text:
    Randal BOUDREAUX v. COMMERCE AND INDUSTRY INS. CO., et al.
    CA 18-322
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Gregory Paul Marceaux, Marceaux Law Firm, 2901 Hodges St., Lake Charles, LA 70601, (337) 310-2233, COUNSEL FOR PLAINTIFF/APPELLEE: Randal Boudreaux
    Robert I. Siegel, Michael Edward Hill, Tara E. Clement, Gieger, Laborde & Laperouse, L.L.C., 701 Poydras Street, Suite 4800, New Orleans, LA 70139-4800, (504) 561-0400, COUNSEL FOR DEFENDANT/APPELLANT: Commerce and Industry Insurance Company
    Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   EZELL, Judge.

Commerce and Industry Insurance Company appeals a trial court judgment which granted a partial motion for summary judgment in favor of Randal Boudreaux and denied its motion for summary judgment. The trial court determined that Randal was a permissive user when he was driving a truck owned by owned by AES Drilling Fluids, LLC, which was covered by an uninsured/underinsured (UM) insurance policy issued by Commerce. The issue raised on appeal is whether Randal's son, Micah Boudreaux, had the authority to give permission to Randal to drive the truck.

FACTS

Micah worked for AES and was given a truck to use as part of his job. On April 2, 2015, Micah was working on the water well at his house in Lake Charles. His father was living with him at the time, so he asked his father to take the truck and go to Lowe's to get some parts he needed. While at Lowe's, Randal ran into a friend who needed a ride home. Randal was on his way to drop the friend off when he stopped south of the intersection of Common Street and Madeline Street and was rear-ended by Keigan Hanks. Randal alleges he received injuries because of the accident.

Randal filed suit against Keigan and her insurer, State Farm Mutual Automobile Insurance Company. He also filed suit against Commerce, the UM insurer of AES. Subsequently, AES filed a motion for summary judgment seeking dismissal from the lawsuit. Randal then filed a partial motion for summary judgment claiming that he is an insured under the Commerce policy as a permissive driver.

A hearing on the cross motions for summary judgment was held on November 28, 2017. Denying Commerce's motion for summary judgment and granting Randal's partial motion for summary judgment, the trial court held that Randal was a permissive user under the Commerce insurance policy. Judgment was signed on January 3, 2018, declaring the judgment to be a final judgment. Commerce then appealed the judgment to this court.

SUMMARY JUDGMENT

A moving party is entitled to summary judgment when it shows that there are no genuine issues of material fact and that it is "entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). Summary judgment is favored by law and provides a vehicle by which "the just, speedy, and inexpensive determination" of an action may be achieved. La.Code Civ.P. art. 966(A)(2).

Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City , 2010-2828 (La. 7/1/11), 65 So.3d 1263, 1267 ; Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880, 882 ; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority , 2002-1072 (La. 4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-66.
On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See La. C.C.P. art. 966(D)(1) ; see also Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.

Larson v. XYZ Ins. Co. , 16-745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416.

DISCUSSION

Commerce argues that the trial court erred in finding that Randal had permission to use the truck and was insured under the Commerce insurance policy. Randal argues that he is an insured under the policy for contractual UM coverage, as he had express or implied permission to "occupy" the truck.

When the existence of UM coverage under a policy of automobile insurance is at issue, ... a two-step analysis [is required]: (1) the automobile insurance policy is first examined to determine whether UM coverage is contractually provided under the express provisions of the policy; (2) if no UM coverage is found under the policy provisions, then the UM statute is applied to determine whether statutory coverage is mandated.

Green ex rel. Peterson v. Johnson , 14-292, p. 9 (La. 10/15/14), 149 So.3d 766, 773-74.

"[A]n insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code." Id. at 770 ; La.Civ.Code arts. 2045 - 2057. "According to those rules, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties' common intent; this analysis is begun by reviewing the words of the insurance contract." Id. at 770-71.

The Louisiana endorsement under the Commerce policy provides as follows:

B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
....
2. A partnership, limited liability company, corporation or any other form of organization, then the following are "insureds":
a. Anyone "occupying" with the Named Insured's express or implied permission a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.
....
F. Additional Definitions
As used in this endorsement
....
2. "Occupying" means in, upon, getting in, on, out or off.

A passenger "occupying" a vehicle is "using" the vehicle and is an insured under the terms of policy entitled to UM coverage. Bernard v. Ellis , 11-2377 (La. 7/2/12), 111 So.3d 995 ; Stunkard v. Langlinais , 97-1006 (La.App. 3 Cir. 2/4/98), 708 So.2d 1117.

"AES DRILLING FLUIDS, LLC" is listed as the named insured under the policy. At the time of the accident, Randal was in the truck and using the truck, so therefore, he was "occupying" the truck. Under the clear terms of the Commerce policy, Randal is an insured if he had express or implied permission of the named insured, AES Drilling Fluids, LLC. Commerce disputes that Randal had its express or implied permission to drive the truck.

Permission may be either express or implied. In the absence of express permission, implied permission generally arises from a course of conduct by the named insured involving acquiescence in, or lack of objection to, the use of the vehicle. Francois v. Ybarzabal , 483 So.2d 602 (La.1986). Whether an automobile is operated with the express or implied permission of the named insured is to be determined according to the facts and circumstances of each particular case. Malmay v. Sizemore , 493 So.2d 620 (La.1986).

Stunkard , 708 So.2d at 1120.

"The question of whether the vehicle's use was permitted is answered by determining whether it was reasonably foreseeable that the first permittee would allow someone else to drive the automobile." Mahaffey v. State Farm Mut. Auto. Ins. Co. , 95-641, p. 4 (La.App. 3 Cir. 2/28/96), 679 So.2d 129, 131, writ denied , 96-1689 (La. 10/11/96), 680 So.2d 650. "Where the named insured gives permission to another to use the car as his own, the possibility that the permittee might allow another to drive the automobile is clearly foreseeable." Id. "Even where there has been express prohibition against third drivers, it may be reasonably foreseeable that the initial permittee would allow another to use the car. The context in which the prohibition is made is a necessary ingredient in determining reasonable foreseeability." Id. at 132. "[T]he issue of coverage is subject to a reasonable foreseeability test. When applying such a test, we must look at all factors involved." Id.

In Mahaffey , this court found implied permission when an employee allowed his girlfriend to drive the car after the employer had orally admonished him not to let anyone else drive the car. In the present case, Commerce did put such a restriction in writing. Commerce presented evidence of its Human Resources Policy 17.0 Driving Rules and Guidelines, which was signed by Micah on August 13, 2014, and stated:

It is the policy of AES Drilling Fluids;[sic] LLC that only authorized operators or drivers are allowed to drive company owned or leased vehicles.
All vehicles are primarily for business use. Vehicles are provided for expressed business purposes and can only be operated by the assigned driver, or another approved driver of the company. Any deviation from the above policy by a driver is subject to disciplinary action and/or termination.
I hereby acknowledge that I have read and understood AES Drilling Fluids, LLC's Driving Rules and Guidelines Policy:

Micah also signed another document on August 13, 2014, entitled Authorization for Payroll Deduction for Company Vehicles, which states: "I, Micah Boudreaux, hereby acknowledge that I have read AES Drilling Fluids, LLC's Company Vehicle Use Policy, and understand its provisions. Furthermore, I declare that I choose to use a company vehicle and allow AES Drilling Fluids, LLC to deduct $80.77 per paycheck, for personal use of the vehicle."

When deposed, Micah agreed that he signed these documents at the training facility in Houston. At the time of his employment with AES, Micah was given the option of receiving $900.00 a month in extra pay for using his own personal vehicle for work travel. Micah explained that he instead opted in for a deduction of $80.77 from his paycheck every two weeks for insurance so he could have personal use of a company truck. He then sold his personal truck. Micah testified that he understood that the truck was his to use as he pleased on his time off. Although Micah agreed that AES was not aware that his father would drive his truck, he did not think he had to get AES's permission for someone to drive his truck when he was not working since he was paying for insurance to use AES's truck personally. After the accident, Micah's employment with AES was terminated for a policy violation of the driving rules.

We find it reasonably foreseeable that Micah would allow his father, who was living with him, to drive the truck when Micah was using it personally. Even the written policies he signed contemplated personal use. While the restriction noted that the truck was to be used primarily for business, it was not limited strictly to business use. He had personally paid for insurance to have personal use of the truck. It is reasonable to assume that Micah was not to allow anyone else to drive his truck when he was using the truck for business purposes but that it was his truck to use as he liked when he was using the truck for personal purposes. Under these circumstances, it is reasonably foreseeable that Micah would allow someone else to use the truck to run an errand for him. The trial court was correct in finding that Randal had implied permission from AES to use the truck and that the Commerce policy provided UM coverage to him.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Commerce and Industry Insurance Company.

