author: KYZAR, Judge.

text:
    Clifton FRANKLIN v. FOUNTAIN GROUP ADJUSTERS, L.L.C.
    17-724
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018 Rehearing Denied August 8, 2018
    David F. Rutledge, 330 Settlers Trace, Suite A, Lafayette, LA 70508, (337) 484-1529, COUNSEL FOR PLAINTIFF/APPLICANT: Clifton Franklin
    Stacy C. Auzenne, Auzenne Law Firm, L.L.C., P. O. Box 11817, Alexandria, LA 71315-1817, (318) 880-0087, COUNSEL FOR DEFENDANT/RESPONDENT: Fountain Group Adjusters, LLC
    Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The Plaintiff/Relator, Clifton Franklin, seeks supervisory writs from the judgment of the Pineville City Court, Parish of Rapides, which denied his motion for summary judgment filed against the Defendant/Respondent, Fountain Group Adjusters, LLC. For the reasons set forth below, we grant the writ, reverse the judgment in part, render in part, and remand for further proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

Mr. Franklin entered into a contract with Fountain Group Adjusters, LLC, (Fountain) to provide insurance adjusting services associated with damages claims arising from Superstorm Sandy. The amount of compensation to be received for his work was set forth in the contract executed between Mr. Franklin and Fountain; Mr. Franklin being identified in the contract as the independent contractor, referred to as "IC," and Fountain being identified in the contract as "FG," in the following provision:

COMPENSATION
....
5. IC shall be entitled to compensation for performing those tasks and duties related to the adjustment of insurance claims equal to 65% of FG's compensation based on the current applicable Fee Schedule, copies of which will be provided by FG to IC from time to time.
Note: FG has the right to apply compliance penalties. You will be notified of the penalty and the reason for such penalty.
6. Such compensation shall be paid to IC on a weekly basis after FG has received compensation from the client for service fee.

Mr. Franklin avers that he was asked to sign a second contract, identical to the first, because Fountain could not locate its original copy of the contract. The pertinent provisions are the same in both contracts, with the exception that the second contract calls for compensation for claims adjusting services at 75%, rather than 65%. Mr. Franklin, however, is only asserting a claim for 65% commission. The two contracts, attached to Mr. Franklin's motion for summary judgment, are dated August 28, 2012 and December 4, 2012.

During this time, Mr. Franklin was employed by Claims One. Fountain also entered into a contract with Claims One. Below is a portion of that contract, with Claims One identified as an independent contractor, referred to as "IC," and Fountain being identified in the contract as "FG," also setting forth compensation for services, in the following provision:

COMPENSATION
....
5. IC shall be entitled to compensation for performing those tasks and duties related to the adjustment of insurance claims equal to 10% of FG's compensation based on the current applicable Fee Schedule, copies of which will be provided by FG to IC from time to time.
Note: FG has the right to apply compliance penalties. You will be notified of the penalty and the reason for such penalty.
6. Such compensation shall be paid to IC on a weekly basis after FG has received compensation from the client for service fee.

It is undisputed that Mr. Franklin performed adjusting services pursuant to the contract from 2012 through some point in 2014. It is also undisputed that through third parties, Fountain received $327,644.00 for adjusting services performed by Mr. Franklin, through his employment with Claims One. Fountain paid Claims One seventy-five percent (75%) of that total, equaling $245,737.00, which is the total amount of adjuster commission earned by work performed by Mr. Franklin through Claims One, representing the 65% owed to Mr. Franklin and the 10% due Claims One. It is further undisputed that Mr. Franklin did, in fact, receive a significant amount of the money he was owed through his contract with Fountain directly from Claims One, which was paid by Fountain to Claims One on Mr. Franklin's behalf.

Then, on May 2, 2016, Mr. Franklin filed suit against Fountain, claiming that, although he had received much of what he had earned under the contract, he had not been fully compensated. Subsequently, Mr. Franklin filed a motion for summary judgment, arguing that the contract clearly provided that Fountain was to pay him a certain amount, and pursuant to his affidavit, he was not paid the full amount. He asked that the trial court enter judgment in his favor against Fountain, as follows: "summary judgment should be granted against Fountain Group Adjusters, LLC for breach of contract and damages in the amount of $28,395.74 plus legal interests [sic] from date of original demand and court costs." Alternatively, Mr. Franklin requested that summary judgment be granted against Fountain as to the issue of liability concerning the breach of contract claim.

Fountain filed an opposition to the motion for summary judgment contending that it was not liable to Mr. Franklin. Fountain stated that it had entered into a separate contract with Mr. Franklin's employer, Claims One, whereby Claims One would receive 10% of the amount of payment Fountain received for the adjusted claims, similar to the 65% provided for in Mr. Franklin's contract. Fountain asserted that it paid Mr. Franklin's employer, Claims One, the full amount due to Mr. Franklin, minus a 10% "hold back" until all audits were completed; all of which, Fountain claimed, was standard practice in the industry. Fountain expounded on the purported industry standard, claiming that the contractor, Fountain herein, would pay the employer, i.e., Claims One, and the adjuster, i.e., Mr. Franklin, the amount due to both of them and that Claims One would then pay the employee, Mr. Franklin, the portion of that total amount that is his due.

In this case, however, Claims One did not pay Mr. Franklin the full amount due him, even though Fountain had allegedly sent the earned commissions to Claims One for it to pay Mr. Franklin. Based upon this fact, Fountain asserted that the true party liable to Mr. Franklin was Claims One, not Fountain. In addition to attaching an affidavit of Keith Fountain, the sole owner of Fountain, Fountain attached documentation to its opposition, including various business records and emails.

Mr. Franklin filed a reply brief in response to the opposition and moved for the trial court to strike the documentation attached to Fountain's motion as hearsay. At the hearing on the motion for summary judgment, however, it was made clear to the court that the objectionable materials sought to be excluded were certain emails and direct mail from Claims One to Fountain, as shown by the following excerpt of argument by counsel for Mr. Franklin:

I feel that's not an argument I have to make uh, but it is clearly hearsay and we exclude-we would request that it be excluded as it is hearsay, it's not authenticated either, Your Honor. There's no authentication from this other gentlemen [sic] that allows it to come in. He is not a party by the way the defendant just-just said uh, my counterpart just said that there has not been an answer, to acknowledge, filed in the court.
....
But there is a letter sent to the defendant, that the defendant submitted to the court, uh but you-in any regard, it doesn't matter, the declarant is not here testifying to the truth of the matter asserted, therefore, it's hearsay.

After the hearing on the motion for summary judgment, counsel for Mr. Franklin requested a specific ruling as to the hearsay issue, and the trial court answered as follows:

[A]s to the hearsay, um, the Court has taken that and looked at it [ ], with the hearsay issue, I do believe for the purposes of this hearing that we're having this morning, [ ] but the Court really didn't look at that to make its decision so the Court is going to actually make a ruling on the hearsay issue, I do believe that it is hearsay.

Though it ruled to disregard the hearsay items in Fountain's submission, the trial court denied Mr. Franklin's motion for summary judgment, finding genuine issues of material fact that must first be resolved. Mr. Franklin thereafter filed the instant writ application, asserting one assignment of error: "The trial court erred in denying the applicant's Motion for Summary Judgment; there was no evidence to the contrary and therefore, no genuine issues of material fact."

We review a trial court's granting or denial of a motion for summary judgment de novo according to well established appellate principles.

Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp. , 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ; Schroeder v. Bd. of Supervisors of La. State Univ. , 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 ; Duncan v. USAA Ins. Co. , 06-0363, p. 4 (La. 11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett , 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam )(citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines , 876 So.2d at 765-66.

Smitko v. Gulf South Shrimp, Inc. , 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750, 755.

Louisiana Code of Civil Procedure Article 966 provides that summary judgment procedure is favored and that it "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La.Code Civ.P. art. 966(A)(2). It further provides that summary judgment "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Code Civ.P. art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

The resolution of Mr. Franklin's motion for summary judgment herein rests with the interpretation of the contract entered into between the parties. Mr. Franklin claims the contract is clear and free from ambiguity and that the terms of the contract clearly entitle him to recover the sums allegedly due, directly from Fountain. Thus, he claims that Fountain breached the contract, and he is entitled to summary judgment for the unpaid amounts, asserted to be $28,395.74, plus legal interest and court costs. On the other hand, Fountain asserts that the contract and payment procedure is a standard in the industry, such that the parties understood that payments due to Mr. Franklin for work performed were to be routed through his employer, Claims One, which would deduct the 10% due it, then remit to Mr. Franklin his 65% commission. Accordingly, Fountain asserts that it did not breach its contract with Mr. Franklin, as it paid the full 75% to Claims One.

