author: DANIEL L. DYSART, Judge.

text:
    Darren SHARPER v. The NEW ORLEANS SAINTS.
    No. 2014-CA-0336.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2014.
    Rehearing Denied Nov. 19, 2014.

      Frank A. Bruno, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Christopher J. Kane, Gerard J. Gaudet, Adams <& Reese LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge, ROLAND L. BELSOME, Judge, PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| garren Sharper appeals a judgment of the Office of Workers’ Compensation holding that Sharper’s claims for workers’ compensation benefits are prescribed. For the reasons that follow, we affirm.

BACKGROUND:

Darren Sharper was a professional football player employed by the New Orleans Saints during the 2009-2010 and 2010-2011 football seasons. He sustained an injury to his left knee in a game on November 8, 2009. He aggravated the injury to his left knee in a game on December 19, 2009. The team doctor recommended conservative treatment including ice, physical therapy, anti-inflammatory medications, and drainage of the knee. Sharper continued to play despite the injury. He testified that he did not play in the last, regular season game, but admitted that it was a precautionary measure in light of the upcoming play-off games.

| ⅞⅛ early January of 2010, Sharper consulted with Dr. James R. Andrews, of the Andrews Sports Medicine & Orthopaedic Clinic in Birmingham, Alabama, to obtain a second opinion about his knee injury. Dr. Andrews prescribed a Synvisc-One injection. Sharper continued to play in the play-off games, and in the Saints’ victory in the 2010 Super Bowl.

At the end of the 2009-2010 season, Sharper passed an exit physical administered by the Saints’ physicians and trainers. The exit form indicated that Sharper had suffered a cervical strain in the Super Bowl, and that Sharper should continue conservative treatment for his knee. The summary portion of the form indicated that “surgery” was checked, but Sharper testified that he did not know why this was checked as neither Dr. Jones (Saints’ team doctor) nor Dr. Andrews had recommended surgery at that point in time. Sharper testified that he signed the exit physical form, confirming that he had no injuries that would prevent him from playing football. Sharper testified that his knee condition worsened after the exit physical, and he consulted Dr. Andrews again on February 23, 2010.

In March 2010, Sharper’s contract with the Saints expired. He was considered a free agent at that time. On March 3, 2010, Dr. Andrews performed arthroscopic surgery on Sharper’s left knee to remove loose bodies and repair a microfracture of two small medial femoral chondral lesions. Dr. Andrews also ^performed a chondro-plasty on Sharper’s patella and injected the knee with plateletrich plasma.

The Saints re-signed Sharper on May 5, 2010, for the 2010-2011 season. Sharper was still rehabilitating his knee, and was placed on the PUP (physically unable to perform) list by the Saints. During this time, Sharper was paid his full salary. On October 23, 2010, Sharper was placed on the active roster and participated in the game that weekend. He continued to play although he testified that his knee continued to swell. Sharper testified that he injured his left hamstring near the end of the season, and sat out the next two games. In January 2011, he again “tweaked” his hamstring.

Sharper testified that he suffered a new knee injury while playing in the game on January 8, 2011, but did not report the injury to the team doctors. He admitted that he was aware that his contract required him to report injuries or reinjuries to the team doctors.

Sharper testified that at his exit physical on January 11, 2011, he told the Saints’ staff that he still had neck, hamstring and knee issues. He did not, however, mention the alleged injury he suffered just three days earlier. Further, despite the complaints of lingering injuries, Sharper again signed the section of the exit physical form indicating that he had no injuries which would prevent him from playing football.

^Sharper became a free agent in March of 2011, but was not re-signed by the Saints. He testified that he continued to train in NFL-level training sessions. He saw Dr. Andrews or an associate at his clinic in June, July and August of 2011, receiving Synvisc shots each time. During the summer of 2011, Sharper tried out for the Denver Broncos and the New England Patriots, but was not signed by either team. Sharper testified that the reason he was not signed was because of his knee injury, but there is nothing in evidence to support his assertion that he was told by a doctor that he could not play football anymore, or that the other NFL teams did not sign him because of a knee issue. In fact, Dr. Andrews indicated in his notes from the August 2011 visit that Sharper “looks good and should be able to play this season.”

During cross-examination, Sharper admitted that he told Dr. Andrews at his July 2011 visit that he was able to “cut” and complete an entire field run. Dr. Andrews’ examination notes indicate that Sharper had full range of motion, without tenderness in his left knee. He was released to full play status. Again, at his August 2011 visit to Dr. Andrews, the clinic notes indicate that Sharper had no pain with running, no crepitus or swelling, and had full range of motion.

Sharper admitted on cross-examination that if any team had offered him a contract for the 2011-2012 season, he would have signed. However, when no offer was forthcoming, he officially retired from professional football in November 2011.

15From September 2011 to March 2012, Sharper did not actively seek employment in any field of work. It was not until June 2012 that Dr. Andrews deemed Sharper disabled from playing professional football and assigned him a permanent impairment rating of 30% in his left leg and 12% whole body, and made the rating retroactive to his surgery in March 2010.

DISCUSSION:

The standard of appellate review of findings of fact in workers’ compensation claims is the manifest error/clearly wrong standard. Campbell v. New Orleans Saints, 12-886, p. 5 (La.App. 5 Cir. 5/16/13), 113 So.3d 1215, 1217. However, when legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo standard of review applies. Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-0179, p. 3 (La.App. 4 Cir. 6/29/11), 70 So.3d 988, 990, citing McFarlane v. Schneider Nat’l Bulk Camers, Inc., 07-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188. Furthermore, interpretation of statutes in workers’ compensation claims is a question of law, which also warrants a de novo review. Id. Because we do not find that the trial court improperly applied the pertinent statutes, we review this matter using the manifest error/clearly wrong standard.

The sole issue to be decided in this appeal is whether Sharper’s claims for indemnity benefits, supplemental earnings benefits, and penalties and attorney fees | fihave prescribed, or whether, as Sharper argues, prescription was interrupted because the payments he received from the Saints were not contractual wages, but rather, workers’ compensation benefits or payments in lieu of compensation.

Sharper did not file his claim (Form 1008) for compensation until December 14, 2011, which was more than one year from the date of his last reported injury. If compensation payments had been paid, Sharper would have had one year from the date of the last indemnity payment to file a Form 1008, or three years from the date of the last disability payment.

In his two assignments of error, Sharper argues that the trial judge erred in holding that indemnity payments had not been paid, and that he was not entitled to indemnity payments when he was physically unable to play, thereby allowing the running of prescription on Sharper’s claims pursuant to La. R.S. 23:1209. Both of these assignments are rooted in the trial court’s categorization of the payments made to Sharper.

Louisiana Revised Statute 23:1209 A(l) provides:

A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties, have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.

The party raising an exception of prescription normally bears the burden of proof at trial of the exception. However, when prescription is evident on the face |7of the pleadings, the burden shifts to the claimant to prove otherwise. See Amos v. Rooms to Go Louisiana Corp., 09-1682, pp. 3-4 (La.App. 4 Cir. 6/30/10), 43 So.3d 283, 285.

The trial court determined that Sharper’s claim was prescribed on its face. It made the factual finding that Sharper was injured in the course and scope of his employment on November 8, 2009, and aggravated that injury on December 19, 2009. The court further found that Sharper filed his Form 1008 on December 14, 2011, which was not within one year from either of the injury dates as required by La. R.S. 23:1209 A(l). Therefore, based on those factual findings, the court declared that the claim had prescribed on its face for all benefits except necessary and related medical care associated with his knee injury. This finding thus shifted the burden of proof to Sharper to prove that his claim .had not prescribed.

Sharper claims that the trial court erred in finding that the record contained a joint stipulation" that the Saints did not pay indemnity or disability payments to Sharper. The trial court found that because of the stipulation, a portion of La. R.S. 1209 was inapplicable to his claim. Specifically, if indemnity or disability payments had been paid, Sharper would have had one year from the date of the last indemnity payment made, or three years from the date of the last disability payment, to file a Form 1008. Put another way, the payments in lieu of compensation would have interrupted prescription. Sharper claims that no such stipulation was.made and the payments he received were made in lieu of compensation.

We agree that no stipulation is contained in the record. However, the Saints argue that regardless of whether or not the trial court found there was a stipulation, |sSharper’s interpretation of the payments made to him is erroneous, as he was under contract for the entire 2009-2010 and 2010-2011 seasons and earned actual wages.

Paragraph 10 of the contract addresses workers’ compensation:

Any compensation paid to the player under the contract or under any collective bargaining agreement in existence during the term of this contract for a period during which he is entitled to workers’ compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability will be deemed an advance payment of workers’ compensation benefits due player, and Club will be entitled to be reimbursed the amount of such payment out of any award of workers’ compensation, (emphasis added.)

The key word in Paragraph 10 is “entitled,” as Paragraph 10 provides that any compensation made during a period in which a player is entitled to workers’ compensation benefits will be deemed an advance payment of workers’ compensation benefits, not salary. Sharper never proved he was entitled to workers’ compensation.

The evidence establishes that Sharper missed one game as a result of the initial November 8, 2009 injury. He did not play in the last game of the regular season, but admitted that it was a precautionary measure made by the team in light of the upcoming play-off games. Sharper played in all of the post-season games, including the Super Bowl. His contract expired in March 2010, and he was considered a free agent until the Saints re-signed him on May 5, 2010. He was placed on the PUP list at the beginning of the 2010-2011 season, and was activated to participate in the October 28, 2010 game. Sharper was paid his regular salary during this time, which the trial court found was considered salary for actual |flservices rendered, pursuant to the NFL Players’ Contract and the Collective Bargaining Agreement.

