author: WHIPPLE, J.

text:
    Altheia LeBLANC, Individually and on Behalf of the Minor Child, Tynari LeBlanc; Eula LeBlanc; Cheryl Miller, Individually and on Behalf of the Minor Children Kim Nicolas and Shenita Nicolas; and Christine Robinson, Individually and on Behalf of the Minor Children Eric Robinson and De’Eric Robinson v. BOUCHEREAU OIL COMPANY, INC. and Edward LeBlanc.
    No. 2008 CA 2064.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Rehearing Denied June 15, 2009.

      Stephen Irving, Richard Dodson, Kenneth H. Hooks, III, Baton Rouge, LA, for Plaintiffs/Appellants, Altheia LeBlanc, et al.
    Steven Judice, Baton Rouge, LA, for Defendant/Appellee, Bouchereau Oil Company, Inc.
    Before CARTER, C.J., WHIPPLE, and DOWNING, JJ.
   WHIPPLE, J.

|2This matter is before us on appeal by plaintiffs, Altheia LeBlanc, individually and on behalf of the minor child, Tynari LeBlanc; Eula LeBlanc; Cheryl Miller, individually and on behalf of the minor children, Kim Nicolas and Shenita Nicolas; and Christine Robinson, individually and on behalf of the minor children, Eric Robinson and De’Eric Robinson (hereinafter referred to collectively as “plaintiffs”), from the trial court’s grant of summary judgment in favor of the defendant, Bouch-ereau Oil Company, Inc. (“Bouchereau Oil”). For the following reasons we affirm the judgment.

FACTUAL BACKGROUND

On July 23, 2006, at approximately 8:00 p.m., defendant, Edward LeBlanc (“Le-Blanc”), who had been drinking alcohol and whiskey and smoking crack cocaine earlier in the day, returned to the home of his sister, Altheia LeBlanc (one of the plaintiffs herein) where he was “staying.” After an argument with Altheia about her refusal to allow him into the mobile home without first removing his muddy shoes, LeBlanc left the home, rode his bicycle to the defendant’s Chevron station approximately one block away, and purchased fifty cents’ worth of gasoline, which he placed in a two-liter coke bottle. He returned to his sister’s home approximately thirty minutes later and knocked on the door. After Altheia opened the door to her home, Le-Blanc threw gasoline on the floor, then onto her, and ignited a cigarette lighter, setting Altheia and the mobile home on fire. LeBlanc then ran away.

LeBlanc’s mother, Altheia’s minor son, Altheia’s two minor cousins, and LeBlanc’s two minor nephews were also present in the home and were forced to flee the home to escape the flames. As a result of Le-Blanc’s actions, Altheia ^received third-degree burns on 55% of her body. Le-Blanc’s mother, Eula LeBlanc, received second and third-degree burns to her legs and arm while trying to escape through the doorway. The five minor children escaped through a window, but did not suffer physical injuries.

On December 17, 2006, plaintiffs filed suit against Bouchereau Oil, the owner of the Chevron station where LeBlanc purchased the gasoline, and LeBlanc. Plaintiffs’ claims against Bouchereau Oil were essentially that the Chevron attendant employed by Bouchereau Oil was negligent in selling gasoline to LeBlanc while he was in an intoxicated state.

In response, Bouchereau Oil filed a motion for summary judgment, essentially contending that a seller of gasoline does not have a duty to assess the competency of an adult customer before allowing him to purchase gasoline. The matter was set for hearing before the trial court on March 24, 2008. On March 81, 2008, the trial court issued reasons for judgment in support of its finding that the Chevron attendant did not have a duty to assess the competency of a gasoline purchaser prior to a sale and that Bouchereau Oil was accordingly entitled to summary judgment in its favor as a matter of law. A written judgment dismissing plaintiffs’ claims against Bouchereau Oil, with prejudice, was signed by the trial court on April 14,2008.

Plaintiffs appeal, contending that the trial court erred as a matter of law in: (1) finding that a vendor of gasoline is not obligated to discover the “obvious incompetence” as a result of intoxication of a gasoline purchaser; and (2) failing to find that Bouchereau Oil’s own safety policy established a duty to assess the competence of a purchaser of gasoline.

I ¿DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, the movant need only show that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Asberry v. The American Citadel Guard, Inc., 2004-0929 (La.App. 1st Cir.5/6/05), 915 So.2d 892, 894. If, however, the mov-ant fails in his burden to show an absence of factual support for one or more of the elements of the adverse party’s claim, the burden never shifts to the adverse party, and the movant is not entitled to summary judgment. Asberry v. The American Citadel Guard, Inc., 915 So.2d at 894.

Appellate courts review summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Granda v. State Farm, Mutual Insurance Company, 2004-2012 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 701. Material facts are those that potentially insure or preclude recovery, affect the litigant’s success, or determine the outcome of a legal dispute. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to |sthe case. Gomon v. Melancon, 2006-2444 (La.App. 1st Cir.3/28/07), 960 So.2d 982, 984, writ denied, 2007-1567 (La.9/14/07), 963 So.2d 1005.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of LSA-C.C. art. 2315. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Cusimano v. Wal-Mart Stores, Inc., 2004-0248 (La.App. 1st Cir.2/11/05), 906 So.2d 484, 487-488. A negative answer to any of the inquiries of the duty/risk analysis results in a determination of no liability. Mathieu v. Imperial Toy Corporation, 94-0952 (La.11/30/94), 646 So.2d 318, 326.

The threshold question in a duty-risk analysis is whether the defendant owed a duty to the plaintiff. Whether a duty is owed is a question of law. Bezel v. Original Library Joe’s, Inc., 2001-1586 (La.App. 1st Cir.11/8/02), 838 So.2d 796, 800. Simply put, the inquiry is whether a plaintiff has any law — -statutory, jurisprudential, or arising from general principles of fault — to support his or her claim. Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 815, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231. Where no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Griffin v. Shelter Insurance Company, 2002-2628 (La.App.6 1st Cir.9/26/03), 857 So.2d 603, 605, writ denied, 2003-2992 (La.1/16/04), 864 So.2d 635.

The determination of whether a particular risk of harm is reasonable is also a matter wed to the facts of the case. In general, it is improper to characterize a risk as unreasonable without considering the surrounding circumstances. Griffin v. Shelter Insurance Company, 857 So.2d at 605. A court must determine whether the risk is unreasonable vis-á-vis the particular plaintiff involved. In doing so, it is appropriate to consider any contractual obligations owed by the plaintiff to the defendant with respect to the particular risk that resulted in harm. Griffin v. Shelter Insurance Company, 857 So.2d at 605. The status of the plaintiff is a factor to be considered in the fact-specific determination of whether a risk is unreasonable. Griffin v. Shelter Insurance Company, 857 So.2d at 605-606.

In support of its claim that summary judgment was properly granted herein, Bouchereau Oil contends that there is no reported decision in the State of Louisiana that holds a gas station attendant liable for selling gasoline to a person who uses that gasoline in an intentional assault. Bouch-ereau Oil further contends that the duty plaintiffs seek to impose herein would improperly require gas station attendants to assess the sobriety of each and every patron who came into the station to purchase gasoline.

In opposition to Bouchereau Oil’s arguments in favor of summary judgment on the issue of whether a duty exists, plaintiffs counter that Jones v. Robbins, 289 So.2d 104 (La.1974), recognized and established a duty on behalf of a vendor to refuse to sell gasoline to an “incompetent person” and that LeBlanc, who purchased the gasoline while in an intoxicated state, should be considered “incompetent” in determining the duty owned by the defendant. We find no merit to plaintiffs’ argument.

|7In Jones, where a station attendant allowed a six-year-old to purchase gasoline that was ultimately used to create a fire causing burns to her four-year-old sister, the Court found a duty was owed by the vendor of gasoline “not to place it in the hands of those who, by reason of age or other disabilities, are unaware of the special propensities of the material, and of precautionary measures which must be taken when using or storing it.” Jones v. Robbins, 289 So.2d at 107. The Court then determined that the act of placing gasoline in the hands of “an incompetent child earned with it full realization, or at least a requirement to realize, that the conduct of the small child with the dangerous substance involved an unreasonable risk of harm to others ... [particularly ... the expectation of child group play.” Jones v. Robbins, 289 So.2d at 107.

On review, we do not find that any duty recognized in Jones applies herein. As set forth in Jones, the duty of a vendor not to place gasoline in the hands of an incompetent or small child of tender age, as recognized under the particular circumstances therein, exists to protect small children, inasmuch as a six-year-old would have little reason to understand the dangerous propensities of gasoline and no recognition or ability to “treat gasoline differently than they would water, milk or other liquids[,] which have no dangerous propensities for exploding or becoming ignited.” See Jones v. Robbins, 289 So.2d at 107.

In the instant case, LeBlanc’s testimony clearly establishes that he acted intentionally when he purchased and later used the gasoline to set his sister and her home on fire, after dousing her with the gasoline. Notably, the duty discussed in Jones has not been extended to encompass the sale of gasoline to an adult, who is aware of its dangerous propensities, like LeBlanc. Importantly, the duty set forth in Jones was not extended to circumstances involving the sale of gasoline to a twelve-year-old child. See Daniels v. Datiphine, 557 So.2d 1062, 1066 (La.App. 2nd Cir.1990), writ denied, 561 So.2d 100 (La.1990) (where the court |8found “a substantial difference in selling gasoline to a six-year-old, as in Jones v. Robbins, and selling [gasoline] to a [twelve]-year-old .... [who] is considerably more mature and experienced than a six-year-old, and can hardly be referred to as an incompetent.”).

