author: JAMES F. McKAY III, Judge.

text:
    Lisa S. KIRSCHMAN v. Arnold L. KIRSCHMAN.
    No. 2012-CA-0385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 28, 2012.

      Robert C. Lowe, Suzette Marie Smith, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JAMES F. McKAY III, Judge.

The appellant, David M. Prados, appeals the ruling of the trial court holding him in direct contempt of court and ordering him to pay sanctions in the form of a fíne in the amount of one hundred dollars ($100.00), to the Judicial Expense Fund. We find no error in the trial court’s ruling and imposition of sanctions upon Mr. Pra-dos and affirm the trial court’s ruling.

David M. Prados is counsel of record in a civil property partition suit and represents the plaintiff, Lisa S. Kirschman. The substance of this appeal is unrelated to the underlying matter. On August 17, 2010, during the course of oral argument, Mr. Prados was held in direct contempt of court. The judgment was signed on September 13, 2010. On December 20, 2010, the trial court denied Mr. Prados’s motion for new trial and reconsideration. The judgment was signed on January 5, 2011.

Contempt of court proceedings in civil cases are governed by La. C.C.P. art. 221, et seq., which define contempt as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” The Louisiana Code of Civil Procedure provides for two kinds of contempt, direct and constructive. Applicable to the instant matter, direct contempt of court is defined in La. C.C.P. art. 222 as:

A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.
Any of the following acts constitutes a direct contempt of court:
(1) Contumacious, insolent, or disorderly behavior toward the judge, or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court, or to impair its dignity or respect for its authority;
(2) Breach of the peace, boisterous conduct, or violent disturbance tending to interrupt or interfere with the business of the court, or to impair its dignity or respect for its authority;
(3) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a pleading, brief, or other document filed with the court in irrelevant criticism of another attorney or of a judge or officer of the court;
(4) Violation of a rule of the court adopted to maintain order and decorum in the court room;
(5) Contumacious failure to comply with a subpoena, proof of service of which appears of record, or refusal to take the oath or affirmation as a witness, or refusal of a witness to answer a non-incriminating question when ordered to do so by the court; and
(6) Contumacious failure to attend court to serve as a juror after being accepted as such, or to attend court as a member of a jury venire, when proof of service of the summons appears of record.

When deciding whether to hold someone in contempt, the trial court is vested with great discretion. City of Kenner v. Jumonville, 97-125, 97-210, 97-602 (La.App. 5 Cir. 8/27/97), 701 So.2d 223; Reeves v. Thompson, 95-0321 (La.App. 4 Cir. 12/11/96), 685 So.2d 575. The burden of proof in a civil contempt proceeding is by a preponderance of the evidence and appellate review is the manifestly erroneous standard. Talton v. USSA Casualty Ins. Co., 2006-1513, p. 16 (La.App. 4 Cir. 3/19/08), 981 So.2d 696, 713.

At the very beginning of the August 17, 2010 hearing, the trial court, clearly in an attempt to maintain decorum and in consideration of all of the parties’ prior intransigent behavior, laid out parameters. The trial court cautioned:

There will be no speaking above a normal tone. There will be no interrupting the person speaking, as this makes for a better record for you to take me up if you so desire. You will not address each other, only the Court. You will not engage in personal attacks on other counsel or the Court. You will conduct yourselves in a professional manner. You will not disrespect the Court.
Failure to follow these rules shall result in a direct contempt of court and sanctions. Any sanctions imposed shall not be levied against your client, but you personally.
So do you both understand the rules that we’re about to enter into before we start this hearing.

Mr. Prados asserts that the trial court abused its discretion in sanctioning him for contempt of court. He contends that his oral argument was not intended to disrupt the proceedings or impair the dignity of the court, and was not contemptuous of the trial court’s authority, disrespectful, disruptive, or in excess of the wide latitude permitted a lawyer in zealously representing his chent’s cause.

Based on the record,, it is apparent that Mr. Prados is attempting to direct this Court to a single incident that occurred during oral argument as the impetus for the trial court’s ruling. He implies that the opening ruling of the trial court was an exhaustive list of infractions that could lead to a finding of direct contempt. It is not. The trial court has the authority and duty to maintain proper decorum during the course of a trial for the proper administration of justice. The transcript of the August 17, 2010 hearing is rife with several incidents of disruptions and interruptions by various parties. The trial court observed Mr. Prados’s conduct and found him to be in contempt. Based on the record before us we find that the trial court had justifiable reason for holding him in contempt. Accordingly, we find no abuse of discretion in the trial court’s ruling.

Mr. Prados also maintains that the trial court failed to find him in direct contempt of court. We disagree with this assertion and find that this assertion is disingenuous at the very least. We cite directly from the transcript of the August 17, 2010 hearing:

Ms. Wilson: I have a question about that. Because when the court ordered that Mr. Prados make a payment, there was no finding that he was in direct contempt of court,
The Court: I did find him in direct contempt.
Ms. Wilson: Okay.
The Court: I did find him in direct contempt.

It is axiomatic that the trial court confirmed that Mr. Prados was in direct contempt of court. This argument is without merit.

Based on the above and foregoing reasons, we find that the trial court was neither manifestly erroneous nor clearly wrong in finding Mr. Prados in direct contempt of court and imposing sanctions. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Gabrielle L. DANIELS, Allariet S. Howard, and Maryta B. Hullaby, Plaintiffs-Appellees v. IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY, Defendant-Appellant.
    No. 47,572-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Richie, Richie & Oberle, Shreveport, LA, by Paul D. Oberle, Jr., Byron A. Richie, for Appellant.
    Mills, Turansky & Griffith, Shreveport, LA, by David C. Turansky, for Appellees.
    Before DREW, LOLLEY and HARRISON (Pro Tempore), JJ.
   LOLLEY, J.

Imperial Fire and Casualty Insurance Company (“Imperial”) appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, wherein the trial court ruled in favor of Gabrielle Daniels, Allariet Howard, and Maryta Hullaby (the “plaintiffs”). The plaintiffs have answered the appeal relative to the trial court’s denial of their claim for penalties and attorney’s fees. For the following reasons, we affirm the trial court’s judgment.

FACTS

On October 4, 2009, the plaintiffs were riding as passengers in a vehicle owned and operated by Andrea Williams when the vehicle was struck from behind by an unknown driver who fled the scene. The plaintiffs sustained injuries as a result of the accident. Williams had uninsured motorist coverage from Imperial with whom the plaintiffs filed a claim. Imperial denied coverage to the plaintiffs claiming they did not meet the definition of “insured persons” under the uninsured motorist (“UM”) portion of the policy.

The plaintiffs filed suit alleging their entitlement to coverage under Williams’ policy. First, Imperial filed a peremptory exception of nonjoinder of a party seeking to make Williams (the named insured) a party to the action. The trial court granted the peremptory exception; however, the exception was reversed by this Court following writ application by the plaintiffs. Next, Imperial filed a motion for summary judgment concerning the issue of coverage which the trial court denied. Both this Court and the Louisiana Supreme Court denied Imperial’s supervisory writ applications. The claim proceeded to trial, after which the trial court ruled in favor of the plaintiffs finding that they were entitled to coverage under Imperial’s policy, but were not entitled to penalties and attorney’s fees. This appeal by Imperial followed and the plaintiffs have answered the appeal.

DISCUSSION

The Supreme Court’s recent ruling in Bernard v. Ellis, 2011-2377 (La.07/02/12), 111 So.3d 995, determined the issue raised by Imperial of whether or not the plaintiffs in the present case are entitled to coverage under Imperial’s policy. The only remaining issue to decide is the one raised by the plaintiffs in their answer to Imperial’s appeal. As their sole assignment of error, the plaintiffs argue that the trial eourt erred by refusing to award them penalties and attorney’s fees. Specifically, the plaintiffs claim that the amendment to La. R.S. 22:1282, which took effect in July 2009, strips Imperial of any good faith argument for its refusal to pay. The plaintiffs claim penalties and attorney’s fee under La. R.S. 22:1892(A)(1), which requires an insurer to pay the amount of any claim due an insured within 30 days after receipt of satisfactory proof of loss and that failure to do so, if arbitrary, capricious, and without probable cause subjects the insurer to a penalty as well as attorney’s fees and costs. Additionally, plaintiffs argue that they are entitled to penalties and attorney’s fees pursuant to La. R.S. 22:1973, because Imperial failed to pay the amount due under the policy within 60 days after receipt of satisfactory proof of loss.

Appellate review of the decision to impose sanctions is under the manifest error/clearly wrong standard of review. Mor-Tem Risk Management Services, Inc. v. Shore, 43,169 (La.App.2d Cir.03/19/08), 978 So.2d 588.

