author: AMY, Judge.

text:
    Jeremy J. LEBOUEF v. RPC, INC. d/b/a Cudd Energy Services Jeremy J. Lebouef v. RPC, Inc. d/b/a Cudd Energy Services
    16-944
    16-945
    Court of Appeal of Louisiana, Third Circuit.
    04/12/2017

      Mark L. Riley, The Glenn Armentor Law Corporation, 300 Stewart Street, Lafayette, LA 70501, (337) 233-1471, COUNSEL FOR PLAINTIFF/APPELLANT: Jeremy J. LeBouef
    Scott F. Higgins, Jeansonne and Re-mondet, Post Office Box 91530, Lafayette, LA 70509, (337) 237-4370, COUNSEL FOR DEFENDANT/APPELLEE: RPC, Inc., d/b/a Cudd Energy Services
    Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   AMY, Judge.

I,The workers’ compensation claimant sought benefits from his employer in connection with injuries he allegedly sustained in two work-related accidents. The employer defended the claims by noting that the claimant’s medical records indicated that the second accident was caused by a possible opiate overdose and arguing that the claimant’s alleged injuries predated both accidents. The employer also filed a recon-ventional demand against the claimant, alleging that the claimant had willfully made false statements and misrepresentations in order to obtain benefits, and that accordingly, the employer was due restitution pursuant to La.R.S. 23:1208. The workers’ compensation judge dismissed both claims as well as the employer’s claim for restitution. Both parties appeal these consolidated matters. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, on February 12, 2015, Jeremy J. LeBouef filed two disputed claims for compensation (Form 1008s) against his employer, RPC, Inc. d/b/a Cudd Energy Services (Cudd). The first Form 1008, bearing Office of Workers’ Compensation (OWC) docket number 15-00967, stemmed from an alleged accident that occurred on March 6, 2014, in which the claimant asserted that, while attending a safety meeting at his employer’s Broussard office, the chair in which he was sitting broke, “causing him to fall and injure his thoracic and lumbar spine.”

The second Form 1008, bearing OWC docket number 15-00970, stemmed from an alleged accident that occurred in Pennsylvania on January 23, 2015, in which the claimant asserted that, while loading his truck to travel from the bunkhouse to a job site, he slipped on icy ground and fell, hitting his head. He |2testified that he has no memory of what occurred after the fall and that he only remembers waking up in the hospital. He further alleged that he was unconscious for approximately three hours until a coworker found him in the bunkhouse and that he suffered “head injuries, an injury to the hip leading to necrosis with hip replacement, and an aggravation of the prior back injury from the March 6,2014 accident.”

Cudd denied liability for both claims. Upon Cudd’s motion, the workers’ compensation judge consolidated the claims. By an Amended Answer and Reconventional Demand, Cudd asserted that the claimant “violated [La.R.S.] 23:1208 by willfully making misrepresentations and false statements about his past history of medical treatment, how the accidents occurred, and his injuries from the accidents!,]” and that “such misrepresentations and false statements were made intentionally and for the purpose of obtaining worker’s [sic] compensation benefits.” Accordingly, Cudd sought forfeiture of benefits paid, as well as restitution of costs and attorney fees.

At trial, Cudd asserted that the 2015 accident resulted not from slipping on icy ground, but from an opiate overdose, such that the claimant should be barred from receiving compensation per La.R.S. 23:1081. In support of this assertion, |sCudd pointed to records from emergency medical services and hospital records immediately following the accident. The hospital records provide an assessment of “[u]nresponsiveness and hypothermia in the setting of suspected narcotic overdose” and indicate that there was “[n]o established cause albeit with suspicion of medication overdose as a basis for present circumstance.” The records further indicate that the claimant regained consciousness after being administered Narcan, which, according to the deposition testimony of Cudd’s emergency medicine expert, Dr. Michael Odinet, is “a reversal agent for opioids—opiates.” Dr. Odinet also testified that Narcan “won’t do anything” unless the person is suffering from an opiate overdose. Additionally, emergency medical services records indicate that the claimant was “unresponsive,” that his “pupils were noted as constricted” and that he had “red ‘frothy’ liquid coming from his mouth[,]” symptoms which Dr. Odinet described as consistent with opiate overdose.

The hospital records further indicate that his urine tested positive for opiates, and that emergency medical services had reported that he had a “fresh needle mark to the left forearm[,]” but that the claimant denied “injecting himself with anything” and denied drug use. When asked at trial why the hospital records indicated that he had opiates in his system at the time of the accident, he replied, “I think I took one earlier in the day[,]” thereafter clarifying that he had taken the pain medication Norco, for which he had a prescription, because he was “in pain.” When asked at trial why the hospital records indicated that there had been a fresh |4inj ection mark in his arm, he stated that he had “never injected any medications before” and that he had “splatter marks” on his arms from welding.

Dr. Odinet, who did not personally examine the claimant but evaluated his medical records, testified that he believed an opiate overdose was “definitely, the most likely cause” of the 2015 accident. He pointed out in his testimony that, despite the claimant’s allegation that he had a “knot” on his head, none of the hospital records indicate that the claimant suffered any head injuries, as a physical examination of his head was described as “atrau-matic[,]” and two CT scans taken at the hospital following the accident revealed no abnormalities. He also testified that he believed the claimant’s medical records revealed a “pattern of drug seeking behavior[,]” as he saw two pain management doctors concurrently, and in April 2013, he had a Norco prescription from each doctor.

In addition to its intoxication defense, Cudd further asserted that the claimant’s alleged injuries pre-existed both alleged accidents. In support of this assertion, Cudd presented medical records predating the 2014 accident, dating back to 2004, indicating a history of the claimant complaining of back and/or hip pain. Cudd stated that the records revealed that the claimant saw a pain management doctor for “chronic and daily low back pain” “nearly every month between March 2013 and the March 2014 work accident[,]” and that notably, the claimant met with another pain management doctor the day before the 2014 accident and was sent home from work that day due to low back pain. The claimant did not dispute the accuracy of these records during cross-examination, admitting that he had sought treatment for “some back problems” prior to the 2014 accident. He further stated that his back pain “got extremely worse” after the 2014 accident, but then “started to” improve. However, he testified that after the 2015 accident, his back pain | ¡¡again “got extremely worse” and that he “could barely walk[,]” rendering him unable to work until his doctors cleared him for work in October 2015. However, the record indicates that a doctor that he saw in Pennsylvania, Dr. Steven Renzi, released him for full duty on January 27,2015.

Regarding his alleged hip injury, orthopedic surgery expert Dr. Harold Granger, who independently examined the claimant in September 2015, testified that the claimant suffered from necrosis of the femur, but that he did not believe that the condition was related to either work accident because it is “not something that shows up acutely after a fall. This is something that has been there a while.” Moreover, the claimant’s treating physician for his hip, Dr. Scott Yerger, stated in an operative report dated May 19, 2015 that the claimant “underwent left total hip arthroplasty ... performed secondary to avascular necrosis, likely due to alcohol usage.” This report further states ' that “today [the claimant] eluded [sic] to severe alcohol usage that prior to this he has not been forthcoming with[,]” and that Dr. Yerger “expressed the need for him to seek alcohol and drug counseling[.]”

By oral ruling, the workers’ compensation judge dismissed both of the claimant’s disputed claim forms, finding that the claimant “failed to meet his burden of proof that he sustained an accident on January 23, 2015.” Additionally, the workers’ compensation judge dismissed Gudd’s reconventional demand, finding that Cudd “failed to meet their burden of proof that Mr. LeBouef violated the provisions of the Louisiana Revised Statute[s] 23:1208.”

| (¡The claimant appeals, assigning as error the following:

1. The trial court erred in finding Mr. LeBouef failed to meet his burden of proof regarding the January 23, 2015 accident, and dismissing the claims raised in the second Form[ ]1008.
2. The trial court erred in finding Mr. LeBouef s injuries were not caused by or aggravated by the January 23, 2015 accident.

Cudd filed an answer to this appeal, assigning as error the following:

1. The trial court erred in finding that Defendant did not meet its burden to show that Mr. LeBouef violated the provisions of Louisiana Revised Statute[s] 23:1208 and that restitution of legal expenses should be paid.

Cudd further requests this court to “assess a fíne, and award restitution in the amount of Defendant’s legal expenses.”

Discussion

Alleged 2015 Accident

In his first assignment of error, the claimant argues that the workers’ compensation judge erred in finding that he failed to meet his burden of proof regarding the alleged 2015 accident. To receive compensation from an employer, an employee must prove, by a preponderance of evidence, “personal injury by accident arising out of and in the course of his employment];.]” La.R.S. 23:1031(A). See also Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253. According to La.R.S. 23:1021(1), an accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

17An employee’s testimony alone may prove that an unwitnessed work-related accident occurred if: “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Marange, 93 So.3d at 1257. Moreover, “determinations as to whether the worker’s testimony is credible, and whether the worker has discharged his or her burden of proof, are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.” Id. at 1257-58.