This Court in Dobler v. United Fidelity & Guaranty Co., 508 So.2d 176 (La.App. 4th Cir.1987), a case factually similar to the instant case, found that payments made to a Saints player were earned payments under his contract with the NFL, rather than wages in lieu of compensation, for purposes of calculating the prescriptive period.

Conrad Dobler injured his knee in the third game of the 1978 season. He underwent surgery and his leg was placed in a cast. He was placed on the “injured reserve” list. Each morning, Dobler attended rehabilitation with the team trainer, but did not play in any other games that season. The Saints paid him all of his 1978 salary. Id. at 177.

This Court adopted the reasons assigned by the trial court finding that the case had prescribed. The Court stated:

R.S. 23:1209 provides that a claim for workman compensation benefits prescribes within one year after the accident unless the parties have agreed to payments to be made under the compensation act or unless suit is filed within one year after the accident. This section provides however that if payments are made then the limitation shall not take effect until the expiration of one year from the time of the making of the last payment except with respect to a partial disability in which case the plaintiff shall have three years from the making of the last payment. There is, however, one further caveat under this section and that is that if the injury did not result at the time of or develop immediately after the accident |10then the limitation shall not take effect until the expiration one year from the time the injury develops but in all such cases under this section the claim shall be forever void unless proceedings have been begun within two years from the date of the accident.

Dobler, 508 So.2d at 177.

Applying La.R.S. 23:1209, the Dobler court held that the payments made to Do-bler were earned wages under his contract and not payments in lieu of compensation because Dobler was required by the team and his contract to attend all practices and all team sessions and to assist in other areas the team wished for him to use his abilities. Id. at 177-178.

The Fifth Circuit was faced with a similar fact scenario in Jones v. New Orleans Saints, 01-294 (La.App. 5 Cir. 10/17/01), 800 So.2d 1025. Brian Jones injured his knee in a scrimmage prior to the start of the season. He completed the 1997 season, but was released from his contract in September of 1998, for “unsatisfactory performance.” Jones was paid, however, for the games in which he played in the early part of the 1998 season. At the end of the season (January 1999), Jones received the balance of his salary from the Saints pursuant to the NFL Collective Bargaining Agreement.

In December 1999, Jones filed a claim for compensation, stemming from the 1997 knee injury. The trial court maintained the Saints’ exception of prescription. On appeal, Jones argued that the trial court erred in not finding that the payment made in January 1999 was payment in lieu of compensation, which tolled the running of prescription. The Saints countered that the payment was salary that Jones had earned.

As the Fifth Circuit explained, La. R.S. 23:1209 A determines the prescriptive period for filing workers’ compensation claims. An exception to the Ingeneral rule is that the prescriptive period does not begin to run, if benefits have been paid, until one year from the date of the last payment, or if payments were made pursuant to La. R.S. 28:1221(3), until three years from the date of making the last payment.

We find Dobler and Jones factually similar to the instant case, and agree with their holdings. Sharper was paid for the entire 2009-2010 season and was resigned after surgery for the 2010-2011 season, in which he played from October 23, 2010, through January 2011. His salary for 2010-2011 was one and a half times his salary for the prior season. Despite the fact that there were games in which he did not play, he attended practices, participated in meetings, attended games, and participated in necessary rehabilitation, all of which is considered work under the terms of his contract for which he was paid his full salary. Therefore, Sharper’s argument that his salary was a payment in lieu of compensation, rather than earned wages, cannot stand.

The trial court found that Sharper did not carry his burden of proving that the payments made to him by the Saints were advance payments of workers’ compensation benefits sufficient to trigger Article 10 of the Player’s Contract. Thus, Sharper was not entitled to any workers’ compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability, nor was he entitled to supplemental earnings benefits. The trial court found, based on the facts presented, that although Sharper could not play to the level of a professional football player from July 29, 2010 through October 23, 2010, he was still capable of performing work, which he did according to the terms of the contract. We cannot say that this finding is manifestly erroneous or clearly wrong.

| iaThe fact that the duties before and after the triggering injury are similar or dissimilar, heavier or lighter, is relevant but not determinative of the issue of whether payments made to the employee were actual wages or payments in lieu of compensation. Amos, 09-1682, pp. 4-5, 43 So.3d at 285. Here, Sharper was bound by contract to continue his other job requirements while rehabilitating without a reduction in pay. Thus, he was not entitled to workers’ compensation benefits, disability benefits, or supplemental earnings benefits.

Accordingly, Sharper’s case has prescribed as he did not file his 1008 claim until more than one year from the date of his injury.

AFFIRMED

      . Sharper filed a motion for new trial, which was denied by the trial court, finding the original judgment was not contrary to law, and that there were no other applicable discretionary grounds for granting a new trial.

      . Synvisc-One is a treatment for pain for osteoarthritis of the knee in patients who have failed to respond adequately to conservative, non-pharmacologic therapy and simple analgesics, e.g., acetaminophen. See www. synviscone.com.

      .This injury is not part of the subject workers’ compensation claim.

      . In a letter dated September 5, 2010, to Sharper, Saints General Manager Mickey Loomis set forth the requirements and guidelines for a player placed on the Reserve Physically Unable to Perform list. Sharper signed for the letter on September 7, 2010, indicating that- he understood the guidelines and conditions.

      . The hamstring injury also is not included in Sharper's claim.

      . Dr. Andrews stated in a letter dated July 20, 2012 (written at the request of Sharper’s attorney) that Sharper was disabled from play-tag professional football and had been since his surgery in March 2010. This is in direct contradiction of Dr. Andrews notes of July 25, 2011, in which the doctor stated ”... at this point we are releasing him to try to go ahead and play if he can get signed on with one of the teams as a defensive back. Overall today he looked quite well.”

      . Sharper also argues that he was erroneously denied supplemental earnings benefits, to which entitlement is also dependent on the categorization of the payments he received.

      . Sharper cites to a decision of the Office of Workers’ Compensation involving another Saints player. However, this case is attached as an exhibit to Sharper's brief, and is not contained in the record before this Court. We also note that decisions of the Office of Workers’ Compensation are not binding on this Court. Therefore, we will not consider the decision. Rather, we will examine the contract for guidance.

      . The trial court awarded Sharper necessary and related medical care for his treatment with Dr. Andrews, and assessed penalties and attorney fees against the Saints for failure to authorize treatment with Dr. Andrews. These issues have not been appealed by the Saints and the rulings are therefore final.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Troy Edward DELOZIER.
    No. 14-493.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2014.
    James C. Downs, District Attorney, Thomas R. Willson, Assistant District Attorney, Sheryl L. Laing, Assistant District Attorney, Alexandria, LA, for Appellee: State of Louisiana.

      Edward J. Marquet, Louisiana Appellant Project, Lafayette, LA, for Defendant/Appellant: Troy Edward Delozier.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   AMY, Judge.

pThe defendant herein was charged with two counts of aggravated rape and one count of indecent behavior with juveniles. After a trial, he was found guilty on all three counts. For the two counts of aggravated rape, the trial court imposed sentences of life imprisonment at hard labor on each count, without benefit of parole, probation, or suspension of sentence. For the count of indecent behavior with juveniles, the trial court imposed a sentence of ten years at hard labor, with two years to be served without benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentences be served consecutively. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The victim, K.G., who was under the age of 13, reported that the defendant, Troy Edward Delozier, made K.G. perform oral sex on the defendant on more than one occasion and that the defendant touched KG.’s penis. Thereafter, the defendant was indicted for two counts of aggravated rape, violations of La.R.S. 14:42, and one count of indecent behavior with juveniles, a violation of La.R.S. 14:81(H)(2).

After a trial, a jury returned guilty verdicts as to all three counts of the indictment. At the sentencing hearing, for the two counts of aggravated rape, the trial court imposed sentences of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court imposed a sentence of |2ten years at hard labor for the count of indecent behavior with juveniles, with two years to be served without' benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentences be served consecutively and that, should the defendant ever be released, he would have to register as a sex offender.

The defendant appeals, asserting that the evidence was insufficient to support his conviction because K.G. did not identify him at trial.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews the record for errors patent on the face of the record. Having performed such a review, we find no errors requiring action by this court.

Sufficiency of the Evidence

The defendant contends that the State failed to introduce testimony by the victim identifying the defendant as the perpetrator. This argument essentially contests the sufficiency of the evidence to support the defendant’s conviction. In State v. Lively, 13-883, pp. 8-9 (La.App. 3 Cir. 2/12/14),- So.3d -, -, a panel of this court reiterated the appellate review of sufficiency of the evidence claims, stating:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code, Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact[,]” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724).

Additionally, where the key issue is not whether the crime occurred but whether the defendant is the perpetrator, the State is “required to negate any reasonable probability of misidentification.” State v. Hughes, 05-992, p. 5 (La.11/29/06), 943 So.2d 1047, 1051.

Rape is defined in La.R.S. 14:41 as:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.
C. For purposes of this Subpart, “oral sexual intercourse” means the intentional engaging in any of the following acts with another person:
(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender.
(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

As relevant to the charges herein, aggravated rape is defined as:

Aggravated rape is a rape ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
_Ll- • •
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La.R.S. 14:42(A). Additionally, as relevant herein, indecent behavior with juveniles is defined in La.R.S. 14:81(A) as:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense[J

The defendant bases his argument on both the victim’s failure to identify the defendant as the perpetrator in court and the lack of any pre-trial identification, such as a photo line-up. In State v. Lampkin, 12-391 (La.App. 5 Cir. 5/16/13), 119 So.3d 158, writ denied, 13-2303 (La.5/23/14), 140 So.3d 717, the defendant was charged with aggravated rape and indecent behavior with juveniles in connection with the rape of a ten-year-old girl. At trial, the victim did not identify the defendant as the perpetrator in court, testifying that she didn’t see him because she was scared. The fifth circuit found that “[i]n view of this testimony, it would have been reasonable for the jury to conclude that RJD.’s failure to identify defendant as the perpetrator was a result of fear and not an ability to identify.” Id. at 165. Further, the victim had earlier identified the defendant in a photo line-up. See also State v. Farrar, 36,764 (La.App. 2 Cir. 1/29/03), 836 So.2d 1161 (finding that the young victim’s inability to identify the defendant in court insufficient to void the defendant’s conviction), writ denied, 03-2323 (La.8/20/04), 882 So.2d 578.