AFFIRMED .


source: Caselaw Access Project

license: Public Domain

text:
    The NEW IBERIA BUDDHIST TEMPLE v. Marn SIKANG, et al.
    18-261
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
   Roger P. Hamilton, Jr., Attorney at Law, P. O. Box 12625, New Iberia, LA 70562-2625, (337) 519-7180, COUNSEL FOR PLAINTIFF-APPELLANT: The New Iberia Buddhist Temple

Rusty L. Messer, Earl & Messer, 9497 Brookline Ave., Baton Rouge, LA 70809, (225) 687-1111, COUNSEL FOR PLAINTIFF-APPELLANT: The New Iberia Buddhist Temple

Vivian Veron Neumann, Attorney at Law, 405 W. Main St., Lafayette, LA 70501, (337) 501-6782, COUNSEL FOR DEFENDANT-APPELLEE: Marn Sikang, Bountheung Chnakonsy, Bounlrau Thanyavong

David Y. Lamm, Attorney at Law, P. O. Box 9710, New Iberia, LA 70562, (337) 321-6535, COUNSEL FOR DEFENDANT-APPELLEE: Marn Sikang, Bountheung Chnakonsy, Bounlrau Thanyavong

Holden Hoggatt, Hoggatt Law Group, APLC, 298 Louisiana Road, Franklin, LA 70538, (337) 368-6347, COUNSEL FOR DEFENDANT-APPELLEE: Marn Sikang, Bountheung Chnakonsy, Bounlrau Thanyavong

Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.

PICKETT, Judge.

The appellant, The New Iberia Buddhist Temple (the Temple), appeals a judgment of the trial court appointing a receiver to liquidate the assets of the Temple and dissolving the non-profit corporation.

FACTS

On February 26, 2015, the Temple initiated this litigation by filing a Petition for a Temporary Restraining Order against former members of the board of directors of the Temple, Marn Sikang, Bountheng Chankensy, and Bounlrau Thanyavong. The petition alleged that a new board of directors had been elected, and these former directors had attempted to evict the current attendees of the Temple by placing a notice of eviction on the door of the Temple. The petition asked that the former directors be prohibited from being on the property of the Temple. The trial court granted the temporary restraining order and set a hearing for a preliminary injunction on March 31, 2015.

At the March 31, 2015 hearing, the parties stipulated that the defendants would be permitted to worship at the Temple provided they do not disrupt the services. Further, the parties agreed by the terms of the consent judgment to submit the issues in this dispute to "binding mediation." Finally, the parties agreed that neither the monk nor any other party would alienate any of the assets of the Temple pending the outcome of the mediation. A consent judgment with these terms was signed by the trial court on May 18, 2015.

While mediation was pending, the Temple filed a Rule for Contempt and/or Motion to Authorize the Board of Directors to Access the Bank Account and Other Legal Documents on July 8, 2016. The Temple alleges that the defendants changed the board of directors information with the Secretary of State and changed the access of the Temple's bank account so only the defendants had access. In response to the Rule for Contempt, the defendants filed a Memorandum in Opposition to Plaintiffs' Contempt Rule, Petition for Declaratory Relief, and for Hearing on Injunctive & Other Relief, wherein they asserted that the election by which the officers purporting to represent the Temple were chosen was not held in compliance with the Temple's articles of incorporation. Thus, they argue that they remain the duly elected officers of the Temple pending a valid election, and their actions in securing the bank account and reporting the members of the board of directors to the Secretary of State were valid exercises of their authority. They also claim that the monk hired by the Temple sowed division among the members before he fled to his home in Laos.

On March 14, 2017, the trial court, in response to the complaints by the defendants that they could not freely enter the Temple, ordered all members of the Temple, including the defendants, to be allowed free access to the Temple for worship. The transcript of that hearing reflects that the mediation was unsuccessful, and that the previous consent judgment was no longer in place. A hearing was set for April 11, 2017. The trial court also denied the Rule for Contempt at that time.

On April 19, 2017, the Temple filed a Peremptory Exception of No Right of Action, claiming that the defendants were no longer members of the Temple and therefore lack the procedural capacity to file a countersuit for declaratory relief. The Temple further filed an Answer denying the central claims of the defendants' petition for declaratory relief.

The trial court held a hearing on these matters on April 19, 2017. At the outset of the hearing, the trial court elicited from counsel for the Temple the names of the people acting as officers on behalf of the Temple. The trial court heard testimony about the circumstances of the election in which these new directors were chosen and the acrimony among the current members of the Temple and the defendants, who had been founding members of the Temple. Without specifically concluding that the election by which the new officers were chosen was invalid, the trial court dissolved the board of directors of the Temple and ordered a Special Master appointed for the purpose of conducting an election in compliance with the Temple's articles of incorporation. He ordered the plaintiffs and the defendants to submit a list of members of the Temple entitled to vote in an election and a slate of candidates for the board of directors to the Special Master through their attorneys. The new election was set for May 6, 2017. The trial court, calling his ruling an interlocutory order, further stated that if this last attempt at settling the disputes among the congregation failed, he would dissolve the Temple corporation and distribute its assets to another charity.

On August 15, 2017, the trial court reconvened to consider this matter. David Lamm, the Special Master appointed to conduct the election, testified that the defendants sent notice that they did not intend to participate because they felt a sense of hostility or inability for them to participate. The defendants did not submit a list of members or a slate of nominations for officers. Pon Foreman, who is aligned with the defendants in this suit, testified that their group did not participate because they felt threatened by the behavior of the plaintiffs over the last three years, and they already felt as though they lost. The plaintiffs stipulated that the remaining defendants would offer the same testimony as Ms. Foreman.

In making its ruling, the trial court stated:

Ladies and gentlemen of the audience, I had hoped the following of a new election, and election of officers could've put aside the animosity that I knew existed back in April when I ordered the election. I was wrong. It did not put aside animosity. I had hoped it would had. I hoped giving you a new start could allow you to continue to forward as a community and more importantly the religious community in which you formed. I made a mistake. The election did not succeed in what I had hoped for. Consequently, and I do this with a heavy heart, I'm going to reappoint Mr. David Lamm as a special master in this case. I declare the New Iberia Buddhist Temple, Incorporated and nonprofit corporation need to be placed in liquidation and be liquidated accordingly by Mr. David Lamm at the direction of the Court.

Pressed by the plaintiffs to rule on whether the election results were valid, the trial court found that Mr. Lamm did conduct a valid election, but the "results were tainted by the actions of others unbeknownst to Mr. Lamm[.]" The trial court signed a judgment in conformity with his oral ruling on October 11, 2017. The written judgment did not rule on the validity of the election, though it declared that all motions and exceptions filed or heard in this matter are denied as moot.

The plaintiffs now appeal the judgment of the trial court

ASSIGNMENTS OF ERROR

The Temple asserts two assignments of error:

1. The trial court erred in finding that the Religious Nonprofit Corporation should be dissolved without a petition to Dissolve being filed or a prayer for the remedy being supported by the pleadings in accordance with La.R.S. 12:143.
2. The trial court erred [in] failing to uphold the election results as ordered by the trial court, and failing to rule on the No Right of Action filed by the Temple.

DISCUSSION

The Temple's first assignment of error is predicated on La.R.S. 12:143, which was repealed by the legislature effective January 1, 2015. See La.Acts 2014, No. 328, § 5. The law governing the dissolution of nonprofit corporations is found at La.R.S. 12:249 et seq. Involuntary dissolution, as here, is governed by La.R.S. 12:251, which states, in pertinent part:

A. The court may entertain a proceeding for involuntary dissolution under its supervision when it is made to appear that:
(1) The corporate assets are insufficient to pay all just demands for which the corporation is liable, or to afford reasonable security to those who may deal with it; or
(2) The objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable; or
(3) It is beneficial to the interests of the members that the corporation should be liquidated and dissolved; or
(4) The directors are deadlocked in the management of the corporate affairs, and the members are unable to break the deadlock; or
(5) The members are deadlocked in voting power, and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election of their successors; or
(6) The corporation has been guilty of gross and persistent ultra vires acts; or
(7) Judgment has been entered annulling, vacating or forfeiting the corporation's articles and franchise in accordance with the provisions of R.S. 12:262 ; or
(8) (a) A receiver has been appointed to take charge of the corporation's property, and either (b) there is no reasonable prospect of return of control of the corporation to its members within a reasonable time or (c) the corporation is operating at a loss and there is no reasonable prospect of restoring it to profitable operation within a reasonable time.
B. An involuntary proceeding for dissolution may be instituted against a corporation by either a member; or a creditor whose claim has been reduced to judgment, on which execution has been issued and returned "nulla bona"; or a receiver appointed to take charge of the corporation's property.

In this case, no member of the corporation has sought to institute dissolution proceedings, there are no allegations of any creditors, and the Special Master is not a receiver as set forth in La.R.S. 12:258 -260. Thus, the trial court committed an error of law in dissolving the corporation involuntarily on its own motion.

The judgment of the trial court is reversed. The issues raised in the second assignment of error were deemed moot by the trial court. We find these issues are properly reserved for the trial court to rule on in the first instance on remand.

CONCLUSION

The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are to be divided equally between The Temple and the defendants.

REVERSED AND REMANDED.


author: AMY, Judge.

text:
    Ellen IBERT v. Timothy V. CROULET and Tamra A. Croulet
    18-245
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Michael A. Smith, Jr., Dowden & Smith, LLC, 116 East Lula Street, Leesville, LA 71446, (337) 238-2800, COUNSEL FOR DEFENDANTS/APPELLEES: Timothy V. Croulet, Tamra A. Croulet
    Ellen Ibert, 200 Western Shores Drive, Anacoco, LA 71403, IN PROPER PERSON
    Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.
   AMY, Judge.

