author: MARION F. EDWARDS, Judge.

text:
    Althea ALVAREZ and Armando Alvarez, Individually and on Behalf of his Two Minor Children, Andre Alvarez and Anyssia Alvarez v. Chad T. LEBLANC, Direct General Insurance Company of Louisiana, State Farm Mutual Automobile Insurance Company, and Usagencies Casualty Insurance Company, Inc.
    No. 09-CA-417.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.
    Ivan A. Orihuela, Riguer Silva, L.L.C., Kenner, LA, for Plaintiff/Appellant.
    Scott A. Cannon, Law Office of Scott A. Cannon, LLC, Slidell, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

12Plaintiffs/appellants, Althea Alvarez and Armando Alvarez (“Alvarez”), individually and behalf of their two minor children, Andre Alvarez and Anyssia Alvarez, appeal a judgment of the district court granting summary judgment in favor of defendant/appellant, USAgencies Casualty Insurance Company (“USAgencies”).

Alvarez filed suit for injuries received in an automobile accident on August 19, 2004. USAgencies was made a defendant as the uninsured/underinsured motorist carrier. USAgencies filed a Motion for Summary Judgment, alleging that Alvarez had validly rejected uninsured motorist (“UM”) coverage on April 8, 2004. After a hearing, the district court denied the motion, finding the form was invalid under Louisiana law. In the transcript, the trial court stated that |;iUSAgencies had failed to include its name on the waiver form as required by La. R.S. 22:1406(D)(a)(ii), now La. R.S. 22:680(l)(a)(ii).

USAgencies filed a Motion for Re-Hearing on Motion for Summary Judgment, which was treated as a new trial. It introduced an affidavit from an underwriting supei’visor pointing out that the letters “LA-USACIC00006 (01/02)” appear in the bottom left-hand corner of the waiver form, and that the letters “USACIC” are an acronym for USAgencies. After talcing the matter under advisement, the trial court issued a judgment granting a new trial.

Alvarez appealed that judgment to this Court, and, in Alvarez et al. v. LeBlanc et al., we determined that the judgment on appeal was interlocutory, dismissing the appeal and remanding the case. On December 16, 2008, USAgencies filed a Motion and Order to Re-Set Motion for Summary Judgment. Following a hearing on February 18, 2008, the trial court granted summary judgment, dismissing Alvarez’s case. It is from that judgment that the present appeal is taken.

Our review on the grant of summary judgment is de novo.

At the February hearing, USAgen-cies pointed out to the court another case from this Circuit in which the same form was found to be valid. In that case, we stated:

Although plaintiff contends that the form does not contain the name of the insurance company, the form contains the following on the bottom left-hand corner of the document: LA-USA-CIC00006 and a bar code. This acronym clearly refers to USAgencies Casualty Insurance Company, the insurer that provided this policy to plaintiff. Further, plaintiffs initials are placed on the form adjacent to the following language:
“I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.”
(Emphasis in the original.)
Thus, the form executed by plaintiff and the insurer in this case complies with the formal requirements of law in that there is a clear rejection of UM coverage, the form is signed and dated, and it contains the policy number and the name of the insured.

Pursuant to Fescharek, the trial court granted summary judgment in favor of USAgencies. Alvarez appeals, urging that the rejection form did not properly comply with Louisiana Commissioner of Insurance Bulletin, LIRC 98-01, which states: “For identification purposes, the company name must be placed at the lower left-hand corner and the policy number at the lower right-hand corner of the Form.” Alvarez cites us to Roger v. Estate of Moulton for the proposition that UM waivers are subject to strict construction.

We are bound by our previous determination in Fescharek that the identical waiver form is valid. Our finding there, as well as in the present case, is bolstered by more recent jurisprudence. In Gingles v. Dardenne, the Third Circuit determined that the UM waiver there was ineffective because it did not include the name of the insurer. The court observed that, although the Insurance Commissioner’s form did not have a marked space for the insurer’s name, the form was accompanied by instructions to include the name of the insurance company. Considering these things together, the appellate court held that the waiver, which did not contain a space for the insurer’s name, was invalid. In reversing the appellate court, the Louisiana Supreme Court held, in a per curiam opinion, that having met the requirements of Duncan v. U.S.A.A., the commissioner’s failure to 11 include a space for the insurer’s name on the UM coverage form did not invalidate the rejection. It quoted from Duncan:

Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

The Gingles court found that “[i]t is undisputed that the pertinent designated spaces on the form were filled out. Additionally, the form at issue in these proceedings satisfies all of the requirements of our opinion in Duncan. Under these circumstances, we find [the insurer] has established it is entitled to judgment as a matter of law. The court of appeal erred in holding otherwise.” In Keen v. Ashley, the Second Circuit was also presented with a waiver that did not contain a space for the insurer’s name. The waiver form in that case correctly listed all coverage options; contained spaces, properly filled out, for the insured’s name and signature, policy number and date; and showed the [insured’s] initials next to the rejection option. The forms had, however, no space for the insurer’s name. As in the case now before us, the waiver form there also stated, in a header, “This form was promulgated pursuant to LRS 23 § 1406 D. (l)(a)(ii). This form may not be altered or modified.” Citing Gingles, the court found that the insurer used the UM coverage form promulgated by the commissioner, that it complied with every requirement of R.S. 22:680(l)(a)(ii), and that [the insured’s] designated officer filled it out correctly with a rejection of UM coverage. “The only deficiency was that the form failed to comply with an internal regulation, LIRC 98-03, which the Insurance Rating Commission itself apparently disregarded in preparing the | ,¡coverage form. Under Gingles, this is of no moment given the otherwise full compliance with the statute.”

Alvarez also contends that summary judgment should not have been granted as a procedural matter, because USAgencies presented no new evidence on the new trial. Under La. C.C.P. art. 1972, a new trial shall be granted when, among other things, the verdict or judgment appears clearly contrary to the law and evidence. At the time the original summary judgment was denied and the new trial granted, Gingles, Keen, and Fescharek had not yet been decided. The factors bearing on retroactive application of a judicial decision include whether the new decision establishes a new principle of law, either by overruling clear precedent on which the parties have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; the history of the rule, its purpose and effect, and whether retrospective application will further or retard its operation; and the inequities involved.

Gingles clarified the previous jurisprudence, as did Fescharek. To apply it retroactively would not work substantial injustice to Alvarez. In granting the motion on the new trial, the trial court correctly applied the latest expression of the courts.

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

AFFIRMED.

      . 08-247 (La.App. 5 Cir. 9/30/08), 966 So.2d 517, writs denied, 07-1574 (La.10/12/07), 965 So.2d 404.

      . Prince v. K-Mart Corp., 99-253 (La.App. 5 Cir. 8/31/99), 742 So.2d 718.

        . Fescharek v. US Agencies, 07-843 (La.App. 5 Cir. 2/6/08), 979 So.2d 562, 565.

      . 513 So.2d 1126 (La.1987).

      . 08-448 (La.App. 3 Cir. 11/26/08) 998 So.2d 795.

      . 08-2995 (La.3/13/09), 4 So.3d 799.

      . 06-363, p. 12 (La.11/29/06), 950 So.2d 544, 546-47.

      . Duncan, supra.

      . 44,608 (La.App. 2 Cir. mem), 21 So.3d 9877.

      . Keen v. Ashley, supra.

      . Devereux v. Allstate Ins. Co., 557 So.2d 1091 (La.App. 2 Cir.1990) (citing Lovell v. Lovell, 378 So.2d 418 (La.1979)).


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Kurt BOURG v. Lavedo WOODS, U.S. Agencies, Keith Thiel, and Progressive Insurance Company.
    No. 09-CA-628.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Kevin M. Steel, Attorney at Law, Gret-na, LA, for Plaintifl/Appellant.
    Jennifer A. Gelder, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2The Plaintiff, Kurt Bourg, appeals a judgment granting an exception of prescription tiled by the Defendant, Keith Thiel, and his alleged insurer, Progressive Security Insurance Company (Progressive) in a multi-car accident case. We affirm.

On October 1, 2006, the Plaintiffs vehicle was allegedly struck in the rear by a car driven by Defendant, Lavedo Woods, who was, in turn, allegedly struck in the rear by the Defendant, Keith Thiel. The three cars were traveling on Ames Boulevard in Jefferson Parish. Woods was insured by U.S. Agencies, and Thiel was allegedly insured by Progressive.

Progressive filed a peremptory exception of prescription asserting that the action against it and Thiel is prescribed on its face. A hearing was held in April of 2009. The Plaintiffs sole argument was that the suit was timely filed on October 2, 2007 under La. C.C. art. 3454. The trial judge granted the exception in June of 2009.

On appeal, the Plaintiff contends that the trial judge erred because prescription was interrupted.

_JjThe Plaintiff asserts that a letter sent by U.S. Agencies to Plaintiffs counsel on February 18, 2009 acknowledging that counsel represented the Plaintiff was also an acknowledgement sufficient to interrupt prescription against Thiel and Progressive.

The record is devoid of any evidence of a letter. Furthermore, the Plaintiff raises this issue for the first time on appeal.

