author: DREW, J.

text:
    INTERDICTION OF Huey Pierce ROBERTS
    No. 51,714-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 3, 2017
    TOM N. THOMPSON, BROWN FOX, PLLC, By: Lawrence E. Henke, Dallas, Counsel for Appellants, Suzonne Roberts, Taliaferro and Joseph Pierce Roberts
    ALLYSON B. FOSTER, Counsel for Appellee, Huey Pierce Roberts
    RANDY BLAKE ROBERTS, Appellee, In Proper, Person
    PHYLLIS K. ROBERTS RAMBIN, Appellee, In Proper, Person
    Before DREW, MOORE, and PITMAN, JJ.
   DREW, J.

In this interdiction proceeding, the trial court entered judgment ordering the interdiction, but denied the request to place the elderly interdict at a senior care facility in Texas. The petitioners to the interdiction appeal the location determination. We reverse that part of the judgment.

FACTS

Huey Pierce Roberts ("Roberts"), who was 85 years old at the time of this proceedings and a longtime resident of Farmerville, Louisiana, has four children: Phyllis Ramblin of Farmerville; Suzonne Taliaferrro of Flint, Texas; Joseph Roberts of Iowa, Louisiana, and Randy Roberts of Dallas, Texas.

In 2003, Roberts granted Phyllis a full power of attorney, including the making of medical decisions. In October of 2011, Roberts granted Suzonne a power of attorney over his assets, but not over his medical or health care decisions. Although Suzonne eventually became more involved in her father's financial matters because of her concerns that he was being exploited financially, she did not formally accept the power of attorney until May 18, 2016.

Dr. Gary Tubre, an internist who started treating Roberts in July of 2010, diagnosed Roberts in 2011 as suffering from Alzheimer's disease. When he examined Roberts for the first time in a year on February 23, 2016, he discovered that Roberts had lost 21 pounds and had a chronic rash.

Roberts, who was living alone, had a caretaker present from 7:00 a.m. to 5:00 p.m. on weekdays. A niece began watching him on weekends following his February 2016 visit with Dr. Tubre.

On May 26, 2016, Suzonne and Joseph filed a petition to interdict their father because of his inability to make reasoned decisions regarding his personal care and personal safety. Among their requests was that the court authorize them to move Roberts into the Brookdale Living Center in Henderson, Texas.

On June 28, 2016, Suzonne took Roberts for an examination by Dr. Gary Booker, who specializes in general psychiatry with a subspecialty in geriatric psychiatry. Dr. Booker concluded that Roberts needed full-time supervision. Suzonne followed Dr. Booker's suggestion that she take Roberts home with her because he could not be left alone. At the time of trial, Roberts remained at Suzonne's home, where Suzonne and her husband provided care and supervision, with relief occasionally provided by Joseph and his wife. Suzonne had installed door alarms in her house, a mattress alarm on Roberts' bed, and a video monitor was used to watch his bedroom at night without disturbing him.

On June 7, 2016, Phyllis took her father before a notary, where he revoked Suzonne's power of attorney. This revocation was ultimately set aside.

Dr. Sally Thigpen, a psychologist, was appointed by the court to examine Roberts for any infirmities and to assess the appropriateness of interdiction. She agreed that Roberts was unable to care for himself and needed supervision at all times.

Among the witnesses at trial was April Gilchrist, a licensed professional counselor who was hired by Suzonne and Joseph to initially assess Brookdale as well as three facilities in Farmerville to determine if any of them would meet Roberts' needs. Gilchrist reviewed the medical reports and took into consideration Roberts' financial means, including VA benefits. Farmerville Nursing and Rehabilitation Center would not meet his needs and did not accept VA benefits. Although Arbor Lake Skilled Nursing and Rehabilitation in Farmerville offered full-time care and supervision, Gilchrist was concerned that Roberts would not get the amount of contact there that he needed to stimulate his mind. It also did not accept VA benefits. The director of Arbor Rose Assisted Living in Farmerville did not think his facility would be appropriate for Roberts, so it did not meet Gilchrist's criteria for placement. Gilchrist thought that Brookdale, which accepted VA benefits, was the best facility for Roberts' needs. Gilchrist later visited Russ Place in Ruston, which was relatively equal to Brookdale in cost. While Russ Place accepted VA benefits and Gilchrist thought it was comparable to Brookdale, it did not offer a separate locked memory care unit or personal care assistants. Gilchrist considered a locked memory care unit to be a minimum requirement for Roberts. Therefore, according to Gilchrist, Brookdale remained the best choice for meeting Roberts' current and future needs.

The trial court entered judgment declaring the full interdiction of Roberts as to both his person and property. Suzonne was appointed curatrix. Randy was appointed undercurator. The trial court denied the request to place Roberts in a facility outside of Louisiana. Suzonne and Joseph appealed the denial of their request.

In its written ruling, the trial court provided a detailed and valuable summary of the testimony and records. We attach that ruling as an unpublished appendix to this opinion.

DISCUSSION

An appellate court may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989). When one or more legal errors are present, however, the appellate court does not apply the manifest error standard of review but instead conducts a de novo review of the record. Evans v. Lungrin , 1997-0541 (La. 02/06/98), 708 So.2d 731. A legal error occurs when a trial court prejudicially applies incorrect principles of law such that it materially affects the outcome of the case and deprives a party of substantial rights. Lasha v. Olin Corp. , 625 So.2d 1002 (La. 1993).

Suzonne and Joseph argue on appeal that a de novo review is allowed because the trial judge applied an incorrect standard of law during the process of deciding that Roberts could not be relocated to Brookdale. They further argue that this decision itself was also manifestly erroneous and unsupported by the record.

