author: STEWART, J. SEXTON, J. (Ad Hoc),

text:
    FIRST ALARM FIRE EQUIPMENT, INC., Plaintiff-Appellant v. SOUTHLAND INTERNATIONAL OF LOUISIANA, INC., Defendant-Appellee.
    No. 47,823-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 8, 2013.

      Theus, Grisham, Davis & Leigh, L.L.P., Monroe, LA, by Phillip D. Myers, for Appellant.
    Murphy, Rogers, Sloss & Gamel, New Orleans, LA, by Peter B. Sloss, John H. Musser, Culpepper & Carroll, PLLC, Jonesboro, LA, by Bobby L. Culpepper, for Appellee.
    Before STEWART, CARAWAY, DREW, LOLLEY, SEXTON (Ad Hoc), JJ.
   STEWART, J.

hThe plaintiff, First Alarm Fire Equipment, Inc. (“First Alarm”), filed suit against the defendant, Southland International of Louisiana, Inc. (“Southland”), for damages from the alleged breach of a contract which gave First Alarm the option of “first choice” in purchasing trucks owned by Southland. Southland filed a motion for summary judgment on the grounds that First Alarm would be unable to prove that it sustained any damages from the alleged breach. The trial court granted the summary judgment and dismissed First Alarm’s claims. On this appeal by First Alarm, we affirm the trial court’s judgment.

FACTS

First Alarm, a company located in Jonesboro, Louisiana, buys and converts used trucks into fire trucks for fire departments. Southland is a new and used truck dealer with locations in Gray and Harahan, Louisiana. In 1998, Southland sold a fleet of new trucks to the Louisiana Department of Agriculture (LDA). As trade-ins, it received 86 used 1991 Ford F-800 trucks. Southland did not receive the trucks all at once. The trade-ins were received as the new trucks were manufactured and put into use by the LDA.

In March 1998, Roger Young, First Alarm’s president, called Ed Burgard, Southland’s sales manager, about the possibility of buying the used LDA trucks. On April 17, 1998, Burgard faxed five pages to Young. The message on the fax cover sheet stated as follows:

ATTACHED IS A COPY OF BUYER’S ORDER.
PER YOUR REQUEST: I-10 UNITS
II-20 UNITS
21-UNITS
|2YOU WILL HAVE 1ST. CHOICE ON THESE UNITS. WE WILL KEEP YOU UP TO DATE WHEN PRODUCTION GETS CLOSER.

Also faxed was a two-page “vehicle buyers order” dated 4-17-1998. The order provided, in pertinent part, as follows:

1991 FORD F800-188" WB- 1-10 UNITS-YOUR CHOICE $13,500.00
1-20 UNITS- $13,250.00
21-30 UNITS- $13,000.00
30 OR MORE $13,000.00
(STATE OF LA-TRADE-IN’S)
(SEE LIST ATTACHED W/SERIAL # & SPECIFICATIONS)
The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning same has been made or entered into, or will be recognized. I hereby certify that no credit has been extended to me for the purchase of this motor vehicle except as appears in writing on the face of this agreement.
THIS ORDER IS NOT A BINDING CONTRACT.

The document was signed by Burgard as salesman. Attached was a two-page list of the trade-in vehicles. On May 4, 1998, Young signed the order and faxed it to Burgard.

In January 1999, Southland sold seven of the trucks to First Aarm, which paid $13,000 per truck. Young rejected another truck offered to him because it had a broken windshield. In March 1999, First Aarm purchased another three trucks for $13,000 per truck. Prior to this purchase, Young learned that Southland sold the remaining 76 trucks to another party.

In January 2000, First Aarm filed suit against Southland, alleging breach of contract. It requested damages for the loss of the profits it would have earned had it been able to purchase and resell the trucks. It further | .¡requested damages for Southland’s bad faith breach of contract, as well as attorney fees.

In its answer, Southland denied that there was a contract to sell all of the LDA trucks to First Aarm. It also asserted numerous defenses. Among these, South-land contended that even if a contract to sell existed between the parties, First Aarm had no claim for consequential or incidental damages, loss of profits or attorney fees. Additionally, Southland alleged that First Alarm’s alleged damages were “purely speculative and unrecoverable.”

In January 2008, Southland filed a motion for summary judgment. It argued that First Aarm could not prove that it had a contract for the purchase of the remaining 76 trucks. Southland also contended that First Aarm could not prove that it sustained any damages resulting from the alleged refusal to sell the remaining 76 trucks to First Aarm. The matter was argued before Judge Jimmy Teat in March 2008. In September 2008, Judge Teat filed written reasons for judgment wherein he denied summary judgment, finding that “there are many genuine issues of material fact.” Judgment in conformity with the written reasons was signed on February 3, 2009.

In October 2011, Southland filed a motion to recuse Judge Teat; the motion was granted. The case was reassigned to Judge Jenifer Ward Clason, and a bench trial was set to commence on April 9, 2012.

In February 2012, Southland reurged its motion for summary judgment. Southland did not reurge its argument that there was no proof of La contract between the parties for the sale of the remaining 76 trucks. Instead, it claimed only that First Alarm could not carry its burden of proving that it sustained damages as a result of the alleged breach of contract. Southland asserted that, at a minimum, it was entitled to a partial summary judgment striking First Alarm’s claim for lost profits on the grounds that it had no admissible evidence to establish that it sustained any loss of profits in this matter. In support of its motion, Southland submitted a variety of exhibits including numerous depositions and financial documents.

On March 13, 2012, the motion was argued. Southland contended that First Alarm could not prove an essential element of its claim, i.e., that it suffered damages. Specifically, Southland asserted that of the 10 trucks First Alarm purchased and retrofitted, it took six years to sell the two that were not presold. Additionally, First Alarm’s financial records demonstrated that it did not have the money to purchase the additional 76 trucks and it never sought financing to obtain them. Southland argued that First Alarm could only speculate that it might have made a profit and that such speculation was insufficient to prove damages.

First Alarm contended that it had a binding contract with Southland and that it was allowed to purchase 10 of the trucks for $13,000, the per unit price for purchasing 21 units or more. First Alarm further maintained that the deposition testimony it submitted in opposition to Southland’s motion for summary judgment showed that there were several sources from which it could have readily obtained funds to purchase the remaining trucks’ had | ¿Southland not sold them to a competitor. Additionally, it argued that it could prove the loss of profit through Young’s testimony, which the court could accept or reject. However, such a determination would require a credibility call, which would be inappropriate on a motion for summary judgment.