In rejecting the claimant’s assertion that he sustained an injury in the course and scope of his employment in January 2015, the trial court explained:

As to the January 23, 2015 incident, Mr. LeBouef testified he had just finished getting off of work, and there was a service call and he was loading his truck to go to a service call. There was snow on the ground. He testified he remembered loading his truck, and slipping and falling, but did not remember anything after that. He testified the next thing he remembered was waking up in the hospital. He testified that as of October, 2015, the doctors indicated he could go back to work.
Mr. LeBouef testified that the hospital records in Pennsylvania indicated he had some opio[i]ds in his system at the time of the January accident because he took one Norco earlier in the day. As far as the problems Mr. LeBouef was having when he got to the hospital, he testified he was dizzy, confused, slurred speech, pain in his shoulder and back area, lower back and his hip. When he got back home, he saw Dr. Araujo, Dr. Karim and Dr. Lasseigne. Mr. LeBouef testified as to the hospital records indicating that he had injection marks in his arms. Mr. LeBouef testified he never injected any medications before, and that he was doing a lot of welding and he had splatter marks all over his arms.

The trial court then provided a brief overview of the claimant’s medical history prior to both accidents, and then stated:

The Western Alliance Emergency Services records for date[] of service 1/23/15 stated the patient was found unresponsive in the bunk room by his supervisor with red frothy liquid coming from his mouth. The TCH Emergency Department records dated 1/24/2015 states HPI: | sThis is a 35 year old young man working in the natural gas fields, also suffering from spinal stenosis for which he has epidural shots several times a year as well as administered steroid shots into his back more intermittently, additionally on Parafon Fort 500 mgs BID and Norco 10/325, last filled on 12/29/14 #120 tablets which is gone, the patient after having been last seen about four hours before being found in his apartment unresponsive on the floor. EMS was activated and transported patient to the TCH ER in route awaking, struggling, nevertheless with vitals. No established cause albeit with suspicion of medication overdose as a basis for present circumstance. Other current facility-administered medications Naloxone (Narcan) injection 2 mg. Under Assessment/Impression: unresponsiveness and hypothermia in the setting of suspected narcotic overdose.
A note dated 1/24/15, patient more cooperative, comprehending situation better. Patient denies drug use and reports he has been out of Norco for 10 days. EMS reports patient has a fresh needle mark to the left forearm. Patient denies injecting himself with anything.
In assessing the testimony of Mr. Le-Bouef, the Court observed his gestures, tone of voice, responses and reactions to questions.
As to the January 23, 2015 incident, the Court finds that Mr. LeBouef s testimony was not credible. Considering the law and the evidence, the totality of evidence, the Court finds that Mr. Le-Bouef failed to meet his burden of proof that he sustained an accident on January 23, 2015.

After reviewing the record, we find no manifest error in the workers’ compensation judge’s determination that the claimant failed to meet his burden of proof regarding the purported 2015 accident. Namely, the claimant’s version of events was unwitnessed, and he testified that he had no recollection of the events after the alleged fall. Furthermore, and although he was found at the work site bunkhouse, Cudd presented evidence regarding a potential narcotic overlay. Additionally, recall that the claimant’s medical records, as well as Dr. Granger’s deposition testimony, indicate alternative causation of the alleged injuries.

Accordingly, we find that this assignment of error lacks merit.

| fCausatiomAggravation of Injuñes

In his second assignment of error, the claimant asserts that the workers’ compensation judge erred in finding that the claimant’s injuries were not caused by or aggravated by the 2015 accident. However, our conclusion that the workers’ compensation judge did not manifestly err in determining that the claimant failed to prove a work-related accident, as addressed above, renders this argument moot.

Reconventional Demand

Cudd answers the appeal and, in its sole assignment of error, asserts that the workers’ compensation judge erred in finding that it failed to meet its burden of proving that the claimant violated La.R.S. 28:1208, and in denying its claim for restitution. To prove that a claimant committed fraud pursuant to La.R.S. 28:1208, the employer must prove that the claimant “(1) made a false statement or representation, (2) the false statement was willfully made, (8) and the false statement was made for the purpose of obtaining workers’ compensation benefits.” Gibson v. Resin Systems, Inc., 15-299, p. 8 (La.App. 3 Cir. 10/7/15), 175 So.3d 1141, 1147.

Additionally, according to La.R.S. 23:1208(D), “any person violating the provisions of this Section ... may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only Imup to the time the employer became aware of the fraudulent conduct.” According to La.R.S. 23:1208(C)(4), “benefits claimed or payments obtained” includes “the reasonable costs of investigation and litigation.” See Wood v. Brian Harris Autoplex, 04-1316 (La.App. 1 Cir. 8/3/05), 923 So.2d 17. As it provided no benefits related to the alleged 2015 accident, Cudd focuses on its claim for costs of litigation and attorney fees.

In denying Cudd’s reconventional demand, the trial court stated that, “[c]on-sidering the law and the evidence, the defendant failed to meet their burden of proof that Mr. LeBouef violated the provisions of the Louisiana Revised Statute[s] 23:1208. Accordingly, the 23:1208 defense is denied.” On review, we are mindful that a workers’ compensation judge’s determination as to whether the claimant made “a false statement to obtain benefits is a finding of fact subject to the manifest error standard of review.” Gibson, 175 So.3d at 1143.

In Russell v. H & H Metal Contractors, Inc., 11-27, p. 13 (La.App. 3 Cir. 6/1/11), 65 So.3d 806, 816, a panel of this court noted that although the record indicated that the claimant in that case “made several inconsistent statements or omissions about his prior medical history, ‘not every false statement supports a finding of fraud.’ ” (quoting Int’l Maint. Corp. v. Stoddard, 05-676, p. 2 (La.App. 3 Cir. 12/30/05), 918 So.2d 1077, 1079). Rather, the false statement or misrepresentation “must be made for the purpose of obtaining benefits.” Id.

Further, in Faulkner v. Better Services, Inc., 10-867, p. 16 (La.App. 5 Cir. 5/24/11), 67 So.3d 646, 657, the employer argued that the claimant violated La.R.S. 23:1208, as she “made false statements in her deposition to support her claim that she had an accident.” At trial, when confronted with medical records showing inconsistencies with her deposition testimony relative to the date she had |T1received an epidural injection, the claimant testified that “she honestly did not remember because she had so many of ‘those procedures’ that they just seemed to run together.” Id. at 657. Additionally, she “explained that she was forgetful” and that “one of the medications she took, Lyrica, caused concentration difficulty and at times memory loss.” Id. at 657. The fifth circuit stated that, because of the claimant’s “occasional forgetfulness coupled with repeated injections[,]” it did not find “that the alleged false statement or misrepresentation was willfully made.” Id. at 657-58.

As Cudd points out, the record in this case reveals obvious discrepancies between the claimant’s attribution of his injuries to a work-related accident and his medical records. Cudd contends that the claimant’s slip-and-fall claim was “fabricated” and that “there was no slip and fall on the ice, but rather Mr. LeBouef overdosed on opiate narcotic medication.” Cudd further argues that, “in light of the evidence, it is difficult to reconcile the court’s finding that no work related accident occurred with his finding that Mr. LeBouef did not violate La.R.S. 23:1208.”

Undoubtedly, the workers’ compensation judge denied the finding of an “accident” for workers’ compensation purposes. Apparent from the record, however, is the claimant’s explanation that he could not recall the events that occurred after the purported fall. Yet, and in addition to the claimant’s confused recollection of events, the claimant was found at the work site bunkhouse, and was noted to be hypot-hermic in the resulting emergency room records. Moreover, the medical records reveal a significant medical and substance usage overlap to further muddle the claimant’s representation of causation. When confronted at trial with statements that he made in his deposition that were inconsistent with his trial | ^testimony, the claimant pointed out that, as he stated in his deposition, he was on Norco and that Nor-co “hurts with [his] memory loss[.]” When asked at trial if taking Norco the night before the deposition would have affected his memory, the claimant stated, “I think being on pain medicine, yeah. It took a while for it to get out of my system before my memory started getting better.”

Furthermore, the claimant never denied receiving treatment for back or hip pain prior to his alleged accidents. He was confronted with inconsistencies between his medical records and his testimony several times at trial. However, save for the notation of fresh needle marks in the emergency room records after the alleged 2015 accident, he did not dispute the accuracy of these records, instead repeatedly stating that he merely could not remember. Notably, when asked about the hospital records following the alleged 2015 accident, he explained, “I don’t remember gaining consciousness. I just remember waking up later, but I don’t remember much, so I don’t know if it’s incorrect.” Additionally, recall that the claimant admittedly took Norco on the day of the alleged 2015 accident, a medication which, according to his testimony, affects his memory.

