author: GUIDRY, J.

text:
    Leonard WILLIAMS, individually and on behalf of the Estate of Virginia Williams v. OUR LADY OF the LAKE HOSPITAL, INC. d/b/a Our Lady of the Lake Regional Medical Center, Dr. Antonio D. Edwards, and Louisiana Medical Mutual Insurance Company.
    No. 2009 CA 0267.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.
    Rehearing Denied Oct. 28, 2009.

      Joshua M. Palmintier, Baton Rouge, LA, for Plaintiff/Appellant Leonard Williams, individually and on behalf of the estate of Virginia Williams.
    Douglas K. Williams, Baton Rouge, LA, for Defendant/Appellee Our Lady of the Lake Hospital, Inc., d/b/a Our Lady of the Lake Regional Medical Center.
    Deborah J. Juneau, Vance A. Gibbs, Baton Rouge, LA, for Defendants/Appellees Dr. Antonio Edwards and Louisiana Medical Mutual Insurance Company.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|?In this medical malpractice action, plaintiff, Leonard Williams, individually and on behalf of the estate of Virginia Williams, appeals from a judgment of the trial court granting summary judgment in favor of defendants, Dr. Antonio Edwards, Louisiana Medical Mutual Insurance Company (LAMMICO), and Our Lady of the Lake Regional Medical Center (OLOL), and dismissing his claims against these defendants with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 12, 2004, Virginia Williams was admitted to OLOL under the care of Dr. Edwards. Upon admission, Dr. Edwards ordered that support stockings be applied to both of Mrs. Williams’ legs. Thereafter, Mrs. Williams developed large wounds on her upper legs.

Following Mrs. Williams’ death from unrelated causes, Mr. Williams, individually and on behalf of Virginia Williams’ estate, filed a petition for damages naming OLOL, Dr: Edwards, and LAMMICO as defendants. Defendants subsequently filed motions for summary judgment asserting that Mr. Williams was unable to sustain his burden of proving that defendants breached the standard of care owed to Mrs. Williams because Mr. Williams had offered no expert testimony as to the applicable standard of care and whether the standard of care was breached. Mr. Williams responded by filing an opposition to the motions for summary judgment with an attached affidavit from Scott Sondes, M.D.

At the hearing on the motions for summary judgment, the defendants sought to strike and exclude Dr. Sondes’ affidavit as untimely and also sought to strike and exclude the affidavit on the basis that Dr. Sondes is not qualified to offer an expert opinion as to the standard of care required of Dr. Edwards. After hearing argument, the trial court ruled that the affidavit was timely, but ultimately determined that it was inadmissible because it did not address the issues brought |sout in the petition and was insufficient to sustain Mr. Williams’ burden of proof. Accordingly, the trial court signed a judgment granting the defendants’ motions for summary judgment and dismissed Mr. Williams’ claims against them with prejudice. Mr. Williams now appeals from this judgment.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, 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. C.C.P. art. 966(B); McNeil v. Miller, 08-1973, p. 3 (La.App. 1st Cir.3/27/09), 10 So.3d 327, 329.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to provide evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Because it is the applicable substantive law that determines materiality, whether a particular fact in |4dispute is “material” for summary judgment purposes can only be seen in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

In a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiffs injuries. See La. R.S. 9:2794(A). Likewise, in a medical malpractice action against a hospital, the plaintiff must prove that the hospital caused the injury when it breached its duty. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 661 (La.1989). Expert testimony is generally required to establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffher v. Correa, 94-0924, 94-0963, 94-0992, pp. 9-10 (La.10/17/94), 643 So.2d 1228, 1233-1234.

In support of their motion for summary judgment, defendants submitted Mr. Williams’ petition for damages, Mrs. Williams’ medical records, and Mr. Williams’ responses to requests for admissions. The medical records indicated that on July 14, 2004, Dr. Edwards ordered that support hose and pumps be placed on Mrs. Williams’ legs. On July 16, 2004, the records indicate that a blister was noted on Mrs. Williams’ left inner thigh, and on July 17, 2004, an ulcer was noted on her left thigh. Further, Mr. Williams’ petition alleged that OLOL and Dr. Edwards left support stockings on Mrs. Williams’ legs unattended for an extended period of time causing large deep wounds in her upper legs. Accordingly, in their requests for admissions, defendants asked Mr. Williams to identify the name of any medical expert who may have rendered an opinion regarding the applicability of the standard of care and that OLOL and Dr. Edwards deviated from that standard of | scare. However, in his responses, Mr. Williams failed to provide defendants with any of the requested information regarding expert testimony.

It is uncontested that expert medical testimony is necessary to prove Mr. Williams’ claims. The petition shows that the medical malpractice alleged by Mr. Williams is not of the type that is so egregious that malpractice would be obvious to a lay person. Pfiffner, 94-0924 at pp. 9-10, 643 So.2d at 1233-1234. Accordingly, because the defendants pointed out that Mr. Williams had not produced any information regarding expert testimony necessary to establish the applicable standard of care and whether that standard of care was breached, the burden of proof shifted to Mr. Williams to provide evidence that he would be able to satisfy his evidentiary burden of proof at trial. See Samaha v. Rau, 07-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 884; see also La. C.C.P. art. 966(C)(2).

In opposing the defendants’ motion for summary judgment, Mr. Williams submitted the affidavit of Scott Sondes, M.D. Dr. Sondes is a physician licensed in Louisiana and specializing in physical medicine and rehabilitation/internal medicine and wound care. However, following a hearing on the defendants’ motion to strike and exclude Dr. Sondes’ affidavit, the trial court ruled that the affidavit was inadmissible.

The admission of expert testimony is governed by La. C.E. art. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A trial court is accorded broad discretion in determining whether expert opinion evidence should be held admissible and its decision will not be overturned absent an abuse of discretion. See MSOF Corporation v. Exxon Corporation, 04-0988, p. 11 (La.App. 1st Cir.12/22/05), 934 So.2d 708, 717, writ denied, 06-1669 (La.10/6/06), 938 So.2d 78.

| (¡Louisiana Revised Statute 9:2794(A) provides that in a medical malpractice action, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.

In his affidavit, Dr. Sondes is identified as a physician licensed in Louisiana who specializes in physical medicine and rehabilitation/internal medicine and wound care; practices in inpatient and outpatient wound care and long term acute care hospitals; and admits on his own internal medicine service, as well as acts as a consultant to other internists in the fields of physiatry and wound care. Dr. Sondes stated that based on his experience as a physician specializing in wound care and physiatry and internal medicine, and based on the records and facts of this case, it was his medical opinion that Dr. Edwards fell below the standard of care: (1) by failing to properly assess Mrs. Williams physically and diagnose multiple pressure ulcers to her sacral and ischial areas; (2) by failing to address nutritional deficits and hypoal-buminemia issues that contributed to the development of Mrs. Williams’ wounds; (3) by following the recommendations of the wound ostomy nurses and prescribing wet-to-dry dressings as an outpatient treatment plan for the wounds described; and (4) by failing to properly treat these wounds with techniques and treatment options more appropriate with today’s standard of care such as sharp debridement with surgical instruments and application of other treatment devices such as a negative pressure wound vacuum.

Further, with regard to OLOL, Dr. Sondes stated that it was his medical opinion that OLOL, through its nurses, fell below the standard of care in not accurately charting the development of these wounds and treatment plans used to 17address these wounds, nor did they properly address other issues involved in the care of Mrs. Williams and the prevention of these wounds.

In determining that Dr. Sondes’ affidavit was inadmissible, the trial court specified that (1) Dr. Sondes addresses areas of the body different from those alleged in the petition as the source of the malpractice and (2) there is no indication when he addressees a proper standard of care that he is addressing a proper standard of care for these two defendants or a standard of care associated with his expertise in wound care and long term acute care hospitals.

The admissibility of expert testimony under La. C.E. article 702 turns upon whether the evidence would assist the trier of fact to understand the evidence or to determine a fact in issue. Cheairs v. State, Department of Transportation and Development, 03-0680, p. 8 (La.12/3/03), 861 So.2d 536, 541-542. Based on the allegations contained in Mr. Williams’ petition, the issue before the court is whether the large wounds on Mrs. Williams’ upper legs were caused by breaches in the applicable standard of care by Dr. Edwards and OLOL. However, Dr. Sondes’ affidavit refers to Mrs. Williams’ wounds as being in the sacral and ischial areas. These areas, as defined, are located in the pelvis. Therefore, whether Dr. Edwards and OLOL breached any standard of care with regard to injuries to Mrs. Williams’ pelvis would not assist the trier of fact in determining the issue before the court.

