author: PADOVANO, J. THOMAS, J.,

text:
    STATE of Florida, Appellant, v. Brandon James SIMS, Appellee.
    No. 1D12-1421.
    District Court of Appeal of Florida, First District.
    March 25, 2013.

      Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    John C. Beroset of Beroset & Keene, Pensacola, for Appellee.
   PADOVANO, J.

This is an appeal by the state from an order granting a post-verdict motion for judgment of acquittal. We agree with the trial court’s conclusion that the circumstantial evidence of identity was insufficient to support the defendant’s convictions. Accordingly, we affirm.

The defendant was charged with two counts of aggravated battery with a deadly weapon and two counts of aggravated assault with a deadly weapon. The shooting incident that gave rise to these charges was preceded by a confrontation in a park earlier in the day. Five men were playing basketball when the defendant and Tar-ranee Webb arrived at the scene. The defendant was driving his car and Webb was riding with him. Webb got into a physical altercation with two of the men who were playing basketball and he injured one of them with brass knuckles. At trial, several of the men identified Webb and the defendant as the men they had encountered in the park.

The five men who had been in the park encountered Webb once again about forty-five minutes later at a convenience store. By this time it was dark but they could observe Webb in the backseat of a car outside the store. The five men left the convenience store in their own car, and the car in which Webb was riding followed them. They arrived at a gas station a few minutes later and, at that point, Webb fired a gun from the backseat window. Shots from the gun struck and wounded two of the men.

Crime scene technicians recovered shell casings from the parking lot of the gas station, but a subsequent forensic examination of the defendant’s car, a dark blue four-door Pontiac G6, did not reveal any firearms, bullets, shell casings, or other evidence that a gun had been fired from the car.

One of the victims said that the car he saw at the convenience store a few minutes before the shooting was similar to the blue Pontiac he had seen earlier at the park. Another of the victims described it as “their car,” and yet another said that it was a dark blue Pontiac G6. They indicated that the car followed them from the convenience store to the gas station. However, a bystander at the gas station said that the car from which the shots were fired was a black, two-door car.

At the conclusion of the state’s case, and again at the close of all the evidence, the defendant moved for judgment of acquittal. He argued that the state’s case was purely circumstantial and that it had failed to present evidence that excluded every reasonable hypothesis of innocence. The trial judge deferred ruling on the motion indicating that he would study the case law and rule on the motion after the verdict.

The jury found the defendant guilty as charged on all four counts. Later that morning, the court granted the defendant’s motion for judgment of acquittal. The trial judge explained that “there was no direct evidence putting [the defendant] in the vehicle at the time of the incident in question” and noted that it was the state’s obligation “to eliminate any reasonable hypothesis of innocence.” The state filed a timely notice of appeal to this court.

An order granting a motion for a judgment of acquittal after a guilty verdict in a criminal case is renewable by appeal. See § 924.07(l)(j), Fla. Stat. (2010); Fla. R. App. P. 9.140(c)(1)(E); State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999); State v. Odom, 56 So.3d 46 (Fla. 5th DCA 2011). Whether the evidence is sufficient to support a conviction is a question of law. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). Hence, the order granting the motion for judgment of acquittal in this case is reviewable by the de novo standard of review. See Huggins v. State, 889 So.2d 743, 765 (Fla.2004).

A criminal defendant is entitled to a judgment of acquittal if there is no direct evidence of guilt and if the circumstantial evidence does not exclude every reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188-89 (Fla.1989). As the supreme court explained in Law,

... [I]f the state does not offer evidence which is inconsistent with the defendant’s hypothesis, “the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.” [Lynch v. State, 293 So.2d 44, 45 (Fla.1974) ] 293 So.2d at 45. The state’s evidence would be as a matter of law “insufficient to warrant a conviction.” Fla. R. Crim. P. 3.380.

Law, 559 So.2d at 189.

In our view, the evidence against the defendant falls short of this standard. The jury verdicts could be sustained only by stacking several inferences one on another. The state’s contention that the shots were fired from the defendant’s car runs contrary to the forensic evidence and the independent eyewitness testimony. But even if we were to accept the premise that the shots were fired from the defendant’s car we would have to assume that the defendant was driving the car at the time of the shooting. There is no direct or circumstantial evidence to prove that point. Additionally, if we were to assume that the car from which the shots were fired was the defendant’s car and that he was the driver of the car, we would have to go a step further to conclude that the defendant was aware of the fact that Webb intended to fire a gun from the back seat and that the defendant participated in some way in that plan. Again, there is no evidence to prove this point.

The dissent points out that the state impeached one of the victims with a prior statement he made under oath during a police interrogation. In the prior statement the witness identified the defendant as the person driving the ear at the time of the shooting. When confronted with the statement at trial, however, the witness stood by his testimony on direct examination that he could not identify the driver of the car. The pretrial statement would not resolve all of the evidentiary problems we have identified even if it were admissible at trial as substantive evidence. In any event, the statement cannot be used as substantive evidence for several reasons.

The first and perhaps most important of these reasons is that the state did not argue at trial or on appeal that the statement was admissible as substantive evidence. To the contrary, the state has maintained all along that this statement was introduced solely as impeachment. An appellate court has authority to consider an argument not made on appeal as an alternative basis for affirmance, see Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999), but we know of no rule that would permit an appellate court to consider an unargued point as an alternative basis for reversal. Yet this is what the dissent is suggesting — that we should reverse the decision by the trial court based on an argument not made on appeal. Second, the pretrial statement was not introduced into evidence. The codefendant’s lawyer questioned the witness about the statement but that is not the same as offering it in evidence. Third, the statement plainly does not qualify as substantive evidence under section 90.801(2)(a) of the Evidence Code. The statement was given under oath but it was not made in a “trial, hearing, or other proceeding or deposition” as required by the code. See State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986) (holding that a police interrogation is not a “proceeding” within the meaning of the statute).

The notion that a statement offered as impeachment can be considered in determining the sufficiency of the evidence is one that conflates the role of the judge with the role of the jury. The jury is free to use the statement to determine whether the witness was being truthful at trial, but that does not make the statement part of the evidence against the defendant. One responsibility of the trial judge is to separate these issues out. The trial judge performed that task correctly when he determined that the statement was offered as impeachment and could not be considered in ruling on the defendant’s motion for judgment of acquittal.

Another point made in the dissent is that the trial judge failed to instruct the jurors that they could not use the statement as evidence of the defendant’s guilt. Again, we think that this point confuses the role of the jury with that of the judge. The absence of a limiting instruction may serve to justify the guilty verdict, particularly if the jurors believed that the pretrial statement was, in fact, evidence of guilt. But that has little to do with the task before the court in determining the sufficiency of the evidence. The absence of a limiting instruction does not have the effect of transforming impeachment evidence into substantive evidence.

The circumstantial evidence in this case raises a suspicion of guilt, but that is not enough under our system of justice. See Cox v. State, 555 So.2d 352, 353 (Fla.1989). “Evidence [that] furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, is not sufficient to sustain conviction.” Ballard v. State, 923 So.2d 475, 482 (Fla.2006). The circumstantial evidence must exclude every reasonable hypothesis of innocence. “It is the actual exclusion of the hypothesis of innocence [that] clothes circumstantial evidence with the force of proof sufficient to convict.” Id. As our supreme court has explained, “Circumstantial evidence must lead to a reasonable and moral certainty that the accused and no one else committed the offense charged.” Cox, 555 So.2d at 353 (quoting Hall v. State, 90 Fla. 719, 107 So. 246 (1925)). With due respect for our colleague in dissent, the evidence in this case does not rise to that level.

For these reasons, we conclude that the evidence against the defendant was insufficient to support the jury verdicts and that the trial judge correctly granted the defendant’s post-verdict motion for judgment of acquittal.

Affirmed.

CLARK, J., concurs. THOMAS, J., dissents with opinion.

THOMAS, J.,

Dissenting.

I respectfully dissent, because we should reverse the trial court’s order which improperly granted a motion for judgment of acquittal, contrary to binding precedent of the Florida Supreme Court. State v. Law, 559 So.2d 187 (Fla.1989); Buenoano v. State, 478 So.2d 387 (Fla. 1st DCA 1985), review dismissed, 504 So.2d 762 (Fla.1987). The State presented competent circumstantial evidence that was inconsistent with any reasonable hypothesis of innocence that Appellee was not the driver during the shooting. Serrano v. State, 64 So.3d 93 (Fla.2011) (State presented sufficient circumstantial evidence contradicting defendant’s elaborately planned alibi evidence establishing a jury issue of whether defendant killed four murder victims). Thus, we should reverse the trial court’s order granting a judgment of acquittal to Appellant, because the trial court did not correctly view the evidence, which was legally sufficient to submit to the jury, in a light most favorable to the State.

