author: WELCH, J.

text:
    STATE of Louisiana v. Reynard Joseph GREGOIRE.
    No. 2013 KA 0751.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2014.

      Jason A. Dagate, Asst. D.A., Jason P. Lyons, Asst. D.A., Joseph Waitz, Jr., D.A., Houma, Louisiana, for Appellee, State of Louisiana.
    Bertha M. Hillman, Louisiana Appellate, Project Thibodaux, Louisiana, for Appellant Defendant, Reynard Joseph Gregorie.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

| ¡.Defendant, Reynard Joseph Gregoire, was charged by bill of information with one count of domestic abuse battery by strangulation, a violation of La. R.S. 14:35.3(B)(3) (count one), and two counts of attempted first degree murder, violations of La. R.S. 14:27 and 14:30(A)(2) (counts two and three). He pled not guilty. Following a jury trial, defendant was found guilty of the responsive offense of domestic abuse battery, a violation of La. R.S. 14:35.3(A), on count one, and guilty of the responsive offense of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1, on counts two and three. The trial court denied defendant’s motions for new trial and postverdict judgment of acquittal. For his conviction on count one, defendant was sentenced to ninety days in the parish jail. For his convictions on counts two and three, defendant was sentenced to thirty years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court ordered all sentences to run concurrently. Defendant filed a motion for reconsideration of his sentences, but the trial court denied that motion. He now appeals, alleging three assignments of error. For the following reasons, we affirm all of defendant’s convictions, and we affirm his sentences on counts two and three. We also amend defendant’s sentence on count one and affirm that sentence as amended.

FACTS

On May 8, 2011, defendant and his wife, Karen Gregoire, held a barbecue at their home on Shrimpers Row in Dulac to celebrate Mother’s Day. Around dusk, Karen and defendant began to argue about moving their four wheeler back into their shed. During the argument, defendant placed his hands around his wife’s neck and choked her. Karen called 911 to report defendant’s actions and fled to a neighbor’s home. Before she fled, Karen told defendant that she was calling the police.

|HAfter Karen went to her neighbor’s home, defendant began to look for her, and he became upset when he could not find her. As a result, defendant retrieved several guns, including multiple shotguns and at least one rifle. With one of the shotguns, defendant fired ten shots into his wife’s car and approximately five shots to the underside of his home.

Terrebonne Parish Sheriffs Deputy Timothy Granger was dispatched to defendant’s home in response to Karen’s 911 call. Deputy Yashua Willis responded as backup to Deputy Granger. The deputies drove down Shrimpers Row twice to locate defendant’s home. After locating the residence, they parked their patrol vehicles on nearby Verdin Street and began to walk together toward the house. Soon after beginning their walk, Deputies Granger and Willis began receiving gunfire from the direction of defendant’s home. They took cover behind their vehicles and heard bullets striking the area around them. Deputy Willis eventually moved underneath a nearby home to take cover there. While behind cover, both deputies heard someone yell that he was going to “kill a cop” that night. Deputy Granger was eventually able to reenter his patrol vehicle, pick up Deputy Willis, and retreat to safety. Reinforcements arrived, and defendant was arrested after a brief armed standoff. During their subsequent investigation, the police recovered seventeen spent shotgun shells, seven spent .22 caliber casings, several boxes of various types of ammunition, and five firearms (at least two of which were loaded).

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, defendant argues that the state did not present sufficient evidence to support his convictions of attempted second degree murder on counts two and three. Specifically, he argues that the state failed to prove that he had specific intent to kill anyone.

|4A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in La.C.Cr.P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal intent is the state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. State v. Her ron, 2003-2304 (La.App. 1st Cir.5/14/04), 879 So.2d 778, 782. It has long been recognized that specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 585, opinion supplemented by, 2000-1609 (La.6/14/00), 768 So.2d 592 (per curiam), cert, denied, 531 U.S. 946, 121 S.Ct. 345,148 L.Ed.2d 277 (2000).

|fiIn accordance with La. R.S. 14:27(A), any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended. It shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S 14:27(A). An attempt to commit second degree murder requires that the offender possess the specific intent to kill and commit an overt act tending toward the accomplishment of that goal. Herron, 879 So.2d at 783. See also La. R.S. 14:27(A) & 14:30.1(A)(1).

In the instant case, the state presented the testimony of Deputies Granger and Willis, who both stated that they received gunfire from the direction of defendant’s home upon their arrival at the scene. In addition to the gunfire, both deputies heard someone shouting that was going to “kill a cop” that night. While only Deputy Willis actually saw a person in the vicinity of defendant’s home during the shooting, defendant does not argue that he was not shooting his guns on the night of the incident. Instead, he argues that he had no specific intent to kill anyone. This argument is based on defendant’s own trial testimony that he fired his .22 caliber long rifle not at the deputies, but into the air and into the woods behind his home.

The deputies’ testimony was actually sufficient to support the charged offenses of attempted first degree murder on counts two and three. Their details of the incident clearly indicate that defendant was firing a weapon in their direction with the specific knowledge of their identities as law enforcement officers. Further, the box of .22 caliber ammunition recovered at the scene indicated that those rounds were lethal at a range of over a mile. Deputies Granger and Willis had parked their patrol vehicles 307.8 feet from defendant’s home — easily within the lethal range of the .22 caliber rounds.

| r,Because the evidence presented at trial was easily sufficient to support the charged offenses, the jury’s ultimate verdicts of guilty of attempted second degree murder appear to have been compromise verdicts. See State ex rel. Elaire v. Blackbum, 424 So.2d 246, 252 (La.1982), cert, denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). In any event, the jury obviously chose to believe the testimony of Deputies Granger and Willis more than it chose to believe defendant’s own testimony. The jurors obviously concluded that defendant’s version of the events was a fabrication designed to deflect blame from him. See State v. Captville, 448 So.2d 676, 680 (La.1984). The jury was free to accept or reject, in whole or in part, the testimony of any witness. See State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn the jury’s determination of guilt. See Patomo, 822 So.2d at 147.

We note that defendant also made a secondary argument in his brief that the facts presented at trial would only have been sufficient to prove the responsive offense of attempted manslaughter. He alleges that his wife’s call to 911 caused him to go “out of his mind a little bit.” However, defendant cites no jurisprudence supporting his contention that his wife’s 911 call would itself be sufficient to provoke sudden passion or heat of blood toward any responding officers, and we find no merit in this argument.

Reviewing the record as a whole and viewing the evidence in the light most favorable to the state, we conclude that the evidence presented at trial was sufficient to support verdicts of guilty of attempted first degree murder. Therefore, the jury’s verdicts of attempted second degree murder, probable compromise verdicts, were not irrational under the facts and circumstances presented to it. See Ordodi, 946 So.2d at 662.

This assignment of error is without merit.

^EXCESSIVE SENTENCES

In his second assignment of error, defendant contends that his sentences are constitutionally excessive. In his third assignment of error, defendant contends that there was “patent error” when the trial court stated in sentencing defendant on these convictions that there was a minimum sentence of ten years.

We address defendant’s third assignment of error first. In sentencing defendant, the trial court explained that the penalty range for his attempted second degree murder convictions was “not less than [ten] years and not more than [fifty] years for each count.” Defendant argues that this statement was “patent error” because there is no minimum sentence for an attempt to commit a crime.

We note first that any such error is not “patent” because it is not discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. See La.C.Cr.P. art. 920(2). Secondly, in claiming that there is no minimum sentence for an attempt to commit this crime, defendant is simply incorrect.

In his brief, defendant cited subsection (D)(3) of La. R.S. 14:27 as support for this argument. However, subsection (D)(1)(a) applies in the instant case. The correct provision states that if the offense so attempted is punishable by death or life imprisonment, the offender shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(l)(a). The jury found that defendant attempted to commit two counts of second degree murder. Second degree murder is punishable by life imprisonment. La. R.S. 14:30.1(B). Therefore, the trial court stated the correct sentencing range for defendant’s offenses. Defendant’s third assignment of error is without merit.

Defendant argues in his second assignment of error that his sentences on counts two and three of thirty years at hard labor, without benefit of parole, probation, or suspension of sentence, are excessive. He contends that the trial |scourt failed to give adequate consideration to the factors listed in La.C.Cr.P. art. 894.1.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 60S So.2d 739, 751 (La.1992).

Louisiana Code of Criminal Procedure article 984.1 sets forth items that must be considered by the trial court before imposing sentence. The trial court need not cite the entire checklist of La.C.Cr.P. art. 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by La.C.Cr.P. art. 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La.App. 1st Cir.1988). Remand for full compliance with La.C.Cr.P. art. 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La.1982).

|sAs stated above, the sentencing range for defendant’s convictions on counts two and three was not less than ten years nor more than fifty years at hard labor, without benefit of parole, probation or suspension of sentence. See La. R.S. 14:27(D)(l)(a) & 14:30.1(B). The trial court imposed mid-range sentences of thirty years at hard labor, without benefit of parole, probation, or suspension of sentence on each count, and it ordered all of defendant’s sentences to run concurrently.

Prior to sentencing defendant, the trial judge noted that the evidence presented at trial would have been adequate to support convictions of attempted first degree murder, despite the jury’s ultimate verdicts on these counts. The trial judge was entitled to consider the possibility of this more severe verdict. See State v. Heath, 447 So.2d 570, 577 (La.App. 1st Cir.), writ denied, 448 So.2d 1302 (La.1984). In aggravation, the judge noted that defendant specifically intended to kill two police officers. In mitigation, the trial judge recognized that defendant had no prior felony record.

