author: MOORE, J.

text:
    HARDIN COMPOUNDING PHARMACY, LLC, Plaintiff-Appellant v. PROGRESSIVE BANK, et al., Defendant-Appellees.
    No. 48,397-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Anthony J. Bruscato, Monroe, for Appellant.
    McGlinchey Stafford, PLLC, by Deirdre C. McGlinchey, Monroe, B. Franklin Martin, III, New Orleans, for Appellee.
    Before STEWART, MOORE and GARRETT, JJ.
   MOORE, J.

I,Hardin Compounding Pharmacy LLC (“HCP”) appeals a partial summary judgment dismissing, on grounds of prescription, all its claims against Progressive Bank based on conversion of instruments that occurred over one year before suit was filed. We affirm.

Factual Background

HCP is a retail pharmacy in West Monroe, Louisiana, run by Tim and Wendy Hardin. They had a business account with Progressive Bank; only Tim and Wendy were authorized to sign for the account. Many of their pharmacy customers paid for prescriptions by check, which Tim or Wendy indorsed “For Deposit Only” and sent to Progressive.

At some point, the Hardins delegated the task of carrying the checks to Progressive to their counter clerk (later promoted to pharmacy tech), Michael Wallace. According to HCP’s petition, Wallace’s only duty was to deposit the checks, not to cash them. Wallace, however, hatched a scheme to defraud HCP by either forging Tim or Wendy’s indorsement, or cleverly altering the payee’s name on some of the checks. For several years, Progressive paid Wallace the cash for these altered checks, and HCP never noticed.

In late September 2010, a teller at Progressive accidentally failed to give Wallace all “his” cash from a deposit; she phoned Tim Hardin to ask if she should hold it until Wallace’s next trip to the bank. Only then did Tim suspect he was being defrauded. He promptly went to Progressive’s main branch, on Cypress Street, reviewed the records, and swore out a warrant for Wallace’s arrest. Wallace is now incarcerated in the Richland Parish Detention Center.

12Procedural History

HCP filed this suit on September 2, 2011, against Progressive and Wallace. It alleged that over the course of 36 months, Wallace improperly cashed, and Progressive improperly paid, at least $158,037.34 on altered checks. It alleged that the bank should have recognized the fraud through the exercise of reasonable care, especially in paying on an indorsement by someone not authorized to sign on the account, and failed to follow its own internal policies and laws governing currency transactions; and Wallace must have had an accomplice or insider working at Progressive, helping him with his scheme and concealing it from auditors. It also alleged that Progressive violated “applicable provisions of the banking code including LSA-R.S. 10:3-420 and converted plaintiffs funds by paying on a forged endorsement.” It prayed for judgment of $158,037.34, or whatever amount it would prove at trial, attorney fees, and a jury trial.

Progressive filed general denials and affirmative defenses; it admitted that Tim and Wendy had executed a “deposit account agreement” when they opened the account. Progressive then filed the instant motion for partial summary judgment. It argued that all HCP’s allegations constituted claims for conversion of instruments, R.S. 10:3 — 420(a)(iii), and the prescriptive period for such claims was one year, R.S. 10:3-420(f). It sought to dismiss claims for any of Wallace’s conversions that occurred before September 2, 2010, leaving claims of only $7,971.66. In support, it attached a copy of HCP’s original petition and the affidavit of Progressive’s internal auditor, |aPhylIis Tyler, stating that Wallace had altered 39 checks totaling $7,971.66 between September 2 and September 24, 2010.

HCP opposed the motion, urging that because the altered checks never went through the account, HCP could not detect the thefts by simply reviewing its bank statements. In support, HCP filed the affidavit of Tim Hardin and (uncertified) copies of Progressive’s bank policy, “Chapter Three: Checks and Check Handling.” However, it filed nothing to show that Wallace had a confederate inside Progressive.

At a hearing in September 2012, Progressive reiterated that this was a straightforward claim for conversion under R.S. 10:3-420 and limited by that statute’s prescriptive period of one year. HCP countered that Louisiana’s UCC did not displace all state law, R.S. 10:l-103(3)(b), and specifically that 3-420 did not supplant the claims for breach of banking agreement, breach of internal regulations, or suspension of claims for contra non valen-tem or fraudulent concealment.

The court stated that it disliked the outcome, and sincerely hoped that the court of appeal would reverse, but that Progressive had presented the applicable law: one-year prescription applied. The court granted partial summary judgment as prayed for. HCP took this appeal, which the district court certified as immediately appealable under La. C.C.P. art. 1915 B.

The Parties’ Positions

Progressive calls this court’s attention to the recent decision of Specialized Loan Servicing LLC v. January, 2012-2668 (La.6/28/13), 119 So.3d 582, an opinion rendered after the instant appeal was taken and the original briefs filed. Progressive shows that Specialized Loan held: (1) La. |4R.S. 10:3-420 applies to circumstances where a payee on a check alleges that a bank paid the check to someone else not entitled to enforce the instrument, (2) the prescriptive period for conversion claims is one year, R.S. 10:3 — 420(f), beginning to run on the date of the conversion, and (3) the fourth category of contra non valen-tem, when the cause of action is not known or reasonably knowable by the plaintiff, does not apply to the prescriptive period for conversion claims. Progressive urges that Specialized Loan merely confirms this court’s, and other appellate courts’, jurisprudence. Costello v. Citibank (South Dakota) NA, 45,518 (La.App. 2 Cir. 9/29/10), 48 So.3d 1108; ASP Enters. v. Guillory, 2008-2235 (La.App. 1 Cir. 9/11/09), 22 So.3d 964, writ denied, 2009-2464 (La.1/29/10), 25 So.3d 834. Progressive finally cites the legislative history of R.S. 10:3^120 as supporting Specialized Loan’s conclusion that the one-year prescriptive period was intended to apply to any claim for conversion. Progressive urges that the judgment should be affirmed.

HCP counters that Specialized Loan has no bearing on the instant case as the plaintiff there was not a customer of the defendant bank, had no contract with the defendant bank, and did not raise a breach of contract claim — all of which HCP affirmatively was and did. HCP contends that it advanced three legal theories — breach of contract, U.C.C. statutory negligence and U.C.C. statutory conversion under R.S. 10:3-420 — none of which is affected by Specialized Loan. In its original brief, HCP urged that Louisiana’s U.C.C. does not generally preempt state law; R.S. 10:103(b) states, “Unless displaced by the particular provisions of this Title, the other laws of Louisiana supplement its provisions.” In support, it cited Webb Carter Const. Co. v. Louisiana Central Bank, 922 F.2d 1197, 15 UCC Rep.Serv.2d 196 (5 Cir.1991), and dictum in Costello v. Citibank (South Dakota) NA, supra. HCP strongly urged that its claim against Progressive was, in essence, one for breach of contract for failing to act according to its established internal standards or commercially reasonable standards in handling HCP’s account. HCP suggested that its contract claim is subject to the 10-year period of La. C.C. art. 3499, or at least the general three-year period for U.C.C. claims 'not otherwise limited, La. R.S. 10:3-118(g). Finally, HCP argued that even if the one-year period applied and was not suspended by contra non valen-tem, it was nonetheless suspended for fraudulent concealment, as held in La-Combe v. Bank One Corp., 2006-1374 (La. App. 3 Cir. 3/7/07), 953 So.2d 161, 62 U.C.C. Rep. Serv.2d 104, writ denied, 2007-0746 (La.6/1/07), 957 So.2d 177, and suggested by dicta in Peak Performance Phys. Therapy v. Hibernia Corp., 2007-2206 (La.App. 1 Cir. 6/6/08), 992 So.2d 527, writ denied, 2008-1478 (La.10/3/08), 992 So.2d 1018, and Costello v. Citibank (South Dakota) NA, supra. HCP argued that the court could not render summary judgment without letting the plaintiff conduct discovery as to whether a bank employee engaged in lfifraudulent concealment. HCP sought reversal and remand.

General Principles

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. There is no prescription other than that established by legislation. La. C.C. art. 3457. Although the party pleading prescription ordinarily has the burden of proving it, when the face of the petition shows that the action has prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. Hogg v. Chevron USA, 2009-2632 (La.7/6/10), 45 So.3d 991.