The trial court expressed concern that First Alarm had not developed the mathematical evidence of lost profit in the 12 years since it filed suit and that it would be “pulling things out of the air” in order to determine whether First Alarm sustained damages. The court noted that First Alarm had not had an accountant prepare a lost profits summary under La. C.E. art. 1006. The trial court granted Southland’s motion. On March 21, 2012, the trial court signed a judgment granting summary judgment in Southland’s favor and dismissing First Alarm’s claim with prejudice at its cost.

First Alarm appeals.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is 1 flavored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Eason v. Finch, 32,157 (La.App.2d Cir.8/18/99), 738 So.2d 1205, writ denied, 99-2767 (La.12/10/99), 751 So.2d 861; Thielmier v. Louisiana Riverboat Gaming Partnership, 31,739 (La.App.2d Cir.3/31/99), 732 So.2d 620; Mosley, supra.

On a motion for summary judgment, the district court cannot make credibility determinations or weigh conflicting evidence. In deciding a motion for summary judgment, the district court must assume that all affiants are credible. Nicholson v. Horseshoe Entertainment, 46,081 (La.App.2d Cir.3/2/11), 58 So.3d 565, writ denied, 2011-0679 (La.5/20/11), 63 So.3d 980; Russell v. Eye Associates of Northeast Louisiana, 46,525 (La.App.2d Cir.9/21/11), 74 So.3d 230.

Whether First Alarm was granted a right of first refusal and whether South-land breached the contract that granted that right are not at issue on the motion for summary judgment. At issue is whether First Alarm will be able to prove that it sustained any damages from the alleged breach of the right of first refusal, or first choice, on the trucks.

The plaintiff has the burden of proving the damage suffered by him as a result of a breach of contract. Jackson v. Lare, 34,124 (La.App.2d Cir.11/1/00), 779 So.2d 808. Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived. La. C.C. art.1995. When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. La. C.C. art.1999.

In general, lost profits are calculated by deducting the expenses that would have been incurred if the parties had complied with the contract from the gross revenues that would have been derived from the contract. Rosbottom v. Office Lounge, Inc., 94-894 (La.App. 3d Cir.4/5/95), 654 So.2d 377. Loss of profits must be proved with reasonable certainty and cannot be based on speculation or conjecture. Simpson v. Restructure Petroleum Marketing Services, Inc., 36,508 (La.App.2d Cir.10/23/02), 830 So.2d 480; Rosbottom, supra. A party’s own detailed testimony as to his loss may be sufficient to support an award for loss of profits. Rosbottom, supra. But generally a claim for lost profits cannot rest solely on the testimony of the |sinjured party without being substantiated by other evidence. Simpson, supra. The “lack of even a minimal degree of detail or specificity as to the extent of loss precludes an award.” Jackson, p. 8, 779 So.2d at 814.

First Alarm argues that the evidence it presented in opposition to the motion for summary judgment established that there are genuine issues of material fact as to whether it could have made a profit on the additional trucks, thus precluding summary judgment. It points to evidence indicating that it could have obtained financing to purchase more than the 10 trucks it bought from Southland. First Alarm also asserts it could have made a profit of $10,000 to $15,000 per truck on any additional truck it could have purchased. These arguments lack merit.

The evidence submitted in support of and in opposition to summary judgment shows that First Alarm never agreed to purchase a specific number of trucks. At most, Young indicated to Burgard that he was “pretty sure” he wanted all the trucks. This suit was premised on the claim that First Alarm wanted and was denied the right to buy all the trucks. However, by the time of arguments on the motion for summary judgment, the claim was that First Alarm would have perhaps purchased 25 trucks. Essentially, First Alarm would leave it up to the trial court to determine the number of trucks that it could have bought and the profit it could have made.

Young presented evidence that showed First Alarm made a profit on the trucks sold to Catahoula Parish. It made a profit of $13,793 on each of the three pumper trucks and $9,600 on each of the five tanker trucks. Young estimated that First Alarm could have made $10,000 to $15,000 per 18truck if it had purchased all of them. He indicated that he planned to sell the chassis of some of the trucks and that he would have made at least $5,000 to $8,000 per chassis. We note that it took First Alarm six years to finally sell all 10 of the trucks it purchased.

Even though First Alarm may have made a profit on the 10 trucks it purchased and sold, the evidence offered shows that it had no firm plans for profiting from any additional trucks it might have purchased from Southland. In his deposition, Young testified that he planned to keep some of the trucks (30 to 40) to refurbish and sell the rest (36 to 46) as is. He claimed that he had contacted potential buyers, such as a guy in Texas who was allegedly interested in buying some of the trucks at $18,000 apiece. Aside from this hearsay claim, Young admitted that he had no written agreement or firm commitment for selling any of the trucks, those he planned to sell outright and those he planned to refurbish. Young also admitted that Southland’s alleged breach did not prevent First Alarm from making bids and fulfilling any orders for fire trucks or tankers.

The evidence offered shows that First Alarm did not have financing in place to fund the purchase of the additional trucks. Young spoke with Wilbur ‘Woody” MacDonald, Jr., the chief executive officer of Jackson Parish Bank, and Rex Garner Johnson, the president of Hodge Bank & Trust, about possible financing. But he did not make any formal application or arrange for any specific amount of financing. He claimed there was no need once he learned that Southland had sold the 76 remaining trucks. Even so, the deposition of testimony of MacDonald and Hodge indicates that First |1ftAlarm would not have obtained the funds needed to finance the purchase of the 76 remaining trucks. Moreover, in the absence of evidence as to what funds would have been available to First Alarm, it cannot be determined how many trucks it could have purchased.

