author: CHEHARDY, C.J.

text:
    Daniel MORENO v. ENTERGY CORPORATION, Enter Gulf States, Inc., Entergy Louisiana, LLC., Eagle Enterprises of Jefferson, Lafayette Insurance Company, Walgreen Louisiana Co., Inc., ABC Insurance Company and The Parish of Jefferson Lafayette Insurance Company v. Woodward Design + Build, LLC
    NO. 17-CA-182
    17-CA-183
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017
    See also 105 So.3d 40.

      COUNSEL FOR DEFENDANT/AP-PELLEE, WOODWARD DESIGN + BUILD, LLC, Christopher K. LeMieux, Brett W. Tweedel, Jonathan S. Forester, Johanna E. Lambert, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, LAFAYETTE INSURANCE COMPANY, David V. Batt, Bradley S. Groce, New Orleans
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chafsson
   CHEHARDY, C.J.

h Lafayette Insurance Company appeals the 24th Judicial District Court’s judgment of November 22, 2016, holding that Lafayette is obligated to defend and indemnify Carl E. Woodward, LLC in this litigation. For the reasons that follow, we affirm this judgment of the district court.-

FACTUAL BACKGROUND

This litigation has been the subject of several reported opinions, including two from this Court and two from the Louisiana Supreme Court. See Moreno v. Entergy Corp., 12-97 (La. 12/4/12), 105 So.3d 40; Moreno v. Entergy Corp., 09-976 (La. App. 5 Cir. 10/27/11), 79 So.3d 406; Moreno v. Entergy Corp., 10-2268 (La. 2/18/11), 64 So.3d 761; Moreno v. Entergy Corp., 09-976 (La. App 5 Cir. 9/10/10), 49 So.3d 418. Our recitation, of the factual history here draws from these prior opinions.

After Hurricane Katrina, Carl E. Woodward, LLC (“Woodward”), a general contractor, entered into a construction contract with Eagle Enterprises of Jefferson, Inc. (“Eagle”), the owner of the Walgreens Shopping Center at 7100 Veterans Memorial Boulevard in Metairie, Louisiana. Woodward subcontracted witli Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. Stewart, in turn, subcontracted with Landaverde Construction, LLC (“Landaverde”) to assist with supplying labor. Plaintiff Daniel Moreno was an employee of Landaverde and one of the laborers supplied under this subcontract. While at the work site ori January 5,2006, Mr. Moreno-sustained serious injuries as a result df contact with the overheard power lines owned and operated by Entergy Louisiana, LLC (“Entergy”).

^PROCEDURAL HISTORY

On January 4, 2007, Mr. Moreno sued Entergy, Eagle, Woodward, Stewart, Walgreen Louisiana Company, Inc., the Parish of Jefferson, and Stewart’s liability insurer, Lafayette Insurance Company (“Lafayette”). On April 2, 2007, Entergy filed an answer denying fault and filed third party demands against Stewart, Landaverde, and Woodward, seeking complete indemnity under the Louisiana Overhead Power Line Safety Act, La. R.S. 45:141-146. Six months later, on October 11, 2007, Lafayette entered into a contract with Woodward, wherein Lafayette agreed to defend and indemnify Woodward up to the policy limits of the insurance contract between Lafayette and Stewart.

A plethora of cross-claims and motions for summary judgment amongst the parties ensued. These were ultimately resolved with several rulings from the district court in 2009, review of which necessitated two trips to this Court, see Moreno v. Entergy Corp., 09-976 (La. App 5 Cir. 9/10/10), 49 So.3d 418; Moreno v. Entergy Corp., 09-976 (La. App 5. Cir. 10/27/11), 79 So.3d 406, and two to the Louisiana Supreme Court, see Moreno v. Entergy Corp., 10-2268 (La. 2/18/11), 64 So.3d 761; Moreno v. Entergy Corp., 12-97 (La. 12/4/12), 105 So.3d 40. In the end, in 2012, the Louisiana Supreme Court vacated the district court’s rulings granting summary judgment in favor of the contractors and remanded the matter to the district court for further proceedings. See Moreno, 105 So.3d at 52. A portion of these proceedings on remand is the subject of this appeal.

On remand, several parties re-urged and/or re-filed motions for summary judgment. The district court granted summary judgment in favor of Landaverde’s insurer, Western World Insurance Company, as to Entergy’s third party demand against Landaverde, finding that Western World’s insurance policy did not provide coverage for the claims asserted by Entergy against Landaverde. The court also [ 3granted summary judgment in favor of Landaverde and dismissed Entergy’s third party demand against Landaverde. On December 10, 2014, the court granted summary judgment in favor of Stewart and dismissed Entergy’s third party demand against Stewart, but denied Woodward’s motion for summary judgment on Entergy’s third party demand against Woodward. In this judgment, the court also specified that in accordance with La. C.C.P. art. 966(F), it made “no findings of negligence as to Stewart[.]” On December 11, 2014, counsel that had been representing Lafayette and Woodward enrolled additional counsel on the two companies’ behalf.

On July 6, 2015, Lafayette filed a petition for declaratory judgment, seeking a ruling that Lafayette owes no duty to defend or indemnify Woodward. On August 5, 2015, Entergy filed a supplemental third party demand against Woodward’s insurers, Gray Insurance Company (“Gray”) and Lafayette. Gray filed a cross-claim against Lafayette and an exception of no right of action as to Entergy’s third party demand. • Woodward and Lafayette filed cross-motions for summary judgment on Lafayette’s petition for declaratory judgment.

The district court overruled Gray’s exception of no right of action and heard the cross-motions for summary judgment on October 31, 2016. The court issued its judgment on November 14, 2016, in which it granted Woodward’s motion for summary judgment and denied Lafayette’s. The court followed this with an amended judgment on November 22, 2016,' in which it held that the October 11, 2007 agreement between Lafayette and Woodward is a valid contract and that Lafayette waived its rights to deny coverage to Woodward. The court designated this a final judgment pursuant to La. C.C.P. art. 1915.

| ¿Lafayette sought and was- granted a devolutive appeal from this judgment.

ASSIGNMENTS OP ERROR

On appeal, Lafayette assigns three errors:

(1)The district court erred in denying Lafayette’s motion for summary judgment.
(2)The district court erred in holding that Lafayette waived its rights to deny coverage to Woodward.
(3)The district court erred in granting Woodward’s motion for summary judgment.

DISCUSSION

We address these interrelated assignments of error together. Our standard of review for a judgment granting or denying a motion for summary judgment is de novo. Boutin v. Roman Catholic Church of the Diocese of Baton Rouge, 14-313 (La. App. 5 Cir. 10/29/14), 164 So.3d 243, 246, writ denied, 14-2495 (La. 2/13/15), 159 So.3d 469. Under this standard, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. See id.

The facts are not in dispute here and at issue is the interpretation of an insurance policy, which, as a matter of contract interpretation, is a question of law. See Safeway Ins. Co. v. Gardner, 15-696 (La. App. 5 Cir. 4/27/16), 191 So.3d 684, 687 (citing Gorman v. City of Opelousas, 13-1734 (La. 7/1/14), 148 So.3d 888, 892; Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, 949). As such, it may be resolved by means of a declaratory judgment. Id. (citing MAPP Constr., LLC v. Amerisure Mut. Ins. Co., 13-1074 (La. App. 1 Cir. 3/24/14), 143 So.3d 520, 528 (“The function of the declaratory judgment is simply, to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done.”); Poynter v. Fidelity & Casualty Co., 140 So.2d 42, 46-47 (La. App. 3 Cir. 1962) (finding a declaratory judgment was appropriate to determine whether an insurance policy required the liability insurer to defend a suit filed against the insured)).

Because an insurance policy is a contract, between the parties, it is construed with the general rules of contract interpretation. Safeway, supra (citing Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 (La. 1/14/94), 630 So.2d 759, 763). Contracts have the effect of law for the parties and the interpretation of a contract is the determination of the common intent of the parties. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 12-2055 (La. 3/19/13), 112 So.3d 187, 192 (citing Marin v. Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So.3d 234, 258; La. C.C. arts. 1983 and 2045). The reasonable intention of the parties to a contract is to be sought by examining the words of thé contract itself, and not assumed. Id. (citing Prejean v. Guillory, 10-0740 (La. 7/2/10), 38 So.3d 274, 279). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Id. (citing La. C.C. art. 2046). Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Id. (citing Prejean, 38 So.3d at 279).

Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. Clovelly, supra. However, even when the language of the contract is clear, courts should refrain from construing the contract in, such a manner as-to lead to absurd consequences. Id. (citing Amend v. McCabe, 95-0316 (La. 12/1/95), 664 So.2d 1183, 1187; La. C.C. art. 2046). Most importantly, a contract must be interpreted in a common-sense fashion, according to the words of the contract their common and ' usual Insignificance. Id. (citing Prejean, 38 So.3d at 279). Moreover, a contract provision that' is susceptible to’ different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. Id. (citing Amend, 664 So.2d at 1187; La. C.C. art. 2049). Each provision in’ a'contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. Id. (citing La. C.C. art. 2050; Amend, 664 So.2d at 1187.)

An insurance policy should not be interpreted in an unreasonable' or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion, Safeway, supra. Insurers, like any other contracting party, are entitled to contractually limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id.

With these precepts in mind, we now turn to the. relevant contracts. First we look to the contract entered into between Lafayette and Woodward.

On October 11, 2007, Lafayette and Woodward entered into a contract that provides, in its entirety: “Lafayette Insurance Company, as the insurer of Stewart Interior Contractors, LLC, has agreed to defend and indemnify Carl E. Woodward, LLC in the above-referenced matter up to the policy limits of the insurance contract between Lafayette Insurance Company and Stewart Interior Contractors, LLC.”

