author: HOLDRIDGE, J.

text:
    Ellen M. COLE v. Lauren Michelle THOMAS
    2017 CA 0666
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered March 22, 2018
    C. Glenn Westmoreland, Sherman Mack, Albany, LA, Attorneys for Plaintiff/Appellee, Ellen Cole
    Patrick E. Henry, Baton Rouge, LA, Attorney for Defendant/Appellant, Lauren Michelle Thomas
    Frank J. DiVittorio, Hammond, LA, Attorney for Defendant/Appellee, Whitney Bank
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

Defendant, Lauren Michelle Thomas Lawrence , the naked owner of a parcel of immovable property, appeals a judgment ordering her eviction from the property rendered in favor of plaintiff, Ellen Cole, the usufructuary of the property. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

On October 11, 2005, Mrs. Cole transferred ownership of a tract of immovable property located in Denham Springs, Louisiana, together with all buildings and improvements thereon, to her granddaughter, Ms. Thomas, by virtue of an Act of Inter Vivos Donation. The donated property, identified as "Tract D-3-A," is comprised of 0.954 acres of land. Mrs. Cole's mailing address was listed in the Act of Donation as 25878 Wax Road in Denham Springs. The Act of Donation was recorded in the Livingston Parish mortgage records on October 13, 2005.

In the Act of Donation, Mrs. Cole reserved the use and usufruct of the donated property for life. Ms. Thomas later placed a mobile home on the donated property behind a residence occupied by Mrs. Cole, and moved onto the property. The property on which the mobile home was placed has a municipal address of 9715 J.C. Lane (the corner of J.C. Lane and Wax Road). On October 29, 2007, Ms. Thomas executed an affidavit to immobilize the mobile home, declaring that the "mobile home shall be permanently attached to" the donated property. Mrs. Cole signed the affidavit as a witness.

Nearly nine years after the donation, on August 26, 2014, Mrs. Cole filed this lawsuit against her granddaughter seeking to dissolve the donation inter vivos pursuant to La. C.C. art. 1562, which provides for the dissolution of a donation subject to a suspensive condition when the condition can no longer be fulfilled. Mrs. Cole alleged that the donation was given with the understanding that Ms. Thomas would care for her; however, Ms. Thomas failed to fulfill that obligation by failing to assist her in any manner whatsoever in the preceding year. In the petition, Mrs. Cole stated that she was filing this lawsuit in accordance with La. C.C. art. 1563, which permits dissolution of a donation by judicial decree upon nonfulfillment of conditions or nonperformance of charges that the donee can perform or prevent. Mrs. Cole alleged that upon judicial dissolution of the donation, she desired that Ms. Thomas be evicted and removed from the property. Additionally and/or alternatively, Mrs. Cole asked that the court order the eviction of Ms. Thomas because she has a lifetime usufruct over the property and she no longer desired Ms. Thomas to be on the property.

Mrs. Cole filed a supplemental and amending petition in which she added Whitney Bank, the holder of a Multiple Indebtedness Mortgage against Ms. Thomas's naked ownership interest in the subject property subject to Mrs. Cole's usufruct, as a defendant in the lawsuit. Mrs. Cole alleged that Whitney Bank's rights may be affected by the requested dissolution of the donation and/or the eviction of Ms. Thomas from the property. She asked the court to dissolve the donation inter vivos and remove Ms. Thomas and her mobile home from the premises, and alternatively, that Ms. Thomas be evicted and removed from the property based on her lifetime usufruct. Whitney Bank answered the petition, stating that it took no position as to whether Ms. Thomas could be evicted from the property and mobile home, but asserted that Ms. Thomas could not remove the mobile home and Mrs. Cole could not compel the removal of the immobilized mobile home. Whitney Bank asserted that regardless of whether the donation was revoked, its mortgage on Tract D-3-A and the immobilized mobile home should remain valid and enforceable because Mrs. Cole consented to the placement of and immobilization of the mobile home on that tract of property. Whitney Bank also claimed that the mobile home did not interfere with Mrs. Cole's ability to exercise her usufruct. (R28)

In a joint pretrial order, the parties acknowledged that the Act of Donation transferred Tract D-3-A from Mrs. Cole to Ms. Thomas and that the mortgage made in good faith by Whitney Bank remained enforceable against Tract D-3-A even if the donation by Mrs. Cole to Ms. Thomas was revoked. They further identified the following established facts: (1) Ms. Thomas, as the naked owner of Tract D-3-A, placed the mobile home thereon on April 27, 2007, with the knowledge of and assistance of Mrs. Cole; (2) Mrs. Cole was aware of and consented to the immobilization of the mobile home on Tract D-3-A; (3) Whitney Bank did lend money for the purchase of the mobile home, which is secured by the Multiple Indebtedness Mortgage placed on Tract D-3-A; (4) Mrs. Cole was aware of and consented to the placement of the Multiple Indebtedness Mortgage in favor of Whitney Bank on Tract D-3-A; and (5) the placement of the mobile home on Tract D-3-A does not interfere with Mrs. Cole's use of the property.

A bench trial was held, during which Mrs. Cole testified and presented the testimony of her sons and a neighbor. Ms. Thomas testified and offered the testimony of her husband. Documentary evidence, including the Act of Donation, the affidavit to immobilize the mobile home, and the Multiple Indebtedness Mortgage, was also submitted at trial. Following the conclusion of the evidence, the trial court denied Mrs. Cole's request to invalidate the Act of Donation. The court stressed that it was required to look at the four comers of the document, found no basis in law to revoke the donation, and ruled that Ms. Thomas maintained ownership of the subject property. The court further ruled that the mortgage on the property in favor of Whitney Bank was valid. However, the court granted Mrs. Cole's request to evict Ms. Thomas from the property, giving Ms. Thomas 30 days to vacate the property. In ordering the eviction, the court noted that although the property was Ms. Thomas's property, Mrs. Cole did not want Ms. Thomas on the property while she was alive, and concluded that was Mrs. Cole's right because she maintained a usufruct over the property.

On December 14, 2016, the court signed a written judgment in which it held that the Act of Donation executed between Mrs. Cole and Ms. Thomas was valid and enforceable. The court further found that the Act of Immobilization and the Multiple Indebtedness Mortgage were made with the consent of Mrs. Cole, and therefore, the mortgage was valid and enforceable against the full ownership of the property, including the immobilized mobile home. Lastly, the judgment ordered Ms. Thomas to vacate the property at 25878 Wax Road in Denham Springs within 30 days of the rendition of the judgment.

The same day the judgment was signed, Ms. Thomas fax filed a petition for a suspensive appeal, which was filed into the record on December 15, 2016. An appeal bond was filed on December 15, 2016. On May 15, 2017, this court ex proprio motu issued a show cause order, observing that it appeared the appeal of the eviction is untimely and/or failed to comply with La. C.C.P. art. 4735. On September 15, 2017, another panel of this court referred the rule to show cause to the panel to which the appeal had been assigned.

TIMELINESS OF THE APPEAL

Article 4735, located in Title XI of the Code of Civil Procedure, sets forth procedural requirements for the "Eviction of Tenants and Occupants." It provides that an appeal does not suspend the execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. Mrs. Cole sought dismissal of the suspensive appeal pursuant to Article 4735 for numerous reasons, including: Ms. Thomas's failure to answer the petition for eviction under oath; Ms. Thomas's failure to plead any affirmative defenses which would entitle her to retain possession of the premises; and Ms. Thomas's failure to apply for and file an appeal bond within twenty-four hours after the rendition of the judgment of eviction. Ms. Thomas maintains that the action below was in the nature of a possessory action and an ordinary proceeding and as such, Article 4735 does not apply to the instant appeal.

