author: STEWART, J. DREW, J.,

text:
    STATE of Louisiana, Appellee v. Charles HARRIS, Appellant.
    No. 44,613-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.
    Rehearing Denied Oct. 22, 2009.

      Burnes, Burnes & Talley, by Dmitrc I. Burnes, Alexandria, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Tammy G. Jump, Assistant District Attorneys, for Appellee.

      Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

| ,The defendant, Charles Harris, was convicted of attempted second degree murder and sentenced to 15 years of imprisonment without benefits. Arguing that the verdict was contrary to the law and evidence, that the jury was given erroneous instructions, and that he received ineffective assistance of counsel, the defendant appeals his conviction. For the reasons that follow, we affirm the defendant’s conviction.

FACTS

By bill of information, the defendant was charged with attempted second degree murder of Lorenzo Stafford on September 23, 2006. The incident occurred in the area of Washington Street in Ringgold. Officer Nathaniel Coe of the Ringgold Police Department and Deputy Justin Sullivan of the Bienville Parish Sheriffs Department responded to a call reporting a fight and shots fired. They were met by a woman, Darnell Arrington, who reported that Stafford had barricaded himself in a trailer on the property. They found the defendant on the ground by a car parked nearby. There was blood in the car. Harris said that Stafford had beat him on the back with a shotgun. Arrington then called out for help stating that Stafford had been shot. He was in the trailer with a large hole in his right lower back area. Blood was all over the floor of the trailer. Stafford said that Harris shot him with a sawed-off shotgun that had both ends cut off. Harris admitted to Officer Coe that he shot Stafford. He explained that he owed Stafford money and that he had thought Stafford was going to kill him.

|2Photographs taken of the scene show a car with the driver’s side door open and blood along the right front and back of the driver’s seat area. Two cell phones and some keys were in the grass by the vehicle. The officers did not find the sawed-off shotgun that night.

Both men were transported to a Minden hospital. Chief Deputy Randy Price of the Bienville Parish Sheriffs Office continued the investigation by attempting to interview Harris, who was in the process of being discharged and said by a nurse to be alert and responsive. However, Harris would not make eye contact with Price and acted as if he were in severe pain. Stafford, who had life-threatening injuries, was transferred to LSU Medical Center in Shreveport where he underwent surgery to remove his spleen and repair his diaphragm. His treating physician, Dr. Cuth-bert Simpkins, opined that the gunshot appeared to have been made at close range as the wound was a well circumscribed injury, with many pellets in the flank area.

When Stafford was able to give a statement on October 3, 2006, he described the gun used to shoot him. A sawed-off shotgun matching the description given by Stafford had been found by the officers in a search of the scene the morning after the incident. The gun was recovered from the top of a shed on the property.

After his arrest, the defendant waived his Miranda rights and gave a recorded statement which was played for the jury. The defendant stated that he had borrowed $4,500 from Stafford in March and was to pay back $6,000 by mid-August. He claimed the money was delivered to him by masked |3men in a black Honda and that they threw the money in his car. When he did not have the money to pay back in August, he contacted Stafford and arranged a meeting. At the designated spot he was met by masked men in a white van who blindfolded him, bound him with rope, roughed him up, and finally “gassed” him through a gas mask until he was unconscious. He claimed that he gave the men $3,000 on that occasion. A week later he arranged to meet Stafford by Willis-Knighton South in Bossier City to pay the remaining $3,000. Again, Harris claimed he was met by men in a white van who forced him inside the van and roughed him up as a warning to be “more professional” next time he borrows money.

The defendant then claimed that Stafford contacted him demanding another $1,000 as “late charges.” The defendant offered to sell Stafford a piece of property with the $1,000 subtracted from the price. On the day of the incident, the defendant picked Stafford up to show him the property. He claimed that Stafford got into the car with a shotgun, which the defendant described in the statement as a single-barrel gun, and said that he was “going to bust it off a couple of times ... down in the hole.”

When they got to the property, Stafford stayed by the car while he walked to the trailer and spoke to someone about moving some debris off the property. The defendant returned to the car to find Stafford standing beside it with the shotgun on the top of the car. While discussing whether Stafford would buy the property, the defendant turned his back on Stafford to get a beer out of the trunk of the car. He claimed that is when Stafford hit him on the back with the gun and began beating him. A struggle ensued |4during which the defendant grabbed the gun, flipped it toward Stafford, and shot him in the back as Stafford tried to “haul ass” to the front of the car.

The defendant claimed that Stafford fell and then entered the driver’s side of the car, which he tried to start to back up over the defendant who was on the ground behind it. The defendant stated that he staggered to the car door with the gun in his hand. They struggled over control of the gun and the car until the defendant got the keys out of the ignition and threw them on the ground. He claims that Stafford “cold cocked” him on the forehead knocking him to the ground. He heard Stafford trying to cock the gun but nothing happened. The defendant opened his eyes and saw Stafford running to the trailer where he broke through the door. The defendant followed Stafford to the trailer. He peeped through a window and even opened the door, but he did not see Stafford inside. He went back to the car where he saw the keys on the ground, a cell phone and shotgun shells. He claimed that he then passed out.

Photographs taken of the defendant at the time of his arrest show some bruises and scabbed wounds alleged to be bite marks on his arms, but no visible injury to his back. The investigation recovered no beer from the trunk of the car and found no shell casings in the car or on the ground.

Stafford, a former teacher and now a used car dealer, knew the defendant. Stafford testified that the defendant had called him around September 21, 2006, to borrow $200. Harris came to Stafford’s house for the money and ended up borrowing $250. He said he would pay the money back the next day. Instead, the defendant called with an offer to sell 15Stafford a piece of property at a good deal. The defendant told Stafford that he would sell it for $3,000, even though his mother had paid $6,000 for the property.

On Saturday, September 23, 2006, Harris met Stafford at his home to drive him to the property. Stafford testified that Harris drove to the back of the property by an old shed and parked. He told him to “hold on” while he walked to the trailer on the property to talk to a man about removing some lumber. When he returned to the ear about five minutes later, he went to the trunk and took out a sawed-off shotgun. The defendant asked Stafford if he minded him shooting the gun and offered Stafford the opportunity to “bust off the first round.” Stafford declined. The defendant then told Stafford, who had commented on the smooth ride, that he could drive the car. Stafford agreed and began walking toward the driver’s side door when the defendant shot him in the back. Stafford testified that he was knocked to the ground by the impact. He rolled over and asked “What’s going on?” As he was trying to reload the gun, the defendant responded, “You fixing to die.” Stafford got out his cell phone and tried to take a picture and call 9-1-1. However, the defendant grabbed the phone, and Stafford grabbed for the gun as they began struggling. Stafford testified that he managed to get into the driver’s seat of the car and start the ignition, but the defendant pulled the door open and the men began hitting and biting each other. Once the defendant grabbed the keys, he got out of the car and “kind of shook off the licks.” He threw the keys down and came back toward the car door. Instead [(iof trying to hold the door closed, Stafford kicked the door into the defendant, knocking him to the ground.

Stafford then ran toward the trailer and broke through the door to get inside. Stafford testified that he tried looking for a phone but was exhausted and losing a lot of blood. He rested until he could crawl to the door, by which time the officers were on the scene. Stafford testified that he never had total control of the gun and that he did not hit the defendant on the back with the gun.

Kendrick Brown and Nerita Loud were both in the trailer when the incident occurred and confirmed that the defendant had come to the door to talk about moving some things off the property. Neither witnessed the shooting that occurred afterward.

A jury convicted the defendant as charged of attempted second degree murder. His motion for a new trial was denied. The trial court sentenced him to 15 years of imprisonment at hard labor without benefits. This appeal followed.

DISCUSSION

First Assignment of Error

The defendant contends that the verdict is contrary to the law and the evidence. He claims that the unbiased testimony of Darnell Arrington and Nerita Loud supports his claim of self-defense. This same issue was raised in the motion for new trial, which was denied. The defendant’s argument challenges the sufficiency of the evidence.

|7Review of a sufficiency of the evidence claim asks 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). This standard, which is embodied in La. C. Cr. P. art. 821, does not provide this court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Dotie, 43,819 (La.App. 2d Cir.1/14/09), 1 So.3d 833. We do not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

Rather, a reviewing court gives great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. In the absence of internal contradiction or irreconcilable conflict with physical evidence one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2d Cir.2/13/08), 975 So.2d 753.

To prove attempted second degree murder, the state must establish, beyond a reasonable doubt, that the defendant had the specific intent to kill a human being and that he committed an overt act in furtherance of that goal. La. R.S. 14:27 and La. R.S. 14:30.1; State v. Bishop, 2001-2548 (La.1/14/03), 835 So.2d 434. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Allen, 41,548 (La.App. 2d Cir.11/15/06), 942 So.2d 1244, writ denied, 2007-0530 (La.12/07/07), 969 So.2d 619. The trier of fact determines whether the requisite intent is present. Hill, supra.

The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Dooley, 38,763 (La.App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30; State v. Brooks, 36,855 (La.App. 2d Cir.3/05/03), 839 So.2d 1075, writ denied, 2003-0974 (La.11/07/03), 857 So.2d 517.