Under the facts and circumstances of this case, we cannot say that the trial court abused its discretion in sentencing defendant to thirty years at hard labor, without benefit of parole, probation, or suspension of sentence, for these offenses. Despite defendant’s lack of a criminal history, the facts of the instant offenses alone supported the sentences imposed. The trial judge clearly considered and recited these facts in sentencing defendant, and we find no need to second-guess the trial court’s ultimate sentencing decisions. Assignment of error number two is without merit.

Both assignments of error related to defendant’s sentences on counts two and three are without merit.

ImREVIEW FOR ERROR

For errors not assigned, we are limited in our review under La.Code Crim. P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277. After a careful review of the record, we have found a sentencing error on count one.

For his conviction on count one of domestic abuse battery, defendant was sentenced to ninety days in the parish jail. Whoever is found guilty of a first-offense domestic abuse battery shall be fined not less than three hundred dollars nor more than one thousand dollars and shall be imprisoned for not less than ten days nor more than six months. La. R.S. 14:35.3(C). Here, the trial court failed to impose the mandatory fíne, so defendant’s sentence on this count is illegally lenient.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La.C.Cr.P. art. 882(A). A defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence. See State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, 797. Even though the state apparently acquiesced in this illegally lenient sentence and does not complain of this error, the Louisiana Supreme Court has stated that it will not ignore patent errors favorable to a defendant when the state does not complain about them. See State v. Campbell, 2003-3035 (La.7/6/04), 877 So.2d 112, 116.

We amend defendant’s sentence on count one to include the minimum possible, but mandatory, fine of three hundred dollars. We recognize that State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam), generally requires |na remand for resentencing if amendment of a defendant’s sentence involves discretion. However, we find that Haynes is distinguishable from the instant case because we do not amend defendant’s sentence to include the maximum possible fine for his conviction on count one, as the appellate court did in that case. Instead, our imposition of the minimum, but mandatory, fine does not involve more than a ministerial correction of an illegally lenient sentence. Our amendment of defendant’s sentence on count one to include this non-discretionary fine does not constitute a due process violation because neither actual retaliation nor vindictiveness exists in this correction. See Williams, 800 So.2d at 798.

CONCLUSION

Defendant’s sentence on count one is amended to hereby impose the minimum fíne of three hundred dollars. In every other respect, defendant’s sentence on count one remains the same. We affirm this amended sentence,

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS TWO AND THREE AFFIRMED; SENTENCE ON COUNT ONE AMENDED AND AS AMENDED IS AFFIRMED.

      . Louisiana Revised Statute 14:35.3(C) was subsequently amended by 2011 La. Acts. No. 284 § 1 to provide for imprisonment for not less than thirty days instead of ten.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Michael W. McKAY v. STATE, DIVISION OF ADMINISTRATION; Kristy H. Nichols, in her Capacity as Commissioner of Administration; State Department of Health and Hospitals; Kathy H. Kliebert, in her Capacity as Interim Secretary, Department of Health and Hospitals.
    No. 2013 CA 1265.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2014.

      Lewis 0. Unglesby, Michael W. McKay, Baton Rouge, Louisiana, for Plaintiff-Ap-pellee, Michael W. McKay.
    M. Brent Hicks, Justin M. O’Brien, L. Ashley Bynum, Baton Rouge, Louisiana, for Defendant-Appellee, State of Louisiana, Department of Health and Hospitals and Kathy Kliebert, in her capacity as Interim Secretary, Department of Health and Hospitals.

      Richard F. Zimmerman, Jr., Randal J. Robert, Baton Rouge, Louisiana, for Defendant-Appellee, State of Louisiana, Division of Administration and Kristy Nichols, In her capacity as Commissioner of Administration.
    Jimmy R. Faircloth, Jr., Barbara Bell Melton, Jonathan Ringo, Alexandria, Louisiana, for Defendant-Appellee, Office of the Governor.
    David Caldwell, Butch Wilson, Colin Clark, Baton Rouge, Louisiana, for Inter-venor-Appellant, State of Louisiana, Office of the Attorney General.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

| Jntervenoi- appeals from a trial court judgment granting plaintiffs writ of mandamus allowing the release of certain public records which intervenor claims are subject to privilege. For the following reasons, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

By letter dated March 21, 2013, Sandra G. Gillen, Director of State Purchasing with the Division of Administration (DOA), terminated a $197.5 million Medicaid billing contract between the Louisiana Department of Health and Hospitals (DHH) and Client Network Services, Inc. (CNSI) for “cause” pursuant to La. R.S. 39:1678 after consultation with the Attorney General’s office. To determine the basis for the termination, Michael W. McKay, CSNI’s attorney, sent written public records requests on April 5, 2013 to DOA and DHH. The records requests also concerned the contract and the procurement process.

The agencies initially responded that the requests were overly broad and requested McKay narrow their scope. On April 26, 2013, DHH sent a letter stating it and DOA would jointly respond to a portion of the requests on a rolling basis and to the remainder after the requests were limited. McKay replied with a letter suggesting search terms to yield responsive public records. On May 3, 2013, DHH and DOA produced a minimal selection of documents but said they could not produce more because the volume of responsive information was too large. They again asked McKay to refine the search terms.

Meanwhile, on April 26, 2013, McKay received a five-page letter from Gillen to supplement the initial contract termination letter. According to the letter, CNSI personnel made numerous phone calls and sent text messages to former |4DHH Secretary Bruce Greenstein, allegedly tainting the bidding and award process. Among other reasons for termination, the letter also asserted that CNSI unfairly underbid the contract, had misrepresented its financial information, and failed to perform its contractual obligations. Gillen stated that the Attorney General was served with a federal grand jury subpoena for documents on January 7, 2013 and was investigating the matter.

On May 6, 2013, McKay in a letter asked for responsive public records divided into three tiers. Under Tier One, McKay sought records referenced in Gillen’s April 26, 2013 letter outlining DOA’s reasons for terminating the contract. In the first bullet point or section under Tier One, McKay-requested records evidencing the telephone calls and text messages referred to in the letter. The second bullet point or section concerned any documents DOA and DHH contended supported the allegations in the letter. Tier Two involved documents responsive to new search terms suggested by McKay using specific time periods to limit the search (from November 1, 2010 to the present for one set of records and from January 1, 2011 to the present for another set). Tier Three concerned communications based on email addresses as search terms from January 1, 2011 to the present.

On May 10, 2013, McKay received letters from outside counsel for DHH and DOA stating that neither entity would comply with the records requests because the Attorney General asserted the “law enforcement privilege” over the records.

On May 14, 2013, McKay filed a petition for a writ of mandamus pursuant La. R.S. 44:35 under the Public Records Law against DOA, DHH, Kristy H. |r,Nichols as DOA’s statutory records custodian and Commissioner, and Kathy H. Kliebert as DHH’s statutory records custodian and interim Secretary.

The Office of the Attorney General filed a petition for intervention on May 20, 2013, which was granted, alleging that the Attorney General was conducting a criminal investigation involving the award of the contract to CNSI. The Attorney General claimed the records were statutorily exempt from disclosure because they pertained to reasonably anticipated criminal litigation pursuant to La. R.S. 44:3A(1).

In their answers, DHH and DOA alleged they had produced responsive documents totaling over 10,000 pages and stated they were prepared to produce more documents but did not because of the Attorney General’s directive.

The court held a hearing on May 23, 2013, where the sole testimony was provided by Scott Bailey, the chief investigator concerning the contract between CNSI and DHH who was employed by the Louisiana Department of Justice in the Attorney General’s Office. He began working on the case involving CNSI in December 2011, but he and DOA and DHH representatives first met on April 1, 2013, to discuss the records the Attorney General needed for his investigation and the people with whom he wanted to speak. Bailey actually made his first request on April 2, 2013, and continued with rolling requests for documents through May. When asked if there was any collaboration between him and DHH and DOA as to what to produce and what to retain, he answered “absolutely not.” The records were not produced in response to a subpoena, but were voluntarily provided as agreed. According to Bailey, the information he requested from DHH and DOA |fiwas mostly similar to that requested by McKay. Bailey said the process of getting the records had just begun and they began getting them in the beginning of May. He was still awaiting information he originally requested from both entities, stating that there were ten million pages of documents and he still had not received a majority of his requests. While he had some of the documents he requested, he assumed DOA and DHH still had copies of the records also and did not divest themselves of custody.

The court signed a judgment in the matter on May 31, 2013, making the writ of mandamus peremptory in part. DHH and DOA were ordered to produce the documents described in the first bullet point under Tier One in McKay’s May 6, 2013 letter within ten days after entry of the judgment. That bullet point asked for records evidencing the telephone calls and text messages referred to in the April 26, 2013 letter. They were ordered to produce the documents under Tier Two and Tier Three in the letter within a reasonable period of time to be set through discussions between McKay and DHH and DOA. The writ was not made peremptory as to the documents described in the second bullet point under Tier One (“[a]ny documents that you contend support any of the allegations contained in Ms. Gillen’s April 26, 2013 letter”) and the judgment stated that DOA and DHH had no obligation to produce those documents. DOA and DHH were also not required to produce any records of communications between them and the Attorney General that “may reflect the mental impressions, conclusions, opinions, or investigative processes of Office of the Attorney General.” The court did not assess attorney’s fees, costs, damages, or civil penalties pursuant to agreement of the parties.