MacDonald indicated that Jackson Parish Bank, which had a long history of loaning money to First Alarm and Young, would have been willing to finance some of the trucks, but that it never agreed to finance the purchase of any specific number of trucks or loan First Alarm a specific amount of money. He indicated that the bank could have loaned First Alarm up to its legal lending limit, which he believed was $600,000. However, he also indicated that the bank would want a cushion of about $25,000 to $50,000 below the legal lending limit. An affidavit by the bank’s vice-president, Jo Ann Teat, indicated that its legal lending limit in 1998 was $500,000 and that it was raised to $625,000 in March 1999. Significantly, Teat’s affidavit indicated that in February 1999, the combined balance of the outstanding loans by Jackson Parish Bank to First Alarm and Young totaled almost $500,000. This outstanding balance would have been considered part of the lending limit and greatly reduced the amount available to First Alarm for financing the purchase of additional trucks.

Hodge Bank & Trust financed First Alarm’s purchase of the three trucks in March 1999. Johnson stated in his deposition that his bank would have entertained a request to finance the purchase of 10 additional trucks, but it would have had to look “much harder” at and have “some conversation” about financing the purchase of 20 trucks.

In From our de novo review of the evidence submitted in support of and in opposition to Southland’s motion for summary judgment, we find that First Alarm has failed to show that there is a genuine issue of material fact as to whether it was damaged by the breach alleged in this case. Had First Alarm been allowed the opportunity to purchase the remaining 76 trucks at a rate of $13,000 per truck, the cost would have been $988,000. The evidence presented by the parties strongly suggests that it is unlikely that First Alarm or Young would have been able to secure the necessary funding from the two mentioned banks. Notably, First Alarm cannot say how many trucks it intended to purchase or how many trucks it could have purchased. While Young’s deposition and answers to interrogatories show that First Alarm was able to make a profit from the 10 trucks it did purchase and retrofit, without a firm showing as to the number of trucks it intended to buy and would have been able to finance, the amount of damages claimed is based solely on conjecture.

First Alarm did not show whether the additional trucks purchased would be sold as pumpers, tankers, or for the chassis alone. This number is necessary in order to determine, with any degree of specificity, the amount of profit that would have been obtained from the sale of the trucks. Without such details, the claim for loss of profits is merely speculative.

We find that First Alarm will not be able to meet the burden of proving, with any degree of specificity, that it sustained damages, including loss profits or otherwise. In the absence of proof of this necessary element of its breach of contract claim, we find that the trial court did not err in h {.granting the summary judgment and dismissing First Alarm’s claims against Southland.

CONCLUSION

For the reasons stated above, we affirm the trial court’s summary judgment in favor of Southland and dismissal of First Alarm’s claim. Costs of this appeal are assessed to First Alarm.

AFFIRMED.

SEXTON, J. (Ad Hoc), dissents with written reasons.

CARAWAY, J., dissents for the reasons assigned by Judge Sexton.

SEXTON, J. (Ad Hoc),

dissenting.

| ,At issue here is the question of whether the plaintiff sufficiently countered the defendant’s summary judgment contention that the plaintiff, could not prove that it lost profit because of the failure of the defendant to honor its first refusal contract with the plaintiff. There is no issue at this time with the regard to the question of first refusal. The sole question is that of the proof of any profits.

I suggest that to avoid summary judgment the trial court and the majority seem to want the plaintiff to prove these damages to a certainty. Such proof is not even the standard on the merits. As a general rule lost profits are recoverable on an action for breach of contract where the amount can be proved with reasonable certainty. These profits may not rest on speculation or conjecture unless direct evidence is unavailable to establish this element of damage. Customary or foreseeable profit may be resorted to as a measure of damage where there is no direct evidence of the exact extent of loss. However, broad latitude is given in proving loss profits because this element of damages is often difficult to prove and mathematical certainty or precision is not required. ScenicLand Const. Co. LLC. v. St. Francis Medical Center, Inc. 41,147 (La.App.2d Cir.7/26/06) 936 So.2d 247. When damages are insusceptible of precise management, much discretion is left to the trial court for the reasonable ascertainment of these damages. La. C.C. art. 1999.

I have no issue with the statement of the majority that the two bank presidents’ depositions indicate that the plaintiff could not have obtained financing for the remaining 76 trucks. However, that is not the question.

|2The deposition of Mr. McDaniel, the Chairman and CEO of Jackson Bank, and the affidavit of Ms. Teek, the vice president of that bank, indicates that there was somewhere between $50,000 and $75,000 available in plaintiffs line of credit with that bank. The president of the Hodge Bank who financed the last three trucks of the 10 which plaintiff originally managed to buy in March of 1999 testified that this bank would likely have financed at least another 10 trucks. The president further testified that they might possibly finance another 20 but they would have to look very hard at any amount over 10.

Of the 10 trucks actually bought, the plaintiff testified that he made $13,800 on each of the three pumpers and $19,600 on each of the five tankers. The record reflects that the plaintiff had funds available to him at the lending institutions, though probably not sufficient funds to finance the full 76 of the trucks. It further contains the plaintiffs testimony that he had made profits on the initial transaction.

Thus, the plaintiff presented clear evidence of making a profit selling these trucks previously. The bank officers indicated the significant possibility of financing being available to purchase some of the trucks. While probably not able to prove lost profit on all the trucks, this record reflects plaintiff should have the opportunity to show a lost profit on some of the trucks. Thus, I see significant questions of material fact, and respectfully dissent.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    The RETAIL MERCHANTS ASSOCIATION, INC., d/b/a Credit Bureau of Louisiana, Plaintiffs-Appellants v. Christopher FORRESTER, Defendant-Appellee.
    No. 47,936-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Simmons, Morris & Carroll, L.L.C., Shreveport, LA, by B. Trey Morris, Justin C. Dewett, G. Adam Savoie, for Appellants.
    Robert I. Thompson, III, Shreveport, LA, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

|,At issue in this case is whether the trial court erred in denying the demands of the plaintiff, The Retail Merchants Association, Inc., d/b/a Credit Bureau of Louisiana, in this suit on an open account against the defendant, Christopher Forres-ter. We now affirm the trial court’s judgment dismissing the plaintiffs claim.

FACTS

On January 27, 2008, Forrester received outpatient medical services from Willis-Knighton Medical Center (“Willis-Knigh-ton”) in Bossier City, Louisiana. By letter dated November 4, 2009, the Credit Bureau of Louisiana, acting on behalf of Willis-Knighton, demanded payment of the balance due in the amount of $4,363, within 30 days.

