text:
    SUCCESSION OF Hazel R. SAVOIE and Richard Michael Savoie v. John H. CARMOUCHE, et al.
    18-601
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
   Lawrence N. Curtis, Esq., Lawrence N. Curtis, LTD., A Professional Law Corporation, 300 Rue Beauregard, Building C, Post Office Box 80247, Lafayette, LA 70598-0247, (337) 235-1825, COUNSEL FOR PLAINTIFFS/APPELLANTS: Succession of Hazel R. Savoie Richard Michael Savoie

Hunter W. Lundy, T. Houston Middleton, IV, Lundy, Lundy, Soileau & South LLP, 501 Broad Street, P. O. Box 3010, Lake Charles, LA 70602-3010, (337) 439-0707, COUNSEL FOR DEFENDANTS/APPELLEES: Mudd & Bruchhaus, L.L.C. Chad E. Mudd, Individually

Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Leah C. Poole, Caroline H. Martin, Christopher D. Martin, Talbot, Carmouche & Marcello, 17405 Perkins Road, Baton Rouge, LA 70810, (225) 400-9991, COUNSEL FOR DEFENDANTS/APPELLEES: Talbot, Carmouche & Marcello John H. Carmouche

Stephen C. Dwight, Jamie C. Gary, Dwight & Gary, LLC, 1400 Ryan Street, Lake Charles, LA 70601, (337) 439-3138, COUNSEL FOR DEFENDANTS/APPELLEES: Talbot, Carmouche & Marcello John Hogarth Carmouche

Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

SAUNDERS, Judge.

This is a case pertaining to peremption under La.R.S. 9:5605. The clients signed four settlement agreements, the last of which was signed on May 7, 2015. They filed suit against the attorneys on November 9, 2017. The attorneys filed for and were granted a Peremptory Exception of Prescription and/or Peremption. The clients appeal.

FACTUAL AND PROCEDURAL HISTORY:

Chad E. Mudd and the law firm of Mudd & Bruchhaus, L.L.C. were hired by the late Hazel R. Savoie and Richard Michael Savoie to represent them concerning a claim for damages to property they owned in Cameron Parish caused by certain oilfield operations in 2007. The contract between them had a contingency fee agreement of thirty-three and one third percent of the amount recovered. Thereafter, Mudd & Bruchhaus associated with John H. Carmouche and the law firm of Talbot, Carmouche & Marcello, A.P.L.C. on these claims (hereafter all attorneys will be referred to as "Defendants").

On August 24, 2007, suit was filed on behalf of the Savoies (hereafter "Appellants"). On November 7, 2011, the suit proceeded to a four week-long trial by jury. A verdict was returned on December 1, 2011, in favor of Appellants. While the judgment was held in abeyance due to statutory law, in March 2012, the parties entered into a new attorney-client contract wherein the contingency fees were adjusted to be forty percent.

Over the next few years, Appellants reached settlement regarding their claims on four different dates. The proceeds of those settlements were disbursed by Defendants to Appellants under the terms of the second attorney/client contract wherein Defendants retained forty percent of the settlement proceeds as attorney's fees. The date of the last disbursement signed by the Appellants was May 7, 2015.

On November 9, 2017, Appellants filed suit against Defendants stemming from Defendants' representation of them and, specifically, as to the amount Defendants retained as attorney's fees. Defendants filed a Peremptory Exception of Prescription and/or Peremption on January 3, 2018.

On May 8, 2018, the trial court heard Defendants' exception. On May 24, 2018, the trial court ruled that Appellants' claims against Defendants were legally barred under La.R.S. 9:5605. Appellants appeal, alleging seven assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption.
2. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption, because the trial court failed to consider that the Defendants' conduct effectively prevented Plaintiffs from availing themselves of their cause of action against Defendants for the overpayment of attorneys' fees and costs.
3. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption, because the trial court failed to consider that Plaintiffs filed their Petition within one (1) year of the date when Plaintiffs learned of their cause of action against Defendants for the overpayment of attorneys' fees and costs.
4. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption, because the trial court failed to consider that the Defendants' damage causing conduct was continuous, cumulative, and synergistic and, in consequence, the Defendants' continuing and repeated damage causing conduct is "regarded as a single wrong which gives rise to, and is cognizable, in a single action, rather than a series of successive actions." In such a case, prescription does not begin to run until the Defendants' damage causing conduct ceases.
5. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption, because it failed to consider that the prescription/peremptive period under La. R.S. 9:5605(E) is ten (10) years when a fiduciary, like the Defendants, engages in conduct which involves either a misrepresentations [sic] of material face with the intent to suppress the truth, or refuses to speak in the face of an obligation to do so, in order to "obtain an unjust advantage."
6. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption, because it failed to consider that the Defendants, not only deducted and paid to themselves from the 40% contingency fee, but, in addition, quite arbitrarily and, without any legal basis whatsoever, deducted and paid to themselves, as a "statutory attorneys fee," $ 3,000,000.00 from the settlement funds, and burdened a $ 1,000,000.00 litigation expense reimbursement with a 40% contingency fee, even though the contingency fee contract between Plaintiffs and Defendants did not specifically provide that the recovery of attorneys' fees and litigation expenses pursuant to La. R.S. 30:29(E)(1) in the underlying "legacy lawsuit" belonged to the Defendants.
7. The trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption, because [ ] it failed to consider that once the fiduciary relationship of client and lawyer was bound by a contingency fee contract, courts will regard, with great suspicion, contract alterations involving an increase in the lawyer's compensation as presumptively fraudulent.

DISCUSSION OF THE MERITS:

While Appellants raise seven assignments of error, each, minus the first that is simply a generic statement opining that granting the exception was erroneous, is an argument as to why, according to Appellants, the trial court committed reversible error in granting Defendants' Peremptory Exceptions of Prescription/Peremption. As such, we will address each of the remaining six arguments under one heading.

Louisiana Revised Statutes 9:5605 states:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

Louisiana Civil Code Article 3458 defines peremption as "a period of time fixed by law for the existence of a right." The right is extinguished once a peremptive period runs. Id.

An exception of peremption is considered a peremptory exception. The party who files the exception bears the burden of proof, unless the matter is facially barred. In the event that peremption is evident from the face of the pleadings, the burden of proof shifts to the plaintiff. If evidence is introduced, the trial court's conclusions are reviewed under the manifest error/clearly wrong standard.

Bijeaux v. Broyles , 11-830, pp. 3-4 (La.App. 3 Cir. 2/8/12), 88 So.3d 523, 526, writ denied , 12-970 (La. 6/22/12), 91 So.3d 971 (citations omitted). Here, no evidence was introduced at the hearing. Accordingly, we will review this matter de novo.

It is not in dispute that the final interaction during which Defendants represented Appellants was May 7, 2015, for disbursement of settlement proceeds. Appellants filed suit on November 9, 2017, based on alleged improprieties by Defendants in disbursing settlement proceeds due to retention of excessive attorney's fees. This is more than "one year from the date of the alleged act, omission, or neglect." La.R.S. 9:5605(A). Thus, under La.R.S. 9:5605(A), Appellants' petition is perempted on its face. As such, it is incumbent on Appellants to produce evidence that their claims against Defendants are not perempted under La.R.S. 9:5605(A). Appellants produced no evidence at the hearing. As such, the trial court found that Appellants did not carry their burden.

On appeal, Appellants first argue that Defendants' conduct effectively prevented them from availing themselves of their cause of action. Appellants presented no evidence at the hearing or on appeal of any conduct by Defendants prevented them from filing suit.

Second, Appellants argue that their claims are not perempted under La.R.S. 9:5605 because their petition demonstrates that they filed suit within one year of actually discovering that Defendants had engaged in a series of wrongful acts. This argument lacks merit because the language of La.R.S. 9:5605(A) (emphasis added) states the action must be brought "within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. " Here, Appellants' last relevant interaction with Defendants occurred on May 7, 2015. It involved Appellants signing a final settlement disbursement agreement that states:

I acknowledge that I have reviewed the above and foregoing and the attached expense breakdown. I further acknowledge that I am satisfied that the figures contained therein are correct, that my representation by TALBOT, CARMOUCHE & MARCELLO and MUDD & BRUCHHAUS, LLC has been satisfactory, and that I have received the full amount of my net settlement as reflected above.

Thus, a reasonable person could have ascertained that he or she had a claim regarding improper retention of settlement proceeds on May 7, 2015. Appellants do not contend that Defendants hid anything in the paperwork signed on that date. Nor do they contend with any specificity that Defendants defrauded them. Any potential claim of Appellants was readily apparent on that date, and failure to research whether a claim existed on that date is solely incumbent upon Appellants if they were dissatisfied with the representation provided by or retention of attorney's fees by Defendants.

