author: COOKS, Judge.

text:
    David LEGER v. B.O.P. CONTROLS, INC. & LWCC
    17-339
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      William J. Casanova, Miller & Associates, P.O. Drawer 1630, Crowley, LA 70527, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLEE: David Leger
    M. Jeremy Berthon, 2237 S. Acadiana Thruway, Baton Rouge, LA 70808, (225) 231-0925, COUNSEL FOR APPELLANT: B.O.P. Controls, Inc. and LWCC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.
   COOKS, Judge.

| ¡¿FACTS AND PROCEDURAL HISTORY

The pertinent facts surrounding this appeal are not in dispute. On June 9, 2014, while in the course and scope of his employment with B.O.P. Controls, Inc., David Leger severely injured his left thumb. The parties submitted to a mediation wherein they agreed to a full and final settlement of $60,000.00 on Mr. Leger’s claims.

On July 21, 2016, a fully executed “Joint Petition for Approval of Compromise Settlement” was submitted to the Office of Workers’ Compensation (OWC) for an order of approval as required by La.R.S. 23:1272(B). There was no dispute that the settlement conformed to the procedural requirements set forth in La.R.S. 23:1272(B). The following day, on July 22, 2106, Mr. Leger tragically and unexpectedly passed away due .to circumstances unrelated to his work accident. As of the date of Mr. Leger’s death, the.workers’ compensation judge (WCJ) had not yet signed the order approving of the settlement. Counsel for Mr. Leger immediately notified the employer and the OWC of Mr. Leger’s death. On July 26, 2016, the employer withdrew from the . settlement agreement.

Due to the employer’s withdrawal from the settlement, suit was filed on behalf of Mr. Leger’s son and heir, Eddy Leger (hereafter Plaintiff), seeking approval and enforcement of the July 21,2016 submitted settlement. On November 10, 2016, after a hearing on the matter, the WCJ approved the parties’ settlement. The WCJ, in oral reasons for judgment, explained that it was her belief that the plain wording of La.R.S. 23:1272(B) mandated that she approve the settlement. A final judgment was signed reflecting that ruling on November 29, 2016. This appeal followed, wherein the employer and its workers’ compensation insurer, LWCC (hereafter Defendants), assert the following assignments of error:

|gl. The WCJ committed legal error in approving the workers’ compensation settlement of David Leger after he died.
2. The WCJ committed manifest error in finding a lump sum payment was in the best interest of the parties and that the employer consented to the settlement.

ANALYSIS

At issue in this case is whether the WCJ committed legal error in approving the parties’ settlement following the unexpected death of Mr. Leger. When a settlement in a workers’ compensation claim involves a represented party, as is the case herein, the applicable statute is La.R.S. 23:1272(B), which provides:

When the employee or his dependent- is represented by counsel, and if attached 'to the petition presented to the workers’ compensation judge are affidavits of the employee or his dependent and of-his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers’ compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

There is no dispute that the settlement met the two procedural requirements set forth in the statute. The statute clearly mandates that when these procedural requirements are satisfied,- the WCJ “shall approve the settlement by order.” The only exception to that clear mandate is if there are instances of fraud or misrepresentation. There are no allegations of fraud or misrepresentation herein, and counsel for the employer/insurer acknowledged before this court that the settlement was a “good” one.

As noted by our supreme court in Lousiana Federation of Teachers v. State of Louisiana, 13-120, p. 26 (La. 5/7/13), 118 So.3d 1033, 1051, “[u]nder well-established rules of interpretation, the word 'shall’ excludes the possibility of being ‘optional’ or even subject to ‘discretion,’ but instead ‘shall’ means ‘imperative,, of similar effect and import with the word ‘must.’ ” (Citations omitted.) In her oral I ¿reasons for judgment, the WCJ specifically noted the legislature’s inclusion of the word “shall” in the 2001 amendment of the statute removed any discretion a WCJ had in signing the agreement:

When this statute was [amended], the Workers’ Copensation judges at a meeting, discussed, I guess, and it was, I think, in my mind everyone was in agreement that, yes, any discretion was taken away. The “approval” is — is “proforma” the correct word?
So if the positions were reversed, if the claimant wanted to back out of the settlement, I think you would be making the same argument that Mr. Casanova [counsel for Plaintiffs] is making, Mr. Berthon [counsel for the employer/insurer]. The statute says, “it shall be approved.” It does not say, “If the judge finds it to be providing substantial justice to. the parties.”
So it is my finding that the settlement documents do comply with 23;1272(B), and it is further my determination and finding that the workers’ comp judge upon finding compliance with that provision has no discretion whatsoever as to the execution of the settlement. Therefore, the “approval” was in form only, and therefore, I do find that [Plaintiffs are] entitled to enforce the settlement.

We agree that the mandatory of language of La.R.S. 23:1272(B) removed any discretion from the WCJ as to signing the order of approval in the absence of any evidence of fraud or misrepresentation.

Moreover, as counsel for Plaintiff notes, the settlement was presented to the WCJ on July 21, 2016, the day before Mr. Leger died. On that date, the employer had already received a signed “Receipt and Release” from Mr. Leger. Thus, we agree by that date, which was prior to Mr. Leger’s passing, there was a “meeting of the minds,” and the parties clearly intended for the claim to be resolved on July 21, 2016. All that needed to occur was the “ceremonial” signing of the order of approval, which, as the WCJ stated, she had no discretion to refuse.

Defendants have cited two ca,ses which they contend-hold that-an order of approval can be set aside due to the subsequent death of Mr. Leger. In support of vacating the WCJ’s signing of the order of approval, the employer/insurer cites Ryder v. Industrial Const. Co., 616 So.2d 857 (La. App. 3 Cir.), writ denied, 619 So.2d 1068 (La.1993). The court in Ryder, 616 So.2d at 858, set forth the following facts in that case:

A Joint Petition for Approval of Worker’s Compensation Compromise Settlement was forwarded to the OWC on October 4, 1990, for judicial approval as required by La.R.S. 23:1272. Plaintiff died from causes unrelated to his work injury on October 18, 1990. Neither the defendants nor the OWC were notified of plaintiffs death. In fact, plaintiff continued to receive weekly benefit checks through November 26, 1990. On November 14, 1990, the OWC approved the compromise settlement.
It was not until January, 1991 that defendants were notified of plaintiffs death. At this time, they filed a motion "to set aside the order of approval. The matter was heard on April 18,1991. The hearing officer found that the failure to notify defendants of plaintiffs death was a misrepresentation under La.R.S. 23:1272.

