author: GREMILLION, Judge.

text:
    STATE of Louisiana v. DeMarcus W. LAW.
    No. 12-1024.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Van H. Kyzar, District Attorney, Tenth Judicial District Court, Natchitoches, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate, Lake Charles, LA, for Defendant/Appellant, DeMarcus W. Law.
    DeMarcus W. Law, Louisiana State Penitentiary, Angola, LA, for Defendant/Appellant, DeMarcus W. Law.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_Jj_On March 9, 2010, the State charged Defendant, DeMarcus W. Law, with second degree murder, a violation of La.R.S. 14:30.1, and attempted second degree murder, a violation of La.R.S. 14:27 and La. R.S. 14:30.1.

After pretrial hearings, jury selection began on January 17, 2012. The next day, the jury began hearing evidence; finally, on January 19, the jury found Defendant guilty as charged.

The trial court heard and denied Defendant’s Motion for New Trial on April 18, 2012. On April 25, 2012, the court sentenced Defendant to life imprisonment without benefit of parole, probation, or suspension of sentence for second degree murder. For the attempted second degree murder conviction, the court sentenced him to a consecutive term of fifty years.

Defendant now appeals his convictions, assigning five errors. For the following reasons, Defendant’s convictions are affirmed

FACTS:

Dekaria Williams was sitting in the living room of his Natchitoches home. Sha-Michael Berryman and Edward Paige were in the kitchen along with some quantity of cocaine.

Suddenly, Defendant burst into the house; Williams tried to grab him, but Defendant shot him in the arm. Defendant then went into the kitchen and resumed shooting. Defendant’s accomplice, Jody Hamilton, who was at the door, shot Williams multiple times. As Williams was getting up from Hamilton’s last shot, 12Pefendant ran back into the room and shot him in the face. Williams survived his many wounds; Berryman died.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant attacks the sufficiency of the evidence. A finding of insufficiency would require reversal of the conviction and obviate the need for discussion of the other four assignments of error. See State v. Hearold, 603 So.2d 731 (La.1992). Thus, we address it first.

Although Defendant frames his argument as relating to the denial of his motion for new trial below, during argument at the motion hearing he focused entirely on a different issue than the one he now raises. At the hearing, he argued that the evidence was insufficient only as to the murder of Berryman. The basis of his argument was that the evidence was circumstantial, since Williams heard shots but did not see the shooting in the kitchen. On appeal, he attacks both convictions, alleging that Williams was not credible due to inconsistencies between his trial testimony and his earlier statements to police.

Normally, an attack on sufficiency of evidence would be the subject of a motion for post-verdict judgment of acquittal, not a motion for new trial. However, as Defendant’s brief uses the term “insufficient” and cites the seminal case in this area of law, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we will proceed with a standard sufficiency analysis.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126; See also State v. Kennerson, 96-1518, (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

The focus of Defendant’s credibility attack is that the victim told his father that there were three or four attackers and he did not know who they were. During his testimony, the victim acknowledged that at one time he thought there may have been a third person involved in the offense, possibly a person named Paige, but he affirmed that he saw Defendant and Hamilton. He had known Defendant since the latter was a little boy, but they were not close. Regarding the victim’s failure to identify the shooters to his father, the victim explained that he did not want his father to get involved, as he did not “want him [his father] to do nothing to get in no trouble.”

Defendant argues “it is of great moment that Dekaria Williams was engaged in the commission of a felony at the time of the shootings.” Also, Defendant suggests that immediately after the incident, Williams displayed some degree of indifference in regard to Berryman. It is not clear that the second statement is a correct assessment. However, even if Defendant’s factual premises are both correct, he does not explain how either would have affected the victim’s credibility.

As noted in Kennerson, a jury’s credibility assessments are not to be second-guessed. Defendant’s arguments provide no basis for a reassessment of matters that were put to the jury at trial. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant notes that the bench conferences were not recorded. Thus, he suggests the record is so incomplete that on appeal he | ¿cannot effectively argue regarding jury composition. He' notes that the original record did not include the jury strike sheets and the minutes do not specify whether the venire members excused were challenged for cause or peremptorily. Also, the minutes do not reveal which party challenged each venire member. However, the only venire member he mentions in this context is Delores Bivens, and both the minutes and the strike sheets show that she served as a juror.

Regarding unrecorded bench conferences, the supreme court has explained:

This Court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La.C.Cr.P. art. 843, which requires in felony cases the recording not only of the evidentiary portions of trial but also of “the examination of prospective jurors ... and objections, questions, statements, and arguments of counsel.” State v. Hoffman, 98-3118, p. 50 (La.4/11/00), 768 So.2d 542, 586. The Court has instead conducted a case-specific inquiry to determine whether the failure to record the conferences results in actual prejudice to the defendant’s appeal. As a general rule, the failure of the record to reflect the argument of counsel on objections, even when made in open court, does not affect a defendant’s appeal because it does not hinder adequate review of the trial court’s ruling. State v. Johnson, 438 So.2d 1091, 1104 (La.1983). Thus, the failure to record bench conferences will ordinarily not affect the direct review process when the record suggests that the unrecorded bench conferences had no discernible impact on the proceedings and did not result in any specific prejudice to the defendant. See, e.g., Hoffman, 98-3118 at 50-51, 768 So.2d at 587 (trial court cured any record problems “by summarizing substantive unrecorded conferences for the record”); State v. Castleberry, 98-1388, pp. 28-29 (La.4/13/99), 758 So.2d 749, 773 (three unrecorded bench conferences during direct examination of state witnesses had no discernible impact on the proceedings and the fourth concerned a mistrial motion by defense counsel, the basis of which was “easily ascertainable from the record” without regard to the unrecorded sidebar discussion); State v. Deruise, 98-0541, pp. 9-15 (La.4/3/01), 802 So.2d 1224, 1233-37 (failure to record bench conferences in which the prosecutor and defense counsel made their peremptory and cause challenges did not prejudice the appeal when the jury strike sheet was available for review and detailed the exercise of peremptory challenges by both sides and when the transcript of the voir dire revealed a substantial basis for denying a defense cause to the juror, even assuming that the challenge had been made but not preserved in the record; remaining unrecorded bench conferences involved evidentiary matters that were otherwise addressed in the | ^appeal, or involved matters of no discernible impact for which the defendant failed to demonstrate prejudice); State v. Allen, 95-1754, p. 11 (La.9/5/96), 682 So.2d 713, 722 (failure to record arguments at the bench concerning some of the defense peremptory challenges harmless when challenges for cause and arguments on the challenges were fully transcribed in the record and the minutes clearly reflected which jurors had been excused peremptorily and whether the state or defense had exercised the challenge).
On the other hand, in State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214, a combination of loud construction noise at the courthouse and audio recording problems on the part of the court reporter rendered the record grossly incomplete in several respects, including the failure to record peremptory strikes and challenges for cause made at the bench. Landry, 97-0499 at 1-2, 751 So.2d at 215. This Court reversed the defendant’s capital conviction and sentence and remanded for a new trial because the deficiencies deprived the defendant of his constitutional right of appeal and judicial review. Landry, 97-0499 at 4, 751 So.2d at 216. The Court thereby reaffirmed that “it is not the defendant’s obligation to insure an adequate record.... it is the duty of the court.... to see that the court reporter makes a true, complete and accurate record of the trial.” Landry, 97-0499 at 3, 751 So.2d at 216 (citing American Bar Association Standards Relating to the Function of the Trial Judge, § 2.5 (1972)).
In the present case, the trial court and not defense counsel had the duty to insure that the bench conferences involving jury selection were properly recorded because La.C.Cr.P. art. 795(B)(2) required that counsel for the state and defense exercise their peremptory challenges in side bar confer-encés out of the hearing of jurors, and further required that the court refrain from attributing the strikes to either side on the record when excusing the jurors. Counsel therefore could reasonably assume that the court had taken adequate steps to preserve the record of the side-bar conferences for appeal just as counsel could reasonably assume that the evidentiary portions of trial were also adequately recorded and preserved for review. Counsel could also reasonably assume that the court had discharged its correlative duty of insuring that the minutes of the proceedings would conform to the requirements for the lodging of appeals in criminal cases in the courts of appeal and this Court, and thus include a list of challenges for cause and peremptory challenges in addition to a list of jurors selected to try the case. See La.S.Ct.' Rule I, § 6(b); Rule 2 — 1.5(3) and (4), Uniform Rules Courts of Appeal.

State v. Pinion, 06-2346, pp. 7-10 (La.10/26/07), 968 So.2d 131, 134-36 (emphasis added).

| ^Defendant gives no indication that he attempted to obtain copies of the jury strike sheets himself. However, as a result of a motion for supplementation of the record filed by the State, this court obtained them on December 3, 2012, pursuant to an order. They show the cause-based strikes, but not which party made them. Nonetheless, those appear to be the successful cause-based challenges, and the sheets do show which party made each peremptory strike. It stands to reason that such strikes were made in response to Defendant’s unsuccessful challenges for cause. Combining the information in the strike sheets, the minutes, the voir dire examinations, and the short discussion of excused venire members that occurred at the venue hearing, Defendant could have constructed any viable arguments regarding various venire members.