At the trial of a peremptory exception of prescription, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. When the case is prescribed on its face, the burden shifts to the plaintiff to prove an interruption of prescription. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993); Morris v. Westside Transit Line, 02-1029, p. 4 (La.App. 5 Cir. 2/25/03), 841 So.2d 920, 924.

In Denoux v. Vessel Management Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88, the Louisiana Supreme Court stated:

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. [Citations omitted.]

See La. C.C.P. art. 2164. See also Jackson v. United Services Auto. Ass’n Cas. Ins. Co., 08-333, p. 5 (La.App. 5 Cir. 10/28/08), 1 So.3d 512, 515; Ray Brandt Nissan,, Inc. v. Gurvich, 98-634, p. 1-2 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476.

In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Denoux, 07-2143 at 6, 983 So.2d at 88.

|4Pelictual actions are subject to a liber-ative prescription of one year commencing from the day injury or damage is sustained. La. C.C. art. 3492. A full calendar year is from January 1 to December 31. Under La. C.C. art. 3454, the running of prescription commences on the day after the date that marks the commencement of prescription. La. C.C. Art. 3456 further provides that if a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription. In this case, prescription would have accrued on October 1, 2007, as indicated by Civil Code articles and the jurisprudence.

In Warren v. Hart, 545 So.2d 687, 688 (La.App. 5 Cir.1989), the accident occurred on May 10, 1987, between 2:00 p.m. and 3:00 p.m. Suit was filed on May 11, 1988 at 8:40 a.m. In Warren, the plaintiff argued that the one year prescription period set out in La. C.C. art. 3492 began at 2:00 p.m. on May 10, 1987 and did not expire until 2:00 p.m. on May 11, 1988. He contends that the petition filed several hours before 2:00 p.m. was therefore timely. We disagreed, stating, “As far back as 1855, the jurisprudence held that the year is calculated ‘from and after the day of the commission of the tortious act,’ making no mention of the time of day, only the date. Wartelle v. King, 10 LaAnn. 655 (La. 1855).” Warren, 545 So.2d at 688 [Emphasis added.]

In Warren, we cited Delahoussaye v. Thibodeaux, 498 So.2d 1137 (La.App. 3rd Cir.1986), unit denied, 501 So.2d 236 (La.1987), where the court held that a suit filed on February 22, 1985 was untimely when the vehicular accident in which the plaintiff was injured occurred on February 21, 1984. In Delahoussaye, the court cited La. C.C. Art. 3492 and La. C.C. art. 3456. In similar cases, the result was the same. See Wartelle, 10 La.Ann at 655; Lafleur v. Charter Marketing Company, 473 So.2d 133 (La.App. 3 Cir.1985); Elloie v. Anthony, 660 So.2d 897, 898 (La.App. 4 Cir.1995), runt denied, 663 So.2d 731 (La.1995).

In this case, a full year from the date of the accident, October 1, 2006, was September 30, 2007. The commencement of the prescriptive period began on October 2, 2006, the day after the accident. Thus, the last day for filing suit was October 1, 2007. Since the action was not filed until October 2, 2007, the trial judge did not err in granting the exception of prescription.

Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Julio A. OTERO.
    No. 09-KA-468.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Gretna, Louisiana, for Plaintiff/Appellee.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

IsSTATEMENT OF THE CASE

The defendant, Julio Otero, was convicted of one count of armed robbery, in violation of LSA-R.S. 14:64, and sentenced to thirty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. In addition, the trial judge imposed an enhancement of five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence pursuant to LSA-R.S. 14:64.3 because the armed robbery was committed with a dangerous weapon.

This is the second appeal brought by the defendant. In his previous appeal, this Court found that the enhancement imposed by the trial court was ordered to be served at hard labor even though, at the time of the commission of the crime in 2005, LSA-R.S. 14:64.3 did not include a provision that the sentence be served at hard labor. State v. Otero, 08-188 (La.App. 5 Cir. 12/16/08), 3 So.3d 34. This Court noted that hard labor was not included in the statute until the revision in 2006. This Court affirmed in part, vacated in part, and remanded the case for resen-tencing. Id.

|sAfter the defendant’s appeal was filed and prior to this Court’s opinion, the State filed a multiple bill alleging that the defendant was a fourth felony offender. The defendant denied the allegations in the multiple bill. Subsequently, the State amended the multiple bill and alleged the defendant to be a third felony offender. The State filed an amended multiple bill alleging the defendant to be a third felony offender based on two predicate convictions: (1) a September 7, 2004 guilty plea to criminal damage of over $500.00 in case # 04-4811 in Jefferson Parish; and (2) a July 16, 1997 guilty plea to possession of cocaine in case # 97-2505 and to simple burglary of an inhabited dwelling in case # 96-930, both in Jefferson Parish.

The defendant filed a motion to quash the multiple bill. At the hearing on the motion to quash, the defense stipulated that the defendant was the same person referenced in the multiple bill of information. On the same day, a multiple bill hearing was held and the defendant stipulated that he was the same person referenced in the State’s multiple bill. However, the defense ai'gued that the defendant’s two 1997 guilty pleas were entered into on the same day and counted as one offense. The defense also argued that the defendant was not advised of his Boykin right to cross-examine his accusers pursuant to LSA-C.Cr.P. art. 556.1, during his 1997 plea. The State agreed that based upon the law at the time, the defendant’s two pleas in 1997 counted as one conviction. The State agreed that the defendant was only being charged as a third felony offender. The State further argued that there was no case law requiring that the defendant had to be advised about cross-examination. Rather, the defendant only had to be advised of his right to confront his accusers.

The trial court denied the motion to quash and found the defendant to be a third felony offender. After the defendant waived all delays and upon finding the defendant to be a third felony offender, the trial judge sentenced the defendant to |,,66 years with the Department of Corrections to be served without the benefit of parole, probation, or suspension of sentence. The defendant takes this timely appeal solely on his multiple offender adjudication.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the trial court erred by failing to find that the predicate convictions in the multiple bill of information failed to comply with the requirements of La.C.Cr.P. art 556.1. The defendant claims that his two 1997 predicate offenses used to find him a third felony offender were not valid guilty pleas. The defendant contends that his Boykin colloquy in both cases did not advise him of his right to cross-examine the witnesses against him pursuant to LSA-C.Cr.P. art. 556.1.

The State argues in opposition that it met its burden of proving that the defendant’s prior guilty pleas were informed and voluntary. The State contends that the trial court in those cases advised the defendant of the three Boykin rights: the right to trial by jury, the privilege against self-incrimination, and the right to confrontation. The State argues that the right to cross-examine witnesses is incorporated in the right to confrontation.

On appeal, the defendant only challenges the validity of the two 1997 guilty pleas. When the defendant’s multiple offender status is based on guilty pleas in the predicate convictions, the State has the burden of proving the existence of the defendant’s guilty pleas and that the defendant was represented by counsel when the guilty pleas were taken. State v. Jenkins, 07-586 at 4-5, 977 So.2d at 147. See also, State v. Shelton, 621 So.2d 769, 774-77 (La.1993). If the State meets its burden of proof, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. Id. If the defendant meets the burden, then the burden shifts back to the State to [ ¡¡prove the constitutionality of the plea by producing a perfect transcript, which shows the defendant’s waiver of his Boykin rights was voluntary, informed, and express. Id. If the State produces anything less than a perfect transcript, such as a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence to determine whether the defendant’s prior plea was both knowing and voluntary. Id.

In State v. Smallwood, 06-2363 (La.5/18/07), 955 So.2d 1264 and State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560, the Louisiana Supreme Court noted that the language used in the trial judge’s statement, informing the defendant that the State would have to prove its ease beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the State’s witnesses at a trial, appeared sufficiently tailored to inform the adult defendants that they were waiving their right to confrontation and that, because they were pleading guilty, there would be no further trial.

In this case, the defendant stipulated that he was the same person who pled guilty to the predicate offenses listed in the multiple bill. However, the defendant claims that the two 1997 predicate convictions, 96-930 and 97-2505, were infirm because he was not advised of his right to cross-examine the witness against him as required by LSA-C.Cr.P. art. 556.1(A)(3).

We find the State met the burden of proving the existence of the defendant’s guilty pleas and that the defendant was represented by counsel when the guilty pleas were taken. The State produced the “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” forms signed by the defendant, defense counsel, and the trial judge, as well as the bill of information and commitment/minute entry in both cases. The burden then shifted |fito the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity.

The defendant has failed to show either that his rights were infringed or that there was a procedural irregularity in either 1997 guilty plea. The “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” forms in both cases indicate that both the trial court and the defense attorney advised the defendant of his right to confront his accusers. The Confrontation Clause of the Sixth Amendment to the United States Constitution, which guarantees the right of the accused in a criminal prosecution to be confronted with witnesses against him “encompasses the right physically to face those who testify against him, and the right to conduct cross-examination.” State v. Pierre, 03-1306, p. 8 (La.App. 5 Cir. 2/23/04), 869 So.2d 206, 212, writ denied, 04-959 (La.10/1/04) 883 So.2d 1006. In addition, the confrontation clause of the Louisiana Constitution Article I, Section 16, specifically affords the accused a right to cross-examine the witnesses against him. Id. The Louisiana Supreme Court has held that Boykin does require a “magic word formula” for a trial judge to conduct a thorough inquiry into the validity of a plea. We find that in advising the defendant of his constitutional right to confrontation codified in LSA-C.Cr.P. art. 556.1(A)(3), the trial court sufficiently apprised the defendant of the encompassing rights to physically face those who testify against him and to conduct a cross-examination of those adverse witnesses.

