author: STONE, J. CARAWAY, J.,

text:
    Sheila COOPER Wife of/and James Cooper, Plaintiff-Appellant v. FARMERS INSURANCE EXCHANGE, Defendant-Appellee
    No. 50,978-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 23, 2016

      BINEGAR CHRISTIAN, LLC, By: David Anthony Binegar, By: Tiffany R. Christian, Counsel for Appellant
    KINCHEN, WALKER, BIENVENU, BARGAS, REED & HELM, L.L.C., By: Valerie Briggs Bargas, Counsel for Appel-lee

      Before CARAWAY, DREW, and STONE, JJ.
   STONE, J.

ItThe appellants, James and Sheila Cooper (collectively referred to as “the Coopers”), appeal the trial court’s finding that the appellee, Farmers Insurance Exchange (“FIE”), did not handle the Coopers’ insurance claim in bad faith. For the following reasons, we affirm.

FACTS

After a hailstorm on March 30, 2013, the Coopers submitted a homeowner’s insurance claim with their insurer, FIE, alleging roof damage and resulting water damage, which included exterior and interior damage to their home. On April 2, 2013, FIE inspected the Coopers’ home and found minor wind damage and no hail damage. The adjuster noticed the roof was suffering from wear and tear and was improperly installed. Moreover, the adjuster noted evidence of long term water leakage around the Coopers’ skylights. The adjuster estimated the cost to repair the storm-related damages would total $684.99, which did not exceed the Coopers’ $1,000.00 deductible.

Unhappy with the result of the first inspection, the Coopers asked FIE to inspect their property again but were told to seek their own estimate. The Coopers selected Richard Meyers (“Meyers”), a Texas public adjuster, to inspect their property. Meyers estimated a total of $25,705.27 in storm-related damages; the estimate provided for replacement of the Coopers’ roof, some interior ceiling repairs, and replacement of the wood floors in the living room. The Coopers’ attorney forwarded the estimate to FIE, and FIE agreed to re-inspect the Coopers’ home.

On November 14, 2013, FIE re-inspected the Coopers’ home with a different adjuster. Again, FIE determined the Coopers’ home sustained |aminimal wind damage and no hail damage. FIE found no storm-created openings that could have caused interior damage to the Coopers’ home, but observed a roof suffering from improper installation and wear and tear. Nonetheless, FIE increased their original estimate to include the repair of three window screens and two light fixtures. As a result of the second inspection, the estimated storm-related damages exceeded the Coopers’ $1,000.00 deductible by $91.45 and the Coopers were issued a check for that amount.

Unsatisfied with the second estimate, the Coopers filed suit against FIE, pursuant to La. R.S. 22:1892 and La. R.S. 22:1972, claiming they were entitled to penalties and attorney fees because FIE handled their insurance claim in bad faith. The Coopers alleged FIE misrepresented pertinent facts related to their coverage, undervalued the damages to their property, and failed to issue sufficient funds to repair the damages. FIE denied the Coopers’ allegations and noted certain damages claimed by the Coopers were excluded by their policy, specifically damages caused by wear and tear and deterioration.

After failing to reach a settlement agreement, both parties agreed to invoke the appraisal process enumerated in the Coopers’ policy. The appraisal clause in the Coopers’ policy reads as follows:

Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the “residence premises” is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to lathe umpire. A decision agreed to by any two will set the amount of loss.
Each party will:
a. Pay its own appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.

Both parties selected an appraiser to inspect the Coopers’ home. The Coopers chose Don Hotter (“Hotter”), a Louisiana public adjuster, and FIE chose John Crawford (“Crawford”), a Louisiana licensed general contractor and professional engineer. Both appraisers agreed to an award totaling $17,500.00 and FIE issued a check in that amount. After paying the costs of the public adjuster, appraisal, and litigation, the Coopers allege they received only $9,625.00, and were unable to make all the repairs. The Coopers proceeded with their claim of bad faith, asserting had FIE paid them $17,500.00 when the claim was initially submitted, they could have made the repairs immediately without expending unnecessary money.

At trial, the Coopers argued the appraisal award of $17,500.00 was significant compared to FIE’s estimates of $684.99 and $1,091.45, and, thus, demonstrated FIE purposefully and intentionally undervalued the storm-related damages to their home. FIE adhered to its original estimate and argued there was a reasonable and valid basis for every decision it made in handling the Coopers’ insurance claim. FIE presented the expert testimony of Crawford, and contended it only made concessions during the appraisal process relative to certain damages because it believed a larger appraisal award would resolve the litigation.

The trial court relied on FIE’s expert testimony, and the Coopers’ lack thereof, in concluding FIE’s failure to tender $17,500.00 prior to the appraisal process was not arbitrary, capricious, or without probable cause. LThe trial court found FIE was more than reasonable in its adjustment of the Coopers’ home, and the Coopers’ lawsuit was dismissed with prejudice. The Coopers now appeal.

DISCUSSION

An insurer owes its insured a duty of good faith and fair dealing. As such, an insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims. La. R.S. 22:1973(A). Both La. R.S. 22:1892(B)(1) and La. R.S. 22.1973(B)(5) and (C) provide for penalties, including attorney’s fees, against an insurer whose failure to pay a claim after receiving satisfactory proof of loss is found to be arbitrary, capricious, or without probable cause. Both statutes are penal in nature and must be strictly construed. Jones v. Johnson, 45,847 (La.App. 2d Cir. 12/15/10), 56 So.3d 1016, 1021.

To prevail under 221892(B)(1), the claimant must establish that the insurer received satisfactory proof of loss, failed to pay the claim within the applicable statutory period, and that the failure to timely tender a reasonable amount was arbitrary and capricious. Jones, supra; See Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App. 2d Cir. 09/22/99), 742 So.2d 746. Satisfactory proof of loss within the meaning of the statute is that which is sufficient to “fully apprise the insurer of the insured’s claim.” McDill v. Utica Mutual Ins. Co., 475 So.2d 1085 (La. 1985); Jones, supra; Block, supra.

Moreover, for the court to assess penalties and attorney’s fees, the claimant must show that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Jones, supra. The phrase “arbitrary, capricious, or without probable cause” is synonymous with [¿‘vexatious” and means a refusal to pay that is unjustified and without a reasonable or probable cause or excuse. Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La. 10/21/03), 857 So.2d 1012, 1021; Block, supra. Thus, penalties and attorney’s fees are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good faith reliance on that defense. Guillory v. Lee, 2009-0075 (La. 06/26/09), 16 So.3d 1104; Block, supra. This is especially true when there is a reasonable and legitimate question as to the extent and causation of a claim; bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubt exists. Guillory, supra; Block, supra.

Whether the insurer’s actions were arbitraiy, capricious, or without probable cause such that sanctions should be imposed is a question of fact, and the trial court’s finding should not be disturbed absent manifest error. Jones, supra.

The Coopers argue the trial court was clearly wrong in finding that FIE’s failure to tender $17,500.00 prior to the appraisal process was not arbitrary, capricious, or without probable cause. According to the Coopers, FIE had satisfactory proof of the storm-related damages upon its first inspection of their home, and FIE failed to properly and timely compensate them pri- or to the invocation of the appraisal clause. At trial, the Coopers testified they experienced no problems with their roof before the hailstorm. After FIE’s second adjuster estimated only $1,091.45 in storm-related damages to their home, the Coopers believed they were being treated unfairly and had no choice but to proceed with litigation.

Instead of presenting the expert testimony of Myers, who estimated the storm-related damages to the Coopers’ home totaled $25,705.27, or | fiKotter, their appraiser, the Coopers called FIE’s appraiser, Crawford, to testify. Crawford was originally hired by FIE to assist in settlement negotiations with the Coopers, but continued to represent FIE through the appraisal process. Crawford testified that his evaluation of the Coopers’ home revealed minimal wind damage and no hail damage. Crawford estimated about $900.00 worth of storm-related damages, which included wind damage to four shingles. Crawford attributed the remaining damages to wear and tear, deterioration, and an improperly installed roof.

In support of his position, Crawford presented photographs taken by FIE’s adjusters and Myers. Despite the Coopers’ testimony that they had no issues with their roof prior to the hailstorm, photographs were presented showing the Coopers had previously made repairs to their roof. Additionally, the photographs showed deficiencies in the roofs installation. Crawford testified that each shingle had three to six nails; however, each shingle should have had eight nails. He also found the nails were placed too high on the shingles, which allowed the shingles to slide out of place. Crawford asserted this made the shingles more susceptible to wind damage and deterioration.

According to Crawford, the photographs of the Coopers’ skylights revealed debris and organic matter accumulating on the top of the skylights, which caused a hole at the head of the skylights. There was also lack of diverters, which if present, would have pushed water away from the skylights. Crawford attributed the leakage in the Coopers’ home to the construction deficiencies. In regard to the Coopers’ wood floors, Crawford demonstrated to the court that water would accumulate on the Coopers’ patio during heavy rain, and the accumulation would force water through the 17Coopers’ back doors. Crawford affirmed his conclusions were consistent with the findings of FIE’s adjusters.