The essential elements of a breach of contract claim are the existence of a contract, the party's breach thereof, and resulting damages. Favrot v. Favrot , 10-0986, pp. 14 15 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1108-09 (citations omitted). The party claiming the rights under the contract bears the burden of proof. Id. , 10-0986, p. 15, 68 So.3d at 1109.

1100 South Jefferson Davis Parkway, LLC v. Williams , 14-1326, p. 5 (La.App. 4 Cir. 5/20/15), 165 So.3d 1211, 1216, writ denied , 15-1449 (La. 10/9/15), 178 So.3d 1005.

"When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La.Civ.Code art. 2046. A contract is interpreted by a determination of the common intent of the parties, giving the contractual words their generally prevailing meaning. La.Civ.Code art. 2045 ; La.Civ.Code art. 2047 ; Amend v. McCabe, 95-316 (La. 12/1/95), 664 So.2d 1183.

At the hearing on his motion for summary judgment, Mr. Franklin was required to present evidence to support his claim before the burden could shift to Fountain. 1100 South Jefferson Davis Parkway, LLC , 165 So.3d 1211. To do so, Mr. Franklin attached various documents to his motion and noted that he submitted Requests for Admissions to Fountain during discovery. Mr. Franklin asserted that Fountain never responded to the admissions requests. The documentation attached to Mr. Franklin's motion included these unanswered Requests for Admissions, in addition to the contracts with Fountain that Mr. Franklin signed. Fountain filed no objection. Therefore, Mr. Franklin contends that the requests for admissions should be deemed as true, citing La.Code Civ.P. art. 1467(A) (emphasis added), which reads:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. The written answer or reasons for objection to each request for admission shall immediately follow a restatement of the request for admission to which the answer or objection is responding. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Article 1472, deny the matter or set forth reasons why he cannot admit or deny it.

In St. Julien v. Landry , 12-100 (La.App. 3 Cir. 6/20/12), 94 So.3d 976, the defendant moved for summary judgment, averring that the plaintiff could not prove that the defendant was the owner of a dog which had caused the plaintiff's damages. In finding that summary judgment was improperly granted, this court observed the following:

We review the grants of a summary judgment de novo. In reviewing the case before us, we first note that the record does not contain any response filed by Defendant to Plaintiff's Requests for Admissions of Fact. Under the provisions of La.Code Civ.P. art. 1467(A), a fact is deemed admitted if the responding party fails to timely "serve[ ] upon the party requesting the admission" his written answer or objection. A responding party ordinarily has fifteen days to file his response or objection, however, La.Code. Civ.P. art. 1467(A) also provides that "a defendant shall not be required to serve answers or objections before the expiration of thirty days after service of the petition upon him." Plaintiff filed suit on November 29, 2010, and attached to her Petition to be served upon Defendant a Request for Admissions of Facts and Interrogatories. Defendant did not file an Answer until April 6, 2011. From the record before us, we are able to determine that Defendant failed to timely answer or object to Plaintiff's Requests for Admissions of Fact and they are therefore deemed to be admitted. The trial judge should have considered these admissions of fact, as directed in La.Code. Civ.P. art. 966, when deciding whether to grant or deny Defendant's motion for summary judgment. The facts deemed to be admitted by Defendant are contrary to Defendant's representations in her affidavit.
....
Thus, faced with the facts deemed to be admitted by Defendant and the contradictory facts asserted in her affidavit, the trial judge, in order to reach his decision, would have had to engage in weighing the facts. Such is not appropriate on summary judgment, as this by its very nature indicates there are genuine issues of material facts in dispute. Moreover, at this stage of the proceedings, Plaintiff, relying on the facts deemed to be admitted by Defendant, shifted the burden of proof on the Motion for Summary Judgment to Defendant.

Id. at 979 (alteration in original).

Similarly, in the instant case, the record indicates that no responses were filed by Fountain to the Requests for Admissions, nor did Fountain seek to have the admissions set aside by the trial court. Therefore, the trial court should have considered the Requests for Admissions as admitted for purposes of the hearing on the motion for summary judgment in the instant case. La.Code Civ.P. art. 1476 ; La.Code Civ.P. art. 966. We do so here and include the admissions in our review of the evidence submitted to the trial court for purposes of summary judgment. The following Requests for Admissions, amongst others, were submitted by Mr. Franklin to Fountain:

REQUEST FOR ADMISSIONS NO. 3:
Admit or deny that in 2012 Fountain Group hired Clifton Franklin as an Independent Contractor to provide insurance claim adjusting services for which Fountain Group agreed to compensate Clifton Franklin for performing said adjustment of insurance claims by paying him equal to 65% of Fountain Group's compensation based on the applicable Fee Schedule.
REQUEST FOR ADMISSIONS NO. 5:
Admit or deny that Fountain Group never directly compensated Clifton Franklin in full in accordance with the 2012 contract/agreement to hire Clifton Franklin after Clifton Franklin did perform his job by adjusting those claim assignments assigned to him on behalf of Fountain Group from 2012-2014.
REQUEST FOR ADMISSIONS NO. 6:
Admit or deny that Fountain Group received compensation related to the adjustment of insurance claims Clifton Franklin adjusted from 2012-2014 after he was hired by Fountain Group as an Independent Contractor in 2012 to provide insurance claim services on behalf of Fountain Group.
REQUEST FOR ADMISSIONS NO. 7:
Admit or deny that Clifton Franklin did perform his job by adjusting all claim assignments assigned to him from 2012-2014 on behalf of Fountain Group, after he was hired by Fountain Group as an Independent Contractor in 2012 to provide insurance claim adjusting services.
REQUEST FOR ADMISSIONS NO. 11:
Admit or deny that from 2012-2014, Clifton Franklin did perform his job of adjusting all claim assignments assigned to him on behalf of Fountain Group, after he was hired by Fountain Group as an Independent Contractor in 2012 to do so, to the satisfaction of Fountain Group in accordance with their agreement.
REQUEST FOR ADMISSIONS NO. 12:
Admit or deny that Clifton Franklin is still owed compensation for his services of adjusting claim assignments assigned to him on behalf of Fountain Group from 2012-2014, after he was hired by Fountain Group as an Independent Contractor in 2012 to provide insurance claim adjusting services.

Mr. Franklin also filed an affidavit in support of the motion for summary judgment. In addition to verifying the fact that he had entered into the agreement with Fountain, Mr. Franklin also averred:

In accordance with my normal course of business practice and accounting, I am owed from Fountain Group Adjusters, LLC, outstanding compensation for thirty-six (36) claims I successfully adjusted in the amount of $28,395.74 representing SIXTY-FIVE PERCENT (65%) of the agreed contact rate for those thirty-six (36) claims I successfully adjusted on behalf of Fountain Group Adjusters LLC.

In response, the sole owner of Fountain, Mr. Fountain, also submitted an affidavit, his in support of Fountain's opposition to Mr. Franklin's motion for summary judgment. Mr. Fountain's affidavit does not contradict the facts set forth in Mr. Franklin's affidavit nor the Requests for Admissions. The only exception being that Mr. Fountain states, "13. At all times pertinent herein, CLIFF FRANKLIN signed a FOUNTAIN GROUP agreement that he would be paid sixty-five (65%) percent of all adjusting commissions earned, which would be paid by FOUNTAIN GROUP to CLAIMSONE ." However, a thorough reading of the referenced contract between Mr. Franklin and Fountain shows that it does not contain a provision directing that Fountain was going to pay Mr. Franklin's commission to Claims One. The two contracts between the parties, attached to Mr. Franklin's motion for summary judgment, are dated August 28, 2012 and December 4, 2012. Neither of these contracts provides that Fountain was to pay Mr. Franklin's commission to Claims One, rather than to Mr. Franklin himself.

"[W]hen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law." Sims v. Mulhearn Funeral Home, Inc. , 07-0054, p. 10 (La. 5/22/07), 956 So.2d 583, 590. "Interpretation of a contract is the determination of the common intent of the parties." La. Civ.Code art. 2045. The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Sims , 07-0054 at p. 7, 956 So.2d at 589 ; McConnell v. City of New Orleans , 35 La. Ann. 273 (1883). "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. Civ.Code art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co. , 93-0911, p. 5 (La. 1/14/94), 630 So.2d 759, 763. Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. See Maloney v. Oak Builders, Inc. , 256 La. 85, 98, 235 So.2d 386, 390 (1970) ; McConnell , 35 La. Ann. at 275. Most importantly, a contract "must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance." Lambert v. Maryland Cas. Co. , 418 So.2d 553, 559 (La.1982).

Prejean v. Guillory , 10-740, pp. 6-7 (La. 7/2/10), 38 So.3d 274, 279 (alteration in original).