Thus, we find the trial court correctly determined that under the undisputed facts of this case, plaintiffs would be unable to satisfy their evidentiary burden of proof at trial, as there was no duty owed or imposed, as a matter of law — either statutory, jurisprudential, or arising from general principles of fault — upon Boucher-eau Oil to protect against these acts by LeBlanc.

Further, to the extent that plaintiffs argue that Bouchereau Oil had a duty not to allow LeBlanc to purchase gasoline because he was “visibly intoxicated” and thereby “incompetent,” we note that the Chevron attendant, Ursula Landry White, specifically testified that on the day in question, LeBlanc came into the station and bought between fifty and seventy cents’ worth of gas. She stated that he did not appear “drunk” or intoxicated and that she had never seen him in a “drunk” or intoxicated state. Mrs. White testified that LeBlanc came in, laid his money on the counter, asked for gas, and “ran out.” She stated that from the counter where she works, she could not observe LeBlanc at the pump where he was pumping gas, but could only see the top of his head, LeBlanc likewise testified that he did not talk to Mrs. White. Rather, because he was “mad,” he did not want to talk to her, and simply got the gas and “left right out” and “took off.”

In addition, the videotape of Mr. Le-Blanc paying for the gasoline at the Chevron station shows no visible or discernible evidence of impairment. Thus, although Mrs. White admitted she was trained not to sell gasoline to someone who appeared to be drunk, the only showing on this issue is Mrs. White’s testimony that based on her observations, LeBlanc did not appear to be “drunk.” Thus, even if this court were to determine that Bouehereau Oil had a duty to not 19sell gasoline to a person who was visibly intoxicated, plaintiffs have failed to come forward with any evidence to show that they could satisfy their evi-dentiary burden of proof on this issue at trial or that the defendant breached any duty owed herein. Further, given the evidence of record and the undisputed facts herein, we find nothing in the record before us to show any duty owed on the part of Bouehereau Oil, under the undisputed facts, for this particular risk of harm. Moreover, there is nothing on the record before us to show an unreasonable risk of harm to plaintiffs was created by the sale of gasoline to LeBlanc. See Daniels v. Dauphine, 557 So.2d at 1066.

CONCLUSION

On the record before us, we find no error in the trial court’s conclusion that under the undisputed facts, Bouehereau Oil was entitled to judgment in its favor as a matter of law. Thus, we affirm the April 14, 2008, judgment of the trial court. Costs of this appeal are assessed to the plaintiffs/appellants.

AFFIRMED.

DOWNING, J. dissents.

      . This section contains a recitation of the undisputed facts.

      . Plaintiffs subsequently amended their petition to include as plaintiffs, two additional minors who are second cousins of Altheia and who allegedly were also present at the time of the incident.

      . Although Raymond Chapman, LeBlanc's uncle, testified that he spoke to LeBlanc shortly before he purchased the gasoline and that he appeared to be “drunk,” as per the uncontradicted evidence, Mrs. White’s testimony is that LeBlanc did not speak to her.

      . Given our determination that Bouehereau Oil had no legal duty herein, we further note that even if there was a legal duty that could be imposed we find that any such duty could not encompass the risks of LeBlanc’s actions herein.


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. CARR AND ASSOCIATES, INC. and Earl T. Carr, Jr.
    No. 2008 CA 2114.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Rehearing Denied June 15, 2009.

      Charles M. Hughes, Jr., Gary L. Hanes, Mandeville, LA, Henry T. Dart Covington, LA, for Plaintiff-Appellee, Louisiana State Bar Association.
    Jean-Paul Layrisson, Steven 0. Scan-durro, New Orleans, LA, for Defendants-Appellants, Carr and Associates, Inc. and Earl T. Carr, Jr.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

1 .This case involves the trial court’s grant of permanent injunctive relief in favor of the Louisiana State Bar Association (the LSBA) and against a public insurance adjuster, Earl T. Carr, Jr., and his public adjusting business, Carr and Associates, Inc. (hereafter collectively referred to as “Carr”). The injunctive relief is based on the trial court’s finding that Carr was engaged in the unauthorized practice of law, which is strictly prohibited by Louisiana law. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

The LSBA initiated this lawsuit on September 5, 2006, after receiving several complaints regarding Carr’s public insurance adjusting activities. Carr’s business involves contracting with individuals in a representative capacity in order to negotiate a settlement of the individual’s first-party property insurance claims with insurance companies. No employee of Carr is a licensed attorney in Louisiana or elsewhere. Carr’s fee for its public adjusting service is contingent upon and calculated by a percentage of the amount recovered for each claim. Based upon the complaints, the LSBA became convinced that Carr was engaged in the unauthorized practice of law because Carr: (1) advised and counseled its clients regarding the terms of their insurance policy coverage and their respective rights; (2) had direct contact and negotiated with its clients’ insurers regarding aspects of the clients’ insurance coverage, the monetary value of its clients’ claims, and settlement of its clients’ claims; (3) improperly used a contingency fee/percentage-based contract for its public adjusting services; and (4) instructed its clients’ insurers to send checks directly to Carr and made payable to Carr along with Carr’s clients. The LSBA believed that all of these activities were in direct violation of prohibitory language in the Louisiana Public Adjuster Act (the I,.LPAA), LSA-R.S. 22:1691, et seq. (formerly cited as LSA-R.S. 22:1210.91, et seq.), and constituted the unauthorized practice of law in violation of LSA-R.S. 37:212-213. Therefore, the LSBA sought a preliminary and permanent injunction restraining, enjoining, and prohibiting Carr from the outlined activities, as well as a declaratory judgment outlining what activities were prohibited by law.

In response to the LSBA’s petition, Carr filed an answer and peremptory exceptions raising the objections of no right of action and no cause of action. Carr argued that the LSBA lacked standing to regulate the activities of a non-lawyer and could not bring a civil suit to enforce a criminal statute. The trial court heal’d argument on the exceptions at the same time that it received evidence on the preliminary injunction. The evidence submitted to the trial court at a three-day hearing included: (1) copies of Carr’s various contingency fee and percentage-based compensation contracts that required payment from insurance companies to Carr and the insured client whom Carr represented; (2) copies of an advertising brochure, notice of representation, and power of attorney, all indicating that Carr advised and assisted in the conclusion of insurance losses/claims and represented the interests of insured clients in mediation and negotiation in order to settle insurance claims; (3) testimony from Carr and several of Carr’s clients regarding the fee arrangement and the advice given by Carr; (4) testimony regarding complaints filed with the LSBA; (5) a surveillance tape of a private investigator and a representative of Carr where Carr is presented as an advocate in the insured |4client’s negotiating process with its insurers; and (6) expert testimony from a professor of law regarding the practice of law and the unauthorized practice of law.

On October 23, 2006, the trial court rejected Carr’s peremptory exceptions raising the objections of no right of action and no cause of action, finding that the LSBA had standing to bring the action for injunc-tive relief. The trial court also granted a preliminary injunction against Carr, finding that the LSBA had established by a “preponderance of the evidence” that Carr had engaged in the unauthorized practice of law and enjoining Carr from specific prohibited activities. No appeal was taken from the preliminary injunction. A few days later on October 31, 2006, the LSBA moved for a permanent injunction prohibiting Carr from engaging in the unauthorized practice of law and from utilizing unauthorized contingent/percentage-based fee contracts. The LSBA relied on all of the testimony and exhibits that had been introduced into the record at the preliminary injunction hearing. Carr responded by re-urging the peremptory exceptions raising the objections of no right of action and no cause of action, again challenging the LSBA’s standing to bring the action for injunctive relief. The trial court denied Carr’s peremptory exceptions for the same reasons it overruled them before the preliminary injunction proceeding.

Trial on the merits of the permanent injunction was held on February 21, 2008. At the trial, the parties filed stipulations and submitted the entire record to date, including all of the evidence previously adduced at the hearing on the preliminary injunction. The trial court took the matter under advisement, and on March 25, 2008, rendered judgment in favor of the LSBA, issuing a permanent injunction without bond against Carr. The permanent injunction prohibited Carr |5from: (1) entering into fee agreements with clients that provide for payments to Carr that are contingent upon and calculated as a percentage of the amount paid on the clients’ insurance claims; (2) advising or counseling clients in a manner that constitutes the unauthorized practice of law, including giving advice on the terms of insurance policies, rights, limitations, coverage, liabilities, establishing and/or enforcing legal remedies, or law; (3) having any direct contact with its clients’ insurers to settle its clients’ claims against the insurers by negotiating with the insurers regarding legal aspects of its clients’ insurance policies and claims, acting on behalf of its clients to prevent a wrong or establish a right, and negotiating with its clients’ insurers over the monetary value of its clients’ claims; and (4) instructing insurance companies to send checks directly to Carr and made payable to Carr along with Carr’s clients.

Carr moved for a new trial, but that motion was denied. Carr then appealed to this court from the trial court’s final judgment issuing the permanent injunction. Carr raises the following assignments of error (some of which have been combined):

1. The trial court committed legal error in denying Carr’s peremptory exceptions raising the objections of no right of action and no cause of action.
2. The trial court was manifestly erroneous in ruling against Mr. Carr individually as there was a lack of evidence in the record supporting any personal liability against Mr. Carr.
3.The trial court was manifestly erroneous and committed legal error in allowing expert testimony on matters related to “the field of law.”
|„4. The trial court’s decision was manifestly erroneous on the merits because it was based on entrapment evidence that was largely manufactured from a “sting operation.”