On December 18, 2009, the plaintiff, as appointed agent for Willis-Knighton, filed suit on an open account against Forrester seeking payment of the balance due plus legal interest, costs, and reasonable attorney fees as provided by La. R.S. 9:2781. The petition alleged that Forrester failed to pay the amount due within 30 days of the demand letter.

In answer, Forrester asserted that Willis-Knighton should be estopped from asserting a claim against him because it failed to timely file a claim with his insurer and thereby voided his coverage. He also asserted that Willis-Knighton failed to mitigate its damages by filing an insurance claim. Lastly, Forrester asserted a third party demand against his insurer, Employers Health Network.

At trial, Todd Barnes, an account manager for Willis-Knighton, testified for the plaintiff. Barnes identified a copy of the itemized invoice of | athe services rendered to Forrester on January 27, 2008, with a balance due in the amount of $4,363. Barnes also identified the contract signed by Forrester and witnessed by a Willis-Knighton employee on January 27, 2008. The contract is Willis-Knighton’s registration form. Barnes testified that each patient is required to sign the same contract for any services provided by the hospital and that the contract provides that the patient is responsible for all medical bills incurred. He testified that nothing had been paid on the balance due. When questioned by Forrester’s counsel, Barnes admitted that he had no documentation of any claim having been submitted to For-rester’s insurer or of any denial of such claim by the insurer. Barnes also had no documentation of any statements having been sent to Forrester prior to the demand letter on November 4, 2009.

Forrester testified that he has maintained medical insurance through his employer, Bass Pro Shops, since April 2001, and that he gave his insurance card to Willis-Knighton in 2008 when he obtained medical services. Forrester testified that he first learned of the balance due upon receipt of the demand letter. Upon contacting his insurer, he learned that it had no record of any claim having been filed and that any claim filed more than one year after services were rendered would be denied. The trial court obtained a copy of Forrester’s current medical insurance card, but Forrester indicated that it was not the same insurer as in 2008.

The trial court found that Forrester received medical care in 2008, that he signed a contract agreeing to pay for the services and assigning his insurance benefits to Willis-Knighton, that he had insurance coverage at the |3time, and that he provided his insurance card upon admission. The trial court also found no evidence of any effort by Willis-Knighton to recover payment until the demand letter by its agent. The trial court concluded that Willis-Knighton failed to mitigate its damages. A judgment denying the plaintiffs claim was signed on February 10, 2012.

The plaintiff filed a motion for a new trial, which the trial court denied. This appeal followed. The plaintiff asserts that the trial court erred in failing to find For-rester personally responsible for paying the full amount of the debt. The plaintiff also asserts that the trial court erred in finding that Willis-Knighton failed to mitigate its damages.

DISCUSSION

An open account is “any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.” La. R.S. 9:2781(D). See also Frey Plumbing Co., Inc. v. Foster, 2007-1091 (La.2/26/08), 996 So.2d 969, for a discussion of what constitutes an open account. An open account includes debts incurred for professional services, such as medical services. La. R.S. 9:2781(D).

The plaintiff in an action on an open account must prove his claim by a preponderance of the evidence. Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122 (La.App. 2d Cir.1990). The amount due on the account is a question of fact subject to the manifest error standard of review. Id. To prove his case, the plaintiff must show that a record of the account was kept in the course of business and introduce supporting testimony of its accuracy. \Jd. Once a prima facie case is made, the defendant must prove that the account is inaccurate or that he is entitled to certain credits. Id.

In this case, the plaintiff introduced a copy of an invoice that was attached to the demand letter sent to Forrester on November 4, 2009. Forrester does not dispute that he received the medical services itemized on the invoice. Instead, he asserts that, due to Willis-Knighton’s failure to file a claim with his medical insurer, he does not owe the balance shown on the invoice. The plaintiff argues that, regardless of whether Willis-Knighton filed a claim with Forrester’s insurer, he is still personally responsible for the full amount of the debt. The plaintiff asserts that, by signing the registration form, Forrester promised to pay the customary charges in full and acknowledged that the filing of an insurance claim by Willis-Knighton would in no way reheve him of the obligation to pay. The plaintiff further asserts that nothing in the registration form imposes a mandatory duty on Willis-Knighton to seek contribution from an insurer before seeking payment directly from the party who incurred the services.

The registration form/contract signed by Forrester on January 27, 2008, includes a section entitled “Payment Guaranty and Assignment of Insurance Benefits.” Under this provision, the patient, referred to as the “Debtor,” agrees to “pay in full ... customary charges for the goods and services rendered” to him by Willis-Knigh-ton and acknowledges that the indebtedness is due and payable at the discretion of Willis-Knighton during the hospitalization or in full at the time of discharge. The provision goes on to state, with emphasis added to the most relevant part:

_jjl acknowledge that, upon proof of acceptable insurance coverage, [Willis-Knighton], in its sole discretion, may reduce the amount of indebtedness due and payable during this hospitalization and the balance due at discharge. In such event, I understand that all deductibles, co-insurance, non-covered charges and other items not paid by insurance or other third-party payors shall be due and payable during this hospitalization and upon discharge as set forth herein-above. I acknowledge and agree that in the event that [Willis-Knighton], in its sole discretion, accepts proof of insurance coverage, claims for payment of benefits will be filed on behalf of the Debtor and/or insured and that these benefits will be considered by [Willis-Knighton] in determining the amounts due as set forth hereinabove. I understand and agree that [Willis-Knighton] will accept payments from third-party payors and insurers on behalf of the Debtor and apply such payment to the indebtedness to the extent that they are received. I acknowledge and agree that the filing of such insurance and other third-party claims is performed as a service by [Willis-Knighton] and in no way relieves me of the obligation to pay the Indebtedness as agreed herein above.

Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art.1983. Good faith governs the conduct of the obligor and obligee in whatever pertains to the obligation. La. C.C. art. 1759. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. Bloom’s Inc. v. Performance Fuels, L.L.C., 44,259 (La.App.2d Cir.7/1/09), 16 So.3d 476, writ denied, 2009-2003 (La.11/20/09), 25 So.3d 800. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art.1993. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. La. C.C. art.2022.