Thus, even with full consideration of the affidavit of Mr. Fountain, this court concludes that the trial court erred in failing to grant summary judgment in favor of Mr. Franklin for the amounts owed under the contract. As stated above, Mr. Franklin objected to the documentation attached to the opposition brief filed in the trial court. Further, the trial court granted Mr. Franklin's motion that certain unspecified attachments be struck; although it is clear to this court that those attachments intended to be struck were the emails and text messages between Fountain, Claims One, and Claims One's owner, John Melvan. We note that Fountain has not filed its own writ application arguing that the trial court erred in making this interlocutory ruling.

Furthermore, we find that the contract between Mr. Franklin and Fountain provided that Fountain was to pay Mr. Franklin the commissions that he earned. Nowhere in the contract between Fountain and Mr. Franklin is there a provision that states Fountain is to pay Mr. Franklin's commissions to a third party, who is unnamed in the instrument and is not a party to the contract. The contract between Mr. Franklin and Fountain expressly provides that the terms of that agreement are not to be altered unless such alteration is set forth in writing between them. While there may be a separate contract between Fountain and the third party, Claims One, Mr. Franklin was not a party to that contract, just as Claims One was not a party to Mr. Franklin's contract with Fountain. Therefore, the provisions of the contract between Fountain and Claims One cannot be used by Fountain to alter the terms of its contract with Mr. Franklin. See Prejean , 38 So.3d 274. Further, as noted by Mr. Franklin, the fact that Fountain had already paid Claims One the amount due to Mr. Franklin does not affect Fountain's liability to Mr. Franklin under the contract, nor does the custom in the industry override the express provisions of that contract. When the language of a contract or clause is unambiguous, "the letter of that clause should not be disregarded under the pretext of pursuing its spirit[.]" Encana Oil & Gas (USA) Inc. v. Brammer Eng'g, Inc. , 51,045, p. 6 (La.App. 2 Cir. 11/16/16), 209 So.3d 995, 1000, writ denied , 17-242 (La. 3/31/17), 217 So.3d 361. Accordingly, as to the question of liability, we find summary judgment in favor of Mr. Franklin to be appropriate.

Next, having found that per the express provisions of the contract Mr. Franklin is entitled to direct payment from Fountain of any sums owed but not yet received, we turn to the amount claimed. Mr. Franklin asserts that he is owed $28,395.74. However, we note that the proof of that amount is limited to the conclusory statement of Mr. Franklin, himself, in his own affidavit in support of his summary judgment motion. The facts, as presented, clearly indicate that of the money paid by Fountain to Claims One, Mr. Franklin did in fact receive from Claims One a significant amount of the total payment owed to him. Fountain's filings indicate a total of $245,737.00 was paid to Claims One, representing Claims One's 10% override and Mr. Franklin's 65% commission. Of the $245,737.00 paid by Fountain, it is not clear from the record what amount Mr. Franklin actually received from Claims One, and thus, how much money he is actually still owed. Mr. Franklin's motion for summary judgment contains the following conclusion:

In accordance with the facts, law and evidence enumerated herein, summary judgment should be granted against Fountain Group Adjusters, LLC for breach of contract and damages in the amount of $28,395.74 plus legal interests [sic] from date of original demand and court costs. Alternatively, summary judgment should be granted against Fountain Group Adjusters, LLC as to the issue of liability concerning breach of contract.

There is no documentation in the record that demonstrates the accuracy of the sum claimed by Mr. Franklin. Accordingly, although we conclude that summary judgment should be granted in favor of Mr. Franklin on the issue of liability for any amounts unpaid pursuant to the subject contract, we find that there is a material issue of fact as to the actual amount due to Mr. Franklin from Fountain pursuant to his work performed under the terms of the contract. Further, Fountain admits that there is also a hold back applied to the commission payments until a final audit is done, and thus we find there is a material issue of fact in existence as to the effect thereof on the amount due Mr. Franklin.

DISPOSITION

For the reasons assigned, we reverse the judgment of the trial court denying summary judgment in favor of the Plaintiff, Clifton Franklin, and render summary judgment in his favor on the issue of the liability of the Defendant, Fountain Group Adjusters, LLC, for payment of unpaid commissions due Plaintiff, and remand to the trial court for a determination of the amount owed pursuant thereto, and for the resolution of all issues remaining not presently before this court.

WRIT GRANTED; JUDGMENT REVERSED IN PART; RENDERED IN PART; AND REMANDED.

      Claims One was also referred to as Claimsone and Claims 1 One and various other similar titles in the writ application and documents attached thereto.

      In the opposition memorandum filed in the city court, Fountain stated that Claims One had been added as a third party to the litigation; however, no pleading attached to the instant writ application shows this information to be true.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Tracy ALEXANDER v. STATE of Louisiana, DEPARTMENT OF CHILDREN & FAMILY SERVICES
    18-154
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
    Nicholas Pizzolatto, Jr., Department of Children & Family Services, 1919, Kirkman Street, Lake Charles, LA 70601, (337) 491-2470, COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services
    Richard D. Moreno, Richard D. Moreno, LLC, 125 W. School Street, Lake Charles, LA 70601, (337) 433-9535, COUNSEL FOR PLAINTIFF/APPELLANT: Tracy Alexander
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.
   AMY, Judge.

After proceedings related to the State's filing of a "Petition for Termination of Parental Rights and Certification for Adoption" concerning two minor children, the trial court rendered judgment terminating the mother's parental rights. The mother ultimately filed a petition for nullity and corresponding motion for summary judgment. However, the trial court denied her motion for summary judgment and dismissed her petition for nullity, and the mother now appeals that judgment. For the following reasons, we affirm.

Factual and Procedural Background

On July 1, 2015, the State, through the Louisiana Department of Children and Family Services (DCFS), filed a "Petition for Termination of Parental Rights and Certification for Adoption" concerning two of the minor children of Tracy Alexander. A bench trial on the merits of the petition was held on December 1, 2015. The children's mother, Ms. Alexander, was not present at the trial, and neither Ms. Alexander's counsel, Richard P. Moreno, nor counsel for DCFS had an explanation for her absence. Mr. Moreno explained to the trial court that he had recently "been unable to contact [Ms. Alexander], despite repeated efforts" but that he had "her last current address" and had "notified her twice by mail and once in conversation" about the trial date. Citing Ms. Alexander's absence, Mr. Moreno orally moved for a continuance, which the trial court denied, and the matter proceeded in her absence. The trial court ultimately granted DCFS's petition, thus terminating Ms. Alexander's parental rights over the minor children.

On December 15, 2015, Ms. Alexander filed a motion for new trial based on her absence at the trial. At a hearing on the motion, Lazetter West, the DCFS caseworker handling Ms. Alexander's case, testified that on November 5, 2015, she received a letter from Mr. Moreno requesting that Ms. West arrange transportation for Ms. Alexander to attend the December 1, 2015 trial. Ms. West explained that, after receiving the letter, she "tried to call Ms. Tracy on the number, but for some reason, [she] couldn't get through" because the "number kept being busy or something." She stated that she further tried to reach Ms. Alexander by calling the residence where Ms. Alexander had reported to be living and the place where Ms. Alexander had reported to be working but was informed that Ms. Alexander no longer lived nor worked there, respectively, and had not provided forwarding information. Ms. West confirmed that she did not alert Mr. Moreno of her inability to get in touch with Ms. Alexander to schedule transportation prior to trial.

Ms. Alexander also testified at the hearing. When asked whether she was aware of the trial date beforehand and whether she was aware that she needed to attend the trial, Ms. Alexander answered: "I wasn't aware I needed to be here, but I was aware of it." Regarding her efforts to attend the trial, she indicated that she called Ms. West "two or three days before the court date" and left voicemail messages asking Ms. West to return her calls. Ms. Alexander stated that she did not receive return phone calls from Ms. West and had no other means to attend the trial. Ms. Alexander also stated that she called her attorney in the days leading up to trial, and the following colloquy occurred:

Q. Did you ever call your lawyer before the trial?
A. Yes.
Q. After you could not get hold of Ms. West?
A. I called him, and he's the one who told me to call Ms. West to file for a ride.
Q. Okay. And then you called her and couldn't get her?
A. Yes.
Q. That was the 25th. That was six days prior to trial?
A. Yes.
Q. Yeah, six days prior to trial. Now, I do know that Thanksgiving, I believe, was the 26th.
A. Uh-huh (yes).
Q. Did you try on the 27th? Did you try on the 30th?
A. No, I didn't try after those days. I tried-
Q. You tried calling your lawyer on those days.
A. Yeah, I tried calling my lawyer on those days. And I called, and she said she was going to give him a message to call me back, and he didn't call me back yet.
Q. Okay. So your lawyer didn't call you back?
A. Yes.