Thus, and although the workers’ compensation judge may have determined that the claimant lacked credibility and failed to demonstrate an injury due to a work-related accident, he could have reasonably concluded that the claimant’s inconsistent statements were not made willfully, such that they did not amount to fraud pursuant to La.R.S. 23:1208. For these reasons, we find no manifest error in the trial court’s denial of Cudd’s reconventional demand.

Accordingly, we find that this assignment of error lacks merit.

J^DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling of July 7, 2016, is affirmed. Costs of this proceeding are assessed equally to the claimant-appellant, Jeremy J. LeBouef, and the plaintiff-in-reconvention/appellee, RPC, Inc., d/b/a Cudd Energy Services.

AFFIRMED.

      . Cudd has not paid any benefits to date relative to the alleged 2015 accident. Both parties stipulated at trial that "no compensation has been paid as a result of either 1008.” However, and although Cudd specifically denied liability for the 2014 claim, the claimant testified that he missed two weeks of work following the alleged 2014 accident with no interruption in pay. Additionally, a nurse from Axiom Medical Consulting, who spoke with the claimant following the 2014 accident, testified that he told her that he "would prefer to use first aid measures” as opposed to seeking professional medical treatment. When asked at trial if he was "aware of any medical records, other than the Axiom records a week following [his] incident, which relate any injuries or any treatment [he] received to the March 6, 2014 accident[,]” the claimant replied, "Not that I know of, no."

      . Louisiana Revised Statutes 23:1081 provides, in pertinent part:
      (1) No compensation shall be allowed for an injury caused:

      (b) by the injured employee’s intoxication at the time of the injury, unless the employee’s intoxication resulted from activities which were in pursuit of the employer’s interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee’s work hours[.]

      . At the time of trial, the claimant stated that he had not returned to work, citing difficulty in obtaining employment.

      . Although Cudd appealed from the ruling as it related to both alleged accidents, the claimant asserts that his claim relative to tire alleged 2014 accident is "not at issue in this appeal,” as Cudd "paid the wages and medical accordingly [.] ”

      . Louisiana Revised Statutes 23:1208 provides the following, in pertinent part:
      A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

      E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Blake Allen SHELL a/k/a Blake A. Shell
    16-873
    Court of Appeal of Louisiana, Third Circuit.
    4/12/2017

      Annette Fuller Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Blake Allen Shell
    Asa A. Skinner, District Attorney, Terry W. Lambright, First Assistant District Attorney, Post Office Box 1188, Leesville, LA 71446-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   AMY, Judge.

pThe State charged the defendant with negligent homicide following an automobile accident that resulted in the death of the passenger. After the defendant entered a no-contest plea to the charge, the trial court sentenced the defendant to four years at hard labor. The trial court further imposed restitution costs to the victim’s family. On appeal, the defendant asserts that the imposed sentence is excessive and that the trial court failed to establish a payment plan for the restitution costs. For the following reasons, we affirm.

Factual and Procedural Background

The State charged the defendant, Blake Allen Shell, with negligent homicide, a violation of La.R.S. 14:32, alleging by bill of information that, on or about February 20, 2015, defendant did kill Abigail Marlene Welch by criminal negligence, in violation of R.S. 14:32[] (felony).” At the resulting plea hearing, at which the defendant entered a plea of no contest, the State entered the following factual background to the trial court:

[O]n February the 20th, 2015, that this defendant was operating a motor vehicle and through his criminal negligence, did leave the roadway, flip his vehicle and strike a tree causing his passenger, Abigail Welch, to be ejected from the vehicle. Uh, when troopers arrived on the scene, spoke with this defendant, smelled alcohol on his breath, this court is aware, that because of a death involved, his blood was drawn at the—at the hospital where it was sent to the Louisiana Crime Lab where it was determined that his blood alcohol content was at .05. Also, his toxicology report showed that there were amphetamines in his blood—in his urine. Uh, all of these events occurred in Vernon Parish, State of Louisiana.

The trial court subsequently sentenced the defendant to four years at hard labor for the negligent homicide conviction. It also ordered the defendant to pay 12$13,374.56 in restitution to the victim’s family and to pay $150.00 to the Department of Public Safety for the completion of the pre-sentence investigation report. The trial court ordered that the sentence be served concurrently with a three-month sentence imposed for a conviction of operating a motor vehicle while intoxicated, a violation of La.R.S. 14:98.1.

After the trial court denied the defendant’s motion to reconsider sentence, the defendant filed this appeal. He assigned the following as error:

1) The sentence imposed by the trial court is excessive, in violation of the Eighth Amendment of the Constitution of the United States and La. Const[.] Art. I, § 20, and is nothing more than the needless infliction of pain and suffering.
2) The trial court failed to determine a periodic payment plan consistent with the financial ability of Appellant, as permitted by La. Code Crim. P. art. 883.2(D) and as appropriate under the circumstances of this case.

Errors Patent

Our review of the record pursuant to La.Code Crim.P. art. 920 reveals no errors patent on the face of the record.

Excessiveness of the Sentence

Noting that the four-year sentence imposed by the trial court is in the upper range of that designated by La.R.S. 14:32, the defendant asserts that the sentence imposed is unconstitutionally excessive. See U.S. Const, amend. VIII; La.Const. art. 1, § 20. Pointing to various mitigating factors, including his lack of prior criminal history, he suggests, as he did in his motion to reconsider sentence, that a | sprobated sentence would permit him to “obtain the medical and mental health treatment he needs to once again becoming a working and contributing member of society.” Otherwise, he contends that a low-to-mid-range sentence would be more suitable.

As pertinent to this matter, La.R.S. 14:32(C)(1) provides that, whoever commits the offense of negligent homicide, “shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.” Thus, the term of imprisonment imposed in this matter fell within the statutory range. However, this court reviews the sentence as it may be excessive under certain circumstances. See State v. Guzman, 99-1528 (La. 5/16/00), 769 So.2d 1158. Namely, a sentence will be found excessive when it is determined to be “so grossly disproportionate to the severity of the crime as to shock our sense of justice” or to “make[] no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering.” Id. at 1167.

The supreme court has explained that:

In determining whether the penalty is grossly disproportionate to the severity of the crime, a reviewing court must consider the punishment and the crime in light of the harm to society caused by its commission and decide whether the penalty is so disproportionate to the crime committed as to shock the sense of justice.
The following factors are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime: the nature of the offense and the offender, a comparison of the punishment in this case with the sentences imposed for similar crimes, the legislative purpose behind the punishment, a comparison of the punishment with sentences imposed for similar crimes, and a comparison of the punishment provided for this crime in other jurisdictions,

14State v. Fruge, 14-1172, p. 6 (La. 10/14/15), 179 So.3d 579, 588 (citations omitted). As noted by the defendant, sentences that are “at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense.” State v. LeBlanc, 09-1355, p. 10 (La. 7/6/10), 41 So.3d 1168, 1173.

In imposing sentence, the trial court observed that blood testing following the accident revealed that the defendant’s blood alcohol level was .05. He further explained that at the time the accident occurred, the defendant was traveling at seventy-five miles per hour (in a thirty-five mile per hour zone), and that he lost control of the vehicle upon an overcorrection of the vehicle. The trial court reported that there was no evidence of braking, and that the vehicle flipped multiple times, “ending up against a tree, pinning Mr. Shell in the vehicle, partially, causing serious injuries to him.” Ms. Welch, Mr. Shell’s eighteen-year-old passenger and girlfriend, was thrown “out of the vehicle killing her.” The trial, judge noted that neither was wearing a seat belt.