In the present case, both 1997 guilty plea forms indicated that the defendant was represented by counsel, that he was advised of and waived his three Boykin rights, and that he was informed of the maximum total sentence he would .receive based on the pre-sentence investigation. We find that the trial court did not err in its determination that the defendant’s guilty pleas in the predicate offenses were ^constitutionally valid. Therefore, we find the predicate offenses were properly used to prove the defendant’s status as a multiple felony offender. Accordingly, the trial court’s finding that defendant is a third felony offender is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

Next, the defendant argues the trial court erred by imposing an unconstitutionally excessive sentence and failing to comply with the requirements of La. C.Cr.P. art. 894.1.

First, we note the original record reflected that the defendant filed a timely motion for reconsideration of his sentence. The original record did not indicate the trial court ruled on the motion for reconsideration nor was the original record supplemented. On September 29, 2009, this Court ordered the Clerk of Court for the 24th Judicial District Court, Parish of Jefferson, State of Louisiana to supplement the record with the trial court’s ruling on the Motion to Reconsider Sentence on or before the 7th day of October 2009. On September 30, 2009, the trial court denied the defendant’s motion to reconsider sentence.

In this assignment of error, the defendant claims that his multiple offender sentence of 66 years at hard labor without the benefits of parole, probation, or suspension of sentence is constitutionally excessive because he has no prior convictions for crimes of violence and no one was injured during the commission of the offense. In addition, the defendant claims the trial court failed to comply with the requirements of LSA-C.Cr.P. art. 894.1.

The State argues in opposition that the defendant has failed to demonstrate that his mandatory minimum multiple offender sentence is constitutionally excessive. The State notes that the defendant was not charged for at least one battery associated with this incident in which he was armed with a dangerous weapon and engaged in conduct that presented a risk of great bodily harm or death |sto several individuals present during his commission of the offense. The State also claims that the trial court was not required to comply with LSA-C.Cr.P. art. 894.1 because the minimum mandatory sentence imposed was statutorily prescribed under the Habitual Offender Law.

The Eighth Amendment to the United States Constitution and the Louisiana Constitution Article I, § 20 prohibit the imposition of excessive punishment. State v. Johnson, 03-620, p. 14 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 189, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849. “A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering.” Id. A mandatory minimum sentence under the Habitual Offender Law is presumed to be constitutional. Id. Nevertheless, if the trial court finds that an enhanced punishment mandated by LSA-R.S. 15:529.1 makes no measurable contribution to acceptable goals of punishment or that the imposed sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, the trial judge has both the option and duty to reduce such a sentence to one that would not be constitutionally excessive. State v. Johnson, 03-620 at 14, 860 So.2d at 189-90, citing State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

A trial court may only depart from the mandatory sentence if he finds clear and convincing evidence that would rebut the presumption of constitutionality. State v. Johnson, 03-620 at 14, 860 So.2d at 190. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional because of unusual circumstances and that the sentence is not meaningfully tailored to his culpability as the offender, the gravity of the offense, and the circumstances of the ease. Id. The Louisiana Supreme Court has found that ^downward departures from the mandatory minimum sentences should be made only in rare cases. State v. Johnson, 03-620 at 15, 860 So.2d at 190.

As a third felony offender, for an underlying felony conviction punishable by imprisonment for any term less than his natural life, the defendant was subject to a sentence of not less than two-thirds of the longest term and not more than twice the longest term. See, State v. Johnson, 03-620 at 15, 860 So.2d at 190 citing LSA-R.S. 15:529.1(A)(l)(b)(i). The term of imprisonment for an armed robbery conviction is not less than ten nor more than 99 years of imprisonment at hard labor without benefit of probation, parole or suspension of sentence. LSA-R.S. 14:64(B). Therefore, as a third felony offender convicted of armed robbery, the defendant faced a sentencing range between 66 and 198 years of imprisonment at hard labor. State v. Johnson, 03-620 at 15, 860 So.2d at 190. The defendant does not even acknowledge that he received the mandatory minimum sentence, which he did. The defendant claims that his sentence is unconstitutionally excessive because no one was hurt during the commission of his offense and he did not previously commit a crime of violence.

In State v. Johnson, supra, the defendant claimed that his mandatory minimum 66 year sentence as a third felony offender was constitutionally excessive. State v. Johnson, 03-620 at 14, 860 So.2d at 189. This Court noted that, on appeal, the defendant did not acknowledge that he received the mandatory minimum sentence and did not offer any reason to support his allegation that the sentence is excessive. State v. Johnson, 03-620 at 19, 860 So.2d at 190. In addition, this Court noted that the defendant did not make any argument at the sentencing hearing or in his motion to reconsider sentence to rebut the presumption of the constitutionality of the mandatory minimum 66 year enhanced sentence. Id. | inThis Court found that the trial judge did not err in sentencing the defendant to 66 years. Id.

We find this case to be very similar to State v. Johnson, supra. In this case, the defendant received the mandatory minimum sentence and has not shown that he is exceptional because of unusual circumstances and that his sentence is not meaningfully tailored to his culpability as the offender, the gravity of the offense, and the circumstances of the case. Even though no one was injured during the defendant’s commission of the armed robbery, a crime of violence, the State obviously proved the defendant used force or intimidation while armed with a dangerous weapon, which are elements of the offense. LSA-R.S.14:64. In addition, this Court has found that the Habitual Offender Statute considers the non-violent nature of predicate offenses and, therefore, does not alone justify rebutting the presumption of constitutionality. State v. Neal, 00-41, p. 1 (La.App. 5 Cir. 5/30/00), 762 So.2d 281, 287.

Finally, for the first time on appeal, the defendant claims the trial court failed to comply with the requirements of LSA-C.Cr.P. art. 894.1. However, the defendant’s ai'gument concerning sentencing guidelines in LSA-C.Cr.P. art. 894.1 is misplaced. Compliance with sentencing guidelines pursuant to LSA-C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Jenkins, 07-586 at 6, 977 So.2d at 148.

Therefore, we affirm the defendant’s multiple offender enhanced sentence of sixty-six years without the benefit of parole, probation or suspension of sentence.

ERROR PATENT DISCUSSION

This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). However, since the defendant |nreceived an errors patent review on his original appeal, he is now only entitled to an errors patent review of the multiple offender proceedings. State v. Riviere, 08-509, p. 7 (La.App. 5 Cir. 2/25/09), 9 So.3d 233, 237. We note one error for review.

The multiple offender commitment/minute entry and the multiple offender sentencing transcript are inconsistent. The multiple offender commitment/minute entry has a clerical error indicating that the defendant was informed of his Boykin rights. However, the transcript shows the defendant did not enter a plea of guilty to the multiple bill, and therefore, was not informed of his Boykin rights.

This Court has previously found that even though clerical errors in the commitment that do not cause prejudice to a defendant’s rights do not merit reversal, the errors should be amended. State v. Delagardelle, 06-898, p. 11 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, 832, writ denied, 07-1067 (La.11/21/07), 967 So.2d 1154. Therefore, we remand the matter for correction of the multiple offender commitment/minute entry to reflect that the defendant was not informed of his Boykin rights in this matter. Id.

MULTIPLE OFFENDER FINDING AND SENTENCE AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.


author: CLARENCE E. McMANUS, Judge. ROTHSCHILD, J.,

text:
    Charles MEDNICK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 09-CA-183.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Leonard I. Cardenas, III, Scotty E. Chabert, Jr., Attorneys at Law, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Thomas C. Cowan, J. Roslyn Lemmon, Cowan & Lemmon, Attorneys at Law, Hahnville, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

laOn October 3, 2007, Mr. Mednick filed a petition for damages resulting from an automobile accident against State Farm Insurance Company, his uninsured/under-insured motorist insurance carrier. Med-nick alleges that on October 11, 2005, he was traveling on 1-10, when he was rear-ended by a vehicle operated by Thomas Klasson while Mr. Klasson was engaged in the course and scope on his employment with the United States Department of Agriculture. The record reflects that Mr. Mednick also filed a federal administrative action against Mr. Klasson and the United States Department of Agriculture under the Federal Torts Claims Act.

State Farm filed a motion for summary judgment, alleging that the accident was excluded from uninsured/underinsured motorist coverage by its policy issued, which excluded coverage for vehicles owned by governmental entities and vehicles owned by entities who are self-insured. The trial court granted the motion for summary judgment, finding that coverage was excluded because the vehicle in question was government owned, and further that coverage exclusion for government owned vehicles does not violate public policy.