When questioned why he certified an appraisal award of $17,500.00 in storm-related damages if he only observed $900.00 worth, Crawford responded the appraisal process is like a “mediation” between experts and he conceded on certain damages to bring a resolution to the pending litigation. Crawford stated that Kotter, the Coopers’ appraiser, also conceded on the storm-related damages because he appraised the damages at $26,000.00.

Don Gallier (“Gallier”), an FIE corporate representative, testified the Coopers had a standard homeowner’s insurance policy that covered direct physical loss to property, but excluded loss for wear and tear, marring, and deterioration. Further, the policy excluded losses from inherent vice, latent defect, and mechanical breakdown. It also excluded losses from faulty, inadequate, or defective construction and maintenance. Gallier presented photographs from the first and second inspection of the Coopers’ home to demonstrate how FIE estimated the Coopers’ covered losses. Gallier reiterated the sentiments of Crawford, and testified the photographs illustrated minor wind damage and no hail damage to the Coopers’ roof and skylights. Consequently, Gallier stated the majority of the Coopers’ claimed damages fell outside their policy coverage.

Once the Coopers’ insurance claim went into litigation, Gallier testified he was forced to handle the case from a cost-benefit perspective. After failing to reach an agreement with the Coopers at an informal settlement conference, both parties decided to invoke the appraisal process. The Coopers received a $17,500.00 appraisal award, which covered the replacement of the Coopers’ roof and some interior repairs. After tendering |8the appraisal award, Gallier was under the impression that the dispute was resolved, which was the only reason FIE conceded to an award of that amount.

After reviewing the evidence, the trial court found the Coopers failed to meet their burden of proving FIE’s failure to tender $17,500.00 prior to the appraisal process was arbitrary, capricious, or without probable cause. The trial court relied on Crawford’s expert testimony, and placed emphasis on the Coopers’ failure to present their appraiser or any other expert testimony to rebut Crawford.

We find no manifest error in the trial court’s conclusion. Crawford, along with two adjusters for FIE, all determined that the Coopers’ home sustained minimal wind damage and no hail damage, with Crawford totaling the storm-related damages at about $900.00. FIE provided ample evidence to show the majority of the Coopers’ claimed damages were not covered under their insurance policy. The testimony of Crawford and Gallier established that FIE only conceded on claimed damages and agreed to a much higher appraisal award in hopes of avoiding litigation, which is an acceptable approach to the appraisal process.

The Coopers insist the trial court ruled that the appraisal process settled their lawsuit, including the bad faith claim. However, the trial court never suggested it considered the appraisal process a settlement of the Coopers’ bad faith claim. In its oral reasons for judgment, the trial court discussed the appraisal process, and the events leading up to it, to illustrate FIE’s good faith in handling the Coopers’ insur-anee claim. The trial court noted that FIE sent out two separate adjusters, met with the Coopers’ public adjuster to discuss differences, and conceded on storm-related damages to |flthe Coopers’ home in order to get the matter settled. The trial court found there was no evidence of bad faith presented to the court, and that FIE was more than reasonable in how it adjusted the Coopers’ insurance claim. We ñnd no error in the trial court’s reasoning or conclusion.

CONCLUSION

For the foregoing reasons, the trial court’s judgment dismissing James and Sheila Cooper’s suit with prejudice is affirmed. Costs of this appeal are assessed to the Coopers.

AFFIRMED.

CARAWAY, J.,

dissenting.

li.I respectfully dissent.

The parties’ contract provided an appraisal process which states that “the amount agreed upon [by the two appraisers] will be the amount of loss.” Therefore, despite appraiser Crawford’s testimony attempting to walk back the $17,500 loss established by the appraisal process, the loss was $17,500, which is a binding fact upon FIE. Moreover, FIE failed to offer the testimony of its initial two appraisers to explain how their incredibly low appraisals missed the $17,500 mark so drastically. Accordingly, with an undisputable $17,500 loss suffered by plaintiffs, FIE’s failure to pay the claim demonstrates a lack of good faith and an arbitrary and capricious response to the insured.


source: Caselaw Access Project

author: GARRETT, J. CARAWAY, J.,

license: Public Domain

text:
    SOUTHERN TRACE PROPERTY OWNERS ASSOCIATION, Plaintiff-Appellant v. Charles WILLIAMS, Defendant-Appellant
    No. 50,992-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 23, 2016

      ROBERT I. THOMPSON, III Counsel for Plaintiff-Appellant
    W. ALAN PESNELL Counsel for Defendant-Appellant
    Before CARAWAY, DREW, PITMAN, GARRETT and STONE, JJ.
   GARRETT, J.

Lin this suit to collect homeowners association dues, both parties appeal from a trial court ruling which partially granted an exception of prescription. The lower court ruled that all dues, except those arising within two years of the filing of the suit, had prescribed. The defendant/ homeowner contends that the court should have also ruled that all past and future assessments are extinguished, whereas the plaintiff/homeowners association complains that the court erred in ruling that any dues were prescribed. For the reasons outlined below, we reverse and vacate the trial court judgment and remand for further proceedings.

INTRODUCTION

At first blush, this case appears simple. What is the prescriptive period for failure to pay homeowners association dues in a residential subdivision regulated by covenants and restrictions? After carefully reviewing this record, which is completely devoid of any evidence, we find that the judgment rendered below must be vacated. Wherever the burden of proof may have been in this case, no one met it. Further, the scant legal authority provided below failed to apprise the trial court of significant developments in our law and relevant jurisprudence. This case must be remanded for the development of a more complete record because the prescription issue cannot be resolved in the abstract.

FACTUAL AND PROCEDURAL BACKGROUND

Charles Williams owns property in Southern Trace Subdivision in Shreveport. On September 15, 2014, the Southern Trace Property Owner’s Association (“STPOA") filed suit entitled “Petition for Payment of Dues” against Williams. The suit alleged that Williams’s property is burdened by a | ¡/‘Declaration of Protective Covenants, Conditions and Building Restrictions,” enforced by the plaintiff, a Louisiana nonprofit corporation. The suit claimed that he owed unpaid dues in the amount of $15,529.71 and requested a money judgment against Williams. STPOA asserted that it had “properly assessed dues as set forth in Exhibit A” and made amicable demand, “as set forth in Exhibit B.” However, neither exhibit is found in the appellate record. STPOA also demanded interest, costs of filing liens, attorney fees, and all court costs as “[p]er the governing restrictions.”

In his answer, Williams admitted he was a property owner and that there existed “Declaration of Protective Covenants, Conditions and Building Restrictions which are not uniformly enforced.” He claimed dues were not allowed by the declaration.

Williams next filed peremptory exceptions of prescription and no cause of action. He contended that all but three years of dues had prescribed under the prescriptive period provided in La. C.C. art. 3494 for open accounts and that the plaintiff had no cause of action against him. He asserted that the subdivision covenants provided only for assessments, i.e. maintenance charges, and not for dues. In a brief in opposition to the exceptions, STPOA attached affidavits from two long-term board members, who attested that STPOA used the terms “dues” and “assessments” interchangeably, and that both meant the dollar amounts each lot was assessed for “common expenses, i.e., security, street maintenance, landscaping, utility maintenance, etc.” They further attested that Williams’s lot had been assessed dues since he purchased it and that he benefited from the services provided by STPOA and funded by the dues. With regard to the defendant’s prescription argument, the plaintiff countered that the | ..¡prescriptive period would only commence with the latest assessment and thus none had prescribed. A hearing on the exceptions was held on February 9, 2015. The minutes show that the attorneys appeared in court and argued the exceptions. Apparently, no evidence was taken on the prescription issue. The trial court later denied both exceptions.

Williams then filed another answer and a reconventional demand. He admitted that he had not paid the “so-called assessed dues” because they were not owed. He alleged that, since June 2008, he had not received any updates, invoices, or STPOA minutes and he had not been included in the official homeowners’ directory given to residents. Alleging no maintenance had been made on his property, he claimed he received no benefit from any maintenance performed in the subdivision. Additionally, Williams alleged no uniformity in enforcement and he was “picked out” by STPOA for the present lawsuit.

In his reconventional demand, Williams claimed that STPOA owed him $36,577.25 for services rendered for security equipment, replacement of a termite-infested fence, landscaping damage, and his time in developing, managing and maintaining security, payroll and billing for the security program. In response, STPOA asserted it never hired Williams to provide any services, it was never invoiced for the same, and any amounts allegedly due were prescribed.

The matter was initially set for trial on June 2, 2015, then reset to September 3, 2015. Following the August 2015 death of Williams’s 14attorney, new counsel enrolled. Thereafter, trial was reset for January 14, 2016.

In October 2015, Williams’s new counsel filed peremptory exceptions of no right of aetion/no cause of action and abandonment/prescription/ peremption and motion to cancel lien. Contrary to the position adopted by the defendant in his first exception of prescription (i.e., the dues were subject to the three-year open account prescriptive period), the defendant completely reframed the issue. He now argued that the assessments were made pursuant to building restrictions, and that the two-year prescriptive period in La. C.C. art. 781 applied. He also called into question the efficacy of a lien filed on December 10, 2007, although the plaintiff had not sought to enforce the lien. Furthermore, he argued that, pursuant to La. C.C. art. 781, his lot was now completely freed of the obligation ever to pay any dues. The new exceptions were set for hearing on January 11, 2016, but at Williams’s request, they were reset for the day of trial.

