author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Wilbert MATTHEWS.
    No. 09-KA-180.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for State of Louisiana.
    Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12Pefendant Wilbert Matthews applied for an out-of-time appeal, seeking to withdraw his guilty plea to one count of aggravated rape of a child, a violation of LSA-R.S. 14:42. On appeal, he argues that he pleaded guilty in order to avoid the death penalty, a punishment that has since been found unconstitutional by the United States Supreme Court. He also argues that his life sentence is excessive. For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On March 29, 2007, the Jefferson Parish Grand Jury issued an indictment charging defendant, Wilbert Matthews, with aggravated rape of a child under the age of 13 years, a violation of LSA-R.S. 14:42. Defendant was arraigned on March 30, 2007 and pled not guilty.

|sDefendant filed a motion to appoint a sanity commission, which the district court granted. On June 11, 2007, the parties stipulated to the sanity commission’s report, and the district court found defendant competent to stand trial.

On September 19, 2007, defendant withdrew his not guilty plea and pled guilty as charged. The district court then sentenced him to the mandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence. The district court granted defendant an out-of-time appeal.

FACTS

Since there was no trial in this matter, the pertinent facts relating to the charged offense must be gleaned from the indictment, which alleged that on or between June 1, 2003 and August 31, 2004, defendant committed aggravated rape upon a known juvenile whose date of birth was May 21,1992.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that he should be allowed to withdraw his guilty plea. He argues that he pled guilty in order to avoid a possible death sentence. Since his guilty plea, the United States Supreme Court has declared that the Eighth Amendment prohibits the death penalty for aggravated rape where the offense did not result, and was not intended to result, in the victim’s death. Kennedy v. Louisiana, - U.S. -, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008). Defendant argues that the inducement for his guilty plea has been eliminated and it would be fundamentally unfair to allow his plea to stand.

| /fhe State responds that defendant was never exposed to the death penalty, pointing out that the indictment listed the offense as a “class II” felony. The State argues the record is devoid of any evidence that defendant was induced to plead guilty due to threats of a death sentence. In any case, the State argues, defendant’s guilty plea was knowing and voluntary, and was otherwise legally sound.

A trial court may permit the withdrawal of a guilty plea at any time before sentencing. LSA-C.Cr.P. art. 559A. Once a defendant has been sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn, and then only by appeal or post-conviction relief. State v. McCoil, supra. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain and that bargain is not kept. State v. Dixon, supra; State v. McCoil, supra. Defendant does not suggest that his guilty plea is constitutionally infirm for any of those reasons. Moreover, an inspection of the record does not reveal such a deficiency.

At the time of defendant’s guilty plea, the district court advised him of the three Boykin rights: the right to a jury trial, the right of confrontation, and the privilege against self-incrimination. Defendant indicated he understood those rights and the consequences of pleading guilty. The court further explained that the penalty for the charged offense was life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant indicated that he had discussed the matter with his attorney, and that he understood the nature of the charge against him and the possible penalty. Defendant and his attorney also | r,completed a waiver of rights form that explained defendant’s rights and his sentencing exposure. Defendant signed the form, indicating he understood the terms of the guilty plea.

Even assuming defendant pled guilty in order to avoid the death penalty, an assertion that the record does not support, the Supreme Court’s holding in Kennedy is not a valid basis for withdrawing his plea. The Louisiana Supreme Court has held that “an otherwise valid plea of guilty is not rendered involuntary merely because it was entered to limit the possible maximum penalty to less than that authorized by law for the crime charged.” State v. Bouie, 00-2934, p. 9 (La.5/14/02), 817 So.2d 48, 53, quoting State v. Compton, 367 So.2d 844, 847 (La.1979). See also, State v. Kron, 07-1024, p. 9 (La.App. 5 Cir. 3/25/08), 983 So.2d 117, 122, writ denied, 08-0813 (La.10/24/08), 992 So.2d 1039.

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the defendant pled guilty to a federal kidnapping charge in order to avoid the death penalty. Years later, the death penalty provision of the pertinent statute was declared unconstitutional. The defendant attacked the validity of his earlier guilty plea on that basis. The United States Supreme Court rejected the defendant’s argument, stating:

A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, ... a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly | fiadvised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.

Brady, 397 U.S. at 757, 90 S.Ct. at 1473.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant complains that the life sentence he received was excessive in that the district court failed to consider mitigating factors or to tailor the sentence to fit the offense. The State counters that defendant is not entitled to challenge his sentence on appeal, since it was part of a plea agreement.

It is well settled that a defendant is precluded from raising a claim of exces-siveness on appeal when the imposed sentence is the product of a plea agreement. LSA-C.Cr.P. art. 881.2 A(2); State v. Augustine, 08-71, p. 9 (La.App. 5 Cir. 5/27/08), 987 So.2d 271, 276. Thus, defendant is not entitled to review of his sentence for excessiveness. In any case, defendant’s sentence was the mandatory minimum under LSA-R.S. 14:42 D. Moreover, the court noted that it had taken into consideration the provisions of LSA-C.Cr.P. art. 894.1, pertaining to sentencing guidelines.

Accordingly, we decline to consider the merits of defendant’s sentencing claim.

ERRORS PATENT

The record was reviewed for errors patent. The review reveals no errors patent in this case.

^Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Defendant did not file a motion to withdraw his guilty plea in the district court. But a defendant's failure to make a formal motion to withdraw a guilty plea does not prohibit a reviewing court from setting aside a constitutionally infirm guilty plea. State v. Dixon, 449 So.2d 463, 464 (La.1984); State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

      .The record does not define "class II” felony, but this court understands that the Jefferson Parish District Attorney defines "class II” felonies as those for which there is a mandatory sentence of hard labor, such as second degree murder, armed robbery, rape, and certain vice cases. A "class I” felony is one for which defendant faces a possible sentence of death.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Although, as the State points out, the indictment lists the aggravated rape charge as a class II felony, there is no other indication in the record whether or not the State intended to pursue the death penalty if defendant chose to go to trial. The record is devoid of evidence that the State ever filed a notice of intent to seek the death penalty. See, for example, State v. Fuller, 31,127 (La.App. 2 Cir. 6/25/03), 850 So.2d 909.

      . LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Welland, 556 So.2d 175 (La.App. 5 Cir.1990).


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Jayne Phillpott, Wife of/and Wayne PHILLPOTT, Wayne Phillpott, Jr., William Phillpott and Wesley Phillpott v. CLARENDON AMERICA INSURANCE COMPANY, Lamar Contractors, Inc., The Shaw Group, Inc., Shaw Environmental, Inc., Durr Heavy Construction, LLC, H & H Imports, LLC., and Forest River, Inc.
    No. 09-CA-144.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.
    Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Attorneys at Law, and Leonard J. Cline, Attorney at Law, Me-tairie, LA, for Plaintiffs/Appellants.

      P.M. Donovan, James L. Donovan, Jr., Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Plaintiffs/appellants, Jayne Phillpott (“Mrs. Phillpott”) wife of/and Wayne Phill-pott (“Mr. Phillpott”), Wayne Phillpott, Jr., William Phillpott and Wesley Phillpott, appeal the summary judgment in favor defendants/appellees, Clarendon America Insurance Company, Lamar Contractors, Inc., the Shaw Group, Inc., Shaw Environmental, Inc., Durr Heavy Construction, L.L.C., H & H Imports, L.L.C., and Forest River, Inc. For the following reasons, we reverse and remand to the trial court for further proceedings.

FACTS

According to the pleadings, this case arises from a fall out of a Federal Emergency Management Agency (“FEMA”) trailer by Mrs. Phillpott on January 5, 2006. Mr. and Mrs. Phillpott were delivered the FEMA trailer on November 21, 2005 by Lamar Contractors, Inc. Delivery of the FEMA trailer by Lamar was Isthrough a subcontract with Durr Heavy Construction, who was a subcontractor of the Shaw Group, Inc./Shaw Environmental.

The FEMA trailer was equipped with two metal steps and a handle attached to the outside of the trailer next to the door. There was no railing on the steps. The two metal steps were not uniform in distance between each other. Although Mr. and Mrs. Phillpott reported the defects of the steps several times, they did not report any accidents occurring on the steps before January 5, 2006.

On the date of the incident, at about 1:15pm, Mrs. Phillpott fell face forward towards the right of the stairs as she was exiting the FEMA trailer. Mrs. Phillpott never made contact "with either of the metal steps. As a result of the fall, Mrs. Phillpott sustained multiple injuries to her lower back and hands.

The plaintiffs filed a Petition against the defendants alleging that they were either the owner, lessor, manager or had care, custody and control of Mr. and Mrs. Phillpott’s FEMA trailer. The plaintiffs alleged that the defendants were liable either by negligence, strict liability or product liability. The defendants filed a Motion for Summary Judgment based upon all of the theories of liability presented by the plaintiffs. The plaintiffs filed a Memorandum in Opposition to the Motion for Summary Judgment and a Motion to Compel the defendants to answer the plaintiffs’ interrogatories.