Mednick appeals from this decision, alleging that the trial court erred in granting the motion for summary judgment. Mednick contends that the exclusion launder the uninsured motorist coverage of his policy against governmentally owned vehicles is void as a matter of law under public policy.

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate; whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; King v. Parish Nat’l Bank, 04-0337 (La.10/19/04), 885 So.2d 540, 545.

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. LSA-C.C. art. 2046; McMath Const. Co., Inc. v. Dupuy, 03-1413 (La.App. 1 Cir. 11/17/04), 897 So.2d 677, writ denied, 04-3085 (La.2/18/05), 896 So.2d 40.

Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions upon the obligations they contractually assume. However, exclusions contained within the policy that conflict with statutes or public policy will not be enforced. Marcus v. Hanover Ins. Co., 98-2040 (La.6/4/99), 740 So.2d 603, 606.

The policy at issue provides, in pertinent part, that

An uninsured motor vehicle under coverages U(uninsured motor vehicle) and UEO (“Economic-Only” Uninsured Motor Vehicle) does not include a land motor vehicle:
1. insured under the liability coverage on this policy;
2. furnished for the regular use on you, your spouse or any relative;
3. owned or operated by a self-insurer under any motor vehicle financial responsibility law, a motor carrier law or any similar law;
4. owned by any government or any of its political subdivisions or agencies;
5. designed for use mainly off public road except while on public roads; or
146. while located for use as premises.

State Farm urged two exclusions applicable to this case, a vehicle owned by a self-insurer, and a vehicle owned by a governmental agency. The trial court, in finding that there was no coverage under the policy, stated that

... the Motion for Summary Judgment ... is GRANTED as it has been established that the subject vehicle was government-owned and it has been determined that the relevant policy exclusion regarding government-owned vehicles is not against public policy.

The trial court did not reach the issue of whether defendant adequately proved that the vehicle was owned by a self-insurer.

Plaintiff alleges that the trial court erred in finding valid the exclusion for a vehicle owned by a governmental agency, which he contends is against public policy and therefore unenforceable.

R.S. 22:1295 sets forth the purpose of the uninsured/underinsured motorist provisions. In Marcus, swpra, 740 So.2d at 605, the Court said that

The Louisiana Motor Vehicle Safety Responsibility Law has as its purpose “the elimination of the reckless and irresponsible driver from the highways by requiring that owners and drivers of motor vehicles provide proof of financial responsibility.” In La. R.S. 22:655(D) [now R.S. 22:1295], the legislature expressly announced our state’s public policy regarding liability insurance by stating that liability policies are issued “for the benefit of all injured persons” and that it is the “purpose of all liability policies to give protection and coverage to all insureds.” The purpose of the compulsory automobile liability insurance law is not to protect the owner against liability, but to provide compensation for persons injured by the operation of insured vehicles. (Citations omitted.)

The purpose of UM coverage was discussed in Armand v. Rhodes, 96-15 (La.App. 3 Cir. 12/11/96), 685 So.2d 546, 549-550, unit denied, 97-0006 (La.3/21/97), 691 So.2d 81:

Under the terms of R.S. 22:1406(D) [now R.S. 22:1295], automobile liability insurance delivered or issued for delivery in Louisiana and | r,arising out of ownership, maintenance, or use of a motor vehicle registered in Louisiana and designed for use on public highways must provide uninsured/underinsured motorist (UM) coverage equal to the liability provided for bodily injury. The purpose of this statute is to protect insureds who become the innocent victims of uninsured/underinsured motorists’ negligence. Uninsured motorist coverage is intended to protect the insured at all times against the generalized risk of damages at the hands of uninsured motorists. The statute as amended indicates that the legislature intended to provide a full recovery for innocent accident victims by making their UM coverage the primary coverage when the tort-feasors are uninsured. (Citing Jones v. Henry, 542 So.2d 507, 508 (La.1989), superseded, by statu,te, Sandoz v. State Farm Mut. Auto. Ins. Co., 620 So.2d 441 (La.App. 3 Cir.1993)).

Uninsured motorist coverage is provided for by statute and. embodies a strong public policy. The object of such coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987); Burns v. Hetler, 02-1733 (La.App. 4 Cir. 2/26/03), 842 So.2d 1111, 1113, writ denied, 03-0720 (La.5/9/03), 843 So.2d 400.

Because the trial court did not reach the issue of whether UM coverage is excluded under the self-insured provision of the policy, we are limited in our review to the issue of whether the trial court correctly concluded that there was no UM coverage under the plaintiffs policy because the tortfeasor’s vehicle was government owned, and whether such a provision is against public policy.

We have found no recent cases from our jurisdiction that have addressed this issue. In the past, at least one Louisiana Court has found that a similar exclusion in a UM policy is not sanctioned by the UM statute. See Powell v. Allstate Ins. Co., 233 So.2d 38 (La.App. 2 Cir.1970).

Other states have found that such a provision is against public policy — after considering the basic principle behind UM coverage, namely that an insured is indemnified if unable to collect fully from the uninsured driver. Therefore, fallowing a policy to exclude UM coverage because of a class of vehicle (without proof of alternative coverage, like self-insurance), thwarts the legislature’s objective of UM coverage, that is allowing an insured indemnity on his own policy when the liability limits of the tortfeasor prevents him from full recovery for his injures. See for example State Farm v. Greer, 777 P.2d 941 (1989); Hillhouse v. Farmers Ins. Co., 226 Kan. 68, 595 P.2d 1102 (1979); Higgins v. Nationwide 291 Ala. 462, 282 So.2d 301 (1973).

In Cropper v. State Farm Mutual Automobile Ins. Co., 671 A.2d 423, 425 (Sup.Ct.Del. Kent County 1995), affirmed, State Fann v. Cropper, 676 So.2d 907 (Del.Supr.1995), the court stated that the legislative purpose of Delaware’s uninsured motorist statute was “the protection of innocent persons from the negligence of unknown or impecunious tortfeasors.” It then held that “State Farm’s exclusion of government-owned vehicles from its definition of uninsured vehicles limits the scope of uninsured motorist protection to less that that prescribed by statute.” At page 427.

In Nationwide Mut. Ins. Co. v. Hatfield,, 122 S.W.Sd 36, 42-43 (Ky.2003), the court stated that the intent of Kentucky’s Motor Vehicle Reparations Act in general and its underinsured motorist statute in particular was to “ensure as much as possible that the victim of a motor vehicle accident is fully compensated” and that Nationwide’s “policy provision seeking to exclude government-owned vehicles in contrary to the express intent of KMVRA and the Under-insured Motorist Statute.”

Considering the expressed intent of Louisiana’s insurance Code and it’s uninsured/underinsured motorist provisions, we now hold that the exclusion of government owned vehicles from uninsured/un-derinsured motorist coverage thwarts the expressed public policy of the statute setting forth the purpose of such |7coverage, namely to protect those innocent insureds who are harmed by an uninsured or under-insured tortfeasor.

Because we find that the exclusion from uninsured/underinsured coverage for government owned vehicles is contrary to public policy and therefore unenforceable, we find that the trial court erred in using this exclusionary language to find no coverage, and in granting State Farm’s motion for summary judgment, which effectively dismissed plaintiffs claim against it.

For the above discussed reasons, the trial court’s ruling granting summary judgment in favor of State Farm is reversed, and this matter is remanded for further proceedings. All costs of this appeal are assessed against State Farm.

REVERSED AND REMANDED.

ROTHSCHILD, J„ Dissents.

ROTHSCHILD, J.,

dissents.

hi disagree with the conclusion of the majority that the provision in the State Farm policy with regard to the applicability of uninsured motorist coverage to government-owned vehicles is in contravention of public policy.

The State Farm policy at issue in this case specifically excludes from uninsured motorist coverage vehicles “owned by any government or political subdivisions or agencies.” An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation set forth in the Louisiana Civil Code. Language in an insurance policy which is clear, expresses the intent of the parties and does not violate a statute or, public policy, must be enforced as written. Reynolds v. Select Props., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183; In Louisiana, uninsured motorist coverage is governed by La. R.S. 22:1295, which requires such coverage in automobile policies issued in the state “for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or un-derinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom ...”

My review of the matter reveals that plaintiff has failed to show that the provisions of the policy thwart the objection of this statute, i.e. the protection of the insured driver who is entitled to recover damages from |2owners of uninsured vehicles. There has been no showing that plaintiff is prevented from obtaining a full recovery for his damages from the governmental tortfeasor, and thus I fail to find any basis that the cited provisions of the insurance policy violate this state’s public policy protecting insured drivers.

In my view, the holding of the majority mandates the inclusion of government-owed vehicles within the umbrella of uninsured motorist coverage without 'any statutory authority therefor. Further, the holding amounts to a forced assumption by the insurer of a primary obligation of liability attributable to the governmental tortfeasor.

Finally, although the trial court did not rule on the issue of whether coverage is also excluded under the self-insured provisions of the policy, I find that the vehicle owner’s self-insured status is evident from the record and that State Farm is entitled to judgment as a matter of law on this basis.

For these reasons, I would affirm the judgment of the trial court and I must therefore dissent from the opinion of the majority.