On January 14, 2016, the parties appeared for trial, and both sides announced ready. However, the trial court decided to take up first the pending exceptions. The parties did not introduce any evidence and instead just presented arguments to the court.

Williams argued that La. C.C. art, 781 should be applied as written to free his lot of the restrictions completely and nothing was owed. Alternatively, he contended that, pursuant to Brier Lake, Inc. v. Jones, 97-2413 (La. 4/14/98), 710 So.2d 1054, all but the last two years of assessments should be deemed prescribed. STPOA countered that res judicata applied due to the prior ruling on the prescription exception and the court should not reconsider the issue due to the law of the case doctrine. It | ¿further asserted that Brier Lake had been legislatively overruled by Acts 1999, No. 309. STPOA sought application of the 10-year prescriptive period of La. C.C. art. 3499. Williams urged that the only portion of Brier Lake legislatively overruled was its holding that subdivisions required unanimous consent to change their restrictions. He maintained that Brier Lake’s, holding establishing a two-year prescriptive period—not a 10-year one— was still applicable. Unfortunately, neither lawyer brought to the attention of the trial court significant changes that have been made to our statutory law and jurisprudence arising after the Brier Lake case. Furthermore, no evidence was introduced by either side, and there was no discussion on the record as to which side bore the burden of proof on the prescription issue.

At the conclusion of the argument, the trial court granted in part the exception of prescription and ruled that STPOA’s claims were prescribed except for any assessments due within two years of the filing of the suit. The trial court held that the two-year prescriptive period of La. C.C. art.; 781 was applicable because “I have nothing to the contrary.” The trial court did not adopt Williams’s position that all obligations were extinguished. A query was made on the record about writs being taken from the ruling. The trial was then continued pending review of the ruling by this Court. A judgment was later signed, which set a return date for writ applications and | ¿which also certified the judgment as an appealable judgment. Both sides appealed.

LAW OF THE CASE/ RES JUDICATA

As a preliminary matter, STPOA argues that Williams was precluded from asserting another exception of prescription following the denial of the first exception. STPOA relies on the law of the case doctrine and res judicata. We reject both arguments.

Law

A peremptory exception may be urged at any time. La. C.C.P. arts. 928, 2163. A party may re-urge a peremptory exception after a denial of the exception. Teachers’ Retirement Sys. of La. v. Louisiana State Employees’ Retirement Sys., 456 So.2d 594 (La. 1984); G.B.F. v. Keys, 29,006 (La.App. 2 Cir. 1/22/97), 687 So.2d 632, writ denied, 97-0385 (La. 3/21/97), 691 So.2d 94; Herrera v. Beatrice Gallegos & US Agencies Cas. Ins., 14-935 (La. App. 5th Cir. 10/28/15), 178 So.3d 164.

The denial of a peremptory exception of prescription is an interlocutory judgment, not a final judgment. Hence, the doctrine of res judicata does not apply. Eastin v. Entergy Corp., 07-212 (La. App. 5th Cir. 10/16/07), 971 So.2d 374, writ denied, 2007-2214 (La. 1/11/08), 972 So.2d 1167.

The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971); J-W Operating Co. v. Olsen, 49,925 (La.App. 2 Cir. 6/24/15), 167 So.3d 1123.

|7The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue. Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81 (La. 1973). However, even when applicable, the law of the case is discretionary and should not be applied where the error is palpable and the application would result in injustice. Arceneaux v. Amstar Corp., 2010-2329 (La. 7/1/11), 66 So.3d 438; J-W Operating Co. v. Olsen, supra.

Discussion

Williams’s first exception of prescription was denied. Thus, it was an interlocutory judgment and not subject to res judicata. Furthermore, the law of the case doctrine is discretionary. Since Williams could have re-urged his first exception again had he so wished, it stands to reason that he was not precluded from filing a second exception on different grounds. Accordingly, we reject STPOA’s contention that the second exception should not have been considered.

PRESCRIPTION

As previously noted, STPOA argues that the trial court should have ruled that none of the dues were prescribed while Williams maintains that it should have held that all of the dues were prescribed.

IsPeremptory Exception

A party urging an exception of prescription has the burden of proving facts to support the exception, unless the petition is prescribed on its face. Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424. However, if prescription is evident from the face of the pleadings, the plaintiff will bear the burden of showing an action has not prescribed. Johnson v. Allen, 2014-0490 (La. App. 4th Cir. 1/7/15), 158 So.3d 852.

Evidence may be introduced to support or controvert any objection pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. In the absence of evidence, an exception of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. Cichirillo, supra.

All that must be considered on the peremptory exception of prescription is whether there is sufficient evidence to show that the alleged time period has run under the requirements of the particular code article involved. The trial court need not go into the merits of the case. Sanders Family, LLC No. 1 v. Sanders, 46,476 (La.App. 2 Cir. 12/14/11), 82 So.3d 434, writ denied, 2012-0414 (La. 4/9/12), 85 So.3d 702.

In this case, the trial court and the parties did not discuss which side had the burden of proof on the prescription issue. The petition in this case only set forth a lump sum amount that was due. No dates were alleged. In our view, the burden of proof on the prescription issue seemingly remained on the defendant because the petition was not clearly prescribed on its face such that the burden would shift to the plaintiff. Nevertheless, wherever the burden may have been, neither party satisfied it as explained below.

|⅜Building Restrictions

Before 1977, building restrictions were a creature of the jurisprudence; the Civil Code did not specifically address them. Diefenthal v. Longue Vue Found., 2002-1470 (La. App. 4th Cir. 1/7/04), 865 So.2d 863, writ denied, 2004-0366 (La. 4/2/04), 869 So.2d 883. In 1977, the Legislature enacted La. C.C. arts. 775 through 783, regarding building restrictions. See La. Acts 1977, No. 170, effective January 1, 1978. In 1999, significant changes were made to our laws, which will be discussed, infra.

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved. La. C.C. art. 775. Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan. La. C.C. art. 778.

Of interest in the instant case is La. C.C. art. 781, which addresses violation of building restrictions:

No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.

In 1979, the legislature amended Chapter 1 of Code Title I of Code Book II of Title 9 of the Revised States by adding Part III, which was entitled “Privileges on Immovables for Charges or Dues of Association of Owners” and contained La. R.S. 9:1145 to 9:1148. These statutes granted | madditional remedies by establishing a privilege on behalf of homeowners associations against the lot and improvements of a homeowner who failed to pay charges, expenses or dues and set forth the procedure for its enforcement against the delinquent homeowner. La. R.S. 9:1147 provides:

A recorded sworn statement shall preserve the privilege against the lot or lots and improvements thereon for a period of five years after the date of recordation. The effect of recordation shall cease and the privilege preserved by this recordation shall perempt unless a suit to enforce the privilege is filed within five years after the date of its recor-dation and a notice of the filing of such suit is filed in the mortgage records of the parish in which the subdivision is located.

Against this statutory background, the Louisiana Supreme Court decided the Brier Lake case in 1998. Suit was brought by a homeowners association on the basis that a homeowner had violated the subdivision restrictions and also failed to pay dues and assessments. Two separate issues were presented for resolution. As to the question of whether a majority of lot owners in a subdivision could amend existing building restrictions to make them more restrictive, the supreme court held that unanimous consent of all lot owners was required.

The second issue concerned the prescriptive period for filing suit to collect delinquent dues and assessments. The defendant homeowner argued that the assessments were building restrictions and pled the two-year prescriptive period of La. C.C. art. 781. The court of appeal ruled that the assessments were a personal obligation subject to the 10-year prescriptive period of La. C.C. art. 3499. The supreme court reversed that holding. It concluded that the obligation was a building restriction subject to the two-year period of La. C.C. art. 781. Accordingly, it held that the homeowner |nwas not obligated to pay assessments that were due over two years when suit was filed.

During the next legislative session, the legislature passed Act 309, which was specifically designed to overrule Brier Lake. The act stated that “[t]he provisions of this Act legislatively overrule the case of Brier Lake, Inc. v. Jones, 97-C-2413 (La. 4/14/98); 710 So.2d 1054, are remedial, and shall apply both prospectively and retroactively.” See Acts 1999, No. 309. The Louisiana Homeowners Association Act (“LHAA”), consisting of La. R.S. 9:1141.1 to 9:1141.9, was enacted. The act also amended La. C.C. arts. 776 and 780 (regarding amendments and termination of building restrictions, which no longer require unanimous consent) and 783 (regarding conflicts with the LHAA and the Louisiana Civil Code). The LHAA legislation provides for building restrictions in a “residential planned community” or “planned community.” The legislation emphasizes the importance of “community documents,” building restrictions and them enforcement. Under the statutory scheme, the community documents prevail over any conflicts with the Louisiana Civil Code articles on building restrictions.

La. R.S. 9:1141.2 defines “community documents” as:

the articles of incorporation, bylaws, plat, declarations, covenants, conditions, restrictions, rales and regulations, or other written instruments, including any amendment thereto, by which the association has the authority to exercise any of its powers to manage, maintain, or otherwise affect the association property or which otherwise govern the use of association property.