An insurer owes its insured a duty of good faith and fair dealing. As such, an insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims. La. R.S. 22:1973(A). Both La. R.S. 22:1892(B)(1) and La. R.S. 22:1973(B)(5) and (C) provide for penalties against an insurer whose failure to pay a claim after receiving satisfactory proof of loss is found to be arbitrary, capricious, or without probable cause. Jones v. Johnson, 45,847 (La.App.2d Cir.12/15/10), 56 So.3d 1016. The primary difference between the two statutory provisions is the time periods allowed for payment. Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012. Upon receipt of satisfactory proof of loss, La. R.S. 22:1892 requires payment within 30 days, whereas R.S. 22:1973(B)(5) requires payment within 60 days. Both statutes are penal in nature and must be strictly construed. Id.; Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983).

When there are substantial, reasonable and legitimate questions as to the extent of an insurer’s liability or an insured’s loss, failure to pay within the statutory time period is not arbitrary, capricious, or without probable cause. Louisiana Bag Co., Inc. v. Audubon Indem. Co., 2008-0453 (La.12/02/08), 999 So.2d 1104.

Here, Imperial was not arbitrary, capricious, or without probable cause in failing to pay the plaintiffs’ claim. At the time during which payment would have become due, there existed inconsistent treatment between the Louisiana appeal courts concerning the enforceability of Imperial’s UM policy language. The Supreme Court settled that issue by its decision in Bernard, supra, where it held that permissive passengers of a vehicle are liability insureds and, therefore, statutorily entitled to UM coverage under Imperial’s policy. See La. R.S. 22:1295. Thus, there existed a substantial legal question on the issue and a legitimate reason for Imperial’s denial of the claim.

Additionally, plaintiffs’ assertion that the amended version of La. R.S. 22:1282 strips Imperial of any good faith argument for its failure to extend UM coverage to the plaintiffs is. unfounded. The amendment to La. R.S. 22:1282 took effect after the accident in the Bernard case, but three months before the accident in the present case. Therefore, the Bernard Court did not consider the amended version of La. R.S. 22:1282 in its analysis. Louisiana R.S. 22:1282, which addresses prohibited insurance policy provisions, states in pertinent part:

No motor vehicle liability insurance policy nor any uninsured motorist coverage for bodily injury shall limit the coverage of, or the amount that can be recovered by, the named insured, or the spouse or other family member of the named insured, or express or implied permissive users, for whom the policy provides coverage, to any amount less than the highest policy limit provided in the policy for the respective coverage or potential recovery. (Emphasis added).

The amendment to La. R.S. 22:1282 added the words “or express or implied permissive users.” However, the immediately following language “for whom the policy provides coverage” raised an issue as to whether the plaintiffs under Imperial’s policy would indeed be covered considering Imperial’s policy language specifically narrowing the class of insureds. Had the Supreme Court held that the plaintiffs, as passengers, were not users of the vehicle, then arguably the language of La. R.S. 22:1282 would not have applied, because the plaintiffs would not have been statutorily or contractually entitled to coverage. Therefore, the trial court was not manifestly erroneous in refusing to grant the plaintiffs penalties and attorney’s fees, and the plaintiffs assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Imperial Fire and Casualty Insurance Company. The costs of this appeal are to be paid by Gabrielle Daniels, Allariet Howard, and Maryta Hullaby.

AFFIRMED.

      . At arguments on the matter, Imperial stated that in light of the Bernard decision it had abandoned its argument concerning whether its policy extended UM coverage to the plaintiffs.


author: DANIEL L. DYSART, Judge.

text:
    Doretha Z. WALKER, et al. v. AMID/METRO PARTNERSHIP, LLC, et al.
    No. 2012-CA-0285.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Joel R. Waltzer, Clay J. Garside, Waltzer & Associates, Harvey, LA, Robert B. Wiygul, Ocean Springs, MS, for Plaintiffs/Appellees.
    Patricia A. Krebs, Megan C. Misko, King, Krebs & Jurgens, P.L.L.C., Louis C. LaCour, Jr., Scott E. Delacroix, Christopher J. Kane, Adams and Reese, L.L.P., N. Sundiata Haley, Steven Jupiter, Haley & McKee, L.L.C., Pascal F. Calogero, Jr., Ajubita, Leftwich & Salzer, LLC, Edward Joseph Koehl, Jr., William P. Wynne, Jones Walker Waechter Poitevent Carrere & Denegre, LLP, Sharonda R. Williams, Chief of Litigation, Matthew J. Lindsay, Assistant City Attorney, New Orleans, LA, Patricia S. LeBlanc, Carl A. Butler, Michael L. Fantaci, Deborah A. Villio, Le-Blanc Butler, LLC, Metairie, LA, for Defendants/Appellants.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

Plaintiffs are representatives of a proposed class of persons who filed suit on November 14, 2007, against defendants AMID/Metro Partnership, LLC, the City of New Orleans, Metro Disposal, Inc., AMID Landfill, LLC, Durr Heavy Construction, LLC, Metroplex-Core, Inc., the Gray Insurance Company, and MWH Americas, Inc. (hereinafter referred to collectively as “the City and private defendants.”) Plaintiffs are persons and/or entities who own property in the Almonaster Michoud Business and Industrial District (“AMID”). The land in question is comr prised of city lots in four undeveloped, unimproved subdivisions which exist on paper only. These lots are separated from Almonaster Boulevard by approximately 1000 feet of vegetation and marsh. Evidence of ownership exists on the tax records for Orleans Parish.

Plaintiffs filed a motion to have the class certified and to appoint counsel. The subject of this appeal is the judgment granting the class certification. For the following reasons, we amend the class certification and affirm the judgment of the trial court as amended.

Additionally, the private defendants filed an Exception of Prescription in this Court. After review, we deny the exception.

FACTUAL BACKGROUND:

The landfill made the basis of this lawsuit is located in the eastern part of New Orleans, and is commonly referred to as the Old Gentilly Landfill. The tract of land is approximately 200 acres, and has been operated as a landfill by the City of New Orleans (“the City”) since 1964. Originally, the waste dumped at the landfill was comprised mostly of municipal garbage. Plaintiffs allege that this dump was never properly permitted and had no clear boundaries.

In 2002, the City and private defendants submitted a permit application to the Louisiana Department of Environmental Quality (“the LDEQ”) to begin operating the landfill as a Type III landfill, allowing the dumping of construction/demolition debris and wood waste, commonly referred to in the industry as C & D waste. According to defendants, the LDEQ published public notices inviting public comment on the issuance of the permit. It received no requests for public hearing and subsequently issued the permit on December 28, 2004. The Old Gentilly Landfill was scheduled to begin receiving C & D waste in September of 2005. Plaintiffs allege that the “new” landfill was situated on a clay cap that was placed on top of the old landfill. They assert that originally a small portion of the landfill site was owned by the City, but as the landfill grew with debris, the majority of the landfill site was property owned by plaintiffs.

On August 29, 2005, Hurricane Katrina struck the greater New Orleans area. The LDEQ reported to the federal government that 62 million cubic yards of debris, millions of drums and containers of unknown origin and content, 350,000 flooded and/or abandoned vehicles, over 60,000 flooded, damaged and/or abandoned vessels (presumably maritime vessels), over one million units of white goods, over 956,-000 units of electric goods, and 140,000 to 160,000 flooded homes, were left in the wake of the hurricane and subsequent flooding. The Old Gentilly Landfill began receiving Hurricane Katrina debris in October 2005.

Plaintiffs admit that periodic dumping took place on their property over the years, but also maintain that they continued to be billed for and to pay taxes on the property. Plaintiffs became aware of the C & D dumping after Hurricane Katrina.

Plaintiffs allege that the City and private defendants took control of their property in September 2005, and began dumping “massive amounts” of debris without notifying or seeking permission from the property owners or providing compensation for the use of their land.

The plaintiffs seek due process and full compensation by alleging claims for inverse condemnation, trespass, negligence and, reimbursement of products consumed.

The trial court originally defined the class as follows:

All individuals and entities who presently own, or in the period January 1, 2005 to the present have owned, an interest in immovable property of which all or any portion falls within the boundaries of the Gentilly Type |4III Landfill, permitted under Standard Permit No. P0375.
Excluded from the class are: All defendants and any entities owned or controlled by any defendant.

The defendants moved for a new trial or reconsideration of the class certification definition, arguing that the definition of the class must be expanded because the trial court found that at least some kind of taking associated with dumping near the Gentilly site had occurred beginning in 1966. The trial court granted the motion and redefined the class as follows:

All individuals or entities who presently own, or in the period of January 1, 1966 to the present, have owned an interest in immovable property of which all or any portion falls within the boundaries of the Gentilly Type III Landfill, permitted under Standard Permit Number P0375.