In granting the writ of mandamus in part, the judge stated that the records were public documents held and maintained by individual agencies and that disseminating the records did not lead to disclosure of the Attorney General’s | ^investigation. He denied the writ as to those documents that reflected communications between the agencies and the Attorney General’s office showing the Attorney General’s thought process or investigative process. He also denied the writ as to those records which supported the termination of the contract because responding to that request would require some discretion in determining which documents were needed and would not be a ministerial task.

The Attorney General suspensively appealed from the court’s judgment.

DISCUSSION

The records at issue are public records that any person may obtain a copy of unless the Public Records Act or another law specifically provides otherwise. La. R.S. 44:31; In re Matter Under Investigation, 2008-1066, p. 24 (La.7/1/09), 15 So.3d 972, 989. Louisiana Constitution Article XII, Section 3, states, “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” The public’s right of access to a public record must be construed liberally in favor of free and unrestricted access, and access can be denied only when a law specifically and unequivocally provides otherwise. Title Research Corp., v. Rausch, 450 So.2d 933, 936 (La.1984); Does v. Foti, 2011-0014, p. 10 (La.App. 1st Cir.12/08/11), 81 So.3d 101, 107, unit denied, 2012-0057 (La.3/2/12), 84 So.3d 537.

The Louisiana Public Records Act contains a specific exemption for records pertaining to reasonably anticipated criminal litigation, La. R.S. 44:3A(1), which states:

A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, intelligence agencies, or publicly owned water districts of the state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal | litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled, except as otherwise provided in Subsection F of this Section [which is not applicable in the instant ease]; ...

(emphasis added).

The burden of proving that the file is not subject to inspection, copying, or reproduction by a member of the public rests with the custodian. La. R.S. 44:B(3). La. R.S. 44:1A(3) defines “custodian” as “the public official or head of any public body having custody or control of a public record, or a representative specially authorized by him to respond to request to inspect any such public records.”

Whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to access. Landis v. Moreau, 2000-1157, p. 4 (La.2/21/01), 779 So.2d 691, 694; Does, 2011-0014 at p. 11, 81 So.3d at 107. The burden is on the party seeking to prevent disclosure to prove that withholding of a public record is justified. Hilliard v. Litchfield, 2001-1987, p. 4 (La.App. 1st Cir.6/21/02), 822 So.2d 743, 746. The determination of whether a particular record falls within the exemption provided by La. R.S. 44:3A(1) must be made on a case-by-case basis. Investigation, 2008-1066 at p., 15 So.3d at 991; Does, 2011-0014 at p. 11, 81 So.3d at 107. This determination must be made following a contradictory hearing where there is an opportunity for cross-examination and the presentation of evidence to contradict the claim of privilege. Investigation, 15 So.3d at 991-992; Does, 2011-0014 at p. 12, 81 So.3d at 107. Mixed questions of law and fact generally are subject to a manifest error standard of review but where the relevant facts are not in dispute, the issue can be decided as a matter of law and the review is de novo. Does, 2011-0014 at 13, 81 So.3d at 108.

|flLa. R.S. 44:3A(1) applies to documents held by the Attorney General, not to documents held by DHH and DOA. The Attorney General contends that inter-agency agreements it makes with other state agencies to collect information pertaining to reasonably anticipated criminal litigation entitles that information to the protection of 44:3A(1). According to the Attorney General, the documents are considered “held” under La. R.S. 44:3A(1) pursuant to its request for them.

McKay contends that the Attorney General raises the existence of an interagency agreement between it and DHH and DOA for the first time on appeal. He asserts that the records are not held by the Attorney General simply because the Attorney General requested custody.

The Attorney General relies on Kyle v. Perilloux, 2002-1816 (La.App. 1st Cir.11/7/03), 868 So.2d 27, to support its contention that its alleged interagency agreement protects the records from disclosure. In Kyle, the legislative auditor sought an injunction prohibiting a district attorney from responding to a public records request for copies of the auditor’s work papers that the district attorney had obtained by investigative subpoena. Kyle, 2002-1816 at p. 3, 868 So.2d at 28. The auditor relied on La. R.S. 44:4(6), which exempts from the public records law “any records ... in the custody or control of the legislative auditor ... until the audit is complete, unless otherwise provided.” (emphasis added). Kyle, 2002-1816 at p. 7, 868 So.2d at 30-31. Because the copies of the work papers at issue were in the district attorney’s physical possession and formed part of the records of his office, this Court upheld the trial court’s denial of the injunction, finding that the auditor failed to overcome the presumption of the district attorney’s custody and control of the copies of the work papers in his file. Kyle, 2002-1816 at p. 7-10, 868 So.2d at 31-32, While we noted that physical possession was not synonymous |lflwith custody or control, this Court also recognized that the right of access did not vest the auditor with the custody or control of records. Kyle, 2022-1816 at p. 8 n. 3, 868 So.2d at 31 n. 3. Moreover, pursuant to La. R.S. 44:34, the district attorney did not deny having custody or control of the requested records, and he did not make a written certification of their absence from his custody with the reason for their absence and naming the present custodian. Kyle, 2002-1816 at p. 8, 868 So.2d at 31.

This Court concluded,

There is nothing in La. R.S 44:4(6) which suggests that investigative records in the possession of a law enforcement agency or official, otherwise meeting the definition of “public records,” lose such quality simply because they are identical to or even photocopies duplicates of work papers and other records of the legislative auditor.
And there is no evidence of any inter-agency confidentiality agreement between the legislative auditor and district attorney as to the ownership, custody, or control of the copies of the work papers. The legislative auditor testified that such an agreement exists in standing form between his office and the attorney general. FN6
rN6....But whether such an agreement may legally prevent shared records from being categorized as public records subject to disclosure is an issue which, thankfully, we need not address today.
Kyle, 2002-1816 at p. 9, 868 So.2d at 32. (footnote 5 omitted).

Unlike the case at bar, Kyle involved records which were originally exempt from disclosure, and the discussion of an inter-agency agreement pertained to maintaining the confidentiality of those records. This case involves public records In not exempt from disclosure in the hands of their original and present custodians, which the Attorney General seeks to shield from disclosure as privileged. The Attorney General’s request for those records does not serve to exempt them from the public records doctrine. In Kyle, this Court noted the apparent incongruity in allowing public access to copies of the legislative auditor’s work papers in the hands of the district attorney, but denying access to the original still in the legislative auditor’s possession. Kyle, 2002-1816 at p. 14-15, 868 So.2d at 35. We then concluded, “any incongruity must ultimately be reconciled in favor of the public’s right of access.” Kyle, 2002-1816 at p. 15, 868 So.2d at 35.

Moreover, even if an interagency confidentiality agreement could prevent disclosure of the records, the testimony at the hearing on the writ of mandamus did not support a finding of an interagency agreement between the Attorney General and DHH or DOA.

Other than Kyle, the Attorney General relies on federal and out-of-state cases to support its contentions. However, those cases are not binding upon this Court and they involve different laws and different factual situations. Likewise, the Attorney General relies on its own opinions for support. However, we note that Attorney General opinions are merely advisory and not binding authority. Conachen v. East Baton Rouge Parish School Bd., 2009-0100, p. 6 n. 4 (La.App. 1st Cir.12/23/09), 30 So.3d 820, 824 n. 4.

The Attorney General claims that the district court’s ruling allowing McKay access to the records “guts” the law enforcement exemption of practical effect any time a criminal investigation involves records held by a public body. However, as the district court explained, the disclosure does not reveal the Attorney General’s investigative process because hundreds of thousands of documents are responsive to McKay’s request such that those of particular interest to the Attorney General are just part of a massive group of records. The district court denied the disclosure |12of those records which might tend to show the mental impressions, conclusions, opinions, or investigative processes of the Attorney General’s office.

The district court correctly applied the law in upholding McKay’s right to access records that are unquestionably public. The Attorney General’s interpretation of the public records exemption is not based on the unequivocal language of the statute and is in derogation of the requirement of liberal construction in favor of the public’s right of access to public records.

CONCLUSION

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal in the amount of $2,916.00 are assessed to the Attorney General.

AFFIRMED.

      . La. R.S. 39:1678 provides that, if it is determined after the award of a contract that the solicitation or award was in violation of the law, the contract can be terminated.

      . This letter is Exhibit 16 attached to the petition.

      . The mandamus suit was consolidated with CNSI’s breach of contract suit against the State and other agencies, docket number 2013-621271.

      . DOA and DHH filed an exception of unauthorized use of summary proceeding and/or an exception of no cause of action, alleging that production of the records did not involve a ministerial duty and, therefore, was not appropriate for a writ of mandamus. They claimed that the records request itself required them to exercise discretion in determining which documents satisfied it. They also asserted that the competing claims of McKay and the Attorney General involved their discretion in deciding how to respond.

      . La. R.S. 44:3A(1) was not applicable because the district attorney had presented the results of his investigation to the grand jury and it pretermitted the matter.

      . This Court referred to State ex rel. Wogan v. Clements, 192 So. 126, 131 (La.App.Orl.Cir.1939), affd, 194 La. 812, 195 So. 1 (La.1940), wherein the court held "that the right of access of the Supervisor of Public Accounts (the predecessor to the legislative auditor) to public records of agencies being audited did not vest him with their 'custody or control,’ so as to prevent their disclosure under the statute equivalent to La. R.S. 44:4(6) at that time.”

      . La. R.S. 44:34 states:
      If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.


author: McDonald, j.

text:
    Clint ROGILLIO v. SNL DISTRIBUTION SERVICES CORP.
    No. 2013 CA 1449.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2014.
    Rehearing Denied May 5, 2014.