This court affirmed the WCJ’s judgment, finding “no, error in the hearing officer’s determination that the failure to notify defendants of the relevant fact of plaintiffs death was a misrepresentation sufficient to justify setting aside the order of approval,” Id. at 859.

The Ryder case is clearly distinguishable from the instant case. The WCJ in Ryder specifically set aside the order of approval because of the failure to inform the employer of the plaintiffs death. The WCJ in Ryder found this was a misrepresentation, and required that the order of approval be set aside. In this case there is no allegation of any fraud or misrepresentation on the part of Plaintiffs, the only two grounds listed in La.R.S, 23:1272(B) which allow for setting aside an order of approval. The facts establish Mr. Leger’s counsel immediately notified both the OWC and counsel for the employer/insurer upon learning of Mr. Leger’s death. Therefore, the circumstances do not exist in this case, as they did in Ryder, to set aside an order of approval under La.R.S. 23:1272(B).

More importantly, the Ryder case predated the amendment of La.R.S. 23:1272(B) in 2001, which, in effect, makes a settlement agreement duly made in I (¡compliance with the requirements therein self-activating absent fraud or misrepresentation.

Defendants also cite Trahan v. Liberty Mutual Ins. Co., 188 So.2d 435 (La.App. 3 Cir. 1966), in support of its contention that the WCJ’s approval of the settlement following Mr. Leger’s death was improper. In Trahan, the settlement had not been fully executed between the parties prior to the claimant’s death. The WCJ specifically noted in her oral reasons for judgment that Trahan was distinguishable from the instant case because in Trahan “there was an agreement reached, but not to the point where the settlement’s been submitted for approval.” Again, we note Trahan was decided well before the 2001 amendment to La.R.S. 23:1272(B), which removed the WCJ’s discretion to make a determination as to whether the settlement was “fair and equitable.”

In their second assignment of error, Defendants assert the WCJ committed manifest error in finding a lump sum payment was in the best interest of the parties and that the employer consented to the settlement. We find no merit in this argument.

This argument by Defendants is premised on the requirement in La.R.S. 23:1271(A)(1) that there can only be settlement of a workers’ compensation claim “upon agreement between the parties, including the insurer’s duty to obtain the employer’s consent.” However, as Plaintiff notes, Paragraph 8 of the “Joint Petition for Approval of Compromise Settlement,” states, “[t]he Employer has been notified of the terms of this settlement and consents thereto.” (Emphasis added.) Further, Paragraph 11 states, “[a]ll petitioners show that this settlement is fair and equitable and is made subject to the approval of this Honorable Court.” Defendants cannot now, in a blatant attempt to renege on their agreement, ignore the provisions of the settlement they bargained for and signed off on.

IvDECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed to appellants, B.O.P. Controls, Inc. and LWCC.

AFFIRMED.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Warren J. HOFFPAUIR, Jr.
    17-416
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      Parker R. Mitchell, Jack Derrick Miller, A Professional Corporation, P.O. Drawer 1650, Crowley, LA 70527-1650, (337) 788-0768, COUNSEL FOR DEFENDANT/APPELLANT: Warren J. Hoff-pauir, Jr.
    Jennifer Del Murray, P.O. Box 66614, Baton Rouge, LA 70896, (225) 922-2311, COUNSEL FOR PLAINTIFF/APPEL-LEE: State of Louisiana, Department of Public Safety & Corrections, Office of Motor Vehicles
    Court composed of Marc T. Amy, D.. Kent Savoie, and Van H. Kyzar, Judges.
   KYZAR, Judge.

hThe defendant, Warren J. Hoffpauir, Jr., appeals from a trial court judgment in favor of the State of Louisiana, Department of Public (Safety and Corrections, Office of Motor Vehicles, affirming the suspension of his driving privileges by an administrative law judge. For the following reasons, we vacate the judgment and remand the matter for further proceedings.

DISCUSSION OF THE RECORD

Based on the facts alleged in his petition, Mr. Hoffpauir was arrested for allegedly operating a vehicle while intoxicated, in violation of La.R.S. 14:98. However, he claims that “there were no objective facts which would justify a determination - of probable cause” for his arrest prior to the incident. He alleged that after he was arrested he was questioned by the arresting officer without being administered his Miranda rights and was told that his driving privileges were being withdrawn.

Mr. Hoffpauir fifed a timely request for review of his suspension, which was denied by an administrative law judge on June 23, 2016. On July 27, 2016, he appealed the matter to the district court in Acadia Parish, pursuant to La.R.S. 32:414(F)(4). In his petition, he requested that a temporary restraining order be issued to restrain the state; from suspending his driver’s license during the pendency of the proceedings. The temporary restraining order was granted that same day, and the matter was set for a show cause hearing on September 6, 2016.

According to the court minutes, a hearing was held on the temporary restraining order on November 7, 2016. The minutes indicate that the “Parties requested a pretrial conference. The Court orders parties to prepare a Joint Stipulation and submit it to the Court along with their Briefs.” Also on that date, |2the State filed its memorandum' in opposition to Mr. Hoff-pauir’s petition into the record. However, there is no indication in the court minutes that the brief and its attached exhibits were introduced into evidence in this matter.