We agree that Article 4735 does not apply to the instant appeal. It is well settled that an eviction proceeding is summary in nature, rather than ordinary, and involves the single issue of whether a lessor is entitled to possession of the leased premises. Keller Williams Realty v. Melekos, 2015 - 0679 (La. App. 1st Cir. 11/9/15), 2015 WL 6951406 *1 (unpublished). Title XI of the Code of Civil Procedure sets forth the procedural requirements for a lessor or owner of property to obtain a judgment of eviction against a lessee or an occupant, none of which were complied with by Mrs. Cole in this case. See La. C.C.P. arts. 4701 and 4702 (setting forth notice to vacate requirements). The underlying proceeding clearly was an ordinary proceeding in the nature of a declaratory judgment action, in which Mrs. Cole, in her position as the donor of the naked ownership interest in immovable property, sought to revoke that donation and the eviction of the donee from the property upon judicial dissolution of that transfer of ownership. Alternatively, Mrs. Cole sought to evict Ms. Thomas based on her position as a usufructuary, not as an owner or lessor of the subject property. We hold that the instant lawsuit is not the type of summary eviction proceeding to which Article 4735 applies. Since this matter was an ordinary proceeding, the appeal was taken well within the appeal delays set forth in La. C.C.P. art. 2123 for taking a suspensive appeal. Accordingly, we maintain the appeal.

PROPRIETY OF THE JUDGMENT OF EVICTION

In her appeal, Ms. Thomas contends that Mrs. Cole is not entitled to a judgment of eviction. She asserts that Mrs. Cole, as usufructuary, could bring an action against her as the naked owner of the property in the event that she is impeding or has impeded and/or frustrated Mrs. Cole's use and enjoyment of the property subject to the usufruct. Ms. Thomas maintains that Mrs. Cole failed to establish the existence of any such interference at trial. Additionally, Ms. Thomas contends that the proper procedural vehicle for the resolution of an alleged disturbance of the usufructuary's use and enjoyment of the property is a possessory action; however, Mrs. Cole failed to prove the elements required to prevail in a possessory action. Therefore, Ms. Thomas submits, the trial court's order that the she vacate the subject property was inappropriate under the applicable law and facts, and it must be reversed.

Mrs. Cole counters that the trial court's order of eviction was proper under Article 566 of the Louisiana Civil Code, which provides that a "usufructuary may institute against the naked owner or third persons all actions that are necessary to insure the possession, enjoyment, and preservation of his right." Mrs. Cole submits that this provision encompasses an action to seek eviction of an "occupant" who no longer has authority to remain on the property. She maintains that while she granted her granddaughter permission to move a mobile home on the premises, she has since decided that she no longer wants to allow Ms. Thomas the right to reside there and has exercised her right as usufructuary to have the naked owner removed from the property. She further submits that it is of "no moment as to the reason she wants the naked owner off the property." According to Mrs. Cole, the naked owner has no right to enter the property subject to the usufruct, and thus has no right to remain after being forbidden from entering the property by the usufructuary.

At trial, Mrs. Cole, who was 88 years-old at the time, testified that when she executed the Act of Donation, Ms. Thomas agreed she would take care of her for the rest of her life. Mrs. Cole expressed her desire to undo the donation because her granddaughter had not been very kind to her. Mrs. Cole learned that Ms. Thomas desired to place her in a nursing home, which greatly upset Mrs. Cole. She testified that she wanted Ms. Thomas off of the property because Ms. Thomas had not been treating her right. She admitted that the presence of the mobile home on the property has not stopped her from enjoying the use of her property; however, when she looks out on the property and sees Ms. Thomas back there, it upsets her.

Michael Thomas, Mrs. Cole's son and Ms. Thomas's father, testified that his daughter had agreed to take care of Mrs. Cole for as long as Mrs. Cole lived. He stated that when Mrs. Cole learned that Ms. Thomas was looking for places to "put her," Mrs. Cole became "unglued." Mrs. Cole's eldest son, Patrick Thomas, added that after his mother learned that Ms. Thomas wanted to put her in a nursing home, Mrs. Cole no longer wanted Ms. Thomas around her.

Ms. Thomas testified that her mobile home is in the very back portion of the property, while Mrs. Cole's home sits towards the middle of the nearly one-acre tract of land. She acknowledged that Mrs. Cole had been like a mother to her. Ms. Thomas testified that Mrs. Cole was "fit as a fiddle" prior to an automobile accident in 2010, following which Mrs. Cole's health started declining. She stated that she, her father, her uncle, and Mrs. Cole had a meeting, during which she took the position that the level of care required by her grandmother was more than she could do on her own. According to Ms. Thomas, everyone agreed at that meeting that Mrs. Cole would not be placed in a nursing home; however, Mrs. Cole still became upset. Ms. Thomas's mother, Kathleen Estilette, testified that after 2013, Mrs. Cole no longer wanted Ms. Thomas to care for her. Paul Lawrence, whom Ms. Thomas married in 2015, testified regarding the care Ms. Thomas provided for her grandmother prior to their marriage, and that afterwards, Ms. Thomas attempted to provide care for Mrs. Cole, but Mrs. Cole would not allow her to do so.

The Civil Code provisions on usufruct govern the parties' relative rights and responsibilities. Barnes v. Cloud, 46,685 (La. App. 2nd Cir. 12/14/11), 82 So.3d 463, 466. A personal servitude is a charge on a thing for the benefit of a person; a usufruct is one type of personal servitude. La. C.C. art. 534. A usufruct is a real right of limited duration on the property of another. La. C.C. art. 535. Louisiana Civil Code article 566 gives a usufructuary the right to institute all actions that are necessary to insure the possession, enjoyment, and preservation of his right against the naked owner. As it is a real right, the usufruct of immovable property is protected by three real actions: the petitory action, the possessory action, and the action of boundary. Louisiana Civil Code article 566 Revision Comments-1976 comment (b).

Mrs. Cole did not institute any of the real actions available to a usufructuary to protect her right to possess and enjoy the property subject to the usufruct. Instead, the main objective of this lawsuit was to obtain the dissolution of the donation inter vivos, which gave Ms. Thomas a naked ownership interest in the property, and to obtain Ms. Thomas's removal from the property because Ms. Thomas did not have a valid ownership interest therein. Furthermore, we disagree with the characterization of this lawsuit as one being in the "nature of a possessory action." The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he had been disturbed, or to be restored to the possession or enjoyment thereof, when he has been evicted. La. C.C.P. art. 3655. In order to prevail in a possessory action, Mrs. Cole would have been required to demonstrate that there had been an eviction or some other physical disturbance preventing her from enjoying her possession of the property. La. C.C.P. art. 3659. Mrs. Cole made no effort whatsoever to do so. Instead, she merely maintained that she had a legal right to evict Ms. Thomas from the property because she held the usufruct thereon and she no longer desired for Ms. Thomas to live there.

Ms. Thomas's ownership interest in the property was upheld by the trial court and that ruling has not been appealed. The only issue in this case is whether Mrs. Cole, the usufructuary of the property, has a legal right to obtain the naked owner's eviction from the property simply because she no longer desires for the naked owner to live on the property. Under the circumstances of this case, we find that the trial court erred in concluding that Mrs. Cole established legal grounds on which to obtain Ms. Thomas's eviction from the property subject to the usufruct.