At the hearing on the motion for new trial, Ms. West also testified that although her telephone number had changed around October 19, 2015 when she received a promotion, she recorded a voicemail greeting that notified callers that her telephone number had changed and provided her new telephone number. Regarding the change to Ms. West's telephone number, Ms. Alexander stated that, prior to the trial, she had called and left voicemail messages on the old telephone number and did not learn of Ms. West's new telephone number until after the trial. She testified that the voicemail greeting on the old telephone number provided Ms. West's name and stated that "she couldn't be reached at the time. Please leave a name and a message, and she'll get back to" the caller. Ms. West testified that she had checked her old voicemail every day prior to the trial and had not received any messages from Ms. Alexander. She stated that she "never heard from Ms. Tracy" and did not receive any voicemail messages from Ms. Alexander until after the trial on approximately December 19, 2015.

Following the hearing, the trial court denied Ms. Alexander's motion for new trial. In oral reasons for ruling, the trial court stated:

It is clear that the DCFS worker did not call the lawyer for Ms. Alexander to tell him that she could not locate Ms. Alexander to pick her up from wherever she was to bring her to trial. However, the worker did attempt, and I'm satisfied that the worker did attempt to contact Ms. Alexander and was unable to do so and actually contacted the third person that was involved in the matter, who also did not know where Ms. Alexander was.
I am not going to expand the duties of the DCFS workers to call the lawyers to tell them that they can't get in touch with the clients to pick them up to bring them to court. I think that goes above and beyond what should be expected of them.
Also, I find that the testimony of the DCFS worker, Ms. West, was more detailed and credible then [sic] that of Ms. Alexander when it comes to the issue of who was called when and what messages were left, et cetera.

Ms. Alexander appealed, and a panel of this court affirmed the trial court's denial of the motion for new trial, as well as the termination of parental rights. Ms. Alexander then filed a writ application, which the supreme court denied. See State in the Interest of G.M.A. , 16-405 (La.App. 3 Cir. 9/28/16), 201 So.3d 1014, writ denied , 16-1945 (La. 11/18/16), 210 So.3d 290.

Thereafter, on December 1, 2016, Ms. Alexander filed a "Verified Petition for Nullity of Judgment for Fraud and Ill Practices" in which she asserted:

The aforementioned failures of DCFS to arrange for transportation for TRACY to the December 1 Termination Trial, or to inform TRACY's counsel of that failure before December 1, or to inform the trial court of that failure at the December 1, 2015 Termination Trial constitute fraud and ill practices within the meaning of Article 2004B of the Louisiana Code of Civil Procedure.

In response, DCFS filed an exception of res judicata and a motion for summary judgment, asserting that the issues raised by Ms. Alexander's petition had been considered in this court's September 28, 2016 judgment and that "there does not exist a genuine issue of material fact that has not been determined by the prior tribunals[.]" Thereafter, Ms. Alexander filed a motion for summary judgement concerning her petition for nullity. The trial court ultimately denied Ms. Alexander's motion for summary judgment, dismissed her petition for nullity, and granted DCFS's motion for summary judgment, stating, in part:

In reviewing the Joint Stipulations of Fact, it is clear that ALEXANDER's attorney had requested transportation for ALEXANDER to the termination hearing, and that in response, the DCFS case worker assigned to the case attempted prior to the trial to contact ALEXANDER to arrange transportation to the termination trial, but was unable to contact ALEXANDER. The Joint Stipulation further provides that ALEXANDER's own counsel of record tried to contact her for some 3 weeks or so prior to the trial, and was likewise unable to do so.
The Court finds that the DCFS attempts to contact ALEXANDER to arrange for transportation were sufficient. The Court further finds that ALEXANDER was aware of the trial date, and that it was her duty to ensure that she attended such hearing if she desired to do so. There was no ill practice or fraud perpetuated by DCFS in this matter.

Ms. Alexander appeals that judgment, asserting the following assignments of error:

I. The trial court erred by granting the State-DCFS'[s] Motion for Summary Judgment and dismissing the Petition for Nullity of Judgment for Fraud and Ill Practices filed by TRACY ALEXANDER.
II. The trial court erred by denying the Motion for Summary Judgment filed by TRACY ALEXANDER on her Petition for Nullity of Judgment for Fraud and Ill Practices.

Discussion

In reviewing a trial court's grant or denial of summary judgment, an appellate court reviews the matter de novo using the same criteria that governed the trial court's consideration. Carriere v. State , 97-1305 (La.App. 3 Cir. 3/6/98), 708 So.2d 822, writ denied , 98-0958 (La. 5/29/98), 720 So.2d 335. According to La.Code Civ.P. art. 966(A)(3), "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." As the second circuit has explained, "[b]ecause the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case." Payne v. Glass , 41,232, p. 5 (La.App. 2 Cir. 8/23/06), 939 So.2d 526, 529 (citing Lemann v. Essen Lane Daiquiris, Inc. , 05-1095 (La. 3/10/06), 923 So.2d 627 ).

Here, the parties' motions for summary judgment concerned Ms. Alexander's petition for nullity. Accordingly, we turn to consideration of La.Code Civ.P. art. 2004(A), which provides that "[a] final judgment obtained by fraud or ill practices may be annulled." In discussing La.Code Civ.P. art. 2004, the supreme court has explained:

In Johnson v. Jones-Journet , 320 So.2d 533 (La.1975), this Court reviewed the historical development of C.C.P. art. 2004 and noted that the jurisprudence under Art. 607 of the Code of Practice (the source of present C.C.P. art. 2004 ) established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. Since that time, this Court has accepted those two requirements as the necessary elements in establishing a nullity action under Art.2004. See Gladstone v. American Auto. Ass'n, Inc. , 419 So.2d 1219 (La.1982) ; Kem Search, [Inc. v. Sheffield , 434 So.2d 1067 (La.1983) ] ; Belle Pass Terminal, Inc. v. Jolin, Inc. , 01-0149 (La. 10/16/01), 800 So.2d 762.
However, those cases also further defined the types of conduct required to establish those two elements depending on the type of fraud or ill practice alleged. This Court has held that "the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations where a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable." Power Marketing [Direct, Inc. v. Foster , 05-2023 (La. 9/6/06), 938 So.2d 662,] 671 ; Kem Search, supra at 1070 (citing Chauvin v. Nelkin Ins. Agency, Inc. , 345 So.2d 132 (La.App. 1 Cir.), writ denied , 347 So.2d 256 (La.1977) ); see also, Schoen v. Burns , 321 So.2d 908 (La.App. 1 Cir.1975) ; St. Mary v. St. Mary , 175 So.2d 893 (La.App. 3 Cir.1965) ; Tapp v. Guaranty Finance Co. , 158 So.2d 228 (La.App. 1 Cir.1963), writ denied , 245 La. 640, 160 So.2d 228 (1964).
The Court in Kem Search further defined the required "deprivation of legal rights" as "[c]onduct which prevents an opposing party from having an opportunity to appear or to assert a defense."
Id. This definition was further expanded in Belle Pass , which held that "a right to a fair and impartial trial is a legal right entitled to all participants in a legal proceeding." 800 So.2d at 767.

Wright v. La. Power & Light , 06-1181, pp. 12-13 (La. 3/9/07), 951 So.2d 1058, 1067 (footnotes omitted).

In her petition for nullity, Ms. Alexander argued that the failure of DCFS to arrange for her transportation to the trial constituted fraud and ill practices, which deprived her of her right to testify. In interpreting La.Code Civ.P. art. 2004, the second circuit has stated:

Our jurisprudence is equally clear, however, that an action for nullity is not ... the solution to legal rights lost through one party's negligence or failure to act. Design Associates, Inc. v. Charpentier , 537 So.2d 1233 (La.App. 4th Cir.1989), writ denied , 540 So.2d 340 (La.1989) ; Berwick Bay Oil Co. v. Sunrise Shipping , 525 So.2d 239 (La.App. 1st Cir.1988).

State, Dep't of Soc. Servs., Office of Family Support in Interest of Glass v. Robinson , 31,025, p. 3 (La.App. 2 Cir. 9/23/98), 718 So.2d 609, 611. Additionally, the first circuit has stated that "[w]hen a party fails to act on its own behalf and suffers a loss as a result, an action for nullity is not the proper remedy." Mike v. Bob's Painting , 07-2190, p. 8 (La.App. 1 Cir. 9/26/08), 995 So.2d 43, 49-50 (citing McKinney Saw & Cycle v. Barris , 626 So.2d 786, 789 (La.App. 2 Cir. 1993) ).

