author: BLEICH, J. (Pro Tempore )

text:
    SUCCESSION OF Clayton L. TEDETON
    No. 51,507-CA
    Court of Appeal of Louisiana, Second Circuit.
    September 27, 2017
    HUDSON, POTTS & BERNSTEIN, L.L.P., By: Gordon L. James, Santa Cruz, Sara G. White, K & L GATES, L.L.P., By: John R. Hardin, Monroe, Counsel for Appellant, Byron Kirk Tedeton, Sr.
    THOMPSON, d'ENTREMONT & ROBIN, L.L.C., By: Steve C. Thompson, Baton Rouge, Counsel for Appellees, Patsy Jean Tedeton, Pamela T. Savage, Deborah T. Davis
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

In this succession proceeding, Bryon K. Tedeton, Sr., son of Clayton L. Tedeton, decedent, appeals the trial court's dismissal of his petition for probate of a purported olographic testament by the decedent. For the following reasons, we affirm the trial court's judgment.

FACTS

Clayton Tedeton died on July 5, 2007, and it was initially believed he died intestate. Clayton is survived by his wife, Patsy Jean Tedeton; son, Bryon "Kirk" Tedeton, Sr.; and two daughters, Deborah Davis and Pamela Savage. After Clayton's death, Patsy visited with an attorney concerning Clayton's estate. She told the attorney that possibly Clayton's only significant asset was his ownership interest in Tedco, Inc. ("Tedco"), a company founded by Clayton and Kirk in 1982 to sell soap products called Miracle II. Thereafter, Patsy's attorney contacted Kirk to obtain documents of corporate ownership so that he might confirm or dismiss any possible interest of Clayton in Tedco. In response, Kirk provided a stock certificate stating that he was the owner of all 1,000 shares that Tedco was authorized to issue, and Clayton had no ownership interest in the company.

In October 2007, in an attempt to settle the dispute over Tedco's ownership, Kirk filed a petition for declaratory relief, naming his mother, Patsy, and sisters, Debbie and Pam, as the defendants, and requested he be declared the owner of all Tedco stock at the time of Clayton's death. This began a litigious family quarrel over Clayton's estate. After the hearing on Kirk's petition, the trial court did not address the issue of Tedco's ownership, but instead initially decreed that the Miracle II formula was the community property of Patsy and Clayton and not an asset of Tedco. See Tedeton v. Tedeton , 46,901 (La. App. 2 Cir. 2/8/12), 87 So.3d 914 (" Tedeton I ").

Upon remand, the parties presented no further evidence. Rather, the parties made several factual stipulations and submitted the case for decision. The parties stipulated that: (1) Tedco is a validly formed Louisiana corporation and its articles of incorporation were filed on March 11, 1982; (2) the articles of incorporation identified Clayton and Kirk as Tedco's incorporators, registered agents, and the only directors; (3) Tedco has maintained its corporate existence since its inception; and, (4) Clayton transferred any and all rights he owned in the original formula utilized in the production of Miracle II soap to Tedco. The dispute over Tedco's ownership resulted in a determination that, at the time of Clayton's death, Kirk owned 50% of all issuable shares in Tedco, and Clayton owned the other 50% of the shares. This judgment was affirmed on appeal. See Tedeton v. Tedeton , 48,840 (La. App. 2 Cir. 3/12/14), 137 So.3d 686 (" Tedeton II ").

The Succession of Clayton Tedeton was opened by Patsy on August 12, 2010, and was eventually joined as a necessary party to the Tedco ownership suit. See Tedeton I and II . After some disagreement, Patsy was appointed administratrix of Clayton's estate but ordered not to interfere with the management or business of Tedco. In addition, so that Patsy could waive the bond required for estate administration, Kirk remained in physical possession of all assets supposedly belonging to Clayton's estate, including the family home and furnishings; a 10-karat diamond ring; and all of Tedco's stock and assets, namely the Miracle II formula. In 2012, upon receipt of the requested financial records for Tedco, Patsy filed another petition within the succession alleging that Kirk had transferred a significant amount of Tedco's assets to another company owned by Kirk. Patsy also claimed the financial records show that Kirk had been diverting sales from Tedco to Kirk's other company while these collective suits were ongoing.

On August 11, 2015, almost five years after the succession was opened, Kirk timely filed a petition seeking to probate a purported olographic testament written by Clayton in 1988 and supposedly leaving Tedco to Kirk alone. The subject document, in its entirety, reads as follows:

10-20-88
ON THIS DAY, Oct. 20, 1988,I give all my part ofTedco Inc. to my son KirkTedeton so he can carryon as he wishes.
/s/ Clayton Tedeton
As of this date Oct. 20, 1988Kirk is sole owner ofTedco Inc.

In response, Patsy filed a motion to dismiss Kirk's petition, claiming the document offered for probate lacked the requisite testamentary intent.

During the hearing on the motion to dismiss, the subject document was entered into evidence as a joint exhibit. On August 19, 2016, the trial court rendered a final judgment, in accordance with La. C.C.P. art. 1915(B), on the issue of testamentary intent. The trial court ruled that the document offered for probate by Kirk was not a valid will, and granted Patsy's motion to dismiss the petition, which would allow the Succession of Clayton to proceed intestate. It is from this judgment that Kirk now appeals.

DISCUSSION

In this appeal, Kirk sets forth three assignments of error. His first two assignments are related and pertain to the trial court's determination regarding the existence of testamentary intent.

Testamentary Intent

There are two forms of testaments in Louisiana: olographic and notarial. La. C.C. arts. 1570 and 1574. Louisiana C.C. art. 1575 states:

A. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament . The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.
B. Additions and deletions on the testament may be given effect only if made by the hand of the testator. [Emphasis supplied].

The fundamental question in all cases involving statutory interpretation is legislative intent. City of DeQuincy v. Henry, 2010-0070 (La. 3/15/11), 62 So.3d 43, 46. Further, according to the general rules of statutory interpretation, our interpretation of any statutory provision begins with the language of the statute itself. In re Succession of Faget, 2010-0188 (La. 11/30/10), 53 So.3d 414, 420. While the Official Revision Comments are not the law, they may be helpful in determining legislative intent. Tracie F. v. Francisco D ., 2015-1812 (La. 3/15/16), 188 So.3d 231, 238 ; State v. Jones, 351 So.2d 1194 (La. 1977).

Louisiana C.C. art. 1575 was amended by Acts 2001, No. 824, which legislatively overruled a previous judicially created rule. The 2001 Revision Comment in that Act, although not controlling, is most significant and indicative of legislative intent:

The 2001 amendment is intended to legislatively overrule Succession of King , 595 So.2d 805 (La. App. 2 Cir. 1992), which held that in an olographic testament the signature should be at the end of the testament. Otherwise, the amendment was not intended to change the law in any manner, but only to clarify it. [Emphasis supplied].

The 2001 amendment of article 1575, together with the explanatory revision comment, make it apparent that the issue addressed by the legislature concerned only form, not testamentary intent.

The only additional requirement for an olographic will is that the document itself must evidence testamentary intent to be a valid testament. Succession of Rhodes , 39,364 (La. App. 2 Cir. 3/23/05), 899 So.2d 658, 660, writs denied , 2005-0936, 2005-1044 (La. 06/03/05), 903 So.2d 459, 460. To demonstrate testamentary intent, the document must, by its own language, show on its face that it purports to dispose of the testator's property at the time of his death. Succession of Cannon , 2014-0059 (La. App. 1 Cir. 3/25/15), 166 So.3d 1097, 1101-02, writ denied , 2015-0816 (La. 6/5/15), 171 So.3d 948. In the absence of testamentary intent, there cannot be a will. Succession of Patterson, 188 La. 635, 177 So. 692 (La. 1937) ; Successions of Lain , 49,261 (La. App. 2 Cir. 8/20/14), 147 So.3d 1204, 1209. Such testamentary intent must exist when the instrument is executed and must apply to the particular instrument produced as a will. Succession of Rhodes , supra . A paper is not established as a person's will merely by proving that he intended to make a disposition of his property, similar to or even identically the same, as that contained in the paper-it must satisfactorily appear that he intended that very paper to be his will. Successions of Lain , supra , at 1210,. It is well settled that extrinsic or parol evidence cannot be used to establish testamentary intent. Id.

In evaluating this one-page, handwritten note, purportedly being Clayton's last will and testament, the trial court exercised its sound discretion and included the second sentence as "part of" the testament for the purposes of determining Clayton's intent in confecting this document. Thus, the issue herein is whether the trial court manifestly abused its discretion by considering the second sentence when evaluating the existence of testamentary intent. The clear language of article 1575, together with the 2001 Revision Comment, confirms the trial court acted within its discretion. See Succession of Cannon , supra (where the document in question was signed and dated at the top, but, regardless of the placement of the signature, the court determined the will must be read as a whole to determine whether testamentary intent was present at the time the document was executed).