Eviction is a proper remedy for an owner of immovable property, who wishes to evict a lessee or "occupant" therefrom, after the purpose of the occupancy has ceased. La. C.C.P. art. 4702 ; PTS Physical Therapy Service v. Magnolia Rehabilitation Service, Inc., 40,558 (La. App. 2nd Cir. 1/27/06), 920 So.2d 997, 999. Louisiana Code of Civil Procedure article 4702, which provides the basis for this remedy, was designed to give an owner of immovable property summary means to evict an occupant without fulfilling the burden and delay required in a petitiory action. Id. The eviction procedure may not be construed to conflict with the Louisiana Code of Civil Procedure articles relating to actions to determine possession and ownership. La. C.C.P. art. 4705. It is well settled that an eviction proceeding is not the appropriate remedy to determine real rights to immovable property. See Champagne v. Broussard, 401 So.2d 1060, 1064 (La. App. 3rd Cir.), writ denied, 409 So.2d 615 (La. 1981) ; Tartan Transport & Construction, Ltd. v. McDonald, 436 So.2d 1270, 1271 (La. App. 1st Cir.), writ denied, 442 So.2d 446 (La. 1983). Moreover, Mrs. Cole is not the owner of the property on which Ms. Thomas resides, and therefore, does not have a right to bring an eviction proceeding under the provisions of La. C.C.P. art. 4702.

A judgment of eviction rendered in favor of a plaintiff must be reversed when the plaintiff fails to prove the legal ground on which the defendant should be evicted. See Edwards v. Edwards, 439 So.2d 478, 479 (La. App. 1st Cir. 1983). We hold that the trial court erred as a matter of law in granting the eviction because Mrs. Cole failed to establish a legal basis on which a judgment of eviction could be rendered against Ms. Thomas.

CONCLUSION

For the foregoing reasons, we maintain the appeal. That portion of the judgment ordering the eviction of Lauren Michelle Thomas is reversed. In all other respects, the judgment appealed from is affirmed. All costs of this appeal are assessed against appellant, Ellen Cole.

APPEAL MAINTAINED; JUDGMENT AFFIRMED IN PART; REVERSED IN PART.

      The record reflects that defendant married prior to the trial of this matter. For the purposes of this appeal, we shall refer to defendant as Ms. Thomas.

      These same allegations and causes of action were asserted by Mrs. Cole in an initial pretrial order and a subsequent pretrial order. Ms. Thomas took the position that there was no basis in law or fact for the relief sought by Mrs. Cole based on the clear language of the Act of Donation which, conveyed Tract D-3-A to her. She asserted that Mrs. Cole is not entitled to revoke the donation and is not entitled to evict her from the property as the usufructuary of the property.

      Whitney Bank filed a brief in this court seeking affirmance of the judgment as to the enforcement and validity of the Act of Immobilization and Multiple Indebtedness Mortgage, neither of which is at issue in this appeal.

      We note that the principal objective of this lawsuit was to obtain a decree that the donation of the property to Ms. Thomas was invalid because of the failure of Ms. Thomas to allegedly fulfill a condition of the donation.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Rebecca RICHEY and Mark Richey, individually and on behalf of their minor children Jewel Richey and Cameron Richey v. Jason P. MILLER, Cisco Systems, Inc., Liberty Mutual Insurance Company and ABC Insurance Company
    NUMBER 2017 CA 0462
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: March 29, 2018
    James E. Shields, Sr., Gretna, LA, Counsel for Plaintiffs/Appellants, Rebecca and Mark Richey, individually and on behalf of their minor children, Jewel and Cameron Richey
    D. Russell Holwadel, Heather England Reznik, New Orleans, LA, Counsel for Defendant/Appellee, Cisco Systems, Inc.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

This is an appeal of a summary judgment dismissing claims of vicarious liability against an alleged tortfeasor's employer. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 24, 2015, Rebecca Richey was traveling north on LA 1088 driving her husband, Mark Richey, to work, while accompanied by their children, Jewel and Cameron Richey. Around the same time, Jason Miller was traveling south on LA 1088 after leaving Lakeshore High School, where he had been practicing football with his son. On approaching the westbound entrance to Interstate 12, Mrs. Richey turned left, traversing the southbound lanes of LA 1088, in the path of Mr. Miller's vehicle, which subsequently collided with the Richey vehicle. The collision caused the Richey vehicle to roll onto the driver's side, travel off the roadway, and impact a "One Way" traffic sign. The occupants of the Richey vehicle sustained injuries as a result of the collision.

On March 6, 2015, Mr. and Mrs. Richey, individually and on behalf of their minor children, filed a petition for damages against Mr. Miller, his employer, Cisco Systems, Inc., and their respective liability insurers, for the injuries and damages they sustained as a result of the February 24, 2015 accident. Cisco filed an answer denying any vicarious liability for the plaintiffs' claims. Sixteen months after the accident, on June 29, 2016, Cisco filed a motion for summary judgment, asserting that the plaintiffs would be unable to establish that Mr. Miller was acting in the course and scope of his employment at the time of the accident.

A hearing on Cisco's motion for summary judgment was originally scheduled for September 6, 2016, but was reset for October 11, 2016, pursuant to an unopposed motion filed by Cisco. Then on September 23, 2016, the plaintiffs filed a motion to continue the hearing and an expedited motion to compel the deposition of three Cisco employees. In the motion to continue, the plaintiffs referred to their motion to compel, and to the corporate deposition of Cisco scheduled for September 30, 2016, as the basis for their motion. The plaintiffs further alleged in the motion to continue that "upon information and belief," Cisco had no objection to removing the motion for summary judgment from the docket until the specified discovery was completed.

On September 28, 2016, Cisco filed objections on the record to several of the topics listed in the notice of the September 30, 2016 corporate deposition, which the plaintiffs had served on Cisco on September 23, 2016.

On September 30, 2016, the trial court continued the hearing on Cisco's motion for summary judgment to December 20, 2016. That date was maintained, despite Cisco filing an opposition to the plaintiffs' motion to continue on October 3, 2016, wherein it declared that it objected to and had always objected to any continuance of the hearing date. Cisco also filed an opposition to the plaintiffs' motion to compel the deposition of three of its employees, stating that the deposition of the three individuals sought to be deposed had never been "noticed," that none of the individuals were ever Mr. Miller's supervisor or manager, that any relevant information could have been explored in Cisco's corporate deposition, and that Robert Covington, Mr. Miller's supervisor, was prepared to serve as the corporate representative for the corporate deposition. Cisco noted, however, that the plaintiffs had unilaterally cancelled the corporate deposition after erroneously construing its objections to the notice of the corporate deposition as a motion to quash.

On November 3, 2016, the plaintiffs filed an expedited motion to determine what topics could be covered in the corporate deposition of Cisco.

On December 5, 2016, the plaintiffs filed an opposition to Cisco's motion for summary judgment and filed a supplemental memorandum in opposition on December 13, 2016. The plaintiffs also filed a motion for partial summary "judgments" on December 13, 2016, seeking a ruling from the trial court on what they characterized as fourteen "issues as [involve] vicarious liability." Because the plaintiffs' supplemental memorandum in opposition to Cisco's motion for summary judgment was filed less than 15 days prior to date of the hearing on the motion, Cisco filed a motion to strike the supplemental memorandum in opposition based on La. C.C.P. art. 966(B)(2), which motion was later granted by the trial court.

On December 20, 2016, the trial court considered not only Cisco's motion for summary judgment, but also the plaintiffs' motion to compel and the motion to determine the topics that could be covered at the corporate deposition. After hearing the arguments of counsel, the trial court granted summary judgment in favor of Cisco, dismissing the plaintiffs' claims against it, and denied the plaintiffs' motion to compel and motion to determine the topics for the corporate deposition. After prompting by plaintiffs' counsel, the trial court also denied the plaintiffs' motion for partial summary "judgments." The plaintiffs now appeal the judgment incorporating all of those rulings, which was signed by the trial court on January 19, 2017.