For example, in State Through Dep't of Soc. Servs. v. Jones , 94-2605 (La.App. 1 Cir. 10/6/95), 671 So.2d 404, Derek Jones was served with a copy of a petition to establish paternity but did not answer the petition, and, after a confirmation hearing on a preliminary default, the trial court rendered judgment finding that the minor child was the natural child of Mr. Jones. Subsequently, Mr. Jones filed a petition to annul the judgment of paternity, asserting that he had been told by counsel for the Department of Social Services ("Department") that blood tests would be performed. Id. Counsel for the Department testified that, when a defendant in a paternity case wishes to take a blood test, the typical procedure is to file a joint motion and order for paternity testing, which was not done in the case. Id. In addition to finding that Mr. Jones filed his petition for nullity more than one year after the judgment was rendered contrary to La.Code Civ.P. art. 2004(B) and affirming the grant of the Department's exception of prescription, the first circuit affirmed the dismissal of Mr. Jones' petition for nullity, stating: "Moreover, while it may be argued that Jones may have believed that blood tests would be taken, he was put on notice that such was not the case when he did not receive any motion or order to appear for such blood tests subsequent to his conversation with" counsel for the Department. Id. at 408.

Here, Ms. Alexander asserted that DCFS committed fraud and ill practices by failing to arrange transportation. However, based on the testimony adduced at the hearing on the motion for new trial, the inability to arrange for transportation appears to stem, at least in part, from Ms. Alexander's failure to act on her own behalf in that she had not provided DCFS with current contact information. See Mike , 995 So.2d 43. Based on Ms. West's testimony, she did not have an accurate phone number, home address, or workplace location to be able to contact Ms. Alexander. Moreover, while it may be argued that Ms. Alexander believed that transportation would be provided, Ms. Alexander was put on notice that transportation arrangements had not been made when she neither spoke with anyone from DCFS nor received information about any such arrangements. See Jones , 671 So.2d 404. Though Ms. Alexander testified that she called her attorney, left messages for him, and did not receive a return phone call, her testimony fails to indicate that her messages notified her attorney of her inability to speak with Ms. West. Ms. Alexander testified that she was aware of the trial date. However, there is no indication that, as the trial date approached, Ms. Alexander notified anyone, including her attorney, that she had been unable to arrange transportation with DCFS. Thus, the trial court did not have that information available to it on the day of trial. As discussed above, a petition for nullity is not "the solution to legal rights lost through one party's negligence or failure to act." Robinson , 718 So.2d at 611.

In her petition for nullity, Ms. Alexander also stated that DCFS's failure to disclose to either her counsel or the trial court the inability to arrange transportation constitutes fraud and ill practices that deprived her of her right to testify. The supreme court has explained:

Regarding nullity actions such as this one where a party alleges the other party withheld information at trial, Gladstone [v. American Auto. Ass'n, Inc. , 419 So.2d 1219, 1223 (La.1982) ] held that "[d]iscovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity." [ ] As the Court explained:
... the mere failure to disclose information at a hearing does not necessarily constitute fraud or ill practice. That determination depends on the nature of the information and the circumstances surrounding the hearing. A party is not obliged to produce evidence favorable to the opponent or to present the opponent's version of the case, and the failure to disclose all information on the issue is not ill practice unless concealment or deceit is involved. Moreover, a party may present only his version of the occurrence, as long as he does not use false or perjured testimony or forged documents.
Id. The Court found that the plaintiff "had every opportunity to support her defenses in the hearing before the appeals referee" and that she "simply did not exercise sufficient diligence in marshaling and presenting evidence of her version of the facts leading up to her termination." Id. In reaching this holding, the Court in Gladstone relied on a nullity case dating back to 1932, which held that "an unsuccessful litigant may not attack a judgment as fraudulent because the other party failed to disclose certain facts within his knowledge, when the plaintiff with reasonable diligence could have ascertained those facts himself ." Id. at p. 1223, n. 6 (citing First Nat'l Life Ins. Co. v. Bell , 174 La. 692, 141 So. 379 (1932) (emphasis added) ).

Wright , 951 So.2d at 1068. See also Andrus v. Chrysler Financial Corp. , 99-105, p. 9 (La.App. 3 Cir. 6/2/99), 741 So.2d 780, 785 (wherein a panel of this court noted "that the fact that a plaintiff presents only its own version of the controversy and fails to disclose a contrary position or view held by the defendant does not constitute fraud or ill practices, provided that the plaintiff does not present its contentions on false, fabricated, or perjured testimony"), writ denied , 99-1968 (La. 10/15/99), 748 So.2d 1150.

Turning to the facts of this case, Ms. Alexander could have, with reasonable diligence, ascertained both that she would not be present at the trial and the reasons that she would not be present. Namely, she testified that she had no independent means of transportation and had not spoken with Ms. West or anyone else at DCFS prior to the trial to arrange for transportation. Thus, because her absence and the reasons for said absence are information that Ms. Alexander could have ascertained herself, we find that there was no fraud or ill practice relating to DCFS's failure to disclose its unsuccessful attempts to arrange transportation with Ms. Alexander. See Wright , 951 So.2d 1058.

Above we have determined that DCFS's inability to arrange for transportation and failure to disclose this inability do not constitute fraud or ill practices pursuant to La.Code Civ.P. art. 2004. We thus find that Ms. Alexander did not prove that she was entitled to a judgment of nullity pursuant to La.Code Civ.P. art. 2004. Accordingly, we conclude that the trial court properly dismissed Ms. Alexander's petition for nullity; denied Ms. Alexander's motion for summary judgment; and granted DCFS's motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Tracy Alexander.

AFFIRMED.

      A recording of the voicemail greeting associated with Ms. West's old telephone number was played during the hearing and transcribed as follows: "AUDIO RECORDING: 'You've reached the desk of Lazetter West with the Department of Children and Family Services. I am letting you know that my number has been changed, and the new number is [xxx-xxx-xxxx]. Again, my number has been changed to [xxx-xxx-xxxx]. Thank you. Please record after the beep.' "

      Ms. Alexander's motion for appeal, as well as the corresponding order of appeal, contained the captions and the trial court docket numbers of both the termination of parental rights proceeding and the petition for nullity. The appellate record of each was lodged with this court. The latter is addressed herein. For disposition of the companion matter, see State in the Interest of G.M.A. & K.K.A. , 18-153 (La.App. 3 Cir. 6/6/18), 244 So.3d 1212, 2018 WL 2715420.


author: Judge Terri F. Love

text:
    STATE of Louisiana v. Bradley B. PARVEZ
    NO. 2017-KA-0809
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 20, 2018
    Leon Cannizzaro, District Attorney, ORLEANS PARISH, Donna Andrieu, Assistant District Attorney, Chief of Appeals, William Dieters, Assistant District Attorney, Michael Danon, Assistant District Attorney, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE, STATE OF LOUISIANA
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, COUNSEL FOR DEFENDANT/APPELLANT, BRADLEY PARVEZ
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   Judge Terri F. Love

This appeal arises from defendant's manslaughter conviction. The defendant appeals as to the insufficiency of the State's evidence to refute his self-defense argument. The defendant also contends the trial court abused its judicial discretion by denying his motion to visit the crime scene and violating his right to present a defense by limiting the number of crime scene photos presented to the jury.

We find the evidence sufficiently supported the defendant's conviction. The trial court did not abuse its discretion by denying the motion to visit the crime scene and did not violate the defendant's right to present a defense, as cumulative evidence was presented. Accordingly, the defendant's conviction is affirmed. However, having discerned an error in the defendant's sentence, we remand the matter for resentencing in accordance with La. C.Cr.P. art. 893.3(E)(1)(a) and La. C.Cr.P. art. 893.3(E)(2).

FACTUAL BACKGROUND

On November 13, 2014, Bradley Parvez heard someone outside his door that he believed to be the mailman. Mr. Parvez continued to hear noises as if someone was walking from the back door to the front door using the alley alongside the house. Mr. Parvez went to the front door and observed Timothy Rainwater allegedly attempting to steal a bicycle. Mr. Parvez shot and killed Mr. Rainwater.

PROCEDURAL HISTORY

The State indicted Mr. Parvez for the second degree murder of Mr. Rainwater. Mr. Parvez pled not guilty. The State filed a Motion to Invoke Firearm Sentencing Provision pursuant to La. C.Cr.P. art. 893.3. Following a four-day jury trial, the jury rendered a verdict of guilty of the crime of manslaughter. Counsel for Mr. Parvez filed a Motion for New Trial, which the trial court denied. Mr. Parvez was sentenced to twenty-five years at hard labor, without benefit of parole, probation or suspension of sentence for twenty years of the sentence. Mr. Parvez's Motion for Out-of-Time appeal was granted.

Mr. Parvez contends there was insufficient evidence to support his conviction, that the trial court abused its discretion by denying his request for the jury to visit the crime scene, and prevented him from presenting a defense by limiting the number of crime scene photographs presented to the jury.

TESTIMONY AND EVIDENCE

New Orleans Police Department ("NOPD") 911 operator Sehara Webb identified the incident recall printout of the 911 call related to this case and the audio recording of that 911 call. The 911 recording was played for the jury.