Although the defense of prescription is typically urged by peremptory exception, it may also be raised by motion for summary judgment. Hogg v. Chevron USA, supra. Summary judgment shall be rendered if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. If the mover will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966 C; Hogg v. Chevron USA, supra. Once the mover meets this burden, the burden then shifts to the opponent (usually the plaintiff) to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Hogg v. Chevron USA, supra. In this situation, the plaintiff may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or 17otherwise, must set forth specific facts showing that there is a genuine material fact for trial. La. C.C.P. art. 967 B; Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion. La. C.C.P. art. 966 E(2).

Discussion

Louisiana’s version of the U.C.C. provides for the conversion of instruments, in pertinent part:

§ 3-420. Conversion of instrument
(a) An instrument is converted when * * *
(iii) it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.
(f) Any action for conversion * * * prescribes in one year.

The facts of this case precisely fit the definition of conversion of an instrument: a bank (Progressive) made payment with respect to numerous instruments (checks) for a person (Wallace) not entitled to enforce the instrument or receive payment (the payee was always HOP, never Wallace). The district court committed no legal error in finding that 10:3^420 governs this case. Specialized Loan Servicing v. January, supra.

As noted, HOP vigorously argues that 10:3^420 does not displace its underlying claims for breach of contract and statutory negligence. In support, it cites R.S. 10:1-103:

§ 1-103 Construction of Uniform Commercial Code to promote its purposes and policies; applicability of supplemental principles of law
|s(a) This Title shall be liberally construed and applied to promote its underlying purposes and policies, which are:
(1) to simplify, clarify, and modernize the law governing commercial transactions;
(2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and
(3)to promote uniformity of the law among the various jurisdictions.
(b) Unless displaced by particular provisions of this Title, the other laws of Louisiana supplement its provisions.

This court and other state courts have consistently held that when the facts satisfy 10:3^420’s definition of conversion of instruments, this statute supplants other general laws regarding personal actions and breach of fiduciary duty claims. Costello v. Citibank (South Dakota) NA, supra; Matthews v. Bank One Corp., 44,818 (La.App. 2 Cir. 10/28/09), 25 So.3d 952; ASP Enters. v. Guillory, supra; Peak Performance Phys. Therapy v. Hibernia Corp., supra; Innovative Hospitality Systs. LLC v. Abe’s Inc., 2010-509 (La.App. 3 Cir. 12/8/10), 52 So.3d 313, 73 UCC Rep.Serv.2d 251. HCP has cited, and this court is aware of, one federal case holding that the plaintiff could pursue an action ex contractu arising from a converted instrument, Webb Carter Const. Co. v. Louisiana Central Bank, supra. However, we note that Webb Carter was rendered in February 1991, before the 1992 enactment of R.S. 10:3-420, and when the predecessor statute, R.S. 10:3-419, did not expressly provide for conversion of instruments. As such, |9we cannot find that, under Webb Carter, general contract law and fiduciary law supersede the specific provision of R.S. 10:3-420 with respect to conversion of instruments. The district court did not err in finding that the claim was for conversion of instruments and that the one-year prescriptive period applies.

HCP also urges that even if the one-year period applies, then the jurisprudential rule of contra non valentem, specifically the “discovery rule,” would apply to suspend prescription “where some cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.” Wimberly v. Gatch, 93-2861 (La.4/11/94), 635 So.2d 206. HCP argues that the ingenuity of Wallace’s scheme made it impossible for HCP to discern, from a simple review of its monthly bank statements, that any conversion was occurring. In support, it cites LaCombe v. Bank One Corp., supra, which applied the discovery rule of contra non valentem to suspend prescription in a case based on conversion of instruments.

In Specialized Loan, supra, the supreme court directly addressed “the res nova issue * * * whether the discovery rule can interrupt the one-year | ^prescriptive period contained in La. R.S. 10:3-420.” After analyzing the text of 10:3-420 and 10:1-103, the court identified the “majority rule,” holding the discovery rule did not suspend prescription, and the “minority rule,” holding it did. Id., pp. 5-6, 119 So.3d 582. The court concluded:

We agree with the majority view that the discovery rule does not apply in U.C.C. conversion cases. The adoption of the majority view fosters uniformity, which is a fundamental objective of the U.C.C. and the La. U.C.C. See La. R.S. 10:1 — 103(a)(3). We reject Specialized’s argument that because other states have a three-year statute of limitations for conversion claims, adoption of the discovery rule would make Louisiana’s conversion more uniform with the other states. The uniformity among the states that should be fostered is the clear-cut rule that the prescriptive period (or statute of limitations) for conversion claims begins to run on the date of the conversion. Having a definite cutoff date for bringing conversion claims promotes the U.C.C.’s purpose of promoting finality, certainty, and swift resolution of commercial disputes. Further, the victims of the conversion are in a much better position to detect the loss, and thus should be responsible for monitoring their accounts and employees to detect if they have been the victim of conversion of funds.
Even without regarding other states’ positions on the matter, our own laws lead to the conclusion that the discovery rule cannot suspend prescription on a conversion claim. First, as we have stated, the discovery rule applies only in “exceptional circumstances.” There is nothing exceptional about conversion cases that would necessitate the application of the discovery rule, because, absent fraud on the part of the defendant, the victim, using some diligence, should be able to quickly discover that he has been the victim of conversion. * * * Second, the La. U.C.C., particularly La. R.S. 10:3-420, governs this claim, and as we have explained, other statutory or jurisprudential rules can only be used to supplement, not supplant, the provisions of the La. U.C.C. The legislature has adopted a strict one-year prescriptive period for conversion claims. Inserting the discovery rule of contra non valen-tem into the statutory one-year prescriptive period of La. R.S. 10:3-420 would result in this jurisprudential rule supplanting this La. U.C.C. provision, which would be in violation of La. R.S. 10:1-103.

Id., at p. 7, 119 So.3d at 590-91 (footnotes omitted).

^J^This discussion effectively abrogates the Third Circuit’s holding in LaCombe v. Bank One Corp., supra, and completely negates any argument that the discovery rule would apply to a conversion claim. HCP suggests that Specialized Loan is factually inapposite and not persuasive, in that the plaintiff therein was not a customer of the bank, but we note that R.S. 10:3-420(f) refers to any action for conversion; it draws no distinction between plaintiffs who are bank customers and those who are merely third parties. Because of the statutory language, we find no basis to distinguish Specialized Loan.

Finally, HCP argues that even if the discovery rule does not apply, the jurisprudence leaves open the prospect that a showing of fraudulent concealment will suspend the one-year prescriptive period of R.S. 10:3-420(f). Specialized Loan, supra at fn. 6; Peak Performance Plvys. Therapy v. Hibernia Corp., supra at 11, 992 So.2d at 533; Costello v. Citibank (South Dakota) NA, supra at 8, 48 So.3d at 1114. HCP contends that the court could not render summary judgment without letting the plaintiff conduct discovery as to whether a bank employee engaged in fraudulent concealment. It submits that at the very least, the case should be reversed and remanded for adequate discovery.

HCP first became aware of the conversions on September 27, 2010, and filed this suit on September 2, 2011. Progressive filed the instant motion for partial summary judgment over eight months later, in May 2012; the hearing was held on August 29, 2012. In response to Progressive’s 112motion showing most of the claim prescribed on its face, HCP offered only Tim Hardin’s affidavit, voicing his speculation that Wallace must have had a confederate in the bank. However, HCP offered no evidence, such as certified police reports, depositions or affidavits of bank auditors, or the deposition or affidavit of any Progressive employee, to support its claim of an inside job. When a motion for summary judgment is made and supported as provided by law, the adverse party “may not rest on the mere allegations or denials of his pleading,” but must “set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967 B. The instant showing, based purely on allegation, denial and sharp hypothesis, does not create a genuine issue for trial.