Further, while the information in Dr. Sondes’ affidavit indicates that he is knowledgeable about wound care and treatment and practice in wound care and long term acute care hospitals, it is unclear from the face of the affidavit if he is offering an opinion as to the standard of care to be exercised by a family practice |sphysician, such as Dr. Edwards, and a general hospital, such as OLOL, or if he is referring to the standard of care to be exercised by a physician and hospital practicing in his particular areas of specialty. Therefore, based on our review of the record before us, we cannot say that the trial court abused its discretion in ruling that Dr. Sondes’ affidavit was inadmissible.

Finally, because we find that the trial court did not abuse its discretion in excluding Dr. Sondes’ affidavit from evidence at the hearing on the motion for summary judgment, and Mr. Williams produced no other evidence to establish the applicable standard of care and that the standard of care was breached, we likewise find that Mr. Williams failed to establish that he would be able to satisfy his evidentiary burden of proof at trial, and the trial court was correct in granting summary judgment in favor of Dr. Edwards and OLOL.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Dr. Edwards and OLOL and dismissing Mr. Williams’ claims against them with prejudice. All costs of this appeal are to be borne by the plaintiff, Leonard Williams, individually and on behalf of the estate of Virginia Williams.

AFFIRMED.

PETTIGREW, J., Concurs.

      . The sacrum is defined as the back of the pelvis and the ischium is defined as the lower part of the hipbone. Ida G. Dox, et al., Attorney's Illustrated Medical Dictionary S2, 134 (1997).

      . It is undisputed that Dr. Edwards practices in the area of family medicine. Further, there is no evidence in the record to suggest that OLOL is a specialty hospital like those to which Dr. Sondes admits patients.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    STATE of Louisiana v. Lezric Cardell MORRIS.
    No. 2009 KA 0422.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.
    Rehearing Denied Nov. 23, 2009.

      Scott M. Perrilloux, District Attorney, Patricia Parker, Assistant District Attorney, Amite, Louisiana, for Appellee State of Louisiana.
    Katherine M. Franks, Abita Springs, Louisiana, for Defendant/Appellant Lezric Cardell Morris.
    Before: DOWNING, GAIDRY, and McClendon, jj.

      . For clarity and convenience, we reference certain witnesses by their first names because of common surnames among some of those witnesses.

   GAIDRY, J.

|?iThe defendant, Lezric Cardell Morris, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1. He pleaded not guilty. Following a jury trial, he was found guilty as charged. He filed motions for a new trial, a postverdict judgment of acquittal, and in arrest of judgment, but his motions were denied. Defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, designating the following two assignments of error:

1. The jury did not act as a reasonable one in rejecting a manslaughter verdict. A nineteen[-]year[-]old’s “heat of passion” and subjective belief in his right to self defense against “crowding” should have been considered as mitigating elements to a murder charge.
2. Counsel was ineffective in failing to request a jury charge on the “imperfect right of self-defense” and the definition of “confrontation” and in failing to object to the incomplete and erroneous charges relating to justifiable homicide. The charges, as given by the trial judge and not objected to by counsel[,] were incomplete and erroneous statements of the law that led to an irrational verdict which should be set aside. Due [p]ro-cess considerations mandate that the incomplete jury charge be subject to review.
For the following reasons, we affirm the conviction and sentence.

FACTS

The victim, Cory Turner, died after being shot seven times on the afternoon of August 29, 2007. He was nineteen years old and was killed two days before his twin sons’ first birthday. The events culminating in his death began during the early morning hours approximately two or three days earlier.

The victim, his cousin Ezekiel “Buckwheat” Turner, defendant, and defendant’s mother, Sheryl Morris, all lived in a close-knit neighborhood around Keith Street in Walker, Louisiana. It was common for residents to walk about the neighborhood in the afternoon.

| sApproximately two days before the victim’s killing, at approximately 3:00 a.m., defendant’s mother, Sheryl, and some friends had returned to the neighborhood from a Hammond nightclub and were being noisy. Ezekiel told Sheryl and some of her friends to be quiet and to leave in their automobile.

The next day, a verbal argument ensued between Ezekiel and Sheryl after Sheryl made an obscene gesture (“flipped the bird”) at Ezekiel as she passed by as a passenger in a car. Defendant happened to be walking down the street, observed the confrontation, and began punching Ezekiel and “stomp[ing] him.” Ezekiel was recovering from surgery and weighed approximately 130 pounds at the time. According to Qunetta Stewart, a cousin of Ezekiel and the victim, the victim approached and confronted defendant, telling him, “[D]on’t hit my cousin like that because he’s sick,” and then punched defendant in the face, knocking him to the ground. After the victim struck defendant, Sheryl assisted defendant into the car and they drove away. The police arrived at the scene, but Ezekiel did not file a complaint against defendant. Ezekiel explained at trial that he did not want to get defendant into trouble because he understood that defendant was angry and that his motivation was to defend his mother from verbal abuse. He also indicated that he called the victim the next day and told him, “Just let all of that slide[,]” and the victim expressed his agreement.

According to the victim’s mother, Sonya Latrice Turner, after the incident during which he punched defendant, the victim stayed at her house and did not go out that night. The victim spent the next day in Baton Rouge making music with his cousin Keefer, a rapper, and Keefer’s rap partner. On the day of the killing, Sonya picked up the victim and Keefer at Keefer’s home |4in Baton Rouge and returned to Walker. She dropped them off so that the victim could visit another friend, Keon Grayer, for an hour. Keon was then on Brown Street, walking home, so Sonya dropped the victim and Keefer off on Brown Street, and last saw the victim alive as he walked with Keefer and Keon toward Keon’s house. After Sonya had driven only a short distance away, Keon called her on her cellular telephone and told her that the victim had been shot. Sonya found the victim with multiple gunshot wounds, lying on the ground near Antoine “Muppy” Grayer’s house trailer.

Antoine testified at trial that both defendant and the victim were his cousins. Antoine’s house trailer was situated across the street from the house trailer of defendant’s grandmother, but also faced defendant’s trailer. On the day of the shooting, Antoine observed defendant standing outside his trailer talking on a cellular telephone. He then saw defendant look down the street and heard him say to the other person on the telephone, “Hold on. I gotta handle some business.” Defendant then entered his trailer. Thereafter, the victim, Keon Grayer, Albert Watson, and another person named “Timothy” came walking down the street. The group entered Antoine’s yard, and the victim invited Antoine to a birthday party for his twin sons. The victim and his friends then left Antoine’s property and began walking toward Keon’s home.

Antoine testified that defendant exited his trailer as the victim and his friends were walking in front of a school next to Antoine’s property. Defendant “beckon[ed]” the victim and his friends to approach him. The victim’s friends “grabbled]” him in an effort to discourage him from approaching defendant. The victim and defendant then “squared up like they were [going to] fight,” and defendant produced a gun from under the front of his shirt and shot the victim. The victim tried to run away, but was only able |fito crawl into Antoine’s yard as defendant continued to shoot him. Antoine recalled that defendant fired more than five times and only fired at the victim. Defendant then ran back to his trailer. Antoine did not see anything in the victim’s hands during the encounter. According to Antoine, the victim never went onto defendant’s property and never spoke to defendant before defendant beckoned him.

Austin Shane Grayer, Antoine’s brother, also witnessed the shooting. Austin recalled that the victim and Keon were walking down the street while defendant was in his yard conversing on a cellular telephone. The victim spoke to Austin, but then the victim and Keon went back up the street to help Austin’s uncle carry something into his home. After the victim and Keon left to assist Austin’s uncle, defendant stated on his telephone, “I’m gonna call you back[,]” and walked into his trailer. The victim and Keon walked back down the street after helping Austin’s uncle and stopped in front of Austin’s trailer. According to Austin, defendant walked over to the victim “like he was about to hit him.” Austin thought the victim and defendant were about to fight because it appeared that “[the victim] wasn’t gonna back down.” Austin heard the victim state, “What’s up?,” and “Well, what you want to do?” to defendant. According to Austin, defendant then pulled out a gun and started shooting as the victim “was about like to swing on [the defendant].”