Further, as the State points out, the record contains no objections by Defendant to any denials of challenges for cause. Louisiana Code of Criminal Procedure Article 800(A) states, “A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.” Further, after denying Defendant’s Motion for Change of Venue, the court asked Defendant’s trial counsel whether there were “any other objections to the jury selection process.” Counsel replied, “That’s it, Your Honor.” However, the Pinion court stated:

Although the court of appeal faulted counsel for not making a general objection on the record to the composition of the jury, an objection that counsel had been forced to accept an obnoxious juror as the result of the trial court’s erroneous ruling on one or more cause challenges has not been an aspect of the Court’s jurisprudence for preserving error in the denial of cause challenges for over 50 years since State v. Breedlove, 199 La. 965, 7 So.2d 221 (1942) was | legislatively superseded in the 1966 revisions to the Code of Criminal Procedure. See State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1279-80. In jury selection, counsel satisfies the requirements of Louisiana’s contemporaneous objection rule by stating his grounds for a cause challenge and then by removing the juror with one of his remaining peremptory challenges when the court declines to excuse the juror for cause. La.C.Cr.P. art. 841 (“It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take ... and the grounds therefor.”).

Id. at 186 (emphasis added).

Although Pinion did not discuss La. Code Crim.P. art 800, this passage negates the application of that article. We note that a recent majority opinion analyzing the conviction of Defendant’s accomplice Hamilton was based on a Pinion issue. After discussing Pinion itself, our colleagues explained:

In State v. Williams, 06-1327 (La.App. 4 Cir. 1/23/08), 977 So.2d 160, unit denied, 08-413 (La.10/24/08), 992 So.2d 1033, the defendant argued that his right to full appellate review was impinged because the in-chambers portion of voir dire, where he raised challenges for cause, was not available. The fourth circuit noted that appellate counsel, who was not counsel at trial, raised no argument as to any specific juror who should not have been seated. Id.
The fourth circuit ruled as follows:
Here, unlike in Pinion but as in Demise, the record contains detailed jury sheets that indicate the peremptory strikes for each party as well as those jurors who were excused for cause. In addition, as in Demise, the transcript of voir dire includes the questioning of each prospective juror, from which it can be determined if there was a basis for any challenges for cause that the defense may have brought and may have been denied by the trial court, thereby causing the defense to exercise a peremptory chai-lenge for a juror. A reading of the transcript of voir dire shows that there was no basis to excuse for cause any of the jurors who ultimately served on the jury or those whom the appellant had to excuse peremptorily. Thus, as in Demise, the appellant cannot show prejudice from the loss of the in-chambers portions of the voir dire where the defense may have challenged any of these jurors for cause because there was no basis for granting a challenge for cause as to any of the jurors |8who sat at trial or whom the defense peremptorily excused. Because the appellant cannot show prejudice from the lack of the transcript of these in-chambers conferences, he is not entitled to a new trial on this basis.

Id. at 176.

In State v. Campbell, 06-286 (La.5/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008), the defendant claimed that the transcript of numerous court appearances, hearings, and bench conferences were omitted from the appellate record. He also suggested that record omissions during voir dire rendered it difficult to establish the viability of cause challenges.

The supreme court addressed the issue stating:

In Landry, this Court reversed a conviction and death sentence because the appellate record was so deficient that the Court could not properly review the case for error. Landry, 1997-0499, pp. 1-4, 751 So.2d at 214-16. Even though this Court has found reversible error when material portions of the trial record were unavailable or incomplete, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” does not require reversal of a conviction. [State v.] Draughn, 2005-1825 p. 63 [ (La.1/17/07) ], 950 So.2d [583] at 625; State v. Castleberry, 1998-1388 p. 29 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999), quoting State v. Allen, 1995-1754 (La.9/5/96), 682 So.2d 713 (internal citation omitted). An incomplete record may be adequate for appellate review. Castleberry, 1998-1388 p. 29, 758 So.2d at 773; State v. Hawkins, 1996-0766 p. 8 (La.1/14/97), 688 So.2d 473, 480. A defendant will not be entitled to relief on the basis of an incomplete record absent a showing that he was prejudiced by the missing portions of the record. Id.
Defense counsel contends that the fact that the defendant represented himself at trial, coupled with the issues raised regarding the defendant’s competency, necessitate a complete and accurate record since the defendant lacks the ability to provide important information to his appellate counsel. However, the defense offers no suggestion or argument that the defendant was prejudiced by the record omissions.
[ 3With regard to the transcription of the voir dire proceedings, we found no difficulty in determining the appropriateness of the cause challenges, which were the issues raised by the defendant on appeal.

Id. at 872-74.

In State v. Spears, 08-831 (La.App. 3 Cir. 3/4/09), 8 So.3d 119, the defendant argued the record was so deficient in some areas that it deprived him of his right to appeal. Many portions of the voir dire transcript referred to individual venire members as “potential juror” rather than by name. Id. at 121. Additionally, a number of the comments and statements made throughout voir dire were listed as “inaudible.” Id.

Jury strike sheets received by this court in Spears indicated the defendant used all of his peremptory strikes. The sheets listed which venire members were challenged for cause but did not show the party making the individual challenges and the reasons for any challenge. This court noted that the defendant did not raise any issue regarding the challenges made during voir dire. This court further stated:

The difficulty in this case, as in Pinion, is the fact that the discussions of the jury challenges do not appear in the record. We find the record does not contain enough information for Defendant to effectively challenge the denials of his challenges for cause. As a practical matter, a careful reading of the revised transcript of voir dire enables a reader to identify at least some of the unnamed prospective jurors. However, any attempt at argument or review would require identification of Defendant’s unrecorded causal challenges, and reconstruction of both the reasons supporting them and the reasons for the trial court’s denial of them. Any such attempt would venture into the realm of mere speculation. As the current record is insufficient for practical review of the denials of Defendant’s challenges for cause, Defendant’s conviction and sentence are vacated and the case remanded for new trial, pursuant to Pinion.

Id. at 122.

In State v. L.W., 11-904 (La.App. 3 Cir. 6/6/12), [95 So.3d 1222], the defendant alleged that the record was deficient because neither the transcript nor the minutes of voir dire contained either party’s challenges for cause or peremptory challenges as to any of the prospective jurors. The record contained the entire colloquy between the trial court, the attorneys, and prospective jurors, and the identity of hnthe prospective jurors was readily apparent. Several bench conferences during voir dire, however, were not recorded. This court noted that the voir dire transcript indicated that forty-one prospective jurors were called, eight of which were excused by the trial court for cause with reasons stated. Nineteen of the prospective jurors were excused following bench conferences. Neither the transcript nor minutes of voir dire indicated which party made the challenges, the grounds for the challenges, or the trial court’s reasons for its rulings. Additionally, the minutes did not detail any peremptory challenges, only that certain jurors were challenged for cause, excused for cause, or excused.

This court found:

Unlike the facts before this court in Spears, 8 So.3d 119, the voir dire transcript contains detailed discussion of the voir dire examinations, including all of the questions posed by the trial court and parties and the responses of the each prospective juror. Additionally, the defendant does not identify a specific juror or jurors who should not have been seated based on the information available in the voir dire transcript. Accordingly, we find the defendant has not established he was prejudiced by the missing transcriptions of bench conferences during voir dire.

Id. at *14.

The case at bar is like Pinion, 968 So.2d 181, in that there is a transcript of voir dire, but that transcript does not include the in-chambers discussions regarding the exercise of cause and peremptory challenges, and the minute entries do not indicate which side excused the prospective jurors and why. Additionally, the record indicates that Defendant used all twelve of his peremptory challenges. Despite the fact that there was an objection to the denial of four challenges for cause asserted by Defendant, the record is uncertain as to exactly how many cause challenges Defendant made unsuccessfully. Based on Pinion, we find that the Defendant’s convictions and sentences should be vacated and the matter remanded for further proceedings.

This case is distinguishable from Campbell, 983 So.2d 810, because Defendant in the case at bar has alleged that the record omissions would add additional support to the arguments raised in the assignment of error regarding the challenges for cause and show a possible pattern of disparate treatment. In contrast, the defendant in Campbell offered no suggestion or argument that he was prejudiced by the record omissions.

|1TThe ease at bar is also distinguishable from Williams, 977 So.2d 160, as the record at issue does not indicate which jurors were challenged for cause, other than the four jurors defense counsel addressed at the completion of jury selection, or peremptorily struck. Further, a reading of the transcript of voir dire cannot show there was no basis to excuse for cause any of the jurors who ultimately served on the jury or those whom Defendant had to excuse peremptorily, as one cannot ascertain who was peremptory excluded. Such a determination would call for speculation, which this court disapproved of in Spears, 8 So.3d 119.

This case is also similar to L.W., [95 So.3d 1222], in that the instant record contains a complete transcript of voir dire, and Defendant fails to identify a specific juror or jurors who should not have been seated based on the information available in the transcript of voir dire. However, this case is distinguishable from L.W. in that Defendant in the case at bar makes some argument regarding the unrecorded bench conferences and the defendant in L.W. merely claimed his right to appeal based on a complete record of all evidence upon which the judgment was based was violated.