      Michael B. Miller, Jacqueline B. Ma-necke, Crowley, Louisiana for PlaintiffiAp-pellant Clint Rogillio.
    M. Blake Monrose, Lafayette, Louisiana, for Defendant/Appellee SNL Distribution Services Corporation.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

LClint Rogillio sustained injuries in the course and scope of his employment with SNL Distribution Services Corporation (SNL) on September 17, 2010. Mr. Rogil-lio filed a disputed claim for compensation and thereafter, the parties entered into a settlement of his claims. On February 28, 2012, at the start of the hearing for the trial on the merits, a settlement was entered into the record by the parties.

On January 15, 2013, Mr. Rogillio filed a disputed claim for compensation, asserting that SNL failed to pay mileage requests. The requests for the mileage were sent to SNL on December 27, 2011, February 7, 2012, and March 13, 2012. All of the mileage in the three requests was incurred prior to the settlement date of February 28, 2012. SNL filed an exception raising the objection of res judicata and a motion for sanctions pursuant to La. C.C.P. art. 863, asserting that all of the mileage claimed had been included in the settlement.

Thereafter, Mr. Rogillio filed an amended disputed claim for compensation seeking penalties and attorney fees for the violations set forth in his original claim. SNL filed another exception raising the objection of res judicata and another motion for sanctions pursuant to La. C.C.P. art. 863 in response to Mr. Rogillio’s amended disputed claim for compensation.

The workers’ compensation judge granted SNL’s exception, dismissed Mr. Rogil-lio’s disputed claim for compensation and amended disputed claim for compensation, and denied SNL’s motion for sanctions. Mr. Rogillio appealed that judgment.

Mr. Rogillio asserts that the workers’ compensation judge erred in granting SNL’s res judicata exception and in dismissing his disputed claim for compensation and amended disputed claim for compensation with prejudice.

At the hearing on February 28, 2012, the following discussion took place:

LMR. MONROSE:
Your Honor, we have agreed to settle this Workers’ Compensation matter for any back due benefits — indemnity, penalties, attorney’s fees, and including future indemnity for the total amount of $69,718. Let me just make sure I’m real clear — any back due benefits owed at all to this day, and future indemnity, for 69,713. We will leave his future medical care open.
MS. MANECKE:
We’re reserving that.
JUDGE OURSO:
Okay. So the only thing — the only benefit that will be held open will be the future medical expenses—
MS. MANECKE:
That is correct.
JUDGE OURSO:
—from this point forward? So this settles all past issues of whatever nature?
MR. MONROSE:
Of whatever nature, all the way up through and including any future indemnity.
JUDGE OURSO:
We’re referring to benefits, penalties and attorney’s fees of whatever nature. Okay. All right. I just want the record to be clear on this.
MS. MANECKE:
For clarification, what about the medical bills that we submitted? Are those going to be taken care of? Because I mean, those were related.
MR. MONROSE:
Which ones? Are you talking about the ones that were listed on your pretrial? I’m trying to remember how much that was. Yeah, I know, Jackie. I’m not trying to be selective. I promise you. Yeah, that will be taken care of. JUDGE OURSO:
[¿Outstanding medical bills.
MR. MONROSE:
Can you give me about 30 seconds?
JUDGE OURSO:
All right.
MR. MONROSE:
Yes, Your Honor. That is correct. I just didn’t want to say it and get myself in trouble until I was sure. Yes, we’re going to take care of that.
JUDGE OURSO:
Okay. All right. Ms. Manecke, you and your client agree to the terms of this settlement; is that correct?
MS. MANECKE:
Yes, Judge.
JUDGE OURSO:
Okay. So the case will be dismissed. Are you requesting a dismissal with prejudice at this point, correct?
MS. MANECKE:
We’re reserving medical.

A hearing on the exception raising the objection of res judicata and the motion for sanctions was held on March 22, 2013. The worker compensation judge ruled at the hearing as follows:

THE COURT:
The Court finds there was a reservation of rights for future medical, but everything concerning the past, his rights, was settled at that time. Therefore, the exception of res judicata is granted. Case dismissed with prejudice.
And as concerns the motion for sanctions, that is denied. The motion for sanctions is denied.

| .STANDARD OF REVIEW

The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Pierrotti v. Johnson, 2011-1317 (La.App. 1 Cir. 3/19/12), 91 So.3d 1056,1063.

ANALYSIS

The requests for mileage reimbursement were all for mileage that was incurred prior to the settlement. The December 27, 2011 mileage request was for mileage incurred on December 5, 2011, and December 7, 2011. The February 7, 2012 mileage request was for mileage incurred on January 14, 2012, February 1, 2012, and February 2, 2012. These requests were made prior to the settlement. The March 13, 2012 mileage request was made after the settlement but was for mileage incurred on January 27, 2012, and January 31, 2012, all prior to the settlement.

These requests for reimbursement for mileage incurred prior to the settlement do not fall within the “future medical expenses” exception to the settlement of the case. After a de novo review, we find that the office of workers’ compensation correctly granted SNL’s exception raising the objection of res judicata and correctly dismissed the disputed claims for compensation.

Thus, the office of workers’ compensation’s April 8, 2013 judgment, granting SNL’s exception and dismissing Mr. Rogil-lio’s disputed claim for compensation and amended disputed claim for compensation with prejudice, is affirmed. Mr. Rogillio is cast with costs.

AFFIRMED.


author: HIGGINBOTHAM, J. KUHN, J.,

text:
    MAPP CONSTRUCTION, LLC, and Bituminous Casualty Corp. v. AMERISURE MUTUAL INSURANCE COMPANY, et al.
    No. 2013 CW 1074.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2014.
    Rehearing Denied April 28, 2014.

      Phillip W. Preis, Charles M. Gordon, Jr., Crystal D. Burkhalter, Caroline P. Graham, Charles M. Thompson, Baton Rouge, LA, for Plaintiffs-Appellees, Southgate Residential Towers, LLC and Southgate Penthouses, LLC.
    Stephanie B. Laborde, Heather L. Landry, Baton Rouge, LA, Raymond C. Jackson, III, Lafayette, LA, Rodrigo “Diego” Garcia, Jr., Pro Hac Vice, Houston, TX, for Defendant-Appellant, Crum & Forster Specialty Ins. Co.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   HIGGINBOTHAM, J.

12This appeal involves an approximate $6.7 million dollar award for defense costs in a suit for declaratory judgment. For the following reasons, we convert the appeal to an application for a supervisory writ of review, grant the writ, vacate the September 25, 2012 judgment, and remand.

BACKGROUND

The long history of this litigation includes multiple lawsuits that arose out of the construction and funding of a multi-unit apartment complex on Nicholson Drive in Baton Rouge, Louisiana. The construction project, hereafter referred to as “the Southgate project,” is owned by Southgate Residential Towers, LLC and Southgate Penthouses, LLC (collectively referred to as “Southgate”). Pertinent to this appeal is a declaratory judgment action brought by the general contractor on the Southgate project, MAPP Construction, LLC (“MAPP”), and its liability insurer, Bituminous Casualty Corporation (“Bituminous”).

On November 5, 2009, MAPP and Bituminous filed a petition for declaratory judgment against twelve of the subcontractors’ liability insurers (“subcontractor insurers”), on the Southgate project, one of which is Crum & Forster Specialty Insurance Company (“C & F”). MAPP and Bituminous sought to recover attorney’s fees and legal expenses incurred by Bituminous in defending the litigation and arbitration originally brought by Southgate against Bituminous’s named insured, MAPP. Bituminous and MAPP requested a judicial declaration that all of the subcontractor insurers, including C & F, have:

[A] contractual duty to pay the cost of defending MAPP as an additional insured under [the] insurance policies issued to the [subcontractors, and requiring [the subcontractor insurers] to pay and reimburse Bituminous for the cost [of] defending MAPP in the litigation involving the construction of the [South-gate project], including both the arbitration proceedings and the civil suits and, further, for any other general or equitable relief that the court may find proper and just.

|RShortly after MAPP and Bituminous filed their petition for declaratory judgment, Southgate filed a motion to intervene with an accompanying petition for declaratory judgment as intervenor on November 19, 2009, alleging that Southgate had a justiciable interest in the declaratory judgment action filed by MAPP and Bituminous, because Southgate had previously asserted its right to payment of legal fees against all of the subcontractor insurers, MAPP, and Bituminous in another lawsuit known as the “insurance litigation.” In its petition for declaratory judgment as intervenor, Southgate alleged that MAPP, Bituminous, and Southgate were all additional insureds under the same provisions in the subcontractor insurers’ policies and subcontractor agreements, and they all sought reimbursement for legal fees incurred in the insurance litigation and arbitration proceedings. As intervenor, South-gate requested a judicial declaration that:

[The subcontractor insurers] have a contractual duty to pay and reimburse the costs of attorney’s fees of Southgate as an additional insured under the [subcontractor insurers’] insurance policies and requiring [them] to pay and reimburse the costs of attorney’s fees of Southgate in the litigation related to [the] South-gate project including both the arbitration proceedings and the civil suits and granting all damages, attorney[’s] fees, costs, penalties. and all other relief allowed by law.

In April 2010, MAPP and Bituminous settled with Southgate pursuant to a confidential compromise and settlement agreement. As part of the settlement, |4MAPP and Bituminous assigned their rights and claims to Southgate, including their rights and claims against all subcontractors and subcontractor insurers for attorney’s fees and costs that Bituminous advanced or paid on behalf of MAPP in defense of Southgate’s claims. The trial court signed an ex parte order of substitution on June 17, 2010, recognizing and substituting Southgate as plaintiff in the declaratory judgment action originally filed by MAPP and Bituminous. C & F answered South-gate’s petition for declaratory judgment (as assignee), denying that it owes a duty to defend Southgate, contesting the amount of legal fees incurred as unreasonable and unnecessary, and requesting a trial by jury on all issues.