The registration form signed by Forrester sets forth the obligations of For-rester and Willis-Knighton with respect to the charges for medical services. Forres-ter agreed to pay in full the customary charges, and he ^assigned any insurance available to him to Willis-Knighton. With respect to Willis-Knighton’s obligation, the above-quoted provision provides that, upon acceptance of proof of insurance, Willis-Knighton “will” file a claim for the benefits, “will” consider the benefits in determining the amount due, and “will” accept payment from the insurer and apply such payment to the indebtedness. As defined by Black’s Law Dictionary (West, 6th ed 1990), the verb “will” conveys certainty and commonly means the same as “shall” or “must.” Considering the certainty conveyed by the use of “will,” we find that the contract imposes a mandatory duty on Willis-Knighton, upon its acceptance of proof of insurance, to file a claim and apply any payment toward reducing the amount owed by the debtor.

Referring to the last sentence of the above-quoted provision, the plaintiff notes that Willis-Knighton files insurance claims as a service and that this service “in no way relieves” Forrester of his obligation to pay the full balance due. To the extent that this part of the provision raises doubt concerning Willis-Knighton’s obligation upon accepting proof of insurance, the contractual language must be interpreted against Willis-Knighton and in favor of Forrester. Pursuant to La. C.C. art.2056, in cases of doubt, a provision in a contract must be interpreted against the party who furnished the text, and a party’s standard-form contract must be interpreted in favor of the other party. By signing the registration form, Forrester agreed “to pay the Indebtedness as agreed herein above.” The full agreement, as set forth in the registration form, includes Willis-Knigh-ton’s obligation, upon |7acceptance of proof of insurance, to file an insurance claim and apply any payment to reduce Forrester’s indebtedness.

Forrester testified that he had medical insurance through his employer and that he presented proof of insurance to Willis-Knighton when he obtained medical services on January 27, 2008. His testimony was uncontradicted. In fact, Barnes also testified that Forrester presented a copy of his insurance card when he came to Willis-Knighton for services. We note that the last line of the invoice introduced by Willis-Knighton includes a reference to “Other Insurance” and appears to indicate that no payment was received. The date of the entry is May 14, 2009, almost 16 months after the date, January 27, 2008, that Forrester obtained medical services from Willis-Knighton. Forrester also testified, without contradiction, that he learned from his insurer that no claim had been filed and that any claim would have had to have been filed within a year of the date of services. Forrester’s testimony, along with the invoice entry, suggests that Willis-Knighton may have filed an untimely claim with Forrester’s insurer. Regardless of whether it failed to file a claim or filed an untimely claim, Willis-Knighton, through the demand letter sent by its agent, sought payment from Forrester for the full amount due more than 20 months after services were rendered.

The evidence establishes that Willis-Knighton did not perform its obligation. It did not seek payment from Forrester’s insurer, or do so in a | stimely manner, so as to derive the benefits from his policy and apply any payment to reduce the balance due. Under the principle set forth in La. C.C. art.1993, Willis-Knighton, • or its agent, cannot put Forrester in default and seek to collect full payment from him when it has not performed its reciprocal obligation. Moreover, because Willis-Knighton did not perform its obligation as required under the contract, the plaintiff cannot establish with accuracy the balance due by Forrester.

While we affirm the trial court’s judgment, we do not do so on the basis that Willis-Knighton failed to mitigate its damages. Appeals lie from judgments, not reasons for judgment. Fireman’s Fund Ins. Co. v. Browning-Ferris Industries, 30,595 (La.App.2d Cir.5/13/98), 714 So.2d 168, writs denied, 98-1569 (La.9/18/98), 724 So.2d 765 and 98-1555 (La.9/18/98), 724 So.2d 769. Moreover, appellate courts shall render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. Although out reasoning differs, we do agree with the trial court that Willis-Knighton acted unreasonably in failing to file, or to timely file, the insurance claim on Forrester’s behalf and in seeking payment in full from him over 20 months after services were rendered, apparently without any prior notice.

CONCLUSION

For the reasons stated, we affirm the trial court’s judgment dismissing the claims of the plaintiff against Forrester. Costs of appeal are assessed against the plaintiff, The Retail Merchants Association, Inc., d/b/a Credit Bureau of Louisiana.

AFFIRMED.

      . The trial court sustained an objection by defense counsel to Barnes’s testimony about certain internal business records concerning Forrester’s account. The basis of the objection was that Bames lacked personal knowledge to testify was to what was done on Forrester’s account. This evidentiary ruling has not been appealed.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jacob A. HAMM, Appellant.
    No. 48,098-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Louisiana Appellate Project by Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before MOORE, LOLLEY and PITMAN, JJ.
   MOORE, J.

| iJacob A. Hamm pled guilty as charged to one count of second degree battery and received a sentence of four years at hard labor, the first 32 months to be served without suspension, with an order to make restitution of $11,662 to the victim and to serve five years’ supervised probation. He now appeals his sentence as excessive; we affirm.

In May 2010, the 22-year-old Hamm drove to a high school graduation party at Gabe White’s house in Sterlington. Around 12:15 a.m., Hamm went up to a small group of people standing in the front yard. One of the people, 19-year-old Thomas Hoag, was talking to someone on his cell phone. Hoag did not know Hamm. Without any provocation or warning, Hamm raised his fist and pounded Hoag in the left eye, knocking him unconscious. The impact was strong enough to break Hoag’s nose, crush his cheekbone, chip one of his teeth and give him a concussion. Hamm left immediately after delivering the sucker punch. Gabe White and several other party attendees told investigators that Hamm, who was extremely drunk, was upset that Hoag was talking to his (Hamm’s) girlfriend on the phone; however, Hoag’s phone record showed that he neither called nor received a call from Hamm’s girlfriend.

Some of Hoag’s friends carried him home and then to St. Francis North, where he remained two days for emergency treatment of nasal and left maxillary sinus fractures. He later underwent two surgeries, one to reconstruct his cheekbone and the second to remove the packing from the first. He lost his TOPS scholarship because he missed too many classes. Hoag’s father testified that between the lost TOPS money, lost wages and | ^uncovered medical expenses, the family was out $11,662.74.

The party’s host, Gabe White, gave deputies the names of several party guests; all eight of these confirmed that Hoag did nothing to provoke Hamm. Some actually saw Hamm pommel Hoag’s face; the rest saw the aftermath, Hoag crumpled on the ground and Hamm screaming at him. Hamm initially denied striking Hoag, or even being present at the party, but deputies arrested him on the strength of the eyewitness reports.