In light of the fact that nearly two years had elapsed since HCP discovered the conversion, nearly one year since it filed suit, and four months since Progressive filed the motion for partial summary judgment, we cannot find that HCP has been denied time to conduct adequate discovery. La. C.C.P. art. 966 C(l). This time frame, though not expansive, is certainly reasonable for the plaintiff to uncover at least a scintilla of evidence, admissible under La. C.C.P. art. 967, of fraudulent collusion. The district court did not err in granting the motion for partial summary judgment. The assignments of error lack merit.

Conclusion

For the reasons expressed, we affirm the grant of partial summary judgment. All costs are to be paid by the appellant, Hardin Compounding Pharmacy LLC.

AFFIRMED.

      . Wallace never filed any responsive pleading.

      . HCP also cited cases involving commonlaw claims: Bucci v. Wachovia Bank NA, 591 F.Supp.2d 773 (E.D.Pa.2008); Continental Cas. Co. v. American Nat'l Bank & Trust Co. of Chicago, 329 Ill.App.3d 686, 263 Ill.Dec. 592, 768 N.E.2d 352 (2002); Wells v. Bank of New York Co., 181 Misc.2d 574, 694 N.Y.S.2d 570 (1999); Patco Const. Co. v. Peoples’ United Bank, 684 F.3d 197 (1 Cir.2010).

      . HCP cited, inter alia, Bank Policy 9(3-7) 11 2: "Checks payable to a business or organization should only be deposited, not cashed (unless cash deposits are also prohibited).” BP 9(3-7) ¶ 8: "Bank employees advised that before cashing a check, they should make sure that the payee is ‘clearly identified’ and told that ‘The best proof would be to compare the signature to the signature card (which would be on file at the bank).’ ” BP 13 (3-11): “The payee must always be the first endorser of a check.” BP 29 (3-27); "Businesses usually deposit their checks, so any check which is payable to a business and which is presented for cash is suspect. * * * Look carefully at every check that comes to your window and report any that appear suspicious to your supervisor.”

      . Prior to the 1992 amendment, R.S. 10:3-419 provided:
      § 3-419. Willful refusal to accept or pay; payment on a forgery; innocent representation
      (1) When a drawee to whom an instrument is delivered refuses to return it on demand; or when a person to whom an instrument is delivered for payment refuses on demand either to pay it or return it; or when a person pays an instrument on a forged indorsement, he is liable to the true owner.
      (2) In an action against a drawee under subsection (1) the measure of the drawee's liability is the face amount of the instrument. In any other action under subsection (1) the liability is presumed to be the face amount of the instrument.
      (3) Subject to the provisions of this Title concerning restrictive indorsements a representative, including a depository or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on- behalf of one who was not the true owner is not liable to the true owner beyond the amount of any proceeds remaining in his hands.
      (4) An intermediary bank or payor bank which is not a depository bank is not liable solely by reason of the fact that proceeds of an item indorsed restrictively are not paid or applied consistently with the restrictive in-dorsement of an indorser other than its immediate transferor.

      . This court seriously questions whether it was truly "not reasonably knowable,” as comparing HCP's monthly bank statements with its own deposit slips or ledgers would surely have revealed the discrepancy.

      . Oddly, LaCombe never once cited R.S. 10:3-420, the statute that establishes the prescriptive period.

      . Footnote 6 reads: "As stated, Specialized has not alleged, and the evidence does not point to, any fraud on the part of Capital One.”


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    Byron POWELL, Plaintiff-Appellee v. Jacque D. DERR & Tommy A. Milam, Defendants-Appellants.
    No. 48,405-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Rehearing Denied Nov. 14, 2013.
    Mixon & Carroll, PLC, Columbia, by James E. Mixon, James L. Carroll, Brian E. Frazier, for Appellants.
    McNew, King, Mill, Burch & Landry, LLP, by Ashley S. Burch, Monroe, for Appellee.
    Before STEWART, LOLLEY & PITMAN, JJ.
   PITMAN, J.

1 j Defendants Jacque D. Derr, Laure Spatafora Derr and Tommy A. Milam appeal a judgment declaring a deed to be ambiguous and stating that Plaintiff Mark Edward Powell owns an undivided one-half (1/2) interest in the property and the remaining undivided one-half (1/2) interest is owned by the Defendants in indivisión. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

The disputed property is a 20.3-acre tract of land located in Madison Parish. In 1955, R.C. Byrnes acquired full ownership of the property. On September 27, 1958, R.C. Byrnes signed a deed conveying “an undivided one fourth (1/4) interest” in the property to W.B. Kemp and his wife, H.E. Powell, Jr. and his wife and V. Matt Milam, Jr. and his wife. The original parties to the deed are deceased, and the property is now owned by the parties to this suit.

Plaintiff Byron Powell — later replaced as Plaintiff by Mark Edward Powell— filed suit against Defendants Jacque D. Derr, Laure Spatafora Derr and Tommy A. Milam requesting that the trial court declare the deed to be | ^ambiguous and to declare the parties’ rights and ownership interests in the property as conveyed in the deed. Plaintiff alleged that he owns an undivided one-half (1/2) interest in the property, that Defendants Jacque Derr and Laure Derr own an undivided five-twelfths (5/12) interest in the property and that Defendant Tommy Milam owns an undivided one-twelfth (1/12) interest in the property. In the alternative, Plaintiff requested that, if the trial court found the deed to be unambiguous, it should reform the deed to reflect the intent of the parties. Plaintiff also requested reimbursement from Defendants for property taxes and other costs paid by Plaintiff. Defendants argued that the deed is not ambiguous and that Defendants own a five-sixths (5/6) interest in the property, the Derrs own a 71/108 interest, Tommy Milam owns a 19/108 interest and Plaintiff owns a one-sixth (1/6) interest in the property.

On July 29, 2011, Defendants filed a motion for summary judgment. On May 29, 2012, the trial court denied Defendants’ motion for summary judgment, exception of no right of action and exception of no cause of action, reasoning that the parties disagreed about the interpretation of the deed so there was a genuine issue of material fact.

A bench trial was held on October 31, 2012. The trial court stated that it believed the deed could be interpreted two ways and was, therefore, ambiguous and allowed the introduction of parol evidence to determine the intent of the parties. Original Plaintiff Byron Powell and Defendant Jacque Derr testified. Plaintiff also submitted the deposition of Helen Byrnes, wife | ¡¡of R.C. Byrnes. Both parties introduced documents establishing the chain of title to the property.

The deed states, in pertinent part:

BE IT KNOWN, that this day before me, J.R. Madden, Jr., Notary Public in and for said Parish, duly commissioned and sworn, came and appeared R.C. Byrnes, married to Mrs. Helen Byrnes, nee Milam, with whom he is residing, a resident of the Parish of Winn, State of Louisiana, who declared that he does by these presents, grant, bargain, sell, convey and deliver, with full guarantee of title, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed unto the following:
1. B.W. Kemp, married to Mrs. Bessie Kemp, nee Tobey, with whom he is residing, a resident of the Parish of Winn, State of Louisiana,
2. H.E. Powell, Jr., married to Mrs. Kathleen Powell, nee Kemp, with whom he is residing, a resident of the Parish of Winn, State of Louisiana,
8. V. Matt Milam, Jr., married to Mrs. Mary Nell Milam, nee Beck, with whom he is residing, a resident of the Parish of Winn, State of Louisiana,
an undivided one fourth (1/4) interest in and to the following described property, to wit:
Lot Three (3), Section Twelve (12), Township Fifteen, (15), North Range Ten (10) East, Madison Parish, Louisiana.
To have and to hold said described property unto said purchaser, his heirs and assigns forever.
This sale is made for the consideration of the sum of Ten and no/100 ($10.00) Dollars cash in hand paid, and other valuable considerations is hereby acknowledged.

Byron Powell testified that he was ten years old when the deed was signed. He explained that W.B. Kemp was his grandfather and H.E. Powell, Jr. was his father and that he inherited their interests in the property. Byron Powell further explained that he has since donated his interest in the property to his son, Mark Edward Powell.

|4In her deposition, Helen Byrnes, the wife of R.C. Byrnes and sister of V. Matt Milam, Jr., testified that she was unaware that her husband sold an interest in the property and that she thought the Byrnes family fully owned the property. Helen Byrnes stated that the Byrneses’ interest in the property was transferred to V. Matt Milam, Jr.’s heirs.