Woodward maintains that this obligates Lafayette to defend and indemnify Woodward up to the monetary policy limits of the insurance contract, without any other terms, conditions, reservations, or limitations. By contrast, Lafayette argues that this agreement is derivative of and, therefore, limited' by its insurance policy with Stewart and that we must look to that policy to determine the parameters of Lafayette’s obligation to Woodward.

|7The pertinent portion of Stewart’s insurance policy with Lafayette, the “Commercial General Liability Coverage Form,” provides in part:

SUPPLEMENTARY PAYMENTS— COVERAGES A AND B
* * *
2. If we [Lafayette] defend an insured [Stewart] against a “suit” and an indem-nitee [Woodward] of the insured is also named as a party to the “suit,” we will defend that indemnitee if all of the following conditions are met:
a. The “suit” against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or' agreement that is an “insured contract”;
b. This insurance applies to such liability assumed by the insured;
c. The obligation to defend, or the . cost of the defense of, that indemni-tee, has also been assumed by the insured in the same “insured contract”;
d. The allegations in the “suit” and the information we know about the “occurrence” are such that no conflict appears to exist between the interests of the insured and the interests of the indemnitee;
e. The indemnitee and the insured ask us to conduct and control the defense of that indemnitee against, such “suit” and agree that we can assign the same counsel to defend the insured and the indemnitee; and
f. The indemnitee:
(1) Agrees in writing to:
(a) Cooperate with us in the investigation, settlement- or defense of -the “suit”;
(b) Immediately send us copies of any demands, notices, summonses dr legal papers received in connection with the “suit”;
(c) Notify any other insurer whose coverage is available to the indemni-tee; and
(d) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and
(2) Provides us with written authorization to:
(a) Obtain records and other information related to the “suit”; and
.(b) Conduct and control the defense of the indemnitee in such “suit”.

So long as the above conditions are met, attorneys’- fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 2.b.(2) of Section I—Coverage A—Bodily Injury And Property Damage Liability, such payments will not be deemed to be damages for “bodily injury” and “property damage” and will not reduce the limits of insurance.

IsOur obligation to defend an insured’s indemnitee and to pay for attorneys’ fees and necessary litigation expenses as Supplementary Payments ends when:

a. We have used up the applicable limit of insurance in the payment of judgments or settlements; or
b. The conditions set-forth above, or the terms of the agreement described in Paragraph f. above, are no longer met.

'(Brackets added).

Lafayette maintains that the first clause of the above-quoted section—“If we defend an insured against a ‘suit’ and an in-demnitee of the insured is also named as a party to the ‘suit,’....”—is, a condition necessary to trigger its duty to defend and indemnify Woodward. Lafayette also offers the concluding language of the above-quoted section—“Our obligation to defend an insured’s indemnitee ends when.. .[t]he conditions set forth above... are no longer met[ ]”—as .support for its contention that its duty to Woodward is conditional. Lafayette argues that both the insured, Stewart, and the indemnitee, Woodward, must be named parties for Lafayette to defend and indemnify Woodward. Because satisfaction of this condition ceased upon Stewart’s dismissal from the litigation on December 10, 2014, Lafayette submits that it had no duty to Woodward thereafter.

Additionally, - Lafayette argues that Stewart’s- dismissal prom the litigation terminated its duty to Woodward pursuant to the terms, of the subcontract between Stewart and Woodward. The pertinent portion of that subcontract, the “Indemnity and Insurance” provision, states:

Subcontractor [Stewart] agrees to defend, indemnify and hold harmless Contractor [Woodward] and Owner [Eagle], and then* agents and employees from and against any claim, cost, expense or liability (including attorneys’ fees), attributable to bodily injury, sickness, disease or death, or to damage to or destruction of property (including loss of use thereof), caused by, arising out of, resulting from or occurring in connection with the performance of the Work by Subcontractor [Stewart], its Subcontractors, or their agents, or employees, but only to the extent such loss or damage is caused by the negligent acts or omissions of Subcontractors, its Subcontractors, or their agents, or employees or anyone for whom Subcontractor [Stewart] is liable.
J¿ * *
Subcontractor’s obligation to defend shall not arise if the damage or injury to persons or property is caused by the sole negligence of any party indemnified hereunder.

(Brackets added).

Lafayette contends that this provision limits Stewart’s duty to defend and indemnify Woodward to claims for Stewart’s own negligence. And because Stewart’s dismissal from the litigation precludes finding Stewart negligent, Lafayette argues that its duty to Woodward ceased on the date of Stewart’s dismissal: December 10, 2014.

Woodward responds that this, Court need not look to the insurance policy or the subcontract, but should look no further than the October 11, 2007 agreement in which Lafayette agreed to defend and indemnify Woodward up to the policy limits of the contract between Lafayette and Stewart. We find this is a matter of no moment since we ultimately conclude that Lafayette waived its right to deny coverage to Woodward. Accordingly, this brings us to Lafayette’s argument that the district court’s finding of waiver was erroneous on four grounds. We address each in turn.

First, Lafayette argues that the court’s finding of waiver was in error because it impermissibly expanded the scope of coverage. Lafayette maintains that its obligation to Woodward is controlled by the subcontract between Woodward and Stewart, which limits coverage to Woodward for claims of negligent acts by Stewart, not Woodward. Thus, once Stewart was dismissed from the proceedings, Lafayette’s obligation was extinguished, and the court’s ordering Lafayette to continue to defend and indemnify Woodward imper-missibly allows coverage for a risk never contemplated by or agreed to by the parties in the insurance policy or subcontract, ie., negligent, acts by Woodward. Lafayette submits that, as a ihatter of law, waiver cannot expand the scope of coverage of an insurance policy.

| wThis argument is without merit. The Louisiana Supreme Coupt has held that waiver may expand coverage beyond the terms of an insurance policy. See Arceneaux v. Amstar Corp., 10-2329 (La. 7/1/11), 66 So.3d 438, 451. ‘Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.” Id. at 450-51. “As an insurer is charged with knowledge of the contents of its own policy, when an insurer, with knowledge of facts indicating non-coverage under the insurance policy, assumes or continues the insured’s defense without obtaining a non-waiver agreement to reserve its coverage defense, the insurer waives such policy defense.” Id. at 451. “Waiver may apply to any provision of an insurance contract under which the insurer knowingly and voluntarily elects to relinquish his right, power or privilege to avoid liability, even though the effect may bring within coverage risks originally excluded or not covered.” Id. (Emphasis added); Tate v. Charles Aguillard Ins. & Real Estate, Inc., 508 So.2d 1371, 1375 (La. 1987); Cugini, Ltd. v. Argonaut Great Cent. Ins. Co., 04-795 (La. App. 5 Cir. 11/30/04), 889 So.2d 1104, 1114, writ denied, 04-3218 (La. 3/11/05), 896 So.2d 71.

Second, Lafayette argues that a finding of waiver here violates public policy, relying on the following holding from the Louisiana Supreme Court:

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms.

Home Ins. Co. v. Nat’l Tea Co., 588 So.2d 361, 364 (La. 1991).

This rule of strict construction is founded on equitable considerations, as the court explained: “[I]mposing on a person an obligation to indemnify another against the indemnitee’s own negligence without the obligor’s unambiguous consent is contrary to the principles of equity.” Id. at 365 (Quotations and citations h t omitted). “The equitable basis for this rule.. .is that the obligor lacks the ability to evaluate, predict, or control the risk that the indem-nitee’s future conduct may create.” Id. “To ensure that the indemnitee is not unjustly enriched at the obligor’s expense, equity dictates that such a provision be enforced only if there is clear evidence that the risk was bargained for and accepted.” Id.

Lafayette contends that pursuant to the terms of the subcontract, Stewart, as the named insured, did not agree to defend and indemnify Woodward, the indemnitee, for Woodward’s own negligence. Lafayette points to the provision of the subcontract that provides: “[Stewart’s] obligation to defend shall not arise if the damage or injury to persons or property is caused by the sole negligence of any party indemnified hereunder.” For Lafayette to defend and indemnify Woodward in violation of these express terms contravenes the aforementioned principles of equity.

Woodward responds that the equitable considerations underlying this rule of strict construction are inapposite here because Lafayette agreed to defend and indemnify Woodward after the conduct giving rise to the claim occurred. We agree. As stated above, “[t]he equitable basis for this rule.. .is that the obligor lacks the ability to evaluate, predict, or control the risk that the indemnitee’s future conduct may create.” Home Ins., supra. When Lafayette agreed on October 11, 2007 to defend and indemnify Woodward, no risk was posed by Woodward’s future conduct. Lafayette enjoyed the full benefit of hindsight.

It is well established that an insurer is charged with knowledge of the contents of its own policy. Steptore v. Masco Constr. Co., 93-2064 (La. 8/18/94), 643 So.2d 1213, 1216. In addition, notice of facts which would cause a reasonable person to inquire further imposes a duty of investigation upon the insurer, and failure to investigate constitutes a waiver of all powers or privileges which a reasonable search would have uncovered. Id.

112Lafayette contracted with Woodward more than a year-and-a-half after Mr. Moreno sustained his injuries and nine months after suit was filed. At that time, it is reasonable to presume- that such a sophisticated business entity as an insurance company did not enter into this contract ■without, due circumspection. We see no reason to doubt that Lafayette contracted with Woodward fully informed of the underlying facts, the insurance policy, and the subcontract. Under these circumstances, the aforementioned equitable considerations are inapplicable and we find this argument is without merit.

In Lafayette’s third argumént against waiver, it submits case law in further support of its position that any duty it had. to defend and indemnify Woodward was extinguished upon Stewart’s dismissal from the case. Lafayette first points to Maldonado v. Kiewit La. Co., 13-0756 (La. App. 1 Cir. 3/24/14), 146 So.3d 210. There, Twin City Fire Insurance Company had issued a comprehensive general liability policy to JL Steel Reinforcing, a subcontractor to KMTC-JV, which was the general contractor on a DOTD construction project. Maldonado, 146 So.3d at 213. The subcontract between KMTC-JV and JL Steel required Twin City’s insured, JL Steel, to provide insurance coverage to KMTC-JV as an “additional insured.” Id. JL Steel procured insurance from Twin City to comply with the subcontract and provide additional insurance coverage for organizations with which JL Steel contracted. Id.

