author: GARRETT, J.

text:
    Freddie Ray LEWIS, Plaintiff-Appellant v. Richland PARISH, et al., Defendants-Appellees
    No. 51,064-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017
    Rehearing Denied February 24, 2017
    FREDDIE R. LEWIS, Pro Se
    USRY, WEEKS & MATTHEWS, APLC By: L. Frederick Schroeder II, Ronald S. Bryant, Counsel for Appellees, Warden Cupp, Assistant, Warden Scott, Billy "White and Anne Jones
    Before WILLIAMS, LOLLEY and GARRETT, JJ.
   GARRETT, J.

hThe plaintiff, Freddie Ray Lewis, appeals from a trial court judgment granting an exception of prescription and dismissing his claims against the defendants, Richland Parish, the Richland Parish Detention Center (“RPDC”), and various officials and law enforcement officers associated with the RPDC. For the following reasons, we affirm the trial court judgment.

FACTS

Lewis filed the present lawsuit basically claiming his incarceration was illegal and seeking damages. The circumstances leading to his arrest, conviction, and incarceration began in 2005. On four occasions between October 1, 2005, and November 18, 2005, Lewis sold crack cocaine to an undercover agent with the Bossier City Police Department. On January 12, 2006, Lewis was charged by bill of information with four counts of distribution of cocaine. He was tried by a jury and convicted, as charged, on all counts. On November 27, 2007, the trial court sentenced Lewis to serve 20 years at hard labor on all four counts, to be served concurrently, with two years to be served without benefit of parole, probation, or suspension of sentence. On appeal, this court affirmed his convictions and sentences in State v. Lewis, 43, 769 (La.App. 2d Cir. 12/10/08), 1 So.3d 665, writs denied, 2009-1027 (La. 1/29/10), 25 So.3d 827, and 2009-1223 (La. 1/29/10), 25 So.3d 832.

Following his convictions and sentences, Lewis was transferred from the Bossier Parish Maximum Security facility to the RPDC and then to a facility in Vernon Parish. On June 26, 2012, Lewis, proceeding in forma pauperis, filed the present action entitled “ ‘Pro Se’ Civil Action Lawsuit, ^¡asking for “punitive, compensatory, and nominal” damages arising from a criminal conspiracy to commit “aggravated kidnapping at gunpoint” and “false imprisonment at gunpoint.” Lewis claimed that, because he was charged by bill of information and not a grand jury indictment, his convictions and sentences were illegal. He contended he was never properly admitted to the custody of the Department of Corrections (“DOC”), and his transfer to the various facilities was illegal. He claimed a criminal conspiracy between officials in Bossier, Richland and Vernon Parishes to move him between various detention facilities without legal authority. As defendants, Lewis named Richland Parish, the Rich-land Parish Sheriffs Department, Sheriff Charles M. McDonald, the Richland Parish Detention Center, Warden Major Stokes, Assistant Warden Lt. Scott, and the RPDC administrative staff. He alleged the dates he was in Richland Parish were from January 15, 2008, to April 27, 2008. Claiming damages in the amount of $5-15 million, he tendered a settlement offer of $7.5 million.

Lewis also made the following statement in his petition:

The pro se plaintiff/Litigant, Freddie R. Lewis, 395306, avers that the “Illegality of Custody” by Richland Parish, et al; has been fully litigated in the Nineteenth Judicial District Court, which verified that the pro se plaintiff/Litigant, was not “Admitted” to the Louisiana State Department of Public Safety and Corrections, after Sentencing November 27, 2007 [Louisiana State Law Annotated Revised Statue (sic) 15:566(0 1 and all subsequent custody and Transport/Transfer of said custody, thereafter was/is “Illegal”.

This is patently false. On September 30, 2011, Lewis filed a petition requesting a writ of habeas corpus in the Nineteenth Judicial District Court, against the DOC and others, raising the same arguments made in the present suit. He claimed he was never delivered into DOC custody because the department never got the proper commitment papers required by La. |SC. Cr. P. art. 892. He argued the deficiency was that he was charged by bill of information and not by grand jury indictment. Lewis claimed there was no legal authority for his custody and that his master records with the DOC had been falsified.

A commissioner with the district court filed a written report recommending that the request be dismissed as lacking merit. The report noted that any failure of the sheriffs office to provide proper documentation did not affect the validity of Lewis’s sentences to custody under La. C. Cr. P. art. 892(D), and that Lewis failed to establish falsification of any records. The district court dismissed the request for habe-as relief with prejudice. Lewis appealed, and the first circuit affirmed the district court judgment, noting that a bill of information was sufficient to charge Lewis; a grand jury indictment was not necessary. See Lewis v. Secretary, La. State Dep’t of Pub. Safety & Corr., 2012-1890 (La.App. 1st Cir. 6/7/13), 2013 WL 2488464, writ denied, 2013-2350 (La. 5/14/14), 139 So.3d 1017.

In July 2012, the defendants in the present case filed an answer asserting numerous affirmative defenses. Among these was that the action was time-barred by the applicable statute of limitations. Almost four years later, in January 2016, the defendants filed an exception of prescription. They maintained that Lewis’s complaints sounded in tort. They argued that, at most, Lewis had two years from the date he was last incarcerated in Richland Parish to file this suit. Since the suit was not filed until June 26, 2012, it was untimely.

|4Lewis was present at the hearing on the exception and represented himself. The trial court noted that Lewis was no longer in DOC custody. Lewis exhibited a total lack of understanding of the proceedings, insisting that his claim was a writ of habeas corpus and not a tort suit. When faced with the argument that his civil tort claim was barred by a two-year prescriptive period, Lewis argued that the prescriptive periods for instituting criminal prosecutions for aggravated kidnapping and false imprisonment were applicable. The trial court again instructed Lewis that this was a civil proceeding. The following exchange occurred:

MR. LEWIS: So there’s—so you can’t combine the civil action in a criminal action?
COURT: No sir. No sir.
MR. LEWIS: Under Black’s Law ...
COURT: One’s an apple and the other’s an orange.
MR. LEWIS: Okay under Black’s Law it says that’s a civilization.
COURT: This is not a Black’s Law state, this is a civil law state.
MR. LEWIS: Oh.

After hearing the arguments presented by the parties, a judgment was entered that day, granting the exception and dismissing Lewis’s claims with prejudice at his cost.

|ROn appeal, Lewis argues that the trial court erred in finding that his claim is a tort suit for monetary damages instead of a writ of habeas corpus. Lewis maintains that the defendants failed to show that he sought compensatory damages and insists that a habeas suit does not involve such a claim. Regarding the applicable prescriptive period, Lewis argues that the time limits for institution of prosecution for kidnapping and false imprisonment should apply. All of his claims are without merit.

DISCUSSION

Decision of the proper prescriptive period in this matter first requires a determination of the nature of the suit. Lewis insists that he has filed a writ of habeas corpus and not a tort suit, as maintained by the defendants. As stated in State ex rel. Lay v. Cain, 96-1247 (La.App. 1st Cir. 2/14/97), 691 So.2d 135, “analyzing pro se pleadings is sometimes as easy as catching a greased snake with your bare hands. We are also aware that a pleading’s nature is determined by its substance and not its caption.”

While Lewis styled his pleading a “ ‘Pro Se’ Civil Action Lawsuit,” he also included, in the title of the suit, references to the provisions regarding criminal habeas corpus and requested that the defendants be criminally prosecuted for what he termed “aggravated kidnapping at gunpoint” and “false imprisonment at gunpoint.” Our analysis of the pleading shows that this was not a proper request for a criminal writ of habeas corpus.

Habeas corpus is a writ commanding a person who has another in his custody to produce him before the court and to state the authority for the custody. “Custody” means detention or confinement as a result of or incidental to an instituted or anticipated criminal proceeding. The provisions ^regarding a criminal habeas corpus are not available to persons entitled to file an application for post-conviction relief. La. C. Cr. P. art. 351.

Generally, habeas corpus deals with pre-conviction complaints concerning custody, and is not the proper procedural device for post-conviction relief. La. C. Cr. P. art. 351 and Official Revision Comment (c). It is not available to contest the validity of the conviction or to have the sentence set aside; such claims are considered requests for post-conviction relief. Sinclair v. Kennedy, 96-1510 (La.App. 1st Cir. 9/19/97), 701 So.2d 457, writ denied, 1997-2495 (La. 4/3/98), 717 So.2d 645.

If the person in custody is being held by virtue of a court order, he shall have the burden of proving the illegality of the custody and that he is entitled to be released. La. C. Cr. P. art. 365. There shall be no appeal from a judgment granting or refusing to grant release upon a petition for a writ of habeas corpus. La. C. Cr. P. art. 369.

When Lewis filed the present suit, he was no longer in the custody of the RPDC. When he appeared for the hearing in this matter, he was no longer in DOC custody at all. He did not have a valid pre-conviction complaint and, under the facts presented here, he was not entitled to use a writ of habeas corpus to attack his convictions and sentences. -

The record shows that Lewis was validly charged, convicted, and sentenced for four counts of distribution of cocaine. His convictions and sentences were reviewed and affirmed by this court, and his writ applications were denied by the Louisiana Supreme Court. Lewis’s argument is unfounded that, because he was charged by a bill of information and not by a grand jury indictment,- he was not validly charged with four counts of distribution of cocaine.