La. C.C.P. art. 4566(F) states that a curator shall not establish or move the place of dwelling of the interdict outside this state without prior court authorization. The standard to be used by the court is the best interest of the interdict. See In re Interdiction of Rodrigue , 2005-0061 (La. App. 1 Cir. 11/4/05), 927 So.2d 421, where the court determined that the trial judge used the correct legal standard when it denied relocation under art. 4566(F) because it referred several times to the interdict's best interest.

In its ruling, the trial court stated:

The decision as to where to place Mr. Roberts is difficult. My hope is that the children will set aside their differences and work together for Mr. Roberts' best interests. I am convinced that all of the children have a deep love and affection for their father. The Court is not at this time approving a placement for Mr. Roberts. I encourage the children to work together to formulate a plan of care for him, especially in light of La. C.C.P. art. 4566(E) and (F). If the curator and undercurator cannot come to a consensus as to the proper plan of care for their father, the Court will address this in future hearings.

We applaud the trial court's attempt at family consensus on the placement issue, but we are constrained to reverse, as the best interest of Roberts must be the total consideration in this sad case. Even if this court applied the manifest error standard, our determination would be the same. To reverse a fact finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. & Dev. , 617 So.2d 880 (La. 1993).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court; but, if the trial court findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell , supra .

While Randy agreed that it was time for his father to have full-time care, he preferred that his father stay as close to his church family as possible, and was concerned that none of his father's friends could drive from Farmerville to Henderson, Texas, for visits. He wanted his father near Farmerville until he was unaware of who he is or who his friends are.

Phyllis thought daily care at home from 9:00 a.m. to 6:00 p.m. and 9:00 p.m. to 6:00 a.m. would be sufficient for her father. If home care was not viable, then she wanted him placed at a facility near Farmerville so he could be close to his church family, could still visit friends at a drugstore, and play golf. She considered her father still to be a viable member of the community, and she thought it was cruel to move him away from everything he knew.

Dr. Booker thought that in Roberts' current mental state, memories of Farmerville went with Roberts wherever he went, so moving him was not as big an issue as they were making it out to be. Randy disagreed with Dr. Booker that his father's level of dementia was such that being close to Farmerville no longer mattered. Dr. Thigpen believed it would be too late to place Roberts somewhere when he could no longer recognize his family.

There was no testimony from any medical witness calling into question the propriety of placing Roberts at Brookdale. In her report prepared for the court, Dr. Thigpen stated that the decision about the best placement for Roberts was difficult, and that she prayed his children could set aside their differences and find a solution in his best interest. At trial, Dr. Thigpen testified that the ideal situation is when family members all agree as to what is best. However, she also testified that it would be in his best interest to place Roberts at Brookdale if it offered equal care and will not deplete his assets.

Dr. Booker testified that it would be in Roberts' best interest to live at Brookdale, and he absolutely agreed with Gilchrist's recommendation that Brookdale best met Roberts' needs. Dr. Booker thought that the lack of a secured separate memory unit at Russ Place disqualified it from consideration.

Another factor to consider is cost. The financial reality is that Roberts has monthly income of approximately $4,500. His income, along with the VA benefits, would cover the cost of Brookdale and leave him with some extra money. If he received full-time care at home, it is estimated that it would cost approximately $10,000 a month and he would be flat broke within six months.

As noted above, Phyllis proposed having in-home care for her father on a daily basis from 9:00 to 6:00 during the day and from 9:00 to 6:00 overnight. Phyllis had not analyzed the numbers to see how much home care under her plan would cost. Dr. Booker did not think Phyllis's proposed care plan met her father's needs or would be in his best interest. Dr. Thigpen did not think it would be in Roberts' best interest to follow Phyllis's plan of care and return him to the same caregivers.

For these reasons, the denial of the request to place Roberts at Brookdale, though understandable, was clearly wrong.

Finally, as a practical matter, it appears from the record that it would be extraordinarily difficult to get all four children to come to an agreement on much of anything, particularly as to their father's prospective venue. Phyllis does not even accept that he needs full-time care; she minimizes his dementia. Randy did not participate in mediation ordered by the court. Suzonne has reached out to her father's pastor to help the family come to a resolution, but she testified that Phyllis did not want anyone else involved. Even Joseph, who is a petitioner to the interdiction proceedings, was initially opposed to placing his father anywhere until he saw how his father was living.

CONCLUSION

With each party to bear its own costs, we reverse that part of the interdiction judgment denying the request to place Roberts at Brookdale. In all other respects, the judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

UNPUBLISHED APPENDIX


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Charles MAYS, Jr., Appellant
    No. 51,642-KA
    Court of Appeal of Louisiana, Second Circuit.
    November 3, 2017
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Rayville, LA, Counsel for Appellant
    JAMES E. STEWART, SR. District Attorney, REBECCA A. EDWARDS, J. AARON CRAWFORD, WILLIAM C. GASKINS, Assistant District Attorneys, Caddo Parish, LA, Counsel for Appellee
    Before BROWN, DREW, and COX, JJ.
   DREW, J.

Charles Mays, Jr., was charged with armed robbery, La. R.S. 14:64. After a jury found him guilty as charged, he filed a motion for post-verdict judgment of acquittal, which was denied.

The defendant was adjudicated a second-felony habitual offender and sentenced to the minimum legal sentence, 49 ½ years at hard labor without benefits, to be served concurrently with any other sentence.

No motion to reconsider sentence was filed. Mays appeals on his perceived issues of sufficiency and excessiveness. We affirm in all respects.

FACTS

The charged crime was the armed robbery of Clay Edward Fuller and Kayla Goodman on April 25, 2015. At trial, the state called five witnesses.