The trial court granted the Motion for Summary Judgment in favor of the defendants and reasoned that Mrs. Phillpott testified in her deposition that her misstep caused the accident, not any defect in the steps.. Additionally, the trial court granted the Motion to Compel filed by the plaintiffs. However, the Motion to Compel was found to be moot because of the granting of the Motion for Summary Judgment.

| ¿ASSIGNMENTS OF ERROR

The plaintiffs appeal and assign the following as errors:

1. The trial court erred, as a matter of law, by granting the defendants’ Motion for Summary Judgment as there are genuine issues of material fact that preclude summary judgment.
2. The trial court erred, as a matter of law, by denying the plaintiffs’ Motion to Compel as there is outstanding discovery that is essential to the plaintiffs’ case.

LAW AND ANALYSIS

Summary Judgment

It is well settled that appellate courts review summary judgments de novo. State ex rel. Dept of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, (La.App. 5 Cir. 10/30/07), 971 So.2d 1163, 1166, writ denied 2007-2304, 973 So.2d 761 (La:1/25/08). Appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter, 2008-0215 (La.12/2/08), 5 So.2d 819, 824 citing Smith v. Our Lady of the Lake Hosp., 93-2515 (La.7/5/94), 639 So.2d 730, 750. Summary judgment is appropriate when it has been shown by the mover that “there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765, citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could | r,reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

In the case at bar, the plaintiffs aver that a genuine issue of material fact exists that precluded the granting of the summary judgment because the record is clear that there was a problem with the steps on the plaintiffs’ trailer. The plaintiffs further aver that the uneven and wobbly steps caused Mrs. Phillpott’s improper step and subsequent fall. On the other hand, the defendants assert that the summary judgment was properly granted because they did not have care, custody, control or garde over the trailer after it had been delivered to the plaintiffs; the condition of the steps complained of by the plaintiffs was open and obvious; and, Mrs. Phillpott’s testimony establishes that the accident occurred due to her misjudgment of where she thought the step was located.

A Motion for Summary Judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts. Steve Douglass, et al. v. Alton Ochsner Medical Foundation, et al., 97-25 (La.App. 5 Cir. 5/28/97), 696 So.2d 136, 138 citing Watson v. Cook, 427 So.2d 1312 (La.App. 2 Cir.1983). Although Mrs. Phillpott testified in her deposition that she misstep and the condition was open and obvious, the fact that the defendants may have a portion of liability in the accident is not negated. This is a merit of the case that should be considered by the fact finder at trial.

In order to obtain a summary judgment, it is not sufficient to prove that it is unlikely that the plaintiff may recover, or that the showing then made preponderantly indicates there is no liability. Mecom, v. Mobil Oil Corp., 299 So.2d 380, 385 (La.App. 3 Cir.1974), rehearing denied 302 So.2d 308 (La.1974). After reviewing the Reasons for Judgment, it appears that the trial court rendered a judgment based upon the likelihood that the showing preponderantly indicates | fithere is no liability, which should not occur in this phase of the case. Again, the merit of this issue should be considered by the fact finder at trial.

As a result, this Court finds that the trial court improperly granted the Motion for Summary Judgment in favor of the defendants. Therefore, summary judgment by the trial court is vacated.

Motion to Compel

The plaintiffs assert that the trial court erred in denying their Motion to Compel discovery that the defendants failed to produce. However, in its Reasons for Judgment, the trial court did not deny the Motion to Compel. To the contrary, the Motion to Compel was granted. The defendants were given 30 days to amend their answers to the plaintiffs’ interrogatories. Nevertheless, the motion was considered moot by the trial court because of the decision to grant the summary judgment. The discovery requested may determine whether or not the defendants had care, custody, control or garde over the trailer. Given that this Court is vacating the summary judgment order, the Motion to Compel is no longer a moot issue. Therefore, the trial court can enforce the Motion to Compel the defendants to amend their answers to the plaintiffs’ interrogatories.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s decision to grant the Motion for Summary Judgment in favor of the defendants and remand the case to the trial court for further proceedings. Additionally, the Motion to Compel can be enforced by the trial court.

REVERSED AND REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Stanley THOMPSON.
    No. 09-KA-128.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Appellate Counsel, Kenneth P. Bordelon Assistant District Attorney, Trial Counsel, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant, Stanley Thompson.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|2Stanley Thompson appeals his conviction of possession of cocaine. We affirm, for the reasons that follow.

On November 30, 2006, the Jefferson Parish District Attorney filed a bill of information charging Stanley Thompson with violation of La. R.S. 40:967(C), possession of cocaine. On December 1, 2006, the defendant was arraigned and entered a plea of not guilty. On April 21, 2008, the trial court denied his motion to suppress evidence and statement.

On July 22, 2008 the case was tried before a six-person jury, which unanimously found the defendant guilty as charged. On July 31, 2008, the trial court denied the defendant’s motions for new trial and for post-verdict judgment of acquittal. On the same date, the defendant waived sentencing delays, and the trial court sentenced him to imprisonment at hard labor for five years.

Also on July 31, 2008, the State filed a habitual offender bill alleging the defendant to be a fourth-felony offender. The defendant denied the allegation. The State later amended the multiple bill by alleging the defendant to be a third-felony offender, rather than a fourth-felony offender. On September 22, 2008, the defendant stipulated to the amended bill, whereupon the trial court vacated the | rioriginal sentence and resentenced the defendant to imprisonment at hard labor for six years without benefit of probation or suspension of sentence.

The defendant now comes before us on a timely appeal.

FACTS

Detective Todd Rivere of the Jefferson Parish Sheriffs Office testified as follows. On November 10, 2006 he and Deputy Paul Smith responded to a call at 414 Meyers Boulevard in Marrero regarding suspicious persons possibly being in an abandoned home at that location. Detective Rivere arrived at 5:25 p.m. and met with the caretaker of the property, who informed him that no one should be inside the residence. Detective Rivere and Deputy Smith entered the residence from the back door, which was slightly open.

Upon entering the house, they announced their presence and asked if anyone was home. When they got no response, they began walking through the house. As they approached the front part of the house, Detective Rivere heard voices coming from the front room. Detective Rivere opened the door and immediately encountered four subjects in the small room. The detective saw the defendant, who was nude, lying on his back. To the defendant’s left was a female, partially nude from the waist down, who was performing a sexual act on the defendant. Detective Rivere also observed another male seated in a brown reclining chair, with another female kneeling down in front of him. Those two individuals were fully clothed.

| .¡Detective Rivere observed a very thick, heavy white smoke, which he believed was the emission of burning crack cocaine. He also detected a faint smoky odor commonly associated with burnt crack cocaine. He described the house as an abandoned, distressed and “somewhat” filthy home, with no furniture except for the brown reclining chair. Based on his experience, Detective Rivere concluded that the subjects were smoking crack cocaine.

The detective immediately ordered the subjects to show their hands for safety reasons. He then separated them, placed handcuffs on them, arrested them, and advised them of their rights. Detective Rivere recovered two rocks of crack cocaine from the brown reclining chair and three glass cylinders, commonly known as crack pipes, from the room. Two of the crack pipes were located within approximately two feet from the defendant. One of them was located to the defendant’s immediate left, and another one was located a little further toward the closet. In that room was also a lighter with the tip removed, which Detective Rivere explained was used to increase the heat in the crack pipe, and unused “Chore Boy,” which he explained was commonly used in crack pipes to smoke crack cocaine.

The defendant told Detective Rivere that the house belonged to his aunt who lived in Mississippi. The defendant could not provide her name, address, or telephone number, however, for the detective to corroborate the defendant’s story. The defendant also told the detective he was a crack addict, but was not smoking crack cocaine.

Daniel Waguespack, an expert in the fields of forensic science and the analysis of controlled dangerous substances, testified that the substance in this case tested positive for the presence of cocaine.

The defense did not call any witnesses.

| ¡¡ASSIGNMENTS OF ERROR

The defendant’s three assignments of error all relate to the sufficiency of evidence presented by the State to support the conviction. As such, we discuss them together.

In Assignment of Error No. 1, the defendant asserts the circumstantial evidence is insufficient to exclude every reasonable hypothesis of innocence. In Assignment No. 2, the defendant contends the trial court erred by denying the motion for new trial. In Assignment No. 3, the defendant argues the trial court erred by denying the motion for post-verdict judgment of acquittal.

The defendant argues that the circumstantial evidence was insufficient to support the verdict because it failed to exclude every reasonable hypothesis of innocence. He contends, therefore, that the trial court erred by denying his motions for new trial and post-verdict judgment of acquittal. The State responds that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of possession of cocaine.

At the hearing on the motions for new trial and for post-verdict judgment of acquittal, defense counsel argued that the evidence was insufficient to support the verdict and that the co-defendant was in actual possession of the drugs. Defense counsel further contended the State failed to meet its burden of proving beyond a reasonable doubt that the defendant was in constructive possession of the drugs. The prosecutor responded that the State had proved beyond a reasonable doubt that the defendant knowingly and intentionally possessed cocaine. After hearing the arguments of counsel, the trial judge denied the motions, stating that the verdict was appropriate based upon the evidence and the testimony.