The victim tried to run into Austin’s yard, but tripped over a flower bed. Defendant tried to stand over the victim as he continued shooting him, but the victim kept trying to crawl away. Austin recalled approximately nine gunshots.

Keon Grayer testified that he was a friend of both the victim and defendant. He first saw the victim on the day of the shooting at Jarvis Parker’s house after Sonya returned from Baton Rouge and dropped the victim off. | f,Parker was the victim’s cousin. Keon recalled that the victim, Parker, and Keon then walked down to Antoine’s house, and the victim informed Antoine about the birthday party for the victim’s sons. The victim and Keon then continued walking towards Keon’s home. Parker went back up the street to meet his stepfather, Albert Watson, and Timothy Harris. The victim and Keon also walked back up the street after noticing that Parker was going to meet Watson and Harris. Eventually, Parker, Watson, Harris, the victim, and Keon made their way on the street to the vicinity of Antoine’s house. Defendant then walked out of his yard and approached the victim. Keon explained, “It looked like they were gonna fight. And [defendant] came out with the gun and shot him.” According to Keon, defendant began shooting after the victim began to run away and tripped. Defendant then fired his gun at the victim as he tried to crawl away. Defendant fired until the weapon’s “clip” was empty.

Albert Watson testified that he was married to the victim’s cousin. According to Watson, he, the victim, and Timothy Harris had passed defendant’s trailer when the defendant came out, approached the victim, and stated, “You punched me in my eye.” The victim replied, “Well, what’s up?,” and assumed a fighting stance. Defendant then began shooting the victim. The victim was hit by the first shot and, in Watson’s words, “was like cripple and crawlin’.”

Ariel Mack testified that she was a cousin of the victim and had previously been defendant’s girlfriend. On the day that the victim punched the defendant, Mack went home with her aunt, Ella Turner, accompanied by the victim. Later, defendant called Mack on her cellular telephone. Defendant told her that he wanted to speak with the victim, but Mack refused at first to put the victim on the telephone. Defendant insisted that he wanted to “meet up with [the victim].” The victim then spoke to defendant on the telephone, but |7did not leave the home. Defendant called Mack approximately three more times that evening, wanting to know if the victim was “gonna meet with him.” Defendant told Mack that he “felt played.” Asked to explain the meaning of that expression, Mack stated, “I guess he felt like he lost the fight, so he wanted to retaliate.”

Defendant also telephoned Mack after shooting the victim. Mack testified that she had learned of the victim’s death and was crying while on the telephone, and defendant then said he was sorry and had not intended to hurt her. Mack pleaded for defendant to turn himself in, and he said he would do so. Mack asked defendant for his location three times, but he would not reveal that information to her.

Yolanda Collier testified that she was defendant’s aunt. On the day of the shooting, she telephoned her cousin, Lesha Collier, and told her about the shooting. Yolanda also spoke to defendant on the telephone. She informed him that the victim had died. Defendant replied, “Oh, man, he did?” Yolanda then told defendant, “You throw your life away.” Defendant replied, “I know.” Yolanda asked defendant why he had done it, to which he replied, “I felt played.”

With regard to the initial incident between defendant and the victim, defendant’s mother, Sheryl Morris, claimed that the victim ran out from nearby woods and hit the defendant “with something.” She conceded, however, that she never actually observed the victim with an object in his hand. Sheryl claimed that the subsequent shooting of the victim was preceded by telephone calls from the victim to defendant threatening to “crowd” him (attack him with multiple assailants) and, shortly before the killing, by her daughter alerting the defendant that, “They [the victim and friends] cornin’ around here to pick.” She claimed that she attempted to follow defendant as | Rhe rushed out of the trailer, but that by the time she dressed herself and exited, the shooting was over. She also claimed that defendant “never had a gun.”

On rebuttal, Keefer Johnson explained that there were no woods in the area of the initial incident between defendant and the victim and that, on the day of the shooting, there had been no plan to fight defendant and no telephone calls made by the victim or Keefer to defendant.

Defendant was apprehended in Baton Rouge, approximately eighteen hours after the shooting. The gun he used to kill the victim was never recovered. The state and the defense stipulated that five shell casings recovered at the scene were all fired by the same 9 millimeter weapon.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, citing State v. Lombard, 486 So.2d 106 (La.1986), defendant argues that he was entitled to a manslaughter verdict because he established by a preponderance of the evidence that he acted in a “sudden passion” or “heat of blood.” He also argues that the jury was irrational to return a murder verdict, rather than a manslaughter verdict, because the victim was the original aggressor and he (defendant) could have rationally, even if incorrectly, believed that he had a right to defend himself against what he perceived as a gang attack.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part that, “assuming every fact to be proved that the evidence tends to prove,” in order to convict, every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, 00-0895 (La.11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

SECOND DEGREE MURDER

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal 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.” La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson, 99-1945, p. 3 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La.6/15/01), 793 So.2d 1235. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. Id.

In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court set forth the following precepts for appellate review of circumstantial evidence in connection with review of the sufficiency of the evidence:

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.
The jury is the ultimate factfinder of “whether a defendant proved his condition and whether the state negated that defense.” The reviewing court “must not impinge on the jury’s factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process.”

(Citations omitted).

Further, the Mitchell Court cautioned:

“The actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing are preserved ... by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.” The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Rather, the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt. The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Finally, the “appellate court is constitutionally precluded from acting as a ‘thirteenth juror’ in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact.”

Mitchell, 99-3342 at p. 8, 772 So.2d at 83 (citations omitted).

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306, pp. 1-2 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

JnSELF-DEFENSE AND AGGRESSOR DOCTRINE

When a defendant charged with a homicide claims self-defense, the State has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

Louisiana Revised Statutes 14:20(A), in pertinent part, provides:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
However, La. R.S. 14:21 qualifies the foregoing by providing:
A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

The relevant inquiry on appeal is whether or not, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. Rosiere, 488 So.2d at 968-69; see also State v. Wilson, 613 So.2d 234, 238 (La.App. 1st Cir.1992), writ denied, 93-0533 (La.3/25/94), 635 So.2d 238.

MANSLAUGHTER

Manslaughter is a homicide which would be either first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31 A(l). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the | ^homicide is committed without them. The state does not bear the burden of proving the absence of these mitigatory factors. A defendant who establishes by a preponderance of the evidence that he acted in a “sudden passion” or “heat of blood” is entitled to a manslaughter verdict. In reviewing the claim, the court must determine if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigatory factors were not established by a preponderance of the evidence. State v. Huls, 95-0541, pp. 26-27 (La.App. 1st Cir.5/29/96), 676 So.2d 160, 177, writ denied, 96-1734 (La.1/6/97), 685 So.2d 126, reconsideration denied, 96-1734 (La.3/21/97), 691 So.2d 71.

STATE v. LOMBARD

Lombard, 486 So.2d at 107, involved an appeal from a conviction for the second degree murder of the victim, John St. Pierre. The defendant, the victim, and the victim’s girlfriend were spectators at a football game. The defendant harassed the girlfriend as she walked past him on her way to and from the bathroom. The girlfriend disclosed the harassment to the victim, and the victim threatened to kill the defendant if he said anything else to her. The defendant immediately retorted that he would say something to the girlfriend. The victim warned the defendant that if anything remained to be settled, he would be back later. The defendant told a few bystanders that if the victim returned, there would not be much of a fight because the defendant had a knife, which he would use. The victim and his girlfriend passed the defendant without incident as they left the game, but following an argument, the victim challenged the defendant to fight him in the parking lot. The defendant refused the invitation, making an obscene gesture. The victim responded with the statement “[T]hat’s your ass,” handed his glasses to his girlfriend and moved toward the defendant. The victim threw the first | isblow, grabbed the defendant and hurled him against a railing, and wrapped his right arm around the defendant’s neck in a stranglehold while twisting the defendant’s left arm behind his back. The defendant used his right hand to remove his knife from his pocket, flick off the sheath, and stab the victim twice. Lombard, 486 So.2d at 107-08.