1. Clay Edward Fuller , one of the victims, testified:

• in April of 2015, he was a clerk at a Shreveport Circle-K store;
• on the date in question, he was working the cash register while Goodman stocked the cigarette shelf;
• a tall, middle-aged African-American man approached him, asking for cigarettes;
• the subject was wearing a brown shirt, a hat, and faded blue jeans;
• when asked for identification, the man demanded "everything out from under that counter," which Fuller initially interpreted as meaning he would buy everything under the counter;
• he was disabused of that notion when the man put a gun to Fuller's neck;
• he did not know the robber;
• when he opened the cash register drawer and stepped back, the robber took all the cash and left the store;
• since this was his first robbery, he called his manager, who told him to immediately call the police;
• he spoke to several officers and an investigator;
• he saw the officers dusting for fingerprints;
• he worked at that store for about 3 ½ months after the robbery, and the robber did not return during that time frame;
• he was later contacted by Detective Richard Turnpin, who showed him a photo lineup of six people, from which he could not identify the robber;
• he never saw the gun because it was wrapped in a bandana;
• he knew it was a gun when it touched his neck; and
• the robber was not wearing a mask during the incident.

2. Kayla Goodman , Fuller's coworker, testified:

• she had been working at the Circle-K for three months prior to the robbery;
• she was cleaning and stocking the cigarette shelf behind the checkout counter when the robber entered the store at about 4:00 p.m.;
• the man walked around the store and approached the counter;
• when she asked him if he needed help, he silently walked away;
• he queued up in the checkout line behind two customers;
• he was a tall and heavyset African-American;
• she heard him tell Fuller to open the cash drawer;
• she saw him pull out a gun, partially covered with a bandana;
• when Fuller froze and did not open the drawer, the robber slammed his hand on the counter, walked behind the counter, and again told Fuller to open it;
• when Fuller still did not open the drawer, the robber pointed the gun at his face;
• she told Fuller to go ahead and open the drawer, which he did;
• the robber removed about $150 in cash and walked down the street;
• she and Fuller asked the remaining customer to step outside so they could lock the doors of the Circle-K and call the police;
• she gave the police a copy of the security footage;
• the video was missing the part of the event when the man pulled out the gun, slammed his hand on the counter, and walked around the counter;
• she had never seen the robber before and could not pick him out of a six-person photographic lineup;
• after the police arrived to investigate, she saw them dust the register and the lottery glass, two places where the robber placed his hands;
• she never got a good look at the robber's face during the robbery; and
• she got a good view of his face right before the robbery.

3. Officer Jamie Bryant , Shreveport Police Department, testified:

• he was dispatched to the Circle-K on Jefferson Paige Road on April 25, 2015, in response to an armed robbery;
• at the scene he spoke with the two employees, who informed him that approximately $150 was taken from the cash register;
• Fuller and Goodman provided a general description of the robber;
• a customer told him that he observed the robber run behind the Circle-K;
• he watched the surveillance video and collected fingerprints from the areas of the countertop where the robber placed his bare hands; and
• he turned the fingerprints over to another individual for analysis, and his involvement in the case ended upon completion of his report.

4. Sergeant Danny Duddy testified:

• as the supervisor for the Shreveport Police Department's crime scene investigations unit, he analyzed the fingerprints obtained by Officer Bryant;
• he identified two fingerprints and two palm prints taken from the scene;
• prior to taking the stand, he fingerprinted Mays outside the presence of the jury and determined that those fingerprints matched the fingerprints recovered from the crime scene; and
• this match was verified by a second examiner, but he could not determine when the prints were left on the counter.

5. Det. Richard Turnpin, Shreveport Police Dept., testified:

• he arrived at the scene right after the patrol officers;
• as per policy, he interviewed Fuller and Goodman separately;
• after the interviews, and at the scene, he viewed the surveillance video;
• Sgt. Duddy told him that the crime scene fingerprints belonged to Mays;
• he went to the defendant's last known address, where defendant's father told him that that his son was jailed in Richland Parish on unrelated charges;
• he and Sgt. Craig Ivy visited the suspect, administering rights per Miranda ;
• the defendant had lost weight compared with his appearance at the time of the crime; and
• Mays was arrested on the unrelated charges and incarcerated in Richland Parish shortly after the April 25, 2015, robbery that is at issue on this appeal.

The defendant testified, unsuccessfully attempting to cast doubt on his being the robber. He attributed his inculpatory jailhouse interview statements to the fact that his mother died on May 13, 2015, and was buried on May 23, 2015, while Mays was incarcerated in Richland Parish on drug charges.

The defendant further testified:

• his jail interview with the Shreveport officers was in mid-May, the day while he was waiting to hear whether he could view his mother's body;
• he was unable to view the body or attend his mother's funeral;
• his jailhouse statements were because of his emotional state, not his guilt;
• he had visited the Circle-K in question on several occasions for lunch, gas, or cigarettes, and that is why his fingerprints were found there;
• he weighed 180 pounds when he arrived at the Richland Parish Jail;
• he had a moustache and goatee at the time of the robbery;
• he was innocent, but admitted blacking out while on drugs;
• he worked with a tree service, so he always had bandanas on him; and
• he had no mother-related outbursts in the presence of Det. Turnpin.

The defendant was found guilty, adjudicated a second-felony habitual offender, and sentenced to hard labor for 49 ½ years, without benefits. The trial court ordered the sentence to run concurrently with any other sentences.

I. SUFFICIENCY

The defendant argues that the evidence is insufficient to sustain a conviction.

In support of this position, he argues:

• Fuller was unable to identify him as the culprit;
• his statement to police is unreliable, as he was "emotionally unstable";
• his mother's death and his drug addiction caused him to implicate himself;
• his fingerprints are explained because he often visited the store.

Our standard of appellate review on sufficiency issues is well settled.

At the time of the offense, La. R.S. 14:64 provided in pertinent part:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

There is sufficient direct and circumstantial evidence to support Mays' conviction. The state was required to prove beyond a reasonable doubt that Mays took something of value, i.e. $150, either directly from Fuller or Goodman or from their immediate control, by use of force, while armed with a dangerous weapon.

