author: ROLAND L. BELSOME, Judge.

text:
    Gary Joseph McNAMARA v. AUGUSTINO BROTHERS, INC., Christopher A. Perdomo, Don Sirnic, Chad Pinel, Jason Gallo, Sean Laven, Dustin Dysart, Sean Corrigan, Dave Chavez, Bryan Crowley, Danny Anderson, Jeromie Dysart & Larina Grigg.
    No. 2008-CA-1522.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiff/Appellant.
    Gerald A. Melchiode, Julie E. Vaicius, Jason J. Markey, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, for Essex Insurance Company.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| Plaintiff-Appellant Gary McNamara appeals the grant of summary judgment in favor of Defendant-Appellee Essex Insurance Company. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellant Gary McNamara (“Appellant”) contracted with Defendant-Appellee Augustino Brothers (“Augusti-no”) to repair roof damage that occurred as a result of Hurricane Katrina. Defen-danL-Appellant Christopher Perdomo (“Perdomo”) was hired by Augustino to perform the repairs. Appellant alleges that Augustino hired itinerant workers to perform the repairs, and that these workers forcibly entered his home, stole priceless artifacts, family and historic memorabilia, and valuable possessions. Appellant filed suit on September 1, 2006, alleging that Augustino and Perdomo failed to properly hire and supervise the itinerant workers, and seeking damages stemming from breach of contract, fraud, trespass, uncompensated use of premises, theft, negligent infliction of emotional distress and mental anguish, racketeering, and seeking attorney’s fees and costs.

| gEssex Insurance Company (“Essex”), Augustino’s surplus lines commercial general liability insurer, intervened as a defendant, and filed a motion for summary judgment, asserting policy exclusions for intentional acts, criminal acts, and breach of contract. The trial court granted Essex’s motion for summary judgment on August 7, 2008. This appeal followed.

STANDARD OF REVIEW

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law of law.” Samaba v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83.

DISCUSSION

On appeal, Appellant assigns two errors for review: 1.) Appellant submits that Essex’s policy exclusions did not unambiguously exclude or exclude as a matter of law liability for Augustino and Perdomo’s negligence; and 2.) Appellant submits that Augustino, the named insured, and Perdo-mo were not participants in the criminal activity, but are nevertheless vicariously liable as employer and principal.

Assignment of Error # 1

Criminal Acts Exclusion

Essex submits that the Criminal Acts Exclusion in the Combination General Endorsement, M/E-OOl (01/05), precludes coverage in this instance because it provides no coverage for “property damage ... or any injury, loss or damages | including consequential injury ... arising from criminal acts from any insured, and employee of any insured or anyone from which you may be held liable....” Essex maintains that this language is narrow, clear, and unambiguous. Moreover, Essex argues that similar exclusions in other jurisdictions have been held as not against public policy, as it would violate public policy to allow an insured to be indemnified for his own intentional criminal acts. Finally, Essex argues that it is permitted to limit its liability in any manner that does not conflict with any statutes or violate public policy.

Appellant argues that the Criminal Acts Exclusion is unenforceable because it is overly broad, ambiguous, and against public policy. Specifically, Appellant submits that the Essex policy is ambiguous because it does not define what constitutes a criminal act, and that it is public policy to allow innocent victims of criminal acts to be compensated by liability insurance. Appellant also argues that it is undisputed that neither Augustino nor Perdomo participated in the thefts, and therefore, the Criminal Acts Exclusion does not apply to Augustino or Perdomo.

In support of his argument that the language is overly broad, Appellant cites Young v. Brown, 27-018 (La.App. 2 Cir. 6/21/95), 658 So.2d 750. In Young, the plaintiff was negligently injured after defendant Brown’s gun accidentally discharged; Brown subsequently pled guilty to negligent injuring. Young, p. 6, 658 So.2d at 753. The court reversed the trial court’s grant of summary judgment, finding that the policy exclusion regarding damages from an insured’s criminal |4acts was ambiguous because it potentially encompassed non-intentional criminally negligent behavior:

The term “criminal acts,” as used in the coverage exclusion is susceptible of more than one meaning. Allstate reads the term to mean any action that results in a criminal charge. An insured, however, could justifiably conclude otherwise. Nestled between exclusions for injuries resulting from intentional acts and for intentionally inflicted injuries, a reasonable purchaser could have understood the basis of the exclusion to be intentional misconduct or intentional criminal acts, thereby allowing coverage for damages resulting from criminal negligence. An exclusion for negligent acts, albeit criminally negligent acts, is thus counter-intuitive to the wording of the exclusion and serves to circumvent the very purpose for which liability insurance is purchased. Such an exclusion is likewise contrary to Louisiana’s public policy that liability insurance should protect innocent accident victims from losses resulting from the negligent acts of an insured.

Young, p. 7, 658 So.2d at 754. In finding that the language “criminal acts” in the policy was ambiguous, the court stated:

The term “criminal acts” is equivocal and susceptible of more than one interpretation based upon its usage and the tenor of the exclusionary language. A reasonable liability insurance buyer could construe the instant exclusion to deny coverage only for intentional criminal acts, thereby allowing coverage for damages arising out of non-intentional, criminal negligence. In light of this ambiguity, we construe the policy to provide coverage for damages arising from non-intentional acts that may rise to the level of criminal negligence. Such an interpretation recognizes the insured’s reasonable expectations of coverage while voiding the exclusion only to the extent that it violates public policy.

Id., p. 8, 658 So.2d at 754-55. Thus, while the court found “criminal acts” to be susceptible of differing interpretations, the court also determined that a reasonable [¿insurance buyer could construe the language as denying coverage for only intentional criminal acts. Id.

Essex distinguishes Young by asserting that Young involved a claim for criminal negligence, whereas the instant case involves criminal conduct. Furthermore, Essex argues, the policy is not ambiguous or overly broad, as it plainly covers negligent acts, but not criminal acts. Moreover, Essex notes that the policy examined in Young was a homeowner’s policy, while the policy in the instant case is a surplus lines commercial general liability policy. Essex further submits that Allstate Insurance Company v. Peasley found that although the language “criminal acts” did not differentiate between intentional and non-intentional crimes, it was not ambiguous, as it “clearly eneompass[ed][the] criminal act of reckless endangerment.” Allstate Ins. Co. v. Peasley, 131 Wash.2d 420, 429, 932 P.2d 1244, 1249 (1997). Likewise, Essex maintains, although “criminal acts” is not defined in the policy at issue, it plainly precludes coverage for unlawful entry and theft of property.

It is well-settled in Louisiana jurisprudence that clear and unambiguous language limiting liability in insurance contracts should be enforced as written, provided that the language is not overly broad or against public policy. See, e.g., Efferson v. Kaiser Aluminum & Chemical Corp., 816 F.Supp. 1103 (E.D.La.1993). Similarly, “[t]he words of a contract must be given their generally prevailing meaning.” La. Civ.Code art. 2047. Any ambiguities are to be construed against the insurer:

Ambiguous policy provisions generally are to be construed against the insurer and in favor of coverage. [Louisiana Ins. Guar. Ass’n v. |6 Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763.] Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). That strict construction principle, however, is subject to exceptions. One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Inter state Fire, 630 So.2d at 770; Garcia, 576 So.2d at 976.

Carrier v. Reliance Ins. Co., 99-2573, p. 12 (La.4/11/00), 759 So.2d 37, 43-44.

As the court noted in Young, we find that a reasonable insurance buyer would interpret the Criminal Acts Exclusion in the Essex policy as excluding the defendant-employees’ alleged criminal acts. While we recognize that issues regarding criminal acts exclusions in other jurisdictions have been raised, under these particular facts and circumstances, we cannot say that the policy language is overly broad or ambiguous.

As the Louisiana Supreme Court noted in Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763:

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an 17absurd conclusion. Lindsey v. Poole, 579 So.2d 1145, 1147 (La.App.2d Cir.), writ denied, 588 So.2d 100 (La.1991) (citing Zurich Ins. Co. v. Bouler, 198 So.2d 129 (La.App. 1st Cir.1967)); Harvey v. Mr. Lynn’s, Inc., 416 So.2d 960, 962 (La.App.2d Cir.1982) (collecting cases); Jefferson v. Monumental
General Ins. Co., 577 So.2d 1184, 1187 (La.App. 2d Cir.1991). Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Oceanonics, Inc. v. Petroleum Distributing Co., 292 So.2d 190, 192 (La.1974); Fruge v. First Continental Life and Accident Ins. Co., 430 So.2d 1072, 1077 (La.App. 4th Cir.), writ denied, 438 So.2d 573 (La.1983) (collecting cases); Hartford Acc. & Indem. Co. v. Joe Dean Contractors, Inc., 584 So.2d 1226,1229 (La.App. 2d Cir.1991) (collecting cases).

