text:
    STATE of Louisiana, Appellee v. Robert Stephen BAILLIO, Appellant.
    No. 49,093-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Edward J. Marquet, Lafayette, for Appellant.
    Charles R. Scott, II, District Attorney, Jason T. Brown, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and GARRETT, JJ.
   WILLIAMS, J.

| |The defendant, Robert Stephen Baillio, was charged by bill of information with carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1, and possession with intent to distribute a Schedule II controlled dangerous substance (methamphetamine), a violation of LSA-R.S. 40:967. He pled guilty as charged. For the concealed weapon conviction, the defendant was sentenced to serve 10 years at hard labor without benefit of probation, parole or suspension of sentence. For the drug conviction, he was sentenced to serve 30 years at hard labor, with credit for time served, and fined $5,000, plus court costs, or 60 days in prison in lieu of payment. For the following reasons, we amend the sentence to vacate that portion of the sentence imposing jail time in default of payment of the fine and costs, and as amended, we affirm.

FACTS

In September 2010, officers from the Shreveport Police Department learned that defendant, Robert Stephen Baillio, was selling methamphetamine in the Shreveport area. On September 13, 2010, a “confidential source” arranged to purchase methamphetamine from the defendant. When the defendant arrived at the agreed-upon location to deliver the drugs, police officers approached him, advised him of his Miranda rights and placed him under arrest. At that time, the defendant admitted to the police officers that he had brass knuckles, a concealed weapon, on his person. A search of his person revealed the weapon. Subsequently, the officers transported the defendant to his vehicle, where | ahis toddler-aged son was waiting. The defendant then admitted that he had methamphetamine in his pocket and packaging materials in his vehicle. The officers retrieved six grams of methamphetamine from the defendant’s person. In a subsequent interview with police officers, the defendant admitted that he had been distributing methamphetamine to multiple locations, targets and sources.

The defendant was charged with carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1, and possession with intent to distribute methamphetamine, a Schedule II controlled dangerous substance (“CDS”), a violation of LSA-R.S. 40:967(A)(1). Subsequently, he pled guilty as .charged. As stated above, he was sentenced to serve 10 years without benefits on the concealed-weapon conviction and 30 years at hard labor for the possession with intent to distribute methamphetamine conviction. The trial court also imposed a fine in the amount of $5,000, plus court costs “or 60 days in lieu of same.”

The trial court denied the defendant’s motion to reconsider sentence. The defendant now appeals.

DISCUSSION

The defendant contends the trial court abused its discretion in ordering him to serve 30 years in prison for the drug conviction. He argues that he is a nonviolent offender, and the trial court concluded that he was the “worst of offenders” when it imposed a 30-year sentence. The defendant also argues that in State v. Lingefelt, 38,038 (La.App.2d Cir.[l/28/04),s 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165, the defendant, who had been involved in the manufacturing of methamphetamine for more than 20 years, received a 22-year sentence at hard labor without benefits. The defendant maintains that, unlike the defendant in Linge-felt, there was no indication that he manufactured and distributed drugs over a long period of time; he was in possession of only six grams of methamphetamine at the time of his arrest.

LSA-R.S. 40:967(B)(1) sets forth the sentencing range for a defendant who is convicted of possession with intent to distribute methamphetamine. That statute provides that a person so convicted “shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than [$50,000].”

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. Morrison, 45,620 (La.App.2d Cir.11/24/10), 55 So.3d 856. However, the trial court has wide discretion in imposing sentences within the minimum and maximum limits allowed by the statute. Thus, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550.

A trial judge is in the best position to consider the aggravating and 14 mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Es-que, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 551.

An excessive sentence argument is reviewed by examining whether the trial court adequately considered the guidelines established in LSA-C.Cr.P. art. 894.1, and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App.2d Cir.11/2/11), 77 So.3d 1052. However, where the defendant’s motion to reconsider sentence alleges mere excessiveness of sentence, the reviewing court is limited to only a review of whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,321 (La.App.2d Cir.9/21/11), 72 So.3d 952.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

In the instant case, prior to imposing the defendant’s 30-year sentence, the trial court considered the factors set forth in LSA-C.Cr.P. art. 894.1. The court stated: lsYou are a fifth felony offender, okay, and the huge deal on the [possession with intent to distribute a Schedule] II[CDS] and the [aggravated] flight, those get you to the — those would get you to the mandatory life, you know, because of the type that they are. And I do note on the PSI that [your criminal] history spans a very long period of time since 1986.

You have got burglary charges, drug charges, a lot of drug charges. You [have] burglary of an inhabited dwelling charges, battery, seven counts of simple burglary, having pled guilty to two. You have got some other simple burglary inhabited dwellings dismissed. Some were pled down to simple burglary. Marijuana, pills, meth. Pretty much run the gamut.
I don’t see — I will agree with you there [are] not a lot of violent offenses other than your simple battery charges, okay? It’s amazing that somebody can keep doing this stuff and haven’t learned.
You have got to spend more time because you are a fifth felony offender, but I think anything less wouldn’t be fair, and I’m going to give you the 30 years on the PWID, all right, 30 years hard labor, credit for time served running concurrently with the other two you pled guilty to, a $5,000 fine plus court costs to be paid through inmate banking or 60 days in lieu of same.
I don’t know what else to do with you, Mr. Baillio. I really don’t.
I think it’s extremely generous that the DA’s office said they won’t bill you[.]

As stated above, the sentencing range for possession of methamphetamine with intent to distribute is two to 30 years in prison at hard labor. The sentence imposed, 30 years, is the maximum sentence; however, it is within this range. The trial court reviewed the guidelines set forth in LSA-C.Cr.P. art. 894.1, and noted the defendant’s extensive criminal history.

IfiAs the trial court noted, this defendant is a fifth-felony offender, and his list of offenses spans more than 25 years. The defendant attempted to distinguish his criminal history from that of the defendant in Lingefelt, supra, by pointing out that the defendant in that case had been involved in manufacturing methamphetamine for more than 20 years. However, this defendant failed to acknowledge his own criminal history, during which he has been involved in a myriad of criminal offenses for well over 20 years.

Furthermore, the defendant faced potential multiple billing for his prior offenses, and he received substantial benefit from the state’s decision not to file a multiple offender bill. We also note that this defendant pled guilty to two additional violent felony offenses on the same day that he pled guilty to the instant drug charge; he received concurrent sentences. It is obvious that the defendant has failed to benefit from prior leniency in sentencing and has continued in the same pattern of criminal activity for more than a 25-year period, escalating his activities from the possession to the sale of illegal drugs. His lack of rehabilitation, as evidenced by these facts, qualifies him as the worst type of offender for which a maximum sentence is appropriate.

For these reasons, we find that the sentence imposed is not so grossly disproportionate to the severity of the crime that it shocks the sense of justice, nor does this sentence appear to be the needless infliction of pain and suffering. Thus, we find no abuse of the trial court’s discretion.

ERRORS PATENT

Pursuant to LSA-C.Cr.P. art. 920, we have examined this record for |7errors patent. We find that the trial court improperly imposed jail time contingent on the payment of the fine and court costs.

An indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. State v. Tillman, 43,569 (La.App.2d Cir.10/22/08), 997 So.2d 144, writ denied, 2008-2836 (La.9/25/09), 18 So.3d 85. A defendant’s indigent status may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Tillman, supra. Where a defendant is represented by the Indigent Defender’s Office, a court-appointed attorney or the Louisiana Appellate Project, this Court has considered it error for a trial court to impose jail time for failure to pay court costs. State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242. In the context of disposition of this claim, this Court may choose to amend the defendant’s sentence. State v. Tillman, supra.

Our examination of this record reveals that this defendant was represented at trial by the Indigent Defender’s Office; on appeal, he was represented by the Louisiana Appellate Project. Because this defendant is indigent, we conclude that the trial court erred in imposing a 60-day sentence for the nonpayment of fines. Accordingly, we shall vacate that portion of the sentence imposing jail time in default of payment of the fine and costs.