Two JL Steel employees were killed on the construction project, Maldonado, supra. In the litigation that ensued, KMTC-JV, a named defendant, demanded defense and indemnification from JL Steel pursuant to the subcontract, Id. at 214. Twin City, m turn, filed a petition.for declaratory judgment, seeking a judgment declaring that its policy precluded additional insurance coverage for the claims against KMTC-JV as of March 21, 2011, the date-on which the plaintiffs filed their third supplemental and amended petition that: (1) removed JL Steel as a | ^defendant; (2) withdrew all allegations of fault on the part of JL Steel; and (3) no longer alleged that KMTC-JV was vicariously liable for acts or omissions of JL Steel. Id. On Twin City’s petition for declaratory judgment, the trial court ruled in favor of KMTC-JV, finding Twin City’s policy to JL Steel affords coverage to KMTC-JV as an “additional insured” and that Twin City has a duty to defend KMTC-JV through the appeal process. Id. at 215.

On appeal, the First Circuit Court of Appeal reached a different conclusion, finding that Twin City’s duty to defend KMTC-JV did not extend beyond the date JL Steel was dismissed from the litigation. Maldonado at 221, The First Circuit reasoned:

On March 21, 2011, when plaintiffs filed their third amended petition deleting all allegations of fault against JL Steel, the petition in the Maldonado matter ceased tp allege any claim that could be covered by Twin City’s additional insured policy endorsement. While the duty to defend certainly terminated by that date, we find that it actually terminated prior thereto. ... [T]he duty of an insurer to defend is triggered when the petition suggests the potential for coverage;' however, when an event occurs which shows that coverage is unambiguously excluded, thé duty to defend the insured terminates. We conclude that Twin City owed KMTC-JV a duty to defend through the date of the occurrence that eliminated any possibility that KMTC-JV could have been cast in liability, vicariously, for the fault of JL Steel. That date is March 11, 2011, the date on which the trial court signed a judgment dismissing JL Steel with prejudice from the underlying Maldonado matter.

Id. at 220-21 (Footnote added).

Lafayette next relies on a Maryland case, Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 113 Md.App. 540, 688 A.2d 496 (1997). There, Ferguson Trenching Company contracted with Baltimore Gas and Electric Co. (“BGE”) to dig a pit into which the plaintiffs later drove their car and sustained injuries. Baltimore Gas, 688 A.2d at 499. The plaintiffs sued BGE, Ferguson, and others. Id. Pursuant to the contract with BGE, Ferguson had a general commercial liability insurance policy luwith Commercial Union Insurance Company to protect both Ferguson and BGE in connection with the work. Id. This policy limited BGE’s coverage to claims based on Ferguson’s negligence and claims that BGE negligently failed to supervise Ferguson. Id. at 500. Pursuant to these terms, Commercial refused to defend BGE, asserting that the plaintiffs’ claim was not within the scope of coverage under the policy. Id. BGE instituted a declaratory action against Commercial, seeking a determination of its rights under the policy. Id. at 499. Prior to trial on the underlying tort suit, the plaintiffs determined that BGE alone was negligent and dismissed all of their claims against all parties, except BGE. Id. at 500. The underlying tort matter proceeded to trial and a verdict was returned in favor of the plaintiffs against BGE. Id. Thereafter, BGE’s declaratory action was resolved on motions for summary judgment, in which the trial court found that Commercial did not have a duty to defend BGE. Id. at 501-02. On appeal, the appellate court reversed in part and affirmed in part, finding that Commercial had a duty to defend BGE, but only up until the plaintiffs revised their allegations to sue BGE solely for its-own negligence and the court granted their motion to dismiss Ferguson from the underlying litigation. Id. at 513-15. Consequently, the court ordered that on remand the trial court “should determine the reasonable fees, costs, and expenses that BGE incurred during the period when BGE was entitled to representation, for which Commercial may be liable.” Id. at 514. •

Lafayette submits that as in Maldonado and Baltimore Gas, its duty to defend and indemnify Woodward ended on December 10, 2014, the day Stewart was dismissed from the litigation. Woodward responds that Maldonado and Baltimore Gas are of little precedential value because both are factually distinguishable from the present case. For instance, in Maldonado, Twin City issued “a complete reservation of rights on the grounds 'that [its] policy provided coverage to additional insureds, but only when the additional insured is found to be | ^vicariously liable for th¿ conduct of JL Steel or those acting on its behalf.” Maldonado at 214 n.3. And in Baltimore Gas, Commercial refused to defend the claim from the beginning. By contrast, Lafayette did not issue any reservation of rights to Woodward in this matter and specifically agreed to defend and indemnify Woodward after suit had been filed and continued to supply Woodward’s defense after Stewart was dismissed from the proceedings. Accordingly, in Maldonado and Baltimore Gas, where the insurers either reserved or invoked coverage defenses, waiver was not applicable. Here, on the other hand, Lafayette did neither and a finding of waiver is supported by the facts.

In Lafayette’s fourth argument against waiver, it submits that the court’s finding of waiver was erroneous because Woodward cannot demonstrate prejudice, an element it contends is required for a finding of waiver. In support of this contention, Lafayette relies on Arceneaux v. Amstar Corp., 06-1592 (La. App. 4 Cir. 10/31/07), 969 So.2d 755, 767, writs denied, 07-2486, 080053 (La. 3/24/08), 977 So.2d 952, 953, in which the Louisiana Fourth Circuit Court of Appeal asserted that “[i]n order to support a finding of waiver of the right to enforce a policy provision, the insured must also demonstrate prejudice, either actual or presumptive, as a result of the insurer’s actions.” Arceneaux, 06-1592, 969 So.2d at 767 (citing Allan Windt, Insurance Claims & Dispute, Representation of Insurance Companies and Insureds, § 2:10 (5th ed. 2007)). The Fourth Circuit added:

Although the Louisiana Supreme Court in Steptore did not expressly address the prejudice requirement, it implicitly recognized that prejudice arises when a conflict of interest exists between an insurer and its insured, reasoning that “waiver principles are applied stringently to uphold the prohibition against conflicts of interest between the insurer and the insured which could potentially affect legal representation in order to reinforce the role of the lawyer as the loyal advocate of the client’s interest.”

Arceneaux, 06-1592, 969 So.2d at 767-68 (quoting Steptore, 643 So.2d at 1216).

| ifiThe Louisiana Supreme Court has expounded upon how stringent application of waiver principles serves to reinforce conflict-free legal representation:

[Wjhere the insurer undertakes to defend the insured with knowledge of facts indicating non-coverage under the policy, the insured is led to believe the insurer has relinquished that right and acts accordingly. From that point, the insured has the right to believe the insurer’s attorney is acting in his best interest without regard to coverage defenses the insurer has seemingly relinquished. ... [A] belated disclaimer may prejudice the insured because it loses the opportunity to assume and manage its own defense. Therefore, the insurer cannot later avoid liability based on a coverage defense if it has assumed the defense without a reservation of rights and with knowledge of facts which would bring the claim outside the policy based on that defense.

Arceneaux, 10-2329, 66 So.3d at 451 (citation omitted).

From this, we find that prejudice of the insured is presumed in those instances when the insurer seeks to invoke a coverage defense after it has supplied a legal defense to the' insured with knowledge of facts indicating non-coverage under the policy and with no prior reservation of rights. In such instances, application of waiver is proper. For example, in Steptore, the Louisiana Supreme Court found that because the insurer assumed the defense of the insured without first reserving its right to deny coverage under the policy and continued to represent the insured with counsel that was also representing its own interests, the insurer waived any coverage defense it may have had under the policy. Steptore, supra at 1217.

Likewise, we find waiver is applicable in the present case. Mr. Moreno’s petition was filed on January 4, 2007 naming as defendants Lafayette and Stewart, among others. On April 2, 2007, Woodward was named as a defendant in Entergy’s third party demand. In Woodward’s answer to this third party demand in July of 2007, Woodward was represented by counsel of Jones Walker LLP. In the October 11, 2007 agreement, Woodward was represented by Jones Walker and Lafayette was represented by Bernard, Cassisa, Elliott & Davis APLC. Thereafter, 117pursuant to that agreement, the record reflects that Woodward was represented by Bernard Cassisa for several more years in this litigation. Pleadings filed in April 2008, June 2009, and September 2009 all reflect counsel of Bernard Cassisa as Woodward’s counsel of record. In fact, in Woodward’s motion for summary judgment on Enter-gy’s third party demand filed September 17, 2009, this pleading listed counsel as both Woodward’s and Lafayette’s representatives, ie., “Attorneys for Carl E. Woodward, LLC and Lafayette Insurance Company.”

This representation of Woodward continued on appeal to this Court, see Moreno v. Entergy Corp., 09-976 (La. App 5 Cir. 9/10/10), 49 So.3d 418, upon certiorari to the Louisiana Supreme Court, see Moreno v. Entergy Corp., 10-2268 (La. 2/18/11), 64 So.3d 761, back on remand to this Court, see Moreno v. Entergy Corp., 09-976 (La. App 5. Cir. 10/27/11), 79 So.3d 406, back on certiorari to the supreme court, see Moreno v. Entergy Corp., 12-97 (La. 12/4/12), 105 So.3d 40, and upon remand to the district court, as evidenced in Woodward’s motion for summary judgment on Enter-gy’s third party demand filed July 2, 2014.

Crucially, this representation continued even after Stewart’s dismissal from the proceedings. On December 11, 2014, the day after Stewart was dismissed, Lafayette did not invoke its claimed coverage defense. Instead, counsel for Lafayette and Woodward moved to enroll additional counsel from Bernard Cassisa as counsel of record for both Lafayette and Woodward. This was granted by the district court on December 17, 2014. It was not until a later date, at some point prior to July 6, 2015—the date Lafayette filed its petition for declaratory judgment against Woodward—that Lafayette procured separate counsel.

Under these facts, we agree with the district court that Lafayette waived its right to deny coverage to Woodward. Therefore, upon our de novo review, we conclude that the district court properly denied Lafayette’s motion for summary judgment and properly granted Woodward’s motion for summary judgment.

| i8DECREE

For the foregoing reasons, the district court’s November 22, 2106 judgment is affirmed.

AFFIRMED

      . A more detailed presentation of the facts giving rise to Mr. Moreno’s injuries is included in the Louisiana Supreme Court’s opinion, Moreno v. Entergy Corp., 12-97 (La. 12/4/12), 105 So.3d 40, 42-43.