Thereafter, and upon review of the sentencing guidelines of La.Code Crim.P. art. 894.1, the trial court explained that it found them applicable as follows:

[T]here was cause—cause—harm caused to this family in the loss of their victim. Of course, ultimately, the harm was caused to the 18-year-old girl who lost her life. But the family lost a child and relative and they had to go through the process of funerals, headstones, and things of that kind and the expense that was stipulated to was $13,374.56 so there was economic harm, as well, as a result of this. There are no substantial grounds which would tend to excuse or justify his criminal conduct. He indicated in the P.S.I. that before this accident he did drink beer. Didn’t drink it all the time or every day but | she drank it occasionally and this evening he had had some. He has no prior record, whatsoever, clean as a whistle. Uh, seemed to be a good boy, a good—a good man. He has a high school education. He had worked previously in construction work. His health is relatively good. He deals—he still has to suffer some from his injuries, as I understand it, to his ankle and to, uh, his wrist but, as much as anything, he is dealing with the mental issues of what he did as far as causing the death of someone who[m] he loved dearly, apparently. And the statement he gave to the probation officer indicated that he wishes that it was him, rather than her, that was dead and I can certainly understand that. He’s single. He wants to -get on with his life and wants to try to get over this and deal with it. He has expressed remorse, uh, himself and he has asked his God to forgive him and today he has received the forgiveness of the father of the child or the girl. Now, with the kind of record that he has, he would be an ideal candidate for probation. However, I feel that probation in this case would deprecate or reduce the seriousness of the offense to a degree where I think that, uh, as Mr. Welch feels, that that would be considered more than anything a slap on the wrist and with no real consequences. The—the real problem here as far as the sentence that’s gonna [sic] be imposed is this, we have a result that is permanent and will have to be dealt with by both sides of this case for' the rest of their lives. Mr. Shell has to deal with it from the mental state of what he did and he’s gonna [sic] need a lot of help with that. However, the family and friends of this girl have lost someone who cannot be replaced, who[m] they can’t see, they can’t hug, they can’t talk to,' can’t touch. All they have [are] memories and their thoughts and pictures and videos or whatever else they have. They’re dealing with a permanent loss here and they, themselves, are gonna [sic] need a lot of help to get through this. Quite frankly, the maximum sentence on this is five years. Not too long ago I think the maximum was quite a bit bigger or larger than this but the Legislature, I think, saw fit to reduce it. I think when I first became a judge that I had this kind of a ease and the maximum penalty was 15 years and I gave that gentleman 15 years. The reason I did that was because his record was such that he had multiple D.WJ.’s, multiple chances to stop drinking and quit driving, even that day that this happened in that case and he ignored the pleas of his wife and he went off and, so, he killed someone and I gave him the maximum and on—on appeal, that was affirmed. But the Legislature has made this maximum five years. Now, the Legislature has also said—not particularly the Legislature, let me back-up. The Supreme Court and the appellate courts, the jurisprudence has also said that, when considering a sentence, the court should know that the maximum, penalty is reserved for the most egregious offenders for that particular offense, i.e., the individual I spoke of in the other ease who had multiple D.W.I.’s, multiple opportunities to get help, uh, had a record, had a pretty substantial record [of] driving and drinking and not doing anything about it and, finally, he killed someone. And, so, the maximum in that case was | ¿found by the higher courts to be an appropriate sentence but they also noted that this is the kind of case and the kind . of offender that the maximum is intended for; In this case, I have a—a young man, he’s 20 now, has all of his future and his life as an adult ahead of him, uh, and has no record whatsoever. So, I— I’m not going to impose the maximum because I think that if I did, I’d probably risk being reversed, because the Court of Appeals [sic] would find that with’ his clean record and his lack of any •kind of behavior of any significance to support that would reverse me. However, at the same time, I believe, that this sentence should send a message to him, should send a message to the victim’s family and to his family and to other young people who, for some reasons, think they are invincible, who think they are capable of reacting to any kind of emergency and preventing things from happening. I raised four boys. They’ve all made it and—and—but I lost one of them when he was 20 years old. It was an accident. It was terrible, but I know very well that young people believe that, hey, speed limits are not for me. If I start to lose control, when I’m going 75 miles an hour on a parish road with no shoulders, I’m still gonna [sic] save the car and we’re gonna [sic] get back on the road fíne and, hey, I can handle it. Let’s take a little risk, I can handle it. Oh, by the way, I’m gonna [sic] throw in a little beer on top of that and I can still handle it. But people need to quit thinking that way. They need to start being a little more careful and cautious and understanding that there are results and consequences of their actions. And in this case, the result and consequence is we have a dead girl, we have a young man whose future is perilous and he’s in a—a serious situation now. I have absolutely no idea why someone would be going 75 miles per hour on that road, under those conditions, at that time of the day other than to think that, hey, I’m wild and crazy and let’s just zoom off. They don’t think very—very much before they do things like that. And, so, one reason for sentencing someone in this kind of a situation, as I said in that other case, is to send a message to everyone else, young people in particular. I don’t care how old you are, if you’ve got a driver’s license and you’re driving, you better be cautious and careful in how you operate it and what you do before you operate it because there are consequences and Mr. Shell has to suffer those consequences at this time.

Subsequently, the trial court imposed the four-year, hard labor sentence, as well as restitution. Having reviewed the record, we find no manifest abuse of the trial court’s sentencing discretion. See State v. Smith, 01-2574, p. 6 (La. 1/14/03), 839 So.2d 1, 4 (instructing that “[a] trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion.”).

[7As noted by both the defendant and the trial court, a variety of mitigating circumstances was present in this matter. The record evidences that the defendant is of a young age, (nineteen years old at the time of the subject offense), has no criminal history, and maintained employment in the construction field prior to the accident. Additionally, he also sustained serious injury from the accident. On this latter point, the defendant’s mother explained at the sentencing hearing that he has needed mental health treatment and medication since the accident, is tearful, has difficulty performing at work due to continued problems with his legs and feet, and now spends most of his time at home alone in his bedroom at her home. She explained that he has “stated that he’s wanted to die several times.”

Reporting on the defendant’s background, the trial court explained that the defendant “would be an ideal candidate for probation.” Yet, the trial court specifically rejected the defendant’s request in that regard, finding that a more significant sentence was required. Specifically, the trial court referenced the loss sustained by the friends and family of the young victim, and the exacting, reckless nature of the underlying offense. The record supports this determination, as the accident occurred while the vehicle was traveling at a speed forty miles per hour over the posted speed limit. Also, and only nineteen years of age at the time of the offense, the defendant was found to have both alcohol and amphetamines in his system in post-accident testing. Both the driver and his passenger were reported to be traveling unrestrained by seat belts. Given the life-altering nature of the offense to all involved, we find no indication that sentence designated by the trial court was grossly disproportionate to the severity of the crime.

Additionally, and while the four-year sentence is in the upper range of that provided for by La.R.S. 14:32, we do not find it to be grossly out of proportion to |sthe underlying offense upon comparison to sentences imposed for similar offenses. Certainly, the defendant points to a number of cases in which lesser sentences were imposed for convictions of negligent homicide. See, e.g., State v. Williams, 458 So.2d 191 (La.App. 5 Cir. 1984) (wherein the fifth circuit affirmed a two-year sentence for a defendant convicted of negligent homicide in the death of a pedestrian; defendant was simultaneously convicted of operating a vehicle while intoxicated due to a blood alcohol level of .18%). See also State v. Green, 418 So.2d 609 (La.1982) (wherein the supreme court affirmed concurrent three-year sentences for a defendant convicted of two counts of negligent homicide in the deaths of two teenagers; testing performed subsequent to the offense revealed a blood alcohol level of .14%).

Importantly, however, the cases referenced by the defendant were affirmed at the appellate level. Thus, the trial court in each of those cases specifically chose a lesser sentence. It is unquestioned that the trial court could have done so in this case. Obviously, it found a lengthier sentence more appropriate given the articulated circumstances. We review that sentence only for an abuse of the trial court’s sentencing discretion, as “he or she remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784, p. 2 (La. 5/31/96), 674 So.2d 957, 958, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). Simply, the appellate court does not consider whether another sentence may have been more appropriate. Id.

We point out too, that jurisprudence also exists indicating that appellate courts have affirmed upper-range sentences under La. R.S. 14:32. See, e.g., State v. Rogers, 07-276 (La.App. 3 Cir. 10/3/07), 966 So.2d 1212 (wherein a panel of this court affirmed a three-and-one-half year sentence for a defendant convicted of ^negligent homicide in the death of a passenger; the subject left the scene, leaving the victim’s child unattended at a relative’s home, and did not report the accident); State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853 (wherein a panel of this court affirmed a five-year sentence for a negligent homicide conviction in the death of a motorist; the offense occurred when the defendant attempted to commit suicide by driving into oncoming traffic), writ denied, 04-0663 (La. 9/24/04), 882 So.2d 1165. Thus, upon comparison to sentences imposed in similar offenses, we find support in the jurisprudence for the sentence shaped by the trial court.

Finally, we find no merit in the defendant’s suggestion that the trial court’s erroneous belief that the penalty for negligent homicide had been recently amended and that this influenced his decision in arriving at the four-year sentence. While the trial court’s reference to an amend-merit to La.R.S. 14:32 was in error, we find no indication that the trial court intended to impose a more lenient sentence but for that mistaken belief. We have instead found here that the sentence imposed was within the appropriate sentencing guidelines and not excessive upon review. See State v. Preston, 47,273 (La.App. 2 Cir. 8/8/12), 103 So.3d 525 (wherein the second circuit affirmed a defendant’s sentence as it was within the correct sentencing guidelines, although the trial court incorrectly identified the applicable sentencing guidelines; the second circuit identified no intention of the trial court to impose a more lenient sentence).