CONCLUSION

For the reasons set forth herein, we amend the sentence to vacate that portion of the sentence imposing jail time in default of the payment of $5,000 fine and costs, and as amended, the defendant’s convictions and | ^sentences are affirmed.

AMENDED AND AFFIRMED AS AMENDED.

      . The sentences were ordered to be served concurrently with each other and with a sentence for an unrelated charge of aggravated flight from an officer.

      . The defendant did not appeal the 10-year sentence; therefore, it will not be addressed in this opinion.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Patricia BARHAM and Claire H. Lutey, Plaintiffs-Appellants v. USAA CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    No. 49,121-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Nelson, Zentner, Sartor & Snellings, L.L.C., Monroe, by: Thomas G. Zentner, Jr., for Appellant.
    Cook, Yancey, King & Galloway, Shreveport, by: Brian A. Homza, Allison C. Foster, for Appellee.

      Before WILLIAMS, CARAWAY and GARRETT, JJ.
   CARAWAY, J.

|,In this unique setting, a mother came to the aid of her daughter and helped her build a home during the procedural ordeal of the daughter’s divorce. The house was built, and title to the home was placed in the name of the mother. Two fire insurance policies were purchased from defendant, one by each woman to protect her interest in the home. After the daughter had lived in the new home for only a few months, the home was totally destroyed by fire. The mother and daughter then brought this suit alleging that defendant had not properly paid both of them under the terms of their respective policies. The defendant moved for summary judgment asserting that plaintiffs were properly paid benefits in accordance with their separate insurable interests and the terms of the policies. The trial court granted summary judgment, and we now affirm.

Facts

Patricia Barham (“Barham”) was attempting to build and purchase a home in April 2011. At the time, she was going through a contentious divorce. The divorce contest prevented her from building a home with former community funds during the proceedings, so Barham obtained the help of her mother, Claire Lutey (“Lu-tey”). Barham then supplied $10,000 in earnest money on April 28, 2011, to pay for the construction of a home. Lutey agreed to pay for the rest of the construction of the home using cash from her brokerage account. The residence was purchased in Lutey’s name. The total purchase price was $330,919. Barham informally agreed to make monthly payments of $1,200 to Lutey to reimburse her for paying to build |2the house. Barham considered herself as the person purchasing the home. Nevertheless, the mother and daughter also considered Barham’s payments to Lutey as rent. The $1,200 monthly payment was chosen as the typical monthly rent on a house of the same type. Barham also made several improvements to the residence with her own funds.

Shortly after moving into the home, on June 29, 2011, Barham took out a homeowner’s policy with USAA Casualty Insurance Company (“USAA”) for $242,000 and an additional $181,500 for personal property. Barham also obtained a renter’s policy to cover her personal possessions in the house for $75,000. Additionally, Lutey obtained a “fire policy” with USAA covering the home to $242,000. Lutey and Barham each had separately contacted USAA by phone on different occasions and taken out the policies.

The $242,000 policy limits on the home were calculated using basic information of the home’s characteristics. Each policy had its own premium. Barham paid the initial premiums on all the policies. The annual premium on Barham’s homeowner policy was $584.74. The annual premium on the Lutey fire policy was $583.44. The annual premium for Barham’s renters policy was $86.14.

On November 8, 2011, lightning struck the house, and it was destroyed by fire. As a result of the loss, USAA paid Lutey $249,873.57. She was paid the $242,000 face value of the policy. She was also paid $7,200 for the loss of rental income for six months. At the time of the fire, |aBarham had paid Lutey $1,200 in rent for six months. Finally, Lutey was paid $673.57 for damage to “other structures.”

USAA did not pay the face value of $242,000 for Barham’s homeowner’s policy. Rather, Barham was paid $69,144.89 for contents lost in the fire. She was paid $10,000 for the earnest money and $4,928.99 for landscaping and other improvements made on the home with her funds. The total amount USAA paid on the policies was over $333,00.0. The house was subsequently rebuilt, and the cost to rebuild was $243,083.87.

Barham and Lutey filed suit against USAA claiming that it did not pay the full amount of Barham’s policy, $242,000 plus another 25%, or $60,500, under the “Home Protector Coverage” portion of Barham’s homeowner policy, or $302,500 total. Bar-ham and Lutey also alleged in their petition that USAA failed to refund premiums. Barham also seeks expenses and attorney fees for USAA’s arbitrary refusal to pay.

USAA did not pay the full amount on Barham’s policy because it determined that Barham’s insurable interest in the property was not the full amount of the homeowner policy limit. Each insurance policy issued contains a clause in the “Conditions” section of the polices that in no event will USAA pay the insured on any loss that is greater than the amount of the insured’s interest in the residence. The clauses state:

Even if more than one person has an insurable interest in the property covered, we will not be liable in any one loss:
a) To the “insured” for more than the amount of the “insured’s” interest at the time of loss; or
b) For more than the applicable amount of insurance, whichever is less.

|4USAA contended that Barham’s insurable interest is limited to the $10,000 earnest payment she made along with $4,928.99 she paid in improvements to the home. USAA determined Barham’s insurable interest based on a telephone interview between Duane Quinn, a USAA claims adjuster, and Barham, as well as an interview with the same adjuster and Lu-tey.

USAA filed a motion for summary judgment contending that it paid the full amount that was owed to each party. In support of its motion for summary judgment, USAA submitted all of the insurance policies. Additionally, USAA submitted two transcripts of telephone interviews, one between a claims adjuster and Barham and another between the same adjuster and Lutey, each with Barham and Lutey’s attorney present. Further, USAA submitted the affidavit of Duane Quinn, the claims adjuster for the loss who had conducted the interviews with Barham and Lutey. USAA also included the letters sent to the appellants informing them of the payments that would be made on the policies.

In opposition to the motion for summary judgment, Barham and Lutey submitted the affidavit of Barham stating that Lutey was merely acting as her bank in purchasing the house. Barham and Lutey also submitted an affidavit of Harvey Hales, a local insurance agent. He explained that USAA should have had an agent in the area rather than obtaining the insurance by phone. He also stated that the home was underinsured. He stated the first home policy should have been to the limit of $290,000. Finally, Barham and Lutey submitted the declarations page of | .¡Barham’s new homeowner policy with a policy limit of $303,000 with USAA covering the rebuilt house.

When asked what her financial interest in the residence was by the claims adjuster, Barham stated:

Well, I made a $10,000 down payment, and I paid for shutters and wooden blinds to the tune of $4,400. I planted a $100 Japanese maple tree. I probably spent $175 planting flowers. Uh, I’ve been paying for the yardman. I have paid for my mother’s homeowners insur-anee. I have paid her interest. I have paid all of her costs and that’s all I can think of right now.

Both Barham and Lutey stated in their interviews that Lutey is the owner of the home.

The trial court granted USAA’s motion for summary judgment without written or oral reasons. From this judgment, Bar-ham and Lutey appeal asserting that the trial court erred by not providing reasons for judgment, by failing to address the claim that USAA failed to secure adequate coverage, and by failing to consider and discuss Barham’s and Hales’s affidavits.

Insurance Law

No contract of insurance on property or of any insurance therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured. La. R.S. 22:853(A). “Insurable interest” means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage. La. R.S. 22:853(B). When the name of a |fiperson intended to be insured is specified in the policy, such insurance can be applied only to his own proper interest. La. R.S. 22:854(A). The great weight of authority recognizes that an interest in the property protected is essential to the existence of a valid insuring agreement and additionally serves to differentiate an enforceable indemnity agreement from a wagering pact, which is invalid and unenforceable for reasons obviously prompted-by public policy and good morals. Rube v. Pacific Ins. Co. -of N.Y., 131 So.2d 240 (La.App. 1st Cir.1961); Adam Miguez Funeral Home, Inc. v. First Nat. Life Ins. Co., 234 So.2d 496, 499 (La.App. 3d Cir.1970) (“Our jurisprudence is settled that the public policy purpose of requiring an insurable interest is to prevent wagering contracts on insurance risks.”); see also Hilltop Bowl, Inc. v. U.S. Fidelity & Guaranty Co., 259 F.Supp. 649, 652 (W-D.La.1966). An insurable interest must exist not only at the time the policy is written but also at the time ,of the loss. Giddens v. USAA Property and Cas. Ins. Co., 93-2067 (La.App. 1st Cir.10/7/94), 644 So.2d 827.