IfiThe question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. La. C. Cr. P. art. 821; State v. Hampton, 98-331, p. 12 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Pearson, 07-332, p. 12 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 653.

A motion for a new trial is based on the supposition that injustice has been done the defendant and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La. C. Cr. P. art. 851. On motion of the defendant, the court shall grant a new trial whenever the verdict is contrary to the law and the evidence. La. C. Cr. P. art. 851(1).

When a motion for new trial is based on the verdict being contrary to the law and the evidence, there is nothing for review on appeal. State v. Condley, 04-1349, p. 11 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163. The Louisiana Supreme Court and this Court, however, have addressed the constitutional issue of the sufficiency of the evidence under this circumstance. Id. Therefore, the denial of the defendant’s motion for new trial based on the sufficiency of the evidence is properly before this Court on review.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This applies whether the evidence is direct or circumstantial or a mixture of both. Id.

|7The rule as to circumstantial evidence is that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court does not determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83. Rather, the reviewing court must determine whether “the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” Id.

In order to support a conviction of possession of cocaine, the State must prove that the defendant was in possession of the cocaine and that the defendant knowingly possessed it. La. R.S. 40:967(C); State v. Wright, 05-477, p. 5 (La.App. 5 Cir. 12/27/05), 920 So.2d 871, 874-75, writ denied, 06-1141 (La.2/16/07), 949 So.2d 404.

“Guilty knowledge is an essential element of the crime of possession of contraband.” State v. Proctor, 04-1114, p. 6 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 482. Because guilty knowledge is a state of mind, it need not be proven as fact, but may be inferred from the circumstances. Id.

The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the drug. Id. A person not in physical possession of the drug is considered to be in constructive possession of a drug, although it is not in his physical custody, when the drug is under that person’s dominion and control. Id.

“A subject can have constructive possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control the drugs.” State v. Lewis, 04-1074, p. 7 (La.App. 5 Cir. 10/6/05), 916 So.2d 294, 299, writ denied, 05-2382 (La.3/31/06), 925 So.2d 1257.

|sThe mere presence of the defendant in the area where a controlled dangerous substance is found does not constitute constructive possession. State v. Jones, 04-1258, p. 7 (La.App. 5 Cir. 4/26/05), 902 So.2d 426, 431. However, proximity to the drug may establish a pri-ma facie case of possession when colored by other evidence. Id.

Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include (1) the defendant’s knowledge that illegal drugs were in the area, (2) his relations with the person found to be in actual possession, (3) the defendant’s access to the area where the drugs were found, (4) evidence of recent drug use by the defendant, (5) the existence of paraphernalia, and, (6) evidence that the area was frequented by drug users.

Proctor, 04-1114 at 7, 901 So.2d at 482.

We find the evidence presented by the State was sufficient for the jury to reasonably conclude that the defendant exercised dominion and control over the cocaine, constituting constructive possession. The testimony of Detective Rivere showed that the defendant was found in an abandoned, filthy house with no furniture, in a very small room filled with dense white smoke. The detective testified that he smelled burnt crack cocaine and that the smoke was so thick the subjects must have been smoking it for at least 15 minutes. Two crack pipes were located close to the defendant, and all of the items used to consume crack cocaine were in that room. In addition, the defendant admitted to the detective that he was addicted to crack cocaine. The detective testified further that the house was located in an area known for narcotics activity and he had made many narcotics arrests in that area. Although the defendant told the detective the house belonged to his aunt, he could not provide information to confirm that story.

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Baker, 01-1397, pp. 4-5 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not the function of the appellate court to evaluate the credibility of witnesses, nor to overturn the trial court on its factual determination of guilt. State v. Gentras, 98-1095, p. 9 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 118, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464.

We find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant was guilty of possession of cocaine and that every reasonable hypothesis of innocence was excluded. Therefore, we find that the trial court did not err by denying the defendant’s motions for new trial and for post-verdict judgment of acquittal.

Pursuant to our usual procedure, we have reviewed the record for patent errors, and the review reveals none. La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The defendant also was charged with two other offenses arising from the cocaine possession charge. In case number 06-6113, he was charged with a misdemeanor, possession of drug paraphernalia (specifically, several pipes used for smoking crack cocaine). In case number 07-6125 he was charged with simple escape, based on removal of his ankle bracelet while he was on home incarceration pending trial of the cocaine possession charge.
      The drug paraphernalia charge was tried by the judge simultaneously with the jury trial of the cocaine possession charge. After the jury rendered its verdict on the cocaine possession charge, the judge found the defendant guilty of possession of drug paraphernalia. The defendant later was sentenced to six months in the parish correctional center, to run concurrently with the sentence for possession of cocaine.
      On September 22, 2008, the defendant pleaded guilty to the simple escape charge and was sentenced to imprisonment at hard labor for two years, to run consecutively with any other sentences he was serving. Neither the drug paraphernalia charge nor the simple escape charge are before us on this appeal.


author: MAX N. TOBIAS, JR., Judge. ARMSTRONG, C.J.,

text:
    Darriel Kelly SNOWTON v. Fredrick Eugene SNOWTON, Sr.
    No. 2009-CA-0600.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.

      Mark Moreau, Southeast Louisiana Legal Services, Lawrence J. Pichler, New Orleans, LA, for Appellant, Darriel Kelly Snowton.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

hln a judgment confirming a default for divorce and child custody, the trial court ordered the indigent plaintiff, Darriel Kelly Snowton (“Darriel”), who was proceeding in forma pauperis, to pay all costs. Darriel appeals that portion of the judgment assessing her with court costs for the “filing of the divorce action.” Additionally on appeal, Darriel contends the trial court erred in failing to designate a domiciliary parent and in awarding interim joint custody instead of permanent joint custody. For the following reasons, we reverse in part and render.

Darriel filed a petition for divorce and custody, which included a request for permission to proceed in forma pauperis. The requisite in forma pauperis application was completed with supporting financial documentation. Subsequently, by order of the court, she was granted indigent status. On 31 March 2009 on Darriel’s motion, the court rendered judgment confirming the default entered on 16 March 2009, decreeing an absolute divorce and awarding interim joint custody to the parties, but not designating either party as the domiciliary parent. The judgment assessed the costs “of filing th[e] divorce action” against | {.Darriel and further ordered her to “pay all costs within (60) sixty days of the signing of [the] judgment.”

La. C.C.P. art. 5186 provides:

An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney. If judgment is rendered against the indigent plaintiff and he is condemned to pay court costs, an affidavit of the account by an officer to whom costs are due, recorded in the mortgage records, shall have the effect of a judgment for the payment due. [Emphasis supplied.]

The record on appeal is devoid of any evidence that Darriel’s right to proceed in forma pauperis was ever traversed or rescinded. La. C.C.P. art. 5184. We note that, as a general matter, La. C.C.P. art. 1920 gives the trial court equitable discretion to tax costs against any party. Specifically, article 1920 states, in part:

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. [Emphasis supplied.]

We find the article 1920 discretion is limited in a pauper case by the more specific provision found in La. C.C.P. art. 5186, which mandates the assessment of court costs to the party against whom judgment is rendered. See Holloway v. Holloway, 01-0273, p. 2 (La.App. 8 Cir. 6/6/01), 787 So.2d 600, 601. Moreover, pursuant to La. C.C.P. arts. 1701 and 1702, a judgment confirming a default is Centered against the party who fails to answer the petition and citation. In the case at bar, the judgment entered on Dar-riel’s motion to confirm the default was rendered against Fredrick Eugene Snow-ton, Sr.; thus, we find Mr. Snowton should have been condemned to pay all court costs of these proceedings. La. C.C.P. art. 5186. See also Williams v. Williams, 98-2899, pp. 1-2 (La.App. 4 Cir.4/28/99), 732 So.2d 1243, 1244; Smith v. Smith, 99-0365, pp. 1-2 (La.App. 4 Cir. 5/5/99), 733 So.2d 729, 730.

The trial court awarded interim joint custody of the minor child, Fredrick Eugene Snowton, Jr., to Darriel and Fredrick Eugene Snowton, Sr., but did not designate either one as the domiciliary parent. Generally, a court must order joint custody unless there is (1) parental consent to sole custody, or (2) a history of family violence, or (3) clear and convincing evidence that sole custody is in the child’s best interest. See La. C.C. art. 134; La. R.S. 9:361, et seq. Moreover, La. R.S. 9:335(B)(1) provides that when parties are awarded joint custody, the court must designate a domiciliary parent “except when there is an implementation order to the contrary or for other good cause shown.” See Evans v. Lungrin, 97-0541, p. 11 (La.2/6/98), 708 So.2d 731, 737. The domiciliary parent is the parent with whom the child primarily resides. La. R.S. 9:335(B)(2). The record indicates that Fredrick Eugene Snowton, Jr. currently resides with Darriel, and thus, she meets the statutory definition of domiciliary parent. Additionally, there is no mention in the judgment of an implementation order or good cause being shown why Darriel should not be designated as the domiciliary parent. We find, therefore, that the trial court erred (1) in ordering interim joint custody rather than a final judgment of permanent joint custody, and (2) not designating Darriel as the domiciliary parent.