11 Accordingly, we find the defendant’s assignment of error to be without merit.

Periodic Payment Plan

In his final assignment of error, the defendant argues that the trial court failed to determine a periodic payment plan consistent with his financial ability, as permitted by La.Code Crim.P. art. 883.2(D), and as appropriate under the circumstances of this ease. In particular, the defendant suggests that he was represented at trial by pro bono counsel, had a limited work history, continued to suffer from physical injuries related to the accident, and was unable to provide for his own recommended medical treatment.

With regard to restitution, La.Code Crim.P. art. 883.2(D) provides: “Notwithstanding any other provision of law to the contrary, if the defendant is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court may order a periodic payment plan consistent with the person’s financial ability.”

As explained above, the trial court ordered that the defendant pay restitution to Ms. Welch’s family in the amount of $13,374.56. Counsel for the defendant made only a general objection following sentencing, however. And, in his motion to reconsider sentence, the defendant asserted that “the amount of monies that the Court order[ed] [him to] pay are grossly excessive, and in essence creates a ‘debt- or’s prison’ environment for the defendant and are so excessive as to set him up to fail.” It did not include a request for a payment plan. ’

| T1 Significantly, La.Code Crim.P. art. 883.2(D) anticipates that, if a defendant is found to be indigent and unable to make full restitution, the trial court “may[] order a periodic payment plan[.]” However, neither by contemporaneous objection nor by motion to reconsider sentence, did the defendant specifically request that the trial court exercise its discretion in establishing the payment plan permitted by La.Code Crim.P. art. 883.2(D) or note an objection to the fact that it had not. Absent that request placed before it, alerting it to the opportunity to rectify such a purported omission, we do not find that the trial court otherwise abused its discretion in not ordering such a plan. See, e.g., La.Code Crim.P. art. 841; La.Code Crim,P. art. 881.2.

Accordingly, we find no merit in the defendant’s final assignment of error.

DECREE

For the foregoing reasons, the sentence of the defendant, Blake Allen Shell, is affirmed.

AFFIRMED.

      . In pertinent part, La.R.S. 14:32(A)(1) provides that: "Negligent homicide is ... [t]he killing of a human being by criminal negligence.”

      . This latter misdemeanor conviction and sentence are beyond the scope of review of this appeal.

      . United States Constitution Amendment VIII provides that "[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

      .Louisiana Constitution Article I, § 20 guarantees that “[n]o law shall subject any person to cruel, excessive, or unusual punishment.”

      . Although the State filed a bill of information for the offense of operating a motor vehicle with no seat belt, a violation of La.R.S. 32:295.1, it dismissed that misdemeanor charge at the plea hearing.

        . As set forth above, the trial court erroneously remarked that La.R.S. 14:32 previously allowed for a sentence of up to fifteen years. Yet, La.R.S. 14:32 was amended by 1980 La. Acts No. 708, § 1 to provide for a sentence of up to five years. See also State v. Masino, 216 La. 352, 355, 43 So.2d 685, 686 (1949) (wherein the supreme court noted that "Article 32 of the Louisiana Criminal Code relating to ‘negligent homicide’ under which the prosecution was brought became effective as a law of the State on July 29, 1942 Justice McCaleb, dissenting, explained that the penalty for negligent homicide was imprisonment for not more than five years.)

      . Louisiana Code of Criminal Procedure Article 5 provides that: "The word 'shall' is mandatory, and the word ‘may’ is permissive.”

      . Louisiana Code of Criminal Procedure Article 841(A) provides that:
      An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

      .Louisiana Code of Criminal Procedure Article 881.2, entitled "Review of sentence^]” provides that: "The defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence.”


author: DAVID E. CHATELAIN , JUDGE

text:
    DUNCAN OIL, INC. v. STATE OF LOUISIANA MINERAL AND ENERGY BOARD, et al.
    16-988
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 04/19/2017
    Rehearing Denied May 17, 2017
    Charles Schrumpf, Schrumpf Law Office, APLC, 3801 Maplewood Drive, Sul-phur, LA 70663, (337) 625-9077, COUNSEL FOR DEFENDANT/APPELLEE: Anthony Joseph Palermo, Sr.
    Van C. Seneca, Van C. Seneca, L.L.C., 405 West College Street, Lake Charles, LA 70602-3747, (337) 439-1233, COUNSEL FOR DEFENDANT/APPELLEE: Clark Real Estate Enterprises, Inc.
    Jeff Landry, Attorney General for the State of Louisiana, Harry J. Vorhoff, Ryan M. Seidemann, Michael S. Heier, Assistant Attorneys General, Civil Division, 1885 North Third Street, P. 0. Box 94005, Baton Rouge, LA 70804-9005, (225) 326-6085, COUNSEL FOR DEFENDANT/APPELLANT: The Louisiana State Mineral and Energy Board
    Jamie S. Manuel, Mayhall F. Blaize, Mayhall & Blaize, LLC, 5800 One Perkins, Suite 2B, Baton Rouge, LA 70808, (225) 810-4998, COUNSEL FOR PLAINTIFF/APPELLEE: Duncan Oil, Inc.
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, Judges.
   DAVID E. CHATELAIN , JUDGE

Bin this concursus proceeding, the Louisiana State Mineral and Energy Board (State) appeals the trial court’s grant of summary judgment, declaring ownership of the disputed property in favor of the defendants, Anthony Joseph Palermo, Sr. (Palermo) and Clark Real Estate Enterprises, Inc. (Clark). Additionally, the State appeals the trial court’s denial of its motion for summary judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The issue in this concursus proceeding arises out of a title dispute with respect to certain immovable property, comprising twenty acres, located in Calcasieu Parish, Louisiana, more particularly described as the West Half of the Northwest Quarter of the Northeast Quarter of Section 17, Township 9 South, Range 10 West (disputed property). A portion of the disputed property is located within the geographical boundaries of the HBY RC SUA and its Unit Tract 2, which Duncan Oil, Inc. (Duncan) operates. Duncan executed oil, gas, and mineral leases with Palermo, Clark, and the State covering their interest, whatever it may be, in the disputed property.

On November 7, 2014, Duncan filed its Petition for Concursus in which it sought to deposit into the registry of the court “the revenue from production attributable to Unit Tract 2 and to allow the defendants to assert their claims thereto and as to the ownership of the Subject Property in this proceeding.” Made defendants were Palermo, Clark, and the State.

In its petition, Duncan explained the State’s claim to ownership arises from an adjudication to the State for non-payment of 1924 taxes pursuant to a tax sale | ?dated July 27, 1925. The adjudication specifically referenced the property subject to the tax sale as “W2 of NW4 NE of NW NE /and S2 of E2 of S2 NW4 of NE containing 25 acres Lots 1 to 1030 Inc in the same Section Township & Range.” The petition also set forth Clark’s and Palermo’s claims of ownership through a redemption dated November 1, 1983, which described the redeemed property as “S ½ of E ½ of S ½ NW ]4 NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range.” Based on this flawed description, the petition noted that the State has taken the position that the redemption failed to redeem the disputed property, and therefore, the property has “neither been redeemed nor cancelled nor sold out of the State’s possession.” Palermo and Clark dispute that position and additionally claim title to the property through a tax sale recorded on May 15, 1984, in which the property described as the ‘W/2 NW NE 17.9.10” was sold to Billy W. Clark, their ancestor in title.

Thereafter, the State moved for summary judgment, arguing there is no genuine issue of fact that certain acreages adjudicated to the State in 1925 were never validly redeemed, and thus, the disputed property is still owned by the State. In response, Palermo, joined by Clark, filed a cross-motion for summary judgment, arguing ownership of the disputed property was transferred to Clark through the 1983 redemption and the subsequent 1984 tax sale.

On August 4, 2016, the trial court held its hearing on the cross-motions for summary judgment. In support of its motion, the State submitted the affidavit of Spencer Robinson, the Administrator of the Louisiana State Land Office, certifying the copies of the following records:

(1) An excerpt from “Sales of Property to the State for Taxes 1924” containing “Process Verbal No. 22” in which the relevant property is named and described as:
hW2 NW4 NE of NW NE /and S2 of E2 of S2 NW4 NE containing 25 acre Lots 1 to 1030 Inc in same Section Township & Range
and setting forth the total amount of taxes due at $24.09;
(2) Request for and Certification of Redemption regarding the disputed property describing the property sought for redemption as:
S ½ of E ½ of S ½ NW ⅜ NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range
and dated October 26, 1983, and November 1,1983, respectively;
(3) Statement of Tax Due for Redemption amounting to $10.15 on the property described as:
S ½ of E ½ of S ⅛ NW ⅝ NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range[;]
(4) Emails between Cindy Wright, Cal-casieu Parish Deputy Tax Collector, and Faith LeRoy, State Public Lands Analyst, from August 2013, opining that, based on the parish records, the property was still adjudicated and never redeemed;
(5) Quit Claim Deed between Clark and Frank E. Poe, transferring title to “NW ⅜ of NE ⅜ 17-9-10” from Poe to Clark on March 9, 1984.