Next, Appellants contend that their claims are not perempted because Defendants' conduct was a continuing tort. They base this contention on the fact that Defendants improperly retained attorney's fees on four separate occasions: March 28, 2012; September 4, 2013; December 4, 2014, and; April 30, 2015. This contention lacks merit.

The continuing tort doctrine provides that "[w]hen the tortious conduct and resulting damages continue, prescription does not begin until the conduct causing the damage is abated." S. Cent. Bell Tel. Co. v. Texaco, Inc. , 418 So.2d 531, 533 (La.1982). "A continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act." Crump v. Sabine River Auth. , 98-2326, p. 9 (La. 6/29/99), 737 So.2d 720, 728. When the tortious conduct is continuous and gives rise "to successive damages, prescription dates from cessation of the wrongful conduct causing the damage." S. Cent. Bell Tel. Co. , 418 So.2d at 533.

Ned v. Union Pacific Corp. , 14-1310, p. 5 (La.App. 3 Cir. 4/15/15), 176 So.3d 1095, 1100-01.

Therefore, even assuming that these four dates are a single continuing tort, the latest incident of Defendants' alleged improper conduct is May 7, 2015. As stated above, suit was filed more than one year from this date. Accordingly, even if the continuing tort doctrine would apply here, Appellants' claims are perempted by La.R.S. 9:5605(A).

Appellants next contend that the March 2012 contract wherein Defendants' contingency attorney's fees were raised from 33 and 1/3 percent to 40 percent is void ab initio. We find no merit to this contention.

While Appellants cite literature on the issue which opines that such occurrences are looked at with great scrutiny, they cite no case that stands for the proposition that a subsequent contract between attorney and client modifying attorney's fees is null regardless of the circumstances that surround the contract. Moreover, any action to void the subsequent contract is subject to peremption under La.R.S. 9:5605(A). Appellants did not file suit until November 9, 2017. They were fully aware of the contents of the subsequent contract they signed in March of 2012. Thus, any action on this contract is perempted 3 years later, in March of 2015.

Another argument raised by Appellants is that their claims are not perempted because their claims belong under La.R.S. 9:5605(E) where the peremptive period is ten years when a fiduciary engages in fraud. This argument is meritless for two reasons.

Louisiana Civil Code Article 1953 states, "[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." Louisiana Code of Civil Procedure Article 856 states, "[i]n pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally."

The supreme court, in Lomont v. Bennett , 14-2483, p. 19 (La. 6/30/15), 172 So.3d 620, 634, cert. denied , --- U.S. ----, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016), stated, "[s]pecific intent to deceive is a necessary element of fraud, and fraud cannot be based on mistake or negligence, regardless how great." First, Appellants did not allege or put forth any evidence that Defendants had the specific intent to deceive them. Rather, Appellants allege that Defendants improperly retained attorney's fees under a second contract it incorrectly claims should be void as a matter of law. However, the Defendants did not hide the fact that they were retaining these allegedly improper attorney's fees, and Appellants signed four different settlement proceed disbursements with the amount Defendants were retaining as attorney's fees spelled out quite clearly. Thus, we find that Appellants did not properly plead or present any evidence of fraud as defined in La.Civ.Code art. 1953.

Moreover, even if Appellants properly pled and established that fraud transpired pursuant to La.R.S. 9:5605(E) and La.Civ.Code art. 1953, its legal malpractice claim against Defendants would be governed by the one-year prescriptive period set forth in La.Civ.Code art. 3492, not ten years as Appellants contend. The one-year prescriptive period set forth in La.Civ.Code art. 3492 commences to run from the day injury or damage is sustained. Lomont , 172 So.3d 620. The latest day Appellants knew or should have known that they suffered injury or damage is May 7, 2015. Thus, their claims would prescribe under La.Civ.Code art. 3492 on May 7, 2016. Appellants did not file suit until November 9, 2017.

Finally, Appellants assert that it was improper for Defendants to take a statutory attorney's fee as well as a contingency attorney's fee. This assertion goes to the merits of the claims. These claims were dismissed via peremption, and the merits of the claims are not reached. Thus, this assertion is irrelevant to the matter before us.

CONCLUSION:

The Succession of Hazel R. Savoie and Richard Michael Savoie raise seven assignments of error. Each assignment argues why the trial court committed reversible error in granting John H. Carmouche, individually, and Talbot, Carmouche & Marcello, a Professional Law Corporation, and Chad E. Mudd, individually, and Mudd & Bruchhaus, L.L.C.'s Peremptory Exceptions of Prescription/Peremption. We find no merit to any of these assigned errors or arguments. As such, we affirm the trial court finding that the matter is perempted under La.R.S. 9:5605. Costs of this appeal are assessed to the Succession of Hazel R. Savoie and Richard Michael Savoie.

AFFIRMED.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eric Joseph BREAUX
    18-690
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    John F. DeRosier, District Attorney, Fourteenth Judicial District Court, Karen C. McLellan, Elizabeth B. Hollins, Assistant District Attorneys, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Eric Joseph Breaux
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   SAUNDERS, Judge.

Defendant, Eric Joseph Breaux, was charged by indictment on April 23, 2015, with one count of possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A)(1) ; one count of illegal carrying of a weapon while in the possession of drugs, a violation of La.R.S. 14:95(E) ; and one count of cultivation of marijuana, a violation of La.R.S. 40:966(A)(1). On May 29, 2015, Defendant entered a plea of not guilty to all the charges. On March 29, 2016, the State amended the indictment to charge one count of attempted possession with intent to distribute marijuana, a violation of La.R.S. 40:979 and La.R.S. 40:966(A)(1) ; and one count of attempted cultivation of marijuana, a violation of La.R.S. 40:979 and La.R.S. 40:989.1. Defendant withdrew his plea of not guilty and entered a plea of guilty to the amended charges. Sentencing was deferred under La.Code Crim.P. art. 893, and Defendant was placed on supervised probation for five years.

On April 17, 2017, a probation violation hearing was held where Defendant admitted to violating his probation; however, the trial court refused to accept Defendant's admission without a formal hearing. A formal probation violation hearing was held on November 29, 2017, where the trial court found that Defendant admitted to inappropriately touching a minor child, in violation of the terms and conditions of his probation. Defendant's probation was revoked, and the trial court set a sentencing hearing for December 1, 2017. At that sentencing hearing, Defendant was sentenced to serve eight years with the department of corrections for attempted possession of marijuana with intent to distribute and four years with the department of corrections for attempted cultivation of marijuana, to run concurrently.

Defendant filed a motion to reconsider sentence on January 5, 2018, which was denied by the trial court on January 4, 2018. On February 2, 2018, Defendant filed, and the trial court granted, a Motion for Appeal of Sentences.

FACTS:

On March 3, 2014, Combined Anti-Drug Task Force detectives were alerted to illegal drug activity at 6670 Lloyd Arabie Road, Lake Charles. The detectives made contact with Defendant and informed him of the complaint, and, during this contact, detectives smelled marijuana. Defendant then consented to a search of the residence, and detectives found five marijuana plants, 67.93 grams of marijuana, an assault rifle, a grinder with marijuana residue, and other paraphernalia.

Defendant admitted he possessed the 67.93 grams of marijuana, possessed the assault rifle found during the search, possessed the paraphernalia found in the search, sold some marijuana about a week prior, and told the detectives that he had been growing the marijuana plants for about three months.

ERRORS PATENT:

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

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

Defendant briefed his first two assignments of error together, stating that they are interrelated, so we will discuss them together.

In Defendant's first assignment of error, he alleges that the trial court abused its discretion when it sentenced him, an intellectually disabled forty-one-year-old first-time offender, to serve eight and four-year sentences for attempting to possess marijuana with intent to distribute and attempting to cultivate five marijuana plants. In his second assignment of error, Defendant argued that the trial court failed to comply with the requirements set forth in La.Code Crim.P. art. 894.1 because the factors in sentencing did not justify the sentences that were imposed and did not support the disparate treatment between Defendant and his co-defendant. We find no merit to the first assignment of error and that the second assignment of error was waived.

Defendant asserts that he accepted responsibility by pleading guilty to attempted cultivation of marijuana and attempted possession with intent to distribute marijuana. However, according to Defendant, the sentences imposed were excessive and were cruel and unusual because of his intellectual disability.

Louisiana courts have laid out the following guidelines with regard to constitutionally excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

Defendant pled guilty to La.R.S. 40:966(A)(1), La.R.S. 40:989.1, and La.R.S. 40:979. The pertinent penalty provision of La.R.S. 40:966(B)(3) in 2014 stated:

A substance classified in Schedule I which is marijuana, tetrahydrocannabinols, or chemical derivatives of tetrahydrocannabinols, or synthetic cannabinoids shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.