      . The procedural history presented here omits portions that are not pertinent to this appeal,

      . The version of La. C.C.P. 966(F) in effect at the time of the district court’s December 10, 2014 ruling provided in pertinent part: "(1) A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.”

      . This petition was originally filed in separate proceedings in 24th Judicial District Court No. 751-253, but was consolidated with the instant litigation in 24th Judicial District Court No. 640-321.

      . Prior to plaintiffs' third supplemental and amended petition, they had moved to dismiss JL ’Steel, which the trial court granted on March 11, 2011. Maldonado at 220.


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    Kimberly RONQUILLE v. David Anthony RONQUILLE, Jr.
    NO. 17-CA-207
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, KIMBERLY RONQUILLE, Stacey W. Marcel, New Orleans
    ■COUNSEL FOR DEFENDANT/APPELLANT, DAVID ANTHONY RONQ-UILLE, JR., Bernadette R. Lee, Sheila. H. Willis, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

j Appellant, David Anthony Ronquille, Jr., appeals the trial court’s January 3, 2017 judgment, which denied his request to • terminate permanent spousal support awarded to appellee, Kimberly Ronquille. Mr. Ronquille contends that Ms. Ronquille cohabitated with another man in the manner of married persons, and therefore, his obligation to pay spousal support was extinguished pursuant to La. C.C. art. 115. For the following reasons, we affirm the trial court’s judgment- denying Mr. Ronq-uille’s request to terminate permanent spousal support.

FACTS AND PROCEDURAL HISTORY

The parties divorced on May 28, 2014. On January 16, 2015, the parties agreed Mr. Ronquille would pay Ms. Ronquille permanent spousal support in the amount of $1,000 per month once she moved from the family home. On September 22, 2016, Mr. Ronquille filed a motion to extinguish the permanent spousal support pursuant to La. C.O. art. 116, due to Ms. Ronquille’s alleged cohabitation with another man -in the manner of married persons. Following an evidentiary hearing held on December 6, 2016, the trial court verbally denied Mr. Ronquille’s motion, and on January -3, 2017, the trial court entered a written judgment. Mr. Ronquille filed a timely motion for appeal on January 11, 2017, and the trial court.signed the order granting the appeal on the same day.

At the December 6, 2016 evidentiary hearing, Mr. Ronquille testified that he learned from his minor son that David Belsome, a childhood friend of Ms. 'Ronq-uille, was sleeping in the same room with her. His son also told him that Mr. Bel-some’s child slept on an air mattress in the room with them.

Mr. Ronquille hired a private investigator, Ronald B. Frazier, Sr., to document whether David Belsome was living with Ms. Ronquille at her residence located at 2317 Biron Street in Mandeville, La. Mr. Ronquille told' Mr. Frazier that David Bel-some drove a white GMC vehicle and Ms. Ronquille drove a late model ^Mercury Mountaineer. Mr. Frazier first researched Mr. Belsome by reviewing his Facebook page. He obtained several pictures of Mr. Belsome and noted that Mr. Belsome claimed to live in Lacombe, La. Mr. Frazier initiated surveillance of Ms. Ronquille’s residence on September 2, 2016.' Upon arriving, no one was home and he suspended surveillance as it was the beginning of the Labor Day weekend.

On Friday, September 9, 2016, Mr. Frazier restarted his surveillance. He arrived at Ms. Ronquille’s residence at approximately 6:38 p.m., and observed a' white GMC Envoy parked in front of the residence. He conducted a registration check of the license plate and learned the vehicle was registered to Dayid Belsome at an address located at 27226 Tag Along Road in Lacombe, La. At approximately 8:41 pm., Mr. Frazier observed Ms. Ronquille’s Mercury Mountaineer pull into the driveway. Mr. Belsome exited the driver’s seat and unlocked the front door of the residence. Ms. Ronquille and her son exited the car and went into the house. Mr. Bel-some returned to the vehicle and carried the Ronquilles’ daughter into the house. He then went to the back of the vehicle, opened the back of the Mountaineer, and retrieved the wheelchair used by the Ronquilles’ daughter. He returned to the vehicle one last time to remove another young female believed to be Mr. Belsome’s daughter. They entered. the house and turned off the front lights. Surveillance continued until the interior lights were extinguished.

On Saturday, September 10, 2016, Mr. Frazier arrived at Ms. Ronquille’s residence at approximately 6:30 a.m. Mr. Bel-some’s and Ms. Ronquille’s vehicles were both still at the residence. He noticed dew on both vehicles, indicating they were not moved overnight. Mr. Frazier returned again at approximately 6:52 p.m. Both vehicles were at the residence and he continued surveillance until he believed Mr. Bel-some and Ms. Ronquille would remain there for the night. On Sunday, September 11, 2016, Mr. Frazier returned to 2317 Biron Street at 5:51 a.m., where |ahe observed both vehicles parked at the residence in the same locations. He returned at 6:24 p.m. and found only Mr. Belsome’s vehicle parked at the residence. In an effort to determine who was at the residence, Mr. Ronquille called Ms. Ronquille and learned Ms. Ronquille and her two children were home. Mr. Frazier believed Mr. Belsome used Ms. Ronquille’s vehicle to return his daughter back to her mother.

On Monday, September 12, 2016, Mr. Frazier arrived to Ms. Ronquille’s residence at approximately 6:20 a.m. and Mr. Belsomé’s vehicle was not there. When he returned at 7:57 p.m. that same day, both vehicles were parked in the driveway. He discontinued surveillance at approximately 9:15 to 9:30 p.m. On Tuesday, September 13, 2016, Mr. Frazier arrived at the residence at the earlier time of 4:49 a.m., because he believed Mr. Belsome had left for work before he arrived at the residence the prior morning. Both Mr. Belsome’s and Ms. Ronquille’s vehicles were parked in the driveway. He returned at 8:30 p.m. and saw a truck with a sign “Closets by Design” on the side parked by the residence. Mr. Frazier indicated that he believed Mr. Belsome worked for this company. He also saw a gray Cube, belonging to Ms. Ronq-uille’s mother, Carol Dominick, parked in the driveway.

On Wednesday, September 14, 2016, at 4:57 a.m., Mr. Belsome’s work vehicle and the Cube were still at the residence. At 7:44 p.m., Mr. Frazier observed Ms. Ronq-uille’s and her mother’s vehicles parked at the residence. At 7:48 p.m., ah unmarked white truck pulled up in front of the house and parked on the grass. Mr. Frazier saw Mr. Belsome exit the vehicle and enter the residence. On Thursday, September 15, 2016, Mr. Frazier arrived at 4:58 a.m. and observed the same unmarked white truck. When he returned in the evening, he observed Mr. Belsome’s GMC Envoy parked in the driveway at 8:38 p.m.

, |40n Friday, September 16, 2016, Mr. Belsome’s GMC Envoy was parked in the driveway at 4:58 a.m. When Mr. Frazier returned thqt evening, he saw Ms. Ronq-uille’s vehicle and a dark green Chevrolet SUV at the residence. After checking the green SUV’s registration, he learned it belonged to Daniel Belsome, Jr., of 1101 Colbert St, Trailer 40, in Mandeville, La. Mr. Frazier believed Daniel is Mr. Bel-some’s nephew. On Saturday September 17, 2016, Mr. Belsome’s vehicle was parked in the driveway at 8:40 a.m. and the green SUV was not there. Following his testimony, Mr. Frazier played a video documenting his eight nights of surveillance at Ms. Ronquille’s residence.

On cross-examination, Mr. Frazier agreed he did not determine whether Mr. Belsome maintained a residence at another location, and he did not know if Mr. Bel-some moved personal items into Ms. Ronq-uille’s home or contributed financially to her household.

Ms. Ronquille testified that Mr. Belsome was her best friend since they were 10 years old. She admitted to starting a sexual relationship with Mr. Belsome. She claimed Mr. Belsome stayed at her home on the nights observed by Mr. Frazier because they were trying to take the relationship to the next level and the sexual relationship was new. She claimed the relationship did not last and denied that Mr. Belsome moved any personal items into her home or contributed financially to her household. She testified that Mr. Belsome resided on Colbert Street in Mandeville with his nephew.

Ms. Ronquille’s-mother, Carol Dominick, testified that she stayed at her daughter’s home several nights during the week to help with the children. She confirmed that her daughter had a sexual relationship with Mr. Belsome and that he sometimes slept over in her daughter’s room when she was there. She testified that they also went out together on the weekends with their children, but that they |swere not living together. She testified that Mr. Bel-some had a separate residence and did not provide financial support to her daughter,

Following the hearing, the trial court denied Mr. Ronquille’s motion to terminate the permanent spousal support. The trial court noted in oral reasons that while she found Ms. Ronquille’s testimony indicating that Mr. Belsome only slept at her home on the nights it was under surveillance to be extremely convenient, the trial court found it did not have sufficient evidence regarding the actual duration of the cohabitation and the nature of their arrangement to terminate spousal support. The trial court also found it did not have sufficient evidence regarding Mr. Belsome’s actual residence, and stated it would consider hearing the issue again if Mr. Ronquille could supply more evidence.

LAW AND DISCUSSION

On appeal, Mr. Ronquille contends the trial court erred by denying his motion to extinguish Ms. Ronquille’s spousal support obligation because the evidence indicates she was cohabitating with Mr. Belsome in the manner of married persons.

Louisiana Civil Code article 115, which governs the extinguishment of spousal support obligations, provides as follows:

The obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.

According to the Official Revision Comment (e), the “word ‘cohabit’ means to live together in a sexual relationship. The phrase ‘in the manner of married persons’ requires a relationship of some permanence. It does not mean just acts of sexual intercourse.”

The determination of whether a party cohabitated with another person in the manner of married persons is a question of fact subject to the manifest error 1 (¡standard of review. Almon v. Almon, 05-1848 (La. App. 1 Cir. 9/15/06), 943 So.2d 1113. 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. Olsen v. Olsen, 12-737 (La. App. 5 Cir. 3/13/13), 113 So.3d 274, 278. Under the manifest error standard, in order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. at 278-79. The manifest error standard of review obligates an appellate court to give great deference to the trial court’s findings of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided differently. Bonin v. Ferrellgas, Inc., 03-3024 (La. 7/2/04), 877 So.2d 89, 94-95.