The court in Lombard found that the jury erred in finding the defendant guilty of second degree murder, rather than manslaughter, because a preponderance of the evidence clearly showed that the defendant committed the offense in a sudden passion or heat of blood caused by a provocation which would have deprived an average person of his self-control and cool reflection, and no rational trier of fact could have concluded otherwise. Lombard, 486 So.2d at 111.

We conclude that Lombard is factually distinguishable from the instant case. See State v. Clark, 93-2090, pp. 4-5 (La.App. 4th Cir.5/17/94), 637 So.2d 1140, 1142-43 (declining to reverse based on Lombard where no evidence was presented that the victim was carrying a gun or was actively threatening the defendant when the fatal shot was fired).

After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant’s identity as the perpetrator of that offense against the victim, Cory Turner. The verdict rendered against the defendant demonstrates that the jury accepted the testimony offered against the defendant and rejected the testimony offered in his favor. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385, p. 9 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 2000-0829 (La.11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332, p. 32 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. In reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La.11/29/06), 946 So.2d 654, 662.

Further, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the evidence presented by the State established that the defendant was the aggressor in the conflict and, thus, was not entitled to claim self-defense. Moreover, even if it could be found that the defendant was not the aggressor, any rational trier of fact could find, beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant did not act in self-defense. Testimony at trial indicated that following the initial incident with the victim, defendant “felt played,” made numerous attempts to “meet up with” or confront the victim, and ultimately armed himself, confronted the unarmed victim, and shot him to death as he tried to crawl away. Defendant then fled the scene and disposed of the weapon. Defendant’s flight from the scene after the incident was also inconsistent with a theory of justifiable homicide. See State v. Wallace, 612 So.2d 183, 191 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1253 (La.1993).

Additionally, the verdict rendered against defendant shows that the jury rejected the defense theory that the victim, rather than defendant, was the aggressor in this case. When a case involves circumstantial evidence and the jury reasonably rejects the hypotheses of innocence presented by the defense, 115those hypotheses fall, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). No such hypothesis exists in the instant case.

A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could also have found that the mitigatory factors required to support manslaughter were not established by a preponderance of the evidence.

This assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second assignment of error, defendant argues that his defense counsel was ineffective in failing to request that the jury be charged on the imperfect right of self-defense and La. R.S. 14:20(A)(2); and was ineffective in failing to object, under La. R.S. 14:20(D), to the charge: “And some factors you should consider in determining whether the defendant had a reasonable belief that the killing was necessary are: (1) the possibility of avoiding the necessity of taking a human life by retreat[.]”

Initially, we note that defense counsel did not object to the proposed jury charges. Normally, such failure to object would preclude consideration on appeal of arguments challenging the giving or failure to give a jury charge. See La.C.Cr.P. arts. 801(C) and 841(A). However, in order to address the claim of ineffective assistance of counsel, it is appropriate to address the arguments concerning the jury charges. See State v. Cooper, 05-2070, pp. 8-9 (La.App. 1st Cir.5/5/06), 935 So.2d 194, 199, writ denied, 06-1314 (La.11/22/06), 942 So.2d 554.

A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on L appeal. State v. Miller, 99-0192, p. 24 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for his counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

Louisiana Code of Criminal Procedure article 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is 117included in the general charge or in another special charge to be given.

IMPERFECT RIGHT OF SELF-DEFENSE

The theory of the imperfect right of self-defense acknowledges that there are homicides which fall short of self-defense, but holds that those homicides should not constitute murder, where the defendant’s honest but erroneous belief of imminent harm is less than reasonable. Louisiana law does not provide for any mitigating circumstance resembling the theory of “imperfect self-defense.” See State v. Johnson, 98-1407, pp. 7-8 (La.App 1st Cir. 4/1/99), 734 So.2d 800, 805-06, writ denied, 99-1386 (La.10/1/99), 748 So.2d 439.

Defense counsel did not perform deficiently in failing to request that the jury be charged on the imperfect right of self-defense. The court would not have given such a charge because it would not be the law applicable to the case and would not be wholly correct and pertinent. See La.C.Cr.P. arts. 802(1) and 807.

Defense counsel also did not perform deficiently in failing to request that the jury be charged on the provisions of La. R.S. 14:20(A)(2). The court charged the jury on La. R.S. 14:20(A)(1), which was consistent with the defense theory that the killing was “committed in self-defense by one who reasonably believe[d] that he [was] in imminent danger of losing his life or receiving great bodily harm and that the killing [was] necessary to save himself from that danger.”

| iSLouisiana Revised Statutes 14:20(D) was added to the statute as part of a revision deleting language providing that “[t]he homicide shall be justifiable even though the person does not retreat from the encounter” from La. R.S. 14:20(A)(S) (justifiable homicide committed by a person in a dwelling, place of business, or motor vehicle during burglary or robbery); deleting language providing that “[t]he homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter” from La. R.S. 14:20(A)(4)(a) (justifiable homicide committed by a person in a dwelling, place of business, or motor vehicle to prevent entry or to compel the intruder to leave); and adding La. R.S. 14:20(B), (C), and (D). See Acts 2006, No. 141,

Louisiana Revised Statutes 14:20(B), (C), and (D) provide:

B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D.No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

| ^Louisiana Revised Statutes 14:20(A) sets forth situations when a homicide may be justifiable depending on the reasonable belief of the person committing the homicide, the danger presented to that person or others, and the need for the use of deadly force. While La. R.S. 14:20(C) provides that there is “no duty to retreat before using deadly force,” that statement is limited by the language “as provided for in this Seetion[.]” Louisiana Revised Statutes 14:20(D) prohibits consideration of the possibility of retreat by the fact finder, but in doing so, tracks the language of La. R.S. 14:20(A)(2) (“When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm ...”) and La. R.S. 14:20(A)(4)(a) (“When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry ... ”). In order for La. R.S. 14:20(A)(2) to apply, “[t]he circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.” Louisiana Revised Statutes 14:20(A)(4)(a) only applies when “the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.”

Moreover, even assuming for the sake of argument that defense counsel performed deficiently in failing to object to the court’s reference to retreat in its charge in light of La. R.S. 14:20(D), defendant would still have to satisfy the second prong of his claim of ineffective assistance of counsel. A conviction will not be overturned on the grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. An erroneous instruction is subject |2nto harmless error review or, in the case of an ineffective assistance of counsel claim, an analysis of whether the defendant was prejudiced by the error. The question becomes whether it appears beyond a reasonable doubt that the erroneous instruction did not contribute to the jury’s finding of guilt or whether the error is unimportant in relation to everything else the jury considered, as revealed in the record. Stated another way, the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the jury charge error. Cooper, 05-2070 at p. 9, 935 So.2d at 199-200.

Even assuming the trial court erred in referencing retreat in its jury charge, considering the evidence presented herein and the trial court’s instructions as a whole, the verdict was surely unattributable to any such error. There was no evidence even remotely suggesting that defendant shot the victim while defendant was inside a dwelling, place of business, or a motor vehicle, and the victim had as much right to be in the area where he was killed as did the defendant. It was also undisputed that the victim attempted to flee from defendant as soon as defendant produced the handgun, and that defendant repeatedly shot the victim as he tried to crawl away and escape. Thus, we find that the retreat portion of the jury charge in question, even if erroneous, certainly did not prejudice the defendant.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

McCLENDON, J., concurs. I agree with the result reached by the majority.

      . Louisiana Revised Statutes 14:20(A)(2) provides that a homicide is justifiable "[wjhen committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention.” To invoke this provision, "[t]he circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.”


author: McDonald, J.

text:
    Earl WEAVER v. James LeBLANC, Secretary, Department of Correction & Risk Review Panel, State of Louisiana.
    No. 2009 CA 0244.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2009.

      Earl Weaver, Angola, Louisiana, In Proper Person Plaintiff/Appellant.
    Terri L. Cannon, Baton Rouge, Louisiana, for Defendant/Appellee-Louisiana Department Of Public Safety & Corrections.
    Before PARRO, KUHN, and McDonald, jj.
   McDonald, J.