Additionally, La.R.S. 40:989.1(A)(2) states, "Whoever violates the provisions of this Subsection shall be sentenced to a term of imprisonment with or without hard labor for not less than two years nor more than ten years and may, in addition, be sentenced to pay a fine of not more than twenty thousand dollars."

Defendant's guilty plea to La.R.S. 40:979 reduced the sentencing range of those statutes as follows:

A. Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

Thus, the sentencing range for attempted possession of marijuana with intent to distribute was zero to fifteen years, and the sentencing range for attempted cultivation of marijuana was zero to five years. At the December 1, 2017 sentencing hearing following the probation violation hearing, Defendant was sentenced to eight years with the department of corrections for attempted possession of marijuana with intent to distribute and four years with the department of corrections for attempted cultivation of marijuana, to run concurrently. The trial court gave no reasons for the sentences that were imposed.

Defendant stated in his motion to reconsider that although he and his co-defendant were charged as a result of the same offenses, he received a much harsher sentence than his co-defendant, who was not intellectually disabled or illiterate. The co-defendant was charged with misdemeanors and was only convicted of possession of drug paraphernalia resulting in a disparity that shows that Defendant's sentences were excessive.

As noted by the State, although Defendant faced jail time, he was initially given the benefit of probation pursuant to La.Code Crim.P. art. 893 rather than serving jail time for his convictions. The State points out that had he completed probation successfully, he would have been eligible for an expungement of his record.

La.Code Crim.P. art. 893(E) ; La.Code Crim.P. art. 978. The record indicates that Defendant had no prior record, with this being his first time offending. At the guilty plea hearing, Defendant told the court that he could not read and write and received supplemental security income (SSI) because he could not read. Despite these circumstances, Defendant told the detectives that he had sold marijuana a week prior to the arrest for the matter at hand, while his co-defendant did not, which resulted in felony charges for Defendant while the co-defendant was charged with misdemeanors.

Further, the sentence for attempted possession of marijuana with intent to distribute is in line with other sentences for the same crime. In State v. Brown , 02-1382 (La.App. 3 Cir. 4/2/03), 842 So.2d 1181, writ denied , 03-1224 (La. 11/7/03), 857 So.2d 491, this court determined that a five-year sentence at hard labor for attempted possession with intent to distribute marijuana was not excessive. In that case, the defendant, a paraplegic first-offender, benefited from a plea bargain, and the State amended the charge from the original charge of possession with intent to distribute marijuana, and the defendant's sentence exposure decreased from a potential thirty years at hard labor to fifteen years at hard labor. Here, Defendant also benefited from a plea deal where he was originally charged with possession with intent to distribute marijuana, but the charge was subsequently amended to attempted possession with intent to distribute marijuana.

In State v. Allen , 28,988 (La.App. 2 Cir. 10/30/96), 682 So.2d 864, the second circuit held that a five-year sentence for attempted possession of marijuana with intent to distribute was not constitutionally excessive where the defendant, a first-time felony offender, obtained a substantial benefit from her plea bargain, the sentence was one third of the maximum range, and she was not sentenced to pay a fine.

There is no case law discussing the excessiveness of a sentence under La.R.S. 40:989.1 ; however, in State v. Insley , 04-1006 (La.App. 3 Cir. 2/2/05), 893 So.2d 209, this court determined that four years for attempted cultivation of marijuana under La.R.S. 40:966 was not excessive where the defendant benefited from a plea deal where the original charge of cultivation of marijuana was amended to attempted cultivation of marijuana, thus, significantly minimizing the defendant's sentence exposure. The maximum sentence under La.R.S. 40:966 for attempted cultivation of marijuana was fifteen years, and the maximum Defendant here faced under La.R.S. 40:989.1 was five years, but Defendant's four-year sentence for this charge was to run concurrently with the eight-year sentence for his conviction of attempted possession of marijuana with intent to distribute. Furthermore, his sentence exposure was reduced by his plea. Therefore, we find that the trial court did not abuse its discretion when sentencing Defendant.

In his motion to reconsider, Defendant failed to raise the claim he presents in his second assignment of error that the trial court failed to comply with the requirements of La.Code Crim.P. art. 894.1. Louisiana Code of Criminal Procedure Article 881.1 sets forth this requirement as follows:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
....
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Since Defendant did not raise this claim in his motion to reconsider, this claim is precluded from review.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant argues in his third assignment of error that although the sentence of eight years for attempted possession with intent to distribute marijuana is not illegal since the maximum sentence at the time of the crime was fifteen years, a reduction in his sentence is warranted because the maximum at the time of sentencing was five years. Defendant cited the supreme court's decision in State v. Clark , 391 So.2d 1174 (La.1980), that an ameliorative change in the penalty provision was a factor that the trial judge could consider during sentencing.

The State argues that Defendant's claim that he is entitled to the ameliorative effects of the legislature's amendment to La.R.S. 40:966 for possession of marijuana with intent to distribute is precluded from review because Defendant failed to raise this issue in his motion to reconsider sentence, as required by La.Code Crim.P. art. 881.1(E).

Defendant's failure to raise this claim in his motion to reconsider precludes it from review by this court as required under La.Code Crim.P. art. 881.1(E).

DECREE:

Defendant's convictions and sentences are affirmed.


author: THIBODEAUX, Chief Judge.

text:
    LOUISIANA SCRAP METAL RECYCLING, et al. v. LARSEN INTERMODAL SERVICES, INC.
    18-588 18-587
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Julius Willis Grubbs, Jr., J. P. D'Albor, Haik, Minvielle & Grubbs, 1017 E. Dale St., New Iberia, LA 70560, Telephone: (337) 365-5486, COUNSEL FOR: Defendant/Appellee - Larsen Intermodal Services, Inc.
    Dennis Ray Stevens, Gibbens & Stevens, 222 West St. Peter, New Iberia, LA 70560, Telephone: (337) 367-8451, COUNSEL FOR: Plaintiffs/Appellants - The Hartford Fire Insurance Company and Louisiana Scrap Metal Recycling
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Melvin Guidry, et al. v. ABC Trucking Company, et al. , 18-587 (La.App. 3 Cir. __/__/19), --- So.3d ----, the judgment of the trial court is affirmed. Costs of the appeal are assessed to plaintiffs/appellants, Louisiana Scrap Metal Recycling and The Hartford Fire Insurance Company.

AFFIRMED .


text:
    Randall H. BROUSSARD v. Linda Waggoner BROUSSARD
    18-635
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Anthony J. Fontana, Jr., A Professional Law Corporation, 210 N. Washington Street, Abbeville, LA 70510, (337) 898-8332, COUNSEL FOR PLAINTIFF/APPELLEE: Randall H. Broussard
    Gabe A. Duhon, James S. Broussard, Wyman E. Bankston, Duhon & Broussard, L.L.C., P. O. Box 478, 105 Tivoli Street, Abbeville, LA 70511, (337) 893-3423, COUNSEL FOR DEFENDANT/APPELLANT: Linda Waggoner Broussard
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   SAUNDERS, Judge.

The issue presented in this case is whether a judgment of involuntary dismissal that rejected Defendant-in-Reconvention's claim for final spousal support was manifestly erroneous.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiff, Randall H. Broussard ("Randall") and Defendant, Linda Waggoner Broussard ("Linda"), were married on August 8, 2008. No children were born of the marriage.

On October 13, 2014, Randall filed a Petition for Divorce under La.Civ.Code art. 103, requesting a divorce on the basis that the parties had lived separate and apart continuously for more than six (6) months, and specifically alleging that the parties separated on November 20, 2013.

On November 5, 2014, Linda filed an Answer and Reconventional Demand for Divorce under La.Civ.Code art. 102, denying, inter alia , that the parties separated on November 20, 2013, and asserting instead that the parties separated on July 9, 2014. Linda's reconventional demand alleged, inter alia , that she was free from fault in the breakup of the marriage, that at all times relevant she had been a loving, abiding, and dutiful wife to Randall, that Randall's conduct alone was the proximate cause of the separation of the parties, and that Randall was solely responsible for the breakup of the marriage.

A consent judgment adopting certain hearing officer recommendations as modified therein was signed on April 13, 2015, dispensing with the issues of interim spousal support, use of community property, and mutual injunctions regarding community property.

On July 27, 2015 Linda filed a Petition for Final Spousal Support reiterating all of the allegations contained in her Answer and Reconventional Demand and again averring that she was free from fault in the breakup of the marriage. By order signed July 29, 2015, Linda's Petition for Final Spousal Support was set for a merit trial on the issue of "Legal Fault" to be heard on February 1, 2016.

A Judgment of Divorce was rendered on September 1, 2015, having come before the trial court in the nature of an uncontested matter. Thereafter, on November 12, 2015, Randall filed a Petition for Partition of Community Property and certain discovery was conducted.