Based on the supreme court’s decision in Pinion, 968 So.2d 131, Defendant’s claim has merit; thus, his convictions and sentences will be vacated and the matter remanded to the trial court for further proceedings. In light of the foregoing ruling, this court need not address any of Defendant’s other assignments of error.

State v. Hamilton, 103 So.3d at 710-713 (footnotes omitted).

In the present case, the record contains detailed voir dire examinations; unlike Hamilton, the jury strike sheets were also available. Further, Defendant does not make any specific argument regarding challenges to any particular venire members. The present case is more akin to Williams, 977 So.2d 160, and Deruise 802 So.2d 1224.

Defendant suggests that his argument regarding change of venue and racial composition may have been strengthened if the record contained the unrecorded bench conferences. However, he does not explain how information from the bench | ^conference would have enhanced that argument. Further, as will be seen in the analysis of the next assignment, Pinion does not apply to the deficiencies that may have occurred in relation to the Motion for Change of Venue. Thus, Defendant has failed to demonstrate that his case was prejudiced by the failure to record bench conferences.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that the trial court erred in failing to grant his Motion for Change of Venue. The basis of the motion was an alleged racial imbalance in the composition of the jury. Defendant alleges, as he did in the trial court, that most of the African-American venire members examined knew parties to the case or had previously heard about the shooting. Further, he alleges, “most or all of the Caucasian jury candidates were unaware of the facts of the case. As a result it was impossible to get a jury consisting of a cross[-]section of the community in this case.”

Defendant cites no cases on point with his current argument, and our own research has found none. This particular argument appears to be res nova in the context of a motion for change of venue; normally, a defendant’s allegations of improper racial composition of a jury are raised via Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Bat-son prohibits using race a basis to exclude individual jurors. There is no indication that any Batson challenges were raised in the present case.

Nevertheless, our supreme court and this court have heard cases in which the racial-composition issue has been raised in the context of motions to quash. For | ^example, the supreme court has reviewed the jurisprudence of a claim of under-representation of a minority in the venire:

A general jury venire “shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.” La.C.Cr.P. art. 419(A). The defendant bears the burden of proving the grounds for setting aside the venire. State v. Liner, 397 So.2d 506 (La.1981); State v. Manning, 380 So.2d 54 (La.1980). That burden of proof requires that the defendant show more than the underrepre-sentation of blacks on the petit jury venire in order to prove a systematic exclusion of blacks. Manning, supra; State v. Anderson, 315 So.2d 266 (La.1975). The law requires that there must not be a systematic exclusion of blacks in the source or sources from which jury venires are chosen. However, that does not mean that a defendant is entitled to a petit jury which reflects the population of the community in every respect. “Defendants are not entitled to a jury of any particular composition.” Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); State v. George, 371 So.2d 762 (La.1979). In fact, a jury comprising a complete representation of the various groups within the community would be virtually impossible to seat. State v. Cage, 337 So.2d 1123 (La.1976).

State v. Lee, 559 So.2d 1310, 1313-14 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).

This court addressed a claim similar to that asserted here as follows:

In the case sub judice, it is undisputed that the 200 persons in the petit jury venire were selected at random by a computer. After several persons were excused from jury service, the clerk pulled twelve names at random from the jury box, and continued accordingly until a twelve-person jury was selected. During voir dire, the State successfully challenged two jurors for cause but did not peremptorily challenge any jurors. The defendant successfully challenged two jurors for cause and peremptorily challenged five jurors. Although the petit jury venire was approximately 5% to 10% black, no blacks were selected for voir dire. After an all[-]white jury was selected, accepted and sworn in, the defendant filed a motion to quash the petit jury venire on the basis that it did not contain a representative cross-section of the community. According to the defendant, this forced him “to go to trial with an all[-]white jury.”
In State v. Kirts, 447 So.2d 1 (La.App. 3rd Cir.1983), writ not considered, 464 So.2d 306 (La.1985), this court addressed and rejected the same argument defendant asserts in the case sub judice. |14In Kirts, defense counsel filed a motion to quash the petit jury venire on the morning of trial, contending that the petit jury venire was racially imbalanced. Although no allegation of discrimination was offered for the racial imbalance, counsel for defendant asserted that a newly drawn veni-re, representative of a cross[-]section of the community, was necessary to assure that defendant would be judged by a fair and impartial jury. On appeal from the trial court’s refusal to grant the motion to quash, we rejected Kirts’ argument. We held that the defendant failed to make a prima facie showing of discrimination where there are no allegations of fraud, and the record is devoid of any indications of such, or that some great wrong was committed that would work irreparable injury to him. Id., 447 So.2d at 3.
In the case sub judice, defendant asserts that he was prejudiced by the petit jury venire. We disagree. At the argument of the motion to quash, defense counsel stated that he was not alleging fraud, and offered no evidence of discrimination or irreparable injury attributable to the petit jury venire. Therefore, based on a careful examination of the record, we find that the trial court properly denied defendant’s motion to quash the petit jury venire, finding that defendant failed to make a prima facie showing of discrimination. State v. Kirts, supra. Defendant’s assignment of error is without merit.

State v. Melancon, 563 So.2d 913, 914 (La.App. 3 Cir.1990), writ denied, 586 So.2d 527 (La.1991). Thus, jurisprudence establishes that Defendant is not entitled to the relief he seeks. He does not allege fraud or systematic racial discrimination. Further, the cases cited show that even if racial imbalance occurred that, without more* would not entitle him to relief.

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues the “jury instructions incorrectly included the phrase ‘or to inflict great bodily harm’ within the attempted second degree murder charge.”

Defendant observes that when the trial court advised the jury regarding the elements of attempted second degree murder, it did not include the fact that | ^specific intent to kill is required to support a conviction for attempted second degree murder. He cites jurisprudence:

To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. La. R.S. 14:27; 14:80.1. Although the statute for the completed crime of second degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Huizar, 414 So.2d 741 (La.1982).

State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437.

The State argues that this court should not review the assignment because Defendant failed to object to the instruction. As La.Code Crim.P. art. 801(C) explains, in pertinent part,

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection.

As the State observes, this court has stated:

In his first assignment of error, Defendant argues the trial court erroneously charged the jury in its initial charge of law when it included the element of specific intent to kill or inflict great bodily harm. Defendant concedes that an objection to the jury charge was not made. As such, pursuant to La.Code Crim.P. art. 801, the issue was not preserved for review on appeal. State v. Campbell, 06-286 (La.5/21/08), 983 So.2d 810, cert. denied, [555] U.S. [1040], 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). Accordingly, this assignment of error cannot be considered.

State v. Jones, 09-1453, p. 7 (La.App. 3 Cir. 8/11/10), 45 So.3d 1136, 1141, writ denied, 10-504 (La.2/18/11), 57 So.3d 328, writ denied, 10-2132 (La.2/18/11), 57 So.3d 330.

In another case, a defendant argued that the trial court had “misstated an element of the crime.” State v. Brown, 07-388, p. 15 (La.App. 3 Cir. 10/3/07), 966 So.2d 1138, 1148, writs denied, 07-2159, 08-326 (La.3/28/08), 978 So.2d 304, 312. This court stated, “Due to the lack of contemporaneous objection, we are required to find that the assignment lacks merit. See State v. Howard, 98-64 (La.4/23/99), 751 So.2d 783, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). See also State v. Belgard, 410 So.2d 720 (La.1982).” Brown, 966 So.2d 1138 at 1149.

In his reply brief, Defendant argues for an exception to the contemporaneous objection rule. He relies mainly upon a single supreme court case:

The state points out that defendant did not object to the erroneous jury instruction concerning definitions of the crimes of first degree and second degree murder. And they call our attention to a long line of cases to the effect that erroneous jury instructions are not errors patent on the face of the record. Absent objections and because the trial court is denied an opportunity to correct them, such errors are generally not reviewable. State v. Progue, 350 So.2d 1181 (La.1977); State v. Roche, 341 So.2d 348 (La.1976); State v. Smith, 339 So.2d 829 (La.1976).
The state’s argument is of course correct, so far as it goes. Nonetheless it is within the province of this reviewing court to entertain complaint of Constitutional violations on appellate review notwithstanding that consideration of such complaint more often than not is deferred until filing of a writ of habeas corpus. This Court’s usual pretermission of such issues stems from the need of an evidentiary hearing which can only be had incident to the writ of habeas corpus. The record before us, however, bears full and sufficient proof of the error which no posterior hearing could augment.

State v. Williamson, 389 So.2d 1328, 1331 (La.1980) (footnote omitted).