After Plaintiff presented his case, Defendants moved for an involuntary dismissal or a directed verdict, arguing that Plaintiff had not proven that the deed is ambiguous and that the public record is binding in this case. The trial court denied the motion.

Jacque Derr testified that he is a lifelong friend of V. Matt Milam, Jr.’s son, Tommy Milam, and that he hunted on the property as a child. Jacque Derr purchased part of his interest in the property in 2005 from Mary Nell Milam, the wife of V. Matt Milam. Jacque Derr subsequently purchased the interests of Y. Matt Mi-lam, Jr.’s other sons, Michael Milam and V. Matt Milam, III. Jacque Derr explained that he and his wife, Laure Derr, and Tommy Milam own what were R.C. Byrnes’s and V. Matt Milam, Jr.’s interests in the property.

The trial court declared that the deed is ambiguous as a matter of fact and law and determined that the intent of the parties was for the ownership of the property to be as follows:

R.C. Byrnes retained l/4th undivided interest and conveyed to W.B. Kemp a l/4th undivided interest, H.E. Powell a l/4th undivided interest and V. Matt Milam, Jr. a l/4th undivided interest.

The trial court then declared that Plaintiff owns an undivided one-half (1/2) interest in the property and that Defendants own the remaining-one-half (1/2) interest in the property in indivisión. The trial court further stated |sthat the parties agreed to bifurcate the case, reserving their rights to a final accounting and any competing claims for reimbursement. Defendants appeal the judgment of the trial court.

DISCUSSION

Ambiguity of the Deed

In their first assignment of error, Defendants argue that the trial court erred in finding that the original deed was ambiguous as to the interest conveyed to the vendees. Defendants contend that Plaintiff did not prove that the deed is ambiguous on its face in that it clearly conveys a one-fourth (1/4) interest in the property to the Kemps, Powells and Mi-lams.

Plaintiffs argue that the trial court correctly ruled that the deed is ambiguous because the language “an undivided one fourth (1/4) interest” is susceptible to more than one interpretation, i.e., ■ that each vendee acquired a one-fourth (1/4) interest or that the vendees collectively acquired a one-fourth (1/4) interest in the property.

The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The fact that one party creates a dispute about the meaning of a contractual provision does not render the provision ambiguous. Slocum-Stevens Ins. Agency, Inc. v. International Risk Consultants, Inc., 27,353 (La.App.2d Cir.12/11/95), 666 So.2d 352, writ denied, 96-0102 (La.3/8/96), 669 So.2d 399. A court must give effect to the ordinary meaning of words and may not create an ambiguity where none exists. Id.; Campbell v. Melton, 01-2578 (La.5/14/02), 817 So.2d 69.

The trial court erred when finding that the deed is ambiguous based on the conflicting interpretations of the parties. See Slocum-Stevens Ins. Agency, Inc., supra. There is no ambiguity in the deed. The term “an undivided one fourth (1/4) interest” is not ambiguous. The conveyance of “an undivided one fourth (1/4) interest” to the Kemps, Powells and Milams is clearly a conveyance of a collective one-fourth (1/4) interest and a retention of a three-fourths (3/4) interest. This interpretation leads to no absurd consequences, so no additional interpretation of the parties’ intent can be made. See La. C.C. art. 2046, supra. The term “an undivided one fourth (1/4) interest” cannot be interpreted in the manner Plaintiff alleges without additional language, e.g., an undivided one-fourth interest each. Accordingly, we find that Plaintiff owns an undivided 1/6 interest in the property, that Defendants Jacque D. Derr and Laure Spatafora Derr own an undivided 71/108 interest in the property and that Defendant Tommy A. Milam owns an undivided 19/108 interest in the property. Therefore, we find that this assignment of error has merit.

Assignments of Error Two Through Eight

The remaining assignments of error are all predicated on the trial court’s determination that the deed is ambiguous. Considering this court’s foregoing determination that the deed is unambiguous, Defendants’ remaining assignments of error need not be addressed.

^CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court in favor of Plaintiff Mark Edward Powell and against Defendants Jacque D. Derr, Laure Spatafora Derr and Tommy A. Mi-lam and remand to the district court for further proceedings. Costs of this appeal are assessed to Plaintiff, Byron Powell.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, LOLLEY, PITMAN & GARRETT, JJ.

Rehearing denied.

      . The deed names W.B. Kemp and "B.W. Kemp.” Trial testimony from Byron Powell, W.B. Kemp’s grandson, explains that the deed was incorrect and that his grandfather’s initials are "W.B.” for "William Byron” Kemp.

      . Shortly after the original petition was filed, Plaintiff Byron Powell transferred his interest in the property subject to this action to his son, Mark Edward Powell. The petition was amended to name Mark Edward Powell as Plaintiff.

      . Michael R. Milam and V. Matt Milam, III were originally named as Defendants with Tommy Milam and Jacque Derr. Shortly after Plaintiff filed suit, Plaintiff received copies of conveyances wherein Michael R. Milam and V. Matt Milam, III transferred their interests in the property to Jacque Derr. Therefore, the petition was amended to reflect their dismissal.
      Laure Spatafora Derr was not originally named as a defendant. Laure Derr was the spouse of Jacque Derr when he acquired his interest in the property. Therefore, the petition was amended to add Laure Derr as a defendant.


author: BROWN, Chief Judge.

text:
    SUCCESSION OF Agnes Wylonda Johnson CARROLL.
    No. 48,436-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Sedric E. Banks, Monroe, LA, for Appellants, Thomas Cruse and Donna Cruse Cagle.
    Donald L. Kneipp, Monroe, LA, for Ap-pellees, Ethyl Cruse Hornsby, Gary Roark, and AWC.
    Before BROWN, PITMAN, and GARRETT, JJ.
   BROWN, Chief Judge.

| ¶ Agnes Wylonda Carroll died testate on January 3, 2008. She was survived by three adult children. Her testament designated her daughter, Ethyl Joyce Cruse Hornsby, as executrix and as the universal legatee. The testament was probated on August 1, 2008. Plaintiffs, Donna Cruse Cagle and Thomas B. Cruse, Jr., who were decedent’s other two children, petitioned to annul and declare the testament to be invalid. As relates to this appeal, plaintiffs filed a motion for partial summary judgment declaring them to be forced heirs of their mother. The trial court denied plaintiffs’ motion for partial summary judgment. Specifically, the trial court determined that genuine issues of material fact existed as to whether either plaintiff was permanently incapable of caring for his/her person or administrating his/her estate at the time of decedent’s death. The trial court certified this judgment as a final judgment for appeal. For the reasons stated herein, we now affirm.

Facts and Procedural Background

In their petition, filed on November 20, 2008, plaintiffs/appellants, Donna Cagle and Thomas Cruse, Jr., sought to nullify the Agnes Carroll will and certain real estate transactions based on the following grounds: 1) Agnes Carroll was of unsound mind; 2) Agnes Carroll was acting under fraud, duress or mistake; and/or 3) Agnes Carroll lacked testamentary capacity.

In an amended petition, plaintiffs subsequently raised, among other claims, the issue that is central to this appeal, forced heirship. On September 19, 2012, plaintiffs filed the instant motion for partial summary | ¡judgment asking the trial court to recognize both of them as forced heirs of Agnes Carroll. Each claimed that they were permanently physically disabled. The trial court denied plaintiffs’ motion, finding that genuine issues of material fact exist regarding their claims of forced heir-ship.

Discussion

Article 12, § 5 of the Louisiana Constitution abolished forced heirship effective January 1, 1996, except that it provides in part that:

(B) The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also classify as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law. Trusts may be authorized by law and the forced portion may be placed in trust.

The legislature enacted La. C.C. art. 1493, which provides in part that:

(A) Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.
(E) For purposes of this Article “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent” shall include descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.

