the photographs to that of Defendant. Therefore, the state proved Defendant’s identity as the perpetrator beyond a reasonable doubt.

Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial to establish the essential elements of unauthorized entry of a place of business beyond a reasonable doubt. The evidence presented at trial was clearly sufficient to sustain the conviction. Therefore, we find that this assignment of error lacks merit.

Motion for Continuance of Trial, Exclusion of Evidence

In his second assignment of error, Defendant argues that the trial court erred in denying his motion to continue trial. Defendant contends that this motion should have been granted because he only received photographs of the surveillance video days before trial and, therefore, did not have sufficient time to review them and obtain an expert for the video and photographs prior to trial.

The state contends that it fulfilled its continuing duty of discovery, arguing that the police reports put Defendant on notice of the existence of the photographs months before trial and that Defendant received the actual photographs the week prior to trial.

The decision to grant or deny a motion to continue rests within the discretion of the trial court, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. La. C. Cr. P. art. 712; State v. Strickland, 94-0025 (La.11/1/96), 688 So.2d 218; State v. Gipson |8 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

Defendant filed a motion for discovery on January 3, 2013, and the state filed a bill of information on January 16, 2013. On January 16, 2013, the state responded to Defendant’s discovery request with copies of police reports, a permission to search form and Defendant’s criminal history. On March 27, 2013, Defendant filed a motion for continuance of the trial scheduled for April 1, 2013, arguing that the state had not provided him with “a lab report, photos used to allegedly identify the defendant, or the video surveillance from the victim’s place of business.” On that same day, Defendant filed a motion to exclude the photos, the surveillance video and the drug evidence at trial.

On March 28, 2013, the state made another response to discovery, including photographs taken at 3935 Miles Street and a copy of the lab report showing that the drugs recovered from that residence were marijuana. At the March 28 hearing on Defendant’s motion to suppress, defense counsel reurged the motion to continue, arguing that they had just received identification information, i.e., photographs of the surveillance video. The state clarified that the surveillance video was corrupted and could not be viewed, so the photos taken of the surveillance video were the only available evidence. Although defense counsel requested a continuance, Defendant stated that he wanted to go to trial, saying, “I want that. I do. I want my 12 jurors. That’s what I want.” The trial court denied the motion for a continuance over defense counsel’s objection.

On April 1, 2013, the jury was selected, and the state responded to ^discovery again by providing Defendant with a copy of the surveillance video. On April 2, 2013, defense counsel reurged the motion for continuance, requesting time to obtain an expert to review the surveillance video. The state explained that, although it previously believed the video was corrupted, it obtained a viewable copy the previous day and intended to introduce the video as evidence. A Daubert hearing was also conducted of an expert witness in paint identification, whom the state planned to call to testify regarding the paint on the sledgehammer found at 3935 Miles Street as matching the paint on the exterior of H & S Grocery. Defense counsel again requested a continuance due to the state’s late responses to discovery, specifically regarding the photographs, surveillance video and lab reports. Upon becoming fully aware of the timing of the disclosure of the evidence, the trial judge suppressed the crime lab report on the paint samples, the expert witness testimony and the surveillance video, but did not suppress the photographs taken of the surveillance video.

Although the state’s late disclosure of the photographs was not optimal, the disclosure of the photos the week prior to trial did not deprive Defendant of a fair trial. The discovery materials that were timely provided to Defendant, i.e., the police reports, demonstrated that the state possessed photos that were allegedly of Defendant. Furthermore, the trial court suppressed the evidence that formed the basis of Defendant’s argument for a continuance. Therefore, the trial court did not abuse its discretion when denying the motion to continue.

Accordingly, this assignment of error is without merit.

Motion to Suppress

11 pin his third assignment of error, Defendant argues that the trial court erred in denying his motion to suppress evidence. Defendant contends that the sledgehammer with white paint recovered from 3935 Miles Street should have been excluded from use at trial because Defendant refused to consent to the search of that location. Defendant alleges that he was an occupant of 3935 Miles Street and that he indicated to Ms. Griffin that he did not want to allow the police officers to search the residence. He contends that it was apparent from the circumstances that he refused to consent to the search of the house and that the police officers never asked for his consent.

The state contends that Ms. Griffin gave written consent to search the residence and that Defendant did not have authority to repudiate the consent provided by Ms. Griffin.

The Fourth Amendment of the United States Constitution and Article I, Section 5, of the Louisiana Constitution prohibit unreasonable searches and seizures and provide that a warrant may not be issued without probable cause. A war-rantless search and seizure is presumed to be unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Stephens, 46,304 (La.App.2d Cir.6/22/11), 71 So.3d 462, citing State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Talbert, 449 So.2d 446 (La.1984); and State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168. A valid consent search is an exception to the warrant requirement. Id., citing State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082; and State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985), writ denied, 486 So.2d |11 748 (La.1986), cert, denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986).

In Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), the United States Supreme Court considered the reasonableness of a warrantless search of a home when one resident gives consent to search and another resident refuses to give consent. In that case, Mrs. Randolph called police complaining that her husband had taken their son away. When the police arrived at the Randolphs’ home, Mrs. Randolph told police that Mr. Randolph used cocaine and that there were drugs inside the house. A police officer asked Mr. Randolph for permission to search the home and he “unequivocally refused.” The police officer then asked Mrs. Randolph for consent to search, and she gave consent and led the officers inside the house to where the drugs and drug paraphernalia were located. The police then stopped the search and obtained a warrant. Mr. Randolph was indicted for possession of cocaine, and he moved to suppress the evidence as a product of a warrantless search. The trial court denied the motion and ruled that Mrs. Randolph had common authority to consent to the search. The Court of Appeals of Georgia reversed and was affirmed by the Supreme Court of Georgia. The United States Supreme Court granted certiorari and held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” The Court also noted “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the | ^potential objector, nearby but not invited to take part in the threshold colloquy, loses out.”

Very recently, in Fernandez v. California, - U.S. -, 134 S.Ct. 1126, 188 L.Ed.2d 25 (2014), the United States Supreme Court elaborated on co-tenant consent. In that case, police were called to the scene of an armed robbery and received information that the perpetrator was in a nearby apartment building. The officers then observed a man run into the apartment building and heard screaming coming from inside. The officers knocked on the door on the unit where the screaming was coming from, and a bleeding woman who was holding a baby answered the door and said she had been in a fight. When the police asked the woman to step outside, the defendant came to the door and told police that they did not have the right to come inside. The officers placed the defendant under arrest on suspicion of battery. An hour later, the officers returned to the apartment unit, and the woman gave them written and oral consent to search. The officers found gang paraphernalia, a knife, clothing worn by the robbery suspect and ammunition. The defendant was charged with robbery and other crimes. The defendant moved to suppress the evidence found in the apartment, and the trial court denied the motion. The California Court of Appeal affirmed, and the California Supreme Court denied the petition for review. The United States Supreme Court granted certiorari, affirmed the lower courts’ decisions and found that Randolph, supra, does not apply when the objecting occupant is absent due to a lawful detention or arrest when another occupant consents to a search. The Fernandez Court also explained that Randolph, supra, “applies only when the objector is standing in the door saying ‘stay out’ when officers 113propose to make a consent search.”