Here, the defendant's fingerprints were found at the specific spots where Fuller and Goodman indicated that the robber touched with his bare hands. Additionally, the defendant essentially admitted to the robbery in his jailhouse interview. He did not sound distressed by his mother's death but more like a man truly trying to remember what he did on the day of the robbery. During the interview, he initially did not remember the incident; however, as the interview progressed, he slowly began to remember parts of the incident, such as going to the store to buy cigarettes, providing certain details, like the amount of money stolen, that were not provided by the police and, therefore, could only have come from personal knowledge of the robbery. Notably, Mays never flatly denied that he robbed the victims. He openly stated that he was on drugs at the time of the incident, and he may have committed the robbery. He did deny having a gun, and did admit to carrying several bandanas in his pockets, including a black one, which he often wrapped around his tools. While he argues that his fingerprints were present as a result of his frequent visits to buy lunch and cigarettes, the presence of his fingerprints on the store countertop, coupled with his statements in the jailhouse interview, are sufficient to support his conviction.

He questioned Goodman's in-court identification, but the jury clearly found her the more credible witness. The jury's acceptance of Goodman's testimony and identification was a credibility call. It must not be disturbed on appeal.

II. EXCESSIVENESS

The defendant argues that the trial court erred in failing to address the factors listed in La. C. Cr. P. art. 894.1 at sentencing and in not considering the hardship that Mays' sentence would inflict upon him and his family. The state correctly responds that since the defendant received the mandatory minimum sentence, it was unnecessary to consider the La. C. Cr. P. art. 894.1 factors.

Our law on appellate review of excessive sentence claims is well settled.

At the time of Mays' crime, the penalty for armed robbery was a minimum of 10 years, and a maximum of 99 years, all to be served without benefit of probation, parole, or suspension of sentence. The relevant sentencing exposure for a second-felony habitual offender is found at La. R.S. 15:529.1(A)(1).

Where there is a mandatory minimum sentence required by a statute, and that required minimum sentence is imposed, as here, there is no need for a trial court to justify that minimum sentence under La. C. Cr. P. art. 894.1. State v. Allen , 50,869 (La. App. 2 Cir. 9/28/16), 206 So.3d 1093, writ denied , 16-2046 (La. 9/15/17), 225 So.3d 484 ; State v. Thomas , 41,734 (La. App. 2 Cir. 1/24/07), 948 So.2d 1151, writ denied , 07-0401 (La. 10/12/07), 965 So.2d 396.

This sentence is constitutional and could not shock anyone's sense of justice.

DECREE

The defendant's conviction and sentence are AFFIRMED.

      Goodman identified the video during her testimony at trial.

      At trial, however, Goodman identified this defendant as the robber.

      At trial, she read from statement to the police that the robber was about 6'2?, 240 lbs., wearing a burnt orange shirt, blue jeans, and baseball cap, with a gun wrapped in a bandana.

      A recording of the jailhouse interview with Mays was admitted into evidence and played for the jury, revealing that he was addicted to drugs, particularly methamphetamines; he initially claimed to have trouble remembering the event; that if he did own a gun, he would have traded it for drugs; and that he had a black bandana but could not recall what was in the bandana. The defendant never admitted complicity in the robbery, but he provided certain details that only the robber could have known through personal knowledge, e.g. , that he took "a hundred and something" dollars.

      At trial, the defendant weighed 245 pounds.
      When the defendant asserts that he was not the perpetrator, or remains silent, the state bears the burden of negating any reasonable probability of misidentification. State v. Powell , 27,959 (La. App. 2 Cir. 4/12/96), 677 So.2d 1008, writ denied , 96-1807 (La. 2/21/97), 688 So.2d 520 ; State v. Mickens , 31,737 (La. App. 2 Cir. 3/31/99), 731 So.2d 463, writ denied , 99-1078 (La. 9/24/99), 747 So.2d 1118. It is the province of the jury to resolve conflicting inferences from the evidence. State v. Mickens , supra ; State v. Free , 26,267 (La. App. 2 Cir. 9/21/94), 643 So.2d 767, writ denied , 94-2846 (La. 3/10/95), 650 So.2d 1175. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness-if believed by the trier of fact-is sufficient support for a requisite factual conclusion. State v. Jones , 34,863 (La. App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied , 01-2648 (La. 8/30/02), 823 So.2d 938. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. State v. Mickens, supra .

      A sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; 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. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; 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 Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in a light most favorable to the prosecution. State v. Calhoun , 51,218 (La. App. 2 Cir. 4/5/17), 216 So.3d 1101. When the direct evidence is thus viewed, the facts established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome , 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied , 14-0990 (La. 1/16/15), 157 So.3d 1127. If a case rests essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Gipson , 45,121 (La. App. 2 Cir. 4/14/10), 34 So.3d 1090, writ denied , 10-1019 (La. 11/24/10), 50 So.3d 827 ; State v. Broome , supra .
      The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Demery , 49,732 (La. App. 2 Cir. 5/20/15), 165 So.3d 1175, writ denied , 15-1072 (La. 10/17/16), 207 So.3d 1067. A reviewing court may not impinge on the fact finder's discretion unless it is 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. Demery , supra . The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Calhoun , supra . A reviewing court affords 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 ; 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.

      La. C. Cr. P. art. 881.1 precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Accordingly, when a defendant fails to file a motion to reconsider sentence, the appellate court's review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Jones , 41,449 (La. App. 2 Cir. 9/20/06), 940 So.2d 61 ; State v. Duncan , 30,453 (La. App. 2 Cir. 2/25/98), 707 So.2d 164.
      Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Livingston , 39,390 (La. App. 2 Cir. 4/6/05), 899 So.2d 733 ; State v. White , 37,815 (La. App. 2 Cir. 12/17/03), 862 So.2d 1123.
      A sentence violates La. Const. art. I § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Smith , supra .
      The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228.