Article 1493(A) clarifies the law in several respects and should help |..¡reduce unwarranted or inappropriate claims. For one thing, art. 1493 specifies that the time at which the incapacity or infirmity is determined to be relevant is at the donor’s death, which was always intended but may not have been fully clear in the earlier legislation. More importantly, the legislature added the word “permanently” before the word “incapable” for the express purpose of emphasizing that a temporary incapacity or infirmity, even if severe, should not apply. Although the jurisprudence on limited interdiction may be helpful, the new rule expressed in this article is intentionally different and more restrictive than the standard for interdiction because of the use of the word “permanently” to describe the nature of the incapacity or infirmity. La. C.C. art. 1493, Revision Comment (c).

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Cote v. City of Shreveport, 46,571 (La.App.2d Cir.09/21/11), 73 So.3d 435. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, 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).

|4For plaintiffs to qualify as forced heirs, they must show that at the time of their mother’s death they were permanently incapable of taking care of their persons or administering their estates due to either mental incapacity or physical infirmity. Permanent incapacity “shall include descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.” La. C.C. art. 1493(E).

In support of their motion for summary judgment plaintiffs each submitted a personal affidavit, an affidavit of their respective treating physicians, and Social Security Administration (“SSA”) documents showing that prior to their mother’s death they had been declared disabled. It is on the latter two types of evidence that plaintiffs primarily rely in support of their motion for summary judgment.

Donna Cagle was born on January 11, 1947. She was diagnosed with a tumor known as a vestibular schwannoma or Acoustic Neuroma, which was surgically removed on June 6, 2005, due to the chronic imbalance it was causing her. Prior to her mother’s death, Ms. Cagle was declared disabled by both her private insurer and the SSA, a classification that remains today.

Thomas Cruse, Jr., was born on March 13, 1943. He was diagnosed with prostate cancer in 2003, which returned after treatment and a temporary remission. Prior to his mother’s death, Mr. Cruse was also declared disabled by the SSA. The SSA deémed Mr. Cruse’s disability to 1 shave “onset” by at least March 4, 2004, and he remains classified as disabled. In addition, Mr. Cruse also suffers from an irregular heartbeat and postherpetic neuralgia.

The SSA document submitted by Donna Cagle was a determination and finding of disability by the SSA. Tommy Cruse submitted a SSA document showing current SSA benefits. Donna Cagle and Tommy Cruse also submitted affidavits from their treating physicians, Drs. Brian McKinnon and Robert Raulerson, respectively.

In opposition to the summary judgment motion, defendant submitted exhibits, including an affidavit from a private investigator that identified numerous physical activities that plaintiffs have performed. The exhibits showed that Donna Cagle, who lived in Georgia, had driven back and forth from Georgia to Louisiana and to New Jersey where she “pet” sat for her son. Meanwhile, the exhibits showed that Tommy Cruse drove his truck, refueled it, unloaded groceries and dry cleaning, made numerous visits to businesses, and even went deer hunting.

Dr. McKinnon’s affidavit, dated September 13, 2012, states, in pertinent part:

4. I have treated Donna Cagle as a patient for approximately three (3) years.
8. Mrs. Cagle underwent resection of a right vestibular schwannoma via middle fossa approach on 6/7/05 at the House Ear Clinic.
9. She executed this procedure on account' of her chronic imbalance ■ caused by her condition.
10. My record show Mrs. Cagle has been declared physically ^disabled due to the above conditions by her disability insurance carrier, as well as, the Social Security Administration under its guidelines.
11. Mrs. Cagle’s symptoms have remained persistent, and in view- of the apparent recurrence of her acoustic neu-roma on the right, she will likely need further intervention preventing Mrs. Ca-gle from effectively administering her affairs and/or taking care of her estate.
12. I anticipate her physical infirmity will remain unchanged, if not digress, in view of my current findings.

Considering that there is no mention of whether Ms. Cagle’s physical infirmity is an inherited, incurable disease, we are left to determine whether she suffered a physical infirmity that rendered her “permanently incapable” of taking care of her person or estate at the time of her mother’s death. Based upon a reading of the affidavit, ,Dr. McKinnon began treating Ms. Cagle after her mother’s death; he was not the physician in 2005 when she underwent resection; and he fails to state at what point in time the apparent recurrence of her acoustic neuroma occurred. The affidavit merely states that “she will likely need further intervention preventing [her] from effectively administering her affairs and/or taking care of her estate.” This appears to show that Ms. Cagle suffers from a physical infirmity that may render her incapable of caring for her person or estate at some point in the future, not that she was permanently incapable at the time of her mother’s death. As noted above, the opposition affidavits show that she drove to Louisiana from Georgia on multiple occasions. Specifically, they showed that she drove to Louisiana after her mother’s death to assist in making arrangements for her mother’s funeral, she ran errands and went shopping without assistance. Considering the aforementioned, the trial court correctly .[¡¿determined that genuine issues of material fact exist as to whether Ms. Cagle was permanently incapable of caring for her person or estate at the time of her mother’s death and/or whether the acoustic neuroma is an inherited, incurable disease.

Likewise, the affidavit of Dr. Raulerson, Mr. Cruse’s treating physician, fails to state whether the prostate cancer and other ailments that Mr. Cruse suffers from are inherited, incurable diseases or conditions. Furthermore, the affidavit of Mr. Cruse’s treating physician fails to establish that on the date of his mother’s death he was “permanently incapable.” In fact, Dr. Raulerson’s affidavit states that Mr. Cruse’s prostate cancer is “a disease which may render Mr. Cruse permanently incapable of taking care of his person or administering his estate at some point in the future.” Again, the opposition showed that his activities put at issue whether he was permanently incapable caring for himself and administering his estate. As the trial court correctly found, this opinion, coupled with the opposition’s affidavits, does not support a finding that he was “incapable” on January 3, 2008, the date of his mother’s death.

Plaintiffs submit in their appellate brief that the SSA classification “is, at the very least, a factor to consider in determining whether a descendant qualifies as a forced heir under Louisiana law.” We agree, it is a factor to consider. This is a motion for summary judgment, not a trial. A factor, without more, fails to meet plaintiffs’ burden of showing that there is no genuine issue as to material facts. Just because a person qualifies for disability benefits does not mean that he or she is permanently incapable of | staking care of his or her person or estate. In Ms. Cagle’s case, we note that the adjudication of disability by the SSA concludes by stating that “Medical improvement is expected with appropriate treatment. Consequently, a continuing disability review is recommended in 18 months.”

Further, considering defendant’s offerings in opposition to plaintiffs’ motion for summary judgment, it is clear that there were genuine issues of material fact regarding either plaintiffs status as a forced heir. Plaintiffs contend that since defendants failed to present an affidavit from a countervailing medical expert, their opposition to plaintiffs’ motion for summary judgment is insufficient and the trial court erred in not decreeing each a forced heir. Louisiana law does not entitle a party to summary judgment solely on the grounds that the moving party offered medical testimony and the opposing party did not. The trial court must still examine the medical testimony to determine if it eliminates any genuine issue of material fact. Here, the trial court analyzed the affidavits of plaintiffs’ treating physicians, as well as the exhibits offered in opposition, and correctly determined that there were genuine issues of material fact as to whether either plaintiff suffered from a physical incapacity at the time of their mother’s death which rendered them permanently incapable of caring for their persons or estates.

Conclusion

Based on the foregoing, the trial court’s denial of plaintiffs’ motion for partial summary judgment is affirmed. Costs of this appeal are assessed to plaintiffs.

      . The adverb "permanently” in Civil Code article 1493 modifies incapable and refers to the duration, not extent of the incapacity, even though some of the original language of comment (c) drafted after legislative passage suggested to the contrary. In 1998 the legislature by resolution directed the Law Institute to change the comment because the comment "incorrectly characterizes permanently incapable children by terms not included within the article as enacted by the legislature, such as ‘severely disabled’ and 'seriously handicapped’ and thereby purports to limit the category of incapable children as defined by the legislature.” Katherine Spaht, The Remnant of Forced Heirship: The Interrelationship of Undue Influence, What’s Become of Disinherison, and the Unfinished Business of the Stepparent Usufruct, 60 La L.R. 637, 643 (2000).


text:
    STATE of Louisiana, Appellee v. Everett Charles WILLS, Jr., Appellant.
    No. 48,469-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Everett Charles Wills, Jr., Pro se.
    Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, II, District Attorney, Suzanne M. Owen, William J. Edwards, J. Aaron Crawford, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Everett Charles Wills, Jr., was indicted for second degree murder of Carlos Guster, a violation of La. R.S. 14:30.1. A jury found Wills guilty as charged. The mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence was imposed. Wills now appeals his conviction and sentence. His appellate attorney asserts two assignments of error: insufficient evidence of the crime of second degree murder and excessive sentence. In his pro se brief, Wills objects to the state’s use at trial of gruesome photographs and denial of his motion for a speedy trial.. We affirm Wills’ conviction and sentence.