^Accordingly, we reverse that portion of the trial court judgment assessing the costs of filing the divorce action against Darriel and awarding interim joint custody to the parties. We render judgment for court costs against Fredrick Eugene Snowton, Sr., assessing him with all court costs associated with these proceedings to be paid within 60 days. We affirm that portion of the trial court’s judgment that ordered Darriel to pay all costs, except court costs, to be paid within 60 days. We render judgment awarding permanent joint custody of Fredrick Eugene Snowton, Jr. to Darriel Kelly Snowton and Fredrick Eugene Snowton, Sr., and designate Dar-riel Kelly Snowton as the domiciliary parent for the minor child, Fredrick Eugene Snowton, Jr.

REVERSED IN PART; AFFIRMED IN PART; RENDERED.

ARMSTRONG, C.J., concurs in the result.

ARMSTRONG, C.J.,

concurs in the result.

hi respectfully concur in the result reached by the majority.


author: JAMES F. McKAY III, Judge. MURRAY, J.,

text:
    Thomas BETHEA v. The GREAT ATLANTIC & PACIFIC TEA COMPANY d/b/a and Save-A-Center.
    No. 2007-CA-1385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.
    Louis A. Gerdes, Jr., New Orleans, Louisiana, for Plaintiff/Appellee.
    John V. Baus, Jr., John V. Baus, Jr., PLC, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

liThe defendant, The Great Atlantic & Pacific Tea Company, d/b/a Sav-A-Center, appeals the judgment in favor of the plaintiff, Thomas Bethea, holding the defendant liable for the injuries the plaintiff sustained as a result of a fall in the parking lot of the shopping center.

On September 22, 2003, Thomas Bethea, after leaving Sav-A-Center located in the Plaza East Shopping Center at 6001 Bul-lard Avenue, sustained injuries to his knee and elbow as a result of tripping and falling into six inch hole of an empty planter in the shopping center parking lot. The area consists of a column, an in ground planter, and a bollard (a cone shaped concrete barrier to keep vehicles in the parking area from hitting the building).

The matter went to trial on June 21, 2005. A judgment was rendered in the amount of $9,315.00; $2,065.00 for medical bills and $7,250.00 in general damages. The reasons for judgment were rendered on November 22, 2005.

JURISDICTIONAL ISSUE

We note a jurisdictional issue in the matter which we shall address first.

|2In the defendant’s motion to set return date for the suspensive appeal, the defendant asserted that it had received the notice of judgment on August 1, 2005, and as such was requesting a return date for the appeal filing to be August 11, 2005. The trial court set the requested return date of August 11, 2005. It was from this order that the plaintiff motioned the trial court to dismiss the appeal as untimely. On October 3, 2006, the trial court, signed a judgment denying the plaintiffs supplemental motion to dismiss suspensive appeal. This motion was ultimately heard only after numerous re-setting because of the intervention of Hurricane Katrina. In the denial of the dismissal of the appeal, the trial court held that it did not have jurisdiction over the matter as the appeal had been filed.

In Myles v. Turner 612 So.2d 32, 35 (La.1993), our Louisiana Supreme Court held that “the ten-day appeal delay provided for in La. C.C.P. art. 5002(A) commences to run upon the receipt of notice of judgment rather than upon the mere mailing of said notice.” The Court additionally held that “ ‘the date of the ... event ... after the period begins to run,’ is not to be counted in the computation of the appeal delay.” Id.

Based upon the record and jurisprudence we find that the defendant timely filed this suspensive appeal.

The primary and defining issue before this Court is whether the trial court erred in holding the defendant, The Great Atlantic & Pacific Tea Company d/b/a Save-A-Center liable for the plaintiffs injury.

|sThe Louisiana Civil Code provides that we are responsible for damage caused by the things in our custody. La. C.C. art. 2317. This is to be understood with the following modification:

[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew, or in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art. 2317.1.

Thus, the plaintiff must prove three elements: 1) the defendant either owned or had care, custody, or control of the thing in question; 2) the thing was a cause-in-fact of the plaintiffs injuries; and 3) the thing presented an unreasonable risk of harm. Gallina v. Hero Lands Co., 2003-0331, pp. 4-5 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 762, citing Baker v. Murphy Oil USA, Inc., 2001-1299, p. 4 (La.App. 4 Cir. 4/10/02), 816 So.2d 329, 335. Therefore, in order to establish premise liability the plaintiff must prove who had custody or garde over the premises.

In determining direction or control over the premises and hence custody or garde, the courts have looked to whether a defendant possesses the ability to access the premises at will and whether a defendant has the ability to alter the premises. While factually distinct, the legal principles located in Chaplain v. American Empire Surplus Lines Ins. Co., 98-1372, pp. 3-5 (La.App. 4 Cir. 3/31/99), 731 So.2d 973, are applicable to the case sub judice. In Chaplain, this Court determined that custody or garde will not be shared or transferred when there is a limited ability to inspect the premises, limited access to enter the premises, and an inability to alter the premises. See also Mix v. Krewe of Petronius, 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d 792 (no custody or garde where defendant lacked authority to make alterations).

The evidence presented in this case clarifies that the alleged accident occurred in or on the common area of the leased premises. The testimony of Pamela Renoir, an employee of the lessor, confirms that Save-A-Center, pursuant to the lease had no control over the maintenance of the common area of this shopping center. In her testimony she opined that the planter that the plaintiff tripped on was not part of the lease portion of Save-A-Center’s premises and were in fact outside of the leased premises. After an objection was lodged by the plaintiff questioning the witness’s ability to opine about the intricacies of the lease, the witness confirmed that she was a lawyer. The plaintiff withdrew his objection. A review of the lease supports this conclusion and reveals that the lessor has the responsibility for the parking lot maintenance. Provision 5.3 of the lease provides: that the lessor shall maintain the common area in good order, including the replanting and replacing of all landscaping. Provision 5.2 of the lease virtually gives the Landlord total control over the common areas of the shopping center.

Based upon the unambiguous language of the lease and the record presented to this Court, there is no basis for a finding that the Save-A-Center had garde over the planters or bollards where the accident occurred. Lacking custody or garde, a necessary element of the claim of Mr. Be-thea, Save-A-Center cannot be held liable for injuries suffered by Mr. Bethea.

| sThe trial court erred in finding the defendant liable for the injuries sustained by the plaintiff. Accordingly, we reverse the judgment of the trial court.

REVERSED.

MURRAY, J., concurs with reasons.

MURRAY, J.,

concurs with reasons.

|,In finding in Thomas Bethea’s favor, the trial court reasoned that Sav-A-Cen-ter had a duty to “report, cover, mark off or use any other means to protect the general public from any dangerous situations that exist while shopping at its store” and that it violated this duty by failing to take any action. The trial court’s factual findings are not supported by the record. The accident occurred in the parking lot area. The parking lot area is defined by the lease as a common area over which the landlord has control. Regardless of whether Sav-A-Center (the lessee) could be found to have control over this parking lot area, the record is devoid of evidence that Sav-A-Center had notice — constructive or actual — of the existence of a dangerous situation. The trial court’s judgment is thus not supported by the record. For this reason, I concur in the result.

      . Ms. Reynoir is employed by White III, L.L.C., which is the successor in interest of JLH ("Landlord''), who is the lessor under the lease at the Bullard Sav-A-Center store. Her duties included maintaining the leases and files.

      . In ARTICLE 1. Definitions of the lease, "Common Areas " means all areas and facilities within the boundaries of the Shopping Center excluding only the Leased Premises and the other buildings to the extent leased or available for lease and excluding those areas and facilities designated by the Landlord for its use or the exclusive use of a tenant. The exclusive uses of one or more tenants shall be limited to loading areas and shall not include exclusive rights to parking areas. Landlord shall comply with the provisions of Section 5.2 to the extent applicable with respect to modifications of the Common Areas. The Common Areas include, but are not limited to, if they exist from time to time, the pedestrian walkway, patios, landscaped areas, sidewalks, plazas, driveways, parking areas, roadways, retaining walls, stairs, ramps, and benches.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Diane Boudreaux, Wife of/and Richard BARNEY, Individually, and the Community of Acquets & Gains Existing Between Diane Boudreaux, Wife of/and Richard Barney v. PLAQUEMINES PARISH GOVERNMENT Through its PRESIDENT; Louisiana Department of Highways and/or Louisiana Department of Transportation & Development; BOH Brothers Construction Company, Inc., Through its President; and Linfield, Hunter & Junius, Inc., Consulting Engineers.
    No. 2009-CA-0396.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.

      Joseph Neves Marcal, III, New Orleans, LA, Counsel for Plaintiff/Appellee Diane Boudreaux, Wife of/and Richard Barney.
    H.F. Foster, III, John W. Waters, Jr., Bienvenu, Foster, Ryan & O’Bannon, LLC, New Orleans, LA, Counsel for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, and Judge DAVID S. GORBATY).
   DENNIS R. BAGNERIS, SR., Judge.

| defendant, Boh Brothers Construction, Inc., appeals a judgment of the trial court that found it committed civil trespass on Plaintiffs’, Richard and Diane Barneys’ (hereinafter “the Plaintiffs”), property. For the following reasons, we hereby affirm.