In Brown, this court discussed Williamson:

In Howard, the supreme court explained:
As an initial matter, defendant’s trial counsel did not object to the instruction at trial, and thereby waived any claim based on it. La.C.Cr.P. art. 841; [Slate v.] Taylor, [93-2201 (La.2/28/96) ], 669 So.2d [364] at 367-69; [State v.] Harris, 383 So.2d [1 (La.1980) ] at 10-11. Although Louisiana courts have sometimes waived the contemporaneous objection rule, see State v. Williamson, 389 So.2d 1328, 1331 (La.1980) (an error involving “the |17very definition of the crime of which defendant was in fact convicted ... is of such importance and significance as to violate fundamental requirements of due process”), this Court has also on two occasions explicitly cautioned that Williamson did not establish jurisprudentially the equivalent of a “plain error” rule created by F.R.Crim.P. 52(b). State v. Arvie, 505 So.2d 44, 48 (La.1987); State v. Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing) (Williamson “should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged on appeal without timely objection at occurrence.”); see also Belgard, 410 So.2d 720, 727 (La.1982) (to preserve issue of erroneous instruction on elements of attempted second degree murder, defendant must have objected to the charge at trial). At any rate, defendant’s claim fails on the merits.

Id. at 804.

We note that the First Circuit Court of Appeal has also discussed the viability of Williamson in detail. The first circuit observed:

[T]he defendant’s trial counsel did not object to the erroneous instructions given by the trial court. Thus, the defendant ordinarily is precluded from raising such an alleged error for appellate review. LSA-C.Cr.P. arts. 801 and 841. Nevertheless, exceptions to this rule have been made in individual cases where there have been fundamentally erroneous misstatements of the essential elements of the charged offense. In such cases, the Louisiana Supreme Court has adopted the view that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the fact-finding process that due process of law requires reversal, even in the absence of compliance with legislative procedural mandates. See State v. Williamson, 389 So.2d 1328, 1331 (La.1980); State v. Johnson, 98-1407, p. 10 (La.App. 1st Cir. 4/1/99), 734 So.2d 800, 807, writ denied, 99-1386 (La.10/1/99), 748 So.2d 439.
Whether an appellate court can continue to make a State v. Williamson analysis and review such a matter on direct appeal is now in doubt, in light of the supreme court’s statement in State v. Hongo:
[T]he instant error is not structural, it necessarily is not of such significance as to violate fundamental requirements of due |1sprocess, See State v. Williamson, 389 So.2d 1328 (La.1980), and thus a defendant must make a contemporaneous objection in order to preserve the error for direct review. State v. Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing) (limiting Williamson as it “should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection.”) •
State v. Hongo, 706 So.2d [419] at 422, n. 3 [ (La.1997) ]. Nevertheless, we find it unnecessary to resolve the issue in the case now before the court, having found reversible error on another basis. Consequently, we preter-mit this assignment of error.
State v. Woods, 00-2147, pp. 18-19 (La.App. 1 Cir. 5/11/01), 787 So.2d 1083, 1096-97, writ denied, 01-2389 (La.6/14/02), 817 So.2d 1153.
In State v. Falcon, 06-798 (La.App. 5 Cir. 3/13/07), 956 So.2d 650, the fifth circuit cited both Hongo and Williamson, and then addressed a faulty jury instruction despite the absence of a contemporaneous objection. However, the instruction in Falcon was easily disposed of as harmless error. While the possible error here is potentially more complex, we find that the failure to timely object did not allow the trial court to correct the obvious error and that this assignment of error lacks merit.

Brown, 966 So.2d at 1149-50. Also, we note that neither Jones nor Campbell, a supreme court case cited in Jones, discussed Williamson. Both elected to enforce La.Code Crim.P. art. 801(C).

Likewise, we elect to enforce La.Code Crim.P. art. 801(C). We find that the very reason for the mandate of a contemporaneous objection is to allow the trial court to correct what the Falcon court properly labeled an “obvious error”. The lack of such an objection in this record renders this assignment meritless.

1, ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth and final assignment of error, Defendant argues that the trial court erred by allowing two pistols to be introduced into evidence. He contends that the State failed to show that there was any connection between him and the pistols.

We agree with the State’s position that Defendant failed to object to the introduction of these firearms at trial. Thus, he has failed to preserve the issue for appellate review pursuant to the “contemporaneous objection rule” codified by La.Code Crim.P. art. 841. See State v. Knight, 09-359, p. 26 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, writ denied, 10-2444 (La.10/21/11), 73 So.3d 376. Thus, the assignment was not preserved for review.

DECREE

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Any further reference to "the victim” will be a reference to Williams.

      . Hamilton’s appeal has already been addressed by this court. State v. Hamilton, 12-204 (La.App. 3 Cir. 11/7/12), 103 So.3d 705.

      . Presumably, Defendant is referring to the presence of cocaine on the premises.

      . The strike sheets show Defendant used all his peremptory challenges.

      . In a single-paragraph argument in his Supplemental Reply Brief, Defendant argues that the present case should be remanded "for the reasons stated in Hamilton."


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    David C. SMITH, et ux. v. Joseph Elvy SONNIER, et ux.
    No. 12-1408.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2013.

      Timothy Michael Cassidy, Timothy M. Cassidy, APLC, Jennings, LA, for Defendants/Appellees, Joseph Elvy Sonnier and Nelsarine Richard Sonnier.
    Henry Alan McCall, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Plaintiffs/Appellants, David C. Smith and Paula A. Smith.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

Lin this contract dispute, the plaintiff, David Smith, alleges that the land purchase contract he entered into with the defendant, Joseph Sonnier, should be rescinded due to error, or alternatively, that the property purchased is not fit for its intended use. We disagree. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

We will consider whether the trial court erred in granting a directed verdict in favor of Mr. Sonnier, and, thus, in failing to rescind the contract.

II.

FACTS AND PROCEDURAL HISTORY

In August 2009, Mr. Smith purchased approximately two acres of property in Jennings, Louisiana from Mr. Sonnier for $12,000.00. The contract was prepared by Mr. Smith’s attorney. For over forty years prior to the sale, Mr. Sonnier used the property as a landfill. He dumped his own wood waste on the property, and he charged others, including the City of Jennings, a fee for similar activity. During Mr. Sonnier’s operation of the landfill, he never obtained a permit to operate a landfill, and he was never aware that he needed a permit to do so. He responded through discovery that he was not aware of any environmental | ¿investigations regarding the property. Moreover, he explained in his discovery responses that the Department of Environmental Quality (DEQ) visited the property in 2000, but the agency told him only to clean up hydraulic fluid that was leaking from a bulldozer.

Mr. Smith operates a tree cutting business, and he purchased the property as a disposal site for his wood waste. Both Mr. Smith and Mr. Sonnier knew of Mr. Smith’s plans for the property. Mr. Smith testified that at no point did he attempt to obtain a permit to operate the site as a landfill nor did he inquire as to the legality of Mr. Sonnier’s operation of the site as a landfill.

Five months after the sale, in January 2010, DEQ visited the property after receiving a complaint. Following the visit, DEQ gave Mr. Smith a “Field Interview Form” which noted that all dumping on the property must stop and the “site must be cleaned up/closed out.” In June 2010, DEQ mailed Mr. Smith an “Administrative Order” for assessment and cleanup of the property. Mr. Smith then filed suit against Mr. Sonnier to rescind the sale of the property.

During a bench trial, the trial court heard testimony from Mr. Smith regarding the cause of the contract. Mr. Sonnier’s discovery responses supported Mr. Smith’s testimony regarding the cause of the contract. Moreover, a former employee of Mr. Sonnier testified that Mr. Sonnier operated the property as a landfill during his ownership. Following the close of Mr. Smith’s case, Mr. Sonnier moved for a directed verdict. The trial court granted Mr. Sonnier’s motion, reasoning that any defect in the cause of the contract could be cured by |aMr. Smith. While we disagree with the trial court’s reasons, we find no error in the judgment granting a directed verdict to Mr. Sonnier.

III.

LAW AND DISCUSSION

Standard of Review

Again, though the trial court considered and ruled on Mr. Sonnier’s motion for directed verdict, the more appropriate procedural device would have been a motion for involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B). This article states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The court’s vast discretion in granting a motion for involuntary dismissal is reviewed under the manifest error standard. Guidry v. City of Rayne Police Dep’t, 09-664 (La.App. 3 Cir. 12/9/09), 26 So.3d 900.

Validity of the Contract

Mr. Smith argues that the trial court erred in granting the directed verdict because error in the cause of the contract, or, alternatively, deficiencies in |4the property’s fitness, renders the contract invalid. We disagree with both arguments.

The four elements of a valid contract are: (1) a capacity to contract; (2) mutual consent; (3) an object; and (4) a lawful cause. Belin v. Dugdale, 45,405 (La.App. 2 Cir. 6/30/10), 43 So.3d 272. “[A] contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause.” Hoffman v. Craftworld Int’l, Inc., 463 So.2d 89, 92 (La.App. 3 Cir.1985).

A valid sale requires the thing, the price, and the consent of the parties for the perfection of the sale. La.Civ.Code art. 2439. Even when these requirements appear to be satisfied, consent may be vitiated by error, fraud, or duress. La.Civ. Code art.1948. Error vitiates consent when it concerns a cause without which the obligation would not have been incurred and that cause was or should have been known by the other party. La.Civ.Code art.1949.

Mr. Smith argues that he only consented to the purchase of the property because of its use as a landfill and that Mr. Sonnier knew that was the sole cause of the contract. He argues that once that use was precluded by DEQ’s closure of the property as a landfill, Mr. Smith’s consent was vitiated, and the contract should be rescinded. Alternatively, he argues that bilateral error exists which vitiates the contract — both Mr. Smith and Mr. Sonnier were under the mistaken belief that the property could be used as a landfill.