The 911 call begins with Mr. Parvez stating he shot Mr. Rainwater, who was trying to steal his bicycle. Mr. Parvez then says he had to shoot Mr. Rainwater because he grabbed for Mr. Parvez's gun. Next, Mr. Parvez gives the 911 operator his address and says that the victim is a black male and is deceased. Mr. Parvez proceeds to recite a clothing description of Mr. Rainwater and once again states Mr. Rainwater grabbed for Mr. Parvez's gun. Mr. Parvez identifies himself by name, gives his address, and says he shot Mr. Rainwater three times. Mr. Parvez tells the operator to send help quickly so Mr. Rainwater can be saved.

Christopher Ronning, who lived across the street from Mr. Parvez's residence, heard four gunshots at about 10:00 a.m. on November 13, 2014. Mr. Ronning looked out his front door and viewed Mr. Parvez standing in his front doorway. Mr. Ronning did not witness the actual shooting, but noticed that Mr. Parvez's glass storm door was shattered, and that a body was on the ground in Mr. Parvez's front yard. Mr. Ronning could see Mr. Parvez was agitated, and heard him voice a racial epithet toward Mr. Rainwater.

Lieutenant Nicholas Gernon testified that Detective Wayne DeLarge was the lead detective on the case and was one of the first officers to arrive on the scene. However, as Mr. Parvez had already been taken into custody, Detective DeLarge relocated to police headquarters with Mr. Parvez.

When Lieutenant Gernon arrived on the scene, he observed the glass storm door at Mr. Parvez's 1932 Fern Street residence was shattered and Mr. Rainwater's body lying on the ground in the front yard. Lieutenant Gernon walked the scene and found six spent bullet cartridges, a pair of work gloves, a pair of pliers on the front steps, and a chain securing a bicycle to the iron railing on the front steps. Lieutenant Gernon noted that an attempt had been made to cut a link in the chain.

Reviewing the evidence found at the scene, Lieutenant Gernon opined that the glass storm door was shattered by a bullet fired from inside of the residence. Lieutenant Gernon stated that the work gloves and pair of pliers found on the steps next to Mr. Parvez's bicycle suggested that Mr. Rainwater was shot as he was attempting to steal Mr. Parvez's bicycle. In addition, Lieutenant Gernon recalled that the position of the shell casings indicated Mr. Parvez was walking toward Mr. Rainwater, in a pursuing manner, as he fired. Mr. Rainwater's wounds -one in the back, another in the back of the head and a third to his right hand-supported Lieutenant Gernon's conclusion that Mr. Rainwater was fleeing when he was shot. NOPD officers canvassed the neighborhood, but did not locate anyone who witnessed the shooting.

While investigating Mr. Parvez, Lieutenant Gernon discovered that Mr. Parvez received NOPD training in 2005, and worked for the Sheriff's Office until 2006, when he resigned to take a job with the Tulane University Police Department.

Lieutenant Gernon's testimony refuted Mr. Parvez's allegation that Mr. Rainwater's attempt to enter Mr. Parvez's house and grab the gun, caused the shooting by jamming Mr. Parvez's hand between the exterior storm door and door frame, causing the gun to fire during the ensuing scuffle. Lieutenant Gernon said the absence of Mr. Rainwater's DNA on the handle of the storm door contradicted Mr. Parvez's claim that Mr. Rainwater tried to open the storm door to enter the residence. Moreover, Lieutenant Gernon noted that the position of the shell casings supported the State's theory that Mr. Parvez fired as he was approaching Mr. Rainwater, not standing still, as claimed. Lieutenant Gernon said that if Mr. Parvez had been stationary while firing, the shell casings would have pooled in one spot rather than fanning out across the front yard.

Orleans Parish Coroner's Office forensic pathologist Dr. Cynthia Gardner conducted the autopsy on Mr. Rainwater. As a result of Dr. Gardner's findings, the Orleans Parish Coroner classified Mr. Rainwater's death a homicide from multiple gunshot wounds. Dr. Gardner narrated her autopsy findings on a body diagram, identifying a gunshot wound to Mr. Rainwater's back between his shoulder blades, one to the little finger of his right hand, which she described as a close range/defensive wound based on the presence of soot, and finally, one shot, the fatal injury, to the back of Mr. Rainwater's head.

NOPD Crime Laboratory firearms identification expert, Meredith Acosta, tested six spent bullet casings retrieved at the shooting scene. She learned the casings were fired by the weapon seized from Mr. Parvez the day of the shooting. Ms. Acosta corroborated Lieutenant Gernon's testimony that ballistics evidence and Mr. Rainwater's gunshot wounds to the back indicated that Mr. Parvez was pursuing Mr. Rainwater as he attempted to flee through the alley on the left side of the house. Ms. Acosta opined that had the shooter been standing still as he fired at Mr. Rainwater, the shell casings would have collected in one location rather than spreading from one side of the yard to the other.

DNA Forensic Analyst Elizabeth Hamilton tested blood samples obtained from the living room of Mr. Parvez's residence, neither of which contained Mr. Rainwater's DNA. Ms. Hamilton also confirmed that testing of the handle of the storm door was negative for the presence of Mr. Rainwater's DNA. The only objects that contained Mr. Rainwater's DNA were the handles of the pliers found on the scene.

Mr. Parvez recalled the events immediately preceding the shooting. He testified that while he was in the rear of the house, he heard the front yard gate open and the storm door at the entrance of his residence open and then close. He assumed the noises were made by the mailman delivering a package by placing it inside the storm door. Mr. Parvez then heard someone walking from the back yard to the front of the property via the alley on the left side of his residence. Mr. Parvez suspected someone was trying to enter his house. He walked to the front of his residence, and while doing so, armed himself with a gun. Mr. Parvez opened the interior wood front door and peered out into the yard, but he did not see anyone. He noticed that the storm door was slightly ajar at that time, so he moved the unlatched storm door slightly with his left hand, while holding his gun in his right hand. He took one step out of the house onto the front steps to inspect the front yard. He did not see anyone and nothing in the front yard appeared disturbed. As he turned to re-enter his house, he saw Mr. Rainwater approaching him from the alley. Mr. Rainwater slammed the storm door against Mr. Parvez wedging Mr. Parvez's gun between the door and Mr. Rainwater's body. The force of the storm door hitting Mr. Parvez and the ensuing scuffle, during which Mr. Rainwater grabbed for Mr. Parvez's gun, caused the weapon to fire and dislodge the handle of the storm door. Mr. Parvez sensed that the glass in the storm door shattered, but he did not know what caused it to break. The gun fired six more times, with one bullet hitting Mr. Rainwater in his right hand. After that, Mr. Rainwater took five or six steps and then fell to the left of the house near the alley. Mr. Parez did not know Mr. Rainwater had been shot anywhere, other than in the hand. Mr. Parez claimed he fired the gun in self-defense and denied pursuing and shooting Mr. Rainwater.

During cross-examination, the State introduced six jailhouse phone calls were played for the jury placed by Mr. Parez, during which he allegedly spoke disparagingly about his girlfriend and stated that he would not be convicted of this crime.

ERRORS PATENT

A review for errors patent reveals one irregularity as to Mr. Parvez's sentence.

Mr. Parvez was charged with second degree murder, and the State invoked the firearm sentencing provision of La. C.Cr.P. art. 893.3(E). Mr. Parvez was convicted of manslaughter. The trial court sentenced him to serve twenty-five years at hard labor, specifying that the first twenty years of the sentence be served without the benefit of probation, parole or suspension of sentence.

La. C.Cr.P. art. 893.3(E)(1)(a) provides:

Notwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of twenty years.

Further, La. C.Cr.P. art. 893.3(E)(2) provides that "[a] sentence imposed under this Paragraph shall be without benefit of parole, probation or suspension of sentence."

By restricting only twenty years of the sentence without benefit of parole, probation or suspension of sentence, the trial court imposed an illegally lenient sentence. La. C.Cr.P. art. 893.3(E)(2) mandates that the entire sentence imposed be served without benefits. However, neither Mr. Parez nor the State objected to the sentence; and the State did not appeal the sentence or otherwise raise the issue in this Court.

In State v. Kelly , 15-0484, pp. 5-14 (La. 6/29/16), 195 So.3d 449, 452-58, the Louisiana Supreme Court addressed the extent to which appellate courts may correct illegally lenient sentences as patent errors. In Kelly, the defendant was convicted of molestation of a juvenile and sentenced to fifteen years at hard labor, without benefit of parole, probation or suspension of sentence, pursuant to La. R.S. 14:81.2(B)(2) relative to molestation of a victim between the ages of thirteen and seventeen. 15-0484, p. 2, 195 So.3d at 450. In Kelly, as in this case, the State did not object on the record to the sentence, nor did the State appeal or seek review of the sentence. 15-0484, p. 2, 195 So.3d at 451. The defendant appealed his conviction, which the Third Circuit affirmed; however, conducting errors patent review, the circuit court found the defendant's sentence illegally lenient, noting that the victim was under thirteen and La. R.S. 14:81.2(D)(1) provides a minimum sentence of twenty-five years. Id. , 15-0484, p. 2-3, 195 So.3d at 451. The majority found the fifteen-year sentence imposed by the district court illegally lenient and remanded for resentencing pursuant to La. R.S. 14:81.2(D)(1). Id. , 15-0484, p. 3, 195 So.3d at 451.