Mr. Hoffpauir claimed that on November 18, 2016, there was a discussion by telephone between his counsel and the trial judge’s office regarding a ten-day deadline for submitting the material discussed at the November 7, 2016 hearing. Mr. Hoffpauir claimed that no deadline was established during the hearing for the submission of the material. Thereafter, on November 29, 2016, the trial court issued a minute entry with ruling, which began as follows:

This matter came before the Court on November 7, 2016 pursuant to Petitioner, Warren Hoffpauir’s Petition for Judicial Review, or Appeal of the Department of Public Safety and Corrections’ (Department) decision suspending Petitioner’s driving privileges, and subsequent decision by the Division of Administrative Law, Administrative Law Judge (ALJ) which affirmed the suspension of Mr. Hoffpauir’s driving privileges.
At the hearing, counsel for both sides agreed there would be no oral argument. The Court then, [sic] ordered that the parties shall within ten (10) days stipulate to the facts of the case,, and submit that to the Court, along with Petitioner, Hoffpauir’s Brief/Memoranda [sic] (The Department had already provided its Opposition Memorandum). The Court informed that it would then, [sic] take the matter under advisement, and issue an Order. The delays for submitting stipulated facts and petitioner’s brief, now having passed, the court finds- as follows[.]

The trial court, after reviewing the evidence attached to the State’s memorandum, affirmed the administrative law judge’s suspension of Mr. Hoffpauir’s driving privileges. Notice of this ruling was sent to the parties on December 6, 2016. It is from this judgment that Mr! Hoffpauir appeals.

On appeal, Mr. Hoffpauir. argues that the trial court denied him his constitutionally guaranteed right to due process “[b]y rendering judgment' without affording [him] an opportunity to be heard on his own cause of action[.]”

^OPINION

It is a cornerstone of both state and federal law that no person can be deprived of life, liberty, or property without due process of law. La.Const. art. 1, § 2; U.S. Const. amends. V and XIV. In Domingue v. Bodin, 08-62, pp. 4-5 (La,App. 3 Cir. 11/5/08), 996 So.2d 654, 658, this court stated:

“Very generally, due process requires some kind of hearing and notice thereof.” Fields v. State, Dep’t of Pub. Safety & Corr., 98-611, p. 7 (La. 7/8/98), 714 So.2d 1244, 1250. The requirement of a hearing before a final action can be reached stems from the principle that all persons are entitled to their “day- , in court.” Parker v. Bd. of Barber Examiners, 84 So.2d 80 (La.App. 1 Cir.1955). Likewise, the requirement of a reasonably calculated notice under all the circumstances is an elementary and fundamental requirement of due process to apprise interested parties of the pen-dency of the action and to afford them an opportunity to present their objections. Fields, 714 So.2d 1244.
In entertaining claims of a possible violation of due process of law,
■the United States Supreme Court set forth three factors to be weighed when determining the specific dictates required by due process: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).

The Implied Consent Law, found in La. R.S. 32:661-668, requires any person, whom an officer has probable cause to suspect of driving a vehicle while intoxicated, to submit to a chemical test ór face sanctions and the suspension of his driving privileges. Anyone losing his driving privileges in this fashion is entitled to an administrative hearing in order' to determine whether the suspension of his privileges was proper. La.R.S. 32:668(A). A party, who is unsatisfied with the Rresult received in that hearing, has the right’ to seek review of that decision in the. district court of the parish wherein he resides, in accordance with La.R.S. 32:414(F)(4), which provides, in part: ’

That court is vested with jurisdiction to set the matter for hearing in open court upon ten days written notice to the department and thereupon to determine whether the person is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this Chapter. Appeal from the decision of the district court may be taken to any court of competent appellate jurisdiction.

In Gray v. Louisiana Department of Public Safety and Corrections, 16-612, pp. 5-6 (La.App. 1 Cir. 2/17/17), 217 So.3d 412, 416, the first circuit explained:

. After a person has exhausted his remedies with the Department, he may file a petition for judicial review in the appropriate district court. La. R.S. 32:668(C)(1). On such review, the district court is required to conduct a trial de novo. Flynn v. State, Dept. of Public Safety and Correction, 608 So.2d 994, 999 (La. 1992); Mitten [v. State, Dept. of Public Safety and Corrections], 07-0845 at p. 5 [ (La.App. 1 Cir. 12/21/07) ], 978 So.2d [957,] 961. As such, the district court is not restricted to a review of the ALJ’s findings, and the district court’s review can encompass the calling of witnesses, the taking of testimony, and the introduction of evidence. Millen, 07-0845, at p. 6 n.4, 978 So.2d at 961 n.4; see also Flynn, 608 So.2d at 997[,] and Jaubert v. Dept. of Public Safety, 323 So.2d 212, 214 (La. App. 4th Cir. 1975). Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Stoltz v. Dept. of Public Safety and Corrections, 13-1968, p. 3 (La.App. 1 Cir. 6/25/14), 147 So.3d 1131, 1133.

The record in this matter is very sparse. However, without addressing Mr. Hoff-pauir’s due process claim, we vacate the trial court’s ruling and remand the matter for further proceedings after finding that there was no evidence in the record of this matter from which the trial court could make a ruling.

The court minutes from the November 27, 2016 hearing state:

RULE/MOTION: Why an injunction should not issue herein, conforming to said temporary restraining order in form and substance, restraining and enjoining defendant from suspending the driving privilegesof [sic] petitioner, until such time as a review of said suspension-can [sic] be ruled upon by this Honorable Court. Filed on | ^behalf of Warren J [sic] Hoffpauir, Jr. previously scheduled for this date is now called for hearing. Present in Open Court were; [sic] Jennifer Murry [sic], counsel for the State of Louisiana; Parker Mitchell, counsel for Warren J. Hoffpauir, Jr. Parties requested a pre-trial conference. The Court orders parties to prepare a Joint Stipulation and submit it to the Court along with their Briefs.

The record also contains an April 18, 2017 letter from the court reporter to the Acadia Parish Clerk of Court, indicating that after a search of her records, she found no “Note of Evidence” from the November 7, 2016 hearing. Rather, she stated that a pre-trial conference was held in the matter, after which the trial court ordered the parties to submit a joint stipulation.

Although the State filed its memorandum in opposition to Mr. Hoffpauir’s petition into the record on the same day of the hearing, it failed to file it or the attached exhibits into evidence.