The subject document contains two sentences. The first sentence states: "On this day, Oct. 20, 1988, I give all my part of Tedco Inc. to my son, Kirk Tedeton, so he can carry on as he wishes." The second sentence, which follows Clayton's signature, states: "As of this date, October 20, 1988, Kirk is sole owner of Tedco Inc." The trial court recognized that the dispositive language indicated Clayton's intent that Kirk should have his "part of Tedco," and that Clayton's intent to dispose of his property was temporally contemporaneous with confection of the document.

Although Kirk argues the phrase "carry on as he wishes" is indicative of contemplating death, this phrase is vague and indefinite, and not clear or specific enough to require a finding that Clayton was contemplating death at the time the document was executed. See Succession of Bernstine , 2004-739 (La. App. 3 Cir. 12/22/04), 890 So.2d 776, 780. Additionally, Kirk argues the words "give" and "carry on" in Clayton's writing are comparable to the word "leave," which should be taken to mean "bequeath," because the court should permit a "layman language" exception. See Succession of Hammett , 183 So.2d 416, 418 (La. App. 4 Cir. 1966), writ denied , 249 La. 66, 184 So.2d 735 (La. 1966). This argument is not persuasive; these words must be interpreted in the context of the entire document. In Hammett , the phrase "I leave nothing" to my ex-husband, is not similar or comparable to the phrases contained in the subject document. It is evident on the face of the subject document that Clayton intended to give his interest in Tedco to Kirk the very day he signed the paper.

We reject Kirk's argument regarding Carter v. Succession of Carter , 332 So.2d 439 (La. 1976), because the question there did not address determining the presence of testamentary intent, but instead related to probate of a valid olographic will, which had been previously found to evidence testamentary intent. The interpretations contemplated in Carter apply to what the testator intended to bequeath to certain legatees, which is not the same as the determination of whether or not a document offered for probate possesses any testamentary intent.

Under the facts of this case the only necessary consideration is the examination of the proffered document in comparison to the clearly written code article and comment. Here, the subject document, a purported olographic will of Clayton Tedeton, does not reveal testamentary intent and is not a valid will. Moreover, Kirk's reliance on Carter , supra , is misplaced. It is clear, from the 2001 amendment to La. C.C. art. 1575, and the cases which have interpreted the article since, that any words written in the hand of the decedent contained within the four corners of the document offered for probate may be considered in determining the presence of testamentary intent. See Succession of Cannon , supra , and Succession of Bernstine , supra .

We find the second sentence is within the four corners of the document and unquestionably related to the matter of determining testamentary intent. The trial court did not err in its interpretation of the code articles applicable to olographic wills or its use of discretion to consider the second sentence as part of the document for the purpose of determining testamentary intent. These assignments of error lack merit.

Motion to Dismiss

In his third assignment of error, Kirk argues the trial court erred by dismissing his petition to probate and granting Patsy's motion to dismiss. Kirk claims the law entitles him to an opportunity to conduct discovery and present evidence at a contradictory hearing. We disagree.

This assignment is pretermitted by the finding that the document offered for probate does not possess testamentary intent. We note that the trial court carefully and dutifully allowed each side a full opportunity to present evidence and arguments on the issue of whether or not the subject document met the requirements necessary to be considered an olographic will. If this matter were remanded for yet another contradictory hearing, the result would be identical because the only consideration could be that which is already in evidence-the purported olographic will.

CONCLUSION

The trial court neither erred in its interpretation of the Civil Code article applicable to olographic wills, nor its use of discretion to consider the second sentence in its determination that the subject document lacks testamentary intent. We affirm the ruling of the trial court in favor of Patsy Jean Tedeton, Pamela Savage, and Deborah Davis, dismissing Kirk's petition to probate. Bryon "Kirk" Tedeton, Sr., shall be cast with all costs associated with this appeal.

AFFIRMED.

      Arguments regarding this alleged breach of fiduciary duty were heard by the trial court at the same hearing that concerned the petition to probate and subsequent motion to dismiss the petition. Patsy claims that Kirk has stripped Tedco of its assets and transferred them to another company, Miracle II, LLC, a Delaware corporation established in 2008 by Kirk. In response, Kirk argues that the exceptions of peremption, prescription and res judicata bar any action related to the mismanagement of Tedco by Kirk as an officer of such, claiming this issue should have been filed within, and was actually litigated during, Tedeton I & II . The trial court has yet to rule on these exceptions, pending the current appeal concerning the purported olographic will, which bears on the question of Tedco's ownership.

      Louisiana C.C.P. art. 1915(B) allows the trial court to render a partial judgment on one or more issues and, after an express determination that there is no just reason for delay, designate that partial judgment as a final judgment for the purpose of appeal.

      An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575. Here, the parties have stipulated that the document is entirely written, dated, and signed in Clayton's handwriting, or, at least, the challenge to authenticity was pretermitted until a conclusion is reached on whether or not the document has the testamentary intent required to be considered a valid will.

      As noted by the trial court, the subject document is vague as to what "part" of Tedco Clayton wished to transfer to Kirk, which may indicate Clayton recognized his ownership interest was subject to the community property regime or that he considered some part of Tedco to belong to Patsy and possibly even his daughters. Nevertheless, this type of determination-deciphering the actual intent of the testator-is never reached under these facts because the subject document is not a valid will.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Mary M. MATTHEW v. Leila B. MATTHEW
    CA 17-294
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017 Rehearing Denied January 10, 2018
    Jack Marks Alltmont, Eric M. Schorr, April L. Watson, Sessions, Fishman, Nathan & Israel, LLC, 201 St. Charles Avenue, Ste. 3815, New Orleans, LA 70170-1052, (504) 582-1500, COUNSEL FOR DEFENDANT/APPELLANT: Leila B. Matthew
    Porteus Richard Burke, Burke and Cestia, P. O. Box 10337, New Iberia, LA 70562-0337, (337) 365-6628, COUNSEL FOR PLAINTIFF/APPELLEE: Mary M. Matthew
    Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   EZELL, Judge.

Leila Matthew appeals a trial court judgment finding she donated jewelry to her daughter, Mary Matthew. At issue in this case is whether Leila intended to donate the jewelry to Mary or whether the jewelry was intended for Mary upon Leila's death.

FACTS

Leila's mother, Leila Avery Brown McIlhenny (Mrs. McIlhenny), died on April 2, 1967, leaving three heirs: Leila, Anne Reily, and Alfred Brown, Jr. Prior to the events leading up to the present dispute, Alfred died, leaving three heirs. In February 2014, the heirs decided to divide between themselves family leases on Avery Island and Mrs. McIlhenny's jewelry, valued around $1,000,000.00, which had been in a bank box since her death. The jewelry was removed from the bank box and appraised.

Leila, Anne Reily, and Christian Brown, Alfred's son, met at Leila's house on Avery Island to divide the leases and jewelry. Christian participated in the division on behalf of himself and his siblings. The leases were divided into three equal lots. The three parties drew straws to decide the order in which they would choose the particular parcel of land with the lease they wanted. Christian chose first, Leila chose second, and Anne Reily allowed her daughter, Anne Sutherlin, the final choice because she planned on donating this lease to her daughter.

The jewelry was also divided into three equal lots based on the appraisals. There were two rings that each represented one of the lots, as the value of each ring was one-third of the total value of the jewelry. The third lot contained several pieces of jewelry which composed one-third the total value of the jewelry. Once again, the parties drew straws to determine the order in which they would pick which lot of jewelry they would receive. Anne Reily chose first and selected one of the rings. Leila chose second, and her daughter, Mary, chose the lot containing several pieces of jewelry. Christian was then left with the other ring as his selection for the third choice.

After the process was complete, Mary left with the lot of jewelry she had selected. In December 2014, Leila asked Mary to return the jewelry. Mary responded with a letter stating that she was not returning the jewelry because it was a gift from her mother to her.

On July 15, 2015, Leila withdrew $222,109.39 from a Regions Performance Checking Account. The account was maintained for Mary's benefit, but Leila was listed as a co-signatory on the account.

On November 3, 2015, Mary filed suit against Leila for return of the funds. In response, Leila filed a reconventional demand seeking return of the jewelry. Leila also sought a temporary restraining order enjoining Mary from alienating the jewelry. Mary filed a motion for partial summary judgment seeking to be declared the owner of the funds in the Regions Performance Checking Account. Subsequently, Mary filed an exception of prescription relative to the action for revocation of the donation of the jewelry.

A hearing on the partial motion for summary judgment was held on June 24, 2016. The trial court determined that Mary was the owner of the Regions Performance Checking Account.

A trial on the issue of ownership of the jewelry was held on July 14, 2016. The trial court held that Leila donated the jewelry to Mary in February 2014 and declared Mary to be the owner of the jewelry. Judgment was signed on August 31, 2016. Mary appealed the judgment to this court. Mary's only issue on appeal pertains to the trial court's ruling finding that Mary is the owner of the jewelry.