Because it is against public policy in Louisiana to permit an insured to be indemnified for the insured’s own intentional criminal acts, we find that the Criminal Acts Exclusion in this case does not violate public policy. See Young, p. 5, 658 So.2d at 753 (“We have already recognized the strong public policy that prevents wrongdoers from indemnifying themselves against their own intentional criminal acts.”). Finally, we find that the language in the Essex policy excluding coverage for damages arising out of criminal acts “from any Insured, any employee of any insured or anyone for whom you may be held liable” precludes coverage for Augustino and Perdomo under these facts and circumstances, as the alleged damages arose out of the defendant-employees’ criminal acts. Accordingly, contrary to Appellant’s argument, the Criminal Acts Exclusion also applies to Augustino and Perdomo.

Assignment of Error # 2

In the second assignment of error, Appellant argues that although neither Au-gustino nor Perdomo participated in the thefts, Augustino and Perdomo are vicariously liable for the defendant-employees’ acts pursuant to La. C.C. art. 2320. | sAppellant further urges that all defendants are insureds under the Essex policy; thus, as innocent co-insureds of the defendant-employees, Augustino and Perdomo are not precluded from coverage. Appellant cites Obson v. National Union Fire Ins. Co., 93-1975 (La.2/28/94), 632 So.2d 1158, where the Louisiana Supreme Court held that a spouse and innocent co-insured of her husband, who intentionally set fire and destroyed their home and contents, was not barred from recovering under a fire policy.

Essex maintains that the defendant-employees are not insureds under the policy, as they were clearly not performing duties within the scope of their employment or performing duties related to the conduct of Augustino’s business when forcibly entering Appellant’s home and committing theft. In “Section II — WHO IS AN INSURED”, the policy provides that in addition to insureds designated in the declarations (emphasis added):

2. Each of the following is also an insured:

a. Your “volunteer workers” only while performing duties related to the conduct of your business, or your “employees”, other than either your “executive officers” ... but only for acts within the scope of their employment by your or while performing duties related to the conduct of your business. However, none of these “employees” or “volunteer workers” are insureds for:
(2) “Property Damage” to property:
(a) Owned, occupied or used by,
(b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by
you, any of your “employees”, “volunteer workers”....

Essex further argues that the defendant-employees are not insureds because they were temporary workers, and as such, not considered “employees” as defined in the Essex policy, thereby precluding coverage for their criminal acts. Essex Rpoints to the policy provision in Section V — Definitions, which states that “Employee” does not include a “temporary worker”, and subsequently defines “temporary worker” as follows:

“Temporary Worker” means a person who is furnished to you to substitute for a permanent “employee” on leave or to meet seasonal or short-term workload conditions.

Essex argues that in addition to the Criminal Acts Exclusion, the Breach of Contract Endorsement also precludes coverage in this case. The Breach of Contract exclusion states:

This insurance does not apply to claims for breach of contract, whether express or oral, nor claims for breach of an implied in law or implied in fact contract, whether “bodily injury,” “property damage,” “advertising injury,” “personal injury” or an “occurrence” or damages of any type is alleged; this exclusion also applies to any additional insureds under this policy.
Furthermore, no obligation to defend will arise or be provided by us for such excluded claims.

Appellant argues that the exclusion is inapplicable because there was no assertion that Augustino’s work was defective, only that Augustino and Perdomo were negligent in causing damages to Appellant. Essex maintains that this argument lacks merit because the Breach of Contract Exclusion applies to both intentional and negligent breaches of contract; Appellant’s alleged damages arose from a negligent breach of contract and from alleged criminal acts.

With respect to Appellant’s argument that Augustino and Perdomo are vicariously liable, Essex highlights the Negligent Hiring and Supervision Exclusion of the Combination General Endorsement, which provides, in pertinent part (emphasis added):

|in10. This insurance does not apply to ‘bodily injury’, ‘property damage’, ‘personal injury5, ‘advertising injury’ or any injury, loss, or damages, including consequential injury, loss or damage, arising out of, caused by or contributed to:
e. as a result of alleged negligence or other wrongdoing in the hiring, training, placement, supervision, or monitoring of others by the insured. ...

Appellant maintains, however, that this exclusion is inapplicable because negligent infliction of emotional distress is alleged, and therefore, the policy should cover any other alleged acts of negligence.

We find that under either scenario, the defendant-employees were not insureds under the Essex policy. Even if the defendant-employees were not “Temporary Workers,” we cannot reasonably find that the defendant-employees were acting within the course and scope of their employment when forcibly entering Appellant’s home and committing the thefts. Additionally, the language of the Breach of Contract Exclusion in this case also operates to bar coverage for any negligent breaches of contract by Augustino and/or Perdomo, as the policy language does not provide, as Appellant alleges, that the breach of contract must be asserted for defective workmanship in order to be applicable.

Moreover, the plain language of the Negligent Hiring and Supervision Exclusion, in addition to the “anyone from which you may be held liable” language within the Criminal Acts Exclusion, precludes coverage for Augustino [^and/or Perdomo under Appellant’s theory of vicarious liability. Therefore, we find that Appellant’s vicarious liability argument must fail under these particular facts and circumstances. CONCLUSION

For the aforementioned reasons, the trial court’s judgment is affirmed.

AFFIRMED.

      . Hurricane Katrina struck the Louisiana coast on August 29, 2005.

      . The policy provision regarding the Criminal Acts Exclusion reads in full:

        10. This insurance does not apply to 'bodily injury', 'property damage', 'personal injury’, ‘advertising injury’ or any injury, loss, or damage including consequential injury, loss or damage arising out of, caused by or contributed to:

      m. from criminal acts, fraudulent, dishonest or malicious acts or omissions from any Insured, any employee of any insured or anyone for whom you may be held liable; ....

      . Essex cites Hooper v. Allstate Ins. Co., 571 So.2d 1001 (Ala.1990) and Am. Family Mut. Ins. Co. v. White, 204 Ariz. 500, 65 P.3d 449 (Ariz.Ct.App.2003).

      . The criminal acts exclusion at issue in Young read as follows:
      We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.

        Young, p. 3, 658 So.2d at 752.

      . In Allstate Ins. Co. v. Peasley 131 Wash.2d at 423, 932 P.2d 1244, plaintiff Allstate sought a declaration that its criminal acts exclusion precluded coverage to a houseguest who was shot by the homeowner. The shooting constituted the crime of reckless endangerment. Id.

      . It is also noteworthy that we question the reach of some criminal acts exclusions. We are aware that the unfettered application of criminal acts exclusions may mean that insurance companies can avoid their obligations under their policies whenever an insured also violates a criminal statute. Insurance companies are now writing their criminal acts exclusions very broadly to exclude any injury resulting from a criminal act, regardless of the type of criminal act and whether the injury was reasonably expected to occur. While it is true that public policy disfavors insuring for certain injuries stemming from certain criminal acts, it surely does not prohibit coverage for all injuries resulting from any criminal act. Of course, public policy does not, for example, prohibit insurance coverage for unexpected injuries stemming from minor traffic offenses or crimes based upon only negligent acts. We find that the following quote best illustrates this problem: " '[i]f the maxim, that no man shall profit from his own wrong [or criminal act], be applied liberally, then the slightest negligence [or most minor offense] * * * would bar recovery. Such a result would be recognized generally as impractical and unjust.’ ”

        Allstate Ins. Co. v. Cartwright, (Ohio App. 2 Dist.) 1997 WL 368370, *4 (unpub.Xquoting Three Sons, Inc. v. Phoenix Ins. Co., 257 N.E.2d 774, 357 Mass. 271)(1970).

      . Appellant argues that LeBrane v. Lewis, 292 So.2d 216 (La.1974) applies to the facts of this case. In LeBrane, plaintiff LeBrane arrived late for his job as a kitchen helper at a hotel, and his immediate supervisor, Lewis, instructed him to take the day off and cut his hair; however, LeBrane refused to leave the premises. LeBrane, 292 So.2d at 217. Lewis, who had the authority to terminate employees, fired LeBrane and advised him to sign a termination slip. Id. Shortly thereafter, the two began to argue, and took the argument to the loading premises at the basement of the hotel. Id. Lewis ultimately stabbed LeBrane in the loading premises area. Id. The Louisiana Supreme Court held that the tortious conduct was in the course and scope of Lewis' employment because the tortious conduct occurred "while the employee was at least partly actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee ... and it was reasonably consequent upon or incident to his performance of his employment function of hiring and firing sub-employees.” Id. at 219. We find LeBrane distinguishable from the facts of the case sub judice, as the defendant-employees’ criminal acts were not reasonably consequent upon or incident to their duties in repairing Appellant's roof; Appellant was not a co-employee. Accordingly, the defendant-employees’ forcible entry and theft cannot reasonably be designated as “primarily employment-rooted” under these particular facts and circumstances. See Id. at 218.


source: Caselaw Access Project

license: Public Domain

text:
    Dana Mathew LIRETTE, Jr. v. Danielle WICKRAMASEKERA.
    No. 2008-CA-0575.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.
    Rehearing Denied June 5, 2009.