Viewing the evidence, as directed by Jackson, supra, and La. C. Cr. P. art. 821, in the light most favorable to the state, we find it sufficient for a rational trier of fact to have found the essential elements of attempted second degree murder proven beyond a reasonable doubt. The jury was presented with two conflicting versions of the incident from the defendant and the victim. It is not for this court to substitute its own appreciation of the evidence for that of the trier of fact, whose job it is to assess witness credibility and weigh the evidence. The jury’s verdict indicates that it believed Stafford’s version of events, which was corroborated by the physical evidence, and found the defendant’s story to be incredible. The evidence establishes that the defendant shot Stafford in the back at close range with a sawed-off shotgun. He told Stafford that he was “fixing to die.” He prevented Stafford from leaving in the vehicle or calling for help, |9and he pursued him as he fled to the trailer. He apparently hid the weapon on the top of the shed. The circumstances of this offense are sufficient to support a finding of specific intent to kill as required to prove attempted second degree murder.

Contrary to the defendant’s argument, neither the testimony of Nerita Loud nor Darnell Arrington supports his claim of self-defense. Neither woman witnessed the shooting. Loud testified that she was in the trailer watching movies with her boyfriend, Kendrick Brown, when the defendant knocked on the door to tell them about moving some things off the property. Loud also testified that she was looking out the windows and saw Stafford sitting on the trunk of the car down a “little ways” from the trailer. While speaking to Darnell Arrington on the phone, Loud told her that “it looked like they was about to fight or something down there.” However, she did not hear any argument or fighting. Loud did hear what she thought was a gunshot. She looked out the window again and saw Stafford running toward the trailer. She and Brown then ran out the back door.

Though Arrington testified that Loud told her the two men were fighting and that she heard a gunshot, Arrington was not present and did not witness the incident. Moreover, Loud, who was present and watching the two men through the windows of the trailer, did not testify that she saw them fighting; she testified only that it looked like they were about to fight.

We find no merit to the defendant’s claim that the guilty verdict was contrary to the law and evidence. The testimony provided by Loud and Arrington, neither of whom witnessed the shooting, does not support his Imclaim of self-defense. The defendant’s outlandish story could have been easily discredited by a rational trier of fact. Accordingly, we find no merit to this assignment of error.

Second and Third Assignments of Error

In his second assignment of error, the defendant contends that the trial court gave an incorrect definition of attempted second degree murder by including “intent to cause great bodily harm.” He asserts that the erroneous definition of attempted second degree murder was also reiterated by the state in its opening statement and closing argument. In his third assignment of error, he alleges an ineffective assistance of counsel claim due to defense counsel’s failure to object to the improper instruction.

An attempted second degree murder requires that the defendant possess the specific intent to kill and that he commit an overt act tending toward the accomplishment of that goal. La. R.S. 14:27; La. R.S. 14:30.1; State v. Harris, 26,269 (La.App. 2d Cir.9/21/94), 643 So.2d 779, writ denied, 94-2607 (La.2/17/95), 650 So.2d 251. See also State v. Butler, 322 So.2d 189 (La.1975). An intent to inflict great bodily harm is not an element of the crime. Harris, supra.

In instructing the jury on the elements of the crime, the trial court read from the definition of attempt set forth in La. R.S. 14:27, and then read from the definition of second degree murder set forth in La. R.S. 14:30.1(1), which includes the killing of a human being where the offender has specific intent to kill or to inflict great bodily harm. The trial court then gave the following instruction:

|n Thus, in order to convict the defendant of attempted second degree murder, you must find (1) that the defendant had specific intent to commit the crime of second degree murder; and (2) that the defendant did an act for the purpose of and tending directly toward the commission of the crime of second degree murder.

Though the trial court did not specifically instruct the jury that attempted second degree could be found where there is specific intent to commit great bodily harm, the instruction had the effect of including that element in the definition of attempted second degree murder. Similar instructions have been recognized as erroneous in State v. Hongo, 96-2060 (La.12/02/97), 706 So.2d 419, and State v. Harris, supra, both cases addressing post-conviction relief claims.

The record shows that the trial court’s jury instructions were clearly erroneous. However, the defense made no objection to preserve the issue for appellate review. An irregularity or error cannot be availed of after the verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992). See State v. Belgard, 410 So.2d 720 (La.1982) and State v. Wilson, 28,403 (La.App. 2d Cir.8/21/96), 679 So.2d 963.

We note that an exception to the contemporaneous objection rule was made in State v. Williamson, 389 So.2d 1328 (La.1980), where a defendant’s conviction for second degree murder was reversed due to 112erroneous jury instructions on the elements of first and second degree murder and on responsive verdicts. The law pertaining to first and second degree murder had changed shortly before the offense, but the trial court, the prosecutor, and the defense counsel did not realize that the new law applied. The jury’s verdict under the erroneous instructions was not supported by the evidence, but it would have been a valid verdict under the correct law. Citing fairness, the court opted to entertain the defendant’s complaint on appeal even though the issue had not been preserved by an objection.

While Williamson, supra, involved wholly incorrect instructions, here the instructions included the correct elements but also included by reference the alternative incorrect element of intent to cause great bodily harm. The conviction obtained in response to the improper instructions in Williamson, supra, was not supported by the evidence. Here, the defendant’s conviction is supported by evidence sufficient to establish that he had the specific intent to kill, and the jury was instructed on that element of the crime.

Based on these distinctions, we are not compelled to apply the Williamson exception to consider matters not preserved for review on appeal. In addressing a similar claim of improper jury instruction raised in a post-conviction relief application, the supreme court made the following observation regarding appellate review of such claims urged on appeal without an objection having been made:

Although this case is before us via post-conviction proceedings because of trial counsel’s failure to object, we note that because we find that the instant error is not structural, it necessarily is not of such significance as to violate fundamental | ^requirements of due process, See State v. Williamson, 389 So.2d 1328 (La.1980), and thus a defendant must make a contemporaneous objection in order to preserve the error for direct review. State v. Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing) (limiting Williamson as it “should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection.”)

State v. Hongo, supra, FN. 3.

In the absence of a contemporaneous objection to the improper instructions, the issue has not been preserved for appellate review. Moreover, the defendant’s claim of ineffective assistance of counsel, which is also based on the improper jury instruction, is a matter more properly raised in an application for post-conviction relief in the trial court where there is the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. See State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

For these reasons, assignments of error two and three provide no basis for reversal of the defendant’s conviction on appeal. His claims may be asserted in post-conviction relief proceedings if he desires to pursue them.

CONCLUSION

For the reasons stated, the defendant’s conviction for attempted second degree murder is affirmed.

AFFIRMED.

BROWN, Chief Judge, concurs for the reasons assigned by J. DREW.

DREW, Judge, concurs with written reasons.

DREW, J.,

concurring.

|,I write to concur with the result reached by the majority opinion, further writing here to note that since the jury apparently found the defendant an untruthful witness, and since the jury rejected defendant’s claim of self-defense and other outlandish testimony, and since the jury found that defendant shot the victim in the back at close range with a sawed-off shotgun, while lacking lawful provocation, then there is no realistic chance that the confusing “intent” arguments and instructions made any difference whatsoever in the guilty verdict. Any reasonable juror would conclude that the defendant had the specific intent to kill when he pulled the trigger of the shotgun at close range and said: “You’re going to die.” In other words, the verdict was surely unattributable to any trial error.

APPLICATION FOR REHEARING

Before BROWN, STEWART, DREW, MOORE and LOLLEY, JJ.

| Rehearing denied.

      . The record shows that the state gave an erroneous definition of the offense in its opening statement and closing argument. At the outset of trial, the state defined the elements of attempt and second degree murder then told the jury, “It was the fact that the defendant had the specific intent to kill or to inflict great bodily harm upon the victim that makes it Attempted Second Degree Murder.” In closing, the state argued that it had to prove the defendant had die intent to kill or inflict great bodily harm and that the "[c]ircum-stances tell you that he intended to kill him or inflict great bodily harm.” However, there was no objection by defense counsel to these misstatements of the law.


source: Caselaw Access Project

author: LOLLEY, J. CARAWAY, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Roderick CLARK, Appellant.
    No. 44,612-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, for Appellant.

      Charles R. Scott, II, District Attorney, Suzanne Morelock Owen, Geya D. Williams Prudhomme, Natalie Howell, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Roderick Clark, was convicted by a jury of aggravated battery, a violation of La. R.S. 14:34. He was sentenced to 7½ years of imprisonment at hard labor. Clark now appeals. For the following reasons, the conviction and sentence are affirmed.

FACTS

On April 27, 2007, Johnny and Ruth Clark were at their home in Shreveport, Louisiana when the Clarks’ eldest son, defendant, Roderick Clark showed up at their home. Johnny went outside to speak with Clark after he heard Clark hitting the side of the house. Clark said that he needed to come inside to use the restroom and Johnny allowed his son to come into the house. Clark had gotten into an argument with his father several days prior and this was the first time Johnny and Ruth had heard from the defendant.

After exiting the bathroom, Clark walked into the dining area to open his mail. Clark received mail at his parents home and occasionally resided there. He picked up a knife to open his mail. Although Johnny and Ruth’s testimony of the sequence of events differed slightly, it is clear that at some point Clark was holding a knife and walking towards Ruth. Johnny retrieved a dining room chair to distract his son and told him to leave. Ruth was able to run out of the house and had a neighbor call the police. The police arrived, eventually arresting Clark. Johnny suffered several injuries and was taken to the hospital.

|2On May 16, 2007, the defendant was charged with aggravated battery. A hearing on the issue of Clark’s sanity was held September 17, 2007, where he was found competent to proceed. On August 28, 2008, after a trial by jury, the defendant was convicted as charged of aggravated battery. The defendant was sentenced to 7½ years of imprisonment at hard labor. This appeal followed.