The minute entries indicate that the "Fault Hearing for Spousal Support" was continued three times: once on February 1, 2016, again on March 1, 2017, and finally on December 4, 2017, at which time said hearing was reset for February 20, 2018, with all witnesses being ordered to appear without the necessity of being subpoenaed by counsel.

The matter of fault for final spousal support was tried before the trial court on February 20, 2018. After the close of Linda's case, Randall moved for a directed verdict/involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B), contending that Linda failed to show any right to relief under the evidence presented. After hearing oral argument from the parties, the trial court granted the motion for directed verdict/involuntary dismissal. In its written reasons for ruling, the trial court stated:

The Court has authority in a proceeding for divorce or thereafter, to award final periodic support to a party who is in need of support and who is free from fault in the filing of a proceeding to terminate the marriage. Civil Code Article 111, et seq. The burden of proof is on the claimant. The mover, Mrs. Broussard has simply not met her burden of showing that she is not [sic] free from fault in the breakup of the marriage. Evidence at the hearing was not sufficient to establish that Mrs. Broussard is entitled to relief (that is, permanent spousal support based upon being free from fault).

Judgment was rendered on March 26, 2018, granting Randall's motion for involuntary dismissal and dismissing Linda's claims. It is from this judgment that Linda appeals, alleging six assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error in granting Appellee's motion for involuntary dismissal.

2. The trial court committed manifest error in finding that Appellant failed to show that she was free from fault in the breakup of the marriage.

3. The trial court committed manifest error in finding that the timespan of Appellant's relationship with another man was unclear.

4. The trial court committed legal error by misapplication of the burden of proof applicable to a claimant spouse in a fault hearing relative to final spousal support.

5. The trial court committed legal error by misapplication of the legal standards governing fault sufficient to bar a claimant spouse from final spousal support.

6. The trial court committed legal error by misapplication of the legal standards governing involuntary dismissal under [ La.Code Civ.P. art.] 1672.

ASSIGNMENT OF ERROR NUMBER ONE:

In her first assignment of error, Linda contends that the trial court committed manifest error in granting Appellee's motion for involuntary dismissal. We agree.

In Fontenot v. Safeway Insurance Co. of Louisiana , 17-780, pp. 3-4 (La.App. 3 Cir. 6/13/18), 249 So.3d 900, 902-03, writ denied , 18-1223 (La. 10/29/18), 254 So.3d 1214, (citations omitted), this court stated:

A motion for involuntary dismissal is the proper procedural vehicle in cases where the action is not tried before a jury. The procedure governing motions for involuntary dismissal is found in La.Code Civ.P. art. 1672(B), which provides as follows:
B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
Pursuant to Article 1672, the trial court must consider and weigh the Plaintiffs' evidence and dismiss the matter if it determines they have not met their burden of proof. The trial court's grant of an involuntary dismissal is subject to the well-settled manifest error standard of review. Accordingly, in order to reverse the trial court's grant of involuntary dismissal, we must find, after reviewing the record, that there is no factual basis for its finding or that the finding is clearly wrong or manifestly erroneous. The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable.

In a motion for involuntary dismissal, "[a] plaintiff is entitled to no special inferences in his favor, but 'uncontroverted testimony should be taken as true to establish a fact for which it is offered absent circumstances in the record casting suspicion on the reliability of the testimony and a sound reason for its rejection.' " Bartley v. Fondren , 43,779, p. 6 (La.App. 2 Cir. 12/3/08), 999 So.2d 146, 149. The court has the authority to award final periodic support to "a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage." La.Civ.Code art. 111.

In Neff v. Neff , 14-1320, p. 4 (La.App. 3 Cir. 4/1/15), 162 So.3d 732, 736, writ denied, 15-1195 (La. 9/25/15), 178 So.3d 566, (citations omitted), this court noted:

Our courts have previously found that fault for the purposes of spousal support is synonymous with the fault grounds previously entitling a spouse to separation or divorce, including adultery, habitual intemperance or excess, conviction of a felony, cruel treatment or outrages, public defamation, abandonment, an attempt on the other's life, fugitive status, and intentional non-support.

In Hutson v. Hutson , 39,901, pp. 7-8 (La.App. 2 Cir. 8/9/05), 908 So.2d 1231, 1235-36, (citations omitted), the Louisiana Second Circuit Court of Appeal, in a well-reasoned opinion, addressed how a claimant spouse might satisfy the burden of proof to show freedom of fault:

The jurisprudence provides little guidance on how a claimant spouse is to perform the task of proving freedom from fault. While the case law indicates that the burden can be shifted to the non-claimant spouse when the divorce is obtained on the basis of adultery of the non-claimant spouse, there is no indication of how one shifts the burden when a divorce is obtained on the basis of living separate and apart for the requisite period of time.
Ms. Hutson presented evidence in the form of her own testimony and that of her niece, sister and neighbors. She affirmatively stated that she did nothing to break up the marriage. Her niece, sister and neighbors, who had been exposed to the couple at various times throughout the marriage, testified that Ms. Hutson had been a good wife who performed her fair share of the household duties. They testified that the parties rarely argued, and they denied witnessing any of the nagging which Mr. Hutson alleges plagued their marriage.
We find that this evidence is sufficient to establish freedom from fault in instances where the divorce is not obtained on the fault grounds delineated in La. C.C. art. 103. Ms. Hutson made a prima facie showing that she was not at fault in the break up of the marriage by presenting testimony to support her version of the events leading to the break up of the marriage. Such a prima facie showing was sufficient to meet her initial burden of proof. Once that burden was met, the burden shifted to Mr. Hutson to prove conduct on the part of the claimant spouse which rises to the level of fault.

Thus, a claimant spouse must make a prima facie showing that she was not at fault; once she has satisfied that requirement, the burden shifts to the opposing spouse to prove conduct on the part of the claimant spouse sufficient to constitute legal fault and defeat the claim for final spousal support.

In the instant matter, our review of the record reveals Linda's testimony meets the burden of proof necessary to withstand a motion for involuntary dismissal because it shows by a preponderance of the evidence that she did not commit adultery, habitual intemperance or excess, cruel treatment or outrages, public defamation, or abandonment; that she was not convicted of a felony, did not make an attempt on Randall's life, is not a fugitive, and did not intentionally refuse financial support to Randall when he was in necessitous conditions. Neff , 162 So.3d at 732. Moreover, Linda's testimony was corroborated by two witnesses, one of whom the court referred to as "impressive." Linda's verified petition avers that she was free from fault in the breakup of the marriage, that at all times relevant she had been a loving, abiding, and dutiful wife to Randall, and that Randall's conduct alone was the proximate cause of the separation of the parties and that Randall was solely responsible for the breakup of the marriage. Linda testified that:

1. During her marriage to Randall she purchased a second home, renovated it herself, used it for family gatherings, and occasionally rented it out.
2. Her work on a farm with all males, with the exception of one female, resulted in friendships with several men.
3. During her marriage to Randall she bore a significant portion of the community expenses and was not a financial burden on Randall.
4. She did not have an extramarital relationship during her marriage to Randall.
5. When she and Randall were having marital discord, she attempted to seek counseling, but Randall refused.
6. She and Randall separated on July 9, 2014, after he packed up her belongings and told her to move on.
7. After she and Randall separated, she attempted to reconcile to no avail.
8. She was stunned by her breakup from Randall and upset and spent most of her time crying.

At this point, the burden shifted to Randall to prove conduct on the part of Linda sufficient to constitute legal fault and defeat the claim for final spousal support. Randall's testimony, contrary to Linda's, failed to carry this burden. Notably, no pleadings filed by Randall alleged fault on Linda's part. Moreover, in his testimony, Randall asserted only two fault grounds to which he attributed causation: abandonment and adultery, neither of which are supported by the record.

"Abandonment occurs when a spouse left 'the matrimonial domicile without lawful cause and constantly refused to return.' " Miller v. Miller, 13-1043, p. 8 (La.App. 3 Cir. 4/2/14), 161 So.3d 690, 696, writ denied , 14-1607 (La. 10/31/14), 152 So.3d 154 (quoting Ashworth v. Ashworth , 11-1270 (La.App. 3 Cir. 3/7/12), 86 So.3d 134, 137.

Randall testified that Linda abandoned the matrimonial domicile as follows:

Q Are you claiming that Linda abandoned you or the matrimonial domicile?
A Yes.
Q All right. So did you ever ask her to return after y'all separated?
A There was times that we tried to work things out, but it just - it wasn't going to happen.
Q That wasn't my question. Did you ever ask her to move back in?
A No, I didn't.

Contrary to Randall's testimony that Linda abandoned the matrimonial domicile, Linda testified that Randall moved her out. Linda testified:

Q -- the incident that lead [sic] to the separation?
A Yes, sir. I was coming back from the farm. I was working. And it had started raining and when I passed by the house, he had a trailer backed up under the carport putting my stuff in it.
Q And "he" meaning Mr. Broussard?
A Yes.