DISCUSSION

On appeal, Leila alleges that the trial court erred in disregarding her testimony that she did not intend to make a gift of the jewelry to her daughter at the present time. Leila also argues that the trial court erred in basing its judgment upon the "assumptions" or "feelings" of the witnesses. Leila argues that it was her intent that Mary receive the jewelry upon her death.

"A donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it." La.Civ.Code art. 1468. Donations inter vivos are to be made by authentic act unless otherwise permitted by law. La.Civ.Code art. 1541. "The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality." La.Civ.Code art. 1543.

The burden of establishing a donation inter vivos is on the donee who must prove the donation with strong and convincing evidence. Butler v. Reddick , 431 So.2d 396 (La.1983). Proof required to establish clear and convincing evidence requires more than a preponderance of the evidence would require, but less than what beyond a reasonable doubt would require. Farrar v. Whaley , 16-790 (La.App. 3 Cir. 2/1/17), 211 So.3d 449, writ denied , 17-409 (La. 4/13/17), 218 So.3d 626. The question of whether donative intent existed for a donation inter vivos is a factual issue which will not be reversed unless manifestly erroneous. Id.

In finding that Leila had the intent to irrevocably give the jewelry to Mary, the trial court made the following findings of fact:

The Court finds there are many inconsistencies in LEILA's recollection of the events of that Saturday in February 2014. The Court also finds if MARY took the jewelry without LEILA's consent in February 2014, it is inconceivable to believe LEILA would wait nine months to ask MARY for the jewelry and then wait another seven months to recoup the loss by withdrawing the money from MARY's account. The Court accepts the testimony of Christian Brown, Anne B. Reily, Anne Sutherland [sic] and MARY and finds:
a.) LEILA was capable on the day of selection to choose the jewelry for herself; as she had done earlier with the property lease.
b.) MARY was called by LEILA to be present for the jewelry selection for MARY to choose the pieces that MARY wanted.
c.) LEILA did not want any of this jewelry for she had her own jewelry.
d.) Christian Brown, Anne B. Reily and Anne Sutherland [sic], all felt MARY was choosing the jewelry for MARY's ownership.
e.) MARY had control over which pieces to select; to the point of allowing the remaining few pieces be divided between Christian Brown and Anne B. Reily.
f.) MARY possessed the jewelry from the date of the selection, even wearing some in public.
g.) MARY knew Leila had given MARY the jewelry.
h.) LEILA first asked MARY about the jewelry in December 2014 and it was July 15, 2015 when LEILA attempted to recoup the value of the jewelry by withdrawing $222,109.39 from MARY's account.

In 2004, Leila executed a limited power of attorney for medical purposes and general power of attorney in favor of Mary. Copies of these powers of attorney were introduced into evidence. Mary and her sister Prichard are the beneficiaries of their mother's assets pursuant to a will executed in June 2010. Mary testified that her sister has not been home in sixteen or seventeen years.

Mary testified that she moved to Avery Island in 2005 when her home in Waveland, Mississippi, was destroyed by Hurricane Katrina. After the move, Mary would bring mail to her mother daily and take her out for a drive if the weather was nice. She also did some grocery shopping and took her mother to doctor's appointments. Mary would meet her mother at the gas station to put gas in her car.

At trial, Mary testified that she selected the jewelry because her mother told her it was going to be hers and she should pick it herself. Leila told Mary she did not want any of the jewelry because her personal jewelry was prettier. After Mary selected the jewelry, she went to her car to get a bag to place the jewelry and appraisals in. When Mary got ready to leave, her mother told her to "[w]ear it with all of my love." Mary said her mother never indicated that she wanted the jewelry back at that time. Mary testified that it was not until December that her mother called her and wanted the jewelry back.

Anne Sutherlin also testified at trial. She assumed Leila was giving the jewelry to Mary because Leila told Mary to choose the jewelry since it was going to belong to her. Anne Sutherlin was surprised that her aunt gave the jewelry to Mary, but noted that Mary maintained possession of the jewelry until she left. She did hear Leila say that her personal jewelry was prettier than her own mother's jewelry that they were dividing that day.

Depositions of the parties and witnesses were also introduced into evidence and revealed the following. Leila admitted that she loved her own jewelry better, so she asked Mary to choose for her. She further testified that Mary stole her mother's jewelry and walked off with it while she and her sister were standing on the porch. Leila stated that she yelled at Mary to come back with her jewelry. Leila testified that she asked Mary to give back the jewelry many times. Leila's memory was called into question when upon further examination, Leila testified that she could not remember ever giving Mary a power of attorney in her life.

Anne Reily testified that Leila said she had more beautiful jewelry than the jewelry that was being divided so Mary should choose. Anne Reily testified that she presumed the jewelry was going to Mary because Leila told her to choose. Anne Reily remembered that Mary's selection of jewelry was placed in a bag, and at some point, Leila told Mary to take it. Mary then proceeded to get in her car, but Leila got mad as Mary was taking the jewelry to her car and asked for it back. Anne Reily stated that Leila wanted three or four pieces of jewelry to give to other grandchildren. However, Mary ended up taking all of the jewelry with her.

Christian testified that he did not know why Mary chose the jewelry instead of Leila, but assumed Mary was choosing jewelry for herself. He thought this as Anne Sutherlin had chosen a lease in place of Anne Reily, since that lease was going to be donated to Anne Sutherlin by her mother. Within a day or two after dividing the jewelry, Christian contacted Mary about purchasing some of the jewelry from her that she had selected. This email exchange was attached to Christian's deposition and shows that it took place between the parties on February 9, 2014. Christian also stated that he received a call from Mary months later asking him to call her mother and remind her that she gave the jewelry to Mary. He told Mary he did not want to get in the middle of it.

On appeal, Leila contends that she never intended to donate the jewelry to Mary. She only intended to bequeath the jewelry to Mary upon her death, referring to a 2014 will introduced into evidence. The will, which was in draft form only, left Mary "any and all jewelry of which I die possessed[.]" The draft will, which had a date of April 2014, did not leave anything to Leila's other daughter, Pritchard.

After reviewing the above evidence in the record, we cannot say that the trial court committed manifest error in its finding that Leila donated the jewelry to Mary. Leila chose her own lease when it was time but had Mary choose the jewelry. All parties were of the impression that Mary was choosing the jewelry because it was going to be hers. Leila was present when Mary chose the jewelry and watched her place the jewelry in a container and then proceed to leave with the jewelry. There is only corroborating testimony that Leila may have wanted three or four pieces of jewelry before Mary left the house to give other grandchildren. As in Terrell v. Terrell , 26,863 (La.App. 2 Cir. 5/10/95), 655 So.2d 600, while Leila's actions may be considered a lack of donative intent, her actions could also be intended as a change of heart. Clearly, the trial court had enough evidence before it to conclude that Leila intended for Mary to have the jewelry when she chose it. The donation was complete once the jewelry had been chosen by Mary as directed by Leila.

For the above reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed to Leila Matthew.

AFFIRMED.


author: COX, J.

text:
    Wynona JOHNSON, Plaintiff-Appellee v. Tyrone TUCKER, M.D., and Richland Parish Hospital District #1-A d/b/a Richland Parish Hospital, Defendants-Appellants
    Louisiana Patient's Compensation Fund, Intervenor-Appellant
    No. 51,723-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    WATSON, BLANCHE, WILSON & POSNER, By: Randall L. Champagne, Baton Rouge, Joseph G. "Jerry" Lassalle, Counsel for Appellants
    MCNEW, KING & LANDRY, L.L.P., By: Brady D. King, II, Monroe, Counsel for Intervenor
    BREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, L.L.C., By: Patrick S. Wolleson, Monroe, Russell A. Woodard, Jr., Counsel for Appellee
    Before BROWN, COX, and DREW (Ad Hoc ), JJ.
   COX, J.

Wynona Johnson ("Mrs. Johnson") brought a medical malpractice action against defendants, Tyrone Tucker, M.D. ("Dr. Tucker") and Richland Parish Hospital ("RPH"), for the death of her husband, Robert Johnson ("Mr. Johnson"). The appointed Louisiana Medical Review Panel found Dr. Tucker did not breach the applicable standard of care while treating Mr. Johnson. A jury trial followed the medical review panel's decision. The jury unanimously found that Dr. Tucker breached the applicable standard of care, which they found to be the proximate cause of Mr. Johnson's death. The defendants appeal the jury's findings. For the following reasons, we affirm.

FACTS

On June 13, 2011, Mr. Johnson visited his family physician, Dr. José Enriquez, at his clinic located at RPH. Mr. Johnson complained of shortness of breath, chest tightness, and right leg pain, which worsened when walking. Dr. Enriquez sent Mr. Johnson to the RPH emergency department. Mr. Johnson was accompanied to the emergency department by a nurse with a note listing the reasons for the transfer as chest tightness, hypoxia (shortness of breath), and a history of asthma. Dr. Tucker was the emergency department's physician on duty and examined Mr. Johnson.