The plaintiff sought a declaratory judgment to protect her alleged rights to a purported servitude in a residential subdivision, arguing in her petition that the defendants had obstructed her use thereof. The trial court ultimately ruled in favor of the defendants due to lack of evidence, and the plaintiff now appeals. For the following reasons, we affirm.

Factual and Procedural Background

On October 17, 2016, Ellen Ibert filed a "Petition for Declaratory Judgment and Mandatory Injunction," in which she stated that she is the owner of a vacant residential lot known as Lot 18 of Paradise Cove Subdivision in Vernon Parish and that the named defendants, Timothy and Tamra Croulet, are the owners of Lot 17 in Paradise Cove Subdivision. In her petition, Ms. Ibert requested an order "to preserve and implement exercising full rights for preservation of said servitude legally recorded and referred to as North Street in Paradise Cove Subdivision, under Instrument No. 503997[.]" Ms. Ibert then asserted:

6.
FURTHER BE IT KNOWN, Plaintiff, ELLEN IBERT, has continuous use and rights as dominant estate,[ ] full rights of enjoyment and use of herein said servitude as intended and designated under conveyance record have been obstructed, and Plaintiff is thereby requesting [a] court order granting full and unobstructed rights to Plaintiff pursuant to, and respectful of, Civil Codes.
7.
FURTHER, LET IT BE KNOWN, Defendants, TIMOTHY V. CROULET and TAMRA A. CROULET, refuse to recognize the dominant estate's real rights of action over serviant [sic] estate[']s property for access or further improvements with maintenance of the designated road and utility easement servitude[ ] known as North Street crossing over the serviant [sic] estate referred to as Lot 17 of Paradise Cove Subdivision, and reference hereto Exhibit A.
8.
FURTHER, Defendants, TIMOTHY V. CROULET and TAMRA A. CROULET, refuse to remove any obstructions encroached upon servitude, as hereto Exhibit E, by Defendants that remain as follows:
a) trees, shrubs, raised-brick flower bed, and concrete driveway extension within any portion of the thirty-five feet wide herein referenced servitude crossing over the serviant [sic] estate, referred to as lot 17, regardless of cause; and
b) refuse to allow dominant estate owner, Plaintiff herein, rights to remove said obstructions within servitude right-of-way to access passage, inclusive of utility lines and traffic to/from Lot 18 of Paradise Cove Subdivision.
....
10.
IN FACTO, Plaintiff has continuously held legal title to dominant estate and continuously used the herein referenced servitude since, October, 1998, to access Plaintiff's private property as recorded in legal conveyance records and entered hereto as Exhibits B.1 and B.2; as well Defendants have used the legal se[r]vitude to access their property since 2005; and, after Plaintiff's legally recorded community property settlement, from February, 2012, Plaintiff has desired to improve road passage and implement the utility easement to access electrical power for residential construction on Lot 18 of Paradise Cove Subdivision by virtue of the North Street servitude, as entered herein evidenced hereto Exhibit C and D.

In the petition, Ms. Ibert requested a judgment decreeing that "the herein dominant estate known as Lot 18 of Paradise Cove Subdivision be granted all privileges to exercise said rights as dominant estate to said servitude known as North Street, inclusive of utility easement[.]" She further sought:

[C]larification of legal description for herein said servitude as one-hundred and seventy-five (175) feet running north/south along the east boundary line of Lot 17 of Paradise Cove Subdivision and thirty-five (35) feet east/west wide from the east boundary line of Lot 17 of Paradise Cove Subdivision with ten (10) feet wide along the most westerly side of said servitude designated for utility access to Lot 18 of Paradise Cove Subdivision[.]

Additionally, Ms. Ibert suggested that the judgment should include "specific reference to rights and privileges of dominant estate thereto for preserving implementation of full rights to the dominant estate for the intended use imposed upon the herein serviant [sic] estate for herein designated servitude pursuant to Louisiana Civil Code."

Contemporaneous with the filing of their answer, the Croulets filed exceptions of unauthorized use of summary proceeding; prescription for nonuse; and nonjoinder of an indispensable party, namely the owners of Lot 19 of Paradise Cove Subdivision. Ms. Ibert ultimately filed a "Motion to Dismiss Mandatory Injunction," and the trial court signed an order dismissing the mandatory injunction without prejudice. Following a hearing, the trial court issued a ruling concerning the exceptions. In the ruling, the trial court stated that, because the petition for mandatory injunction had already been dismissed, the exception of unauthorized use of summary procedure was denied. The trial court also denied the exception of prescription for nonuse, finding the purported servitude at issue to be an affirmative one under La.Civ.Code art. 706 and explaining: "[T]he encroachments [sic] existence and interference with the servitude is immaterial and is not sufficient to extinguish an affirmative servitude by prescription of nonuse for ten years." Regarding the exception of nonjoinder of an indispensable party, the trial court concluded that the "owners of Lot 19[ ] are not indispensable parties without whom relief cannot accord, nor would the defendants' ability to protect their interest be impeded or impaired. Therefore, the exception is denied."

On March 10, 2017, Ms. Ibert filed a "Motion for Declaratory Judgment," again requesting that the trial court "declar[e] Plaintiff's right as dominant estate to the North Street servitude in Paradise Cove Subdivision over Lot 17" and that the trial court issue a judgment directing that the Croulets "shall refrain from obstructing the real rights of the dominant estate described as Lot 18 of Paradise Cove Subdivision for the preservation of the North Street Servitude, inclusive of utility easement[.]" The matter proceeded to trial.

In presenting her case, Ms. Ibert served as her only witness. She introduced into evidence a plat of a survey of the subdivision; a cash warranty deed demonstrating that Ms. Ibert and her then-husband purchased Lot 18; a cash warranty deed by which Lock, Stock & Barrel Land and Timber Company granted Lot 18 to Ms. Ibert and her former husband; a community property settlement in which Ms. Ibert's former husband transferred his interest in Lot 18 to her; a certificate of survey; call sheet reports and incident reports from the sheriff's office; and the warranty deed by which the Croulets purchased Lot 17.

At the conclusion of the parties' presentation of evidence, the trial court took the matter under advisement. On September 19, 2017, the trial court issued a "Ruling on Petition for Declaratory Judgment," stating:

Plaintiff, Ellen Ibert, was her only witness in the proceeding. During plaintiff's case in chief, she failed to provide any factual basis upon which her claim was based. Her entire testimony consisted of reading legal arguments for what principles of law plaintiff thought the court should consider. In addition to the lack of a factual basis for the relief sought, plaintiff further failed to provide any credible evidence to prove that the defendants were obstructing the alleged servitude or were prohibiting her in any manner.
Plaintiff also failed to assist the court with testimonial or documentary evidence generated from any experts such as surveyors, engineers or the founders of the subdivision.
Based on the lack of factual and documentary evidence produced at trial, plaintiff has failed to carry her burden of proof in order for the court to render a declaratory judgment.

The trial court thereafter issued a final judgment in favor of the defendants in accordance with the above ruling, dismissing Ms. Ibert's action with prejudice.

Ms. Ibert now appeals, asserting that the trial court erred in failing to issue a declaratory judgment; to recognize her qualifications for providing expert testimony; and to find that the defendants have obstructed Ms. Ibert's use of the servitude and easement. She further asks that this court assess damages and costs against the defendants.

Discussion

As discussed above, the trial concluded that Ms. Ibert did not carry her burden of proof, stating that she "failed to provide any factual basis upon which her claim was based" and "further failed to provide any credible evidence to prove that the defendants were obstructing the alleged servitude or were prohibiting her in any manner." Ms. Ibert argues that the trial court erred in failing to grant a declaratory judgment that would decree privileges to her property as the dominant estate of the servitude known as "North Street," including the utility easement, and that would clarify the legal description of the servitude and utility easement. She asserts that the trial court erred in failing to find that the defendants have obstructed her use of the servitude, including its use as a utility easement.

Louisiana Code of Civil Procedure Article 1871 provides:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

Regarding appellate review of an action for declaratory relief, this court has stated: "The trial court is given wide discretion in deciding whether to grant or refuse declaratory relief, and on appeal, the standard of review is whether or not the trial court abused this discretion." Miller v. Seven C's Props., LLC , 01-543, p. 4 (La.App. 3 Cir. 11/21/01), 800 So.2d 406, 409 (citing Liberto v. Rapides Parish Police Jury , 95-456 (La.App. 3 Cir. 11/2/95), 667 So.2d 552 ), writ denied , 01-3309 (La. 3/8/02), 811 So.2d 878.

A predial servitude is defined as "a charge on a servient estate for the benefit of a dominant estate" where the two estates belong to different owners. La.Civ.Code art. 646. According to La.Civ.Code art. 698, "[p]redial servitudes are established on, or for the benefit of, distinct corporeal immovables." If a predial servitude is established by title, this constitutes "an alienation of a part of the property to which the laws governing alienation of immovables apply." La.Civ.Code art. 708. Significantly, La.Civ.Code art. 730 further explains that "[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate."