FACTS

In March of 2000, the Plaintiffs granted a right-of-way easement for a utility project to Plaquemines Parish (hereinafter “the Parish”). The Parish hired the engineering firm of Lindfield, Hunter, and Junius, Inc., (hereinafter, “Lindfield”) along with the contractor, Boh Brothers Construction, Inc., (hereinafter, “Boh”) to perform the necessary utility servitude work.

Upon completion of the utility servitude work, the Plaintiffs filed suit against the Parish, Lindfield, and Boh alleging that the work performed for the project resulted in a breach of their contract with the Parish and that the work of Boh was negligent and incompetent, which resulted in damage to their home. |2At the conclusion of a two day trial, the trial court requested that post-trial memoranda address whether Boh had the right to utilize the right-of-way for other purposes such as storage. Thereafter, the trial court dismissed the claims of the Plaintiffs against the Parish, the Parish engineers, and the State. The trial court also found that Boh’s work did not cause any damage to the home of the Plaintiffs. However, the trial court did find that Boh did not have permission to have its equipment at the front of the Plaintiffs’ property and thus committed civil trespass. The trial court awarded the sum of $17,625.66 to each plaintiff, a total of $35,251.32, plus interest and costs. In its well written reasons for judgment, the trial court stated, in pertinent part:

In the case at bar, at no place in the record did Boh get approval to use the right-of-way in front of the Barney property as a storage area for 6 months. Boh was wrong to assume that it could do this and should have notified the Parish of its intent so that the Parish could have contracted for such right.
An act of civil trespass is defined as “the unlawful invasion of the property or possession of another.” Thibodeaux v. Krouse, 2008 WL 2329740, 2002-2557[, 991 So.2d 1126] (La.App. 1 Cir. 6/6/08). The elements of trespass are: intent to enter property that belongs to another (defendant need not know the property belongs to another) and physical entrance onto the land of another. Because the right-of-way for which the Barneys contracted does not include rights of storage, the Court finds that Boh is liable for its intentional trespass. Because Boh is an independent contractor, the Parish is not vicariously liable for its act. Even if Boh’s act were considered negligent, the Parish has a “hold harmless clause” in its contract with Boh for any of Boh’s negligent acts. Plaintiffs point out that Boh’s foreman testified that the actual installation of the pipes and water lines in front of Plaintiffs’ property took merely “... one day.... ” With no evidence to contradict this, the Court is concerned that Boh continuously accessed the right of way in front of the Barney home for approximately 6 months when the work required in front of the home should have been completed within a few days. Testimony revealed that |sBoh used the right-of-way in front of the Barney home and at times possibly part of the Barneys’ property for storage of pipes, construction equipment, and construction vehicles. The record reflects that during the 6 month period of construction, the Barneys’ water line was broken several times (Mrs. Barney testified to 5 times) with flooding of their front yard, access to the home via the driveway was blocked on numerous occasions (Mrs. Barney testified to once a week), there was the constant noise and vibration from the construction equipment and vehicles, as well as dust and debris in the air as a result thereof. Plaintiffs testified that pictures and a clock fell off the wall on different occasions. A family friend testified that the dishes on the table rattled when he ate dinner with the Barneys. All this despite the fact that the Barneys requested that the equipment be moved and that the continued use of the right-of-way in front of their property cease. Mr. Barney testified that he became frustrated because despite their concerns and complaints, “they seemed like they didn’t care.” Mrs. Barney testified that Boh brought its equipment on her property which was not agreed to in the right-of-way. She testified that she told Boh to get off her property, but they would not. The record reflects significant mental anguish on the part of the Barneys who experienced frustration and feelings of helplessness. Mrs. Barney testified that she experienced hair loss as a result of the stress for which her hairdresser recommended a hair product used by cancer patients. While the Barneys’ concerns regarding damage to their home have been proven unfounded, the fact remains that they suffered constant inconvenience for 6 months. Mrs. Barney stated that she would not have signed the Right of Way document if she had known the duration and extent of the work that was to be done in front of her home.
The fact is, the right-of-way for which the Barneys did contract, does not allow for the duration or type of activities in front of their home. At no place in the Right-of-Way Agreement is there any mention of storage of construction vehicles/equipment or pipes. Contrarily, the Agreement states: “Upon completion of work upon Grantors’ property, Grantee is to return the property to its condition prior to commencement of work.” Again, work in front of the Barney home should have been completed in a matter of days. If Boh wanted to use the right-of-way for an extended period of time (here, 6 months), it should have notified the Parish to contract for this. Boh should not have assumed it had the right to |4store equipment and pipes on the right-of-way for 6 months. At the very least, the complaints of the Barneys should have made Boh inquire whether it had the right to do such a thing. Instead, the Barneys, understandably upset about the numerous inconveniences and concerns caused by 6 months of activity in front of their home, were ignored; the work activity in front of their home continued for months when it should have ceased within days.
Boh had a positive duty to minimize all damage; and upon completion of their activities, had an additional positive duty to remove their “works and debris”. This positive duty is found in the Louisiana Civil Code in art. 743 and 745:
Art. 743. Accessory rights Rights that are necessary for the use of a servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the servient estate.
Art. 745. Right to enter into the ser-vient estate The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. He may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible.
The Court finds that Boh did not adhere to this duty because it intentionally stored equipment and pipes in front of the Barney home for 6 months and subjected them to the inconveniences and mental anguish resulting there from despite the Barneys’ repeated complaints. The Barneys, who contracted for work activity in front of their property that should have been completed within days, were subjected to approximately 6 months of work activity and the stress and inconveniences discussed above. The Court finds the Parish not to be at fault because Boh did not notify the Parish of its intent to use the right-of-way in front of the Barney home as a storage facility for 6 months. Had Boh done this, the Parish |scould have contracted for such rights. The Parish contracted properly to allow the work to be done in front the Barneys’ property. If Bos [sic] needed a place for storage of their equipment and materials, it was their burden to notify the Parish of this.
The Court finds Lindfield to be without fault because their duty was only to ensure that Boh adhere to plans and specifications for the project. The storage of equipment and pipes is encompassed by the methods and means of performing the project for which the contractor, Boh, is responsible.
Damages
One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience. Lacombe v. Carter, 975 So.2d 687 (La.App. 3 Cir.2008). With regard to the amount of damages to be assessed against a trespasser, both for the invasion of plaintiffs property right and the resulting mental anguish, humiliation, and embarrassment, the trial court is afforded much discretion. Beasley v. Mouton, 408 So.2d 446 (La.App. 1 Cir., 1981[1981]). In another trespass case, an award of general damages in the amount of $29,750 was held to be an abuse of the trial judge’s “much discretion.” Awards of $10,000 and 7,500 respectively for the husband and wife who owned the property, were the maximum amounts that would compensate them for general damages they sustained, in addition to an award of $250 for property damage. Ard v. Samedan Oil Corp., 483 So.2d 925 (La.1986). Because that case arguably involved more aggravation than the case sub judice due to the escaping of cattle from a trespasser’s act and the resultant aggravation of one month of problems related to this, the Court finds that the Plaintiffs in the case at bar are entitled to approximately a present-day one-seventh of that amount. Using a formula to account for inflation acquired off the internet at www.westegg.com/inflation/, one-seventh of $10,000.00 (or $1,428.57) in 1986 adjusted for inflation would equal $2,937.61 in 2007. Multiplying this by 6 to account for the increase in time of 1 month of inconvenience in the Ard case compared to 6 months in the case at bar, yields $17,625.66. Both Mr. and Mrs. Barney are awarded this amount for a total of $35,251.32.
| (¡Boh is at fault because it should not have assumed it had the legal right to use the right-of-way for storage of equipment and pipes for 6 months. Boh should have notified the Parish of its intent to use the right-of-way in front of the Barney home for 6 months so that the Parish could have contracted for this. The Court finds Boh liable for the total amount of $35,251.32.

Boh now appeals this final judgment. On appeal, Boh asserts the following assignments of error: (1) the trial court erred in finding that Boh was on the Plaintiffs’ property without permission and thus guilty of civil trespass; (2) the trial court erred when it failed to find that Boh’s activities along the front of the Plaintiffs’ property was necessary in order to perform the work required by its contract with the Parish; (3) the trial court erred in its interpretation of the servitude; (4) the trial court erred in finding that Boh’s equipment on the front of the Plaintiffs’ property caused such aggravation and irritation to warrant compensation; and (5) the trial court abused its discretion in awarding excessive damages to the Plaintiffs.