After its substitution as plaintiff in the declaratory judgment action, Southgate, as assignee of MAPP and Bituminous, moved for partial summary judgment against C & F, seeking a declaration that: (1) MAPP is an additional insured under the C & F policy issued to the primary electrical subcontractor, Power Design, Inc. (“PDF); (2) C & F has a duty to defend MAPP in the insurance litigation; (3) C & F’s duty to defend MAPP is primary to Bituminous’s duty to defend MAPP, and therefore, C & F is obligated to reimburse Southgate for 100% of the legal fees and expenses that Bituminous paid on behalf of MAPP; and (4) C & F has no right to contest the reasonableness of the attorney’s fees incurred on behalf of MAPP since C & F breached its duty to defend. C & F opposed Southgate’s motion for partial summary judgment, primarily contesting the validity of MAPP’s assignment of rights to Southgate without C & F’s consent and pointing out that Southgate has already recovered the same attorney’s fees and expenses from C & F’s insured, and paid by C & F, in the arbitration proceeding.

On October 25, 2011, the trial court granted the partial summary judgment in favor of Southgate, as assignee of MAPP and Bituminous, without indicating anything regarding the specific issues raised in Southgate’s petition for declaratory judgment. In that partial summary judgment (hereafter referred to as the “first judgment”), the trial court expressly reserved the right to review the 1 .^reasonableness of the attorney’s fees that were sought. Southgate contends that by granting the first judgment, the trial court actually held that C & F owed a duty to defend and found C & F solidarity liable for the entire amount of the attorney’s fees, plus interest. C & F subsequently sought a supervisory writ of review, but this court declined to exercise our supervisory jurisdiction, noting that an adequate remedy exists by review on appeal following rendition of a final judgment. The Louisiana Supreme Court also denied C & F’s writ application on May 18, 2012.

One week after all writs were denied as to the first judgment, Southgate, as as-signee of MAPP and Bituminous, filed a motion to have the trial court determine the amount of attorney’s fees owed by C & F. Southgate maintained that C & F was solidarity liable for the entire amount of costs associated with the defense of MAPP in all of the Southgate litigation, plus interest, including the arbitration proceeding, the insurance litigation, and various other consolidated lawsuits filed by the subcontractors against Southgate and MAPP for nonpayment of sums due on the Southgate project, as well as “any other lawsuit, cross-claim or third party demand ... arising out of or relating to the South-gate [pjroject.” Southgate requested that the trial court determine the reasonableness of $6,700,616.16 as the amount of attorney’s fees and other legal expenses paid by Bituminous on behalf of MAPP, so that a final money judgment could be entered against C & F. In support of its motion, Southgate submitted numerous affidavits by attorneys that were offered to authenticate billing records and summaries of fees and expenses purportedly incurred while representing Bituminous and MAPP throughout the Southgate litigation, with voluminous attachments outlining defense expenses.

C & F filed a formal response to South-gate’s motion to determine attorney’s fees, objecting to Southgate’s use of affidavits and attachments of purported bills 16as evidence of legal expenses instead of having a trial on the merits of the reasonableness of the attorney’s fees and other expenses. C & F also filed a dilatory exception raising the objection of unauthorized use of summary proceedings. C & F argued that its liability for attorney’s fees, as well as the amount and reasonableness of attorney’s fees, are the principal issues in this declaratory judgment action; and therefore, summary proceedings are inappropriate. But before the trial court ruled on South-gate’s motion or C & F’s exception, South-gate filed an alternative motion for partial summary judgment on the amounts paid by Bituminous for MAPP’s defense costs, relying on its previously filed affidavits and exhibits setting forth the legal fees and expenses totaling $6,700,616.16 paid by Bituminous on behalf of MAPP. C & F opposed Southgate’s second motion for partial summary judgment, submitting that it is inappropriate for the trial court to decide the contested factual issue of the reasonableness of attorney’s fees on summary judgment, that Southgate did not submit any evidence regarding the reasonableness of the defense costs, and that the amount of attorney’s fees should be rendered in accordance with the confirmation of the final arbitration award.

The trial court heard all pending motions and exceptions on July 30, 2012, and took the entire matter under advisement. On September 25, 2012, the trial court signed a judgment (hereafter referred to as the “second judgment”), granted in favor of Southgate and against C & F in the amount' of $6,700,616.16, plus interest. Two days later, on September 27, 2012, the trial court signed an order overruling C & F’s dilatory exception of unauthorized use of summary proceedings. C & F filed a motion for new trial concerning the second judgment, as well ás a motion to designate the second judgment as final for purposes of an appeal. Without a hearing, the trial court denied C & F’s motion to designate the second 17judgment as final, prompting C & F to file an application for supervisory review by this court before the trial court ruled on C & F’s pending motion for new trial.

This court denied C & F’s writ application on February 13, 2013, declining to exercise supervisory jurisdiction since it appeared that once the trial court ruled on the pending motion for new trial, the second judgment would be appealable. This court further noted that we could consider the correctness of any interlocutory rulings, such as the denial of C & F’s dilatory exception of unauthorized use of summary proceedings, during the appeal process. The trial court subsequently denied C & F’s motion for new trial on March 20, 2013, followed shortly thereafter by C & F’s suspensive appeal of the second judgment, which is currently before us.

ARGUMENTS RAISED ON APPEAL

In this appeal, C & F challenges four trial court rulings: (1) the first judgment signed on October 25, 2011, which was an interlocutory ruling granting partial summary judgment against C & F on the duty to defend (C & F argues that the trial court erred in holding C & F 100% responsible for the defense costs of MAPP); (2) the second judgment signed on September 25, 2012, which is purportedly a final judgment awarding approximately $6.7 million in defense costs, plus interest, to South-gate (C & F argues that the trial court erred by granting a monetary award in a summary proceeding, by denying C & F the opportunity to have a trial by jury on all issues, and by evaluating the reasonableness of attorney’s fees and defense expenses without adequate and authentic evidence); (3) the interlocutory ruling signed on September 27, 2012, denying C & F’s dilatory exception of improper use of summary proceedings (C & F argues that the trial court erred when it decided a declaratory judgment action by way of summary proceeding and by allowing the _J^introduction of affidavits and summary exhibits into evidence); and (4) the March 20, 2013, trial court order denying C & F’s motion for new trial regarding the second judgment (C & F argued the trial court erred as a matter of law by allowing Southgate to recover 100% of the defense costs and by not reducing the award by the amount already collected by Southgate from C & F and other subcontractors’ insurers in the arbitration proceedings).

DISCUSSION

Appellate Jurisdiction

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Barnett v. Watkins, 2006-2442 (La.App. 1st Cir.9/19/07), 970 So.2d 1028, 1032, writ denied, 2007-2066 (La.12/14/07), 970 So.2d 537. Appellate jurisdiction extends to “final judgments.” La.Code Civ. P. art. 2083. Therefore, this court must determine if the second judgment in this case — purportedly, the only final judgment under review — is properly appealable. We are also mindful that a writ panel of this court issued an action on February 13, 2013, indicating that the second judgment would be appealable if that judgment is considered along with the first judgment, because it “appears” that the two judgments taken together resolve all of the claims between Southgate and C & F in the principal demand for declaratory judgment. See Southgate Residential Towers, LLC and Southgate Penthouses, LLC v. Amerisure Mutual Ins. Co., et al, 2012-1783 (La.App. 1st Cir.2/13/13)(unpublished writ action).

Initially, we are compelled to note that a regular appeal panel has the authority, and indeed the duty, to review, overrule, modify, and/or amend a writ panel’s decision on an issue when, after reconsidering the issue to the extent necessary to determine whether the writ panel’s decision was correct, the appeal panel finds that the writ panel’s decision was in error. Joseph v. Ratcliff, 2010-1342 (La.App. 1st Cir.3/25/11), 63 So.3d 220, 223. Mere doubt as to the ^correctness of the prior ruling by a writ panel is not enough to change the prior ruling; only where it is manifestly erroneous or application of the law-of-the-case doctrine would result in an obvious injustice should we overrule or modify the prior ruling. Id.

Louisiana Code of Civil Procedure article 1915(B) authorizes the appeal of a partial summary judgment as to “one or more but less than all of the claims, demands, issues, or theories” presented where the judgment is designated as a final judgment by the trial court after a determination that there is no just reason for delay. A partial summary judgment rendered pursuant to La.Code Civ. P. art. 966(E) may be immediately appealed during an ongoing litigation only if it has been properly designated as a final judgment by the trial court pursuant to La.Code Civ. P. art. 1915(B). A trial court’s mere signing of an order for appeal from a partial summary judgment does not constitute a proper designation and will not make that judgment immediately appealable. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La.App. 1st Cir.11/9/11), 79 So.3d 1054, 1060 n. 7, writ denied, 2012-0360 (La.4/9/12), 85 So.3d 698. In the instant case, the trial court specifically denied C & F’s motion to have the second judgment designated as final.