At the motion to suppress hearing in the case sub judice, Det. Wilhite testified that she was present when the search of 3935 Miles Street was executed. She testified that the officers made contact with Ms. Griffin, who gave written consent to search the house and also provided police officers with her keys to enter the house. Det. Wilhite testified that Defendant was inside the house when the officers arrived and that he did not object to the search. She stated that Ms. Griffin was the only leaseholder on the house, but that it did appear Defendant was staying there. Det. Wil-hite further stated that Ms. Griffin was “wishy-washy” on whether Defendant lived with her. Ofc. Bassett testified at this hearing that he was present at 3935 Miles Street when the search was executed and that male clothing was found inside the residence. He further testified that he never heard Defendant directly tell the police officers not to search the house. He stated that Defendant told Ms. Griffin, “Baby, we don’t want them searching.” Ofc. Bassett explained that Defendant gave him the impression that Ms. Griffin “was in charge, not him.” He also testified that Ms. Griffin was “on the fence” about whether Defendant lived with her and that she was “pretty vague.”

The trial court noted that it had reviewed Georgia v. Randolph, supra, and distinguished the case sub judice as follows:

In this case, at least as far as the testimony is concerned, we’ve got Ms. Griffin who signed a consent form, as well as | T 4told the officers that they could enter the residence and search. She provided a key to them. The only testimony is that-at least from the officer that was on the stand, the officer indicated that all Mr. Percy said was, Baby, we don’t want them searching.
Randolph has stated that there must be an express refusal to search. I don’t find ‘baby, we don’t want them searching1 is an express refusal to search, and therefore, the Motion to Suppress is denied.

To decide if the police lawfully seized evidence from inside 3935 Miles Street, it must be determined if Defendant had the right to refuse consent to search and, if so, whether his actions before and during the search amounted to a refusal of consent to search. Although Ms. Griffin, the only named lessee on the lease of 3935 Miles Street, was “wishy washy” as to whether Defendant lived with her, Det. Wilhite testified that it appeared Defendant lived in the residence, and Ofc. Bassett stated that male clothing was found in the bedroom. The testimony presented at the motion to suppress hearing suggests that Defendant was at least an overnight guest at 3935 Miles Street and, therefore, may have had the authority to refuse consent to search. However, at trial, Defendant relied upon the arguments that his name was not on the lease and that he had no connection to 3935 Miles Street in an attempt to shift the blame away from him.

Although Defendant may have had the authority to refuse consent to search, the evidence presented at the motion to suppress hearing demonstrates that he did not exercise that authority. Det. Wilhite testified that Defendant was inside the residence when the police arrived, but did not respond when they knocked on the door. She explained that Ms. Griffin then gave the officers her keys to the residence and consented to a search. Ofc. Bassett testified that Defendant never informed the officers that he [^refused to consent to search; instead, he told Ms. Griffin, “Baby, we- don’t want them searching.” This comment to Ms. Griffin is not an express refusal of consent as contemplated by Randolph, supra. Defendant was not “standing in the door saying ‘stay out’ when officers propose[d] to make a consent search.” Fernandez, supra. As a person who was “nearby but not invited to take part in the threshold colloquy,” Defendant “loses out.” Randolph, supra.

Because there was no “express refusal of consent” by Defendant as required in Randolph, supra, the trial court did not err in denying his motion to suppress. Accordingly, this assignment of error is without merit.

Excessive Sentence

In his fourth assignment of error, Defendant argues that his sentence is unconstitutionally excessive. Defendant alleges that sentencing was extremely brief and that the trial court did not order a presentence investigation report. He also contends that the trial court did not refer to any of the La. C. Cr. P. art. 894.1 factors and should not have imposed the maximum sentence.

The state argues that Defendant has an extensive criminal record; and, therefore, the maximum sentence is not excessive.

In this case, Defendant made an oral motion to reconsider sentence at the sentencing hearing and only raised a bare claim of excessiveness and not any specific reason why the sentence was excessive. The Louisiana Supreme Court explained in State v. Mims, 619 So.2d 1059 (La.1993), as follows:

Under Article 881.1 the defendant must file a motion to reconsider and set forth the “specific grounds” upon which the motion is based in order to raise an objection to the sentence on | ^appeal. However, in order to preserve a claim of constitutional excessiveness, the defendant need not allege any more specific ground than that the sentence is excessive. If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness. Article 881.1 only precludes the defendant from presenting arguments to the court of appeal which were not presented to the trial court at a point in the proceedings when the trial court was in a position to correct the deficiency.

A sentence is excessive and violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. Adger, 35,111 (La.App.2d Cir.9/26/01), 797 So.2d 146, citing State v. Soco, 441 So.2d 719 (La.1983); and State v. Walker, 29,877 (La.App.2d Cir.10/29/97), 702 So.2d 18.

La. R.S. 14:62.4(B) states that whoever commits the crime of unauthorized entry of a place of business shall be fined not more than $1,000 or imprisoned with or without hard labor for not more than six years, |17or both. The trial court sentenced Defendant to six years at hard labor and fined him $1,000, in default of which he would serve 60 days in jail, and ordered that the sentence run concurrently with any other sentence Defendant was serving. The trial court stated that the maximum sentence is “extremely lenient” for Defendant’s actions.

Defendant destroyed an exterior wall of H & S Grocery in order to enter the building. This is among the most extreme and destructive methods of unauthorized entry of a business. The evidence presented at trial also suggests that Defendant may have taken merchandise from the store valued at thousands of dollars, including alcohol, cigarettes and lighters. Further, Defendant’s criminal record, which began in 1973 and included numerous prior offenses for burglary, suggests that the sentence is appropriate.

Based on the law and the facts of the case, the sentence is not out of proportion to the severity of the crime and does not shock the sense of justice. Therefore, we conclude that the trial court did not abuse its wide discretion in sentencing Defendant, and the sentence is not constitutionally excessive. Therefore, this assignment of error lacks merit.

ERROR PATENT

At trial, Defendant was represented by the Indigent Defender’s Office; and, on appeal, he was represented by the Louisiana Appellate Project. The trial court fined Defendant $1,000 or, in default thereof, sentenced him to 60 days in jail.