[7A prosecution for an offense punishable by death, or an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a criminal court shall be instituted by an indictment or by information. La. C. Cr. P. art. 382. Distribution of cocaine, under La. R.S. 40:967, is not punishable by death or life imprisonment and, therefore, may be instituted by a bill of information. Further, the word “indictment” includes affidavit and information, unless it is the clear intent to restrict that word to the finding of a grand jury. See La. C. Cr. P. art. 461. Accordingly, the reference in La. C. Cr. P. art. 892 to an indictment in the list of items to be sent with a convicted defendant transferred to a penal institution includes bills of information where appropriate. As found by the first circuit in Lewis v. Secretary, La. State Dep’t of Pub. Safety & Corr., supra, Lewis’s argument that his commitment was defective because his prosecution was instituted by a bill of information, rather than a grand jury indictment, is erroneous.

Lewis also seems to request that the defendants be criminally prosecuted for crimes arising from what he terms an illegal detention. As noted by the trial court in this matter, Lewis was not a proper party to institute criminal proceedings. A criminal prosecution is brought in the name of the state in a court of criminal jurisdiction, for the purpose of bringing to punishment one who has violated a criminal law. The person injured by the commission of an offense is not a party to the criminal prosecution and his rights are not affected thereby. La. C. Cr. P. art. 381. In addition, Lewis’s detention was not illegal and no offenses or delictual wrongs were committed against him. Therefore, Lewis’s argument is | ^erroneous that the time limits for the institution of criminal proceedings applied to this matter.

As argued by the defendants, the only logical interpretation is that Lewis has filed a civil lawsuit alleging tort liability on the part of the defendants. Lewis clearly requested “punitive, compensatory, and nominal” damages in the amount of several million dollars. The trial court correctly found that this was a tort suit and not a request for a criminal writ of habeas corpus. The court also correctly found that the claim had prescribed.

Prescription is a peremptory exception under La. C.C.P. art. 927. On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition. La. C.C.P. art. 931.

Most delictual actions are covered by the one-year prescriptive period in La. C.C. art. 3492, which provides in relevant part:

Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained.
However, La. C.C. art. 3493.10 provides: Delictual actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1960, except as provided in Article 3496.2, are subject to a liberative prescription of two years. This prescription commences to run from the day injury or damage is sustained.

According to La. R.S. 14:2(B)(15), aggravated kidnapping is a crime of violence.

Under the most generous interpretation, the longest prescriptive period that could possibly apply to Lewis’s claim is two years. As alleged in | phis petition, he was last in the custody of the RPDC on April 27, 2008. Lewis did not file this suit until June 2012. His claim has clearly prescribed on its face. No evidence was presented to the contrary. The trial court did not err in granting the exception and dismissing the claim with prejudice.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment finding that the claims of the plaintiff, Freddie Ray Lewis, against the defendants, Richland Parish, the Richland Parish Sheriffs Department, Sheriff Charles M. McDonald, the Rich-land Parish Detention Center, Warden Major Stokes, Assistant Warden Lt. Scott, Billy J. White and Anne Jones, have prescribed, and dismissing those claims with prejudice. Costs in this court are assessed against Freddie Ray Lewis.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, LOLLEY, GARRETT and STONE, JJ.

Rehearing denied.

WILLIAMS, J., would not consider.

      . Included as defendants in the answer are Billy J. White and Anne Jones, who are apparently RPDC administrative officials.

      . We cannot help but note that Lewis is not a stranger to the legal system. He has filed numerous suits in both state and federal court, none of which have been successful. See e.g. Lewis v. LeBlanc, No. 5:15CV-1083 (W.D. La. Aug. 10, 2015), 2015 WL 4758761; Lewis v. Corrections. Corp of Am., No. 1:13CV2258 (W.D. La. Aug. 21, 2013), 2013 WL 12084401; Lewis v. Wilkinson, 2010-0771 (La.App. 1st Cir. 12/22/10), 2010 WL 5479688; Lewis v. Sheriff's Dep’t Bossier Par. (5th Cir. 2010), 396 Fed.Appx. 102, 2010 WL 3824515.


source: Caselaw Access Project

author: ■PITMAN, J.

license: Public Domain

text:
    FOSTER-SOMERLED ENTERPRISES, LLC d/b/a Roof or Consequences, LLC and Somerled Construction, LLC, Plaintiffs-Appellants v. ST. PAUL’S EPISCOPAL CHURCH, Shreveport, Louisiana, GuideOne Mutual Insurance Company and GuideOne Taylor Ball Construction Services, LLC, d/b/a GC3, Defendants-Appellees
    No. 51,063-CA
    Court of Appeal of Louisiana, Second Circuit.
    January 11, 2017

      HAYTER/REYNOLDS, LLC, By: John O. Hayter, III, Lauren H. Reynolds, Counsel for Appellants
    MAYER, SMITH & ROBERTS, LLP, By: Frank K. Carroll, Counsel for Appel-lee, St, Paul’s Episcopal Church
    JONES WALKER LLP, By: Louis Simon, II, Counsel for Appellee, GC3 d/b/a GuideOne Taylor, Ball Const. Services, LLC
    SCHUTTE, TERHOEVE, RICHARDSON, EVERSBERG, CRONIN, JUDICE & BOUDREAUX, By: Brad M. Bou-dreaux, Sarah Eilts Assad, Erin 0. Braud, Counsel for Appellee, GuideOne Mutual Ins. Co.
    Before BROWN, MOORE & PITMAN, JJ.
   ■PITMAN, J.

| iPlaintiffs-Appellants Foster-Somerled Enterprises, LLC, d/b/a Roof or Consequences, LLC (“Foster”), and Somerled Construction, LLC (“Somerled”), appeal the judgment of the trial court granting the exceptions of no cause of action and no right of action in favor of Defendant-Ap-pellee GuideOne Mutual Insurance Company (“GuideOne”). For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

FACTS

On September 4, 2015, Foster, a licensed home improvement contractor providing services as a roofing contractor for homes and small commercial projects, and Som-erled, a licensed commercial contractor, filed a petition for damages against St. Paul’s Episcopal Church, Shreveport, Louisiana (“St. Paul’s”); GuideOne; and Gui-deOne Taylor Ball Construction Services, LLC, d/b/a GC3 (“GC3”). In their petition, Plaintiffs alleged the following facts: In February 2014, Foster’s representative contacted St. Paul’s regarding possible hail damage to the church’s roof. St. Paul’s representative stated that its roof had been damaged and that its insurer, Gui-deOne, advised that the roof needed repairs to the ridge caps and if not repaired, the policy could be cancelled. Foster presented a contract to St. Paul’s to assist in making a claim on its insurance policy and to perform the repairs to the roof with the understanding that, if replacement was necessary, the contract would be assigned to Somerled or another general contractor and Foster would assume the role of a “not at risk” construction manager. St. Paul’s agreed and signed a contract with Foster, Foster then conducted an inspection of the entire roof system and determined that the damages [^sustained were significantly greater than initially presumed. It assigned the contract to Somerled as to the scope of the damage was beyond Foster’s licensing threshold. On behalf of St. Paul’s, Foster demonstrated to GuideOne the level of damage to the church’s roof and convinced GuideOne that the entire roof system needed to be replaced. The roof contained asbestos material, so Foster contacted an asbestos contractor to perform its removal and disposal. GuideOne was informed of the asbestos and the additional expenses required for the abatement. Foster also identified subcontractors and suppliers for certain aspects of the project. It informed St. Paul’s that the cost to replace the roof system was approximately $3,400,000, which would be paid by Gui-deOne under the insurance policy. Gui-deOne then requested a separate meeting with St. Paul’s and GC3, excluding Foster and Somerled. During the meeting, Gui-deOne and GC3 attempted to replace Foster and/or Somerled as the contractor. In late April or early May, St. Paul’s asserted that there was no binding contract with Somerled. St. Paul’s, GuideOne and GC3 then adopted a procedure to bid the project through GC3. They requested that Somerled bid on the project, but Somerled refused because it already had a contract with St. Paul’s to perform the work and because it could not engage in the bidding project as it was not allowed by Louisiana licensing laws because GC3 is an unlicensed contractor in Louisiana. St. Paul’s then notified Somerled that its contract was being terminated for convenience. Subsequent to termination, Somerled submitted its invoice to St. Paul’s for payment of the profit and overhead in the contract in the amount of $575,409.82. Foster submitted an invoice to St. Paul’s for its time expended as a construction manager on the project in the amount of $185,580. Plaintiffs advised St. Paul’s that upon payment toJjFoster, this would be credited against the amount owed to Somerled. At the date of the filing of the petition, the roof of the church had not been replaced.

In their petition, Plaintiffs argued that GuideOne and GC3 undertook a campaign to disparage the competency and defame the reputation of Foster and Somerled and dishonor, interfere with or otherwise cancel the binding contract of Foster and/or Somei’led with St. Paul’s. Specifically, they alleged that, in an attempt to coerce St. Paul’s to cancel the contract with Foster, GuideOne and GC3 disparaged the reputation of Foster and Somerled, attempted to convince St. Paul’s that Foster and/or Somerled were not competent to handle the project, threatened to cancel St. Paul’s insurance if it used Foster and/or Som-erled for the project, attempted to have St. Paul’s cancel the contract held by Som-erled, misrepresented to St. Paul’s that GC3 was a Louisiana-licensed contractor that could perform the work, advised St. Paul’s not to pay profit and overhead charged by Somerled under the contract and advised St. Paul’s that the project needed to be bid instead of honoring the contract with Somerled. They further argued that the actions of GuideOne, GC3 and St. Paul’s constituted unfair trade practices and that these actions resulted in the termination of the contract. They contended that they are entitled to damages in amounts to be proven at trial arising out of the unfair trade practices and defamation perpetrated by St. Paul’s, GuideOne and GC3, together with interest, attorney fees and all court costs.