The record reveals that, at trial, the following colloquy occurred between the prosecutor and K.G.:

IsQ. Okay. Ah, do you see Mr. Troy Delozier here today?
A. No. He is a little hard to spot any-wheres (sic).
Q. Okay. You ... but he’s in the courtroom?
A. Yes ma’am.
Q. Okay. Can you point at him for me?
A. No, I can’t see ‘im.
Q. Okay. Ahm, how’s, how long’s it been since you’ve seen him?
A. In two years or one.
Q. Okay.
A. Two to one years.
Q. Okay. When, what grade were you in when you last saw ‘im?
A. Fourth.
Q. Okay. The beginning or end of fourth grade.
A. Somewhere in the middle.
Q. Okay. Sometime during your fourth grade year?
A. Yes.
Q. Ahm, [K.G.], I notice ... And I’m, and I want you to tell us, I know you have, you’ve had trouble with your eyes in the past. Can you tell us, I know you were little when, when something was done, can you tell us a little bit about that?
A. Ah, all I remember was this little machine.
Q. Okay. Do you have to wear any glasses or anything now?
A. No, not most of the time.'
Q. You do sometimes?
A. Yes.

Other testimony indicated that K.G. was born with an eye disorder, and had previously had surgery to try to correct it. There was testimony that K.G. was nearsighted and wore glasses, although he frequently lost them and did not have his glasses at trial. Further, there was testimony that the defendant’s appearance |6had changed since the last time that K.G. saw him, most notably that he had lost approximately sixty to seventy pounds. In light of this testimony, the jury could reasonably conclude that K.G.’s failure to identify the defendant in court was not because he could not identify the defendant as the perpetrator, but because of KG.’s eyesight issues and the defendant’s change in appearance.

Reviewing the evidence in the light most favorable to the prosecution, our review of the record reveals evidence sufficient that any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of aggravated rape and indecent behavior with juveniles. The testimony of the victim alone is sufficient to establish the elements of a sexual offense. State v. Pitts, 11-1020 (La.App. 3 Cir. 4/4/12), 87 So.3d 306, writ denied, 12-980 (La.10/26/12), 99 So.3d 639. KG.’s testimony was that his father used to live with Troy Delozier, who was his great-uncle. K.G. testified that Troy “had made me suck his private parts” on several occasions and that Troy showed him a website called “red too.” KG.’s birth certificate, which showed that he was under the age of 13, was submitted into evidence, and the defendant stipulated that he was fifty-one years old.

The video of KG.’s interview at the Children’s Advocacy Center was played for the jury, and KG.’s in-court testimony was consistent with his interview. K.G. also stated in the interview that Troy had touched KG.’s penis on one occasion. Further, K.G.’s mother and father testified that KG.’s father lived with Troy De-lozier and that both K'.G.’s father and K.G. referred to Mr. Delozier as “Uncle Troy.” Although it is not clear from the record whether KG.’s mother |7and father specifically identified the defendant as Troy Delozier or “Uncle Troy,” KG.’s mother stated that she recognized him in the courtroom and could identify him, and KG.’s father discussed his appearance. Additionally, a neighbor testified that she saw Mr. Delozier in the courtroom and that he was “[s]itting right over there wearing a striped shirt.” Further, Lieutenant Mark Rogers with the Rapides Parish Sheriffs Office was accepted as an expert in computer forensics. Lieutenant Rogers testified that the defendant’s laptop history showed entries for “redtube,” which, according to his explanation, is a website that contains pornographic materials.

This evidence is sufficient such that a rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of aggravated rape and indecent behavior with juveniles. Accordingly, we find no merit to the defendant’s assignment of error.

DECREE

For the foregoing reasons, the convictions of the defendant, Troy Edward Delo-zier, for aggravated rape and indecent behavior with juveniles are affirmed.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect his identity.

      . We observe that, in some documents in the record, the defendant capitalizes his last name as "DeLozier.”

      .The indictment references La.R.S. 14:81(H)(2), which contains the enhanced sentencing provisions for crimes involving victims under the age of thirteen. At trial, the State presented its theory of the case pursuant to the provisions of La.R.S. 14:81(A)(1).

      . In the transcript from K.G.’s Children’s Advocacy Center, the website is referred to as “red 2.”


author: SAUNDERS, Judge.

text:
    Quinton D. STEELE v. Jasmine S. ASHWORTH.
    No. 14-527.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2014.

      Larry Edward Pichón, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant Quinton D. Steele.
    Jasmine S. Ashworth, In Proper Person, DeRidder, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

11 This is an appeal from a custody determination and judgment rendered by the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Quinton J. Steele (hereafter “Appellant”) and Jasmine S. Ashworth (hereafter “Appellee”) are the parents of a minor child, Conner Steele. On September 16, 2008, Appellant filed a Petition to Establish Paternity and Custody. On March 16, 2009, the trial court issued an oral ruling, recognizing Appellant as the biological father of the minor child. At the same time, an Interim Order was issued, awarding “joint care, custody, and control” of the minor child to the parties. On April 13, 2009, a hearing was held on Appellant’s Rule to Set Permanent Custody. The testimony of Appellant, Appellee, and Laura Landry, Appellant’s wife, was heard. An oral ruling with reasons was issued, granting joint custody to the parties, with Ap-pellee being designated domiciliary parent with Appellant having visitation according to the court’s Standard Custody Implementation Plan. Judgment was signed on September 24, 2013, awarding “permanent joint care, custody, and control of the minor child.” Appellee was designated as the domiciliary parent. An Implementation Plan was issued.

On September 23, 2013, Appellee, pro se, filed a Rule for Contempt, alleging that Appellant took the minor child without her permission. On September 24, 2013, the trial court ordered the minor child be returned to Appellee and set the matter for review. Appellant filed a response to the rule, alleging the minor child had been in his care, with Appellee’s permission, since the summer of 2012. He further alleged that he and Appellee had agreed the child would remain in his custody, with Appellee exercising visitation in her home. On October 11, 2018, Appellant filed a Petition for Change of Custody and Stay of Return Order, |?again alleging that, with Appel-lee’s permission, he had physical custody of the child since the summer of 2012. He requested sole custody with visitation being granted to Appellee and a stay of the order to return the child until a hearing could be had on the request to change custody. The request for stay was denied, and the matter was set for hearing.

Hearing was held on December 19, 2013, at which the trial court heard the testimony of the parties. The matter was taken under advisement, and judgment was rendered on January 2, 2014, in which the trial court denied the Petition for Change of Custody, finding that Appellant failed to meet the burden of proof for a change of custody following the rendition of a considered decree. It is from this judgment that this appeal.arises.

DISCUSSION

In his appeal, Appellant first asserts the trial court erred in not considering a letter written to the court by the minor child. Appellant also asserts the trial court erred in finding that the standard announced in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), applied to Appellant’s request to change custody.

Assignment of Error Number One:

Appellant asserts that the trial court did not properly consider a letter written by the minor child, in which the child complained he was “hit” by Appellee. In support of his argument, he contends, “If the court properly considered the letter then the court could have concluded that it would be deleterious to leave the child with the mother appellee.”

There is nothing to indicate the trial court did not consider the letter. To the contrary, it appears the trial court did, in fact, consider the content of the letter and made the decision to report the allegation that Appellee “hit” the child to the Office |sof Community Services, the agency charged with investigating complaints of child abuse. When the letter was introduced, the trial court explained:

THE COURT:
In the Court’s opinion at this time. It does not reach that level. I can — because I saw this letter; I don’t know what effect the letter has. I don’t know the situation, and I’m not going to talk to an eight-year-old child — I can ask OCS to investigate the situation and talk to an eight-year-old child. But teachers are mandatory reporters. In other words, if they believe the child was hurt, and the child told them, they would report it, and the investigation would immediately occur. I’m a mandatory reporter. Mr. Pichon’s a mandatory reporter. So, I will tell them, and they’ll investigate the situation, and they’ll probably continue to do that.

In the absence of any details, the trial court “could have concluded” that the child may have been abused and that it would be harmful to the child to maintain custody in Appellee. However, without any context, the trial court was also entitled to conclude that there may, in fact, have been no actual abuse. Where there are two permissible views of the evidence, there cannot be manifest error. LeBlanc v. Calcasieu Parish Sch. Bd., 02-728 (La.App. 3 Cir. 12/30/02), 834 So.2d 1258 (citing Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161; Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993)). Accordingly, we find this assignment is without merit.

Assignment of Error Number Two:

In his second assignment of error, Appellant asserts the trial court erred in finding that the heightened burden of proof announced in Bergeron applied to his request to change custody because a change of custody had already occurred when the child began to reside with him. He asserts that, if it should have been applied, it was to the change of physical custody from Appellant back to Appellee.