ASSIGNMENTS OF ERROR

1. Appellants were entitled to pending discovery ... before Appellees' summary judgment was heard. ...
2. Appellants were entitled to have the court determine what topics would be allowed in the 1442 corporate deposition of Appellees after Appellees objected to the topics.
3. The trial court [erred] in hearing all motions at the same time.
4. The case law presented in law and argument, apply to the case at Bar.
5. The trial court [erred] in not granting Appellants' Motion for Partial Summary Judgment.
6. Appellants['] partial summary judgments raise issue of genuine material fact.
7. The trial court [erred] in granting [Appellee's] Motion for Summary Judgment.

SUMMARY JUDGMENT PROCEDURE

After adequate discovery, a motion for summary judgment is properly 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. C.C.P. art. 966(A)(3). The mover bears the burden of proving that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. La. C.C.P. art. 966(D)(1). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must 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. La. C.C.P. art. 966(D)(1).

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Bice v. Home Depot U.S.A., Inc., 16-0447, p. 3 (La. App. 1st Cir. 12/22/16), 210 So.3d 315, 318.

DISCUSSION

In their first assignment of error, the plaintiffs basically contend that the trial court erred in granting summary judgment while pending discovery was still outstanding. We find no merit in this contention.

The requirement that a summary judgment should be considered only after "adequate discovery" has been construed to mean that there is no absolute right to delay action on a summary judgment motion until discovery is complete; rather, the requirement is only that parties have a fair opportunity to carry out discovery and to present their claim. Unless a party shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Welch v. East Baton Rouge Parish Metro. Council, 10-1532, p. 6 (La. App. 1st Cir. 3/25/11), 64 So.3d 249, 254. Hence, the mere contention of an opponent that he lacks sufficient information to defend a motion for summary judgment because of movant's failure to comply with discovery is insufficient to defeat the motion. Welch, 10-1532 at p. 7, 64 So.3d at 254.

A hearing on the plaintiffs' motion to compel the deposition of the three employees that Cisco refused to produce was scheduled for November 21, 2016, but neither the record nor the parties reveal why the hearing did not take place on that date. Instead, in their opposition to Cisco's motion for summary judgment, filed on December 5, 2016, the plaintiffs stated "[i]t is assumed these motions [referring to the motion to compel and a motion to determine the topics for the corporate deposition] ... [,] possibly overlooked, will all be heard on December 20, 2016." Hence, the plaintiffs did not object and appeared to have acquiesced in having the discovery motions decided at the same time as Cisco's motion for summary judgment. See Oliva v. Winn-Dixie Louisiana, Inc., 99-831, p. 8 (La. App. 5 Cir. 1/4/00), 756 So.2d 444, 448, writ denied. 00-0370 (La. 3/31/00), 759 So.2d 71 (wherein the court found that the trial court did not err in proceeding with the motion for summary judgment because the plaintiff never filed any motion to re-set the evidentiary hearing on her motion to compel when it did not take place on the day assigned, which was prior to the summary judgment hearing).

As for the motion to determine the topics for Cisco's corporate deposition, the record reveals that in a letter dated August 4, 2016, Cisco advised the plaintiffs of the exact same objections to the deposition topics that it filed into the record on September 28, 2016. The August 4, 2016 letter was in response to a July 29, 2016 letter from the plaintiffs, wherein the plaintiffs requested the corporate deposition and notified Cisco of the topics to be covered. However, it was only when Cisco again presented the same objections in response to the September 23, 2016 notice of the corporate deposition that the plaintiffs sought to have the court intervene. Further, the plaintiffs cancelled the deposition, refused to pursue the corporate deposition until the court had ruled on its motion to determine the topics for the corporate deposition, and did not object when the trial court scheduled the motion to be heard on the same date as the hearing on Cisco's motion for summary judgment.

Finally, on appeal, the plaintiffs also contest the fact that they were unable to depose Mr. Miller's wife and son prior to the hearing on Cisco's motion for summary judgment. In their motion to continue filed on September 23, 2016, which was granted by the trial court, the plaintiffs noted that the depositions of Mr. Miller's wife and son were scheduled for October 14, 2016. And while counsel for the plaintiffs apparently tried to implicitly argue that the trial court should deny Cisco's motion for summary judgment because the plaintiffs had yet to depose the wife and son, we observe that counsel never expressly stated that plaintiffs were unable or had not been allowed to depose the wife and son nor was a motion to compel filed seeking their depositions. Thus, the record reveals that in all instances, the plaintiffs were less than diligent in seeking requested discovery.

Additionally, in Diversified Marine Services, Inc. v. Jewel Marine, Inc., 16-0617, p. 12 (La. App. 1st Cir. 6/2/17), 222 So.3d 1008, 1017, this court affirmed a summary judgment rendered while discovery was still ongoing, based on the plaintiffs failure to object to or otherwise move for a continuance of the hearing and also because of the confidence the plaintiff expressed in the evidence that was available at the time of the hearing to oppose the motion.

In the instant case, the plaintiffs previously sought and were granted a continuance based on their assertion that they needed to obtain the depositions of three Cisco employees and the corporate deposition of Cisco. And while the plaintiffs continued to oppose Cisco's motion for summary judgment on the same basis, they did not seek a second continuance of the hearing, which was reset for December 20, 2016. Instead, the plaintiffs argued that the available evidence established material disputed facts sufficient to defeat Cisco's motion. Contemporaneously, plaintiffs asserted that the evidence was sufficient to grant them "partial summary judgments on issues of [Cisco's] vicarious liability," including whether Mr. Miller was "in the course and scope of his employment with Defendant, Cisco Systems, at [the] time of the accident."

Therefore, considering the plaintiffs' failure to ask for a continuance of the hearing, their opposition and separate motion for partial summary "judgments" indicating that the available evidence was sufficient to decide the matter of Cisco's vicarious liability, and their overall lack of diligence in seeking to obtain the discovery desired, we find no error in the trial court rendering summary judgment, despite there being outstanding discovery. And for the same reasons, we find no merit in the plaintiffs' second and third assignments of error, as well.

The plaintiffs remaining assignments of error focus on the correctness of the summary judgment rendered, which dismissed the plaintiffs' claims against Cisco upon finding there was no genuine issue of material fact as to whether Mr. Miller was in the course and scope of his employment at the time of the February 24, 2015 accident. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is "material" for summary judgment purposes can only be seen in light of the substantive law applicable to the case. Holt v. Torino, 12-1579, pp. 4-5 (La. App. 1st Cir. 4/26/13), 117 So.3d 182, 185, writ denied, 13-1161 (La. 8/30/13), 120 So.3d 267.

Louisiana Civil Code article 2320 states that "[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." In applying this article, it has been held that an employer's liability for its employee's conduct extends only to such tortious conduct that is within the course and scope of employment. Orgeron v. McDonald, 93-1353, p. 4 (La. 7/5/94), 639 So.2d 224, 226. Generally, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. An employer is thereby responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business. Orgeron, 93-1353 at p. 4, 639 So.2d at 226-27.

Normally, going to and from work is not an employment function for which the employer should be held liable. Further, an employer is not ordinarily liable for an employee's torts committed while going to and from lunch. Holt, 12-1579 at p. 6, 117 So.3d at 186. The rationale of this principle is that an employee usually does not begin work until he reaches his employer's premises. Therefore, unless the employee has a duty to perform a service or task en route, the employee's commute to and from work is usually considered outside the course and scope of employment. Fasullo v. Finley, 00-2659, p 5 (La. App. 4th Cir. 2/21/01), 782 So.2d 76, 81, writ denied, 01-0696 (La. 5/4/01), 791 So.2d 656.