An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine that is part of his sentence. State v. Fortune, 46,522 (La.App.2d Cir.9/21/11), 72 So.3d 1000, citing Bearden v. |18 Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); and State v. Nelson, 44,762 (La.App.2d Cir.10/28/09), 25 So.3d 905. A defendant’s claim of indigence may be discerned from the record. Id., citing State v. Williams, 484 So.2d 662 (La.1986). Where a defendant is represented by the Indigent Defender’s Office or the Louisiana Appellate Project, the court may conclude that the defendant is indigent. Id.

Accordingly, Defendant’s sentence is amended to delete the 60 days of default imprisonment time.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Michael L. Percy, is affirmed, and his sentence is affirmed as amended.

CONVICTION AFFIRMED. SENTENCE AFFIRMED AS AMENDED.

      . Ms. Griffin was not subpoenaed for this hearing.

      . Ofc. Bassett testified only at the motion to suppress hearing. He did not testify at trial.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Karen R. FINLEY, Plaintiff-Appellant v. RACETRAC PETROLEUM, INC., et al., Defendants-Appellees.
    No. 48,923-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Rice & Kendig, Shreveport, By: J. Marshall Rice, for Appellant.
    Casten & Pearce, Shreveport, By: Marshall R. Pearce, for Appellees, State Farm Fire & Casualty Co. & New United Petroleum, Inc.
    Before WILLIAMS, STEWART, and LOLLEY, JJ.
   LOLLEY, J.

|,In this slip and fall case, plaintiff, Karen Finley, appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, granting summary judgment in favor of defendants, New United Petroleum, Inc. and State Farm Fire & Casualty Company (collectively, “Racetrac”). For the reasons stated herein, we affirm the trial court’s judgment.

Facts

This appeal stems from an incident that occurred on January 3, 2009, at the Race-trac gas station and convenience store located at 1025 E. Bert Kouns Industrial Loop in Shreveport, Louisiana. This particular store was leased and operated by New United Petroleum, Inc. and was managed by Tareyton Banks. State Farm Fire & Casualty Company was the liability insurance carrier of New United Petroleum, Inc.

At approximately 9:00 a.m. on the day of the incident, Finley, her brother, David Shook, and their friend, Linda Theodos, stopped for gas in preparation for a trip to south Louisiana. As Shook was filling up, Finley and Theodos entered the store to purchase a few items. While walking back to the vehicle, Finley slipped and fell on an oil slick located in a handicap parking space in front of the store. Immediately after she fell, Finley returned to the store and informed Racetrac employees of the condition in the parking lot. Cat litter was spread over the spill and promptly swept up. As a result of the fall, Finley suffered multiple injuries.

Finley filed suit against Racetrac pursuant to La. R.S. 9:2800.6, Louisiana’s premises liability statute, alleging that the oil slick was in an area where Racetrac knew or should have known of the dangerous condition and that its failure to take reasonable steps to clean up the oil slick caused |?her injuries. In response to these allegations, Racetrac filed a motion for summary judgment arguing that Finley could not meet her burden of proof under La. R.S. 9:2800.6. Specifically, Race-trac alleged that Finley could not prove Racetrac had actual or constructive notice of the condition.

Deposition testimony submitted in support of and in opposition to summary judgment reveals the following facts. Dena Davis and Ermond Ashley were the only Racetrac employees working at the time of Finley’s accident. However, neither employee witnessed the fall. According to Davis, she inspected the parking lot upon arrival to work, but did not notice any spills or slippery substances, including the oil slick at issue in this case. When asked to describe her vantage point in relation to the location of Finley’s fall, Davis stated that although she could see the handicap parking space from the cash register, she was unable to see if oil was present. Davis did not file an incident report; instead, she called Banks to inform him of the accident. In addition, Davis noted that a vehicle had been parked in the parking space prior to Finley’s fall.

Banks and another Racetrac employee, Jeanette Williams, were also deposed and questioned about the facts and circumstances surrounding the incident. In particular, the questions posed to Banks and Williams centered around Racetrac’s clean up policies and whether Racetrac knew or should have known of the oil slick prior to the accident. Banks maintained that Racetrac is not contractually responsible for the upkeep and maintenance of the parking lot. Despite this assertion, Banks noted that Racetrac has a |3policy that when a customer reports a spill, or when an employee notices a spill, they are to place cat litter on the spill and sweep it up. Banks also testified that Ermond Ashley’s responsibilities include power washing in front of the store, picking up trash and debris, changing light bulbs, and other minor repair work. Williams corroborated Banks’s testimony, and also testified that when brought to the employee’s attention, it is Racetrac’s policy to spread cat litter on spills or place warning cones to alert customers. However, Williams stated that if the inside of the store is busy, or if an employee is working alone, it is possible that a spill would be missed.

Finley was also questioned about the circumstances surrounding her fall. In her deposition, Finley stated that it did not look like the parking lot had been cleaned on the morning she fell. Finley also confirmed that she quickly returned to the store to notify Racetrac employees of her fall and the oil slick in the parking lot. Additionally, Finley noted that she did not notice the oil slick prior to entering the store because a car had been parked in the parking space as she passed nearby.

The motion for summary judgment was originally set for June 11, 2012. However, Finley alleged that throughout the course of discovery Racetrac withheld information related to witnesses, employees, and business records. Each time Finley conducted a deposition, she learned of new information that was not contained in written discovery produced by defendants. As a result, and because Finley was having difficulty locating two witnesses, the trial court granted her a 90 day extension to complete discovery and reset the hearing on the motion for summary judgment to a later date.

|4During this interim, Finley again claimed that she learned of new information that required her to take additional depositions. Nevertheless, after determining that Finley was unable to produce any factual evidence that would establish Race-trac had actual or constructive knowledge of the oil slick prior to Finley’s fall and that she could not establish the amount of time the oil slick had been in the parking lot, the trial court granted summary judgment in favor of Racetrac. It is from this judgment that Finley appeals.

SummaRY Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181 (La.02/29/00), 755 So.2d 226; Young v. Marsh, 46,896 (La.App.2d Cir.01/25/12), 86 So.3d 42. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the movant. 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 mov-ant’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 Isthe adverse party’s claim, action, or defense. La. C.C.P. art. 966(C). 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 and the movant is entitled to summary judgment. Id.

Discussion

On appeal, Finley raises two assignments of error. First, Finley maintains that the trial court erred in granting summary judgment because genuine issues of material facts exist in the record. Second, Finley argues that the trial court improperly granted summary judgment prior to the completion of discovery.