_JjThe burden of proof required to modify an order of custody depends on whether the trial court previously rendered a considered decree. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d 526. To modify a considered decree, the party seeking modification “must first show that a change of circumstances materially affecting the welfare of the child has occurred since the prior custody order.” Barlow v. Barlow, 14-361 (La.App. 3 Cir. 10/1/14), 149 So.3d 856, 860, 2014 WL 4851870 (citing Bergeron v. Bergeron, 492 So.2d 1193 (La.1986)). Then, the party seeking modification must show:

that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Wilson v. Wilson, 30,445 (La.App. 2 Cir. 4/9/98), 714 So.2d 35.
A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App. [2d Cir.] 2/6/95 [12/6/95]), 665 So.2d 648, writ denied, 96-0387 (La.5/§/96), 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested[,] or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.

Martin, 89 So.3d at 528 (quoting Schuchmann v. Schuchmann, 00-094, p. 3 (La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616) (quoting Roberie v. Roberie, 33,168, p. 3 (LaApp. 2 Cir. 12/8/99), 749 So.2d 849, 852) (alterations in original).

The trial court’s determination concerning whether the heightened burden of proof to modify a considered custody decree has been met is a question of fact, which will not be disturbed on appeal absent manifest error. Oliver v. Oliver, 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081. To make a finding that the trial court committed manifest error, an appellate court must find that the entire record | fireveals that there was no reasonable factual basis for the trial court’s finding and that the finding is clearly wrong. Id.

Finally, “ ‘[a] trial court’s determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion.’” Martin, 89 So.3d at 528 (quoting Franklin v. Franklin, 99-1738, p. 4 (La.App. 3 Cir. 5/24/00), 763 So.2d 759, 762). Custody cases are decided upon their own particular facts and circumstances, but the “paramount” consideration is the best interest of the child. McManus v. McManus, 13-699, p. 3 (La.App. 3 Cir. 12/11/13), 127 So.3d 1093, 1095 (quoting Hebert v. Blanchard, 97-550, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1102, 1105). On a request to modify a considered decree, if the heightened burden of proof is met, then the trial court must then determine the best interest of the child. Harvey v. Harvey, 13-81 (La.App. 3 Cir. 6/5/13), 133 So.3d 1, writ denied, 13-1600 (La.7/22/13), 119 So.3d 596.

In the instant case, the trial court correctly concluded that the September 24, 2013 judgment memorializing the April 13, 2009 oral ruling was a considered decree because testimonial evidence was heard at the April 13, 2009 hearing. Although Appellant urges us to find the heightened burden of proof applies to the change of physical custody from Appellant to Appel-lee, and not to his request to modify the considered decree rendered by the trial court, there is no support in the law for this proposition. Therefore, we conclude that the strict standards of Bergeron apply to Appellant’s request to modify the trial court’s September 24, 2013 considered decree.

In his appeal, Appellant asserts that the facts that the child lived with Appellant for one year and “was doing well” are changes in circumstances since the prior custody order which materially affected the child’s welfare. Although the Ifitrial court’s judgment did not address this prong of the Bergeron standard of proof, we disagree with Appellant. The record indicates that the parties mutually agreed that the child would live with Appellant temporarily, apparently to attend school for one year. We will not allow the domiciliary parent’s decision to allow the child to have more liberal access to his non-domiciliary parent to serve as the basis for a change of custody.

The record supports the trial court’s conclusion that Appellant did not prove that “that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody, or ... that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child.” Bergeron, 492 So.2d 1193. Appellant asserts that the child’s lower grade in reading, the mild injury to the child’s eye with dishwashing liquid, the comments by Ap-pellee to the child that he may be homosexual and would not get a birthday present because he broke a television, and the physical restraint of the child by Appellee during an altercation between Appellant and Appellee are circumstances which prove the child “could be harmed” by continuing the current custody in Appellee. However, a slightly lower reading grade, a minor injury to his eye, mildly inappropriate comments, and physical restraint of the child during a physical altercation between the parties, which caused no injury to the child, are not such harmful circumstances as to justify a modification of the custody decree.

Appellant’s own testimony indicates he did not believe the continuation of the current custody was so harmful to the child as to justify a change of custody. Appellant testified:

Q. What is it that you would actually like the Court to do?
A. Uhm, for any reason, I just really want to be a big part of my son’s education. I just really want to be involved with him while he goes to school because that plays a big part in his life.

|7In a colloquy with the court, Appellant stated:

THE COURT:
But that doesn’t mean I change custody-
APPELLANT:
Yes, ma’am. I understand that, and I’m not really trying to change custody. I just really feel like I need to be a bigger part of my son’s life as opposed to every other weekend.

When Appellee cross-examined him, he further testified (emphasis added):

Q. And another question I have is, uhm, why — Conner’s been with me all his life. I let him stay with you for a year and now all of a sudden [my] home is unfit. Why?
A. Jasmine, it’s not that your home is unfit. It’s simply because I, and this is just my opinion, I feel like you don’t take more responsibility into the seriousness of the stuff that you have goin’ on and to where if anything small can happen, that’s my child’s life. Just like that’s your child, that’s my child also.
A. Even when I’m not able to be around him, I would still like to know how he’s doin’. Jasmine, not one time did I say yo’ house was unstable. The only thing I disagree about was with Keith doin’ the tattoos while Conner was there. That’s the only thing I disagreed about.

Given the above testimony, it appears that the crux of Appellant’s request to change custody was that he wanted to play a larger role in his child’s life, not that the current custodial situation is “so deleterious” as to justify a change in the current custody decree. A considered decree may not be modified simply because one parent wishes to be more involved with the child. Thus, the trial court did not err in concluding that Appellant did not prove “that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody.”

^CONCLUSION

For the foregoing reasons, we conclude Appellant’s assignments of error are without merit. Therefore, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed equally between the parties.

AFFIRMED.


text:
    Samuel R. BREAUX, II v. COZY COTTAGES, LLC.
    No. 14-597.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2014.

      James M. Garner, Elwood Francis Xavier Cahill, Jr., John T. Balhoff, II, Paul R. Trapani, III, Sher Garner Cahill Richter Klein & Hilbert L.L.C., New Orleans, LA, for Defendant Applicant, Chicago Title Insurance Company.
    David Frank Dwight, Stephen C. Dwight, Dwight Law Firm, Claude P. De-vall, J. Lee Hoffoss, Jr., Donald Wayne McKnight, Hoffoss Devall, L.L.C., Lake Charles, LA, for Defendant Respondent, Cozy Cottages, L.L.C.
    Hon. Cecil R. Sanner, District Attorney 38th JDC, Cameron, LA, for Respondent, Richard Abshire, Richcore, Inc., Jessica Abshire.
    Charles Schrumpf, Law Offices of Oliver and Charles Schrumpf, P.L.C., Sulphur, LA, for Plaintiff Respondent, Samuel R. Breaux, II.
    Dennis R. Sumpter, Sumpter Law Offices, Sulphur, LA, for Respondent, Dennis R. Sumpter.
    James Huey Gibson, Allen & Gooch, Lafayette, LA, for Respondent, Charles K. Watts, Seale, Smith, Zuber & Barnette, Lawrence R. Anderson, Jr.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

11 This is a case involving a dispute over title to immovable property located in Cameron Parish, Louisiana. Two parties claim title to the same tract of land from two separate chains of title. Samuel R. Breaux, II (hereafter “Plaintiff’) filed suit for declaratory judgment against Cozy Cottages, LLC (hereafter “Cozy Cottages”), seeking recognition of his right of ownership.

FACTS AND PROCEDURAL HISTORY

This case revolves around a title dispute over Lot 8, located in the Edmond Doiron Subdivision in Cameron Parish (hereafter “the property”). Lot 8 of the Edmond Doiron Subdivision in Cameron Parish came into being in 1883 when Edmond Doiron’s children partitioned his property. His son, Edward Doiron, received Lot 8. Edward Doiron had ten children. One of them was Antoine Doiron. Antoine Doiron had no children, but was married to Mary Viola Doiron, who had a son, Lawrence Marsh.

Antoine Doiron died testate in 1952. His testament, executed on March 31, 1949, provided that his wife, Mary Viola Doiron, be given “use, enjoyment, rents, royalties, and income of and from all lands owned by me, or in which I may have an interest, in Cameron Parish, Louisiana, to have and to hold the same for her and during her natural life.” The next paragraph of the testament provided that the “reversion and remainder of my lands above mentioned, from and after the decease [sic] of my said wife, to my brothers and sisters, in fee simple, share and share alike.” A judgment of possession was signed on November 15, 1952, which decreed that Antoine Doiron’s wife, Mary Viola Doiron, be “sent into possession, as owner, of the use and usufruct, and all emoluments, issuing and emanating from the rent, royalties, and incomes from that certain property, left by the deceased in Cameron Parish, Louisiana.” Then, the property is described. Finally, the next ^paragraph orders that Antoine Doiron’s widow “be sent into possession, as owner, of the above estate, free and clear of any inheritance tax.”

Antoine Doiron’s wife, Mary Viola Doi-ron, died in 1983. In 1988 and 1989, the Cameron Parish Tax Assessor’s office sent notices of a tax sale in the name of the Viola Doiron Estate. It is undisputed that the notices were sent through Lawrence Marsh, the son of Mary Viola Doiron, who was the tax sale purchaser.

Lawrence Marsh was married to Mabel Marsh, and their son is Robert Marsh. Lawrence Marsh’s testament willed his entire estate to his wife, Mabel. After Lawrence Marsh died, Mabel Marsh and Robert Marsh sold them interest in the property to Plaintiff.