In support of his arguments, Mr. Smith relies on two cases from the fifth circuit— Gisclair v. Matmoor, Inc., 537 So.2d 876 (La.App. 5 Cir.), writ denied, 541 So.2d 901 (La.1989) and Creppel v. Von Hoene, 575 So.2d 514 (La.App. 5 Cir.), writ denied, 577 So.2d 51 (La.1991)—and one case from our court, Tri-Lake of Louisiana v. Couteau Plateau, 10-1384 (La.App. 3 Cir. 3/9/11), 59 So.3d 491, writ denied, 11-1134 (La.9/16/11), 69 So.3d 1147. We find that all three cases are distinguishable from the present case.

In both Gisclair and Creppel, the fifth circuit upheld rescission of sales of land that had been designated as wetlands, making the land unfit for the buyers’ intended uses. In the Gisclair case, the seller did not know of the wetlands designation; in Creppel, the seller knew of it but failed to disclose it. Nevertheless, the courts upheld trial courts’ findings that the wetlands designations were errors of fact that vitiated consent and, therefore, the buyers were entitled to rescind the sale. Gisclair, 537 So.2d 876, and Creppel, 575 So.2d 514.

Similarly, in Tri-Lake of Louisiana, a panel of this court held that a sales tax error, namely the fact that taxes were still owed on a mobile home at the time of its sale, vitiated consent and invalidated the sale of the mobile home.

We find Gisdair, Creppel, and Tri-Lake of Louisiana distinguishable, however. In all of those cases, the defect or hindrance to the property was present at the time of the sale, whether or not it was disclosed to the buyer. Here, however, nothing in the record indicates that the property was not able to be used as a landfill on the date of the sale. Indeed, we have scoured the record for such evidence, but we find none. The record indicates that both parties knew that Mr. Smith was purchasing the property for use as a landfill. Mr. Sonnier admitted that he never applied for a permit to operate the property as a landfill, but no evidence was offered by Mr. Smith to show that Mr. Sonnier required a permit to operate the property as a landfill on the date of the sale of the property. The only evidence ^admitted indicates that a permit was required on the date of DEQ’s visit — some five months following the sale of the property.

This failure to meet his burden of proof also affects Mr. Smith’s argument that the property was not fit for its intended use. Again, the record provides ample evidence that the property was unlicensed for its intended use five months following the sale, but nothing indicates that it was not fit for its intended use on the date of the sale. We find no merit in Mr. Smith’s warranty of fitness argument.

Thus, in reviewing the propriety of the directed verdict in light of the substantive law applicable to Mr. Smith’s claims, we find no error in the trial court ruling granting the directed verdict. Mr. Smith simply did not meet his burden of proof. Considering all of the evidence presented by Mr. Smith, he presented no evidence regarding the status of the landfill on the date of sale upon which reasonable people could find that the contract was rendered invalid. Therefore, based on the record before us, we find no merit in Mr. Smith’s argument that the trial court erred in granting the directed verdict in favor of Mr. Sonnier.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court. Costs of this appeal are assessed against David and Paula Smith.

AFFIRMED.

      . Though both Mr. and Mrs. Smith are named plaintiffs and Mr. and Mrs. Sonnier are named defendants, we follow the lead of the parties' briefs and refer only to Mr. Smith and Mr. Sonnier.

      . Joseph Sonnier is now deceased. Mr. and Mrs. Smith properly amended their petition to name the Succession of Joseph Elvy as a defendant in this action.

      . Mr. Sonnier died before the start of trial. Mr. Smith failed to depose Mr. Sonnier before his death, so Mr. Sonnier's discovery responses were admitted into evidence.

      . Although a directed verdict was advanced by Mr. Sonnier and granted by the trial court, the appropriate device would have been a motion for involuntary dismissal pursuant to La.Code Civ.P. art. 1672. Thus, we use the standard attendant to Article 1672 in review of this matter.

      . We need not belabor the point, but we find this situation analogous to the case of a property owner who buys property zoned for commercial use and then is faced with the rezoning of the property to his detriment. See, e.g., Macro Oil Co., Inc. v. City of Breaux Bridge, 12-932 (La.App. 3 Cir. 2/6/13), 109 So.3d 956, 2013 WL 440155.


author: PICKETT, Judge. GREMILLION, Judge,

text:
    Michael HINDELANG, III v. Regina Louviere HINDELANG.
    No. 12-1031.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2013.

      Diane A. Sorola, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Regina Louviere Hindelang.
    Charles G. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Plaintiff/Appel-lee, Michael Hindelang, III.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

_JjThe defendant, Regina Louviere Hin-delang, appeals the trial court’s judgment granting the exception of res judicata filed by the plaintiff, Michael Hindelang III.

FACTUAL AND PROCEDURAL BACKGROUND

The Hindelangs were divorced on October 16, 2008. Regina filed a Rule to Establish Final Periodic Support in October 2008 based on her claim of medical disability. Following a hearing on December 7, 2009, the trial court ordered Michael to pay Regina periodic final support of $3,500.00 per month for twelve months, retroactive to the date of judicial demand. On appeal, we found that the trial court erred in limiting that period to one year; however, the supreme court reinstated the trial court’s one-year term. See Hindelang v. Hindelang, 10-397 (La.App. 3 Cir. 11/3/10), 49 So.3d 1065, writ granted in part, 10-2701 (La.3/4/11), 58 So.3d 464.

On February 1, 2012, Regina filed a Rule for Final Periodic Spousal Support, claiming that she “is disabled and unable to work and is, therefore, in need of, and entitled to final periodic spousal support.” Michael filed a Peremptory Exception Pleading Res Judicata. On February 29, 2012, Regina filed an Amended Rule For Final Periodic Support, urging that there had been a material change in circumstances since December 2009; namely that she has developed an “incapacitating bipolar disorder with depression, which over time, has become more and more debilitating.” Following a March 5, 2012 hearing, the trial court granted Michael’s exception of res judicata and dismissed Regina’s rule, finding that “those issues were litigated.”

12Regina now appeals.

ASSIGNMENT OF ERROR

Regina asserts one assignment of error:

The trial court erred in granting ap-pellee’s exception of res judicata and in denying appellant the opportunity to present facts contained in her original and amended rule to show cause which support her need for continued final periodic spousal support, due to a change in circumstances which occurred after the December 2009 trial and judgment.

DISCUSSION

The Louisiana Civil Code authorizes a trial court, in its discretion, to award the payment of final periodic support to a spouse in need who has not been at fault in the breakup of the marriage. La.Civ.Code arts. Ill and 112. Article 112 provides numerous factors the court may consider in awarding final periodic support. Periodic support awards may be modified when the spouse in need shows a material change in circumstance. La.Civ.Code art. 114.

Res judicata is addressed in La.R.S. 13:4231 which states in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Exceptions to the general rule of res judicata are found in La.R.S. 13:4232, which states in part:

B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

|s“The res judicata effect of a prior judgment is a question of law that is reviewed de novo.” Fogleman v. Meaux Surface Prot., Inc., 10-1210, p. 2 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, 1059, writ denied, 11-712 (La.5/27/11), 63 So.3d 995 (quoting Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672). Therefore, we will conduct a de novo review of the record to determine whether the trial court was legally correct in granting Michael’s exception of res judicata.

Michael argues that any issues related to Regina’s inability to work because of mental illness were fully litigated at the December 2009 hearing. Therefore, she is barred from re-litigating that issue now. We disagree.

In her February 29, 2012, amended rule, Regina alleged a material change in circumstances entitling her to final periodic support. Barring extin-guishment of the obligation for spousal support pursuant to La.Civ.Code art. 115, Regina may seek a modification by showing a material change in circumstances pursuant to La.Civ.Code art. 114. By granting the exception of res judicata, the trial court denied Regina an opportunity to show a material change in circumstances. See Guillory v. Guillory, 09-988, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 1288, 1293 (Genovese, J., concurring in the result)(“because the issue of spousal support is never final, notwithstanding an extin-guishment of the obligation pursuant to La.Civ.Code art. 115, [the obligee] may bring a new or separate rule for support alleging a change in factual circumstances.”).

CONCLUSION

The trial court erred by granting the exception of res judicata, as it denied Regina the opportunity to show a material change in circumstances. The judgment of the trial court is reversed, and the matter is remanded for further proceedings | ¿consistent with this opinion. Costs of this appeal are assessed to Michael Hin-delang III.

REVERSED AND REMANDED.

GREMILLION, J., dissents and assigns written reasons.

SAUNDERS, J., dissents for the reasons assigned by Judge GREMILLION.

GREMILLION, Judge,

dissents and assigns written reasons.

|!While La.R.S. 13:4232 does not bar a subsequent action for modification based on a material change of circumstances pursuant to Article 114, res judicata is still applicable if the factual circumstance has already been litigated. Based on my comparison of Regina’s testimony from the December 2009 hearing to the claim she is currently making, the trial court did not err in finding that her action is barred by res judicata since the claims are identical.