The imposition of tort liability on a merchant for a patron’s injuries resulting from an accident on the merchant’s premises is governed by La. R.S. 9:2800.6. May v. Brookshire Grocery Co., 48,177 (La.App.2d Cir.06/26/13), 117 So.3d 611. In relevant part, that statute provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or [(¡constructive notice of the condition which caused the damage, prior to the occurrence.
(3)The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
G. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care[.]
* * *

Here, the pivotal issue concerns the second element in Finley’s claim against Racetrac. That is, did Finley prove that Racetrac either created the condition or had actual or constructive notice of the condition which caused the damage, prior to the occurrence? Because the record is devoid of any evidence of actual notice, summary judgment hinges on whether Finley, as the non-moving party, presented factual support sufficient to establish that Racetrac had constructive notice of the oil slick prior to her fall. After a careful review of the record, we find that she failed to do so.

It is well-settled that when a claimant is relying upon constructive notice under La. R.S. 9:2800.6(B)(2), the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time and that such time was sufficient to place the merchant defendant on notice of its existence. White v. Wal-Mart Stores, Inc., 97-0393 (La.09/09/97), 699 So.2d 1081. Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by the statute governing negligence claims against merchants. |7 Hubbard v. APS Invs., L.L.C., 43,673 (La. App.2d Cir.11/19/08), 997 So.2d 882.

The Louisiana Supreme Court in White further explained the requirement for proving constructive notice as follows:

Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time ...” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period.. A claimant who simply shows that the condition existed without an additional showing, that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some period prior to the fall. This is not an impossible burden.

White, supra at 1084-85.

A plaintiff is not required to prove by eyewitness testimony that the hazardous condition existed for a certain number of minutes prior to the fall. Instead, the factfinder can reasonably infer from circumstantial evidence that it is more probable than not that the condition existed for such time prior to the accident that.it should have been discovered and corrected. Bassett v. Toys “R” Us Delaware, Inc., 36,434 (La.App.2d Cir.12/30/02), 836 So.2d 465, writ denied, 2003-0560 (La.04/25/03), 842 So.2d 408.

Here, in an attempt to establish that the oil slick existed prior to her fall, Finley relies on a cell phone photograph taken immediately after her accident. According to Finley, the photograph shows that the oil slick had begun to partially soak into the concrete, which she believes suggests that it has been there for a sufficient amount of time to place Racetrac on notice. Further, Finley argues that this photograph, when considered with the |sabsence of a clean up policy and the sparsity of employees working at Racetrac on the day of her accident creates an inference that it is more probable than not the condition existed for such time that it should have been discovered and corrected.

Finley compares the facts in this case to those of Broussard v. Wal-Mart Stores, Inc., 98-813 (La.App.3d Cir.01/20/99), 741 So.2d 65, writ denied, 99-0486 (La.04/01/99), 742 So.2d 562. There, a plaintiff was able to use photographs and other circumstantial evidence to successfully prove that Wal-Mart had constructive notice of spilled detergent. The pictures submitted in Broussard, show that the spill was elongated, not uniform, and covered approximately three to four square feet, suggesting that it had spread over a period of time. The origin of the spill was identified as a partially empty bottle of Lemon Joy on the shelf above the spill. Additionally, the plaintiff was able to show that the spill occurred on the third busiest day of the week in one of the busiest departments of the store with no employees on duty in this particular department at the time the accident occurred. Although there was no eyewitness testimony establishing that the detergent had been present before the fall, the court held that the totality of the circumstances made it more likely than not that the spill existed for some time prior to the plaintiffs incident. Id. at 69-70.

We disagree with this comparison, and find that Broussard is not persuasive in determining the outcome of this case. Here, unlike the photograph in Broussard, where it was clear that the detergent had been there for some length of time prior to the plaintiffs fall, the photograph submitted by Finley establishes no temporal element tending to prove that |3the oil slick had been there for a specific amount of time. Rather, we find that it shows that the oil slick merely existed. As noted above, jurisprudence is abundantly clear that a claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. White, supra. Also, insofar as Finley' reliance upon the sparsity of employees or the lack of cleaning or inspection policies, these arguments also provide no factual support for the temporal element necessary to find constructive notice. They instead, create mere speculation or suggestion that Race-trac knew or should have known about the dangerous condition, which is not enough to meet the stringent burden imposed upon La. R.S. 9:2800.6. Hubbard, supra.

Applying the principles set forth in White, we find that the evidence submitted by Finley falls short of the proof required to establish constructive notice. The record amply supports the trial court’s conclusion that Finley failed to prove the temporal element necessary to establish constructive notice, an essential element of Finley’s claim under La. R.S. 9:2800.6. So considering, we find no error in the trial court’s conclusion that Race-trac was entitled to summary judgment.

As a final matter, we reject Finley’s contention that summary judgment was premature because she did not have the opportunity to complete discovery. Under La. C.C.P. art. 967, a trial judge has the discretion to issue a summary judgment after the filing of affidavits, or the judge may allow further affidavits or discovery to take place. Simoneaux v. E.I. du Pont de Nemours & Co., 488 So.2d 908 (La.1986). There is no |inabsolute right to delay an action on a motion for summary judgment until discovery is completed. Id. The only requirement is that the parties be given a fair opportunity to present their claim. Eason v. Finch, 32,-157 (La.App.2d Cir.08/18/99), 738 So.2d 1205, unit denied, 1999-2767 (La.12/10/99), 751 So.2d 861. Unless plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact. Mouton v. Sears Roebuck, 99-669 (La.App.3d Cir.11/03/99), 748 So.2d 61, writ denied, 1999-3386 (La.02/04/00), 754 So.2d 232.

In the instant case, litigation commenced on January 4, 2010, -with the filing of Finley’s petition for damages. Racetrac moved for summary judgment approximately two years later on January 17, 2012. Finley was even granted a 90 day extension to take the depositions of Dena Davis and Jeanette Williams. Following the 90 day extension, the trial court heard and granted Racetrac’s motion for summary judgment on May 13, 2013. Although gaining information seemed rather difficult, it is clear that Finley had ample time to complete discovery. Accordingly, Finley’s final assignment of error is equally without merit.

Conclusion

Based on the foregoing, we conclude that the trial court properly granted summary judgment in favor of New United Petroleum, Inc. and State Farm Fire & Casualty Company. All costs of this appeal are assigned to Karen Finley.

AFFIRMED.

      . Racetrac Petroleum, Inc. was originally named a defendant in this matter but was dismissed by the plaintiff on March 18, 2010.


author: PAUL A. BONIN, Judge.

text:
    GOODRICH PETROLEUM COMPANY, LLC v. MRC ENERGY COMPANY.
    No. 2013-CA-1435.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2014.
    Rehearing Denied May 8, 2014.