LAW AND DISCUSSION

Sufficiency of the Evidence

Clark argues that the evidence is insufficient to prove the charge as stated in the bill of information. Specifically, Clark contends that the testimony adduced at trial shows that the defendant had a “stick” or piece of a chair in his hand when officers arrived, but not a knife.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.01/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such eases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2d Cir.01/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App. 2d Cir.08/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.03/07/08), 977 So.2d 896.

In order to convict the defendant of aggravated battery, the state must prove that the defendant intentionally used force or violence upon the victim, that the force or violence was inflicted with a dangerous weapon and that the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. McGee, 37,919 (La.App. 2d Cir.12/10/03), 862 So.2d 452.

14Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Shreveport Police Corporal Benny Samuel was the first responding officer and testified at trial. As Cpl. Samuel approached the Clarks’ residence, he could hear a commotion and saw Ruth standing on the front porch. A second officer arrived, and Ruth warned both officers that her son had a knife. As Ruth and the two officers entered the home, Cpl. Samuels saw Clark hitting his father on the head with a broken piece of a chair. Corporal Samuels also noticed that the room was in disarray and that a broken knife was on the floor. At trial, Cpl. Samuels described the knife as a kitchen or steak knife that was broken in half and had blood on it.

Officer Angie Wilhite of the Shreveport Police Department was the second responding officer at the scene. She observed that Ruth appeared to be nervous and that the sounds of an altercation could be heard from outside. Upon entering the home, Officer Wilhite saw the defendant hitting his father with a “stick.” She used her taser gun on the defendant, then handcuffed him. Officer Wilhite saw an injury under the victim’s left eye, as well as lacerations to the top of his head. Officer Wilhite recovered two |sknives from the scene, and she too testified that one of the knives was broken and had some blood on the blade.

Shreveport Police Detective Jeff Brown also testified at trial, describing Ruth as upset and crying. Detective Brown observed broken furniture, blood, and knives scattered about and testified that Johnny’s face was disfigured and bloody.

Here, the record does reflect that Clark was seen by officers beating his father with a chair leg. However, the record also established that Clark physically approached his parents in a threatening fashion with knives earlier during the sequence of events. Johnny testified that when Clark approached him with the first knife, the knife Clark used to open his mail, he and Clark struggled for some time, and eventually Johnny got the knife away. Next, Johnny explained, Clark went back towards the kitchen and grabbed a butcher knife and then acted as though he was going to attack his mother. At some point after grabbing the dining room chair, Johnny lost consciousness while being attacked. There were no other witnesses to refute Clark’s use of a knife to inflict the wounds on his father. Ruth also testified that she ran from the house as Clark approached her with a knife.

In addition to the above testimony, direct evidence also established that Clark struck the victim, which Clark does not refute. Johnny’s injuries included a deep cut to his face which required stitches as well as wounds to his head which were consistent with wounds inflicted with a knife. In addition, contrary to what Clark asserts, two knives were recovered at the scene, one with blood on the blade.

| (iThe record establishes that Clark had initially been armed with a knife, and the evidence supports a jury’s conclusion that Clark used a knife to cut the victim and was guilty beyond a reasonable doubt of every essential element of aggravated battery as set forth by the bill of information. This assignment is therefore without merit.

Hearsay

In his second assignment of error, Clark argues that the trial court erred in that it continually, and over objection, allowed the state to offer hearsay statements. Specifically, Clark argues that the trial court erred in allowing police officers to recall what Ruth had said to them, after Ruth had already testified. Clark also argues that the trial court should not have allowed Det. Brown to recount Off. Angie Wilhite’s statements.

Hearsay is a “statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(c). Generally, such out-of-court statements are inadmissible. La. C.E. art. 802; State v. Logan, 36,042 (La.App. 2d Cir.06/14/02), 822 So.2d 657, writ denied, 2002-2174 (La.09/19/03), 853 So.2d 621. Hearsay evidence may be admissible under the exceptions provided by the Code of Evidence or other legislation, however. La. C.E. art. 802; State v. Zeigler, 40,673 (La.App. 2d Cir.01/25/06), 920 So.2d 949. If a statement is not introduced to prove the truth of the matter asserted, then that statement, by definition, is not hearsay. State v. Tate, 25,765 (La.App. 2d Cir.02/23/94), 632 So.2d 1213, writ denied, 1994-1218 (La.08/23/96), 678 So.2d 33.

17When an investigating officer testifies concerning events which lead to the arrest of a defendant, statements made to the officer during the course of the investigation are not hearsay, if they are merely offered to explain the officer’s actions. State v. Zeigler, supra. A trial court’s error in admitting evidence of a testifying police officer, when such testimony arguably contains hearsay, is subject to the harmless error analysis. Id. The reviewing court must find the verdict actually rendered by this jury was surely unattributable to the error. State v. Johnson, 1994-1379 (La.11/27/95), 664 So.2d 94; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

The three testifying officers related that Ruth had been standing outside of the residence, and had informed them that the defendant, her son, was inside attacking his father with a knife. The statement by Ruth explained the officers’ entry of the residence, in order to investigate the disturbance. State v. Zeigler, supra. Detective Brown testified as to Ruth’s recounting of events, as well as information related to him by Off. Wilhite, when he arrived at the scene. Detective Brown’s testimony explained his understanding of the events that had transpired, and subsequent investigation of the scene and was, therefore not, hearsay.

Nevertheless, even if the trial court erred in admitting the testimony, reversal is mandated only when there is a reasonable possibility that the | ^hearsay evidence might have contributed to the verdict. Id. In the instant case, a review of the record clearly shows that there was sufficient evidence to support Clark’s conviction, even without consideration of the questioned testimony. The officer’s testimony was harmless error, if anything, in that it placed unnecessary emphasis on the fact that knives were involved, which Ruth herself repeatedly identified throughout her testimony. Omission of Ruth’s statements to police, and of Det. Wilhite’s statements to Det. Brown, surely would still have resulted in sufficient evidence to convict. As discussed above, direct evidence of the defendant’s actions, combined with the physical evidence were sufficient to support the jury’s finding that the defendant was guilty as charged. Therefore, this assignment is without error.

Exclusion of Evidence

In his last assignment of error, Clark argues that the trial court erred in preventing Clark from introducing evidence that the family was unreasonably afraid of him, which led his father to attack. Clark asserts that he wanted merely to show that the family was overwrought and fearful because of past difficulties and that the family overreacted to Clark’s actions at the time of the offense.

A defendant has the right to present any and all relevant evidence bearing on his innocence unless prohibited by our federal and state | ¡^constitutions, by law, or by jurisprudence. State v. Harrison, 560 So.2d 450 (La.App. 2d Cir.1990). To be admissible, the evidence must be relevant to an issue material in the case. A material issue is one which is of consequence or importance to the case. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negate the commission of the offense and the intent. Id.; La. C.E. arts. 401, 402. Louisiana C.E. art. 103 provides in pertinent part that: “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [w]hen the ruling is one excluding evi-dence, the substance of the evidence was made known to the court by counsel.”

The evidence was excluded by the trial court on the basis of Clark’s failure to provide notice of a defense based upon mental condition, pursuant to La. C. Cr. P. art. 726. However, the substance of the testimony that Clark attempts to elicit was not proffered and therefore cannot be reviewed by this court. See McLean v. Hunter, 495 So.2d 1298 (La.1986). Nonetheless, from the record, and as Clark has argued in brief, we can deduce that the evidence would have only shed light on the victim’s state of mind. As such, the evidence was not relevant to either Clark’s commission of the offense or his intent. Because the evidence was irrelevant, the trial court did not err in disallowing its admission. Accordingly, this assignment has no merit.

CONCLUSION

For the foregoing reasons, Roderick Clark’s conviction and sentence are affirmed.

AFFIRMED.

CARAWAY, J., concurs and assigns reasons.

CARAWAY, J.,

concurring.

11While I concur in the ruling, I write to make clear that the defense objections to the hearsay statements of Ruth Clark’s were improperly overruled. “Generally, an explanation of the officer’s actions should never be an acceptable basis upon which to admit an out-of-court declaration when the so-called ‘explanation’ involves a direct assertion of criminal activity against the accused.” State v. Hearold, 603 So.2d 731, 737 (La.1992). However, from the direct testimony of Ruth Clark and the overwhelming circumstantial evidence, it was more than sufficiently established that a knife was used in the battery so that the admission of the hearsay evidence was harmless error.

      . We also point out that when the police arrived, the crime was ongoing according to the statements made by Ruth to the officers and could arguably fulfill the res gestae exception under La. C.E. art. 803(C)(4).