In reviewing the second judgment appealed by C & F, we observe that it concerns Southgate’s motion to determine the amount of attorney’s fees owed by C & F as it relates to the first judgment rendered against C & F, as well as South-gate’s alternative motion for partial summary judgment as assignee on the claims for defense costs paid by Bituminous on behalf of MAPP. However, the language of the second judgment does not specify which motion the trial court actually granted or the basis for the declaratory relief. Rather, the second judgment simply states that judgment is “entered ... in favor of [Southgate] as assignees of the claims of [Bituminous and MAPP] against [C & F] in the principal amount of [$6,700,616.16] plus interest.” (Emphasis added.) No parties were dismissed and |inno claims were terminated in the second judgment; it merely adjudicates the amount owed by C & F to Southgate as assignee of MAPP and Bituminous’s claim for reimbursement of defense costs incurred in defending MAPP in the insurance litigation and arbitration proceedings originally initiated by Southgate against MAPP.

The record reflects that the second judgment decided only some of the issues in the principal demand between South-gate, as assignee of MAPP and Bituminous, and C & F. Southgate’s incidental claims as intervenor against all of the remaining subcontractor insurers, including C & F, for reimbursement of its own (as opposed to Bituminous and MAPP’s) attorney’s fees and expenses in the Southgate litigation and arbitration proceedings, is still outstanding. Additionally, the parties acknowledged at oral argument before this court that many issues remain. Since the second judgment obviously adjudicates fewer than all of the claims raised in Southgate’s declaratory judgment actions against C & F, both as assignee of MAPP and Bituminous in the principal demand and as intervenor in the incidental demand, and the judgment was not certified as final by the trial court, we find that the second judgment is not an appealable final judgment.

Nevertheless, an appellate court has broad discretion to convert an appeal of a non-final judgment into a supervisory writ application in order to review the trial court’s judgment when it appears the judgment was arguably incorrect and in the interest of judicial economy, it should be corrected. See Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34, 39. Because C & F initially filed a timely supervisory writ application and we find clear error in the trial court’s second judgment that will create a grave injustice if not corrected, we will convert this Inappeal to an application for a supervisory writ, grant the writ, and review the second judgment rendered on September 25, 2012. All other trial court rulings currently at issue in this matter are interlocutory and we decline to address those rulings on supervisory review, since any justiciable issues that remain in the adverse interlocutory rulings may properly be considered by this court in any subsequent unrestricted appeal of a final or otherwise appealable judgment properly rendered in this matter. See Spiers v. Roye, 2004-2189 (La.App. 1st Cir.8/8/07), 965 So.2d 489, 496; Judson v. Davis, 2004-1699 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112-13, writ denied, 2005-1998 (La.2/10/06), 924 So.2d 167.

Review of the Hybrid September 25, 2012 Judgment

We begin our review of the second judgment by noting that Southgate sought declaratory relief in both the principal demand (when Southgate substituted as plaintiff in the petition for declaratory judgment that was originally brought by Bituminous and MAPP) and in the incidental demand (when Southgate intervened in Bituminous and MAPP’s declaratory judgment action). The function of a declaratory judgment is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. Boyer v. Boyer, 96-0346 (La.App. 1st Cir.1/23/97), 691 So.2d 1234, 1242 n. 12, writ denied, 97-1415 (La.9/26/97), 701 So.2d 984; Gulotta v. Cutshaw, 258 So.2d 555, 558 (La.App. 1st Cir.1972), reversed on other grounds, 283 So.2d 482 (La.1973). A judgment that makes a specific award of relief goes beyond the scope of a declaratory judgment. La.Code Civ. P. art. 1871, Official Revision Comments. See Boyer, 691 So.2d at 1242 n. 12.

112The conventional type of judgment embodies two elements: (1) an ascertainment or declaration of the rights of the parties; and (2) a specific award of relief. The declaratory judgment embodies only the first element. La.Code Civ. P. art. 1871, Official Revision Comments. See also Trans Louisiana Gas Co. v. Louisiana Ins. Guar. Ass’n, 93-2287 (La.App. 1st Cir.3/3/95), 652 So.2d 686, 689, writ not considered, 95-0853 (La.4/21/95), 653 So.2d 555. In Southgate’s petition for declaratory judgment as an intervening plaintiff— the incidental demand — Southgate prayed for a declaration that the subcontractor insurers “have a contractual duty to pay and reimburse the costs of attorney’s fees of Southgate as an additional insured[,]” and further asked that the trial court grant “all damages, attorney[’s] fees, costs, penalties and all other relief allowed by law.” Clearly, the incidental demand in Southgate’s petition for declaratory judgment as an intervening plaintiff includes a prayer for further relief in the form of damages, attorney’s fees, and costs, but not interest. See Avants v. Kennedy, 2002-0830 (La.App. 1st Cir.12/20/02), 837 So.2d 647, 655, writ denied, 2003-0203 (La.4/4/03), 840 So.2d 1215 (if the declaratory judgment pleadings set forth the supplementary relief sought, the issue of entitlement to such relief is properly before the court).

In contrast, the prayer for relief in Southgate’s claim as assignee (and as substituted plaintiff) in MAPP and Bituminous’s original petition for declaratory judgment — the principal demand — does not involve a request for further or supplemental relief in the form of damages, attorney’s fees, costs, or interest. In that prayer, Southgate, as assignee, requests a declaration that the subcontractor insurers “have a contractual duty to pay the cost of defending MAPP as an additional insured under [the subcontractor insurers’] insurance policies issued to the [subcontractors], and requiring [the subcontractor insurers] to pay and reimburse [Southgate as assignee] for [Bituminous’s] cost [of] defending MAPP in the litigation involving the construction of [Southgate], including both the | ^arbitration proceedings and the civil suits[,]” and further asked “for any other general or equitable relief that the court may find proper and just.” Accordingly, an award for defense costs was not requested in Southgate’s (as assignee) principal demand, and was therefore, improperly considered by the trial court. See Avants, 837 So.2d at 655. See also, Thompson v. Copolymer Intern. Inc., 446 So.2d 1339, 1341 (La.App. 1st Cir.), writs denied, 449 So.2d 1041, 1344, and 1347 (La.1984).

The second judgment explicitly referenced Southgate as assignee in the principal demand, not as intervening plaintiff in the incidental demand. Thus, it is clear that the second judgment’s award of approximately $6.7 million, plus interest, to Southgate as assignee in the principal demand went well beyond the scope of the prayer for “any other general or equitable relief’ sought in the original petition for declaratory judgment. See State Through Louisiana Riverboat Gaming Com’n v. Louisiana State Police Riverboat Gaming Enforcement Div., 95-2355 (La.App. 1st Cir.8/21/96), 694 So.2d 316, 322. We note that the principal demand has never been amended to request damages, attorney’s fees, or interest. Since there was never a demand for a monetary award or interest in the original petition for declaratory judgment, we conclude the trial court legally erred and abused its discretion in ordering a monetary award in the hybrid second judgment. See Darbonne v. Exxon Corp., 94-1935 (La.App. 1st Cir.6/23/95), 657 So.2d 598, 602. For that reason, we find it necessary to vacate the September 25, 2012 judgment.

Additionally, we find another factor supportive of our decision to vacate the hybrid second judgment. The ultimate issue before the trial court was the reasonableness of the attorney’s fees and legal expenses in the Southgate litigation and arbitration proceedings, which is extremely fact intensive. See In re Succession of Bankston, 2002-0548 (La.App. 1st Cir.2/14/08), 844 So.2d 61, 64, writ denied, 2003-0710 (La.5/9/03), 843 So.2d 400. Southgate moved for partial |14summary judgment to establish the amount and reasonableness of the defense costs. However, it is not the trial court’s function on a motion for summary judgment to determine or even inquire into the merits of disputed factual issues that require credibility determinations. Id. In its pleadings, C & F disputed the accuracy and reasonableness of the defense costs, Southgate bore the initial burden of proof on its claims, but it did not introduce sufficient evidence regarding the accuracy and reasonableness of the attorney’s fees and expenses that it claimed were due and owing by C & F. Thus, we find that Southgate failed to demonstrate that no genuine issues of material fact exist as to the accuracy and reasonableness of the defense costs. Because it did not carry its burden on the motion for partial summary judgment, the burden never shifted to C & F. See La.Code Civ. P. art. 966; Pugh v. St. Tammany Parish School Bd., 2007-1856 (La.App. 1st Cir.8/21/08), 994 So.2d 95, 98-100, writ denied, 2008-2316 (La.11/21/08), 996 So.2d 1113 (it is only after a motion for summary judgment has been made and properly supported that the burden shifts to the non-moving party). Further, we note that the trial court allowed testimony from several witnesses, but testimony should neither be received nor considered, even with the consent of counsel, to decide a motion for summary judgment. Hemphill v. Strain, 341 So.2d 1186, 1188 (La.App. 1st Cir.1976), unit denied, 343 So.2d 1072 (La.1977).

Consequently, if we consider the hybrid second judgment as a summary judgment, then we must conclude that the trial court erred as a matter of law in granting summary judgment in favor of Southgate, thereby preventing a full evidentiary hearing on all genuine issues of material fact regarding the reasonableness of the attorney’s fees and defense costs in the insurance litigation and arbitration proceedings. We also recognize there are many other factual issues that remain regarding the defense costs related to the insurance litigation and the entire Southgate project litigation, and possible credits for attorney’s fees previously paid in connection with the arbitration proceedings that are documented |lsin the record. It is fundamental that a declaratory judgment can be rendered only after the holding of a trial on the merits if the determination involves an issue of fact. La.Code Civ. P. art. 1879; Thompson, 446 So.2d at 1341.