      Samuel E. Masur, J. Michael Fussell, Jr., Paul B. Simon, Gordon Arata McCol-lam, Duplantis & Eagan, LLC, Lafayette, LA, for Plaintiff/Appellee.
    John Y. Pearce, Edward L. Fenasei, Montgomery Barnett, L.L.P., New Orleans, LA, D. Patrick Long (Pro Hac Vice), Patton Boggs, L.L.P., Dallas, TX, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge PAÚL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

[jTwo petroleum producing companies, Matador Resources Company and Goodrich Petroleum Company, LLC, entered multi-faceted, agreements by which they could elect to jointly engage in oil exploration projects. The prominent feature, for our purposes, of those agreements was the parties’ broad and unconditional agreement to submit any and all disagreements they might have with each other to binding arbitration. The parties agreeably submitted their disagreement over how to calculate contributions under the Louisiana Risk Fee Statute on three wells. By further agreement, they agreed to submit their disputed contentions to three attorneys who are well-respected in the field of mineral law, subject to returning to arbitration in the event of any follow-up accounting disputes, which the parties did not anticipate.

The arbitrators decided the interpretation or application of the Risk Fee Statute favorably to Goodrich. Subsequently, as best as we can determine from this very limited record, Goodrich began to claim credits in the accounting process for certain of its previous contributions, to which Matador objected. Matador |2contended that Goodrich was not entitled to the claimed credits because of an agreement between them not based upon or related to the Risk Fee Statute matter. Thus, Matador submitted the dispute to the same arbitrators who, over the initial objections of Goodrich, agreed that they would consider the issues raised by Matador. This time the arbitrators ruled favorably for Matador.

Litigation was commenced in the district court concerning the arbitrators’ awards. Both parties were agreeable to the confirmation of the decision on the application of the Risk Fee Statute, and that matter is not before us. While Matador sought the confirmation of the arbitrators’ so-called second award, however, Goodrich sought to vacate and annul it on the statutory ground that the arbitrators exceeded their authority. The district judge vacated the second award in favor of Matador; Matador now appeals.

After our de novo review of the matter, we conclude that the district judge was legally incorrect in concluding that the arbitrators exceeded their authority to arbitrate the dispute that arose during the accounting process following the initial Risk Fee Statute award. Accordingly, we reverse the district court’s judgment, and confirm the arbitrators’ award in favor of Matador. We explain our decision in considerably greater detail below.

I

At the outset of our detailed explanation, we emphasize that we begin with the important premise that arbitration awards are presumed to be valid. See Dicorte |3 v. Landrieu, 08-0249, p. 3 (La.App. 4 Cir. 9/10/08), 993 So.2d 799, 801. A district court may not vacate an arbitrators’ award unless specifically authorized by statute. See La. R.S. 9:4210. An arbitration award, therefore, must be confirmed by a district court unless statutory grounds for vacating the award exist. See Johnson v. 1425 Dauphine, L.L.C., 10-0793, p. 7 (La.App. 4 Cir. 12/1/10), 52 So.3d 962, 967.

We also importantly note that throughout our discussion, and especially when we are describing factual and legal issues submitted to and decided by the arbitrators, we do not imply or suggest that we have considered the merits of the parties’ disputes beyond the discrete legal issue presented to us in this appeal, which is whether the arbitrators exceeded their powers. By consensually substituting arbitration for litigation, the parties are presumed to accept the risk of procedural and substantive mistakes of either fact or law by the arbitrators, which mistakes are not reviewable by the courts. Id.

II

In this Part we describe the parties’ relationship and their agreements, the nature of their disputes, and the procedural developments before the arbitrators and the district court.

A

Matador decided in 2008 to induce another producer to help it jointly develop several Caddo Parish mineral leases in its Central Pine Island Prospect. |4Goodrich accepted Matador’s offer later that year. The parties then entered into two, interrelated contracts: a Participation Agreement and a Joint Operating Agreement. Neither the Joint Operating Agreement nor the four exhibits attached to the Participation Agreement are in the record before us. We understand, however, that the two contracts are substantially similar, and we note that the Participation Agreement provides that its provisions govern and control in the event that there is a conflict between the two documents.

Significantly, the Participation Agreement, which is dated June 8, 2008, provides that Matador was obligated to commence operations on an initial test well on or before June 1, 2008. On the other hand, Goodrich, upon its execution of the Participation Agreement, agreed to make several payments to Matador, one of which comprised seventy-five percent of the estimated costs to drill the initial test well. Thereafter, the parties agreed to split equally future costs attributable to the initial test well. After completion of the initial test well, Matador agreed to assign fifty percent of its interest in the well to Goodrich.

With respect to subsequent wells, the Participation Agreement allows either party to propose subsequent wells in a section and afforded Goodrich the option to participate in these wells on a fifty percent working interest on a section by section basis. Should it elect to participate in a well, Goodrich agreed to pay Matador a Lease Bonus of $1000.00 per net mineral acre, proportionately reduced to fifty percent of Matador’s net mineral acreage leased per section. With each well I,^proposal covering the first subsequent well in a section, Matador was obligated to inform Goodrich as to those leases in the lease schedule, which is not made a part of the record before us, reflecting the net mineral acreage requiring a Lease Bonus payment. Goodrich was obligated to pay the Lease Bonus on a section by section basis within five days prior to the start date of drilling the first subsequent well in a section. After completion of the first subsequent well in each section, Matador would assign fifty percent of its interest in its mineral leases in that section to Goodrich. The assignment was to be made according to the same terms applicable to the initial test well. The Participation Agreement further notes that Goodrich could earn no other acreage or mineral interest in these leases except by paying the lease bonus and drilling of the first subsequent well in a section.

The Participation Agreement further provided for the establishment of an Area of Mutual Interest within the Central Pine Island Prospect upon completion of the initial test well. Within the Area of Mutual Interest, the parties granted each other the right, but not the obligation, to acquire a fifty percent interest in all interests renewed or that may thereafter be acquired by the parties. The Area of Mutual Interest was to exist for a period of two years following the completion of the initial test well, although the Participation Agreement afforded the parties the option of terminating the Area of Mutual Interest upon their mutual agreement.

Additionally, the Participation Agreement provided, as we emphasized above, that any and all controversies or claims arising out of, or relating to, the Participation Agreement would be submitted to final and binding arbitration [ ^pursuant to the Commercial Rules of the American Arbitration Association. The parties also agreed that any party requesting arbitration must give formal written notice of the party’s demand for arbitration.