      . We note that in Zeigler, after overruling the hearsay objection, the trial court instructed the jury that the officer's testimony "was not to be accepted as to the truth of the declaration.” Zeigler, 920 So.2d at 954. Here, the trial court did not caution the jury. Furthermore, we are mindful of our reliance on Zeig-ler, as we do not suggest that all witness’ statements can overcome the hearsay objection. See e.g., State v. Hearold, 603 So.2d 731 (La.1992)


author: STEWART, J.

text:
    Larry L. TAYLOR, Patricia A. Taylor, and T.S.C., Inc., Plaintiffs-Appellants v. DOWLING GOSSLEE & ASSOCIATES, INC., James S. Dowling and West Viking Drive, L.L.C., Defendants-Appellees.
    No. 44,654-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 7, 2009.

      Harper Law Firm by Jerald R. Harper, Shreveport, for Appellants.
    Joseph W. Hendrix Hayes, Harkey, Smith & Counsel Cascio, L.L.P. by Thomas M. Hayes, III, Monroe, Walter 0. Hunter, Jr., Shreveport, for Appellees Dowling Gosslee & Associates, Inc. and James S. Dowling.
    Larry Feldman, Jr., New Orleans, for Appellee West Viking Drive, L.L.C.
    Before STEWART, PEATROSS and MOORE, JJ.
   STEWART, J.

hThe plaintiffs, Larry Taylor and TSC, Inc., (hereafter “TSC”), sued the defendants, Dowling, Gosslee & Associates, James S. Dowling, and West Viking Drive, L.L.C. (hereafter “WVD”) for damages and rescission of a sale of land from TSC to WVD. Taylor’s claims were dismissed on an exception of no right of action, and TSC’s claims were dismissed on summary judgment. The plaintiffs now appeal the dismissal of their claims and other rulings by the trial court on an exception of prescription and a motion in limine. For the reasons explained in this opinion, we affirm.

FACTS

This matter arises from a sale by TSC of 9.5 acres of land located in Bossier Parish to WVD on October 23, 2001. TSC is a corporation wholly owned by Taylor. WVD is a shell company used to purchase property for Builder’s Supply, a concrete production business owned by Grady Golden and Carleton Golden. WVD was represented in negotiating the purchase by James S. Dowling (hereafter “Dowling”), a manager of WVD and a principal in the real estate firm Dowling, Gosslee & Associates.

In the early part of 2001, WVD acquired a piece of property referred to in the record as the “Adger tract” located between Benton Road and the Red River. Taylor and TSC owned the land to the north and the west of the Adger tract. Seeking land adjacent to the Adger tract and additional frontage on the river, WVD through Dowling approached Taylor and began negotiations.

On February 22, 2001, WVD proposed a buy-sell agreement for the purchase of 24 acres of TSC’s property. This agreement included |2conditions requiring disclosure prior to closing of the buyer’s identity, the intended use of the property, and the likely vehicular traffic. The parties did not execute this agreement. WVD and TSC did execute a second buy-sell agreement dated March 13, 2001, for the proposed sale of the same acreage for a price of $240,000. This second agreement included a screening provision requiring the buyer to notify the adjacent landowner of its plans once it begins development and, upon request, to plant trees or bushes along the boundary. Due to TSC’s failure to clear title issues, WVD canceled the agreement.

The parties executed a third buy-sell agreement on July 26, 2001, for the sale of approximately 9.5 acres owned by TSC north of the Adger tract. This agreement did not provide for disclosure of the true buyer and did not include a screening provision.

Notably, all three buy-sell agreements included the following provision, referred to as a merger and integration clause, which states:

6. Entire Agreement: This Contract, including all exhibits and amendments attached hereto, if any, constitutes the entire understanding and agreement between Buyer and Seller and supersedes all prior and contemporaneous agreements, understandings, negotiations, offers, promises and discussions, whether oral or written. There are no warranties, representations or agreements between Buyer and Seller in connection with this Contract or transaction contemplated herein, except as set forth herein.

The sale closed on October 23, 2001, when the cash sale deed for a price of $112,160.40 was executed by Dowling on behalf of WVD and by Taylor as president of TSC.

|3In February 2002, Taylor filed an application with the Bossier City-Parish Metropolitan Planning Commission (“MPC”) to rezone 65 acres of land owned by him and TSC for the purpose of developing a residential subdivision. Most of the property that was the subject of the application was zoned 1-2 for heavy industrial uses. The property sold by TSC to WVD was also zoned 1-2. WVD through Dowling opposed the rezoning along with Builder’s Supply and other businesses operating in the area. Both the MPC and the Bossier Parish Policy Jury rejected the request to rezone the 1-2 property. The denial was upheld by this court in TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2d Cir.7/14/04), 878 So.2d 880, writ denied, 2004-2317 (La.11/19/04), 888 So.2d 203.

On March 17, 2003, TSC and Taylor filed suit against WVD, Dowling, and Dowling, Gosslee & Associates seeking rescission of the sale and damages. They alleged that during negotiations Dowling was made aware of the plans to develop the rest of the TSC and Taylor properties for residential and commercial purposes and that he made the following misrepresentations:

1. Knowing that Builder’s Supply intended to use the property as another location for its business, Dowling represented that the undisclosed purchaser wanted the property “solely for investment purposes” and had no immediate plans for development that would interfere with the petitioner’s development plans.
2. Dowling represented that he was interested in either becoming a partner in plaintiffs’ residential development or marketing the development through his firm, Dowling, Gosslee & Associates.
|43. Dowling stated on several occasions that the parties needed to hurry and close the sale so that they could move forward with the residential development plans.

The petition further alleges that after making these representations, Dowling and WVD opposed the rezoning application, effectively blocking the plaintiffs’ planned residential development and causing damages.

The defendants’ answers denied the allegations of the petition, and WVD specifically alleged no right of action by Taylor. On May 16, 2006, WVD filed a motion for summary judgment and an exception of prescription as to the claims asserted by the plaintiffs. Both were denied by the trial court.

In February 2006, petitioners filed an amended and restated petition alleging that Carleton Golden had conducted an unauthorized credit check on Taylor in violation of federal law and that as chairman of the Greater Bossier Parish Economic Foundation, Golden caused a letter opposing rezoning to be sent to the Bossier Parish Police Jury.

WVD filed two motions in limine regarding the new allegations. The first was to exclude evidence of actions alleged to have been taken by defendants after the sale to frustrate the rezoning of Taylor’s and TSC’s properties. The trial court denied the motion.

WVD’s second motion in limine along with an exception of prescription were filed in response to the credit check allegations. The trial | r,court granted this motion and exception. It determined that any cause of action based on the credit check would have prescribed and that the highly prejudicial nature of the evidence outweighed any probative value it might have in proving the allegations of fraudulent inducement of the sale.

Dowling and WVD also filed exceptions of no right of action as to Taylor. They argued that he was not a party to the sale between TSC and WVD and that he had no individual right of action to recover for acts damaging to the corporation. The trial court granted the exception, dismissing the Taylor’s claims.

Dowling and WVD then filed motions for summary judgment on TSC’s claims. They argued that the merger and integration provision in the buy-sell agreement precluded the introduction of parol evidence of any oral promises or agreements made in connection with the sale. They also argued that the alleged representations by Dowling cannot be considered fraud as they were promissory in nature and related to future use of the property. In response, TSC argued that the trial court had already rejected the same arguments in the first summary judgment and that proof of fraud would depend upon intent, which is a subjective fact that is not appropriate for consideration on summary judgment.

Rejecting TSC’s arguments, the trial court granted the motions for summary judgment and dismissed TSC’s claims. The trial court found that the merger and integration clause in the three buy-sell agreements had been reviewed by Taylor and his attorney no less than three times. Concluding that the alleged misrepresentations by Dowling did not amount to fraud, the Rtrial court described them as “vague conversations” and “vague promises” about development at some point in the future. Noting that other landowners had objected to the proposed zoning change, the trial court rejected the contention that the defendants’ opposition caused the damages alleged in the pleadings.

A final judgment dismissing TSC’s claims was rendered on February 11, 2009, and this appeal by TSC and Larry Taylor ensued. This opinion will address the assignments of error in the order in which the rulings complained of were rendered.

DISCUSSION

Motions in Limine and Exception of Prescription

Plaintiffs appeal the trial court’s “OPINION/ORDER” rendered on October 16, 2008, which denied WVD’s first motion in limine, but granted WVD’s second motion in limine and exception of prescription.

Although the ruling on the first motion in limine was in plaintiffs’ favor, they complain of the following “clarification” included in the reasoning and referring to the previous denial of an exception of prescription filed by WVD in 2006. The language at issue states:

If the court was inartful in its decision or ambiguous so as to cause confusion in the minds of the attorneys of record, the court will use this ruling as clarification. This case arises out of plaintiffs’ allegations that [the defendants] fraudulently or by misrepresentation induced plaintiffs to enter a contract. Plaintiffs are seeking rescission of the sale which occurred on October 23, 2001. This court expressly accepted plaintiffs’ argument that this is a suit in contract and, as such, had not prescribed. On further review of the record and transcript, be advised the “key” date would be March 12, 2002. Mr. Taylor maintains that he had no knowledge that West Viking Drive was opposed to the rezoning; however, if the evidence establishes that Mr. Golden expressed his opposition to the rezoning 17and the court is satisfied the defendant has met its burden of proof, then the court will entertain the appropriate motion as it relates to the tort action.