LAW AND ANALYSIS

Peremptory Exceptions

Carr argues that the trial court legally erred when it twice overruled Carr’s peremptory exceptions raising the objections of no right of action and no cause of action. Initially, we note that a peremptory exception may be urged at any time. LSA-C.C.P. art. 928. And a party may re-urge a peremptory exception after it has been denied. Landry v. Blaise, Inc., 02-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664. The overruling of a peremptory exception is merely an interlocutory order, and the court has the right, at any stage of the proceeding at which the objection was made, to set aside that decree and to sustain the exception, upon finding that it erred in overruling it. R.G. Claitor’s Realty v. Juban, 391 So.2d 394, 396 (La.1980). Therefore, Carr is entitled to seek review of any adverse or prejudicial interlocutory rulings in this unrestricted appeal that was taken from the final judgment, in addition to a review of the final judgment that granted the permanent injunction. See Wooley v. AmCare Health Plans of Louisiana, Inc., 05-2025 (La.App. 1 Cir. 10/25/06), 944 So.2d 668, 674; Rao v. Rao, 05-0059 (La.App. 1 Cir. 11/4/05), 927 So.2d 356, 360, writ denied, 05-2453 (La.3/24/06), 925 So.2d 1232.

No Rigid of Action

Carr strenuously urges that the LSBA has no standing or right to bring this action seeking injunctive and declaratory relief against non-lawyers. Carr maintains that there is no right of action for injunctive relief under the LPAA or the statutes defining the practice of law or the unauthorized practice of law. The JjLSBA counters that it initiated this lawsuit pursuant to its charge to protect the public from non-lawyers engaging in the unauthorized practice of law, contending that it has standing to bring such actions to regulate the practice of law, including the unauthorized practice of law, pursuant to Article III, Sections 1 and 2 of its Articles of Incorporation. The LSBA also argues that the Louisiana Supreme Court has been granted the express, exclusive, and plenary constitutional authority and power to define and regulate all facets -of the practice of law, including the acts and conduct of persons who are engaged in the unauthorized practice of law. Meunier v. Bernich, 170 So. 567, 577 (La.App.Orleans 1936). See also In re Crawford, 06-2385 (La.11/9/06), 943 So.2d 331, 333; In re Broussard, 05-0475 (La.4/22/05), 900 So.2d 814, 817; Bester v. Louisiana Supreme Court Committee on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715, 717; ALCO Collections, Inc. v. Poirier, 95-2582 (La.App. 1 Cir. 9/27/96), 680 So.2d 735,746, writ denied, 96-2628 (La.12/13/96), 692 So.2d 1067.

Additionally, the LSBA relies on LSA-R.S. 12:207 B(3) for providing it with the power to “sue and be sued” in its corporate name. Thus, the fact that the LSBA is a non-profit corporation does not bar the suit if the LSBA demonstrates that it possesses a “real and actual interest” in the litigation. Further, the LSBA points to LSA-R.S. 37:211, which provides that the LSBA “is created and regulated under the rule-making power of the Supreme Court of Louisianaf.]” This adoption by rule is pursuant to the constitutional mandate and inherent power of the Supreme Court to prescribe rules and regulations governing the practice of law. LSA-Const. Art. 5, Sec. 5(A) & (B); Rules of Supreme Comb of Louisiana, Rule 19, Section 1; 8Louisiana State Bar Association v. Edwins, 329 So.2d 437, 440-441 (La.1976). And while the Supreme Court will approve legislative acts (such as the LPAA) that are passed in aid of its inherent power to regulate the practice of law, statutes which tend to impede or frustrate the Supreme Court’s authority will be struck down. See Bester, 779 So.2d at 717; ALCO Collections, Inc., 680 So.2d at 746; Meunier, 170 So. at 576.

A peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. LSA-C.C.P. art. 927 A(6); ALCO Collections, Inc., 680 So.2d at 738. Simply stated, the objection of no right of action tests whether this particular plaintiff, as a matter of law, has an interest in the claim sued on. ALCO Collections, Inc., 680 So.2d at 739. Evidence supporting or controverting an objection of no right of action is admissible, and generally, a party raising this peremptory exception bears the burden of proof. Id. Since evidence was admitted at the hearing on the preliminary injunction and re-submitted at the hearing on the permanent injunction, we will review the entire record to determine whether the LSBA has a right of action. See Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1 Cir. 5/19/99), 740 So.2d 173, 177.

A plaintiff must have a “real and actual interest” in the action asserted. Ramsey River Road Property Owners Ass’n, Inc. v. Reeves, 396 So.2d 873, 874 (La.1981). Standing is a concept utilized to determine if a party is sufficiently affected so as to ensure that a justiciable controversy is presented to the court. Meredith v. Ieyoub, 95-0719 (La.App. 1 Cir. 4/4/96), 672 So.2d 375, 377, aff'd, 96-1110 (La.9/9/97), 700 So.2d 478. The requirement of standing is satisfied if it can be said that the plaintiff has a legally protectable and tangible interest at stake in the litigation. Id., 672 So.2d at 377-378.

|9We begin our analysis with the premise that it is unlawful for a natural person who has not been first duly and regularly licensed and admitted to the practice of law by the Supreme Court of this state to engage in the practice of law in this state. See LSA-R.S. 37:213 A(l) and Art. IV, Section 5 of the LSBA’s Articles of Incorporation. Any contracts made by a non-lawyer to render services in violation of this provision are for an unlawful cause, and, consequently, those contracts are against public policy and absolutely null. ALCO Collections, Inc., 680 So.2d at 742-743; Crocker v. Levy, 615 So.2d 918, 921 (La.App. 1 Cir.1993); Duncan v. Gordon, 476 So.2d 896, 897 (La.App. 2 Cir.1985); Meunier, 170 So. at 577. It is undisputed that Carr has no employees who are licensed to practice law in Louisiana. Therefore, if the public adjusting activities engaged in by Carr constitute the unauthorized practice of law, then the contracts providing for those public adjusting services are absolutely null. Louisiana Civil Code article 2030 states in pertinent part, that an “[a]bsolute nullity may be invoked by any person or may be declared by the court on its own initiative.” (Emphasis added.) ALCO Collections, Inc., 680 So.2d at 743; Crocker, 615 So.2d at 921. Because the LSBA has the power to sue and be sued as a juridical person pursuant to LSA-R.S. 12:207 B(3), the LSBA could have a right of action to assert the absolute nullity of Carr’s public adjusting contracts because the contracts provide for services that constitute the unauthorized practice of law and are against public policy. However, the LSBA’s petition does not specifically request that Carr’s contracts be declared absolutely null. Instead, the LSBA seeks injunctive relief against Carr’s unauthorized-practice-of-law activities. The question, then, is |10whether the LSBA has standing, or a real and actual interest, in the injunction litigation.

Our examination of standing is aided by the criteria set forth in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), and adopted by the Louisiana Supreme Court in Ramsey River Road, Property Owners Ass’n, Inc., 396 So.2d at 874. The criteria that must be met before an association can bring a suit on behalf of its members are: (1) the members would otherwise be able to bring the suit in their own right, (2) the interests the association seeks to protect are pertinent to its purpose, and (3) neither the claim asserted by the association nor the relief sought requires the participation of individual members in the lawsuit. Id. These criteria are easily met in this case. Individual attorneys who are members of the LSBA, some of whom initiated the complaints against Carr, obviously would be able to institute this lawsuit in their individual capacities in order to stop a non-lawyer from rendering services that call for the professional training, licensing, and judgment of a lawyer as required by the Supreme Court of Louisiana. Further, the stated purpose of the LSBA is to regulate the practice of law, uphold the honor of the profession of law, and, generally, to promote the welfare of the profession of law in Louisiana. See LSBA Articles of Incorporation, Article III, Section 1. And the statutes dealing with the unauthorized practice of law were established to protect the public. Louisiana Claims Adjustment Bureau, Inc. v. State Farm Ins. Co., 38,709 (La.App. 2 Cir. 6/23/04), 877 So.2d 294, 299, writ denied, 04-1890 (La.10/29/04), 885 So.2d 595. Thus, the instant suit brought to protect the public from and enjoin the unauthorized practice of law by a non-lawyer is consistent with the expressed purpose of the LSBA. Finally, the participation of all of the individual members of the LSBA is not necessary for a proper adjudication |nof the injunction issue, since a single attorney could potentially bring this action for injunctive relief to serve the public interest of only permitting licensed lawyers to act in matters that require professional legal judgment pursuant to a contingency fee contract. See Louisiana Claims Adjustment Bureau, Inc., 877 So.2d at 299. Therefore, we find that the LSBA had standing to bring this lawsuit.

No Cause of Action

Carr also maintains that the LSBA has no cause of action for injunctive relief because the LSBA relies on a “criminal” statute that prohibits the unauthorized practice of law. See LSA-R.S. 37:213. As used in the context of the peremptory exception, a “cause of action” refers to the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641, 646. The exception is triable on the face of the pleadings, and for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition are accepted as true in order to determine whether the law affords a remedy on the facts alleged in the petition. Id. Because the exception of no cause of action raises a question of law and the trial court’s decision is based solely on the sufficiency of the petition, review of the trial court’s ruling on an exception of no cause of action is de novo. Id. The pertinent question is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action for relief. Id.

Accepting all of the allegations in the LSBA’s petition as true, and applying the legal principles set forth above, we find that the petition alleges facts sufficient to state a cause of action for injunc-tive and declaratory relief seeking to restrain and enjoin Carr from the direct violation of laws prohibiting the unauthorized practice of law. Louisiana jurisprudence is replete with examples of a plaintiff 112requesting injunctive relief in order to prohibit a defendant from engaging in unlawful behavior as outlined in a criminal or prohibitory statute, although there is no recorded case dealing specifically with an injunction against the unauthorized practice of law. A plaintiff is entitled to in-junctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unlawful, as when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law. Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, 599. And once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the plaintiff is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists. Id. A thorough review of the LSBA’s petition reveals that Carr’s alleged activities, if accepted as true, constitute the unauthorized practice of law, which is specifically prohibited by Louisiana law.