      . LSA-R.S. 22:1295, formerly R.S. 22:680 was redesignated by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009. R.S. 22:680, formerly R.S. 22:1406(D), was redesignated by Acts 2003, No. 456, § 3. Amended by Acts 2008, No. 194, § 1.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    In re C.E.M., III.
    No. 09-CA-787.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Danyelle M. Taylor, Attorney at Law, Westwego, LA, for Plaintiff/Appellee.
    Michael H. Davis, Attorney at Law, Alexandria, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2This is an appeal from a judgment of the Jefferson Parish Juvenile Court granting a petition for intrafamily adoption. For the reasons stated herein, we affirm the judgment of adoption.

FACTS AND PROCEDURAL HISTORY

On September 8, 2006, the minor child, C.E.M., III was born to D.V. (now D.S. and hereinafter referred to as D.S.) and C.E.M., Jr. in Metairie, Louisiana. D.S. and C.E.M., Jr. lived together during D.S.’s pregnancy; however, the two were never married. In early December of 2006, approximately three months after the child’s birth, D.S. and C.E.M., Jr. separated at which time C.E.M., Jr. moved to Dallas, Texas, where his parents resided. Although the parties were not married, C.E.M., Jr. was listed on the birth certificate as the child’s father; and there is apparently no dispute that C.E.M., Jr. is the child’s biological father.

In January of 2007, D.S. began dating K.S., and the two were married on July 8, 2008. Thereafter, in March of 2009, K.S., along with D.S., filed a Petition for Intra-family Adoption seeking to have the minor child adopted by his stepfather, K.S. Pursuant to LSA-Ch.C. art. 1245, the adoption petition alleged that RC.E.M., Jr. “has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.” On April 17, 2009, Michael Davis, counsel for C.E.M., Jr. filed an Opposition to Petition for Intrafamily Adoption. The hearing was scheduled for May 6, 2009; however, the opposition to the adoption was dismissed by the court when C.E.M., Jr. and his attorney showed up several hours late. On May 11, 2009, Mr. Davis filed a Motion for New Trial, and the hearing on the opposition to the adoption of C.E.M., III was reset and held on May 18, 2009.

At the opposition hearing, the basic facts regarding the biological father’s contact with and support of his son were undisputed. According to copies of money orders entered into evidence by C.E.M., Jr., in 2007, he sent eight payments of $200 to D.S. for the care of C.E.M., III. The first support payment was sent in February, and the eighth payment was sent in October of 2007. In addition to these payments, C.E.M., Jr. testified that he maintained medical, dental, and vision insurance for his son.

With regard to visitation, C.E.M., Jr. had two visits with his son in the fall of 2007. On his first visit with C.E.M., III, nearly one year after the child’s birth, D.S. and C.E.M., Jr. met at a store in New Orleans, and C.E.M., Jr. took his son to Baton Rouge for the day. D.S. testified that C.E.M., Jr. picked their son up at about 5:00 p.m. and returned him at about 11:00 p.m. C.E.M., Jr. had asked if C.E.M., III could spend the night with him, but D.S. testified that she and her husband had to go to work the following morning and plans had already been made to transport the child to the babysitter’s and to school. C.E.M., Jr.’s next visit with his son occurred shortly thereafter. In December of 2007, D.S. took a trip to Dallas |4and brought C.E.M., III with her. On this occasion, C.E.M., Jr. had the opportunity to visit with his son for a couple of hours.

On March 27, 2008, C.E.M., Jr. filed a petition requesting a DNA test and further requesting that custody and visitation be determined. A hearing on that matter was set for May 13, 2008, but was continued until June 24, 2008. On June 4, 2008, D.S. filed a reconventional demand for child support. On June 9, 2008, the father’s attorney, Mr. Davis, sent the mother’s attorney, Ms. Taylor, a letter explaining that C.E.M., Jr. wished to seek a paternity test. Enclosed with this letter was a child support payment for C.E.M., III in the amount of $300. Both D.S. and C.E.M., Jr. agreed that this $300 was the last support check D.S. received from C.E.M., Jr. for the support of their son.

On June 24, 2008, D.S. and C.E.M., Jr. appeared before the 24th Judicial District Court on the matter of the DNA testing. At this time, D.S. offered to enter into a consent agreement regarding support and visitation; however, C.E.M., Jr. declined to enter into such an agreement until the results of the DNA test were known. Later that evening, C.E.M., Jr. had his third visit with his son at a McDonald’s. He apparently arrived late for this visit which lasted only about an hour. After the DNA test results confirmed that C.E.M., Jr. was the child’s biological father, Mr. Davis, on July 9, 2008, sent the mother’s attorney a letter asking that visitation be set. On August 6, 2008, Mr. Davis wrote D.S.’s attorney another letter requesting visitation for his client the weekend of August 15th. On August 11, 2008, Ms. Taylor responded that D.S. had not heard from C.E.M., Jr. and that C.E.M., Jr. should call D.S. to arrange specific times for visitation prior to his arrival. Later that month, C.E.M., Jr. had his fourth and final visit with C.E.M., III at a mall. This visit lasted between four and five hours.

|BAt the opposition hearing, C.E.M., Jr. provided his cellular phone records to show that he attempted to contact his son on his birthday on September 8, 2008. In his testimony, C.E.M., Jr. indicated that he attempted to visit his son on his birthday; however, it did not work out because D.S. was apparently returning to New Orleans after she had evacuated to Monroe due to a hurricane. C.E.M., Jr. also attempted to visit his son in October of 2008. He testified that he sent D.S. a text message advising her that he was in town and would like to visit his son. C.E.M., Jr. did not give her any advance notice that he would be in town. When D.S. received the text, she advised C.E.M., Jr. that the child already had plans to spend the day with her mother and sister who were in town visiting. She apparently offered C.E.M., Jr. the chance to see the child the following day; however, he was unable to change his return flight reservation to Dallas. In addition to the evidence regarding C.E.M., Jr.’s actual visits with the child, there was also evidence presented that C.E.M., Jr. was in Louisiana on numerous occasions and failed to contact or visit his son.

At the conclusion of the hearing, the juvenile court judge gave the parties an opportunity to file memorandum. Thereafter, on May 28, 2009, the juvenile court judge issued a judgment finding that pursuant to LSA-Ch.C.art. 1138, C.E.M., Jr. had failed to establish his parental rights to C.E.M., III; and therefore, his consent to the adoption of C.E.M., III by the stepfather was unnecessary. Accordingly, the judge denied the opposition to the adoption of C.E.M., III and set the matter for the final decree on the adoption. On June 15, 2009, the judge granted the adoption petition. C.E.M., Jr. now appeals from this judgment.

ISSUES PRESENTED

On appeal, C.E.M., Jr. argues that the juvenile court judge erred in denying his opposition and in granting the adoption. He specifically contends that the trial jyudge applied the wrong law in denying the opposition and further that petitioners did not meet their burden of proof on the petition for intrafamily adoption.

LAW AND ANALYSIS

With regard to the wrong application of the law, C.E.M., Jr. asserts that the trial judge’s use of LSA-Ch.C.art. 1138 dealing with surrender of parental rights was incorrect and put the burden on him to prove his parental rights. C.E.M., Jr. argues that, since this is an intrafamily adoption, LSA-Ch.C. art. 1245, which places the burden on petitioner, should have been used in the adjudication of this case. C.E.M., Jr. asserts that since his name is on the birth certificate as the father, his right to consent or not consent is established by LSA-Ch.C.art. 1245 C(2). We agree with this particular portion of C.E.M., Jr.’s argument.

A similar argument was raised by the child’s biological father in the case of In re J.R.C., 03-0761 (La.App. 5 Cir. 11/12/03), 861 So.2d 681. This court was not persuaded by the biological father’s argument. This court determined that the trial court correctly applied the provisions of LSA-Ch.C. art. 1138 as provided for in LSA-Ch.C.art. 1247 C because the biological father did not meet the criteria for a person whose consent or relinquishment is required under LSA-Ch.C. art. 1193. However, that case is distinguishable from the one presently before this court. In the case of In re J.R.C., the biological father was not named on the birth certificate and further, he had not established his parental rights in accordance with the Louisiana Children’s Code or had his paternity determined by a judgment of filiation.

In the present case, C.E.M., Jr. is named as the child’s father on the birth certificate. There was never any dispute between the parties that C.E.M., Jr. is the child’s father, and a subsequent DNA test confirmed that fact. Pursuant to LSA-Ch.C. art. 1243 C(2), dealing with intra-family adoptions, a “parent recognized as |7having parental rights includes not only an individual enumerated in Article 1193, but also .... a father whose name or signature appears on the child’s birth certificate as the child’s father.” Therefore, the child’s father clearly had parental rights and should not have been forced to establish those parental rights. Thus, the trial judge erred in applying the provisions of LSA-Ch.C. art. 1138 and in placing the burden of proof on the child’s father to establish his parental rights.