The evidence offered in support of and in opposition to Cisco's motion for summary judgment consisted of the following: Mrs. Richey's responses to interrogatories propounded by Mr. Miller and his insurer; Mrs. Richey's responses to a request for production of documents propounded by Mr. Miller and his insurer; Mr. Miller's deposition; Mr. Miller's responses to interrogatories propounded by the plaintiffs; Mr. Miller's responses to a request for production of documents propounded by the plaintiffs; Cisco's responses to interrogatories and to requests for production of documents propounded by the plaintiffs; Mrs. Richey's responses to interrogatories and to requests for production of documents propounded by Cisco; phone records of voice calls for Mr. Miller's iPhone from February 18, 2015 to March 17, 2015; phone records of text messages for Mr. Miller's iPhone from January 26, 2015 to March 17, 2015; screen shots of iMessages from Mr. Miller's iPhone; the Uniform Motor Vehicle Traffic Crash Report for the February 24, 2015 accident; Mr. Richey's deposition; correspondence of counsel; and copies of emails sent and received for Mr. Miller's work email.

The foregoing evidence establishes that Mr. Miller was a salaried employee of Cisco, employed as a cable systems engineer designing networks for cable operators. While the payment of wages is one of the factors considered in determining whether an employee's conduct was in the course and scope of his employment, it has been held that the payment of "wages" refers to piecemeal or hourly wages rather than salary. If "wages" means payment of annual salary, virtually any salaried employee could be held to be engaged in the course and scope of employment at any time. Hargrave v. Delaughter, 08-1168, p. 7 (La. App. 3d Cir. 3/4/09), 10 So.3d 245, 250. Instead, when looking at wages, the court should focus on whether the employee was being compensated for the task and the time spent engaging in activities on behalf of the employer. Jack v. McFarland, 15-405, p. 6 (La. App. 3d Cir. 10/7/15), 175 So.3d 1169, 1173.

In performing his job duties, Mr. Miller typically worked from home. He did not have predetermined work hours nor a set amount of time that he worked, but said he "maybe" worked ten hours a day. He unequivocally stated, however, that he did not work "on call." Mr. Miller's work would sometimes require that he travel to work from a customer's site or possibly a hotel, for which travel he was compensated. Mr. Miller described his job at the time of the accident as being a resource technical subject matter expert who is called upon to provide a deeper explanation of a product for a customer. As he explained, he was the technical resource for company salespeople, such that he usually interacted with the company salespeople, but would also communicate directly with customers. He did not "cold call" customers, but would provide support as needed to the account teams that interfaced with customers.

Thus, considering the nature of Mr. Miller's work, clearly Mr. Miller's act of practicing football with his son, and the travel associated therewith, can in no way be viewed as a function of his employment, but instead was simply conduct instituted for purely personal considerations. Nevertheless, the evidence also discloses that at the time of the accident, Mr. Miller had in his possession a company cell phone. For use in his employment, Cisco provided Mr. Miller with an iPhone and an IP phone in his home. Mr. Miller did not possess a personal cell phone. Mr. Miller stated that he probably did most of his work through email.

On the date of the accident, Mr. Miller was driving home after practicing football with his son. In his deposition, Mr. Miller testified that he did not talk to anyone while in his vehicle nor did he text. Moreover, phone records for Mr. Miller's iPhone show that there were no phone calls or text messages to or from Mr. Miller's phone during the time frame of the accident. Screen shots from Mr. Miller's iPhone show an exchange of iMessages between Mr. Miller and his son at 2:22 p.m., wherein he arranged to meet his son at Lakeshore High School, and an exchange of iMessages between Mr. Miller and his wife at 3:39 p.m., wherein he informed his wife about the accident.

The evidence submitted also reveals that several emails were sent and received by Mr. Miller on the date of the accident. Mr. Miller identified most of the emails generated on the date of the accident as being work related. Only five of the emails occurred within proximity of the accident, which occurred roughly around 3:40 p.m. According to the evidence submitted, the only emails generated in proximity to the accident were sent at 2:34 p.m., 2:55 p.m., 2:56 p.m., 3:18 p.m., and 4:54 p.m. Of those five emails, only the 2:34 p.m. email was sent by Mr. Miller. All of the other emails were sent to Mr. Miller.

Other than the 2:34 p.m. email, the only other emails sent by Mr. Miller on the date of the accident were sent between 9:00 a.m. to 11:00 a.m. that morning. So the last email sent by Mr. Miller on the date of the accident was at 2:34 p.m. And while there were several emails sent to Mr. Miller after 2:34 p.m., including the ones previously identified, there is no evidence presented indicating that Mr. Miller read or responded to any of the subsequent emails sent to him on the date of the accident or that he was duty bound to immediately read and/or respond to them. Cf. Soileau v. D & J Tire, Inc., 97-318, p. 4 (La. App. 3d Cir 10/8/97), 702 So.2d 818, 821, writ denied, 97-2737 (La. 1/16/98), 706 So.2d 979 (wherein the court held that evidence that the employee was "duty bound" to keep his beeper on and to be ready to respond to a call supported the finding that the employee was in the course and scope of his employment at the time of the subject accident).

The determination of course and scope of employment is largely based on policy. The risks generated by an employee's activities while serving his employer's interests are properly allocated to the employer as a cost of engaging in the enterprise. However, if the employer has only a marginal relationship with the act that generated the risk and did not benefit by it, the purpose of the policy falls, and the responsibility for preventing the risk is solely upon the tortfeasor who created the risk while performing the act. Reed v. House of Decor, Inc., 468 So.2d 1159, 1162 (La. 1985).

As recognized by the court in Migliore v. Gill, 11-407, p. 6 (La. App. 5th Cir. 12/13/11), 81 So.3d 900, 903-04, writ denied. 12-0094 (La. 3/9/12), 84 So.3d 555 (quoting Thurmon v. Sellers, 62 S.W.3d 145, 154 (Tenn. Ct. App. 2001) ):

Modem technology has changed the means by which we communicate. Beepers, pagers, facsimile machines and cellular phones keep us literally at a fingertip's distance from one another. But on-call accessibility or availability of an employee does not transform his or her private activity into company business. The first question must always focus on scope of employment. Where the injury-producing activity is beyond that scope, no totality of other circumstances will result in respondeat superior liability.

Hence, in determining whether a particular accident may be associated with the employer's business enterprise, the court must essentially decide whether the particular accident is a part of the more or less inevitable toll of a lawful enterprise. When the tort becomes uncharacteristic of the business, vicarious liability is not imposed on the employer. Macaluso v. Travelers Casualty and Surety Company, 10-1478, p. 10 (La. App. 1st Cir. 2/23/11), 59 So.3d 454, 461-62.

In this case, the injury-producing activity was Mr. Miller's travel from his purely personal activity of practicing football with his son. And while Mr. Miller admitted and the record shows that Mr. Miller did perform work for Cisco on the date of the accident, there is nothing in the evidence presented that shows that Mr. Miller performed any work that benefited Cisco at the time of the accident or even after. The last act performed by Mr. Miller that could be construed as attenuating to Cisco's business was the email he sent at 2:34 p.m., which was while he was still at home and not at the time of the accident.

Thus, having thoroughly reviewed the evidence submitted in conjunction with the motion for summary judgment, along with La. C.C. art. 2320 and the jurisprudence applying the same, we find summary judgment dismissing the plaintiffs' claims against Cisco was properly granted. Hence, we find no merit in the remaining assignments of error raised by the plaintiffs.

CONCLUSION

For the forgoing reasons, we affirm the January 19, 2017 summary judgment dismissing the plaintiffs' claims against Cisco Systems, Inc. and cast all costs of this appeal to the plaintiffs, Rebecca and Mark Richey.

AFFIRMED.

      Louisiana 1088, where the accident occurred, is a four-lane, divided highway consisting of two sets of contiguous lanes separated by a median for travel in opposite directions.

      Many of the documents in record before us are annotated with a "fax filed" date, as well as a separate "filed" date. As no question has been raised regarding compliance with La. R.S. 13:850, throughout this opinion, we shall refer to documents as being filed on the fax-filed date indicated where applicable. See Hunter v. Morton's Seafood Restaurant and Catering, 07-2396, p. 10 (La. App. 1st Cir. 7/3/08), 992 So.2d 1078, 1084, aff'd, 08-1667 (La. 3/17/09), 6 So.3d 152.