When Mr. Johnson arrived in the emergency department at 10:06 a.m., his chief complaints were of chest pain and right leg pain. The emergency room nurse noted Mr. Johnson's leg pain began one week prior to his arrival in the emergency department. Dr. Tucker examined Mr. Johnson's chest and ordered a complete blood count (CBC) with differential, complete metabolic panel, brain natriuretic peptide (BNP) test, thyroid stimulating hormone (TSH ) test, electrocardiogram (EKG), chest X-ray, cardiac monitor, oxygen at two liters per nasal cannula, pulse oximeter, heparin lock, and cardiac enzymes. The CBC, EKG, and chest X-ray were all normal. TSH and BNP were within normal limits. The cardiac enzymes were negative. His metabolic panel tests were within normal ranges except the blood urea nitrogen and lactate dehydrogenase, which were slightly elevated.

In his first assessment, Dr. Tucker's impression was Mr. Johnson had "chest pain, rule out unstable angina, more consistent with costochondritis." Dr. Tucker's treatment plan was to monitor Mr. Johnson over the next several hours and then obtain a second set of cardiac enzymes six hours after the first set. If the second set of enzymes came back negative, Mr. Johnson would be discharged. While in the emergency room, Mr. Johnson was given aspirin, nitroglycerin paste, Toradol, intravenous fluids, and breathing treatments.

The second set of cardiac enzymes was obtained and the results were negative. Dr. Tucker testified that he associated Mr. Johnson's leg pain with polyarthritis, although he did not specify this diagnosis in the medical record. Dr. Tucker testified he examined Mr. Johnson and stated there was no discoloration or swelling in the leg. Dr. Tucker noted in Mr. Johnson's medical record on the muscular skeletal exam that Mr. Johnson was "within normal limits." Mr. Johnson's pain was worse when walking, which Dr. Tucker found to be more consistent with arthritic pain. Dr. Tucker noted hypertension in Mr. Johnson's chart. He visited Mr. Johnson at 5:00 p.m., discharging him with instructions to follow up with his primary care physician in the morning.

Mr. Johnson left RPH at 5:37 p.m. After arriving home, Mr. Johnson collapsed in the presence of Mrs. Johnson. At about 6:20 p.m., Northeast Louisiana Ambulance received a call from Mrs. Johnson stating Mr. Johnson was not breathing. Paramedics arrived at Mr. Johnson's home around 6:26 p.m. They found Mr. Johnson lying on the floor while family performed cardiopulmonary resuscitation (CPR). Mr. Johnson was apneic and did not have a pulse. Paramedics continued CPR and administered multiple doses of epinephrine, atropine, and bicarbonate. Paramedics were able to obtain a chemical rhythm and transported Mr. Johnson to RPH.

At 6:44 p.m., paramedics arrived at RPH with Mr. Johnson. Mr. Johnson was unresponsive upon arrival and a code blue was immediately issued. Despite resuscitation efforts, Mr. Johnson was pronounced dead at 7:02 p.m. An autopsy was ordered and revealed Mr. Johnson's cause of death to be multiple small peripheral emboli (PE) in the left lung and a large saddle embolus obstructing the left pulmonary artery.

On April 24, 2012, Mrs. Johnson filed a request for review with the Division of Administration and requested the formation of a Medical Review Panel proceeding. Mrs. Johnson requested the Medical Review Panel determine whether Dr. Tucker breached the appropriate standard of medical care in the diagnosis and treatment of Mr. Johnson and whether this breach caused Mr. Johnson's death. In August 2012, plaintiff appointed Dr. Thoma to the medical review panel.

The attorney chairman of the medical review board sent a letter to Dr. Thoma notifying him of his appointment and forwarding to him the oath that all panelists must sign, as required by the Medical Malpractice Act. The oath must be signed in the presence of a notary and states, "I, [Todd Thoma, M.D.] do solemnly swear that I will faithfully perform the duties of a medical review panel member in the matter styled, [Robert Johnson, et al versus Dr. Enriquez, Dr. Tucker, Richland Parish Hospital, Delhi Rural Health Clinic, PCF file No. 2012-00429] to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and it is my lawful duty to serve with complete impartiality and to render a decision in accordance with the law and the evidence..."

After plaintiff appointed Dr. Thoma to the panel, plaintiff contacted Dr. Thoma and retained him as an expert. On March 13, 2013, Dr. Thoma prepared and sent an expert report to plaintiff. The panel was then sent submissions prepared by both parties to review. Defendants found that plaintiff's submission to the panel included an expert report prepared by Dr. Thoma, who was also a member of the panel. Plaintiff then requested Dr. Thoma be removed from the panel and a new panel member was selected. The panel subsequently found in favor of Dr. Tucker in a unanimous opinion on September 23, 2014. On October 23, 2015, Mrs. Johnson filed a lawsuit and the case proceeded to trial.

Dr. Kyle Happle testified that Mr. Johnson's cause of death, pulmonary embolism (PE), is a type of blood clotting in the lungs. He stated PE occurs when a blood clot has broken off from somewhere in the body and travels through the patient's veins, through the heart, and into the lungs. Dr. Thoma stated a ventilation-perfusion (VQ) scan, computed tomography angiography (CTA) scan, or computerized axial tomography (CAT) scan with angiography is used to take a picture of the lung in order see blood clots. Dr. Thoma reviewed records from RPH and confirmed these scans were not available at RPH in June 2011.

Dr. Happle stated deep vein thrombosis (DVT) is a type of blood clotting in the legs. Jack McFarland, Jr., lab manager for RPH, testified to the following regarding the D-dimer test. A D-dimer is a blood screening test to determine whether or not somebody has a blood clot. A D-dimer is used to screen for any type of blood clotting, including PE and DVT. The D-dimer is a reliable way to test for clotting activity, but not to actually diagnose blood clotting because there are other factors that can elevate a D-dimer. As of June 2011, RPH did not have the lab equipment to perform a D-dimer test. The procedure for RPH to perform a D-dimer test was to collect the blood sample and send the sample to an outside laboratory.

Gwyn Ogden, director of radiology at RPH, stated ultrasounds of the veins can be used to diagnose DVT by detecting the presence of blood clots in the veins. She also stated that prior to June 2011, ultrasounds were used in the emergency department of RPH for the purpose of screening for blood clots.

Dr. Happle testified that PE and DVT are both treated by giving the patient a blood thinner in order to keep the blood clot from growing and allow the body to absorb the clot. He stated blood thinners and diagnostic tests are ordered to prevent the clot from moving into the lungs, which is fatal. Dr. Thoma stated, and the other physicians agreed, that when both testing and treatment are performed, PE and DVT have a 90 to 95% survival rate. They also agreed that about one third of the patients with PE who go untreated will die.

At trial, Dr. Tucker stated he felt there was a low probability of PE when diagnosing Mr. Johnson. Costochondritis is common in people who have polyarthritis, which Dr. Tucker felt could explain the chest pains. Dr. Tucker also felt Mr. Johnson's history of untreated hypertension and asthma were causes for his chest pain. He stated there was no discoloration or swelling of Mr. Johnson's leg, which led him to eliminate DVT in his diagnosis. Dr. Tucker stated he ordered Mr. Johnson be administered Toradol for the arthritis in his leg and costochondritis in his chest. The breathing treatment was ordered for Mr. Johnson's shortness of breath. Dr. Tucker stated these two treatments alleviated Mr. Johnson's complaints of pain and shortness of breath.

The plaintiff called Dr. Thoma to testify as to the standard of care for a physician working in a hospital's emergency department. Dr. Thoma is an expert in emergency medicine. Dr. Thoma reviewed the testimony of Dr. Tucker, death certificate, autopsy report, emergency room records, and clinic notes on Mr. Johnson from June 13, 2011. Dr. Thoma concluded that Mr. Johnson went to the emergency room with clear, classic signs and symptoms of DVT or PE because he had leg pain, chest pain, an elevated heart rate, and complaints of shortness of breath.

Dr. Thoma was of the opinion that Dr. Tucker did not comply with the standard of care that is taught to emergency room physicians. He stated he did not agree with Dr. Tucker's explanation of the leg pain because of arthritis. Dr. Thoma stated arthritis does not occur in the upper leg, but in the joints. He testified that if there is a low probability of PE, which was Dr. Tucker's opinion, the D-dimer test is part of the standard of care used to rule out PE.

Dr. Thoma believed the blood clot was in Mr. Johnson's leg at the time he went to the emergency room with chest and leg pain. The standard test he would have ordered to check Mr. Johnson's leg would have been an ultrasound. Dr. Thoma stated Dr. Tucker was clearly outside the standard of care with high probability of patient harm.