La. R.S. 9:1141.3(A) provides:

The provisions of this Part shall be applicable to existing and future residential planned communities whose declarations have been duly executed and filed for registry. However, this Part shall not be construed to affect the validity or superiority of any provision of a 112community document. Only to the extent the community documents are silent shall the provisions of this Part apply.

La. R.S. 9:1141.4 provides:

The existence, validity, or extent of a building restriction affecting any association property shall be liberally construed to give effect to its purpose and intent.

La. R.S. 9:1141.5(B) provides:

Such building restrictions may include the imposition of an affirmative duty, including the affirmative duty to pay monthly or periodic dues or fees, or assessments for a particular expense or capital improvement, that are reasonable for the maintenance, improvement, or safety, or any combination thereof, of the planned community.

La. R.S. 9:1141.8 provides:

The community documents of residential planned communities shall have the force of law between the homeowners association and the individual lot owners and as between individual lot owners. The remedies for breach of any obligation imposed on lot owners or the association shall include damages, injunctions, or such other remedies as are provided by law.

La. R.S. 9:1141.9 provides:

In addition to any other remedies provided by law or by the community documents for nonpayment of assessments, a homeowners association as defined in this Part may utilize the provisions of Part III of this Chapter establishing a privilege on lots of delinquent owners for nonpayment of assessments.

Significantly, La. C.C. art. 783 was also amended to provide as follows:

Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. The provisions of the Louisiana Condominium Act, the Louisiana Timesharing Act, and the Louisiana Homeowners Association Act shall supersede any and all provisions of this Title in the event of a conflict.

| isThus, under the new statutory scheme, the LHAA supersedes the articles of the Louisiana Civil Code. Under the LHAA, the community documents provide the starting place for determining the rights and obligations between the parties.

Following the rendition of Brier Lake and the passage of Acts 1999, No. 309, several appellate cases have addressed the issue of prescription in the context of homeowners association dues and assessments. To our knowledge, none have found the two-year period of La. C.C. art. 781 to be applicable. Some of these cases did not even mention the Brier Lake case.

In Lakewood Estates Homeowner’s Ass’n, Inc. v. Markle, 2002-1864 (La. App. 4th Cir. 4/30/03), 847 So.2d 633, writ denied, 2003-1511 (La. 9/26/03), 854 So.2d 362, a homeowners association sought to enforce liens against property for the nonpayment of assessments from 1997 to 2001. The defendant homeowners argued their assessment dues were prescribed under La. C.C. art. 781, 782 and 783, and, due to the homeowners association’s failure to comply with its Act of Establishment for more than 10 years, any real rights associated with the Act of Establishment were dissolved. However, with little discussion, the court held that La. C.C. art. 781 and 782 were inapplicable to the payment of dues and fees and that the LHAA superseded La. C.C. art. 783. No mention was made of Brier Lake.

In Eastover Prop. Owner’s Ass’n, Inc. v. Cochrane, 2002-1502 (La. App. 4th Cir. 5/21/03), 848 So.2d 710, writ denied, 2003-1604 (La. 11/21/03), 860 So.2d 544, a property owners association filed suit against homeowners who had failed to pay association dues and assessments for |useveral years. The court rejected the homeowners’ contention that the two-year prescriptive period of La. C.C. art. 781 was applicable. In so ruling, it looked to the terms of the subdivision’s act of restriction, which set forth the nature of the assessments as being personal to the owners of the property. Because it was a personal obligation, the 10-year prescriptive period of La. C.C. art. 3499 applied. Again, Brier Lake was not mentioned.

In Louisiana Bureau of Credit Control, Inc. v. Landeche, 2008-1099 (La.App. 3 Cir. 3/4/09), 6 So.3d 935, the homeowners association assigned to a collection agency the defendant’s delinquent assessments account. The defendant filed an exception based on three years under the open account law in the civil code, which was sustained by the trial court. The plaintiffs argument that the 10-year prescriptive period was applicable was not reached on appeal because the assessment sued upon had not been properly passed by the homeowners association. Brier Lake was cited in passing in a discussion of whether the assessment was a building restriction or a personal obligation. Also of relevance was the court’s finding that LHAA only applied when the homeowners association’s community documents were silent.

Although prescription was not an issue in Fern Creek Owners’ Ass’n, Inc. v. City of Mandeville, 2008-1694 (La.App. 1 Cir. 6/30/09), 21 So.3d 369, the appellate court recognized that the LHAA has superseded the civil code and acknowledged the importance of the community documents affecting the subdivision.

hJn all of these cases, the courts had before them and carefully considered the provisions of the pertinent homeowners association articles of incorporation and other community documents. This critical evidence is completely missing in this case.

Discussion

As previously explained, the second peremptory exception of prescription was initially set for hearing several days before trial. However, the matter was upset and rescheduled for the day of trial. The parties appeared on that day and, prior to the commencement of trial, the exception was taken up.

Counsel for both sides presented oral arguments on the exception, which have been detailed above. During the hearing, counsel for Williams twice stated that he would like to offer and introduce into evidence various documents. However, these documents were not introduced and do not appear in the appellate record. Thus, on this record, we find there is a complete failure of proof on the prescription issue. As explained above, under the new statutory scheme, the starting place would be the community documents, which govern the rights and obligations between the parties. This record is completely devoid of any of this.

In the interest of justice, an appellate court can remand for proper consideration when the record is so incomplete that the court is unable to pronounce definitively on the issues or where parties have failed, for whatever reason, to produce available evidence material to a proper Jjjdecision. La. C.C.P. art. 2164; Doucet v. Lafourche Par. Fire Prot. Dist. No. 3, 589 So.2d 517 (La. App. 1st Cir. 1991).

This case obviously has consequences not just for Williams, but also for the numerous other residents of Southern Trace. Arguably, the decision eventually rendered in this case will have ramifications for other homeowners associations with similar community documents. Consequently, it behooves both the lower court and us to have the most complete record possible in order to fully review this issue.

As a result, we reverse and vacate the judgment rendered below. We remand this matter to the trial court for further proceedings. The trial court is directed to conduct a hearing at which evidence shall be taken. See La. C.C.P. art. 931. Alternatively, the parties may agree to defer the issue to the merits of the trial. This evidence shall include any and all documents necessary to determine the relevant restrictions on the property at issue, including the covenants particular to the subdivision and Williams’s deed, as well as any other documents. Aided by this evidence, the trial court may then fully consider the applicable law and resolve the issue.

CONCLUSION

The trial court judgment is reversed and vacated, and the matter remanded for further proceedings. Costs of this appeal are assessed to the parties equally.

REVERSED, VACATED AND REMANDED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|,I respectfully dissent and would affirm the trial court’s ruling on prescription.

In the petition, the foundational fact for the homeowners’ association’s claim and cause of action is that in 1987, Southern Trace, a limited partnership, recorded in Caddo Parish the restrictive covenants or building restrictions (hereinafter the “Covenants”) for Southern Trace Subdivision. Those Covenants included a provision requiring lot owners, like the defendant, to pay dues to the plaintiff, STPOA. These are the undisputed facts upon which both parties agree and the trial court’s partial judgment of prescription rests. The majority says those facts are not enough. Over the defendant’s objections in this appeal, the majority remands the case back, presumably to let STPOA try to do better with other yet-to-be-identified facts that might somehow defeat prescription.

The recorded Covenants and the STPOA dues-payment obligation establish the following legal effects. First, the Covenants were a recorded juridical act by the single owner of the property in 1987. La. C.C. art. 776. Therefore, the Covenants are not a bilateral agreement between this plaintiff and this defendant. There is no personal, contractual obligation existing between these parties as a result of the recordation of the subdivider’s juridical act in 1987. Second, the dues-payment provision of the Covenants is an “affirmative duty” and real obligation arising only because of the defendant’s ownership of his Southern Trace lot. La. C.C. arts. 778, 1763, and 1764. Article 778 and the Louisiana Supreme Court’s ruling in Brier Lake, Inc. v. Jones, 97-2413 (La. 4/14/98), 710 So.2d 1054, recognize that a 12building restriction fee is a money obligation that must be reasonable and necessary for the maintenance of the general plan for the subdivision. Defendant’s responsibility for payment of these homeowner’s dues “is limited to the immovable” and not a debt otherwise affecting his personal patrimony. La. C.C. art. 1764, Revision Comment (e).

The facts and legal arguments in this ease are identical to those in the Brier Lake case, upon which the trial court limited STPOA’s recovery of dues to two years. Brier Lake approved the application of the two-year prescription of Article 781 for building restrictions, as follows:

There is no doubt that Jones has an obligation to pay assessments as such assessments were provided for in the Original Restrictions signed by the developer of Brier Lake Estates. As stated earlier, “[p]rovisions that each purchaser of a lot in a subdivision shall automatically become a member of a corporation formed to provide maintenance of the common grounds, and that each member shall be subject to an annual assessment, have been enforced as reasonable and necessary.” Yiannopolis, Predial Servitudes, § 196 at pp. 519-520 (2nd Ed.1997). In addition, the duty to pay assessments has been characterized as an affirmative duty that may be imposed by a building restriction. Comment, Some Observations on Building Restrictions, 41 La. L.Rev, 1201, 1208 (1984). This obligation has also been recognized by the legislature in La. R.S. 9:1145 which establishes a procedure for recording a privilege on the immovable for which assessments are delinquent.
However, Jones’ obligation cannot be classified as a personal obligation. See Tall Timbers Owners’ Ass’n v. Merritt, 376 So.2d 586 (La.App. 4th Cir.1979) (obligation to pay assessments is a real obligation); see also La. C.C. art. 1764; Yiannopolis, The Work of the Louisiana Appellate Courts for the 1975-1976 Term-Property, 37 La. L.Rev. 317, 329-330 (1977) (questioning whether the duty to pay assessments can be classified as a personal obligation without an express stipulation to that effect).
Jones’ property was, by virtue of the recordation of the validly enacted Original Restrictions, subject to the Original Restrictions requiring the affirmative duty of paying assessments, not to exceed $180.00 per year. We hold that this obligation is properly characterized as a building restriction and is subject to the two-year prescriptive period of La. C.C. art. 775 and is not a personal obligation under La. C.C. art. 3499.