      Mr. Miller testified that in January 2016, his position changed so that he currently worked for a business unit doing the same type of work.

      Mr. Miller described the IP phone as a telepresence video system that allows him to have video conversations with remote people.

      The phone records, which list information in military time, show two voice calls, one at 10:27 (a.m.) and the other 19:43 (7:43 p.m.), and two text messages, one at 22:47 (10:47 p.m.) and one at 22:49 (10:49 pm.) on the date of the accident.

      There were emails from a bicycle club that Mr. Miller identified as not being work related.

      Mr. Miller testified that he left his office to go practice football with his son a little before 3:00 p.m., "maybe 2:50, something like that."


author: STEPHENS, J.

text:
    Amber Rae KING, Plaintiff-Appellee v. Kiley Hubert KING, Defendant-Appellant
    No. 51,942-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018.
    JOHN SCOTT SARTIN, Counsel for Appellant
    SMITH & ASSOCIATES By: Leroy Smith, Jr. Counsel for Appellee
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   STEPHENS, J.

Kiley Hubert King appeals two judgments by the Sixth Judicial District Court, Parish of Madison, State of Louisiana, in connection with an award of interim spousal support to his former wife, Amber Rae King. For the following reasons, we amend the trial court's judgment, and as amended, we affirm.

FACTS

Amber Rae King and Kiley Hubert King were married on August 7, 1999, and have two children from their marriage. On January 26, 2016, Amber filed for divorce pursuant to La. C.C. art. 102, claiming the couple established separate residences on January 22, 2016. In addition to other incidental relief, Amber made a claim for interim spousal support pursuant to La. C.C. art. 113.

Kiley responded with an answer and reconventional demand, wherein he sought a divorce from Amber on the grounds of adultery with Chad Ezell, a man she allegedly began cohabiting with upon the Kings' separation. He also claimed Amber was prohibited from receiving interim spousal support as a result of her cohabiting with Chad.

At the hearing on the divorce, Amber testified and admitted that she and Chad had been living together since January 27, 2016. Chad testified they had cohabited since early February, 2016. A witness confirmed Amber's claim of late January as the date the couple began cohabiting. The trial court granted judgment in favor of Kiley based on his request for divorce due to Amber's adultery. Additionally, the judgment (rendered in open court on May 24, 2016) made the "judicial determination" that Amber had been cohabiting with Chad.

On September 2, 2016, the trial court considered the issue of Amber's entitlement to interim spousal support. At the start of the proceeding prior to any evidence being taken, Kiley conceded his ability to pay Amber interim spousal support if ordered. Amber testified and submitted as an exhibit an affidavit where she claimed a list of monthly expenses in the amount of $16,433.00, which included the following:

Dry Cleaning $400.00 Insurance $300.00 Hair & Makeup $1,000.00 Food $2,500.00 Medicine $200.00 Household Items $500.00 Rent on House $1,400.00 Entergy $400.00 Water $150.00 Fuel $1,200.00 Clothes $2,500.00 Maid $1,083.00 Atmos Energy $100.00 Travel School Games $1,200.00 Football, Dance & Cheer $1,000.00 Christmas Gifts $1,000.00 Vacation $1,000.00 Vehicle Maintenance $500.00

Many of the expenses were undocumented; however, she did submit to the court copies of the couple's bank statements for the prior year. On those bank statements she characterized expenditures as "personal and household expenses" or "farm" related. Although the bank accounts were designated "Farm Account," the vast majority of expenses appeared to be "personal and household expenses." As to her income, Amber noted that it varied because she was an hourly worker. She testified that her income was reflected by the deposits in the bank accounts. She did not submit any paystubs or a form W-2. Amber testified that based on the couple's spending (which she implied was reflected in the bank statements) and her list of expenses in her affidavit, she sought interim spousal support in the amount of $15,000.00 per month.

Considering her claim and what evidence was submitted, Amber was granted a total award of interim support for the period January 26, 2016, through May 24, 2016 (the date of the divorce), in the total amount of $15,800.00. The trial court set Amber's expenses at $5,850.00 per month, which it offset by her income of $1,900.00 per month. Thus, her net interim support award was $3,950.00 per month. This was reflected in a judgment rendered April 27, 2017. However, the trial court allowed Kiley time to make a request for offsets "for any advances he might have made for said support," which he did. After a subsequent hearing wherein additional evidence was considered, Kiley was granted an offset in the amount of $766.02 for automobile insurance payments he paid on behalf of Amber. The trial court issued its subsequent judgment on the issue of Amber's interim support on August 2, 2017. Both of these judgments have been appealed by Kiley.

LAW

In a proceeding for divorce, the court may award interim periodic support to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. arts. 111, 113 ; Brown v. Brown , 50,833 (La. App. 2 Cir. 08/10/16,) 200 So.3d 887, 891-92 ; Hogan v. Hogan , 49,979 (La. App. 2 Cir. 09/30/15), 178 So.3d 1013, writ denied , 2015-2018 (La. 01/08/16), 182 So.3d 953.

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Evans v. Evans , 49,160 (La. App. 2 Cir. 06/25/14), 145 So.3d 1093 ; Gremillion v. Gremillion , 39,588 (La. App. 2d Cir. 04/06/05), 900 So.2d 262. A spouse's right to claim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage and thus provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. Brown, supra . The needs of the claimant spouse have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the payor spouse's ability to pay. Brown, supra ; Amos v. Amos , 47,917 (La. App. 2d Cir. 02/27/13), 110 So.3d 1243 ; A. Brown v. J. Brown , 44,989 (La. App. 2 Cir. 01/27/10), 31 So.3d 532.

In order to demonstrate need for interim support, the claimant spouse has the burden of proving that he or she lacks sufficient income to maintain the standard of living he or she enjoyed during the marriage. Brown, supra ; Evans, supra . Once the claimant spouse has established need, the trial court must examine the ability of the payor spouse to provide support. Evans, supra .

The trial court is afforded much discretion in determining an award of interim spousal support, and such a finding will not be disturbed absent a clear abuse of discretion. Shirley v. Shirley , 48,635 (La. App. 2d Cir. 10/16/13), 127 So.3d 935. An abuse of discretion will not be found if the record supports the trial court's conclusions about the needs of the claimant spouse or the means of the payor spouse and his or her ability to pay. Rockett v. Rockett , 51,453 (La. App. 2 Cir. 06/21/17), 223 So.3d 1227, 1234 ; Bickham v. Bickham , 46,264 (La. App. 2d Cir. 03/02/11), 58 So.3d 950.

DISCUSSION

Entitlement to Interim Support

In Kiley's first assignment of error, he argues the trial court erred in finding that Amber was entitled to interim spousal support considering she had been cohabiting with Chad since January 27, 2016. As stated, the trial court determined that Amber was entitled to interim spousal support for the period of time between January 26 (the date she moved out) and May 24, 2016 (the date of divorce). Kiley argues the trial court's award of interim spousal support was erroneous because Amber was cohabiting with Chad beginning late January and, pursuant to La. C.C. art. 115, his obligation to pay was extinguished. Thus, Kiley maintains she should be completely unentitled to interim support. We disagree due to the clear and strict construction of article 115, which states:

The obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.

(Emphasis added).