_JjThe petitioner in this case, Earl Weaver, appeals a judgment of the Nineteenth Judicial District Court, dismissing his petition for mandamus, with prejudice, for failure to state a cause of action, which was noticed by the court on its own motion. For the following reasons, the judgment is affirmed.

The basis of Weaver’s complaint is that he has been denied a hearing by the Louisiana Risk Review Panel authorized by La. R.S. 15:308, which provides:

A. (1) The legislature hereby declares that the provisions of Act No. 403 of the 2001 Regular Session of the Legislature provided for more lenient penalty provisions for certain enumerated crimes and that these penalty provisions were to be applied prospectively.
(2) The legislature hereby further declares that Act No. 45 of the 2002 First Extraordinary Session of the Legislature revised errors in penalty provisions for certain statutes which were amended by Act No. 403 of the 2001 Regular Session of the Legislature and that these revisions were to be applied retroactively to June 15, 2001, and applied to any crime committed subject to such revised penalties on and after such date.
B. In the interest of fairness of sentencing, the legislature hereby further declares that the more lenient penalty provisions provided for in Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced according to the following provisions: R.S. 14:56.2(D), 62.1(B) and (C), 69.1(B)(2), 70.1(B), 82(D), 91.7(C), 92.2(B), 92.3(C), 106(G)(2)(a) and (3), 106.1(C)(2), 119(D), 119.1(D), 122.1(D), 123(C)(1) and (2), 352, and 402.1(B), R.S. 15:529.1(A)(l)(b)(ii) and (c)(ii), 1303(B), and 1304(B), R.S. 27:262(C), (D), and (E), 309(C), and 375(C), R.S. 40:966(B), (C)(1), (D), (E), (P) and (G), 967(B)(1), (2), (3), and (4)(a) and (b), and (F)(1), (2), and (3), 979(A), 981, 981.1, 981.2(B) and (C), and 981.3(A)(1) and (E), and Code of Criminal Procedure Art. 893(A) prior to June 15, 2001, provided that such application ameliorates the person’s circumstances.
C. Such persons shall be entitled to apply to the Louisiana Risk Review Panel pursuant to R.S. 15:574.22.

| oWeaver claims that he is in the class of persons that the law was enacted to protect. We recognize that Weaver was sentenced to life imprisonment as a habitual offender for a violation of the Louisiana Controlled Dangerous Substances Law, and that the penalty for the crime is now more lenient. As such, he is in the class of persons to which La. R.S. 15:308 and 15:574.22, Louisiana Risk Review Panel, were intended to apply. However, neither the vehicle he chose, petition for mandamus, nor the relief he requests, an order that the Risk Review Panel review his case, are legally available. Before going into reasons for this conclusion, some history of the Risk Review Panel system and the changes in the sentencing law are necessary to understand the nature of this mandamus request. We adopt the following from the Commissioner’s report adopted by the district court in this matter:

In 2001, the Louisiana Legislature passed a single piece of legislation establishing the Risk Review Panel and also reducing numerous previously mandated criminal sentences. This was accomplished by Act 403, which became effective on June 15, 2001. Act 403 amended the penalty provisions of numerous criminal statutes, including the penalty provisions of R.S. 15:529.1 — the habitual offender statute — -for third and fourth felony offenders (such as the Petitioner in this case), wherein life sentences were mandated. At the same time, that Act also enacted La. Rev.Stat. 15:574.22, which created a Risk Review Panel and listed as its primary purpose to “evaluate the risk of danger” certain convicted individuals would pose to society if released from confinement and, in its discretion make recommendations to the Parole and Pardon Boards.
The Panel’s duty is limited in part to evaluating inmates who have not been convicted of a violent crime. If a Panel determines that a person will not present a risk of danger to society if released from confinement, the Panel may make a non-binding recommendation that the person be considered for clemency by the Board of Pardons or considered for parole by the Board of Parole.
|4(This Court has no judicial oversight over the pre-release decisions of the Parole Board or the Pardon Board).
Subsequently, in 2006, the legislature enacted R.S. 15:308 which made the previous sentence reductions in Acts 403 and 45 of 2001 and 2002 respectively retroactively applicable to those inmates sentenced prior to 2001 — which includes the Petitioner. It also required that anyone whose sentence would have been ameliorated by the amended sentences could apply to the Risk Review Panel in accordance with R.S. 15:574.22. The Court notes that the statute also requires the Panel to consider any eligible inmates, such as the Petitioner herein, for possible recommended leniency.

Initially, many inmates, lawyers, and some courts thought the procedure for ameliorative relief was available from the sentencing court, as well as the Risk Review Panel. However, in State v. Dick, 06-2223, 06-2226 (La.1/26/07), 951 So.2d 124, 133 the supreme court reviewed the statute, affirmed this court’s decision, and found that the power to reduce punishment from a greater to a lesser sentence belongs to the executive branch alone. Offenders seeking retroactive application of the ameliorative penalty provisions must seek this relief in the executive branch; they are entitled to apply to the Louisiana Risk Review Panel, which is in the executive branch. “In enacting this statute, the legislature is suggesting to the executive branch that it should consider these ameliorative sentencing provisions when reviewing the offenders’ applications to the Louisiana Risk Review Panel, the Board of Pardons and/or the Board of Parole.” State v. Dick, 951 So.2d at 133.

Weaver applied to the Risk Review Panel, and his application was denied based on “extensive criminal history.” He asserts that all persons sentenced under La. R.S. 15:529.1, the habitual offender law, have an “extensive criminal history,” and to deny his application for that reason is clearly contrary to the legislative intent in passing the act. Weaver offers | ¡¡additional arguments alleging violations of equal protection of the law and conflicts of law. After careful review of his submission to this court, it is not clear whether the relief he is seeking is a “hearing” by the Risk Review Panel or an order requiring the Risk Review Panel to make a recommendation of leniency to the Pardons or Parole Board. However, as both of those acts involve discretionary authority of the Panel, we are unable to reverse the district court and grant Weaver’s petition for mandamus.

Mandamus is a summary proceeding, which is defined as a writ that may, among other things, be used to direct a public officer to perform ministerial duties required by law. Kyle v. La. Public Service Commission, 03-0584 (La.App. 1 Cir. 4/2/04), 878 So.2d 650, 654. It is an extraordinary remedy, which must be used by the court sparingly. It never issues in doubtful cases, but only when a public official refuses to perform a duty the law clearly states he must perform. Id.

The Risk Review Panel has reviewed Weaver’s application. This is the only duty that the law clearly states the Panel must perform. There is no legal authority for us to compel any other action by them. Therefore, the judgment dismissing the petition for mandamus with prejudice at petitioner’s costs is affirmed. Costs are assessed to Earl Weaver.

AFFIRMED.

      . In Section 6 of the Act, it originally specified that the provisions "shall only have prospective effect."

      . See La. Rev.Stat. 15:574.22 G. While R.S. 15:574.22 prohibits the Risk Review Panel’s ability to review inmates with a certain criminal histories, the Petitioner herein does not appear to have any prohibiting crimes and thus, I refer to his restriction only for clarity and completeness.

        .See La. Rev.Stat. 15:574.22 I.

      . Sinclair v. Stalder, 867 So.2d 743 (La.App. 1 Cir. 10/17/03); R.S. 15:574.11.


author: KUHN, J.

text:
    Party PARADISE v. AL COPELAND INVESTMENTS, INC.
    No. 2009 CA 0315.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2009.

      Philip Bohrer, Keith D. Jones, Baton Rouge, Louisiana, for Plaintiff-Appellee, Debra Maddox d/b/a Party Paradise.
    Charles A. Schutte, Jr., Baton Rouge, Louisiana, for Defendant-Appellant, A1 Copeland Investments, Inc.
    Before PARRO, KUHN, and McDonald, j.
   KUHN, J.

Defendant-appellant, Al Copeland Investments, Inc. (ACI), appeals the trial court’s judgment certifying a class in this suit filed by plaintiff-appellee, Debra Maddox doing business as Party Paradise (Party Paradise), based on allegations of violations of the Telephone Consumer Protection Act. Finding plaintiff failed to objectively define the class, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2004, Party Paradise filed a petition against ACI on its own behalf and for certification as the representative of a class consisting of all recipients of unsolicited telefacsimile (fax) messages and/or advertisements within the states of Louisiana and Mississippi, which were transmitted and/or initiated by or on behalf of ACI between the dates of September 24, 2000, through the present, in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. § 227 et seq. Expressly excepted from the alleged class were “any recipients from whom [ACI] has received the prior express invitation or permission to receive [fax] advertisements.”