At the 2009 hearing, Regina argued that an assortment of medical problems, including bipolar disorder, prevented her from working. She testified regarding her bipolar disorder numerous times at the hearing:

Q. Okay. What actual treatment are you currently receiving from her?
A. Treatment for mood disorder; as well — specifically Bipolar Type 2; as well as—

The trial court was well aware of Regina’s bipolar illness:

THE COURT: ... Did that doctor prescribe any medication at all for you, ma’am, for depression?
THE WITNESS: Cymbalta, Wellbutrin, and I also take Tegretol as a mood stabilizer.
THE COURT: Okay: For your depression.
JjTHE WITNESS: That’s for the bipolar disorder.
THE COURT: Bipolar disorder.

A vocational rehabilitation expert testified as to Regina’s employment potential and the following exchange occurred between the trial judge and the expert witness:

THE COURT: Dr. Orazio — There was some testimony that she was being treated by Dr. Orazio who obviously, apparently, was a major healthcare provider for her—
THE WITNESS: Right.
THE COURT: —because of her mental health illness.
THE WITNESS: Yes, sir[.]
THE COURT: And at no point in time were you told that Dr. Orazio was treating this lady?
THE WITNESS: That’s correct.
THE COURT: Notwithstanding the fact that this is a major — obviously a major illness.

The trial court again mentioned Regina’s “underlying mental illness” as having initiated when she was a teenager. Further, the deposition of Regina’s treating doctor, Dr. William A. Dupon, was submitted into evidence. Dr. Dupon treated Regina for depression since 2004. Her history of depression and mood disorder medications are noted throughout the record, along with notations of bipolar disorder. In brief, Regina claims that her “disabling bipolar disorder with depression could not have been litigated in December, 2009, because it did not exist in December, 2009.” This allegation is plainly contradicted by the record and Regina’s own testimony.

It is clear from my review of the record that the trial court was fully aware of Regina’s mental illness, including her diagnosis of bipolar disorder, at the 1 ¡¡December 2009 hearing. The substance of the 2009 hearing was that Regina could not work due to her various physical and mental conditions, including bipolar disorder. The current pleadings offer no new claims or change of circumstances.

Under the majority’s interpretation, there are scarcely any circumstances under La.R.S. 13:4232(B) in which res judica-ta would apply. According to the majority’s reasoning, a former spouse need only utter the phrase “a material change of circumstances,” like a talisman, in order to be afforded a full hearing regardless of whether the claim has already been litigated. This is contrary to the exception noted by the plain language of La.R.S. 13:4232(B). Accordingly, I respectfully dissent from the majority’s opinion.

      . The supreme court affirmed that portion of the appellate judgment that ordered the award to be paid retroactive to the date of judgment. The effective date began on December 7, 2009.


author: EDWIN A. LOMBARD, Judge.

text:
    Jose RODRIGUEZ v. Reginald GREEN.
    No. 2012-CA-0098.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2012.

      Luz M. Molina, Robert Breazeale, Student Practitioner, Loyola University College of Law, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| plaintiff, Jose Rodriguez, brought this suit to recover from the defendant, Reginald Green, a sum of $7,700 as wages allegedly due under the terms of employment along with penalty wages and attorney’s fees under La.Rev.Stat. 23:631 and La.Rev.Stat. 23:632. The trial court rendered judgment in favor of the plaintiff and against the defendant in the amount of $2,000 plus costs and legal interest. The plaintiff appeals.

Relevant Facts and Procedural History

The defendant is a local businessman engaged in the repair and/or renovation of homes in the New Orleans area. From around July 2008 through January 2009, the plaintiff was employed by the defendant to perform manual labor including carpentry, painting, hanging sheet rock, siding, and construction work on residences throughout Orleans Parish. The plaintiff decided to leave his employment with the defendant in or around January of 2009 because of the defendant’s alleged failure to pay agreed upon wages.

After numerous oral demands, on February 25, 2010, the plaintiff made a written amicable demand for work performed on six construction sites including [2framing, painting, sheetrock, and other work, for a total of $7,700. When the defendant failed to respond, on August 22, 2011, the plaintiff filed suit in First City Court of the City of Orleans against the defendant, seeking to recover unpaid wages, penalty wages, court costs, and attorney’s fees pursuant to La.Rev.Stat. 23:631 and La.Rev. Stat. 23:632. The plaintiff alleged that the defendant still owes the plaintiff $11,700 in wages for work performed which includes: (1) twenty-seven days of work with a wage rate of $100/day; (2) $4,000 in wages as the defendant only paid about $200 of the agreed upon $600 per six days worked; and (3) $5,000 for the construction of a second floor of a duplex (Johnson Street residence).

After hearings held on September 21, 2011 and on October 18, 2011, the trial court rendered judgment with reasons on October 19, 2011, in favor of the plaintiff and against the defendant in the amount of $2,000 plus costs and legal interest. The plaintiff appeals this judgment.

Law and Discussion

On appeal, the plaintiff assigns as error: (1) the trial court’s calculation of the wages due to the plaintiff; (2) the trial court’s failure to award the plaintiff penalty wages; and (3) the trial court’s failure to award the plaintiff attorney’s fees.

Standard of Review

The reviewing court may not overturn the judgment of the lower court absent an error of law or finding of fact that is manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, Through Dep’t. of Transp. & Dev., 617 So.2d 880, 882 (La.1998). The Supreme Court has identified a two-part test for the reversal of a fact finder’s determinations:

(1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and
(2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Id. at 882, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

The reviewing court is to review the evidence in the light most favorable to the prevailing party. Russell v. Noullet, 98-0816, p. 5 (La.12/1/98), 721 So.2d 868, 871. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though it is convinced that if it had been sitting as the trier of fact, it would have weighed the evidence differently.” Saacks v. Mohawk Carpet Corp., 03-0386, p. 3 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 363, citing Anderson v. Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Id., p. 3, 855 So.2d at 364; citing Virgil v. American Guarantee & Liability Ins., 507 So.2d 825 (La.1987). .

In his first assignment of error, the plaintiff contends that the trial court committed manifest error in awarding $2,000 in unpaid wages because it is not based on a reasonable factual basis. In support of his argument, the plaintiff cites La.Rev. Stat. 23:631, which provides in pertinent part that, “[ujpon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of the employment from the time his employment relationship ended.” The plaintiff accordingly maintains that pursuant to La.Rev.Stat. 23:631, |4from the'time his employment relationship ended with the defendant, the law imposed on the defendant the duty to pay the following two distinct amounts of wages due under the terms of employment: (1) $5,000 for work performed on the Johnson Street residence; and (2) $2,700, according to the alleged agreement of $100 per day, representing the twenty-seven days the defendant did not pay on the other construction sites. The plaintiff asserts that record is devoid of any evidence reflecting such payments of wages were made to him for the work performed throughout the course of his employment, except for the defendant’s self-serving statements maintaining that he paid the plaintiff. Accordingly, the issue before this court is whether the trial court’s decision was a reasonable one or one supported by the record.

At trial, the plaintiff presented into evidence a payment chart he recreated in July 2008, after the original payment chart that he created contemporaneously with work performed was lost. According to the plaintiffs testimony, the payment chart was a record of the dates, places, offered wages, and actual payments made for the construction projects he was involved in for the defendant. Larry Bag-nerois, who runs the City’s Human Relations Commission, testified that he met with the defendant regarding the plaintiffs case. Mr. Bagnerois stated that he asked the defendant to fax receipts of payments made to the plaintiff, but they were never received.

The defendant testified that he never agreed to pay the plaintiff $100 per day, nor did he agree to pay $5,000 for the Johnson Street residence. He stated that he typically pays his employees by the job with a deposit at the start of the job and a deposit at its completion. The defendant further testified that the plaintiff | ¡¡received a total of $7,700 over the course of time of the five jobs; however, he did not have receipts for the payments made to the plaintiff.

The trial court found that the defendant is obliged to the plaintiff due to his failure to produce evidence, such as invoices or receipts, that the plaintiff “was paid, in full, for the work performed at four different residences in Orleans Parish.” Further, the trial court found that the defendant “could not substantiate his defense that the agreement between the parties, as to wages, would be ‘per job.’ ”

However, the trial court did not believe that the total amount of $7,700, as sought by the plaintiff, is due for two reasons: (1) “[i]f the defendant had agreed to pay $5,000 for the Johnson Street project, Mr. Rodriguez would have been paid the entire amount of the contract between the homeowner and Mr. Green” and (2) “Mr. Rodriguez’s payment chart was insufficient” because it was not his original payment chart, but one he recreated at a later time based on his memory alone.

In reviewing the facts found by the trial court, appellate court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, Through Dep’t. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Based upon this Court’s review of the record, we do not find that the trial court was clearly wrong in awarding $2,000 to the plaintiff for unpaid wages. Although the court incorrectly stated that the pricing for the complete job at Johnson Street residence was $5,000, as the record reflects that the defendant was to be paid a total of $54,000, the trial court’s misstatement is immaterial to the reasonableness of its decision. The evidence in the record was insufficient to find | fiin favor of the plaintiff for the total amount of $7,700 he was seeking. Accordingly, we find that the trial court reasonably awarded $2,000 to the plaintiff.