On cross-examination, the defendants sought to confront Dr. Thoma with his signed panel oath. Plaintiff objected and requested a bench conference. The trial court excused the jury and conducted the hearing outside the jury's presence.

The defendants argued before the trial court that they sought to include the signed panel oath to demonstrate Dr. Thoma was not credible because "his word is no good if he signs an oath that means nothing to him." The plaintiff argued Louisiana Code of Evidence article 403, stating the probative value was outweighed by the potential to mislead and confuse the jury. Dr. Thoma stated he had no recollection of being appointed to the medical review panel or signing the oath. He also explained that he serves on multiple medical review panels every year and his opinion would be the same regardless of whether he was a retained expert or panelist. The trial court ruled that line of questioning would not be allowed because it was prejudicial and served no practical purpose. The trial court further stated, "...he signed an oath on a panel that he never actually served on, that doesn't reflect bias..."

Dr. Happel is an expert in pulmonary medicine and critical care. Dr. Happel reviewed Mr. Johnson's emergency room records, medical history records, autopsy report, death certificate, Dr. Tucker's deposition, and the testimony of two of the three medical panel members. He testified the diagnosis of PE can be a "difficult" and "sneaky diagnosis." Dr. Happel testified that in many cases of PE, the classic signs and symptoms are not present. In Mr. Johnson's case of chest and leg pain, he would put PE and DVT at the top of his diagnosis list. He was of the opinion that although Mr. Johnson's symptoms and presentation were not "classic textbook constellation," he should have received a D-dimer test to be able to say with confidence that there was not a clot.

Dr. Enriquez is an expert in the field of family medicine. He testified to Mr. Johnson's medical history. Dr. Enriquez stated Mr. Johnson was noncompliant because he did not regularly take his medications and missed appointments. He testified he examined Mr. Johnson's leg and did not find any swelling, redness, or discoloration, which is typical in someone with DVT. Dr. Enriquez stated Mr. Johnson's leg pain, especially when walking, is more associated with arthritis. With a blood clot, he would expect pain regardless of sitting or standing.

Dr. Fred Yates is an expert in emergency medicine and served on the medical review panel for Mr. Johnson's case. Dr. Yates testified that the panel concluded Dr. Tucker met his standard of care when treating Mr. Johnson. When the suit proceeded to court, Dr. Yates was given copies of the other doctors' depositions. He testified that after reading the additional information, his opinion did not change. Dr. Yates was of the opinion Dr. Tucker absolutely did everything he was supposed to do in regard to Mr. Johnson. Dr. Yates stated that if Dr. Tucker felt another diagnosis was more likely than PE, then the criteria do not require him to look for PE.

Dr. Mark Haile is an expert in emergency medicine and served on the medical review panel for Mr. Johnson's case. Dr. Haile was also given depositions to review after the suit proceeded to court. Dr. Haile's opinion about whether or not Dr. Tucker committed medical malpractice had not changed. He felt Dr. Tucker was reasonable in treating Mr. Johnson and met the standard of care required of him.

The third physician on the medical review panel was Dr. Kerry Anders, an expert in the field of family medicine. Dr. Anders was also given depositions to review after the suit proceeded to court. His opinion had not changed since the medical review panel expressed its opinion in September of 2014. The use of the D-dimer test to screen for blood clots was not discussed until after the suit proceeded to trial. Dr. Anders testified that the discussion of whether or not a D-dimer should have been ordered did not change his opinion. He still felt Dr. Tucker met the standard of care.

Dr. Paul Schuler was called as an expert witness by the defendants. Dr. Schuler is an expert in the areas of pulmonology, critical care medicine, and internal medicine. Dr. Schuler reviewed Mr. Johnson's medical records, emergency room records, and depositions pertaining to this case. Dr. Schuler agreed with Dr. Tucker's opinion that PE was a low probability in Mr. Johnson. Dr. Schuler stated he would have tested Mr. Johnson for causes that were more likely than PE. He testified that if Dr. Tucker did not think there was a blood clot in Mr. Johnson's leg, then not ordering an ultrasound was acceptable.

The jury voted unanimously in favor of the plaintiff, Mrs. Johnson. The jury found the plaintiff proved the standard of care applicable to the defendant, that the defendant failed to comply with the standard of care, and the defendant's failure to comply with the standard of care proximately caused the patient's death. The jury awarded the plaintiff $500,000.

LAW

The defendants raise two issues on appeal. The first issue is whether the trial court erred in excluding credibility evidence during the cross-examination of Dr. Thoma. The second issue is whether the jury was manifestly erroneous in accepting Dr. Thoma's testimony concerning the standard of care and rejecting the testimony of four other medical experts.

Complaint of an alleged erroneous evidentiary ruling "may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected..." La. C.E. art. 103(A) ; Simmons v. Christus Schumpert , 45,908 (La. App. 2 Cir. 6/15/11), 71 So.3d 407, writs denied , 2011-1592 (La. 10/7/11), 71 So.3d 317, and 2011-1591 (La. 10/7/11), 71 So.3d 318. The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed absent a clear abuse of that discretion. On appeal, the court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. The determination is whether the error, when compared to the entire record, has a substantial effect on the outcome of the case, and it is the complainant's burden to so prove. Simmons, supra .

The concept of substantial right, as used in Louisiana Code of Evidence article 103, is "akin to the harmless error doctrine applicable in both civil and criminal matters." Richardson v. Richardson , 07-0430 (La. App. 4 Cir. 12/28/07), 974 So.2d 761. Error has been defined as harmless when it is "trivial, formal, merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case." Buckbee v. United Gas , 561 So.2d 76 (La. 1990) ; Gerhardt v. Gerhardt , 46,463 (La. App. 2 Cir. 5/18/11), 70 So.3d 863. Prejudicial error "affects the final result of the case and works adversely to a substantial right of the party assigning it." Error is prejudicial when it consists of the exclusion of evidence related to a "material point in issue" and adversely affects the substantial rights of the party opposed to the exclusion. Buckbee, supra.

In a medical malpractice action, the plaintiff has the burden of proving: (1) the applicable standard of care, (2) that the standard of care was breached, and (3) that as a proximate result of the breach, the plaintiff sustained injuries that would not otherwise have been incurred. La. R.S. 9:2794(A) ; Patten v. Gayle , 46,453 (La. App. 2 Cir. 6/22/11), 69 So.3d 1180. The third element, causation, is subject to the manifest error standard of review. In a medical malpractice claim, great deference should be given to the factfinder when medical experts express different opinions relevant to causation. Patten, supra.

A court of appeal's review of a trial court's or jury's finding of fact is well settled, as detailed by the Louisiana Supreme court in Rosell v. ESCO , 549 So.2d 840 (La. 1989) :

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (citations omitted)

DISCUSSION

The defendants argue in their first assignment of error that the trial court erred in excluding credibility evidence during the cross-examination of Dr. Thoma. The defendants sought to question Dr. Thoma regarding his breach of the medical panel oath. We find that any error in refusing to allow the questioning of Dr. Thoma's medical panel involvement is harmless because it did not have any substantial effect on the outcome of the case.

When compared to the totality of the record, the error did not affect a substantial right of the defendants. Although we believe the trial court should have allowed the questioning regarding Dr. Thoma's medical panel oath, the error of excluding the evidence is harmless. The testimony that Dr. Thoma signed the medical panel oath before being retained as an expert did not relate to a material point of issue in the case. Dr. Thoma's medical review panel history in this case has no bearing on whether Dr. Tucker breached the standard of care and whether that breach was the proximate cause of Mr. Johnson's death.

The jury heard ample testimony from multiple doctors as to whether Dr. Tucker breached the standard of care. The defendants presented testimony from each member of the medical review panel member stating Dr. Tucker did not breach the standard of care. The defendants also offered the testimony of Dr. Schuler, who stated if Dr. Tucker did not think there was a blood clot in Mr. Johnson's leg, then not ordering an ultrasound was acceptable.

The plaintiff offered testimony from Dr. Thoma, who testified Dr. Tucker breached the standard of care taught to emergency room physicians. Plaintiff also presented testimony from Dr. Happle, who stated PE should have been considered in the differential diagnosis of Mr. Johnson. Dr. Tucker testified that although he did not write it down, he considered PE when diagnosing Mr. Johnson, but dismissed it because he felt other conditions better explained the symptoms. Dr. Happle further testified that even if there is a low suspicion of PE, the D-dimer test should be performed.

After hearing all the experts' opinions, the jury was unanimous in its decision that Dr. Tucker breached the applicable standard of care and that breach caused the death of Mr. Johnson. The fact that Dr. Thoma signed an oath for a panel on which he did not ultimately serve would not have had a substantial impact on the jury's unanimous decision. Considering the entire record, any error by the trial court in excluding the evidence is harmless. Therefore, a reversal is not warranted.