When a legal error occurs and a trial court applies incorrect principles of law, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Johnson v. Spurlock, 07-949 (La.App. 5 Cir. 5/27/08), 986 So.2d 724, 727-728, writ denied, 2008-1400 (La.7/25/08), 986 So.2d 670. Accordingly, we will now conduct a de novo review applying the correct principles of law.

As a general rule, the consent of the biological father is required for an intrafamily adoption by the stepfather. LSA-Ch.C. art. 1193; In re V.A.H., 07-472 (La.App. 5 Cir. 12/27/07), 972 So.2d 479, 483. However, under certain circumstances such consent may not be required. LSA-Ch.C. art. 1245 provides, in pertinent part, as follows:

The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

| ^Pursuant to LSA-Ch.C. art. 1245, the party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law. In re V.A.H., 972 So.2d at 483. Based on our de novo review of the record, we find that the petitioners met their burden of proving that the biological father’s consent to the adoption was unnecessary based on his failure to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

The evidence introduced at the hearing regarding C.E.M., Jr.’s contact with the child is undisputed. From the time of the child’s birth, C.E.M., Jr. has visited the child on four, or possibly five, occasions. At the hearing, there was an indication that C.E.M., Jr. visited his son in January of 2007; however, no details regarding this visit were developed, and the juvenile court judge does not reference it in her reasons for judgment. After this possible visit, C.E.M., Jr.’s first visit with his son was in October of 2007, at which time he took his son to Baton Rouge for several hours. The second visit occurred in the December of 2007 when D.S. took C.E.M., III to Dallas. The third visit, which lasted about an hour, took place on June 24, 2008, when C.E.M., Jr. was in town for a hearing in the 24th Judicial District Court. His fourth and final visit took place with C.E.M., III in August of 2008. He visited with the child at a mall, and the visit lasted about four and a half hours. He also attempted to make contact and set up a visit with the child on his birthday on September 8, 2008; however, D.S. was unable to accommodate him as she was in the process of returning to New Orleans following evacuation for a hurricane. C.E.M., Jr. also sent a text message to D.S. in October of 2008 trying to arrange a visit. D.S. advised him that the child already had plans with her mother and sister who were in town visiting; however, she offered to set up a visit for the following day. C.E.M., Jr., was unable to change his plane reservation, and the | gvisit never occurred. Also, pursuant to questions asked by D.S.’s attorney, C.E.M., Jr. admitted that he was in Louisiana on multiple occasions but did not attempt to contact or visit his son.

The record clearly shows that C.E.M., Jr. did not see his son from January 2007 to October 2007, a period in excess of six months. Also, he did not see his son from December 2007 until June 24, 2008, a period of six months. Finally, his last visit with his son was in August of 2008, with the last attempted contact being in October 2008. Therefore, there were three time periods where C.E.M., Jr. failed to visit, communicate or attempt to communicate with his son for six months. Accordingly, based on our review of the proceedings, we find that petitioners met their burden of proving C.E.M., Jr.’s consent to the adoption was unnecessary based on his failure to visit, communicate, or attempt to communicate with his child without just cause for a period of six months.

C.E.M., Jr. argues that his filing of the petition in the 24th Judicial District Court to determine paternity, custody, and visitation interrupts the six month prescriptive period. A similar argument was rejected by this court in In re Intra Family Adoption of A.G.T., 06-805 (La.App. 5 Cir. 3/18/07), 956 So.2d 641, writ denied, 2007-0783 (La.5/4/07), 956 So.2d 611. This court agreed with the trial court’s determination that the biological father’s filing of a rule for visitation in the district court did not interrupt the six month time period set forth in LSA-Ch.C. art. 1245. This court noted that the biological father had resources and opportunity to discover that his daughter and her mother had returned to and were living in their home in Metair-ie. Thus, he could have both paid child support and contacted or visited with his daughter, but he did not do so; and he did not establish just cause for his failures. Likewise, in the present case, the mere filing of the petition does |,0not interrupt the six month time period where C.E.M., Jr. could have contacted or visited with his child but failed to do so without just case.

Lastly, we must address the best interests of the child. Even upon a finding that a parent has lost his right to consent to the adoption, the adoption should only be granted when it is also found to be in the best interests of the child. In re V.A.H., 972 So.2d at 484. The court is to hear and take into consideration information from all sources concerning the intra-family adoption, and the basic consideration shall be the best interests of the child. LSA-Ch.C. art. 1255 A; In re B.E.S., 08-777 (La.App. 5 Cir. 5/6/09), 15 So.3d 133, 136.

Based on our review, we find that the adoption is in the best interests of the child. We agree with the following reasons expressed by the juvenile court judge:

C.E.M. Jr. testified that he believes that all children should know them fathers and admitted that he has made some mistakes. However, D.S. testified that C.E.M. Jr. has no relationship with C.E.M. Ill and that C.E.M. Jr. is a “stranger” to their son. She also testified that C.E.M. Ill’s stepfather, K.S., is very involved in C.E.M. Ill’s life. D.S. stated that K.S. is the only father C.E.M. Ill knows and that K.S. has been there for all hospital visits, special occasions, and daily activities. D.S. stressed strongly that she believes that consistency is important in a child’s life and that C.E.M. Jr. has been nothing but inconsistent in his efforts to establish a relationship with their son. This Court agrees. C.E.M. Jr. has had endless opportunities to establish and maintain a relationship with his son and has failed to do so. D.S. has done nothing to thwart their relationship. She has made C.E.M. Ill available for visitation, has offered C.E.M. Jr. visitation two weekends a month, and even testified that she would prefer for this to be an “open adoption” as she wants her biological son to know his biological father. It is in this child’s best interest that he is raised in a stable environment and that he has a father who places C.E.M. Ill’s needs before his own.

In addition, we have taken into account the testimony of K.S. at the adoption hearing that he has a strong bond with C.E.M., Ill, and that they love each other and get along very well. He testified that he has cared for C.E.M., Ill on a daily basis since his marriage to D.S., that he would be a consistent father figure to the child, and that he refers to C.E.M., Ill as his son. He expressed his desire to adopt C.E.M., Ill as well as his willingness to accept all legal obligations of a parent to a l^child. Also, at the adoption hearing, D.S. testified as to the wonderful relationship between K.S. and C.E.M., III. She also testified that K.S. has been connected to her son since he was about three months old, that C.E.M. Ill calls K.S. “dad,” and that C.E.M., Ill has never known anyone else as “dad.”

For the reasons set forth herein, we find that pursuant to LSA-Ch.C. art. 1245, petitioners proved that C.E.M., Jr.’s consent to the adoption of C.E.M., Ill was unnecessary based on his failure to visit, communicate, or attempt to communicate with his son for a period of at least six months. Accordingly, we affirm the judgment of the Jefferson Parish Juvenile Court granting the adoption of C.E.M. Ill by his stepfather.

AFFIRMED.

      . The facts and procedural history set forth herein are largely taken from the reasons for judgment issued by the juvenile court judge.

      . It appears from the testimony that this visit occurred in October of 2007.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Anthony Wayne LEWIS, Appellant.
    No. 45,057-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Frank E. Brown, Jr., Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Robert Lane Pit-tard, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, where the defendant, Anthony Wayne Lewis, pled guilty to a fourth offense for operation of a motor vehicle while under the influence of alcohol (“DWI”), a violation of La. R.S. 14:98(E). He was sentenced to 20 years at hard labor and fined $5,000.00. Lewis now appeals. For the following reasons, his sentence and conviction are affirmed.

FACTS

On May 30, 2008, Lewis ran into the back of another vehicle causing a three-car-crash while traveling in Bossier Parish. Police officers were called to the scene. Due to a degenerative hip problem, Lewis could not perform a field sobriety test but voluntarily blew into a breathalyzer and registered a 0.298. Pursuant to La. R.S. 14:98(A)(l)(b), the legal limit is 0.08. Lewis was immediately arrested.

On November 7, 2008, Lewis pled guilty to fourth offense DWI. He was sentenced to 20 years at hard labor and fined $5,000.00. In addition, he was recommended for a substance abuse treatment center. In open court, the defense objected to the sentence as being excessive and the objection was noted. The defense did not file a motion to reconsider the sentence. However, when an objection is made to the sentence, and it alerts the court to the matter in contention, a motion to reconsider need not be filed. State v. Caldwell, 620 So.2d 859 (La.1993). This appeal ensued.

JjDTSCUSSION

In his first assignment of error, Lewis argues that the sentence is excessive. Lewis argues that he is an incurable alcoholic and that incarceration will not change this. Further, he argues that he has not received a DWI in six years and the court should be lenient.

Louisiana R.S. 14:98(E)(l)(a) states, in pertinent part:

[A] conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary ... the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Seventy-five days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57 and 2004-2380 (La.06/03/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379.

In this case, the trial court reviewed the presentence investigation (“PSI”) report in great detail, and clearly considered many factors embodied within La. C. Cr. P. art. 894.1 including: the defendant’s employment history; prior convictions; inability to respond to rehabilitation; and the ¿seriousness of driving while intoxicated. The trial court astutely noted that the defendant repeatedly endangered the life of himself and others while driving in an impaired state. The maximum possible sentence for a 4th offense DWI is 30 years’ imprisonment and a $5,000.00 fine. La. R.S. 14:98(E). Lewis received a mid-range sentence despite at least six prior convictions for driving while intoxicated; this sentence does not shock the sense of justice. This assignment is therefore without merit.