      Marynell L. Piglia, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Laura Jean Todaro, Neil D.W. Montgomery, Kenner, LA, for Defendant/Appel-lee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Plaintiff-Appellant appeals four judgments: a judgment ordering Appellant’s child support arrearages executory, a judgment granting the right to claim tax deductions to Defendant-Appellee, a judgment providing for an Income Assignment Order and a judgment denying Appellant’s motion for a change of custody. For the reasons that follow, we vacate the two judgments and reinstate the original respective judgments, thereby affirming the Income Assignment Order and the trial court’s denial of Appellant’s Motion for Change in Custody.

FACTS AND PROCEDURAL HISTORY

Dana Matthew Lirette, Jr., the Appellant, and Danielle Wickramasekara, the Appellee, had three children during their marriage. This convoluted fact pattern began when Appellant filed a petition for divorce on December 8, 2002. On June 26, 2003, the petition for divorce was granted. On that date, the parties also entered into a consent judgment which ordered joint custody of the three minor children with Appellee as domiciliary parent; visitation by Appellant; child support 12payments of $1,500.00 per month by Appellant; and allowed Appellant to claim federal and state tax exemptions for all three children.

In August of 2005, Appellee and the minor children evacuated from Louisiana to stay with relatives in Indiana as a result of Hurricane Katrina. On November 7, 2005, Appellant filed a Rule for Modification of Custody and Reduction in Child Support. On August 31, 2006, Appellee filed a motion for contempt against Appellant for failure to pay child support. The parties ultimately entered into a consent judgment on September 28, 2007, which ordered Appellant to pay $5,500.00 in child support arrears and reduced the payment amount to “at least $1,000.00 per month of the court ordered $1,500.00 child support payments,” and provided that “[sjaid payment shall continue until a trial on the merits.”

The matter went to trial on October 10, 2007. On October 19, 2007, the trial court signed a judgment denying Appellant’s motion for change of custody and to decrease child support, and granted Appel-lee’s motion for contempt for failure to pay child support, ordering payment to Appel-lee of attorney’s fees in the amount of $4,500.00. The October 19, 2007 judgment further provided for joint custody of the three minor children with Appellee as domiciliary parent, and provided for visitation by Appellant during the school year and during summer vacation months. On that date, an Income Assignment Order was also entered by the trial court against Appellant regarding child support payments, child support payment arrearages, the children’s health insurance premiums and tuition, and Appellee’s attorney’s fees.

l.qOn October 29, 2007, Appellee filed a Motion for Clarification of Judgment Awarding Tax Dependency Deductions Pursuant to R.S. 9:315.18 and to Void Order Granting Tax Deductions to Petitioner [Appellant].

Additionally, on November 15, 2007, Ap-pellee filed a second Motion for Clarification of Judgment, referencing the October 19, 2007 judgment, which failed to state the amount of health insurance arrearages owed by Appellant. The motion also requested that all past due support obligations become executory.

On January 2, 2008, the trial court issued two judgments. The first decreed that the child support arrearages through September of 2007 of $12,017.00 be made executory; that the tuition which Appellant was to have paid' through September of 2007, in the amount of $11,558.00 be made executory; that the tuition for the 2007-2008 school year that was to be paid by Appellant, $2,173.00, also be made exec-utory; that the amount of health insurance that Appellant failed to reimburse Appellant through September of 2007, $2,960.84, be made executory; and that the amount of unreimbursed dental expenses through September of 2007, $214.20, also be made executory. The judgment further ordered that Appellant be imprisoned for 45 days, but suspended the incarceration pending Appellant’s “fulfillment of a requirement that [Appellant] purge himself of contempt by paying the sum of $15,000 to [Appellee] on or before [January 22, 2008 at 9:00 a.m.].” The judgment, accordingly made executory by the trial court, decreed that Appellee could record same as a lien against any and all real property or other assets owned by Appellant in order to enforce the judgment.

I/The second judgment signed by the trial court on January 2, 2008, voided the previous order granting Appellant the tax deduction for support of the three minor children, and granted Appellee the right to claim the children as dependents. Specifically, the judgment voided the Appellant’s right to claim the tax deductions for the years 2005, 2006, and 2007, in addition to all future years. The judgment further provided that if Appellant did pay the past due child support arrearages, he would retain the right to request to reclaim the tax deduction for support of the minor children, provided that he could demonstrate that the granting of the tax exemption would benefit him without significantly harming Appellee. This appeal followed.

STANDARD OF REVIEW

Findings of fact will not be disturbed on appeal unless manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “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 findings; for only the factfinder 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.” Id. Conversely, “where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Evans v. Lungrin, 1997-0541, p. 6-7 (La.2/6/98), 708 So.2d 731, 735.

DISCUSSION

| ¡Appellant sets forth the following assignments of error: 1) the trial court erred by granting Appellee’s motion for clarification of judgment awarding the tax dependency deductions and voiding order granting the tax deduction to Appellant; 2) the trial court erred by granting Appellee’s motion for clarification of judgment relating to the October 19, 2007 judgment; and 3) the trial court erred when it denied Appellant’s motion for modification of custody.

Assignment of Error # 1 — October 29, 2007 Motion Regarding Tax Dependency Deductions

In his first assignment of error, Appellant asserts that the trial court erred in granting Appellee’s Motion for Clarification of Judgment Awarding Tax Dependency Deductions Pursuant to La. R.S. 9:315.18 and to Void Order Granting Tax Deduction to Appellant.

Appellant asserts that Appellee’s motion improperly seeks to amend a final judgment, the June 2003 consent judgment, which he argues may only be modified pursuant to La. C.C.P. art.1951. Article 1951 provides that final judgments may only be amended by a trial court to alter phraseology, but not substance, or to correct errors of calculation. La. C.C.P. art. 1951. Appellant also argues that, even [ fiif Appellee’s October 29, 2007 motion for clarification was regarded as a motion for a new trial, that it was nevertheless untimely because it sought to amend the June 2003 judgment rather than the October 19, 2007 judgment. Appellant further argues that to the extent Appellee’s October 29, 2007 motion sought to void or annul the June 2003 consent judgment, it is erroneous because no fraud or ill practices were alleged pursuant to La. C.C.P. art.2001. Finally, Appellant argues that the trial court erroneously granted Appel-lee’s motion because it granted retroactive relief and was barred by res judicata and/or collateral estoppel pursuant to La. R.S. 13:4231, et seq.

Conversely, Appellee argues that the October 19, 2007 judgment did not adjudicate her right to claim the children as dependents in light of Appellant’s failure to pay child support, and the issue is thus not barred by res judicata pursuant to La. R.S. 13:4232(B). Moreover, Appellee argues that the June 2003 |7consent judgment granted Appellant the tax deduction based on his presumed compliance with the remaining provisions of the judgment.

Appellee submits that her motion for contempt sought to void Appellant’s right to claim the tax deduction, and that the October 19, 2007 judgment did not address that issue; thus, the court could revise its judgment in that respect. Because the October 19, 2007 judgment did not offer Appellee the relief she sought, however, a motion for new trial or a timely appeal would have been the appropriate vehicle to challenge the October 19, 2007 judgment. Bourgeois v. Kost, 2002-2785, p. 7-8 (La.5/20/03) 846 So.2d 692, 696; see also Levron v. State Through Dept. of Health & Hospitals 94-2094 (La.App. 4 Cir. 4/24/96), 673 So.2d 279, 289. Accordingly, we find that the January 2, 2008 judgment divesting Appellant of his right to claim the tax deductions must be vacated, thereby reinstating the original provision regarding the tax deductions in the June 2003 consent judgment. See Bourgeois, 846 So.2d at 696.

Assignment of Error # 2 — November 15, 2007 Motion Regarding Arrearages

In his second assignment of error, Appellant argues that the trial court erred in granting Appellee’s Motion for Clarification of Judgment relating to the October 19, 2007 judgment.