Palermo and Clark, in support of their motion, submitted various records tracing the description, ownership, and tax records of the disputed property from 1921 to 2014:

(1) Deed from Calcasieu Sulphur & Oil Co. to Whitford Mineral Co. Inc. describing the property as
W ½ of N.W. ⅜ of N.E. ⅛ and the South ½ of the East ⅛ of the S. ½ of N.W. ⅜ of Section 17 Township 9 Range 10 West Mer Calcasieu Parish Louisiana containing twenty five acres. And all lots in Subdivision “B” in the same section and township from lot Number one to Lot Number one thousand and thirty, both inclusive, in accordance with the plan on file in the office of the Register of conveyances in the Parish of Calcasieu.
and recorded on November 7,1921;
U(2) Tax Assessments of the property from 1921 to 1924 at which time the property description was recorded as
W ½ NW NE of NW NE and S ½ of E ⅜ of S ½ NW NE *********** contg 25 acres. Lots 1 to 1030 inc in same Sec. Tp. and Range, Woodland 25 acres”;
(3) Copy of Process Verbal No. 22;
(4) Tax Sale of 1922 assessing taxes and cost against Calcasieu Sulphur & Oil Co., “less 25 acres sold to Whitford Mineral Co. Inc.”;
(5) Copies of the request for redemption, statement of taxes due, and the certification of redemption along with a letter from a Calcasieu Parish deputy tax collector to the Department of Natural Resources, Division of State Lands, requesting all the necessary papers to complete the redemption of the property described as:
W ¾ NW NE of NW NE & S ½ of E ½ of S ½ NW NE—CONTG. 25 ACS LOTS 1 TO 1030 INC. IN SAME SEC. TOWNSHIP & RANGE
(6) Copies of recorded transfers of interest in the disputed property from Clark to third parties, then back to Clark, and ultimately to Palermo (recorded on December 22, 2003);
(7) Three-Year Tax Certificate (2012-2014) certifying payment of taxes on property by Clark and/or Palermo and detailing payment by Clark every year back to 1985;
(8) Copies of survey and wetland delineation prepared for Palermo dated March 7, 2004;
(9) Letter by Faith LeRoy dated November 21, 2013, explaining the State’s position as to ownership of the property;
(10) Affidavits from Palermo (attesting to ownership and activities associated therewith) and Kenneth Carl Johnson (attesting to possession of the property described as “Northwest Quarter of the Northeast Quarter, Section 17, Township 9 South, Range 10 West, Calcasieu Parish, Louisiana” by Clark and/or Palermo from 1983 to present);
(11) Tax Sale Deed issued to Clark for the “E ½ NW NE 17.9.10” recorded on May 15, 1984, documenting taxes paid in the amount of $45.89;
(12) Tax Sale Deed issued to Clark for the “W/2 NW NE 17.9.10” recorded on May 15, 1984, documenting taxes paid in the amount of $91.18;
|fi(13) Whitford Plat of Tract B, depicting the subdivision of the acreage into lots 1 through 1030.

On the record, the trial court found:

The Court, believe it or not, has reviewed the documents that have been submitted prior to today’s hearing. This is, obviously, a unique situation. Certainly, in my time on the bench and my private practice before coming to the bench, I’ve never had a situation quite like this. Interesting. ■
Based on what I’ve heard there is enough information here to lead me to believe this is not a matter that’s appropriate for Summary Judgment.
The Motion for Summary Judgment by the State is denied at this time. I think there is enough information that needs to be reviewed that would keep me from granting the Motion for Summary Judgment, as it relates to the State.
Now, as to the matter of the reciprocal motion by Mr. Palermo as it relates to what this Court feels the documents present as to the purported ownership as it relates to Mr. Palermo. Quite honestly, I’m fairly certain that at least from my reading of the documents and the information that has been furnished thus far, I believe that Mr. Palermo owns the entire 25 acres of the property.
If there was a mistake made on behalf of the description or the Redemption or the claiming of taxes, I think it was made by the State.
I’m granting the Motion for Summary Judgment in favor of Palermo at this time.

On September 7, 2016, the trial court signed a judgment that provided, in pertinent part:

IT IS ORDERED, ADJUDGED, AND DECREED, that the motion for summary judgment filed by THE LOUISIANA MINERAL BOARD be denied;
IT IS ORDERED, ADJUDGED AND DECREED, that there be judgment herein- in favor of ANTHONY JOSEPH PALERMO, SR., and CLARK REAL ESTATE ENTERPRISES, INC., and against THE LOUISIANA STATE MINERAL BOARD, declaring that Motion for Summary Judgment filed by ANTHONY JOSEPH PALERMO, SR. and joined in by CLARK REAL ESTATE ENTERPRISES, INC. is granted in their favor and that the ownership of the following described property is confirmed to them, to wit:
| nWest Half of the Northwest Quarter of the Northeast Quarter (W/2 of NW/4 of NE/4) of Section 17, Township 9 South, Range 10 West, Calcasieu Parish, Louisiana.

The State timely filed its appeal in this court.

DISCUSSION

The State assigns two errors to the trial court’s judgment. First, it contends that, based on the law and evidence, the trial court erred in declaring Palermo and Clark owners of the disputed acreage. The State further contends the trial court erred in denying its motion for summary judgment, asserting its ownership of the disputed property.

An appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Just like the trial court, we must determine whether “the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

Procedurally, our first task is the determination of whether the moving party’s motion, memorandum, and supporting documents -are sufficient to resolve all material factual issues. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. “To satisfy this burden, the mover must meet a strict standard- of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact.” Indus. Sand & Abrasives, Inc. v. Louisville and Nashville R.R. Co., 427 So.2d 1152, 1154 (La.1983).

In making this determination, the court must closely scrutinize the mover’s supporting documents, while treating those submitted by the adverse party 17indulgently. Smith, 639 So.2d 730. Moreover, because the moving party bears the burden of proving the lack of a material issue of fact, we must view all inferences drawn from the underlying facts in a light most favorable to the adverse party. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991).

If the court determines that the moving party has met this onerous burden, the burden then shifts to “the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(D)(1). As our courts have long held, “summary judgment may be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court.” Smith, 639 So.2d at 752.

At the outset, we note that this matter must be resolved in accordance with the procedural rule set forth in La. Code Civ.P. art. 3654, which provides:

When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

Although Palermo and Clark indisputably are in possession of the disputed property, both they and the State seek to make out their title thereto. Accordingly, this court must render judgment in favor of the party who proves a better title to |Rthe real interest in dispute. Valvoline Oil Co. v. Krauss, 335 So.2d 64 (La.App. 3 Cir. 1976). In the present case, the State der-aigns its title claim to the 1925 adjudication, whereas Palermo and Clark deraign their claims to the 1983 redemption as well as the 1984 tax deed. Considering the documentary and other evidence presented, judgment must be rendered in favor of the State if we find that the adjudication transferred ownership of the disputed property to the State and that Clark did not redeem the disputed property in the 1983 redemption. Vice versa, if we find Clark successfully redeemed the disputed property in 1983 or acquired ownership of same in the 1984 tax deed, we must render summary judgment in favor of Palermo and Clark.

According to the State, the facts supporting its claim are “plain, undisputed, and determinative of ownership.” The crux of the State’s position rests on the boundaries of the property set forth in both the redemption request and redemption certificate as the “S ½ of E ½ of S ½ NW ⅜ NE containing 25 acres Lots 1 to 1030 inc in same Section Township & Range.” The State asserts it is “settled jurisprudence that a sale by given bounds conveys only the property within such bounds, and that acreage designations appended to such specific descriptions do not enlarge or restrict the grant described by the specific bounds.” Blevins v. Mfrs. Record Publ’g Co., 235 La. 708, 785, 105 So.2d 392, 419 (1958).