Mr. Ronquille argues that the trial court erred by denying his motion to terminate spousal support because Ms. Ronquille was living with and engaging in a sexual relationship of some permanence with Mr. Bel-some. Mr. Ronquille first cites to the First Circuit Court of Appeal’s'decision in Almon, supra, as an example of a situation where the court found a lack of permanence. In Almon, a male friend moved into Ms. Almon’s home because he had nowhere else to stay. During the time in question, they did not share a bedroom and the friend kept his belongings in the garage. Ms. Almon admitted she engaged in sexual relations on occasion at the beginning of her friend’s residency, but claimed she never committed to a romantic relationship with him. Ms. Almon testified they did not attend parties or social functions together as a couple, she did not introduce or consider him her boyfriend, and they never discussed marriage. Based on these facts, the appellate court affirmed the trial court’s finding that Ms. Almon and her male friend were not cohabiting in the manner of married persons. 943 So.2d at 1118.

|7In contrast, in Arnold v. Arnold, 02-819 (La. App. 1 Cir. 4/2/03), 843 So.2d 1167, 1171, the appellate court found the evidence was sufficient to support the trial court’s decision to terminate permanent spousal support. In Arnold, the wife admitted that within one month of moving out of the marital domicile, her boyfriend moved into her apartment with her and the two were still living together at the time of the hearing on the husband’s motion to terminate support. The former wife also testified that her boyfriend kept his personal belongings in the apartment.

In Olsen, supra, this Court affirmed the trial court’s decision 'to extinguish spousal support based on its finding that the former wife and her male friend were living together in a relationship of some permanence following his release from prison, 113 So.3d at 280. This Court found the couple ate and cooked together, the male friend received his mail at the former wife’s home, and he told the probation and parole department that he resided at the former wife’s home. While they claimed to have separate rooms, the former wife admitted they sometimes slept in the same bed and had sexual intercourse. This Court noted that one of the most important factors in affirming the trial court’s decision was that the couple admitted to openly discussing marriage. Id.

After hearing the testimony and evidence in the present matter, the trial court determined it did not have sufficient evidence regarding the nature and duration of the Ms. Ronquille’s relationship with Mr. Belsome to determine they were cohabitating in the matter of married persons. Mr. Ronquille contends the trial court was clearly wrong because his son told him prior to the surveillance that Mr. Belsome slept in Ms. Ronquille’s room and the private investigator’s testimony indicated that Mr.- Belsome spent eight consecutive nights at Ms. Ronquille’s home. He also notes that the trial-court recognized that Ms. Ronquille’s testimony lacked credibility.

IsMr. Ronquille argues that based on this evidence, he carried his burden to establish that Mr. Belsome was living with Ms. Ronquille in a sexual relationship of some permanence. He points to .the fact that Mr. Belsome drove Ms. Ronquille’s car, had a key to her residence, exercised visitation with his own child at the residence and engaged in outings with her and her child together as a family. He contends that Ms. Ronquille’s explanation that Mr. Belsome spent eight nights in a row because the relationship was “new” was not credible. He also argues that the testimony provided by Ms. Ronquille’s mother, Carol Dominick, was confusing and evasive.

The trial court determined Mr. Ronq-uille did not present sufficient evidence regarding the nature and duration of the relationship to determine Ms. Ronquille and Mr. Belsome were cohabitating in the manner of married persons. After reviewing the entirety of the record, we do not find the trial court’s determination was manifestly erroneous. We agree that though the surveillance evidence indicates Mr.' Belsome spent eight consecutive nights at Ms. Ronquille’s home, it was not clearly wrong for the trial court to determine that insufficient evidence existed to find Ms. Ronquille and Mr. Belsome were living together in a sexual relationship of some permanence. The additional facts indicating that Mr. Belsome drove Ms. Ronquille’s car, exercised visitation with his ■ child at her home, and engaged -in outings with her and her children does not necessarily establish the parties’ intent to cohabitate together , as married persons.

DECREE

Based on the foregoing, we do riot find the trial court was manifestly erroneous and affirm the trial court’s judgment denying the motion to terminate permanent spousal support filed by appellant, David Anthony Ronquille, Jr.

AFFIRMED

      . The Ronquilles’ daughter suffers from cerebral palsy.


author: MURPHY, J.

text:
    STATE of Louisiana v. Corey D. FACIANE
    NO. 17-KA-224
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick,- Jr., -Paul D. Connick, Terry M. Boudreaux, Gretna, Andrea F. Long Rhonda J. Goode-Douglas

      COUNSEL FOR DEFENDANT/APPELLANT, COREY D. FACIANE, James A. Williams, Mary Vallon Hicks, Lynleigh G. Noel
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

| defendant, Corey Faciane, appeals his convictions and enhanced sentences for being a felon in possession of a firearm, and for possession with intent to distribute cocaine. For the reasons that follow, defendant’s convictions are affirmed. Defendant’s sentences are vacated in part, and affirmed as amended. We further remand for the correction of errors patent.

PROCEDURAL HISTORY

On March 17, 2011, the Jefferson Parish District Attorney’s office filed a bill of information charging defendant, Corey Fa-ciane, with one count of being a felon in possession of a firearm (“count one”), in violation of La. R.S. 14:95.1, and one count of possession with intent to distribute cocaine (“count two”), a violation of La. R.S. 40:967(A). Defendant pled not guilty to both counts at his arraignment on March •18, 2011. Following the denial of defendant’s pre-trial motions, defendant proceeded to a three-day jury trial starting on March 15, 2016, at the conclusion of which he was found guilty as charged. On March 22, 2016, defendant filed a motion for new trial, which was denied. Also, on March 22, 2016, the trial court sentenced defendant to 20 years at hard labor without benefit of probation, parole, or suspension of sentence, and a $1,000.00 fine on count one. On count two, the trial court sentenced defendant to 25 years at hard labor, with the first two years to be served |awithout benefit of parole, probation, or suspension of sentence, and a $20,000.00 fine. Both sentences were ordered to run concurrently. On the same date as sentencing, the State filed a multiple offender bill of information that alleged defendant was a third felony offender, to which defendant pled not guilty. Defendant thereafter -withdrew his not guilty plea on June 23, 2016, and stipulated to being a third felony offender as alleged in the multiple offender bill of information. Accordingly, the trial court vacated the sentences imposed on March 22, 2016, and re-sentenced defendant to 20 years hard labor without benefit of parole, probation, or suspension of sentence on count one, and 25 years hard labor on count two, with the first two years to be served without benefit of probation, parole, or suspension of sentence, and the remainder without benefit of probation and suspension of sentence. Both sentences were again ordered to run concurrently, and defendant was assessed a $1,000.00 fine on count one and a $20,000.00 fine on count two. Defendant filed a motion for appeal on June 23, 2016, and the instant appeal follows.

FACTS

Detective Ashton Gibbs testified that he was employed by the Gretna Police Department, and was assigned to the Major Crimes Task Force in February of 2011, during which time he met with a reliable confidential informant (“C.I.”) who provided information that led to the investigation of defendant, Corey Faciane. Detective Gibbs set up a controlled purchase between the C.I. and defendant, using five $100 bills that Detective Gibbs provided, which had been photocopied before the controlled purchase took place. Undercover surveillance was set up by Detective Gibbs, and other participating police detectives, at 2201 Manhattan Boulevard. Detective Gibbs watched defendant and the C.I. enter apartment H-206 at that address. After the C.I. had completed the purchase from defendant and returned to a predetermined location, Detective Gibbs retrieved a “light compressed powder” from the C.I. which tested positive for cocaine in a preliminary chemical field test. Based upon the controlled purchase, Detective Gibbs obtained a search warrant for 2201 Manhattan, H-206, and also for a second apartment located at 3300 Wall Boulevard, apartment 240. Detective Gibbs explained that a search warrant was obtained for both locations because defendant had been observed leaving the apartment on Wall Boulevard prior to the controlled | ..¡purchase taking place and returned to the Wall Boulevard apartment after the transaction had taken place. The warrants were obtained within 72 hours of when the controlled purchase took place and executed on February 10, 2011, at approximately 2:10 p.m.

Detective Gibbs was on the team that went to the apartment at 2201 Manhattan Boulevard to execute the search warrant. Although a “battery ram” was used to gain entrance to the apartment, police did have the front'door key that was found on defendant’s person. Detective Gibbs identified State’s Exhibit 32, a photograph of an ottoman found in the living room of defendant’s apartment, under which a firearm was found “velcroed” to the base. There was a live round in the chamber of the firearm. Other photographs identified by Detective Gibbs showed that there was also another round of ammunition found in defendant’s kitchen drawer next to three bags of an “off white compressed powder” that was stored behind the utensil container. In a bag beneath the oven, more compressed powder was found. Two digital scales, which had trace amounts of white powder, were located in a kitchen cabinet. A third digital scale with white powder residue was found on top of a blue cookie tin. The tin itself contained several bags of white compressed powder and white “rock like” objects. A coffee pot and a Pyrex measuring container, both containing white residue, were also found in the kitchen area. Detective Gibbs opined that the items found are used in the creation of .Crack cocaine.

Detective Gibbs identified State’s Exhibit 65, which was a photograph of five $100 bills contained within the approximate $28,000.00 recovered from defendant’s apartment on Wall. Detective Gibbs testified that the serial numbers on the bills matched those of the “pre-recorded currency” that was given to the C.I. prior to making a controlled purchase of illegal narcotics from defendant. Detective Gibbs identified defendant in open court.

| ¿Torn Angelica testified that he is the crime lab director at the Jefferson Parish Sheriffs Office Crime Lab. Part of his job duties is to analyze evidence for the presence of controlled dangerous substances, including cocaine. Angelica identified a lab. report that he wrote on April 12, 2011, which involved testing 12 bags of “white compressed powder” seized in connection with defendant’s case. After analyzing all of the bags, Angelica concluded that they each contained cocaine.