Louisiana’s Valued Policy Law, La. R.S. 22:1318 (originally 1900 La. Acts 135), provides that if the insurer places a valuation upon covered immovable property and charges a premium based on that valuation, in the case of total loss the insurer shall indemnify the loss at the policy valuation, unless the contract specifies a different method is to be used in the computation of loss. La. R.S. 22:1318(A).

The Louisiana Supreme Court has recently described the historical purpose of the Valued Policy Law as follows:

17Valued Policy Laws were enacted in many states in the late 1800’s [sic ] and early 1900’s [sic] “in response to the perception that insurers were profiting by selling insurance policies with inflated face values, and then, after the building suffered a total loss, litigating the actual value of the insured structure, even though the insured had been charged premiums for the policy limits _” John V. Garaffa, The Uncertain
Scope of “Hurricane Damage” Under State Valued Policy Laws, 41 Tort Trial & Ins. Prac. L.J. 943, 946 (2005-2006), citing Tom Baker, The Genealogy of Moral Hazard, 75 Tex. L.Rev. 237 (1996-1997). See also Atlas Lubricant Corp. v. Federal Ins. Co. of New Jersey, 293 So.2d 550, 556 (La.App. 4th Cir. 1974) (“Valued policy laws ... dealing with [f]ire ins[urance] policies were enacted in the late 1800’s and early 1900’s principally as a protective measure for insureds.”). A secondary objective of Valued Policy Laws was to simplify the adjustment process following a total loss and to facilitate prompt settlement of insurance claims. Garaffa at 946-47.

Landry v. Louisiana Citizens Prop. Ins. Co., 07-1907 (La.5/21/08), 983 So.2d 66, 76-77. However, after a 1964 amendment, the Valued Policy Law provided that the liability of the insurer of a policy of fire insurance, in the event of total or partial loss, shall not exceed the insurable interest of the insured in the property unless otherwise provided for by law. La. R.S. 22:1318(C). An insurer may question or contest the insurable interest of the insured. Id. The intended purpose of the amendment was to limit the amount payable on a fire insurance policy to the extent of the insurable interest of the insured. See Miller v. Hartford Fire Ins. Co., 412 So.2d 662 (La.App. 2d Cir.1982).

Louisiana courts have held that an ownership interest is not necessary for an insured to have an insurable interest in the property. See Giddens, supra; Brewster v. Michigan Millers Mut. Ins. Co., 274 So.2d 213 (La.App. 2d Cir.1973); Young v. State Farm Fire & Cas. Ins. Co., 426 So.2d 636 (La.App. 1st Cir.1982); Stokes v. Republic Underwriters Ins. Co., 387 So.2d 1261 (La.App. 1st Cir.1980); see also Miller, supra; Nielsen vA^Lafayette Ins. Co., 300 So.2d 217 (La.App. 2d Cir.1974); Givens v. Southern Farm Bureau Cas. Ins. Co., 197 So.2d 380 (La.App. 2d Cir.1967) (mortgagee had insurable interest to the extent of unpaid balance on promissory note). For instance, in Brewster, supra, the court was determining whether the named, insured had an insurable interest in property that was destroyed in a fire. The insured purchased property and owned it for about fifteen years, residing there for most of that time. The insured also had previously leased out the property on a few occasions. The insured sold the property to his sons so that they could build retirement homes on the property. They agreed that the insured would be able to continue residing in the property and to rent it to others as he saw fit. The insured was to pay taxes on the property and pay the insurance premiums, and he made repairs at his own expense. The court found these facts sufficient to establish that the insured had an insurable interest, and thus the insurance contract was valid.

Discussion

USAA’s motion for summary judgment rests upon its separate contractual relationships with the two plaintiffs, their separate amounts received from USAA for the fire-related losses, and the ownership and other interests of each plaintiff that, according to USAA, establish undisputedly that the plaintiffs’ insurable interests were compensated by the policies’ indemnification protections. USAA contends that plaintiffs’ opposition to the motion for summary judgment did not demonstrate material fact disputes | regarding any further amounts owed under the policies for which the plaintiffs might prevail at trial.

When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Gray v. American Nat. Property & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839 (citations omitted). After adequate discovery or after a case is set for trial, a motion for summary judgment which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1).

The burden of proof on a motion for summary judgment remains with the mov-ant. La. C.C.P. art. 966(C)(2). If the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion is to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Id. If the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. An adverse party’s response must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

Barham and Lutey first contend that the trial court erred in failing to issue reasons for judgment. However, this contention is incorrect. Although “the court should provide reasons for the denial on the record” if a |inmotion for summary judgment is denied, the court is not required to do so. La. C.C.P. art. 966(B)(2) (emphasis added). Similarly, the trial court is not mandated to provide reasons for judgment when it grants the motion. However, La. C.C.P. art. 1917 provides that “[i]n all appealable contested cases, ... the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment.” (Emphasis added). Nothing in the record shows that such a request was made, and absent such a request, the trial court did not err.

In this unique setting, a fire and casualty policy was separately issued to each of the plaintiffs for coverage on the same home. In asserting a refund for premiums, the plaintiffs imply that a single policy would have been sufficient for their protection. Barham admitted paying premiums on her mother’s policy, but never questioned the necessity for dual coverage. Both policies for the home expressly addressed the possibility that another person could have an insurable interest in the home in addition to the insured’s interest protected under the policy. This contractual provision thus recognized the interests of multiple parties and the possibility of separate insurance policies insuring the same property. In such a setting, the plaintiffs’ policy provisions properly employ the concept of insurable interest as required in our insurance law to resolve the question of the benefits payable under the policies. As each plaintiff received benefits under her policy and cites no legal basis for a refund of premiums, we find no merit in them claims for such refunds.

| nSince both plaintiffs have separate policies insuring the home, the trial court’s dismissal of each plaintiffs claims requires our review. Lutey was paid the entire policy limit of $242,000 for the loss of the home. She makes no claim that USAA’s payment was untimely.

Both plaintiffs assert that the home was underinsured. This claim would have most significance for Lutey who, as owner of the home, was paid her policy limit.

The plaintiffs submitted in them opposition to USAA’s motion for summary judgment the affidavit of Harvey Hales. Hales stated that when the house was rebuilt, Barham insured it again with USAA for $303,000, as opposed to the $242,000 on the original policies. He stated that the coverage per foot for the new policy is $132 per square foot, and the coverage per foot on the old structure was $108. “Based on that information alone,” he concluded the original structure is underinsured. However, the actual cost of rebuilding the home was $243,083.87, and the record indicates that the new home was roughly the same square footage as the destroyed house.

Barham and Lutey each obtained their insurance policies over the phone. In those phone calls, they detailed to USAA the home’s characteristics from which the policy limit is determined. The record contains a page for each party detailing the “Home Characteristics” upon which the policy limit was based. Lutey, in her post-fire interview, was questioned regarding the $242,000 policy limit. The interviewer asked, “[W]hen they recommended the $242,000 ..., did you tell them ... that that |12wasn’t enough?” Lutey replied, “No, I did not[.] [I] didn’t know about it until (inaudible) the policy came and actually I’m ... at fault for not reading it more carefully.” The page titled, “Your Home Characteristics,” states that USAA helps the customer by determining whether the structure is “adequately covered in the event of a loss.” USAA calculates the “minimum rebuilding cost of your home based on your home characteristics, but only you can decide if this is enough coverage.” Both Barham and Lutey in their interviews stated they accepted the correctness of the policy limits.