The defendant sought writs in the Supreme Court, which affirmed the conviction, but found that the Third Circuit exceeded the statutorily-imposed scope of errors patent review when finding the defendant's sentence illegally lenient. Id. , 15-0484,p. 14, 195 So.3d at 458. Accordingly, the Supreme Court reversed the Third Circuit ruling, which vacated the defendant's sentence, and remanded the matter to the district court for reinstatement of sentence, amending the sentence by removing the restrictions as to parole, probation or suspension of sentence. Id. The Supreme Court reasoned:

Louisiana courts have long screened appeals for patent error. See, e.g., State v. Behan, 20 La. Ann. 389 (1868). Currently, in accordance with La. C.Cr. P. art. 920, all appeals are routinely reviewed for errors patent on the face of the record. See, e.g., State v. Shaw, 12-686 (La. App. 5 Cir. 1/16/13), 108 So.3d 1189, 1197 ; State v. Celestine, 11-1403 (La. App. 3 Cir. 5/30/12), 91 So.3d 573, 575 ; State v. Bourda, 10-1553 (La. App. 3 Cir. 6/8/11), 70 So.3d 82, 83. La. C.Cr. P. art. 920 provides: "The following matters and no others shall be considered on appeal: (1) An error designated in the assignment of errors; and (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. " (Emphasis added). The substance of Article 920(2) was taken from former La. R.S. 15:503 which "defined an error 'patent on the face of the record.' " La. C.Cr. P. art. 920, 1966 Revision Comment (c) (as amended to conform to 1974 amendment). Former La. R.S. 15:503 provided: "An error is patent on the face of the record when it is discoverable by the mere inspection of the pleadings and proceedings and without any inspection of the evidence, though such evidence be in the record." In State v. Oliveaux, 312 So.2d 337, 339 (La.1975) this court explained the scope of review under La. C.Cr. P. art. 920(2) :
We have determined that the record in a criminal case includes the caption, the statement of time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the mentioning of the impanelling of the jury, the verdict, and the judgment, State v. Palmer, 251 La. 759, 206 So.2d 485 (1968), State v. Sanford, 248 La. 630, 181 So.2d 50 (1965) ; the bill of particulars filed in connection with a short form indictment or information, State v. Picou, 236 La. 421, 107 So.2d 691 (1959) ; and, in capital cases, a minute entry indicating that the jury had been sequestered as required by La. C.Cr.P. Art. 791, State v. Hunter, 306 So.2d 710 (La.1975), State v. Luquette, 275 So.2d 396 (La.1973).

Kelly , 15-0484, p. 6, 195 So.3d at 453.

In this case, there is no need to exceed the bounds of an errors patent review as discussed in Kelly. Although neither of the parties raised the issue, this Court did not have to peruse the evidence to locate the error. An inspection of the sentence imposed, and a review of the statutory provision under which Mr. Parvez was sentenced reveals the error without the need to examine evidence in the case. Accordingly, we remand the matter for resentencing in accordance with La. C.Cr.P. art. 893.3(E)(1)(a) and La. C.Cr.P. art. 893.3(E)(2).

SUFFICIENCY OF THE EVIDENCE

Mr. Parvez contends the evidence was insufficient to support his conviction for manslaughter because the State failed to negate his claim of self-defense.

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), this Court " 'must determine that the evidence, viewed in the light most favorable to the prosecution, "was sufficient to convince a rational trier of fact that all the elements of the crime had been proved beyond a reasonable doubt.' " State v. Neal , 00-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657, quoting State v. Captville , 448 So.2d 676, 678 (La. 1984). A factfinder's decision concerning the credibility of a witness will not be "disturbed unless it is clearly contrary to the evidence." State v. Bernard, 14-0580, p. 11 (La. App. 4 Cir. 6/3/15), 171 So.3d 1063, 1073, quoting State v. James , 09-1188, p. 4 (La. App. 4 Cir. 2/24/10), 32 So.3d 993, 996. When the defendant challenges the sufficiency of the evidence in a homicide case urging self-defense, the State "has the burden of proving, beyond a reasonable doubt", that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742, p. 5 (La. 5/20/03), 846 So.2d 753, 756-57.

Mr. Parvez was charged with second-degree murder, which is defined as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1. "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). " 'Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant.' " State v. Davenport , 16-0223, p. 23 (La. App. 4 Cir. 10/18/17), --- So.3d ----, ----, 2017 WL 4700652, *43, quoting State v. Bishop , 01-2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437 and State v. Caliste , 12-0533, p. 9 (La. App. 4 Cir. 9/4/13), 125 So.3d 8, 14. A defendant's act of aiming a lethal weapon and discharging it in the direction of his victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. State v. Hoffman, 98-3118, p. 48 (La. 4/11/00), 768 So.2d 542, 585.

While Mr. Parvez was charged with second degree murder, he was convicted of the responsive verdict of manslaughter-a homicide which would be second-degree murder "but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection." La. R.S. 14:31A(1). See also La. C.Cr.P. art. 814A(3). "Lesser and included grades of a charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged." State v. Johnson , 01-0006, p. 4 (La. 5/31/02), 823 So.2d 917, 920. "Thus, evidence sufficient to support conviction of the greater offense will necessarily support conviction of the lesser and included offense." Id. " 'Sudden passion' and 'heat of blood' are not elements of the offense of manslaughter; rather, they are" mitigating factors lessening the culpability of a defendant. State v. Lombard, 486 So.2d 106, 110 (La. 1986). Conversely, a homicide or the intentional killing of a human being is justifiable "[w]hen committed in self-defense by one who reasonably believes that he is imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." La. R.S. 14:20A(1).

In this case, the evidence demonstrated Mr. Parvez possessed the specific intent to kill Mr. Rainwater. In Mr. Parvez's 911 call, he told the operator that he shot Mr. Rainwater because Mr. Rainwater was attempting to steal his bicycle. The testimony of coroner Dr. Gardner suggested Mr. Rainwater was moving away from Mr. Parvez when he was shot. This was evidenced by the gunshot wounds to Mr. Rainwater's back between his shoulder blades and another in the rear of his head. The testimony offered by firearms examiner Ms. Acosta and Lieutenant Gernon documented that Mr. Parvez fired at Mr. Rainwater seven times. Further, those witnesses corroborated Dr. Gardner's opinion that Mr. Rainwater was fleeing when he was shot, based upon the position of spent bullet casings at the scene. Ms. Acosta and Lieutenant Gernon testified that if Mr. Parvez had been standing still while shooting at Mr. Rainwater, the bullet casings would have been located in one area. However, the bullet casings formed a trail from the steps of Mr. Parvez's residence to the place where Mr. Rainwater's body was found, exhibited by photographs of the crime scene. Thus, we find that the evidence herein was sufficient to support a conviction for second degree murder, and consequently, sufficient to support Mr. Parvez's conviction of manslaughter.

Regarding Mr. Parvez's claim of self-defense, the evidence supporting his contention that the shooting was justified was his own trial testimony, which was uncorroborated by the facts. Mr. Parvez reported to the police that he shot Mr. Rainwater to thwart the theft of his bicycle. Moreover, his trial testimony belies his thought that he was in fear of an imminent attack inside his residence: "At the time I saw [the victim], I had the feeling he was trying to disarm me, not burglarize me. He was trying to cause great bodily harm to me." However, there was no corroborating evidence that Mr. Parvez feared for his life. Mr. Parvez, as the evidence showed, was larger than Mr. Rainwater by no less than one hundred pounds and admitted that Mr. Rainwater was unarmed. In addition, the pattern of broken glass in the front of the house indicated Mr. Parvez shot from inside his residence rather than during a scuffle in the doorway. The evidence demonstrated that Mr. Rainwater died as a result of being shot in his back and the rear of his skull. In State v. Ventry, 99-0302, p. 4 (La. App. 4 Cir. 6/14/00), 765 So.2d 1129, 1132, this Court rejected the defendant's self-defense claim in light of the fact that although the defendant claimed he shot the victim as the victim approached him, the victim was shot in the back. Viewing all the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Mr. Parvez did not shoot Mr. Rainwater in self-defense. Thus, the evidence sufficiently supported his conviction.