Initially, the private defendants argue that plaintiffs’ claims have prescribed. They have filed an Exception of Prescription in this Court. As to the merits of the case, the City and private defendants appeal the certification arguing that individual issues affecting ownership rights preclude certification. The City also argues that it has always maintained exclusive possession, control, management and operation of the Old Gentilly Landfill since 1964.

EXCEPTION OF PRESCRIPTION:

The private defendants have filed a Peremptory Exception of Prescription in this Court. They argue that plaintiffs’ claims are barred by La. R.S. 13:5111, three-year liberative prescription, or, alternatively, thirty-year acquisitive prescription.

A. Standard of Review:

The effect of maintaining a peremptory exception is to dismiss the action. La.Code Civ. Proc. art. 923. The exception of prescription may be raised at any point in the proceeding, including on appeal, prior to a final judgment. La.Code Civ. Proc. art. 2163; Cameron v. Delta Plumbing, 07-0672 (La.App. 4 Cir. 2/13/08), 976 So.2d 343, 346. The party raising the exception bears the burden of proof; however, when prescription is evident on the face of the pleadings, the plaintiff bears the burden of proving that the case has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992).

The private defendants argue that because the trial court made the factual finding that the City’s use of the landfill amounted to a taking for a necessary, public use by at least 1966, these factual findings preclude plaintiffs from seeking compensation because more than three years have elapsed since the taking.

Louisiana Revised Statute 13:5111 provides, in part:

In a proceeding brought against the State of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding ... actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.

The commencement of the prescriptive period occurs when the alleged land owner acquires constructive knowledge of the taking. See Jungeblut v. City of Kenner, 485 So.2d 974 (La.App. 5 Cir.1986), citing Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (La.1970). Defendants repeatedly point out that “everyone” had knowledge of the Old Gentilly Landfill as far back as 1966. Plaintiffs assert that persons may have been aware of the existence of a landfill, but had no knowledge of the actual footprint of the landfill. Plaintiffs explain that over the years the original footprint of the Old Gentilly Landfill grew as the amount of debris dumped increased, eventually spilling over onto the land owned by plaintiffs.

In 1982, the LDEQ issued an administrative order requiring the cessation of dumping at this site. Despite the order, the City continued to dump until 1986. Plaintiffs concede that no dumping occurred between 1986 and 2005. As part of the administrative order, the City was required to cap the previously dumped on areas, and began to do so in 1986.

Plaintiffs argue that despite being aware that it was seeking to obtain a permit to operate a Type III landfill on property it did not own, the City pushed forward with its plans, contracting with the private defendants to build and administer the project.

At the hearing of defendants’ motion for summary judgment raising the issue of prescription, the trial court considered that the plaintiffs had been and continued to be taxed as owners of a portion of the property occupied by the landfill. The trial court further noted that the so-called public notices which were sent out in connection with the LDEQ permit gave the address of the project as 10200 Almonaster Boulevard, the address of the City auto pound.

Plaintiffs submitted into evidence numerous letters, notes, memoranda, and other lists and writings which indicate that the City claimed ownership to only a small portion of the landfill’s footprint.

Plaintiffs also argue that regardless of what they may have known about the existence of a landfill in the area of their property prior to 2005, the landfill which forms the basis of this lawsuit is the area permitted in 2004 by LDEQ to receive C & D debris, and which began receiving debris in 2005 following Hurricane Katrina.

Based on the record evidence, we find that the plaintiffs continued to own and pay taxes on their individual parcels of property. There is no evidence that plaintiffs had constructive knowledge of dumping on their property prior to 2005. Accordingly, we deny the exception of prescription based on three-year liberative prescription.

The private defendants also argue that the City has openly and continuously possessed the property in question since the 1960’s. Therefore, the City has acquired ownership of the property by either adverse possession of ten years or thirty years without the need of just title or good faith. The defendants urge this Court to overturn a Supreme Court case, Parish of Jefferson v. Bonnabel Properties, Inc., 620 So.2d 1168 (La.1993), because “[s]imply put, the 4-3 majority in Bonnabel Properties was wrong.”

The Bonnabel Properties case involved the interpretation of Article VI, § 23 of the Louisiana Constitution, which grants authority to political subdivisions to acquire property. The provision states: “Subject to and not inconsistent with this constitution and subject to restrictions provided by general law, political subdivisions may acquire property for any public purpose by purchase, donation, expropriation, exchange, or otherwise.” The Louisiana Supreme Court held that the framers of the Louisiana constitution did not intend to allow political subdivisions to acquire full ownership of property through acquisitive prescription, when the words “or otherwise” were included in Article VI, § 23, of the constitution. We are bound to follow the holding in Bonnabel Properties as it is still good law.

Accordingly, we deny the exception of prescription.

CLASS CERTIFICATION:

A thorough description of the land in question is contained in the factual background section infra. The plaintiffs are persons who acquired land near the landfill, which land was incorporated over time into the footprint of the landfill as debris was dumped outside the original parameters of the City’s property. These parcels of land were acquired in various ways such as by succession, tax sale or purchase from previous owners.

The City and private defendants argue that plaintiffs are not entitled to class certification because their claims do not meet the requirements for class certification as recently clarified in Price v. Martin, 11-0853 (La.12/6/11), 79 So.3d 960.

In Price, the Louisiana Supreme Court re-iterated the standards for analyzing class action certification set forth in La.Code Civ. Proc. art. 591, et seq. The Court explained that a class action is a nontraditional litigation procedure that permits a representative with typical claims to sue a defendant on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court. Id., 11-0853, p. 6, 79 So.3d at 966, citing Dupree v. Lafayette Ins. Co., 09-2602 (La.11/30/10), 51 So.3d 673. The purpose and intent of the class action is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but also to all others “similarly situated.” Id.

Because the class action is an exception to the rule that litigation be conducted by and on behalf of the individual named parties only, the determination of whether a class action meets the requirements imposed by law requires a “rigorous analysis.” Id.

Parties seeking class certification must affirmatively demonstrate compliance with the rule, i.e., be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. Price, 11-0853, p. 7, 79 So.3d 960, citing Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011). Errors in deciding class actions should be in favor of and not against 110the maintenance of the class action, because alterations, modifications and even decertification can occur as the case develops. La. Civ.Code art. 592 A(3)(c). However, this general rule should not be substituted for the rigorous analysis required to determine whether the prerequisites of Louisiana’s class action provisions have in fact been satisfied. Price, 11-0853, p. 7, 79 So.3d at 967; also see McCastle v. Rollins Envtl. Serv., 456 So.2d 612, 616 (La.1984).

A reviewing court examines the trial court’s factual findings using the manifest error standard of review. The determination of whether to certify the class is reviewed under the abuse of discretion standard. Brooks v. Union Pacific Railroad Co., 08-2035 (La.5/22/09), 13 So.3d 546, 554. A de novo review is made to determine if the trial court applied the correct legal standard in determining whether to certify the class.

The .five threshold requirements that must be met for class certification are:

One or more members of the class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

La.Code Civ. Proc. art. 591 A.

Additionally, La.Code Civ. Proc. art. 591 B lists requirements that must be met by plaintiffs to qualify as a class action:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications that would establish incompatible standards of conduct for the party opposing the class; or
(b) Adjudications with respect to individual members of the class would, as a practical matter, be dispositive of the interests of other class members not parties to those adjudications or would substantially impair/impede their ability to protect those interests; or
(2) The party opposing the class has acted or refused to act on ground generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(8) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class is superior to other methods for the fair and efficient adjudication of the controversy.

Defendants argue that each plaintiffs claim varies from one owner to the next, the legal remedies vary from one owner to the next, and the defenses to each plaintiffs claim will vary from one owner to the next, making it impossible to lump these claims together as a class action. They claim that the district court erred in certifying the class because the plaintiffs did not and cannot demonstrate commonality, predominance, superiority, typicality or adequacy.

In its reasons for judgment, the district court found that all of the requirements of La.Code Civ. Proc. art. 591 A were met, as well as the requirements of predominance and superiority found at La.Code Civ. Proc. art. 591 B(3). The district court specifically found:

1) There are a hundred [sic] individual lots within the clearly defined footprint of the Gentilly Type III landfill;
(2) Approximately 160 separate individuals or entities receive real estate tax bills for these parcels. The proposed class members share common issues of fact relating to the use of their property as a landfill and the purported knowledge and culpability of all the defendants;
(3)The proposed class representatives have the same claims, with the same operative facts, as the other class members. Proposed class representatives are a cross section of potential class members and are typical. In particular, each of the proposed representatives demonstrated an ownership interest in a parcel or parcels in the footprint of the Type III Landfill.
(4) Common issues far outweigh issues relating to proof of ownership, and a class action is clearly the most efficient and equitable method of proceeding in this matter.