Appellant argues that the second Motion for Clarification, which sought to order Appellant to reimburse her for health insurance expenses, to hold Appellant in contempt, and to specify and make executory the arrearages owed by Appellant, essentially repeated what Appellee sought in her Motion for Contempt. Accordingly, Appellant argues, because the October 19, 2007 judgment is silent on|sthese issues, it can be presumed that the judgment denied the relief sought. Furthermore, Appellant argues that assuming the trial court treated Appellee’s November 15, 2007 motion as a motion for new trial, it was untimely, as it was filed beyond seven days of the October 19, 2007 judgment. Finally, Appellant submits that Appellee’s motion cannot seek to nullify the October 19, 2007 judgment, as no fraud or ill practices were alleged.

Appellee submits that her August 31, 2006 Motion for Contempt requested that the Appellant’s arrearages be made execu-tory, that an Income Assignment be ordered, and that Appellant be assessed attorney’s fees and costs. Because the trial court’s October 19, 2007 judgment failed to address each of these issues, Appellee argues that the January 2, 2008 judgment was a valid revision of a partial judgment pursuant to Article 1915(B)(2) and not an unauthorized revision of a final judgment. Specifically, Appellee submits that at the October 10, 2007 trial, there |8were seven issues before the court, and that the October 19, 2007 judgment only disposed of four of the seven issues, thus leaving three issues not adjudicated.

With regard to substantive amendments of signed judgments, the Louisiana Supreme Court held in Bourgeois v. Kost:

It is well settled under our jurisprudence that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. The trial judge cannot, on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error. State ex rel. Vignes v. Judge Civil District Court, 10 So. 294, 43 La.Ann. 1169 (La.1891); Villaume [v. Villaume], 363 So.2d [448] at 450-51 [La.1978]. Without a specific statutory grant of authority, the trial court is limited to the general authorization for amending final judgments provided in Code of Civil Procedure Article 1951. As stated above, Article 1951 limits the amendment of judgments to the correction of errors in calculation and alteration of phraseology, but does not authorize a trial court to make substantive amendments to final judgments. Courts have uniformly held substantive amendments to judgments made without recourse to the proper procedures, i.e. by way of a timely motion for a new trial or by appeal, to be absolute nullities. LaBove [v. Theriot], 597 So.2d [1007] at 1010 [(La.1992)].

Bourgeois v. Kost, 2002-2785, p. 7-8 (La.5/20/03) 846 So.2d 692, 696.

We find that the January 2, 2008 judgment designating the arrearages as executory modified the substance of the October 19, 2007 judgment in violation of La. C.C.P. art.1951. Bourgeois, 846 So.2d at 696; Levron v. State Through Dept. of Health & Hospitals 94-2094 (La.App. 4 Cir. 4/24/96), 673 So.2d 279, 289. Louisiana jurisprudence mandates that a litigant may seek substantive changes to a judgment, including a judgment regarding custody or support, only by filing a |1(1motion for new trial or a timely application for appeal. Bourgeois v. Kost, 2002-2785, p. 7-8 (La.5/20/03) 846 So.2d 692, 696; see also Hebert v. Hebert, 351 So.2d 1199 (La.1977)(finding that trial court’s modification of support judgment from ordering the father to pay “the sum of $65 per week” to ordering payment of “the sum of $65.00 per week, of which $50.00 is to be paid in cash and $15.00 per week is to be paid for the payment of the mortgage on the home owned by the parties .... ” im-permissibly modified the substance of the original judgment); In re Green, 08-782, p. 2 (La.App. 3 Cir. 12/10/08), 1 So. 3d 683, 684 (applying Bourgeois, supra, to affirm the trial court’s denial of a substantive change to a visitation judgment); Stoffer v. Stoffer, 29,458 (La.App. 2 Cir. 5/7/97), 693 So.2d 1229, 1231; Rodgers v. Rodgers, 26,-093, p. 3 (La.App. 2 Cir. 9/21/94), 643 So.2d 764, 766 (citing Hebert v. Hebert, supra); Williams v. Williams, 590 So.2d 649 (La.App. 3 Cir.1991)(trial court erroneously amended judgment of separation by retroactively determining mortgage payments as child support); Schexnayder v. Schexnayder, 503 So.2d 104 (La.App. 5 Cir. 1987), writ denied, 506 So.2d 1228 (previous judgment reinstated when amended judgment impermissibly altered substance by addressing medical and hospital expenses and method of satisfying child support obligations).

Although Appellant has unarguably demonstrated sufficient cause to designate Appellant’s arrearages as executory, for the aforementioned reasons, we must nevertheless vacate the January 2, 2008 judgment and reinstate the October 19, 2007 judgment. See Bourgeois, 846 So.2d at 696; see also Rathborne v. Rathborne, 2006-1518, p. 13-14 (La.App. 4 Cir. 12/3/08), 999 So.2d 816, 824-25; Sacks v. Mohawk Carpet Corp., 2003-0386 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, writ denied, 2003-2632 (La.12/12/03), 860 So.2d 1158. In Assignment of Error # 3—Modifica-tion of Custody

In his third and final assignment of error, Appellant argues that the trial court erred in denying his motion for modification of custody.

In order to modify a custody decree, the moving party must prove both a material change in circumstances and that the modification proposal is in the children’s best interests. Evans v. Lungrin, 1997-0541, p. 13 (La.2/6/98), 708 So.2d 731, 738. The Louisiana Supreme Court has stated that:

[I]n cases where the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the heavy burden of proof enunciated in Bergeron[ v. Bergeron, 492 So.2d 1193 (La.1986)] is inapplicable. Hensgens [v. Hensgens, 94-1200], 653 So.2d [48,] 52. Instead, where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Hensgens, 653 So.2d at 52.

Evans, 708 So.2d at 738.

Appellant argues that the court erred in denying his motion for modification of custody, asserting: that Appellee had enrolled the children into four different schools in a nine-month period; that Appellee would not assist in transportation to facilitate visitation between the children and Appellant after relocating to Indiana; that Appellant has since remarried and enjoys flexible hours, thus providing the opportunity for Appellant to spend evenings and school mornings with the children; and that Appellant encourage contact between Appellee and the children. In the alternative, Appellant requests a set visitation schedule guaranteeing time with the kids and establishing a transportation plan.

Next, Appellant references the court’s expert’s first report. The court’s expert, Claire Hesse, issued two reports, the first dated December 1, 2006, and the | ^second dated September 10, 2007. Appellant ar•gues that the first report demonstrates that Appellee was not providing a stable environment for the children; that seven years prior, Appellee experienced anxiety, depression and mood swings for which she took medication; and that Appellee had impulse control issues and low frustration tolerance that could result in difficult family relationships. Appellant argues that the trial court erroneously departed from Ms. Hesse's custody recommendations. Specifically, Appellant complains that the court did not provide for two uninterrupted weeks of vacation with the children as recommended and that the court’s judgment did not address his request for a transportation plan.

Conversely, Appellee argues that the trial court correctly denied Appellant’s motion for modification of custody. Appellee relies upon the most recent report issued by Ms. Hesse, in addition to Ms. Hesse’s testimony at trial. Specifically, Appellee notes that Ms. Hesse testified, after being asked by the trial judge whether she thought it was in the best interest of the children to stay in place with Appellee as the domiciliary parent or if the kids would benefit from moving to Appellant’s home, Ms. Hesse testified:

No, I think they are doing fine where they are. I think the proof of the pudding is in the tasting, as they say. And they are doing well. They have been— the thing I feel most strongly about over the time I have known this family is how much they have been disrupted. But by all of these changes in school, I think it’s really important for them to stay put for a while.

Ms. Hesse further testified that the children were all doing well in school at that time, absent very little, and well-adjusted, and that she recommended Appellee | ¶ shave custody during the week and Appellant have visitation on the weekends, summer and holidays. Moreover, Appellee submits that other testimony at trial by Ms. Hesse demonstrates that the request for modification of custody was rightfully denied, including Ms. Hesse’s acknowl-edgement of Appellant’s continued lack of financial support, the pattern of Appellant resisting orders to support the children and attempting to make the payments less and less and not paying what is ordered.

With respect to Ms. Hesse’s most recent written report, Ms. Hesse noted that although “[b]oth parents obviously love and are very important” to their children, there was a lack of cooperation between the parents, in part caused by “[Appel-lee’s] financial anxiety due to alleged arrears and inconsistent payment of child support obligations by [Appellant].” Ms. Hesse recommended that the parties communicate directly to commit to a predictable and regular schedule. Additionally, Ms. Hesse suggested that the parties enroll in parent education classes to coordinate the parenting approach in both homes to provide “a consistent message about values, expectations, and consequences”, and also to utilize a family mediation specialist regarding disagreements prior to initiating further litigation.