Brier Lake, supra at 1062-1063.

Regarding the 1999 enactment of the Louisiana Homeowners’ Association Act (“LHAA”), the statute only supersedes the Civil Code articles for the effect of building restrictions “in the event of a conflict.” La. C.C. art. 783. Therefore, the majority opinion’s statement, in dicta, that the LHAA “supersedes” the Civil Code articles for building restrictions, is too broad. Section 1141.5(B) reaffirms the Civil Code’s notion that building restrictions may have affirmative duties. La. R.S. 9:1141.5(B). That section, which uses the code-defined concept of building restrictions, does not expressly make a building restriction a personal obligation. Section 1141.8 says the obligation of a building restriction contained in a community document shall have the remedy provided by law. La. R.S. 9:1141.8. That does not specifically make a building restriction a personal obligation. Thus, I find nothing in the LHAA that overrules Brier Lake’s recognition of the two-year prescription rule for subdivision dues which are the real, not personal, obligations of lot owners.

The majority has now decided not to decide. Despite a lengthy analysis of the LHAA, the majority has not decided whether the new legislation overruled Brier Lake. Discussing decisions of the other courts of appeal in this state, the majority has not decided whether this court should similarly disregard the holding of Brier Lake. STPOA brought this appeal, raising no assignment of error or argument that the trial court denied it the opportunity to demonstrate with additional evidence that the 1987 Covenants created personal obligations upon the defendant, who only acquired his lot years later. Yet, the majority refuses to decide this case on the clear |4Covenant obligation or building restriction, which all parties recognize and upon which the trial court’s ruling rests.

Civil Code Articles 778 and 781 are still the governing law for this case. Those Articles and Brier Lake have not been overruled by the LHAA. The trial court properly decided this case on the admitted facts of the Covenants and the delinquent dues extending back for over two years.

      . None of the transcripts of the argument or the ruling are contained in the appellate record. It appears from statements made in court during the argument on the second set of exceptions that the trial court accepted that the three-year open account prescriptive period applied and that prescription had been interrupted.

      . STPOA cited Tri-State Sand & Gravel, L.L.C. v. Cox, 38,217 (La.App. 2 Cir. 4/7/04), 871 So.2d 1253, writ denied, 2004-1357 (La. 9/24/04), 882 So.2d 1144, to the trial court for the proposition that this circuit had held that Brier Lake was legislatively overruled. However, in Tri-State Sand & Gravel, the court quoted dicta from Brier Lake regarding who could sue to enforce building restrictions. In a footnote, the court stated that Brier Lake had been legislatively overruled and then outlined the specific changes made by the legislation before noting that none of those changes affected the portion it cited.

      . We pretermit, as unnecessary, any discussion of whether the partial judgment rendered below was properly certified as a final, ap-pealable judgment.

      . None of these four statutes have ever been amended.

      . At one point in the opinion, the supreme court incorrectly referred to “the two-year prescriptive period of La. C.C. art. 775”; however, that article contains no prescriptive period. The reference is obviously a typographical error.

      . While the court applied the first sentence of La C.C. art. 781, it did not discuss the effect of the second sentence, which extinguishes the restriction after the lapse of the two-year period.

      .We note that STPOA's original petition sought attorney fees, interest and costs. Presumably, the basis for these is contained in the community documents. This is but one example of how the community documents can provide for recovery of amounts beyond those contained in the statutory law.

      . This refers to Title V, Building Restrictions, which contains La. C.C. arts. 775 to 783.

      . La. C.C. art. 782 deals with termination of building restrictions by abandonment.

      . Williams cited this case to the trial court during argument as indicating that La. C.C. art. 781 was applicable.

      . During his argument, Williams’s attorney stated, “At this point I would like to offer and introduce into evidence the petition of the plaintiffs as well as .. .what will be entered in evidence as our Exhibit No, 11 which is a copy of the lien that Mr. Thompson referred to.” At a later juncture, he stated, “I guess I would also like to offer into evidence the public records concerning the restrictions and covenants for Southern Trace. ..."


author: CARAWAY, J.

text:
    Anthony Scott TUBBS, Plaintiff-Appellee v. DARYL FLOOD RELOCATION, INC. and David Schuitt Defendants-Appellants
    No. 51,008-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 30, 2016

      TOM N. THOMPSON, Counsel for Appellants
    ANTHONY SCOTT TUBBS, In Proper Person
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   CARAWAY, J.

_JjThe defendants, Daryl Flood Relocation, Inc. (hereinafter “DFR”) and David Schuitt, appeal from a trial court judgment denying a request for additional attorneys in the amount of $11,035 in connection with the preparing, filing, and prosecuting of defendants’ special motion to strike.

Facts

DFR is a Texas-based corporation that specializes in moving and storing household goods for major retail appliance stores. It operates a storage facility in Shreveport where it receives and redelivers appliances for GE and Home Depot. David Schuitt, who lives in Austin, Texas, is a regional manager for DFR. As such, he oversees all day-to-day operations.

Anthony Scott Tubbs is a former contractor for DFR. Tubbs owned and operated ASAP Recycling, a company specializing in recycling appliances. ASAP Recycling provided DFR with recycling and disposal services for roughly a year until its contract with DFR was terminated in April of 2014.

This appeal arises from out of an arrest that occurred on May 11, 2014, almost a month after Tubbs was notified that his services were no longer necessary. On Sunday, May 11, 2014, the Shreveport police responded to a suspicious activity complaint at DFR’s warehouse in Shreveport and arrested Tubbs, who was subsequently charged with misdemeanor theft. At Tubbs’ criminal trial on February 26, 2015, Schuitt was subpoenaed to testify on behalf of the state. He testified that Tubbs was not authorized to be on the property because his contract had been | ^terminated a month prior to the incident and because it was a Sunday. At the conclusion of the state’s case, the court granted a directed verdict in favor of the Tubbs. Following the acquittal, Tubbs, representing himself pro se, filed suit against Schuitt and DFR alleging defamation for intentionally or recklessly misinforming the Shreveport police.

In response to Tubbs’ petition, DFR filed a special motion to strike pursuant to La. C.C.P. art. 971. The special motion to strike was enacted by the legislature as a procedural device “to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.” Lee v. Pennington, 02-381 (La. App. 4th Cir. 10/16/02), 830 So.2d 1037, writ denied, 02-2790 (La. 1/24/03), 836 So.2d 52. La. C.C.P. art. 971 provides that a prevailing party on a special motion to strike “shall be awarded reasonable attorney fees and costs.”

Ultimately the district court granted DFR’s motion to strike, awarding attorney fees and court costs with interest. Specifically, the judgment awarded DFR’s attorney, Tom Thompson, $14,287.50 in attorney fees for preparing the special motion to strike and rejected DFR’s request for additional attorney fees for his attorney, Lawrence E. Henke, in the amount of $11,035. Henke is not a member of Thompson’s law firm and is a Texas lawyer not authorized to practice in Louisiana.

In this single-issue civil appeal, the defendants question the rejection of additional attorney fees for DFR’s Texas co-counsel.

Discussion

IsThe appellate court reviews an award of attorney fees for an abuse of discretion. Covington v. McNeese State Univ., 12-2182 (La. 5/7/13), 118 So.3d 343. The district court’s factual determinations will not be set aside absent manifest error. Covington, supra, citing Stobart v. State, Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993). It is well settled that courts may inquire as to the reasonableness of attorney fees as part of their prevailing, inherent authority to regulate the practice of law. Rivet v. State, Dep’t of Transp. & Dev., 01-0961 (La. 11/28/01), 800 So.2d 777; State, DOTD v. Williamson, 597 So.2d 439 (La. 1992); City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La. 1987); Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La. 1982). Regardless of the language of the statutory authorization for an award of attorney fees or the method employed by a trial court in making an award of attorney fees, courts may inquire into the reasonableness of attorney fees as part of their prevailing inherent authority to regulate the practice of law. Rivet, supra. While a court may consider a contingency fee contract among other factors, it is not bound by such an agreement in determining reasonable attorney fees. Rivet, supra; Moody v. Arabie, 498 So.2d 1081 (La. 1986). Simply put, plaintiffs’ attorney is not entitled to recover any attorney fee from plaintiffs beyond that which is determined to be reasonable by the district court.