The substantive issues regarding the unauthorized practice of law in this case are governed by the provisions of the LPAA, at LSA-R.S. 22:1691 through LSA-R.S. 11S22:1708 (formerly cited as LSA-R.S. 22:1210.91 through LSA-R.S. 22:1210.108), and LSA-R.S. 37:212, defining the “practice of law,” as well as LSA-R.S. 37:213, which provides the penalty for the unauthorized practice of law. Thus, there are two pertinent statutory scenarios in Louisiana that prohibit the unauthorized practice of law, and one is specifically directed toward the actions of public adjusters. It follows that the LSBA has stated a cause of action for injunctive relief by alleging that Carr has directly violated statutory prohibitions by engaging in the unauthorized practice of law and illegally contracting with its clients on a contingency fee/percentage-based contract. This argument has no merit.

| i,|We likewise find no merit in Carr’s assertion that the LSBA has no “private” cause of action to enjoin the unauthorized practice of law since a remedy involving a criminal prosecution could be brought against Carr for his actions. The record does not contain evidence of any criminal prosecution against Carr, and it is clear that the LSBA has not brought a “private” cause of action for damages against Carr. Furthermore, if legal redress against defendants who violate the law was considered an adequate remedy at law, no injunction petition urging violation of the law would ever be successful. See Star Enterprise v. State through Department of Revenue and Taxation, 95-1980 (La.App. 1 Cir. 6/28/96), 676 So.2d 827, 834, writ denied, 96-1983 (La.3/14/97), 689 So.2d 1383. Moreover, because the LSBA alleged that Carr had directly violated Louisiana law by engaging in the unauthorized practice of law in its public adjusting business, the LSBA need not show the lack of an adequate remedy in order to obtain injunctive relief. Id. The same reasoning applies to any suggestion that another remedy is potentially available by virtue of the State of Louisiana Insurance Commissioner’s ability to suspend, revoke, or refuse to issue, renew, or reinstate a public adjuster’s license when a public adjuster has been found to have engaged in the unauthorized practice of law as defined in LSA-R.S. 37:212 and 213. See LSA-R.S. 22:1700 B(2) & F (formerly redesignated and cited as LSA-R.S. 22:1210.100 B(2) & F after original enactment as LSA-R.S. 22:1210.80 B(2) & F).

li.Jn summary, we find that the trial court properly overruled Carr’s peremptory exceptions raising the objections of no right of action and no cause of action. Carr’s assignments of error on the exceptions are without merit.

!.Permanent Injunction against Mr. Carr Individually

Carr next argues that the trial court manifestly erred in finding on a preponderance of the evidence that Mr. Carr had personally engaged in the unauthorized practice of law. The manifest error standard is the appropriate standard of review for the issuance of a permanent injunction, as well as a trial court’s factual determination of whether an activity constitutes the unauthorized practice of law. See Parish of East Feliciana through East Feliciana Parish Police Jury v. Guidry, 04-1197 (La.App. 1 Cir. 8/10/05), 923 So.2d 45, 53, writ denied, 05-2288 (La.3/10/06), 925 So.2d 515. Under this standard, in order to reverse a trial court’s determination of fact, an appellate court must review the entire record and find that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Thus, if the trial court’s findings are reasonable in light of the record reviewed in its entirety, this court may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Id,

With these precepts in mind, we find that the record provides a reasonable basis for the trial court’s determination that Carr, and Mr. Carr, individually, engaged in the unauthorized practice of law while conducting the business of [ 1(ipublic adjusting. The record supports a finding that pursuant to a contingency and/or percentage-based fee arrangement, Mr. Carr individually advised clients of issues and rights concerning the redress of legal wrongs under their insurance policies, negotiated settlements and directly contacted insurers to discuss and evaluate the merits of his clients’ insurance claims. Mr. Carr admits that he engaged in all of these activities without a law license. He therefore engaged in the unauthorized practice of law. See Louisiana, Claims Adjustment Bureau, Inc., 877 So.2d at 299; Duncan, 476 So.2d at 897; and Meunier, 170 So. at 577. Based on Mr. Carr’s testimony alone, we cannot say that the trial court was clearly wrong in finding that Mr. Carr, individually, along with his public adjusting business, engaged in the unauthorized practice of law. The trial court correctly determined that the LSBA was entitled to permanent injunctive relief against Mr. Carr, individually, as well as against Mr. Carr’s public adjusting business.

Expert “Legal” Opinion

In addressing Carr’s next assignment of error, we must determine whether the trial court erred in allowing expert testimony on matters related to the “field of law.” Carr objected to the need for expert testimony on the practice of law, arguing that it is the trial court’s function to ultimately determine what the law is since the court itself is an expert on the law. The trial court overruled Carr’s objection and allowed the testimony of Professor Dane S. Ciolino, of Loyola University Law School, as an expert in the field of law, ethics, and the unauthorized practice of law. The trial court reasoned that the expert had specialized knowledge that would assist it as the trier of fact by Professor Ciolino testifying about the standard of conduct involved and the particular provisions of the law. The trial court ruled that according to LSA-C.E. art. 704, opinion testimony that is otherwise admissible is “not to be excluded solely because it 117embraces an ultimate issue to be decided by the trier of fact.” Professor Ciol-ino testified that Carr’s conduct was clearly equivalent to practicing law, and the unauthorized practice of law is a concept that is difficult to define and is fact-specific. Professor Ciolino opined that Carr was acting in the manner of lawyers without the ethical constraints under which lawyers operate.

A trial court has broad discretion in determining who should or should not be permitted to testify as an expert and whether expert testimony is admissible. Schwamb v. Delta Air Lines, Inc., 516 So.2d 452, 459 (La.App. 1 Cir.1987), writs denied, 520 So.2d 750 (La.1988). The trial court may accept or reject the uncontradicted opinions expressed by an expert as to ultimate facts, based upon the other evidence that the trial court admits. See Brennan’s House of Printing, Inc. v. Brennan, 05-647 (La.App. 5 Cir. 2/27/06), 924 So.2d 1067, 1071, writ denied, 06-0689 (La.5/26/06), 930 So.2d 33; Pendleton v. Barrett, 97-570 (La.App. 3 Cir. 12/23/97), 706 So.2d 498, 500. The effect and weight to be given expert testimony is within the broad discretion of the trial court. Id., 706 So.2d at 501. The decision reached by the trial court regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its discretion. Morgan v. State Farm Fire and Casualty Company, Inc., 07-0334 (La.App. 1 Cir. 11/2/07), 978 So.2d 941, 946. Having thoroughly reviewed the evidence and expert testimony, we find no abuse of the trial court’s discretion in accepting Professor Ciolino’s opinion testimony as an expert witness who had specialized | ^knowledge that assisted the trial court with the factual determinations in this case. We further find that the evidence supports the trial court’s findings on the ultimate issue before it regarding Carr’s unauthorized practice of law. This assignment of error is without merit.

Entrapment

Carr asserts in its final assignment of error that the trial court’s decision was erroneous because it was based on entrapment evidence that was largely-manufactured from a “sting operation.” Carr is referring to the testimony of Glen Gay, a private investigator hired by the LSBA to contact Carr regarding Gay’s personal insurance claim for property damage to his home. Gay altered the facts of his insurance claim when he met with Cai'r’s representative. The meeting between Gay and Carr’s representative was video and audio recorded without the knowledge of Carr’s representative. The recording of the meeting was admitted into evidence at the trial on the preliminary injunction and was resubmitted at the hearing on the permanent injunction. Carr did not object to the introduction of the recording into evidence nor to Gay’s testimony regarding his investigation or the recording of the meeting.

In order to preserve an evi-dentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence and state the reasons for the objection. Anderson v. Board of Supervisors of Louisiana State University and Agricultural and, Media-ideal College, through 1 mLoidsiana State University Health Science Center, 06-153 (La.App. 5 Cir. 10/17/06), 943 So.2d 1198, 1201. The failure to make a contemporaneous objection during the trial waives the right of a party to complain on appeal that the evidence was improperly admitted at trial. Id.; Himel v. State through Department of Transportation and Development, 04-274 (La.App. 5 Cir. 10/12/04), 887 So.2d 131, 137, writ denied, 04-2802 (La.3/18/05), 896 So.2d 999. Our review of Gay’s testimony and the recorded meeting which was admitted into evidence during Gay’s testimony does not reveal any objection on the part of Carr. The record shows that Carr questioned Gay’s investigative tactics at one point in the context of cross-examining the LSBA’s expert witness, Professor Ciol-ino. Still, at that point there was no formal objection to the testimony about the recording or Gay’s investigative tactics. Therefore, we find that Carr has waived its right to contest the admission of Gay’s testimony and the recorded investigation into evidence. We also find that Carr has waived its right to contest the trial court’s consideration of that evidence when making its findings and conclusions. Thus, this assignment of error is without merit.

CONCLUSION

For all of the reasons set forth in this opinion, we reiterate that we hereby deny the LSBA’s motion to partially strike Carr’s reply brief. Additionally, we affirm the trial court’s judgment granting a permanent injunction in favor of the LSBA and enjoining Carr and Associates, Inc. and Earl T. Carr, Jr., individually, from engaging in the unauthorized practice of law as outlined in the trial court’s judgment dated March 25, 2008. All costs of this appeal are assessed to defendants, Carr and Associates, Inc. and Earl T. Carr, Jr., individually.

MOTION DENIED; TRIAL COURT JUDGMENT AFFIRMED.