The state charged Hamm by bill of information with second degree battery, La. R.S. 14:34.1, and he initially pled not guilty. In January 2012, however, he agreed to withdraw his plea and plead guilty as charged, with the understanding that he would be sentenced pursuant to his presentence investigation report (“PSI”), victim input and corrective actions. Hamm stated on the record, “I was very stupid for doing it.”

At the sentence hearing in June 2012, the court found that Hamm had attended three anger management classes and, according to a letter from Tina Wallace, Hamm’s youth pastor, he was volunteering at the Salvation Army soup kitchen. Ms. Wallace recommended that Hamm be sentenced to continue his volunteer work and anger management classes. Tracy Futch, the mother of Hamm’s current girlfriend, testified that Hamm was living in their house and she considered him to be honest about his past and a well-mannered young man trying to learn from his mistakes. The court also received victim impact testimony from Robert Hoag, the victim’s father, recounting the physical, financial and emotional damages; as noted above, he calculated the family’s financial loss at $11,662.74. Finally, Bobbie UHoag, the victim’s mother, emphasized that the incident had been a “horrible event” for the whole family, and that the residual effects of the crime will be with her son all his life.

The court outlined Hamm’s social history: he had been raised by an abusive stepfather (who used to punish Hamm by making him kneel on rice), left home at age 17 to escape the stepfather’s abuse, maintained a 2.5 GPA in high school, never experimented with drugs, was steadily employed and was providing sole financial support for his baby daughter. The court also cited Hamm’s admission of guilt and willingness to make restitution. However, Hamm had two prior incidents of a similar nature. At age 18, he got drunk and punched a teenage girl in the face; a charge of simple battery, later reduced to cruelty to a juvenile, was dropped at the victim’s request. At age 20, he got drunk and picked a fight with a 15-year-old, punching him in the face and leaving him unconscious; when the victim came to, Hamm climbed on him and continued to punch. He was charged with second degree battery and pled guilty to simple battery in August 2011, over a year after the instant offense. The court found in Hamm’s criminal history a lack of respect for society and the law.

As noted, the court sentenced Hamm to 48 months at hard labor with all but the first 32 months suspended; after his release from jail, to make restitution of $11,662.74 within 2½ years and serve five years’ supervised probation; to pay court costs or serve 30 days in default; to take anger management classes while in jail; and to use no alcohol or controlled dangerous substances while on suspension or probation. The court also' |4stated that it would reduce the probation to four years if Hamm performed his conditions well.

Hamm filed a motion to reconsider sentence, citing the economic hardship that his jail time would impose on his daughter, for whom he provides sole support; his criminal record, with only one misdemean- or conviction and one dropped charge; and his sincere remorse and acceptance of responsibility. The court denied the motion but reiterated that it would closely consider reducing the probation period if Hamm made full restitution and substantially complied with all conditions.

Hamm now appeals, urging by one assignment of error that the court erred in denying his motion to reconsider sentence and in imposing an excessive sentence. He contends that the sentence is punitive, as the goals of punishment and rehabilitation could be served with a lesser sentence; his sparse criminal history undermines the finding that a suspended sentence or probation would create an undue risk of another crime; his willingness to make restitution showed that he was more cognizant of the gravity of his conduct than the court acknowledged; and the applicable aggravating factors were significantly outweighed by the mitigating factors of C. Cr. P. art. 894.1 B. Finally, he cites several second degree battery cases resulting in sentences of one to three years for youthful first-time offenders who landed one punch on their victims.

The state responds that the court adequately considered the facts of the offense and the defendant’s history in the PSI, and fully complied with La. C. Cr. P. art. 894.1. In light of the violent nature of this offense and 1 sHamm’s proclivity for committing similar offenses, the four-year sentence is neither grossly disproportionate to the crime nor does it shock the sense of justice.

Appellate review of sentences for exces-siveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Linnear, supra.

The transcript shows that the court conducted a thorough 894.1 analysis, giving due consideration to the mitigating factors of Hamm’s abusive upbringing, his good work history and support of his daughter, and his obvious contrition for the offense. As aggravating factors, the court found that his prior criminal incidents all involved “alcohol, fighting and punching,” the instant offense occurred only 10 months after the incident in which he later pled guilty to simple battery, and Hoag’s injuries were truly devastating. On this record, we find the court adequately complied with Art. 894.1 and did not abuse its discretion in assigning weight to the mitigating and aggravating factors.

The second prong is review for constitutional excessiveness. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to Rthe seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

Convicted of second degree battery, Hamm faced a fíne of not more than $2,000, a term of not more than five years, without or without hard labor, or both. La. R.S. 14:34.1 C. Restitution of actual pecuniary loss is authorized as a part of this or any sentence. La. C. Cr. P. art. 883.2 A. The sentence of four years is obviously near the statutory maximum, although the unsuspended portion of 32 months is only slightly over the midrange of 30 months. The court remarked that Hamm’s prior experiences in jail had been limited to one day before bonding out, and they obviously failed to make a sufficient impression. The court did not abuse its discretion in finding that a significant amount of correctional time was now needed. The court also did not abuse its discretion in finding Hamm’s proclivity to get drunk and punch someone in the face, a course that needs to be reversed. Finally, the court assigned reasonable weight to the extent and complexity |7of the injury Hamm inflicted on Hoag, which is fully supported by the medical records, photographs and his parents’ testimony. On this record, the sentence does not shock the sense of justice or fail to make any reasonable contribution to acceptable penal goals. This assigned error lacks merit.

We have reviewed this entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Stacy W. HUMPHREYS, Appellant.
    No. 47,945-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Louisiana Appellate Project by Edward J. Marquet, Lafayette, LA, for Appellant.
    John M. Lancaster, District Attorney, Johnny R. Boothe, Penny W. Douciere, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

liThe defendant, Stacy Humphreys, was convicted of obstruction of justice, in violation of La. R.S. 14:130.1. He was adjudicated a third-felony offender, and sentenced to serve 10 years’ imprisonment, without benefit of probation, parole, or suspension of sentence. The defendant now appeals. Based on the following reasons, we affirm the defendant’s conviction, amend his sentence, and affirm his sentence as amended.