From this review, we find no merit in Lutey’s claim that the home was underin-sured resulting in damages to her interests. Plaintiffs’ expert’s conclusion that the home should have been insured for $290,000 was not explained in terms of any value lost after the $243,000 rebuild. Both plaintiffs agree that despite Lutey’s ownership of the home, her interest under the family arrangement was similar to a home lender and intended to be temporary. Lu-tey did not dispute Barham’s approximately $15,000 equity interest in the home resulting from her sizable down payment and expenditures for home improvements. Thus, while the cost of rebuilding a similar structure slightly exceeded Lutey’s policy coverage limit, she shared “ownership” in a broader sense under the family arrangement. The payments for the fire loss to the home to both plaintiffs exceeded the cost of rebuilding. Finally, the insurance policy placed the risk of underinsurance upon the policy owner.

113Accordingly, we find no error in the trial court’s dismissal of Lutey’s claims under her policy with USAA. She brought forth no evidence in opposition to the motion for summary judgment to demonstrate why additional payment under the policy may be owed to her.

Turning to Barham’s claim, she contends that she was entitled to the $242,000 limit under her policy, plus an additional 25% under the added Home Protector Coverage provision. USAA paid her only $14,928.99 for her contribution to the price of the home and the costs of her improvements to the structure. Barham makes no assertions regarding USAA’s payment of policy benefits for the loss of her contents in the home.

In making her arguments, it is notable that Barham never takes the position that her mother lacked a substantial insurable interest in the home or was overpaid by USAA for the value of that insurable interest under the Lutey policy. Barham’s contentions emphasize that she lived in the home and her mother “had simply signed off on the paperwork involving the sale as a means of assisting her daughter” as a mere lender. Nevertheless, Barham does not dispute that the economic value of her mother’s assistance amounted by far to be most of the recent purchase price of the home. Barham correctly cites the jurisprudence for the recognition that a person does not have to have an ownership interest in the property to have an insurable interest, but that person must have a “lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.” La. R.S. 22:853(B).

114The undisputed fact of Lutey’s pecuniary damage is seen by her payment of most of the purchase price secured by the title of the home standing in her name. With no facts disputing Lutey’s most significant insurable interest, Barham’s smaller insurable interest amounted to the money she also invested in the home. We find that the only evidence of Barham’s equity investment in the home was the $14,928.99, which USAA paid her.

In her brief, Barham takes the all-or-nothing approach in seeking the payment of the policy limit. She makes no argument that her $1,200 per month payments of rent to her mother added to her equity position in the home. Indeed, the evidence suggests that all or part of those monthly payments served as an interest return to her mother for Barham’s use of Lutey’s financial assets for the home’s purchase.

Finally, we find no merit in Barham’s Home Protector Coverage claim. Our review of that policy provision reveals that it would not be operative unless the policy limit for a home loss was reached.

Conclusion

Because Barham and Lutey failed to present to the court any genuine issues of material fact concerning their insurable interests in the lost home, they failed to meet their burden of overcoming USAA’s motion for summary judgment. Costs of the appeal are assessed to appellants.

AFFIRMED.

      . This "interest” perhaps refers to roughly $800 monthly interest on the loan Lutey obtained from her brokerage account of which Barham told the claims adjuster in the interview.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Michael Allen LEWIS, Appellant.
    No. 49,138-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Teresa Culpepper Carroll, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Assistant District Attorney, for Appellee.
    Before BROWN, PITMAN and GARRETT, JJ.
   GARRETT, J.

| pursuant to a plea agreement providing for a sentencing cap of 30 years, the defendant, Michael Allen Lewis, pled guilty to aggravated burglary and entered an Alford plea to sexual battery. The trial court sentenced him to 30 years at hard labor on the aggravated burglary conviction and seven years at hard labor, without the benefit of probation, parole or suspension of sentence, on the sexual battery conviction. The sentences were imposed concurrently. The defendant now appeals his sentences as excessive. We affirm.

FACTS

At about 2 a.m. on July 25, 2009, the victim was in the bedroom of her home in Monroe with her two young children, a one-year old toddler and a one-week old infant, when several men broke down the front door of the residence. They wore masks and gloves. They rushed through the house into the bedroom. One of the men struck the victim in the head with a gun.

Another man, subsequently identified as the defendant, began demanding to know where the victim’s husband was. He also demanded drugs and money. He grabbed the victim and forced her down on the bed. The other men left the room. The defendant straddled the victim and put his hand on her throat, choking her. She continued to struggle. The defendant called to his associates to “come kill this bitch, she’s fighting back.”

The other men returned to the room, and the defendant ordered them to remove the victim’s clothes. They removed her clothing from the waist down and began rubbing her genitals with their hands. This continued despite the victim telling them that she had just had a baby.

12At some point, the sexual assault ended and the other men left the room. The victim managed to get off the bed and the defendant grabbed her again. This time he seized her from behind in a choke hold. The victim continued to fight him and they ended up in the hallway outside the bedroom. When the victim was pushed against the hallway wall, she managed to pull down the defendant’s mask. She immediately recognized him as someone with whom she had attended school. Calling him by his street name, she demanded to know why he was doing this. After she identified herself to him, the defendant apologized to her. He then allowed her to get dressed and leave the house with her children. As the victim carried her children down the street to a relative’s house, the defendant followed behind her, apologizing and pleading with her not to tell on him.

During the subsequent investigation of the home invasion, the police determined that two televisions were stolen from the residence. Within a few hours of the incident, the victim gave a statement to the police and they photographed her head injury. After the victim informed the police that she recognized the defendant as one of her assailants, they showed her a photo lineup containing his photo to verify the identification. After she positively identified the defendant as the man who held her down while his confederates sexually assaulted her, the police unsuccessfully tried to locate him. An arrest warrant was obtained.

In. March 2010, the defendant was arrested in Killeen, Texas, on the outstanding warrant. He gave a recorded statement to a Killeen detective in which he admitted his participation in the burglary of the victim’s home. However, he denied that anyone was armed or that there was any sexual assault. He claimed that another participant was the person who grabbed the victim by the neck and pushed her in the hallway.

| sTrial by jury began on February 27, 2013. The state presented the testimony of the victim, the lead police investigator, and the Killeen police detective who interviewed the defendant after his arrest. A DVD of the interview was introduced into evidence and played for the jury. The defendant did not testify on his own behalf at trial or present any witnesses.

After the completion of evidence but before closing arguments and submission of the case to the jury, the defendant was allowed to enter into a plea agreement whereby he would plead guilty as charged to the aggravated burglary charge while entering an Alford plea to the sexual battery charge. The factual basis given for the pleas was the testimony presented at trial with the understanding that, while he admitted guilt to the aggravated burglary charge, he was pleading to the sexual battery charge because, in light of the evidence, it was in his best interest to do so. The state agreed to a sentencing cap of 30 years and also agreed it would not file a habitual offender bill against the defendant, who had two prior felony convictions. The trial court properly Boykinized the defendant, accepted the pleas, and ordered a presentence investigation (PSI) report.

In April 2013, the defendant filed a pro se motion to withdraw his guilty plea. He alleged that there was no thorough investigation, that he was actually innocent of the charges, and that he was told by his attorney during the trial that he would get no more than 10 years. At a hearing on May 28, 2013, the trial court denied the motion.

The trial court then sentenced the defendant. After a lengthy and meticulous articulation of sentencing factors, the trial court imposed concurrent terms of imprisonment of seven years at hard labor, without benefit of parole, |4probation or suspension of sentence, on the sexual battery charge and 30 years at hard labor on the aggravated burglary charge.

The defendant filed a motion to reconsider sentence in which he contended that: (1) no one was harmed in the offense; (2) he “actually protected and assisted the victim;” (3) he had shown remorse in contacting the victim to apologize; and (4) there was no evidence that he benefitted from the offense or received anything of value. The trial court denied the motion in court on September 11, 2013.

The defendant appeals his sentences as excessive.

LAW

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La. 1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581.

| ¡^Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Moss, 48,289 (La.App.2d Cir.11/20/13), 127 So.3d 979. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Moss, supra.

Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than 30 years. La. R.S. 14:60.

Whoever commits the crime of sexual battery shall be punished by imprisonment, with dr without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than 10 years. La. R.S. 14:43.1(0(1).

DISCUSSION

The defendant complains that the trial court imposed the maximum sentence of 30 years for aggravated burglary and that he received a sentence in the upper one-third of the statutory range for sexual battery. He also contends "that the trial court misstated certain facts pertaining to the crimes.

Before imposing sentence, the trial court reviewed a PSI report detailing the defendant’s criminal and social history. At the sentencing hearing, the trial court recited the defendant’s lengthy criminal history, which began in 1999. Many of the crimes involved burglaries and thefts. The defendant, who was 27 years old at the time of the instant offenses, had two felony convictions for which he received probation: 2001 unauthorized use of a movable and 2003 simple burglary of an inhabited dwelling. In both instances, his probation was revoked.

IfiAs to the defendant’s social history, the trial court noted that the defendant dropped out of school in ninth grade at the age of 18. His employment history, which began when he was 24 years old, was scant and sporadic. The trial court further observed that the defendant had two children, but he did not even know the last name of one of them. In the PSI report, the defendant admitted heavy alcohol use, regular use of ecstasy, and past use of marijuana and PCP.

In its review of the sentencing factors set forth in La. C. Cr. P. Art. 894.1, the trial court found several aggravating factors. Among them were the deliberate cruelty, threats, and actual violence inflicted upon the victim in full view of her children, the older of whom was traumatized. As a “highly aggravating” factor, the trial court considered the defendant’s lack of remorse and his efforts to blame the victim. In particular, the court referenced a letter written by the defendant in which he denied ever touching the victim, insisted that no one sexually assaulted her, and insinuated that the victim made up the accusations out of anger. The trial court stated that it found no mitigating factors in the defendant’s favor. Finally, the trial court observed the great leniency the defendant received in the plea agreement, which provided for a maximum sentence of 30 years with no multi-bill. As a third-felony offender, the defendant faced a significantly longer sentence if the state had filed a habitual offender bill of information against him.

• In this case, the trial court had the benefit of hearing from the witnesses who testified at trial. The evidence showed that the defendant participated in a violent home invasion in which a female victim, who had just had a baby, was sexually assaulted. After the defendant and his associates broke down the front door of the victim’s home and one of the other men struck the victim in the head with a gun, the defendant himself viciously manhandled the victim. After forcing her onto the |7bed, he straddled her and held her down by the neck while his associates obeyed his command to remove the victim’s clothes. In the presence of the victim’s extremely vulnerable young children, the other men then sexually assaulted the terrified victim by touching her genitals while the defendant continued to hold her down. As correctly noted by the trial court, the “mood of the event” was changed only when the tenacious victim fought back and unmasked the defendant. Although the defendant desperately attempted to cast himself in a heroic light, arguing that he “protected” the victim and “apologized” to her, he did so only after he realized that he knew her — and, more importantly, that she recognized and could identify him. Furthermore, despite his “apologies,” the defendant subsequently blamed the victim and accused her of making up the accusations.

We find that the trial court adequately considered the relevant factors in imposing sentence. Additionally, the sentences are not disproportionate to the severity of the defendant’s crimes and do not shock the sense of justice. Therefore, this assignment of error lacks merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . Ordinarily, a sentence imposed under an agreed sentencing cap cannot be appealed. La.C.Cr.P. art. 881.2; State v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171. However, during the guilty plea colloquy, the trial court specifically told the defendant that he would be able to appeal his sentences. In close cases, this court has held that fairness dictates allowing review of the sentence, even when the defendant is sentenced within an agreed sentencing range or cap where the defendant was unaware that he was waiving his right to appeal the sentence. See State v. Smith, 47,-800 (La.App.2d Cir.2/27/13), 110 So.3d 628; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214. Therefore, we will review the defendant's sentences in the instant case.


text:
    N. Edward HAKIM, Plaintiff-Appellant v. Daisy O’DONNELL, Defendant-Appellee N. Edward Hakim, Plaintiff-Appellant v. Nexstar Broadcasting, Inc. d/b/a KTVE NBC 10, Defendant-Appellee.
    Nos. 49,139-CA, 49,140-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Joe D. Guerriero, for Appellant, N. Edward Hakim.
    Jones Walker LLP, Baton Rouge, By A. Justin Ourso III, for Appellees, Daisy O’Donnell and Nexstar Broadcasting, Inc. d/b/a KTVE NBC 10.
    Before WILLIAMS, CARAWAY and GARRETT, JJ.
   GARRETT, J.

| immediately after a federal court proceeding in Monroe, Louisiana, in a highly publicized criminal matter, a television reporter approached one of the defendants in that case and asked the following question: Eddie Hakim gave testimony to make his IRS investigation go away. Is it enough to acquit you?

Following the broadcast of this exchange, the plaintiff in the present matter, N. Edward Hakim, the key government witness in the criminal trial, brought suit for defamation against the reporter, Daisy O’Donnell, and her employer, Nexstar Broadcasting, Inc., d/b/a KTVE NBC 10 (“Nexstar”). For the reasons given below, we affirm the ruling of the trial court which granted summary judgment in favor of the defendants and dismissed the case.

FACTUAL AND PROCEDURAL BACKGROUND

Hakim is a businessman in Monroe who became involved in the bribery of two Monroe City Council members, Robert E. “Red” Stevens and Arthur Gilmore, Jr. Hakim began paying bribes to the councilmen in 2006. In early 2008, he contacted the FBI. Hakim aided the FBI in obtaining audio and videotape recordings of the transactions from early 2008 until late 2009.

In October 2009, Blake Deshotels, a former employee of Hakim, went to the IRS and alleged that Hakim committed tax fraud by hiding assets from the government and committing criminal tax violations. In November 2009, a criminal IRS investigation of Hakim was opened by the IRS, but Hakim was not notified of the investigation. The investigation was closed in May 2010. Ordinarily, the matter would have been referred for a civil IRS investigation to determine whether to conduct an audit. However, IRS ^Special Agent Darrin Heusel, at the instruction of his supervisor, held the case in abeyance due to Hakim’s cooperation in the case against Stevens and Gilmore.

In June 2010, Stevens and Gilmore were indicted for violating the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), by taking bribes in connection with their positions as city councilmen, and the Hobbs Act, which makes it illegal for public officials to use the power of their offices to extort money. The case was tried in federal court in 2011. Hakim was the main witness for the prosecution. Stevens and Gilmore were convicted by a jury on May 10, 2011.

Near the end of the trial, Deshotels informed counsel for Stevens that he had complained to the IRS regarding Hakim and an investigation was opened, but later closed by the IRS. Defense counsel for Stevens and Gilmore believed that they should have been informed of the IRS investigation in order to question Hakim about it during the trial. In June 2011, various post-trial motions, including motions for new trial, directed verdict, and for acquittal, were filed by Stevens and Gilmore based upon the Deshotels information.

The motions were scheduled for consideration by the federal court on August 15, 2011. Before court convened, the Assistant United States Attorneys and defense counsel met for an extended period of time in chambers with the federal judge who had presided over the defendants’ jury trial to discuss evidentiary issues. When the matter was taken up in open court, an ordinary evidentiary hearing was not conducted. Instead, the ^attorneys for the prosecution and the defendants proceeded to describe a lengthy list of exhibits, affidavits, documents, and stipulations that were being submitted to the federal court for its consideration. The parties also asked to submit additional briefs to the court in connection with the filings.

Counsel for one of the defendants stated that his client wished to stipulate that:

[I]f Agent Heusel were called to testify, that he would testify that his supervisor informed him that they were not going to refer Mr. Hakim’s case to the civil section of the IRS for a possible audit since he was a cooperating witness with the government.

The Assistant United States Attorney agreed with the stipulation stating:

If Agent Heusel had been called to testify, that’s what he would testify to.