Ms. Hesse’s September 2007 report also assessed other factors, including the employment and financial status of each parent and the children’s schools. She recommended strongly that the children not be transferred from their current schools. With regard to the financial status, Ms. Hesse recognized Appellant’s court order to pay arrears and child support, but noted his failure to do so. She further acknowledged that according to Appellant’s self-report, his individual annual income was approximately $60,000 per year (excluding his wife’s financial [ Ucontributions), while Appellee’s annual income was $20,000, and thus a “large discrepancy between the standards of living of the parents.” Ms. Hesse reported that Appellant “has many luxury items such as a boat, a swimming pool, and European vacations”, while Ap-pellee “struggles financially and cannot depend upon timely and full payment of child support from [Appellant].”

Finally, Ms. Hesse’s September 2007 report recommended a detailed visitation schedule for the parties with respect to a school year schedule, a summer schedule, a summer extended vacation schedule, holidays, Mother’s Day and Father’s Day, and general guidelines for parental responsibility for transportation and extracurricular activities.

Upon a careful review of the record, we do not find that the trial court erred in denying Appellant’s request for modification of custody in this case. We cannot say that the trial court was erroneous in determining that a modification of custody was not in the children’s best interest.

Income Assignment Order

Appellant argues that the trial court erred in entering the October 19, 2007 income assignment order to satisfy the child support arrearages, reimbursement for the children’s health insurance premiums, and/or the children’s school tuition, and attorney’s fees and costs. The order provided that Appellant’s employer must deduct $100.00 per month from Appellant’s earnings to satisfy the judgment. Appellant submits that because the October 19, 2007 income assignment order had not specifically determined that any of the arrearages were due and had not made any arrearages executory, nor ordered Appellant to reimburse Appellee for health 11Binsurance premiums and/or tuition, that the income assignment order went beyond the scope of the October 19, 2007 and June 26, 2003 judgments.

The June 26, 2003 consent judgment provided that “If any [child support] payment is more than FIFTEEN (15) DAYS late then Dana Matthew Lirette, Jr. shall be subject [to] Income Assignment without further court action.” The October 19, 2007 judgment explicitly found that Appellant’s child support payments were more than fifteen days late and that he owed arrearages for same. Accordingly, we do not find that the trial court erred in granting the Income Assignment Order.

CONCLUSION

For the foregoing reasons, the trial court’s January 2, 2008 judgment with respect to the tax dependency deduction is vacated. The January 2, 2008 judgment regarding Appellant’s arrearages and contempt is also vacated and the October 19, 2007 judgment is hereby reinstated. The trial court’s denial of Appellant’s request for a change of custody is affirmed, and the trial court’s grant of the Income Assignment Order is also affirmed. Appel-lee’s request for costs and attorney s fees is denied.

AFFIRMED IN PART; VACATED IN PART; ORIGINAL JUDGMENTS REINSTATED.

      . The June 26, 2003 consent judgment also contained provisions regarding spousal support, school tuition payments for the minor children, arrears for child support payments, and health and medical expenses.

      . Hurricane Katrina struck the Louisiana coast on August 29, 2005.

      .The consent judgment further provided that Appellant provide discovery responses to Ap-pellee by August 1, 2007, and ordered the parties to complete an updated custody evaluation with the court evaluator prior to the October 10, 2007 trial.

      . The judgment further provided that Appel-lee had paid the $11,558.00 in tuition expenses through September of 2007, and had also paid the $2,173.00 tuition for the 2007-2008 school year.

      . The judgment provided that Appellee had incurred the costs of maintaining health insurance for the children through September of 2007 as well.

      .Accordingly, the amount of arrearages in the January 2, 2008 judgment totaled $28,953.04, plus legal interest from the date the original payments were due, in addition to the attorney’s fees ($4,500.00) and court costs sustained by Appellee to collect the arrearag-es.

      .A. The amounts set forth in the schedule in R.S. 9:315.19 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section. B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
      (a) No arrearages are owed by the obli-gor.
      (b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.
      (2) The child support order shall:
      (a) Specify the years in which the party is entitled to claim such deductions.
      (b) Require the domiciliary party to timely execute all forms required by the Internal Revenue Service authorizing the non-domiciliary party to claim such deductions.
      C. The party who receives the benefit of the exemption for such tax year shall not be considered as having received payment of a thing not due if the dependency deduction allocation is not maintained by the taxing authorities.
      La. R.S. 9:315.18 (emphasis added).

      . Appellant also submits that to the extent Appellee's motion was treated as a motion for new trial, it was improper because it was served via certified mail and not by a sheriff pursuant to La. C.C.P. art 1314.

      . Appellant also notes that Appellee's motion for clarification of judgement fails to state a cause of action because such a motion does not exist in the Louisiana Code of Civil Procedure.

      . “The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.” La. C.C.P. art.2001.

      . Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, 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 are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, 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 are extinguished and the judgment bars a subsequent action on those causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
      La. R.S. 13:4231.

      . B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse's education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.
      La. R.S. 13:4232(B)(emphasis added). Article 105 provides as follows:
      In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immov-ables; or use of personal property.
      La. Civil Code Art. 105.

      . Appellee also argues that the trial court correctly allowed her the tax deduction because to allow a non-domiciliary parent to receive the tax deduction is contra bonos mores.

      . Appellant also submits that to the extent Appellee's motion was treated as a motion for new trial, it was improper because it was served via certified mail and not by a sheriff pursuant to La. C.C.P. arts.1976 and 1314.

      .
      B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
      La. C.C.P. art 1915(B)(2).

      . 1) Appellant’s Motion for Change in Custody;
      2) Appellant's Motion for a Reduction in Child Support;
      3) Appellee's Motion for Contempt of Court for Failure to Pay Child Support;
      4) Appellee’s Motion to Set Arrearages and for Arrearages to be Made Executory;
      5) Appellee's Motion for an Income Assignment Order against Appellant;
      6) Appellee's Motion that Appellant Be Ordered to Pay Her Attorney's Fees and Costs; and
      7) Appellee's Motion for the Federal and State Tax Deduction.

      . Appellant's Motion for Change in Custody; Appellant’s Motion for a Reduction in Child Support; Appellee's Motion for Contempt of Court for Failure to Pay Child Support, and Appellee’s Motion that Appellant Be Ordered to Pay Her Attorney’s Fees and Costs.

      . Appellee’s Motion to Set Arrearages and for Arrearages to be Made Executory; Appel-lee's Motion for an Income Assignment Order against Appellant; and Appellee’s Motion for the Federal and State Tax Deduction.

      . The December 1, 2006 report was based upon interviews with the mother, father, the father's wife, and the children, in addition to psychological testing (Minnesota Multiphasic Personality Inventory) of both the mother and father. The September 10, 2007 report was based on information collected from subsequent interviews with the mother, father, and the children.

      . According to Appellant, Appellant and Ap-pellee live 26 miles apart, or 50 minutes driving time. Appellant resides in Belle Chasse and Appellee lives in Metairie.

      . Appellee references her own testimony at trial alleging several instances of emotionally and verbally abusive behavior by Appellant towards the children. Additionally, Appellee references her testimony at trial with respect to Appellant’s complaints regarding the changing of children’s schools, arguing that Appellant actually removed the children from their private school and put them in a public school.


author: BROWN, Chief Judge.

text:
    DOUBLE-EIGHT OIL AND GAS, L.L.C. and Oak Hill Management, L.L.C., Plaintiffs-Appellants v. CARUTHERS PRODUCING COMPANY, Defendant-Appellee.
    No. 44,199-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.
    Rehearing Denied June 18, 2009.

      Robert W. Raley, Bossier City, for Plaintiff/ Applicant, Frank R. Perniei.
    Michael H. Wainwright, Shreveport, for Plaintiff/ Applicant, Thomas S. Perniei.
    Downer, Huguet & Wilhite, L.L.C., By: Philip E. Downer, III, Shreveport, for Defendant/Respondent, Caruthers.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

h Caruthers Producing Co., Inc. (“Ca-ruthers”), obtained a money judgment for $139,225.49 against Double-Eight Oil and Gas, L.L.C. (“Double-Eight”). This court affirmed the decision of the trial court and the judgment became final. Faced with an insolvent judgment debtor, Caruthers filed a pleading in the same suit entitled “Motion/Petition to Hold Principals, Thomas Scott Perniei and Frank Richard Perniei, Responsible For Judgment Against Double-Eight Oil And Gas, L.L.C.” (“Motion/Petition”). The Pernicis filed a peremptory exception of no right of action. The trial court denied the exception and the Pernicis asked this court to exercise its supervisory jurisdiction to review the denial. We granted the writ and docketed the matter and now reverse.