The appellants argue in their second assignment of error that the jury was manifestly erroneous in accepting Dr. Thoma's testimony concerning the standard of care and rejecting the testimony of four other medical experts. We do not agree with this argument. Dr. Thoma's opinion was that Dr. Tucker did not comply with the standard of care that is taught to emergency room physicians. As stated above, Dr. Thoma was not the only expert who believed further testing should have been ordered. Dr. Happle stated that even if there is only a low suspicion of PE, the D-dimer test should have been ordered.

The jury listened to conflicting testimonies as to the applicable standard of care and whether Dr. Tucker breached that standard of care. The jury had a choice between two permissible views of the evidence. Either Dr. Tucker breached the applicable standard of care by not ordering further tests, or the standard of care did not require the ordering of further tests. The jury chose the view that further tests should have been ordered.

According to Rosell, supra , the jury is permitted to credit the testimony of Dr. Thoma over the testimony of other witnesses. In ruling in favor of Mrs. Johnson, the jury found Dr. Thoma's expert testimony to be credible. Dr. Thoma's testimony was not contradicted by any objective evidence. Dr. Thoma's background includes both practicing and teaching emergency room medicine. His testimony was not so implausible on its face that a reasonable factfinder would not credit it. After reviewing the record, it was reasonable for the jury to accept the view that Dr. Tucker breached the standard of care and that breach was the proximate cause of Mr. Johnson's death.

CONCLUSION

For the reasons stated above, we affirm the trial court. We do not find the trial court committed a reversible error by excluding Dr. Thoma's medical panel history in this case. Any error by the trial court in excluding the evidence does not affect a substantial right of the appellant. A reversal is not warranted.

We do not find the jury was manifestly erroneous in accepting Dr. Thoma's testimony concerning the standard of care. The jury had a choice between two permissible views of the evidence. We do not find any manifest error in the jury's determination that Dr. Tucker breached the applicable standard of care and that breach was the proximate cause of Mr. Johnson's death. Costs associated with this appeal are assessed to the appellants.

AFFIRMED.


text:
    Brenda MILLS, Plaintiff-Appellant v. Randy MILLS and State Farm Mutual Automobile INS., Co., Defendants-Appellees
    No. 51,509-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    JOHN CHARLES MILKOVICH, Counsel for Appellant
    CASTEN & PEARCE, APLC, By: Marshall Reeves Pearce, Counsel for Appellees
    Before COX, BLEICH (Ad Hoc ), and GASKINS (Pro Tempore ), JJ.
   COX, J.

Appellant, Brenda Mills ("Brenda"), appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, wherein the trial court granted a motion for summary judgment in favor of Appellee, State Farm Mutual Automobile Insurance Company ("State Farm"). Brenda contends the trial court erred in dismissing her Uninsured/Underinsured Motorist ("UM") claims under three separate UM policies. She prays that the trial court's judgment be reversed. For the following reasons, we affirm.

FACTS

Randy and Brenda Mills are husband and wife; they have been married since 1987. During their marriage, Randy bought a 2004 Kawasaki motorcycle. The motorcycle was registered solely in his name, he was the only one to drive the motorcycle, and was the only named insured. Randy did not reject UM coverage on the motorcycle.

Randy purchased UM coverage on the motorcycle through State Farm. State Farm issued the policy, which provided $50,000/$100,000 liability coverage, and $50,000/$100,000 UM coverage.

In addition to the motorcycle, both Randy and Brenda owned a 2004 GMC Envoy and a 2005 Chevy Pickup, each registered in both of their names. They purchased separate policies on each of the two vehicles from State Farm, which listed Randy and Brenda as named insureds. Each of the separate policies provided $50,000/$100,000 liability coverage, and $50,000/$100,000 UM coverage. Neither Randy nor Brenda rejected UM coverage under these policies.

On July 21, 2012, at approximately 9:00 a.m., Randy was driving the motorcycle with Brenda as a passenger. Randy lost control, admittedly through his own fault and negligence, went off the road, and entered a ditch. Brenda claimed she suffered serious injuries, including blurred vision, an open wound on her forehead that required stitches, a right hand injury, and several spinal injuries. She was hospitalized for three days. To date, she stated her medical bills exceed $42,545. Brenda also claimed lost wages, loss of employment benefits, loss of enjoyment of life, and emotional damages.

Brenda attempted to simultaneously recover liability and UM coverage under the State Farm policy covering the motorcycle, while also seeking to recover under the UM provisions of the two additional policies State Farm issued for their other vehicles. State Farm paid Brenda the $50,000 policy limit owed under the liability policy purchased by Randy on the motorcycle. However, Brenda claimed this amount was insufficient to cover her losses from the accident. State Farm declined to pay UM benefits to Brenda under any of the three separate UM policies issued by State Farm on the motorcycle, the Envoy, and the Chevy.

On March 22, 2016, State Farm filed a motion for summary judgment. After hearing the pleadings, evidence, briefs, and arguments of counsel, the trial court granted State Farm's motion, dismissing Brenda's claim for UM coverage. The trial court emphasized this was a one-vehicle accident and, therefore, UM coverage does not come into play. Brenda now appeals.

DISCUSSION

A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, pursuant to La. C.C.P. art. 966. The burden of proof for a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(D)(1).

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court must use the same criteria that governed the trial court's determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith , 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243.

An insurance policy is a contract between the two parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Mayo v. State Farm Mut. Auto Ins. Co. , 2003-1801 (La. 2/25/04), 869 So.2d 96. Interpretation involves ascertaining the common intent of the parties to the contract. La. C. C. art. 2045. Words and phrases used in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. La. C. C. art. 2047 ; Marshall v. Louisiana Farm Bureau Cas. Ins. Co. , 50,190 (La. App. 2 Cir. 11/18/15), 182 So.3d 214. "An insurance contract should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms to achieve an absurd conclusion." Mayo, supra.

"The interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved on motion for summary judgment." Marzell v. Charlyn Enters., LLC , 51,209 (La. App. 2 Cir. 2/15/17), 215 So.3d 405. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and impose and enforce reasonable conditions on policy obligations they contractually assume. Id. A court should grant the motion for summary judgment only when it is clear that the provisions of the insurance policy do not afford coverage. Id.

An insurer has the burden of proving that a loss comes within a policy exclusion. Ilgenfritz v. Canopius U.S. Ins. , 51,530 (La. App. 2 Cir. 8/9/17), 243 So.3d. 1109, 2017 WL 3400853. Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. La. C. C. art. 2056 ; Kottenbrook v. Shelter Mut. Ins. Co. , 46,312 (La. App. 2 Cir. 5/18/11), 69 So.3d 561, writ denied , 2011-1293 (La. 9/23/11), 69 So.3d 1166. Exclusionary clauses in an insurance policy are strictly construed. For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each alternative interpretation must be reasonable. Mayo, supra. If the policy wording at issue is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Id. Whether the contract language is clear and unambiguous is a question of law. Ilgenfritz, supra.

The pertinent policy provisions at issue in this case are as follows:

Insuring Agreements
1. Under Uninsured Motor Vehicle Coverage, we will pay nonpunitive damages for bodily injury an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle. The bodily injury must be:
a. Sustained by an insured; and
b. Caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.
Uninsured Motor Vehicle does not include a land motor vehicle:
1. Whose ownership, maintenance, or use is provided Liability coverage by this policy;
2. Owned by, rented to, or furnished or available for the regular use of you or any resident relative[.]
Exclusions
THERE IS NO COVERAGE:
1. FOR AN INSURED WHO SUSTAINS BODILY INJURY WHILE OCCUPYING A MOTOR VEHICLE OWNED BY THE INSURED IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.

In her first argument, Brenda asserts that the UM Statute supports coverage. She argues that the statute allows the guest passenger of an at-fault vehicle to recover under the driver's UM coverage when there is UM coverage on the wreck-involved vehicle in which the guest passenger was injured and the driver's liability coverage is inadequate to cover the guest passenger's damages. However, the UM Statute is subject to exceptions included in the policy. Additionally, La. R.S. 22:1295(1)(e) states:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including the resulting death of an insured, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

La. R.S. 22:1295(1)(e) essentially repeats State Farm's policy exclusion. The exclusion provision bars Brenda from receiving UM coverage because she has an ownership interest in the motorcycle. Randy purchased the 2004 Kawasaki motorcycle during his marriage to Brenda, which makes the motorcycle part of the community property regime, unless there is proof that it is separate property. There is no documentation to the contrary contained in the record, and this is not a genuine issue of material fact, as it is plainly stated in Brenda's brief. The UM Statute, therefore, does not support UM coverage.

Next, Brenda contends that the UM Insuring Agreement provides UM coverage. She claims that a "literal, common sense" interpretation of the agreement establishes that the State Farm policies provide UM coverage for her damages. While the "Insuring Agreement" provision purports to pay nonpunitive damages for bodily injuries sustained by an insured that were the result of an accident involving the use of an uninsured motor vehicle, Brenda fails to take into consideration the definition of an uninsured motor vehicle, as well as the exclusion provision.