It is well settled that pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings. The appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Memoranda and exhibits not filed in evidence are not part of the record on appeal. The briefs of the parties and the attachments thereto are not part of the record on appeal. Further, this court does not consider exhibits filed in the record which were not filed into evidence. Tmnum v. Hebert, 581 So.2d 1023 (LaApp. 1st Cir. 1991), writ denied, 584 So.2d 1169 (La. 1991)

Titlesite, L.C. v. Webb, 36,437, p. 12 (La. App. 2 Cir. 12/11/02), 833 So.2d 1061, 1068-69.

Pursuant to La.Code Civ.P. art. 2164, appellate courts “have the power to remand an action for proper consideration when the record is so incomplete that the court is unable to pronounce definitely on the issues presented or where the parties have failed, for whatever reason, to produce available evidence material to a proper decision.” Bodin v. Bodin, 392 So.2d 759, 762 (La.App. 3 Cir. 1980). Furthermore, La.Code Civ.P. art. 2161 provides, in part, that “[a]n appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may-remand the case either for retrial or for correction of the record.” In this instance, because no evidence was introduced into the record, there is nothing in the record to correct. Thus, we remand the matter to the trial court for a retrial. See Tremie v. Tremie, 14-733 (La.App. 3 Cir. 12/17/14), 154 So.3d 796.

DISPOSITION

For the foregoing reasons, the judgment of the trial court is vacated and the matter is remanded for a retrial. The costs of this matter are assessed to the State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles, in the amount of $180.80 in accordance with La. R.S. 13:5112(A).

JUDGMENT VACATED AND REMANDED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . La.Code Civ.P. art. 2164 provides, in part, that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”


author: CONERY, Judge.

text:
    STATE of Louisiana v. Sean J. BREAUX
    KA 17-406
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      Honorable Keith A. Stutes,. Lafayette Parish District Attorney, Post Office Box 3306, Lafayette, . Louisiana 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    John V. Ghio, Assistant District Attorney, 100 North State Street, Suite #215, Abbeville, Louisiana 70510, (337) 898-4320, COUNSEL FOR PLAINTIFF/APPEL-LEE: State of Louisiana
    Edward Kelly Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Sean J. Breaux
    Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
   CONERY, Judge.

hOn January 27, 2015, Defendant, Sean J. Breaux, was charged by bill of indictment with one count of aggravated rape, in violation of La.R.S, 14:42. On May 12, 2016, the trial court ordered a sanity commission on Defendant’s motion. One member of the commission was replaced on June 2, 2016. On September 1, 2016, after reviewing the sanity commission’s report, the trial court found that Defendant was competent to stand trial. The trial court’s decision was based on acknowledgment by counsel for the State and Defendant that the report of the two remaining members of the sanity commission determined Defendant was competent to stand trial.

On November 14, 2016, Defendant entered a plea of no contest to an amended, and lesser, charge of second degree rape pursuant to La.Code Crim.P. art. 14:42.1, with the agreement that a Pre-Sentence Investigation (PSI) Report would be ordered. On January 20,2017, after considering the PSI Report and all evidence, the court sentenced Defendant to thirty-five years at hard labor, with the first ten years to be served without benefit of probation, parole, or suspension of sentence. The sentencing range for violations of La. Code Crim.P. art. ■ 14:42.1 are imprisonment at hard labor for at least five and no more than forty years, with the Ladded requirement that at least two of the years must be imposed without the benefit of probation, parole, or. suspension of sentence. La.Code Crim.P. art. 14:42.1.

On February 3, 2017, Defendant filed a pro se “Motion for Amending or Modifying of Sentence”' with the trial court. It failed to set forth grounds or argument in support of modification of his sentence, which is required by La. Code Crim.P. art. 881.1(B). Defendant then filed a second identical motion on February 21, 2017. Both motions were denied by the trial court without reasons, as allowed by. La. Code Crim. P. art. 881.1(D).

Defendant appealed and is now before this court asserting one assignment of error: that his sentence is excessive and “considering the facts of [the] case, was an abuse of the trial court’s discretion.” For the following reasons, we affirm the trial court’s judgment sentencing Defendant to serve thirty-five years at hard labor, with the first ten years being without benefit of probation, parole, or suspension of sentence.

FACTS AND PROCEDURAL HISTORY

On or about October 24, 2014, Defendant raped the victim, a twelve year old girl. This rape was characterized as “vaginal sexual intercourse without the lawful consent of the victim.” At sentencing, and in support of the plea agreement, the State set forth the factual basis that Defendant had violated La.Code Crim.P. art. 14:42.1 by having vaginal sexual intercourse with the twelve year old victim without her lawful consent. The State further asserted the rape also fit the constraints of La.Code Crim.P. art. 14:42.1 because the victim was prevented from resisting the rape by force or threats of physical violence because the victim reasonably believed that attempts at resisting would not prevent the rape,

JjjERRORS PATENT

In accordance with La.Code Crim.P. art. 920, .all appeals are reviewed for errors patent on the, face of the record. After reviewing the record, this - court finds that there are no errors patent.

ASSIGNMENT OF ERROR

Defendant’s sole assignment of error is that the trial.court erred in imposing an excessive sentence. Defendant essentially argues that it was inappropriate for his co-defendant, whom he claims “set this crime in motion,” to get a suspended sentence while he received a sentence of thirty-five years imprisonment at hard labor. The State contends Defendant’s appeal is improper and his sentence should not be reviewed by this court because a proper motion to reconsider, as required by La. Code Crim.P. art. 881.1(E), was not filed.

LAW AND DISCUSSION

Louisiana Code of Criminal Procedure Article 881.1(E) provides: “[fjailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

To preserve the review of. a sentence on appeal, a--defendant must orally move for same at sentencing or file a motion to reconsider sentence within thirty days after sentencing unless the trial court specifically grants the defendant a longer time period in which to file. La.Code Crim.P. art. 881.1(A)(1). In the motion to reconsider, the defendant must “set forth the specific grounds on which the motion is based.” La.Code Crim.P. art. 881.1(B). It does not matter whether |4the motion is made orally at sentencing or in writing within the time periods set forth in Article 881.1(A)(1) or granted by the trial court. Id. The trial court has the discretion to deny a motion to reconsider without a hearing. La.Code Crim.P. art. 881.1(D). If a defendant fails to make or file a motion to reconsider, or if the motion to reconsider does not include the specific ground(s) upon which it is based, either party is precluded “from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E).