The starting point in the interpretation of any statute is the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp. , 2007-2371 (La. 07/01/08), 998 So.2d 16, 27 ; In re Succession of Holder , 50,824 (La. App. 2 Cir. 08/10/16), 200 So.3d 878, writ denied, 2016-1694 (La. 12/16/16), 212 So.3d 1169. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9 ; M.J. Farms, Ltd., supra ; Bridges v. Bullock , 50,297 (La. App. 2 Cir. 2/19/16), 188 So.3d 280, 282, writ denied, 2016-0494 (La. 05/02/16), 206 So.3d 882. It is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Guillory v. Pelican Real Estate, Inc. , 2014-1539 (La. 03/17/15), 165 So.3d 875, 877. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Id.

It is undisputed that Amber and Chad began cohabiting together approximately January 27, 2016, by Amber's own admission. However, article 115 requires a "judicial determination that the obligee has cohabited with another person" (emphasis added). The simple fact that Amber cohabited with Chad since the end of January is insufficient. What is determinative for the issue of interim support is when a judicial determination was made as to her cohabitation. In this instance, such a determination was not made until the parties went to court on the divorce and the trial court rendered its judgment on May 24, 2016. Although Kiley submits on appeal that Amber is unentitled to interim support for the entire period due to her cohabiting with Chad, the precise wording of article 115 makes clear that the obligation is extinguished only upon the judicial determination that she cohabited. The judicial determination was not made until May 24 and until that determination was made, the obligation was not extinguished. Therefore, Kiley's assignment of error on this issue is without merit.

Amount of Interim Support Award

In his second assignment of error, Kiley argues the trial court abused its discretion in determining that Amber was in need of interim support to maintain the standard of living to which she was accustomed. In determining Amber's interim support, the trial court was tasked with considering not only her need and Kiley's ability to pay (which Kiley conceded to before the hearing's commencement), but also, Amber's standard of living during the marriage. In so doing, the trial court set Amber's expenses at $5,850.00 per month, which it offset by her income of $1,900.00 per month, resulting in a net interim support award of $3,950.00 per month, i.e. her need. After the subsequent offset hearing, the trial court reduced Amber's award by $766.02 for the vehicle insurance paid by Kiley. Kiley points to three items specifically where he believes the trial court erred: the assessment of Amber's income, the assessment of some expenses by Amber, and the effect of expense sharing with Chad.

The first order of business in determining interim support is a spouse's need. See Hitchens v. Hitchens , 38,339 (La. App. 2 Cir. 05/12/04), 873 So.2d 882. In order to demonstrate her need for interim support, Amber had the burden of proving she lacked sufficient income or the ability to earn a sufficient income to maintain the standard of living that she enjoyed during the parties' marriage. As to Amber's income, although she did not provide the trial court with paystubs or W-2 forms, the bank statements together with her testimony support the trial court's determination of her income. The fact that Amber is an hourly employee who works irregular hours makes her income an imprecise calculation, and the trial court's approximation of her monthly pay as $1,900.00, based on the records before it and Amber's testimony regarding her ability to earn, was not an abuse of discretion.

As to the standard of living Amber enjoyed during the couple's marriage, their bank statements for the year preceding their divorce make clear that the couple had an extravagant standard of living-spending in a month what many families earn in a year. A rote articulation of those expenditures is unnecessary. Regarding Amber's standard of living, we initially observe that the trial court noted that many of Amber's submitted expenses were overestimated and they were disallowed. However, notably the purpose of interim support is so one spouse will not suffer a dramatic reduction in living standard while adjusting to an impending termination of the marriage. A. Brown v. J. Brown, supra . Clearly, that was the goal of the trial court.

Furthermore, while considering reasonableness to Kiley, after the initial judgment Kiley was allowed to show entitlement to offset any expense awarded, which he did at the subsequent hearing. Considering that the trial court utilized an itemization of expenses for calculating Amber's interim support, it is reasonable to conclude that Kiley should not be expected to pay certain expenses twice; thus the trial court allowed him an opportunity to present evidence of payment of certain expenses granted Amber. The offset amount for vehicle insurance in the amount of $766.02, as proven paid by Kiley, was within the trial court's discretion. The trial court also allowed Kiley an additional offset for Amber's health insurance, having originally assessed a $300.00 per month expense for that item. However, Kiley, although he claimed paying the health insurance, failed to submit precisely how much he had actually paid-obviously an amount which would be needed to calculate any offset. In the absence of his payment, the trial court's original judgment was not in error. On other expenses disputed by Kiley, the trial court did not allow an offset for rent or a housekeeper and made the following observation at the offset hearing:

Well ... what the interim spousal support is for is to pay Amber for what she's lacking in her income during that period of time. Naturally she didn't have any maid if she didn't have the money to pay it, but her lifestyle prior to the break-up, she had a maid. So, I awarded her whatever it was per month for a maid. If she didn't have it, that's because she couldn't afford it at the time.... But there's no offset for that. Likewise, there's no offset for the rent.

Such a conclusion by the trial court was a proper application of the jurisprudence and not an abuse of discretion.

Finally, considering the testimony of the parties, we conclude that the trial court clearly abused its discretion in not allowing Kiley an offset for fuel after its initial allowance to Amber of $700.00 per month. Amber testified that she "was still on [Kiley's] gas card until May." However, she also testified that Kiley had put a limit on her charges and she was able to point to various gas charges on the bank statements. At the offset hearing, Kiley submitted the statements for the contested period, which proved that he paid the following charges:

01/24 $42.53 02/19 $50.01 02/23 $53.50 03/03 $57.00 03/13 $60.37 03/23 $59.58 03/30 $55.53 04/05 $61.02 04/20 $53.00 05/13 $58.00 05/23 $59.82 TOTAL $610.36

Thus, it appears that Kiley should have been entitled to an offset for any expenditures charged to his gas card and paid by him-the total amount of $610.36.

Kiley also argues that Amber's interim support should be reduced as a result of the expense-sharing she benefits from due to cohabiting with Chad. Although there is no jurisprudence on this precise issue regarding interim support and expense-sharing, the benefits of expense-sharing is a stated consideration in the related issue of child support, when the trial court "may" consider a new spouse's income and its benefit to reducing a party's expenses. Here, the trial court did consider the benefit Amber derived from expense-sharing in calculating Amber's interim support. In its reasons for judgment, the trial court specifically noted that Amber's expenses would be present regardless of Chad's contribution. That conclusion was not an abuse of discretion.

The monthly amount of $5,850.00 awarded Amber by the trial court was a fraction of that regularly spent by the couple monthly, and it was not an abuse of discretion in light of her need and expenditures. However, clearly Kiley should not have to pay twice for any of Amber's expenses. Thus, in calculating her need, we conclude that the deduction for her income in the amount of $1,900.00 a month as well as the offset of $766.02 for her vehicle insurance was not an abuse of discretion. The trial court did abuse its discretion in failing to allow an offset for fuel in favor of Kiley in light of Amber's use of his fuel credit card in the total amount shown by Kiley to have been paid, $610.36. The judgments of the trial court are so amended to reflect that change.

CONCLUSION

For the foregoing reasons, the judgment in favor of Amber Rae King is amended, and as amended, affirmed. All costs of this appeal are to be shared equally by Amber and Kiley Hubert King.

AMENDED, AND AS AMENDED, AFFIRMED.

      He was also granted an offset for the payment of Amber's health insurance; however, because the trial court could not determine that amount, Kiley was granted additional time to submit proof of payment. The record does not contain that amount.

      Notably, Amber has brought an assignment of error on appeal, asserting that she should have been awarded $13,000.00 per month interim support; however, Amber has not appealed the judgments or answered Kiley's appeal. Therefore, she is not entitled to request any modification of the trial court's judgments. See La. C.C.P. arts. 2082 and 2133 ; Bowden v. Brown , 48,268 (La. App. 2 Cir. 05/15/13), 114 So.3d 1194, 1206.