Cozy Cottages claims title to the property at issue from a completely different chain of title, beginning with persons named Clarville Doiron and Isaac Doiron. Clarville Doiron sold part of the property to Clarence Turner on October 18, 1949. Isaac Doiron sold part of the property to Clarence Turner on March 22, 1958. The record contains no information as to who these persons may be or the source of their title. From the sales to Clarence Turner, the property changed hands multiple times, eventually leading to the purchase by Cozy Cottages from Richard, Jessica, and Marion Abshire, and the Ab-shire’s company, Richcore Enterprises, in 2008. It is from this complicated set of facts that this dispute arises.

Plaintiff filed suit for declaratory judgment, claiming title to the property at issue following his purchase in 2005. Cozy Cottages claims an interest in the same property, following its purchase in 2008 from the Abshires and Richcore Enterprises. Cozy Cottages purchased title insurance from Chicago Title Insurance Company (hereafter “Chicago. Title”) in conjunction with its 2008 purchase of the property. Through the course of several supplemental and amended third-party petitions, Cozy Cottages filed third-party demands against Chicago Title, seeking ^defense of Plaintiffs claims against it or damages, and damages for failing to cure additional defects in the title. All parties filed separate motions for summary judgment.

In its motion for summary judgment, Chicago Title sought dismissal of Cozy Cottages’ claims against it, asserting:

1. Plaintiff has no claims against Cozy Cottages because the tax sales were absolute nullities for failure to give all owners notice of the tax sale, thus, Cozy Cottages has no claims against Chicago Title;
2. coverage under the insurance policy issued to Cozy Cottages terminated because Cozy Cottages failed to cooperate when it hired new counsel prior to consummation of a settlement negotiated by the law firm hired by Chicago Title to represent Cozy Cottages; and
3. Chicago Title has no duty to defend Cozy Cottages against the claims of Plaintiff because the policy provides that Chicago Title has the option to defend, tender policy limits, or settle with or pay parties other than the insured.

Cozy Cottages also filed a motion for summary judgment seeking dismissal of Plaintiffs claims against it, asserting that Plaintiff has no interest in the property because the tax sales were absolute nullities for failure to provide all owners with notice of the tax sale. All parties’ motions for summary judgment were denied.

Chicago Title filed a writ application, No. 14-486, requesting review of the trial court’s denial of its motion for summary judgment seeking to have Cozy Cottages’ claims against Chicago Title dismissed. Cozy Cottages filed a writ application, No. 14-597, requesting review of the trial court’s denial of its motion for summary judgment seeking dismissal of Plaintiffs claims against Cozy Cottages. Because there is an issue common to both writ applications, we [ ¿consolidate the two writs and address them in a single opinion. We find the trial court did not err in failing to grant either motion for summary judgment and, thus, deny these writs.

STANDARD OF REVIEW

Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possibly useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1258 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). This court has stated, “[t]he exercise of supervisory jurisdiction by appellate courts is within their plenary power. La. Const, art. 5, § 10. Appellate courts generally will not exercise such jurisdiction unless an error in the trial court’s ruling will cause the petitioner irreparable injury or an ordinary appeal does not afford an adequate remedy.” Borrel’s, Inc. v. City of Marksville, 05-48, p. 1 (La.App. 3 Cir. 6/1/05), 904 So.2d 938, 939 (citing Stevens v. Patterson Menhaden Corp., 191 So.2d 692 (La.App. 1 Cir.1966), writ denied, 250 La. 5, 193 So.2d 524 (1967)).

“Appellate courts review summary judgments de novo, applying the same criteria that govern a trial court’s determination of a motion for summary judgment.” Johnson v. State Farm Ins., 08-1250, p. 2 (La.App. 3 Cir. 4/1/09), 8 So.3d 808, 810. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Thus, we “review[ ] the record de novo to determine whether there is any genuine issue of material _]j|act.” Quantum Res. Mgmt, L.L.C. v. Pirate Lake Oil Corp., 12-1472, p. 5 (La.3/19/13), 112 So.3d 209, 214, cert. denied, — U.S. -, 134 S.Ct. 197, 187 L.Ed.2d 45 (2013).

DISCUSSION

Nullity of the fax sales

Chicago Title and Cozy Cottages maintain summary judgment dismissing the claims of Plaintiff is appropriate because notice of the tax sale was not given to the siblings of Antoine Doiron, the alleged naked owners of the property. Although there is no dispute that the siblings of Antoine Doiron or the heirs of the siblings of Antoine Doiron were not notified of the pending tax sale, we find summary judgment inappropriate on this issue.

Notice of a tax sale to the property owner is a prerequisite to the validity of the tax sale. Failure to give the requisite notice is a violation of Due Process and the subsequent tax sale is an absolute nullity. Quantum Res. Mgmt., 112 So.3d 209. However, the notice requirement announced in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), will not serve to retroactively undo prescription that has already accrued. Quantum Res. Mgmt., 112 So.3d 209.

Antoine Doiron died in 1952. All succession rights are “governed by the law in effect on the date of the decedent’s death.” La.Civ.Code art. 870(B). At the time of his death, former La.Civ.Code art. 1030 (1870), provided a prescriptive period of thirty years for acceptance or renunciation of a succession. Prescription began to run at the death of the testator. Sun Oil Co. v. Tarver, 219 La. 103, 52 So.2d 437 (1951). The heir that failed to accept or renounce within the thirty-year period “bec[ame] a stranger to the succession,” 10 La.Civ. L. Treatise, Successions and Donations § 7.11 (1995), and “[could] neither accept nor renounce.” Id. at n. 21 (citing Sun Oil Co., 52 So.2d 437). Former La.Civ.Code art. 1030 was still in effect in 1982, when the prescriptive period accrued.

|fiUnder the prior law, an heir was able to expressly or tacitly accept a succession. See La.Civ.Code art. 988 (1870). Express acceptance occurred “when the heir assume[d] the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.” Id.; See also Succession of Blanchard, 243 So.2d 329, 332-33 (La.App. 4 Cir. 1971). Tacit acceptance occurred “when some act [was] done by the heir, which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.” La.Civ.Code art. 988 (1870); Blanchard, 243 So.2d at 333. “Not only the person who is entitled to an inheritance may accept it, but if he dies before having expressly or tacitly accepted or rejected it, his heir shall have a right to accept it under him. La.C.C. art. 1007 [ (1870) ].” In re Succession of Moore, 97-1668, 97-1669, p. 16 (La.App. 4 Cir. 4/1/98), 737 So.2d 749, 758, writ denied, 99-0781 (La.4/30/99), 743 So.2d 207. Intent to accept was required. La.Civ. Code arts. 990 and 991(1870). Under the prior law, renunciation of a succession was not presumed. La.Civ.Code art. 1017 (1870). Renunciation must have been expressly made in authentic form. Id. Renunciation may have also occurred by pleading it iñ a judicial proceeding or by failing to accept or renounce within thirty years of the death of the ancestor. 10 La.Civ. L. Treatise, Successions and Donations § 7.8 (1995).

Under the current law, an heir may still expressly or tacitly accept a succession, although the terminology has changed to formal or informal acceptance. La.Civ. Code art. 957. Formal acceptance occurs when the successor “expressly accepts in writing or assumes the quality of successor in a judicial proceeding.” Id. Informal acceptance occurs when the successor takes an action which implies the intention to accept. Id. Intent to accept is still required. See La.Civ.Code arts. 957 and 958. Currently, acceptance is presumed, La.Civ.Code art. 962, and renunciation must be express and in writing, although it is no longer required to be in authentic form, La.Civ.Code art. 963. Compare La.Civ.Code art. 1017 (1870).

Whether or not the tax sales were null turns on whether Antoine Doiron’s siblings were entitled to notice. Under the former law, this depends on whether they were actually naked owners of the property, which turns on whether they, or their heirs, accepted, renounced, or renounced by failing to accept or renounce the succession within thirty years. Under the current law, it also turns on whether the heirs accepted or renounced the succession. Under both the prior and current law, if the siblings of Antoine Doiron accepted the succession, then they were naked owners and entitled to notice of the tax sale. Since they did not receive notice, then the tax sales would be absolute nullities, and Plaintiffs claims fail. However, if they renounced, under both the prior and current law, or failed to accept or renounce within the thirty-year prescriptive period, under the prior law, then they were.not naked owners and, therefore, not entitled to notice of the pending tax sale. If they were not entitled to notice, then Plaintiff may indeed have an interest in .the property-

Although the record indicates that the siblings of Antoine Doiron did not participate in the succession proceeding of their deceased brother, they were not required to do so in order to accept or renounce the succession. Under both the former and current law, acts of ownership may suffice to constitute acceptance. La.Civ.Code art. 994 (1870); La.Civ.Code art. 959. Leasing or occupying the succession property, execution of a deed, and donation, sale, or assignment of succession rights have been held to constitute tacit acceptance. 10 La.Civ. L. Treatise, Successions and Donations § 7.7 (1995). Even granting another co-heir permission to occupy the property has been held to constitute tacit acceptance. Id. at n. 9 (citing Succession of Blanchard, 243 So.2d 329 (La.App. 4 Cir.1971)). From the record before us, we cannot' determine whether the siblings of Antoine Doiron, or their heirs, accepted or renounced the succession of Antoine Doi-ron. There is no evidence in the record concerning either. All that is known is that it is undisputed the siblings of Antoine Doiron did not formally participate in the succession proceedings.

Finally, “issues pertaining to subjective facts such as intent, knowledge, motive, malice, or good faith are usually not appropriate to a summary judgment determination.” Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, 00-979, p. 6 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, 1289, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195. Thus, even if Cozy Cottages and Chicago Title could point to some evidence in the record of an act that might indicate Antoine Doiron’s siblings accepted the succession, summary judgment would nonetheless be inappropriate as the intent of the act must be explored at trial. Therefore, we conclude that a genuine issue of material fact exists on this issue, precluding a finding that Plaintiff has no ownership interest in the property at issue. Thus, the trial court’s denial of Chicago Title’s and Cozy Cottages’ motions for summary judgment seeking a determination that the tax sales were absolute nullities was not in error.