The stipulation concerning Agent Heusel constituted only part of the very complicated matter being submitted to the federal district court.

O’Donnell had covered the trial of Stevens and Gilmore, was present in court on August 15, 2011, and heard the above stipulation. Immediately after court adjourned, she approached Stevens, and was filmed asking him:

Eddie Hakim gave testimony to make his IRS investigation go away. Is it enough to acquit you?

Stevens responded:

It’s up to a judge. A judge will make that call.

Later that day, Nexstar broadcast a live report by O’Donnell on its television station, KTVE. The report included the video of O’Donnell’s interaction with Stevens.

|4On September 14, 2011, the federal court issued a 43-page opinion granting a new trial to Stevens and Gilmore. Although this ruling was later reversed by the same judge in January 2012, this sequence of events demonstrates the complex legal issues that were at issue.

In April 2012, Hakim filed separate defamation suits against O’Donnell and Nex-star based upon the statement made in the news broadcast in August 2011. The cases were consolidated by the lower court.

We note that, in his petitions, the plaintiff failed to quote the entire inquiry made by O’Donnell to Stevens which places it in the proper context. Rather, he alleged, “Plaintiff shows that the Defendant reported on the trial of two Monroe City Councilmen, which began' in April of 2011, and reported on or about August 15, 2011 by erroneous information about Plaintiff to [its] entire viewing audience on said viewing date, namely by stating, ‘Eddie Hakim gave his testimony in exchange for his IRS investigation going away.’ ” The plaintiff did not set forth in his petition that the statement also included the question by O’Donnell to Stevens, “Is it enough to acquit you?” or Stevens’ response, “It’s up to a judge. A judge will make that call.”

Hakim asserted that he did not know of the IRS investigation at the time he gave his testimony. He claimed that O’Donnell failed to properly investigate the situation to ascertain the truth and, with reckless abandon, made the statement which caused the viewing public to think that there was an arrangement between Hakim and the United States Attorney’s office for Hakim to trade his testimony to relieve himself of possible legal Inconsequences. He alleged that O’Donnell was an agent of Nexstar who was acting in the course and scope of her employment when she made the statement. He claimed that the airing of the false statement constituted defamation and/or slander which damaged his reputation. He sought to recover monetary damages.

The defendants answered, admitting that O’Donnell made the statement, but asserting that the words were taken out of context of the full news report that was broadcast. The defendants denied that the statement was made with any knowledge of its falsity, that it was defamatory, or that Hakim’s reputation was harmed by the statement.

As affirmative defenses, the defendants asserted that the statement was not defamatory as a matter of law because it was broadcast as a report on newsworthy accusations or statements made during a criminal proceeding and was not susceptible to defamatory interpretation. They argued that the news report was capable of an innocent construction because the statement complained of by the plaintiff was a reasonable inference drawn by O’Donnell from newsworthy accusations or statements made during a criminal proceeding. The defendants asserted that the statement was conditionally privileged as a fair and substantially accurate news report on a public judicial proceeding and on a public figure. They claimed the statement was not broadcast with any knowledge that it was false or with reckless disregard for its truth or falsity. The defendants maintained that all inferences made were reasonable and Hakim had not been damaged.

|f,In April 2013, the defendants filed a motion for summary judgment. They contended that O’Donnell’s statement may have contained a mistaken conclusion based upon the stipulation she had heard in court since Hakim did not know he was being investigated by the IRS. They claimed entitlement to summary judgment because the statement was a reasonable inference and an innocent construction of what was heard in court and it was substantially true. They contended that they were entitled to the conditional privilege which attaches to the fair report of governmental proceedings, and the statement was not made with knowledge of falsity or reckless disregard of any falsity.

A hearing was held on the motion for summary judgment on September 5, 2013. At the conclusion of the hearing, the trial court provided extensive oral reasons for its ruling. The trial court found that a conditional privilege applied in this situation and that the Louisiana Supreme Court ease of Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.7/10/06), 935 So.2d 669, provided the applicable legal analysis. Based upon the stipulation O’Donnell heard in court, the trial court reasoned that a lay person could make the reasonable conclusion that there was some type of quid pro quo for Hakim’s testimony. The trial court observed that although O’Donnell’s statement, made right after hearing the stipulation, may have been negligent, O’Donnell and the station were not highly aware that the statement was false. According to the court, there was no showing 17by the plaintiff of malice or lack of good faith. For those reasons, the trial court granted summary judgment in favor of the defendants.

On appeal, the plaintiff argues that the defendants are not entitled to claim a conditional privilege. The plaintiff also contends there is a question of fact as to whether O’Donnell knew or should have known her statement was inaccurate due to her work in covering the bribery trial on a daily basis and reading documents filed before and after the trial. These arguments are without merit.

DEFAMATION AND CONDITIONAL PRIVILEGE

The right to free speech is guaranteed in the constitutions of both the United States and Louisiana. The First Amendment to the United States Constitution provides in pertinent part:

Congress shall make no law ... abridging the freedom of speech, or of the press [.]

The Louisiana Constitution Art. 1, § 7, states:

No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.

The United States Supreme Court has held that not all speech is of equal First Amendment importance. It is speech on matters of public concern that is at the heart of the First Amendment’s protection. Dun & \%Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). Matters of public concern relate to any matter of political, social, or other concern to the community. Whether speech addresses matters of public concern must be determined by the content, form, and context of a given statement, as revealed by the entire record. See Kennedy v. Sheriff of East Baton Rouge, supra.

Abuses of the right to free speech are actionable under Louisiana law. A cause of action for defamation arises out of a violation of La. C.C. art. 2315. Fitzgerald v. Tucker, 1998-2313 (La.6/29/99), 737 So.2d 706. A statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Kennedy v. Sheriff of East Baton Rouge, supra.

Four elements are necessary to establish a claim for defamation: (1) a false or defamatory statement concerning another; (2) an unprivileged publication to a third party; (8) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy v. Sheriff of East Baton Rouge, supra; Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129; Trentecosta v. Beck, 1996-2388 (La.10/21/97), 703 So.2d 552.

Defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic |afacts or circumstances, are considered defamatory per se. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault), and injury. Kennedy v. Sheriff of East Baton Rouge, supra; Costello v. Hardy, supra.

The Louisiana Supreme Court in Kennedy v. Sheriff of East Baton Rouge, supra, provides a tutorial for navigating and applying the various pronouncements on the law of defamation from the United States Supreme Court and the Louisiana Supreme Court.

The court in Kennedy observed that, in determining the standard of liability in defamation claims, the Supreme Court makes a distinction between plaintiffs who are public officials or figures and private individuals. The case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), imposed a high standard on public officials who seek to recover for defamation. In the context of public officials and official conduct, the Supreme Court observed that erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space they need to survive. | inThe Supreme Court held that a public official cannot recover damages for a defamatory falsehood published in relation to official conduct unless he proves actual malice, that is, a statement made with knowledge that it was false or with reckless disregard of whether the statement was false or not. Actual malice must be proven with convincing clarity.

The case of Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), extended the standard of liability outlined in New York Times to public figures. That term is defined as non-public officials who are intimately involved in the resolution of important public questions or who, by reason of their fame, shape events in areas of concern to society at large. The Supreme Court later recognized the concept of a limited purpose public figure, which are public figures who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

A different standard is applicable where a plaintiff asserting a defamation claim is a private individual. Declining to extend the standard of liability in New York Times to private individuals, the Supreme Court in Gertz v. Robert Welch, Inc., supra, held that where a private individual sues a media defendant for defamation on an issue of public concern, the states can apply their own standards as long as they do not apply liability without fault. The Supreme Court recognized that a state’s interest in compensating injury to the reputation of individuals is greater in the case of private individuals than for public officials and figures, because private individuals 1,, characteristically have less access to channels of effective communication to counteract false statements than do public ■ officials and public figures. Private individuals have not, by placing themselves in the public eye, voluntarily exposed themselves to the increased risk of injury from defamatory falsehoods. See also Kennedy v. Sheriff of East Baton Rouge, supra.