Subsequent to the execution of the Participation Agreement, an initial test well and three subsequent wells were completed in three different sections of the Area of Mutual Interest. Later, an unnamed producer, who owned a mineral lease in the vicinity of the disputed wells, asked the Louisiana Commissioner of Conservation to create a drilling unit encompassing the wells. This third party producer did not, however, agree to pay its share of drilling, equipping, and completing the well. Matador then sought to take advantage of La. R.S. 80:10, Louisiana’s Risk Fee Statute, which, according to the arbitrators first decision, “is designed to deal with the situation created when one party having property in a mineral unit declines to pay its share of the costs of drilling, equipping, and completing a well on the unit.”

Accordingly, and pursuant to the terms of the Risk Fee Statute, Matador paid for the share of the well expenses allocated to the third party’s tract, and charged those payments to the joint account set up pursuant to the terms of the Joint Operating Agreement. Because it was concerned that it would be unable to fully recoup those costs attributable to the third party’s tract, or the fee to which it was entitled under the Risk Fee Statute, out of the share of production attributable to the third party, Matador asserted that Goodrich should be required to bear one-half |7of the costs attributable to the third party’s tract. Goodrich disagreed, and Matador made a formal written request for arbitration.

B

The matter was submitted to a panel of arbitrators comprised of M. Hampton Carver, Charles R. Minyard, and John M. Wilson; they are all well-respected attorneys who have practiced in the highly specialized field of mineral law. The resulting decision noted that it was initially decided, by agreement of the parties and the arbitrators, that the matter would be bifurcated.

The arbitrators would first decide the issue of whether Goodrich had liability for costs pursuant to the Risk Fee Statute. The parties expressed the view to the arbitrators that they expected to easily resolve any accounting issues based upon the arbitrators decision, but agreed to reserve accounting and ancillary issues for future consideration by the panel if necessary.

The parties also agreed that because there were no real factual disputes, the arbitration hearing on liability could proceed in the same manner as cross-motions for summary judgment. The parties filed briefs, submitted exhibits and presented oral arguments before the arbitrators.

The arbitrators issued their initial decision on June 27, 2012. After reviewing the pertinent facts and provisions of the Risk Fee Statute, the majority of the panel concluded that Matador inappropriately charged the expenses of the third party’s tract to the Matador/Goodrich joint operating account with the expectation that Goodrich would bear one-half of those expenses because Goodrich, according | «to the facts in the record and provisions of the Risk Fee Statute, never acquired an interest in the production attributable to the third party’s tract. The majority decision notes that the Participation Agreement provides that “the Parties will have the right, but not the obligation, to acquire a 50% interests in all interests ... that may hereafter be acquired” in the Area of Mutual Interest. The decision further notes that: 1) Goodrich was aware at the time that Matador had acquired the third party’s ownership of production; 2) Matador discussed offering a fifty percent interest in that ownership to Goodrich, though such an offer was never made; and 3) Goodrich never acquired a fifty percent interest in the third party’s interest. Therefore, the majority of the panel concluded that Goodrich was not obligated to bear fifty percent of the expenses for the drilling, completing, and equipping of the wells in question that are attributable to the third party’s tract because to hold otherwise would vitiate Goodrich’s acquisition of interests option within the Area of Mutual Interest as provided for in the Participation Agreement.

On August 9, 2012, counsel for Matador wrote to the panel members informing them that it and Goodrich were able to successfully work out most of the accounting issues between the parties. Counsel noted, however, that the parties were unable to agree upon the accounting for one of the wells. Specifically, counsel wrote that the E & L Development Co. # 1 well was unique from the other wells at issue because it was drilled as a lease well, rather than a unit well. Further, Matador claimed that Goodrich received an assignment for its fifty percent interest in this well before an application was made by the third party to establish a | ¡¡unit. Matador asserted to the panel that Goodrich was improperly attempting to reduce their original fifty percent cost obligation in the E & L Development Co. # 1 well through application of the Risk Fee Statute. Accordingly, Matador asked the panel to resolve the remaining accounting issue. Goodrich, by way of correspondence, objected to the panel reconvening and addressing Matador’s concerns.

Subsequently, the panel accepted briefs from the parties regarding Matador’s request and held an additional hearing on October 30, 2012. The panel rendered a second decision on December 19, 2012. Specifically, the decision addressed four issues: 1) whether the panel is foreclosed from considering Matador’s concerns by the conclusive effect of the initial decision of June 27; 2) whether Goodrich is entitled to recoup by offset payments made to Matador for well, completion, and lease acquisition costs relating to the E & L well given that the non-participating third parties whose acreage was encompassed within the unit refused to participate in the well; 3) whether Goodrich is obligated to pay for additional leased acreage in Section 15; and 4) who should pay the attorney’s fees and costs for the proceeding relating to the new issues.

We momentarily digress to express the firm view that, on account of the parties’ broad contractual provisions respecting reference of any and all disputes to arbitration, all of the issues to be addressed were arbitral issues. First, we reiterate the well-settled principle that all doubts as to whether an issue is referable to arbitration are to be resolved in favor of arbitration. See Aguillard v. Auction |10 Management Corp., 04-2804, 04-2857, p. 8 (La.6/29/05), 908 So.2d 1, 8; and Bolden v. FedEx Ground Package System, Inc., 10-940, p. 11 (La.App. 4 Cir. 2/16/11), 60 So.3d 679, 686. Second, we also observe that the Participation Agreement’s arbitration clause is broad and all-encompassing: “Both Parties agree that any and all controversies or claims arising out of or relating to this Agreement ... will be submitted to final and binding 30-day arbitration.” This provision does not envision a limited use or one-time use of arbitration. See, e.g., Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672, pp. 5-6 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, 556-557. Rather, it clearly provides for the repeated use of arbitration proceedings to resolve “any and all” disputes that might arise between the parties. See Lorusso v. Landrieu Enterprises, Inc., 02-2346, p. 5 (La.App. 4 Cir. 5/21/03), 848 So.2d 656, 659 (noting that a determination that a contract is valid will necessarily suffice to require enforcement of the arbitration clause in eases where the parties have contracted to submit all disputes to arbitration). Finally, the arbitrability of an issue is a legal matter to be decided by the courts of this state. See Bolden, 10-0940, p. 10, 60 So.3d at 685; Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 03-1662, p. 12 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 389 (citations omitted) (“a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court”).

The panel first concluded that it was empowered to arbitrate the issues raised by Matador. With respect to the second issue, two of the three panel members In agreed that Goodrich was not entitled to recoup from Matador payments previously made in connection with its receipt of an assignment of a fifty percent interest in the E & L well from Matador prior to the well’s unitization. The third issue, which the panel noted was not fully developed by the parties at the October 30, 2012, hearing, concerned Goodrich’s liability for Lease Bonus payments under the Participation Agreement for several parcels of additional acreage in the section where the E & L well is situated. The panel ordered Goodrich to pay Matador for these assignments after concluding that Goodrich had already elected to participate in two of the parcels. Lastly, the panel ordered Goodrich to pay all expenses and fees incurred in connection with the new proceeding.