Lieutenant Shane Klein testified that he was employed by the Jefferson Parish Sheriffs Office Narcotics Section. By stipulation of defendant, Lieutenant Klein was accepted as an expert in the field of the packaging of narcotics. He described the mechanical process used for creating Crack cocaine, as well as how it was packaged for sale. Lieutenant Klein opined that items found pursuant to the search warrant in this case, namely the coffee pot, measuring cup, utensils and sandwich bags ■ found in defendant’s kitchen,- could be used to create and package Crack cocaine. Similarly, the digital scales found in defendant’s kitchen are typical of those commonly used to weigh narcotics. Lieutenant Klein examined the amount of cocaine seized in this case, and testified that the volume was not consistent -with what is typically kept for personal use. He further explained that it was common in his investigations to learn that a drug dealer has multiple residences and a surplus of cash on hand. Based upon the evidence he reviewed in this case, Lieutenant Klein concluded that all of the elements needed to deal drugs were present.

Detective Alfred Disler testified that he was employed by. the Gretna Police Department in February of 2011, and was assigned to the narcotics unit of the Major Crimes Task Force. During that time, he participated in an investigation | Bwith Detective Ashton Gibbs, during which he observed a controlled purchase involving a C.I, at 2201 Manhattan Blvd., H-206. Detective Disler saw defendant’s black Acura enter the apartment’s parking lot, and watched defendant exit the vehicle then proceed to go into the apartment complex and up the stairs into an apartment. Detective Disler then saw the C.I. go to the same apartment, where defendant opened the door. He watched the C.I. enter and exit the apartment a short time later. After the C.I. left, Detective Disler saw defendant get back into the black Acura, and' he followed defendant to the' apartment complex on Wall Boulevard. Detective Dis-ler was also involved in the execution of the warrant for 2201 Manhattan Boulevard. He identified defendant in open court.

Detective Disler was recalled on rebuttal later in the trial by the State, and testified that he had indicated the wrong building on a Google Earth map of the apartment complex presented by defendant where the controlled buy had taken place. He had circled building J, when the purchase took ■ actually place in building H.

Shawn Vincent testified at trial that he is a Detective with the Gretna Police Department and, in February of 2011, was assigned to the Major Crimes Task Force, where he primarily investigated violations of narcotics laws. He recalled that he came into contact with defendant while executing a warrant' at 3300 Wall Boulevard along with other officers. The officers were located in the parking lot of 3300 Wall Boulevard, at approximately 2:00 in the afternoon, when they approached defendant, who was accompanied by a female. Defendant and the woman were détained and handcuffed while the search warrant was executed. Detective Vincent identified a photograph of the key taken from defendant, which was used to open the apartment door deadbolt lock. During the search of the Wall Boulevard apartment, Detective Vincent found a shoebox containing over $28,000.00 in U.S. Currency that was located in the master bedroom closet. Some | (¡of the money was photocopied after being identified as funds used for “the initial buy” -by police. There was men’s clothing in the bedroom, as well as “paperwork” with defendant’s name on it. Upon completing the search of the apartment, evidence was secured, and both the defendant and his companion were transported to the Gretna Police Department. This concluded Detective Vincent’s role in the investigation.

On cross examination, Detective Vincent testified that he did not recall whether he placed defendant and Ms. McCallon, the woman accompanying defendant, face down on the ground after handcuffing them. Detective Vincent did not remember speaking to defendant prior to the search, but he believed that defendant and Ms. McCallon were advised of their rights by Detective Arnold. No drugs, or other contraband, were found at the time the apartment was searched.

On redirect examination, Detective Vincent testified that he was aware of a “simultaneous search” of another location, which also involved defendant, taking place at the same time the warrant was executed on Wall Boulevard. Detective Vincent identified defendant in open court as the person he arrested at 3300 Wall' Boulevard.

Sergeant Joel O’Lear of the Jefferson Parish Sheriffs Office was tendered as an expert in latent print processing and comparison and accepted by stipulation of defendant. Sergeant O’Léar testified that he had taken defendant’s fingerprints on a “ten print card” earlier on the date of trial and compared ’ thése ■ to the fingerprints contained in a certified conviction packet from a possession of Crack cocaine charge dated May 26, 2009, and determined that the fingerprints were made by the same individual. -

By stipulation of defendant and the State, a redacted transcript of prior testimony given by Detective Stephen Arnold on October 14, 2011, was read to the Injury. Detective Arnold testified that he was employed by the Jefferson Parish Sheriffs Office and assigned to the Major Crimes Task Force. Detective Arnold participated in a narcotics investigation that ultimately led to the arrest of defendant, whom he identified in court. Detective Arnold took a statement from defendant on February 10, 2011, after advising him of his constitutional rights, both verbally .and on a written form.' The Rights of Arrestee form, which was initialed by defendant, indicated that defendant was under arrest and would be charged with possession , of over 28 gram’s of Crack cocaine. That same form indicated, that defendant wished to give a statement without the presence of an attorney. Defendant indicated to Detective Arnold that he understood his. rights and agreed to waive them before defendant gave a statément. An address given by defendant at the time of his statement was 2101 Manhattan, apartment H-206. Detective Arnold stated that the Manhattan address provided by defendant was one of the apartments searched in this case.

Detective Arnold denied telling defendant that his girlfriend would be charged along with him unless he cooperated with the investigation.

In connection with Detective Arnold’s testimony that was read into the record, the State introduced the recorded statement of defendant and a transcription of defendant’s statement. The audio statement was played for. the jury. In his statement, defendant first acknowledges that he was advised of his rights and waived those rights to give a statement without an attorney present. Defendant said that the statement was being given of his own free will and was not coerced; The remaining relevant portions of the statement .were as follows:

DETECTIVE ARNOLD:
Ok at that time we executed a lawful order of search and located no contraband at that location, we also had search warrants for your other | locations that you used for residences at time to time, uh, one which is on King’s Road and also another one is uh, the St. Germaine Apartments on Manhattan Boulevard in Harvey, I want to talk to you about the, the apartments on Manhattan, 2101 Manhattan, Apartment H206, have you resided at that apartment in the recent past?
DEFENDANT:
Yes.
DETECTIVE ARNOLD:
Ok located at that apartment was um, over twenty-eight grams of cocaine, was that uh, was that drugs, are you aware of that [sic] drugs?
DEPENDANT:
Yes.
DETECTIVE ARNOLD:
Was that for anybody else but yourself?
DEFENDANT:
No.
DETECTIVE ARNOLD:
So that cocaine was for you, is that correct?
DEFENDANT:
Yes.
DETECTIVE ARNOLD:
Ok, how long have you been selling cocaine?
DEFENDANT:
Five years.
DETECTIVE ARNOLD:
Do you use cocaine?
DEFENDANT:
Sometimes.
J^DETECTIVE ARNOLD:
Do you sell it to support your own habit sometimes?
DEFENDANT:
Yes.
DETECTIVE ARNOLD:
Ok, about how much if you had to estimate, how much are you selling every month?
DEFENDANT:
Ounce, two ounce.
DETECTIVE ARNOLD:
Ok, alright we also located a uh substantial amount of, of cash money, it’s pretty safe to assume that money was from drug sale proceeds is that correct?
DEFENDANT:
Most of it.

Defendant denied that his girlfriend, who lived at 3300 Wall, was involved with the sale of drugs or that she knew he sold drugs.

Defendant’s brother, David Faciane, testified that, in early 2011, he spoke with defendant about the possibility of opening a janitorial franchise. To that end, he gave defendant $8,000.00 in cash to start the business. He had no documentation to support that he gave the money to defendant, or for what purpose.

L’erin McCallon testified that she had known defendant for approximately eight years, and lived with him in February of 2011 at 3300 Wall. At the time she owned a 2006 Nissan Altima. Defendant was employed at that time doing oil spill cleanup in Lafitte earning approximately $1,000.00 a week. Ms. McCallon testified that, on the date in February when.defendant was arrested, she was with |1(lhim and was also placed under arrest. She got on her hands and knees and was handcuffed. She and defendant were transported to the Gretna Police station in separate vehicles and placed in separate areas once she and defendant arrived there.

ASSIGNMENT OF ERROR 1

The evidence presented at trial was insufficient to support the jury’s verdict of guilty on any count.

LAW AND ANALYSIS

The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Hooker, 05-251 (La. App. 5 Cir. 1/17/06), 921 So.2d 1066, 1074. In the present case, defendant did not file such a motion; however, the failure to file a post-verdict judgment of acquittal does not preclude appellate review of the sufficiency of the evidence. State v. Robinson, 04-964 (La. App. 5 Cir. 2/15/05), 896 So.2d 1115, 1120, n.3.

The standard of review for determining the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Both direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. State v. Kempton, 01-572 (La. App. 5 Cir. 12/12/01), 806 So.2d 718, 722. The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The previewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of .guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, both admissible and inadmissible, to- determine whether the -evidence is sufficient to support the conviction. State v. Hearold, 603 So.2d 731, 734 (La. 1992).

Possession of a Firearm by a Convicted Felon

Defendant challenges the sufficiency of the evidence regarding his possession of a firearm by a convicted felon conviction on the basis that the State failed to prove that he was either in actual or constructive possession of the gun found in the apartment on Manhattan Boulevard.

In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had 1) possession of a firearm; 2) a prior conviction for an enumerated felony; 3) an absence of the ten-year statutory period of limitation; and 4) the general intent to commit the offense. State v. Chairs, 12-363 (La. App. 5 Cir. 12/27/12), 106 So.3d 1232, 1250.

|12Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1. Constructive possession is sufficient to satisfy the element of possession. State v. Day, 410 So.2d 741, 743 (La. 1982). A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. State v. Johnson, 03-1228 (La. 4/14/04), 870 So.2d 995, 998. A person’s dominion over a weapon constitutes constructive possession, even if it is only temporary in nature and even if control is shared. Id. at 999. A defendant’s mere presence in an area where a firearm was found does not necessarily establish possession. Id. The State must prove that the offender was aware that a firearm was in his presence and that the offender had the general intent to possess the1 weapon. Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. at 998.