FACTS

In the late evening of October 5, 2010, the defendant’s girlfriend at the time, Lea Ann McMurray Humphreys (“Lea Ann”), stabbed Kalina “Sherry” Beach (“Kalina”) with a knife, puncturing her lung. Lea Ann was charged with aggravated battery.

The knife was never recovered.

During the course of the investigation, the police determined that the defendant took the knife in an attempt to conceal the evidence against Lea Ann. On October 21, 2010, the defendant was charged via bill of information with one count of obstruction of justice, in violation of La. R.S. 14:130.1.

Kalina testified that she was living at the home of Jarret Buxton and Ashley Humphreys when the incident occurred. She alleged that Lea Ann was angry with her because she wouldn’t participate in a threesome with her and the defendant. On the day the incident occurred, Lea Ann, along with Rebecca Williamson, Courtney Ezell, and the defendant, drove to Jarret and Ashley’s home. Kalina stated that Lea Ann found her in the kitchen and attacked her. During the altercation, Lea Ann stabbed Kalina in her side, |2puncturing her lung. The scuffle transferred from the kitchen to the outside of the house, at which time the knife dislodged from Sherry’s body. Jarret grabbed the knife and placed it on a barbeque pit that was under the carport. Ka-lina stated that when Lea Ann went back towards the knife, the defendant, who was initially standing behind a car door during the stabbing, ran and grabbed it. The defendant and Lea Ann then got in their car and left.

Ashley, the defendant and Lea Ann’s cousin, testified that on the night of the stabbing, she received a phone call from Lea Ann. Ashley stated that Lea Ann told her that “her and the [defendant] was (sic) going to come down there and do all kinds of crazy stuff.” Ashley instructed Lea Ann not to come and hung up the phone. Ashley further testified:

Next thing I knew they was (sic) pulling in the driveway, me and Jarret walked out, told them they needed to leave. Lea Ann gets out of the car, comes running up there, run in the house with a knife. Stacy was standing behind the car.

Ashley testified that she witnessed the defendant step from behind the car and walk under the carport. Shortly thereafter, she went into the house to get a towel for Sherry. She did not witness the defendant pick up anything from under the carport, but the knife was gone when she came back outside.

Jarret testified that he did not witness the stabbing. However, he overheard Ka-lina state that she had been stabbed, and he saw the knife on the ground. He immediately kicked it out of the way of the altercation. Once Jarret broke the fight up, he placed the knife on the barbeque pit under the carport. Jarret did not see who took the knife, nor did he notice the | ¡¡defendant walking under the carport. Jarret did note that the defendant was standing near his Jeep, which was parked “close to the carport.”

Sergeant Mike Gilmore, of the Franklin Parish Sheriffs Office, interviewed the defendant as a witness to the crime. He testified that the defendant initially told him that there was no knife involved. However, Sergeant Gilmore related that the defendant recanted this original statement and stated,

I believe she stabbed — she stabbed her. I didn’t see her stab her, but I believe she did stab her and there was a knife. I picked the knife up and I don’t remember what I did with it.

On cross-examination, Sergeant Gilmore stated that he did not have any notes or recordings from his interview with the defendant.

Rebecca Williamson, Lea Ann’s sister and the defendant’s stepsister, testified that she witnessed Lea Ann and Kalina fighting outside, but she did not see Lea Ann stab her.

Several witnesses alleged that the defendant disclosed to them information regarding the knife. Sarah Beaube, who has a four-year-old child with the defendant, testified that the defendant called her the night of the stabbing and told her what happened, but he didn’t mention anything about the knife. In a subsequent conversation, Sarah stated that the defendant told her that “he wasn’t stupid and that they got rid of it and that if they — the cops wanted to find it they had to go to Big Creek.”

David Williamson, Lea Ann’s brother-in-law and Rebecca Williamson’s husband, testified that sometime after the incident occurred, the defendant told him that “it wasn’t no evidence to be found because he |,igot rid of it.” Williamson admitted that the defendant had been drinking when he made that statement, and that he and the defendant recently had a disagreement.

Taylor Box, a former friend of Lea Ann and the defendant, testified that the defendant told her that “he’s [the defendant] the one that actually hid the knife because they hid it behind a house in the bushes and once Lea Ann was gone or whatever he went back and got it and had actually threw it into Big Creek.”

To the contrary, the defendant, who was the only witness who testified on his behalf, testified that he never told anyone that he took the knife, or that he threw it into Big Creek. He further stated that the testimony of David Williamson, Sarah Beaube, and Taylor Box were not reliable, since “they did not like him.”

The defendant relayed his version of the October 5, 2010, incident. He stated that Rebecca Williamson drove to Jarret Bux-ton’s home and initiated a verbal altercation with Sherry. He, Lea Ann, and Courtney drove in a separate car to Jar-ret’s home because they were worried something might happen. The defendant denied telling Sergeant Gilmore that there was a knife involved in the incident, or that he handled a knife at any point. Rather, the defendant denied ever seeing a knife, and stated:

I said the only thing I seen (sic) that possibly cut Ms. Beach was when Lea Ann punched through the window and tried to grab her through the window, that’s the only thing.

|sWhen asked if he was worried if his girlfriend would be charged with a criminal offense, the defendant responded, “Well I knew it was blood, somebody was going to be charged with something.”

The trial court found the defendant guilty of obstruction of justice pursuant to La. R.S. 14:130.1. At the conclusion of the proceedings, the state informed the court of its intent to file a habitual offender bill, and the parties selected a date for the defendant’s arraignment. The trial court then set a date for sentencing and ordered a presentence investigation report.

On July 10, 2012, the trial court found the defendant to be third-felony habitual offender pursuant to La. R.S. 15:521.1. In addition to his present felony conviction for obstruction of justice, the defendant had been convicted of felony contributing to the delinquency of a juvenile on June 8, 2008, and felony simple criminal damage to property on May 23, 2008.

After considering the aggravating and mitigating factors in light of La. C. Cr. P. art. 894.1, the court sentenced the defendant to 10 years’ imprisonment without benefit of probation, parole, or suspension of sentence. The defendant appeals.