C

On March 4, 2013, Goodrich filed a Petition to Confirm Arbitration Award, and to Vacate or Declare Subsequent Arbitration Award a Nullity in the Civil District Court of Orleans Parish. Specifically, Goodrich sought a ruling that both confirmed the June 27 award and vacated the December 19 award and filed a motion on these grounds shortly thereafter. In response, Matador filed an Exception of No Cause of Action, Affirmative Defenses, and Answer to Goodrich’s petition on April 22, 2013. Significantly, Matador did not contest Goodrich’s attempt to confirm the June 27 award, but sought, instead, to confirm the December 19 award.

ImThe parties argued the merits of their competing motions before the district judge on June 14, 2013. At the close of the hearing, the district judge ruled for Goodrich and confirmed the June 27 award and vacated the December 19 award. The district judge concluded that the arbitrators exceeded their authority because the December 19 award impermissibly modified the June 27 award. Following rendition of the written judgment, Matador filed a petition for suspensive appeal.

Ill

At this point we consider the standards by which a district court decides whether to confirm or vacate an arbitration award and by which we review the district court’s ruling.

A district court’s review of an arbitration award is extraordinarily narrow. See FIA Card Services, NA. v. Smith, 44,923, p. 7 (La.App. 2 Cir. 12/22/09), 27 So.3d 1100, 1106. A reviewing court may neither substitute its own judgment for that of the arbitrator nor review the merits of an arbitration award. See Southern Tire Services, Inc. v. Virtual Point Development, Inc., 00-2301, p. 4 (La.App. 4 Cir. 9/26/01), 798 So.2d 303, 306.

An appellate court makes a de novo review of a district court judgment confirming or vacating an arbitration award. See FIA Card Services, 44,923, p. 7, 27 So.3d at 1106; Detraz v. Banc One Securities Corp., 13-191, p. 5 (La.App. 3 Cir. 10/9/13), 123 So.3d 875, 878-879; Crescent Property Partners, LLC v. American Mfrs. Mut. Ins. Co., 13-661, 13-662, 13-663, p. 2 (La.App. 4 Cir. 2/28/14), 134 So.3d 85, 88-89; ConstructionSouth, Inc. v. Jen kins, |13 12-63, p. 7 (La.App. 5 Cir. 6/28/12), 97 So.3d 515, 520; and Brown v. Witco Corp., 340 F.3d 209, 216 (5th Cir.2003). A district court’s ruling on the confirming or vacating an arbitration award, therefore, is a legal issue. Review of questions of law is simply to determine whether the trial court was legally correct or incorrect. See Bolden, 10-0940, p. 10, 60 So.3d at 685. Thus, we give no deference to the district court’s decision on a matter of law.

IV

The burden of proof is on the party attacking the arbitrators’ award. Carter v. Holdman, 11-1473, p. 4 (La.App. 4 Cir. 5/23/12), 95 So.3d 560, 563. Thus we turn now to address Goodrich’s arguments why the arbitrators’ second award was correctly vacated by the district judge because “the arbitrators exceeded their powers.” La. R.S. 9:4210 D.

A

Goodrich argues that the second award contravened the codal proscription that “[t]he arbitrators having once given their award, can not retract it nor change 114anything in it.” La. Civil Code art. 3131. We view this argument from two different perspectives in this case. First, reading Article 3131 in pari materiae with Article 3132(3), we consider that under these facts the first award was not a “final award”: “The submission and power given to the arbitrators are put at an end by one of the following causes: ... [b]y the final award rendered by the arbitrators.” La. Civil Code art. 3132(8). This is because in this case the parties and the arbitrators by agreement allowed the arbitration proceeding to remain open for further submissions in the event a dispute or difficulty arose from the arbitrators’ decision on the Risk Fee Statute. Neither the parties nor the arbitrators considered that the arbitrators’ work was done merely because they had decided how to apply the Risk Fee Statute to the parties’ dispute. The other perspective is that Goodrich cannot demonstrate that the two awards are mutually exclusive or necessarily contradictory such that the arbitrators’ decision on the Risk Fee Statute was in any way “retracted” or “changed.” Indeed Matador has no objection whatsoever to accepting the Risk Fee Statute decision and abiding by the arbitrators’ determination, and Goodrich concedes that the two outcomes could have been reached without internal contradiction if the disputes would have been presented in a single arbitration proceeding.

B

Goodrich also suggests that the first arbitration hearing was intended to conclusively dispose of all liability-related issues then existing between the parties. 11fiIt, therefore, implies that Matador should have brought all of its possible claims for arbitration at the same time or in the same proceeding as is required in civil litigation. See La. R.S. 13:4231 (res judicata effects “for all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation”); La. C.C.P. art. 425 A (“A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.”).

But we reject this argument for two reasons.

First, a primary purpose of substituting arbitration for litigation is to eschew or avoid the highly technical rules of civil procedure. See Haase Construction Co., Inc. v. Strohmeyer, 98-2967, p. 5 (La.App. 4 Cir. 6/23/99), 738 So.2d 152, 155 (noting, “[w]e must bear in mind that a primary purpose of arbitration is a rejection of civil procedure.”). “One of the basic reasons for the existence of arbitration agreements is to allow the parties to achieve speedy settlement of their differences out of court.” Regions Bank v. Weber, 10-1169, p. 7 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284, 1289, quoting Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280, 283 (La.1974). Arbitration is designed to be fast and inexpensive before a tribunal of the parties’ choice. See Johnson, 10-0793, p. 7, 52 So.3d at 967. Thus, in the absence of statutory or agreed to procedures, the arbitrators have broad discretion in conducting the proceedings. See Hennecke v. Canepa, 96-0772, p. 3 (La.App. 4 Cir. 5/21/97), 700 So.2d 521, 522. And as a consequence arbitration proceedings are not held to the same strict rules as are the courts. See | mHaase, 98-2967, p. 3, 738 So.2d at 154. It would be counter-productive to apply the stringent civil procedure rules of issue preclusion and res judicata to arbitration proceedings, especially when, as here, the parties are engaged in a course of continuous dealings.