In addition to reversing the trial court’s order, I would certify a question of great public importance regarding whether the Florida Supreme Court should reconsider the “special standard” of appellate review of criminal convictions based on circumstantial evidence, which requires the State to contradict any reasonable hypothesis of innocence. I agree with the insightful analysis expressed by Judge Lawson and the Fifth District in Knight v. State, 107 So.3d 449 (Fla. 5th DCA 2013), which recognized that the special standard of review in circumstantial-evidence criminal cases is inconsistent with the Florida jury instructions, federal law, and the majority of state jurisdictions.

The standard of appellate review in direct-evidence criminal convictions requires that the verdict be supported by competent, substantial evidence as to each element of the offense from which a rational trier of fact could convict. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). By contrast, the current “special standard” applicable in circumstantial-evidence cases requires that the evidence, when viewed in a light most favorable to the State, must exclude any reasonable hypothesis of innocence. Law, 559 So.2d at 189. This “special standard” is not conducive to an objective rule of law, and the standard results in appellate courts reweighing evidence, which was prohibited more than thirty years ago in Tibbs v. State, 397 So.2d 1120 (Fla.1981). In addition, appellate courts have reached inconsistent results regarding whether the special standard of review even applies. Compare State v. Burrows, 940 So.2d 1259, 1262 (Fla. 1st DCA 2006) (because State’s witness testified substance was cocaine, State was “not solely relying upon circumstantial evidence because establishing the substance was cocaine was the second element of the crime.”) with Alleyne v. State, 42 So.3d 948, 950 (Fla. 4th DCA 2010) (“Where proof of an element of the crime is based wholly on circumstantial evidence, [the] special standard of review applies.”)

The “rational trier of fact” standard of review applicable in Florida in direct-evidence cases meets federal constitutional requirements and properly honors the role of the jury in criminal cases. In Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court recognized that “Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150. We decline to adopt it today.”

Applying a different legal standard of appellate review merely because of the type of evidence involved is not grounded in law or logic. Circumstantial evidence can be far more probative than direct evidence. This court should therefore request the Florida Supreme Court to consider adopting the “rational trier of fact” standard of appellate review in all criminal cases, which would improve the administration of justice.

7. The Majority Opinion Incorrectly Upholds the Trial Court’s Order Which Misapplied Current Law on Circumstantial Evidence

It is axiomatic that proof based entirely on circumstantial evidence can sustain a criminal conviction in Florida. Durousseau v. State, 55 So.3d 543, 557 (Fla.2010); Law, 559 So.2d at 187; Toole v. State, 472 So.2d 1174, 1176 (Fla.1985) (citing Heiney v. State, 447 So.2d 210, 212 (Fla.1984)), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983). In circumstantial-evidence cases, the supreme court has held that the trier of fact, not the courts, must decide whether such evidence is “inconsistent” with a reasonable hypothesis of innocence. Law, 559 So.2d at 192. The State is not required to conclusively rebut the defendant’s claim of innocence, but only submit competent evidence as to each element of the charged offense, upon which a jury could find the defendant guilty should it choose to reject the defendant’s hypothesis of innocence.

Contrary to the majority’s incorrect summation of the evidence, the jury verdicts convicting Appellee of aggravated assault and aggravated battery with a firearm were based on legally sufficient evidence: Appellee drove to the park just before the shooting, where a fight occurred between Appellee’s co-defendant, Tarrance Webb, and the shooting victims; eyewitnesses identified the car used in the drive-by shooting as Appellee’s car; and most significantly, the jury convicted the shooter, Appellee’s co-defendant, finding beyond a reasonable doubt that the shots were fired from Appellee’s car by his friend and co-defendant.

Thus, there is direct evidence that Ap-pellee’s ear was used to transport the drive-by shooter (Webb), and circumstantial evidence that Appellee was driving his car while Webb shot the victims; therefore, the special standard of review required in circumstantial-evidence cases applies only to the element of identity. See Walker v. State, 957 So.2d 560, 577 (Fla.2007) (holding where State presents direct evidence that defendant killed victim, establishing actus reus of murder, but defendant denied intentionally killing the victim, special rule regarding circumstantial evidence applies only to mens rea).

In fact, it is questionable whether the special standard of appellate review applies here at all, as the jury actually heard direct evidence of Appellee’s guilt. Appel-lee’s co-defendant impeached a State witness with a prior inconsistent statement in which the witness identified Appellee as the driver of the car during the shooting. Appellee then questioned the witness and established that this prior statement identifying Appellee was a sworn statement to law enforcement. Neither Appellee nor his co-defendant requested a limiting instruction under section 90.801(2)(a), Florida Statutes. Thus, this is direct evidence identifying Appellee as the driver during the shooting. Baugh v. State, 961 So.2d 198, 208 n. 5 (Fla.2007) (“ ‘Direct evidence is that to which the witness testifies of his own knowledge as to the facts at issue. Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist.’ ” (quoting Davis v. State, 90 So.2d 629, 681 (Fla.1956)). During closing arguments, both the State and defense counsel discussed this sworn pre-trial statement identifying Appellee.

But in opposing Appellee’s motion for judgment of acquittal, the State did not argue that because Appellee had agreed to admitting this impeachment evidence identifying him as being present during the shooting, without a limiting instruction, this testimony transformed the case from one based solely on circumstantial evidence to a case based on both direct and circumstantial evidence. Therefore, although this is not a case which is “wholly circumstantial,” Bussell v. State, 66 So.3d 1059, 1062 (Fla. 1st DCA 2011) (holding case not “entirely circumstantial” where defendant stipulated that computer files contained child pornography, but argued State had not proven constructive possession), we must apply the special standard of review required in cases based on circumstantial evidence. Regardless of this fact, however, the evidence is relevant to our review, even under the special standard, as it tends to show that Appellee committed the crime. Furthermore, the fact that the witness disputed his own pretrial statements identifying Appellee as the driver goes to the weight of the evidence, because Appellee agreed to its admissibility, which is within the province of the jury to consider. Tibbs, 397 So.2d at 1123 (“an appellate court should not ... reweigh conflicting evidence submitted to a jury....). However, it cannot be properly ignored by this court as, at the very least, the evidence can and does contradict Ap-pellee’s pre-trial assertion that he was not in his car during the shooting.

Contrary to binding Florida Supreme Court precedent, the majority’s decision to affirm the trial court’s post-verdict judgment of acquittal effectively requires direct evidence to establish identity. Orme v. State, 677 So.2d 258, 261 (Fla.1996); Lincoln v. State, 459 So.2d 1030, 1031-32 (Fla.1984). In Lincoln, the supreme court cited to State v. Allen, 335 So.2d 823, 826 (Fla.1976), in which it reviewed a corpus delicti challenge. In Allen, the supreme court acknowledged that “[cjircumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant.” 335 So.2d at 826. Yet, the majority opinion does just that.

Here, there is ample evidence to find the evidence is sufficient to convict, when we review it with the proper legal standard:

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable [persons] as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.

Lynch v. State, 293 So.2d 44, 45 (Fla.1974) (emphasis added).

Although there is an additional rule applicable to circumstantial-evidence cases, the rule in Lynch applies to all motions for judgment of acquittal. The moving defendant must first concede all reasonable inferences to the State, in addition to all established facts, and then demonstrate that his or her reasonable hypothesis of innocence has not been rebutted by any inconsistent evidence. As the supreme court has stated:

In sum, the sole function of a trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the state and (b) the defense theory or theories. If there is such inconsistency, then the question is for the trier of fact to resolve.

Orme, 677 So.2d at 262 (emphasis added); see also Thomas v. State, 894 So.2d 126, 132 (Fla.2004) (“If the evidence, viewed most favorably to the state, created an inconsistency with Thomas’s theory, the trial court was to deny the motion and allow the finder of fact to resolve the inconsistency.”) (emphasis added).

Furthermore, the supreme court has long held that the State is not required to rebut every conceivable claim of innocence:

Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied ... “The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the Defendant’s theory of events.”

Kocaker v. State, — So.3d-(Fla.2013) (emphasis added) (quoting Durousseau, 55 So.3d at 556-57; Law, 559 So.2d at 189).