Party Paradise moved to have the class certified and also filed a motion for sanctions for willful spoliation of evidence, seeking to have an adverse evidentiary presumption imposed. ACI filed various exceptions. After a hearing on September 10, 2007, the trial court issued “FINDINGS OF FACT AND CONCLUSIONS OF LAW,” in which it designated “Display South” as the class representative and stated that the class consisted of:

[a]ll recipients of unsolicited [fax] messages and/or advertisements within the states of Louisiana and Mississippi which were transmitted and/or initiated by or on behalf of [ACI] between the dates of September 1, 2002 and April 1, 2004, excluding any recipients from |swhom [ACI] received prior express invitation or permission to receive [fax] advertisements.

A hearing on ACI’s exceptions was subsequently held on January 14, 2008. The trial court issued an order on May 30, 2008, sustaining in part and overruling in part ACI’s objections of improper cumulation of claims and improper joinder. The trial court’s order stated:

With regard to plaintiffs claim to certify an action which joins claims for receipt of faxes sent in 2002 and 2004, the exceptions are granted. With regard to plaintiffs claim to certify an action which joins claims for receipt of faxes sent to both Louisiana and Mississippi residents, the exceptions are denied. Plaintiff is entitled to seek certification of a class comprised only of recipients of faxes in 2004 that are residents of Louisiana and Mississippi^]

On that same day, the trial court issued “AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW,” which narrowed the class in conformity with the May 30, 2008 order and designated Debra Maddox on behalf of Party Paradise as the class representative. A judgment was signed on June 3, 2008, which designated the class as:

[a]ll recipients of unsolicited [fax] messages and/or advertisements within the states of Louisiana and Mississippi which were transmitted by and/or initiated by or on behalf of [ACI] between the dates of January 1, 2004 and April 1, 2004, for claims under the TCPA.

ACI timely appealed.

14APPLICABLE LAW

The TCPA makes it a violation of federal law to use any telephone facsimile machine, computer, or other device to send an “unsolicited advertisement” to a telephone facsimile machine. See 47 U.S.C.A. § 227(b)(1)(C). An “unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” 47 U.S.C.A. § 227(a)(5). Private citizens whose rights under the TCPA have been violated may sue to enjoin future transmissions, recover the greater of actual monetary damages or $500 in damages for each such fax, or obtain injunctive relief plus damages. See 47 U.S.C.A. § 227(b)(3). For willful or knowing violations of the TCPA, the court has discretion to increase the amount of the award to not more than three times the amount of damages specified above. See 47 U.S.C.A. § 227(b)(3); Display South, Inc. v. Graphics House Sports Promotions, Inc., 2007-0925 (La.App. 1st Cir.6/6/08), 992 So.2d 510, 515, writ not considered, 2008-1562 (La.10/10/08), 993 So.2d 1274.

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue, on behalf of a class of similarly situated persons, when the question is of common or general interest to persons so numerous as to make it impractical to bring them all before the court. The purpose of the procedure is to adjudicate and obtain res judi-cata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class. Id.; Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, 544.

Class actions in Louisiana are governed by La. C.C.P. arts. 591-597. Article 591 states in relevant part:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied....

The only issue to be considered by the trial court in ruling on certification, and by this court on review, is whether the case at bar is one in which the procedural device of a class action is appropriate. In determining the propriety of a class action, the court is not concerned with whether the plaintiff has stated a cause of action or the likelihood that it ultimately will prevail on the merits. A trial court’s decision to certify a class is a two-step process. Therefore, appellate review of such decisions also follows a two-step analysis. The trial court must first determine whether a factual basis exists for certifying the matter as a class action. These factual findings are reviewed on appeal pursuant to the manifest error | (¡standard of review. If the trial court finds that a factual basis exists for certifying the action, it then exercises its discretion in deciding whether to certify the class. This aspect of the judgment is reviewed pursuant to the abuse of discretion standard. Unless a trial court committed manifest error in its factual findings or abused its discretion in deciding that class certification is appropriate, we must affirm the trial court’s determination. Display South, Inc., 992 So.2d at 516.

DISCUSSION

On appeal, ACI challenges the trial court’s conclusion that plaintiff satisfied the prerequisites set forth in La. C.C.P. art. 591 A(5). On this element of class certification, the trial court’s May 30, 2008 factual findings state:

This class may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. Specifically, any recipients of any faxed advertisements transmitted by or on behalf of [ACI] between the dates of January 1, 2004 and April 1, 2004 is an objectively definable class of persons which satisfies the requirement of La. C.C.P. art. 591(A)(5).
Further, the identity of the class members is readily ascertainable through the [re-creation] of the lists of intended recipients. While [ACI] argues that this [re-creation] process does not adequately identify the putative class members, the Court is convinced, based on the evidence presented at the hearing, that [Party Paradise has] identified an accurate methodology by which the proposed class can be objectively defined. The [re-created] data lists, which identify each class member by name, address, phone number and fax number, adequately identify the putative class members, and the methodology utilized to generate these lists is an acceptable method for doing so.

ACI maintains that the trial court was manifestly erroneous in concluding that the methodology used by Party Paradise to identify the recipients of the faxes sent in 2004 was a method that objectively identified the putative class.

| determination Based on Evidence Admitted at the Hearing

The evidence admitted at the hearing to certify the class included the deposition testimony of Charlotte Womac, a corporate representative for ACI, who worked in the marketing department in 2004 as a field local marketing coordinator. She testified that the idea of utilizing faxes as a way to advertise was hers. After presenting the idea to her supervisor, Linda Carver Poiner, Womac was authorized to pursue the idea. Womac was ACI’s sole representative in the fax campaign. Through a website, cheapfaxes.com, Wo-mac eventually contacted Protus IP Solutions, Inc. (“Protus”). Her primary contact at Protus was Peter Komoto. With Protus, she discussed a campaign of faxing advertisements in conjunction with a Mar-di Gras Madness promotion ACI was undertaking, specifically targeting businesses within certain zip codes and different mile radii around ACI restaurants. Womac’s goal was to have advertisements faxed to any business that had a fax machine located within specified parameters around the Essen Lane restaurant in Baton Rouge. She identified an email she received from Komoto, dated March 16, 2004, which indicated “counts” of “5 mi = 3997” and “10 mi = 6315” for “Essen Lane” and “5 mi = 1802” and “10 mi = 4281” for “Ridge-wood Rd.” Womac explained that Ridge-wood Road was the location of an ACI restaurant in Mississippi and stated that she was uncertain whether a fax campaign had been undertaken for that restaurant. Wo-mac admitted that she was most likely the person who had drawn circles around the geographic indicators of “5 mi = 3997” for Essen Lane and “10 mi = 4281” for Ridgewood | sRoad on the hard copy of the email but did not explain what the encircling represented. Based on the email, Womac believed that ACI had probably engaged in a five-mile fax campaign in connection with the Essen Lane location.

Womac thought that she had not directed Protus to specific businesses to which advertisements should be faxed, recalling it was an essentially blind advertisement campaign. She testified that ACI had hired Protus to send one-page faxes, which specified ACI goods and services that were available to the recipient, and identified a single-page advertisement that had been created by an outsource company for ACI. Womac explained that the success of transmissions was relayed to her by email, with Protus advising her of the number of intended recipients as well as the number of actual recipients. ACI was billed only for the number of actual recipients. The email correspondence between Womac and Komoto would have been on a computer Womac used when she worked in ACI’s marketing department. Protus invoiced ACI for $143.00 on February 29, 2004; and $824.80 on March 31, 2004. Womac stated that she had no knowledge of the prohibitions contained in the TCPA at the time of the fax campaigns, and it was her impression that no one at ACI did either.