The district court went through each factor to be considered as set forth in La.Code Civ. Proc. art. 591, and applied its factual findings. As to numerosity, the court found that approximately 160 persons or entities which received tax bills from the City owned parcels lying within the footprint of the landfill. The court explained that although there are some multiple interest owners who cannot be readily identified, that fact supported a class action, rather than defeated it as the defendants argued. The defendants argued that the Orleans Parish tax rolls were inadequate proof of actual ownership, and that the purported class members would not be able to prove merchantable title. However, the district court distinguished ownership interest from merchantable title, and explained by way of example, “the class may contain persons who acquired their ownership interest from a deceased parent, but did not open a succession, and thus, have no merchantable title.” Those persons do, however, have an ownership interest.

We find that the plaintiffs have demonstrated a group of aggrieved claimants with verifiable ownership interests in the parcels within the footprint of the landfill. Accordingly, we find that the numerosity factor is satisfied.

As to commonality, La.Code Civ. Proc. art. 591 A(2) requires that a party seeking class certification show that “[t]here are questions of law or fact common to the class.” Any competently crafted petition literally raises common questions. Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). “The mere existence of common questions, however, will not satisfy the commonality requirement.” Price, 11-0853, p. 10, 79 So.3d at 969. “Commonality requires a party seeking certification to demonstrate the class members’ claims depend on a common contention, and that common contention must be one capable of class-wide resolution — one where the ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Id., citing Wal-Mart Stores, Inc., 131 S.Ct. at 2551. The commonality factor requires the existence of a common nucleus of operative facts within the totality of the issues. Dupree v. Lafayette Ins. Co., 09-2602, p. 11 (La.11/30/10), 51 So.3d 673, 682-83.

The trial court determined that there are numerous common questions of law and fact, including:

1) Defendants’ conduct in establishing a landfill on the putative class members’ property.
2) Each of the private defendants is alleged to have participated in a joint venture in the permitting and/or operating of the Gentilly Type III landfill. All defendants are alleged to have known the property was privately owned or to be negligent in that they failed to ascertain the ownership of the property at issue before permitting and participating in dumping on the class members’ property. All defendants are alleged to have taken actions resulting in trespass on the class members’ properties.
3) The intent of each defendant is common to all plaintiffs and informs the selection of remedies. With respect to each defendant and its respective knowledge and intent, proof as to one class member will be proof as to all class members, because all class members’ property was incorporated into the landfill, fenced off and access controlled by 2007 when the area was enclosed by a barbed wire security fencing.
4) Key factual and legal proof will be the same as to all defendants. Such proof will include the public record of the Old Gentilly Dump closure and the proof of plaintiffs’ ownership as reflected in the public records of Orleans Parish.

The trial court determined that individual defenses such as knowledge, proof of ownership, and constructive notice are conjectural and would not defeat certification where the defendants’ breach of a legal duty is common to every member of the class.

Typicality or adequacy of representation requires that the claims of the class representatives be a cross-section of the claims of all class members. La.Code Civ. Proe. art. 591 A(4); Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 5 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129.

The trial court examined the maps provided by the defendants’ expert and located the property owned by the proposed class representatives within that footprint of the landfill. The map with the survey overlay also depicted hundreds of individual parcels within the same footprint. The trial court recognized that although the class members may have acquired their parcels by different methods, the claims of all arise from the same course of conduct by the defendants. Ultimately, the trial court found that the alleged uncompensated taking of immovable property in which each class member has an ownership interest satisfied the typicality requirement.

This same finding satisfies the superiority and predominance of common issues factor. La.Code Civ. Proc. art. 591 B(S). When a common character of rights exists, a class action is superior to other available adjudicatory methods for promoting the basic goals of a procedural device: 1) implementing the substantive law at issue in the case; 2) providing judicial efficiency in carrying out the substantive law; and 3) insuring individual fairness to all parties involved. Oubre v. Louisiana Citizens Fair Plan, 07-66, p. 13 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 512.

The trial court found that the proposed class representatives identified the predominant legal and factual questions as those surrounding the defendants’ joint efforts to permit a landfill on privately owned property, controlling access to the property with levees, fences and gates, and dumping hurricane refuse without either compensation or permission. The trial court further found that no member of the class had an overriding interest in controlling the means of presentation of proof of the claims. Lastly, the trial court found that the high costs of individual suits would make prosecution of these claims economically unfeasible.

Considering the well-founded reasons expressed by the trial court, we cannot say that it abused its discretion in certifying the class in this matter. However, we find that the trial court manifestly erred in expanding the definition of the class to include entities who owned property from January 1, 1966. The plaintiffs have asserted that the landfill which forms the basis of this lawsuit is the area permitted in 2004 by LDEQ to receive C & D debris, and which began receiving debris in 2005 following Hurricane Katrina. Therefore, we amend the judgment to define the class as:

All individuals and entities who presently own, or in the period January 1, 2005 to the present have owned, an interest in immovable property of which all or any portion falls within the boundaries of the Gentilly Type III Landfill, permitted under Standard Permit No. P0375.

Accordingly, we affirm the judgment of the trial court as amended.

AFFIRMED AS AMENDED; EXCEPTION OF PRESCRIPTION DENIED

      . Quoting the private defendants’ Reply Memorandum to Plaintiff's Opposition to Movers’ Peremptory Exception of Prescription.

      . See La. Civ.Code art. 531; La.Code Civ. Proc. art. 3653.


author: SUSAN M. CHEHARDY, Judge.

text:
    Kim Wheat WELLS v. Jesse James WELLS, Jr.
    No. 12-CA-315.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.

      Michael C. Darnell, Edwin R. Murray, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee, Kim Wheat Wells.
    Robert R. Faucheux, Jr., Attorney at Law, LaPlace, LA, for Defendant/Appellant, Jesse James Wells, Jr.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Judge.

This appeal arises in a proceeding to partition marital property. Jesse James Wells, Jr. appeals the award reimbursing his former wife, Kim Wheat Wells, for one-half of payments she made on the mortgage of the marital residence while partition of the couple’s property was pending. We affirm, for the reasons that follow.

FACTS

The parties were married on June 25, 1994. On June 24, 1994, the day before their wedding, they executed a matrimonial agreement that established a separate property regime. On November 30, 1994, the parties purchased a house and lot located at 1315 English Colony Drive in LaPlace, Louisiana, as undivided co-owners, subject to a mortgage. The house was their matrimonial domicile until March 16, 2007, when they separated.

Mr. Wells left the domicile, while Ms. Wells continued to live there until January 11, 2011. During that time (46 months), Ms. Wells paid the monthly mortgage note of $866.00, which included taxes and insurance, with her own funds.

The parties were divorced on March 18, 2008. The judgment of divorce expressly provided that Ms. Wells was granted use and occupancy of the family residence pending partition. There was no provision for her to pay Mr. Wells rent for his share of the property.

On May 8, 2008, Mr. Wells filed a petition for partition of community property. The parties each filed a sworn detailed descriptive list. Mr. Wells later filed an amended petition for partition of partnership property, referring to the prenuptial matrimonial agreement establishing a separation of property regime, which had been overlooked in his initial petition for partition.

A hearing was held on March 3, 2011, at which the sole issue presented to the trial court was the amount of reimbursement owed to Ms. Wells for the mortgage payments she had made while living in the former matrimonial domicile after the couple’s separation. All other issues of property division had been previously resolved. Ms. Wells established she had paid $866.00 per month over the course of 46 months.

On June 14, 2011, the district court rendered judgment awarding Kim Wells the sum of $3,918.32, which the court calculated was one-half the amount by which the mortgage payments made on the residence from March 16, 2007 to January 11, 2011 reduced the principal debt, plus taxes, insurance, and interest on the mortgage. The court ruled that Jesse Wells is not entitled to offset rental payments against the amount he owes Kim Wells, because there was no order or agreement by the parties concerning rental payments. The judgment was couched in terms of partition of community property rather than the parties’ separate property regime.

Mr. Wells has appealed.

ASSIGNMENT OF ERROR

Mr. Wells asserts the trial court erred in finding that Ms. Wells is entitled to reimbursement in the amount of $8,918.92 for the period March 16, 2007 and January 11, 2011.

LAW AND ANALYSIS

Mr. Wells contends the trial court erred because Ms. Wells is entitled only to reimbursement for the amount by which her mortgage payments reduced the principal debt, not the amounts paid for taxes, insurance, and interest. He argues that in determining the amount of reimbursement, the trial court erroneously relied on two cases, Roger v. Roger, 99-765 (La.App. 5 Cir. 1/12/00), 751 So.2d 354, writ denied, 759 So.2d 73 (La.3/31/00), and Roque v. Tate, 93-389 (La.App. 5 Cir. 2/9/94), 631 So.2d 1385, writ not considered, 94-0625 (La.4/29/94), 637 So.2d 457.