Coverage

In its writ application, Chicago Title argues that the trial court erred in denying its motion for summary judgment on the ground that, in the event Plaintiff does have any claims against Cozy Cottages and, as a result, Cozy Cottages has a claim against Chicago Title, Chicago Title’s contractual obligations were terminated because Cozy Cottages failed to cooperate in facilitating a settlement |9with Plaintiff. Chicago Title relies on the following policy provision in support of this contention:

Whenever requested by the Company, the Insured, at the Company’s expense, shall give the Company all reasonable aid (i) in securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement. ... If the Company is prejudiced by the failure of the Insured to furnish the required cooperation, the Company’s obligations to the Insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation.

Chicago Title contends that Cozy Cottages’ engagement of new counsel before a settlement negotiated by the law firm hired by Chicago Title was finalized constitutes non-cooperation under the provision above, such that all its obligations under the policy are terminated.

Cozy Cottages contends that its expressions of disagreement to the proposed settlement do not relieve Chicago Title of its obligations under the policy. Cozy Cottages points out that it disagreed with the settlement because settlement with Plaintiff would reduce the funds available to resolve the other potential title defects. Cozy Cottages also contends that the law firm originally provided by Chicago Title failed to sufficiently protect Cozy Cottages’ interests because that firm failed to timely file a legal malpractice claim against the attorney who conducted the title search when Cozy Cottages purchased the property. Cozy Cottages further contends that, because there is no “consent to settle” clause in the policy, Chicago Title is not precluded from confecting the proposed settlement.

Whether an insured has breached the duty of cooperation is a factual inquiry suited to summary judgment determination. Freyou v. Marquette Cas. Co., 149 So.2d 697 (La.App. 3 Cir.), unit refused, 244 La. 154, 150 So.2d 771 (1968). An insured may “assume and manage its own defense.” Arceneaux v. Amstar Carp., 10-2329, p. 19 (La.7/1/11), 66 So.3d 438, 451 (citing Arceneaux v. Amstar Corp., 06-1592 (La.App. 4 Cir. 10/31/07), 969 So.2d 755, writ denied, 07-2486 (La.3/24/08), 977 So.2d 952 and writ denied, 08-0053 (La.3/24/08), 977 So.2d 953). Any non-cooperation must be “both material and prejudicial” in order for an insurer to avoid liability. Freyou, 149 So.2d at 699-00; see also Trosclair v. CNA Ins. Co., 93-1741 (La.App. 4 Cir. 5/17/94), 637 So.2d 1168, writ denied, 94-1596 (La.9/30/94), 642 So.2d 874. The insurer bears the burden of proving prejudice. Trosclair, 637 So.2d at 1170 (citing Fakouri v. Ins. Co. of N. Am., 378 So.2d 1083 (La.App. 3 Cir.1979)).

Under these facts, Chicago Title has failed to demonstrate how its insured’s election to assume and manage its own defense in light of a substantial conflict of interest is a failure to cooperate and, further, how such action materially prejudiced the insurer. According to the terms of the policy, Chicago Title may elect to defend Cozy Cottages, tender policy limits to Cozy Cottages, or pay or settle with third parties to cure Cozy Cottages’ title to the property at issue. All of these options are still available to Chicago Title. Thus, we find the trial court did not err in denying Chicago Title’s motion of summary judgment on this issue.

Duty to Defend

Chicago Title also argues that summary judgment is appropriate on the ground that it has no duty to defend Cozy Cottages against Plaintiffs claims because Chicago Title has the option of paying or settling with parties other than the insured, thereby “curing” the title, or of tendering policy limits to the insured, instead of defending the claims in litigation, and that the insurer has exercised the option to settle with Plaintiff. We find the trial court did not err in denying Chicago Title’s summary judgment on this ground.

As we explained in Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, pp. 18-19 (La.4/12/05), 907 So.2d 37, 51-52 (alterations in original):

the scope of the duty to defend under an insurance agreement is broader than the scope of the duty to provide coverage. Steptore v. Masco Constr. Co., 93-2064 (La.8/18/94), 643 So.2d 1213, 1218. A court must examine the well-pleaded allegations of the plaintiff’s petition to determine whether the plaintiff’s allegations “unambiguously exclude[]” coverage. Id. Unless unambiguous exclusion of all of the plaintiffs claims is shown, the duty to defend arises. Id. Thus, the duty to defend does not depend upon the outcome of the suit, as it does where the purported source of the duty is an indemnity agreement; rather, where the pleadings disclose “even a possibility of liability” under the contract, the duty is triggered. Id.

Chicago Title has not fulfilled its obligations under the contract of insurance as it has neither cured title nor tendered policy limits. According to the terms of the policy, the duty to defend does not terminate until claims have been settled or parties other than the insured have been paid. Neither has happened. Consequently, we find no error in the trial court’s denial of Chicago Title’s motion for summary judgment on this issue.

CONCLUSION

For the reasons above, we conclude the trial court did not err in denying Chicago Title’s and Cozy Cottages’ motions for summary judgment and, therefore, deny these writs.

WRITS DENIED.


author: RANDOLPH, Presiding

text:
    In the Matter of the Administration of the ESTATE OF Norma Aliene Cloud CROWELL, Deceased Caron D. Crowell v. The ESTATE OF Jackie Crowell TROTTER, Deceased By Alan Trotter, Administrator.
    No. 2012-CA-01229-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.

      James L. Martin, Madison, attorney for appellant.
    W.S. Stuckey, Jr., Webb Franklin, Greenwood, attorneys for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   RANDOLPH, Presiding

Justice, for the Court:

¶ 1. This ease involves a familial dispute between two sisters. Jackie charged her sister Caron with unduly influencing their mother to obtain a greater share of the family property. We affirm in part, reverse in part, and remand this ease to the Chancery Court of Sunflower County.

FACTS

¶ 2. Aliene Crowell (“Aliene”) died testate on October 4, 2006, survived by her two daughters, Caron Crowell (Caron) and Jacqueline Trotter (“Jackie”), both of whom were named co-executrixes of Al-lene’s estate, per Allene’s will. Jackie filed a complaint alleging that Caron had unduly influenced Aliene and converted assets into Caron’s name, diminishing Jackie’s inheritance.

¶ 3. Jackie was married to Alan Trotter and lived in North Carolina until her death on April 22, 2010. Caron practiced law in New Orleans, Louisiana until 1996, at which time Caron quit working. After Caron quit working in December of 1996, she spent the majority of the next four years either traveling the world or living with Aliene in Ruleville, Mississippi. While home, Caron helped her mother with personal and business affairs. Specifically, in 1997, Aliene sought Caron’s aid in completing a sale of timber existing on one of Allene’s properties. After meeting with Louis Jackson, CPA, to discuss the timber sale and her tax return, Aliene gifted the proceeds of the $180,000 sale equally to Caron and Jackie. Caron returned every year to meet with Jackson about her mother’s taxes. Caron also started using Jackson for her own tax returns starting in 1998.

¶ 4. Starting in 2000, Caron spent considerably more time with Aliene in Rule-ville, living with her for about six months in both 2000 and 2001. It was during this time period in September 2000 that Aliene transferred four bank certificates of deposit (CDs) totaling $237,985.16 to Caron. She went with her mother to each bank and was in the room with Aliene when she signed over the CDs. Caron testified that, at each bank, bank representatives suggested that Aliene sign the CDs over to Caron.

¶ 5. In between the transfer of the four CDs, Caron advised her mother to execute a Power of Attorney (POA), authorizing Caron to act for her. Caron arranged the meeting with an attorney to draft the POA, but Aliene drove. Caron testified that Aliene continued to manage her own business affairs, sign her own checks, and drive herself around in 2000 and 2001. In 2000, Allene’s doctor found her competent to handle her own business affairs. Caron described Allene’s mental health in 2001 as “lucid and strong,” with occasional forgetfulness. Caron left Ruleville in October 2001 and traveled to France, but she returned permanently in December 2001, at her mother’s request.

¶ 6. In January 2002, Aliene was diagnosed with moderate dementia, and the doctor found that she was no longer able to handle her business affairs. After Al-lene’s health deteriorated, and she became more forgetful, Caron testified that she started signing all of Allene’s checks in 2002 under her POA. Using her POA, Caron gifted $860,000 to herself in 2002 for “Asset Protection Control.” She testified that this was done upon the advice of Jackson. In 2003, Caron executed a more “fulsome” Power of Attorney, as Aliene had been diagnosed with Alzheimer’s disease. A few months later, Caron placed Aliene in the first of several nursing homes.

¶ 7. After Allene’s death, Allene’s will was admitted to probate, and Jackie and Caron were made co-executrixes, per Al-lene’s will. Caron was ordered to provide an accounting and inventory of estate property, and the trial judge authorized living expenses in the amount of $5,000 a month for Caron, who was to perform the majority of the duties of executrix.

' ¶ 8. Thereafter, Caron filed a motion to compel the estate to pay her the monthly living expenses, having received only $80,000 in more than thirteen months. Jackie responded that Caron was not entitled to receive the living expenses, as she had wrongfully converted estate assets, refused to relinquish estate property, and refused to provide an accounting as ordered by the court. The trial court “rescinded and held for naught nunc pro tunc” the portion of the previous order authorizing Caron to receive living expenses. The order also required Caron within twenty days to complete an inventory and assimilate all assets to be placed in trust, pending the outcome of the litigation, to which Caron complied.