Discussion

In brief, defendant argues that “[T]he homicide in this case was not second degree murder, but manslaughter.” Without question, the evidence showed that on the night of April 18, 2011, defendant shot and killed Carlos Guster.

Sufficiency of the evidence

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that constitutional due process requires reviewing courts to “determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id., 443 U.S. at 318, 99 S.Ct. at 2788-89. In assessing the sufficiency of the evidence under the Jackson standard, a court asks whether, after considering all the evidence in the light most favorable to the verdict, any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. The Jackson v. Virginia standard has |2two components. It requires the reviewing court to view the evidence in the light most favorable to upholding the verdict. “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id., 443 U.S. at 319, 99 S.Ct. at 2789. Thus, a reviewing court defers to the jury’s credibility and weight determinations. The Jackson v. Virginia standard then requires the reviewing court to determine whether the jury’s verdict is “rational” under the beyond a reasonable doubt standard. The Louisiana legislature has enacted the Jackson standard in La. C. Cr. P. art. 821. This standard is applied in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983).

Manslaughter

Louisiana R.S. 14:31(A)(1) provides that manslaughter is a homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds |sthat the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

For this “heat of passion” rule to be invoked, there must be (1) provocation sufficient to deprive an average person of his self-control and cool reflection; (2) a killing that was committed in a sudden heat of passion-that is, the killing must follow the provocation before there had been a reasonable opportunity for the passion to cool; and (3) a causal connection between the provocation, the passion, and the fatal act. La. R.S. 14:31(A)(1).

The Louisiana Supreme Court, in State v. Lombard, 486 So.2d 106, 110 (La. 1986), explained the distinction between manslaughter and murder in this way:

[T]he presence of “sudden passion” or “heat of blood” distinguishes manslaughter from murder. The court has stated on several occasions, however, that “sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. (Citations omitted) (Emphasis added).

In State v. Brooks, 36,855 (La.App.2d Cir.03/05/03), 839 So.2d 1075, 1078, writ denied, 03-0974 (La.11/07/03), 857 So.2d 517, the court explained that:

Provocation is a question of fact to be determined by the trier of fact.... Provocative acts held to rise to the level of mitigating conduct have involved physical threats or actions on the part of the victim. See State v. Lombard, supra, and State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64 and 65 (La.1987). Moreover, our courts have not derogated from the principle that “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988); State v. Conerly, 48 La. Ann. 1561, 21 So. 192 (La.1896).

As stated, heat of passion is a mitigatory factor in the nature of a defense reducing culpability and defendant must show by a preponderance of evidence its applicability. State v. Lombard, supra; State v. Jackson, 34,076 (La.App.2d Cir.12/06/00), 774 So.2d 1046. In deciding whether a defendant subjectively acted in the heat of passion, the jury considers the defendant’s behavior before, during, and after the crime, but it is the defendant’s emotional state at the time of the killing that is of primary importance.

Facts

This shooting occurred on the night of April 18, 2011, around 10:30 p.m. The victim, 26-year-old Carlos Guster, was walking in his neighborhood. Zina Guster, the victim’s mother, testified that Carlos talked out loud to himself. She testified that she was afraid for the victim’s safety and that she sought help from the local coroner’s office regarding what could be done to help her son; she was advised that nothing could be done because he was not physically a danger to anyone or himself. She testified that Carlos would carry a little microphone and sing out loud, that he never had any problems with anyone, and that he did not own a firearm.

On the night of the shooting, Carlos stopped at the home of Aleana Johnson, defendant’s mother, to speak with defendant’s sister, 18-year-old Ellen Johnson. Ellen and her twin sister Emma were at home alone with Emma’s son.

|sEUen testified that the victim had a crush on her, but that she had spurned his advances. Ellen and her twin sister Emma also testified that the victim had previously cursed at them and their mother, but that he had never physically assaulted them and they had never seen him with a weapon. Specifically, Ellen stated that the victim had never threatened her with a gun, and she had never seen him with a gun. Ellen testified that she had observed the victim talking out loud to himself on several occasions, but she had never reported the victim to the police, nor told defendant about his threats. Similarly, Emma testified that her mother had witnessed the victim’s behavior, but that they had never told defendant about the victim’s threats.

Tondra Johnson, the next door neighbor of Aleana Johnson, testified that she saw the victim walking alone around 10:15 p.m., and that he was talking to himself. She stated that she did not see any weapon. She described the victim as walking on the sidewalk in front of her home, when suddenly defendant, who apparently was dropping his mother off at her home, parked his car in the street and called out to the victim. She testified that defendant’s twin sisters were present on their front porch. She heard defendant state “that he wanted to talk to him (the victim),” but there did not appear to be any hostility. She walked into her home and soon heard “popping noises” outside. She and her son Joe went outside and observed defendant standing over the victim. She asked defendant what happened, and defendant stated that the victim had “disrespected his mom’s house.” She saw a gun in defendant’s hands and asked defendant if he was going to | (¡leave the victim in her front yard. Defendant then turned around, picked up the victim, and walked across the street to a vacant lot where he dropped the victim’s body. Defendant then got in his car and drove off. Joe Johnson, the son of Ton-dra Johnson, testified that he observed defendant carrying a body to a vacant lot before he drove away.

Charmaine Williams testified that he saw defendant shoot the victim, that he heard numerous gunshots, that he saw defendant trying to unjam “his gun and then he saw defendant shoot the victim four or five more times while the victim was lying on the ground. He further testified that the girls (presumably the two sisters) were screaming at defendant not to shoot the victim.

Defendant’s mother and two sisters testified that the victim was talking to defendant and threatening harm to the sisters before he jumped behind a tree and started to pull something from his pocket. At that point defendant shot Carlos, who fell to the ground. One sister stated that then “my brother was making sure whatever he was trying to get out of his pocket — I don’t even know what he was trying to get out of his pocket. But my brother, you know, shot him again.” The mother claimed that Carlos told defendant that he was going to f— those b- and then kill everyone. The mother was impeached by her recorded statement to the police. She said to the police that she had gone into the house and did not see the shooting. On cross-examination, she admitted that she did not see the shooting but heard it.

|7Roy Dickerson, a neighbor, did not see the shooting, but heard the shooting and women screaming. He went outside and observed a person carrying another person. Specifically, he stated that he heard the sounds of gunshots “close together” and looked outside and saw someone standing under the street light. The person under the light then fired twice more down to the ground. Dickerson testified that he saw the shooter stoop and pick up a person.

After the shooting, defendant, who was 35 years old, returned to his home. His wife, Teresa Wills, testified that he was sorry about what happened. She testified that she had previously purchased a gun, a Hi-Point .380, for the protection of her and defendant’s family home, but that she had not seen the gun prior to the shooting. The gun was never recovered; however, the holster was recovered from defendant’s car.

A record from Brittain’s Pawn Shop showed that Teresa Yvette Barnes/Wills purchased on February 12, 2009, a Hi-Point .380 caliber pistol and a Cobra .32 caliber derringer. Two live rounds and six spent cartridges were found at the scene. Richard Beighley, a firearms examiner with the North Louisiana Crime Lab, identified all eight cartridges as .380 caliber. He further noted that the two live rounds had damage consistent with the pistol jamming.

Defendant was interviewed by Sgt. Paul Robinson of the Shreveport Police Department. Defendant, after being given the Miranda warnings, agreed to talk. Defendant stated that the victim had been disrespecting his mother and sisters and some type of confrontation ensued. He stated that lathe victim pulled a gun and that defendant took the gun from the victim and shot him. His statement was played to the jury.