Finally, we conclude that if the hybrid second judgment was actually based on Southgate’s motion to determine the amount of attorney’s fees due and owing by C & F rather than the motion for partial summary judgment, then the trial court committed legal error in granting the judgment. None of the matters in which the Code of Civil Procedure authorizes the use of summary proceedings (by rule to show cause) includes a determination of attorney’s fees in a separate controversy. Under La.Code Civ. P. art. 2592(A), summary proceedings may be used for the trial of incidental questions arising in the course of litigation. In this case, the dispute over which insurers owe the duty to pay/reimburse for defense costs arose as a result or consequence of the Southgate insurance litigation and arbitration proceedings, but the attorney’s fee dispute is a separate controversy unrelated to that litigation. See Pittman Const. Co. v. Housing Authority of New Orleans, 248 La. 471, 481, 179 So.2d 900, 903 (1965). Summary proceedings cannot be used to fix and recover attorney’s fees; an ordinary process is required for that purpose. See La.Code Civ. P. arts. 2591 and 2592; Id. Likewise, a claim for declaratory relief is not a summary proceeding; it requires a trial on the merits where each party has an opportunity to present evidence in a form other than verified pleadings and affidavits. See La.Code Civ. P. arts. 1879 and 2592; Apasra Properties, LLC v. City of New Orleans, 2009-0709 (La.App. 4th Cir.2/11/10), 31 So.3d 615, 626-27. Therefore, a merits trial as to whether Southgate is entitled to the relief it seeks as assignee of MAPP and Bituminous, and as intervenor, is required.

CONCLUSION

For the reasons assigned, we conclude that the September 25, 2012 judgment awarding Southgate approximately $6.7 million for defense costs, plus interest, is 11finot an appealable final judgment; therefore, we convert this appeal to an application for supervisory review and we grant the writ. Exercising our supervisory jurisdiction, we find the trial court legally erred in granting the September 25, 2012 judgment in favor of Southgate. Thus, we hereby vacate the September 25, 2012 judgment, and we remand this matter to the trial court for further proceedings consistent with this opinion. All other issues raised by C & F are pretermitted at this time, but may be properly considered by this court in any subsequent appeal of a final or otherwise appealable judgment that is rendered following our remand for further proceedings consistent with the views expressed herein. Southgate is assessed with the costs of this converted application for supervisory review.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY REVIEW; WRIT GRANTED; SEPTEMBER 25, 2012 JUDGMENT VACATED; AND REMANDED.

KUHN, J., concurs and assigns reasons.

KUHN, J.,

concurs in the result and assigns additional reasons.

liThe Louisiana Code of Civil Procedure does not provide for the rendition of money judgment in an action for declaratory judgment. Pursuant to La. C.C.P. art. 1871, function of a declaratory judgment is simply to establish or clarify the rights of the parties without ordering anything to be done or making any specific award of relief. La. C.C.P. art. 1871, Official Revision Comments; Trans Louisiana Gas Company v. Louisiana Insurance Guaranty Association, 93-2287 (La.App. 1st Cir.3/3/95), 652 So.2d 686, 689, writ not considered, 95-0853, 653 So.2d 555 (La.4/21/95); Watts v. Aetna Casualty and Surety Company, 574 So.2d 364, 372 (La.App. 1st Cir.), unit denied, 568 So.2d 1089 (La.1990).

Further, there has been no valid judgment declaring the respective rights and duties of the parties regarding any duty to defend or the reimbursement of defense costs and attorney’s fees. Contrary to Southgate’s contentions, the trial court’s October 25, 2011 judgment merely states that partial summary judgment is granted in favor of Southgate and that the court reserves the right to review the reasonableness of attorney’s fees without actually declaring any specific rights or duties of the parties. The judgment fails to state the specific relief being granted or denied on the petition for declaratory judgment. Due to the lack of decretal language, the judgment is fatally defective and, therefore, does not establish any rights between the parties. See La. C.C.P. art. 1841; Carter v. Williamson Eye Center, 01-2016 (La.App. 1st Cir.11/27/02), 837 So.2d 43, 44; Johnson v. Mount Pilgrim Baptist Church, 05-0337 (La.App. 1st Cir.3/24/06), 934 So.2d 66, 67.

      . In the insurance litigation, Southgate filed suit against MAPP, Bituminous, and each of the subcontractor insurers, requesting that each of the subcontractor insurers and Bituminous pay Southgate’s legal expenses relating to the damages Southgate had incurred in connection with the alleged defective scope of work performed by each of the subcontractors on the Southgate project. The insurance litigation was consolidated with another pending matter, where one of the subcontractors (M & R Drywall, Inc.) filed suit against MAPP and Southgate for nonpayment of work performed. The consolidated actions were pending before the Honorable Wilson Fields in the Nineteenth Judicial District Court. Southgate Residential Towers, LLC and Southgate Penthouses, LLC v. MAPP Construction, Inc., et al c/w M & R Drywall, LLC v. MAPP Construction, LLC, Southgate Towers, LLC, and R.W. Day & Assoc., Inc., Docket 550,534 c/w 529,-531. A few months prior to Southgate's filing of the insurance litigation, MAPP and the . subcontractors initiated an arbitration proceeding against Southgate, seeking payment for work on the Southgate project. On November 9, 2007, this court ordered a stay of all proceedings relative to the insurance litigation pending resolution of the arbitration proceeding. M & R Drywall, Inc. v. MAPP Construction, LLC, Southgate Towers, LLC and R.W. Day and Associates, 2007-2148 (La.App. 1st Cir. ll/9/07)(unpublished writ action). A final arbitration award in favor of Southgate and against various subcontractors was subsequently affirmed by a trial court judge in a different division of the Nineteenth Judicial District Court on February 1, 2012.

      . See MAPP Const., LLC and Bituminous Cas. Corp. v. Amerisure Mutual Ins. Co., et al., 2011-2050 (La.App. 1st Cir.2/29/12) (unpublished writ action).

      . See MAPP Const., LLC and Bituminous Cas. Corp. v. Amerisure Mutual Ins. Co., et al., 2012-0727 (La.5/18/12), 89 So.3d 1194 (unpublished writ action).

      . A hearing was held on June 25, 2012, on Southgate’s motion to determine the amount of attorney fees, but the trial court took Southgate's motion under advisement and deferred ruling on C & F’s pending exception as to the unauthorized use of summary proceedings at that time.

      . See Southgate Residential Towers, LLC and Southgate Penthouses, LLC v. Amerisure Mutual Ins. Co., et dl., 2012-1783 (La.App. 1st Cir.2/13/13) (unpublished writ action). In a related action on the same day, this court also denied C & F’s application for a supervisory writ concerning the trial court’s denial of C & F’s request to have the second judgment designated as final for purposes of an immediate appeal. See Southgate Residential Towers, LLC and Southgate Penthouses, LLC v. Atneri-sure Mutual Ins. Co., et al, 2012-1898 (La.App. 1st Cir.2/13/13) (unpublished writ action).

      . Southgate’s petition for intervention alleges that Southgate has a justiciable interest in the principal declaratory judgment action brought by MAPP and Bituminous, because the subcontractor insurers “have a contractual duty to pay the costs of defending South-gate as an additional insured[.]” Southgate further alleges that "[a]ll of the plaintiffs are seeking costs to reimburse the attorney fees[;]” specifically seeking payment of attorney’s fees arising out of the arbitration proceeding and the insurance litigation. South-gate’s petition for declaratory judgment as intervenor essentially contains the same allegations.

      . Since the second judgment did not specifically indicate whether the trial court was granting relief based on Southgate's motion for partial summary judgment as opposed to Southgate’s motion to determine the amount of attorney’s fees due and owing by C & F, we refer to the second judgment as a "hybrid” judgment. Cf. Thompson v. Copolymer Intern. Inc., 446 So.2d 1339, 1341 (La.App. 1st Cir.), writs denied, 449 So.2d 1041, 1344, and 1347 (La.1984).

      . Incidental demands include petitions for intervention. La.Code Civ. P. art. 1031(B).


text:
    STATE of Louisiana v. Ricky O. MAGEE.
    No. 2013 KA 1417.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2014.

      Walter R. Reed, District Attorney, and Leigh Anne Wall, Assistant District Attorney, Franklinton, Louisiana, and Kathryn Landry, Baton Rouge, Louisiana, for Ap-pellee.
    State of Louisiana, Prentice L. White Baton Rouge, Louisiana, for Defendant/Appellant Ricky 0. Magee.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

|2The defendant, Ricky 0. Magee, was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A)(1). He pled not guilty and, following a jury trial, was found guilty as charged. He was sentenced to fifteen years imprisonment at hard labor. Subsequently the State filed a habitual offender bill of information. The defendant admitted to his predicate conviction and was adjudicated a second-felony habitual offender. The fifteen-year sentence was vacated and the defendant was resentenced to twenty-two and one-half years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating two assignments of error. We reverse the conviction, vacate the second-felony habitual offender sentence, and remand for a new trial.

FACTS

On March 30, 2010, Lt. Brent Goings, with the Washington Parish Sheriffs Office, received information from a confidential informant that the defendant wanted to trade his crack cocaine for the informant’s Loreet. According to the informant, the defendant would be driving a red Dodge pickup truck and would meet the informant in the Lawrence Creek Church parking lot on Lawrence Creek Road. Lt. Goings sent Det. Robert Harris, with the Washington Parish Sheriffs Office, to watch the church parking lot. While there, Det. Harris observed the defendant pull into the parking lot, look around, then two or three seconds later, drive away. Lt. Goings explained at trial that for the confidential informant’s protection, the Lieutenant had no intention of allowing an actual drug transaction to take place between the defendant and the informant.

laWhen the defendant drove away from the church, Det. Harris radioed Lt. Goings. Lt. Goings observed the defendant travel east on Lawrence Creek Road, then pull into a private drive. Lt. Goings pulled in behind the defendant, approached him, and asked if he had his driver’s license. The defendant informed him that his license was suspended. Lt. Goings arrested the defendant for driving without a license and, upon searching the defendant, found in his front pocket a rock of crack cocaine that weighed .03 grams.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the evidence was insufficient to support the conviction. Specifically, the defendant contends that, while he did possess cocaine, the State failed to prove that he was possessing the cocaine with the intent to distribute it.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. If viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt, then the defendant would be entitled to an acquittal. Accordingly, we proceed first to determine whether the entirety of the evidence, both admissible and inadmissible, was sufficient to support the conviction. See State v. Hearold, 603 So.2d 731, 734 (La.1992). See also Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of Preview for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.Code Cr. P. art. 821(B); State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305,1308-09 (La.1988). The Jackson standard of review, incorporated in La.Code Cr. P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La.App. 1st Cir.6/21/02), 822 So.2d 141,144.