Linda further testified that she attempted to reconcile and to seek counseling, but that Randall refused both. Linda testified:

Q Did ya'll discuss getting back together?
A He told me to move on. When I asked him about it, he told me I needed to move on.
....
Q Did you ever suggest to your husband that ya'll should attend counseling?
A Yes, I did.
Q And what was his response?
A He didn't have a problem.
Q I'm sorry?
A He didn't have a problem.
Q He didn't have a problem with counseling?
A No. He didn't need to go.

In order to prove abandonment, Randall must show not only that Linda left the matrimonial domicile, but also that she "constantly refused to return." His own testimony shows that this is not the case. Accordingly, the record does not support a finding of abandonment.

With regard to adultery, Randall's testimony that Linda "pretty much moved out" on October 20, 2013, after he "caught" her boss, Danny Richard, "running through her house in his underwear" contradicts his verified petition which lists the date of separation as November 20, 2013. The "house" that Randall refers to in the October 20, 2013 incident is the one that Linda purchased during their marriage to lease on the weekends, which she did. It was within "eye distance" of the home he and Linda shared at the time. Randall testified that on the night of October 20, 2013, Linda, who was renovating the house herself, was "supposedly going paint in the house," but instead, went and picked up her boss, Danny Richard, and brought him to the "house"; that Danny Richard was "supposedly taking a shower"; that upon seeing "a man" running through the house he called Deputy Adrian Conner to report an "intruder," but that by the time Deputy Conner arrived Danny Richard was no longer there. Significantly, Randall did not testify that he observed anything untoward occur between Linda and Danny Richard on that evening, or any other. More significantly, it was not the reason the parties separated as Randall did not file for divorce until a year later.

Linda testified that her work for Val Miller at the farm consists of arranging "duck hunts, alligator hunts"; that on the evening of October 20, 2013, there were seven guests staying at Miller's camp when the hot water heater went out; that Danny Richard called her at the "house" where she was painting to ask if he could split the men up between her "house" and another camp on the island so that the men could take showers; that she informed Randall that they were going to be there; that shortly thereafter Randall showed up at the house and "went off on her" - that he had "seen a man running around naked, this and that"; that Danny Richard was the last one to take a shower, but that she never "saw anyone naked." Linda further testified that when Deputy Conner arrived at the "house" she allowed him inside to look at "anything" at which time he observed her "full of paint" with the "darn paintbrush."

The only two allegations of fault that Randall made were abandonment and adultery. As discussed above, abandonment does not apply. Thus, if the parties physically separated on October 20, 2013, the alleged incident of the same date involving Linda's boss might be an independent contributory factor to the physical separation, but for Randall's verified petition alleging a different date of separation; Randall's admission that he waited a year after the separation to file for divorce during which time he thought they could "work it out"; Linda's contradictory testimony alleging a different date of separation; Deputy Conner's contradictory testimony that upon investigation he found no one inside the home, other than Linda, who was painting at the time. The record on this point clearly does not support a finding of adultery.

The other basis for the filing of the petition for divorce based on adultery was Randall's belief that Linda had moved another man into her home. Yet, Randall was both unable to recall when that event occurred, or to provide any details in support of his contention. Instead, Randall's testimony merely indicates that someone told him she had moved someone into her home. Randall's testimony was as follows:

Q Are you, in fact, claiming that Ms. Linda committed adultery on or before October 13, 2014?
A I didn't say that I saw it, but it's - everything pointed in that direction.
Q You at least suspected something, right?
A Sir?
Q You suspected adultery?
A Yeah.
Q But you don't know for sure?
A I'm pretty sure, but, no. Definitely? No.

Therefore, at the close of Randall's testimony, the only legal fault asserted as the cause of the breakup of the marriage is Randall's suspicion of adultery based on hearsay that Linda had moved another man into her home. "To refute [Linda's] assertion that she is free from fault by proving she was guilty of having an extramarital relationship, thereby causing the dissolution of the marriage, [Randall] must have evidence, not conjecture and innuendo." Barlow v. Barlow , 11-1286, p. 13 (La.App. 3 Cir. 4/11/12), 87 So.3d 386, 394.

Judy Broussard, Linda's neighbor, corroborates Linda's testimony that she did not engage in an extramarital relationship while married to Randall, by moving another man in with her. Judy, who lived within "spitting distance" of Linda and "saw her all the time," testified:

1. Linda started dating David "[t]wo to three years ago. They've been split up, I don't know, maybe six or eight months. And she's been seeing him about two years."
2. If someone had been living with Linda, she would be in a position to know.
3. That no one was living with Linda.

The divorce action was instituted on October 13, 2014. The fault hearing was held February 20, 2018, nearly three and a half years later. Even taking Judy's longest evidence of "three years ago," Linda would not have started dating David until February 2015, months after Randall filed the petition for divorce.

Thus, at the close of Linda's case, when Randall moved for involuntary dismissal, the trial court had (1) Randall's testimony that he suspects but does not know that Linda committed adultery prior to his filing for divorce in October 2014; (2) Linda's testimony that she did not commit adultery; (3) testimony from Deputy Conner impeaching Randall's account of the events of October 20, 2013; and (4) Judy's testimony that Linda started dating as early as 2015, but never moved her boyfriend into her home. Much as in Barlow , 87 So.3d at 386 the fact that Linda was in a romantic relationship that might have begun as early as 2015, does not mean that said relationship existed prior to the dissolution of the marriage. In fact, all other testimony aside from Randall's uncorroborated suspicions makes it more likely than not that no such romantic relationship existed prior to the dissolution of the marriage. The record clearly does not support a finding of fault and we are compelled to find that the trial court's ruling was manifestly erroneous. Accordingly, we reverse the trial court's ruling involuntarily dismissing Linda's claim for final spousal support and remand for further proceedings not inconsistent with this ruling.

CONCLUSION:

Linda Waggoner Broussard raised six assignments of error as to why the trial court erred in involuntarily dismissing her claim for final spousal support. Finding merit to Ms. Broussard's first assignment of error, that the trial court committed manifest error in granting Appellee's motion for involuntary dismissal, we reverse the trial court's ruling on this issue and remand for further proceedings not inconsistent with this ruling. Our finding in assignment of error number one pretermits a finding in assignments of error two through six.

Costs of these proceedings are assessed to Randall Broussard.

REVERSED AND REMANDED.

      Though "Directed Verdict" is a term of art applicable only to jury trials, a similar mechanism exists applicable to bench trials; namely, the motion for involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B). Courts of Appeal have generally agreed that misdesignation of a motion for involuntary dismissal as a motion for directed verdict is an error of form over substance such that the Court of Appeal considers them both the same motion. See Andersen v. Succession of Bergeron, 16-0922 (La.App. 1 Cir. 4/12/17), 217 So.3d 1248, writ denied , 17-0760 (La. 9/22/17), 227 So.3d 825.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Marcus Dwayne PIPER a/k/a Marcus Piper
    KA 18-732
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Hon. Phillip Terrell, Jr., 9th JDC District Attorney, Cheryl A. Carter, Assistant District Attorney, P.O. Box 7358, Alexandria, La 71306-7358, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Edward Kelly Bauman, Louisiana Appellate Project, P.O. Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Marcus Dwayne Piper
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret, Judges.
   EZELL, Judge.

In October of 2016, the Rapides Parish District Attorney's Office charged Defendant Marcus Dwayne Piper with attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. On April 24, 2018, the court heard Defendant's motion to recuse via a judge ad hoc and denied it. The parties selected a jury on June 5, and 6. Said jury began hearing evidence on the latter date and found Defendant guilty of a lesser-included offense, aggravated battery, a violation of La.R.S. 14:34, and guilty as charged for the possession of a firearm offense. On June 25, the court sentenced him to ten years at hard labor for aggravated battery and twenty years for possession of a firearm by a convicted felon.

Defendant now seeks review by this court, assigning two errors.

FACTS

Keyon Stanley was walking out of a store and talking on her cell phone when Defendant ran up to her and put a gun to her head. He wanted information on the whereabouts of her boyfriend. Defendant's brother Charles approached and hit the top of her head, then Defendant hit her in the face with a gun. Defendant's brother stepped back and fired his weapon, but no shots hit the victim. The brothers got in a car and left the scene. Defendant had prior felony convictions.

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 there is one error patent and the court minutes of sentencing require correction.