Introduced into evidence was the affidavit of Thomas Martin, the chief financial officer for and authorized representative of Protus. He stated that ACI engaged Pro-tus to send faxes to numbers provided by a third party provider. In February and March of 2004, according to Martin, 9,768 faxes were successfully transmitted over Protus’ network on behalf of ACI. ACI paid $143.00 for the fax ^transmissions and had an outstanding balance of $824.80 on the account. Martin stated:

At the time of the transmissions ... it was Protus’ established protocol and procedure not to be involved in the determination of recipient fax numbers to whom Protus’ customers sent faxes. Rather, Protus’ customers either provided the recipient fax numbers to Protus directly or acquired recipient fax numbers from third party list providers.

In his affidavit, Martin neither explained whether ACI had provided the recipient fax numbers directly to Protus nor identified a third party list provider who may have. The record contains no other testimonial evidence from Protus representatives.

In responses to interrogatories, ACI admitted that Womac had been advised by Komoto that faxes “totaling 3997 pages had been transmitted within a five-mile radius of the Restaurant” and faxes “totaling 6,315 pages had been transmitted within a ten-mile radius of the Restaurant.” It also admitted that Protus had sent invoices to ACI for 8,249 fax transmissions, which ACI had not paid. ACI stated that it did not have any information regarding the persons who may have received faxes transmitted by Protus or how Protus obtained the fax numbers for which Protus invoiced ACI. Additional responses to interrogatories include admissions by ACI that it engaged Protus to send faxes in March 2004 and that the request may have included businesses located in Baton Rouge who might patronize the Essen Lane restaurant; and businesses located in Jackson, Mississippi who might patronize the Ridgewood Road restaurant.

The deposition testimony of Brent Wad-man, corporate counsel for infoUSA, Inc. (infoUSA), who was designated as the company’s representative, was also | ^introduced into evidence at the class certification hearing. Wadman explained that infoUSA licenses its customers to use lists supplied from its database, which contain information gathered on businesses throughout the world. Generally and for purposes of this litigation, Wadman described how a customer provides selection criteria, and infoUSA supplies lists of businesses based on that criteria. He stated that the two other big suppliers of lists of the sort infoUSA creates are Dunn & Bradstreet and Axiom. According to Wadman, infoUSA lists were usually of a higher quality while the other two list providers usually had more businesses included in their lists.

Although Wadman was aware of a prior business relationship with Protus, his search of infoUSA’s records revealed no information identifying fax numbers it may have supplied to Protus to use in any fax campaign for ACI. A historical search for invoices for transactions with ACI, or with the Protus customer identification number assigned to ACI, revealed none. Wadman had no personal knowledge of any relationship between infoUSA and Protus before 2005. According to Wadman, any records of a relationship between infoUSA and Protus before 2005 would have been destroyed in accordance with company procedure, although he found records indicating that Protus was invoiced for the first time in 2000.

Wadman testified that it was possible that Protus had obtained the fax numbers it used in an early-2004 fax campaign on behalf of ACI from any source. He explained that other list provider companies may have provided different |nbusinesses (counts) in the respective lists in response to selection criteria based on geography, particularly when the customer further narrowed its selection criteria to fax numbers, noting that each company may have different methods of compiling their respective databases. Wadman testified that infoUSA does not guarantee either the accuracy or the legal compliance of any information it provides on a list.

Based on this evidence, Party Paradise cannot establish the actual identity of the putative class. Compare Display South, Inc., 992 So.2d at 520 (the record included a print out showing the fax numbers of the 461 recipients of defendant’s faxes as well as testimony that the identity of the recipients could be ascertained and verified) and Display South, Inc. v. Express Computer Supply, Inc., 06-1137 (La.App. 1st Cir.5/4/07), 961 So.2d 451, 457 (the testimony established defendant possessed a database of customers and prospective customers that indicated faxes were sent to over 700 potential class members).

Nevertheless, Party Paradise contends that a class should be certified suggesting that it proved a reasonable methodology for ascertaining the putative class. Thus, it asserts, the trial court’s conclusion that an objectively defined class exists is supported by the evidence and, therefore, not manifestly erroneous.

Relying on the Protus invoices and the affidavit of Martin, Party Paradise claims it established that 9,768 faxes were successfully transmitted. Next, Party 112Paradise maintains that the circled numbers on the email from Komoto to Womae establish the scope of the putative class, i.e., 3,997 faxes within a five-mile radius of the Essen Lane restaurant and 4,281 faxes within a ten-mile radius of the Ridgewood Road restaurant. We note two problems with this assumption: first, the record contains no evidence supporting a finding that the circled numbers on the email corresponded to the number of faxes successfully transmitted; and second, the sum of 3,997 and 4,281 is 8,278, which does not correspond to the invoiced transmissions or Martin’s affidavit stating that 9,768 had been successfully transmitted.

The next step in the methodology Party Paradise outlined was to utilize the geographic selection criteria (i.e., five-mile radius from the Essen Lane restaurant and ten-mile radius from the Ridgewood Road restaurant) and request of infoUSA a list of businesses and their fax numbers. Attached to Wadman’s deposition were lists of businesses, and their fax numbers, within the five and ten-mile radii of the two restaurants. Although Wadman could not authenticate the printed hard copies of the lists, he believed they corresponded to the lists that infoUSA had electronically produced for Party Paradise in conjunction with this litigation. Admitted into evidence was a letter dated August 28, 2006, from Party Paradise to ACI written after Wadman’s deposition stating:

The purpose of the [Wadman] deposition was to discuss the database search performed by [infoUSA] at our request. Specifically, prior to that deposition, we asked [infoUSA] to perform a search of its archive databases for all businesses with fax numbers within certain geographical radii from different ... addresses. It was represented to us, and subsequently to you at the deposition, that the lists provided by [infoUSA], and ultimately produced to you, represented the information as it existed in ... 2004 from their archive databases.
| UiAfter we returned ... a senior account executive ... of [infoUSA] ... advised that the previous search performed by [infoUSA], and paid by us, did not accurately reflect what we sought to obtain. Specifically, she advised that the [infoUSA] representative we dealt with did not perform a search of the archive information. Instead, he retrieved current information. Accordingly, the lists produced by [infoUSA] to you represent the same search parameters as described above, but includes only current information.
... We have endeavored to obtain accurate relevant information from [in-foUSA]. During our discussions with [the senior account executive], she advised that not only was the search conducted of current information, but in ... 2004 [infoUSA] could not perform searches based on the search parameters we provided. Specifically, she said that they could not, at that time, perform searches based on geographical radii. In other words, they could not determine which businesses had fax numbers within a five or ten mile radius of each address.
However, [infoUSA] advised us that they could perform a search of all businesses with fax numbers with zip codes that touched within a certain geographical radii from each address. In other words, they can perform a search of all their archived databases to provide a list of all businesses with fax numbers with zip codes that are within a five or ten mile radius of each address. This search result will produce a list of businesses with fax numbers that is over inclusive, because the search will produce a list of all businesses with the same zip codes, as long as part of the zip code falls within the specified radius. We have requested that [infoUSA] perform this updated search....
Our next step is to perform a geocod-ing of all of the addresses provided in response to the [infoUSA] search to verify that they are within a certain radius of each address. At that point, we will have effectively generated a list of all businesses with fax numbers within a five or ten mile radius of each address, as that information existed in ... 2004.

At the class certification hearing, the trial court admitted lists of businesses ostensibly produced in accordance with the methodology outlined above.

In addition to the previously noted factual deficiencies, we find additional deficiencies in the proposed methodology for determining the putative class. Nothing in the record establishes that infoUSA was the third-party provider of fax 114numbers utilized by Protus in its early 2004 fax campaign undertaken on behalf of ACI. Wadman’s deposition testimony clearly established that no records existed to support a finding that infoUSA supplied any lists of businesses to Protus in 2004, more particularly a list that was utilized by Pro-tus on behalf of ACI. Wadman also testified that the lists generated by one list provider did not conform to the lists generated by another, especially when the collection of fax numbers was based on a selection criterion. Moreover, the letter itself and the reassessment of the basis of collection of the list data set forth in the letter demonstrate the unreliability of Party Paradise’s methodology. We conclude the trial court’s finding that the methodology utilized by Party Paradise was an acceptable method for identifying the potential putative class is manifestly erroneous. Not only did Party Paradise fail to prove the basis for a selection criteria to support a finding that 3,997 faxes had been sent by ACI in 2004 within a five-mile radius of the Essen Lane restaurant and 4,281 within a ten-mile radius of the Ridge-wood Road restaurant, it also failed to establish that the database it proposed to use to identify the recipients was the same database Protus utilized to send the transmission. Thus, the record lacks a factual basis to apply the methodology proposed by Party Paradise.