Moreover, the State claims the 1983 payment of taxes and costs supports the conclusion that the property description, not the referenced acreage, dictates the object of the conveyance. At the time of the 1925 tax sale, Whitford Mineral Co. owed a total of $24.09: $8.94 in state taxes; $5.54 for interest, advertising, and the costs of the adjudication; and $14.61 in parish taxes, including interest. In November 1983, the person seeking redemption also owed an additional 20% of the total owed at the time of the alleged redemption. See La.Const. art. 10, § 11 |fl(1921). Yet, Clark paid only $0.20 of the state taxes and only $1.07 of the costs of adjudication, substantially less than the costs and fees requisite for redemption of the disputed property. Therefore, because Palermo and Clark cannot establish any genuine issue of material fact regarding these public documents or that the existing facts support their claim to the property, the State concludes that summary judgment should have been granted in favor of the State and that this court should overturn the trial court’s decision.

In opposition and as the basis of their motion for summary judgment, Palermo and Clark assert that they have been in possession of and been assessed with taxes on the forty-acre quarter section of land known as the Northwest Quarter of the Northeast Quarter of Section 17, Township 9 Range 10 West, in Calcasieu Parish, Louisiana, since 1988 via the redemption as well as the two subsequent tax sales. They further assert that when a portion of a property description is misleading, our jurisprudence requires the description must be read with and controlled by other parts, which explain it. Landry v. McWilliams, 135 La. 655, 65 So. 875 (1914). Moreover, Palermo and Clark contend that the jurisprudence of this state is well settled and established that “if a description of the property intended to be assessed or sold is so indefinite and uncertain as to be defective, resort may be had to evidence outside the assessment roll or tax deed to identify the property, provided such evidence establishes unmistakably the identity of the property.” Knapp v. Jefferson-Plaquemines Drainage Dist., 224 La. 105, 118, 68 So.2d 774, 778 (1953).

11flFrom the redemption herein, it is evident that there is an internal inconsistency in the property description the State included in Process Verbal No. 22, as well as in the redemption deed: in the former, the inclusion of an additional “of NW NE” at the end of “W2 NW4 NE” erroneously reduces that first designation to 1.25 acres; and the latter’s description of the “S ½ of E ½ of S ⅜ NW ½” does not nearly contain twenty-five acres. To the contrary, Palermo and Clark observe that the only twenty-five-acre portion inclusive of lots 1 to 1030—reference language common to both the Process Verbal and the redemption deed—is the disputed property. And because Clark paid the amounts the State calculated as due, they claim the evidence shows he redeemed this property. Consequently, Palermo and Clark opine that they are the owners and are, therefore, entitled to judgment declaring their ownership as a matter of law. After reviewing the evidence and applying the jurisprudential tenets necessary to untangle a tax redemption deed that contains a property description that is incomplete and does not intelligently describe the redeemed property, we agree with the assertions of Palermo and Clark.

The issue herein is the ownership of the disputed property—the W ⅜ of the NW 54 of the NE ½ of Section 17, Township 9, Range 10 in Calcasieu Parish. From the records submitted into evidence, the property is first referenced by deed dated November 7, 1921, in which Calcasieu Sul-phur & Oil Co. sold to Whitford Mineral Co. the whole forty acres Clark and Palermo now claim to possess, including the 20 acres subject to this dispute:

W ⅜ of N.W. ⅜ of N.E. 54 and the South ½ of the East ½ of the S. ⅜ of N.W. ⅜ of Section 17 Township 9 Range 10 West Mer Calcasieu Parish Louisiana containing twenty five acres. And all lots in Subdivision “B” in the same section and township from lot Number one to Lot Number one thousand and thirty, both inclusive, in accordance with the plan on file in the office of the Register of conveyances in the Parish of Calcasieu.

In When Whitford Mineral Co. failed to pay taxes, the Calcasieu Parish Tax Collector attempted to conduct a tax sale in 1925. With no bidders, the sheriff adjudicated the property to the State. Significant herein, the Process Verbal described the property subject to the adjudication as “W2 NW4 NE of NW NE /and S2 of E2 of S2 NW4 NE containing 25 acre Lots 1 to 1030 inc in same Section Township & Range.” These boundaries, however, do not depict the twenty-five acres sold to Whitford Mineral Co. by Calcasieu Sulphur & Oil Co. Rather, the “W2 NW4 NE of NW NE” only includes around 1.25 acres.

Then in 1983, Clark attempted to redeem the adjudicated property. However, the only mention of the western half was made in the letter of redemption sent to the Louisiana Department of Natural Resources and was merely a copy of the erroneous description contained in the 1924 tax rolls, ie„ “W ½ NW NE of NW NE & S ½ of E ½ of S ½ NW NE— CONTG. 25 ACS LOTS 1 TO 1030 INC. IN SAME SEC. TOWNSHIP & RANGE.” As the State noted, the Redemption Request and Certificate fail to even mention the western half at issue herein, although all three documents related to the redemption clearly reference the twenty-five acres and lots 1 through 1030.

Because both the State and Palermo/Clark have moved for summary judgment on the issue of ownership, we must closely scrutinize all of the documents submitted. And under close scrutiny, all we can definitively say is that, while the documents purport to transfer twenty-five acres, none of the adjudication or redemption documents explicitly refer to the property at issue herein. Moreover, while the State argues boundaries control, the boundaries in the adjudication |12documents only represent 6.25 acres. Seen in this light, the resolution of the transfer of ownership by adjudication as well as by redemption poses an issue that might very well not be appropriate for summary judgment as the trial court found in denying the State’s motion.

However, the remaining documents, particularly the two tax deeds from 1984, do expressly transfer to Clark both the “W/2 NW NE 17.9.10” and “E ½ NW NE 17.9.10,” representing the original forty acres Calcasieu Sulphur & Oil Co. owned and later sold in part to Whit-ford Mineral Co. As owners in part of these forty acres, it logically follows Palermo and Clark own the disputed property, which comprises twenty of those acres. Based on these two tax deeds, reasonable minds must inevitably conclude that Palermo and Clark are the owners of the property and, therefore, are entitled to judgment on the facts before the court. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Palermo and Clark, as well as its denial of the State’s motion for summary judgment.

DECREE

For the reasons discussed above, we affirm the trial court’s judgment.

AFFIRMED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Duncan executed its lease with Palermo on November 19, 2013, its lease with Clark on January 15, 2014, and finally its lease with the State on February 26, 2014.

      . Right below the description is a notation: “Redeemed # 53013 ll/l/83[.]” Only the "S2 of E2 of S2 NW4 NE containing 25 acre Lots 1 to 1030 Inc in same Section Township & Range” is circled.

      . At the time of the adjudication, La.Const. art. 10, § 11. provided, in pertinent part: "the property sold shall be redeemable at any time during one year from date of recordation of the tax sale, by paying the price given, including costs and twenty percent thereon.”

      . See also Hubbs v. Canova, 401 So.2d 962 (La. 1981); Webb v. State, Dep’t of Nat. Res., 50,492 (La.App. 2 Cir. 4/13/16), 194 So.3d 41, writ denied sub nom. Webb v. State of La. Dep’t of Nat. Res., 16-891 (La. 9/6/16), 204 So.3d 999.

      , As Palermo and Clark explained:
      Because the Northeast Quarter of the section consists of 160 acres, the Northwest Quarter of the Northeast Quarter equals 40 acres. The Northwest Quarter of that forty acres equals 10 acres. The Northeast Quarter of that ten acres equals 2.5 acres. The west half of the 2.5 acres is 1.25 acres.

      . Interestingly in its reply brief, the State described the 1984 tax sale as a nullity, reasoning: "Because the disputed property was never redeemed, the State still owned the disputed property, and the 1984 tax sale was and remains an absolute nullity.” This position, however, presupposes the State acquired the disputed property in the adjudication, which, as the trial court found, is an issue not ripe for summary judgment. Moreover, "[t]ax sales are presumed valid and the party attacking [the] sale has [the] burden of proving its alleged invalidity.” Hodges Ward Purrington Properties v. Lee, 601 So.2d 358 (La.App. 5 Cir. 1992), citing Meares v. Pioneer Production Corp., 382 So.2d 1009 (La.App. 3 Cir.), writ denied, 392 So.2d 667 (La. 1980).


author: JENKINS, J.,

text:
    STEWART TITLE OF LOUISIANA v. CHEVRON, U.S.A., INC., Huntington Beach Company, Keiichi-Mar Investing and LTA, Inc.
    No. 2014-CA-0744.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2015.