First, the sentencing judge imposed both sentences without the benefit of parole, which is required for Defendant's conviction of possession of a firearm by a convicted felon, but this restriction may only be imposed for aggravated battery if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated battery was committed because of that status. Louisiana Revised Statutes 14:34(B) requires at least one year of the sentence be imposed without benefit of parole, probation, or suspension of sentence if the above "status" requirement applies. There was no reference by the sentencing judge to this provision, nor indication in the record that this "status" provision was applicable to Defendant's case. Accordingly, we find Defendant's aggravated battery sentence should be amended to delete the denial of parole eligibility. The trial court is instructed to make an entry in the court minutes reflecting this amendment.

Next, the sentencing minutes indicate Defendant was ordered to pay court costs of $ 495.00 due June 25, 2018, and in default thereof, he was to serve ninety days in the parish jail. However, the sentencing transcript does not indicate the court imposed the payment of court costs or default time. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we order the trial court to correct the court minutes of sentencing to strike the order to pay court costs and to serve jail time in default thereof.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the judge ad hoc erred by denying his motion to recuse the trial judge.

During the recusal hearing, Defendant's trial attorney testified regarding the circumstances that led to the recusal motion:

A. He was first on the docket. He's charged with felon with a firearm and attempted murder. An offer of, uh, fifteen years had been tendered by the District Attorney. At some point during the day, he indicated that he wanted to go to trial and not take the plea. Um, I'm, I'm assuming the part y'all are talking about. I went into the courtroom, I said, uh, I may have told Ms. Carter we need to bind him over for trial, um, I recall the Judge saying, um, that's good or that'll -- tell your client that'll make our, my day. Something of that -- I don't know verbatim -- but something of that nature. Uh (interrupted)
Q. So you're testifying that your, your client declined the offer, the plea offer from the State?
A. He did.
Q. Okay. And did you inform the Judge that he declined the plea offer?
A. I think I may have just said we need to bind him over which would have indicated yes, that the plea offer was rejected.
Q. Okay. And specifically what was her response to that?
A. I thought she said tell your client he'll -- that will make our day or that will make my day. That's what I thought. It may have (interrupted)
Q. Can you recall specifically at this time?
A. No. I, I would not be able -- I mean, the tape is -- what, what it says is what it says. I -- that's what I recall.
Q. Whatever statements, um, that were made at that time -- whatever her response was what did you do after she made that response?
A. I probably said, you know, um, that's scary or maybe that -- I don't know what -- I may have said that may be grounds for recusal right at that moment. I don't know. I -- the, the tape is -- well, the tape is the tape. Um, I, I -- my recollection was -- it and I'm not -- I can't - it'd be - I'd speculate if I -- what her thought was -- I don't know. Okay. I can't - I'm not gonna speculate.
Q. What, whatever your -- her statements were, um, was it the grounds for your motion for recusal?
A. Yes. Yes, but I'm not gonna speculate as to what she meant or thought. I'm just gonna tell you that's what I heard and that's what I, I felt like it -- that I could, um, ask for a recusal.
Q. Um, did you make an oral motion?
A. Um, it, it, yeah, it was a -- I announced in open Court that I was going to file a recusal, uh, be seeking a recusal and, in fact, within thirty minutes fil [sic] -- it was late in the day. It was probably three when, when all this was said so, um (interrupted)
Q. And did you tell her on what grounds?
A. I, I think I did. Uh, I know better -- I'm not gonna tell you what she told me. That would be hearsay but, you know, she (interrupted)
Q. Okay.
A. -- yeah, she knew that I was going to seek a recusal.
Q. Were there any other statements in relation to Mr. Piper's case that was [sic] made by Judge Doggett?
A. Um, no, no, not, not on the record. I don't recall any other, uh, anything else.
Q. Any statements made off the record?
A. Um, we may have briefly spoken about his criminal history. Uh, the exposure component of, of the, the, uh, the plea. In other words, customarily when someone comes forth to bind a trial -- to say I'm going to trial, the Judge will explain their exposure, and she did say this -- you're, you know, you have this many prior felonies. This would be your exposure on this, these, these particular crimes. Armed -- uh, felon with a firearm and attempted murder.
Q. And she did that?
A. She did do that.
Q. Prior to her advising Mr. Piper of his exposure, did she make any statements concerning whether or not she would advise him?
A. Um, not that I -- I mean, she may have said I'm tempted not to - - I don't know. I don't, I don't recall.
Q. Do you recall if there was a statement made at all?
A. She may have said I'm tempted not to advise him of, of his exposure but when he got up there she advised him of his exposure and believe, I believe she said I don't know anything about your case, but here's -- this is your situation.
BY MS. RATLIFF:
I have no further questions for Mr. Smith.
BY THE COURT:
Ms. Carter?
BY MS. CARTER:
I have no questions.
BY MR. SMITH:
Done?
BY THE COURT:
Mr. Smith, I'm not clear about, um, if Judge Doggett made any statements that formed the basis of your motion that were made off the record.
BY MR. SMITH:
Well, my memory is so -- I, I don't , I, I mean, I don't know what was said off the rec -- I don't -- I'm not comfortable saying something that was said off the record because it may not be verbatim of what we said or it may have been something that I assumed that -- in other words, the stuff on the record you can hear what was said and, and whatever it is, it is but off the record -- I'm just not comfortable saying because I, I may be inaccurate. My, my memory is not -- I don't want to say something from the perspective that I took that may not -- you understand? It's not verbatim and I don't, I don't -- I'm not comfortable saying that.
BY THE COURT:
Okay.
As Defendant observes, La.Code Crim.P. art 671 states, in pertinent part:
A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
....
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

The ad hoc judge heard testimony from several other witnesses. Although their recollections of the trial judge's statement varied somewhat, all recalled that the judge expressed some pleasure that the case was going to trial. The judge ad hoc listened to the relevant audio recording. We note the remarks at issue do not appear in the transcript designated Piper-1, as they were not originally part of the record. Apparently, the court reporter had continued to record even though the discussion was off the record. The recording reflected that, upon learning that Defendant's case would go to trial, the trial judge stated, "I'm thrilled ... Tell him I appreciate it."

At the close of the recusal hearing the ad hoc judge stated:

The testimony, uh, today reflected several comments, uh, made on and off the record, uh, some of which were, uh, in the presence of the defendant and may be some that were made, um, outside the presence of the defendant but nevertheless, uh, were made, uh, in regards to Mr. Marcus Piper and, uh, the matter that was pending before the Court. Judge Doggett made comments such as, um, tell your client you've made my day. The Court listened to the audio recording. Ms. Hale testified that, uh, her general practice is to leave the recorder on, um, whether on the record or off except in those instances in which, um, there are explicit instructions from the Court, um, not to record and, and that, uh, they're off the record or in off the record situations that, uh, go on for some period, clearly trying to, um, conserve, uh, what, what's, uh, what's on the audio. But what was clearly heard is, uh, Judge Doggett making a comment about I'm thrilled. I appreciate it. The Court also heard her make a comment which, um, must have been in connection with other testimony, uh, that she said I'm not going to bring it up, um, which I understood was, uh, to advise Mr. Piper when he declined the plea about what his exposure was. The Court also heard, um, her statements then advising Mr. Piper as to, um, what the sentencing ranges were for, uh, the two counts that, uh, have been brought against him.
Based upon, um, the comments of tell your client or something to the effect that that makes my day, that I'm thrilled, I appreciate it, those remarks I rather suspect had Judge Doggett been called to testify she would say that, um, she now, um, would not make those kind of comments that, uh, they were regrettable. But in the view of this Court, the guilt or innocence of Mr. Piper was not going to be determined by Judge Doggett but by the jury. Um, the defendant had exercised his constitutional right, uh, to a, uh, trial by, uh, his peers, uh, from this community.
Cases, uh, of similar fact scenarios for recusal in which, uh, the trial judge has made some comments, uh, regarding, um, either guilt or innocence or, um, things of that nature, um, case law simply says that they're just kind of reactions of a judge but they don't really rise to the level of, uh, substantial in nature that, uh, triggers, um, 671A(1), um, and merits the recusal of a judge and so based upon, uh, the jurisprudence that, uh, I've, uh, have been able to find and considering, um, the comment, while best not said, um, I do not find that they are of a substantial nature that rise to the level, um, to form the basis of bias and prejudice and would, uh, result in the recusal of, uh, Judge Doggett. Those are the, uh, reasons of the Court in this matter. Ms. Ratliff?
BY MS. RATLIFF:
Judge, I'm sorry. I -- did you say denied the motion (interrupted)
BY THE COURT:
Yes, I was just giving you the opportunity to, um, make any objections to the ruling of the Court for the benefit of the record.

Defendant acknowledges that the trial judge's remarks were made outside the presence of the jury and "no adverse rulings can be found in the record." Thus, both Defendant and the State cite State v. Willis , 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied , 06-186 (La. 6/23/06), 930 So.2d 973, cert, denied , 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006), as indicating that no error occurred.