FACTS

Double-Eight, who owned a 70% working interest in two gas wells in Bossier Parish, filed suit for damages against Ca-ruthers, the operator of the wells. Ca-ruthers filed a reconventional demand for nonpayment of services and materials. The trial court rejected the demands of Double-Eight and granted judgment to Caruthers on its reconventional demand in the amount of $139,225.49. An appeal was taken. The trial court’s judgment was affirmed and became final. Double-Eight Oil and Gas v. Caruthers Producing Co., Inc., 41,451 (La.App. 2d Cir.11/20/06), 942 So.2d 1279.

The judgment creditor, Caruthers, found that it was unable to collect its judgment from Double-Eight. Caruthers then filed, in the same action, a Motion/Petition to collect from the members of Double-Eight. This motion stated that Double-Eight was owned 50% by Thomas Scott Pernici and 50% Isby Frank Richard Pernici, and these two were made additional defendants. The pleading alleged Double-Eight’s assertion that it had no money to pay the judgment and that at the time the litigation commenced it had no funds or sources of revenue. This pleading also stated that the Pernicis funded and directed this complex and time-consuming litigation with the intention of avoiding the payment of any award Caruthers might obtain. The pleading asked the trial court to “pierce the corporate veil” of Double-Eight.

The Pernicis initially filed a peremptory exception of no cause of action, contending that Caruthers did not allege a legally cognizable claim to pierce the liability shield of a limited liability company. The trial court denied the exception of no cause of action.

Thereafter, the Pernicis filed an exception of no right of action, citing La. R.S. 12:1320, which provides that a member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company except for internal disputes. The trial court characterized the exception as one of improper cumulation of actions or improper joinder of parties and denied it. The trial court reasoned that such an exception was dilatory and, when not timely raised, was waived. The Pernicis filed a writ application which this court granted and then docketed.

Discussion

The trial court’s characterization of the exception as an improper cumulation of actions or joinder of parties was incorrect. Caruthers is a judgment creditor, having obtained a judgment against Double-Eight, ajjlimited liability company. That judgment was final and collection efforts were unsuccessful. Caruthers then attempted in the same lawsuit to add the Pernicis as defendants for collection purposes. Despite the long pendency of the original lawsuits, the Pernicis were never named as parties thereto.

La. C.C.P. art. 1951 provides:
A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

Substantive changes to a final judgment are null. Barbe v. A.A. Harmon & Co., 94-2423 (La.App. 4th Cir.01/07/98), 705 So.2d 1210, writ denied, 98-526 (La.05/15/98), 719 So.2d 462. The addition of parties to a final judgment is an alteration in the substance of a judgment. In Barbe, supra, the appellate court found that the trial court lacked the authority to amend its own judgment to add shareholders’ wives as judgment debtors as the amendment was not to correct phraseology or an error of calculation but constituted a substantive change. In Frisard v. Autin, 98-2637 (La.App. 1st Cir.12/28/99), 747 So.2d 813, writ denied, 00-0126 (La.03/17/00), 756 So.2d 1145, the appellate court found that amending the judgment to add the judgment debtor’s spouse without the consent of the parties was an impermissible substantive change rather than the correction of a clerical error, and thus was an absolute nullity, even though a prior paragraph of the original judgment noted that the judgment should be entered against both spouses.

|/The addition of a party to a judgment is a change of substance and not one of phraseology which can only be accomplished by motion for a new trial or on appeal. Teague v. Barnes, 519 So.2d 817 (La.App. 5th Cir.1988). To alter the substance of a judgment, the proper recourse is to file a timely application for a new trial or to timely appeal. Magill v. State, Dept. of Public Safety and Corrections, 27,802 (La.App. 2d Cir.01/24/96), 666 So.2d 1260.

Further, limited liability companies provide their members with a shield against liability. La. R.S. 12:1320 provides:

§ 1320. Liability to third parties of members and managers
A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
D.Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him. (Emphasis added).

|5La. R.S. 12:1320(A) provides an exclusivity rule that liability of L.L.C. members shall at all times be determined solely and exclusively by the provisions of this chapter. La. R.S. 12:1320(B) states that no member is liable for a debt of the L.L.C. La. R.S. 12:1320(C) states that a member of an L.L.C. is not a proper party to a proceeding by or against an L.L.C.

La. R.S. 12:1320(D) was amended in 1993 to provide for a separate action against a member under circumstances such as fraud, breach of professional duty, or negligent or wrongful acts. It did not alter or change the exclusivity or not-a-proper-party rule. Glenn G. Morris and Wendell H. Holmes, Business Organizations § 44.06, in 8 La. Civ. L. Treatise (2008).

The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Northeast Realty, L.L.C. v. Misty Bayou, L.L.C., 40,573 (La.App. 2 Cir. 1/25/06), 920 So.2d 938. A limited liability company has the power as set forth in La. R.S. 12:1301, et seq. As such, it is a separate legal entity distinct from its member owners. La. R.S. 12:1301(10). A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against | nor liability to the limited liability company. La. R.S. 12:1320(C). The Pernicis’ exception of no right of action must be maintained

Conclusion

For the foregoing reasons, we reverse the denial and grant the exception of no right of action dismissing the claim against Thomas Scott Pernici and Frank Richard Pernici. Costs of this appeal are assessed equally between the parties.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, MOORE, and LOLLEY, JJ.

|! Rehearing denied.

      . "The not-a-proper-party rule may not necessarily operate in favor of the persons it seems designed to protect. The expense of multiple suits on closely-related claims arising out of the same event, transaction, or occurrence may help discourage suits against LLC members and managers, but it may also give the plaintiff multiple bites at the apple, and allow him to impose the expense of multiple trials on the defendants as well. If the suits are filed in the same court, the trials may be consolidated, in which case the multiple suit requirement will not have accomplished very much, while if they’re filed in different courts, consolidation would first seem to require a discretionary transfer of venue, followed by a consolidation.” 8 La. Civ. L. Treatise § 44.06 at p. 3.


text:
    STATE of Louisiana, Appellee v. James Clyde PRINE, Jr., Appellant.
    Nos. 44,229-KA, 44,230-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Dale N. Montgomery, II, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

!, Defendant, James Clyde Prine, Jr., was charged with computer-aided solicitation of a minor that occurred on February 19, 2007, in violation of La. R.S. 14:81.3 and in a separate bill of information he was charged with attempted aggravated rape of a female whom defendant believed to be 11 years old, in violation of La. R.S. 14:27 and La. R.S. 14:42. These offenses were joined and tried together. On October 10, 2007, a jury found defendant guilty of both charges.

On February 26, 2008, defendant was sentenced to 20 years imprisonment at hard labor for the attempted aggravated rape conviction, and 5 years imprisonment at hard labor for the computer-aided solicitation of a minor with the terms to run consecutively and be served without benefit of parole, probation, or suspension of sentence. This appeal assigns as error defendant’s conviction of attempted aggravated rape and the 5-year sentence on the computer-aided solicitation charge. We affirm.

Facts

Defendant was charged and convicted on the basis of online communications with undercover officers who were posing as a 14-year-old female and a 28-year-old female with an 11-year-old daughter, respectively. The Internet Crimes Against Children Task Force attempts to locate sexual predators online by having special agents pose as minor children online who wait to be contacted by an adult soliciting sex.

The agent sets up a profile which contains information about the fictitious child such as age, school, and hobbies, and other miscellaneous personal information. After the profile is prepared, the undercover agent | gwill enter a regional chat room. After entering the chat room with the fictitious profile, the agent “just sits and waits.” Other online viewers are able to access the fictitious profile and may then choose to communicate by instant messaging; these communications are private and viewable only by the sending and receiving parties. The chat rooms, which are administered by Yahoo, are not solely adult chat rooms since Yahoo does not require age verification. As a result, minors may easily access those chat rooms by entering a fictitious age.

Computer-aided Solicitation of a Minor

On February 19, 2007, a detective with the Webster Parish Sheriffs Office was working with the attorney general’s task force under the screen name “Lil Bossier Hottie.” The officer told defendant that he was a 14-year-old female high school student from Bossier.

Defendant asked whether “she” (fictitious 14-year-old girl) had ever been with an older man before. The officer said yes; defendant said “wow,” then asked for a picture which was not sent; however, defendant’s photo showed up in the chat dialog as the two were communicating. The officer asked what defendant liked to do for fun; defendant responded, “[s]ex.”

Defendant then asked if “[m]om and dad keep a close eye on you?” The officer responded, “[djon’t have a dad ... [m]om at work and she is pretty cool.” Defendant asked about the pill, whether “[m]om comes home late,” and if “[tjoday [is] one of those days?”

Defendant also asked a series of questions involving sexual role play. Defendant described such role play:

| a Like leave your door open and get in bed like you’re asleep. I am the intruder or burglar and I molest you and rape you or I am the cable repair guy and you are like wearing nothing around the house and I take you ... no pain or hurt, just play.