The trial court’s denial of WVD’s 2006 exception of prescription was based on a finding that plaintiffs were seeking rescission of the sale and related damages and that the applicable prescriptive period was five years under La. C.C. art. 2032. The trial court did not find that a tort claim had been asserted and did not make a ruling as to whether any tort claim had prescribed. The trial court’s “clarification” is not a reversal of its earlier ruling in plaintiffs’ favor on the 2006 exception of prescription. Appeals are taken from judgments, not the reasons for judgment. Greater New Orleans Expressway Com’n v. Olivier, 2002-2795 (La.11/18/03), 860 So.2d 22. The “clarification” is not a judgment and is not appealable. We find no merit to this assignment of error.

Next, plaintiffs argue that the trial court erred in granting a motion in limine excluding evidence regarding the credit check on Larry Taylor obtained by Carle-ton Golden in September 2000. Plaintiffs argue that this evidence is relevant as part of the res gestae of the alleged fraudulent conduct and that the credit check was made to obtain some unfair advantage in advance of negotiating the purchase of TSC’s land. Also, plaintiffs assert that the trial court erred in finding that the credit check as a cause of action had prescribed.

The plaintiffs’ supplemental/amended petition alleged that the credit check by Golden was “in violation of federal law and permitted defendants Rto improperly obtain financial information ... which they utilized to [Taylor’s] detriment in connection with their negotiations.” The pleading does not allege any specific damages pertaining to the credit check. Plaintiffs asserted before the trial court and in their appellant brief that they are not alleging a cause of action under federal law. Our reading of plaintiffs’ allegations and briefs is that the credit check is alleged as further evidence or acts of fraud rather than as a separate cause of action. As such, the proper inquiry is whether the evidence is relevant to the fraudulent inducement claim and not whether a cause of action based on the credit check is prescribed.

A motion in limine presents an evi-dentiary matter that is subject to the great discretion of the trial court. Heller v. Nobel Insurance Group, 2000-0261 (La.2/2/2000), 753 So.2d 841; Randall v. Concordia Nursing Home, 2007-101 (La.App. 3d Cir.8/22/07), 965 So.2d 559, writ denied, 2007-2153 (La.1/7/08), 973 So.2d 726. This great discretion extends to the trial court’s assessment of the probative value of evidence. Green v. Claiborne Elec. Co-op., Inc., 28,408 (La.App. 2d Cir.6/26/96), 677 So.2d 635. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time. La. C.E. art. 403.

The trial court found that evidence regarding the credit check would indicate a violation of federal or state law by Golden, would be highly prejudicial, and would far outweigh any probative value it might have. The exhibits show that the credit check was conducted in September 2000, | sinonths before Dowling approached Taylor on behalf of WVD about purchasing land. Though plaintiffs allege that the credit check was performed to give WVD an unfair advantage in negotiating the sale, neither the pleadings nor the record indicates that information obtained from the credit check played a part in the negotiations or is in any way related to the alleged misrepresentations by Dowling. For these reasons, we find no abuse of discretion by the trial court in granting the motion in limine to exclude the credit check evidence. These assignments regarding the trial court’s granting WVD’s motion in limine and exception of prescription as to evidence pertaining to the credit check lack merit.

No Right of Action

Plaintiffs argue that the trial court erred in granting the exception of no right of action filed by defendants against Taylor, individually. They argue that Taylor was damaged as a result of the fraud perpetrated by the defendants, that his claim is in tort, and that it does not require privity of contract.

Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681. The peremptory exception of no right of action tests whether the plaintiff has a legal interest in judicially enforcing the right asserted. La. C.C.P. art. 927(A)(6); Catfish Cabin of Monroe, Inc. v. State Farm Fire & Cas. Co., 35,710 (La.App. 2d Cir.2/27/02), 811 So.2d 222. It questions whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n., 94-2015 (La.11/30/94), 646 So.2d 885. Whether a plaintiff has a right of action is a question of law that is subject to de novo review on appeal. Waggoner v. America First Ins., 42,863 (La.App. 2d Cir.1/16/08), 975 So.2d 110.

The personality of a corporation is distinct from its members. La. C.C. art. 24. Only the corporation, not its members, may sue to recover any damages it has sustained. Catfish Cabin, supra; Yarbrough v. Federal Land Bank, 31,831 (La.App. 2d Cir.5/5/99), 732 So.2d 1244. A shareholder has no separate or individual right of action against third persons for wrongs committed against or damaging to the corporation. Glod v. Baker, 2002-988 (La.App. 3d Cir.8/6/03), 851 So.2d 1255, writ denied, 2003-2482 (La.11/26/03), 860 So.2d 1135. This same rule applies even where one person may be the sole shareholder. Id., citing Mente & Company v. Louisiana State Rice Milling Co., 176 La. 476, 146 So. 28 (1933). A person who does business in corporate form and reaps the benefits of incorporation cannot sue individually for damages incurred by the corporation. Glod, supra.

TSC was the seller in each of the buy-sell agreements and the cash sale deed. Taylor represented TSC as its president in these transactions. The suit seeks rescission of the sale and damages. Because Taylor individually was not a party to the sale, any right of action for rescission and related damages due to fraud belongs solely to the corporation, TSC.

Taylor argues that his claim for damages is a tort claim for fraud based on misrepresentations made by Dowling “to induce TSC and Taylor to sell property to WVD.” However, this argument ignores the fact that only TSC sold property to WVD and that Taylor acted only in his capacity as president |nof TSC and was not a party to the sale. Even as the sole shareholder, Taylor cannot sue individually for damages incurred by the corporation. Taylor sold nothing to WVD. Any loss suffered by Taylor resulted from the adverse ruling on his zoning application, which either blocked or delayed the residential development of land he owned in his individual capacity. The propriety of that determination has already been addressed in TSC, Inc. v. Bossier Parish Police Jury, supra, which affirmed the decision of the MPC and police jury to deny the application to rezone the 1-2 property.

For these reasons, we find that the exception of no right of action against Taylor was properly granted.

Summary Judgment

TSC asserts that the trial court erred in granting summary judgment and that it weighed the evidence and made credibility determinations in concluding that Dowl-ing’s misrepresentations amounted to vague promises that cannot be considered fraud. TSC also argues that there are genuine issues of fact and that it should be allowed to introduce parol evidence to prove fraud.

The defendants counter that TSC lacks proof that the alleged misrepresentations by Dowling caused TSC to sustain the damages alleged in its pleadings. They argue that the statements by Dowling were promissory in nature, pertained to future events, and no evidence exists that they were made with the intent not to perform. Thus, they cannot be considered fraudulent. Lastly, defendants argue that the merger and integration clause 11⅞⅛ the buy-sell agreement precludes the introduction of parol evidence to prove fraud.

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of all but specifically excepted actions. La. C.C.P. art. 966(A)(2). Summary judgments are subject to de novo review on appeal. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, then summary judgment shall be rendered. La. C.C.P. art. 966(B). The nonmoving party may not rely on the allegations in its pleadings to oppose the motion. If the nonmover fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact, and the motion should be granted. Dowles v. Conagra, Inc., 48,074 (La.App. 2d Cir.3/26/08), 980 So.2d 180.

When reviewing a motion for summary judgment, the court may neither weigh conflicting evidence nor make credibility determinations. DeMoss v. Pine Hills Golf & Country Club, Inc., 42,033 (La.App. 2d Cir.4/4/07), 954 So.2d 316. Summary judgment is seldom appropriate for determining subjective facts such as intent, but it may be granted when there is no issue of material fact concerning the pertinent intent. Solow v. Heard, McElroy & Vestal, L.L.P., 44,042 (La.App. 2d Cir.4/8/09), 7 So.3d 1269.

| ,oA party may obtain recovery when it has suffered a loss due to intentional fraudulent misrepresentation. Swann v. Magouirk, 157 So.2d 749 (La.App. 2d Cir.1963); Automatic Coin Enterprises, Inc. v. Vend-Tronics, Inc., 433 So.2d 766, 767 (La.App. 5th Cir.1983), writ denied, 440 So.2d 756 (La.1983). Fraud is a misrepresentation or suppression of the truth made with the intention to obtain an unjust advantage or to cause a loss or inconvenience to the other party. La. C.C. art. 1953. To vitiate consent, the error induced by fraud need not concern the cause of the obligation, but must concern a circumstance that substantially influenced the consent. La. C.C. art. 1955. In sum, the elements of an action for fraud include: (1) a misrepresentation, suppression, or omission of true information; (2) an intent to either obtain an unjust advantage or cause damage or inconvenience to the other party; and (3) the error induced by fraud must relate to a circumstance substantially influencing consent to the contract. Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

Fraud cannot be predicated on statements that are promissory in nature or relating to future events. Swann v. Magouirk, supra; Sun Drilling Products Corp. v. Rayborn, 2000-1884 (La.App. 4th Cir.10/03/01), 798 So.2d 1141, writ denied, 2001-2939 (La.1/25/02), 807 So.2d 840; Automatic Coin, supra. Failure to perform as promised or nonperformance of an agreement to do something at a future time alone is not evidence of fraud. Automatic Coin, supra. However, fraud may be based on promises made when there was no intention to perform as promised. Sun Drilling, supra. There must be an intent to defraud and actual or potential loss or damage to prove fraud. Id.