      . The LPAA was enacted by Acts 2006 No. 806, § 1, was approved and signed by the Governor on June 30, 2006, and became effective August 15, 2006, which was several weeks before this lawsuit was filed. The Louisiana Insurance Code was amended, reenacted, and renumbered by Acts 2008, No. 415, § 1, effective January 1, 2009. Throughout this opinion, we will refer to the current numbering of the LPAA even though the renumbering was not in effect at the time that this lawsuit was filed. The language of the LPAA was not changed when the Insurance Code was renumbered in 2008. We will also parenthetically refer to the former statute number for ease of referencing.

      . After this ruling, Carr applied to the Louisiana Supreme Court for a writ of supervisory review, but it was denied on March 9, 2007. Louisiana State Bar Association v. Carr and Associates, Inc. and Earl T. Carr, Jr., 07-0188 (La.3/9/07), 949 So.2d 453(unpublished writ action).

      . The permanent injunction judgment also specifically excluded any flood claims pursuant to the National Flood Insurance Act. See 42 U.S.C. 4001, el seq. Additionally, the judgment was silent regarding declaratory relief. Those particular aspects of the judgment are not at issue in this appeal.

      . Louisiana Code of Civil Procedure article 3612 provides that "[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary' or final injunction.’’

      . LSBA Articles of Incorporation, Article III, Section 1, states in pertinent part: "The objects and purposes of this Association shall be to regulate the practice of law, ... uphold the honor of the Courts and of the profession of law, ... and, generally, to promote the welfare of the profession in the State.” (Emphasis added.)

        . The general rule is that when the word "person” is used in a statute, the statute applies to corporations as well as to natural persons if such corporations fall within the reason and purpose of the provision of the statute. SS v. State Ex Rel. Dept. of Social Serv., 02-0831 (La. 12/14/02), 831 So.2d 926, 933-934.

      . See Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, 601 (violation of statute authorizing oyster lease renewals by Secretary of the Louisiana Department of Wildlife and Fisheries); Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board of Nursing, 08-0813 (La.App. 1 Cir. 12/23/08), 4 So.2d 854, (violation of statute regarding scope of certified registered nurse anesthetists' practice of performing services that could only be performed by a physician licensed to practice medicine in Louisiana); Parish of East Feliciana through East Feliciana Police Jury v. Guidry, 04-1197 (La.App. 1 Cir. 8/10/05), 923 So.2d 45, 51, writ denied, 05-2288 (La.3/10/06), 925 So.2d 515 (violation of noise and nuisance ordinances by property owner operating a motocross business); Star Enterprise v. State through Dept. of Revenue and Taxation, 95-1980 (La.App. 1 Cir. 6/28/96), 676 So.2d 827, 834, writ denied, 96-1983 (La.3/14/97), 689 So.2d 1383 (violation of mandatory rule-making requirements for adopting a new formula for computing taxable values); Slate through Louisiana State Board of Examiners of Psychologists v. Alterberry, 95-0391 (La.App. 1 Cir. 11/9/95), 664 So.2d 1216, 1223-1224 (violation of laws prohibiting the unauthorized practice of psychology); Legislation in Support of Animals v. Vermilion Parish Police Jury, 92-972 (La.App. 3 Cir. 5/5/93), 617 So.2d 1243, 1247 (violation of the cruelty to animals criminal statute); and Quachita Parish Police Jury v. American Waste and Pollution Control Company, 606 So.2d 1341, 1350 (La.App. 2 Cir. 10/14/92), writ denied, 609 So.2d 234 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 249 (1993) (violation of storage of hazardous waste statute).

      . Louisiana Revised Statute 37:213 provides in pertinent part:
      A. No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation ... except a professional law corporation ... shall:
      (1) Practice law.
      (2) Furnish attorneys or counsel or an attorney and counsel to render legal services.
      (3) Hold himself or itself out to the public as being entitled to practice law.
      (4) Render or furnish legal services or advice.

        C. Any natural person who violates any provision of this Section shall be fined not more than one thousand dollars or imprisoned not more than two years, or both.
      D. Any ... corporation ... which violates this Section shall be fined not more than five thousand dollars. Every officer, trustee, director, agent, or employee of a corporation ... who, directly or indirectly, engages in any act violating any provision of this Section or assists the corporation ... in the performance of any such violation is subject to the penalties prescribed in this Section for violations by a natural person.
      (Emphasis added.)

      . Public adjusting is the business of "[¡Investigating, appraising, or evaluating and reporting to an insured in relation to a first-party claim for which coverage is provided by an insurance contract that insures the property of the insured.... Public adjusting does not include any activities which may constitute the unauthorized practice of law. Nothing in this Part shall be considered as permitting the unauthorized practice of law.” (Emphasis added.) LSA-R.S. 22:1692(8)(a) (formerly re-designated and cited as LSA-R.S. 22:1210.92(8)(a) after original enactment as LSA-R.S. 22:1210.72(8)(a)). The purpose of the LPAA is to govern the qualifications and procedures for the licensing of public adjusters, and it specifies the duties of and restrictions on public adjusters, including "limiting their licensure to assisting insureds in first-party claims in a manner which avoids the unauthorized practice of law as defined in [LSA-] R.S. 37:212 and 213.” (Emphasis added.) LSA-R.S. 22:1691 (formerly cited as LSA-R.S. 22:1210.91). Additionally, the LPAA specifically stales that a public adjuster shall not enter into any contract or arrangement with an insured “which provides for payment of a fee to the public adjuster which is contingent upon, or calculated as a percentage of, the amount of any claim or claims paid to or on behalf of an insured by the insurer and any such contract shall be against public policy and is null and void.” LSA-R.S. 22:1703 A (formerly re-designated and cited as LSA-R.S. 22:1210.103 A after original enactment as LSA-R.S. 22:1210.83 A).

      . We distinguish Treen v. The Republican Party of Louisiana, 99-2073 (La.App. 1 Cir. 9/22/00), 768 So.2d 273, 275, and the unreported federal district court case, Hickham v. Douglas, 96-1255 (E.D.La.11/21/96)(unpub-lishcd), relied on by Carr, because the plaintiff's cause of action in each of those cases was for damages, penalties, sanctions, reimbursement, and/or attorney fees. In the case sub judice, the LSBA did not seek damages, but only requested injunctive and declaratory relief.

      . We specifically note, however, that at the time that this lawsuit was filed, public adjusters were not required to be licensed; that requirement did not go into effect until June 30, 2007. LSA-R.S. 22:1693 A (formerly re-designated and cited as LSA-R.S. 22:1210.93 A after original enactment as LSA-R.S. 22:1210.73 A).

      . We find no merit to the LSBA's motion to partially strike Carr's reply brief based on the grounds that Carr had abandoned some of its assignments of error and then later impermis-sibly discussed those assignments in its reply brief. We will consider all of Carr’s assignments of error even though tire arguments are sparse on several issues and do not contain individual headings. The LSBA's motion to partially strike is hereby denied.

      . Multiple factors led to Professor Ciolino’s opinion, including: (1) Carr gave legal advice and engaged in legal analysis by construing coverage and limitations in insurance policies, rights regarding claims for bad faith and other legal remedies, and interpreting case law; (2) Carr acted in a representative capacity as an advocate for clients pursuant to a contract of representation; (3) Carr’s manner of compensation suggested he and his company are compensated like lawyers on a percentage of what is recovered; (4) Carr had a power of attorney document that allowed Carr to be an "attorney in fact” for clients at mediations without the presence of the client; (5) Carr’s notice of representation forbids insurance companies from dealing directly with Carr’s clients; and (6) Carr’s power of attorney document authorizes Carr to prepare documents that are necessary to completely settle the client's insurance claim.

      . While expert testimony is generally not permitted to address the meaning of domestic law, in this case the bulk of the expert testimony did not address the meaning of law, but rather addressed Carr's conduct and whether it constituted the unauthorized practice of law, thus aiding the trial court’s factual determinations. Any testimony touching on an interpretation of jurisprudence or statutes at issue was harmless error in this bench trial. See LSA-C.E. art. 704; In re Succession of Allison, 31,495 (La.App. 1 Cir. 1/29/99), 727 So.2d 683, 684 n. 1, writ granted and remanded on other grounds, 99-0595 (La.3/24/00), 757 So.2d 647; Wilson v. Wilson, 542 So.2d 568, 573 (La.App. 1 Cir.1989).


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Kevin CURTIS.
    No. 08-CA-1262.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Walter G. Amstutz, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Kenneth J. Beck, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG, Pro Tempore.
   FREDERICKA HOMBERG WICKER, Judge.

|2This is a bail bond forfeiture proceeding in which the commercial surety Safety. National Casualty (“Safety”) filed a devol-utive appeal from a September 25, 2008 judgment denying its Amended Motion to Set Aside and Nullify the Judgment of Bond Forfeiture. For the foregoing reasons, we affirm the judgment of the trial court. We also remand this matter to the trial court for the correction of a minute entry in the record.

FACTS AND PROCEDURAL HISTORY

The defendant was arrested on January 27, 2005 and charged by a commissioner with one count of carnal knowledge of a juvenile, a violation of La. R.S. 14:80. That same day, Safety, through its agent A-Affordable Bail Bonds, posted a bond for the release of the defendant from the Jefferson Parish Correctional Center. The address listed on the bond was “6525 Parc Manor Drv., Metairie, LA.” There was no apartment number or designation listed on the bond.