Dr. Long Jin, an expert in forensic pathology, performed the autopsy on the victim. He testified that the victim had six gunshot wounds and other injuries to the right back of the neck and the right upper back, which may have resulted in fragmented bullets hitting the ground. Specifically, Dr. Jin testified that most of the bullets’ trajectories were from front to back, left to right and top to bottom. Dr. Jin recovered one projectile. Dr. Jin testified that the cause of the victim’s death was multiple gunshot wounds to the head and neck, torso and right upper arm. Dr. Jin also testified that the wounds were consistent with the victim being shot while down on the ground.

Verdict

There was no question at the trial that defendant fatally shot the victim, Carlos Guster. Defendant concedes that the evidence presented would be a specific intent murder but for the mitigating factors of provocation and heat of passion. This question must be gauged in the light of applicable law and specific facts. The prosecution’s uncontradicted evidence established that defendant shot the unarmed victim not once but six times. Further, defendant’s pistol jammed after the first shot and he then ejected two rounds that had jammed and shot the victim at least five more times as the victim lay on the ground. Following the shooting, Tondra Johnson asked defendant if he was going to leave the body in her yard. Defendant dumped the body in a vacant lot and drove away from the scene. From these uncon-tradicted circumstances, a rational factfin-der readily could 19have rejected the claim of provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation is a question of fact to be determined by the trier of fact. Provocative acts held to rise to the level of mitigating conduct have involved physical threats or actions on the part of the victim. See State v. Lombard, supra. There was no evidence of such acts by the victim. The statements by defendant to the police about taking a gun from the victim and shooting him with it are incredible. We note that defendant did not testify at trial. The testimony of defendant’s mother was impeached. Moreover, our courts have not derogated from the principle that “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135, 1143 (La.App. 2d Cir.1988).

Excessive sentence

By his second assignment of error, Wills contends that he was sentenced to life without benefits with no discussion “of who Charles Wills is as a person, what circumstances that led to this tragedy, or what the ultimate impact of this sentence would be for the family he was trying to protect.”

Defendant was convicted of second degree murder, a violation of La. R.S. 14:30.1. This statute requires a mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. It is within the legislature’s authority to determine the length of the sentence imposed for crimes classified as felonies, and the courts are charged with applying these punishments unless they are found to | lftbe unconstitutional. State v. Stone, 33,383 (La.App.2d Cir.05/15/00), 758 So.2d 997, writ denied, 00-2145 (La.06/01/01), 793 So.2d 181. The decision to assess mandatory life sentences is within the prerogative of the legislature. State v. Stone, supra. The assertion that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been rejected. Id., State v. Davis, 31,711 (La.App.2d Cir.03/31/99), 732 So.2d 612, writ denied, 99-3114 (La.05/05/00), 761 So.2d 539; State v. Ruffins, 32,870 (La.App.2d Cir. 12/10/99), 748 So.2d 614.

To rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672.

Defendant has failed to show by clear and convincing evidence that his particular circumstances are an exception to the constitutional application of this mandatory sentence. Defendant shot the unarmed victim who fell to the ground. Defendant’s gun jammed, he ejected two rounds and then shot the victim several more times as the victim lay on the ground. The victim was a small man with mental problems. This is not one of those exceptional or rare cases. The sentence of life imprisonment without benefit |nof parole, probation, or suspension of sentence in the present case does not shock the sense of justice in light of the crime committed.

Further, the trial court did not err in failing to articulate the factors considered in imposing sentence. Failing to articulate reasons for the sentence as set forth in La. C. Cr. P. art. 894.1 when imposing a mandatory life sentence is not error. In such circumstances, setting forth the factors considered in imposing sentence would be an exercise in futility since the court has no discretion. State v. Stone, supra. Further, defendant did not make such a claim at sentencing. The court in this case did not abuse its discretion by not setting forth its reasons for the sentence. State v. Ruffins, supra.

Pretrial motion in limine regarding autopsy photographs

The standards for the admission of gruesome photos are long settled. State v. Wilson, 27,889 (La.App.2d Cir.04/08/96), 672 So.2d 448, writ denied, 96-1195 (La.10/25/96), 681 So.2d 361. In State v. Huff, 27,212 (La.App.2d Cir.08/23/95), 660 So.2d 529, 535, writ denied, 96-0212 (La.05/01/79), 693 So.2d 754, this court said:

Photographs which illustrate any fact or issue in the case, or are relevant to describe the person, place or thing depicted, are generally admissible. Autopsy photographs are admissible to corroborate other evidence establishing the cause of death, the manner in which the death occurred, and the location, severity, and number of the wounds.

Although Wills’ motion in limine regarding the victim’s autopsy photographs was not ruled upon by the court, the record reflects that there was no objection made to the introduction of the autopsy photographs. |12Wills’ counsel did not preserve an objection for appeal and ultimately waived this issue.

Nonetheless, the photos in question were relevant because they depict the severity of the victim’s wounds and the relevant mode and manner of the victim’s death. In addition, Wills’ guilty verdict did not depend solely on the pictures, but also upon the testimony of several witnesses who were present in the neighborhood on the night of the shooting and other evidence admitted at trial.

Motion for speedy trial

Defendant filed a pro se motion for a speedy trial and motion to quash in December 2011. La. C. Cr. P. art. 701 provides for the right to a speedy trial and requires that a motion for speedy trial be accompanied by an affidavit by defense counsel certifying that defendant and counsel are prepared to proceed with trial. Defendant’s motion contained no such certification. Defense counsel requested a continuance of the hearing of the pro se motion. Thereafter, in March 2012, the motion for speedy trial was denied. Trial eventually took place in December 2012. In between, a number of defense motions and defendant’s pro se motions were filed. Specifically, these were motions to quash and suppress evidence. In addition, three motions for continuance were filed and granted.

It is well settled that there are two separate and distinct bases for a defendant’s right to a speedy trial: a statutory right granted by La. C. Cr. P. art. 701 and a constitutional right embodied in the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution 11sof 1974. The two are not equivalent. State v. Bradham, 46,985 (La.App.2d Cir.02/29/12), 87 So.3d 200.

Louisiana C. Cr. P. art. 701 provides that the sole remedy for failure to commence trial within the mandated time period is pretrial release without bail. Once a defendant has been convicted, any allegation that La. C. Cr. P. art. 701 has been violated becomes moot. State v. Bradham, supra; State v. Mack, 37,174 (La.App.2d Cir.06/27/03), 850 So.2d 1035, writ denied, 03-2122 (La.01/16/04), 864 So.2d 628.

The constitutional right to a speedy trial is fundamental and is guaranteed to an accused. U.S. Const, amends. VI and XIV; La. Const. Art. I, § 16; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Jordan, 35,643 (La.App.2d Cir.04/03/02); 813 So.2d 1123, writ denied, 02-1570 (La.05/30/03), 845 So.2d 1067. The right attaches when an individual becomes an accused, by formal indictment, bill of information, or arrest and actual restraint. State v. Bodley, 394 So.2d 584 (La.1981). Louisiana has adopted the four factors used in Barker v. Wingo, supra, to assess whether a defendant’s speedy trial right has been violated. These factors include: (1) length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; (4) and prejudice to the defendant. State v. James, 394 So.2d 1197 (La.1981); State v. Bradham, supra.

Applying the four factors mentioned above, review of the record does not indicate a violation of Wills’ right to a speedy trial. Defendant was indicted in May 2011. The pro se speedy trial motion was filed in December 2011 and denied in March 2012. It did not contain the requisite _J_y certification that defendant and counsel were ready for trial. Numerous motions were thereafter filed, heard and ruled upon by the court. The trial was in December 2012. The delays were primarily extended by matters related to discovery and defense motions, as well as by defendant’s pro se motions. Under the circumstances, the delays were not unreasonable considering the gravity of the offense charged. Furthermore, there is no indication that any delay between the date of indictment and the date of trial was the result of anything other than what the trial court’s docket and calendar permitted. The record does not indicate a bad faith effort on the part of the prosecutor. Defendant has neither alleged nor shown that the delay prejudiced his ability to prepare a defense. After considering the relevant factors as prescribed by the jurisprudence and evaluating all circumstances, we find that defendant was not denied his constitutional rights to a speedy trial.