A proper review of the evidence under this correct legal standard establishes the following additional facts: Appellee drove Webb, his friend and co-defendant, to a park, where Webb engaged in two fights. Witnesses identified Appellee, whom they knew previously, and his car, a dark blue Pontiac G6. Appellee and Webb admitted to being at the park, and Webb admitted to fighting the victims. A mere 30 minutes after Appellee and Webb left the park, witnesses identified Appellee’s car, with Webb in the back seat, at two locations involving the victims, the second location being where the shooting occurred from the back seat of Appellee’s car.

While Appellee denied to law enforcement that neither he nor his co-defendant were involved in the shooting, the credibility of this denial is for the jury to decide. Durousseau, 55 So.3d at 558 (noting that outside of defendant’s own testimony, there was no evidence robbery was a mere “afterthought”). A jury is entitled to reject a defendant’s self-serving claim, even where the State relies solely on circumstantial evidence to demonstrate guilt. Buenoano, 478 So.2d at 390. While a defendant is entitled to claim that he “wasn’t there,” such an assertion will not establish a reasonable hypothesis of innocence sufficient to be entitled to an acquittal, where the State produces conflicting circumstantial evidence of guilt. See, e.g., Galavis v. State, 28 So.3d 176 (Fla. 4th DCA 2010) (State’s burden is to produce evidence “inconsistent with every reasonable hypothesis of innocence that the defendant proposes.”) (emphasis in original) (citing Twilegar v. State, 42 So.3d 177 (Fla.2010)).

The very authority relied on by the majority actually supports upholding the jury verdict, as the State presented sufficient evidence “to enable the jury to exclude every reasonable hypothesis of innocence.” Law, 559 So.2d at 188 (emphasis added). Furthermore, the majority’s reliance on Law is misplaced, because in Law, the Florida Supreme Court reinstated the jury’s guilty verdict of second-degree murder, which this court had improperly reversed.

In a circumstantial-evidence case, the trial court’s sole function when adjudicating a motion for judgment of acquittal is to determine whether the State presented competent evidence that contradicts the defendant’s hypothesis of innocence. If the State’s evidence is inconsistent with the defendant’s reasonable hypothesis, only the jury may decide whether the State’s evidence excludes the hypothesis of innocence beyond a reasonable doubt. Id. at 189. Here, the trial court’s order granting Appellee an acquittal should be reversed as a matter of law, because it failed to consider all the evidence in a light most favorable to the State.

In Law, the supreme court held:

It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. The view of the evidence must be taken in a light most favorable to the state. The state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

559 So.2d at 189 (citations and footnote omitted) (italicized emphasis in original; bolded emphasis added). It is worth noting that, in its conclusion, the supreme court stated: “Because we find that it is clear from the record the state introduced competent evidence from which the jury could have reasonably rejected each of Law’s theories, the result reached by the district court cannot stand.” Id. at 192 (emphasis added). We should reach the same result here and reinstate the jury verdicts finding Appellee guilty as a principal of aggravated assault and aggravated battery with a firearm.

In addition to contradicting established law, the majority’s holding also runs afoul of the prohibition against appellate courts reweighing evidence. Tibbs, 397 So.2d at 1123. Neither appellate courts nor trial courts are empowered to act as seventh jurors in criminal cases when deciding motions seeking a judgment of acquittal. Id. at 1123 n. 10. Here, the majority reweighs the evidence and reaches a different conclusion than the jury reached; this is not permissible under Tibbs.

Concerning the majority opinion’s statements regarding proof of Appellee’s intent in helping Webb attack the victims, it is axiomatic that questions of intent are quintessentially questions of fact, not law, and intent can rarely be proven by direct evidence: “Intent, a state of mind, is rarely susceptible of direct proof. It is almost always shown solely by circumstantial evidence.” Green v. State, 90 So.3d 835, 837 (Fla. 2d DCA 2012) (emphasis added). In fact, intent usually is inferred based on circumstantial evidence. See Hardwick v. State, 630 So.2d 1212 (Fla. 5th DCA 1994); State v. Tovar, 37 Fla. L. Weekly D2569, 2012 WL 5373443 (Fla. 2d DCA Nov. 2, 2012). In addition, the evidence, viewed in the light most favorable to the State, demonstrated that Appellee drove the car, with Webb, to two locations in pursuit of the victims, who were shot by Webb at the second location. This evidence shows Ap-pellee and Webb intentionally pursued the victims to engage in a drive-by shooting, especially when the evidence is reviewed under the proper legal standard.

The majority opinion similarly errs in its discussion of the lack of weapons or ammunition found in Appellee’s car. Again, viewing the evidence in the light most favorable to the State, the State demonstrated that Webb fired the gun from the back seat of Appellee’s car, because the jury found Webb guilty of the shooting attack. Thus, it has been established for purposes of this appeal that a gun was fired from the back seat of Appellee’s car. Based on this evidence, it is beyond dispute that Appellee’s car was involved in the drive-by shooting. Therefore, the lack of any weapons or ammunition does not, as a matter of law, demonstrate that the State failed to produce sufficient evidence; rather, it demonstrates that a jury question was created by the evidence. Law, Orme.

Finally, this case is not analogous to the cases cited in the majority opinion. In Cox v. State, 555 So.2d 352, 353 (Fla.1989), the relevant evidence of identity was far inferior to the evidence presented here. Most significantly, there was no direct testimony linking Cox to the murder victim. Here, Appellee, his car and Webb were all positively identified as being present at the park where Webb fought with the victims whom he later shot. Conversely, in Cox, the court noted that “Cox did not know the victim, and no one testified that they had been seen together. Although State witnesses cast doubt on Cox’ alibi, the State’s evidence could have created only a suspicion, rather than proving beyond a reasonable doubt, that Cox, and only Cox, murdered the victim.” 555 So.2d at 353. Here, witnesses placed Appellee, his car, and his co-defendant at the park where the fight occurred, and the same witnesses placed Appellee’s car and his co-defendant at the scene of the drive-by shooting. This was sufficient evidence to allow the jury to decide whether Appellee’s guilt had been proven beyond a reasonable doubt.

Similarly, in Ballard v. State, 923 So.2d 475 (Fla.2006), the supreme court reversed a murder conviction based on circumstantial evidence consisting of no more than the defendant’s hair and fingerprint, where the defendant had been a guest in the victims’ home on numerous occasions. There is far more inculpatory circumstantial evidence of guilt here than in Ballard, thus, that case is not dispositive here.

We should reverse the trial court’s order granting the judgment of acquittal, and reinstate the jury’s verdict finding Appel-lee guilty because the State submitted competent evidence regarding identity that contradicted Appellee’s self-serving hypothesis of innocence that he was not driving his car during the shooting. Essentially, the majority opinion holds as a matter of law that the jury was not entitled to disbelieve the defendant’s testimony, as did the trial court. But, of course, the jury is specifically instructed that it can believe or disbelieve all or any part of a witness’ testimony. See Standard Instruction 3.9, Florida Standard Jury Instructions in Criminal Cases, “Weighing the Evidence” (“It is up to you decide which evidence is reliable.... A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.”) But neither the trial court nor this court is authorized to reject a jury’s view of the evidence by reweighing the same evidence and simply coming to a different conclusion. Tibbs, 397 So.2d at 1123. Therefore, I respectfully dissent from the majority opinion, as I would reverse the trial court’s order.

II. This Court Should Certify a Question of Great Public Importance Regarding Whether the Special Standard of Appellate Review of Circumstantial Criminal Convictions Should Be Reconsidered by the Florida Supreme Court

This court should certify a question of great public importance to the Florida Supreme Court regarding whether that court should reconsider the special standard of review of criminal convictions based on circumstantial evidence. See Knight, 107 So.3d at 449.

Applying “special rules” regarding circumstantial evidence in criminal cases is inherently illogical, as recognized in Judge Lawson’s opinion in Knight. In fact, applying “special rules” to any kind of evidence is inherently problematic, as the Florida Supreme Court recognized in Marr v. State, 494 So.2d 1139 (Fla.1986). There, the supreme court answered a certified question from this court regarding whether a special jury instruction was required in a sexual-battery case to inform the jury that it should “rigidly scrutinize” an alleged victim’s testimony where “no other person was an immediate witness to the alleged act....” Id. at 1140. Interestingly, the supreme court in Marr recognized that the failure to give this instruction in sexual assault cases was not generally considered to be legal error, but rather, the cases relied on in support of the special instruction “apparently dealt with the language of the requested instruction in the context of appellate review of the sufficiency of the evidence.” Id. at 1141 (citing this court’s en banc decision in Marr which overruled a panel decision granting a new trial based on trial court’s ruling denying defendant’s request for special instruction) (emphasis added). As in Marr, here the supreme court should consider whether applying a “special rule” to circumstantial evidence is justified by any more persuasive reason than a special jury instruction was justified regarding sexual-assault testimony. I submit that both the jury instruction and the special standard of appellate review in circumstantial-evidence criminal cases improperly invades the province of the jury.