Having reviewed the record in its entirety, we find no abuse of the trial court's discretion in its denial of declaratory relief. While Ms. Ibert produced a plat of a survey of Paradise Cove Subdivision, which depicts "North Street" and a utility easement, she failed to produce evidence demonstrating that her property, Lot 18, received benefits thereunder as the purported dominant estate as she requested. Rather, as reflected by the trial court's ruling, the plaintiff's documentary and testimonial evidence was without sufficient factual or legal context.

For instance, Ms. Ibert introduced her September 2011 "Immovable Community Property Settlement," which indicated that Ms. Ibert was receiving:

Lot 18 of PARADISE COVE SUBDIVISION, Vernon Parish, Louisiana, together and with all road right-of-way and utility easement granted at the time of purchase from LOCK, STOCK & BARRELL LAND AND TIMBER COMPANY, and as represented by PETE DOWDEN to include[ ] the road right-of-way as described as one hundred and fifty (150) feet long and fifty (50) feet wide with an additional ten (10)
feet of utility easement running parallel along the west side of the said road right-of-way to total a sixty (60) feet wide right-of-way and easement, and as represented as North Street in the Paradise Cove Subdivision plat recorded under instrument number 503997, as well as indicated on the attached legal survey, with the exception to the proposed street reversion continuing north of [the] property described as Lot 18 and 17, but thereby ending the road right-of-way and utility easement at the subject area therein described by Russell T. Bruce, dated, September 2, 1998, and thus aligned with the right-of-way and easement depicted on the Paradise Cove Subdivision Plat as recorded.

Certainly, that description references the presence of a servitude. However, the designated September 1998 survey is not included within the exhibits introduced at trial. Significantly, the October 1998 conveyance to Ms. Ibert and her former husband from their ancestors in title provides only that the grant is of "Lot 18 of PARADISE COVE SUBDIVISION, Vernon Parish, Louisiana." In addition to its silence regarding a servitude, the former conveyance occurred subsequent to the relied-upon survey and, providing further confusion, it bears the inscription: "See instr # 531803 for Correction. Filed 9-16-99." The exhibits include no further reference to that correction.

In contrast to Ms. Ibert's settlement agreement suggesting the presence of a servitude, the April 2005 "Warranty Deed" by which James Ronald Jeane granted "236 PARADISE COVE, ANACOCO, LA 71403" to the Croulets without further reference to a servitude burdening that property. Instead, the deed's "Exhibit A" includes the legal description of the conveyed property only as:

LOT 17 OF PARADISE COVE SUBDIVISION, VERNON PARISH, LOUISIANA.
BEING THE SAME PROPERTY CONVEYED TO JAMES RONALD JEANE AND HIS WIFE, ANITA JEANE BY DEED FROM THOMAS H. PERKINS RECORDED 5/13/2004 IN DEED BOOK 1127, PAGE 624, IN THE CLERK'S OFFICE OF VERNON PARISH, LOUISIANA.

In turn, Ms. Ibert's only evidence regarding the conveyance from Thomas H. Perkins to Ronald Jeane is a "Cash Warranty Deed," recorded April 2, 2004. It describes the property only as:

Lot 17 of PARADISE COVE SUBDIVISION, Vernon Parish, Louisiana. RESTRICTIONS: (1) Houses are the only form of living quarters to be built in the Paradise Cove Subdivision; (2) there will be no camps or mobile homes placed in any lot in the said subdivision[.]

Again, that deed bears the inscription: "See instrument number 571801 for correction of this document filed May 13, 2004." As above, the trial exhibits do not include that corrective document.

With reference to La.Civ.Code art. 730, and in light of the deficiencies and patent conflicts in the evidence presented, our review indicates that the trial court's factual determinations are supported by the record.

Finally, we find no merit in Ms. Ibert's contention the trial court erred in failing to accept her qualifications for providing expert testimony. The "[q]ualification of a witness as an expert ... lies within the trial judge's wide discretion, and such determinations will not be disturbed on appeal absent a showing of manifest error." Mitchell v. Fradella , 628 So.2d 1198, 1203 (La.App. 3 Cir. 1993) (citing Bateman v. Power Rig Rental Tool Co. , 453 So.2d 998 (La.App. 3 Cir. 1984) ; Richardson v. Continental Ins. Co. , 468 So.2d 675 (La.App. 3 Cir.), writ denied , 474 So.2d 1304 (La.1985) ; Matter of Aaron , 417 So.2d 105 (La.App. 3 Cir. 1982) ). A review of the record reveals that Ms. Ibert did not offer herself as an expert and did not provide the trial court with information about any knowledge, skill, training, or education she has obtained to support her testimony as that of an expert. Accordingly, we find no manifest error in the trial court's assessment of Ms. Ibert's testimony.

Our above determinations render moot the plaintiff's arguments regarding damages and costs.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court, dismissing the action with prejudice. All costs of this appeal are assessed against the plaintiff-appellant, Ellen Ibert.

AFFIRMED.

      Louisiana Civil Code Article 706 defines affirmative servitudes as "those that give the right to the owner of the dominant estate to do a certain thing on the servient estate. Such are the servitudes of right of way, drain, and support."

      We note that utility "easement" is used throughout these proceedings. The common law word "easement" has been uniformly accepted in Louisiana law to convey the same idea expressed by the Louisiana word "servitude." Humble Pipe Line Co. v. Wm. T. Burton Indus., Inc. , 253 La. 166, 217 So.2d 188 (1968). See also Quibodeaux v. Andrus , 04-766 (La.App. 3 Cir. 11/10/04), 886 So.2d 1258.


text:
    Felix Anthony DEJEAN, IV v. Bradley R. BURGET
    18-238
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
   Erik R. Noland DeJean & Norris, L.L.C. 604 Saint Ferdinand Street Baton Rouge, LA 70802 (225) 344-2639 COUNSEL FOR PLAINTIFF/APPELLANT: Felix Anthony DeJean, IV

Joseph A. Boothe Smith, Taliaferro & Purvis P. O. Box 298 Jonesville, LA 71343 (318) 339-8526 COUNSEL FOR DEFENDANT/APPELLEE: Bradley R. Burget

Felix Anthony DeJean, IV (In Proper Person) DeJean & Norris, L.L.C. 604 Saint Ferdinand Street Baton Rouge, LA 70802 (225) 344-2639 COUNSEL FOR PLAINTIFF/APPELLANT: Felix Anthony DeJean, IV

Felix Anthony DeJean, III Attorney at Law 1368 Katherine Drive Opelousas, LA 70570 (337) 945-1454 COUNSEL FOR PLAINTIFF/APPELLANT: Felix Anthony DeJean, IV

Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.

SAUNDERS, Judge.

This is a case involving a physical altercation between two parties wherein the plaintiff alleges injury. The defendant raised the defense of justification based on an assertion that the plaintiff was the aggressor. The defendant moved for and was granted a motion for summary judgment dismissing the plaintiff's claim against him. Plaintiff appeals. We reverse and remand.

FACTUAL AND PROCEDURAL HISTORY:

Appellant, Felix Anthony DeJean, IV, was representing a client in a criminal case in the 7th Judicial District Court in Vidalia, Concordia Parish, Louisiana. The State was represented by Concordia District Attorney Bradley R. Burget, hereinafter Appellee. While discussing the case in the chambers of Judge Kathy Johnson, Appellant and Appellee had a physical altercation.

As a result of this altercation, Appellant was charged with and convicted of simple battery after a criminal trial. Thereafter, Appellant filed suit against Appellee alleging damages from the physical altercation. In his answer to the suit, Appellee filed a defense of justification based on the allegation that Appellant was the aggressor in the altercation. After discovery, Appellee filed a Motion for Summary Judgment requesting that Appellant's case be dismissed. A hearing on the motion was held and resulted in the trial court granting Appellee's motion dismissing Appellant's suit against him. It is from this judgment that Appellant presents three assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in granting summary judgment in favor of Appellee as there are material facts in dispute.

2. The trial court erred in granting summary judgment in favor of Appellee based on the fact that Appellant would not be able to prove his case by preponderance of the evidence.

3. The trial court erred by granting summary judgment based on the credibility of Mr. DeJean as a witness.

DISCUSSION OF THE MERITS :

Appellant raises three assignments of error that each contend that the trial court erred in granting summary judgment in favor of Appellee, but for different reasons. We will address all three under one heading as each assigned error is merely an argument for the alleged erroneous grant of summary judgment, which is analyzed using the same standard of review.

Appellate courts review motions for summary judgment de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

The burden of proof rests on the mover for summary judgment; all doubts are resolved against him. Nor is summary judgment intended to be used as a vehicle to circumvent trial of genuine issues even where it might appear to the court that the pleadings are frivolous and the party so pleading has little chance of success at trial.

Bernard v. Vidrine , 365 So.2d 525, 526 (La.App. 3 Cir.1978) (citations omitted). Further, regardless of the declaration that the summary judgment procedure is favored, it is not a substitute for trial on the merits. Barber v. La. Mun. Risk Mgmt. Agency Grp. Self-Insured Fund , 17-1005 (La.App. 3 Cir. 4/18/18), 244 So.3d 56.