      "(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction."


text:
    John C. DANIELS, et al., Plaintiffs-Appellees v. INTERNATIONAL PAPER COMPANY, Defendant-Appellant
    No. 51,633-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 3, 2017 Rehearing denied January 4, 2018
    KEAN MILLER LLP, Shreveport, By: Scott L. Zimmer, William H. Priestley, Jr., Counsel for Appellant, International Paper Company
    BARRASSO, USDIN, KUPPERMAN, FREEMAN & SARVER, L.L.P., New Orleans, By: H. Minor Pipes, III, Susan M. Rogge, Counsel for Appellee, Security National Insurance Company
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, L.L.P., Shreveport, By: Steven E. Soileau, Counsel for Third Party Appellee, L & R Timber Co., Inc.
    CHARLES S. NORRIS, JR., JOSEPH PAYNE WILLIAMS, CHRISTOPHER JOEL NORRIS, Vidalia, Counsel for Appellees. John C. Daniels and Jennifer Daniels
    Before DREW, STONE, and COX, JJ.
   DREW, J.

In this matter involving a third-party demand for indemnification, defense, and insurance coverage, International Paper Company ("IP") appeals a summary judgment dismissing its claims against L & R Timber Co., Inc. ("L & R").

We reverse the judgment in part, affirm in part, and remand.

BACKGROUND

In April of 2011, IP and L & R executed a "Master Wood Purchase and Service Agreement" ("Agreement") under which L & R agreed to sell, deliver, cut, convert, and/or transport forest products to IP's facilities or other designated destinations for acceptance and/or purchase by IP.

The Agreement required L & R to make IP an additional insured on its Commercial General Liability and Automobile Liability policies. The contract also contained an indemnification clause, which provided:

13. Indemnity: (a) Seller agrees to defend, indemnify, and hold Buyer harmless from and against any and all claims, losses, demands, liens, causes of action or suits, judgments, fines, assessments, liabilities, damages and injuries (including death) of whatever kind or nature, including to all persons or property, arising out of, on account of, or as a result of, directly or indirectly, Seller's or its subcontractors' operations, performance or nonperformance under this Agreement, whether or not caused or alleged to have been caused, in whole or in part, by the negligence of Buyer. Without limiting the generality of the foregoing, Seller specifically agrees to defend Buyer in any suit against Buyer (regardless of whether Seller is also a party to the suit) arising out of, on account of, or resulting directly or indirectly from Seller's or its subcontractors' operations, performance or nonperformance under this Agreement. Seller hereby waives, as against Buyer, any immunity from suit afforded by applicable workers compensation laws.
(b) At Buyer's request, Seller shall provide to Buyer at Seller's expense, a complete defense of any such claim, demand, cause of action, or suit, and Seller shall bear all attorneys' fees; costs of defense; court costs; expert, discovery and investigative fees; and costs of appeal, all to the end that Buyer shall incur no costs or expense of any kind associated with the full and complete defense of any such claim, demand, cause of action or suit, or of enforcing Seller's compliance with this paragraph 13. Seller agrees that Buyer has the right to be represented by separate counsel of its own selection, at Seller's sole expense. Buyer's exercise of its right to select its own separate counsel will in no way diminish or release Seller's obligation to indemnify and hold Buyer harmless.
(c) Except in jurisdictions where prohibited by law, Seller agrees that its duty to defend, indemnify, and hold Buyer harmless is not dependent upon Seller's fault or negligence. Seller's duty to defend, indemnify and hold Buyer harmless exists for each and every claim or suit that arises out of, or in any way relates to, Seller or its subcontractor's operations, performance, or nonperformance under this Agreement. Similarly, except in jurisdictions where prohibited by law, Seller agrees to defend, indemnify and hold Buyer harmless from and against any claim of liability to Seller's employees, and Seller hereby waives any immunity under workers compensation laws to the extent necessary to give effect to this provision.
(d) Seller agrees that its duties and obligations under this paragraph 13 are distinct from, are independent of, and are not intended to be coextensive with, its duty to procure the insurance coverage required by the terms of this Agreement.

On November 20, 2012, L & R and John Daniels entered into a "Logging and Fiber Supply Hauling Contract" under which Daniels agreed to transport forest products and related commodities. Daniels also agreed to assume sole responsibility for unloading his trailers at all destination points.

On May 15, 2013, Daniels drove a truck delivering a load of wood chips for L & R to IP's mill in Mansfield, Louisiana. He asserted that on the instructions of IP's employees, he drove his truck onto a scale, exited his truck, and then went to the scale house to pick up his scale ticket. As he attempted to reenter his truck, the catwalk on which he was required to walk collapsed, causing him to land on his knees and sustain injuries to his knees and lower back.

Daniels filed suit against IP on April 9, 2014. He argued that the catwalk was in the care, custody, and control of IP, that IP knew or should have known of the defective condition of the catwalk, and that IP failed to exercise reasonable care by failing to inspect and repair it. He asserted that IP was liable for his damages in accordance with La. C.C. arts. 2315, 2317, and 2317.1.

On April 6, 2015, IP filed a third-party demand against L & R in which it asserted that under the terms of the Agreement: (i) IP was to be an additional insured on the Commercial General Liability and Automobile Liability policies maintained by L & R; (ii) L & R was to indemnify IP against Daniels' claims; and (iii) L & R agreed to provide IP with a complete defense against Daniels' claims.

L & R filed an exception of prematurity against the third-party demand. It also filed an incidental demand against Daniels, asserting that the contract between Daniels and L & R contained a provision that Daniels agreed to indemnify and hold L & R harmless from any and all claims resulting from Daniels' operations. The exception of prematurity was denied.

On May 6, 2016, IP amended its third-party demand to allege that L & R had breached its obligations under the Agreement to provide a defense to IP against Daniels' claims and to name IP as an additional insured on its policies. IP contended that even though L & R obtained an endorsement to its CGL policy listing IP as an additional insured, L & R did not obtain the specific coverage required by the agreement.