TSC seeks to attribute damages resulting from an adverse zoning decision to the defendants. It claims to have suffered economic losses and other damages caused by the defendants, who are alleged to have effectively blocked the residential development of TSC’s property. The gist of the complaint is that this would not have happened if the sale had not occurred, and there would have been no sale but for Dowling’s fraudulent misrepresentations. To succeed, TSC must prove that the defendants’ misrepresentations caused its damages. It will not be able to satisfy this element of its claim at trial.

TSC cannot prove that its alleged damages were caused by the defendants when it was an adverse zoning decision by the governing authorities that disrupted its plans. The MPC and the Bossier Parish Police Jury denied the application to rezone TSC’s and/or Taylor’s industrial property. This decision was upheld by the district court and this court. We concluded that the zoning denial was not arbitrary or capricious. Rather, the denial was based on the incompatibility of having a residential subdivision amidst an area of heavy industrial usage and “considerations of public health, safety, and general welfare.” TSC, Inc. v. Bossier Parish Police Jury, 38,717, p. 13, 878 So.2d at 887-888.

Though the crux of this matter is the adverse zoning decision, none of the alleged representations by Dowling related to zoning. Taylor stated in his deposition that he did not talk to Dowling about zoning. Dowling’s | ^deposition testimony, part of which was introduced by TSC in opposition to summary judgment, explains that WVD was seeking property zoned for industrial purposes because its eventual use of the land would not be compatible with residential development. The 9.5 acres purchased by WVD from TSC were zoned 1-2 for heavy industrial use and were located in an area where other landowners used property for industrial purposes. Nothing in the negotiations, buy-sell agreements, or cash sale deed restricts WVD or its undisclosed principal, Builder’s Supply, from continuing to make use of the 9.5 acres for industrial purposes or from opposing zoning changes that might impede its use of the property.

TSC will not be able to prove that the adverse zoning decision was attributable to WVD and Dowling. Other landowners objected, and the decision was supported by legitimate public welfare concerns. Any contention that the result would have been different if the sale had not occurred or if defendants had not opposed rezoning is speculation. Because TSC will not be able to prove that the sale to WVD and the alleged misrepresentations by Dowling were the cause of its damages, namely the delay or blockage of its residential development plans, summary judgment was appropriate.

The lack of evidence that the alleged misrepresentations constitute fraudulent inducement also supports summary judgment. That Dowling did | ^not disclose the identity of the true purchaser or its intended use of the property is not disputed. TSC was aware that Dowling through WVD was representing a purchaser who wished to remain anonymous. TSC decided to sell the 9.5 acres to an anonymous purchaser without knowledge of how it intended to use the 1-2 property in the future. TSC claims its consent was induced by Dowling’s assurance that the purchase was for “investment purposes” and that the purchaser’s use the property would not interfere with residential development of the remaining property. TSC also claims to have relied upon Dowling’s stated interest in becoming a partner in the development or in marketing the development through his firm. TSC alleges that Dowling urged it to hurry to close the sale so that they could proceed with the residential development.

The alleged fraudulent misrepresentations are promissory in nature and relate to future events about what might occur on the property sold to WVD and the property TSC planned to develop as a subdivision. We agree with the trial court’s assessment that the statements are vague. Any purchase of property can be described as being for “investment purposes.” Though TSC claims to have relied on Dowling’s assurance that the purchaser had no immediate plans for development that would interfere with its plans or that it would be years before the purchaser did anything, no time was specified to indicate whether these statements referred to two years, five years, or more before the purchaser made use of the property. Notably, there is no allegation that Dowling represented that the purchaser would never use the property in a manner incompatible with residential development.

117PowIing’s alleged misrepresentations about partnering in TSC’s development, marketing the property, and closing the sale so that TSC’s development plans could proceed are, at most, expressions of interest in taking some future action if the development proceeded. The statements do not evidence the formation of any partnership agreement or other contractual arrangement between Dowling and TSC that would engender genuine rebanee. At the time these representations were made, there was no firm plan for the residential development. Taylor admitted in his deposition that he did not give Dowling details about his development plans prior to the closing. Because the alleged misrepresentations are vague, promissory, and relating to future use of the property, we find that TSC will be unable to meet the burden of proving fraud.

We recognize that a finding of fraud depends largely upon intent, which is an issue that is typically not appropriate for summary judgment. Moreover, parol evidence may be admitted against a writing to prove a vice of consent. La. C.C. art. 1848. These considerations are not persuasive in this instance where the summary judgment is supported by the lack of a causal connection between the damages and fraudulent conduct alleged in the pleadings.

We also note that each buy-sell agreement included a “merger and integration” clause declaring the document to be the entire agreement between the parties and to supersede all other “agreements, understandings, negotiations, offers, promises and discussions, whether oral or written.” [mThe cash sale deed and the buy-sell agreement upon which it was based are clear and unambiguous. Nothing in the buy-sell agreement executed on July 26, 2001, and the resulting sale on October 23, 2001, refers to the alleged misrepresentations, restricts use by the purchaser of the 9.5 acres, or prohibits the purchaser from opposing zoning changes on neighboring property that might impede the use of its own 1-2 property. The first and second buy-sell agreements, which were signed by Taylor on behalf of TSC though ultimately not executed, indicate that TSC was aware that the purchaser’s use of the property might be incompatible with a residential development. The February 27, 2001, agreement makes the sale contingent on disclosure of the buyer, the intended use of the property, and the expected vehicular traffic. The March 18, 2001, agreement includes a provision requiring the buyer to provide screening by planting trees or bushes on a 10-foot wide strip of land when it begins development of the property. Joey Hendrix, an attorney representing TSC in the sale, explained in his deposition that the buffer zone was discussed in connection with the sale of a larger tract of property and the potential effect on TSC’s plans. They considered that a buffer might be necessary once the purchaser did whatever it planned to do on the property. Clearly, TSC contemplated during negotiations that the purchaser’s eventual use of the industrially zoned property would not necessarily be compatible with its residential development plans and considered ways to minimize the incompatibility between residential and industrial uses. Neither its failure to include in the final agreement or cash sale deed restrictions to protect its development |19plans nor its decision to sell 9.5 acres of its land to WVD is attributable to fraudulent inducement.

For these reasons, we find that there is no genuine issue of fact for trial and that summary judgment is appropriate as a matter of law.

CONCLUSION

We affirm the trial court’s judgment as explained in this opinion. Costs of appeal are assessed to the appellants.

AFFIRMED.

      . Patricia Taylor, who was then the wife of Larry Taylor, was also a plaintiff in the suit. The Taylors divorced during this course of litigation, and she was eventually dismissed as a party in this matter.

      . The petitioners also alleged that Dowling represented to them that he was acting as a real estate agent and failed to disclose that he was a member and manager for WVD. However, as early as the February 2001 buy/sell agreement, petitioners would have been aware of Dowling's status as it is clearly indicated on that agreement and the subsequent agreements.

      . La. C.C. art. 2032 provides, in relevant part, that an action for annulment of a relatively null contract must be brought within five years of discovery of fraud.

      . Plaintiffs asserted that Carleton Golden, owner of Builder's Supply and WVD, sought to improperly influence the zoning decision through his position as chairman of the Great Bossier Parish Economic Foundation by which he directed that organization to send a letter opposing rezoning to the police jury. However, any allegation of improper influence over the zoning decision should have been addressed in the case challenging that decision.

      . We note that the parties had been negotiating for about nine months. Two buy-sell agreements had been proposed without resulting in a sale.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Neal W. INSLEY.
    No. 09-393.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Asa A. Skinner, District Attorney — 30th JDC, Leesville, LA, for Plaintiff Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant Appellant, Neal W. Insley.
    Terry Wayne Lambright, Attorney at Law, Leesville, LA, for Plaintiff Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

| defendant, Neal W. Insley, was charged by bill of information with contributing to the delinquency of a minor by knowingly smoking crack cocaine with a juvenile twelve years of age, a violation of La. R.S. 14:92. On September 5, 2008, Defendant entered into a plea agreement: he pled guilty to the lesser included offense of attempted contribution to the delinquency of a juvenile and, in return, the State agreed to not charge him as a habitual offender.

On November 25, 2008, the trial court sentenced Defendant to serve three years at hard labor and to pay court costs; no fíne was given. On December 29, 2008, Defendant filed a motion to reconsider sentence, which was denied without a hearing or written reasons.

Defendant comes before this court on appeal to challenge the excessiveness of his sentence. We find merit to Defendant’s argument.

FACTS:

At the guilty plea hearing, the State recited the following factual basis for the plea:

It’s contended by the State of Louisiana on or about March 16th, 2007 in Vernon Parish, the defendant committed the offense of contributing to the delinquency of a minor and that he did knowlingly[knowingly] smoke crack cocaine with, with a juvenile in violation of R.S. 14:92. According to the bill, more specifically, it’s 14:92, Section (ll)(a).

DISCUSSION OF THE MERITS:

In his sole assignment of error, Defendant contends that his three-year sentence is unconstitutionally excessive. First, Defendant argues that the maximum sentence for attempted contribution to the delinquency of a juvenile under La. R.S. 14:92(A)(ll)(a) is two and one-half years when the crime involved the possession of cocaine. We note that the State’s brief concedes that this argument may have merit. ^Second, Defendant argues that “a three year sentence is excessive for an offender who has medical problems and is wheelchair bound.”