As Judge Lawson and the Fifth District properly recognized in Knight, the supreme court rejected any special instruction regarding circumstantial evidence more than thirty years ago in In the Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). But as noted in Knight, unlike the cases in the federal courts, the Florida Supreme Court retained a “special” standard of review of legal sufficiency in circumstantial-evidence criminal cases. This has led to the anomaly of the law whereby juries are never told that the State must submit evidence that excludes every reasonable hypothesis of innocence, but then appellate courts reverse tack and insist on just such an evi-dentiary requirement.

As noted in Knight, and recognized by the Texas Court of Criminal appeals more than twenty years ago, applying different rules regarding circumstantial evidence at trial and on appeal “evaluates the jurors’ rationality by a different standard than that by which they were instructed to reach their verdict.” Knight, 107 So.3d at 457 (citing Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991)). In fact, the court in Knight noted that the special standard of appellate review in circumstantial criminal cases can lead to parallel lines of authority “by recognizing that “whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine,’ Law, 559 So.2d at 188, while [simultaneously] adopting an appellate standard of review that suggests otherwise, Florida’s appellate courts have spawned two lines of subtly conflicting cases.” Knight, 107 So.3d at 458, 38 Fla. L. Weekly at D159 (emphasis added).

The court in Knight credited Judge Co-wart with recognizing this deficiency in 1984:

Defendant cites many cases in which appellate courts have encroached upon the province of the jury by determining as a matter of law either (a) that the jury could not believe or ... disbelieve [a] ... witness, or (b) that some suggested possibility (hypothesis) of innocence sounded so reasonable to the appellate court that, as a matter of law, the jury ... was not allowed to disregard ... slight or weak or remote possibility of innocence (which nearly always rests upon the credibility of the defendant’s testimony) and to accept what the jury considered to be ... overwhelming probability of guilt. The viability of the cases cited by defendant ... is questionable in view of better reasoned cases which recognize the jury question inherently involved.

Id. (Cowart, J. concurring specially) (citing Dunn v. State, 454 So.2d 641, 644 (Fla. 5th DCA 1984)) (emphasis added; footnotes omitted).

Those criminal defendants whose cases involve direct evidence receive a completely different standard of review, which is far more deferential to the jury’s verdict:

When sufficiency of the evidence is in issue, several standards of review are applicable. The following standard applies where the evidence of guilt is direct, whether in whole or in part: if a rational trier of fact, upon reviewing the evidence in the light most favorable to the State, could find that the elements of the crime have been established beyond a reasonable doubt, then the evidence is sufficient to sustain the conviction. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Where the evidence of guilt is wholly circumstantial, on the other hand, the following standard applies: not only must the evidence be sufficient to establish each element of the offense, but the evidence also must be inconsistent with any reasonable hypothesis of innocence proposed by the defendant. Id. The issue of inconsistency is a jury question and the verdict will be sustained if supported by competent, substantial evidence. State v. Law, 559 So.2d 187, 188 (Fla.1989).

Twilegar v. State, 42 So.3d 177, 188-89 (Fla.2010) (emphasis added).

I agree with the conclusion in Knight that applying different standards of appellate review to cases based solely on the type of evidence involved is simply not grounded in law or logic; in law, because the Florida Supreme Court long ago rejected any requirement to instruct juries to somehow rigidly scrutinize circumstantial evidence, and in logic, because circumstantial evidence can be far more probative than direct evidence, and thus applying a different standard of appellate review is not justified.

This case provides a perfect example. Assume hypothetically that a witness incorrectly identified a different person as the driver during the drive-by shooting, thus transforming this into a direct-evidence case. Baugh, 961 So.2d at n. 5 (Fla.2007). In such a case, had the jury believed the incorrect testimony and convicted this other person, this court would be required to be more deferential in reviewing that verdict, because the verdict would have been based on direct evidence. Peterson v. State, 94 So.3d 514 (Fla.2012) (recognizing that in direct-evidence cases, rational fact-finder test applies: “ ‘In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.’ ”) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). But this result is not based on logic or the law, which provides that juries are not to be instructed to apply a different level of value to direct evidence in comparison to circumstantial evidence.

Thus, this court should certify a question to the Florida Supreme Court, as nothing could be more important than ensuring that all criminal defendants are equal before the law regarding the issue of whether the State submitted sufficient evidence to sustain a verdict of guilt. The Florida Supreme Court held in Marr that no trial court would henceforth be required to instruct a jury to treat a sexual-assault victim’s testimony differently than any other kind of evidence, stating that it “should no longer play a role in Florida jurisprudence.” 494 So.2d at 1142. It is respectfully submitted that the time has come for that court to similarly consider whether applying different appellate standards of review in criminal cases merely based on the type of evidence involved “should no longer play a role in Florida jurisprudence.”

I would certify a question that would allow the Florida Supreme Court to consider whether the time has come to announce a single standard of appellate review of the legal sufficiency of all criminal convictions. In my view, such a change would greatly enhance the administration of justice in criminal cases.

      . In Twilegar, a circumstantial-evidence case, the Florida Supreme Court seemed to apply a hybrid standard of review, as the court stated that it was "viewing the evidence in a light most favorable to the state, a rational trier of fact could have found that the elements of the crime have been established beyond a reasonable doubt.” 42 So.3d at 189. However, the court later stated that "competent, substantial evidence supports the conclusion that this evidence is inconsistent with any reasonable hypothesis of innocence proposed by Twilegar." Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Renea FANGUY v. LEXINGTON INSURANCE COMPANY and Michael Graham, M.D.
    No. 2013-C-0114.
    Supreme Court of Louisiana.
    April 1, 2013.
   PER CURIAM.

liWe grant this application for certiorari to consider issues arising from a medical review panel (“MRP”) physician-member’s failure to disclose a financial relationship with the physician-defendant.

At all pertinent times, LSA-R.S. 40:1299.47 provided, in pertinent part, that, before entering upon their duties, each voting panelist of a MRP shall subscribe before a notary public the following oath:

“I, (name) do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with law and the evidence.”

Further, LSA-R.S. 40:1299.47 requires a MRP panelist to disclose in writing to the parties, prior to the hearing, “any employment relationship or financial relationship with the claimant, the health care provider against whom a claim is asserted, or the attorneys representing the claimant or health care provider, or any other relationship that might give rise to a conflict of interest for the panelists.”

In the this medical malpractice case, Dr. Vernon Carriere was nominated to participate as a panelist on the MRP by the defendant, and Dr. Carriere failed to | ^disclose any financial relationship with defendant Dr. Michael Graham. After the decision of the MRP was rendered on March 9, 2011 finding no evidence that Dr. Graham’s treatment fell below the applicable standard of care, the plaintiff filed the instant medical malpractice suit on April 1, 2011. Subsequently, the plaintiff filed a motion in limine, in the district court, to exclude from evidence the MRP opinion and/or any testimony by the MRP physician-members, citing the ineligibility of panel member Dr. Vernon Carriere, who was alleged to have been a business partner of Dr. Michael Graham. The plaintiff produced prima facie evidence that Dr. Carriere and Dr. Graham were both officers of the corporation “Jefferson Ambulatory Surgery Center, L.L.C.,” and no evidence to the contrary was presented by the defendants.

October 26, 2011, the district court granted the plaintiffs motion to exclude Dr. Carriere’s testimony, but denied the plaintiffs motion to exclude the MRP opinion and the testimony of the remaining two MRP physician-members. On the plaintiffs application for review of the district court’s ruling, the court of appeal concluded that the district court had erred in failing to also exclude the MRP opinion and the testimony of the other two physician-members. In so holding, the appellate court concluded that, if the district court believed that Dr. Carriere was ineligible to serve on the MRP, then it was illogical to allow the other physician-members’ testimony or the MRP opinion in evidence, as “the entire medical review process was tainted by Dr. Carriere’s participation.” See Fanguy v. Lexington Insurance Company, 12-136 (La.App. 5 Cir. 11/13/12), 105 So.3d 848. The defendants now seek to have these adverse rulings overturned and, alternatively, ask that the matter be remanded for the formation of a new MRP.

While we are unable to say the lower courts committed error in finding that the undisclosed financial relationship between Dr. Carriere and Dr. Graham | ^presented the appearance of impropriety, which vitiated Dr. Carriere’s oath of impartiality and thereby tainted the MRP proceedings, we believe that justice would best be served by ordering the re-constitution of the MRP with different physician-members and allowing that new panel to deliberate and issue an opinion on the issues presented in this case. Accordingly, we affirm the decision of the appellate court, in part, and reverse the appellate court, in part, insofar as it failed to order that a new MRP be impaneled; we remand this matter to the district court for further proceedings in accordance with the foregoing.