LAW AND DISCUSSION

Sufficiency of Evidence

We will begin our review with the defendant’s first assignment of error, in which he alleges that the evidence was insufficient to support a verdict of guilty of obstruction of justice. More specifically, he argues that the trial court erred in relying on Kalina’s testimony, since she is a biased witness because he is married to her attacker, Lea Ann. |fiWhen issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

|7The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. Id. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. Id.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal Iscontradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

La. R.S. 14:130.1 provides in pertinent part:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers.

In order to find the defendant guilty of obstruction of justice, the state is required to prove beyond a reasonable doubt that he tampered with the evidence with the specific intent of distorting the results which may have reasonably proved relevant to the criminal investigation. Tampering with evidence includes the intentional removal of an object from the location of |9the incident which the defendant knows or has good reason to believe would be the subject of investigation. La. R.S. 14:130.1.

In the instant case, Kalina and Jarret both testified that Buxton placed the knife on a barbeque grill under the carport. Kalina and Ashley observed the defendant walk under the carport. Jarret also relayed that the defendant was standing near his Jeep, which was parked close to the carport. Kalina testified that she saw the defendant grab the knife and leave the scene with it. Additionally, both Ashley and Jarret noticed the knife was missing after the defendant and Lea Ann left.

David, Sarah, and Taylor all testified that the defendant told them he got rid of the evidence. Moreover, Sarah and Taylor Box relayed that the defendant specifically informed them that he had thrown the knife in Big Creek. Sergeant Gilmore further testified that the defendant admitted in his interview that he had grabbed the knife.

Even though Kalina is the only -witness to testify that she actually saw the defendant pick up the knife and flee with it, her testimony is corroborated by several witnesses who testified that the defendant admitted that he had disposed of the knife, as discussed above.

After a careful review of the record, we find that the evidence established that the defendant took the knife with the knowledge that it would be pertinent to a criminal investigation against Lea Ann. As stated in the facts section of this opinion, when the defendant was asked if he was worried if his girlfriend would be charged | i0with a criminal offense, he responded, “Well I knew it was blood, somebody was going to be charged with something.” It is obvious the defendant disposed of the knife in order to affect the criminal investigation. The trial court did not err in concluding that the defendant, equipped with the knowledge that a criminal investigation would be conducted against Lea Ann, took the evidence in an attempt to protect her from prosecution.

We find that the evidence presented at trial, viewed under the Jackson standard, was sufficient to support the conviction of obstruction of justice pursuant to La. R.S. 14:180.1. This assignment of error therefore is without merit.

Excessiveness of Sentence

The defendant argues that the trial court erred in sentencing him to the maximum penalty provided by law and that his sentence serves no purpose other than to impose needless and purposeless pain and suffering. He believes that the trial court should have heavily weighed the fact that he is a disabled war veteran who had no significant criminal record until after he returned home from the service.

La. R.S. 130.1(B) states:

B. Whoever commits the crime of obstruction of justice shall be subject to the following penalties:
(1) When the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both.
(2) When the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be find not more than fifty thousand |, Rollars, or imprisoned for not more than twenty years at hard labor, or both.
(3) When the obstruction of justice involves any other criminal proceeding, the offender shall be find not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.

The trial court is given wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473. On review, an appellate court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021. Intertwined with our review of a sentence for excessiveness is our review of the record to ensure that the trial court complied adequately with La. C. Cr. P. art. 894.1 and accorded proper weight to all relevant sentencing factors. State v. Smith, 433 So.2d 688 (La.1983). An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the |12record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471; State v. Tatum, 47,292 (La.App. 2 Cir. 8/15/12), 103 So.3d 550. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.2d 388. The defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense, and the likelihood of rehabilitation are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Tatum, supra, State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

The second portion of the sentence requires that a determination be made regarding the constitutional exces-siveness of a sentence. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless |18infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Tatum, supra; State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Washington, 46,568 (La.App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 11-2305 (La.4/27/12), 86 So.3d 625. Normally, sentences at or near the maximum are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665.

Pursuant to the relevant law, the trial court determined that the obstruction of justice offense in this case carries a sentence of not more than five years, with or without hard labor, and/or a find of not more than $10,000.00. See La. R.S. 14:130.1(B)(3). Since the defendant was declared a third felony offender, he was subject to a sentencing range of not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. See La. R.S. 529.1(A)(3). Therefore, the defendant faced a sentence that ranged from a minimum of 3.33 years to a maximum of 10 years. Accordingly, the trial court sentenced the defendant to 10 years’ imprisonment at hard labor, which is the maximum period of imprisonment permitted by the habitual offender statute.

| i/The record reflects that the trial court considered the fact that the defendant was a disabled war veteran who claims to suffer from post-traumatic stress disorder, as well as a brain injury, in reaching its decision. The trial court also noted the defendant’s extensive criminal record, which included 19 arrests amounting to 29 charges that resulted in three felony convictions and six misdemeanor convictions. The defendant also had been married three times, and he has 10 children with whom he does not maintain relationships.

The transcript from the sentencing hearing demonstrates the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1, and articulated its reasons for imposing the 10-year sentence. As noted by the trial court in his sentencing colloquy, the defendant’s aggravating circumstances greatly overpowered any mitigating factors. After a thorough review of the record, we find that the trial court gave proper consideration to all sentencing factors. The severity of the defendant’s sentence does not shock the sense of justice and is not a needless infliction of pain and suffering. This assignment is therefore without merit.

Error Patent

The trial court sentenced the defendant to 10 years at hard labor with the Department of Corrections consecutive to any other sentence, to be served without benefit of probation, parole, or suspension of sentence in accordance with La. R.S. 15:529.1(G). However, La. R.S. 15:529.1(G) requires any sentence imposed under its provisions to be at hard labor 11fiwithout benefit of probation or suspension of sentence. Further, La. R.S. 14:130.1(B)(3) provides that the offender shall be fined not more than $10,000.00, imprisoned for not more than five years, with or without hard labor, or both. Neither statute denies the offender the benefit of parole. Therefore, we amend the defendant’s sentence to delete the prohibition against parole.

CONCLUSION

For these reasons, we affirm the defendant’s conviction. Further, we amend the defendant’s sentence to delete the prohibition against parole, and affirm the sentence as amended.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.