IP also filed a third-party demand against Security National Insurance Company ("Security"), L & R's liability insurer. IP alleged that under the CGL policy, Security had a duty to defend and indemnify IP, as an additional insured, for the alleged damages in Daniels' suit.

Security filed an answer and affirmative defenses in response to IP's third-party demand. Security denied that IP was named an additional insured under the policy. Among Security's defenses was that it did not owe IP a defense or indemnity under the policy because IP was not a named insured or named additional insured, or otherwise qualified as an additional insured following a change endorsement effective December 9, 2012.

L & R filed a motion for summary judgment against IP's third-party demand. L & R contended that because most of the wood harvested was from Texas, Texas law should be used to interpret the Agreement. L & R argued that the indemnification provisions did not meet the fair notice requirements under Texas law. L & R also argued that if Louisiana law applied, the Agreement should be deemed unenforceable as a matter of law as a contract of adhesion because it was created without L & R's input, contained very small print, and put L & R in the disadvantageous position of being required to sign the contract without a meeting of the minds or lose the business opportunity. Finally, L & R contended that it did not intend to indemnify IP against liability arising from premises defects on IP's property over which L & R had no care, custody, or control.

IP filed an opposition to the motion for summary judgment as well as its own cross-motion for summary judgment. L & R filed an opposition to IP's cross-motion for summary judgment.

The trial court granted L & R's motion for summary judgment, denied IP's cross-motion for summary judgment, and dismissed IP's third party demand against L & R. The court stated that all other issues raised in the third-party demand and cross-motion for summary judgment were moot.

Applying Louisiana law, the trial court concluded that it needed to determine the intent of the parties because the words of the Agreement did not appear to be clear and explicit regarding premises liability. After reading the Agreement as a whole, the court found that there was no indication that L & R intended to indemnify IP for its premises liability. The court noted that the Agreement used general and broad terms to describe what was covered, and did not specifically provide for IP's premises liability. The court considered that IP and L & R could have included specific language and an express provision if they intended to include indemnification for premises liability, and there was no sign that L & R unambiguously consented to indemnify IP for IP's premises liability.

The court also stated that even if the Agreement was clear and explicit, enforcement of the indemnity provision to cover premises liability would be an absurd consequence as it would flip the equitable nature of indemnity. Finally, the court concluded that the alleged injury did not arise out of L & R's performance under the Agreement because L & R's performance was to sell and deliver the wood to IP, while IP's performance was to scale or weigh the wood that was delivered. L & R had no control over the scaling and weighing process, and L & R's performance had already been completed when the scaling and weighing process occurred. Thus, according to the court, Daniels' injuries were the consequence of IP's performance under the Agreement, not L & R's performance. The court considered all other issues raised in the third-party demand and cross-motion for summary judgment to be moot.

IP appealed.

DISCUSSION

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047.

Choice of law

Although the trial court analyzed the Agreement under Louisiana law, L & R argues that Texas law applies because the Agreement provided that the governing law is the state where the wood was harvested. A choice of law provision in a contract is presumed valid until it is proved invalid. Barnett v. American Const. Hoist, Inc. , 2011-1261 (La. App. 1 Cir. 2/10/12), 91 So.3d 345.

In his affidavit submitted in support of L & R's motion for summary judgment, Ricky Lout, the president of L & R, testified that approximately 98% of the wood delivered to IP pursuant to the Agreement had been harvested in Texas.

IP submitted excerpts from Lout's deposition in opposition to L & R's motion for summary judgment and in support of its own motion. Lout testified that it was not possible to tell which woodchips belonged to whom after the wood came into his mill. He thought it would be impossible to know if the woodchips came from someone who harvested in Arkansas, Louisiana, or Texas.

L & R attached additional excerpts from Lout's deposition in support of its own motion for summary judgment and in opposition to IP's motion. Lout testified that his affidavit was based on his personal knowledge, and that he obtained the 98% figure from L & R's computer system, which showed the source of the wood.

La. C.C. art. 3540 allows contracts to be governed by the law expressly chosen or clearly relied upon by the parties. That choice is given effect except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under La. C.C. art. 3537.

La. C.C. art. 3537 provides the general rule that a contract is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. It further states:

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

La. C.C. art. 3515 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

The choice of law provision in the Agreement reads that the governing law of the Agreement is the state where the wood was harvested, not where most of the wood was harvested. In essence, there was no state law "expressly chosen" under these circumstances as apparently more than one state was the source of the timber that was turned into the woodchips that Daniels delivered to IP on behalf of L & R.

Nor was the choice of law implied. We note that Comment (e) to art. 3540 states, in part:

Mode, timing, and scope of the parties' choice. To be recognized under this Article, the contractual choice of law must either be express or implied. It is express when it is literally declared in the contract; it is implied when, on the basis of the surrounding circumstances, especially the provisions of the contract or the conduct of the parties, it is evident that the parties have clearly relied upon the law of a particular state. An implied choice is distinguished from a hypothetical choice. The latter is not recognized by this Article.
The parties may, of course, choose the applicable law after the conclusion of the contract and may modify a choice made earlier. The parties may also choose more than one law to govern their contract. For example, in a contract that is to be performed in more than one state, the parties may provide that details of performance are to be governed by the law of the state in which performance is to take place.

Where the timber was harvested does not even directly relate to L & R's performance under the contract as L & R's obligation was to "sell, deliver, cut, convert, and/or transport ... pulpwood, saw timber, in-wood chips, residual chips, chip mill chips, fiber fuel, poles, piling or other forest products" to IP's facilities or other designated destinations. Lout testified that L & R buys most of its wood from independent contractors. He explained that he buys the wood, called gate wood, when it comes through his gate.