WRIT GRANTED; APPELLATE COURT DECISION AFFIRMED, IN PART, AND REVERSED, IN PART; REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.


text:
    In re CONFIDENTIAL PARTY.
    No. 2013-OB-0316.
    Supreme Court of Louisiana.
    April 1, 2013.
   ORDER

Considering the Petition for Transfer to Active Status filed by respondent, and the responses thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the petition be and hereby is denied at this time. Pursuant to Supreme Court Rule XIX, § 22(G)(8), respondent may reapply for transfer to active status upon a showing that he has been judicially declared to be competent.

FOR THE COURT:

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana


text:
    In re Steven B. LONGO.
    No. 2013-B-0482.
    Supreme Court of Louisiana.
    April 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent was convicted of driving under the influence of alcohol and of a domestic violence charge. In addition, the Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that he commingled client funds with personal funds in his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rules 1.15 (safekeeping property of clients or third persons) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Steven B. Longo, Louisiana Bar Roll number 30919, be suspended from the practice of law for a period of eighteen months, retroactive to October 14, 2011, the date of his interim suspension.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to' commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Jerome M. VOLK, Jr.
    No. 2013-B-0309.
    Supreme Court of Louisiana.
    April 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent made false statements about a judge’s integrity. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rule 8.2(a) (a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Jerome M. Volk, Jr., Louisiana Bar Roll number 13109, be suspended from the practice of law for a period of three months. It is further ordered that this suspension shall be deferred in its entirety.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Kevin M. EDLER.
    No. 2010-OB-2284.
    Supreme Court of Louisiana.
    April 2, 2013.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Edler, 10-2284 (La.10/14/10), 45 So.3d 1015, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/ Marcus R. Clark

Justice, Supreme Court of Louisiana


text:
    In re Dustin P. VIDRINE.
    No. 2007-OB-0793.
    Supreme Court of Louisiana.
    April 2, 2013.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Vidrine, 07-0793 (La.6/22/07), 958 So.2d 675, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/ Jeannette T. Knoll

Justice, Supreme Court of Louisiana


author: /s/ John L. Weimer

text:
    In re Arthur GILMORE, Jr.
    No. 2012-B-0852.
    Supreme Court of Louisiana.
    April 3, 2013.
   ORDER

Considering the Motion to Dissolve Interim Suspension filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED THAT pursuant to Supreme Court Rule XIX, § 19(D), this court’s order of May 2, 2012 interimly suspending respondent be and hereby is dissolved.

This order shall be effective immediately-

FOR THE COURT:

/s/ John L. Weimer

Justice, Supreme Court of Louisiana

GUIDRY and HUGHES, JJ„ would deny the motion.


text:
    STATE of Louisiana v. Merritt MELKEN.
    No. 2012-KK-2107.
    Supreme Court of Louisiana.
    Nov. 16, 2012.
   In re Melken, Merritt; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 09-07-0696; to the Court of Appeal, First Circuit, No. 2012 KW 1175.

Denied.


text:
    In re Medical Review Panel for the Claim of Robert NOLAN v. Vicki STEEN, M.D.
    No. 2012-OC-2622.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   In re Nolan, Robert; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2011-11380; to the Court of Appeal, First Circuit, No. 2012 CA1169.

Denied.


text:
    STATE of Louisiana v. Francis Eugene REED, Jr.
    No. 2012-KP-1944.
    Supreme Court of Louisiana.
    March 15, 2013.
   In re Reed, Jr., Francis Eugene; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 428741; to the Court of Appeal, First Circuit, No. 2012 KW 0905.

Denied.


text:
    STATE of Louisiana v. David BROWN.
    No. 2013-KK-0616.
    Supreme Court of Louisiana.
    March 25, 2013.
   In re Brown, David; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. W-04-3-77; to the Court of Appeal, First Circuit, No. 2013-KW-0326.

Stay denied. Writ denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Michael ROBERTSON.
    No. 2013-KK-0588.
    Supreme Court of Louisiana.
    March 27, 2013.
   In re Robertson, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 07-12-0625; to the Court of Appeal, First Circuit, No. 2013 KW 0080.

Denied.


text:
    In re William Christopher BEARY.
    No. 2013-B-0542.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Disciplinary Counsel; — Other; Applying For Petition for Interim Suspension for Threat of Harm Pursuant to Supreme Court Rule XIX, Section 19.2.

Petition for interim suspension denied.

JOHNSON, C.J., and VICTORY and GUIDRY, JJ., would grant interim suspension.


text:
    STATE ex rel. Louis HUDSON v. STATE of Louisiana.
    No. 2011-KH-0966.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Hudson, Louis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 92-1253; to the Court of Appeal, Fifth Circuit, No. 09-WR-563.

Writ granted in part. Given relator’s showing of a reasonable probability that Judge Wicker participated in the prosecution of his case as an assistant district attorney before her election to the Fifth Circuit Court of Appeal, and that she therefore should not have participated in reconsidering his writ applications filed between 1994 and 2007 after this Court transferred them back to the court of appeal pursuant to State v. Cordero, 08-1717, p. 2 (La.10/3/08), 993 So.2d 203, see State ex rel. Hudson v. State, 09-0134 (La.4/24/09), 7 So.3d 1179, out of an abundance of caution, this case is transferred to the Fourth Circuit Court of Appeal for its consideration.


text:
    STATE of Louisiana v. Otis LOCKETT.
    No. 2013-KK-0170.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Lockett, Otis; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 513-023; to the Court of Appeal, Fourth Circuit, No. 2012-K-1561.

Granted. Remanded to court of appeal for briefing, argument and opinion.


text:
    Matilda Christina ROBICHEAUX v. Darryle TATE, Deron Carey and State Farm Mutual Insurance Company.
    No. 2013-C-0176.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Robicheaux, Matilda Christina;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 37,207; to the Court of Appeal, First Circuit, No. 2012 CA 0241.

Writ granted. Summary judgment is reversed and vacated. Genuine issues of material fact remain. The matter is remanded for further proceedings.

VICTORY, GUIDRY and CLARK, JJ., would deny.


text:
    BROOKEWOOD INVESTMENTS CO., L.L.C. v. SIXTY-THREE TWENTY-FOUR CHEF MENTEUR HIGHWAY L.L.C. and Jacob V. Morreale.
    No. 2013-C-0369.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Brookewood Investments Co., L.L.C.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2006-1669; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1205.

Granted. Case remanded to the court of appeal for reconsideration in light of Smitko v. Gulf South Shrimp, Inc., 11-2566 (La.7/2/12), 94 So.3d 750.

WEIMER, J., would grant and docket.


text:
    REGIONS BANK d/b/a Regions Mortgage v. Bertha Dakin RAUCH a/k/a Bertha Dakin, Bertha D. Rauch, Berta Rauch.
    No. 2013-C-0201.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Bertha Dakin Rauch a/k/a Bertha Dakin, Bertha D. Rauch, Berta Rauch;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 10-13504; to the Court of Appeal, First Circuit, No. 2012 CA 0232.

Not considered. Not timely filed. See Supreme Court Rule X, § 5(a)and (d).


text:
    Eber J. BEADLE, IV v. Kemp Joseph DAVID, et al. Davina Broussard v. Kemp Joseph David. Lauren Norris LeBlanc, et al. v. Kemp Joseph David, et al. State Farm Fire and Casualty v. Kemp Joseph David, et al. Louisiana Citizens Property Ins. Copr. v. Geico General Ins. Co., et al. Kimberly F. Menard v. Kemp Joseph David, et al.
    No. 2013-CC-0392.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re David, Kemp Joseph; Geico General Ins. Co.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 2010-6511, 2010-7498, 2010-8045, 2011-2417, 2011-3086, AND 2011-3146; to the Court of Appeal, Third Circuit, No. CW 12-01022.

Not considered. Not timely filed. See Supreme Court Rule X, § 5(d).


text:
    Appeal of the Decision of the DISCIPLINARY BOARD NO. 2012-PDB-104.
    No. 2013-OB-0391.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Jack, Patricia; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 12-PDB-104.

Leave to appeal denied.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 12-PDB-106.
    No. 2013-OB-0443.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Applying For Appeal of Decision of Disciplinary Board No. 12-PDB-106.