On September 24, 2015, GuideOne filed an exception of no cause of action and no right of action. It argued that Plaintiffs had not stated a cause of action for damages for unfair trade practices because the applicable law, Louisiana’s Unfair Trade Practices and Consumer Protection Law L(“LUTPA”), exempts actions regulated by the Insurance Commissioner. It explained that Plaintiffs have no right of action for unfair trade practices because the Insurance Commissioner is the sole person who may assert a cause of action under the Insurance Code for unfair trade practices. It also argued that Plaintiffs failed to state a cause of action for defamation.

On January 28, 2016, Plaintiffs filed an opposition to the exceptions of no cause of action and no right of action. They argued that GuideOne failed to demonstrate that they do not have a right of action and that the allegations fall under the jurisdiction of the Insurance Commissioner. They further argued that they stated a cause of action for defamation by alleging that GuideOne made statements to St. Paul’s that Plaintiffs were not competent to handle the project.

A hearing on the exceptions was held on February 8, 2016. The trial court granted the exceptions and noted that defamation is listed in La. R.S. 22:1964(3) as an unfair method of competition and unfair or deceptive act or practice in the business of insurance and is under the jurisdiction of the Insurance Commissioner. On February 22, 2016, the trial court filed a final judgment sustaining GuideOne’s exceptions of no cause of action and no right of action and dismissing, with prejudice, all claims made by Plaintiffs against GuideOne at Plaintiffs’ cost.

Plaintiffs appeal the judgment of the trial court.

DISCUSSION

Unfair Trade Practices

Plaintiffs argue that the trial court erred in sustaining GuideOne’s exception of no cause of action and no right of action with respect to Plaintiffs’ claims of unfair trade practices under LUTPA. They contend that, |salthough the Insurance Commissioner has jurisdiction over certain actions enumerated in La. R.S. 22:1964, the allegations in this case do not fall into one of the categories of actions. They argue that, when an action is not enumerated in La. R.S. 22:1964, there is a claim under LUT-PA for that action. Therefore, they contend that they have a private right of action and cause of action against Gui-deOne under LUTPA.

GuideOne argues that Plaintiffs have no cause of action under LUTPA as the claims are controlled by La. R.S. 22:1961, et seq., and fall under the jurisdiction of the Insurance Commissioner. It contends that the trial court correctly determined that Plaintiffs failed to state a cause of action because all of the claims fell into the enumerated categories in La. R.S. 22:1964. It states that all of the claims asserted by Plaintiffs to be unfair and/or deceptive trade practices arise out of the claim for insurance brought by St. Paul’s with regard to the insurance contract issued by GuideOne. It argues that Plaintiffs have no private right of action because the claims are under the jurisdiction of the Insurance Commissioner.

Both the exception of no cause of action and the exception of no right of action present questions of law; and, therefore, the standard of review of the trial court’s action is a de novo review. Waggoner v. Am. First Ins., 42,863 (La. App. 2 Cir. 1/16/08), 975 So.2d 110. The function of the exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La. 11/30/94), 646 So.2d 885. It is designed to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru S., 6Inc., 616 So. 2d 1234 (La. 1993). The function of the exception of no right of action is to determine whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Badeaux v. Sw. Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So.2d 1211. It serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

LUTPA is set forth in La. R.S. 51:1401-1418, and La. R.S. 51:1405(A) states: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Acts constituting unfair or deceptive trade practices are not specifically defined in the statute but are determined by the courts on a case-by-case basis. Harp v. Autrey, 47,749 (La. App. 2 Cir. 8/21/13), 121 So.3d 1260, writ denied, 13-2263 (La. 12/2/13), 126 So.3d 1286.

La. R.S. 51:1409 creates a private right of action for “[a]ny person who suffers any ascertainable loss ... as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405.” La. R.S. 51:1406(1) states that LUTPA shall not apply to “actions or transactions subject to the jurisdiction of ... the insurance commissioner.”

La. R.S. 22:2 provides that “[i]t shall be the duty of the commissioner of insurance to administer the provisions of [the Louisiana Insurance Code].” La. R.S. 22:1961 states:

The purpose of this Part is to regulate the trade practices in the business of insurance, in accordance with the intent of congress as expressed in Public Law 15-79th Congress, by defining or |7providing for the determination of all acts, methods, and practices which constitute unfair methods of competition and unfair or deceptive acts and practices in this state, and to prohibit the same.

La. R.S. 22:1963 states in part that “[n]o person shall engage in this state in any trade practice which is defined in this Part to be an unfair method of competition or an unfair or deceptive act or practice in the conduct of the business of insurance.” La. R.S. 22:1964 sets forth a list of methods, acts and practices “declared to be unfair methods of competition and unfair or deceptive acts or practices in the business of insurance.” La. R.S. 22:1967 states:

The commissioner of insurance shall have power to examine and investigate the affairs of every person engaged in the business of insurance ... in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by this Part.

An examination of La. R.S. 22:1964 demonstrates that the alleged unfair acts by GuideOne are not included in the enumerated unfair methods of competition and unfair or deceptive acts or practices in the business of insurance over which the Insurance Commissioner has jurisdiction. Therefore, Plaintiffs may have a private right of action pursuant to La. R.S. 51:1409.

LUTPA, however, does not provide Plaintiffs with a cause of action based on the facts alleged in their petition. Under LUTPA, a practice is unfair when it offends established public policy and is unethical, oppressive, unscrupulous or substantially injurious to consumers or business competitors. Monroe Med. Clinic, Inc. v. Hosp. Corp. of Am., supra, quoting Roustabouts, Inc. v. Hamer, 447 So.2d 543 (La. App. 1st Cir.8 1984). LUTPA does not prohibit sound business practices, the exercise of permissible business judgment or appropriate free-enterprise transactions. SDT Indus., Inc. v. Leeper, 34,655 (La. App. 2 Cir. 6/22/01), 793 So.2d 327, writ denied, 01-2558 (La. 2001), 803 So.2d 973.

The actions alleged by Plaintiffs in their petition do not demonstrate that GuideOne engaged in unfair business practices. Gui-deOne’s decision to bid the project is a sound business practice.

Accordingly, we find that Plaintiffs have not stated a cause of action in their petition. We grant Plaintiffs leave to amend their petition on this claim.

Defamation

Plaintiffs argue that the trial court erred in sustaining GuideOne’s exceptions with respect to Plaintiffs’ claim of defamation against GuideOne. Plaintiffs state that, although the exception was styled as no cause of action, the trial court granted an exception of no right of action. They argue that they have a right of action to bring their claim of defamation. They note that the trial court determined that La. R.S. 22:1964(3) applied to the defamation claim, but they argue that whether an alleged act falls under the jurisdiction of the Insurance Commissioner is only relevant to their claims under LUTPA, not their tort claim for defamation. They also argue that they have a cause of action for defamation and state that the trial court made no ruling regarding the sufficiency of their defamation claim. They contend that their allegations that GuideOne made false and defamatory statements regarding them and their capabilities are sufficient to prove their claim for defamation.

GuideOne argues that the trial court properly determined that the defamation claim falls under the jurisdiction of the Insurance Commissioner. [^However, should this court find that the defamation claim does not fall under the jurisdiction of the Insurance Commissioner, it argues that Plaintiffs have failed to state a cause of action for defamation and did not meet the burden of proof in an action for defamation.

La. R.S. 22:1964 states, in part:

The following are declared to be unfair methods of competition and unfair or deceptive acts or practices in the business of insurance:
* * *
(3) Defamation. Making, publishing, disseminating, or circulating, directly or indirectly, or aiding, abetting or encouraging the making, publishing, disseminating or circulating of any oral or written statement or any pamphlet, circular, article or literature which is false, or maliciously critical of or derogatory to the financial condition of an insurer, and which is calculated to injure any person engaged in the business of insurance.

This does not apply to Plaintiffs’ allegation of defamation because the alleged defamation is not critical of the financial condition of an insurer. The alleged defamation in this case is critical of Plaintiffs as contractors.

Further, La. R.S. 22:1964(12), which states that “any violation of any prohibitory law of the state” is an unfair practice, does not apply to the allegation of defamation because defamation is a tort claim, not a violation a prohibitory law.

Plaintiffs have a cause of action and a right of action to bring a tort claim of defamation against GuideOne. We will not address the merits of the defamation claim and whether Plaintiffs met the burden of proof for such a claim because these issues are to be addressed by the trial court on remand.