DISCUSSION

The First Circuit Court of Appeal addressed the rights associated with a right-of-way in Carbo v. City of Slidell, 01-0170 (La.App. 1 Cir. 1/8/03), 844 So.2d 1. As stated in Carbo:

The right of use includes the rights contemplated or necessary to enjoyment at the time of the creation of the servitude, as well as rights that may later become necessary, provided that a greater burden is not imposed on the property. La. C.C. art. 642. Pursuant to La. C.C. art. 645, the following additional rules are applicable. The Parish has the right to enter with its workmen and equipment into the part of the Car-bos’ property that is needed for the construction or repair of works required for the use and preservation of the servitude. La. C.C. art. 745. See also La. R.S. 38:113 and Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981). The Parish may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible. The Parish has the right to make at its expense all works that are necessary for the use and preservation of the servitude. La. C.C. arts. 744 and 745; Tournillon v. Sewerage and Water Bd. of New Orleans, 96-1457 (La.App. 4 Cir. 2/12/97), 689 So.2d 655, writ denied, 97-0662 (La.4/25/97), 692 So.2d 1091; Dautreuil v. Degeyter, 436 So.2d 614, 617 (La.App. 3 Cir.1983). However, rights that are necessary for the use of the servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the property burdened by the servitude. La. C.C. art. 743; Jackson v. Jackson, 2000-2591, p. 10 (La.App. 1 Cir. 3/6/02), 818 So.2d 192, 199. See generally A. Yiannopoulos, 3 La. Civ. Law Treatise, Personal Servitudes, §§ 222-230, pp. 454-475 (4th Ed.2000).

Carbo, 844 So.2d at 12.

On March 9, 2000, the Plaintiffs entered into a servitude agreement entitled Servitude of Way for Water Lines and Sewer Lines Relocation with Plaquemines Parish Government. Specifically, the agreement states as follows, in pertinent part:

WHEREAS, Grantee (Plaquemines Parish Government) is in need of additional right-of-way for the purpose of construction and installation of a Parish Public Improvement Project, being the relocation of the water and sewer lines between City Price and Happy Jack as depicted on the plans prepared by Lin-field, Hunter & Junius, Inc., dated July 17, 1998, entitled, “Utility Relocation-Hwy. 23 Widening, City Price/Happy Jack, State Project No. [ XXX-XX-XXXX ] for Plaquemines Parish Government, Plaquemines Parish, Louisiana, Parish Project No. 98-05-02,” a copy of which is on file in the Plaquemines Parish Government, Land Department, 102 Avenue G, Belle Chassé, Louisiana;
WHEREAS, Grantors (the Plaintiffs) are the owners of the hereinafter described land over which the said public improvement is needed.
LOT “D” is a parcel of land 231.4 feet wide along Louisiana State Highway 23, right-of-way, and ^approximately 237 feet wide along the Parish Drainage Canal, bounded on the lower side by the property of John Anear and measuring approximately 1535.2 feet. Lot “D” to include ownership of river batture. All as more clearly shown on a plat of survey by Chalmers and Black, Civil Engineers, dated July 30, 1977, Community of Happy Jack, Parish of Plaquemines.
In accordance with survey of Hugh B. McCurdy, Jr., Land Surveyor, dated November 7, 1985, Lot “D” measures 231.4 feet front on Louisiana State Highway 23, a width in the rear of 237 feet, a depth on the sideline adjoining the property of J.L. Redmond of 1552.8 feet and a depth on the opposite sideline adjoining the property of John Anear of 1535.2 feet.
NOW THEREFORE for and in consideration of the price and sum of THREE THOUSAND THREE HUNDRED THIRTY-ONE AND 25/100 ($3, 331.25) DOLLARS CASH, which price Grantee hereby binds and obligates itself to pay to Grantors upon the approval by Grantee of Grantors’ good and unencumbered title to the hereinabove described property do hereby grant an assignable servitude for the said public improvement as shown on plan for Utility Relocation for Hwy. 23 Widening in City Price/Happy Jack by Dufrene Surveying & Engineering, Inc., dated February 12, 1999, and containing 5,125 square feet.

The Plaintiffs granted “all rights of ingress and egress to and from said servitude and easement for the purpose and benefits aforesaid.” Further, the servitude agreement stated:

Grantors reserve the right to use and enjoy the above described lands, except as may be necessary for the purpose herein granted, provided Grantors shall not interfere with nor obstruct Grantee in the exercise of its rights hereunder, and shall not construct nor permit to be constructed any house, structure, reservoir or other obstruction within the permanent right-of-way and easement except for those improvements existing as of date of this document.
Grantee shall have the right to clear, and keep clear, all trees, undergrowth and other obstructions within the right-of-way with the exception of the existing cypress tree in said servitude and no spoil is to be |9removed from Grantors’ property. Upon completion of work upon Grantors’ property, Grantee is to return the property to its condition prior to commencement of work. Grantors acknowledge and agree that the consideration provided herein constitutes full and final settlement for the right-of-way herein granted and for any and all diminution in the value of Grantors remaining property as a result of the granting of this servitude and right-of-way.

We agree with the trial court that the servitude agreement was for the purpose of laying water and sewer lines in order for the new four lane highway to be constructed, and no other. Because the right-of-way for which the Plaintiffs contracted does not include the rights of storage, we agree with the trial court that Boh should be liable for its intentional trespass when it stored pipes, construction equipment, and construction vehicles on the Plaintiffs property for approximately six months. Accordingly, we find the trial court properly found that Boh committed a civil trespass when it stored its equipment on the Plaintiffs’ property without contracting to do so.

Boh contends the trial court’s award of $17,625.66 to each plaintiff, a total of $35,251.32, for general damages was in error and/or excessive. Thus, Boh contends we should reverse or reduce the trial court on its award of damages. The Plaintiffs argue that the damage award was reasonable and well within the vast discretion of the trial court.

The trial court’s determination of the amount of an award of damages is a finding of fact. Ryan v. Zurich American Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or | inmanifestly erroneous. On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ryan, 988 So.2d at 219. Further, it is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered excessive. Carollo v. Wilson, 353 So.2d 249 (La.1977). It is only after such determination of abuse has been reached, is a resort to prior awards appropriate for purposes of then determining what would be an appropriate award for the present case.

Our review of the record shows that the Plaintiffs were in fact put through a much greater inconvenience, worriment, and frustration by Boh when it stayed on their property for the six month time period. Under these facts, we do not find the trial court abused its vast discretion in setting the general damage award in this case.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Claudia Annette SENAC v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 09-320.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.
    Rehearing Denied Dec. 9, 2009.

      Matthew D. McConnell, Elmore & McConnell, Lafayette, LA, for Plaintiff/Appellant, Claudia Annette Senac.
    Kenny L. Oliver, David O. Way, Oliver & Way, Lafayette, LA, for Defendants/Ap-pellees, Rocían Service & Supply, LLC Rocían Services, Inc.
    Gretchen Heider Mayard, Katherine Paine Martin, Attorneys at Law, Lafayette, LA, for Defendants/Appellees, State Farm Mutual Automobile Insurance Company Philip R. Smith.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

11 Plaintiff appeals the dismissal of her tort claim against defendant-driver’s employer. We affirm.

Facts

On December 12, 2005, Philip Smith was involved in an automobile accident with vehicles driven by Gloria Conques and Claudia Senac. Ms. Senac sued Ms. Con-ques, Mr. Smith, and Mr. Smith’s employer, Rocían Services (Rocían), to recover damages she suffered as a result of the accident. Ms. Senac settled her claims against Ms. Conques, her insurer, Mr. Smith, and his insurer and dismissed them from this litigation. Thereafter, Rocían filed a motion for summary judgment, asserting that it is not vicariously liable for Mr. Smith’s actions because he was not in the course and scope of his employment when the accident occurred.

Rocían relied on the deposition testimony of Mr. Smith and his supervisor, Kim Cormier, as support for its motion for summary judgment; that testimony establishes the following. Mr. Smith was employed by Rocían as a rigger on an offshore construction crew and had finished a hitch offshore shortly before the accident occurred. He and the crew with which he worked that hitch had been transported by Rocían from offshore to its office in Duson. Mr. Smith and other members of the crew had parked their vehicles at Roclan’s office while they were offshore. Mr. Smith testified that before he left Roclan’s office, Mr. Cormier asked him for a ride to his home in Sunset and that he agreed to drive him. After leaving Roclan’s office in Duson, Mr. Smith drove to a Burger King in Lafayette. The accident occurred just after he drove out of the Burger King parking lot. After the police completed their investigation of the accident, Mr. Smith drove Mr. Cormier home.

12Mr. Smith also testified that he and the rest of the crew had completed their hitch when the accident occurred and that he was not on an errand for anyone. Additionally, he testified that he always worked on a different crew; he never used his truck for errands for Rocían; he did not receive reimbursement from Rocían for mileage or money for fuel, insurance, or maintenance on his vehicle; and he was not provided a cell phone, beeper, or pager by Rocían.

Mr. Cormier testified that he was an offshore supervisor for Rocían at the time of the accident and that he was authorized to “run off’ employees from a job he was supervising, but he was not authorized to fire such employees. With regard to the day of the accident, he testified that after he returned to Roclan’s office he was unable to contact his wife to have her pick him up, that Mr. Smith offered to drive him home, and that he accepted the offer. He later admitted, however, that he was not certain if he asked Mr. Smith for a ride or if Mr. Smith offered him a ride.