As recognized by the supreme court in Berry v. Orleans Parish Sch. Bd. , 2001-3283 (La. 6/21/02), 830 So.2d 283, Louisiana public policy disfavors indemnification of a party solely responsible for causation. Barnett , supra . Our legislature has also declared indemnification provisions in certain types of agreements to be invalid. See La. R.S. 9:2780 and 9:2780.1.

Louisiana also has a strong relationship to the parties and the dispute. The Agreement was returned to IP's representative in Louisiana after Lout signed it. The plaintiff and his wife are both domiciled in Louisiana. The accident took place at IP's facility in Louisiana. We also note that L & R is attempting to use a Louisiana law, La. R.S. 9:2780.1, to invalidate the indemnification provision.

Based on the foregoing, we conclude that the trial court properly applied Louisiana law to examine the indemnification provision.

Coverage of the indemnification provision

In Perkins v. Rubicon, Inc. , 563 So.2d 258, 259 (La. 1990), the supreme court held that an indemnity contract will not be construed to indemnify an indemnitee against losses resulting through his own negligent acts unless this intention is expressed in unequivocal terms:

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms. Soverign Ins. Co. v. Texas Pipe Line Co. , 488 So.2d 982 (La. 1986) ; Polozola v. Garlock , 343 So.2d 1000 (La. 1977). The indemnity agreement here unequivocally states that B & B "shall indemnify and hold [Rubicon] harmless from all claims, suits, actions, losses and damages for personal injury, ... even though caused by the negligence of [Rubicon]." As the court of appeal concluded both in the present case and in earlier litigation interpreting the same contract, Reliance Insurance Company v. Barnard & Burk, Inc. , 428 So.2d 1097 (La. App. 1st Cir.), writ denied , 433 So.2d 154 (La. 1983), the parties clearly intended that B & B would assume responsibility for injuries caused by the negligent acts of the employees of Rubicon.

The indemnification provision in the Agreement unequivocally stated that L & R would indemnify IP for even damages caused by IP's own negligence:

[L & R] agrees to defend, indemnify, and hold [IP] harmless from and against any and all claims, losses, demands, liens, causes of action or suits, judgments, fines, assessments, liabilities, damages and injuries (including death) of whatever kind or nature, including to all persons or property, arising out of, on account of, or as a result of, directly or indirectly, [L & R]'s or its subcontractors' operations, performance or nonperformance under this Agreement, whether or not caused or alleged to have been caused, in whole or in part, by the negligence of IP .

Emphasis added.

In support of its determination that the Agreement did not cover indemnification for IP's premises liability, the trial court relied on Soverign Ins. Co. v. Texas Pipe Line Co. , supra . The indemnity provision at issue in Soverign provided that a contractor would indemnify the defendant against any liability, cost, expense, damage, or loss in connection with the contract, except that resulting solely from the defendant's negligence. The defendant was sued after a subcontractor's truck was destroyed when a roadbed on premises leased by defendant collapsed. The supreme court noted in Soverign that there is a presumption the parties do not intend to hold an indemnitee harmless from liability for his own negligence when the contract does not expressly provide for such and an unequivocal intention to so indemnify cannot be found after interpreting the provisions in light of the whole contract. The supreme court then added that this presumption does not apply to the question of whether parties intend to indemnify against an indemnitee's strict liability under La. C.C. art. 2317. The Soverign court found there was an intent to provide for indemnity against the defendant's strict liability under art. 2317 because the contractor represented it had inspected the premises for hazards, and because the contractor promised to take any measures necessary to protect persons and property from injury and loss and to maintain all passageways for the protection of persons and property. The supreme court also noted that the "contract except[ed] from the indemnity provisions only claims ... resulting 'solely from [the defendant's] negligence.' "

Soverign was decided prior to the fundamental changes made to strict liability by the Legislature in 1996. As noted by the supreme court in Burmaster v. Plaquemines Parish Gov't , 2007-2432, p. 2 (La. 5/21/08), 982 So.2d 795, 799 :

Although the plaintiff alleged that PPG is "strictly liable" under La. Civ. Code arts. 2317 and 2317.1, inter alia , this court has recognized that, with its adoption of La. Civ. Code art. 2317.1 to require knowledge or constructive knowledge, "the Legislature effectively eliminated strict liability under Article 2317, turning it into a negligence claim." Lasyone v. Kansas City Southern R.R. , 00-2628, p. 6 (La. 4/3/01), 786 So.2d 682, 689, fn. 9 (quoting Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law § 14-2, at 330-32 (1996)). Thus, plaintiff's claims under La. Civ.Code arts. 2317 and 2317.1 are not technically strict liability claims.

Because a premises liability claim under art. 2317 is effectively a negligence claim, we conclude that the Agreement's unequivocal provision that L & R would indemnify IP for damages caused by IP's own negligence included the claims made by Daniels that are based on art. 2317 and 2317.1. The trial court erred in finding otherwise.

Arising out of L & R's performance

The trial court also erred in concluding that the alleged injury did not arise out of L & R's performance under the Agreement because L & R's performance had already been completed when the scaling and weighing process occurred.

In Perkins , supra , the indemnitor argued that its employee's injury did not arise out of its performance of the contract. The supreme court disagreed, noting that the employee would not have been present at the indemnitee's site to be injured but for the indemnitor's work under the contract.

Likewise, Daniels would not have been standing on the catwalk at IP's facility but for L & R's obligation under the Agreement to deliver woodchips to IP.

Contract of adhesion

L & R also contends that the indemnification provision in the Agreement is unenforceable because it is a contract of adhesion.

"Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms. See LSA-C.C. Arts. 1766, 1811 ; S. Litvinoff, 6 Louisiana Civil Law Treatise-Obligations (Book 1), s 194, pp. 346-349 (1969)." Golz v. Children's Bureau of New Orleans , 326 So.2d 865, 869 (La. 1976).