The reasonableness of attorney fees is determined by the factors set forth in Rule 1.5(a) of the Rules of Professional Conduct, which are as follows: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of 14the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Cupp Drug Store, Inc. v. Blue Cross, 50,843 (La.App. 2d Cir. 8/10/16), 201 So.3d 319.

Reviewing the trial court’s attorney fee award, we find no abuse of discretion. The award was based upon the hours expended by the Louisiana attorney representing both DFR and its employee, Schuitt. These were expended over the 7-month period between the filing of the suit, and its dismissal by the special motion to strike under La. C.C.P. art. 971. Those efforts sufficiently defended the efforts of DFR and in turn its employee. The fact that Schuitt chose to obtain the services of his Texas lawyer, while considered in evidence, could be rejected by the trial court as a duplication of the defense effort by Louisiana counsel. From our review of the record and the legal services involved, the trial court’s ruling was not unreasonable and was within its discretion.

As to Schuitt’s due process claim, he was afforded any process that was due by the trial court’s allowance of the evidence of the Texas attorney’s work into evidence. Therefore, we reject the strained argument concerning this constitutional protection.

Conclusion

|fiFor the foregoing reasons, the trial court’s ruling is affirmed. Costs of this appeal are assessed to appellants.

AFFIRMED.

      . Schuitt often appears as "Schuett” throughout the record.


text:
    STATE of Louisiana, Appellee v. Surcorey D. ODUMS, Appellant
    No. 50,969-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 30, 2016

      CAREY J. ELLIS, III, Louisiana Appellate Project, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, REBECCA ARMAND EDWARDS, LAURA OWEN WINGATE FULCO, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, CARAWAY and GARRETT, JJ,
   CARAWAY, J.

| Following a jury trial, Surcorey Odums was found guilty as charged of second degree murder, in violation of La. R.S. 14:30.1, and sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Odums appeals his conviction and sentence. We affirm.

Facts

On February 11, 2010, James Pouncy was found in his vehicle on a Shreveport residential street with multiple gunshot wounds. Pouncy later died from his wounds. Upon investigation, Shreveport police officers were unable to locate any eyewitnesses to the shooting or identify the shooter from the evidence collected at the crime scene. The case remained unsolved until 2013, when police obtained the murder weapon and a video taken six days after the murder showing Surcorey Odums selling the murder weapon, a gun, to undercover law enforcement officers.

Detectives interviewed Odums, who confessed that he shot Pouncy and sold the murder weapon to the undercover agents. Odums was arrested, and on August 15, 2013, a grand jury indicted Odums for the second degree murder of James Pouncy.

After a jury trial beginning April 22, 2015, Odums was convicted as charged of second degree murder. Odums filed motions for post-verdict judgment of acquittal and new trial asserting that the evidence was insufficient to support the conviction and that a new trial was warranted because of newly-discovered evidence (a fabricated lab report) that was never disclosed to the defense. After a hearing the trial court denied both ^motions. On June 24, 2015, Odums was sentenced to mandatory life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, concurrent with any other sentence Odums was serving. Odums was ordered to serve 30 days in the parish jail in lieu of court costs, concurrent to the other sentence and with credit for time served. After the trial court denied a timely motion to reconsider sentence, this appeal followed.

Discussion

Sufficiency of the Evidence

In his first assignment of error, Odums argues that the evidence was insufficient to support the verdict of guilty of second degree murder. Odums asserts that the state’s witnesses presented many different and conflicting stories about the events and that there was no substantial evidence linking him to Pouncy’s murder. Odums also claims that his confession to the murder was uncorroborated.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Crossley, 48,149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied, 13-1798 (La. 2/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; Crossley, supra; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. The trier of fact is charged with weighing the credibility of this evidence and on review, the same standard as in Jackson v. Virginia, is applied, giving great deference to the fact finder’s conclusions. State v. Hill, 47,568 (La.App. 2 Cir. 9/26/12), 106 So.3d 617.

14When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; Lilly, supra; State v. Robinson, 47,437 (La.App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied, 12-2658 (La. 5/17/13), 117 So.3d 918.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Glover, 47,311 (La.App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied, 12-2667 (La. 5/24/13), 116 So.3d 659; State v. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/6/09), 21 So.3d 299.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Woodard, 47,286 (La.App. 2 Cir. 10/3/12), 107 So.3d 70, writ denied, 12-2371 (La. 4/26/13), 112 So.3d 837.

Specific intent to kill or inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Patterson, 10-415 (La. App. 5th Cir. 1/11/11), 63 So.3d 140, writ denied, 11-0338 (La. 6/17/11), 63 So.3d 1037; State v. Durand, 07-4 (La. App. 5th Cir. 6/26/07), 963 So.2d 1028, writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La. 1983). The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La. 1982).

Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Garner, 45,474 (La.App. 2 Cir. 8/18/10), 47 So.3d 584, writ not considered, 12-0062 (La. 4/20/12), 85 So.3d 1256.

At the trial of this matter, Shreveport Police Officer Vincent Webb testified that at approximately 10:25 p.m. on February 11, 2010, he responded to the call of shots fired at the residential intersection of Wallace and Fuller streets. An older model green Chevy Suburban was stopped at the corner, in the right lane of traffic. Visibility was impaired by snow falling. The officer saw that the driver’s side window was down and a man sitting at the steering wheel was slumped over and unresponsive. Paramedics found the man had a weak pulse and removed him for transport to a nearby hospital. As the man was removed from the vehicle, Officer Webb saw shell casings fall to the ground. Officer Webb observed no broken glass on the ground and all the other windows were up. Webb saw a small amount of blood in the driver’s seat after the man was removed. Officer Webb testified that, based on the type and location of the shell casings, the murder weapon was probably a semi-automatic handgun that^was fired about six to eight inches from the victim. The victim, identified as Pouncy, later died.

Shreveport Police Officer Lacey Durham testified that she was stopped at a red light at the corner of Linwood and 70th Street during her patrol on February 11, 2010. She saw the brake lights on the vehicle in front of her flash a couple times and then the driver sped into the intersection, into oncoming traffic. The car then pulled into a convenience store on the opposite corner. Officer Durham pulled in behind the vehicle as the driver, wearing pants and a long shirt, jumped from the vehicle clutching something to his chest. The officer ordered the driver to stop, but he ran toward the building and then behind a trash dumpster and disappeared. Officer Durham found a hole in the fence behind the dumpster and noticed footprints in the snow on the other side. She notified nearby law enforcement, who responded that they had picked up the trail of footprints. About five minutes later, the man came walking back, now wearing only his pants and a white tank top. The man identified himself as Surcorey Odums, with a mailing address of 1514 Lash Street, Shreveport, Louisiana. Odums said he ran because he thought he had an outstanding warrant, but he came back in as a canine unit chased him. Odums told the officer that he tore his shirt on a fence.

As Officer Durham was arresting Odums, police dispatch announced that a man was found shot nearby at the corner of Wallace and Fuller streets. Officer Durham testified that Odums threw up at that point. The officers working the shooting searched the victim’s vehicle for identification and announced on the radio that they found mail with the address of 1514 Lash 17Street. When Officer Durham asked if Odums had a family member or friend who had been shot, Odums did not answer and threw up again. Odums was later given a summons and released.

Shreveport Police Officer Danny Duddy testified about the investigation of the crime scene and the victim’s 1995 Chevy Suburban. A total of nine .40 caliber shell casings were found inside and on the ground outside the vehicle. Six .40 caliber bullet projectiles and fragments were retrieved from the interior of the vehicle, along with a small bag of a green leafy substance believed to be marijuana, and a cell phone. Despite the multiple gunshots, only a small drop of blood was found on the driver’s seat; the officer concluded that the victim’s clothing absorbed any blood splatter. After examination of the vehicle and its contents for fingerprints, the only viable fingerprint found was on a bottle and it matched the victim’s girlfriend, Me’shay Carr.

No firearms damage was observed on the vehicle. Using dowel rods, officers marked the trajectory of the gunshots and observed that the shooter was standing at the driver’s side window, firing inward. Officer Duddy testified that, based on the type and location of the shell casings and the lack of firearms damage to the driver’s side, he believed that the murder weapon was an automatic or semi-automatic gun that was inside the vehicle when fired.

Evidence collected from the vehicle, plus swabs of the vehicle for contact DNA testing, were sent to the North Louisiana Crime Lab for testing. Audra Williams, an expert in forensic DNA analysis, testified that DNA tests of the evidence and swabs from the victim’s vehicle did not yield 1 sany results linking a specific individual to the murder. Since no murder weapon was found, information on the spent shell casings was entered into a federal gun database.

James Cromer, Jr., a former Shreveport police officer, testified that he briefly investigated the Pouncy homicide and that a canvass of the neighborhood for eyewitnesses was unsuccessful. A man named A.C. Green told officers that he spoke with Pouncy that night and that Pouncy mentioned that he had been threatened. Poun-cj^s family members told the officers that the victim had gotten back into drugs and could often be found at a house on Nicholson Street, which was just blocks from where the victim was found shot.

Odums became a person of interest in the investigation when officers learned about Officer Durham’s traffic stop and Odums’ flight. Odums voluntarily gave a statement to police on February 13, 2010, telling officers that he had known Pouncy for about five years, had worked with Pouncy before, and had last seen Pouncy two months before. Odums told the officers there were no problems between him and Pouncy and that he was aware that Pouncy was using drugs.