Instead, Mr. Wells cites cases holding that payments on ancillary items such as insurance, taxes, or maintenance of the house are not allowable reimbursements because those items accomplish nothing other than payment, in part, for use of the property. Halverson v. Halverson, 589 So.2d 1153 (La.App. 5 Cir.1991), writ denied, 600 So.2d 655 (La.1992), citing Lowe v. Lowe, 463 So.2d 755 (La.App. 5 Cir.1985); Cookmeyer v. Cookmeyer, 354 So.2d 686 (La.App. 4 Cir.1978). Mr. Wells contends the trial court should have applied La. C.C. art. 2365 in calculating the amount of the reimbursement.

In response, Ms. Wells asserts the trial court was correct in awarding her reimbursement for the mortgage payments, taxes, insurance, and interest expended for the 46 months of payments she made with her separate funds. She contends that the cases on which Mr. Wells relies are distinguishable on the facts, because those cases involved payments derived from child support orders. In her appellate brief, Ms. Wells also requests remand of this case to the trial court for correction of mathematical calculations in the amount awarded to her.

Neither party refers to the separate property regime established by their matrimonial agreement.

The trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. Dublan v. Dublan, 06-296, p. 6 (La.App. 5 Cir. 11/28/06), 947 So.2d 759, 762. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Id. This Court will not disturb a trial court’s finding of fact in the absence of manifest error. Id. See also, Sherrod v. Sherrod, 97-907 (La.App. 5 Cir. 3/25/98), 709 So.2d 352, writ denied, 98-1121 (La.6/5/98), 720 So.2d 687; Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99.

La. C.C. art. 2365 provides, in pertinent part, as follows:

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.
The liability of a spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations. Nevertheless, if the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, or education of children of either spouse in keeping with the economic condition of the spouses, the spouse is entitled to reimbursement from the other spouse regardless of the value of that spouse’s share of all community property.

The pertinent Civil Code articles on separation of property provide that “[u]nder the regime of separation of property each spouse acting alone uses, enjoys, and disposes of his property without the consent or concurrence of the other spouse.” La. C.C. art. 2871. “A spouse is solidarity liable with the other spouse who incurs an obligation for necessaries for himself or the family.” La. C.C. art. 2372. “Each spouse contributes to the expenses of the marriage as provided in the matrimonial agreement. In the absence of such a provision, each spouse contributes in proportion to his means.” La. C.C. art. 2373.

In this case, Ms. Wells used her separate funds to pay the monthly mortgage payments from March 16, 2007 to January 11, 2011. The trial court found that Ms. Wells paid a total of $7,837.84, which included taxes and insurance, and found she was entitled to interest. The court then divided that amount in half to reach the amount of $3,918.32, for which Mr. Wells was cast in judgment.

Although the trial court erroneously couched the judgment in terms of community property rather than division of separate property, under the facts of this case his basic ruling is correct. Ms. Wells is entitled to recover from Mr. Wells one-half of what she paid on the mortgage, and other expenses incidental to the ownership of the house, during the applicable time period. Co-owners are presumed to acquire in equal portions. La. R.S. 9:2729. Therefore, we find no manifest error in the basic ruling.

The court’s calculations were wrong, however, in that the court calculated the amount by which the principal on the mortgage had been reduced by Ms. Wells’ payments. That did not account for the full amount she expended for principal, interest, insurance and taxes. We are unable to adjust the amount, however, for the following reasons.

In her appellate brief, Ms. Wells points out that the trial court erred in its calculations. The total amount of her payments over the 46-month period was $39,836.00; half of that sum is $19,918.00. Accordingly, Ms. Wells asks this Court to remand the case to the trial court for re-calculation of the amount due from Mr. Wells.

Ms. Wells, however, neither appealed nor answered the appeal. Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La. C.C.P. art. 2082. Where another party has already appealed, a non-appealing party who desires a change in the judgment can file an answer to the appeal:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.

La. C.C.P. art. 2133(A).

Because Ms. Wells failed to appeal or answer the appeal, the judgment cannot be modified in her favor. Accordingly, the judgment will stand as is.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of the appeal are assessed against the appellant.

AFFIRMED

      . We note the record contains a judgment rendered after the order of appeal on this judgment. That last judgment, dated January 3, 2012, recognizes the parties’ separate property regime and acknowledged that the parties "hold the immovable as co-owners in division [sic].” The judgment held that each party owns a one-half interest in the property, and left the issue of possession to the parties at a later date. That judgment is not part of this appeal.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Kimela Lemieux HALL, Bennie Lemieux and Jerry Hall, Jr.
    No. 12-CA-343.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.

      Harry J. Morel, Jr., District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for PlaintiffiAppel-lant.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

The State of Louisiana appeals from a judgment in favor of defendant, Jerry Hall, Jr., ordering the return of property which had been seized pursuant to LSA-R.S. 40:2601. For the reasons that follow, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

Detective Michael Wright testified at trial that he was involved in a prescription monitoring program with the St. John Parish Sheriffs Office. During the course of his investigation in that department, arrest warrants were obtained for Kimela Lem-ieux Hall and her son, Bennie Lemieux. A search warrant was also obtained for the residence that Mrs. Hall shared with her husband, Jerry Hall, Jr.

When the search warrant was executed, Mr. and Mrs. Hall were present at the residence. The officer found numerous prescription narcotics, as well as two firearms and ammunition. Both Mr. and Mrs. Hall were arrested.

Bennie Lemieux was summoned to the residence by a family member. When he arrived, he was driving a 1998 green Dodge truck, registered to Mr. Hall. Lemieux was arrested in front of the residence. A search of the truck uncovered a large quantity of prescription drugs. Five of the prescriptions used to obtain the drugs were fraudulent.

After his arrest, Lemieux made a statement to the police in which he admitted that he used the truck to drive to different pharmacies to obtain the drugs. He further stated that he had a deal with Mr. Hall to purchase the truck for $2,500.00, and that he had made two payments of $150.00 each toward the purchase.

Lemieux was subsequently convicted on charges stemming from doctor shopping and prescription fraud. Mrs. Hall was also convicted on one count. The charges against Mr. Hall were dismissed.

On November 7, 2011, the state filed an application for warrant of seizure for forfeiture, requesting seizure of the truck, the firearms and ammunition, and the narcotics. On October 12, 2011, the state filed its petition for forfeiture of these same items. Mr. Hall responded in proper person, alleging that the truck and his guns were not subject to seizure.

At the hearing of this matter, Detective Wright testified as to the issuance of the warrants and the arrests, as set forth above.

Mrs. Hall testified that Lemieux had been in possession of the truck for two days under an agreement that he would purchase the truck. Lemieux had advanced $200.00, plus an additional $50.00 for title transfer fees, once the truck had been paid for. Lemieux was unable to get the rest of the money to purchase the truck, and so Mr. and Mrs. Hall told him to return the truck by the weekend. Mrs. Hall further testified that she did not know that Lemieux had illegal prescriptions in the truck prior to his arrest.

In his affidavit in response to the petition for seizure, Mr. Hall averred that he alone is the registered owner of the truck, and that he had no knowledge that his vehicle was being used in the commission of a crime.

On March 21, 2012, the trial court rendered judgment in favor of the defendants, ordering the state to return to Mr. Hall the truck and the firearms and ammunition. The state appeals from the trial court’s ruling insofar as it orders the return of the truck to Mr. Hall.

ANALYSIS

Civil forfeiture is the process by which governments seize property without compensation to its owner, based on its connection with a crime. State v. Birdwell, 47,126 (La.App. 2 Cir. 5/16/12), 92 So.2d 1107, 1111. The 1996 truck was seized pursuant to the Seizure and Controlled Dangerous Substances Act, LSA-R.S. 40:2601, et seq. which allows forfeiture of property used to facilitate the commission of a drug-related offense. LSA-R.S. 40:2604. However, property is exempt from seizure if its owner was not legally accountable for the conduct giving rise to its forfeiture and did not know or could not have known of the conduct or that it was likely to occur. LSA-R.S. 40:2605.

At a forfeiture hearing, the state must prove, by a preponderance of the evidence, that there is a relationship of the property to be forfeited to the conduct that gives rise to the forfeiture. State v. Bell, 10-583 (La.App. 1 Cir. 10/29/10), 48 So.3d 1253; State v. Property Located at # 70 Oakland Street, 98-929 (La.App. 5 Cir. 1/26/99), 727 So.2d 1240, 1244. If the state meets this burden, the defendant must show by a preponderance of the evidence that his not subject to forfeiture. State v. Isaac, 31,277 (La.App. 3 Cir. 12/9/98), 722 So.2d 353, 354.