In the case before us, Appellant brought a claim against Appellee for damages as a result of Appellee allegedly battering Appellant. Appellee answered the allegations with a defense that Appellant was the aggressor in the physical altercation, and, as such, Appellee had justification for battering Appellant. Thus, which of the two combatants was the aggressor is a genuine issue of fact material to the outcome of the litigation.

Appellee and various other witnesses testified to Appellant either verbally or physically being the aggressor in this matter. However, Appellant testified to the following in his criminal matter related to this altercation:

A I didn't lay a finger on Burget.
....
A I didn't touch him.
....
Q Did you ever chest bump Mr. Burget?
A I didn't touch Mr. Burget.

At the end of his testimony at the criminal trial, when discussing why Appellant's testimony was different than that of each other witness, the following exchange took place between Appellant and opposing counsel:

Q So it is your testimony that the only person who has told the truth today, is you, Mr. DeJean; is that correct?
A One hundred percent.

Additionally, Appellant submitted an affidavit which states, "[a]t no time did I strike Mr. Burget or defend myself in any way." Finally, Appellee's brief recognizes that Appellant testified that he was not the aggressor writing, "[n]ot one witness - save his own self-serving testimony in his criminal trial - has offered any testimony that Mr. Burget was the aggressor."

Given the above, it was improper for the trial court to have granted summary judgment in this case.

When considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot , 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 ). Moreover, although "summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

Bowdoin v. WHC Maint. Servs., Inc. , 17-150, pp. 4-5 (La.App. 3 Cir. 10/25/17), 230 So.3d 232, 236.

Here, Appellant's recount of the event that he was a pacifist while Appellee was the sole aggressor is enough to defeat summary judgment. To find otherwise would entail considering the merits via making credibility determinations, evaluating testimony, or weighing evidence, which are impermissible when using the summary judgment procedure.

CONCLUSION:

Felix Anthony DeJean, IV asserts three assignments of error that the trial court erroneously granted summary judgment dismissing his claim against Bradley R.

Burget. We find merit to the assertion that summary judgment was improper given the record before us. As such, we reverse the summary judgment granted to Bradley R. Burget and remand the case for further proceedings consistent with this opinion. Costs of this proceeding is assessed to Bradley R. Burget.

REVERSED AND REMANDED.


author: KEATY, Judge.

text:
    STATE of Louisiana v. Robert Lee HEARD, Jr.
    18-236
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Paula C. Marx, Louisiana Appellate Project, Post Office Box 82389, Lafayette, Louisiana 70598-2389, (337) 991-9757, Counsel for Defendant/Appellant: Robert Lee Heard, Jr.
    Earl B. Taylor, District Attorney, Jennifer Ardoin, Assistant District Attorney, Post Office Drawer 1968, Opelousas, Louisiana 70571, (337) 948-0551, Counsel for Appellee: State of Louisiana
    Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   KEATY, Judge.

Defendant, Robert Lee Heard, Jr., appeals the trial court's conviction and sentence for second degree murder. For the following reasons, we affirm the trial court.

FACTS & PROCEDURAL BACKGROUND

Defendant, Robert Lee Heard, Jr., stabbed his wife, Demetra Doyle, multiple times, which resulted in her death. On November 20, 2012, Defendant was indicted on a charge of first degree murder in violation of La.R.S. 14:30. He filed a motion to quash the indictment, which the trial court granted based upon its finding that it was unconstitutionally vague as applied. On appeal, this court reversed the trial court's ruling and remanded the matter for further proceedings. See State v. Heard , 15-873 (La.App. 3 Cir. 4/6/16), 215 So.3d 825. Following remand, the State amended the indictment to charge Defendant with second degree murder in violation of La.R.S. 14:30.1. The matter proceeded to trial by jury on August 17, 2017, after which Defendant was found guilty pursuant to an eleven-to-one verdict. On August 24, 2017, Defendant orally presented a "Motion for Judgment of Acquittal or in the Alternative Motion for New Trial,"

which was later filed on August 29, 2017, and alleged that the evidence presented at trial supported a conviction of the lesser included offense of manslaughter. The trial court denied Defendant's motion and, thereafter, sentenced him to a mandatory life sentence without benefit of probation, parole, or suspension of sentence. Defendant appealed.

On appeal, Defendant asserts the following assignments of error:

I. The evidence is insufficient to support the guilty verdict of second degree murder; [Defendant] was provoked and killed his wife; the offense squarely fits within the definition of manslaughter.
II. The conviction of second degree murder should not stand as it results from a non-unanimous jury verdict, which supports the sufficiency argument herein that the state failed to prove its case beyond a reasonable doubt.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

II. First Assignment of Error

In Defendant's first assignment of error, he contends that the evidence adduced at trial supports the lesser included offense of manslaughter rather than second degree murder. Defendant does not contend that the State failed to prove the elements of second degree murder; rather, his argument is that he should have been convicted of manslaughter.

When the sufficiency of evidence claim is raised on appeal, this court in State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, discussed the following inquiry to be used by the reviewing court:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Second degree murder "is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La.R.S. 14:30.1. Manslaughter is defined by La.R.S. 14:31(A)(1), which states in pertinent part:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed[.]

Keeping in mind the foregoing jurisprudence and statutory law, we will now examine the evidence presented at trial in this matter to determine whether the jury could have found that the State proved beyond a reasonable doubt that Defendant was the person who killed his wife, the victim.

Carolyn Booker, an employee of the Acadiana Crime Lab, testified for the State at trial. She was accepted as an expert in forensic science with a specialty in DNA analysis. Booker noted that Demetra's fingernail clippings contained her own blood along with a second, minor contributor. A partial DNA profile was obtained which "could not exclude Robert Heard" as the minor contributor. According to Booker's statistical analysis, "the probability of selecting an unrelated individual having the same minor profile was 1/130,000." Booker revealed that she examined a knife which contained Demetra's blood on the blade and at least three DNA profiles on the handle, i.e., Demetra and two other women. Booker stated that a pair of men's shoes were examined and contained the presence of Demetra's blood, although no conclusions could be made regarding the presence of Defendant's DNA. Booker noted that the presence of DNA on shoes may be impossible to detect when the individual wearing the shoes wears socks. On cross-examination, Booker noted there were many ways Defendant's blood could have gotten under the victim's fingernails.

Dr. Christopher Tape, who was accepted as an expert in medical science with a specialty in forensic pathology, also testified on the State's behalf. Dr. Tape testified that he performed Demetra's autopsy wherein he noted numerous stab wounds. He recalled a particular stab wound which pierced Demetra's jugular, larynx, and thyroid, and would have been fatal "without immediate medical intervention." Dr. Tape revealed that Demetra suffered from injuries to her lungs and heart and opined that the wound to her heart would have been fatal. According to his testimony, Demetra also sustained multiple wounds to her liver, stomach, and small intestines. Dr. Tape indicated that wounds on Demetra's arms could be defensive wounds"depending on how you are covering yourself." He testified that Demetra's body was delivered face down with a knife sticking into her back. Dr. Tape stated that there were nine stab wounds on her back, one of which hit the vertebrae. He described the presence of charring, i.e., browning discoloration, of the skin on Demetra's back and buttocks. Dr. Tape revealed that Demetra's body contained "forty sharp force injuries[,]" including two incise wounds and thirty-eight stab wounds. He opined that Demetra's death was caused by "[s]tab wounds to the head, body and extremities."

On cross-examination, Dr. Tape opined that Demetra was physically alive during the forty sharp force injuries given the presence of blood with the stab wounds. He was unable to say, however, whether Demetra passed out or otherwise was unable to fight back during that time. When asked about "overkill," Dr. Tape responded:

It's a term I never use, but, ... it falls in line with overkill or sometimes they talk about crimes of passion ... and it's where you stab somebody more times than they need. ... [T]he thing about my experience of stab wounds is that unless you're a professional assassin you don't necessarily know how to stab somebody to kill [them]. ... So, if your intent is to kill and you stab somebody once and they're not dead you're [going to] keep stabbing [them] until they're dead whether it's overkill, crime of passion or otherwise, ... it's just they're trying to kill the person and the first time didn't work out so they have to keep stabbing.

Mark Kurowski, an employee of the Acadiana Crime Lab, was accepted as the State's expert in forensic science. He was questioned regarding photographs taken of bloody footprints from the crime scene and a pair of Air Jordans, i.e., shoes, containing blood. Given the "poor quality" of the photographs, Kurowski was only able to determine that the footprints and Air Jordans were similar in design. He also testified regarding the pieces of a second, broken knife and noted that multiple pieces of plastic recovered were all part of the knife's handle.

Devin Johnson, who testified on the State's behalf, had known Demetra for years and advised that she was best friends with his ex-wife, Natalie Strauss. According to Johnson, Demetra was at his house on the evening she died. He explained that approximately thirty or forty-five minutes after Demetra left, he received a phone call from Defendant, who explained that he had killed Demetra, requested the couple to proceed to Defendant's home, and asked Johnson to tell Strauss that Defendant was sorry. Johnson testified that he and Strauss went to Defendant's house, opened the door, found Demetra's body, and called the police. On cross-examination, Johnson denied telling Officer A.J. Frank that Defendant told Johnson he witnessed Demetra sleeping with another man. On rebuttal, the State introduced into evidence a copy of Johnson's written statement given after the discovery of Demetra's body and a video recording of Johnson's interview with the Eunice Police Department.