¶ 9. Later, Jackie filed a complaint against Caron, alleging that she had unduly influenced Aliene into gifting Caron large sums of money, amounting to a conversion of assets belonging to the estate.

¶ 10. At trial, the court heard testimony from Alan Trotter, Jackson, and Caron. Jackson testified that Allene’s total cash assets on January 1, 2002, were $1,167,145. On May 16, 2008, the estate’s total cash assets were $212,469, representing a diminution of $954,696. Jacks on testified that the $1.17 million figure did not include the four CDs that were gifted to Caron in September 2000. Counting those four CDs, the total cash assets would have been $1,405,129. Not counting the pre-2002 transfers, Jackson testified that Caron had transferred $727,396 from 2002 until Al-lene’s death in 2006.

¶ 11. Starting in 2002, Caron gifted $10,000-to-ll,000 annually to herself every year until Allene’s death. Against Jackson’s advice, Caron did not provide the same gift to Jackie in 2002 and 2003. However, Caron, on Jackson’s advice, gifted Jackie $11,000 in 2004, 2005, and 2006. Jackson testified that, beginning in 2003, in addition to the annual gift Caron bestowed upon herself each year, Caron, with his support, used the power of attorney to pay herself a monthly living expense/salary for handling Allene’s affairs. Caron paid herself $44,000 in 2003, $48,000 in 2004 and 2005, and $28,000 in 2006. Jackson testified that he advised Caron that $4,000 a month was a fair amount ,to pay herself for the amount of money and land she was managing.

¶ 12. Caron testified that she was entitled to a reimbursement of $120,000 for expenses paid on behalf of Aliene, such as insurance, property taxes on several houses, medical bills, and repairs done to the various properties. Caron testified that she thought that Aliene needed a conser-vatorship as far back as 2002, but that Caron could not find an attorney to assist her. She testified that, from 2001 onward, she consulted at least forty-two attorneys. She estimated that she spent around $100,000 on legal advice.

¶ 13. The trial judge entered an opinion finding that the estate had demonstrated by clear and convincing evidence that a confidential relationship had existed between Caron and Aliene since “at least 1997.” Moreover, Caron failed to rebut the presumption that the inter vivos gifts were not valid. Specifically} the trial judge found “Caron’s testimony in regard to rebutting the undue influence presumption of [the 2000] CDs to not be credible.” The Court further found that “Caron did not act in good faith when transferring $727,396.00 worth of CDs into her name during the 2002 to 2008 accounting period,” and must remit that amount back to the estate. However, the Court found that the “$4000.00 per month for living expenses was a just compensation,” and therefore, “is not subject to repayment to Allene’s estate.” The Court also ordered Caron to pay $146,776 in interest on the $727,396. The Court further found that Caron was entitled to reimbursement for only $8,247.40 of the more than $28,000 submitted for reimbursement. Finally, the trial court found no evidence to justify punitive damages or attorneys’ fees against Caron.

¶ 14. Thereafter, the trial court held a hearing to correct mathematical errors in its judgment. Jackson was called back to correct and clarify the numbers. He clarified his testimony to state that the year 2000 CDs were included in the $727,396 and the $1.17 million. Additionally, a $105,910 account was held in Caron’s attorney’s vault. Jackson testified that he had duplicated it in his earlier calculations because he did not know it was held by Caron’s attorney. Jackson testified that the $105,910 was included in the $727,396 number.' In short, Jackson clarified at the hearing that the $727,396 number was correct other than adding interest to it. Thus, Caron owed the estate $727,396. After turning over the $539,000 determined to be held in trust by Caron’s attorney, the difference was what Caron was to pay of her own .money to restore the estate to what it should be, plus interest.

¶ 15. The court entered a judgment finding that the $727,396 that must be remitted to the estate actually earned only $25,686 in interest. As there was only $539,000 in assets currently in Caron’s attorney’s vault, Caron was ordered to pay the estate $214,082, minus a credit Caron was entitled to receive of $8,247.40, for a total judgment against Caron in the amount of $205,834.60.

¶ 16. After Caron filed a motion for reconsideration, the trial court entered an Amended Judgment, sua sponte adding another $100,000 to the judgment, finding that Caron had spent in excess of $100,000 of estate assets “on more than 40 attorneys seeking a legal opinion to support her position ... amounting] to a dissipation of the Estate’s assets.” The Amended Judgment increased the judgment against Car-on to $305,834.60. The trial court then denied Caron’s motion for reconsideration and motion for a new trial. The trial court entered an order removing Caron as co-executrix and appointing Alan as the sole executor of Allene’s estate. It is from the $305,834.60 judgment and order removing Caron as co-executrix that Caron now appeals.

¶ 17. Caron raises the following issues, verbatim:

I. There was no confidential relationship between Caron and her mother in January, 2000, and no undue influence.
II. Caron rebutted presumption of undue influence, if one did exist, by clear and convincing evidence.
III. Powers of attorney dated September 13, 2000, and June 25, 2003, are valid.
IV. The transfers pursuant to the September 13, 2000, power of attorney are proper.
V. $214,082.00 award not supported by the evidence.
VI. Determination of expenses incurred by Caron for benefit of estate deficient.
VII. Trial court’s sua sponte increase of judgment not justified.
VIII. Caron wrongfully removed as co-executrix.

In cross-appeal, the estate of Jackie raises the following issues, verbatim:

I. The lower court erred in failing to award Jackie a personal judgment against Caron for converting funds payable to Jackie on her mother’s death.
II. The lower court erred in not awarding a judgment against Caron for the unauthorized living expenses she paid herself from her mother’s assets.
III. The lower court erred in failing to award Jackie a judgment in order to equalize the gifts Caron received from her mother for the annual exclusion gifting.
IV. The lower court erred in failing to award Jackie punitive damages and attorney fees.

¶ 18. Because we reverse and remand on Issue VII of the direct appeal and find substantial evidence supporting the chancellor’s findings on all other raised issues, we will limit our discussion to whether the trial court erred in sua sponte increasing the judgment by $100,000 for Caron’s estimated expenditures on attorney’s fees.

STANDARD OF REVIEW

¶ 19. This Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Barton v. Barton, 790 So.2d 169, 175 (Miss.2001) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss. 1996)). “This is as true of ultimate facts as of evidentiary facts.” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). We must “examine the entire record and accept ‘that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.’ ” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987) (quoting Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983)). “[F]inally, the trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses.” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987).

ANALYSIS

¶ 20. Caron argues that the trial court’s finding that she spent $100,000 of the estate’s money on attorney fees is contrary to the facts in evidence. Caron further argues that ordering her to pay $100,000 increases the value of the estate by $100,000 over the value established by Jackson.

¶ 21. We find that the trial court erred in sua sponte, post-judgment, increasing the judgment by $100,000 for Caron’s estimated expenditures on attorney fees. The record is inconclusive about both the amount of money spent on attorney fees, and from whose money the funds to pay the legal fees came. The trial court noted that Caron testified that the money came from her own funds, which was the only evidence presented.

¶ 22. At trial, Caron testified that she had seen at least forty-two lawyers. When asked how much she had spent on legal fees, Caron testified “It’s a lot.” When asked if she had paid for legal fees out of her own money, Caron responded:

A. Well, it depends — as long as Mother was alive, I think I used her funds. I didn’t spend that much really. You know, I was trying to get good legal advice for her and get her totally protected. A lot of the attorneys didn’t charge. But I don’t know how much. I don’t know how much it was. I don’t think it was all that much. Then since her, I have paid my own attorneys fees, and it’s been a lot. I — you know, there’s — it’s been a lot.
Q. Well, give me an estimate.
A. $100,000,1 think.
Q. In attorney fees?
A. Yes, that’s a guesstimate, estimate.

¶ 28. The record does not disclose substantial evidence to support a $100,000 increase in judgment. Caron “guesstimated” the attorney fees to be around $100,000. No testimony of bank statements, canceled checks, bills from attorneys, or any other form of evidence was offered to support or contest Caron’s “guesstimate.”

¶ 24. If Caron actually spent $100,000 on legal fees, the only testimony before the court was that she paid most of the fees out of her own pocket. The $100,000 “guesstimate” followed her statement that she has paid “a lot” of her “own” legal fees. After Caron testified that she had spent a lot of her own money, counsel asked Caron for an estimate. “$100,-000.00, I think” was responsive to a question asking how much of her own money she had spent, which is not substantial evidence to support the trial court’s finding.

¶ 25. Jackie’s estate argues that, since Caron had been unemployed since 1996, it would have been impossible for her to have .paid for legal fees with her own money. However, Caron testified that she had “about $150,000 of savings, some in an IRA.” Although Caron was unemployed, she received a considerable amount for “living expenses” from 2003-2006. The amount paid as living expenses was found by the trial judge to be a reasonable fee for her constant services on behalf of Al-iene.

¶ 26. The record lacks substantial evidence supporting that Caron actually spent $100,000 of the estate’s money. Caron’s ambiguous and unsupported $100,000 “guesstimate” is not substantial evidence. We find such a conclusion is in error.

CONCLUSION

¶ 27. The trial court’s sua sponte award of an additional $100,000 post-judgment, is reversed. The trial court’s judgment is supported by substantial evidence on all other issues and is affirmed. Accordingly, the judgment of the Chancery Court of Sunflower County is reversed in part and affirmed in part and the ease is remanded to the chancery court for entry of judgment in accordance with this opinion.

¶ 28. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Jackie's estate was substituted as the party plaintiff after her death. Alan was appointed as co-executor in the place of Jackie.

      . Caron could not provide the identities of any specific persons who recommended changing the ownership of the CDs.