In his Motion to Reconsider Sentence, Defendant did not set forth a specific ground upon which his motion was based, stating only that his sentence was excessive. “Failure to ... include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E). Defendant did not argue that his sentence was excessive due to his medical condition or disability. Accordingly, the issue is not properly before this court and Defendant is relegated to a bare claim of excessiveness.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

|sTo decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Defendant pled guilty to attempted contribution to the delinquency of a juvenile by knowingly smoking crack cocaine with a juvenile twelve years of age, a violation of La. R.S. 14:92(A)(ll)(a). The penalty for this offense is governed by La. R.S. 14:92(E)(1), which provides:

Whoever is charged and convicted of contributing to the delinquency of a juvenile under Subparagraph (a) of Paragraph (11) of Subsection A of this Section shall be imprisoned at hard labor for not less than two years and for not more than ten years or imprisoned according to the sentence of imprisonment for the underlying felony, whichever is less.

Here, the underlying felony is the possession of cocaine, which carries a penalty of imprisonment with or without hard labor for not more than five years, and a possible fine of not more than five thousand dollars. La. R.S. 40:967(0(2). Thus, Defendant’s maximum sentencing exposure was five years, as this was the lesser penalty. Because Defendant pled guilty to the lesser included offense of attempt, his maximum sentencing exposure was further reduced.

[/The statute governing penalties for attempted offenses, La. R.S. 14:27(D)(3), provides as follows:

In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

As such, the penalty for attempted contribution to the delinquency of a juvenile by knowingly smoking crack cocaine is zero to two and one-half years. Here, Defendant was sentenced to three years at hard labor. Thus, we find that Defendant received an illegal sentence.

Pursuant to La.Code Crim.P art. 882, an appellate court can correct an illegal sentence at any time. However, “an appellant court may not correct an illegal sentence if that correction involves the exercising of sentencing discretion.” State v. Curtis, 08-99, p. 1 (La.App. 3 Cir. 6/5/08), 987 So.2d 294, 305. Thus, “[t]he facts in this case require a remand for the trial court to perform that function. State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.” Id.

Accordingly, Defendant’s sentence is vacated and the case remanded to the trial court for imposition of a sentence not in excess of two and one-half years.

CONCLUSION:

Defendant’s sentence is vacated and the case remanded to the trial court for imposition of a sentence that does not exceed two and one-half years.

VACATED AND REMANDED WITH INSTRUCTIONS.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Wayne PATTERSON.
    No. 09-201.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant-Appellant, Wayne Patterson.
    Charles A. Riddle, III, District Attorney, 12th Judicial District Court, Miche Moreau, Assistant District Attorney, Marksville, LA, for State-Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

For the reasons assigned in State v. Patterson, 09-199 (La.App. 3 Cir. 11/4/09), 21 So.3d 1119, the defendant’s sentence is affirmed.

AFFIRMED.


author: WALLER, Chief Justice,

text:
    In re In the Matter of the REINSTATEMENT OF ATTORNEY DOE.
    No. 2008-BR-01525-SCT.
    Supreme Court of Mississippi.
    April 23, 2009.
    Cynthia H. Speetjens, attorney for appellant.
    Adam B. Kilgore, Jackson, attorney for appellee.
   WALLER, Chief Justice,

for the Court.

¶ 1. Attorney Doe seeks reinstatement to the practice of law from inactive disability status and from a 180-day suspension imposed by the Complaint Tribunal. Finding that Doe has met the requirements for reinstatement, we find that Doe’s petition should be granted pursuant to Rule of Discipline 25.

FACTS AND PROCEEDINGS

¶ 2. On or about June 12, 2004, at the request of a prospective client, Doe scheduled a Sunday afternoon appointment. The prospective client met Doe at her office, where he brutally sexually assaulted her. As a result of this assault, Doe “suffered from severe emotional trauma as well as crippling anxiety, depression, and grief for a significant period of time,” which “rendered her incapable of managing her affairs or the affairs of others.” Due to fear and embarrassment, Doe failed to report the incident to anyone at the time.

¶ 3. Doe failed to respond to various informal complaints made against her, even after demands were made by the Bar. Thereafter, three formal complaints were filed against Doe by the Mississippi Bar, which were consolidated for trial by order entered June 13, 2006. At trial, Doe admitted the allegations contained in each of the formal complaints. Doe, through counsel, also revealed the circumstances which led to her “total inertia with respect to responding to the issues presented to her.”

¶4. On July 21, 2006, the Complaint Tribunal found that Doe had violated the following provisions of the Mississippi Rules of Professional Conduct: Rule 1.2(a), Rule 1.3, Rule 1.4, Rule 1.15(b), Rule 1.16(d), Rule 5.5, Rule 8.1(b), and Rule 8.4(a)(e), and (d). As a result, Doe was suspended from the practice of law in Mississippi for 180 days.

¶ 5. At the conclusion of the proceeding, Doe made an ore tenus motion for a transfer to inactive disability status pursuant to Rules of Discipline 17-24. The Complaint Tribunal granted Doe’s motion and entered an order transferring Doe to inactive disability status. Doe was enjoined from practicing law in the State of Mississippi until further order from the Supreme Court of Mississippi pursuant to Rule of Discipline 18.

¶ 6. A licensed psychiatrist evaluated Doe and found that she suffered from post-traumatic stress disorder (PTSD) in the aftermath of the sexual assault, and that this ultimately led to her “bec[oming] too impaired to practice law....” A licensed professional counselor treated Doe for PTSD and anxiety for two years as part of a two-year monitoring contract which Doe entered into with the Lawyers and Judges Assistance Program (LJAP). Doe also submitted to monitoring by a member of the LJAP Committee as part of her contract.

¶ 7. On September 9, 2008, Doe filed the instant petition for reinstatement to active status pursuant to Rules of Discipline 12 and 25. Subsequently, the Bar conducted an investigation into the merits of Doe’s petition for reinstatement. Miss. R. Disc. 12.8. The Bar’s investigation focused on whether Doe had provided sufficient supporting proof of personal capacity to practice law, and included deposing both Doe and her therapist on October 15, 2008.

¶ 8. The Bar also investigated Doe’s compliance with her suspension order and whether she has the requisite legal learning necessary to practice law. The Bar concluded that Doe did comply with the order and that she has the requisite legal learning necessary to practice law.

STANDARD OF REVIEW

¶ 9. This Court retains exclusive and inherent jurisdiction over matters pertaining to attorney discipline and reinstatement. Miss. R. Disc. 1(a). We review attorney petitions for reinstatement under a de novo standard and are not bound by any manifest-error or substantial-evidence rule. Stewart v. Miss. Bar, 5 So.3d 344, 2008 Miss. LEXIS 452 at *3 (Sept. 18, 2008) (citing In re Baker, 649 So.2d 850, 852 (Miss.1995)).

DISCUSSION

A. Procedural pre-requisites

¶ 10. Rule 25 of the Rules of Discipline for the Mississippi Bar provides the procedure for seeking reinstatement to the practice of law following personal incapacity, and requires the attorney to file a petition and provide any supporting proof of rehabilitation that may be required by the Bar.

Procedures for reinstatement of an attorney suspended because of personal incapacity to practice law shall be, insofar as is applicable, the same as the procedure for reinstatement of an attorney following suspension upon disciplinary grounds. The petition for reinstatement shall be filed with the Clerk of the Court, and a copy of said petition shall be served upon the Bar, and it shall be under a duty to investigate the matter, respond to the petition and appear at the hearing. The petitioner shall be required to supply such supporting proof of personal capacity as may be necessary and, in addition, the attorney may be required to submit to examinations by physicians or psychiatrists selected by the Court. If satisfied that the attorney has regained his capacity to practice law, the Court may reinstate the petitioner to the practice and enter judgment accordingly; provided, however, no judgment of reinstatement shall be entered by default or on an ex parte basis, and in all cases the Court shall hear the Bar. A filing fee of two hundred fifty dollars ($250.00) to defray the expense of investigating the matter shall be paid the Bar upon the filing of each petition for reinstatement, and any petition for reinstatement subsequent to the initial petition shall not be filed within six (6) months from the date of an adverse determination of any prior petition.

Miss. R. Disc. 25 (emphasis added).

¶ 11. The Bar has determined that Doe is in compliance with the requirements for reinstatement from inactive disability status and “strongly” recommends reinstatement.

The medical evidence and testimony serve as overwhelming supporting proof, measured by objective means, that [Doe] possesses the personal capacity to practice law. [Doe] followed the recommendations of the LJAP and sought appropriate treatment. [Doe] has devoted the requisite time and energy necessary to continue her recovery from the traumatic and tragic circumstances that led to her personal incapacity to practice law and has sufficiently shown that she is able to resume practicing law. Therefore, [t]he Mississippi Bar strongly supports [Doe’s] Petition for Reinstatement from Inactive Disability status.

B. Review of the petition

Contract with LJAP

¶ 12. In August 2005, Doe entered into a two-year monitoring contract with the LJAP. One condition of this contract required Doe to seek individual counseling to manage her illness. The LJAP referred Doe to a licensed professional counselor, who first saw Doe in November 2005.