In this case, Sergeant Joel O’Lear testified that he had taken defendant’s fingerprints on a “ten print card” earlier on the date of trial and compared these to the fingerprints contained, in a certified conviction packet from a possession of Crack cocaine charge dated May 26, 2009, and determined that the fingerprints were made by the same individual, defendant. Thus,- evidence of the elements of defendant being a convicted felon, as well the date of his previous conviction being within the 10-year cleansing period, was presented to -the jury. The jury was also presented evidence, through defendant’s own statement to Detective Arnold, that his recent address was 2101 Manhattan, apartment H-206, which was the same apartment where the gun was found. Further, Detective Ashton Gibbs testified that a 'controlled buy took place between defendant and a C.I. at 2101 Manhattan, apartment H-206, and also that defendant had a key on his person when he was arrested that opened the apartment door.

Taking into account the uncontradicted evidence of defendant’s prior felony conviction and his own admission that 2101 Manhattan, apartment H-206, was his | ^residence, as well as the other factors described above which demonstrated defendant’s access to the apartment, in viewing the-evidence detailed above in the light most favorable to the prosecution, we find that the jury had a rational basis to conclude that the State proved all essential elements of defendant being a felon in possession of a firearm.

Possession With Intent To Distribute Cocaine

Defendant also claims that the evidence was insufficient to support his conviction for possession with intent to distribute cocaine.

To prove possession with the intent to distribute cocaine, the State must show the defendant knowingly or intentionally possessed the drugs and he did so with the specific intent to distribute them. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact-finder. State v. Robinson, 02-1253 (La. App. 5 Cir. 04/09/03), 846 So.2d 76, 80. The intent to distribute may be established by proving circumstances surrounding defendant’s possession which gave rise to an inference of such intent. Such circumstances include (1) previous attempts to distribute; (2) whether the drugs are in a form consistent with distribution; (3) the amount of the drugs; (4) expert testimony indicating the amount of the drugs recovered is not consistent with personal use; and (5) paraphernalia evidencing an intent to distribute. State v. Robinson, supra, at 81.

As he does with his felon in possession of a firearm conviction, defendant asserts that the State failed to establish that the apartment at 2101 Manhattan was, in fact, his apartment. For the reasons discussed above, however, we find this argument is without merit. Turning to the other elements of the offense that the luState was required to prove, the record shows the following evidence. First and foremost, the jury was provided evidence of defendant’s own confession, in which he stated that he was aware of the cocaine found in the apartment at 2101 Manhattan, apartment H-206, and also claimed ownership of it, specifying that he both used and sold the drug. Confessions are considered to be direct evidence of guilt. See State v. Marr, 626 So.2d 40, 45 (La. App. 1st Cir. 1993), writ denied, 93-2806 (La. 1/7/94), 631 So.2d 455. The jury was also presented with the testimony of Detective Gibbs, who detailed that upon execution of the search warrant at 2101 Manhattan, apartment H-206, an “off white compressed powder” was found in several locations, along with digital scales, a coffee pot and a measuring container, also coated with white powder, all of which, as explained by Detective Gibbs, are used in the creation of Crack cocaine. Jefferson Parish Sheriffs Office Crime Lab Director, Tom Angelica, testified that, after analyzing all of the bags, he concluded in his report that they each contained cocaine. Finally, Lieutenant Shane Klein, accepted as an expert in the field of the packaging of narcotics, testified that the coffee pot, measuring cup, utensils and sandwich bags and digital scales found in defendant’s kitchen could be used to create and package Crack cocaine. Lieutenant Klein also testified that the amount of cocaine seized in this case was not consistent with what is typically kept for personal use.

In applying the Jackson standard to the evidence introduced by the State at trial relative to defendant’s possession with intent to distribute cocaine conviction, we find that; after viewing the evidence in:the light most favorable to the prosecution, the jury could have found- the essential elements of- this offense beyond a reasonable doubt. This assignment has no merit.

I ^ASSIGNMENT OF ERROR 2

The trial court erred in denying the defense’s request for mistrial after the State presented evidence which was not disclosed previous to trial and irt violation of the trial court’s order.

LAW AND ANALYSIS

In his second assignment of.error, defendant contends that a mistrial should have been granted when Detective Disler testified as to the position of the surveillance team during the controlled buy, because defendant had previously been denied this information and therefore could not test the accuracy of the testimony, which had the effect of prejudicing his defense.

At trial, Detective Disler testified that he was positioned at 2201 Manhattan Boulevard when the controlled buy took place and saw defendant enter apartment H-206, let the C.I. inside, and exit the same apartment afterward.

On cross examination, Detective Disler was asked by defense counsel if he was in a vehicle during the surveillance of defendant. He was then asked to identify defense photographs of what appeared generally to be 2201 .Manhattan Boulevard. From his location, during surveillance, while using binoculars, Detective Disler said that he saw defendant enter apartment H-206 with a key. After the controlled buy, Detective Disler followed defendant to 3300 Wall Boulevard; however, he did not personally see defendant use a key to open an apartment door in that complex.

On cross examination, defense counsel then provided Detective Disler with a “Google Earth” map, an overview of the St. Germain apartments on Manhattan Boulevard. Detective Disler identified on the map where the defendant and the C.I. parked on the date of the controlled buy, and also marked the building that was under surveillance. Detective Disler said that he was stationary during the course of the surveillance.

hfiFollowing the conclusion of Detective Disler’s testimony, defendant called Joseph Northcutt as a witness. Mr. North-cutt testified that he was employed by a private investigation service and had gone to an apartment complex on Manhattan Boulevard on the morning of his testimony at the request of the defense. He stated, in summary, that Detective Disler had identified the wrong building in the apartment complex where the controlled buy had taken place, as shown on defendant’s “Google Earth” map.

Detective Disler was subsequently recalled by the State to present rebuttal evidence anfi, at that time, testified he previously circled the wrong building on Defense Exhibit 15. Specifically, he stated that he had circled building J, when he should have circled building H, right above it, as the location of the controlled buy. Detective Disler explained that the makeup of buildings J and H are the same, and that the parking spaces outside of those buildings are also relatively similar. Detective Disler further testified that he had not been back to the complex since the controlled buy in 2011 and that the aerial view of the complex is not the same as the view from the ground. On State’s Exhibit 75, a map showing the St. Germain apartments on Manhattan Boulevard, Detective Disler identified the area where he “observed the control purchase” through binoculars with an unobstructed view.

While there was no objection made to Detective Disler’s testimony while it was being given, defense counsel immediately moved for mistrial after the testimony had concluded on the basis that defense counsel could not test whether Detective Disler had an unobstructed view of the location at issue. The trial court denied the motion for a mistrial, struck State’s Exhibit 75, and ordered the jury to disregard Detective Disler’s testimony regarding his location at the time of. the surveillance of the controlled buy.

La. C.Cr.P. art. 775 provides for a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or |17when authorized under La. C.Cr.P. arts. 770 or 771. A mistrial under La. C.Cr.P. art. 775 is discretionary and is warranted only when trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Davis, 07-544 (La. App. 5 Cir. 12/27/07), 975 So.2d 60, 68, writ denied, 08-380 (La. 9/19/08), 992 So.2d 952. Under La. C.Cr.P. art. 771, a mistrial is discretionary when a witness makes an irrelevant remark that might prejudice the defendant. Article 771 gives the trial court the option to either admonish the jury, upon motion of the defendant, or, if an admonition does not appear sufficient, to declare a mistrial. State v. Johnson, 10-209 (La. App. 5 Cir. 10/12/10), 52 So.3d 110, 124, writ denied, 10-2546 (La. 4/1/11), 60 So.3d 1248. A mistrial should be granted under Article 771 only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Thomas, 08-390 (La. App. 5 Cir. 1/27/09), 8 So.3d 80, 86-87, writ de nied, 09-626 (La. 11/25/09), 22 So.3d 170; State v. Pierce, 11-320 (La. App. 5 Cir. 12/29/11), 80 So.3d 1267, 1271-72.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to a defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Lagarde, 07-123 (La. App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La. 5/9/08), 980 So.2d 684.

Prior to trial, in a writ to this Court, defendant challenged the trial court’s ruling on the State’s Motion for a pre-trial ruling that the testifying officers in this case would not be required to tell defendant the time and location of their surveillance. The trial court declined to require the State to tell the defendant the time and location of the surveillance on relator, on the basis that it could | ^compromise the C.L’s identity. We found no error in the trial court’s ruling. State v. Faciane, 15-660 (La. App. 5 Cir. 10/21/15) (unpublished writ). On March 14, 2016, the trial court denied a second motion by defendant, styled as a “Motion for Discovery of Information Pertaining to the Controlled Buy,” which again sought to learn “the date, time and location of the alleged controlled buy, in particular the location of law enforcement during their surveillance.” As he does on appeal, defendant argued that in denying his motion for this information, the trial court was hindering his ability to present a defense. We denied defendant’s writ application on the showing made. In addition, on March 14,2016, the day before trial, defendant filed a Motion for Discovery of Information Pertaining to the Controlled Buy. At the hearing, defense counsel stated that he wanted to know exactly where the surveillance officers were in the apartment complex during the controlled buy. The trial judge subsequently denied the motion.

It is not disputed that defendant was aware, well in advance of trial, that the basis of the search warrant which led to his arrest in this case was a controlled narcotics purchase set up by police at 2101 Manhattan, apartment H-206. The probable cause statement indicated that defendant was under continuous surveillance prior to the controlled buy, and that Detective Disler saw the defendant enter 2101 Manhattan, apartment H-206, before the controlled buy took place, and leave from that same apartment after the transaction had concluded. Detective Disler’s testimony was consistent with that of Detective Gibbs and what was provided in the probable cause affidavit.