Leave to appeal denied.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD No. 12-PDB-107.
    No. 2013-OB-0444.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Applying For Appeal of Decision of Disciplinary Board No. 12-PDB-107 Office of Disciplinary Board, No. 12-PDB-107.

Leave to appeal denied.


text:
    STATE ex rel. Courtney Paul SAVOY v. STATE of Louisiana.
    No. 2011-KH-1266.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Savoy, Courtney Paul; — Plaintiff; Applying For Reconsideration of this court’s action dated March 30, 2012, Parish of Rapides, 9th Judicial District Court Div. B, No. 288,660; to the Court of Appeal, Third Circuit, No. 10-1140.

Reconsideration denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE ex rel. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2012-KH-2164.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Spencer, Edmond D.; — Plaintiff; Applying For Reconsideration, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 12-WCR-312; to the Court of Appeal, First Circuit, No. 2012 CW 1229.

Reconsideration denied.


text:
    Appeal of the Decision of the DISCIPLINARY BOARD NO. 13-PDB-064.
    No. 2012-OB-2325.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Bess, Lynn; — Plaintiff; Applying For Reconsideration of this court’s order dated February 8, 2013 Office of Disciplinary Board, No. ll-PDB-064.

Second application for reconsideration denied. No further filings shall be accepted in this matter.


text:
    GLOBAL TEL*LINK CORPORATION v. James M. LeBLANC, in his Official Capacity as Secretary for the Department of Public Safety and Corrections for the State of Louisiana, et al.
    No. 2013-CC-0463.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Department of Public Safety and Corrections for the State of Louisiana; Lea, Denise; LeBlanc, James M. et al.; Nichols, Kristy; Rainwater, Paul; Securus Technologies, Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, Nos. 608,-750, 610,848; to the Court of Appeal, First Circuit, No. 2012 CW 2038.

Stay denied. Writ denied.

VICTORY and WEIMER, JJ., would grant.


text:
    STATE of Louisiana v. Donald K. SWANZY.
    No. 2012-K-1281.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Swanzy, Donald K; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 09-405; to the Court of Appeal, Fifth Circuit, No. 11-KA-882.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Derrick D. BAKER, Sr. v. STATE of Louisiana.
    No. 2012-KH-1483.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Baker Sr., Derrick D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR538-2006; to the Court of Appeal, Third Circuit, No. KH 10-01558.

Denied.


text:
    STATE of Louisiana v. Marlon D. WASHINGTON.
    No. 2012-KO-1730.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Washington, Marlon D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 05-08-0418; to the Court of Appeal, First Circuit, No. 2011 KA 0327.

Denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Generio ALLEN.
    No. 2012-C-1995.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 489-932; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0693.

Denied.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Marcell O’CONNER.
    No. 2012-KO-2163.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re O’Conner, Marcell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 7-98-0062; to the Court of Appeal, First Circuit, No. 2011 KA 1696.

Denied.


text:
    STATE of Louisiana v. Darius J. CLEMENT.
    No. 2012-K-2214.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Clement, Darius J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 10-2189; to the Court of Appeal, Fifth Circuit, No. 11-KA-1150.

Denied.


text:
    STATE of Louisiana v. Michael RICHOUX.
    No. 2012-K-2215.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Richoux, Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 10-4619; to the Court of Appeal, Fifth Circuit, No. 11-KA-1112.

Denied.


text:
    STATE ex rel. Elvis McGARY v. STATE of Louisiana.
    No. 2012-KH-2225.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re McGary, Elvis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 701675; to the Court of Appeal, First Circuit, No. 2012 KW 0596.

Denied.


text:
    STATE of Louisiana v. Delis PIERRE.
    No. 2012-KO-2227.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Pierre, Delis; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 1100081; to the Court of Appeal, First Circuit, No. 2012 KA 0125.

Denied.


author: McCLENDON, J. WELCH, J.,

text:
    James W. LEDBETTER and Vanessa H. Ledbetter v. HOMES BY PAIGE, L.L.C. and ABC Insurance Company.
    No. 2011 CA 0005.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      Donna U. Grodner, Marcus J. Plaisance, Blake S. Leger, Baton Rouge, LA, for Plaintiffs/Appellants James W. Ledbetter and Vanessa H. Ledbetter.
    Brent Kinchen, Willie G. Johnson, Jr., Baton Rouge, LA, for Defendants/Appel-lees Homes by Paige, L.L.C. and Shelter Mutual Insurance Company.
    Chenell R. Simms, New Orleans, LA, for Defendant/Appellee Assurance Company of America.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

^Homeowners appeal a judgment rendered in accordance with a jury verdict that awarded them allegedly insufficient damages arising from a general contractor’s breach of contract, but denied them damages under the New Home Warranty Act. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In December 2005, James and Vanessa Ledbetter and Homes by Paige, LLC, entered into an “Agreement to Purchase and Sell” a home, which was then under construction in Prairieville, Louisiana. An addendum was attached thereto, wherein the parties agreed that the Ledbetters were to provide Homes by Paige with a punch list at least three days prior to the Act of Sale and that Homes by Paige agreed to complete the punch list items prior to the Act of Sale. The parties further agreed that “any additional punch list items shall be completed by [Homes by Paige] within 30 days after Act of Sale.”

On January 31, 2006, an initial punch list was prepared and agreed upon by the parties. Also, a home inspection report was completed by a licensed home inspector, and he identified some issues not addressed in the initial punch list. On February 1, 2006, Homes by Paige agreed to make certain repairs listed in the initial punch list and in the home inspection report.

On February 2, 2006, the Act of Cash Sale was signed by all parties. Thereafter, the Ledbetters prepared two additional punch lists and provided them to Homes by Paige. Homes by Paige completed some of the repairs within thirty days, but at some point thereafter, the builder did not return.

On July 17, 2006, the Ledbetters filed suit naming Homes by Paige as defendant. The Ledbetters alleged that Homes by Paige failed to make numerous repairs, many of which were included in the various punch lists, despite numerous requests for the builder to do so. The Ledbetters sought damages for breach of contract, as well as damages, attorney’s fees, and court costs as provided by the New Home Warranty Act (“NHWA”), LSA-R.S. 9:3141, et seq.

^Following a three-day jury trial, the jury found that Homes by Paige breached the parties’ contract and awarded $16,154.00 arising from this breach. The jury also found that Homes by Paige violated the NHWA, but found that the Led-betters failed to provide Homes by Paige with a reasonable opportunity to repair or replace the defects. The jury did not award damages under the NHWA nor did the jury award any non-pecuniary damages.

The Ledbetters have appealed, assigning the following as error:

1) Where the [NHWA] requires that a Builder be provided a reasonable opportunity to make repairs, the jury in this matter erred as a matter of law in finding that over two years was not a reasonable opportunity for the Builder to make repairs.
2) Damages should be awarded for violation of the NHWA.
3) Where it is not possible to determine what items the jury paid on the contract claim, it is appropriate for this Court to find the total amount of the damages to the home, whether under contract or the NHWA, and then ■ to credit the jury award on the contract against the whole, and, then, to enter an award for the remainder to the Plaintiff. An additur under contract may be appropriate to grant full relief.
4) Where the jury interrogatories failed to match the jury charges on the issue of the availability of nonpecuniary damages for a breach of contract, Mr. Led-better was denied an opportunity to such damages. Under the facts of this case, an award of nonpecuniary damages is appropriate. The appropriate amount below which it would be reasonable to award such damages is $15,000.00.
5) Where the jury found a breach of contract and the contract expressly provides for attorney fees, and where the jury found a violation of the NHWA, and the NHWA statutorily provides for attorney fees, the Plaintiff was entitled to an award of attorney fees and should receive such an award.

DISCUSSION

The NHWA was enacted in 1986 and codified in LSA-R.S. 9:3141, et seq., for the purpose of “providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners’ insurance as additional protection for the public against defects in the construction of new homes.” The NHWA provides a “warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty periods provided herein.” LSA-R.S.4 9:3141. Morris v. Nanz Enterprises, Inc., 05-0236, p. 6 (La.App. 1 Cir. 3/1/06), 929 So.2d 115, 119.

Louisiana Revised Statutes 9:3145 provides both the notice requirements an owner is required to give a builder and the opportunity an owner must provide the builder to remedy the defects prior to instituting an action under the NHWA. Specifically, LSA-R.S. 9:3145(A) provides:

Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter. [Emphasis and footnoted added.]

Absent compliance with LSA-R.S. 9:3145, recovery under the NHWA is precluded. See Jenkins Bldg. Supply, Inc. v. Thigpen, 09-0903, p. 6 (La.App. 1 Cir. 12/23/09), 34 So.3d 867, 871, and Thorn v. Caskey, 32,-310, p. 7 (La.App. 2 Cir. 9/22/99), 745 So.2d 653, 659.