The Louisiana Supreme Court in Kennedy observed that, in its defamation analysis, the United States Supreme Court has considered whether the defendant is a media or a non-media defendant. However, the court in Kennedy concluded that there was no reason to distinguish between media and non-media defendants.

In addressing the standard of liability, the court in Kennedy concluded that, in cases involving private individuals allegedly injured by a defamatory falsehood in a matter of public concern, the plaintiff must prove that negligence exists as set forth in Restatement (Second) of Torts § 580B (1977). That standard requires the plaintiff to show that the defendant knows the statement to be false and that it defames the other, acts in reckless disregard of these matters, or acts negligently, in failing to ascertain them.

The fault requirement is often set forth in the jurisprudence as malice, actual or implied. Costello v. Hardy, supra. Thus, in order to prevail on a defamation claim, a plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words 11 ¿which caused the plaintiff damages. If even one of the required elements of the tort is lacking, the cause of action fails. Costello v. Hardy, supra.

Privilege is a defense to a defamation action. The doctrine of privilege rests upon the notion that sometimes, as a matter of public policy, in order to encourage the free communication of views in certain defined instances, one is justified in communicating defamatory information to others without incurring liability. Privileged communications are divided into two general classes: (1) absolute; and (2) conditional or qualified. Kennedy v. Sheriff of East Baton Rouge, supra.

An absolute privilege exists in a limited number of situations, such as statements by judges and legislators in judicial and legislative proceedings. A conditional or qualified privilege arises in a broader number of instances. There are a variety of situations in which the interest that an individual is seeking to vindicate or to further is regarded as sufficiently important to justify some latitude for making mistakes so that publication of defamatory statements is deemed to be conditionally or qualifiedly privileged. Kennedy v. Sheriff of East Baton Rouge, supra; Trentecosta v. Beck, supra.

The elements of a conditional privilege have been described as good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner to the proper parties only. Kennedy v. Sheriff of East Baton Rouge, supra; Martin v. State, Dep’t of Pub. Safety & Corr., Office of State Police, 47,647 (La.App.2d Cir.1/16/13), 109 So.3d 442. The privilege arises from the societal necessity of permitting full and unrestricted communieation | ^concerning a matter in which the parties have an interest or duty without inhibiting free communication in such circumstances by fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate. Kennedy v. Sheriff of East Baton Rouge, supra; Dyas v. Shreveport Police Dept., 48,804 (La.App.2d Cir.2/26/14), 136 So.3d 897.

The practical effect of the assertion of the conditional or qualified privilege is to rebut the plaintiffs allegation of fault and to place the burden of proof on the plaintiff to establish abuse of privilege. Dyas v. Shreveport Police Dept, supra.

Determining whether a conditional or qualified privilege exists involves a two-step process. First, it must be determined whether the attending circumstances of a communication occasion a conditional or qualified privilege. The second step of the analysis is a determination of whether the privilege was abused, which requires that the grounds for the abuse— malice and lack of good faith — be examined. The first step is generally determined by the court as a matter of law. The second step of determining abuse of a conditional or qualified privilege or malice is generally a fact question unless only one conclusion can be drawn from the evidence. Kennedy v. Sheriff of East Baton Rouge, supra.

A conditional or qualified privilege has been extended to include those situations in which there is a reporting of governmental proceedings 114and activities. Trentecosta v. Beck, supra. This privilege is primarily extended to the media, but also extends to any person who makes an oral, written, or printed report to pass on information that is available to the general public. Trentecosta v. Beck, supra.

A privilege is abused if the publisher (a) knows the matter to be false, or (b) acts in reckless disregard as to its truth or falsity. Kennedy v. Sheriff of East Baton Rouge, supra; Trentecosta v. Beck, supra.

Mere negligence as to the falsity (or lack of reasonable grounds for believing the statement to be true) is not sufficient to prove abuse of the conditional privilege. Instead, knowledge or reckless disregard as to falsity |1Ris necessary for this purpose. Kennedy v. Sheriff of East Baton Rouge, supra; Martin v. State, Dep’t of Pub. Safety & Corr., Office of State Police, supra. Failure to investigate does not present a jury question on whether a statement was published with reckless disregard for the truth. Romero v. Thomson Newspapers (Wisconsin), Inc., 1994-1105 (La.1/17/95), 648 So.2d 866, cert, denied, 515 U.S. 1131, 115 S.Ct. 2556, 132 L.Ed.2d 810 (1995); Kennedy v. Sheriff of East Baton Rouge, supra. Under this standard, even proof of gross negligence in the publication of a false statement is insufficient to prove reckless disregard. Kennedy v. Sheriff of East Baton Rouge, supra.

In considering the definition of “reckless disregard,” Kennedy noted that the Supreme Court has explained that only those false statements made with a high degree of awareness of their probable falsity meet the reckless disregard standard, citing Garrison v. State of La., 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). The Supreme Court stated that reckless disregard requires a plaintiff to prove that the publication was deliberately falsified, or published despite the publisher’s awareness of probable falsity. Curtis Pub. Co. v. Butts, supra; Kennedy v. Sheriff of East Baton Rouge, supra. The Supreme Court has noted that there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Kennedy v. Sheriff of East Baton Rouge, supra.

| ^SUMMARY JUDGMENT A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaba v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053; Carter Enterprises, LLC v. Scott Equipment Co., LLC, 46,862 (La.App.2d Cir.4/11/12), 91 So.3d 1134.

Appellate courts review summary judgments de novo, under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Ctr., 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247, writ not cons., 2008-1507 (La.10/10/08), 993 So.2d 1273. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, supra; Carter Enterprises, LLC v. Scott Equipment Co., LLC, supra.

Because of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Summary adjudication is a useful tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeri-torious actions which threaten the free exercise of rights of speech |17and press. Mashbum v. Collin, 855 So.2d 879 (La. 1977); Kennedy v. Sheriff of East Baton Rouge, supra. See and compare Sassone v. Elder, 626 So.2d 345 (La.1993).

Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Jenkins v. Willis Knighton Medical Ctr., supra. The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim; he need only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2); Carter Enterprises, LLC v. Scott Equipment Co., LLC, supra.

DISCUSSION

In the present case, the trial court opined that there was a genuine issue of material fact as to whether the plaintiff was a public figure and that issue could not be resolved on a motion for summary judgment. The defendants question this finding on appeal. We find it unnecessary to decide this issue. Even assuming the plaintiff to be a private individual for |1spurposes of evaluating this matter, the trial court correctly found that the defendants were entitled to summary judgment.

Under Gertz and Kennedy, discussed above, the defamation claim of a private individual plaintiff against both media and non-media defendants is evaluated under the negligence standard contained in Restatement (Second) of Torts § 580B (1977), unless a conditional privilege applies. As set forth above, the existence of a privilege is a question of law. Here, there is no question that the conditional privilege for the reporting of governmental proceedings and activities, announced in Trentecosta v. Beck, supra, is applicable. The defendants were reporting on judicial proceedings regarding public corruption, which was a matter of public concern.

Because the privilege exists in this matter, the negligence standard for determining liability for defamation is not applicable. Rather, the plaintiff was required to show that the conditional privilege was abused. As set forth above, mere negligence, gross negligence, and even failure to investigate the alleged defamatory statement are insufficient to show abuse of the privilege. The plaintiff was required to show that the defendants knew the matter to be false or acted in reckless disregard as to its truth or falsity. This requires a showing that the publication was deliberately falsified or published despite awareness of its probable falsity.

The plaintiff in this case has continued to argue the applicability of the negligence standard and asserts that O’Donnell, by virtue of covering the bribery trial of the councilmen, reviewing some of the court documents, and frequently speaking with the attorney for one of the defendants, should | Tflhave known that the plaintiff was unaware of the IRS investigation of him and did not trade his testimony for a termination of that investigation. The negligence standard is simply not applicable in this case.