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Decay, 07-966, p. 18 (La. App. 5 Cir. 6/19/08), 989 So.2d 132, 144, writ denied, 08-1634 (La. 4/13/09), 5 So.3d 161. However, the right to present a defense does not require the trial court to permit the introduction of 119evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Marsalis, 04-827 (La. App. 5 Cir. 4/26/05), 902 So.2d 1081, 1088. In this case, the exact physical location of Detective Disler during the surveillance of defendant while the controlled buy was conducted was not disclosed in order to protect the identity of the C.I. While defendant claims that the exact location of Detective Disler was necessary to prepare his defense, defendant was not charged with any conduct related to the controlled buy. Rather, defendant was charged with possession with intent to distribute cocaine that was seized at a later date pursuant to a search warrant. As previously discussed, defendant gave a statement to police wherein he identified his recent address as 2101 Manhattan, apartment H-206, and also admitted- to ownership of the cocaine found at that address. In light of these two. facts alone, we cannot say that information about Detective Disler’s exact location during the controlled" buy is of significant probative value. State v. Clark, 05-61 (La. App. 5 Cir. 06/28/05), 909 So.2d 1007, 1015-1016. Additionally, Detective Disler was not the only detective conducting surveillance who placed the defendant at the scene during the controlled buy. Multiple detectives were involved in the surveillance operation, one of whom, Detective Ashton Gibbs, also testified at trial as to his own observations that he observed the Cl and defendant enter .the apartment and leave after several minutes.

Based on the foregoing, we find no error in the trial court’s denial of defendant’s motion for mistrial.

ASSIGNMENT OF ERROR 3

The trial court erred in failing to impose appropriate sanctions for violation of the sequestration order by two State witnesses.

RnLAW AND ANALYSIS

. In this assignment, defendant contends that communication between Detective Disler and Detective Gibbs, prior to Detective Disler’s rebuttal testimony, constituted a violation of the court’s sequestration order. The State responds that defendant has not properly preserved this issue for appeal.

As indicated above, the record shows that Detective Disler was recalled by the State as a rebuttal witness on the last day of trial. At that time, on cross-examination of Detective Disler by defense counsel, the following exchange took place.

DEFENSE COUNSEL:
Detective Disler, when did yoü were first realize that you had made a mistake regarding the identification of these - buildings?
DETECTIVE DISLER:
I was called today regarding having to retestify [sic].
DEFENSE COUNSEL:
All right. So, you didn’t call the DA after you testified and tell them 'you made a mistake; they called you and told you you made a mistake; isn’t that correct?
DETECTIVE DISLER:
Yes, ma’ am. Yes, sir. I’m sorry.
DEFENSE COUNSEL:
And did you ask—and specifically who was it that called you?
DETECTIVE DISLER:
I believe it was Detective Gibbs asked me to contact Ms. Angel [the Assistant District Attorney].-
DEFENSE COUNSEL:
Okay. Did you speak to Ms. [Angel] Varnado?
DETECTIVE DISLER:
Yes, I did.
JgjDEFENSE COUNSEL:
And did she tell you the mistake that you had made?
DETECTIVE DISLER:
Yes, sir, she did.,

Defendant thereafter filed a Motion For New Trial in which he alleged that the communication between Detective Gibbs and Detective Disler was an “egregious” violation of the trial court sequestration order that had the result of depriving him of a fair trial.

The record shows that defendant did not lodge an objection pertaining to the sequestration order at the time of Detective Disler’s testimony. La. C.Cr.P. art. 841(A) provides, in part, that “an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling for .a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Soler, 93-1042 (La. App. 5 Cir. 4/26/94), 636 So.2d. 1069, writs denied, 94-0475 (La. 4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055; State v. Styles, 96-897 (La. App. 5 Cir. 3/25/97), 692 So.2d 1222, writ denied, 97-1069 (La. 10/13/97), 703 So.2d 609. In order to preserve the right to seek appellate review of an alleged trial court error, the party claiming the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841A; State v. Berroa-Ryes, 12-581 (La. App. 5 Cir. 1/30/13), 109 So.3d 487, 498; State v. Richoux, 11-1112 (La. App. 5 Cir. 9/11/12), 101 So.3d 483, 490-491, writ denied, 12-2215 (La. 4/1/13), 110 So.3d 139; State v. Alvarez, 10-925 (La. App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085. Defendant is limited on | ^appeal to matters to which an objection was made, but also to the grounds for his objection articulated at trial. State v. Jackson, 450 So.2d 621 (La. 1984); State v. Baker, 582 So.2d 1320 (La. App. 4 Cir. 1991), writ denied, 590 So.2d 1197 (La. 1992), cert. denied, 506 U.S. 818, 113 S.Ct. 62, 121 L.Ed.2d 30 (1992).

Since defendant did not object at trial to the testimony of Detective Disler at the time the alleged violation of the sequestration order took place, we find that he may not now assert this error on appeal. Nevertheless, even if an objection had been timely made, there is no evidence in the record that Detective Disler and Detective Gibbs actually discussed the case. Detective Disler’s testimony was that Detective Gibbs had relayed, a message for Detective Disler to call the prosecuting attorney. See, State v. Draughn, 05-1825, (La. 1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

ASSIGNMENT OF ERROR 4

It was error for the trial court to deny the defendant’s motion for a new trial.

LAW AND ANALYSIS

In this assignment, defendant argues that a new trial was warranted based on “the verdict’s contrariness to the law and evidence presented at trial, the violation of the sequestration order by Detectives Gibbs and Disler, and the trial court’s denial of the Defense’s request to learn of the surveillance team’s location during surveillance of the apartment building where the controlled buy allegedly took place.”

La. C.Cr.P, art. 852 requires that: “[a] motion for new trial shall be in writing, shall state the grounds upon which it is based and shall be tried contradictorily with the district attorney.” La.C.Cr.P. art 853 requires that the motion for a new trial be filed and disposed of before sentence. A motion for new trial is based on the supposition that injustice has been done to the defendant. State v. Raines, 00-1941, p.10 (La. App. 5 Cir. 5/30/01), 788 So.2d 635, 642, writ denied, 01-1906 (La. 5/10/02), 815 So.2d 833, (citing State v. Washington, 98-69 (La. App. 5 Cir. 1/26/99), 727 So.2d 673, 677). On appeal, a trial judge’s ruling on a motion for a new trial will not be disturbed absent a clear showing of an abuse of discretion. State v. Richoux, 11-1112 (La. App. 5 Cir. 9/11/12), 101 So.3d 483, 490, writ denied, 12-2215 (La. 4/1/13), 110 So.3d 139.

We have considered all issues raised by defendant in his motion for new trial, which have also been assigned as errors in this appeal. In finding no merit to these assignments, we also find no abuse of discretion in the trial court’s denial of defendant’s motion for new trial. With respect to defendant’s claim that the “ends of justice” would be served by a new trial, this Court has previously held that such a claim presents nothing for appellate review. State v. Daniels, 15-78 (La. App. 5 Cir. 9/23/15), 176 So.3d 735, 740, writ denied, 15-1997 (La. 11/29/16), 211 So.3d 386 (citing State v. Onstead, 03-1413 (La. App. 5 Cir. 5/26/04), 875 So.2d 908). Accordingly, we find this assignment of error to be without merit.

ERROR PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). The following matters require corrective action.

First, the trial court erred in imposing fines as part of defendant’s enhanced sentences. La. R.S. 15:529.1 does not authorize imposition of a fine but only provides for enhanced sentences relating to the term of imprisonment. State v. Dickerson, 584 So.2d 1140 (La. 1991)(per curiam). Pursuant to our authority to correct an illegal sentence at any time under La. C.Cr.P. art. 882, we therefore vacate those portions of defendant’s sentences which imposed the fines, affirm as amended, and order the Clerk of the 24th Judicial District Court to transmit notice of the amended sentences to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2). See State v. Baskin, 13-351 (La. App. 5 Cir. 10/30/13), 129 So.3d 614, 624 (citing State v. Marshall, 45,567 (La. App. 2 Cir. 9/22/10), 47 So.3d 1083, writ denied, 10-2411 (La. 2/15/11), 58 So.3d 457).

Next, under La. R.S. 15:529.1(G), the trial court incorrectly ordered defendant’s enhanced sentence on count two to be served without benefit of parole, probation, or suspension of sentence, when La. R.S. 40:967(B)(4)(b), the underlying statute, does not provide for the prohibition of parole for the entire length of the sentence, only for the first two years. Accordingly, we amend the enhanced sentence on count two to delete the prohibition on parole except for the first two years of that sentence and affirm the sentence as amended. We further order the 24th Judicial District Court Clerk of Court to transmit notice of this amended sentence to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections’ legal department. State v. Richard, 12-310 (La. App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied, 13-1220 (La. 12/2/13), 126 So.3d 497.

We note several discrepancies in the uniform commitment order (UCO). The UCO states that the offense in count two was “distribution of cocaine;” however, the offense in count two was actually “possession of cocaine with intent to distribute.” The UCO also states that the offense date was, “02/10/2011—03/22/2016 Multiple Bill filed.” The offense date was actually on February 10, 2011. The UCO further states that the adjudication date was March 22, 2016; however, the date of conviction for the underlying offense was March 17, 2016, and the date defendant was adjudicated a third felony offender was June 23, 2016. The UCO provides that the sentence date was, “03/22/2016— 06/23/2016 Multiple Bill Sentence.” The multiple offender sentence was imposed on June 23, 2016. The UCO also provides that, “This sentence shall be concurrent with any or every sentence the offender is now serving;” however, the trial judge only ordered the two enhanced sentences to run concurrently to one another, not to any other ^sentence. The UCO further provides that defendant was given 20 years without benefit of parole, probation, or suspension of sentence; however, the UCO does not reflect those restrictions were for count one only. The UCO fails to provide any information regarding the restriction of benefits on count two.

In light of the foregoing, we remand this matter for correction of the UCO, as identified above, to ensure accuracy of the record and direct the 24th Judicial District Court Clerk of Court to transmit the corrected UCO to the appropriate authorities, in accordance with La. C.Cr.P. art. 892(B)(2), and to the Department of Corrections’ legal department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, defendant’s convictions are affirmed. Defendant’s sentences are vacated in part, amended in part, and affirmed as amended. We remand the matter pursuant to the instructions provided in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED; COMMITMENT REMANDED FOR CORRECTION

      . The apartment at 2201 Manhattan Boulevard, building H, apartment 206, is referred to several different ways throughout the record. For the purposes of consistency, all references to that location in this opinion will be "H-206”.

      . The transcript was introduced into evidence as State’s Exhibit 22.

      , The statement referred to was introduced as State’s Exhibit 3 at the October 14, 2011 proceeding.