However, Defendant argues the remarks created the appearance of impropriety and thus should have supported recusal. He cites no legal authority for this assertion, while having acknowledged the efficacy of Willis . Regarding possible impropriety, we note a recent discussion by the supreme court:

In evaluating the state court judgment in Rippo [v. Baker , --- U.S. ----, 137 S.Ct. 905, 197 L.Ed.2d 167 (2017) ], the Supreme Court held that evidence of actual bias is not necessary to require recusal. See id . , 137 S.Ct. at 907 (citing Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 825, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ). The Court clarified that the inquiry for judicial disqualification is instead whether, "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable' " under the circumstances. Id. (quoting Withrow [v. Larkin ,] 421 U.S. [35,] at 47, 95 S.Ct. 1456 [43 L.Ed.2d 712 (1975) ] ); see Caperton v. A.T. Massey Coal Co., Inc ., 556 U.S. 868, 889-90, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). In applying this standard, the court must determine "whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Rippo , 137 S.Ct. at 907 (quoting Williams v. Pennsylvania , --- U.S. ----, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) )....
....
Notably, La. Code of Judicial Conduct, Canon 2 requires that: "A Judge ... Avoid Impropriety and the Appearance of Impropriety in All Activities," and La. C.Cr.P. art. 671, which lists the grounds for recusal, requires recusal if a judge is a witness in the cause and underscores the duty to avoid even the appearance of impropriety. See State v. LeBlanc , 367 So.2d 335, 341 (La. 1979) ("[T]he appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by the recusal of the trial judge."
Even if Defendant has identified a potential violation of state law or the judicial canons in Judge Marullo's failure to disclose, such a violation is alone insufficient to warrant a new trial in this case. Similarly, as indicated in Caperton, circumstances that run afoul of state law or judicial canons do not necessarily violate federal due process, which is the issue currently before this court. Nonetheless, state law or judicial canon considerations may be relevant to the determination of whether Judge Marullo is subject to disqualification under the Rippo standard.
A judicial disqualification under the Due Process Clause first requires that an objective "probability of actual bias" be established. Thus, the state correctly notes that proof of an appearance of bias alone is insufficient to show a violation of federal due process. The Rippo standard clearly requires proof that an appearance of bias gives rise to a "probability of actual bias," also referred to as a "risk of bias" or "potential for bias." See Rippo , 137 S.Ct. at 907. Secondly, the defendant must prove that the probability of actual bias rises to a level that "is too high to be constitutionally tolerable" under the circumstances. See id .

State v. LaCaze , 16-234, p. 11-14 (La. 3/13/18), 239 So.3d 807, 813-16, cert. denied , --- U.S. ----, 139 S.Ct. 321, 202 L.Ed.2d 218 (2018) (footnotes omitted) (fourth and fifth alterations in original).

We find the remarks at issue do not signify any bias or even possible bias against Defendant. When confronted with the initial oral motion to recuse, the trial judge indicated she simply wanted to conduct a jury trial. Defendant briefly suggests the trial court may have had a problem with his criminal history. However, this assertion does not appear to be supported by trial counsel's testimony at the recusal hearing. In the absence of any showing of bias or potential for bias, the assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues his trial counsel was ineffective for failing to make several objections or motions during trial. Both parties agree that the test for ineffective assistance of counsel consists of two steps: first, whether counsel's performance was deficient, and second, did said deficiency prejudice the defendant asserting the claim. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

His first argument is that trial counsel should have stipulated that he was a previously convicted felon to prevent the State from showing this fact through evidence, including the use of a fingerprint expert. There is no merit to this argument; in a prosecution for possession of a firearm by a convicted felon, a defendant's stipulation on this issue will not prevent the State from introducing such evidence. State v. Ball , 99-428 (La. 11/30/99), 756 So.2d 275.

Defendant's next argument is that trial counsel should have requested a mistrial when a police officer, Wade Bourgeois, testified that Defendant stated, "This is why we fucking hate cops. That is why you cops keep getting shot." As the State points out, trial counsel objected. We note that defense counsel objected before the officer actually quoted Defendant, thus, if the objection had been upheld, the statement at issue would not have been quoted in open court. However, the current brief contains no challenge to the court's ruling on the objection. Further, Defendant cites no law and makes no argument regarding why trial counsel should have moved for a mistrial rather than, or in addition to, attempt to keep the evidence out via objection. We determine this argument should be deferred to the post-conviction process, where Defendant can more fully develop his argument and the record, if necessary. The State implies that Defendant's tirade was admissible under exceptions to the hearsay rule; however, the issue raised by Defendant's trial counsel was whether the evidence at issue was relevant.

Next, Defendant argues that trial counsel "opened up the door to" testimony by another police officer regarding testimony that Defendant was involved in other shootings or at least gun-related incidents on the day of the offense. The testimony at issue indicated that Defendant and an accomplice had shot at the victim's car while her boyfriend was using it before the offense at issue, that they had held guns to the boyfriend's head in a separate incident, and that they had fired shots in the neighborhood immediately after the instant offense.

The State claims the trial court made an earlier ruling that the incident of holding guns to the boyfriend's head would be admissible during an officer's testimony. However, the State does not cite to a record page number. We find the evidence of the surrounding gun-related incidents would have been admissible for the State to present a comprehensive narrative to the jury. The supreme court has stated:

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae , that "constitutes an integral part of the act or transaction that is the subject of the present proceeding." Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence "to insure that 'the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place' " State v. Colomb , 98-2813, p. 3 (La. 10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala , 398 So.2d 1093, 1098 (La.1981) ). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar , 414 So.2d 741, 748 (La.1982) ; State v. Kimble , 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae ) evidence in Louisiana incorporates a rule of narrative completeness without which the state's case would lose its "narrative momentum and cohesiveness, 'with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.' " Colomb , 747 So.2d at 1076 (quoting Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ).

Taylor , 838 So.2d at 741-42.

Defendant was apparently looking for the victim's boyfriend when he confronted her. Therefore, the evidence relating to other incidents involving the boyfriend was admissible pursuant to Taylor . The testimony that Defendant and his brother discharged firearms in the neighborhood was also admissible under Taylor , since it happened so close in time to the offense against the victim and may have been intended to intimidate the boyfriend or his friends. Since this evidence was admissible, deficient performance should not be ascribed to trial counsel. Thus, this argument lacks merit.

For the reasons discussed, we find the bulk of this assignment of error lacks merit. This court elects to defer to the post-conviction process on the issue of whether counsel was ineffective for failing to move for a mistrial as opposed to objecting to the relevance of Defendant's angry remarks to police.

CONCLUSION

The convictions and sentences are hereby affirmed. Defendant's argument that counsel was ineffective for failing to move for a mistrial is deferred to the post-conviction process, where the record and the arguments may be more fully developed regarding this assertion.

Defendant's aggravated battery sentence is amended to delete the denial of parole eligibility, and the trial court is instructed to make an entry in the court minutes reflecting this amendment. Additionally, the trial court is ordered to correct the court minutes of sentencing to strike the order to pay court costs and to serve jail time in default thereof.

CONVICTIONS AFFIRMED; POSSESSION OF A FIREARM BY A FELON SENTENCE AFFIRMED; AGGRAVATED BATTERY SENTENCE AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      If convicted, a defendant is liable for all costs of the prosecution whether or not costs are assessed by the court. However, a district judge is authorized to suspend court costs. La.Code Crim.P. art. 887.

      See also State v. Taylor , 01-1638 (La. 1/14/03), 838 So.2d 729, cert. denied , 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).


author: GREMILLION, Judge.

text:
    Ed STONE, et al. v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, et al.
    18-547 18-763
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Steven B. Rabalais, Melvin A. Eiden, Rabalais & Hebert, 701 Robley Drive, Suite 210, Lafayette, LA 70503, (337) 981-0309, COUNSEL FOR DEFENDANT/APPLICANT: Sentry Select Insurance Company
    Barry A. Roach, Christopher S. Lacombe, Larry A. Roach, Inc., 2917 Ryan Street, Lake Charles, LA 70601, (337) 433-8504, COUNSEL FOR PLAINTIFF/RESPONDENT: Ed Stone, Individually and as duly authorized agent of River City Logistics, Inc.
    Christina S. Slay, Bolen, Parker, Brenner, Lee & Engelsman, APLC, P. O. Box 11590, Alexandria, LA 71315-1590, (318) 445-8236, COUNSEL FOR DEFENDANT/RESPONDENT: Allstate Property and Casualty Insurance Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   GREMILLION, Judge.

Sentry Select Insurance Company (Sentry) seeks our exercise of supervisory jurisdiction to reverse the trial court's denial of its motion for summary judgment. Sentry also asks in this application that we reverse the trial court's grant of summary judgment in favor of Mr. Ed Stone. In a consolidated matter, Ed Stone, et al. v. Allstate Prop. and Cas. Ins. Co. , 18-763, Sentry also appeals the trial court's judgment in favor of Mr. Stone. For the reasons that follow, we grant Sentry's application for supervisory writs and make that grant peremptory.