Defendant’s conviction and sentence are AFFIRMED.

      . In Jackson v. Virginia, 443 U.S. at 326, 99 S.Ct. at 2792-93, the court stated, "Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”

      . Upon refreshing her memory, she stated that defendant went to his truck and parked in the street and returned to get the body.


text:
    Michelle WELLS, Plaintiff-Appellant v. William F. WEBB, M.D., Defendant-Appellee.
    No. 48,479-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Michelle Wells, In Proper Person.
    Pugh, Pugh & Pugh, LLP, Shreveport, by Robert G. Pugh, Jr., Pettiette, Armand & Dunkelman, by Lawrence W. Pettiette, Jr., Shreveport, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ,
   MOORE, J.

|! Michelle Wells, in proper person, appeals a judgment sustaining an exception of prescription and dismissing her medical malpractice claim against Dr. William Webb. We affirm.

Procedural Background

In January 2008, Ms. Wells fell and twisted her ankle while chasing one of her children. After a trip to the Schumpert emergency room, she saw Dr. Webb, an orthopedist at the Highland Clinic, on January 28, 2008. According to Dr. Webb’s records, he diagnosed a “left lateral mal-leolar fracture with deltoid ligament tear.” On February 4, he performed an ORIF (open reduction and internal fixation) at Highland Hospital. The operative report stated that this involved bending a “1/3 semi-tubular plate * * * to the contours of the distal fibula” and placing a “3.5 cortical screw” in the malleolar fragment, with two locking screws above and two below the fracture site.

Ms. Wells came for postop visits on February 18, March 5 and April 2, 2008. On that final date, Dr. Webb noted “some numbness on the dorsum of her foot,” which he attributed to “superficial pero-neal nerve irritation” and expected “to resolve with time,” but reported that she was doing well. He wrote that he would “see her back p.r.n.,” and this was the final time he ever saw her.

. In her request for a medical review panel (“MRP”), Ms. Wells alleged that when she came out of surgery on February 4, 2008, Dr. Webb told her he put screws and a plate on her ankle. In August 2008, she went to a different orthopedist, Dr. Cox, to get this hardware removed; Dr. Cox 12performed another surgery in October 2008. After that surgery, Dr. Cox told her he tried to repair the nerve, but at a later visit he told her it was scar tissue on her superficial peroneal nerve that was causing the pressure. She felt that Dr. Cox “changed” what he said, but she still trusted him because he was her doctor.

Ms. Wells filed the instant request for MRP against Dr. Webb on April 4, 2012, alleging that “in 2010 I found out that my superficial peroneal nerve is not located where my incision or my plate and screws” are and that Dr. Cox tried to “cover up that Dr. Webb had put the plate and screws on my sural nerve.” She also alleged, “July 20, 2011, I found out that Dr. Webb put the plate and screws on my sural nerve * ⅛ ⅜ causing me to have nerve damage.”

Dr. Webb filed an exception of prescription, urging that the claim was prescribed under the three-year limit of La. R.S. 9:5628 and 40:1299.47 A(2)(a). He contended that by her own admission, she “discovered” the malpractice in July 2011, and filed the claim in April 2012, both over three years after his final acts of treatment in April 2008.

Action of the District Court

At the hearing on the exception, Dr. Webb argued that under R.S. 9:5628, the action was facially prescribed, shifting the burden to Ms. Wells to show it was timely. Appearing pro se, Ms. Wells argued that she did not learn about Dr. Webb’s malpractice until July 2011, when she was looking at an anatomy book; she offered into evidence copies of pages from the | sbook. She stated that in her view, she had one year from when she found out about the malpractice to file a claim, and if the statute said otherwise, it ought to be changed.

The court sustained Dr. Webb’s exception and dismissed the claim. Ms. Wells moved for an appeal. She attached copies of records showing that she had filed a previous request for an MRP against Dr. Webb in January 2009, but her attorney at the time dismissed the claim within two weeks of its filing.

Arguments on Appeal

Ms. Wells’s pro se brief does not designate any errors. On a page labeled “Facts,” she concedes, “In 2008 * * * I first learned the negligence of Dr. William Webb” and filed a malpractice claim against him in January 2009, but on the page labeled “Argument” she says that claim “was dismissed due to my medical paperwork being falsified.” She alleges that Dr. Webb “never took X-rays of my ankle and before surgery I know misdiagnosed my X-ray from Christus Schum-pert.” She concludes that the judge ruled against her “because of my facts I did not present in trial court.” By supplemental brief, she highlights the portion of R.S. 9:5628 that states “one year from the date of discovery,” and reiterates that the only reason she dismissed her previous request for MRP was that Dr. Cox falsified her operative report.

Dr. Webb responds that Ms. Wells’s MRP request, filed April 11, 2012, was more than four years after her last postop visit, April 2, 2008, and facially prescribed. This shifted the burden to her, Bordelon v. Medical Ctr. of Baton Rouge, 2008-0202 (La.10/21/03), 857 So.2d 378, and he contends she failed to meet this burden. He concedes that she also filed a complaint against Dr. Cox, in February 2011, but argues that a timely suit against a solidary obligor does not revive a prescribed suit against another solidary obligor, Denoux v. Vessel Management Servs., 2007-2143 (La.5/21/08), 983 So.2d 84. He asks this court to affirm.

Discussion

The prescription of medical malpractice claims is regulated by La. R.S. 9:5628, which provides in pertinent part:

§ 5628. Actions for medical malpractice
A. No action for damages for injury or death against any physician * * *, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

In Borel v. Young, 2007-0419 (La.7/1/08), 989 So.2d 42 (on rehearing), the supreme court held that both the one-year and three-year periods set forth in the statute are prescriptive. Id. at 2, 989 So.2d at 54. However, the court further held that R.S. 9:5628 “is a prescription statute with a qualification, that is, the contra non valentem type exception to | ¡¡prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission, or neglect[.]” Id. at 18, 989 So.2d at 63; Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986).

In cases not regulated by a special statute, courts have utilized the concept of contra non valentem to suspend or interrupt the running of prescription against plaintiffs in four situations:

(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and
(4) Where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant (called “the discovery rule”).

Wells v. Zadeck, 2011-1232 (La.3/30/12), 8-9, 89 So.3d 1145, at 1150, and citations therein.

The court in Borel, supra, specifically held that under R.S. 9:5628, the discovery rule does not apply to suspend the three-year limitation on medical malpractice actions. Borel v. Young, supra at 18, 989 So.2d at 63; Hebert v. Doctors Memorial Hosp., supra.

As noted, Ms. Wells has asserted only the discovery rule to oppose the facial untimeliness of her claim. Under the interpretation of R.S. 9:5628 stated in Borel and Hebert, supra, the discovery rule does not suspend the three-year limit, and Ms. Wells’s position is unavailing. While she argued | ¿rather ingeniously that the discovery rule should apply across the board, we lack the authority to rewrite the statute or to overrule the supreme court’s plain reading of it.

We are sensitive to Ms. Wells’s pro se status and hold her pleadings to less stringent standards than those filed by a lawyer. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Capital One NA v. Walters, 47,157 (La.App. 2 Cir. 6/20/12), 94 So.3d 972. She contends that she lost because of facts she did not present in the trial court. However, the appellate court is a court of record; we may not review evidence that is not in the appellate record or receive new evidence. La. C.C.P. art. 2164; Denoux v. Vessel Management Servs., supra at 6, 983 So.2d at 88; Martin v. Comm-Care Corp., 37,600 (La.App. 2 Cir. 10/16/03), 859 So.2d 217, writ denied, 2003-3188 (La.2/6/04), 866 So.2d 225.

The district court did not err in sustaining the exception of prescription.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Michelle Wells.

AFFIRMED.

      . She also filed a request for MRP against Dr. Cox on February 17, 2011.

      . In support, he cites her previous request for MRP, which her attorney withdrew, as evidence that she knew of the alleged malpractice as early as January 2009.

      . Even if we were to consider the documents attached to her motion for appeal, these would tend to show that she had sufficient knowledge of her potential malpractice claim in January 2009, well within R.S. 9:5628’s time limits.