      . In 2002, the gift exclusion was only $10,000. It rose to $11,000 starting in 2003.

      . This issue is procedurally barred as it was never raised or ruled upon by the trial judge. InTown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 718 (Miss.2011) (citing III. Cent. R.R. Co. v. Byrd, 44 So.3d 943, 948 (Miss. 2010)).


author: COLEMAN, Justice,

text:
    Charles Edward MOORE a/k/a Charles Moore a/k/a Charles E. Moore v. STATE of Mississippi.
    No. 2013-KA-00787-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2014.
    Office of State Public Defender by Benjamin Allen Súber, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, John R. Henry, Jr., attorneys for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. Charles Edward Moore appeals his conviction from the Forrest County Circuit Court for felony driving under the influence (DUI), third offense. Moore raises one assignment of error on appeal, arguing that there was insufficient evidence to support his conviction. We hold that Moore’s assignment of error is without merit and affirm his conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 26, 2011, Officer Derek Holmes was patrolling for the Hattiesburg Police Department, and he observed a gold Chevrolet Cavalier traveling southbound on McCall Avenue. Holmes stated that the vehicle appeared to be speeding and that, when he turned on his radar, he clocked the vehicle traveling forty-one miles per hour. The posted speed limit was thirty miles per hour. Holmes stated that he then turned on his blue lights and started following the vehicle. The driver of the vehicle did not seem to notice Holmes at first because he did not pull over. Holmes then turned his siren on and off.

¶ 3. The vehicle in question then neared Officer Jonathan Denson, who was on the side of the road preforming a separate traffic stop. The vehicle stopped in the middle of the road next to Denson. Den-son testified that, when the vehicle was stopped next to him, the driver and the passenger of the vehicle did not look at him; they kept looking straight ahead. The vehicle then moved again, taking a right onto Chapel Road about forty to fifty feet in front of Denson. The vehicle continued about 100 more feet and then stopped in the middle of the road.

¶ 4. Once the vehicle had stopped, Holmes approached the vehicle and identified the driver as Charles Edward Moore. Holmes stated that he could smell a strong odor of alcohol coming from the vehicle and on Moore’s breath. When Moore stepped out of the vehicle, he leaned against the side of the vehicle for a few seconds before he stepped to the back of the vehicle. Holmes testified that Moore said he had no disabilities and was not on any medications. Holmes further testified that Moore was swaying, his eyes were bloodshot, and his speech was slurred. Holmes said he asked Moore if he had been drinking, and Moore admitted he had drunk one-fourth of a twenty-four-ounce beer.

¶ 5. Denson then arrived to assist Holmes. Denson stated that he saw, within the vehicle, in plain view, one pint-sized bottle of vodka. After further investigation, he found a second bottle under the passenger seat. One of the bottles was three-quarters full and the other was nearly empty. Moore admitted to having a “swallow” of the bottle that was three-quarters full, and stated that the other bottle belonged to the passenger of the car. Holmes then read Moore his Miranda rights and arrested him for felony DUI. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Holmes stated that he arrested Moore because he was swaying and leaning on the car. Also, Moore had admitted to drinking, and there was a strong odor of alcohol on his breath and emitting from the car. The two pint-sized bottles never were entered into evidence.

¶ 6. Due to the fact that Holmes and Denson were motorcycle officers, Officer Thomas Robinson arrived to transport Moore to the station. Robinson testified that, in his opinion, based on knowledge he has acquired as an officer, Moore was under the influence of alcohol. Robinson stated:

Well, [Moore] was sweating at the time when I came in contact with him.- He had the smell of alcoholic beverage on him. ' He was uncoordinated. When I took him to my car, I actually had to hold him by his arm to help him from the vehicle....
And once he did get to my car, I had to actually assist him a little bit to get all the way in the vehicle.

¶ 7. At the station, no one asked Moore to submit to a field sobriety test, but Moore submitted to an intoxilyzer test that Holmes was certified to give. The intoxi-lyzer gave an insufficient reading, and Holmes stated it was because Moore would not properly blow into the machine. The camera that was supposed to tape Moore taking the intoxilyzer test malfunctioned, and no tape exists. At trial, Holmes stated, Moore “would blow into [the intoxilyzer] and then he would suck in and he’d puff his cheeks up like he was going to blow in it and no air would go through it. He never gave two full blows through the calibration points.”

¶ 8. The jury found Moore guilty of felony DUI, third offense. Moore appealed on the sole issue of whether there was sufficient evidence to establish he was driving under the influence.

STANDARD OF REVIEW

¶ 9. The Court will disturb the jury verdict for a challenge to the sufficiency of the evidence only when “the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that [a reasonable jury] could not have found beyond a reasonable doubt that the defendant was guilty.” Young v. State, 119 So.3d 309, 315 (¶ 18) (Miss.2013) (quoting Hughes v. State, 983 So.2d 270, 275-76 (¶ 10) (Miss.2008)). Stated another way, the Court will disturb a jury verdict when the verdict is “so contrary to the overwhelming weight of evidence that allowing it to stand would sanction an unconscionable injustice.” Gilpatrick v. State, 991 So.2d 130, 134 (¶ 22) (Miss.2008) (citing Taggart v. State, 957 So.2d 981, 987 (¶ 11) (Miss.2007)). The Court views the evidence in a light most favorable to the state. Young, 119 So.3d at 315 (¶ 18).

DISCUSSION

Whether the evidence was insufficient to support the verdict against Charles Edward Moore.

¶ 10. Moore argues that the State failed to present sufficient evidence that he was under the influence of intoxicating liquor. Moore states that, under Mississippi Code Section 63-11-30(1), there was neither a record of Moore’s blood alcohol content nor proof that the intoxilyzer machine was working properly. See Miss.Code Ann. § 63-11-30(1) (Rev. 2013). Further, Moore admitted to drinking only a quarter of a beer and a “swallow” of vodka, and he was cooperative and not belligerent. Despite Holmes’s testimony that Moore told Holmes he had no disabilities, Moore’s attorney argued at trial and on appeal that it was possible Moore had a disability keeping him from blowing properly into the intoxilyzer.

¶ 11. The State maintains that sufficient evidence exists under Mississippi’s so-called, and, as discussed more fully below, inaccurately termed, common law DUI rule, and “[i]t is not necessary or required to have evidence from ‘field sobriety’ tests or ‘intoxilyzer’ results for the jury to find and [the] court[ ] to affirm a DUI conviction.” The State cites Jefferson v. State, 138 So.3d 263 (Miss.Ct.App. 2014), arguing that what we heretofore have referred to as common law DUI exists where blood alcohol results are unavailable, and other sufficient evidence exists to show the driver of a vehicle was impaired. Id. at 266 (¶ 11). The State argues that Moore’s speeding, stopping in the center of the road, admission to drinking some alcohol, smell of alcohol, swaying, bloodshot eyes, and slurred speech illustrate sufficient evidence.

¶ 12. What has inaccurately been referred to as common law DUI actually stems from a statute, Mississippi Code Section 63-11-80, which states in pertinent part: “(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor.... ” Miss.Code Ann. § 63 — 11—30(1)(a) (Rev. 2013). The Court has interpreted Section 63 — 11—30(1)(a) to refer to persons not tested for their blood alcohol content or “persons not registering above .10 percent blood alcohol level.” Leuer v. City of Flowood, 744 So.2d 266, 268 (¶ 8) (Miss.1999) (quoting Young v. City of Brookhaven, 693 So.2d 1355, 1363 (Miss.1997) (Sullivan, P.J. concurring in part, dissenting in part)). Therefore, a defendant could be subject to Section 63-11-30 without specifically testing above the legal limit. The Court has found a defendant guilty of common law DUI under circumstances in which other sufficient evidence exists to show that the defendant’s “ability to operate the vehicle was impaired by the consumption of alcohol.” Young v. State, 119 So.3d 309, 315 (¶ 19) (Miss.2013). The Court has defined sufficient evidence to include “slurred speech, bloodshot eyes, or erratic driving.” Evans v. State, 25 So.3d 1054, 1059 (¶ 11) (Miss. 2010).

¶ 13. In the instant case, although it is unclear whether Moore argues that the intoxilyzer machine was not working properly or that he was unable to blow correctly due to a possible disability, Moore contends that his blood alcohol content has not been established. However, as outlined above, under common law DUI, an arrestee’s blood alcohol level is not necessary.

¶ 14. The State presented unrefuted evidence that Moore drank a “swallow” of vodka and one-fourth of a beer. Although, alone, the fact that Moore admitted to consuming a small amount of alcohol may not be sufficient evidence for common law DUI, the State presented other evidence. Moore’s speech was slurred. He had to lean on his vehicle for support. He stopped in the middle of the road twice. He was not able to walk to Robinson’s police vehicle without aid. He seemed uncoordinated, had bloodshot eyes, and smelled of alcohol. Therefore, we hold that the evidence is sufficient to show that Moore was driving under the influence, and the assignment of error is without merit.

CONCLUSION

¶ 15. Based on all of the testimony and evidence in the instant case, the Court holds that Moore’s felony DUI, third offense conviction is supported by sufficient evidence, and the Court affirms the'judgment of the Forrest County Circuit Court.

¶ 16. CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE, THIRD OFFENSE, AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH CREDIT FOR TIME SERVED TO BE APPLIED, AFFIRMED. APPELLANT SHALL PAY ALL COSTS OF COURT, A FINE OF $2000, AN ASSESSMENT OF $100 TO THE MISSISSIPPI CRIME VICTIM COMPENSATION PROGRAM AND RESTITUTION OF $250 TO THE FORREST COUNTY PUBLIC DEFENDER FUND, WITH CONDITIONS.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ„ CONCUR.