Accordingly, this assignment of error has merit. We grant Plaintiffs leave to amend their petition on this claim.

| ^CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the exception of no cause of action regarding Plaintiffs’ claim under LUTPA is affirmed. The judgment of the trial court granting the exceptions of no cause of action and no right of action regarding Plaintiffs’ claim of defamation is reversed. We grant Plaintiffs leave to amend their petition and remand for further proceedings. Court costs are to be divided equally between Defendant-Ap-pellee GuideOne Mutual Insurance Company and Plaintiffs-Appellants Foster-Som-erled Enterprises, LLC, d/b/a Roof or Consequences, LLC, and Somerled Construction, LLC.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Joshua VALLO, Appellant
    No. 51,046-KW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.
    THE FISER LAW FIRM, LLC By: Michael A. Fiser, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney
    JOHN M. LAWRENCE, Assistant District Attorney, Counsel for Appellee
    Before WILLIAMS, PITMAN & STONE, JJ.
   PITMAN, J.

| defendant Joshua Vallo seeks supervisory review of the denial of his application for post-conviction relief (“PCR”). For the following reasons, the writ is granted in part and the matter is remanded to the trial court for further proceedings.

FACTS

Defendant was charged with the aggravated incest of his eight-year-old stepdaughter, M.M., between the dates of April 1 and June 3, 2010. A jury trial was held on April 23-25, 2012. Defendant was convicted of aggravated incest and was sentenced to serve 50 years at hard labor, with the first 25 years to be served without the benefit of parole, probation or suspension of sentence. He appealed his conviction and sentence. On appeal, this court reversed his conviction and sentence after determining that his Sixth Amendment right to confrontation was violated during his trial when the state introduced a video of a forensic interview of M.M. (“the Gingerbread video”) and then M.M. refused to answer questions during cross-examination, thereby bypassing the strict requirements for the introduction of videotaped statements found in La. R.S. 15:440.4. The state appealed and the supreme court, in a per curiam opinion, reversed this court’s ruling, finding that the defense did not object to the admission of the Gingerbread video or when the victim refused to respond on four occasions during cross-examination. It found that La. C. Cr. P. art. 841 generally provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. State v. Vallo, 47,995 (La.App. 2 Cir. 5/29/13), 117 So.3d 268, writ granted, judgment rev’d, 13-1369 (La. 1/10/14), 131 So.3d 835 (“Vallo I”).

|2On remand, this court affirmed Defendant’s conviction and sentence. State v. Vallo, 47,995 (La.App. 2 Cir. 2/13/14), 134 So.3d 1201 (“Vallo II"). Preceding its opinion addressing the excessive sentence issue, this court stated:

Before addressing the defendant’s assignment of error regarding his sentence and notwithstanding the supreme court’s reversal of our original ruling, we note that the defendant may still raise the issues concerning the Confrontation Clause violation, such as ineffective assistance of counsel in failing to object, in post-conviction proceedings.

On May 11, 2015, Defendant, through counsel, filed an application for PCR, alleging that his constitutional rights under La. Const. Art. 1, § 16, and the Confrontation Clause of the Sixth Amendment to the U.S. Constitution had been violated when the state was permitted to present the Gingerbread video, which was the linchpin of its case against him, without his being able to effectively cross-examine M.M. He also asserted that his trial attorney was ineffective for failing to object to the admission of the Gingerbread video and to M.M.’s refusal to answer questions on cross-examination. He argued, citing Vallo I, that, had his attorney lodged such an objection, his conviction would have been reversed by this court. As such, he argued, but for his trial attorney’s failure to object, the result of his trial would have been different.

On October 19, 2015, the state filed an answer to Defendant’s PCR application. It denied his allegations and argued that the Confrontation Clause issue had been fully litigated on appeal. It contended that Defendant failed to prove that his attorney was ineffective under the prejudice prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he testified at trial and the jury was able to | Sassess his testimony. It also argued that the Gingerbread video would have, been admissible for impeachment purposes after Defendant had testified.

A hearing was held on Defendant’s PCR application on March 14, 2016, wherein defense counsel noted that he had not received notice of the hearing until the Wednesday before and suggested that he would have liked to “make the record of whether her (the trial attorney’s) non-objection to the Confrontation Clause issue would’ve been a strategy decision.” He later asked the court, “And I don’t know if it would—if it would test the Court’s patience or if it would be to please the Court, may we hold this hearing open as far as an ability for me to get her under subpoena and just come back up here and make the record whole with her testimony?”

The state responded that, if this was a case where the Confrontation Clause issue “was not developed because of something that the attorney did that is trial strategy, then the burden is,certainly upon the defense to show that.”

The trial court responded that, while it would allow defense counsel to-supplement his memorandum because he did not receive sufficient notice of the hearing, it could not “appreciate the need for (the trial attorney) to be here and, there be any additional questioning as it relates to that.” No evidence was presented by either Defendant or the state. The trial court took the matter under advisement.

On March 18, 2016, the trial court issued a written ruling denying Defendant’s PCR application. Citing the supreme court’s opinion in Vallo I, it opined that Defendant’s Confrontation Clause claim had been addressed and fully litigated on appeal. In particular, it noted that the supreme court had determined that Defendant waived his Confrontation • Clause claim when | ¿he failed to contemporaneously object to the playing or admission of the Gingerbread video.

After providing a summary of M.M.’s trial testimony, the trial court also rejected Defendant’s ineffective assistance of counsel claim with regard to failure to object to the witness’s unavailability, explaining:

The court finds that the victim was present to testify at the trial in question, and she was questioned both on direct examination by the State and on cross-examination by Petitioner’s trial counsel. The record also reflects that Petitioner took the stand at trial. Thus, the court finds the jury was able to assess and weigh both the testimony of the victim and the Petitioner, as well as the video of the victim’s forensic interview at the Gingerbread House. Thus, because the victim was available to testify, the Court finds the defense counsel’s decision on how to proceed with the cross-examination of the victim falls within the ambit of trial strategy and does not establish ineffective assistance of counsel. Strategic decisions are inappropriate considerations for post-conviction relief. See State v. LaCaze, 99-0584 (La. 1/25/02), 824 So.2d 1063, 1082.
Furthermore, the Court finds Petitioner’s statement conclusory that “[b]ut for counsel’s failure to object, the result of [Petitioner’s] trial would have been different.” Petitioner fails to present any evidence to show a reasonable probability that, but for his counsel’s failure to object, the proceeding would have been different. Judicial scrutiny of counsel’s performance must be highly deferential and the court must refrain from second-guessing particular strategy on hindsight. Id. Hindsight is not the proper perspective for judging the competence of counsel’s decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.

Defendant sought supervisory review of the trial court’s ruling; and, on July 7, 2016, this court granted the writ to docket.

I .DISCUSSION

Defendant argues that the trial court erred in denying him relief on his ineffective assistance of counsel claim because this court previously concluded that his right to confront his accusers was violated by M.M.’s refusal to answer questions during cross-examination. He contends that, had his trial attorney objected to the violation, this court’s reversal of his conviction would have been affirmed by the supreme court, instead of reversed based solely on the defense’s failure to contemporaneously object to the confrontation error. Therefore, he argues, the only reason he has not received a new trial is his trial attorney’s failure to object to the Confrontation Clause violation, and such a failure to object constitutes deficient performance. He also contends that his trial attorney’s failure to object to admission of the Gingerbread video was not a strategic decision, but also constituted deficient performance. There could be no strategic reason to refrain from objecting to a meritorious Confrontation Clause violation.

In addition, Defendant submits that his trial attorney’s failure to object prejudiced his case. He points out, as this court noted in Vallo I, that the Gingerbread video was the basis of the state’s case against him and the state failed to satisfy the requirements of La. R.S. 15:440.5 to allow admission of the recorded interview, including that M.M. must have been available for cross-examination. M.M.’s failure to state exactly what he did to her violated the Confrontation Clause of the Sixth Amendment. He asserts that, but for his trial attorney’s failure to object, he would have received a new trial.

| (¡Alternatively, Defendant requests that this court remand the matter to the trial court for another evidentiary hearing. He complains that, despite the fact that the trial court stated during the March 14, 2016 PCR hearing that it saw no need to have Defendant’s prior trial counsel testify, it concluded, without evidence, that his trial attorney’s failure to object during M.M.’s cross-examination was trial strategy and, thus, that his application for PCR should be denied.

The state counters that there was no attorney error involved in the admission of the Gingerbread video because M.M.’s testimony on direct examination supported the verdict, as did the anatomical drawings, which had been introduced. It argues that M.M. was available for cross-examination at trial and points out that presentation of child testimony by a prosecutor and cross-examination by defense counsel is handled differently than the testimony of an adult witness and, therefore, is subject to varying trial strategies. It asserts that Defendant has not shown that exculpatory evidence would have been revealed if M.M. answered all of the questions posed by defense counsel at trial.

La. C. Cr. P. art. 930 concerns evidentia-ry hearings when applications for PCR have been filed and provides that an evi-dentiary hearing for the taking of testimony or other evidence shall be ordered whenever there are questions of fact which cannot properly be resolved pursuant to La. C. Cr. P. arts. 928 (dismissal upon the pleadings) and 929 (summary dispositions). La. C. Cr. P. art. 930.3 contains the grounds for PCR and states that, if the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on certain grounds, the first of which is that the conviction was obtained in violation of the constitution of the United States 17or the state of Louisiana. A petitioner in an application for post-conviction relief shall have the burden of proving that relief should be granted. La. C. Cr. P. art. 930.2.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. See State v. Wry, 591 So.2d 774 (La. App. 2d Cir. 1991). Under the standard set out in Strickland v. Washington, supra, and adopted by the Louisiana Supreme Court in State v. Washington, 491 So.2d 1337 (La. 1986), a conviction must be reversed if the petitioner proves (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Legrand, 02-1462 (La. 12/3/03), 864 So.2d 89; cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005).