-On August 9, 2005, the defendant was charged by bill of information with one count of carnal knowledge of a juvenile. On August 11, 2005, a subpoena was issued for the purpose of compelling the defendant’s appearance at arraignment on August 31, 2005. The address listed on the subpoena was “6525 Parc Manor Drv. # 9, Metairie, LA.” The August 11 subpoena was the first subpoena in the instant case to list an apartment designation, however, there is no evidence in the record indicating that the defendant made a “written declaration changing the address” of his bond as required by La. C. Cr. P. art. 322. Personal service was affected on the defendant at “6525 Parc Manor Drv. # 9” on August 15, 2008. Personal service was affected on A-Affordable Bail Bonds on August 18, 2008. On August 29, 2005, Hurricane Katrina made landfall in Plaquemines Parish, rendering the previously scheduled arraignment impossible.

On October 20, the trial court continued arraignment until November 22, 2005 due to the effects of Hurricane Katrina. No subpoena was issued to the defendant on October 20; the minutes from that day note “No Court due to Hurricane Katrina/Rita.” On November 22, at the request of the state, the trial court continued arraignment until January 4, 2006 due to lack of service. Another subpoena was issued the next day to ensure the defendant’s appearance at arraignment. The address listed on the November 23 subpoena was “6525 Parc Manor Drv. # 9, Me-tairie, LA.” The subpoena was returned without being served and was marked “vacant” by the process server.

On January 4, 2006, the defendant failed to appear at arraignment. The state immediately motioned to forfeit the defendant’s bond. The trial court granted the motion and issued an attachment for the defendant’s arrest. On January 9, 2006, a Certificate of Mailing Judgment of Bond Forfeiture was mailed to the defendant, Safety, and A-Affordable Bail Bonds. The record indicates that A-Affordable Bail-Bonds received notice of bond forfeiture on January 11, 2006, that Safety National Casualty received notice of forfeiture on January 17, 2006, and that the notice of forfeiture was unclaimed as to the defendant.

On August 28, 2006, Safety filed a Motion to Set Aside Bond Forfeiture And/Or for Extension of Time to Surrender Defendant (the “Motion to Set Aside Bond Forfeiture”). The Motion to Set Aside Bond Forfeiture came to hearing on October 4, 2006. The next day, the trial judge signed a judgment denying the Motion to Set Aside Bond Forfeiture, however, the trial judge also signed an order giving Safety until January 4, 2007 to return the defendant to court in satisfaction of its bond obligation. The October 4, 2006 minute entry is vague and makes it appear that the Motion to Set Aside Bond Forfeiture had been granted on that day, even though the trial court had apparently denied it. Accordingly, this matter must be remanded to correct the minute entry to make it clear that the Motion to Set Aside Bond Forfeiture was denied on October 4, 2006.

Thereafter, Safety repeatedly requested extensions of time to produce the defendant. After numerous extensions and continuances, Safety filed an Amended Motion to Set Aside Bond Forfeiture and Incorporated Memorandum to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment (the “Amended Motion to Set Aside Bond Forfeiture”) on August 11, 2008. The Amended Motion to Set Aside Bond Forfeiture contended that “[t]here is no proof in the record of service on the defendant for the court date missed, such service being required by La.Rev. Stat. 15:85 to be introduced at the time of the rendering of the judgment of bond forfeiture.” The trial court denied the Amended Motion to Set Aside Bond Forfeiture on September 25, 2008. This timely appeal followed.

ASSIGNMENT OF ERROR

15Safety assigns a sole error to the proceedings below, namely that the trial court erred in denying the Amended Motion to Set Aside Bond Forfeiture. Safety contends that the state did not prove that the defendant was provided notice of the date for arraignment as required by La. 15:85(1).

Bond forfeitures are not favored by law. State v. McLaurin, 05-857 (La.App. 5 Cir. 3/28/06), 927 So.2d 570, 573. The state must strictly comply with the statutory procedure in bond forfeiture actions in order to obtain a valid bond forfeiture. Id. La. R.S. 15:85 sets forth the statutory procedure for bond forfeiture proceedings.

La. R.S. 15:85 provides that “[a]ll bonds taken to secure the appearance of any person before any court ... shall be forfeited and collected” according to legislatively mandated forfeiture procedures. La. R.S. 15:85(1) authorizes the trial judge to render judgment decreeing forfeiture of the bond under the following conditions:

If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(emphasis added)

La. C. Cr. P. art. 344 requires that “the defendant and his personal surety or the commercial surety or the agent or bondsman” be provided with “written notice of the time, date, and place the principal is required to appear.” La. C. Cr. P. art. 322 provides that “[t]he defendant when signing a bail bond shall write under his signature the address at which he resides.” That address is conclusively presumed to be the address “for all proceedings on the bond, until [the defendant] files in the | ^proceeding in which the bond was given a written declaration changing the address.” La. C. Cr. P. art. 322.

Thus, before a bond can be forfeited, the state must produce evidence that the defendant was served with the notice of the forfeiture hearing at “the address at which he resides.” In the instant case, the defendant was not served with notice of the impending bond forfeiture hearing. The address listed on the defendant’s bond was “6525 Parc Manor Dr.” That address is therefore conclusively presumed to be the defendant’s address for proceedings on the bond unless a written declaration changing the address is filed in the record. If the state had attempted to serve the defendant at “6525 Parc Manor Dr.” without an apartment number, and the subpoena was returned marked “vacant,” bond forfeiture would have arguably been warranted. See, e.g., State v. Ainsworth, 04-177 (La.App. 5 Cir. 6/29/04), 878 So.2d 864, 869 (finding that the state complied with the notice requirements of La. C. Cr. P. arts. 322 and 344 when the subpoena sent to the address provided by the defendant on his bond was marked “Moved, no forwarding address”). However, the state attempted to serve the defendant at “6525 Parc Manor Dr. # 9.” No “written declaration changing the address [provided by the defendant on the bond]” is extant in the record as required by La. C. Cr. P. art. 322. The state therefore sent the subpoena to the incorrect “address designated pursuant to Article 322” as required by La. C. Cr. P. art. 344(B)(2).

That, however, does not end this Court’s inquiry. There are statutory limitations on the right of a defendant or surety to object to judgments of bond forfeiture. La. R.S. 15:85(5) provides:

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary 17proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.
(emphasis added)

Thus, a party seeking to set aside a bond forfeiture judgment must file a motion raising “defenses and actions in nullity by use of summary proceedings” within sixty days of the mailing of the notice of bond forfeiture. Only those defenses based upon La. C. Cr. P. art. 345 and La. R.S. 15:87 may be raised “within six months from mailing the notice of the signing of the judgment of bond forfeiture.” La. R.S. 15:87 A provides that the six month delay outlined in La. R.S. 15:85(5) applies when the defendant “has a physical disability, illness, or injury,” when the defendant “is being detained in the jail or penitentiary of another jurisdiction,” and when the defendant “is serving in the armed forces of the United States.” La. C. Cr. P. art. 345 provides that the six month delay applies when the surety “surrenders] the defendant or the defendant ... surrenders] himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond.” The defense of insufficient service to the defendant is not listed in La. C. Cr. P. art. 345 or La. R.S. 15:87.

This Court has held on several occasions that the defense of insufficient service to the defendant pursuant to La. C. Cr. P. art. 344 must be brought within sixty days from the mailing of the notice of bond forfeiture, rather than six months from the mailing of the notice of bond forfeiture. See, e.g., State v. Ainsworth, 04-177 (La.App. 5 Cir. 6/29/04), 878 So.2d 864.

|,sFor example, in State v. Campbell, 04-572 (La.App. 5 Cir. 11/16/04), 889 So.2d 1030, the defendant’s appearance bonds were forfeited on June 4, 2003 after she failed to make a scheduled court appearance. Notice of bond forfeiture was mailed to the defendant and her surety on June 10, 2003. The commercial surety filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment on December 8, 2003. Campbell, 889 So.2d at 1031. The Motion alleged that judgments of bond forfeiture were absolute nullities because:

a) There is no proof in the record that the defendant was served with notice of the court date for which the bond forfeiture was granted. LA Code Crim. Proc. Art. 344(b)(1) requires that such notice be provided. Absent such notice, under Art. 344(b)(4) the bond forfeiture is inappropriate;
b) Notice of such is provided within six months from the date of the mailing of the notice of bond forfeiture; and
c) For any and all other reasons which may be shown at the trial of this matter.
Id.

The trial court denied the Motion. This Court affirmed, noting:

In the case before us, notice of judgment of bond forfeiture was mailed on June 10, 2003, the defense of insufficient service was brought on November 21, 2003. It is cleai’ly untimely and cannot be used as a defense ...
Id. at 1033

In the instant case, notice of the signing of the judgment of bond forfeiture was mailed on January 9, 2006. Safety filed its Motion to Set Aside Bond Forfeiture And/Or for Extension of Time to Surrender Defendant on August 28, 2006, 231 days after the mailing of the notice of bond forfeiture. Safety cannot take advantage of the defense of improper notice because the Motion to Set Aside Bond Forfeiture was not filed within the sixty day limit imposed by La. R.S. 15:85(5). On its face, Safety’s Motion to Set Aside Bond Forfeiture was untimely filed and this Court cannot therefore consider its merits.

InWe also note that Safety cannot take advantage of the legislature’s extension of prescriptive deadlines due to Hurricane Katrina. La. R.S. 9:5824 B(l) permitted residents of certain parishes to file a “contradictory motion or declaratory judgment ... seeking an additional suspension and/or extension [of prescription].” However, the legislature also provided that [t]his limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006. Even if Safety had filed a motion pursuant to La. R.S. 9:5824 B(l), the latest day it could have done so was on June 1, 2006. If Safety had filed a La. R.S. 9:5824 B(l) motion on June 1, 2006, its Motion to Set Aside Bond Forfeiture would still be untimely because it would have been filed eighty-eight days after June 1, well beyond the sixty day limit imposed by La. R.S. 15:85(5).