Strauss, who also testified on the State's behalf, spoke to Demetra on the telephone on the day of the killing. Following their telephone conversation, Demetra went to Strauss' home where Demetra revealed that she was unhappy for no particular reason. Strauss revealed that Demetra, who did not appear agitated, left Strauss' house approximately "a few minutes before ten." About forty-five minutes later, Johnson received a telephone call wherein Strauss "could see he was shocked.... Like[ ] he couldn't believe what he was hearing." Strauss indicated that the telephone conversation lasted for a few seconds, after which Johnson told her: " '[Defendant] said he just killed [Demetra], and to tell you he was ... sorry.' " Strauss testified that they subsequently went to Demetra's house and found her laying on the floor.

On cross-examination, Strauss initially was unable to remember talking to Demetra about other men that she, i.e., Demetra, was interested in from the past. She also could not recall talking to Demetra about her heart not being in her marriage with Defendant. After Strauss' memory was refreshed with copies of text messages between herself and Demetra, Strauss acknowledged a text message which occurred the day before Demetra died and contained the names of three men, i.e., Rico, Randy, and Jamie. Strauss admitted that when she mentioned "those three names[,] that had [nothing] to do with Demetra actually [having] interaction with those guys [during] her marriage. Never." Strauss stated that "[w]hen Demetra left my house [the] night [of the murder], she had no intentions of [getting] a divorce. However, she wasn't happy."

Richard Daigle, the Deputy Chief of Police for the Eunice Police Department, testified that an empty bottle of rubbing alcohol was found near Demetra's body and a yellow washcloth was discovered in the bathroom sink. A picture of the washcloth entered into evidence revealed the presence of red stains. Chief Daigle advised that there were clothes scattered on the bed although it was unnecessary to determine who they belonged to "unless they [had] some type of stains on them such as blood stains." He noted that there "are a lot of houses we've been into, people are real messy." Chief Daigle acknowledged that there was no way to determine whether the clothes were scattered across the room before or after the murder.

Officer Mike Hidalgo of the Opelousas Police Department also testified at trial. He initially met Defendant in Shreveport and observed "scratches on his left arm" and "a cut" on one of the fingers on Defendant's right hand. Officer Hidalgo was unsure as to the cause of Defendant's scratches. He was then asked about Calvin Hardy, a man who was questioned by Sergeant A.J. Frank regarding whether Hardy had an extramarital affair with Demetra. Officer Hidalgo testified that he may have asked Hardy three questions during Sergeant Frank's interview of Hardy. Officer Hidalgo testified he did not have a purpose in interviewing Hardy because it was not his interview. Officer Hidalgo could not recall whether anyone requested or obtained a DNA sample from Hardy although he did not personally obtain one.

Sergeant Frank, with the Eunice Police Department, testified on behalf of Defendant. Sergeant Frank, who was the lead detective, advised that he obtained information from Johnson indicating that Defendant may have been responsible for Demetra's death. Sergeant Frank acknowledged that upon his arrival at the murder scene, he saw two knives, bloody shoes, a bloody washcloth, and a bloody towel. He testified that he questioned Hardy to determine whether he and Demetra were having a sexual relationship. Sergeant Frank advised that he never requested a sample of Hardy's DNA nor did he request DNA swabs of Demetra's vaginal area. According to Sergeant Frank, Demetra and Defendant's cell phones were seized. He revealed that Defendant fled the murder scene and was apprehended a day and a half later in Shreveport. Sergeant Frank noted that he did not see anything near Demetra's body that may have caused the charring to her buttocks except for the alcohol bottle. Sergeant Frank revealed that he did not interview Hardy as a potential suspect. Rather, he interviewed Hardy to determine the cause of Demetra's murder.

Defense counsel recalled Strauss to further question her regarding her text messages with Demetra prior to the murder. According to Strauss, she instructed Demetra to work on her marriage rather than to think about previous relationships. Strauss acknowledged receipt of two text messages from Demetra's phone the day after she was murdered. The text messages stated: "Y u text her all that shit about them other niggas huh its you fault [sic]" and "U next im coming for u." Strauss noted that she never mentioned Hardy during her text messages with Demetra. Strauss revealed that she never witnessed anything which indicated a sexual attraction between Demetra and Hardy. The defense thereafter rested its case.

Based on the above testimony, we find that it was reasonable for the jury to find that the State proved beyond a reasonable doubt that Defendant was the person who killed Demetra and that all of the elements of second degree murder were established. We must next determine whether the evidence supports the lesser included offense of manslaughter. To determine whether manslaughter is applicable, we must use the following analysis as cited by this court in State v. Perkins , 11-955, pp. 11-12 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817-18 (alteration in original) (quoting State v. Wright , 42,956, pp. 13-15 (La.App. 2 Cir. 3/5/08), 978 So.2d 1062, 1071-72, writ denied , 08-819 (La. 10/31/08), 994 So.2d 532 ):

"Sudden passion" and "heat of blood" are mitigating factors in the nature of a defense; and, when such factors are established by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Baker , 41,555 (La.App. 2d Cir. 8/15/07), 962 So.2d 1198, citing State v. Leger , 05-0011 (La. 7/10/06), 936 So.2d 108, cert. denied , [549] U.S. [1221], 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The burden is on the defendant to prove by a preponderance of the evidence that he acted in "sudden passion" or "heat of blood." State v. Robinson , 32,794 (La.App. 2d Cir. 3/1/00), 754 So.2d 311, writ denied , 00-0989 (La. 3/23/01), 787 So.2d 1008. The defendant is not obligated to establish the factors affirmatively; the jury may infer them from the evidence presented. State v. Ellis , supra , [42,286 (La.App. 2d Cir. 7/11/07), 961 So.2d 636] citing State v. Jackson , 34,076 (La.App. 2d Cir. 12/6/00), 774 So.2d 1046.
Provocation shall not reduce a homicide to manslaughter if the jury finds that the defendant's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. State v. Ellis, supra ."If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act." State v. Leger, supra . Questions of provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person with ordinary self-control. State v. Leger, supra , citing State v. Deal , 00-0434 (La. 11/28/01), 802 So.2d 1254, cert. denied , 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). Physical threats or actions on the part of the victim have been found to be sufficient provocation. State v. Ellis, supra , citing State v. Lombard , 486 So.2d 106 (La.1986) ; State v. Ruff , 504 So.2d 72 (La.App. 2d Cir. 1987), writs denied , 508 So.2d 64, 65 (La.1987). Even so, mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell , 39,202 (La.App. 2d Cir. 12/15/04), 889 So.2d 1257, writ denied , 05-0132 (La. 4/29/05), 901 So.2d 1063, citing State v. Massey , 535 So.2d 1135 (La.App. 2d Cir. 1988).

In State v. Lombard , 486 So.2d 106, 110-11 (La.1986), the supreme court discussed the burden of proof to support a lesser verdict of manslaughter when a defendant is tried for second degree murder, as is the case here.

The court has stated on several occasions, however, that "sudden passion" and "heat of blood" are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Tompkins , 403 So.2d 644 (La.1981) ; State v. Temple , 394 So.2d 259 (La.1981) ; State v. Peterson , 290 So.2d 307 (La.1974). Since they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in a "sudden passion" or "heat of blood" is entitled to a manslaughter verdict. Where such proof has been introduced, a second degree murder verdict is inappropriate.

On appeal, Defendant argues that "[t]he sheer amount of stab wounds is indicative of a crime of passion," and that "[t]he State did not prove any plan or premeditation on the part of Mr. Heard." Defendant alleges that Demetra was unhappy with her marriage, mentioned other men's names, and may have been packing to leave. Thus, Defendant's argument in support of manslaughter rests upon three alleged acts of provocation: Demetra's dissatisfaction in the marriage, her leaving Defendant, and her possible infidelity.

Our review of the evidence, when viewed in the light most favorable to the prosecution as required under Jackson , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, fails to support Defendant's alleged acts of provocation which would support a manslaughter conviction. First, there is no evidence in the record indicating that Defendant was aware of Demetra's dissatisfaction in the marriage. Despite the text messages between Strauss and Demetra wherein she indicated she was unhappy in her marriage, the conversation occurred approximately thirty hours before the murder. Moreover, there is no evidence showing that Defendant knew of the information contained in the text messages prior to the murder. Second, there is no evidence showing that Demetra was planning to leave Defendant. Specifically, Strauss testified that Demetra had no intention of getting a divorce when she left Strauss' house the evening of the murder. The clothes thrown across the bed at Defendant's home may have been nothing more than a messy room, according to the testimony. Further testimony reveals that it could not be determined whether the clothes were thrown around before or after the murder. Third, there is nothing in the record supporting Demetra's possible infidelity, including a possible affair with Hardy. Specifically, Johnson denied telling Officer Frank that Defendant told him, Johnson, that Defendant observed Demetra sleeping with another man. Strauss also testified that she observed no sexual attraction between Demetra and Hardy and that Demetra was not cheating on Defendant with the three men mentioned in their text message the day before the murder.

Accordingly, Defendant's first assignment of error lacks merit.