The assessment of an attorney’s - performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, writ denied, 07-1193 (La. 12/7/07), 969 So.2d 629. In State v. Allen, 03-2418 (La. 6/29/05), 913 So.2d 788, cert. denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006), the Louisiana Supreme Court stated that “the failure to object to a valid error may. be the proper subject of a post-conviction claim of ineffective assistance of counsel.”

1 ROnce the attorney’s performance is found to have been deficient, the court next considers whether that performance resulted in errors so serious that the defendant was deprived of a fair tidal with a reliable result. Strickland, supra. The defendant must prove the deficient performance caused him an actual prejudice so severe that, but for his counsel’s deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2 Cir. 4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9.

In Vallo I, this court explained that Defendant was denied due process when the state was permitted to present to the jury, and admit into evidence, the Gingerbread video without compliance with the strict requirements of La. R.S. 15:440.5. Additionally, this court determined that the Confrontation Clause of the Sixth Amendment was violated when M.M. refused to answer questions during cross-examination, which essentially made her an unavailable witness. Accordingly, this court concluded that his conviction and sentence should be reversed and the matter remanded to the trial court for further proceedings. Although the supreme court reversed this court’s ruling in Vallo I, its reversal was based solely on the defense’s failure to lodge a contemporaneous objection to the admission of the Gingerbread video.

As noted in State v. Allen, supra, the failure of trial counsel to object to a valid error may support a PCR claim for ineffective assistance of counsel. In ruling on this application for PCR, the trial court, without having heard Defendant’s attorney’s explanation for failure to object to the admission of the Gingerbread video or to the failure of the state to comply |3with La. R.S. 15:440.4 and make M.M. “available,” concluded that it was defense attorney’s trial strategy; and, as such, the decision was entitled to great deference in accordance with State v. Grant, supra. This court, in Vallo I, has already determined that his constitutional rights had been violated, The supreme court’s decision did not determine the validity of his constitutional claim on appeal; it simply stated that no contemporaneous objection had been made by counsel; and, thus, the issue would was not preserved for review. It is still, however, an issue to be examined with regard to the claim for PCR and whether there was ineffective assistance of counsel.

Here, Defendant has made a claim that his trial counsel’s failure to object to the state’s presentation and the trial court’s admission of the Gingerbread video constituted deficient performance for the purposes of Strickland, supra. Furthermore, the Defendant has alleged ineffective assistance of counsel in that his attorney did not object to M.M.’s unavailability to testify as is required by La. R.S. 15:440.4 prior to the presentation of the video to the jury. The trial court, while noting that Defendant’s attorney had not received sufficient notice of the hearing to have a subpoena issued to the trial attorney, denied the defense attorney’s request that the matter be left open so that a subpoena could be issued and the trial attorney could appear and explain whether the omission of the objection was trial strategy. After stating that there was no need for the subpoena to be issued and questions answered, it issued a ruling declaring the trial attorney’s questioning of M.M. and the failure to object was trial strategy and denied the application for PCR.

| mSince La. C. Cr. P. art. 930 provides that an evidentiary hearing for the taking of testimony or other evidence “shall be ordered whenever there are questions of fact which cannot properly be resolved” otherwise, and in this case, whether the trial attorney’s failure to object was trial strategy, is a question of fact, we are compelled to grant this writ in part and remand for further proceedings, i.e, a hearing at which the trial attorney can testify as to the reason why no objection was made to the introduction of the Gingerbread video or a challenge made to M.M.’s availability to testify.

CONCLUSION

For the foregoing reasons, the writ is granted in part and the matter is remanded to the trial court for further proceedings.

WRIT GRANTED IN PART; MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . This is the first basis for his application for PCR; his attorney did not object to the introduction of the Gingerbread video, although the state did not fully comply with La. R.S. 15:440.4, as was pointed out in Vallo I. The supreme court did not address the merits of the Confrontation Clause issue because Defendant’s attorney did not contemporaneously object at trial. The supreme court reversed this court’s decision on that basis alone.


author: CHEHARDY, C.J.

text:
    Audrey Blank LOUQUE, et al v. SCOTT EQUIPMENT COMPANY, LLC, Trade Name Scott/Toyota Lift of Louisiana (Scott Equipment Sales Company, LLC), et al
    NO. 16-CA-507
    Court of Appeal of Louisiana, Fifth Circuit.
    February 8, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, AUDREY BLANK LOUQUE, Craig J. Robiehaux
    COUNSEL FOR DEFENDANT/AP-PELLEE, MOTIVA ENTERPRISES, LLC, Timothy P. Hurley, Robert K. Denny
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHEHARDY, C.J.

liOn appeal, plaintiffs challenge the trial court’s ruling granting defendant’s motion for summary judgment. For the following reasons, we affirm.

Facts and Procedural History

On March 13, 2013, during the course and scope of his employment with River Parish Maintenance at Motiva Enterprises, LLC’s manufacturing complex, Michael J. Louque, Sr. was killed when heavy equipment being loaded onto a flatbed truck by forklift rolled off of the truck onto him. On March 3, 2014, Audrey Lou-que individually, and on behalf of their minor daughter, Tracey Louque, and Michael J. Louque, Jr. (hereinafter collectively “the Louques”) filed suit seeking damages for the wrongful death of their husband and father. In their lawsuit, the Louques named as defendants: Daimler Trucks North America, LLC; United Rentals-North America Inc.; Penske Truck Leasing Co., L.P.; Toyota Motor Sales, USA; Scott Equipment Sales; H & E Equipment Sales, Inc.; and Motiva Enterprises, LLC.

Several defendants, including Motiva Enterprises, LLC (hereinafter “Motiva”) filed exceptions and several defendants answered, raising affirmative defenses. More specifically, Motiva filed an exception of no right of action, pursuant to La. C.C.P. art. 927. In its exception, Motiva asserted that Mr. Louque was its “statutory employee,” and, thus, Motiva was immune from liability under the Louisiana Workers’ Compensation Act. The trial court sustained Moti-va’s exception and dismissed the case against Motiva, The Louques appealed that judgment.

On appeal, this Court reversed that judgment and remanded for further proceedings. Louque v. Scott Equip. Co., LLC, 15-43 (La.App, 5 Cir. 4/29/15), 170 So.3d 335. Specifically, we found:

| aIn this case, unlike other contracts of this ilk that have been reviewed by this Court, Motiva is not listed as an affiliate, subsidiary, or buyer but rather as a location for services. Our de novo review reveals that Motiva failed to establish itself as Mr. Louque’s statutory employer and, thus, the trial judge erred in sustaining its exception of no right of action. Accordingly, we reverse that ruling and remand the matter for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against Motiva Enterprises, LLC. (Footnotes omitted).

Id. at 340.

On June 29, 2015, Motiva answered the petition and asserted, among others, the statutory employer defense. On November 24, 2015, Motiva filed a motion for summary judgment on the basis that it was immune from tort liability under La. R.S. 23:1061 et seq. because Mr. Louque was Motiva’s statutory employee. In support of its motion, Motiva attached, among other things, an affidavit from its General Counsel Christopher Vice; a copy of RPM’s incident investigation report; an OSHA investigation report; witness depositions; the Procurement Agreement No. NS-012808-CAP with Alterations; and Purchase Orders from Motiva to RPM.

To their opposition to Motiva’s motion for summary judgment, the Louques attached an affidavit from A.J. McPhate, Mechanical Engineer; and excerpts of witness depositions.

On April 11, 2016, the trial judge granted Motiva’s motion for summary judgment and dismissed the Louques’ claims with prejudice. The Louques appeal that ruling.

On appeal, the Louques raise five assignments of error: first, the trial court erred in considering incompetent summary judgment evidence; second, the trial court erred in relying on parole evidence to determine statutory employer status; third, the trial court erred in relitigating the statutory employment issue; fourth, the trial court erred in refusing to recognize that intentional torts are an exception to lathe exclusivity provision; and fifth, the trial court failed to consider that Texas law may apply to this case based upon the choice of law provisions in the contract.

Standard of Review

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/06/10), 46 So.3d 991, 996; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991).

Law and Argument

Appellants’ first and second assignments of error concern the technical aspects of the trial court’s grant of summary judgment. Specifically, appellants argue that the trial court improperly considered incompetent evidence submitted by Motiva before granting summary judgment. Further, appellants argue that the trial court improperly considered parole evidence before granting summary judgment.

First, we cannot determine from the record which evidence the trial court considered before granting summary judgment. More importantly, as noted above, this Court reviews summary judgments de novo, which means an “appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Smith v. Our Lady of the Lake Hosp., 93-2512 (La. 7/05/94), 639 So.2d 730, 750. Thus, with respect to the Louques’ first assignment of error, we find no merit as we will consider only the competent summary judgment evidence in our de novo review.

With respect to the Louques’ second assignment of error, we find no need to consider whether the trial judge relied on parole evidence in granting summary | Judgment because, upon de novo review, we find that the competent evidence supports summary judgment in favor of Moti-va as discussed below.

In their third and fourth assignments of error, the Louques challenge the trial court’s grant of summary judgment that Motiva was Mr. Louque’s statutory employer. A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art, 966(B)(2). Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. Id. .