Accordingly, this assignment of error is without merit.

CONCLUSION AND DECREE

For the foregoing reasons, the judgnent of the trial court is affirmed. This matter is remanded to correct the October 4, 2006 minute entry. Costs to be paid by Safety.

AFFIRMED; REMANDED.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Josh D. BAUMAN.
    No. 08-KA-1169.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, James A. Adair, Trial Counsel Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Josh Bauman.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JEROME M. WINSBERG, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|2On November 4, 2004, the Jefferson Parish Grand Jury issued an indictment charging defendant, Josh Bauman, with second degree murder, a violation of La. R.S. 14:30.1. Defendant pled not guilty at his arraignment.

On June 14, 2006, defendant filed various pre-trial motions, including a motion to suppress the evidence. On September 28, 2006, defendant filed a Motion to Appoint a Sanity Commission to Determine Competency to Stand Trial. After the competency hearing, defendant was found competent to stand trial on December 7, 2007.

The trial court heard and denied defendant’s motion to suppress evidence on January 11, 2008. Defendant applied to this Court for sujoervisory writs. This Court found no error in the trial court’s denial of defendant’s motion to suppress evidence. State v. Bauman, 08-98 (La.App. 5 Cir. 2/8/08), (unpublished writ disposition). The Louisiana Supreme Court denied defendant’s writ of certiorari. State v. Bauman, 08-0402 (La.2/25/08), 976 So.2d 1291.

On May 13, 2008, defendant proceeded to trial before a twelve-person jury. On May 14, 2008, the jury unanimously found defendant guilty as charged. On |3June 6, 2008, the trial court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence.

On appeal, defendant seeks review of his conviction and sentence raising two assignments of error: the trial judge erred in denying the motion to suppress evidence and the evidence was insufficient to find defendant guilty of second degree murder. Of note, on January 6, 2009, this Court granted defendant leave to file a pro se supplemental brief in this matter. To date, this brief has not been filed.

Testimony of witnesses at pre-trial suppression hearings and at trial revealed the following facts. Brandy Ronquille testified that she and Michelle Bauman were longtime friends and co-workers. Ronquille stated that they worked at International Drug Detection (“IDD”). Their office was one of six businesses located at 7521 West-bank Expressway in Marrero, Louisiana. On September 7, 2004, Ms. Ronquille left the office, as usual, at about 11:00 a.m. to get lunch from a nearby restaurant. When Ms. Ronquille left the office, Ms. Bauman was alone in their office doing paperwork.

Joann McKnight, who had been good friends with Michelle Bauman for ten years, worked at a doctor’s office two doors down from Michelle’s office. On the morning of September 7, 2004, a patient entered her office saying that a woman was outside screaming that her husband had shot her. When Ms. McKnight went outside, she saw Ms. Bauman lying on the sidewalk between their offices. She held Ms. Bauman’s hand and talked to her; Ms. Bauman tried to say something to her, but she was unable to speak. McKnight’s employer, Dr. Vo, came outside to help Ms. Bauman.

Dr. Fong Vo, who has an internal medicine practice at 7521 Westbank Expressway, worked with Michelle Bauman for four years. Dr. Vo testified that, at |,ground noon, on September 7, 2004, he was examining patients when he heard people shouting in the front of his office. He went to investigate, and found Ms. Bauman on the ground outside the entryway to his office. Ms. Bauman was lying face-down. He turned her over and saw a lot of blood in her right eye. He found an entry wound in her cheek. Ms. Bauman was not talking. She was grunting and moaning. Dr. Vo attempted to provide medical treatment to Michelle Bauman.

While Dr. Vo was tending to Michelle, Ms. McKnight went to the IDD office to look for Ms. Ronquille. When Ms. McKnight entered the IDD offices, she saw a man sitting on the floor, slumped against a wall with his legs straight out. She did not immediately recognize him. Ms. McKnight called 9-1-1 from a telephone in the IDD office. While she spoke to the 9-1-1 operator, she realized that the injured man was Josh Bauman. At that point, Josh Bauman picked up the gun, and Ms. McKnight thought he was going to shoot her. Instead, he pointed the gun at his own head. Ms. McKnight immediately fled the IDD office.

Debra Guidroz, who worked for Dr. Vo in the same building as Michelle, called 9-1-1 from her office, when she heard that there was a woman, who was bleeding, outside calling for help because her husband had shot her. After calling for help, Ms. Guidroz, who had known and worked with Michelle Bauman since 1994, went to the IDD office. When she entered the office, she saw a man, with blood on his head and shirt, sitting on the floor leaning against the wall. A gun was lying on his chest/stomach area. Ms. Guidroz testified she did not see anyone else inside the IDD office, nor did she see anyone fleeing the scene.

Deputy Paul Sperandeo of the' Jefferson Parish Sheriffs Office testified that, at about noon on September 7, 2004, he responded to a reported shooting at 7521 IsWestbank Expressway in Marrero, Louisiana. He and his partner arrived at the scene less than five minutes after receiving the report.

Deputy Sperandeo testified that, when he and his partner approached the business, several people standing outside told them, “ ‘He’s in there, he’s in there.’ ” An injured woman was lying on the sidewalk near the doorway, and someone was giving her medical assistance.

When Deputy Sperandeo entered the business, he saw a man sitting on the floor, leaning against a wall. There was blood on his head and body, and he was unresponsive. There was a chrome revolver lying between his right arm and his body. The barrel of the gun pointed towards defendant’s head. Wflien paramedics arrived to assist defendant, Deputy Speran-deo’s partner retrieved the gun.

Homicide Detective David Morales, who was the lead investigator of the shootings, arrived to find a 1994 Buick Century with a Missouri license plate parked at an odd angle in the parking lot. Through a computer search, Detective Morales learned that the car was registered to Danny Bau-man from Ridgedale, Missouri. The car’s front windows were rolled down, and Detective Morales saw a handwritten note on the front passenger seat. The note read, “ ‘Judy and Danny Bauman, 417-239-1154, call and tell them I love them and I am sorry. Josh.’ ”

Detective Morales seized the note and called the telephone number on the note. He learned that Josh Bauman had been living with his parents, Danny and Judy, in Ridgedale, Missouri, until three days earlier. Detective Morales made arrangements to have the car towed to the detective bureau, and he later obtained a warrant to search the vehicle.

| (¡Detective Morales testified that Sergeant Rodney Newman collected a .22 caliber Smith and Wesson revolver from the injured man. The chamber of the gun contained six spent cartridge casings, indicating that it had been fired six times. A lead bullet fragment was found on the floor in the IDD office where the shootings occurred. Detective Morales traced the weapon through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and determined it was purchased by Danny Bauman, defendant’s father.

Michelle Bauman was pronounced dead on arrival at the hospital. Detective Morales arrested Josh Bauman for second degree murder within an hour of the shootings.

Dr. Susan Garcia of the Jefferson Parish Forensic Center, who was accepted as an expert in forensic pathology, performed an autopsy on Michelle Bauman’s body on September 8, 2004. Her autopsy report was introduced into the record at trial.

Dr. Garcia testified that Ms. Bauman had three entrance gunshot wounds and one exit wound. Ms. Bauman had one entrance wound on the right side of Ms. Bauman’s head lateral to the eye. The exit wound that corresponded with the first entrance wound was through the victim’s right eye socket. A second wound was on Ms. Bauman’s right cheek around the lip area. Wound three was in the mid-back area. . Ms. Bauman also had a graze wound on her right shoulder. The victim had non-firearm injuries to her anterior chest and her left knee, consistent with scraping her skin against a rough surface such as concrete.

Dr. Garcia testified that the lethal wound was the one to the victim’s back, which caused injury to the right lung and a great deal of internal bleeding. Dr. Garcia classified Ms. Bauman’s death as a homicide.

|7The trial court accepted Joel O’Lear as an expert in forensic firearms analysis and identification, and tool mark evaluation. Mr. O’Lear testified that he examined the .22 caliber Smith and Wesson revolver, six cartridge casings, one unknown caliber lead-like fragment, two unknown caliber lead-like projectiles, and a group of small lead-like fragments. Mr. O’Lear testified that the six cartridge casings were all .22 caliber class and were all fired from the same gun to the exclusion of all other weapons.

Defendant also testified in his own behalf. He had lived in Jefferson Parish all of his life, except for the year before the shooting, which he spent living with his parents in Missouri. He had returned to Louisiana three days before the shooting to take a job as a welder. He was staying in a motel.

Defendant and Michelle met during the 1980s. They were married in 2000, and divorced in 2003. During their thirteen-year relationship, they had one daughter, Logan, who was six years old when they divorced.

Defendant testified that, on the morning of September 7, 2004, he drank a case and a half of beer while he drove around Gret-na. When he called Ms. Bauman at her office to discuss their daughter, Ms. Bau-man hung up on him. Because he was “aggravated” and “mad,” defendant “flew over there to her work” to confront Michelle. Before he left his car, he wrote a note for his parents, which he left on the front seat of the car. He stated that he wrote the note because he knew that he would be going to jail “eventually ... because of the stupid thing” he did.

Defendant, armed with his father’s gun, entered Michelle’s office. He was carrying the gun to deter anyone from impeding his conversation with his ex-wife. He also admitted that he thought the gun might “scare” Michelle into letting him see his daughter. When Ms. Bauman questioned him about his intent, he told her |8that he had come to finish their telephone conversation. Ms. Bauman told him he was nothing more than a “sperm donor” to Logan, and that she would never allow him to see her.