      Michael R. Phillips, Louis M. Grossman, Brittany Buckley Salup, Kean Miller, LLP, New Orleans, LA, for Stewart Title of Louisiana.
    Matthew Louis Pepper, Rico Advenida, Wonderly and Pepper, The Woodlands, TX, for Chevron, U.S.A., Inc., Huntington Beach Company, Keiichi-Mar Investing and LTA, Inc.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge SANDRA CABRINA JENKINS).
   bln this concursus proceeding, the appellant, LTA, Inc. (LTA), appeals the trial court’s judgment in favor of Chevron USA, Inc. and Huntington Beach Company (collectively Chevron), entitling Chevron to money deposited into the registry of the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 14, 2010, Chevron entered into a purchase and sale agreement (PSA) with Keiichi-Mar Investing, LLC (Keiichi-Mar) for the building and associated parking structure (hereinafter referenced collectively as “the building”) located at the corner of O’Keefe Avenue and Gravier Street. Keiichi-Mar signed the PSA on June 9, 2010. The contract was accepted by Chevron on June 14, 2010. Under the terms of the PSA, Keiichi-Mar was required to issue a $300,000.00 deposit after Chevron accepted and signed the agreement. On June |⅞18, 2010, Stewart Title deposited a $300,000.00 check issued by LTA, which was not a party to the PSA, in its commercial escrow account.

A dispute over the deposit arose between Chevron and LTA, and eventually the deal fell apart. As a result, Stewart Title deposited the money into the registry of-the court and initiated a concursus proceeding. The trial court subsequently granted Chevron’s motion for summary judgment finding that “the facts supported the conclusion that LTA intended its check to be used and considered as Keiichi-Mar’s deposit.” LTA appealed and this Court reversed finding that there was a genuine issue of material fact as to whether LTA intended the $300,000.00 check to be used as a deposit for Keiichi-Mar under the PSA. ' -

After a trial on remand, the court rendered a judgment in favor of Chevron and awarded it the $300,000.00 from the registry of the court. 'In its reasons for judgment, the trial court found that LTA deposited the check into Stewart Title’s escrow account, intending it to serve as the deposit under the PSA between Chevron and Keiichi-Mar; thus, Chevron was entitled to the deposit as liquidated damages under the PSA. This appeal follows.

STANDARD OF REVIEW

In reviewing a trial court’s findings of fact, appellate court’s employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id. “Where there are two ^permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. Moreover, when findings of fact are based on determinations regarding “credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id. See also Pelleteri v. Caspian Grp. Inc., 02-2141, 02-2142, pp. 6-7 (La.App. 4 Cir. 7/2/03), 851 So.2d 1230, 1235.

DISCUSSION

Although LTA raises various issues in its assignments of error, there is only one issue before the court: whether the trial court erred in concluding that “LTA, acting through Kenneth L[o]bell, deposited $300,00.00 of its own money into Stewart Title’s escrow account with the intent that it be tied to the PSA between Chevron U.S.A., Inc. and Keiichi-Mar Investing as the Initial Deposit.”

The facts in this case are largely undisputed. On June 10, 2010, during the course of negotiating the PSA, after Keii-chi-Mar had signed but before Chevron had accepted, LTA delivered a $300,000.00 check to Ms. Sharall Grissen, Chief Operating Officer of Stewart Title, the company chosen to close the sale. The check referenced “Chevron Bldg” on the memorandum line. Ms. Grissen then emailed representatives for Keiichi-Mar and informed them that she received the earnest money “as stated in the contract.” Ms. Grissen testified during her deposition that Kenneth Lobell instructed her to send the email to Keiichi-Mar.

As of June 17, 2010, Keiichi-Mar had not made the required $300,000.00 deposit; therefore, Chevron threatened to cancel the agreement unless the deposit required under the contract was made before noon the following day. | ¿Stewart Title deposited LTA’s $300,000.00 check into its commercial escrow account, without designation, the following day. At that time, a communication was sent to Edward Ru-benstein, Senior Real Estate Project Manager for Chevron, from Joyce DuSaules, who presented him with proof that the “earnest money” was received. Ms. Du-Saules, an employee at Stewart Title, sent the email at Ms. Grissen’s direction. She also stated that that when sending the email, she was notifying Chevron that the deposit under the PSA had been received, because it was her assumption that the money served as the deposit under the contract. Ms. Grissen testified in her deposition that Mr. Lobell instructed her to deposit the check and to communicate with Chevron regarding the receiving, the deposit. As a result of Stewart Title’s communications, the parties, Chevron and Kei-ichi-Mar, continued toward closing the sale.

On June 28, 2010, the day before any deposit under the PSA would become nonrefundable, LTA requested that Stewart Title return the funds it had previously deposited into its commercial escrow account. Stewart Title promptly issued a refund, and notified Chevron of the refund in writing.

On Juiy 1, 2010, after learning that LTA received a refund, Keiichi-Mar sent a notice to Chevron explaining that the contract was still in full force and effect, and Stewart Title had wrongfully released the deposit money. Keiichi-Mar also stated that it would ensure additional funds were placed into escrow with another title company. In response, counsel for Chevron immediately emailed Stewart Title, notifying it that the agreement was still valid and that the deposit money was erroneously released. Consequently, Stewart Title placed a stop payment on the refund check on or around July 1, 2010. On July 19, 2010, one day after Keiichi-Mar was supposed to have closed the sale, Chevron | ^rescinded the agreement due to Keiichi-Mar’s breach. One day later, Stewart Title initiated the concursus proceedings.

In terms of the intent issue, Mr. Lobell testified that when delivering the check, he gave explicit verbal instructions to Ms. Sharall Grissen not to attach the money to the PSA. He stated that his intent in depositing the check with Stewart Title was to use it to purchase the building if Keiichi-Mar defaulted under their agreement with Chevron. However, Mr. Lobell also admitted that he was not opposed to fronting the deposit for Keiichi-Mar, but only if he received an assignment under the PSA. The fact that LTA never received an assignment is undisputed.

Despite the testimony that the LTA check was not meant to be assigned to the PSA, the totality of the evidence at trial largely supports the opposite conclusion. Mr. Rubenstein confirmed that Mr. Lobell agreed to supply the deposit money for Keiichi-Mar if LTA received a letter it deemed necessary to protect its interest. He stated that when he was informed by Stewart Title that the deposit was received, he assumed that Mr. Lobell obtained the documentation necessary to move forward with providing the deposit for Keiichi-Mar,

The documentary evidence along with the timing of the deposit and refund are indicative of LTA’s intent to connect its deposit with the PSA, regardless of the lack of such a designation, Kenneth Lo-bell and Stewart Title’s conduct are also consistent with this position. Particularly telling is Stewart Title’s communication to Chevron that it received the deposit, especially considering that Ms. Grissen | (¡indicated that she communicated information regarding the deposit at Mr. Lobell’s direction. Likewise, the fact that Stewart Title stopped payment on the refund check and initiated a concursus proceeding the day after the PSA was cancelled indicates that the money was associated with the PSA. Given that the evidence strongly supports the trial court’s factual decision, we find that the trial court’s ruling was appropriate.

LTA suggests that the trial court recognized a mandatary relationship between itself and Keiichi-Mar; however, this inference is unsupported by the record. In its reasons for judgment, the trial court observed that Mr. Lobell interacted with Chevron as an intermediary on behalf of Keiichi-Mar. The term “intermediary” is defined as “a mediator or go-between; a third party negotiator.” Black’s Law Dictionary 890 (9th ed.2009). Thus, the trial court’s observation is not a legal finding that an agency or mandatary relationship existed. Since there is no evidence that such a relationship existed between LTA and Keiichi-Mar, the laws of mandate are inapplicable despite LTA’s claims to the contrary.

As set forth by Chevron, this case is governed by contract laws. In particular, La. C.C. art. 1855 states, in pertinent part: “Performance [of an obligation] may be rendered by a third person, even against the will of the obligee, unless the obligor or the obligee has an interest in performance only by the obligor.” Though the parties to the PSA were Chevron and Keii-chi-Mar, there was no restriction that would bar LTA from supplying the deposit money on behalf of Keiichi-Mar. However, this in no way affected the terms of the PSA. Therefore, Chevron was entitled to the deposit based on Keiichi-Mar’s default under the contract. Accordingly, the judgment is affirmed.

AFFIRMED.

JENKINS, J.,

dissents and assigns reasons.

hi disagree with the majority’s affirmation in this case. The record indicates that LTA was not bound by the underlying PSA as Chevron and Keiichi Mar were the only two parties to the agreement. This is not a case of two permissible views of the evidence, but rather a failure to prove that LTA’s deposited money was to be allocated to the purchase of the Building on Keiichi Mar’s behalf. Therefore, I respectfully dissent and would reverse the judgment below.

      . The building and parking structure had separate municipal addresses. The building was located at 218 O’Keefe Avenue, and the parking structure 935 Gravier Street.

      . The deposit would become non-refundable after 5:00 p.m. on the final day of the inspection period, June 29, 2010.

      . Ms. Grissen and Ms, DuSaules both confirmed in their depositions that this was Mr, Lobell's instruction. However, Ms, Grissen also indicated that the check was held for one week and later deposited upon Mr, Lobell's instruction,