In their first assignment of error, the Ledbetters contend that the jury erred in finding that they did not provide Homes by Paige a reasonable opportunity to make repairs. The Ledbetters note that prior to and shortly after the closing in February 2006, they provided Homes by Paige inspection reports as well as several punch lists of items that needed repair. The Ledbetters also note that in the weeks following the closing, Homes by Paige sent several subcontractors to their home to make repairs. The Ledbetters aver that after Homes by Paige failed to return to complete all of the requisite repairs, they made phone calls, wrote letters, and sent two certified letters to Homes by Paige that were unclaimed. The Ledbetters assert that there is no evidence that the builder took any action to make repairs after April 2006. Accordingly, the Ledbet-ters contend that they provided Homes by Paige more than sufficient notice and opportunity to make repairs as required by LSA-R.S. 9:3145.

Paige Schexnaydre, the owner of Homes by Paige, noted that the home passed all inspections and avers that there were no defects in the home, but | .¡merely incomplete items. She testified that every time she went to the job site, Mr. Ledbetter “would point out imperfections that were just so minute,” explaining “that his job at his chemical company was to find defects, and that’s what he was doing when he walked through [the house].” Mrs. Schex-naydre testified that “[e]very time we went and we fixed an item, he found something else wrong with the way we fixed it, it wasn’t fixed to his standards.” Moreover, Mrs. Schexnaydre testified that Mr. Led-better had “bragged about having people arrested from the time I met him,” including another contractor.

Mrs. Schexnaydre testified that within thirty days following the closing, many of her subcontractors completed various punch list items at the Ledbetters’ home. Mrs. Schexnaydre indicated that while she was attempting to finish the remainder of the punch list, the Ledbetters filed a complaint with local law enforcement, alleging that she had trespassed on their property when she went there to check on her subcontractors. After learning of the trespass complaint, Mrs. Schexnaydre testified that she was unable to fulfill her obligations because “I was scared of [Mr. Led-better], I didn’t know what he was planning. I didn’t know if he was going to send the police after me for something else.” Mrs. Schexnaydre explained that she had never experienced anything similar. She also indicated that had she been able to get back to the property, she would have completed the punch list items.

Ramona Beth Alford, the real estate agent representing Homes by Paige, testified that she was assisting in finalizing the punch list items, but at some point she had to cut contact off between she and Mr. Ledbetter because Mr. Ledbetter “made some comments to me on my home phone ... that seemed threatening.” Ms. Alford stated that she recalls Mr. Ledbetter making a statement “about having [Mrs. Schexnaydre] arrested for trespassing.” Prior to these threats, Ms. Alford indicated that she had been “trying to help assist in | (finalizing [the] punch list items,” but “felt it may have been appropriate to step back” when the threats were made.

Four months after closing, the Ledbet-ters filed another complaint with local law enforcement, asserting that Mrs. Schex-naydre had committed theft by removing excess ceramic tile from the home immediately prior to closing. Mrs. Schexnaydre explained that excess building materials are sometimes brought to other jobsites or discarded when the house is cleaned prior to the closing. On the other hand, Mr. Ledbetter testified that Mrs: Schexnaydre had entered the home without authorization and removed the tiles. When questioned regarding why he waited four months to file a complaint, Mr. Ledbetter indicated that he believed, following his conversations with Mrs. Schexnaydre, that the excess tile was going to be returned.

A jury’s factual findings in cases involving the NHWA are subject to manifest error review. Hutcherson v. Harvey Smith Const, Inc., 08-1046, p. 3 (La.App. 1 Cir. 2/13/09), 7 So.3d 775, 778. An appellate court cannot set aside the trial court’s factual findings unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Thus, if the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

After a review of the record in its entirety, we cannot conclude that the jury committed manifest error in finding that plaintiffs prevented Homes by Paige from accessing the property and from having a reasonable opportunity to repair or replace the defective items. Accordingly, because the Ledbetters did not comply with the provisions of LSA-R.S. 9:3145, they are precluded from |7recovering under the NHWA. See Jenkins Bldg. Supply, Inc., 09-0903 at p. 6, 34 So.3d at 871. Assignments of error one and two are therefore without merit.

In their third assignment of error, the Ledbetters contend that it is impossible to determine the amounts the jury paid on the contract claim so an additur under the contract damage award may be necessary to award full relief. The Ledbetters note that Michael Stein, a civil engineer who has conducted more than 2000 residential home inspections, provided a report regarding the alleged defects in the Ledbetters’ home, but he provided no cost estimate to repair the defects. Ken Tillage, who has worked in the construction industry for fifteen years, provided the cost estimation for most of the repairs suggested by Mr. Stein, and his estimate totaled $138,109.40. Additionally, the Led-betters note that Mr. Tillage’s estimate did not include the costs to reinstall the exteri- or doors, to repair the upstairs subfloor and restretch the carpet, to repair the brick veener and mortar, to replace rusted shutter hinges and window hinges, and to repair raised flashing, with the total estimated costs of these repairs being a minimum of $2,600.00. The Ledbetters conclude that they are entitled to recover the estimated repair costs provided by Mr. Tillage, along with the additional cost for repairs not included in Mr. Tillage’s estimate.

On the other hand, Eric Williams, a licensed contractor, who was hired by the Ledbetters to finish mostly “common punchlist items” so that the Led-betters could place their home on the market, made certain repairs totaling $6,800.00. Butch Ingram, an expert in the field of general construction and estimating, inspected the home after Mr. Williams completed his repairs. Mr. Ingram’s estimate for all repairs suggested by Mr. Stein, which had not been previously remedied by Mr. Williams, totaled $6,605.00. The cost-of-repair issue involved the effect and weight to be given the expert testimony. Where the fact finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. This | srule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. LeBlanc v. Landry, 08-1643, p. 11 (La.App. 1 Cir. 6/24/09), 21 So.3d 353, 362, twit denied, 09-1705 (La.10/2/09), 18 So.3d 117. Where expert witnesses present differing testimony, it is the responsibility of the trier of fact to determine which evidence is the most credible. Graf v. Jim Walter Homes, Inc., 97-1143, p. 10 (La.App. 1 Cir. 5/15/98), 713 So.2d 682, 691.

Moreover, in an action on a contract to build, the appropriate measure of damages resulting from the contractor’s breach of the implied warranty of good workmanship is generally the cost of repairs when the thing can be repaired. Graf, 97-1143 at p. 11, 713 So.2d at 691. Similarly, under LSA-R.S. 9:3149(A) of the NHWA, the measure is “reasonable cost of repair or replacement necessary to cure the defect,” which effectively applies the same standard for the measure of damages. Id. Nevertheless, whether an award is made pursuant to a contract or pursuant to the NHWA, our standard of review is the same: the discretion of the trier of fact in determining damages shall not be set aside absent an abuse of discretion. Id.

In this case, the jury was presented with conflicting testimony with regard to the extent of and costs of repair. After review of the record, we conclude that a reasonable factual basis for the jury’s findings exists. Further, the jury did not abuse its discretion in awarding an amount within the range provided by the experts. Accordingly, assignment of error number three is without merit.

In their fourth assignment of error, the Ledbetters aver that the specific jury interrogatory with regard to pecuniary damages denied the Ledbetters any opportunity to recover such damages because it erroneously required that such damages be provided by contract. Specifically, jury interrogatory number 11 provides:

|3Pid Homes by Paige, L.L.C. and Shelter Mutual Ins. Co. contractually agree to pay non-pecuniary damages resulting from the construction project?

The Ledbetters conclude that it was legal error for the trial court to provide an interrogatory providing that non-pecuniary damages were only available if found in the parties’ contract.

Damages for non-pecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a non-pecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss. LSA-C.C. art. 1998. Non-pecuniary damages are recoverable pursuant to LSA-C.C. art. 1998 where the obli-gee intends to gratify both pecuniary and non-pecuniary interests or where the interest is solely non-pecuniary. Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1124 (La.1992). However, “the nature of the contract (including the facts and circumstances attending its formation) must demonstrate that gratification of the non-pecuniary interest constitutes a significant interest.” Id. In Young, the Louisiana Supreme Court illustrated the difference as follows:

Although purchase of a new truck or car may be prompted by both the pecuniary interest of securing transportation and the nonpecuniary interest relating to enjoyment, taste, and personal preference of owning and driving the chosen vehicle, the nature of the contract is primarily pecuniary (unless other factors evidence a different conclusion). Contrast the contract of purchase made in a standard new car sale with a contract for purchase of an antique car that, while it might be driven on the streets, represents the obligee’s desire to own, and perhaps to show, a distinctive, unique automobile. Or, contrast the traditional new car purchase contract with a contract for purchase of a specialty-designed, custom-built vehicle. [Footnote omitted.]