Lewis also argues that the trial court erred by denying him the benefit of the “new law” which favors rehabilitation. According to Lewis, the state should have had to prove that he had already received this benefit. In discussing the benefit of the “new law,” the trial court referred to a prior version of La. R.S. 14:98. The trial court referred to the 2003 version of La. R.S. 14:98(E)(l)(a) which was amended by Acts 2004, No. 762, and stated, in pertinent part:

[A] conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.

Lewis did receive this benefit for one of his convictions in 2003. However, this argument is not dispositive since this benefit no longer exists; therefore, the trial court did not err by not requiring the state to prove the defendant had already received this benefit. Since the “new law” Lewis | ¿refers to was not in effect at the time of the instant offense this argument is without merit.

Lewis also argues that the state should have had to prove his prior DWI convictions. When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant’s plea. State v. Orozco, 609 So.2d 1043, 1046 (La.App. 2d Cir.1992).

Here, Lewis does not dispute that he pled guilty to being a fourth offender. Nothing suggests that any further inquiry into the prior convictions was required. Therefore, it was not necessary to prove the prior convictions as part of the factual basis for the instant conviction. Furthermore, a validly entered guilty plea waives any right a defendant might have had to question the merits of the state’s case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Hardy, 39,233 (La.App. 2d Cir.01/26/05), 892 So.2d 710.

Finally, Lewis argues that the trial court erred in not following the recommendation set forth in the PSI, namely the option to suspend part of the sentence. Although a PSI report is helpful, it is not binding. A trial court, having properly considered the guidelines, has complete discretion to reject them and impose any sentence which is not constitutionally excessive, provided it states for the record the considerations taken into account and the factual basis for the imposition of sentence. State v. Woodman, 28,004 (La.App. 2d Cir.01/24/96), 666 So.2d 1255, unit denied, 1996-0489 (La.05/03/96), 672 So.2d 696. See also, State v. Maschek, 1997-0023 (La.App. 1st Cir.12/29/97), 705 So.2d 1192; State v. Thomas, 596 So.2d 327 (La.App. 3d Cir.1992).

Here, the PSI’s recommendation stated, “Should the court determine that it would be in the best interests of the defendant and society to afford him the privilege of a suspended sentence.... ” (Emphasis added.) Clearly the language is suggestive-not mandated. The PSI further stated that the defendant’s habitual driving while intoxicated poses a “significant threat to public safety.” We agree. Notably, Lewis had a blood alcohol reading that was three times the legal limit. Furthermore, Lewis has obviously had several “benefits” as he has been allowed to get back on the road only to repeat the same behavior. While we understand that alcoholism is a disease, driving while intoxicated is a criminal offense.

The trial court took several factors into consideration including the PSI and sentenced Lewis within the statutory sentencing range for the convicted offense. Given that a trial court has wide discretion, absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983). Therefore, this assignment of error has no merit.

CONCLUSION

For the foregoing reasons, Anthony Wayne Lewis’s conviction and sentence are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    MOBIL OIL EXPLORATION AND PRODUCING SOUTHEAST, INC., Plaintiff-Appellee v. LATHAM EXPLORATION COMPANY, INC., et al., Defendants-Appellants.
    No. 44,996-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 3, 2010.
    Shuey & Smith, by John M. Shuey, Jr., for Defendant, First Appellant, Latham Exploration, and Defendant/Appellee, James A. Latham.
    Hargrove, Smelley, Strickland & Langley, by Glenn L. Langley, for Defendants, Second Appellants, Max Story, Reliance Drilling and Michael Rippetoe.
    Thomas N. Keiffer, Sr., for Plaintiff/Ap-pellee, Mobil Oil.
    Napper, Madden & Rogers, by Thomas W. Rogers, for Defendants/Appellees, the Garrett heirs.
    Daigle, Fisse & Kessenich, by D. Stephen Brouillette, Jr., for Defendants/Ap-pellees, the Daniel heirs.
    Newell & Newell, by Daniel W. Newell, for Defendants/Appellees, John Welsh, Kerry Welsh and Welsh Oil Co.
    Before BROWN, WILLIAMS; and LOLLEY, JJ.
   BROWN, Chief Judge.

11 Defendants, Latham Exploration Company, Inc., and Max Story, Reliance Drilling and Michael Rippetoe, appeal from the judgment of the trial court dismissing their motions for summary judgment and granting the motion for summary judgment of another defendant, Welsh Oil Company, Inc. For the following reasons, we affirm.

Facts and Procedural Background

Mobil Oil Exploration and Producing Southeast, Inc. (“MOEPSI”), filed a petition in a concursus proceeding on January 17, 2006, in order to determine the ownership of production revenues totaling $74,901.43 from 1993 to 2002. On April 28, 2009, MOEPSI filed a motion to deposit an additional $12,637.07 in production revenues into the registry of the court. The trial court granted the motion on May 5, 2009.

Named as defendants in MOEPSI’s original and supplemental petitions were 17 individuals and/or entities with possible ownership claims to the mineral rights of an 11-acre tract of land in Claiborne Parish, Louisiana, originally owned by Valton and Rua Garrett (“the Garretts”). The large number of potential owners is a result of the Garretts executing three different oil and gas leases covering their 11-acre tract in 1981,1982, and 1990.

The 1981 Lease

The first lease, executed on June 2, 1981, between the Garretts and Jack Daniel, was for a primary term of one year, and thereafter as long as there was production from the leased land or from lands pooled therewith. Jack Daniel assigned an 81.25% working interest in the lease to LathamJjExploration Company, Inc. (“La-tham”), on September 1, 1981. On May 28, 1982, five days prior to the end of the one-year primary term, Latham executed a “Declaration of Unitization” which covered the 1981 lease of the Garretts’ 11-acre tract and included a portion of other land on which a producing well, the L. Giddens # 1 Well, was located. The declaration, however, was signed only by La-tham, and it was not filed until June 8, 1982, six days after the end of the primary term.

The 1982 Lease

On June 2, 1982, the last day of the first lease’s primary term, Latham executed a second oil and gas lease with the Garretts, covering the same 11-acre tract. The primary term for this lease was six months, and thereafter as long as there was production from the leased land or from lands pooled therewith. Within the six-month primary term Latham executed two declarations of unitization, both purporting to unitize the same 40-acre area for the L. Giddens # 1 Well. The first declaration, filed for record on July 15, 1982, was executed by Latham and Robert Sawyer, who together purported to be the owners (to the extent necessary to execute the declaration) of the oil and gas leases covering the lands in the declared unit. The second declaration, recorded August 13, 1982, was signed by Latham, on behalf of Lexco 81-2 Drilling Program (“Lexco”), and Sawyer, as well as five other parties, and together they purported to be the owners (to the extent necessary to execute the declaration) of the oil and gas leases covering the lands in the declared unit. “Exhibit A” of both declarations, however, referenced the 1981 lease to describe the Garretts’ land covered by |sthe unit. Subsequent to filing the declarations, on September 28, 1982, Latham assigned its interest in the 1982 lease to Lexco. Latham, a Delaware corporation, was the managing partner of Lexco, an Oklahoma limited partnership. On December 27, 1993, Lexco assigned its interest in the 1982 lease to John and Kerry Welsh, who shortly thereafter assigned their interest to Welsh Oil Company, Inc. (collectively “Welsh”).

The 1990 Lease

The third lease, which was executed on June 1, 1990, between the Garretts and Jim and Mary Love, covered the same 11-acre tract and had a primary term of two years.

On February 2, 2009, Welsh filed a motion for summary judgment claiming that the 1981 lease expired, that the 1982 lease was valid, and consequently, that it was entitled to the production revenues deposited into the court registry. In response, Latham filed an opposition to Welsh’s motion for summary judgment, and alternatively, filed its own motion for summary judgment asserting that the 1981 contract was the valid lease covering the 11-acre tract. A third motion for summary judgment was filed by defendants Max Story, Reliance Drilling and Michael Rippetoe (collectively “Story”), who acquired an interest in the 1981 lease in an area |4of mutual interest agreement, and it asserted only that the 1982 lease had expired.

A hearing on the motions was held on April 20, 2009. Based upon its finding that the 1981 lease had expired and that the 1982 lease was valid, the trial court granted Welsh’s motion for summary judgment, and denied Latham’s and Story’s motions, declaring Welsh’s entitlement to the production revenues deposited in the court registry. Latham and Story have appealed from this judgment.

Discussion

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Martin v. JKD Investments, LLC, 42,196 (La.App.2d Cir.06/20/07), 961 So.2d 575. A motion for summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

The underlying basis of this dispute is determination of the validity of the 1981 lease and/or the 1982 lease. As appellants have argued, a determination that the 1981 lease expired does not therefore render the 1982 lease valid. Nor does the mere fact that Latham executed a second lease with the Garretts mean that Latham believed that the first lease had expired, 15as it is common in the oil and gas industry to execute top leases. Top leases are leases granted by landowners during the existence of another mineral lease that become effective if and when the existing lease expires or is terminated. Accordingly, the first step we must undertake is to determine whether, as a matter of law, the 1981 lease expired on June 2,1982.