Defendant then asked, “How big are your tits, baby?” Defendant continued to ask a series of questions before asking, “Do you want to do this or what?” and stating:

If you do the in-bed thing I can put a pillow over your head and act like you’re knocked out and then I can start working on you, or if we do the cable guy I can play like I chloroform you and you play like you pass out ... [o]r we can just jump into bed.

Defendant described what he wanted the girl to wear, and then asked, “This sisn’t [szc ] going to cost me a prison terms [sic ] is it?” Two minutes later, defendant stated, “Leave door open ‘cause if you’re in shower that will be good, too, okay ... But if I come in and you’re in bathroom I can just chloroform you ... You can struggle.” The officer responded, “Bring tape or something.”

Defendant said he would not hurt the girl, stating that “I am taking a huge chance doing this with a 14-year-old so I ain’t gonna f*ck nuttin up.” The two discussed protection (i.e., prophylactics); defendant stated that he would wear a condom. Defendant discussed where to meet and said that he would rather meet at the girl’s home, because there was “too much law enforcement around motels.” The two finally agreed to meet at a gas | ¿station. When the officer asked, “[wjhere are we going,” defendant responded, “[to a] [m]o-tel to f*ck your brains out.”

Defendant did not go to the arranged location, but went first to the location concerning the rape charge. The officer went to the scene of defendant’s arrest and testified that he believed that defendant had intended to meet the teenaged girl because “the act was furthered by him coming and meeting one of the other arranged meets that same day ... and he also brought two rolls of tape ... which I asked him to bring tape in our chat session.”

Attempted Aggravated Rape

On February 19, 2007, another agent entered a Louisiana adult chat room under a profile which described him as a 28-year-old single mother with an 11-year-old daughter. The undercover profile screen name was “Single mom for love 1978.” The name listed on the profile was “Brooke.” The agent received an instant message from defendant.

The agent asked defendant if the fact that she had an 11-year-old daughter was okay with defendant, who responded that it was. Defendant then asked, “do you fool around at all or are you ... totally looking for some kind of relationship Brooke?” The officer wrote, “[f|ool around is fine. Jess [the 11-year-old] is always there though.”

Defendant asked, “[s]he doesn’t walk in does she, LOL (which means ‘laugh out loud’)?” Defendant asked, “[w]hat if she did?” to which the agent responded with a smiling emoticon (an online mode of expressing | Kemotion) and said that it would be all right. Defendant then asked, “Do you want to teach her?”

Defendant then continued, asking whether “if we fooled around could she, the 11-year-old, be included.” The agent said yes and defendant then inquired whether the girl was a virgin and asked for pictures. The agent said, “yes, right now,” and sent defendant a picture of the fictitious 11-year-old (“Jess”); the picture was actually of a woman who is now a Shreveport detective, when the detective had been between 10 and 13 years old. Defendant responded that Jess was beautiful and then asked, “[w]hen would you like to do this?”

The conversation continued and defendant said, “Well, we go to do Jess ... we going to do Jessica, too?” As to being gentle, defendant responded that he would and that he did not have to have sexual intercourse with Jess, he could just touch her. Defendant asked whether Jess’s breasts had developed yet and acted disappointed when told, “barely.” Defendant also asked, “[w]ill you work her over or just me?”

The agent had told defendant that “she” lived in Brownlee Estates. Defendant later stated, “I think we should meet at your home. You can come outside and then we can decide, okay? Then if we like each other ... we’re already there, okay?” The agent told defendant that the store at the corner of Airline Drive and Brownlee Road, which was the meeting place they had discussed earlier, would be a preferable meeting place.

Defendant made more sexual comments, such as “[ejleven is very young but she will have parental permission; LOL.” Defendant then asked, |fi“You need your brains f*cked out? You a multiple orgasm woman?” Defendant stated, “I would love to f*ck you till you passed out ... [a]nd when you came to I would be f*ck*ng Jessica.” Defendant also stated, “[hjell even if you didn’t pass out you could act like it ... then come to as I worked her over.” Defendant also stated that “[i]f she is in there before you pass out that is good. I want her to see her mom totally f*ck*d and out like a light.”

Defendant discussed arrangements to meet. Jess was not to be present at the meeting. The agent admitted that there had been no contemplation of sex at the meeting place, stating that, “During the beginning of our conversation I indicated that I was at work and that Jessica was at home by herself and that we were going to meet somewhere besides my house[.]”

Defendant stated that “[w]e can meet there ... [ejither of us can say no to this and we can still be friends, okay?” Defendant stated, “I have condoms for Jessica.”

The conversation between the agent and defendant lasted from 11:27 a.m. until 1:07 p.m. on February 19, 2007. The conversation between defendant and the first officer began at 11:48 a.m., also on February 19, 2007.

The agent went to meet defendant at the agreed-upon location and brought an officer from the Bossier City Marshal’s Office because she fit the profile he had been using (a 28-year-old blonde female). Also, Detective Scotty Tucker came with the agent.

17Th.e agent and officers waited in the parking lot until they saw a car which matched defendant’s description of the vehicle that he would be driving (a black Crown Victoria). The agent and Detective Tucker “leaned back” in the vehicle when they saw defendant’s car pull in. Defendant pulled up along the driver’s side and “kind of waved” at the female officer. As defendant exited the vehicle, Detective Tucker took defendant into custody.

Detective Tucker testified at trial that as he was advising defendant of his rights, defendant said something like, “I knew better. I have a wife at home with MS and I have a mildly mentally handicapped daughter and I knew better than this.” Tucker again advised defendant of his Miranda rights at the police station. Defendant admitted to having conducted the two online chats and setting up meetings with both online profiles. However, he related that he did not show up to meet the first officer because “something wasn’t right” with that one.

Officers recovered a box in the trunk of defendant’s vehicle. The box was not sealed and contained several rolls of tape, handcuffs and keys, rope, two razor blades, two box cutters, gloves, pens, and a battery. The officers also found a mask, zip ties, medical tape, a flashlight, condoms, towels, and a pistol in the trunk of defendant’s vehicle. When the officers found the rope, tape, handcuffs, and gun, defendant stated that he used those items on a girl that he knew who was a schoolteacher but that “there’s no |skids involved[.]” Later, defendant’s computer was seized, as well as some CDs, a cassette recorder and cassettes, and a roll of film.

On April 18, 2007, defendant was charged with computer-aided solicitation of a minor in violation of La. R.S. 14:81.3. On April 19, 2007, defendant was charged by bill of information with attempted aggravated rape of a female whom defendant believed to be 11 years old, by arranging a meeting through textual communications, in violation of La. R.S. 14:27 and La. R.S. 14:42. These offenses were joined and tried together. On October 10, 2007, after a trial by jury, defendant was found guilty of both charges.

On February 26, 2008, defendant was sentenced to 20 years of imprisonment at hard labor for the attempted aggravated rape and 5 years of imprisonment at hard labor for computer-aided solicitation of a minor. The court imposed consecutive terms for the 20-year and 5-year sentences and ordered that they should be served without benefit of parole, probation, or suspension of sentence. This appeal followed.

Discussion

Sufficiency of the Evidence

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 elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); |9 State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App. 2d Cir.06/29/05), 907 So.2d 232, writ denied, 06-2514 (La.05/04/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

Attempted Aggravated Rape

Rape is defined as the act of anal, oral or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. La. R.S. 14:41. Aggravated rape is when the victim is under the age of thirteen years. La. R.S. 14:42.

La. R.S. 14:27 provides in pertinent part that:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
|inB. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

Attempt requires both the specific intent to commit a crime and an act for the purpose of, or an “overt act,” tending directly toward accomplishment of that crime. Id.; State v. Caston, 43,565 (La.App. 2d Cir.09/24/08), 996 So.2d 480; State v. Hunter, 454 So.2d 131 (La.App. 2d Cir.1984), writ denied, 456 So.2d 1018 (La.1984). Specific intent to commit a crime is an element of an attempted offense. The state has the burden of proving defendant’s specific intent to commit the charged crime. Id. Conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. State v. Browhow, 41,686 (La.App. 2d Cir.12/13/06), 945 So.2d 890.

The delineation between mere preparation and an overt act has not been precisely defined. The state supreme court has explained that a defendant’s actions which are “mere preparation” and those which may be identified as acts “for the purpose of and tending directly toward” commission of a crime may be understood as existing on a continuum. State v. Ordodi 06-0207 (La.11/29/06), |11 946 So.2d 654. The distinction between which of a defendant’s actions constitute an attempt, and which are mere preparation, is fact specific to each case; the trier of fact must determine where a defendant’s actions fall on the continuum. Id.