Mr. Cormier was asked whether he and Mr. Smith were being compensated on their way home. He testified that Rocían crew members are guaranteed twelve hours pay for each day of their hitch, which includes all days they are on the water. He explained that they are paid twelve hours pay for each day they are on the water, whether they actually work or not, and that they are also paid twelve hours the day after the last day they work, if they reach the dock on their return trip inland after midnight. They are not paid twelve hours pay for the day after the last day of their hitch, however, if they reach the dock before midnight. Mr. Cormier also testified that the crew had completed their hitch and their work was over; that at the time of the accident, he was not doing anything which benefited Rocían and was not in a supervisory capacity over Mr. Smith; and that Mr. Smith’s giving him a ride home |shad nothing to do with his work performance. Mr. Cormier explained, as did Mr. Smith, that he did not receive reimbursement from Rocían for mileage or meals, and that Rocían did not provide him with a cell phone, beeper, or pager.

After a hearing, the trial court granted summary judgment in favor of Rocían. Ms. Senac appeals.

Motion for Summary Judgment

Appellate courts review motions for summary judgments de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the issue that is presented by the motion for summary judgment, he is not required “to negate all essential elements” of his opponent’s claim but need only point out that there is “an absence of factual support for one or more elements essential” to his opponent’s action. Id. If the opponent “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Discussion

An employer has vicarious liability for his employee’s tortious conduct if that conduct occurred “in the exercise of the functions in which [he is] employed.” [4La.Civ. Code art. 2320. In applying Article 2320, courts consider whether the employee’s tortious conduct was “within the course and scope” of his employment duties. Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226. Contrary to workmen’s compensation cases, courts strictly construe this phrase in cases involving damage claims for personal injuries. White v. Canonge, 01-1227 (La.App. 5 Cir. 3/26/02), 811 So.2d 1286. See also, Seay v. Wilson, 569 So.2d 227 (La.App. 1 Cir.1990), writ denied sub nom. Johnson v. Newman, 572 So.2d 70 (La.1991); Arledge v. Royal-Globe Ins. Co., 401 So.2d 615 (La.App. 3 Cir.1981); Lowe v. Gentilly Dodge, Inc., 342 So.2d 1231 (La.App. 4 Cir.1977).

As a general rule, if an employee’s conduct is “of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer,” it is considered to be within the course and scope of his employment. Orgeron, 639 So.2d at 226-27 (citing W. Page Keeton et al„ Pros-ser and Keeton on the Law of Torts § 70 (5th ed.1985)). Employees traveling to and from work are usually not in the course and scope of employment:

Because an employee usually does not begin work until he reaches his employer’s premises, his going to and coming from work is generally considered outside the course of his employment unless he has a duty to perform en route. Moreover, an employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.

Id. at 227.

In Orgeron, the supreme court reiterated several factors it had previously identified in Reed v. House of Decor, Inc., 468 So.2d 1159 (La.1985), which must be considered when determining whether a tort was committed within the course and [ flScope of an employee’s employment. These factors include: 1) the payment of wages; 2) the employer’s power of control; 3) the employee’s duty to perform the particular act; 4) the time, place, and purpose of the act in relation to service; 5) the relationship between the employee’s act and the employer’s business; 6) the benefits received by the employer from the act; 7) the motivation of the employee for performing the act; and 8) the reasonable expectation of the employer that the employee would perform the act.

Ms. Senac urges that consideration of these factors mandates a determination that Mr. Smith was in the course and scope of his employment with Rocían at the time she was injured and complains that the trial court wrongly performed this assessment with regard to Mr. Cormier, rather than Mr. Smith as it should have. We have assessed the Reed/Orgeron factors in light of the general rule that for an employee’s conduct to be within the course and scope of his employment it must be “of the kind that he is employed to perform, occur[ ] substantially within the authorized limits of time and space, and [be] activated at least in part by a purpose to serve the employer” and find no error with the trial court’s conclusion. Orgeron, 639 So.2d at 226-27.

Ms. Senac strongly contends that because Mr. Smith and Mr. Cormier were being paid twelve hours “guaranteed pay” at the time of the accident, this factor weighs in her favor. Mr. Smith and Mr. Cormier were being paid wages by Rocían at the time of the accident; however, their job duties were complete at that time and the wages were not paid for work being performed at that time but because they were “on the water” after midnight. While both men testified that they might be called to work at any time, they also testified that their work was complete and that neither of them was performing a service for Rocían at the time of the accident.

| nAnother panel of this court recently addressed the “wage” factor in Hargrave v. Delaughter, 08-1168, p. 7 (La.App. 3 Cir. 3/4/09), 10 So.3d 245, 250, with respect to an employee who was paid a salary and concluded that ‘“wages’ as contemplated by the supreme court [in Reed, 468 So.2d 1159] refers to piecemeal or hourly wages rather than salary. In other words, we should find that the employer was compensating the employee for the task at hand or the actual time spent while engaged in the activity.” We find the rationale applied in Hargrave applies here because, although the employees here were not paid salaries, they were paid for a period of time during which they were not performing work for their employer. Applying this rationale, we find that this factor does not weigh in favor of a finding that Mr. Smith was in the course and scope of Roclan’s employment at the time of the accident because he was not engaged in or being compensated for a specific task.

Ms. Senac also argues that Mr. Smith was compelled to acquiesce with Mr. Cor-mier’s request because Mr. Cormier was his supervisor. She relies on St. Paul Fire & Marine Ins. Co. v. Roberts, 331 So.2d 529 (La.App. 1 Cir.1976), as support for her argument. In Roberts, the court held that an employee who delivered oil, which was required for power saws used in the performance of their employer’s business, was in the course and scope of his employment notwithstanding that the delivery was made to his superior’s home on Sunday when neither of the men were working. The court first considered the facts therein, explaining:

Unquestionably, Beach possessed authority to require Roberts to work on a weekend or after ordinary working hours. While Roberts might have refused this particular request or demanded compensation, such action on his part may have jeopardized his position. The question posed is whether a servant who responds to his master’s request to perform a work-related act during off duty hours, especially where the master may require after hours work of the servant, is acting within the [7scope and during the course of his employment the same as though the servant had been ordered to perform the task.

Id. at 537 (emphasis added).

Mr. Smith agreed when asked that he was instructed, “Go wherever we tell you and do what Kim says.” However, nothing indicates that Rocían intended this to be construed outside the offshore workplace or that Mr. Smith construed it in that manner, and Mr. Cormier testified that he did not construe it or apply it in that manner. Additionally, Mr. Cormier did not have the authority to fire Mr. Smith, and there is no evidence that as an offshore supervisor, he had authority over Mr. Smith onshore.

Ms. Senac also relies on Jinks v. McClure, 344 So.2d 675 (La.App. 3 Cir.1977), as support for her position. In Jinks, this court found that a son’s substitution for his father as courier resulted in his and his father’s employer being vicariously liable for damages caused by the son’s negligence, although the son had completed his job duties, because the father’s job duties included the courier duties being performed by the son and the father was paid a salary and was provided a company vehicle by the company. Before making this determination, the court observed that “[t]he question of whether an act is within the scope of an employer’s business must be considered in the light of the particular circumstances, which indicate whether the act promotes the employer’s business. Id. at 685. No evidence even suggests that Mr. Smith’s driving Mr. Cormier home promotes Roclan’s business in any way.

The remaining factors also do not support Ms. Senac’s position. There is no relationship between the time, place, and purpose of Mr. Smith’s driving Mr. Cormier home and his service to Rocían, which provides offshore construction services. Nor is there a relationship between this act and Roclan’s business. While Mr. Cor-mier | smay have personally benefited from Mr. Smith’s act, Rocían did not. Furthermore, there is no indication that Rocían expected Mr. Smith to drive Mr. Cormier home as part of his employment, and Mr. Cormier testified that he considered the act as a favor, not employment related.

Ms. Senac has failed to establish that she can prove at trial that Mr. Smith was in the course and scope of his employment with Rocían. The only factual support for her contention is that he was being paid wages at the time of the accident, and we have explained why that factor is insufficient to carry her burden of proof. Furthermore, she has failed to establish any of the other factors pertinent to a determination that the accident occurred within the course and scope of Mr. Smith’s employment with Rocían. Accordingly, the trial court’s grant of summary judgment was not error.