A mineral lease terminates at the expiration of the agreed term or upon the occurrence of an express resolutory condition. La. R.S. 31:138. In the 1981 lease at issue, the primary term was one year, and thereafter as long as there was production from the leased land or from lands pooled therewith. Since there was never any production from the Garretts’ 11-acre tract, we must determine whether the 1981 lease was properly pooled with a producing land within the one-year primary term. To make this determination we must analyze the provision within the lease pertaining to pooling.

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. La. C.C. art. 2050. In the event of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La. C.C. art. 2056.

Clause 7 of the 1981 lease states, in pertinent part:

Lessee is hereby granted the right as to all or any of the land described herein, without Lessor’s joinder, to combine, pool or Ifiimitize the acreage royalty or mineral interests covered by this lease, or any portion thereof, with any other land, lease or leases, royalty or mineral interests in or under any other tract or tracts of land in the vicinity thereof, whether owned by Lessee or some other person, or corporation so as to create, by the combination of such lands and leases, one or more operating units ... Lessee shall execute in writing and file for record in the records of the Parish in which the lands herein leased are located, an instrument identifying or describing the pooled acreage.... (Emphasis added).

The “Declaration of Unitization” that was drafted with the intent of pooling the Garretts’ 1981 lease with, among others, a lease covering an adjoining tract of land on which there was a producing well, was executed on May 28, 1982. The declaration, however, was not filed for record until June 8, 1982. Thus, we are left to determine the effective date of a declaration when the lease required a lessee to both execute in writing and file for record an instrument identifying or describing the pooled acreage.

Appellants argue that the lease does not specifically state that the unitization agreement must be filed prior to the end of the primary term in order to maintain the lease, and, as such, the May 28, 1982, execution of the agreement was sufficient. While we recognize that the lease does not state that the instrument must be filed prior to the end of the primary term, we note that it does require the lessee to file the instrument for record. Thus, re-cordation of the executed writing was a prerequisite to effectively pool the Gar-retts’ land with the other lands and/or leases in the declaration.

The terms of the lease are clear: since there was never any mineral production on the Garretts’ land, the only way for La-tham to have maintained the 1981 lease beyond its primary term would have been by successfully pooling the Garretts’ land with land in which there was | production. In order to do that, Latham was required to execute a written instrument identifying or describing the acreage to be pooled and file the instrument for record. The lease did not give the lessee the option of only executing a written instrument; it clearly required that both acts be performed. Therefore, as it applies to the 1981 lease, the declared unit could not have gone into effect until both required acts were performed, which was on June 8, 1982. See Union Gas Corp. v. Zion Lutheran Church of Mission Valley, No. 13-01-742-CV, 2003 WL 22478927 (Tx.App. Corpus Christi-Oct. 30, 2003) (citing Cummings: “Pooling Issues-Avoiding Pitfalls,’’ 1995 State Bar of Texas Advanced Oil, Gas & Mineral Law Course (stating that “[i]f the pooling clause requires recordation, it is not effective until actually filed in the appropriate county; execution and acknowledgment is insufficient.”)).

Accordingly, we find that because there was neither any production on the Gar-retts’ 11-acre tract, nor a successful pooling of lands therewith by June 2, 1982, the 1981 lease expired. As such, the trial court did not err by dismissing Latham’s motion for summary judgment.

Finding that the 1981 lease expired, we must now determine if, as Story argues, the 1982 lease expired at the end of its primary term as well. The 1982 lease was the same standard Bath form oil and gas lease as the 1981 lease. All provisions were the same, with the exception of the 1982 lease being for a primary term of six months. As was the case for the 1981 lease, there was never any production from the Garretts’ land. Therefore, |Kwe again must determine whether Latham unitized the Garretts’ land with land in which there was production prior to the end of the primary term.

We will limit our review to the issue of whether, by way of the 1982 lease, Latham effectively pooled the Garretts’ land with producing land, and thereby maintained the 1982 lease beyond its primary term.

Because there is not an issue of whether the other lands and/or leases to be pooled with the Garretts’ were done in conformity with each lease’s respective pooling clause, the scope of our review is confined to the 1982 lease, and more specifically the pooling provision contained therein, to determine whether the declarations of unitization conformed therewith. Thus, with all other lands and/or leases in the declared unit being validly pooled, all that is required to sufficiently pool the Garretts’ land into the declared unit is a declaration of unitization that adheres to the requisites set out in the 1982 lease’s pooling clause.

Clause 7 of the 1982 lease states that the “[l]essee shall execute in writing and file for record in the records of the Parish in which the lands herein leased are located, an instrument identifying or describing the pooled acreage ....” Based upon this provision, it is clear that reference to a particular lease was not a requirement to unitize the Garretts’ land. All that was required was the lessee executing and filing an instrument that identified or described acreage to be pooled.

The declarations of unitization at issue contained two separate exhibits: “Exhibit A,” which listed the leases, including the 1981 lease, and | ¡¡“Exhibit B,” a descriptive map of the lands to be pooled. Moreover, “Exhibit A” specifically stated its purpose in relation to “Exhibit B”: “Insofar and only insofar as the following leases describe lands covered by that certain 40.00000 acre unit outlined in Exhibit ‘B’ attached hereto.” Based upon the foregoing exhibits, it is clear that the acreage to be pooled was identified in the declarations. Furthermore, we note that regardless of the erroneous reference to the 1981 lease, the declarations were signed by La-tham, and Latham was still the leasehold owner of a valid and subsisting lease (the 1982 lease) covering the Garretts’ 11-acre tract. As such, the declarations of unitization, once executed and filed, met the criteria set forth in the lease to effectively pool the Garretts’ 11-acre tract with the other lands in the declared unit. Therefore, since the 1982 lease and the declarations of unitization that pooled the Garretts’ land with producing land were filed prior to December 2, 1982, the 1982 lease did not expire at the end of its primary term.

Accordingly, we find that the trial court did not err in holding that the 1982 lease was the valid lease, and consequently, that Welsh was entitled to the production revenues being held in the court registry.

Lastly, we address Latham’s assignment of error regarding the trial court’s response to its request for written findings of fact and reasons for judgment. After the judgment of the trial court was rendered, Latham filed |ina request for written reasons in accordance with La. C.C.P. art. 1917. In response, the trial court had its oral reasons transcribed, and, as transcribed, made its written findings of fact and reasons for judgment. The costs of the transcription were assessed to Latham.

When a party alleges that a trial court failed to comply with a timely request for written reasons for judgment under La. C.C.P. art. 1917, the proper remedy for the aggrieved party is to apply for supervisory writs or move to have the case remanded so that the trial court may have an opportunity to comply with the request. Anders v. Boudion, 93-894 (La.App. 5th Cir.03/29/94), 636 So.2d 1029. Here, Latham has done neither. In fact, Latham’s argument on this assignment of error is perplexing in that it does not seem to seek any recourse. It merely posits that the trial court erred. Regardless, we find that this assignment of error is without merit. See Smoloski v. Smoloski, 01-0485 (La.App. 3d Cir.10/03/01), 799 So.2d 599 (holding that the appellant’s assignment of error regarding the trial court’s failure to comply with La. C.C.P. art. 1917 was without merit since appellant failed to seek supervisory writs or move for remand, as well as because the trial court had its oral reasons transcribed and included in the record).

Conclusion

For the reasons stated above, the judgment of the trial court dismissing the motions for summary judgment of defendant-appellant, Latham Exploration Company, Inc., and defendant-appellant, Max Story, Reliance Drilling and Michael Rippetoe, are affirmed. Further, the | ^judgment of the trial court granting the motion for summary judgment of defendant-appellee, Welsh Oil Company, Inc., is also affirmed. Costs of this appeal are assessed equally to appellants.

      . In the same assignment instrument, Lexco assigned to Welsh its interest in the L. Gid-dens # 1 Well, as well as its interest in tire other four leases listed on "Exhibit A” of the July 15 and August 13 declarations of unitization.

      . Both the 1981 lease and the 1990 lease had subsequent assignments that, for the purposes of this appeal, are irrelevant.

      .Story contends in their appellate brief that if both the 1981 lease and the 1982 lease are invalid, then they would still be entitled to a portion of the production revenues under a valid 1990 lease.

      . We note that the validity of the other leases declared, and the declarations' conformity with those leases' pooling provisions, have not been called into question.

      . Because the “Declaration of Unitization” filed on July 15, 1982, was executed by La-tham, the lessee at the time, and because there has been no argument made by any party to cast doubt on its legitimacy, we pre-termit any discussion regarding the sufficiency of the subsequent “Declaration of Unitiza-lion” signed by Latham, on behalf of Lexco, prior to Lexco being assigned the 1982 lease. This pretermission is based on the fact that the July 15, 1982, "Declaration of Unitization” sufficed on its own to maintain the 1982 lease beyond its primary term.