State Farm's policy states that an uninsured motor vehicle does not include a vehicle whose policy provides liability coverage. The motorcycle does, and has already, provided liability coverage to Brenda in the amount of $50,000. Additionally, the definition of an uninsured motor vehicle does not include a vehicle owned by "you or any resident relative[.]" As a spouse, Brenda falls under the policy definition of resident relative and cannot receive UM coverage. The Insuring Agreement does not support UM coverage.

Brenda also argues that ambiguous terms must be construed against the insurer in favor of the insured. As there do not appear to be any ambiguous terms in the policy and Brenda does not specifically note any ambiguous terms in her brief, this argument is without merit.

Further, Brenda states that the State Farm policies indicate that an insured may recover under both the liability and UM coverage. Louisiana courts have continuously upheld language prohibiting insured claimants from recovering under both the liability and uninsured motorist provisions of the same policy. In Nelson v. Robinson , 44,059 (La. App. 2 Cir. 4/22/09), 10 So.3d 356, this Court explained that the "UM statute does not require that an injured guest be afforded coverage under both the liability and UM coverages of the host's policy where the negligence of the host caused the accident."

Brenda's recovery under the liability provision of the motorcycle policy issued to Randy precludes Brenda from collecting under the policy's UM provision. The motorcycle cannot act as both the insured and uninsured vehicle for a single policy. As such, the trial court was correct in denying Brenda's attempted recovery under the motorcycle policy's UM provision.

Brenda next asserts that the policies do not exclude coverage for her damages. She believes the exclusion prohibits UM coverage where the wrecked vehicle was owned by the insured, but not specifically insured by the policy. Thus, according to Brenda, the policy precludes UM recovery where the insured had not bought UM coverage on the wrecked vehicle, and she notes that the motorcycle is specifically listed as insured in the UM policy. This, however, is not what the exclusion provision sets forth. As the exclusion provision has previously been discussed, we will only briefly revisit this argument.

The policy defines "your car" as a vehicle listed on the Declarations Page of the policy. There is no coverage for bodily injury sustained by an insured while occupying a vehicle they own if it is not their car. Brenda has a community interest in the motorcycle, as it was acquired during the marriage, and the motorcycle is listed as the insured vehicle on the policy. Thus, the exclusion provision is applicable and does not provide UM coverage to Brenda under these facts.

Additionally, Brenda does not believe that the nonduplication provision precludes UM coverage. The provision states:

We will not pay under Uninsured Motor Vehicle Coverage or "Economic-Only" Uninsured Motor Vehicle Coverage any damages:
1. That have already been paid to or for the insured:
a. By or on behalf of any person or organization who is or may be held legally liable for the bodily injury to the insured; or
b. For the bodily injury under Liability Coverage of any policy issued by the State Farm Companies to you or any resident relative.

Specifically, Brenda contends that it was State Farm's intent to avoid double payment to a claimant, i.e. , prevent a claimant from recovering under both the liability coverage and UM coverage for the same damages. She states that her UM recovery, however, would not double the compensation for damages, but would rather be an attempt to recover 100% compensation.

The provision is clear that State Farm will not pay damages under UM Coverage that have already been paid to the insured for bodily injury under Liability Coverage of any policy issued to any resident relative. As defined by the policy, resident relative means "a person, other than you, who resides primarily with the first person shown as a named insured on the Declarations Page and who is related to that named insured or his or her spouse by blood, marriage, or adoption[.]" As Randy's spouse, State Farm was not required to pay Brenda damages under the UM provision because they had already paid her under the liability provision.

In her brief, Brenda heavily relies on Mayo, supra. In that case, the wife was injured in a two-car accident while riding as a guest passenger in a truck driven by her husband. Prior to their marriage, the husband had purchased the truck, and the wife had purchased a Geo Spectrum, which made both vehicles the separate property of each spouse. The wife had selected UM insurance, but the husband rejected it. The Louisiana Supreme Court emphasized that because the spouses acquired both vehicles prior to the establishment of the community property regime, neither spouse owned the other's vehicle, so the wife was injured while occupying a vehicle she did not own. The Court allowed the wife to recover UM benefits under her own State Farm policy.

The instant case is distinguishable from the facts in Mayo, supra , as it involves community property. Brenda is unable to recover UM benefits under the motorcycle, Envoy, or Pickup because she has an ownership interest in them. As such, this argument lacks merit.

Finally, Brenda contends she has a right to recover under other UM policies. La. R.S. 22:1295(1)(c) provides:

If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subparagraph (1)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under such policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following with respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, and the following priorities recovery under uninsured motorist coverage shall apply:
i. The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary.
ii. Should that primary insured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

"Generally, the UM coverage of the occupied vehicle is the applicable coverage, and Section [ (1)(c) ] establishes the general rule that the insured may not stack UM coverages even when the insured has UM coverage available to him under more than one policy." Rowe v. Williams , 41,082 (La. App. 2 Cir. 8/23/06), 938 So.2d 1185. The motorcycle was the occupied vehicle at the time of the accident. As previously stated, Brenda recovered under the liability provision of the motorcycle policy and was thus precluded from simultaneously recovering under the UM provision of that same policy. It is well settled that insureds may not stack UM coverage under more than one policy. Therefore, Brenda cannot recover under the UM provisions of the GMC Envoy or the Chevy Pickup.

CONCLUSION

State Farm's policy clearly does not support UM coverage in this case. Brenda was involved in a one-vehicle accident, caused solely by the negligence and fault of her husband, Randy. Brenda had an ownership interest in the motorcycle because it was purchased during her marriage to Randy and thus constitutes community property. State Farm paid Brenda $50,000 under the liability provision of the motorcycle policy. For these reasons, she is precluded from receiving UM coverage under the motorcycle, Envoy, or Pickup policies. As there is no genuine issue of material fact present, the trial court was correct in granting State Farm's motion for summary judgment. All costs of this proceeding are to be paid by Appellant, Brenda Mills.

AFFIRMED.

      The policy defines the phrase "Your Car" as the "vehicle shown under 'YOUR CAR' on the Declarations Page." Under the motorcycle policy, the term "car" includes "a 2-wheel land motor vehicle with wheels in tandem designed for use primarily on public roads."


text:
    STATE of Louisiana, Appellee v. James J. BRADLEY, Appellant
    No. 51,728-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, GEARY STEPHEN AYCOCK, Assistant District Attorney, Counsel for Appellee
    Before WILLIAMS, COX, and GASKINS (Pro Tempore ), JJ.
   COX, J.

This criminal appeal arises from the Fourth Judicial District Court, Ouachita Parish, Louisiana. In 1993, the defendant, James J. Bradley, pled guilty to second degree murder, in violation of La. R.S. 14:30.1. He was sentenced to the statutorily mandated sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The trial court vacated Bradley's original sentence and resentenced him to life imprisonment with the benefit of parole. Bradley filed a motion to reconsider, which was denied. Bradley now appeals his sentence. For the following reasons, we affirm Bradley's sentence.

FACTS

On January 14, 1992, James Fulmer was shot and killed while sitting at his dining room table. Bradley, who was 16 years old at the time, was charged with Fulmer's murder. Bradley pled guilty to the second degree murder of Fulmer. He was subsequently sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

On June 19, 2013, Bradley filed a motion to correct an illegal sentence. Bradley argued that his mandatory life without parole sentence was illegal under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because he was a juvenile at the time he committed the crime. Bradley argued he should be resentenced to the lesser responsive verdict of manslaughter in accordance with State v. Craig , 340 So.2d 191 (La. 1976).

The state responded by stating the time period for filing an application for post-conviction relief had lapsed and that Miller, supra , was not retroactive. On July 15, 2013, the trial court issued an order staying the motion pending "significant litigation" relevant to the motion. On February 24, 2016, Bradley filed a pro se motion seeking the appointment of counsel to represent him in the resentencing hearing, which was granted. On May 25, 2016, the trial court orally rejected Bradley's pro se motion for resentencing to the extent he sought to be resentenced to the lesser responsive verdict of manslaughter.

On July 27, 2016, Bradley filed a pro se motion to correct an illegal sentence, setting out the same arguments found in his earlier motion, and requested an order setting a date for the resentencing hearing. In a hearing held on August 1, 2016, the trial court denied Bradley's motion to the extent he sought resentencing to the lesser responsive verdict of manslaughter. The trial court held that its only consideration in resentencing Bradley was his parole eligibility. The trial court set a hearing date to allow the prosecution and defense to present aggravating and mitigating factors.

On December 19, 2016, the trial court conducted the resentencing hearing. The trial court heard the state's evidence regarding aggravating factors and reviewed a presentencing investigation report. Bradley's sentence was vacated by the court. The trial court stated it would consider the state's evidence and, if it found the state had sustained its burden to prove that Bradley was "the worst of the worst," it would give Bradley the opportunity to submit mitigating evidence at a later date.