VIEWING THE SCENE

Mr. Parvez contends that the trial court abused its discretion by denying his motion to have the jurors view the crime scene.

"The grant or denial of a motion to have the trier of fact view the scene of the crime is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion." State v. Carney, 476 So.2d 364, 371 (La. App. 4th Cir. 1985).

In denying Mr. Parvez's motion, the trial judge reasoned:

Louisiana Code of Procedure, Article 762, Paragraph 2, Place of Sessions in Court allows for Court to be conducted out of the court house, under the Court's discretion, in certain circumstances, including for a Jury to view the place where the crime, or any material part thereof is alleged to have occurred, in this case the Codal Article leaves it up to the discretion of the Judge, in terms of the alleged offense, or the evidence, which cannot conveniently be brought into Court. As noted, the State has presented upwards of eighty-plus exhibits, including multiple photos of the crime scene, as well as blowup photos of the actual house in question, and the space in question. In addition, the State has presented the actual door, that's sort of been the subject matter of the circumstances surrounding how this all took place. And on numerous occasions throughout this trial, the last couple of days, it has been demonstrated, it's been discussed with various experts, as well as Mr. Parvez, himself, how this allegedly took place, based on the State's theory of their case, based on the Defense's theory of its defense. And so, the Court finds that the Jury has had ample enough information presented to them in Court to get an idea of what that scene, and what that space actually looks like. And so ... the Court finds that the evidence was actually brought into Court, and there were numerous demonstrations throughout the course of testimony by both the experts and Mr. Parvez

The jurors viewed fifty-four photos of the crime scene, two poster boards-one of the residence and the other a schematic diagram of the scene depicting location of evidence and plotting of distances wherein the shooting occurred-plus eight pictures of the interior of Mr. Parvez's residence. As the jurors viewed the photographs, Lieutenant Gernon explained what each depicted. Through his testimony, the jury was able to visualize the exterior of the residence, the front yard where the shooting occurred, and the spatial relationship between the storm door, the front yard, and the alignment of Mr. Rainwater's body vis-à-vis the steps leading into the residence. Considering the photographs and testimony, the trial court did not abuse its discretion by denying Mr. Parvez's Motion to View the Scene.

LIMITATION OF PHOTOGRAPHS

Mr. Parvez asserts he was denied his constitutional right to present a defense as a result of the trial court's refusal to allow him to introduce twenty-one photographs of the crime scene in addition to the testimony of Mark Johnson, Mr. Parvez's landlord.

Prior to the start of the fourth day of trial, counsel for Mr. Parvez arranged for photographs to be taken of the crime scene. He moved to have the photos admitted at trial in addition to the proposed testimony of Mr. Johnson that he replaced the storm door with another identical to the original door and the measurements of the crime scene taken that morning. The State objected as to timeliness, but also noted that Mr. Parvez's mother appeared in the pictures "measuring distances" and that there were "actors"-one pretending to be Mr. Parvez and another posing as Mr. Rainwater-allegedly depicting the crime scene.

The trial court judge denied Mr. Parvez's request, noting:

the Court finds that these photos actually mirror the photos that have already been introduced into evidence, notwithstanding the fact that we now have people in certain placement, in the photos. And so, because of that reason, and because this information is only recently provided to the State, while we're one, in the middle of trial, and two, in the middle of testimony by Mr. Parvez, which had to end so abruptly last night, the Court is going to deny introduction of these photos at this time.

" 'Relevant' evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." State v. Farrier , 14-0623, p. 13 (La. App. 4 Cir. 3/25/15), 162 So.3d 1233, 1243. La. C.E. art. 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." "A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion." State v. Gray , 16-1195, p. 21 (La. App. 4 Cir. 6/28/17), --- So.3d ----, ----, 2017 WL 3426021, *11.

The trial court found the photographs cumulative to the testimony of Mr. Parvez and the State's witnesses, as well as the photographs already introduced by the State. The State filed its Motion for Discovery in accordance with La. C.Cr.P. art. 724 on February 1, 2016, prior to the start of trial; yet counsel for Mr. Parvez did not provide these photos to the State until the third day of trial.

"Louisiana's criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to meet the state's case, and to allow a proper assessment of the strength of its evidence in preparing a defense." State v. Allen, 94-2262, p. 4 (La. 11/13/95), 663 So.2d 686, 688. There is nothing in the record to explain counsel for Mr. Parvez's failure to marshal, until the third day of trial, the evidence it wished to introduce. Nor was there a reason for having the "actors" and Mr. Parvez's mother stage the scene for the photos.

Finally, Mr. Parvez's right to present a defense was not violated by the trial court's refusal to allow the landlord, Mr. Johnson, to testify about the measurements he had taken of his property. The trial court restricted the introduction of the photographs, not Mr. Johnson's testimony. In fact, Mr. Johnson testified extensively about the exterior physical layout of the property, including measurement of distances between structural features of the property, via the photographs introduced by the State. As such, we find that Mr. Parvez's right to present a defense was not violated.

DECREE

For the above-mentioned reasons, Mr. Parvez's conviction is affirmed. We remand the matter to the trial court for resentencing in accordance with La. C.Cr.P. art. 893.3(E)(1)(a) and La. C.Cr.P. art. 893.3(E)(2).

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING

LOBRANO, J., CONCURS IN THE RESULT

JENKINS, J., CONCURS IN PART AND DISSENTS IN PART

JENKINS, J., CONCURS IN PART AND DISSENTS IN PART

I concur in the affirmation of defendant's conviction. I dissent, however, from the majority's conclusion that the district court imposed an illegally lenient sentence under La. C.Cr.P. art. 893.3(E). I find that the district court complied with the firearm sentence enhancement provisions of La. C.Cr.P. art. 893.3(E) by sentencing defendant to 25 years, of which 20 years shall be served without benefit of parole, probation, or suspension of sentence. The latter part of defendant's sentence meets the mandatory minimum requirements of La. C.Cr.P. art. 893.3(E)(1)(a) and (2).

" Article 893.3 merely provides for the imposition of a mandatory minimum sentence when a firearm is used in the commission of a felony." State v. Washington , 05-0431, p. 9 (La. App. 4 Cir. 12/7/05), 921 So.2d 139, 144. As this Court discussed in Washington , the repeated use in La. C.Cr.P. art. 893.3 of the phrase "mandatory minimum sentence" makes it clear that the enhanced sentences provided by that statute are simply mandatory minimum sentences for the crimes for which the defendant has been convicted. Id. ; see also , State v. Brown , 03-0732, pp. 7-8 (La. App. 4 Cir. 7/23/03), 853 So.2d 665, 669-70.

In this case, the district court sentenced defendant to 25 years in accordance with the sentencing statute of La. R.S. 14:31, the crime for which defendant was convicted. Then, in compliance with the firearm sentencing enhancement provisions of La. C.Cr.P. art. 893.3(E)(1)(a) and (2), the district court found that defendant discharged a firearm during the commission of a violent felony and imposed 20 years of defendant's sentence to be served without benefit of parole, probation, or suspension of sentence. While I note that the district court had the authority and discretion under La. C.Cr.P. 893.3(E) to impose the entire 25 year sentence without benefits, I find no error in the district court's sentencing of defendant in accordance with both the sentencing statute of La. R.S. 14:31 and the sentence enhancement provisions of La. C.Cr.P. art. 893.3(E)(1)(a) and (2). See State v. Taylor , 34,823, pp. 5-6 (La. App. 2 Cir. 7/11/01), 793 So.2d 367, 369-70 ; State v. King , 563 So.2d 449, 458 (La. App. 1st Cir. 1990). Accordingly, I would affirm defendant's conviction and sentence.

      The first officers on the scene confiscated a fully loaded .9mm Glock Model 19 handgun from Mr. Parvez's residence.

      When sentencing Mr. Parvez, the trial court impliedly found that the State demonstrated he discharged a firearm during the commission of a violent felony, stating:
      Manslaughter generally carries a sentence of zero to 40 years. In this case, however, the State on January 1st of 2016, filed a firearm enhancement pursuant to Louisiana Code of Criminal Procedure 893.1. Under 893, 893.2 E, the State legislature has mandated as if a defendant commits a violent felony, i.e., in this case a manslaughter, with a firearm where in a firearm is discharged during the commission of such felony, the Court is required by the legislature to impose a minimum of at least 20 years imprisonment. That 20 years is without the benefit of parole, probation or suspension of sentence.
      Accordingly, considering the mandatory minimum sentence required by the firearm enhancement and considering the jury's finding of manslaughter, this Court must consider a sentencing range of 20 years to 40 years.
      * * *
      The court sentences Mr. Parvez to 25 years to the Department of Public Safety and Corrections, 20 of those years are to be served without the benefit of parole, probation or suspension of sentence.