In the past, this court has declined to reconsider sentences when the motions were not proper per La.Code Crim.P. art. 881.1. In State v. James, 95-962, pp. 2-3 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 464, the defendant filed a motion to reconsider sentence one year and eight months after sentencing, well beyond the thirty day requirement provided by La.Code Crim.P. art. 881.1. The record of sentencing did not reflect that the trial court gave any additional time for the defendant to file the motion and his motion was untimely. Id. This court found that the defendant’s sentencing claims lacked merit because the motion to reconsider sentence was not timely. Id,, See also State v. King, 95-344, p. 3 (La.App. 3 Cir. 10/4/95), 663 So.2d 307, 308, writ denied, 95-2664 (La. 3/15/96), 669 So.2d 433.

Similarly, in State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object at the sentencing hearing to the sentence imposed and did not timely file a written motion to reconsider sentence. This court found his claim of excessiveness of sentence was barred. See also State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59.

| (¡Although Defendant made a contemporaneous objection to his sentence at the sentencing hearing, he- never properly moved to have his sentence reconsidered in accordance with La.Code Crim.P. art. 881.1. Further, his written motions for reconsideration of sentence, while timely, failed to comply with subsection B of Article 881.1 and were properly denied by the trial court pursuant to subsection D of that same statute.

The State argues that by failing to file a proper motion to reconsider as required by Article 881.1, Defendant waived his right to seek review of his sentence. While we acknowledge that this court is precluded by legislation and jurisprudence from reviewing the specifics of Defendant’s sentence because of his failure to comply with La.Code Crim.P. art. 881.1, this court is not precluded from reviewing Defendant’s sentence for constitutional excessiveness. State v. Workman, 14-559 (La.App. 5 Cir. 4/15/15), 170 So.3d 279, writ denied, 15-0909 (La. 3/24/16), 190 So.3d 1189.

In some instances, this court has also chosen to review claims of excessiveness despite the lack of a contemporaneous oral motion at sentencing and the filing of a motion to reconsider sentence. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011). In these cases, this court’s consideration was limited to only whether the defendánts’ sentences were unconstitutionally excessive. Given our discretion to review Defendant’s claim of excessiveness or deny his appeal, and in the interest of justice, we choose to review Defendant’s claim as a bare claim of unconstitutional excessiveness.

Louisiana courts have set out the following guidelines to be used when reviewing the excessiveness of a sentence. “Sentences within the statutory |fisentencing range can be reviewed for constitutional excessiveness.” State v. Sepulvado, 367 So.2d 762 (La.1979).

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, unit denied, 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating: “La. Const, art. I, § 20 guarantees that, ‘[n]o law shall subject any person to cruel or unusual punishment.’ ” The Barling court stated that a penalty has to be “so grossly disproportionate to the severity of the crime as to shock our sense of justice” or that it is “nothing more than a needless imposition of pain and suffering” that “makes no measurable contribution to acceptable penal goals” before it can be deemed excessive by an appellate court. Id. The Barling court further explained what when a sentence falls within statutory limits for a crime, it cannot be set aside absent a manifest abuse of the trial court’s discretion. A trial courts’ discretion in imposing sentences is broad. See Barling, 779 So.2d 1035.

In reviewing a trial court’s sentencing discretion for a constitutionally excessive sentence, “there are three factors the appellate court should consider, “the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts.” State v. Guilbeau, 2011-7 p. 7 (La.App. 3 Cir. 6/22/11), 71 So.3d 1010, 1016, quoting State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-0433 (La. 6/25/99), 745 So.2d 1183.

1. Nature of the Crime

In this case, Defendant’s crime was the vaginal rape of a twelve year old girl who was unable to resist or defend herself against Defendant, a man thirteen years her senior. Defendant was indicted for aggravated rape because at the time he |7raped her, the victim was under the age of thirteen. In addition to constituting aggravated rape, Defendant’s act was also a “crime of violence.” A crime of violence is defined as:

an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.

La.R.S. 14:2(B).

The record is clear that the trial court found Defendant’s crime “despicable and heinous and atrocious in every sense of the light.” Additionally, the facts presented in the PSI “indicate to the Court that [Defendant] is a 25-year-old child predator that had a child hand delivered to him by [a co-defendant].”

2. Nature and Background of Offender

At the time of the rape, Defendant was twenty-five. His conviction in the instant case was his second felony conviction. His first conviction was in 2007 for theft. The record indicates that the trial, court considered the sanity commission’s determination that Defendant’s IQ is 79, and that he has multiple children. Although Defendant asserts on appeal that the trial court-erred by not considering his background, the record supports a conclusion, and defendant acknowledges, that the trial court reviewed Defendant’s PSI carefully, and the PSI contained all relevant background information on Defendant.

3. Sentences Imposed by Other Courts for the Same Crime'

The final prong of the analysis to determine whether a sentence is constitutionally excessive requires this court to look at sentences imposed on defendants in other cases for similar crimes. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:

•While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).

In State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, this court upheld a thirty-five year sentence without benefits for a first time felony offender convicted of forcible rape of his eleven year old stepdaughter. In support of their opinion, a panel of this court determined that'Vallery’s crime was terrible enough to be a “crime of passion,” he had been sentenced within the guidelines, and his sentence was less than the maximum he could have been given. Comparatively, Defendant in the instant case has been convicted of two felonies, the rape was a crime of passion, Defendant’s sentence was within the guidelines, and it is less than the maximum the trial court could have ordered.