In his second specification of error, the plaintiff submits that the trial court’s failure to consider and award penalty wages was manifest error. Louisiana Rev. Stat. 23:632, in pertinent part, provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.

In order to recover penalty wages under La.Rev.Stat. 23:632, a claimant must establish the following three factors: (1) that wages were due and owing; (2) that demand for payment was made where the employee was customarily paid; and (3) that the employer did not pay upon demand. Jeansonne v. Schmolke, 2009-1467, p. 17 (La.App. 4 Cir. 5/19/10), 40 So.3d 347, 361, citing Becht v. Morgan Bldg. & Spas, Inc., 02-2047, p. 4 (La.4/23/03), 843 So.2d 1109, 1112.

The plaintiff argues that he satisfied his burden of proof and established his entitlement to penalty wages. However, a claim for penalty wages under La.Rev. Stat. 23:632 may be defeated by an equitable defense. Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 97-1784, p. 7 (La.3/4/98), 707 So.2d 1233, 1236. Where there is a bona fide dispute over the amount of wages due, an employer’s failure to pay is not an arbitrary refusal and no penalties will be awarded. See Jeansonne v. Schmolke, supra. “A trial court’s determination of whether an employer is arbitrary or in bad faith for purposes of imposing penalty wages is a question of fact and is, therefore, subject to the manifest error standard of review.” Id. Accordingly, the issue lies in whether the trial court reasonably 17found that the defendant proved an equitable defense to his liability for the unpaid wages.

Although a review of the record indicates that the trial court did not specifically state that it considered whether the defendant was acting in bad faith, the trial court’s failure to award the penalty wages reasonably suggests that it found a bona fide dispute concerning the amount of unpaid wages due by the defendant to the plaintiff. The record supports a reasonable basis for the finding that a bona fide dispute existed, and the trial court was not clearly wrong in not awarding the plaintiff penalty wages.

In his third and final assignment of error, the plaintiff asserts that the trial court erred in failing to include reasonable attorney’s fees in its judgment. Louisiana Revised Statute 23:632 provides that the court shall award “[Reasonable attorney fees ... in the event of a well-founded suit for any unpaid wages whatsoever be filed ... by the employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

“Even if penalty wages are not due, reasonable attorney’s fees are to be awarded for a well-founded suit for any unpaid wages.” Saacks v. Mohawk Carpet Corp., p. 18, 855 So.2d at 371. Unlike penalty wages, the jurisprudence has not recognized equitable defenses to the award of attorney’s fees in the event that a “well-founded suit” for wages is filed. See Beard v. Summit Institute of Pulmonary Medicine and Rehabilitation, Inc., supra. If the court makes any award of unpaid wages, the suit is considered “well-founded,” even if some equitable defense precludes the award of penalty wages. Loup v. Louisiana State Sch. For the Deaf, 98-0329, p. 8 (La.App. 1 Cir. 2/19/99), 729 So.2d 689, 694. (Emphasis added).

|sIn this case, the plaintiffs suit is clearly considered “well-founded” because the trial court awarded the plaintiff $2,000 for unpaid wages. Thus, the plaintiff is entitled to an award of reasonable attorney’s fees pursuant to La.Rev.Stat. 28:632. Buras v. Schultz, 02-0628, p. 3 (La.App. 4 Cir. 9/18/02), 828 So.2d 649, 651. Accordingly, we find that the trial court erred in not awarding attorney’s fees to the plaintiff. Based upon the record before us, we find these reasonable attorney’s fees to be $1,000.00. In his petition, the plaintiff prays for the award of legal interest from the date of judicial demand. The judgment rendered granted only legal interest without specifying when the interest commenced. As a matter of law, the plaintiff is entitled to legal interest from the date of judicial demand. La. Civ.Code art. 2000; La. Civ.Code Proc. arts. 1221, 2129, and 2164.

Conclusion

For the foregoing reasons, we amend the judgment of the trial court to award the judgment- in favor of Jose Rodriguez and against Reginald Green for $2,000.00, with interest thereon at the legal rate from the date of judicial demand, until paid; all costs of these proceedings; and attorney’s fees of $1,000.00.

AMENDED; AS AMENDED, AFFIRMED

      . According to the record, the residences that the plaintiff performed construction work for the defendant include homes located on "Johnson Street, St. Roch, Debore, Louisa, and Claiborne.”

      . The record reflects that at the October 17, 2011 hearing, the plaintiff only wanted to seek the "$7,700 today” (the twenty-seven days of work at the wage rate of $100 per day and the $5,000 for the construction project on the Johnson Street residence).

      . The plaintiff’s payment chart presented at trial was not submitted into the record for review.


author: GAIDRY, J.

text:
    Angelia V. BIGGS v. Kathy CANCIENNE, Robert Williston, and First Financial Insurance Company.
    No. 2012 CA 0187.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.

      Glenn J. Armentor, John Paul Charbon-net, Lafayette, LA, for Plaintiff/Appellant Angelia V. Biggs.
    Celeste Brustowicz, Joseph J. Valencino, III, Metairie, LA, for Defendants/Appel-lees Kathy Cancienne, Robert Williston, and First Financial Insurance Company.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

12This appeal is from a summary judgment dismissing the claims of a lessee in her suit for damages caused by a defect in the leased premises. We reverse.

FACTS AND PROCEDURAL HISTORY

On September 1, 2008, at the time Hurricane Gustav passed over the Baton Rouge area, Angelia Biggs was living in an apartment located in Baker, Louisiana, which was owned by Kathy Cancienne. The parties’ lease agreement contained the following waiver:

NON-LIABILITY OF LANDLORD—
Tenant agrees that Landlord shall not be liable for injury or damage to person or property of Tenant, his family, guests, employees or invitees, occurring in, on or about the leased premises, or occurring anywhere in or on the apartment building or area in which the leased premises are located, or in or upon the grounds in which the apartment building or house is located, or in any other building or structure on said grounds, however caused or arising except by the direct negligence of Landlord, his agents or employees, and agrees to indemnify and hold Landlord harmless therefor.
Landlord will not be responsible for damage caused by leaks in the roof, by bursting pipes, by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, nor will Landlord be liable in damages for injury caused by any vices or defects of the leased property to Tenant, or any tenant or occupant, or to anyone in the building or on the premises, except in case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having written notice from Tenant of such defects and the damage caused thereby. Should Tenant fail to so notify Landlord promptly, in writing, of such defects, Tenant will' become responsible for any damage or injury resulting to Landlord or other parties.

The leased premises sustained roof damage during Hurricane Gustav. Ms. Biggs alleges that within a few hours of Hurricane Gustav passing over the area on September 1, the ceiling in her apartment began to leak and that she notified the apartment manager, Robert Williston, of the leak. In the middle of the night on September 2, 2008, a piece of the sheet-rock ceiling in |sMs. Biggs’ apartment fell, followed by another piece several hours later. That afternoon, Mr. Williston went out to the apartments to survey the damage. He had to move a tree downed by the storm in order to get to the apartments. Once there, he placed some felt paper that he had on hand on the damaged portions of the roof. At that time, he inspected all of the apartments, including Ms. Biggs’ apartment, and saw that some sheetrock had fallen. It did not appear to Mr. Williston at that time that any of the remaining sheetrock was waterlogged, damaged, or in danger of falling. Ms. Biggs alleges that she asked Mr. Williston whether she should vacate the premises, and Mr. Williston responded that that was unnecessary. On September 3, Mr. Willi-ston returned to the apartment building to re-secure some of the felt paper which had become loose during the continued wind and rain that followed the hurricane. Ms. Biggs alleges that Mr. Williston told her at that time that he could begin working on the ceiling on September 5. However, on September 4, a piece of the sheetrock ceiling in the kitchen of Ms. Biggs’ apartment fell, striking her on the head and shoulders and allegedly causing injury. Upon hearing of the accident, Mr. Williston went to the apartment, cleaned up debris from the fallen ceiling, and secured a piece of sheet-rock which was hanging from the ceiling with a two-by-four. At the time of the accident, electricity had not yet been restored and stores were not yet open in the area.

Ms. Biggs filed suit on September 3, 2009 against Ms. Cancienne, Mr. Williston, and Ms. Cancienne’s insurer, First Financial Insurance Company, for the injuries she allegedly sustained when the sheetrock fell on her. Defendants filed a motion for summary judgment, alleging that under the circumstances, with no electricity or supplies within a few days of Hurricane Gustav, there had not been a reasonable amount of time for repairs to have |4been made before the accident occurred. The trial court agreed that under the circumstances surrounding the hurricane, the lessor had not had a reasonable amount of time within which to remedy the defect when the accident occurred. The court granted summary judgment in favor of the defendants, dismissing Ms. Biggs’ petition, and this appeal by Ms. Biggs followed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B) (prior to amendment by 2012 La. Acts No. 257). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 05-1233, p. 5 (La.App. 1 Cir. 6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez, 06-1558 at 8, 961 So.2d at 408. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

|,Jn determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

A lessor warrants his lessee that the leased premises are suitable for the purpose for which they are leased and that they are free of vices and defects which prevent their use for that purpose; this warranty also extends to any vices or defects which arise after the delivery of the premises which are not attributable to the fault of the lessee. La. C.C. art. 2696. This warranty against vices and defects in the leased premises also encompasses vices and defects which are not known to the lessor; however, if the lessee knows of the vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly. La. C.C. art. 2697.