In this appeal, the state argues that the trial court erred in finding that the state failed to establish sufficient evidence to justify the forfeiture of the truck, and in ordering that the truck be returned to Mr. Hall. The state contends that the evidence proved that Mr. Hall had sold the truck to Lemieux. The state contends the fact that Lemieux had advanced money to Mr. Hall and proved that Lemieux had an ownership interest in the truck at the time of his arrest. The contraband was found in the truck, and Lemieux was later convicted of drug offenses stemming from this arrest.

Mr. Hall did not file a brief in this appeal. However, at the hearing he argued, through his wife, that while he and Lemieux discussed a possible sale of the truck and accepted money in anticipation of the sale, the sale never happened and he retained ownership of the truck.

In its judgment, the trial court found that Mr. Hall was the owner of the truck, and that he had no knowledge that the truck was being used to facilitate any illegal drug activity by Lemieux. The court further found that the evidence was insufficient to prove that Lemieux used the truck when he obtained the prescriptions for physicians, or had them filled at the pharmacies, since the truck had been in Lemieux’s possession for only a short time.

In civil forfeiture proceedings, as in other civil matters, the trial court’s findings of fact are subject to the manifest error/clearly wrong standard of appellate review. State v. Birdwell, supra at 1112. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. S.J. v. Lafayette Parish School Bd., 2009-2195 (La.7/6/10), 41 So.3d 1119, 1128. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/01/2011), 65 So.3d 1218, 1231. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. S.J., supra at 1128.

The trial court’s finding, that the ownership of the truck remained with Mr. Hall, and that Mr. Hall was unaware that the truck was being used to facilitate any illegal drug activity, was reasonable given the evidence presented in this case. We cannot say that the trial court was manifestly erroneous or clearly wrong in its finding that Mr. Hall’s truck was not subject to forfeiture.

CONCLUSION

The trial court’s judgment dismissing the state’s claims and ordering the State of Louisiana and the Sheriff of St. Charles Parish to return to Jerry Hall, Jr. the 1998 Dodge truck, green in color, bearing License No. X068359, VIN 3B7HF13Y7WG192336 is affirmed. Costs are assessed against the plaintiff, State of Louisiana.

AFFIRMED

      . While the state asserts that arrest warrants were obtained for all three defendants, Det. Wright in his testimony stated that when the search warrant was executed, only one of the suspects for which they had an arrest warrant, Kimela Hall, was on the scene. The other suspect was Bennie Lemieux, who arrived after the search warrant was executed and while the officers were conducting surveillance on the location.

      . Mrs. Hall testified that she was convicted on one count because "I didn't disclose in writing from my primary to my surgeon that did my, my surgery on my hands, so my prescription did overlap, and they said I didn’t disclose it in writing."


text:
    Ronald M. RUIZ, Jr. v. CITY OF NEW ORLEANS and CCMSI.
    No. 12-CA-405.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.

      Raymond C. Burkart, III, Amanda A. Trosclair, Attorneys at Law, Covington, LA, for Appellant, Ronald M. Ruiz, Jr.
    Craig B. Mitchell, Michael S. Rodriguez, Attorneys at Law, New Orleans, LA, for Appellee, City of New Orleans.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

On appeal, the claimant challenges the workers’ compensation judge’s finding that his injuries did not occur in the course of his employment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ronald M. Ruiz, Jr. (hereinafter “Appellant”) was employed as a police sergeant by the New Orleans Police Department (“NOPD”). In the beginning of December 2010, appellant was assigned to administrative duty with the NOPD Communications Division, which is located at the comer of City Park Avenue and Canal Boulevard. While he was assigned to the Communications Division, appellant carried his service revolver and police commission, but dressed in plain clothes and drove his personal vehicle.

On December 20, 2010, appellant, with his supervisor’s permission, drove to NOPD Headquarters at 715 South Broad Street in New Orleans to withdraw cash from his credit union. When appellant was leaving the credit union, he fell in the rear stairwell of NOPD Headquarters. As a result of his fall, he suffered injuries to his back, neck, head, and left leg.

His employer, the City of New Orleans, refused to pay workers’ compensation benefits. On January 10, 2011, appellant filed a disputed claim for compensation with the Office of Workers’ Compensation, seeking payment of wage benefits and medical bills. The City of New Orleans answered, denying that appellant was injured in the course and scope of his employment.

On December 21, 2011, trial commenced before a workers’ compensation judge, who took the matter under advisement. On January 20, 2012, the judge issued her ruling finding that appellant was not in the course and scope of his employment when he was injured. The judge specifically held, “In this case, the accident did not occur in the course of employment because Ruiz’s employment activities did not take him to the credit union and he was not on the employer’s premise or his assigned work site at the time the accident occurred.” This appeal follows.

DISCUSSION

The Workers’ Compensation Act set up a court-administered system to aid injured workmen by relatively informal and flexible proceedings. Rhodes v. Lewis, 01-1989 (La.5/14/02); 817 So.2d 64. The provisions of the workers’ compensation law are to be interpreted liberally in favor of the worker in order to effectuate its purpose of relieving workers of the economic burden of work-connected injuries by diffusing the cost on channels of commerce. Coats v. AT & T, 95-2670 (La.10/25/96); 681 So.2d 1243. Nevertheless, despite such liberal construction, the worker bears the burden of proving personal injury by accident by a preponderance of the evidence. La. R.S. 23:1031; Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991).

The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 361 (La.1992). Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing and Sheet Metal, 96-2840 (La.7/1/97); 696 So.2d 551, 556.

Under the Workers’ Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident “arising out of and in the course of his employment.” La. R.S. 23:1031; O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00); 758 So.2d 124. The requirement that an employee’s injury occur “in the course of’ employment focuses on the time and place relationship between the injury and the employment. Weber v. State, 93-0062 (La.4/11/94); 635 So.2d 188. An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La.1992). The requirement that an employee’s injury “arise out of’ the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment. Williams v. Regional Transit Authority, 546 So.2d 150, 161 (La.1989).

Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of his employment, and thus, are not compensable under the Workers’ Compensation Act. Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975). This rule, often called the “going- and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work. Phipps v. Bruno Const., 00-0480 (La.App. 3 Cir. 11/2/00); 773 So.2d 826.

In McLin v. Indus. Specialty Contractors, Inc., 02-1539 (La.7/2/08); 851 So.2d 1135, 1141, the Louisiana Supreme Court noted several jurisprudential exceptions to the “going-and-coming rule:”

(1) If the accident happened on the employer’s premises;
(2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer’s business or pursuant to his employer’s order;
(3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
(4) If the employee was doing work for his employer under the circumstances where the employer’s consent could be fairly implied;
(5) If the employee was hurt while traveling to and from one work site to another;
(6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee (the “threshold doctrine”); and
(7) If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee. (Citations omitted).

In this case, appellant argues, as he did at trial, that he was within the course and scope of his employment because he had completed his errand to his employer’s other work site and was returning to work.

As noted above, the principal criteria for determining course of employment are time, place and employment activity. Weber, supra. An injury occurs in the course of employment when it is sustained by an employee actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take him. Mundy, supra. For a mission to qualify as a special mission and thus be considered as employment-related rather than personal, an employee is deemed to be in the course of employment when he is engaged in the direct performance of duties assigned (i.e., requested, directed, instructed or required) by his employer.

Here, appellant’s injuries were sustained in a slip and fall in the stairwell of NOPD Headquarters. NOPD Headquarters was not and had not ever been his assigned worksite. Appellant was on a personal errand with the express permission of his supervisor but he was not requested, directed, instructed or required by his employer to travel from the Communications Division to NOPD Headquarters. The errand was to withdraw money from his personal bank account, not employment related.

After trial, the workers’ compensation judge found that, at the time of his accident, appellant was neither actively engaged in the performance of work-related duties, nor at a place where his current employment activities took him. After a thorough review of the record, we find that the judge did not err in finding that appellant was not in the course of his employment with defendant, the City of New Orleans, when he sustained his injuries.

DECREE

For the reasons set forth above, the judgment of the workers’ compensation judge is AFFIRMED.

AFFIRMED

      . On the date of the incident in question, appellant was domiciled in Jefferson Parish. Under La. R.S. 23:1310.4(A)(2) and 23:1310.5(A)(2), this Court has jurisdiction over this action. U.R.C.A. 3-1.1.