Young, 595 So.2d at 1133.

The Ledbetters contend that they entered into the contract with Homes by Paige to satisfy a non-pecuniary interest. Specifically, Mrs. Ledbetter testified that she found the house conducive to raising a family and holding family gatherings. Mrs. Ledbetter imagined a nursery, as well as her child walking and playing in the backyard. Mr. Ledbetter testified that although he preferred |inanother house across the street, he purchased the house at issue because his wife fell in love with it and they needed a place to stay because his wife was nine months pregnant. In light of the foregoing, the Led-betters conclude that they were entitled to recover damages under Article 1998.

Even assuming that jury interrogatory number 11 was improper, neither the contract nor the facts and circumstances surrounding the formation of the contract demonstrate that the Ledbetters purchased the house for a significant non-pecuniary purpose. We note that the home was not specially designed or custom built. Rather, most of the specifications were determined by the builder, and Mrs. Ledbetter selected this home after Mr. Ledbetter had narrowed his choice down to three or four homes. Moreover, Mrs. Ledbetter acknowledged that they did not anticipate living in the home indefinitely, but “envisioned living there ... at the minimum five years.” As such, although the Ledbetters may have had some non-pecuniary interest relating to the personal preference of owning the home at issue, the nature of the contract appears to be primarily pecuniary. Cf. Thomas v. Desire Community Housing Corp., 98-2097 (La.App. 4 Cir. 7/19/00), 773 So.2d 755 (non-pecuniary damages awarded for breach of contract to build home that was culmination of a lifelong dream of rising from the housing projects to homeownership) and Mayerhofer v. Three R’s Inc., 597 So.2d 151 (La.App. 3 Cir.), writ denied, 600 So.2d 680 (La.1992) (non-pecuniary damages awarded for breach of a contract to build a home when the home was plaintiffs final home and a place she could leave her daughter). Accordingly, based on the record evidence, we find no error in the jury failing to award non-pecuniary damages. Assignment of error number four is without merit.

In their fifth assignment of error, the Ledbetters contend that they are entitled to attorney’s fees. Under Louisiana law, attorney’s fees are not allowed except where authorized by statute or by contract. Smith v. Albrecht, 06-2072, p. 5 (La.App. 1 Cir. 6/8/07), 965 So.2d 879, 882. Because we find no manifest error in the jury’s finding that the Ledbetters faded to comply with LSA-R.S. 9:3145, the Ledbetters cannot recover attorney’s fees under the NHWA. See LSA-R.S. 9:3149(A). Nevertheless, the Ledbetters aver that the parties’ “Agreement to Purchase and Sell” provides for attorney’s fees. Specifically, the Ledbetters point to the following provision:

DEFAULT by SELLER and REMEDIES. In the event of default by Seller, Buyer shall have the right to demand and sue for a) specific performance; or b) at Buyer’s option, an amount equal to 5% of the Purchase Price stipulated herein as stipulated damages.... The Seller shall also be liable for brokerage fees and all attorneys’ fees and other costs incurred in the enforcement of any and all rights under this agreement.

The Ledbetters contend that where the contract provides for attorney’s fees, the judgment in this matter should be entered to allow them all reasonable attorney’s fees for the enforcement of rights under the purchase agreement.

We note that although the contract does not specify what might constitute a default, the sole purpose of the agreement was to transfer title to a certain piece of immovable property. See Allen v. Shields, 06-0866, p. 2 (La.App. 1 Cir. 2/14/07), 2007 WL 466760 (unpublished opinion). Homes by Paige transferred title as required under the terms of the agreement. As such, we cannot conclude that the default provision or the attorney’s fee provision therein has been triggered. As such, the Ledbetters’ fifth assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s September 19, 2008 judgment. Costs of this appeal are assessed against the appellants, James and Vanessa Led-better.

AFFIRMED.

PETTIGREW, J., concurs.

WELCH, J., dissents and assigns reasons.

WELCH, J.,

dissenting.

hi respectfully disagree with the majority opinion in this matter. I believe that the jury interrogatory relating to nonpecu-niary damages was a misstatement of the law and constitutes reversible legal error. Therefore, I would reverse the judgment of the trial court and remand this matter for a new trial.

Jury interrogatories must fairly and reasonably point out the issues to guide the jury in reaching an appropriate verdict. Townes v. Liberty Mutual Insurance Company, 2009-2110 (La.App. 1st Cir.5/7/10), 41 So.3d 520, 527. If the verdict form does not adequately set forth the issues to be decided by the jury, i.e. omits an applicable legal principle or is misleading and confusing, such interrogatories may constitute reversible error. Abney v. Smith, 2009-0794 (La.App. 1st Cir.2/8/10), 35 So.3d 279, 283 writ denied, 2010-0547 (La.5/7/10), 34 So.3d 864.

According to the record in this matter, the plaintiffs alleged and presented evidence at trial that they suffered nonpecu-niary losses or damages due to the alleged breach of contract by Homes by Paige. Louisiana Civil Code article 1998 provides that “[djamages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpe-cuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew or should have known, that his failure to perform would cause that kind of loss.” However, the jury interrogatory relating to nonpecuniary damages required a finding that Homes by Paige contractually agreed to pay such damages in order for the Ledbetters to recover nonpecuniary |2damages. This interrogatory effectively precluded the Ledbetters from recovering nonpecuniary damages. The jury was not given the option of finding that nonpecuniary damages were warranted in the absence of a contract providing for such damages, contrary to La. C.C. art. 1998. Thus, the jury form did not adequately set forth the entirety of the issues pled and tried to the jury.

The jury interrogatory was also legally incorrect insofar as it provided that the plaintiffs could only recover nonpecuniary damages if such damages were contractually agreed to when they may have otherwise been legally entitled to such damages based on the evidence. Furthermore, we note that the trial court’s instructions to the jury included a proper statement of the law in accordance with La. C.C. art. 1998 with regard to nonpecuniary damages. However, it nonetheless issued a jury interrogatory (over the objection of the plaintiffs) that was inconsistent with the jury charge, and thus, misled and confused the jury. Therefore, in my opinion, the trial court’s inadequate, misleading, confusing, and legally incorrect jury interrogatory relating to nonpecuniary damages constituted reversible legal error.

When an appellate court finds that a reversible legal error or clear error of material fact was made in the trial court, it is required, whenever possible, to review the case de novo from the entire record and render judgment on the merits. Norfolk Southern Corporation v. California Union Insurance Company, 2002-0369 (La.App. 1st Cir.9/12/08), 859 So.2d 167, 188 writ denied, 2003-2742 (La.12/19/03), 861 So.2d 579. However, there are cases where the weight of the evidence is so nearly equal that a first-hand view of the witnesses is essential to a fair resolution of the issues. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980). Where such a need arises, the case should be remanded for a new trial. Id. It is the duty of the appellate court to determine when the court can fairly find a preponderance of the evidence from the cold record or whether the | ¡¡case should be remanded. Id.

After reviewing the record herein, the determination of whether the Ledbetters are entitled to an award of nonpecuniary damages is based solely on their credibility, and the fact-finder’s firsthand view of their testimony is essential for a fair determination of their credibility. With the need for credibility determinations, a preponderance of the evidence cannot be fairly determined from this cold record. Therefore, the interests of justice would be best served by remanding this case for a new trial.

Thus, I respectfully dissent.

      . The NHWA does not define or specify what constitutes "giving the builder a reasonable opportunity to comply.”

      . Mr. Ledbetter denied that he ever had another contractor arrested.

      . Mrs. Schexnaydre testified that the tiles were not returned because she was unable to locate them.

      . Homes by Paige has not filed an answer to the appeal challenging whether the amount awarded for breach of contract was appropriate under these circumstances.

      . The jury may have concluded that the award for breach of contract was the cost of Mr. Williams’ repairs totaling $6,800.00, plus Mr. Ingram's estimate of $6,605.00 for further repairs, plus other damages which are unspecified. Moreover, because the estimates for repair were itemized, the jury may have selected specific repair items and used either Mr. Tillage’s estimates or Mr. Williams’ estimates.

      . The Ledbetters note that following entry of the final judgment, they filed a motion to assess attorney’s fees, which was denied by the trial court. The Ledbetters aver that this matter should be remanded so that a hearing may be had on the attorney's fees claim.