Regarding the concept of a contract of adhesion, in Aguillard v. Auction Mgmt. Corp. , 2004-2804 (La. 6/29/05), 908 So.2d 1, the supreme court cited Professor Saul Litvinoff's Consent Revisited: Offer Acceptance Option Right of First Refusal and Contracts of Adhesion in the Revision of the La. Law of Obligations , 47 La. L. Rev. 699, 757-59 (1986-1987). The court stated, with footnotes omitted:

We note at this time in accordance with Litvinoff's commentary, that contracts of adhesion are usually contained in standard forms. Litvinoff, supra , at 757. Contrarily, although a contract of adhesion is a contract executed in a standard form in the vast majority of instances, not every contract in standard form may be regarded as a contract of adhesion. Id. at 758. Therefore, we are not willing to declare all standard form contracts adhesionary; rather, we find standard form serves merely as a possible indicator of adhesion.
As recognized by Litvinoff, the real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Litvinoff, supra , at 758. Thus, the issue is one of consent.
Consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, which is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract unduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that party. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable.
In summation, a contract is one of adhesion when either its form, print, or unequal terms call into question the consent of the non-drafting party and it is demonstrated that the contract is unenforceable, due to lack of consent or error, which vitiates consent. Accordingly, even if a contract is standard in form and printed in small font, if it does not call into question the non-drafting party's consent and if it is not demonstrated that the non-drafting party did not consent or his consent is vitiated by error, the contract is not a contract of adhesion.

Aguillard , 2004-2804 at pp. 11-12, 908 So.2d at 10-11.

Lout stated in his affidavit that L & R had no input into the provisions of the Agreement and that L & R would not have received the job had it not agreed to the Agreement as drafted by IP. Lout testified that the Agreement was sent to him for review after he negotiated the term and price. He admitted that he did not examine the entire document before signing and returning it to IP.

Lout has negotiated all contracts on behalf of L & R since 1997. He estimated that he executes no more than three wood purchase agreements a year. Besides the three or four agreements that he had negotiated and executed with IP, he had also executed and negotiated woodchip purchase agreements on behalf of L & R with Westrock, Stone Container, Smurfit-Stone, RockTenn, Boise Cascade, Georgia Pacific, Temple-Inland, and Meadwestvaco. Those wood purchase contracts were similar to the Agreement.

While IP and L & R are both commercial enterprises, IP clearly has a more significant commercial presence. L & R also has a history of entering into wood purchase agreements with companies other than IP. Thus, if L & R was dissatisfied with the Agreement terms, then it could have opted to sell its woodchips to another company. Nevertheless, at this stage of the lawsuit, it remains unresolved as to whether L & R was at such a disadvantageous position that it calls into question L & R's consent to an indemnification provision which may be unduly burdensome under these circumstances. Accordingly, a genuine issue of material fact remains regarding whether the Agreement is a contract of adhesion.

La. R.S. 9:2780.1

Finally, L & R argues that the indemnity provision and the insurance coverage provisions were invalidated by the application of La. R.S. 9:2780.1, which reads, in part:

B. Notwithstanding any provision of law to the contrary and except as otherwise provided in this Section, any provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract or construction contract which purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the indemnitee from or against any liability for loss or damage resulting from the negligence or intentional acts or omissions of the indemnitee, an agent or employee of the indemnitee, or a third party over which the indemnitor has no control is contrary to the public policy of this state and is null, void, and unenforceable.
C. Notwithstanding any provision of law to the contrary and except as otherwise provided in this Section, any provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract or construction contract which purports to require an indemnitor to procure liability insurance covering the acts or omissions or both of the indemnitee, its employees or agents, or the acts or omissions of a third party over whom the indemnitor has no control is null, void, and unenforceable. However, nothing in this Section shall be construed to prevent the indemnitee from requiring the indemnitor to provide proof of insurance for obligations covered by the contract.
D. Notwithstanding any contractual provision to the contrary, this Section shall apply to and govern any construction contract to be performed in this state and any motor carrier transportation contract relative to loading or unloading activities, or any services incidental thereto, which occur in this state. Any provision, covenant, or clause in such contracts which conflicts with the provisions of this Section shall be null, void, and unenforceable.

L & R acknowledges that the statute is inapplicable to contracts for transportation of "timber without limitation," but argues that timber was not being transported, and "timber without limitation" is not explained or defined. La. R.S. 9:2780.1(A)(1) states:

(1) "Motor carrier transportation contract" shall mean any contract, agreement, or understanding covering the transportation of property, other than agricultural products as defined in R.S. 9:3306 and timber without limitation, for compensation or hire by a motor carrier, entrance upon property by the motor carrier for the purpose of loading, unloading, or transporting property, other than agricultural products as defined in R.S. 9:3306 and timber without limitation, for compensation or hire, or a service incidental to any such activity, including but not limited to storage of property, other than agricultural products as defined in R.S. 9:3306 and timber without limitation, except the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America or other agreements providing for the interchange, use, or possession of intermodal chassis, containers, or other intermodal equipment.

La. R.S. 9:3306 defines "agricultural products" as, with our emphasis added, "includ[ing] products such as horticultural and dairy products, livestock, wildlife, poultry, bees, forest products , fish and shell fish, and any products thereof, including processed and manufactured products , and any and all products raised or produced on farms and any processed or manufactured products thereof."

Woodchips are an agricultural product under La. R.S. 9:3306. Accordingly, La. R.S. 9:2780.1 does not render the Agreement null, void, or unenforceable.

CONCLUSION

The trial court erred in granting L & R's motion for summary judgment and dismissing IP's claims. However, because a genuine issue of material fact remains regarding whether the Agreement was a contract of adhesion, the trial court correctly denied IP's cross-motion for a summary judgment.

With each party to bear its own costs, the judgment is REVERSED IN PART and AFFIRMED IN PART. The matter is REMANDED to the trial court for further proceedings.

APPLICATION FOR REHEARING

Before DREW, GARRETT, STONE, COX and STEPHENS, JJ.

Rehearing denied.