The second reason why we reject this argument is that it defies the parties’ own agreements. The parties did not restrict themselves to seeking arbitration only once; they provided that any and all disputes were to be submitted to arbitration. And, of course, no submission could be made until at least one of the parties became dissatisfied with the other. Here the arbitrators in the exercise of their broad discretion were not required to thwart relief to a party through the application of the principles of issue preclusion and res judicata. The arbitrators were apparently well-satisfied that the dispute about Goodrich’s post-award accounting was sufficiently intertwined with the earlier, not-yet-terminated arbitration proceeding that further proceedings were in order. Goodrich, in fact, points to no provision of the parties’ agreements which prohibit the submission of those disputes to the arbitrators.

C

In this section we explain our conclusion that the district judge erroneously vacated the second award after concluding that its issuance impermissibly modified the first award. Observing that the majority panel members on the second award were engaged in “semantic gamesmanship,” the district judge concluded that the second award modified the terms of the first award because it [ 17revisited “the question of the costs associated with one of the three disputed wells considered in the original arbitration award.” This conclusion is legally erroneous and unsupported by our reading of the two awards and the record. Our reading of the awards indicates that they are intertwined but not so interconnected that the issuance of the second award changes or modifies the first. See FIA Card Services, 44,923, p. 7, 27 So.3d at 1106; and Southern Tire Services, 00-2301, p. 4, 798 So.2d at 306.

While we are constrained from reviewing the arbitration awards for substantive correctness, our reading of the first award indicates that it was solely concerned with Goodrich’s liability for well completion costs pursuant to the Risk Fee Statute. Goodrich lacked liability for the third party’s share of costs because the panel concluded that it had acquired no interests in the third party’s share of production. The second award, on the other hand, touches on Goodrich’s liability for Lease Bonus payments and whether Goodrich was entitled to recoup from Matador payments previously made in connection with its receipt of an assignment of a fifty percent interest in the E & L well from Matador prior to the well’s unitization. According to the panel, Goodrich’s liability for these payments flows from its acquisition of lease interests from Matador. Clearly, the results provided by the two awards flow from different aspects of the parties’ mutual financial relationship. Thus, while both addressing financial relations between the parties, the awards differ substantially such that enforcement of the second award will not impinge upon the enforcement of the first award. The panel’s subsequent | ^resolution of the various lease-related issues do not implicate the Risk Fee Statute or Goodrich’s liability for well completion costs under that statute.

Contrary to Goodrich’s assertion, our reading of the two awards does not support its argument that the second award violated La. Civil Code art. 3131 because it modified the result of the first award. Indeed, we reiterate Goodrich’s concession that the two results could have been reached without internal contradiction if the disputes had been addressed in a single arbitration hearing. Nevertheless, even if we were in doubt as to the meaning of the two awards we would be constrained to reverse the district court and confirm the second award. On this point, we, again, reiterate the law’s strong presumption in favor of the validity of arbitration awards. Dicorte, 08-0249, p. 3, 993 So.2d at 801. Just as we are instructed to resolve the scope of an arbitration clause in favor of arbitrability, we must also resolve questions regarding the validity of an arbitration award in favor of confirmation. See Bolden, 10-940, pp. 10-11, 60 So.3d at 686; and D & B Framing, Inc. v. Harris Builders, L.L.C., 10-0591, p. 3, 47 So.3d 634, 636 (La.App. 4 Cir.2010). Accordingly, any doubt about the validity of an award should be resolved in favor of the award’s confirmation. See Dicorte, 08-0249, p. 3, 993 So.2d at 801. The district judge, thus, erred when it vacated the December 19 award after concluding that it altered the terms of the June 27 award.

D

One argument that Goodrich tellingly does not make is that basic standards of fundamental fairness and due process were not met in the second arbitration | ^proceeding. See Haase, 98-2967, p. 6, 738 So.2d at 156, n. 2. And we have found that all the issues submitted for arbitration were arbitral, that is none of them were reserved for decision in a forum other than arbitration proceedings. See Part II-B, ante. We have already remarked that the arbitrators were lawyers learned in the field of mineral law which governs all of the disputes submitted to their arbitration. They are the persons whom the parties selected as their private judges. Goodrich casts no aspersions on them nor accuses them of corruption, fraud, partiality, misconduct, or misbehavior. See La. R.S. 9:4210 A-C. The arbitrators endeavored to afford the parties that which these parties contracted for: speedy and inexpensive resolution of their disputes before a tribunal of their choice.

We cannot discern that these arbitrators exceeded their authority in undertaking to arbitrate the issues placed before them by Matador. Goodrich has not demonstrated that these issues were beyond the scope of arbitration as contemplated by their general operating agreements or by their specific agreement not to terminate the first arbitration hearing. See Kleinschmidt v. Lanza, 10-0540, p. 8 (La.App. 4 Cir. 9/15/10), 45 So.3d 1165, 1170 (While parties may not be compelled to submit matters to arbitration which were not previously agreed to, there is no prohibition preventing parties from submitting additional matters to the arbitrator).

CONCLUSION

We find that the arbitration proceedings have been fundamentally fair. See Haase, 98-2967, p. 3, 738 So.2d at 154. We are only authorized to vacate anj^arbitration award if it was obtained in violation of due process requirements or for one of the grounds specified in La. R.S. 9:4210. Id. at p. 4, 738 So.2d at 154. The arbitrators were chosen to settle these parties’ disputes and that is what they have done. In discharging their duties as arbitrators, including deciding the follow-up issues in Matador’s favor, they have not exceeded their authority. Goodrich did not carry its burden to show that they did exceed their authority, and the district judge incorrectly vacated and nullified the arbitrators’ contested second decision.

DECREE

The district court’s judgment is reversed insofar as it vacated and annulled the arbitrators’ decision dated December 19, 2012, and we render judgment confirming that decision. We reserve unto MRC Energy Company the right to obtain from the district court under La. R.S. 9:4214 a judgment which can be made executory against Goodrich Petroleum Company. All costs in the district court and this court are taxed to Goodrich Petroleum Company. See La. C.C.P. art. 2164.

REVERSED AND RENDERED.

      . Matador Resources Company changed its name to MRC Energy Company after entering agreements with Goodrich, although the change was unrelated to the parties’ relationship.

      . Neither Matador’s Executive Summary for the Central Pine Island Prospect, Caddo Parish, Louisiana, nor Goodrich’s Offer to Participate are in the record before us.

      . Mr. Minyard dissented with respect to the second and third issues. As we read the majority and dissenting opinions, it does not appear that Mr. Minyard dissented on the issue of whether the panel was empowered to address the issues submitted by Matador.

      . The full text of La. R.S. 9:4210:
      In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
      A. Where the award was procured by corruption, fraud, or undue means.
      B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
      C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
      D.Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
      Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

      . See part IV C, post.

      . The purposes of arbitration are thwarted when parties seek judicial review of an arbitration award. See National Tea Co. v. R.R. Richmond, 548 So.2d 930, 933 (La.1989).