      . An employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination. Orgeron ex rel. Orgeron v. McDonald, 93-1353 (La.7/5/94); 639 So.2d 224, 227.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Alvin ELZY.
    No. 12-KA-112.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Douglas W. Freese, Jennifer A. Rodriguez, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

Defendant, Alvin Elzy, appeals his conviction of failing to maintain registration as a sex offender. On appeal, defendant argues that the trial court erred in permitting him to represent himself at trial. He also argues that the trial court erred in proceeding to trial without first determining his mental competency to proceed. After thorough review of the record, for the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On February 24, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Alvin Elzy, with failing to maintain registration as a sex offender by failing to fulfill his community notification requirements, in violation of LSA-R.S. 15:542. Defendant was arraigned the next day and pled not guilty. On July 20, 2011, the case was tried before a twelve-person jury that unanimously found defendant guilty as charged. Defendant filed a pro se motion for post-verdict judgment of acquittal that was denied on August 29, 2011. Also on that date, the trial judge construed defendant’s other pro se motions as a motion for a new trial, which was denied as well.

On August 31, 2011, the trial judge sentenced defendant to imprisonment at hard labor for five years, without the benefit of parole, probation, or suspension of sentence. On that same date, defendant orally noticed his intent to appeal. Defendant filed a pro se motion for a new trial on September 8, 2011, that was declared moot, since the allegations contained therein were the same as those contained in the previous motion for a new trial. On September 9, 2011, defendant filed a pro se “Motion to Correct and Reconsider an Illegally Imposed Sentence” that was denied. Defendant filed additional pro se pleadings on September 12, 2011, which the trial judge construed and granted as a motion for appeal on September 26, 2011.

FACTS

Clariee Gervais, a clerk with the Jefferson Parish Sheriffs Office (“JPSO”), testified that she came into contact with defendant on October 22, 2010 when he came to her office to register as a sex offender. Ms. Gervais explained that when she first started the registration process with defendant, he was uncooperative and did not want to answer her questions. Additionally, Ms. Gervais stated that defendant was mumbling — she could not understand what he was saying. At that point, Ms. Gervais turned the matter over to her co-worker, Jennifer Propps.

Ms. Propps testified that she took information from defendant and prepared a seven-page Sex Offender Registration Form for his case. She then verbally reviewed the form with defendant and gave it to him to review. Defendant subsequently initialed the bottom of each page of the form and signed the ^certification at the end. This document stated that defendant had been convicted of aggravated rape. But, when Ms. Propps later requested and received a certified copy of defendant’s conviction record from Orleans Parish, it reflected that he had actually been convicted of attempted aggravated rape. At that time, Ms. Propps corrected defendant’s conviction information in the registration form in her computer.

While defendant was in her office, Ms. Propps informed him that he had to do several things in order to complete the registration requirements. She gave defendant a so-called “21-day letter,” which told him everything he had to do within twenty-one days of his coming to her office to register, including providing notice to The Times-Picayune (a local newspaper), and to landlords, and obtaining a Louisiana ID card identifying him as a sex offender. This letter specifically notified defendant that he was required to return with the requested information by November 24, 2010, and that “non-compliance will result in a warrant for your arrest.” After Ms. Propps went through these forms with defendant, he signed them and was given copies of everything he had signed.

Ms. Propps testified that she did not think that defendant had any questions regarding the requirements or accuracy of the information on the form. She explained that if defendant had told her that he had been convicted of attempted aggravated rape rather than aggravated rape, she would have changed that information on the form. Ms. Propps further explained that when a person comes in to register, he is given an opportunity to correct the paperwork, and that when he initials the paperwork, he is saying that all of the information set forth therein is correct.

Ms. Propps testified that after defendant left her office that day, he never returned. She tried contacting him by calling and leaving a message for him with his niece, but he never returned to her office. She asserted that although defendant was convicted of attempted aggravated rape rather than aggravated rape, the registration requirements for both of these crimes were the same. She noted that defendant never returned and told her he did not do what he was supposed to do because his conviction as stated in the paperwork was incorrect. Ms. Propps stated that both crimes required a lifetime registration as a sex offender.

JPSO Lieutenant Luis Munguia, who was qualified as an expert in the field of latent fingerprint identification, testified that State’s Exhibit 5 was the fingerprint card of defendant while he was at the Department of Corrections, and that State’s Exhibit 6 was the fingerprint card from when defendant was arrested and charged with attempted aggravated rape. Lieutenant Munguia further testified that he compared State’s Exhibits 5 and 6 to each other and found that the fingerprints on the two cards were from the same individual. He identified defendant as being the same person who was convicted of attempted aggravated rape and who was now charged with the crime of failing to register as a sex offender.

Lieutenant Munguia asserted that he obtained a warrant for defendant’s arrest because defendant failed to complete the sex offender registration requirements. He explained that his office usually gives people more than twenty-one days to comply with the sex offender registration requirements. They also try to call them. If there is no response, then an arrest warrant is obtained. Lieutenant Munguia testified that defendant never gave justification for his failure to register, and that the slight error in the paperwork as to the crime he committed would not justify defendant’s failure to register.

ASSIGNMENT OF ERROR NUMBER ONE — self representation

On appeal, defendant first argues that the trial judge erred by allowing him to represent himself. He contends that the trial judge failed to conduct a reasonable inquiry to establish on the record a knowing and intelligent waiver of the right to counsel under the circumstances. Appellate counsel claims that at no time did defendant demonstrate understanding, comprehension, or knowledge, and that red flags should have been raised based on defendant’s self-reported history of a skull fracture, blackouts, and difficulty communicating. He also asserts that despite the trial judge’s best efforts, the trial judge failed to adequately advise defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation.

The State responds that the trial judge did not err by allowing defendant to represent himself, noting that multiple colloquies with defendant established that he was well informed as to his rights and the dangers and consequences of self-representation, and that he knowingly and intelligently waived his right to counsel. The State further responds that the trial judge had ample opportunity to evaluate defendant’s ability to understand and waive his right to counsel based on first-hand interactions and observations of defendant and consideration of his multiple pro se filings.

The Sixth Amendment to the United States Constitution and Article I, § 18 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. A defendant may represent himself only if he makes an unequivocal request to represent himself and knowingly and intelligently waives his right to counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Bridgewater, 00-1529, pp. 17-18 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003); State v. Bruce, 03-918, p. 4 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 857. Assertion of that right “must also be clear and unequivocal.” State v. Bell, 09-199, p. 17 (La.11/30/10), 53 So.3d 437, 448, cert. denied, — U.S. -, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011).

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Bruce, supra. In addition, the court should inquire into the defendant’s age, education and mental condition, and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. Id.

Once the defendant has made an unequivocal request to represent himself, the trial court must determine whether the defendant is competent to waive counsel and is “voluntarily exercising informed free will.” State v. Santos, 99-1897, p. 3 (La.9/15/00), 770 So.2d 319, 321. The competency at issue is a defendant’s competence to waive his right to counsel and not his competence to represent himself. Id.

Whether a defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined on a case-by-case basis, considering the facts and circumstances of each case. State v. Leger, 05-11, p. 53 (La.7/10/06), 936 So.2d 108, 147-48, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The question of whether a defendant properly waived his or her right to counsel should not be judged on what happened subsequent to the waiver of counsel; rather, it is the record made in waiving the right to counsel that is determinative of whether this right was properly waived. State v. George, 98-1149, p. 8 (La.App. 5 Cir. 3/30/99), 743 So.2d 685, 689.

The trial court is given much discretion in determining whether the defendant’s waiver was knowing and intelligent. State v. LaGarde, 07-288, p. 12 (La.App. 5 Cir. 10/30/07), 970 So.2d 1111, 1120. An appellate court should not reverse the trial court ruling absent an abuse of its discretion. Id.

On February 25, 2011, at his arraignment, defendant said he wanted to represent himself. On March 21, 2011, defendant orally moved to represent himself depending on which attorney the court intended to appoint to represent him. The trial judge advised defendant that he did not get to pick who his appointed counsel would be, and then asked defendant if he wanted to represent himself immediately, and defendant answered affirmatively. The trial judge subsequently swore defendant in, after which defendant testified that he was fifty-two years old, had a fifth grade education, had received a “Certificate of Completion” from “tutor school,” had been in and out of prison for thirty-four years, had been employed in various jobs, and knew how to read and write.

The trial judge told defendant that self-representation was almost always unwise, that it might be detrimental to his case, and that she strongly recommended against it. Defendant replied that when he started in the system, he took the advice of an appointed lawyer, which “messed up” his life. He thought he could do better speaking on his own behalf, noting that he had studied law while he was incarcerated. The trial judge told defendant to consider that lawyers, including the prosecutor, were highly educated and familiar with the court system and rules. Defendant said he thought he could present his case better than a lawyer. The trial judge informed defendant that he would receive no special treatment, and that he would be held to the same rules of procedure and evidence. Defendant said he understood.