¶ 13. The affidavit of Doe’s counselor states that she believes that Doe “is no longer impaired ... and is completely prepared to resume her professional responsibilities as a full-time practicing attorney. Her greatest strength is her ethical foundation to fairness and honesty.” The counselor reiterated during her deposition that Doe can return to the full-time practice of law if reinstated, that Doe has reached a functional level in interpersonal interactions, and that Doe possesses the capacity necessary to practice law ethically and professionally. She believes that Doe has adequate control of her emotions and is coping with the sadness, anger, and fear resulting from her traumatic experience.

¶ 14. Also as part of her agreement with the LJAP, Doe submitted to monitoring by a member of the LJAP Committee. Doe’s monitor submitted an affidavit which provides that “[Doe] participated in the monitoring required by her LJAP contract, and that she not only completed the monitoring required by her contract but participated in the monitoring past the expiration of her LJAP contract.” The monitor concluded that she has “seen nothing ... indicating any problem that would prevent [Doe] from practicing law.” This belief is supported by Chip Glaze, Clinical Director of the LJAP. Glaze’s report states that Doe has successfully completed her two-year monitoring contract with the LJAP.

¶ 15. During her deposition, Doe testified about the counseling and treatment she has received, as well as the monitoring conducted by the LJAP Committee member. Doe admitted that she had dealt with the assault in an inappropriate way, and provided significant detail regarding how she copes with her emotions today. She stated that she does not consume alcohol or use drugs, except for the medications prescribed for her.

Medical report

¶ 16. Doe submitted with her petition for reinstatement a medical report of a licensed psychiatrist, who believes that Doe “is fully capable of practicing law again, without any restrictions.” The report provides that Doe “has recovered from her psychiatric conditions,” “is currently quite stable,” and “has adequate emotional control, interpersonal comfort, and mental energy and concentration to sustain [sic] for 10-12 hours per day.” The report also notes that Doe has undergone intensive counseling and has taken antidepressant and antianxiety drugs with substantial benefit.

Personal recommendations

¶ 17. The affidavits of eight Mississippi attorneys, as well as a chancery court judge, are attached to Doe’s petition for reinstatement. Each of these individuals supports Doe’s reinstatement, and each of their affidavits provides that Doe “is an intelligent, hard-working woman who is knowledgeable of the law, who was, and will resume being a competent and ethical attorney and an asset to the legal community and the Mississippi Bar.” The affidavit of Doe’s employer states that “[Doe] possesses the high moral standards that are necessary for the competent and effective practice of law.”

Employment during inactivity

¶ 18. Beginning on July 21, 2006, and continuing up to the date of her petition for reinstatement, Doe has worked for a licensed attorney as an office manager/bookkeeper, and has performed such duties as answering the phone, posting billing slips, accounts payable, copying, filing, ordering office supplies, and dealing with office-equipment vendors. Doe has not engaged in the practice of law.

MPRE

¶ 19. While not required as a condition for reinstatement from inactive disability status, Doe took the Multi-State Professional Responsibility Examination in August 2007. Her score report indicates that she received a scaled score of 104, well above the scaled score of 80 required by Rule of Discipline 12.5. Miss. R. Disc. 12.5.

CONCLUSION

¶ 20. In light of the foregoing evidence and testimony, we find that Doe is in compliance with the requirements for reinstatement from inactive disability status. Doe’s petition for reinstatement from inactive disability status pursuant to Rule of Discipline 25 is granted.

¶ 21. DOE’S PETITION FOR REINSTATEMENT TO THE PRACTICE OF LAW IS GRANTED.

CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . This case was filed under seal, and this opinion will use the name "Doe,” rather than the petitioner's name, to preserve confidentiality.

      . Doe sought reinstatement pursuant to Rules 12 and 25 of the Rules of Discipline. Because the Complaint Tribunal suspended Doe for 180 days, Rule of Discipline 12, which applies only to suspensions of six months or more, is inapplicable. See Miss. R. Disc. 12(a) (“No person ... suspended for a period of six months or longer shall be reinstated ... except upon petition to the Court.”); see also, e.g., Miss. Bar v. Alexander, 669 So.2d 40, 44 (Miss.1996) (Banks, J., dissenting) (“the 180 day suspension is significantly different from that imposed here [6 months] because, under our rules a suspension of six months or more requires a petition for reinstatement”); Miss. Code Ann. § 1-3-29 (Rev.2005) ("The term 'month,' when used in any statute, means a calendar month, unless a contrary intention be expressed.”).

      . Information which may compromise Doe’s confidentiality has been omitted from this opinion.

      . Betty Daugherty, Director of the LJAP, submitted a letter to the Bar confirming that Doe had fulfilled her contract with the LJAP.

      . During the October 15, 2008, deposition, when questioned about the psychiatrist's medical report, Doe’s counselor stated that she agreed with the psychiatrist’s assessment that Doe has the capacity to return to the practice of law.

      . Doe made clear during her deposition that each affiant was aware of her circumstances when making his or her recommendation that she be allowed to return to the practice of law.


author: JESS H. DICKINSON, Justice.

text:
    In re Petition of the Mississippi Bar to Accept Irrevocable Resignation of Edward J. PETERS.
    No. 2009-BD-00005-SCT.
    Supreme Court of Mississippi.
    June 9, 2009.
   ORDER OF DISBARMENT

JESS H. DICKINSON, Justice.

¶ 1. This matter is before the Court en banc on the “Petition of the Mississippi Bar to Accept Irrevocable Resignation Pursuant to Rule 10, MRD.” In its Petition, the Mississippi Bar (the “Bar”) requests that this Court accept the irrevocable resignation of Edward J. Peters, who previously executed a Notice of Irrevocable Resignation pursuant to Mississippi Rule of Discipline 10.5, and to enter an order of disbarment. Because we conclude that all procedural prerequisites have been met, we order that Edward J. Peters be disbarred.

I.

¶ 2. Edward J. Peters executed a Notice of Irrevocable Resignation on December 22, 2008, which he delivered to the Mississippi Bar on or about December 29, 2008. In the Notice, Peters attested that an outstanding disciplinary matter (Docket No. 07-456-2) was currently pending before the Committee on Professional Responsibility; that no other disciplinary proceedings were pending against him; and that he did not desire to defend the matter. Peters requested that he be allowed to irrevocably resign, with prejudice, from the Mississippi Bar. The Bar filed the current petition, requesting that this Court accept Peters’s irrevocable resignation. Peters subsequently filed a waiver of process and entered an appearance in the matter.

II.

¶ 3. “[T]his Court has exclusive and inherent jurisdiction regarding the discipline of attorneys as promulgated in the Rules of Discipline for the Mississippi State Bar.” Miss. Bar v. Langston, 987 So.2d 936, 937 (Miss.2008) (quoting Miss. Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003) (citing M.R.D. 1(a)). “We conduct a de novo review in cases involving the discipline of attorneys.” Langston, 987 So.2d at 937 quoting Shelton, 855 So.2d at 445); Miss. Bar v. Pels, 708 So.2d 1372 1374 (Miss.1998).

¶ 4. Mississippi Rule of Discipline 10.5 states:

An attorney may tender an irrevocable resignation to either the Court or the Tribunal. Such a resignation shall acknowledge each and all disciplinary matters then pending, provide the docket number or numbers, state that the attorney does not desire to defend, and request permission to resign with prejudice from the Bar. Upon receipt of such a resignation, and any response that the Bar may elect to file, the disciplinary proceedings shall terminate and either the Court or the Tribunal shall enter its order accepting the resignation, revoking the attorney’s license, and barring forever thereafter the attorney’s right to seek reinstatement to the privilege of practicing law in this state. Such a resignation and order shall be considered disciplinary action, and the resignation shall be considered tantamount to the proof of guilt on the matter charged.

¶ 5. After due consideration, we find that Edward J. Peters has properly filed his Notice of Irrevocable Resignation in accordance with Mississippi Rule of Discipline 10.5, and the Bar is entitled to the relief it seeks. Accordingly, based on the record before us, and consistent with the Rules of Discipline for the Mississippi Bar and our caselaw, this Court hereby enters this order disbarring Edward J. Peters.

¶ 6. IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

1. Edward J. Peters is hereby permanently DISBARRED from the practice of law in the State of Mississippi;
2. This order shall constitute notice of permanent disbarment in this cause;
3. The Clerk of this Court shall forward an attested copy of this order to Edward J. Peters and the Executive Director of the Mississippi Bar;
4. Edward J. Peters shall, within thirty days following entry of this order, notify clients and affected courts of his disbarment and comply with all other requirements applicable to disbarred attorneys pursuant to Mississippi Rule of Discipline 11;
5. Edward J. Peters shall, within forty-five days following entry of this order, file an affidavit with this Court stating that all of his clients have been notified of his disbarment and his consequent inability to practice law in Mississippi, and that he has complied fully with all the requirements set forth in Mississippi Rule of Discipline 11;
6. The Clerk of this Court shall immediately forward an attested copy of this order to the circuit court judges and chancellors in and for Hinds County, Mississippi, and the senior judge of each court shall enter this order upon the minutes of his or her respective court;
7. The Clerk of this Court likewise shall immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States;
8. All outstanding disciplinary proceedings against Edward J. Peters, including Cause No. 2009-BD-0005 (which is Docket No. 07-456-2, pending before the Committee on Professional Responsibility), are hereby terminated; and
9. Costs of these proceedings are hereby assessed against Edward J. Peters.

¶ 7. SO ORDERED, ADJUDGED, AND DECREED.

ALL JUSTICES CONCUR.