When the motion for summary judgment was filed, La. C.C.P. art. 966 (F)(2) and (3) provided:

(2) Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of.the motion for summary judgment may be considered by the court in its ruling on the motion.
(3) Only objections to evidences in support of or in opposition to a motion for summary judgment may be raised in memorandum or written 'motion to strike stating the specific grounds therefor.

Under . the Louisiana Workers’ Compensation Act, La. R.S. 23:1032, an employee injured in an accident while in the course and scope of his employment Lis generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and may not sue his employer, or any principal, in tort. See Deshotel v. Guichard Operating Company, Inc., 03-3511 (La. 12/17/04), 916 So.2d 72, 76-79.

La. R.S. 23:1032 provides as follows:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under- any dual capacity theory or doctrine.
(2) For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

The Louisiana Workers’ Compensation Act applies both to a direct employer/employee relationship as well as to a statutory employer/employee relationship. In its entirety, La. R. S. 23:1061, which codifies the “statutory employer” doctrine, reads:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor,” for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and | ¿where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor. (Emphasis added).

The determination of statutory employer status is a question of law for the court to decide. Ramos v. Tulane Univ. of La., 06-0487 (La.App. 4 Cir. 1/31/07), 951 So.2d 1267.

In this ease, the essence of the Louques’ argument is that the trial court erred in finding that Motiva was entitled to statutory employer status under La. R.S. 23:1061(A)(3) because Motiva was not specifically named in the contract between Shell Oil and River Parish Maintenance.

|7In support of its motion for summary judgment, Motiva attached to its motion a copy of the contract at issue, which is the “Procurement Agreement” between Shell Oil Products US as Buyer, and River Parish Maintenance, Inc. as Contractor. The agreement to procure “Miscellaneous Non-Skilled Maintenance Services” was executed in 2008, then extended through written “alterations” until January 31, 2015. The contract, which was the basis of RPM’s relationship with Shell, was in existence on March 13, 2013, the date of the incident that caused Mr. Louque’s death.

The “Procurement Agreement” contains, at Clause 27, the following Statutory Employer provision:

While Contractor [River Parish Maintenance, Inc.] and any of its employees, agents, or subcontractors are performing Services under this Purchase Contract in the State of Louisiana, such work in whole or in part is a part of the trade, business or occupation of Buyer and is an integral part of and essential to the ability of Buyer to generate its goods, products and services. Buyer or any of its Subsidiaries or Affiliates involved in the Services performed hereunder in Louisiana shall be considered a statutory employer within the meaning set forth in La. [R.S.] 28:1061 of those employees, agents, and subcontractors of contractor performing Services hereunder in Louisiana and such employees, agents, and subcontractors shall be considered statutory employees as the meaning is set forth in La. [R.S.] 23:1061. (Emphasis added.)

To its motion for summary judgment, Motiva attached the deposition testimony of the Contract and Procurement Manager for its Norco Facility, Kevin Petit. Kevin Petit, who, from 2010 to 2013, signed the alterations to the “Procurement Agreement” with RPM on behalf of Motiva, also stated that Motiva is an “Affiliate” to Shell Oil Products US and Shell Oil Company— Commingled.

In Clause 1 of the Agreement, “Buyer” is defined as “the Buyer Company with respect to each Purchase Contract it enters into for the purchase of Services.” In that same clause, a “Purchase Contract” is defined as “the binding contract given rise to by the Buyer’s issuance and Contractor’s acceptance of a Purchase Order with the acceptance either by giving express written notice to Buyer of | sacceptance, or by commencing the Services in accordance with the Purchase Order.”

Further, Clause 29.1 of the “Procurement Agreement” reads, “This Agreement together with the terms of any Purchase Order constitutes the whole and only agreement between the Parties relating to its subject matter and supersedes and extinguishes any other agreement, document or pre-contractual statement relating to the same subject matter.” Finally, Motiva attached Purchase Order No. 4700003874 dated October 16, 2012, for labor services, between “Motiva Enterprises LLC (Herein called “Buyer”)” and “River Parish Maintenance” as the Vendor.

Thus, under La. R.S. 23:1061(A)(3), we find that . Motiva succeeded in submitting evidence that it was a “Buyer” as listed in the written contract between Shell Oil and RPM, Mr. Louque’s immediate employer. Accordingly,-we find that Motiva presented sufficient evidence that, pursuant to the contract at issue, it is a “Buyer ... involved in the Services performed hereunder in Louisiana,” and, as such, was Mr. Louque’s statutory employer within the meaning set forth in La. R.S. 23:1061. We, thus, affirm the trial court’s grant of summary judgment on that issue.

The Louques further argue that our previous finding regarding Motiva’s exception of no right of action is the law of the case and precludes our review of this issue. That policy applies against those parties involved in the litigation at the time of the prior decision and who have had their day in court. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). The law-of-the-case doctrine avoids indefinite reliti-gation of the same issue, allows consistent results in the same case, fairness to the parties involved, and affords an opportunity for argument and decision on the issue. Id.

| nObviously, the present appeal concerns the same parties involved in the same litigation as the previous appeal. However, the case is in a different posture than in our earlier opinion. Previously, this Court found that Motiva had not presented sufficient evidence at the hearing on the exception of no right of action that it was named as a Buyer or Affiliate in the contract at issue; however, after remand for further discovery, Motiva was able to establish with competent evidence that it is a Buyer or Affiliate in the contract. Accordingly, this Court’s prior ruling did not create the law of the case.

Furthermore, the Louques allege that the trial court erred in granting summary judgment because their allegations raise at least a genuine issue of material fact that the incident that caused Mr. Lou-que’s death was an intentional tort. La. R.S. 23:1032(B) provides an exception to the rule that workers’ compensation is the exclusive remedy for an employee injured at work, which reads: “Nothing in this Chapter shall affect the liability of the employer ... or employee of such employer ... to liability, civil or criminal, resulting from an intentional act.” In their brief, the Louques allege that Motiva’s intentional actions were “substantially certain” to injure Mr. Louque.

In order to prevail at trial, the Louques must show that the defendant’s procedure for loading the round cylinders onto a flatbed truck without safety rails was an intentional act, which was “substantially certain” to result in injury to Mr. Louque. The Louques contend that the facts of this case demonstrate that a genuine material issue of fact exists.

In Bazley v. Tortorich, 397 So.2d 475, 480 (La. 1981), the Supreme Court held that the words “intentional act” mean the same as “intentional tort” in reference to civil liability. The court defined the meaning of intent as follows: “[t]he meaning of ‘intent’ is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from |inhis conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” Id. at 481.

In White v. Monsanto Co., 585 So.2d 1205 (La. 1991), the Louisiana Supreme Court further explained the meaning of “intentional act” under La. R.S. 23:1032(B) as above, by adding the following statement:

Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.

Id. at 1208 citing Bazley, 397 So.2d at 481.

The “intentional act” loophole in the exclusive remedy provision is a narrow one. The term “substantially certain” has been held to mean “nearly inevitable,” “virtually sure,” and “incapable of failing.” Bridges v. Carl E. Woodward, Inc., 94-2675 (La.App. 4 Cir. 10/12/95), 663 So.2d 458, 462-65, writ denied, 95-2735 (La. 1/26/96), 666 So.2d 674. “It requires more than a reasonable probability, even more than a high probability, that an accident or injury will occur.” Id. “Thus, even though a defendant’s conduct is negligent, or even grossly negligent, that conduct is not such as will allow the legal imputation of intent.” Hood v. South Louisiana Medical Center, 517 So.2d 469, 471 (La. App. 1st Cir. 1987).

Here, the judgment is silent with respect to the “intentional act” exception. It is well-settled, however, that where a judgment is silent as to any part of a demand or any issue that was litigated, that demand is deemed rejected. Southern Marine Sales, Inc. v. Matherne, 05-181 (La.App. 5 Cir. 11/29/05), 915 So.2d 1042, 1047; Mooers v. Sosa, 01-286 (La.App. 5 Cir. 9/25/01), 798 So.2d 200. Upon de novo review, we find that the Louques have offered no competent evidence to establish the actual knowledge and “substantial certainty” required for La. R.S. 23:1032, which makes the grant of summary judgment as to this issue appropriate.

_JjjIn their fifth assignment of error, the Louques contend that the trial judge has not yet decided which forum’s law governs. We note, however, that, in his ruling, the trial judge stated that Motiva seeks summary judgment that it is Mr. Louque’s statutory employer and “immune from tort liability pursuant to Louisiana Workers’ Compensation law.” Thus, we are inclined to believe that the trial judge has decided that Louisiana law governs at least the workers’ compensation issues in Mr. Louque’s case.

Pursuant to La. C.C. art. 3543, Louisiana law governs where there are “issues pertaining to standards of conduct and safety ... [and] the conduct that caused the injury occurred in this state and was caused by a person 'who was domiciled in, or had another significant connection with, this state.” La. C.C. art. 3543; Cunningham v. Northland Ins. Co., 00-888 (La. App. 5 Cir. 9/14/00), 769 So.2d 689, 690. Here, Mr. Louque, a Louisiana domiciliary, was employed by a Louisiana company at a Louisiana facility. There is no error in the trial court’s finding that the workers’ compensation fesues herein are governed by Louisiana law.

Conclusion

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Motiva.

AFFIRMED.