According to defendant, Ms. Bauman then tried to take the gun away from him. While they were struggling, he got control of the gun and, in a rage, shot her in the shoulder. Even though he did not remember it, he knew that he shot his ex-wife three more times. He also did not remember shooting himself twice in the head. As a result of his self-inflicted wounds, defendant was in a coma for a month. He has no sight in his right eye, and seizures due to brain swelling. He complains of memory loss limited to events immediately before and after the shooting.

In his first assignment of error, Mr. Bauman argues that the evidence at trial was insufficient to support his conviction for second degree murder; and that the State proved only the lesser offense of manslaughter. Defendant does not dispute that he shot Ms. Bauman, but he argues that the State failed to prove he had the specific intent necessary to commit second degree murder. The State responds that the evidence showed that he had the requisite intent; specifically, defendant wrote a note of apology to his parents, armed himself with a loaded gun, and shot Ms. Bauman four times.

| t)The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. McFarland, 07-26 (La.App. 5 Cir. 5/29/07), 960 So.2d 1142, 1146, writ denied, 07-1463 (La.1/7/08), 973 So.2d 731. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

Second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm, or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies even though he has no intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A); State v. Kirkland, 01-425 (La.App. 5 Cir. 9/25/01), 798 So.2d 263, 268, writ denied, 01-2967 (La.10/14/02), 827 So.2d 415. In the instant case, the State proceeded under the first theory of second degree murder regarding specific intent.

Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent need not be | ^proven as a fact, but may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Graham, 420 So.2d 1126, 1127 (La.1982); State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 95. Whether a defendant possessed the requisite intent in a criminal case is for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Gonzalez, 07-449 (La.App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-228 (La.9/19/08), 992 So.2d 949.

Our review reveals that the evidence, both direct and circumstantial, was sufficient to support the conclusion that the defendant had specific intent to kill or inflict great bodily harm on his ex-wife. First, the act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier-of-fact that the defendant acted with specific intent to kill. State v. Hidalgo, 95-319 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188, 1197-98. Defendant admitted that he shot his ex-wife in the shoulder while they were struggling over the gun.

Second, it is reasonable to conclude that defendant intended to discharge his weapon during his confrontation with Michelle. He wrote an apology note vfith his parents’ contact information, which he left in his car, before entering Michelle’s office. When asked why he apologized to his parents before the shootings took place, defendant stated that he knew he “was coming to jail eventually, you know, because of the stupid thing I did.”

Defendant further argues that he shot his ex-wife in the heat of passion, out of provocation, and that he was guilty of manslaughter rather than second degree murder. According to La. R.S. 14:31(A)(1), manslaughter is a homicide that would be a first or second degree murder, but

the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not Inreduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that the average person’s blood would have cooled, at the time the offense was committed.”

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors that may reduce the grade of the offense. State v. Dobbins, 05-342 (La.App. 5 Cir. 12/27/05), 920 So.2d 278, 283-84.

In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. Id. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. State v. Deal, 00-434, p. 5 (La.11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). The question for this Court on review is whether a rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Lombard, 486 So.2d 106, 111 (La.1986); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516.

In this case, the jury found that defendant failed to meet his burden of proof that he acted in “sudden passion” or “heat of blood.” After our review, we find that a rational trier-of-fact could find defendant failed to establish the mitigatory factors.

Defendant claimed that he shot his ex-wife because he was enraged by her refusal to allow him to see his daughter. He testified that all he was thinking was that he would not ever see his daughter again, and she was the only thing he loved in the world. But, defendant also testified that, since he and Ms. Bauman divorced in 2003, he had not tried to visit with their daughter. Thus, a reasonable trier-of-fact could find that his testimony regarding provocation was not credible.

112Pefendant further stated that he was “seeing red” over the fact that Ms. Bau-man had hung up on him then referred to him as nothing more than a “sperm donor” to their daughter. Again, a reasonable trier-of-fact could conclude that this was insufficient to deprive an average person of his self-control and cool reflection.

In our review, we find that the evidence at trial showed that defendant drove around on the morning of the incident, consuming copious amounts of alcohol while armed with a deadly weapon. He had the presence of mind to write a note apologizing to his parents for his actions. He then entered the victim’s workplace, armed with a loaded gun, and purposely fired it at her. Considering the circumstances, defendant’s actions, and the extent of Ms. Bauman’s injuries, the evidence was sufficient under Jackson to support the jury’s finding that defendant had specific intent to kill or inflict great bodily harm on Ms. Bauman and was, thus, guilty of second degree murder.

In his next assignment of error, defendant argues that the handwritten note seized from his car at the scene should have been suppressed because it was the product of an illegal warrantless search. The State contends that the seizure fell under a number of exceptions to the warrant requirement.

Detective Morales testified, at the pretrial suppression hearing, that when he arrived at the scene, he saw a four-door, blue Buick Century with a Missouri license plate parked oddly in the parking lot. He learned, through a computer search, that the car was registered to Danny Bauman, the victim’s ex-father-in-law, who lived in Missouri. Witnesses at the scene informed Detective Morales that a man exited that car with a pistol and ran into the IDD office, where the victim was gunned down.

1 ^Detective Morales testified that he had other officers secure the car until he had an opportunity to examine it. When he approached the vehicle, he noted that the two front windows were completely open. Standing next to the car, he looked in through the passenger side window. He saw, on the front passenger seat, a handwritten note on a notepad. From his vantage point, he had an unobstructed view of the note, which he was able to read. The note read, “ ‘Judy and Danny Bauman, 417-239-1154. Call and tell them I love them and I’m sorry. Josh.’ ”

Detective Morales immediately believed that the note was pertinent to the investigation and instructed crime lab personnel to collect it. The detective explained that, although he would usually have a vehicle towed from a scene to the detective bureau before having it processed for evidence, he did not follow that procedure in this case because he was concerned that the note would be destroyed or lost in transit. To preserve the evidence properly, the car had to be processed in the same state that it was found, with the front windows open.

Detective Morales testified that the car was ultimately towed from the scene. He obtained a search warrant on September 10, 2004, but no evidence was seized from the car when the vehicle was searched pursuant to the warrant.

At the conclusion of the suppression hearing, the trial judge found that the seizure of the note was valid because it was based on exigent circumstances. The judge further commented it was readily apparent from a reading of the note that it was important to the investigation.

A warrantless search is per se unreasonable unless justified by one of the narrowly drawn exceptions to the Fourth Amendment’s warrant requirement. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). If evidence is derived from an unreasonable search or seizure, the 114proper remedy is to exclude the evidence from trial. State v. Boss, 04-457 (La.App. 5 Cm. 10/26/04), 887 So.2d 581, 585. In a hearing on a motion to suppress, the State bears the burden of proving that such an exception applies. La.C.Cr.P. art. 703 D; State v. Addison, 05-378 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 890, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36. Trial courts are vested with great discretion in ruling on a motion to suppress and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).

In this case, the State contends that the evidence was validly seized pursuant to, among others, the “plain view” exception. The “plain view” doctrine is a recognized exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971); State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-0927 (La.11/14/08), 996 So.2d 1088. Police may seize evidence under the “plain view” doctrine when: 1) there is prior justification for an intrusion into the protected area and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. Horton v. California, 496 U.S. 128, 135-136, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990). In the instant case, Detective Morales was rightfully in the area of defendant’s vehicle, which was parked in a public parking lot.

Defendant argues it was not immediately apparent that the note was evidence of a crime. The record, including photographic evidence, reveals that Detective Morales could easily read the note on the seat of the car through the car’s open window. The detective had a witness who stated that the driver of the Buick Century exited the vehicle carrying a gun and ran into the office where the | ^shootings took place. Based on his forty years of experience as a homicide investigator, he stated that he believed the note constituted evidence relevant to the shootings. We agree.

The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe that the item in question is either evidence and/or contraband. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983); State v. Smith, 07-815 at 6, 982 So.2d at 825. In this case, the note was evidence relevant to the crime in question. Based on the foregoing, we cannot say that the trial court abused its discretion in denying defendant’s motion to suppress the evidence.

Finally, as is our customary practice, we have reviewed the record for errors patent. La C.Cr.P. art. 920. We note that neither the transcript nor the commitment/minute entry indicates that the jury was sworn as required by La. C.Cr.P. arts. 788 and 790. Jury irregularities were not, however, raised in the trial court or on appeal. Consideration of that issue is, therefore, waived. More importantly, we find no prejudicial error. State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771. No corrective action is required.

In conclusion, we find no merit in defendant’s arguments on appeal. Defendant’s sentence and conviction are hereby affirmed.

AFFIRMED.

      . Ms. McKnight knew Josh Bauman when he was married to Ms. Bauman.

      . Deputy Billy Lewis of the Jefferson Parish Sheriff's Office Communications Division testified that he is the custodian of records for emergency communications. His department received five 9-1-1 calls regarding this case. A recording of those 9-1-1 calls was played lor the jury.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, we will address the sufficiency of the evidence as his first assignment of error.

      . Prior to trial, defendant filed notice of defense based on mental condition under La. C.Cr.P. art. 726, stating his intention to introduce testimony relating to a "mental disease, defect or other condition, including but not limited to intoxication, drugged and/or other mental condilion(s) from which the defendant was suffering at the time of the offense bearing upon the issue of whether he/she had the mental state required for the offense charged.” The records reflects that, aside from his own testimony that he had a "buzz" after consuming a case and a half of beer on the morning of the shooting, defendant did not offer any evidence regarding a mental condition or defect from which he suffered at the time of the offense.

      . At trial, Detective Morales identified photographs, which were introduced into evidence at the trial, depicting the car and the note's position inside the car.