Disposition

The judgment of the trial court is affirmed. All costs are assessed to Claudia Senac.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Ronald ABLES v. Frank C. MINVIELLE, Leonard H. Minvielle, Twin Pine Farms, L.L.C., and J.P. Duhe—Lambert Duhe Estates.
    No. 09-364.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      Anthony J. Fontana, Jr., Abbeville, Louisiana, for PlaintiffAppellant, Ronald Abies.
    Kevin P. Landreneau, Johanna R. Lan-dreneau, Baton Rouge, Louisiana, for Defendants/Appellees, Frank C. Minvielle, Leonard H. Minvielle, and Twin Pine Farms, L.L.C.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ¶ This litigation arises out of an accident wherein Cody Ray Abies, the son of Plaintiff, Ronald Abies (Mr. Abies), died from injuries he sustained while riding a four-wheeler on property owned by J.P. Duhe — Lambert Duhe Estates. Mr. Abies filed suit against the owners as well as the lessees of the farm land, Frank C. Minv-ielle, Leonard H. Minvielle, and Twin Pine Farms, L.L.C. (hereinafter collectively referred to as Twin Pine Farms). The parties filed countervailing Motions for Summary Judgment on the issue of liability. The trial court denied the Motion for Summary Judgment filed by Mr. Abies and granted the Motion for Summary Judgment in favor of Twin Pine Farms. Mr. Abies appeals the trial court’s dismissal of his suit against Twin Pine Farms. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations set forth in the Petition for Damages Due to Wrongful Death and Survival Action filed by Mr. Abies, Cody Abies, on or about May 8, 2007, “was riding his friend’s four-wheeler” on property being farmed by Twin Pine Farms when, “[ujnknown to [Cody Abies,] a cable was stretched across the dirt road that runs across the [property at issue herein] at a location which is about the midway point in the road where a tree line exists on both sides of the road.” Mr. Abies alleged that “[t]he cable was not marked with flags, brightly colored paint[,] or any other means to identify it to the naked eye of someone traveling down the road on a four-wheeler.” His petition further alleged:

As [Cody Abies] was traveling down the road, he saw the barrel blocking his passage and he veered to the side, right into the | spath of the cable that caught him in his chest throwing him backward off his four-wheeler and causing him to sustain serious injuries from which after a painful and agonizing time he died.

Twin Pine Farms answered the petition denying liability and specifically asserting immunity from liability pursuant to the provisions of La.R.S. 9:2800.4. Following discovery, Twin Pine Farms filed a Motion for Summary Judgment reasserting their statutory immunity under La.R.S. 9:2800.4. Mr. Abies also filed a Motion for Partial Summary Judgment seeking judgment on the issue of Twin Pine Farms’ liability.

At the hearing held on November 26, 2008, Twin Pine Farms offered the following exhibits as evidence in support of its Motion for Summary Judgment: the affidavit of Leonard Minvielle; excerpts of Leonard Minvielle’s deposition; and, a certified copy of Cody Abies’ toxicology report prepared by the Iberia Parish Coroner’s Office. Mr. Abies introduced into evidence the entire depositions of both Leonard and Frank Minvielle in support of his countervailing motion.

After taking the matter under advisement and allowing the parties to submit post-hearing memoranda, the trial court issued written Reasons for Judgment on December 11, 2008, granting Twin Pine Farms’ Motion for Summary Judgment on the issue of liability and denying Mr. Abies’ motion. In its Reasons for Judgment, the trial court declared:

In this case, Twin Pine Farms began leasing the property eight years before the accident. Leonard Minvielle erected and maintained cable barriers at all of the entrances to the farmland and within certain areas of the farmland. Defendants assert that they never gave permission to Cody Able[s] to be on [their] farmland. In fact[,] the barriers were erected to prevent trespassers from entering and installed on the barriers were signs which read “Posted, Keep Out[.”] In order to reach the barrier he ran into, he left the public road and travelled [sic] on his four[-]wheeler about a half mile. Defendants] assert[] that [Cody Abies] was clearly trespassing at the time of the accident.
Un Plaintiffs countervailing Motion for Summary Judgment, he asserts that the [D]efendant[s] [were] negligent and relies on Bourg v. Redden, 351 So.2d 1300 (La.App. 1 Cir.1977). However, as pointed out by [D]efendant[s], this case was decided prior to the enactment of [La.R.S.] 9:2800.4[,] and the law has changed to provide that the [P]laintiff must show intentional or gross negligence on the part of the [D]efendant[s]. No such showing has been made to this [e]ourt.
The [c]ourt agrees with Defendant[s’] position and grants [s]ummary [j]udgment in favor of Defendants]. The basic facts of the case are uncontroverted. Cody Able[s] was riding his four[-]wheeler on [D]efendant[s’] land without permission. [Louisiana Revised Statutes] 9:2800.4 is clear that [Defendants] cannot be liable unless there has been gross negligence. Plaintiff has the burden of proving gross negligence and was not able to support this. For these reasons, Defendants’] Motion for Summary Judgment is granted. The [c]ourt denies Plaintiffs Motion for Summary Judgment.

A judgment dismissing Mr. Abies’ claims with prejudice against Twin Pine Farms was signed by the trial court on January 22, 2009. It is from this judgment that Mr. Abies appeals.

LAW AND ANALYSIS

Assignment of Error

In his sole assignment of error, Mr. Abies asserts that genuine issues of material fact exist which prohibit Twin Pine Farms from being granted summary judgment on the issue of statutory immunity at this stage of the proceedings.

Standard of Review

In DeLafosse v. Village of Pine Prairie, 08-693, p. 2 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, 1250, writ denied, 09-74 (La.2/4/09), 999 So.2d 766, this court stated the following as to a determination of whether summary judgment is appropriate:

Appellate courts review summary judgments de novo, using the same analysis as the trial court in deciding whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A Motion for Summary Judgment must be |4granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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. La.Code Civ.P. art. 966(B). As for the burden of proof, Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the Motion for Summary Judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Discussion

Louisiana Revised Statutes 9:2800.4 provides, in pertinent part:

A. As used in this Section:
(1) “Owner” means the owner and also a tenant, lessee, occupant, or person in control of any farm or forest land or in control of any oil, gas, or mineral property.
(2) “Farm land or forest land” shall mean bona fide agricultural or timberland assessed as such for parish ad valo-rem taxes.
B. An owner of farm or forest land shall not be liable to any person, who unlawfully enters upon his farm or forest land, for damages for any injury, death, or loss which occurs while on the farm or forest land of the owner, unless such damage, injury, or death was caused by the intentional act or gross negligence of the owner.

In Roton v. Falconer, 42,452, pp. 9-10 (La.App. 2 Cir. 10/3/07), 966 So.2d 790, 795 (alteration in part in original), the second circuit analyzed the concept of “gross negligence” as follows:

Gross negligence has a well-defined legal meaning distinctly separate, and different, from ordinary negligence. Gross negligence has |Bbeen defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” It has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” [Internal citations omitted.] Rabalais v. Nash, 2006-0999 (La.3/9/07), 952 So.2d 653; Foshee v. Louisiana Farm Bureau Casualty Insurance Co., 41,842 (La.App. 2d Cir.1/31/07), 948 So.2d 1171, writ denied, 2007-0483 (La.4/20/07), 954 So.2d 169.
[Louisiana Revised Statutes] 9:2800.4 does not define “intentional act.” We find useful the definition given for the term by the Louisiana Supreme Court when considering the intentional act exception to the exclusivity provision of the Workers’ Compensation Act. In White v. Monsanto Company, 585 So.2d 1205 (La.1991), the court stated:
The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.
“Substantially certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Reeves v. Structural Preservation Systems, 1998-1795 (La.3/12/99), 731 So.2d 208.

Mr. Abies asserts that the condition which caused the death of his son was a grossly negligent condition that was admittedly created by Defendants. In his brief, Mr. Abies argues that the trial court’s “ruling was made despite specific allegations by [Plaintiff] of the ‘gross negligence’ of [Defendants].” Mr. Abies further asserts these specific allegations were supported by the evidence, i.e., the depositions of Leonard and Frank Minvielle.

| fiIn his deposition and affidavit, Leonard Minvielle attests that the cable barrier was already in existence when Twin Pine Farms began leasing the property at issue herein, and he admits that he has maintained the cable barrier in question. At his deposition, Leonard Minvielle testified, “I don’t have a sign specifically saying □warning, cable.[’] I have signs that say □posted, keep out,[’] so they should never even get to this to even know that that’s there. They shouldn’t be here to start with.” Frank Minvielle’s deposition testimony corroborates Leonard Minvielle’s assertions.

Mr. Abies argues that the testimony of Leonard and Frank Minvielle is an admission that they created the dangerous condition which killed Cody Abies; therefore, Twin Pine Farms was grossly negligent. Mr. Abies also asserts that the facts in the case of Bourg, 351 So.2d 1300, are identical to those in this case.

In Bourg, defendant strung a steel cable across a road he knew was regularly traveled by motorcyclists. Later that same day, two motorcyclists, with two occupants each, hit the stretched cable, injuring three and killing one. While Bourg is analogous in its factual content, its holding is not applicable in the instant matter since it pre-dated the enactment of La.R.S. 9:2800.4 in 1987. In Bourg, the plaintiffs were not held to the burden of proving gross negligence because they were trespassing on another’s property. Thus, we find the trial court was correct in concluding that Mr. Abies’ reliance upon Bourg was misplaced.

Considering the evidence before this court, we find no error in the trial court’s ruling that the actions of Twin Pine Farms did not constitute gross negligence; therefore, we find that the trial court did not err in concluding that Twin Pine Farms is entitled to immunity from liability pursuant to La.R.S. 9:2800.4.

|7DECREE

For the above reasons, the judgment of the trial court granting Defendants’ Motion for Summary Judgment on the issue of liability is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Ronald Abies.

AFFIRMED.