Adverse Presumption Based on Spoliation of Evidence

Party Paradise asserted before the trial court that it was entitled to an adverse presumption based on spoliation of evidence. At Womac’s deposition, she testified that her correspondence with Protus usually occurred by email, generally between her and Komoto. She indicated that “possibly” there were 115internal emails that would have included Poirier. At Womac’s deposition, which occurred on July 27, 2005, Party Paradise requested an opportunity to inspect the computers that Womac and Poirier were using at the time of the fax campaigns. On August 15, 2005, Party Paradise followed up its verbal request with a letter seeking an inspection of the computers.

On November 22, 2006, Party Paradise filed a motion for sanctions based on spoliation of evidence, seeking an adverse evi-dentiary presumption. In granting relief, the trial court ordered an adverse presumption that “the hard drive did contain evidence that was detrimental to defendant’s case.” On appeal, Party Paradise urges that the adverse presumption establishes that Poirier’s computer contained the fax numbers corresponding to each intended fax recipient of advertisements faxed by Protus on behalf of ACI. Thus, Party Paradise claims that it has satisfied the element of objectively defining the class.

Initially, we question whether Party Paradise can assert a spoliation claim on behalf of the class. Since Party Paradise is a known fax recipient whose fax number has been identified, it is not similarly situated with those unknown recipients it seeks to identify with the evidence that could have been contained on Poirier’s hard drive. See La. C.C.P. art. 591 A(3).

Moreover, under an intentional or negligence theory of spoliation, the presumption does not apply if the failure to produce the record is adequately explained. See Wilhite v. Thompson, 42,395 (La.App.2d Cir.8/15/07), 962 So.2d 493, 498, writ denied, 2007-2025 (La.2/15/08), 976 So.2d 175; see also Randolph v. General Motors Corp., 93-1983 (La.App. 1st Cir.11/10/94), 646 So.2d 1019, 1026, writ denied, 95-0194 (La.3/17/95), 651 So.2d 276. To employ the presumption otherwise would be to treat the failure to produce evidence under the terms of strict liability, such that the mere failure to produce evidence, regardless of the reason, would trigger the adverse presumption. This is not the standard. Wilhite, 962 So.2d at 498.

The testimony of ACI’s senior director of information in charge of the IT department, Cynthia Dimitry, was adduced at the hearing on the motion. She stated that Womac’s computer was inspected by Party Paradise and she was involved in the process of the inspection. Dimitry testified that shortly after ACI relocated to temporary facilities on the Northshore after Hurricane Katrina had flooded the lower floor of ACI’s Metairie office, Poirier’s hard drive had crashed. She did not know why the hard drive failed. The marketing department computers, including Poirier’s, which had been located on the second floor of the ACI Metairie building, were the only electronic equipment that survived the storm. Dimitry explained that after the storm, the IT department had to reestablish the ACI network, which included the retrieval of fifteen servers from the Metairie office, the purchase of new computers for nearly every user at ACI, the reinstallation of software, the setting up of electronics at temporary offices on the Northshore, the enhancement of phone systems, and “pretty much reestablishing everything.”

She conceded that tending to Poirier’s crashed hard drive was not an important concern in the scheme of things. After unsuccessfully attempting to recover data through a software recovery program, Dimitry said she threw the hard drive out “pretty quickly” after it crashed, well before March 2006. According to Dimitry, 117all Poirier’s documents, except her emails, had been saved in a back-up system to one of the servers. Only emails that had been sent within 30 days prior to the crashing of the hard drive or that Poirier had saved to a folder were recoverable and available for inspection. Dimitry explained that even before the storm, the ACI server only saved emails for 30 days and that any emails of an individual user that existed after the lapse of that time would have been as a result of the user having moved the email to a folder. She said that emails transferred to a folder in that manner would remain on the hard drive of a computer.

Poirier testified at the hearing as well. She stated that she did not recall having any direct communication with Protus or having received any emails or faxes from Womac regarding the fax campaign. According to Poirier, ACI never had any lists of potential customers with their fax numbers so none would have been there were not any on her computer before the hard drive crashed. Poirier remembered that prior to Hurricane Katrina she was made aware that there was a request to examine her computer made in conjunction with this litigation and had been advised to preserve it. She was asked to go through her files, and she did so, providing any information she found on the fax campaign to ACI’s staff attorney. She continued using the computer, and it was available for inspection while she used it. In conformity with Dimitry’s testimony, Poirier said that soon after a temporary office had been set up for her in Abita Springs, which she recalled was in late September, her hard drive crashed. After providing her with a new computer, the IT department took the crashed computer and she had not seen it since. In light of all the upheaval due to the impact of Hurricane Katrina, Poirier |1BbIuntly admitted that when the IT departmental took her computer, the request to preserve her computer “did not cross my mind at all.”

Thus, the evidence provides a reasonable explanation for ACI’s failure to produce the crushed hard drive. About a month after Womac’s deposition, which was the first notice ACI had of Party Paradise’s intent to examine Poirier’s computer, Hurricane Katrina left ACI’s offices in disarray. That Poirier may have overlooked an order to preserve the crashed hard drive is understandable. Importantly, the testimony established that any evidence Poirier’s hard drive may have contained about the relationship between Womac and Protus would have been communications initiated on Womac’s computer, which was produced and made available for Party Paradise’s inspection. Although a trial court is granted broad discretion on evidentiary rulings, see Everhardt v. Louisiana Dep’t of Transp. and Dev., 2007-0981 (La.App. 4th Cir.2/20/08), 978 So.2d 1036, 1045, because a reasonable explanation has been provided for ACI’s failure to produce the crashed hard drive, the trial court abused its discretion in ordering an adverse presumption.

DECREE

The trial court’s conclusion that Party Paradise established an objectively defined class based on the evidence is manifestly erroneous; and any adverse presumption it may have given Party Paradise in finding that the class had been objectively defined was an abuse of discretion. Since we have found a factual basis does not exist for certification, the trial court legally erred in its certification. Therefore, its judgment certifying the class is reversed. Appeal costs are assessed against Debra Maddox doing business as Party Paradise.

REVERSED.

      . The May 30, 2008 order directed Party Paradise “be given fifteen (15) days from the date of this Judgment to submit Amended Findings of Fact and Conclusions of Law which [clarify] that the claims asserted by the class are limited to claims under the TCPA and [exclude] from the certification order and definition any claim for the receipt of fax advertisements prior to January 1, 2004.” Although the parties do not complain, we note that the practice of one party preparing the reasons for a trial court's judgment has been questioned on previous occasions. See Bell v. Ayio, 97-0534, p. 3 (La.App. 1st Cir.11/13/98), 731 So.2d 893, 896; accord City of Plaquemine v. North American Constructors, Inc., 2000-2810, p. 3 (La.App. 1st Cir.11/8/02), 832 So.2d 447, 450-55. But compare Hall v. Folger Coffee Co., 2003-1734, p. 3 n. 4 (La.4/14/04), 874 So.2d 90, 95 n. 9; see also Miller v. Smith, 402 So.2d 688 (La.1981) (Lemmon.J., dissenting).

      . At times, this witness is identified as "Charlie” and "Charli” Womac.

      . Documents evidencing these representations by Martin were also admitted into evidence.

      . Wadman further explained that infoUSA would have kept records for which a customer requested a list, but it would not retain a historical recording of the selection criteria used to generate a given list.

      . See CE Design v. Beaty Const., Inc., 2009 WL 192481 (N.D.Ill.2009) (in which an Illinois federal district court rejected the notion that a master list of potential plaintiffs is necessary for class certification: "A class is identifiable if its members can be ascertained by reference to objective criteria. It is not fatal for class definition to require some inquiry into individual records, as long as the inquiry is not so daunting as to make the class definition insufficient.” citing another federal district court's decision in Sadowski v. Med1 Online LLC, 2008 WL 2224892 (N.D.Ill.2008)).

      . We find noteworthy that in the year between the time of Party Paradise's letter and the hearing on the certification motion, plaintiff did not join one other person as a party to this lawsuit.