      . Mr. Louque and a co-worker were using a forklift to load 1-ton cylindrical pumps onto a flatbed truck.

      . Assertion of "statutory employer" status under La. R.S. 23:1032 is an affirmative defense, which must be specifically pled in an answer and must be proven by the mover. La. C.C.P. art. 1005; Walls v. Am. Optical Corp., 98-0455 La. 9/08/99, 740 So.2d 1262, 1267; Berry v. Halston Well Serv., Inc., 488 So.2d 934 (La. 1986).

      . La. C.C.P. art. 966 was amended by 2015 Act 422, § 2, effective January 1, 2016. However, the amendment of La. C.C.P. art. 966, "shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date.” Because this matter was pending adjudication before the effective date of the amendment, the prior version of La. C.C.P. art. 966 was the law in effect when Motiva's motion for summary judgment was filed on November 24, 2015.

      . See fint. 3, supra.


author: JOHNSON, J,

text:
    STATE of Louisiana v. Simon A. SHOKR
    NO. 16-KA-337
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Rachel L. Africk, Lynn Schiff-man
    COUNSEL FOR DEFENDANT/APPELLANT, SIMON A. SHOKR, Prentice L. White
    DEFENDANT/APPELLANT, SIMON A. SHOKR, In Proper Person
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J,

|, Defendant, Simon Shokr, appeals his convictions for. aggravated rape, sexual battery and indecent behavior with a juvenile on the basis, there was insufficient evidence. For the reasons that follow, we affirm.

Defendant was indicted by a grand jury on February 28, 2013 and charged with one count of aggravated rape of a minor under the age of 13, in violation of La. R.S. 14:42 (count one); one count of sexual battery upon a minor under the age of 13, in violation of La. R.S. 14:43.1 (count two); and one count of indecent behavior with a juvenile, in violation of La. R.S. 14:81 (count three). The first two counts were alleged to have occurred between March 2008 and March 2012, when the victim was between the ages of nine and twelve. The third count was alleged to have occurred between March 2008 and October 2012, when the victim was between the ages of nine and thirteen. Defendant pled not guilty and proceeded to trial on March 2, 2016. A 12-person jury found Defendant guilty as charged on all three counts.

The trial court subsequently sentenced Defendant to life imprisonment on count one, 50 years on count two, and seven years on count three, all to be served consecutively. All three sentences were ordered to be served at hard labor, and the sentences on counts one and two were imposed without the benefit of parole, probation or suspension of sentence. The trial court further imposed a $1,000 fine on each count.

FACTS

S.K. was two years old when her parents divorced in 2001. In the same year, her mother, H.K., started dating Defendant and the two moved in together. In |22005, H.K. and Defendant had a son. In October 2012, H.K. and Defendant split up, but remained friends for the sake of their son. About one week after H.K. and Defendant split up, S.K., who was in eighth grade at the time, confided in her mother that Defendant was doing inappropriate things to her, but she did not elaborate as to what exactly had happened. H.K. testified that she took no action because she was in denial. A few days later, the Department of Child and Family Services and then the Jefferson Parish Sheriffs Office contacted H.K. regarding S.K.’s sex abuse allegations.

S.K. testified at trial that Defendant, who was a father figure to her when she was young, started abusing her sometime between second and fourth grade. She testified that Defendant touched her and did inappropriate things to her in her bedroom on many occasions. She explained that Defendant routinely came into her room, multiple times a week, when her mother was sleeping and would touch her breasts with his hands or touch her vagina. S.K stated that Defendant would make her put her mouth on his penis and he would sometimes put. his mouth on her breasts and vagina. She indicated that Defendant would kiss her and put his tongue in her mouth. She further testified that “one time he stuck his penis in [her] butt, the tip of it, and it hurt.” S.K. stated that Defendant threatened to kill her with a knife from their kitchen if she told anyone.

S.K. testified that she first disclosed the abuse to two of her friends when she was in seventh grade, but did not tell any adults because she knew “something bad would happen if [she] told.” When she was in eighth grade, she confided in her boyfriend, who encouraged her to tell her mother about the abuse. Thereafter, S.K. told her mother that Defendant was doing inappropriate things to her. She then told two of her friends at school about the abuse.

At some point, S.K. was called into the school counselor’s office and questioned about the abuse. S.K. then spoke to the Department of Family Services, | ¡which contacted the Jefferson Parish Sheriffs Office (JPSO). S.K. was subsequently interviewed at the Child Advocacy Center (CAC) and examined by Anne Troy, a nurse practitioner, at Children’s Hospital. S.K’s trial testimony was consistent with the information she relayed about the sexual abuse during the CAC interview and the history she gave to Ms. Troy during her examination.

After speaking with S.K. after her CAC interview, the JPSO issued an arrest warrant for Defendant, and he was arrested on November 8, 2012. Defendant testified at trial and denied molesting S.K. He explained that when he returned from a business trip to Australia, his relationship with H.K. was not very good and he was concerned with H.K.’s relationship with her former husband, S.K’s father. Defendant testified that he thought S.K. was lying about the abuse so she could get him out of her life and get her father back.

ISSUES

Defendant presents two issues on appeal. First, through counsel and in his pro se brief, Defendant argues the evidence is insufficient to convict him of all three offenses. He contends the only evidence against him was the unsupported allegations of S.K. Second, in his pro se brief, Defendant challenges the qualification of Anne Troy, a nurse practitioner, as an expert in the field pf child sexual abuse.

DISCUSSION

Sufficiency of the Evidence

Defendant maintains the evidence is insufficient to support his convictions for aggravated rape, sexual battery and indecent behavior with a juvenile. He asserts S.K’s testimony was not supported by any other witnesses and there was no' physical evidence against him. Defendant alleges S.K. made false accusations of sexual abuse to remove him from' the home so she could reunite her parents.

14When the issue of sufficiency of evidence is raised on appeal, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but rather the reviewing court is required to consider the whole record and determine whether any rational- trier of fact could have found guilt beyond a reasonable doubt. State v. Gonzalez, 15-26 (La.App. 5 Cir. 8/25/15); 173 So.3d 1227, 1282, writ denied, 15-1771 (La. 9/23/16); 2016 La. LEXIS 1955.

Defendant was convicted of aggravated rape, sexual battery and indecent behavior with a juvenile. At the time of the offense, aggravated rape was defined, in pertinent part, as “a rape committed. . .where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed... .[w]hen the victim is under the age of thirteen years.” La. R.S. 14:42(A)(4). When the rape involves vaginal or anal intercourse, any penetration, however slight, is sufficient to complete the crime. La. R.S. 14:41(B). Oral sexual intercourse is defined as:

(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender.
(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

La. R.S. 14:41(C).

At the time of the offense, sexual battery was defined, in pertinent part, as the intentional touching of the anus or genitals of the victim by the offender or of the offender by the victim using any instrumentality or any part of the body of the offender or the victim without the victim’s consent or |Bwhen the victim is not the spouse of the offender, is under the age of 15, and is at least three years younger than the offender. La. R.S. 14:43.1(A). In this case, Defendant was specifically charged with sexual battery of a minor under the age of 13.

Indecent behavior with a juvenile is defined, in pertinent part, as the commission of any “lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons” “with the intention of arousing or gratifying the sexual desmes of either person.” La. R.S. 14:81(A)(1). A lewd or lascivious act has been defined as “one which tends to excite lust and to deprave the moral with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner.” State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06); 934 So.2d 280, 291, writ denied, 06-1894 (La. 4/20/07); 954 So.2d 154. Additionally, the statute’s definition of a lewd and lascivious act “encompasses not only the physical touching of the victim in an indecent manner, but also ‘indecent sexual displays in the presence of children under the age of seventeen.’ ” State v. Interiano, 03-1760 (La. 2/13/04); 868 So.2d 9, 15.

Indecent behavior with a juvenile is a specific intent crime for which the State must prove the offender’s intent to arouse or gratify his sexual desires by his actions involving a child. State v. Borden, 07-396 (La.App. 5 Cir. 5/27/08); 986 So.2d 158, 166. Specific intent to commit indecent behavior with a juvenile need not be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Domangue, 12-760 (La.App. 5 Cir. 5/23/13); 119 So.3d 690, 696.

S.K. testified at trial that she was born in March 1999, making her 16 years old at the time of trial, between the ages of nine and twelve at the time of counts | fione and two, and between the ages of nine and thirteen at the time of count three. During her CAC interview, which was played for the jury, S.K. stated that Defendant started sexually abusing her in the fourth grade and that the last time anything happened was when she was 13 years old in eighth grade. She testified that the abuse occurred regularly, multiple times a week, with different things occurring each time.

S.K. explained that Defendant would come into her room at night while her mother was sleeping. Sometimes Defendant would just look at S.K. and other times he would touch her. S.K. described incidents where Defendant touched her breasts and vagina, both over and under her clothes, with his hands. On other occasions, Defendant would make S.K. put her mouth on his penis and he would put his mouth on her bare breasts and vagina. S.K. further testified that Defendant put the tip of his penis in her butt. During the CAC interview, S.K. explained that Defendant did this more than one time. S.K. testified that sometimes when these incidents occurred, something would come out of Defendant’s penis that he put into a napkin.