Louisiana Civil Code article 2699 provides that the warranty against vices and defects in leased premises may be waived by the lessee; however, this waiver may only be accomplished by clear and unambiguous language which is brought to the attention of the lessee. However, such a waiver is ineffective to the extent that it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known; to the extent it is contrary to the provisions of La. C.C. art. 2004; or, in a residential or |f,consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety. La. C.C. art. 2699.

Louisiana Revised Statutes 9:3221 provides that notwithstanding the provisions of Article 2699, the owner of leased premises is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

It is undisputed in this case that the lessor knew of the defect (the leaking roof and damaged sheetrock) in the leased premises. The defendants alleged that under the circumstances (no electricity, no supplies, stores closed), they did not have a reasonable amount of time in which to remedy the defect. In her opposition to the motion for summary judgment, Ms. Biggs offered an affidavit from James O’Donnell Ziler, an architect and co-owner of multi-family residential and commercial properties. Mr. Ziler’s affidavit offered his opinion that Mr. Williston should have performed a more thorough inspection of the apartment ceiling on September 2 and 3 and secured the existing sheetrock near the hole in the ceiling with two by fours (as he did after the accident on September 4) to support the ceiling and prevent more pieces from falling. The trial court based its decision to grant summary judgment in favor of the defendants on the fact that under the particular circumstances of this case, the lessor had not had a reasonable time within which to remedy the defect before Ms. Biggs was injured.

A motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. Bilbo for Basnaw v. Shelter Insurance Company, 96-1476, p. 5 (La.App. 1 Cir. 7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Further, issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Granda v. State Farm Mutual Insurance Company, 04-1722, pp. 4-5 (La.App. 1 Cir. 2/10/06), 935 So.2d 703, 707, writ denied, 06-0589 (La.5/5/06), 927 So.2d 326. In addition, questions of negligence are generally inappropriate for disposition by summary judgment. Stroder v. Horowitz, 34,048, p. 4 (La.App. 2 Cir. 12/20/00), 775 So.2d 1175, 1178; McGill v. Cochran Sysco Foods, Div. of Sysco Corp., 29,154, p. 2 (La.App. 2 Cir. 2/26/97), 690 So.2d 952, 953, writ denied, 97-0798 (La.5/1/97), 693 So.2d 730; and DeStevens v. Harsco Corp., 94-1183, p. 3 (La.App. 4 Cir. 3/16/95), 652 So.2d 1054, 1057.

Thus, while making no comment on the ultimate issue of whether the defendants had a reasonable amount of time within which to remedy the defect in the premises, we find that summary judgment on the issue of reasonableness was inappropriate in this matter.

CONCLUSION

The summary judgment appealed from is reversed. Costs of this appeal are assessed to defendants-appellees.

REVERSED.

CARTER, C.J., concurs.

GUIDRY, J., concurs.

      . Louisiana Civil Code article 2004 provides that any clause in a contract is null which, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party or for causing physical injury to the other party.


author: McClendon, j.

text:
    Tammy D. JOHNSON v. Ivory Lee MAGITT & Illinois National Insurance Company.
    No. 2012 CA 0200.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.

      Robert W. Hallack, Baton Rouge, LA, for Plaintiff/Appellant Tammy D. Johnson.
    John W. Norwood, IV, New Orleans, LA, for Defendant/Appellee Illinois National Insurance Company.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McClendon, j.

|aIn this personal injury suit, the plaintiff appeals a trial court judgment dismissing her suit against the defendants. We affirm.

On August 28, 2003, the plaintiff, Tammy Johnson, was involved in a vehicular accident with the defendant, Ivory Lee Magitt, on North Acadian Thruway in Baton Rouge, Louisiana. Ms. Johnson filed suit against Mr. Magitt and Illinois National Insurance Company, Mr. Magitt’s automobile insurer, asserting that she was rear-ended by Mr. Magitt and injured as a result of the accident. Following a trial on the merits on November 2, 2011, the trial court found that Ms. Johnson was at fault in causing the accident and dismissed all of her claims. Ms. Johnson appealed.

A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The supreme court has announced a two-part test for the reversal of a fact finder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the issue to be resolved by a reviewing court is not whether the trier-of-fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882. When factual findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Harris v. Delta Development Partnership, 07-2418, p. 5 (La.App. 1 Cir. 8/21/08), 994 So.2d 69, 73-74; Rosell, 549 So.2d at 844. Further, where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844.

|aThe law has established a re-buttable presumption that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by LSA-R.S. 32:81 A and is therefore liable for the accident. Daigle v. Mumphrey, 96-1891, pp. 2-3 (La.App. 4 Cir. 3/12/97), 691 So.2d 260, 262. The rule is based on the premise that a following motorist whose vehicle rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances. Id. A following motorist may rebut the presumption of negligence by proving that he had his vehicle under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances. Taylor v. Voigtlander, 36,670, p. 4 (La.App. 2 Cir. 12/11/02), 833 So.2d 1204, 1206. The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard that he could not reasonably avoid. Daigle, 96-1891 at p. 3, 691 So.2d at 262; State Farm Mut. Automobile Ins. Co. v. Hoerner, 426 So.2d 205, 209 (La.App. 4 Cir.1982), writ denied, 433 So.2d 154 (La.1983).

In this appeal, Ms. Johnson contends that the trial court committed manifest error in finding that she was at fault in causing the accident. Ms. Johnson maintains that it is undisputed that she was rear-ended by Mr. Magitt. Therefore, she argues, she was entitled to the presumption of the fault of Mr. Magitt, who failed to rebut said presumption. Conversely, the defendants contend that the accident was not a simple rear-end accident, but was a lane change accident, and, therefore, the presumption did not apply. The defendants further assert that even assuming that the accident was a rear-end collision, they clearly rebutted the presumption.

14At trial, Ms. Johnson testified that she made a u-turn on N. Acadian Thruway to head northbound and that when she did so, she got into the right lane, “looked to see if anybody was coming,” put on her signal, and moved into the left lane. Ms. Johnson testified that she traveled in the right lane “probably a few minutes” before she changed lanes into the left lane for “a few minutes” to make a left turn. She stated that she did not see Mr. Magitt’s vehicle before the accident. She also testified that it was her intention to make a left turn at the next cross-street.

Mr. Magitt testified that he had been in the left lane of N. Acadian Thruway traveling northbound since he entered N. Acadi-an from Perkins Road and that he was heading to his home. He stated that as he was driving on N. Acadian, he saw Ms. Johnson’s vehicle, headed southbound on N. Acadian, about to make a u-turn. Mr. Magitt testified that when he saw that Ms. Johnson was going to make the u-turn, he started blowing his car horn and he slammed on his brakes. He stated that Ms. Johnson made the u-turn, went into the right lane of N. Acadian, and then suddenly moved into the left lane, “and that’s when the accident happened.”

Louisiana Revised Statutes 32:79(1), relative to driving on roadways laned for traffic, provides, in pertinent part:

A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

In addition, pursuant to L'SA-R.S. 32:104 A, a motorist changing lanes may not turn his or her vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. Also, signals must be used to indicate an intention to change lanes, LSA-R.S. 32:104 D. Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 15 (La.3/16/10), 35 So.3d 230, 241. Thus, under the law, a motorist attempting to make a lane change on a multiple-lane highway is required to determine “that the maneuver can be made safely without endangering normal overtaking or oncoming traffic” before attempting the lane change. Aver- na v. Industrial Fabrication & Marine Service, Inc., 562 So.2d 1157, 1161 (La.App. 4 Cir.1990). A greater burden of care is required for the motorist changing lanes than is demanded of a driver proceeding at a lawful rate on a straight line in a marked lane. Brewer, 09-1408 at p. 15, 35 So.3d at 241.

After listening to the testimony and reviewing the evidence, which included photographs of the accident area and property damage, the trial court made the specific finding that Ms. Johnson was at fault in causing the accident, and that the accident was not a straight on rear-end collision. The court found that Ms. Johnson made a u-turn, got in the right lane, and quickly shifted to the left lane, without seeing if it was safe to do so. The court stated that Ms. Johnson had a heightened duty to ascertain that the motion she sought to execute could be done safely.

After a thorough review of the record in this matter, we find that the factual findings of the trial court have evidentiary support and are not manifestly erroneous or clearly wrong. The trial court clearly determined that the accident at issue was not a simple rear-end collision, but involved a u-turn and lane change by Ms. Johnson. The record contains a reasonable factual basis for the trial court’s findings.

Accordingly, the December 2, 2011 judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiff, Tammy Johnson.

AFFIRMED.

HIGGINBOTHAM, J., concurs in result.

      . Louisiana Revised Statutes 32:81 A provides:
      The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

      . Because we find no error in the trial court's finding that Ms. Johnson was at fault in causing the accident at issue herein, we need not address her other assignments of error. Even so, we find no error in the trial court’s eviden-tiary rulings.