The trial judge told defendant he would have no staff of investigators to assist him, as the district attorney would have. Defendant stated that he had given the matter a lot of thought since his arrest, and that he was positive he had made up his mind to represent himself. However, defendant admitted he did not understand the charges against him and had not been provided with a copy of the bill of information filed against him. After a lengthy discussion, the trial judge allowed defendant to represent himself for the sole purpose of receiving discovery from the State. The trial judge then said that she was going to allow defendant time to review the discovery, and she appointed an Indigent Defender Board (“IDB”) attorney to represent defendant in the meantime. She stated that defendant’s motion to represent himself would be revisited on April 18, 2011.

On April 28, 2011, the trial judge heard and denied defendant’s pro se motion to quash that defendant argued himself. On May 23, 2011, the trial judge again considered defendant’s motion to represent himself. The trial judge told defendant that she needed to know whether he wanted to continue representing himself or whether he wanted the IDB attorney, Frazilia Wiggins, to represent him. Defendant said he wanted to represent himself. The trial judge then engaged in another lengthy colloquy with defendant about his background.

During that colloquy, defendant said he had represented himself before in a civil matter. He stated that he did not “pursue it” because he was in the hospital having skull surgery, which he claimed caused blackouts. The trial judge again advised defendant of the disadvantages of self-representation. Defendant indicated that he understood he was charged with failing to maintain registration as a sex offender by failing to fulfill his community notification requirements. He repeated |inthat he wanted to represent himself, but was willing to accept Ms. Wiggins as standby counsel. The trial judge said that she would take the matter under advisement.

On May 24, 2011, the trial judge stated that she had given the matter a lot of thought and ruled that defendant had every right under the Constitution to represent himself. However, the trial judge ordered that Ms. Wiggins remain on as “shadow counsel” for assistance, and defendant agreed. The trial judge said that her ruling did not mean it was the right decision, and she said she had concerns about defendant’s ability to represent himself, but she was going to allow him to do so nonetheless. The trial judge again advised defendant that he would have to follow all of the rules of evidence and procedure, and defendant said he understood. Afterwards, defendant argued several pro se motions he had filed, and a preliminary examination/probable cause hearing was held. Defendant filed his witness list, and a trial date was set.

On July 20, 2011, defendant said he was ready for trial. The trial judge stated that even though she thought it was not in defendant’s best interest for him to represent himself, she asked him if he still desired to waive his right to counsel and represent himself, and he answered “correct.” The trial judge then stated that based upon previous court appearances and conversations that she had had with defendant, he had freely and voluntarily waived his right to counsel.

The case was subsequently pre-tried with defendant, at which time the prosecutor stated that defendant had prior convictions for attempted aggravated rape and aggravated battery. The prosecutor then gave the basis for the present charge of failure to register as a sex offender and the penalty range if defendant was convicted as charged. The prosecutor also offered to amend the charge to attempted failure to register as a sex offender and gave the sentencing range ifj^defendant was convicted on the amended charge. Additionally, the prosecutor advised that if defendant accepted the plea offer, the State would not file a multiple bill against him. Defendant said he was not interested in the offer, and the matter proceeded to trial.

After thorough consideration of the record, we find that the trial judge did not abuse her discretion by allowing defendant to represent himself with the assistance of counsel. During the hearings and various colloquies detailed above, the trial judge determined that defendant was fifty-two years old, had a fifth grade education and additional schooling, and had significant history in the criminal justice system. The trial judge also ascertained that defendant knew the nature of the charge against him. The prosecutor advised defendant of the sentencing range for the charge, although it was immediately after the trial judge found that defendant had freely and voluntarily waived his right to counsel. The trial judge advised defendant of the dangers and disadvantages of self-representation, and defendant indicated he understood them. Additionally, defendant clearly and unequivocally stated that he wanted to represent himself.

In light of the foregoing, under the totality of the circumstances, including the trial judge’s lengthy interaction with defendant during the pre-trial hearings, we find that defendant’s waiver of right to counsel was knowingly, intelligently, and voluntarily made, and the assertion of the right to represent himself was clear and | ^unequivocal. Accordingly, we find no error in the trial court’s ruling on this issue. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO — mental capacity to proceed

Defendant also argues that in light of his self-reported skull surgeries, blackouts, and difficulty communicating, along with the colloquy indicating his inability to understand the charge against him, the trial judge erred by failing to order a mental examination to determine if defendant possessed the appropriate mental capacity to proceed to trial. The State responds that the trial judge did not abuse her discretion in failing to order a competency evaluation, since there was no supporting evidence as to defendant’s medical claims, and defendant did not file a motion to appoint a sanity commission. Further, the State argues that the trial judge was in the best position to evaluate defendant’s mental competency, based on her significant interaction with defendant throughout the proceedings.

According to LSA-C.Cr.P. art. 641, “[mjental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” A defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. LSA-C.Cr.P. art. 642. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed. Id.

The trial judge is only required to order a mental examination of the defendant when he has a reasonable ground to doubt the defendant’s mental capacity to proceed. LSA-C.Cr.P. art. 643; State v. Pugh, 02-171, p. 18 (La.App. 5 Cir. 10/16/02), 831 So.2d 341, 349. “Reasonable grounds to doubt the | ^defendant’s mental capacity to proceed” refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that the defendant cannot understand the proceedings, appreciate the significance of the proceedings, or rationally aid his attorney in his defense. State v. Williams, 02-1016, p. 9 (La.App. 5 Cir. 2/25/03), 841 So.2d 936, 942, writ denied, (La.8/20/04), 882 So.2d 571.

The ordering of a sanity commission rests in the sound discretion of the trial court. State v. Fish, 99-1280, p. 4 (La.App. 5 Cir. 4/12/00), 759 So.2d 937, 939. Furthermore, when the issue of a defendant’s incapacity to proceed is presented by “bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed.” State v. Stokes, 10-171, p. 12 (La.App. 5 Cir. 10/12/10), 50 So.3d 884, 892 (citing State v. Wilkerson, 403 So.2d 652, 658 (La.1981)).

In the instant case, we find that the trial judge did not abuse her discretion by not ordering a mental examination of defendant, even though she had the authority to do so under LSA-C.Cr.P. art. 642. The trial judge had ample opportunity to consider defendant’s mental capacity based on her lengthy interactions with him during his numerous appearances in court. Defendant appeared in court for arraignment on February 25, 2011, and for the hearings on his motion to represent himself on March 21 and April 28, 2011. On May 24, 2011, defendant argued several pro se motions that he had filed, and a preliminary examination/probable cause hearing was held. Defendant also pre-tried his case and turned down a plea offer from the State on July 20, 2011.

The transcripts of those proceedings do not reflect that the trial judge had reasonable grounds to doubt defendant’s mental capacity to proceed. There was no evidence to alert the court to the possibility that defendant could not understand the 11,proceedings, appreciate the significance of the proceedings, or defend himself. Though at the initial colloquy defendant indicated that he did not understand the charges brought against him, he said it was because he had not seen a copy of the bill of information filed against him. Defendant was thereafter supplied with discovery from the District Attorney’s Office that included the bill of information filed against him. Defendant thereafter acknowledged, during a later colloquy with the judge, that he understood the charges. Additionally, although defendant may have been inarticulate at times during his court appearances, there was no medical evidence presented to support his contentions that he had undergone skull surgeries or had resulting symptoms from those surgeries. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). A review of the record reveals no errors patent requiring correction.

CONCLUSION

For the reasons stated above, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . In the certification, defendant acknowledges that "I have fully disclosed all pertinent information,” and that "the above requirements have been fully explained to me, that I have received a copy of the above notice of offender registration and notification requirements and a copy of the statutes providing for such requirements.”

      . " 'Hybrid' representation allows a defendant the right to defend himself as co-counsel while standby counsel explains and enforces the basic courtroom rules, as long as standby counsel's participation does not seriously undermine the defendant’s appearance as representing himself before the jury.” State v. Berry, 08-151, p. 14 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 129, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767 (citing State v. Brown, 03-897 (La.4/12/05), 907 So.2d 1, 22, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006)). When an attorney partially represents a defendant who assumes functions that are at the core of an attorney's traditional role, the defendant must still knowingly and intelligently waive his constitutional right to have his lawyer perform the core functions, in order to show that the defendant appreciates the possible consequences of mishandling the core functions that lawyers are more competent to perform. State v. Mathieu, 06-946, p. 11 (La.App. 5 Cir. 5/29/07), 960 So.2d 296, 303, writ denied, 07-1424 (La.2/1/08), 976 So.2d 714.