Odums’ statement was contradicted by statements obtained from Katrina Ford, Monique Williams, and Otha Green, who told officers they saw Odums arguing with Pouncy just hours before the murder, at a house on Nicholson Street. The women told officers that they had been gathered there along with the victim, the homeowner, Edwin Harper, and several others, 13drinking, smoking, and gambling. Odums arrived in a white, four-door vehicle and demanded that Pouncy pay him for a debt. Pouncy was angry about the confrontation and refused to pay Odums at that time, saying he would pay him later after a job was completed. Odums told Pouncy “I will kill you,” and then drove Otha Green to Green’s house. On the way back to the Nicholson house, Otha heard Odums on his cell phone asking someone to meet him and bring a gun. Upon returning to the Nicholson house, Otha Green told Pouncy to be careful because Odums was angry and had a gun.

Edwin Harper and another party guest, Ricky Mason, told officers that they did not hear any argument. Katrina Ford told officers that Pouncy and Odums had a prior physical confrontation and Odums said he would not fight Pouncy.

Monique Williams testified that Odums was angry that Pouncy refused to pay him at that time. Williams thought they were friends, so she did not take Odums’ threat that he would kill Pouncy seriously until Green returned and said that Odums was outside and had a gun. Williams said that despite Otha Green’s warning, Pouncy left about 30 minutes later to pick up some beer at a store a few blocks away. He never returned, and Williams learned the next day that Pouncy had been killed.

Otha Green testified that Pouncy clearly did not like the way Odums came into the house demanding his money in front of everyone or the way Odums spoke to Pouncy. Green offered money to Pouncy, but Pouncy pulled a wad of money from his pocket and said he had the money, but he was angry about being disrespected and confronted in front of everyone. Green testified that as he and Odums were returning to the Nicholson house |1flin Odums’ car, he heard Odums ask someone to meet him and to bring a gun. Green testified that he told Odums that the debt was not worth shooting someone. Green went back inside the house while Odums stayed in the car and honked the horn. Green testified that he told Pouncy that Odums was going to shoot him, so do not go outside, but Pouncy did not take the warning seriously. Green asked Pouncy if he had his gun with him, and Pouncy told Green “no.” Green testified that he had never seen Odums before that night. He said a year after the murder, officers presented him with a photographic lineup and he identified Odums as the man who argued with Pouncy that night, gave Green a ride, and asked someone to meet him and bring a gun.

Detectives investigated multiple crime stopper tips and information obtained by other officers about who was involved in the homicide, but found no evidence to confirm any of the rumors. Odums spoke with officers a second time and denied any involvement in the homicide. Odums voluntarily allowed officers to take a saliva swab for DNA testing, but tests did not link his DNA to any evidence at the crime scene.

The case remained unsolved until April 2013, when Shreveport police were notified that the federal gun database had found the gun that was used in Pouncy’s murder. The case was re-assigned to Detective David Bonillas, Inwho obtained the gun and the video that showed Odums selling the murder weapon to undercover agents.

Shreveport Police Officer Jerry Alkire testified that in February 2010 he was part of a joint task force operation in which undercover officers operated a fake storefront selling tobacco products while at the same time buying guns. On February 17, 2010, six days after Pouncy’s murder, one of the regular customers came into the store to sell a gun. Audio and video recordings captured the transaction as the man, known to the officers as Corey, handed the undercover officers the gun and was paid $300. After Corey left, officers noted the gun was a Ruger semi-automatic .40 caliber handgun, model P94, with serial number 341-42502. When the operation was ended several months later, all the guns were collected and fired, and a spent shell casing was sent to a federal gun identification system. The gun database matched the spent shell casing from the gun Corey sold the officers to the spent shell casings found at the Pouncy murder scene.

In a photographic lineup, Officer Alkire identified Odums as the man he knew as Corey, who sold the gun in 2010. Richard Beighley, an expert in firearms identification, testified that he test-fired the gun that had been sold to the undercover agents and confirmed that it was the weapon that was used to fire all nine of the shell casings found inside and near Poun-cy’s vehicle, as well as six of the bullet projectiles found inside the vehicle.

Detective Bonillas testified that he recognized the man in the gun transaction video as Odums, a person of interest in the Pouncy murder and |iathat Officer Alkire identified Odums as the man named “Corey” who sold him the gun. When Beigh-ley’s tests confirmed that the gun Odums sold to the undercover officers was the gun used to kill Pouncy, Detective Bonillas obtained an arrest warrant for Odums. Detective Bonillas made photographic stills from the video of the gun sale, and took the photos and the arrest warrant with him and Detective Curtis to get a statement from Odums.

On June 25, 2013, Detectives Bonillas and Curtis met with Odums to discuss the “suspects” buying and selling guns. They read Odums his rights and he signed the rights form. When officers showed Odums the photographs, he initially denied selling the gun. Detective Bonillas testified that he told Odums that they had audio and video of the gun sale, that tests had proved the same gun was used to kill Pouncy, and that there were witnesses who heard him arguing with Pouncy and threatening to kill him, then asking for a gun. Detective Bonillas then showed Odums the warrant to arrest Odums for second degree murder.

The audiotape of the interview was played for the jury and Odums is heard confessing that he argued with Pouncy, that he shot Pouncy, and that he later sold the gun to the undercover officers. Odums told the officers that he and Pouncy accidentally met up at the intersection and that Pouncy cut him off. He got out of his vehicle and thought that Pouncy was reaching under the seat and was about to exit his vehicle, so Odums shot him. Detective Bonillas testified that Odums never told the officers that he actually saw Poun-cy with a gun and that no gun was found in the vehicle or on the victim. Pouncy was found with approximately $130 in his wallet. | i3Odums told the officers that he was fleeing the murder scene when he was stopped by Officer Durham, and that he ran and hid the gun in an abandoned house so he could retrieve it later.

The defense began its case-in-chief by calling Katrina Ford to testify. Ford confirmed that she was at Edwin Harper’s house the night of February 10, 2010, with Monique Williams and the victim. Ford testified that Odums came to the house to sell her some drugs and that he argued with Monique. At that point Pouncy stood up and he and Odums began arguing about Pouncy’s debt to Odums. Ford never heard Odums tell Pouncy he would kill him, but Harper came in and told them to leave. After Odums left, the group continued getting high and then Pouncy left.

When viewed in the light most favorable to the state, the evidence is sufficient to convict Odums of second degree murder. Williams, Ford and Green all testified that they observed the argument between Odums and Pouncy that evening over Odums not being paid. Williams and Green heard Odum say he would kill Pouncy, a statement that was taken more seriously when Green heard Odums asking for a gun. Within hours of that threat, Pouncy was found dead, shot at close range with multiple gunshot wounds, and Odums was seen by law enforcement fleeing from the area. Six days later, Odums was videotaped selling the gun used to kill Pouncy. Odums confessed that he argued with and shot Pouncy and later sold the gun to the undercover officers. From this evidence, the jury could have reasonably concluded that the corroborated circumstantial evidence and Odums’ confession were sufficient proof of the elements of second degree murder beyond a reasonable doubt. This assignment of error is without merit.

| uMotion to Suppress

In his second assignment of error, Odums argues that the trial court erred in failing to order his June 25, 2013 statements suppressed.

Although the trial began on April 22, 2015, the defense did not file a motion to suppress Odums’ statement and confession to police until April 29, 2015. On April 30, 2015, the court held a “free and voluntary” hearing to determine whether defendant’s June 25, 2013 statements to police during a custodial interrogation were admissible.

At the hearing, Detective Bonillas confirmed that after he was assigned to this cold case on April 23, 2013, he and Detective Curtis met with Odums and told him they were investigating subjects who had been traveling from state to state, buying and reselling guns. Odums told the officers that he knew about the guys buying and selling guns but had no further information for them. The detectives asked if Odums would speak with them about it anyway and advised him that they had to read him his rights in order to ask him any questions. Odums was given a form that listed his Miranda rights and Odums requested that Detective Bonillas read them aloud.

The audio recording of the interview confirms Odums cannot read and asked Detective Bonillas to read each right to Odums. Detective Bonillas read each right to Odums and informed him of his right to waive those rights by giving a statement. Odums was then asked to sign the rights form. Odums asked Detective Bonillas a series of questions before signing the form and continued to speak with the officers, subsequently choosing to |1fianswer their questions. The form, admitted as S-l at the free and voluntary hearing, lists the defendant’s rights and is signed by Odums and the detectives.

Detective Bonillas testified that Odums did not show any signs of being impaired or intoxicated, and that Odums appeared to understand their questions and gave coherent answers. Detective Bonillas testified consistently with his trial testimony regarding Odums’ confession. Detective Bonillas testified that no threats or promises were made to induce Odums to make a statement and that Odums never asked for an attorney and never asked to stop the interview.

Odums testified at the hearing and confirmed that Detective Bonillas read his rights to him, that he understood the rights and signed the Miranda form. Odums testified that he had an eighth-grade education and that he could write a little, but that he could not read. Odums testified that he meant no, when he answered “naw,” to the officer’s request for a statement. Odums also testified that the officers did not touch him, but that he still felt threatened by them because they sat close to him and he felt that they were agitated.