III. Second Assignment of Error

In his second assignment of error, Defendant contends that his conviction for second degree murder should not stand because it results from a non-unanimous jury verdict, which supports the sufficiency argument herein that the State failed to prove its case beyond a reasonable doubt. Defendant's argument fails in light of La.Code Crim.P. art. 782(A), which provides, in pertinent part: "Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict." That particular statute was ruled constitutional in both State v. Bertrand , 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738, and Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

Accordingly, Defendant's second assignment of error is without merit.

DISPOSITION

The trial court's conviction and sentence are affirmed.

AFFIRMED.


author: PERRET, Judge.

text:
    STATE of Louisiana v. David Billy PARKER, Jr.
    18-217
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    John F. DeRosier, District Attorney - 14th Judicial District, Elizabeth B. Hollins, Jacob L. Johnson, Ross Murray, Carla Sue Sigler, Assistant District Attorneys, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, Telephone: (337) 437-3400, COUNSEL FOR: Plaintiff/Appellee-State of Louisiana
    Mary Constance Hanes, Louisiana Appellant Project, Post Office Box 4015, New Orleans, LA 70178-4015, Telephone: (504) 866-6652, COUNSEL FOR: Defendant/Appellant-David Billy Parker, Jr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   PERRET, Judge.

David Billy Parker, Jr. ("Defendant") appeals his jury convictions for two counts of armed robbery with a firearm and two counts of possession of a firearm by a convicted felon. Defendant argues three assignments of error: (1) his constitutional rights were violated when the trial court refused to allow the parties any peremptory challenges in selecting the two alternate jurors; (2) his constitutional rights were violated when the trial court removed a juror and replaced her with an alternate; and (3) his sentences for armed robbery are excessive under the circumstances. Because we find merit to Defendant's second assignment of error arguing that the trial court erred by removing a seated juror and replacing her with an alternate over his objection, we reverse Defendant's convictions and remand for a new trial. We pretermit consideration of the other assignments of error.

DISCUSSION

We find the facts regarding the underlying offenses irrelevant to the discussion of whether the trial court committed legal error when it removed a juror and replaced her with an alternate over Defendant's objection.

Jury selection in this criminal proceeding occurred on April 3 and 4, 2017. On April 5, 2017, before any witnesses were sworn, the State informed the court that Defendant had telephoned his cousin and his aunt to find out whether a particular juror, Sharon Antoine, was related to him. The State played a recording of Defendant in open court. While there is no dispute that the contact took place, defense counsel suggested that Defendant's motives were benign. Juror Antoine was questioned in open court; and she advised that she had not been contacted by anyone about the case. Despite the lack of contact, the State argued for Antoine's removal, stating that La.Code Crim.P. art. 796 required her removal before the swearing of the first witness. At that time, the district court elected to remove Antoine and replace her with the first alternate.

During the hearing on the motion for a new trial, Defendant argued that Antoine's situation had not met the criteria for removal under Article 796. Specifically, he argued that the court had not made a finding of any improper contact with Antoine, but instead removed her due to a concern that Defendant or his family would renew efforts to contact Antoine.

In State v. Tennors , 05-538, pp. 5-16 (La.App. 3 Cir. 2/15/06), 923 So.2d 823, 827-33, this court extensively discussed juror disqualification:

The trial court, over defense objection, replaced a juror with an alternate juror, finding the juror "unable to perform" his duties due to a prior commitment to officiate at an athletic event. When the court first indicated an intent to accommodate Dr. Howell during voir dire, defense counsel expressed concern that the trial might extend later than expected, but he did not formally object to the court's stated intent.
The impropriety of releasing a juror to allow him to fulfill a personal obligation appears to be one of first impression by this court in the context presented. In State v. Brossette , 93-1036 (La.App. 3 Cir.), 634 So.2d 1309, writ denied , 94-0802 (La. 6/24/94), 640 So.2d 1344, this court found no error when the trial judge excused a juror, over defense objection, who brought to his attention an employment relation with a witness who testified by stipulation. The defendant contended that it was improper to excuse a juror who was not incompetent. Even though the juror testified that she would not be swayed to change her vote as a result of her supervisor's testimony being offered by stipulation, this court found that the judge could have reasonably concluded that the juror could be affected or biased by the employment relationship. State v. Brossette , 634 So.2d 1309.
Also, in State ex rel. Skipper v. State , 03-842, 03-844, 03-845 (La.App. 3 Cir. 12/10/03), 861 So.2d 796, writ denied , 03-3083 (La. 12/12/03), 860 So.2d 1164, writ denied , 04-03 (La 4/23/04), 870 So.2d 298, this court found no error when the trial court replaced a juror with an alternate juror after finding out that the juror had an out-of-state rap sheet and time did not allow the court to ascertain immediately if the conviction shown was a felony.
The Louisiana Supreme Court in State v. White , 244 La. 585, 153 So.2d 401 (1963), found the facts to be that a juror, on the fifth day of a six-day trial, advised the trial judge that he thought he was disqualified. In the presence of counsel for both the state and defense, but outside the presence of the defendant, the judge, without asking the juror specifics of why he felt he had a conflict of interest, inquired whether the juror could decide the case on the evidence and disregard the alleged conflict. The juror responded: "It would tax me to do so." Thereafter, the judge released the juror and replaced him with an alternate.
The supreme court, in reversing the trial court, first discussed the evolution of the law allowing the use of alternate jurors. The court then held in White , 153 So.2d at 408 :
It would appear to us that under the clear language of the pertinent provisions of R.S. 15:362, reflected by the underscored portion hereof appearing in Footnote No. 6, the judge is without authority to excuse a juror and substitute the alternate unless and until a juror dies, is too ill to serve, or there is a [l]egal cause that renders him incompetent to serve.
Interpretation of the present law found in La.Code Crim.P. art. 789 remains consistent with State v. Square , 257 La. 743, 244 So.2d 200, 237 (1971), vacated and remanded on other grounds , 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), wherein the court held, "[w]e are of the opinion that under Article 789 the jurors once selected are expected to serve, save in cases of death, illness or other cause which renders the juror unfit or disqualified to perform his duty."
The issue of the removal of a juror and the substitution of an alternate juror has almost exclusively been reviewed in the context of a juror who has become disqualified after being empaneled. In State v. Rounsavall , 337 So.2d 190 (La.1976) and State v. Buggage , 351 So.2d 95 (La.1977), both of which were later expressly overruled in State v. Marshall , 410 So.2d 1116 (La.1982), the Louisiana Supreme Court refused to countenance replacing jurors who became disqualified or unable to serve after having been sworn with alternate jurors, holding that once sworn, jurors could be discharged only if found to be incompetent. In Rounsavall , 337 So.2d at 191, a juror failed to disclose during voir dire his acquaintance with a member of the district attorney's office, and in Buggage , 351 So.2d 95, a juror, after being sworn in a capital murder case, made known that she had misunderstood questions in voir dire and was opposed to the death penalty.
In Marshall , 410 So.2d at 1118, the Louisiana Supreme Court held that the trial court correctly discharged a juror who, after being sworn, was determined to be "not impartial," as "unable to perform or disqualified from performing" her duty under La.Code Crim.P. art. 789. Both State v. Rounsavall , 337 So.2d 190 and State v. Buggage , 351 So.2d 95, which had held that jurors, once sworn, could not be discharged unless they became incompetent to serve were overruled.
In State v. Cass , 356 So.2d 396, 397 (La.1977), the supreme court reversed a conviction, finding the judge erred in replacing a juror whom he thought to be sleeping. The court stated:
Defendant contends in these assignments of error that the trial judge erred in removing a juror during trial and substituting an alternate juror in his place when the juror allegedly fell asleep during the victim's testimony on cross-examination. Defendant argues that the conduct of the juror did not render him unfit or disqualified to perform his duties and, hence, he was improperly removed. In explaining his reasons for removing the juror, the trial judge stated that when he observed the juror sleeping he became concerned that he was ill. After the juror was removed and replaced, defendant moved for a mistrial, which the trial judge denied.
The record indicates that shortly before the end of the first day of trial the judge apparently noticed that one of the jurors appeared to be asleep. The judge indicated that the juror's head was hanging low, often-times bobbing or nodding, and his eyes were closed. After two to four minutes of such observation the judge summarily ordered the removal of the juror. Before leaving the courtroom the juror twice stated aloud that he had not been asleep.
....
In two recent decisions rendered by this Court we have had the opportunity to discuss the serious nature of a trial court's removal of a juror and the circumstances under which such a procedure would be deemed proper. In State v. Buggage , 351 So.2d 95, 96, decision rendered October 10, 1977 this Court, per the Chief Justice, cited the following language authored by Justice Summers in State v. Rounsavall , 337 So.2d 190 (La.1976) relative to the replacing of a regular juror with an alternate:
"Alternate jurors are drawn and serve to replace jurors who become unable to perform or who are disqualified from performing their duties prior to the time the jury retires to consider its verdict. La.Code Crim.Pro. art. 789. And, while the court may disqualify a prospective juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case, ibid. arts. 783, 787, once the trial has begun by the swearing of the first juror selected, ibid. art. 761, and the jurors are accepted and sworn, they may not be removed unless they are 'incompetent to serve', ibid. art. 796.["]
"Once a jury has been selected and sworn the accused has a right to have his fate decided by the particular jurors selected to try him. The phrase 'incompetent to serve' embodied in Article 796 refers to death, illness or any other cause which renders a juror unfit or disqualified to perform his duty as prescribed. The right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore, inapplicable. State v. White , 244 La. 585, 153 So.2d 401 (1963) ; State v. Willie , 130 La. 454, 58 So. 147 (1912)."
Consistent with State v. Buggage, supra , and State v. Rounsavall , supra , and applying C.Cr.P. Art. 789, we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had Defendant and the State been afforded an opportunity to explore on the record the Juror's inability to perform on this account, we would be presented with a substantially different question for review.
Under the circumstance present here, the assignment has merit. We hold that the trial judge erred in summarily removing the juror under the circumstances and in the manner which he did, and in refusing Defendant's motion for a mistrial. For this reason, we reverse Defendant's conviction and sentence and remand the case for a new trial.
Cass , 356 So.2d at 397-98 (footnote omitted) (emphasis and alterations in original).
Cass , 356 So.2d 396, which predated Marshall , 410 So.2d 1116, and cited with approval language found in Rounsavall , 337 So.2d 190, and Buggage , 351 So.2d 95, both of which were expressly overruled by Marshall , was not overruled and continues to be cited as authority. In State v. Clay , 441 So.2d 1227, 1230 (La.App. 1 Cir.1983), writ denied , 446 So.2d 1213 (La.1984) (citing Cass , 356 So.2d 396 ), the court stated:
La.Code Crim.P. art. 789 provides for the replacement of a juror with an alternate juror in the event the former becomes unable to serve or is disqualified. Once a jury has been selected and sworn the defendant has a right to have his case decided by the particular jurors selected to serve.
See also State v. Williams , 500 So.2d 811 (La.App. 1 Cir. 1986).
....
The most recent decision of the Louisiana Supreme Court is State v. Fuller , 454 So.2d 119, (La.1984). The trial judge disqualified a juror after determining that the juror had violated the sequestration order by going to the bar in the hotel in which the jury was housed. In determining the correctness of the trial court action, the supreme court stated:
The next morning the judge conducted a hearing and conscientiously examined that juror and the other jurors to determine the extent of the transgression. The juror claimed that the only person with whom he conversed was the barmaid. The other jurors testified that they had not discussed the case with anyone.
Although the juror denied discussing the case or the fact that he was a juror with the barmaid, there is no doubt that the juror willfully disobeyed the sequestration order and was not "secluded from outside communication." Confronted with this situation in a capital case (where sequestration is mandatory), the judge chose to replace the transgressing juror with an alternate. Defense counsel objected to this action and moved for a mistrial based on the juror's misconduct.
The trial judge was called upon to decide whether the juror had become disqualified to perform his duties and, if so, what action to take. La.C.Cr.P. Art. 789. The judge acted properly in holding an evidentiary hearing, with all parties present, to determine the existence of a violation of his order, the nature and extent of the violation, and the appropriate solution to the problem.
The juror assured the judge that he did not, while in the bar, compromise his position by discussing the case or his status as a juror. Although a judge under some circumstances may have been satisfied that such a showing overcame the presumption of prejudice flowing from a sequestration violation, the judge in this instance determined that the essential fairness of the proceeding could best be preserved by replacing the juror with the properly qualified and duly selected alternate. Moreover, the judge's decision to replace the juror, rather than to declare a mistrial, was largely justified by the facts that the violation had occurred during the evening recess and that the other jurors had denied that they were exposed to any outside influence possibly resulting from the violation.
The trial court has discretion to utilize the service of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. Thus, when it was shown that a juror was unable to continue to serve because of the physical disability that was involved in State v. Spencer , 446 So.2d 1197 (La.1984), or was "disqualified" from further service because of the blatant display of prejudices and partiality that was involved in State v. Marshall , 410 So.2d 1116 (La.1982), the replacement of the juror with the alternate has been approved by this court.
The trial judge in this case acted in a fair and deliberative manner when he decided that the juror's willful violation of the order by going to the motel bar was a sufficient ground to disqualify him from further service. The judge also considered alternative courses of action. Replacing the juror with the alternate under the overall circumstances was a proper exercise of the trial judge's discretion.
Id. at 123.
In State v. Mohamed , 96-845 (La.App. 5 Cir. 9/17/97), 700 So.2d 881, the court recited a history of cases in which employment problems, although different from the case presented herein, justified replacement of a juror. In that case, a juror expressed his dissatisfaction with having to miss work to serve as a juror, but after a challenge for cause was denied with the trial judge finding that an economic situation "was not sufficient grounds for cause," he was selected to serve. After the juror failed to remain with other jurors during a lunch recess, and continued to complain that the trial was costing him too much money, the trial judge ordered he be replaced, but also ordered that he must remain for the entirety of the trial. In affirming, the court noted:
Although the Louisiana Code of Criminal Procedure does not provide a definition of "incompetent," the Louisiana Supreme Court interpreted the meaning of "incompetent" in State v. Cass , 356 So.2d 396, 397-398, (La.1977). In Cass , a juror allegedly fell asleep during testimony and the trial judge summarily ordered the removal of the juror. Prior to leaving the courtroom, the juror twice stated aloud that he had not been sleeping. Holding that the trial judge erred in summarily removing the juror, the Louisiana Supreme Court stated that "incompetent," as used in LSA-C.Cr.P. art. 796, refers to "death, illness, or any other cause which renders a juror unfit or disqualified to perform his duty as prescribed." Id. Although this Court has no published opinions discussing this particular article, other appellate courts have interpreted it.
In State v. Robertson , 518 So.2d 579, 582-583 (La.App. 1 Cir. 1987), writ denied , 523 So.2d 227 (La.1988), a juror failed to return to the courthouse the day after she was selected to serve on the jury because she had learned her employer would not pay her for the days she would spend on jury duty. Following the issuance of a summons, the juror reported back to court. When asked by the prosecutor whether she could be a fair and impartial juror in light of this situation, the juror explained that she could not because her mind would not be on the trial. The First Circuit held that because the juror's answers indicated that she did not wish to serve on the jury and that she would not be paying attention to the trial, the trial judge had no choice but to excuse the juror pursuant to LSA-C.Cr.P. art. 796.
In State v. Taylor , 545 So.2d 1237 (La.App. 2 Cir. 1989), judgm't amended on other grounds , 551 So.2d 1332 (La.1989), a juror notified the court that he was losing business due to his inability to work and that this situation was causing him to be distracted from the case. The Second Circuit held that due to the juror's testimony that he was unable to concentrate on the case, the trial judge's ruling was not an abuse of discretion. See also State v. Wiley , 513 So.2d 849 (La.App. 2 Cir. 1987), writ denied , 522 So.2d 1092 (La.1988) (trial judge properly dismissed juror whose decision-making ability was probably impaired and who could not concentrate on the trial because no one was home to take care of her children).
Id. at 883.
In State v. Burns , 35,267, p. 7 (La.App. 2 Cir. 10/31/01), 800 So.2d 106, 108 (alteration in original), the court, in reversing a conviction obtained after the trial judge, on his on motion, replaced a juror he had observed to be sleeping, stated, "[a]s noted by the supreme court in State v. Cass, supra at 397,, '[t]he right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore, inapplicable. (Citations omitted).' "
This historical retrospective makes definitive that La.Code Crim.P. art. 789 permits replacement of a juror with an alternate juror when the juror is physically unable to serve, or when the juror is found to have become disqualified, or to have either the real or potential for bias in the deliberations. What is not gleaned is whether a juror's personal business or social obligations, of which the trial court is aware prior to his being sworn, renders that juror, after he has heard all of the testimony, and is to be excused just as deliberations are to begin, "unable to perform or disqualified from performing his duties."
Dismissal of a juror under these facts is not a recognized or permissible course of action under La.Code Crim.P. art. 789. Dr. Howell's prior commitment to officiate at a football game rendered him neither "unable to perform," nor "disqualified from performing" his duties. While the trial court's desire to accommodate jurors is commendable, such accommodation should not preempt a defendant's right to be tried by a properly empaneled jury selected by him.

Pursuant to the discussion in Tennors , we find that Antoine was neither "unable to perform" nor "disqualified from performing" her duties as a juror. The protected principle is that a defendant has a right to be tried by the jury he helped select. The State notes that Defendant took actions that could have tainted the jury through improper contact with Antoine. However, Tennors and the jurisprudence cited therein interpreting La.Code Crim. P. art. 789 do not allow the removal of a qualified juror. Antoine testified that she was not contacted by any member of Defendant's family, and the district court indicated it believed her. The court and the State were concerned that Defendant might make continued efforts to contact Antoine, but Article 789 and the jurisprudence do not allow the removal of a juror due to such an inchoate issue.

For the reasons discussed above, we find merit to Defendant's assignment of error that the trial court erred by removing a seated juror and replacing her with an alternate over his objection. Accordingly, Mr. Parker's convictions are reversed, and the case is remanded for a new trial. We pretermit consideration of the other assignments of error.

CONVICTIONS REVERSED AND CASE REMANDED FOR A NEW TRIAL.