An act need not be directly proximate to commission of a crime in order to be properly classified as an overt act. Id., citing State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 444; State v. Williams, 490 So.2d 255, 260 (La.1986). Further, an overt act need not be such that it will result in commission of the crime unless frustrated by extraneous circumstances. State v. Ordodi, supra, citing State v. Porter, 249 La. 784, 191 So.2d 498, 500 (1966).

Louisiana’s attempt statute rejects factual impossibility as a defense, stating “it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.” La. R.S. 14:27.

Defendant claims that when the victim is fictitious, as in this case, nothing more than mere preparation is possible. In a case that is factually similar to the case at bar, the Fifth Circuit affirmed a conviction of attempted aggravated rape. State v. Thurston, 04-937 (La.App. 5th Cir.03/01/05), 900 So.2d 846, writs denied, 05-1332, 05-1342 (La.01/09/06), 918 So.2d 1040, 1041. In that case, a state agent for Wyoming was working on the Department of Justice’s Eye Tech Task Force conducting undercover internet operations. Much as in the case sub judice, the agent posed as a mother of a nine-year-old daughter. Defendant entered a chat room with the agent, soliciting sex from the mother and the nine-year-old | ^daughter. Over a two or three-week period of time, defendant conducted seven chats with the agent. During these chats, defendant repeatedly referred to raping the nine-year-old orally, vaginally and anally, and consistently spoke of gagging and beating the child. Defendant told the agent that he had previously had sex with an 11-year-old and had raped a 16-year-old. Defendant forwarded child pornography links to the agent, including an “invitation only” website that defendant had created.

Defendant arranged to meet with the agent at the New Orleans International Airport. Defendant told the agent how to dress the child, explaining that once they left the airport he would remove the child’s panties, and described various sex acts that he would perform on the child or force the child to perform on him on the way back to Wyoming. The New Orleans Police Department arranged for one of its officers to pose as the fictitious mother. When defendant arrived at the airport, he asked the officer where the child was, and looked relieved when the officer informed him that the child was in the bathroom. Defendant was then arrested.

The Thurston court noted that the issue of whether a defendant may be charged with attempted aggravated rape, in an instance where the victim does not actually exist, was a de novo issue in Louisiana. The court opined that Louisiana’s attempt statute punishes the intent of the actor, rather than the possibility of success. Id. at 851. Because the evidence showed that defendant believed that the nine-year-old girl existed, defendant was unaware that he could not commit the rape. The court subsequently found 113that the fact that the victim was fictitious was not fatal to the attempted aggravated rape charge against defendant. Id. at 852.

In the context of the requirement of an overt act, the Thurston court found that:

[t]he evidence presented in this case shows that the defendant did cross the line between mere preparation and an overt act towards the commission of the crime. In this case, the defendant planned a specific time and place to meet “Sandy” and her nine-year-old daughter. In the online chats defendant repeatedly stated that he would begin to perform sex acts on the child and force the child to perform sex acts on him as soon as they got into a rental van upon leaving the airport. In his statement to police, the defendant stated that the only thing that stopped him from having sex with the child was “being booked at the airport.”

Id.

In the instant case, a reasonable factfin-der could find that it was proven beyond a reasonable doubt that defendant had the specific intent to rape an 11-year-old child, based upon defendant’s electronic communications with the agent. Defendant’s own statements indicated a specific intent to have sexual intercourse with the child. The defense’s argument that only mere preparation was possible because the contemplated victim was fictitious is an argument of factual impossibility and is vitiated by statute. Whether the evidence was sufficient to convict defendant of attempted aggravated rape therefore turns on whether defendant committed an overt act “tending directly toward” accomplishment of sexual intercourse with the fictitious child.

Defendant had arranged to meet with the mother of the child at a convenience store. Defendant had stated that he would bring condoms for | uthe child; the police recovered condoms, as well as various other apparent accouterments (rope, tape, a gun, etc.), from defendant’s car. Whether these acts tended directly toward the consummation of the crime of aggravated rape or where they fell on the continuum (of mere preparation versus overt act) was a question of fact for the jury in this case. Viewing defendant’s action in the light most favorable to the prosecution, together with defendant’s statements made at the time of arrest (“I knew better”) a reasonable finder of fact could have concluded that defendant’s actions constituted an act for the purpose of and tending directly toward commission of aggravated rape.

Further, the defense identifies a separation of powers issue. The defense points out that the legislature contemplated circumstances such as those giving rise to defendant’s charge, conviction, and sentence when it passed legislation governing computer-aided solicitation of minors. See La. R.S. 14:81.3. In this separate statutory section, the legislature specifically designates a lesser sentence for cases which no actual victim exists, but in which there is reasonably believed to be a child under the age of 18.

The defense notes that in this case, the solicitation of a fictitious mother and a fictitious child for sexual activity has garnered a much more serious charge than direct solicitation of a fictitious minor. The defense concludes that allowing the conviction of attempted aggravated rape to stand in this case, where another statutory section governs, encroaches upon the exclusive power of the legislative branch of government.

|1ñAt the time of the Fifth Circuit’s decision in State v. Thurston, supra, the state legislature had not yet enacted La. R.S. 14:81.3. This statutory section governs solicitations made through use of a computer or electronic device, discussed infra.

Computer-aided Solicitation of a Minor

La. R.S. 14:81.3, at the time of the offense, provided in pertinent part:

A. Computer-aided solicitation of a minor is committed when a person eighteen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of eighteen or a person reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct ... or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or person reasonably believed to have not yet attained the age of eighteen.
B. (1) Whoever violates the provisions of this Section shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence.
C. (3) It is not a defense to a prosecution brought pursuant to this Section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is actually a law enforcement officer or peace officer acting in his official capacity.

I^The prosecution of this defendant for aggravated rape does not present a constitutional problem in the context of the doctrine of separation of powers. Because La. R.S. 14:81.3 applies to conversations occurring directly between a minor and a defendant, the statute does not apply. Defendant in this case believed he was speaking to the mother of the minor child. Therefore, defendant’s actions were criminal under the statutes governing attempted aggravated rape.

Even if La. R.S. 14:81.3 did apply to the facts in this case (for instance, if defendant had believed that he was speaking directly with the eleven-year-old girl) the district attorney would have retained discretion to prosecute defendant for attempted aggravated rape. When conduct is criminalized by more than one statute, the district attorney retains discretion to choose which of the applicable statutory sections to apply when prosecuting a defendant. See La. R.S. 14:4. This defendant’s conviction and sentence therefore do not present a problem of separation of powers.

Excessive Sentence

According to defendant, the court did not take mitigating factors into account when imposing a sentence of five years imprisonment at hard labor for the computer-aided solicitation of a minor. The defense notes that defendant did not have a criminal history, and that defendant was Irresponsible for caring for his disabled wife and daughter. Because the maximum sentence allowed for this crime is ten years, the defense urges that a sentence of five years is excessive.

According to the state, given the graphic details of defendant’s intentions, the five-year sentence does not shock the conscience and is therefore not excessive.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/08), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.04/02/97), 691 So.2d 864.

Although the record does not reflect that defendant filed a motion to reconsider sentence, this court will consider defendant’s five-year sentence for constitutional excessiveness. See State v. Lathan, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890, writ denied, 07-0805 (La.03/28/08), 978 So.2d 297. The record shows that the trial court took cognizance of mitigating factors when imposing sentence. Additionally, a mid-range |1ssentence of five years is not grossly disproportionate to the crime of solicitation of a minor, and it does not shock the sense of justice.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are AFFIRMED.

STEWART, J., concurs.

      . At trial, he explained his reason for asking defendant to bring tape: “[DJuring these investigations we typically try to get them to bring an object with them that’s made-that we have made reference to in the chat strictly for evidence purposes and to show that ... they were intending to come and they did bring the objects[.]”

      . Several pictures were also recovered from the vehicle. The pictures were admitted into evidence at trial; the state stipulated that none of the recovered pictures contained anything sexual in nature.

      . The law was amended by Acts 2008, No. 25, § 1, eff. May 30, 2008; Acts 2008 No. 461, § 1, eff. June 25, 2008; Acts 2008, No. 646, O 2 NJ O O -d § ho O o iH <N

      . Defendant did not include an assignment of error regarding his 20-year sentence for attempted aggravated rape. Therefore, that portion of his sentence will not be reviewed for constitutional excessiveness. La.C.Cr.P. art. 920 provides that the only matters which shall be considered on appeal are an error designated in the assignment of errors and an error that is discoverable by a mere inspection of the pleadings and proceedings without an inspection of the evidence. Excessiveness of sentence is not an error patent. State v. Rogers, 03-1203 (La. 11/14/03), 862 So.2d 963; State v. Johnson, 96-3041 (La.03/04/98), 709 So.2d 679.