Importantly, the court in Vallery addressed the distinction set forth by the supreme court in State v. Lanclos, 419 So.2d 475 (La.1982), addressing whether a maximum sentence was appropriate following a plea agreement. In Landos, the court distinguished between the crime that the defendant had committed from the crime to which the defendant pled guilty. The Landos court held that because the defendant committed a crime with greater penalties than the one to which he pled, sentencing him to the maximum under the pled crime was not an abuse of discretion. Vallery, 899 So.2d at 839-840.

CONCLUSION

Much like the defendant in Vallery, Defendant received a substantial benefit in accepting a plea agreement that reduced his exposure from life imprisonment lawithout benefits, to a maximum of forty years imprisonment with no benefits for at least two years. The Defendant is a second , offender. His sentence was within the guidelines, but not the maximum sentence, with only ten rather than the full thirty-five year sentence of imprisonment imposed without benefits. After considering the three factors set forth in Guilbeau and the entirety of the record, we find that Defendant’s sentence is not constitutionally excessive. Guilbeau, 71 So.3d at 1016.

DECREE

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

AFFIRMED.

      . The crimes of "aggravated” rape (14:42) and “forcible” rape (14:42.1) were respective- • ly renamed "first degree” and "second degree” rape effective August 1, 2015,2015 La. Acts No. 184, § 1; 2015 La. Acts No. 256, § 1. In this opinion, "aggravated rape” and "first degree rape” are synonymous and mean the offense defined by the provisions of La. Code Crim.P, art. 14:42; and "forcible rape” and "second degree rape” are synonymous and mean the offense defined by the provisions of La.Code Crim.P. art. 14:42,1.

      . Second Degree Rape, as defined in La.Code Crim,P. art. 14:42.1 is committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one of the following circumstances: (1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.


author: AMY, Judge.

text:
    Savanah WILLIAMS v. Vincent ALEXANDER
    17-435
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      Randy- M. Guidry, Durio, McGoffin, Stagg & Ackermann, Post Office Box 51308, Lafayette, LA 70505, (337) 233-0300, COUNSEL FOR DEFENDANT/APPELLANT: Vincent Alexander
    Savanah Williams, 417. Martin Street, Breaux Bridge, LA 70517, (404) 823-7348, IN PROPER PERSON
    Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.
   AMY, Judge.

hThe plaintiff filed suit, seeking the return of a truck to which she claimed ownership. The defendant, who maintained possession of the truck, asserted that the plaintiff had transferred ownership of the vehicle to him. Following trial in city court, the trial court found in favor of the plaintiff and ordered the defendant to tender possession of the truck to the plaintiff. The trial court further denied damages otherwise claimed by the parties. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiff, Savanah Williams, acquired a 1995 Chevrolet truck from the defendant, Vincent Alexander, on October 16, 2013. The title to the truck, issued on that date, lists Mrs. Williams as the owner. The parties differ on the underlying financial arrangement for the transfer of the vehicle. While Mrs. Williams contends that her husband, Calvin Paul Williams, completed carpentry-work for Mr. Alexander in exchange for the truck and did so at the time of the 2013 transfer, Mr. Alexander asserts that the full extent of the expected work was not completed.

In January 2015, and after Mr. Williams did not respond to a demand letter, Mr. Alexander traveled to the Williams’ home, seeking the return of the truck. With Mr. Williams working out of town, the record indicates that Mrs. Williams surrendered physical possession of the truck to Mr. Alexander. Additionally, it is unquestioned that she signed the reverse of the- original title as “Seller[.]” However, as observed by the trial court, “[t]here was no Bill of Sale, there was no other act of transfer, merely [Mr. Alexander] took possession of the ‘Original Title’ that was | ¡Issued at the time of the acquisition of the truck[.]” Mr. Williams explained that, upon his return to town, he went to see Mr. Alexander, who returned the truck to him. Mr. Williams testified that, although he asked for the return of the original title, Mr. Alexander ultimately informed him that it was lost. Mrs. Williams thereafter obtained a duplicate title to the vehicle.

After the truck was returned to Mr. and Mrs. Williams, their nephew, Phillip Williams, began using the truck. Phillip testified that, although he gave Mr. Williams $200 for the truck, he never owned the truck as he never finished paying the $300 he agreed to pay his uncle. When asked by the court, Phillip denied that he acquired title to the truck or that a bill of sale was completed. Instead, Phillip explained that Mr. Alexander called him and told him: “he got the [tjitle for the truck ... Paul not [sic] finish paying for the truck, I need to bring the truck to his house.” Phillip explained that he did so, driving the truck to Mr. Alexander’s house.

Mrs. Williams instituted this matter in city court in August 2016 and sought the return of the vehicle to her as well as damages she alleged were incurred as a result of Mr. Alexander’s retention of the truck. Mr. Alexander responded to the claim with a reconventional demand, seeking his own damages due to what he contends were defamatory allegations made by Mrs. Williams.

Following a trial, at which both parties represented themselves, the trial court found in favor of Mrs. Williams, explaining that: “The vehicle, it’s clear to the [c]ourt beginning in October of 2016 [sic], 2013, was owned by, transferred to and became owned by Savanah Williams and the community of Savanah and Mr. Williams and continues to be owned by them to this day.” Accordingly, the trial court ordered the immediate return of the truck to Mrs. Williams. It denied damages as requested by both parties.

Mr. Alexander appeals, asserting that:

I si. The lower [c]ourt erroneously applied the facts to the law in this matter as it relates to ownership of a motor vehicle by rendering a [¡Judgment which failed to recognize the fact that legal ownership of a motor vehicle transferred back to the original owner once the proper assignor executed the assignment.
2. The lower [cjourt erred when it overreached in its role as neutral arbiter of the facts, and rather operated as trial counsel rather than [j]udge, with said overreaching or interference with the flow of evidence thereby allowing the [c]ourt to reach an incorrect result.

Discussion

Merits

Mr. Alexander first questions the trial court’s determination of ownership, asserting that, while he had not achieved merchantable title pursuant to La.R.S. 32:705, other evidence was suggestive of his ownership. In particular, he argues that “the transaction of Mrs. Savanah Williams voluntarily signing the original [t]itle over to [him], completed the deal on the vehicle. Ownership should have been recognized as being held by [him] upon completion of her execution of the [t]itle, or, at the very least, through her own ratifying testimony.”