In connection with the bribery case, the federal trial court considered the councilmen’s motions for new trial along with several other motions. After the two-hour conference with the attorneys in chambers, the parties submitted to that court numerous exhibits and affidavits, as well as stipulations as to what certain witnesses would say if called to testify. The federal trial court heard no evidence, but agreed to review the documents and stipulations. Approximately one month later, the scholarly federal trial court issued its original, lengthy, 43-page opinion granting the motion for new trial.

The federal court observed that the IRS investigation provided an avenue of attack on Hakim’s capacity for truthfulness not otherwise explored. The court noted that at trial, Hakim held himself out as someone completely unaware that he was paying bribes until one day it occurred to him that he was the victim of the Stevens and Gilmore; then he felt compelled to end the corruption. The court stated that, while other testimony showed Hakim to be a tough businessman who was not well-liked by local political figures, Deshotels’ allegations and the existence of the IRS 12oprimary investigation undercut Hakim’s portrayal of himself as an honest businessman seeking to right a wrong. The court observed that the undisclosed information regarding the IRS investigation demonstrated that the plaintiff had a reason to be biased in his testimony in the bribery case and the jury was improperly denied the opportunity to consider that bias. The court noted that, although the plaintiff was unaware of the IRS primary investigation, he was aware of his conduct giving rise to the investigation. The court stated, “Thus Hakim had motivation to assist the FBI with an investigation into public bribery and to deflect attention from himself. Defendants would have been able to offer extrinsic evidence of this bias at trial.”

The federal trial court concluded that the plaintiff “received a benefit of which the jury was unaware. Because he assisted the FBI in this case, the IRS did not move forward his ease to the civil unit to determine if an audit should be performed. The Government candidly admits that he received a benefit in this way.” The court noted that the plaintiff received the benefit of not having an IRS audit performed and may have received the benefit of keeping a large sum of money he and his companies were obligated to pay the IRS. The court concluded, “Given the Government’s reliance on Hakim’s testimony and Defendants’ defense of attacking Hakim’s credibility, the Court cannot say with confidence that Stevens and Gilmore received a fair trial in the absence of evidence of the Deshotel allegations, the IRS primary investigation, and the benefit conferred on Hakim by the IRS. Therefore, Defendants are entitled to a new trial.”

_|gjEven though the federal trial court later reversed its ruling, its initial ruling shows that, even with an intense, thorough, and lengthy review of all the factors in this case, that court concluded that the plaintiff received a benefit from the termination of the IRS investigation of him. This conclusion was very similar to that drawn by O’Donnell, a lay person, immediately after the hearing. In this context, it is clear that the conclusion drawn by O’Donnell may have been a misunderstanding of the stipulation she heard in court, but her conclusion certainly was reasonable and understandable. Her statement was a fair abridgment of the occurrence reported and was a comment on a judicial proceeding made in the reasonable belief of its truth. As observed in Hopkins v. Keith, 348 So.2d 999 (La.App. 2d Cir.1977), unit not cons., 350 So.2d 893 (La.1977):

In reporting matters of public interest involving legal and judicial proceedings and records some errors and inaccuracies are bound to occur in the use of technical terms. Not every error or inaccuracy should be actionable. The error should be a significant variation from the truth to give rise to liability. In order to avoid a chilling effect on the exercise of First Amendment rights, the media must be allowed breathing space.

The plaintiff has failed to present any evidence to show that the defendants knew the statement made by O’Donnell was false or that they acted in reckless disregard of its truth or falsity. In other words, the plaintiff has failed to show that the defendants had a high degree of awareness of the statement’s probable falsity or entertained serious doubt as to its truth. As noted by the trial court, the only conclusion that can be drawn from the circumstances surrounding this case is that the conditional privilege was not | ^abused. Therefore, the plaintiff will not be able to prevail on his claim for defamation.

The plaintiff had the burden of proving his probable success on his defamation claim against the defendants. Against the backdrop of the undisputed facts of this case, it is clear that a conditional privilege applied, raising the standard of liability to be proved by the plaintiff to that of actual malice. Further, the plaintiff has failed to show that the conditional privilege was abused. The trial court was correct in granting summary judgment in favor of the defendants.

CONCLUSION

For the reasons stated above, the ruling of the trial court, granting summary judgment in favor of the defendants, Daisy O’Donnell and Nexstar Broadcasting, Inc., d/b/a KTVE NBC 10, and dismissing the claims of the plaintiff, N. Edward Hakim, is affirmed. Costs in this court are assessed to the plaintiff.

AFFIRMED.

      . Even though the trial court found that the defendants were entitled to summary judgment due to the existence of a conditional privilege, it also found that several arguments were made that did not entitle the defendants to summary judgment. According to the court, the substantial truth argument involves a fact question as to whether the plaintiff’s reputation was harmed by the fact that the statement was made. Next, the court found there was a genuine issue of material fact as to whether the plaintiff was a public figure. The court observed that, because it found the conditional privilege applied, it did not reach the issue of injury, but observed that there was no showing as to that element.

      . In Kennedy, the Louisiana Supreme Court considered a claim of defamation by a private individual against a non-media defendant. The plaintiff in that case presented a $100 bill at a fast food restaurant to pay for a purchase. Restaurant employees suspected the bill was counterfeit and alerted law enforcement officials. The plaintiff was handcuffed and detained by sheriff's deputies. However, it was soon determined that the money was not counterfeit. The plaintiff was released and his money returned. The plaintiff sued the restaurant and the sheriffs office on several grounds, including defamation. The defendants were granted summary judgment in the trial court. The decision was reversed by the appellate court, but reinstated by the Louisiana Supreme Court.

      . Restatement (Second) of Torts, § 611 (1977) provides:
      The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

      . Criminal statutes are not, in and of themselves, definitive of civil liability and do not set the rule for civil liability; but they may be guidelines for the court in fixing civil liability. Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790, (La. 10/19/92); Martin v. State, Dep't of Pub. Safety & Corr., Office of State Police, supra. Although this is a civil matter, it is interesting to note that La. R.S. 14:47 provides for criminal defamation. A qualified privilege to that offense is provided in La. R.S. 14:49:
      A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
      (1) Where the publication or expression is a fair and true report of any judicial, legislative, or other public or official proceeding, or of any statement, speech, argument, or debate in the course of the same.
      (2) Where the publication or expression is a comment made in the reasonable belief of its truth, upon,
      (a) The conduct of a person in respect to public affairs; or
      (b) A thing which the proprietor thereof offers or explains to the public. (3) Where the publication or expression is made to a person interested in the communication, by one who is also interested or who stands in such a relation to the former as to afford a reasonable ground for supposing his motive innocent.
      (4) Where the publication or expression is made by an attorney or party in a judicial proceeding.

      . We note that a special defense motion to strike, which is akin to a motion for summary judgment, exists for defamation and other actions concerning the rights to petition and to free speech in connection with a public issue under the United States and Louisiana constitutions. See La. C.C.P. art. 971. This motion was not utilized in this case.

      . We note that, at oral argument, plaintiffs counsel cited the unreported case of Henry v. Lake Charles American Press, L.L.C., (W.D.La. 2008), 2008 WL 398506, in support of his claim that the negligence standard applies in this case. In this version of Henry, a federal district court denied a special motion to strike under La. C.C.P. art. 971, finding that the plaintiff had established a probability of success on his defamation claim under the negligence standard. The district court did not discuss the applicability of a conditional or qualified privilege. Plaintiff’s counsel did not note to this court that the district court decision was reversed by the Fifth Circuit in Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir.2009), based upon its finding that the plaintiff had not demonstrated a probability of success in his defamation claim and granting the motion to strike in favor of the defendant. Accordingly, Henry is unpersuasive.

      . This case is distinguishable from Bradford v. Judson, 44,092 (La.App.2d Cir.5/6/09), 12 So.3d 974, , writ denied, 2009-1648 (La. 10/16/09), 19 So.3d 482, in which this court found there was a genuine issue of material fact as to whether a conditional privilege was abused. Here, the only conclusion that can be drawn is that there was no abuse.