On February 16, 2017, the trial court orally resentenced Bradley to life imprisonment with the possibility of parole. The trial court stated it was preparing written reasons for the ruling. Bradley objected to the ruling and provided notice of his intent to appeal the sentence.

On February 21, 2017, Bradley filed a pro se "Motion to Clarify Sentence Nunc Pro Tunc," which was denied on March 1, 2017. On March 1, 2017, Bradley filed a pro se "Motion to Reconsideration of Sentence Pursuant to LSA-C.Cr.P. R.S. 15:574.4(B) Nunc Pro Tunc," and a pro se "Motion to Vacate An Illegal Sentence Pursuant to Art. 872, LSA-C.Cr.P. R.S. 15:574(B)." Both motions were denied on March 6, 2017.

On May 11, 2017, the trial court issued detailed "Reasons for Sentence." The trial court stated it resentenced Bradley to life imprisonment with the possibility of parole because Bradley was not that "rare juvenile offender whose crime reflects irreparable corruption."

DISCUSSION

I. Sentencing

In his first assignment of error, Bradley argues the trial court erred by amending his sentence to life imprisonment without the possibility of parole. Bradley argues the trial court breached the separation of powers established in the state constitution by creating, without authority, a sentencing range for juvenile defendants convicted of second degree murder. Bradley further argues that illegally imposing life imprisonment with the possibility of parole is a violation of state and federal constitutional ex post facto and due process clauses. Bradley argues the trial court should have followed Craig, supra and resentenced him to the most serious penalty for the next lesser included offense in effect at the time of the commission of the offense, which was manslaughter. Otherwise, Bradley argues the trial court should have followed State v. Dorthey , 623 So.2d 1276 (La. 1993), and used its authority to deviate downward from the mandatory minimum sentence to impose a sentence that was not constitutionally excessive.

La. R.S. 14:30.1 provides a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for offenders convicted of second degree murder in Louisiana. The U.S. Supreme Court's decisions in Miller, supra , and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), as revised (Jan. 27, 2016), apply to defendants who were juveniles at the time they committed second degree murder in violation of La. R.S. 14:30.1.

In Miller, supra , the U.S. Supreme Court held "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Court did not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders; instead, the case requires the sentencing court to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Keith , 51,389 (La. App. 2 Cir. 6/21/17), 223 So.3d 767. The Court in Miller drew a line between children whose crimes reflect transient immaturity and those few whose crimes reflect irreparable corruption. Life without parole is the correct sentence for the latter group. State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903.

In response to Miller , our legislature enacted La. C. Cr. P. art. 878.1. If the trial court imposes a life sentence without parole eligibility, La. R.S. 15:574.4(E) was added to require many conditions, such as serving 35 years of the sentence before making application to the parole board.

In Montgomery, supra , retroactivity was added to the holding in Miller, supra. The court alleviated concerns that the retroactive application of Miller would place an undue hardship on states. On remand, the Louisiana Supreme Court in State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606, held courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when reviewing sentences for juvenile homicide defendants sentenced before the Miller decision. State v. Calhoun, supra.

This Court has addressed and rejected (1) constitutional attacks on Miller / Montgomery resentencing and (2) claims that juvenile homicide offenders should be sentenced according to the penalty for the next lesser-included responsive verdict of manslaughter or considered for a downward departure from the term of life imprisonment. State v. Harper, 51,539 (La. App. 2 Cir. 8/9/17), 243 So.3d 1084, 2017 WL 3400624 ; State v. Keith, supra ; State v. Calhoun, supra ; State v. Shaw , 51,325 (La App. 2 Cir. 5/17/17), 223 So.3d 607 ; State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897 ; State v. Sumler , 51,324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503 ; State v. Kelly , 51,246 (La. App. 2 Cir. 4/5/17), 217 So.3d 576.

The judiciary did not usurp legislative power in creating a "sentencing range" for juvenile homicide offenders. As this Court has noted, the legislature was not required to amend the murder statutes to provide for sentencing of juvenile homicide defendants. Further, the legislature designed an adequate solution to Miller, supra , by creating statutes relating to parole eligibility for juvenile homicide defendants, which are to be read in conjunction with the murder statutes. State v. Harper, supra ; State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 14-2205 (La. 6/5/15), 171 So.3d 945. Bradley received the mandatory minimum sentence available under Miller, supra , La. R.S. 14:30.1, and La. C. Cr. P. art. 878.1.

Arguments that sentences under La. R.S. 15:574.4(E) are ex post facto violations have been rejected. State v. Harper, supra ; State v. Sumler, supra. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790 ; State ex rel. Olivieri v. State , 00-0172 (La. 2/21/01), 779 So.2d 735, cert. denied , 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed. 2d 730 (2001). The instant situation does neither. There is no ex post facto violation in applying La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) to Bradley's case because his potential sentence is not more severe than the prior sentence. After his resentencing, Bradley is subject to a lesser sentence than before-life imprisonment with parole eligibility instead of life imprisonment without parole eligibility.

For the foregoing reasons we do not find Bradley was sentenced illegally. Thus, Bradley's argument that his due process rights have been violated by being sentenced illegally is without merit.

Bradley received the minimum sentence available under La. R.S. 14:30.1 and La. C. Cr. P. art. 878.1. Bradley's proposed Craig sentencing has been rejected by Louisiana courts. State v. Leason , 2011-1757 (La. 11/23/11), 77 So.3d 933 ; State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939 ; State v. Plater, supra ; State v. Calhoun, supra ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358 ; State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583.

There is no merit in the argument that Bradley should be sentenced to the most serious penalty for the next lesser included offense. In enacting La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), the Louisiana legislature did not grant any authority to vacate the verdict and enter a judgment for a lesser and included offense or reconsider whether the defendant is entitled to a downward departure from the mandatory sentence of life imprisonment. State v. Sumler, supra. Punishment for second degree murder remains life imprisonment at hard labor, and the trial court is only authorized to consider the issue of parole eligibility. Once the Miller hearing is held, the sentencing court may impose life imprisonment without parole eligibility or life imprisonment with parole eligibility. Either sentencing scheme is constitutional, so there is no need to sentence a defendant to a lesser included responsive verdict. State v. Sumler, supra. Thus, Bradley's life imprisonment sentence was constitutional so there is no need to sentence him to a lesser included responsive verdict.

Based on the foregoing reasons, we find no merit in this assignment of error.

II. Parole Eligibility

Bradley's second assignment of error is that the trial court erred when sentencing him to life with parole, without determining when he would become parole-board eligible. Bradley's argument fails to recognize that La. R.S. 15:574.4 has provided exceptions for juvenile homicide offenders since 2013. At the time of Bradley's resentencing hearing, La. R. S. 15:574.4(E), now La. R.S. 15:574.4(G), set forth the conditions that must be met before a juvenile homicide offender, serving a life sentence for second degree murder with parole eligibility, is eligible for parole consideration. Among these conditions are the programs the defendant must complete and the length of time the defendant is required to serve before being considered for parole, which was recently reduced from 35 to 25 years. Accordingly, this assignment is without merit.

Error Patent

Bradley was originally sentenced to life imprisonment at hard labor without benefits. In accordance with Miller, supra , and Montgomery v. Louisiana, supra , the transcript of the resentencing hearing states Bradley was resentenced to life imprisonment with the benefit of parole. However, the minutes state Bradley was resentenced to life imprisonment "at hard labor" with the benefit of parole. Jurisprudence holds that where there is a discrepancy between the minutes and the sentencing transcript, the transcript prevails. State v. Sebastien , 31,750 (La. App. 2 Cir. 3/31/99), 730 So.2d 1040, writ denied , 99-1426 (La. 10/29/99), 748 So.2d 1157.

The trial court's resentencing of Bradley was too lenient as it failed to include the requirement that Bradley's life imprisonment be served at hard labor. The appellate court may notice sentencing errors as error patent. State v. Williams , supra. However, because La. R.S. 14:30.1 is a mandatory felony requiring any sentence to be served at hard labor, the error is harmless and self-correcting. Bradley's life sentence is hereby amended to reflect that it is to be served at hard labor in accordance with La. R.S. 14:30.1. State v. Foster , 50,535 (La. App. 2 Cir. 4/13/16), 194 So.3d 674.

CONCLUSION

For the foregoing reasons, Bradley's sentence is affirmed. His life sentence is amended to reflect that it is to be served at hard labor.

AFFIRMED.

      Article 878.1. Sentencing hearing for juvenile offenders.
      A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30 ) or second degree murder (R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
      B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

      La. R.S. 15:574.4 was recently amended. Pursuant to the amendments, juvenile homicide offenders who were serving life imprisonment for first or second degree murder and were indicted before August 1, 2017, such as the defendant in the instant case, are now covered by Subsection G, which mirrors the provisions of the previous Subsection E, except that it reduces the mandatory incarceration period from 35 years to 25 years.