Notably, Mr. Alexander equates Mrs. Williams’ signature on the reverse of the original title as her “signing the original [t]itle over to him[.]” However, La.R.S. 32:705 provides, in pertinent part, that:

A. No person shall sell a vehicle without delivery to the purchaser thereof, whether such purchaser be a dealer or otherwise, a certificate of title issued under this Chapter in the name of the seller with such signed endorsement of sale and assignment thereon as may be necessary to show title in the purchaser[.]
B. For purposes of this Section, an “endorsement” means one of the following:
(1) The signature of the seller in the presence of a notary who shall subscribe his name thereon.
(2) The signature of the seller in the presence of two witnesses who shall subscribe their names thereon, which signature shall be acknowledged by a subscribing witness ...[.]

UCertainly, in this case, it cannot be said that the original title returned to, and then retained by, Mr. Alexander contained Mrs. Williams’ “endorsement” for purposes of La.R.S. 32:705. As noted by the trial court, her signature as “seller” was neither notarized nor witnessed. Additionally, Mr. Alexander’s name is absent from the title as the document introduced into the record includes no “Buyer” on the reverse of the title.

Neither do we find merit in Mr. Alexander’s contention that, although the formalities of La.R.S. 32:705 were not completed, the trial court was otherwise required to find the evidence supportive of transfer of ownership. While Mrs. Williams surrendered possession of both the original title bearing her name as owner and the truck to Mr. Alexander upon his demand, other evidence and events support the trial court’s determination. In particular, Mr. Williams demanded the return of the truck when he returned to town, Mr. Alexander complied with that demand, Mrs. Williams obtained a duplicate title in her name after Mr. Alexander did not return the original title, to her, and Mr. Alexander issued a policy of automobile insurance on the truck in Mrs. Williams’ name. Mr. Alexander did not produce a bill of sale, title indicating his purchase of the truck, or insurance on the truck. To the contrary, the above objective markers favored Mrs. Williams. Additionally, any credibility determinations regarding Mr. Williams’ completion of any work anticipated for the retention of the truck were within the province of the' trial court as “it observes and participates in the live'presentation, while the appellate court merely reviews the cold transcript.” Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 10 (La. 12/8/15), 193 So.3d 1110, 1116-17.

Finding no manifest error in the trial court’s determination regarding ownership, we find no merit in this assignment.

¡¿Neutral Arbiter

In his final assignment, Mr. Alexander contends that the trial court “overstepped its bounds in determining ownership.” In "particular, Mr. Alexander asserts that his questioning of Phillip Williams regarding his delivery of the truck to Mr. Alexander upon demand “can be interpreted as consistent with his believing Mr. Alexander was still owed money by Mr. Calvin Paul Williams.” Yet, Mr, Alexander argues that the trial court conducted its own cross-examination “focused on drawing facts to support the legal conclusion and/or legal determination that the truck could not have belonged to Mr. Phillip Williams.” Mr. Alexander suggests that such questioning, as well as other exchanges which he contends reveal “frustration” by the trial court, indicate that its role as neutral arbiter was undermined.

As explained above, the record supports the trial court’s determination on the merits. This basis is apparent, notwithstanding the testimony from Phillip complained of by Mr. Alexander as to whether he believed that his uncle had not performed work as demanded by Mr. Alexander. Furthermore, and to the extent the trial court made inquiries of the witnesses, La.Code Evid. art. 614(B) . specifically provides that “[t]he court .may question, witnesses, whether called by itself or by a party.” Having reviewed the testimony, we do not find that the- trial court abused its discretion in this regard. Further, we point out that this matter was a bench trial at which the parties proceeded in proper person. Reference to the transcript reveals that the trial court found the need to maintain control of the proceedings, advising at one point that: “[W]hen people come here to this [c]ourt and do not have an attorney I do the best I can to try and maintain some decorum between the two of you and it’s very difficult, very difficult. Alright. I want to make sure that all you reach and have a fair trial.”

Given these factors, and following review of the record in its entirety, we find no merit in this assignment of error.

_y)ECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to the defendant — appellant, Vincent Alexander.

AFFIRMED.

      . The exhibits include an October 17, 2014 demand letter from Mr. Alexander to Mr. Williams, in which Mr. Alexander asked, among other things: "Please provide me with a list of the work you claim you have done for the Chevrolet Diesel truck. I need your signature on the list. Please provide me with this list within the next five days.”

      . Copies of both the original and the duplicate title were placed into evidence by Mr. Alexander and Mrs. Williams, respectively.


author: JOHNSON, J.

text:
    Charles Henry JACKSON v. Simona D. MORTON
    NO. 17-CA-194
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, CHARLES HENRY JACKSON, Tonya S. Johnson
    COUNSEL FOR DEFENDANT/AP-PELLEE, SIMONA D. MORTON, Christy M. Howley, Gretna, M. Elizabeth Bowman, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg
   JOHNSON, J.

_JjPlaintiff/Appellant, Charles Henry Jackson, appeals a directed verdict that denied his claim for reimbursement of mortgage payments in favor of Defen-daniyAppellee, Simona D. Morton, from the 24th Judicial District Court, Division, “F”. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The following relevant facts were taken from the pleadings.

Mr. Jackson and Ms. Morton were a cohabiting, unmarried couple for numerous years. Two children were born from their relationship: Kaelin Jackson and Joshua Jackson. On March 27, 2003, Mr. Jackson purchased the property located at 2716 Conor Court in Marrero, Louisiana, and mortgaged the property in' his name. On the same day, Mr. Jackson placed Ms. Morton into unconditional and irrevocable possession of one-half interest of the property pursuant to an act of inter vivos donation in consideration of love and affection he had for Ms. Morton.

The parties resided together until November 11, 2014, when Mr. Jackson was arrested for domestic abuse battery and had a temporary restraining order issued against him. Mr. Jackson did not return to the home while Ms. Morton was present, even after the restraining order had expired.