During the CAC interview, S.K. also stated that Defendant sometimes took his penis out of his pants and rubbed it with his hand. He would then take S.K’s hand and put it on his penis and make her do the same thing. Defendant also kissed S.K. on the mouth and put his tongue in her mouth, during which time he would touch her on her breasts and vagina. S.K. explained that she would push Defendant away and tell him to stop.

Defendant argues that S.K. is not believable because there is no corroborating evidence, either physical or supporting witnesses.

The credibility of a witness, including the victim, is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Gonzalez, 173 So.3d at 1233. In the absence of | .¡-internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Hernandez, 14-863 (La. App. 5 Cir. 9/23/15); 177 So.3d 342, 351. In sex offense cases, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. Id.

It is the role of the factfinder to weigh the respective credibility of the witnesses; thus, the appellate court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Alfaro, 13-39 (La.App. 5 Cir. 10/30/13); 128 So.3d 515, 525.

Defendant does not argue there are any internal contradictions in S.K’s testimony, but rather argues that she should not be believed without any supporting evidence. Convictions of aggravated rape and other sexual abuse offenses have been upheld in the absence of medical evidence or other corroborating evidence. State v. Hernandez, 177 So.3d at 352. In Hernandez, this Court upheld the defendant’s conviction for aggravated rape where there was no physical evidence of the offense, noting that the victim’s testimony was enough to sustain the defendant’s conviction. Additionally, in State v. Roca, 03-1076 (La.App. 5 Cir. 1/13/04); 866 So.2d 867, writ denied, 04-583 (La. 7/2/04); 877 So.2d 143, this Court affirmed the defendant’s convictions for aggravated rape and molestation of a juvenile despite the lack of medical evidence when the victim testified at trial that the defendant forced her to engage in various sexual acts, including fondling of genitals, sexual intercourse and oral copulation. Further, in State v. Gonzales, swpra, this Court found the victim’s testimony was enough to establish the ^essential elements of aggravated rape and sexual battery so as to find sufficient evidence to support the defendant’s convictions.

In the present case, S.K’s testimony establishes each element of the three offenses for which Defendant was convicted. She testified as to acts committed by Defendant that constitute anal and oral sexual intercourse. She also testified about Defendant touching her breasts and vagina with his hands and making her touch his penis with her hand, all of which constitute sexual battery. See State v. Perkins, 11-162 (La.App, 5 Cir. 12/28/11); 83 So.3d 250, 257, where this Court found that the victim’s testimony that the defendant had touched and rubbed her vagina with his hand was sufficient to sustain a conviction for sexual battery. S.K. further testified that on other occasions Defendant rubbed his exposed penis in her presence, and that he kissed her and put his tongue in her mouth while touching her breasts and vagina—behavior which constitutes indecent behavior with a juvenile. See Perkins, supra, evidence that the defendant held the victim down and kissed her on her neck was sufficient to sustain a conviction for indecent behavior with a juvenile; State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03); 858 So.2d 35, the defendant’s action of taking the victim’s hand and placing it on his private then kissing the victim and putting his tongue in her mouth was sufficient to support the defendant’s conviction for indecent behavior with a juvenile; and State v. Bahm, 490 So.2d 384, 387 (La. App. 5th Cir. 1986), evidence that the defendant exposed his penis to the victim and rubbed her genitals supported a conviction for indecent behavior with a juvenile.

In addition to S.K.’s testimony, Ms. Troy, who qualified as an expert in child maltreatment and pediatrics with a sub-specialty in physical and sexual abuse of children, testified that she examined S.K. in December 2012. During the examination, Ms. Troy noticed superficial cuts to S.K.’s wrists at which time S.K. 19admitted to cutting herself. Ms. Troy testified that cutting is a behavior associated with sexual abuse.

Although Defendant testified that he never sexually molested S.K. and suggested that S.K. was lying so she could “get back with her father,” the jury clearly chose to believe the testimony of S.K. and that of the other State witnesses, including the expert testimony of Ms. Troy. It is not this Court’s function to second-guess the credibility determinations of the trier-of-fact. Alfaro, 128 So.3d at 525.

Viewing the evidence in a light most favorable to the State, we find that a rational trier of fact could have found Defendant guilty beyond a reasonable doubt of aggravated rape, sexual battery and indecent behavior with a juvenile. Thus, we find there was sufficient evidence to support all three of Defendant’s convictions.

Qualification of Anne Troy as Expert

In his pro se brief, Defendant argues the trial court erred in qualifying Anne Troy as an expert witness in the field of child sexual abuse. He contends the State failed to provide the defense with a copy of her curriculum vitae prior to her testimony in contravention of discovery rules, resulting in a “trial by ambush.” He asserts he was prejudiced by Ms. Troy’s testimony because it was used to unduly bolster S.K.’s testimony.

We find Defendant has failed to preserve this issue for appeal because he failed to object to Ms. Troy’s qualification as an expert or to her testimony. In order to preserve the right to appeal an alleged trial court error, a party must state a contemporaneous objection with the occurrence of the alleged error as well as the grounds for the objection. State v. Gonzalez, 173 So.3d at 1235. The purpose behind the contemporaneous objection rule is to put the trial court on notice of an alleged irregularity so that it may cure the problem. It is also intended to prevent a [ mdefendant from gambling for a favorable verdict and then resorting to appeal on errors that might have easily been corrected by an objection. Id.

The record shows that Defendant never objected to the testimony of Ms. Troy. Further, he never challenged her qualifications or the reliability or admissibility of her testimony as it related to child sexual abuse. In fact, prior to the court accepting Ms. Troy as an expert, defense counsel specifically stated that Ms. Troy’s “qualifications certainly qualify her to testify in this case.” The failure of a defendant to raise an objection to the admissibility and reliability of an expert’s testimony constitutes a waiver of such an objection and precludes consideration of the issue on appeal. Gonzalez, 173 So.3d at 1236. Accordingly, we find Defendant waived any objection to Ms. Troy’s testimony.

ERRORS PATENT

Our review of the record for errors patent in accordance with La. C.Cr.P. art. 920 reveals two errors that require corrective action. First, we find the trial court imposed illegal sentences on counts one, aggravated rape, and two, sexual battery. In sentencing Defendant, the trial court imposed a $1,000 fine on each of the three counts. However, a fine is only authorized for count three, indecent behavior with a juvenile. La. R.S. 14:81(H)(1). The appellate court may correct an illegal sentence at any time. La. C.Cr.P. art. 882. Accordingly, we amend Defendant’s sentences on counts one and two to delete the imposed fine and order the 24th Judicial District Clerk of Court to transmit notice of the amendment to the officer in charge of the institution to which Defendant has been sentenced and to the Department of Corrections’ legal department.

|! ¶ Second, there is a discrepancy between the sentencing transcript and the State of Louisiana Uniform Commitment Order (UCO). As noted supra, the transcript prevails, see State v. Lynch supra. The UCO reflects the date of the offenses as March 24, 2008. However, the record shows the correct dates of the offenses were between March 24, 2008 and March 23, 2012 for counts one and two, and between March 24, 2008 and October 24, 2012 for count three. Additionally, the UCO indicates the sentence is to be served without parole, probation or suspension of sentence. But, the sentencing transcript shows that only the sentences on counts one and two are to be served without these benefits. Therefore, we remand this matter for the correction of the UCO regarding the date of the offenses and the restriction of benefits. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142. Additionally, the 24th Judicial District Clerk of Court is ordered to transmit the corrected UCO to the officer in charge of the institution to which Defendant has been sentenced, as well as the Department of Corrections’ legal department. See State ex rel. Roland v. State, 06-244 (La. 9/15/06); 937 So.2d 846.

DECREE

For these reasons, Defendant’s convictions for aggravated rape, sexual battery and indecent behavior with a juvenile are affirmed. Defendant’s sentences on counts one and two are amended to delete the imposed fine and are affirmed as amended. Defendant’s sentence on count three is affirmed. Further, we remand this matter for the correction of the State of Louisiana Uniform Commitment Order.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS ONE AND TWO AMENDED AND AFFIRMED AS AMENDED; SENTENCE ON COUNT. THREE AFFIRMED; COMMITMENT REMANDED FOR CORRECTION.

      . La. R.S. 14:42 was subsequently amended in 2015 by Act No. 184, to rename the offense from aggravated rape to first degree rape.

      . The victim and any witness whose name can lead to the victim’s identity, La., parent, sibling, or relative with the same last name as the victim, are identified by initials under the authority of La. R.S. 46:1844(W)(l)(a), which protects the identity of minor victims of sex offenses.

      . This specific age element is strictly for the harsher sentencing provision under La. R.S. 14:43.1(0(2).

      . We note that while the commitment reflects that the trial court imposed a $1,000 fine only on count one, the sentencing transcript indicates the trial court imposed a $1,000 fine on each of the three counts, Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

      . We recognize that La. R.S. 14:81(H)(2), the penalty provision for indecent behavior with a juvenile under the age of 13, does not authorize a fine. However, unlike the aggravated rape and sexual battery charges, the indictment did not specifically charge Defendant with indecent behavior with a juvenile under the age of 13. In fact, this offense was alleged to have occurred when the victim was between the ages of nine and thirteen. Additionally, the jury’s written verdict found Defendant guilty of indecent behavior with a juvenile, which is not dependent on the victim being under the age of 13. Thus, we find the applicable sentencing provision is the more general one under La. R.S. 14:81(H)(1), which provides for a fine of not more than $5,000.