The trial court found that the defendant’s statement to police was freely and voluntarily given, and that the statement was admissible at trial.

On appeal, Odums argues that his confession was inadmissible because he was not properly advised of and did not knowingly, intelligently waive his rights. Odums acknowledges that the officers advised Odums of | ir,his rights by reading them aloud to Odums, but asserts that the detectives failed to make certain that Odums understood that he could have an attorney present for the interview conducted on June 25, 2015. Furthermore, even though Odums said he understood those rights and signed the form, he argues that he did not knowingly, intelligently, or voluntarily waive his rights because he could not read.

La. C. Cr. P. art. 703(D) provides that in a motion to suppress evidence the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant. Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Thibodeaux, 98-1673 (La. 9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000); State v. Howard, 49,965 (La.App. 2 Cir. 6/24/15), 169 So.3d 777. Accordingly, this Court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Holder, 50,171 (La.App. 2 Cir. 12/9/15), 181 So.3d 918; State v. Hemphill, 41,526 (La.App. 2 Cir. 11/17/06), 942 So.2d 1263, 1271, writ denied, 06-2976 (La. 3/9/07), 949 So.2d 441.

Before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, 1 ^inducements or promises. La. R.S. 15:451. The state must establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights and that the confession was freely and voluntarily made. State v. Glenn, 49,705 (La.App. 2 Cir. 2/26/15), 162 So.3d 525; State v. Coleman, 48,168 (La.App. 2 Cir. 7/17/13), 121 So.3d 703, writ denied, 13-1990 (La. 5/2/14), 138 So.3d 1237; State v. Fisher, 46,997 (La.App. 2 Cir. 2/29/12), 87 So.3d 189. Miranda warnings must inform the person in custody that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. State v. Leger, 05-0011 (La. 7/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Voluntariness is determined on a case-by-case basis, under a totality of the circumstances standard. State v. Parker, 48,339 (La.App. 2 Cir. 10/9/13), 124 So.3d 516.

Whether the police have scrupulously honored a defendant’s right to cut off questioning is a determination made on a case-by-case basis under the totality of the circumstances. State v. Prosper, 08-839 (La. 5/14/08), 982 So.2d 764; Leger, supra. The Louisiana Supreme Court has held that the defendant’s use of the phrase “uh, uh,” could not plausibly be understood as an invocation, ambiguous or otherwise, to cut off questioning in all respects, considering that defendant was willing to talk to authorities even after the 11srespouse as indicated by his continuing to respond to questions. State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8.

An accused must unambiguously request counsel “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney” in order to cease custodial interrogation. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), affirmed after writ grant, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); Leger, supra.

The audio recording of the interview corroborates Detective Bonillas’ testimony that he properly advised Odums of his rights by reading him the Miranda rights form and informing Odums of his right to waive his rights by giving a statement. Detective Bonillas read the rights to Odums who indicated that he could not read. Included in those rights was a clear statement regarding Odums’ right to counsel. Further, Detective Bonillas testified that Odums appeared to understand the rights. Odums confirmed that he did understand the rights that Detective Bonillas read to him and confirmed that he signed the Miranda form.

The audio recording also confirms Detective Bonillas’ testimony that Odums never requested an attorney or asked to terminate the interview, and that Odums chose to answer their questions, despite his initial hesitation regarding what the officers were “trying to get me to like testify on.” These statements also show Odums’ awareness of the consequences of his making a statement.

| lflWe find that the state met its burden of proving that Odums was advised of and knowingly waived his Miranda rights, and that the confession was freely and voluntarily made. No evidence shows that Odums requested an attorney. Further, Odums’ understanding of his rights and the waiver thereof is evident on the record. Because Odums has failed to show any abuse of discretion by the trial court in denying the motion, this assignment is without merit.

Motion for New Trial

As noted above, the defense also filed a motion for new trial because of newly discovered evidence of a fabricated lab report that was never disclosed to the defense. The fabricated report was made to appear to be a DNA analysis by the North Louisiana Crime Lab.

At the hearing, the state argued that the fabricated report did not have to be disclosed because it was never used, it was not evidence, and that the officer who fabricated the report never testified at trial. The state also asserted that the jurors heard expert testimony that none of Odums’ DNA was found on anything at the crime scene. Thus, Odoms was not prejudiced by a false document that was merely intended to be an interrogation prop that was never used.

Jimmy Barnhill, system director for the North Louisiana Crime Lab, testified that the lab received the report from one of the prosecutors just prior to trial. Barnhill said that the fabricated report was not evidence, so it wasj^never checked in as evidence. Barnhill noted that while the report was a good fabrication, it was clearly a false DNA report as it was “signed” by the firearms analyst and not a DNA analyst.

The trial court found that the document was not relevant because it was not a crime lab report or evidence of the crime and was never used at trial and denied Odums’ request for a new trial.

On appeal, Odums argues that regardless of whether the report was used in interrogation or presented at trial, the state was obligated to disclose the report as part of discovery and that the failure to do so deprived the defendant of the opportunity to call the officer who created it to testify and impeach his testimony.

In relevant part, La. C. Cr. P. art. 851 provides the grounds allowed for a new trial:

A. The 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.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty. * * *
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

[2iA defendant seeking a new trial based on newly discovered evidence bears the burden to prove that (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of the trial was not caused by lack of diligence; (3) the evidence is material to the issues at trial; and, (4) the evidence is of such a nature that it would probably have produced a different verdict. La. C. Or. P. art. 851(B)(3); State v. Bell, 09-0199 (La. 11/30/10), 53 So.3d 437, cert. denied, 564 U.S. 1025, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011); State v. Lloyd, 48,914 (La.App. 2 Cir. 1/14/15), 161 So.3d 879, writ denied, 15-0307 (La. 11/30/15), 184 So.3d 33, cert. denied, 2016 WL 4083852. The decision of whether to grant or deny a motion for new trial is within the trial judge’s sound discretion. State v. Brisban, 00-3437 (La. 2/26/02), 809 So.2d 923.

In this case, it is undisputed that the defense did not discover the fabricated DNA lab report until after trial. Moreover, the prosecution stipulated that the fabricated lab report was not disclosed. However, because the fabricated lab report was not used during Odums’ interrogation, it has not been shown to be material to Odums’ confession. Likewise, the report was not used at trial. Rather, the jury received expert DNA testimony that none of Odums’ DNA was found at the crime scene. Ultimately, none of the evidence linking Odums to the murder was DNA evidence. Thus, Odums has failed to demonstrate that the jury’s verdict was influenced by the | ¡^fabricated report or that the introduction of the fabricated lab report at trial would have produced a different result. The independent evidence of Odums’ guilt was sufficient on its own to convict Odums of Pouncy’s murder. Thus, Odums has failed to show an abuse of discretion in the trial court’s denial of the motion for new trial.

Conclusion

For the foregoing reasons, Odums’ conviction and sentence are affirmed.

AFFIRMED.

      . The motions for new trial, post-verdict judgment of acquittal, reconsideration of sentence and appeal, incorrectly state that Odums was convicted of first degree murder.

      . Dr. Long Jin, a forensic pathologist, performed Pouncy's autopsy on February 12, 2010. Dr. Jin testified that Pouncy's cause of death was multiple gunshot wounds to the torso and that the manner of death was homicide. Dr. Jin testified that gunshot wounds to Pouncy’s left chest and lower left abdomen were fatal shots. The damage to Pouncy's organs caused his lungs and abdomen to fill with blood.

      . Police also interviewed a man named Julius Atkins, aka "Picklehead,” who was rumored to know who the shooter was. Atkins’ girlfriend, Heather Malone, called 911 and said she heard gunfire and then found the victim in his vehicle. Atkins told officers that he had been walking down Wallace Street that night when he saw two vehicles pulled up next to each other on the street. He saw headlights and then heard gunshots and ducked and ran. He called Malone to contact police. Malone told officers that she heard gunfire but did not see the shooting.

      . State’s Exhibit No. 46 contains two DVDs, with video of the gun transaction.

      . Odums was incarcerated on pending charges unrelated to this matter.

      . Notably, the Miranda form introduced by the state shows that Odums was being investigated for murder.

      . The audio recording indicates that Odums answered "Naw” when asked if he could read.

      . These rights were set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Likewise, the audio recording also establishes that there were no indications that Odums spoke under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Odums testified at the free and voluntary hearing that the officers sat close to him and appeared agitated, but the audio recording does not reflect any aggression, threats, or raised voices from the detectives, or fear from the defendant.

      . We note that other jurisdictions have held that the use of false information by police during an interrogation is deceptive and a relevant factor indicating a possibility that the defendant’s statements were made involuntarily, Com. v. Monroe, 472 Mass. 461, 35 N.E.3d 677 (2015); Commonwealth v. Selby, 420 Mass. 656, 651 N.E.2d 843 (1995). See also, State v. Chirokovskcic, 373 N.J.Super. 125, 860 A.2d 986, (App. Div. 2004), affirming a "bright-line” rule precluding the use of police-fabricated tangible evidence and Gray v. Commonwealth, 480 S.W.3d 253 (Ky. 2016), which found due process of law violated in obtaining the defendant’s confession by fabricated DNA evidence.