In his brief, the defendant concedes that he was in possession of a single rock of crack cocaine. He contends, however, there was no evidence or expert testimony to suggest that the cocaine in his possession was inconsistent with personal use. For example, the defendant did not have in his possession a large amount of cash, baggies, or any drug paraphernalia.

It is well settled that intent to distribute may be inferred from the circumstances. Factors useful in determining whether the State’s circumstantial evidence is sufficient to prove intent to distribute include: (1) whether the defendant ever distributed or attempted to distribute illegal drugs; (2) whether the drug was in a form usually associated with distribution; (3) whether the amount was such to create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant’s actual or constructive possession was inconsistent with personal use; and (5) the presence of other paraphernalia evidencing intent to distribute. In the absence of circumstances from which an intent to distribute may be inferred, mere possession of drugs is not | ¡¡evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. For mere possession to establish intent to distribute, the State must prove the amount of the drug in the possession of the accused and/or the manner in which it was carried is inconsistent with personal use only. State v. Smith, 2003-0917 (La.App. 1st Cir.12/31/03), 868 So.2d 794, 800.

None of the Smith factors were established in this case. However, Lt. Goings’s testimony about what his confidential informant had told him established, if accepted as true, that the defendant was going to trade his crack cocaine rock for a Lorcet tab (or tabs). Since distributing can include the mere delivery of a controlled dangerous substance by physical delivery, see La. R.S. 40:961(14), and assuming the information from the C.I. was admissible, then the defendant possessed cocaine with the intent to distribute it.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1st Cir.1985).

The police observed the defendant driving in a red truck to the location by the church, all as described by the confidential informant. When the defendant was 16arrested shortly thereafter, Lt. Goings found crack cocaine in the defendant’s pocket. Accordingly, the State proved all of the elements of possession with intent to distribute cocaine.

After a thorough review of the record, we find that the evidence supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues the trial court erred in denying his motion for mistrial. Specifically, the defendant contends that Lt. Goings’s testimony of what his confidential informant told him constituted impermissible hearsay, which prejudiced his right to a fair trial.

The following exchange took place on the direct examination of Lt. Goings:

Q. What information did you receive from this confidential informant on March 30th of last year?
A. I received a phone call from this confidential informant that the C.I. received a phone call from a black male known only to them as “Ricky”. He wanted to trade crack cocaine for lorcet.

Defense counsel objected and moved for a mistrial. He argued the State was allowed to enter hearsay which, based upon what a confidential informant had told the lieutenant highly prejudiced the defendant. The prosecutor responded that the testimony at issue was not being offered for the truth of the matter asserted, but to explain to the jury the actions of the officers. The trial court denied the motion for mistrial and stated, “The Court believes that the testimony is an exception to the hearsay rule as noted by Counsel for the State.”

Hearsay is a statement other than one made by the declarant while testifying |7at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La.Code Evid. art. 801(C). Law enforcement officers may not testify as to the contents of an informant’s tip because such testimony violates the accused’s constitutional right to confront and cross-examine his accusers. Hearold, 603 So.2d at 737, Moreover, as to any exception to the hearsay rule based on an officer’s testimony regarding information that immediately prompted an investigation, the issue of relevancy is significantly interrelated with the hearsay issue. Id. The fact that an officer acted on information obtained from an informant may be relevant to explain his conduct, but may not be used as a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. Id.; See State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473, 477-78; State v. Wille, 559 So.2d 1321, 1331 (La.1990), cert, denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992).

Generally, an explanation of the officer’s actions should never be an acceptable basis upon which to admit an out-of-court declaration when the so-called “explanation” involves a direct assertion of criminal activity against the accused. Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an “explanation” exception. The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted. Hearold, 603 So.2d at 737-38.

However, when hearsay testimony from a police officer is improperly introduced into evidence, it will be considered harmless error if it is found to be cumulative and corroborative of other properly admitted evidence. See State v. Martin, 558 So.2d 654, 659 (La.App. 1st Cir.), writ denied, 564 So.2d 318 (La.1990). The determination is based upon whether the guilty verdict rendered was |8surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). See La.Code Cr. P. art. 921; Hawkins, 688 So.2d at 478.

The authority for a mistrial based on the references to hearsay testimony is La.Code Cr. P. art. 775, which states in part that a mistrial shall be ordered on motion of the defendant when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. See State v. Carmouche, 2001-0405 (La.5/14/02), 872 So.2d 1020, 1035. However, mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Berry, 95-1610 (La.App. 1st Cir.11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603. The determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal without abuse of that discretion. State v. Lynch, 94-0543 (La.App. 1st Cir.5/5/95), 655 So.2d 470, 477, writ denied, 95-1441 (La.11/13/95), 662 So.2d 466.

In this case, while Lt. Goings’s testimony may have explained the officer’s steps in the course of his investigation, the statement was clearly hearsay and it directly implicated the defendant as having possessed cocaine with the intent to distribute it. Under Hearold, therefore, the statement should not have been admitted under the explanation exception to the hearsay rule. The issue, thus, is whether the hearsay testimony elicited at trial was harmless error. See Hawkins, 688 So.2d at 478. Had the hearsay in this case been cumulative or corroborative of other properly admitted evidence, the admission of the hearsay would have been harmless. However, Lt. Goings’s testimony about the defendant’s intent to trade cocaine for Lorcet was not cumulative or corroborative. It was, instead, the only |flevidence that suggested that a trade (or distribution) was going to be made. (R. pp. 182-83, 187-88). Cf. State v. Trosclair, 584 So.2d 270, 275-76 (La.App. 1st Cir.), wñt denied, 585 So.2d 575 (La.1991).

Aside from an evidence custodian, whose testimony had nothing to do with the planned drug trade or with anything the confidential informant said, the only other witnesses who testified at trial were Lt. Goings and Det. Harris. Det. Harris, like Lt. Goings, testified about the transaction that was going to take place. In what amounted to hearsay within hearsay, Det. Harris described his surveillance role as follows:

First of all, I was sitting in the bushes area by the breezeway and my Lieutenant radioed to me on the radio that there was a transaction that was about to occur and that they had made the call and a black male that was supposed to be in a red truck, he was supposed to arrive to do a transaction of crack cocaine for lorcets in the parking lot of the church.

Defense counsel did not object to this testimony. He lodged his objection only to the very similar testimony of Lt. Goings, who testified after Det. Harris. The lack of a contemporaneous objection in this instance, however, does not defeat the defendant’s claim of substantial prejudice. Unobjected to hearsay that is the exclusive evidence of guilt is not evidence at all. See State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, 1289 n. 16, cert, denied 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Lubrano, 563 So.2d 847 (La.1990) (per curiam). Moreover, the hearsay in this case was too unreliable to serve as the exclusive evidence prompting the defendant’s conviction simply on the strength of |indefense counsel’s failure to lodge a contemporaneous objection. See Lubrano, 563 So.2d at 849; State v. Allien, 366 So.2d 1308, 1311 (La.1978). With no other independent evidence indicating that the defendant’s sole purpose of driving to the church parking lot was to trade cocaine for Lorcet, a rational fact finder could reasonably reject the possibility that the defendant could have intended to purchase the Lorcet, or even that he drove in and out of the parking lot while possessing a rock of crack cocaine. See Lubrano, 563 So.2d at 850.

Accordingly, the trial court erred in overruling the defendant’s objection to Lt. Goings’s testimony and permitting the inadmissible hearsay to be considered by the jury. The hearsay, which was the only evidence at trial to suggest the defendant planned to trade cocaine for Lorcet, was highly prejudicial to the defendant and deprived him of a fair trial. We therefore reverse the defendant’s conviction and vacate his sentence. This case is remanded to the trial court for a new trial.

CONVICTION REVERSED, SECOND-FELONY HABITUAL OFFENDER SENTENCE IS VACATED; REMANDED FOR A NEW TRIAL.

      . In 1999, the defendant was convicted of illegal possession of stolen things with a value over $500 (La. R.S. 14:69).

      . According to the bill of information, the date of the offense was March 20, 2010; however, according to the trial testimony of Det. Harris and Lt. Goings, the date of the offense was March 30,2010.

      . On cross-examination, Lt. Goings testified, "The only information that I had that he was going to do a transaction was the information that I received from my C.I.’’ Later in the lieutenant's cross-examination, the following exchange took place:
      Q. Now, other folks can tell you that they came for one reason, but that doesn't make it true; am I correct?
      A. Yes, sir.
      Q. Basically, all you're going on is what someone told you.
      A. I’m going by what my C.I. told me; yes, sir.
      Q. What your C.I. told you. No independent knowledge yourself?
      A. No independent knowledge. The only information I had was from the C.I.