On August 27, 2015, Mr. Jackson filed a “Petition for Judicial Partition.” In his petition, Mr. Jackson alleged that Ms. Morton failed to contribute to the mortgage, taxes or homeowner’s insurance, and that Ms. Morton should be held accountable to him for the expenses of the mortgage, maintenance, management and repairs of the property pursuant to La. C.C. art. 806. He averred that he was also entitled to his share of rental reimbursements from the time of Ms. Morton’s exclusive use of the property until the time of the partition. Ms. Morton answered Mr. Jackson’s petition, denying any liability for the mortgage or rent for the [¿property, and filed a re-conventional demand, asserting that she was entitled to exclusive use of the property and reimbursement of all funds she expended towards the upkeep, mortgage, taxes and insurance on the property.

The parties entered into a Consent Judgment on February 29, 2016, agreeing that Mr. Jackson would enjoy exclusive use of the property and would be solely responsible for the expenses and upkeep of the home pending the partition of the property.

The matter proceeded to a bench trial on November 4, 2016. At the conclusion of Mr. Jackson’s presentation of his case, Ms. Morton orally moved for a motion for involuntary dismissal, which was granted in part by dismissing Mr. Jackson’s claims for mortgage reimbursement, off-set for taxes and rental reimbursement. In open court, the trial court ordered that the property be sold by private sale and the proceeds be split between Mr. Jackson and Ms. Morton. The trial court further ordered reimbursement to Mr. Jackson by Ms. Morton in the amount of $1,460.31 for improvements to the home. A written judgment to that effect was rendered on November 17, 2016. All other claims were dismissed, and each party had to bear his/her own costs. The instant- appeal followed.

ASSIGNMENT OF ERROR

Mr. Jackson’s sole assignment of error alleges the trial court erred in failing to award him reimbursements for mortgage payments made by him from November 2014 through February 29, 2016.

LAW AND ANALYSIS

Mr. Jackson alleges the trial court erred by failing to award him reimbursement for mortgage payments made by him from November 2014 through | -¡February 29, 2016, which was during the time Ms. Morton solely enjoyed the family home. He argues that the entirety of the payments he made during the years he and Ms. Morton were together benefited Ms. Morton and resulted in her unjust enrichment. He contends that Ms. Morton should not have the benefit of obtaining ownership in a thing that was burdened by a mortgage, towards which she made no payments.

Ms. Morton avers the trial court judgment was correct because Mr. Jackson failed to prove his prima facie case of entitlement to mortgage reimbursement. She maintains that Mr. Jackson failed to introduce any mortgage statements, a representative from the mortgage company, or proof of mortgage payments. Even if Mr. Jackson had produced evidence supporting his claim, Ms. Morton further avers that Mr. Jackson could not seek reimbursement for years that he lived in the home with her and their children, and any claims Mr. Jackson would have had were prescribed. :

In a motion for involuntary dismissal, the defendant may move for a dismissal of the action against him/her after the close of the plaintiffs case. Machado v. Baker Concrete Constr., 13-273 (La. App. 5 Cir. 10/30/13); 128 So.3d 477, 481, citing Brock v. Singleton, 10-550 (La. App. 5 Cir. 3/29/11); 65 So.2d 649, 660. The appropriate standard in determining whether an-involuntary dismissal should be granted is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish hi's claim by a preponderance of the evidence. Id. An appellate court may not reverse a ruling on a motion for involuntary dismissal, unless it is manifestly erroneous or clearly wrong. Id.

A co-owner who on account of the thing held in indivisión has incurred 1¿necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares. La. C.C. art. -806. The law is settled that under La. C.C. 806, a co-owner who has incurred necessary expenses is entitled to reimbursement from the other co-owners; however, a mortgage is not such an expense. Slimp v. Sartisky, 11-1677 (La. App. 4 Cir. 9/17/12); 100 So.3d 901, 921, rehearing granted and amended on other grounds, (La. App. 4 Cir. 10/11/12); Roger v. Roger, 99-765 (La. App. 5 Cir. 1/12/00); 751- So.2d 354, 356, writ .denied, 00-442 (La. 3/31/00); 759 So.2d 73, citing Roque v. Tate, 93-389 (La. App. 5 Cir. 2/9/94); 631 So.2d 1385, 1386. The mortgage is “a nón-possessory right created over property to secure the performance of an obligation.” Id., citing La. C.C. art. 3278.

In this matter, Mr. Jackson entered into a mortgage with Standard Mortgage Corporation for the property in question for $105,183. It is unclear whether the mortgage was signed before or after the act of donation; however, Mr. Jackson was the only person who signed and obligated himself to paying the mortgage. Because he and Ms. Morton were co-owners of the property and a mortgage is not an expense subject to reimbursement under La. C.C. 806, Mr. Jackson did not and could not prove that he was entitled to • mortgage reimbursement from Ms. Morton. See, Slimp, supra. Therefore, we find that the trial court properly granted the motion for involuntary dismissal, in part, at the conclusion at Mr; Jackson’s case-in-chief on the issue of mortgage reimbursement.

DECREE

Accordingly, we affirm the judgment of the trial court that partially granted the motion for involuntary dismissal of Mr. Jackson’s mortgage reimbursement claim. Mr. Jackson is assessed the costs of this appeal.

AFFIRMED

      . Throughout the trial and in briefs to this Court, the parties referenced the motion as a motion for directed verdict. However, this matter was tried before a judge, not a jury; thus, the applicable motion was a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B). Motions for involuntary dismissal are applicable to cases tried in a bench trial. Because this matter was tried in a bench trial, we will address the granting of the motion for involuntary dismissal.

      , Proof by preponderance of the evidence has been defined to mean "evidence, taken as whole, shows that fact or cause shown to be proven is more probable than not.” State v. One 1991 Pontiac Trans Sport Van, 98-64 (La. App. 5 Cir. 7/9/98); 716 So.2d 446, 449, citing Crowell v. City of Alexandria Through Snyder, 558 So.2d 216 (La. 1989).