FACTS AND PROCEDURAL POSTURE

Ms. Denise McClendon is the president of River City Logistics, Inc. In August 2015, she procured a policy of automobile liability insurance from Sentry on behalf of River City Logistics. Her agent, Mr. Don Pridgen, sent her a form for the rejection of or selection of lower limits of uninsured/underinsured motorist coverage (UM). Ms. McClendon placed a check mark in the space beside the clause indicating rejection of UM. She then signed and dated the form and returned it to Mr. Pridgen. The agency called her and told her she had to initial the space. The form was returned to Ms. McClendon, who initialed in a space drawn by someone in Mr. Pridgen's office immediately adjacent to the check-marked space.

On April 28, 2016, an accident between a Peterbilt truck driven by Mr. Stone and owned by River City Logistics, his employer, and a Chevrolet Silverado driven by Mr. Stephen Card allegedly occurred on U.S. Highway 84 east of Jonesville, Louisiana. Mr. Stone sued Mr. Card, Allstate Property and Casualty Insurance Company, Mr. Card's insurer, and Sentry as River City Logistics' UM carrier for damages he incurred in the accident.

Sentry filed a motion for summary judgment in which it asserted that there was no UM. Sentry relied, in its motion, on an affidavit executed by Ms. McClendon that affirmed her authority to execute the UM waiver on River City Logistics' behalf and recounts the events surrounding its execution. Mr. Stone filed his own motion for summary judgment and asserted that the policy did provide UM because the UM waiver had not been properly executed. The trial court denied Sentry's motion and granted Mr. Stone's. Sentry then filed this application for supervisory writs and an appeal of the judgment. We granted writs and determined that, in the interests of judicial economy and efficiency, an opinion from the court should be held in abeyance pending briefing in the appeal. Stone v. Allstate Prop. and Cas. Ins. Co. , 18-547 (La.App. 3 Cir. 9/10/18) (unpublished ruling).

ANALYSIS

On appeal, summary judgments are reviewed de novo.
Magnon v. Collins , 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment must be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc. , 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied , 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc. , 12-270, pp. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43.

Whole forests have been felled to publish the myriad cases discussing whether UM waivers are valid. In Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544, the Louisiana Supreme Court conducted an exhaustive examination of the legislature's struggles to address the toll this issue has taken on the legal and physical environment of the State; and this case will not restate that effort. The key point in Duncan is the conclusion drawn by the supreme court: the legislature ceded to the Insurance Commissioner the responsibility to formulate a uniform UM rejection/selection form, and, "Pursuant to that mandate, compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid." Id. at 553. Post- Duncan , the focus of courts was not to be on the intent of the parties, i.e., whether the insured knowingly rejected UM, but on compliance with formal requirements.

Duncan has faced significant criticism. As the leading Louisiana treatise on insurance succinctly put it:

The Duncan decision was unduly strict. Since the insured had only one automobile liability policy, there was no reasonable doubt that the waiver was applicable to that policy and that the insured had made an informed decision to reject UM coverage. The insignificant omission of the policy number gave the insured a windfall for which he had paid no premium. The commissioner's form is completed many times daily throughout the state. Insignificant mistakes are inevitable. Such mistakes should not invalidate the form when there is no reasonable doubt of the insured's intent. Duncan has spawned a new wave of wasteful waiver litigation, unfairly compensates persons who paid no premium for UM coverage that they knowingly waived and ultimately places the financial burden of their windfall through increased insurance premiums on those with the foresight to purchase UM coverage.

15 La. Civ. L. Treatise, Insurance Law & Practice § 4:8 (4th ed.). Duncan has also been distinguished by many courts of appeal and the supreme court. In Lynch v. Kennard , 09-282 (La. 5/15/09), 12 So.3d 944, the supreme court refused to invalidate a waiver that was dated by the insured's secretary. In doing so, the supreme court stated that the properly completed form established a rebuttable presumption that the insured knowingly rejected UM. Id. So, the issue of whether a waiver was knowing was once again relevant to the discussion.

Mr. Stone argues that the fact that Ms. McClendon initialed the form after she signed it renders the rejection invalid. This argument is based upon the instructions contained in Bulletin 08-02, which states the following:

• The following tasks must be completed by the insured:
- His/Her signature
- His/Her printed name to identify his/her signature
- The date the form is completed
- Initials to select/reject UMBI coverage prior to signing the form.

These instructions are not, however, provided to the insured, which merely instructs:

By law, your policy will include UMBI Coverage at the same limits as your Bodily Injury Liability Coverage unless you request otherwise. If you wish to reject UMBI Coverage, select lower limits of UMBI Coverage, or select Economic-Only UMBI Coverage, you must complete this form and return it to your insurance agent or insurance company.

In no way does the form prescribe that the insured must initial the selection or rejection before signing it. The parties and the court should be able to look to the four corners of the rejection form to determine its validity; to reiterate the supreme court's holding in Lynch , 12 So.3d 944 : a properly executed form creates a rebuttable presumption of a knowing waiver. Resorting to extrinsic evidence should only occur in instances of doubt. In the present instance, only the extrinsic evidence, Ms. McClendon's affidavit, would have indicated to anyone that the form was initialed after it was signed. We find this argument of Mr. Stone to be without merit.

Mr. Stone also argues that the form was not properly completed because Ms. McClendon placed a check mark in the space in which she was to have initialed her rejection of UM. As a corollary to this argument, Mr. Stone also asserts that by adding an additional blank and initialing the form, the agency and Ms. McClendon altered the form in violation of La.R.S. 22:1295 (formerly La.R.S. 22:680, renumbered by 2008 La. Acts No. 415, § 1). We will address the placing of the check mark first.

The instructions contained on the form clearly indicated that Ms. McClendon was to have initialed the form in the appropriate space. Instead, she placed a check mark in the space. When informed that her initials were required, Ms. McClendon initialed the blank space added by her agent. Our colleagues of the first circuit faced a similar scenario in Green v. State Farm Mut. Auto. Ins. Co. , 07-94 (La.App. 1 Cir. 11/2/07), 978 So.2d 912, writ denied , 08-74 (La. 3/7/08), 977 So.2d 917. The insured representative attested by affidavit that she personally placed the "X" in the rejection space and personally initialed next to the space. Under these circumstances, the court of appeal found the rejection was valid. In the present matter, the only distinguishing factor from Green is the blank drawn by the agency for Ms. McClendon to initial.

Mr. Stone argues that Bulletin 08-02 forbids altering a form. The form approved by the commissioner does state, "This form may not be altered or modified[.]" We note, however, that the form approved by the commissioner in 1998 contained the same language. The Louisiana Supreme Court, in the per curiam opinion in Tuson v. Rodgers , 15-1334 (La. 10/30/15), 178 So.3d 127, reversed a panel of this court, which had invalidated the selection of lower limits by the insured, who materially altered the form to provide for a selection of lower UM limits on a combined single-limit basis, which the form did not seem to allow. The form then provided only for selection of an amount of coverage for "each person" and an amount for "each accident." Id. The insured struck through the phrase "each person" and wrote "CSL" above it. Id.

In Scarborough v. Randle , 12-1061 (La.App. 3 Cir. 2/6/3), 109 So.3d 961, we found valid a rejection form that omitted the wording from the commissioner's form that the form could not be modified or altered and which contained an abbreviated name for the insured.

Clearly, according to the Louisiana Supreme Court and this court, some alterations of the form do not rise to the level of invalidating the insured's selection or rejection of UM. In the present case, the insured's representative altered the form to make her rejection definitive. In no way can Ms. McClendon initialing the form as well as placing a check mark next to her selection be construed as creating any ambiguity in her selection; indeed, it further demonstrates Ms. McClendon's unmistakable intent to waive UM. We agree with the result reached by the first circuit in Green , 978 So.2d 912. This argument lacks merit.

CONCLUSION

Despite the rigidity of the holding in Duncan , 950 So.2d 544, subsequent jurisprudence indicates that mere formal deviation from the commissioner's form is not sufficient to invalidate a UM waiver that unmistakably signifies the insured's rejection or selection. That Ms. McClendon intended to reject UM lies beyond all doubt.

The judgment of the trial court denying Sentry Select Insurance Company's motion for summary judgment and granting the motion for summary judgment in favor of Mr. Ed Stone is reversed. Judgment is rendered herein in favor of Sentry Select Insurance Company and against Mr. Ed Stone dismissing the demands against Sentry Select Insurance Company. All costs of this appeal and in the court below are taxed to Plaintiff/Respondent/Appellee, Ed Stone.

REVERSED AND RENDERED.

THIBODEAUX, Chief Judge, concurs in the result.