      Because Kiley conceded his ability to pay interim support, the record contains no evidence regarding his income.


author: COX, J.

text:
    STATE of Louisiana, Appellee v. Labroderick ALEXANDER, Appellant
    No. 51,918-KA
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JAMES EDWARD STEWART, SR., District Attorney, JASON WAYNE WALTMAN, TRENEISHA JACKSON HILL, ERICA JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, COX, and STEPHENS, JJ.
   COX, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. Following a jury trial, the defendant, Labroderick Alexander ("Alexander"), was found guilty as charged of second degree murder. Alexander was sentenced to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence, asserting that the State failed to present sufficient evidence to support the verdict. For the following reasons, we affirm.

FACTS

On July 17, 2016, Kevin White ("White") was shot. White died from his injury the following day. A grand jury indicted Alexander for the second degree murder of White on September 23, 2016. The jury trial began on May 1, 2017.

Arthur Sloan was the first to testify at trial. Sloan lived across the street from White's mother and testified that in the early hours of July 17, 2016, he was watching television when he heard two men arguing outside. He told investigators that he recognized one of the voices as belonging to White, whom he had known since White was born. Sloan stated that the other voice belonged to a man named Labroderick Alexander, whom he had known for about 10 years and knew to be White's cousin. Sloan identified Alexander in court. He asserted that he heard Alexander saying, "I'm about that, I'm about that," followed by a single gunshot. He then heard Alexander say, "See, I told you, I'm about that." Sloan called 911 and reported the shot fired.

Yolanda Williams, a police communications supervisor, testified that she received Arthur Sloan's 911 call on July 17, 2016, at 2:25 a.m. Next, Agent Carlos Glass-Bradley, who was working as a patrol officer at the time of the crime, testified that he responded to Sloan's call. Agent Bradley stated that Sloan relayed he had heard White arguing with another male, but was unable to identify the second voice.

Captain Victor Scott Phillips of the LSU Police Department testified that two separate cameras recorded White exiting a vehicle upon arrival at University Health Hospital, but the license plate was not captured by the video. The video showed White's path from the curb to the front doors and then over to the revolving doors, which Captain Phillips stated were always locked after 9:00 p.m. White continued around to the emergency room entrance where he was found by Officer Cerami.

Shreveport Police Officer Robert Cerami testified that in the early morning hours of July 17, 2016, he was on call at University Health Hospital when he was alerted to a man attempting to enter the emergency room. The man was bleeding profusely from his face and his tongue was hanging out; it appeared he had been shot in the face. While assisting the man to the trauma center, Officer Cerami asked the man who shot him. According to Officer Cerami, the man stated that he did not know the shooter and that it was a drive-by shooting. Officer Cerami declared that he did not believe the man because the wound appeared to be a gunshot fired at close range. Officer Cerami notified dispatch that a man with a gunshot wound to the face had appeared at the emergency room. While the man was being treated, Officer Cerami stayed with White's family, who showed him a picture of White on Facebook. Officer Cerami was able to confirm that the picture matched the injured man he had helped.

Officer William Moak of the Shreveport Police Department patrolled in the Greenbrook Loop area. He testified that he heard both the 911 call about a shot fired at Greenbrook Loop and Officer Cerami's dispatch about the gunshot victim at the hospital. Upon arrival at the hospital, Officer Moak noticed blood spatter leading up to the front door, as well as blood smeared on the glass. Officer Moak spoke with White's mother, who advised him that her son had been shot and gave him their address. Officer Moak then notified officers to the crime scene.

Yolanda Hamilton, White's sister, testified that sometime around 2:15 a.m. on July 17, 2016, she received an anonymous phone call from a female warning her that "B shot Kevin" in the face. She asserted that White was frequently with their cousin, Labroderick Alexander, whom she had seen at about 9:00 p.m. the night before the shooting. She asserted that Alexander appeared to be angry and upset.

Marilyn White, White's mother, testified that her son had lived with her prior to his death. She had last seen White the night before the shooting, when he returned home from work to check on her. She stated that White appeared to be in a good mood and was happy to be celebrating his birthday.

Corporal Jennifer White of the Shreveport Police Department Crime Scene Investigation Unit testified that at 3:00 a.m. on July 17, 2016, she was directed to process a crime scene in the 100 block of North Greenbrook Loop. She stated that she found blood spatter, a spent cartridge casing, and a portion of a gold removable cosmetic tooth in the street. A styrofoam cup and a water bottle were also found at the scene, but did not provide any viable latent prints. On July 19, 2016, Corporal White was called to process a white SUV and found blood spatter on the back of the driver's seat and on the left-side rear passenger seat, as well as a basket of cleaning supplies.

Cherica Royston, White's girlfriend, provided investigators with her cellphone, which contained text messages she had exchanged with White hours before he was shot. Royston testified that White contacted her around midnight after he get off work. They had planned that White would shower, change, and come to Royston's house with food. However, during the next few hours, White's departure was delayed because he was waiting for his friend, Brandon Hanson (aka "Honey"), to give him a ride. Royston stated that at one point she called White and she could hear male voices arguing in the background but could not make out their words. At 2:14 a.m., White texted Royston that he might walk over to her home because Honey and Alexander were "tripping." At 2:22 a.m., White texted Royston that Alexander had pointed a gun at him and that White was about to "f**k him up frfr," which Royston explained was an abbreviation for "for real, for real." That was the last time she heard from White.

Royston additionally testified that White and Alexander got along well, had a good relationship, and often did things for each other. She stated that White and Alexander saw each other almost daily, and she never saw them physically fight.

Brandon Hanson testified that he, Carlzays Hanson, Denise Hall, and White had been driving around in the white SUV when they picked up Alexander. Brandon identified Alexander in court. He stated that the group traveled to Greenbrook Loop and parked in front of the house belonging to his cousin, Arthur Sloan. Denise Hall stayed in the vehicle while the other three got out. Brandon asserted that White told Alexander "don't come back down here." He then heard the two arguing followed by a gunshot. Brandon ducked behind the vehicle and returned when it was quiet to find White holding his face. White told Brandon that he had been shot and needed to be taken to the hospital. Brandon proclaimed that White refused his suggestion to call 911, so he drove White to the hospital. After White got out of the vehicle at the hospital, Brandon drove off because he was scared. Brandon confirmed his prior testimony that he had cleaned the blood from the interior of the SUV the following day.

Brandon was asked to identify a statement he wrote and signed during his interview with Detective Elie. Below a photograph that Brandon confirmed was Alexander, Brandon wrote: "Brandon Hanson, July 19, 2016, shot Big Kevin in the face for argument, Kevin White." He then wrote "B," which Brandon said stood for "Broderick." Brandon clarified that his statement meant that Broderick shot Kevin in the face over an argument. However, Brandon refused to confirm that Alexander shot White, but he did confirm his handwriting in the statement. Even after review of the audio/video tape of his interview in which he told Detective Elie that Alexander shot Kevin and described both the shot and the gun used, Brandon still refused to confirm his pretrial statement.

On cross-examination, Brandon continued to state that he "did not recall" if he saw how White was shot. He testified that he was afraid of what would happen to him and said there was a lot of "stuff going on." Brandon expressed that he had been drinking alcohol and was out past curfew while on parole, which is why he was scared and drove off from the hospital so quickly.

Carlzays Hanson, Brandon Hanson's older brother, testified that he grew up with both White and Alexander. He identified Alexander in court. Carlzays stated that on July 17, 2016, he and his girlfriend, Denise Hill, were picked up by Brandon. They traveled to Bossier City to pick up White from his job. They then drove to White's house, where White showered and changed. Afterward, the group traveled to a nearby liquor store. At some point, they picked up Alexander. Carlzays expressed that Alexander had an aggressive attitude and made a "big commotion" because he did not want to get in the far back seat of the SUV. Despite pleas for Alexander to calm down, Carlzays said Alexander was angry and started a verbal altercation. Carlzays saw Alexander had a weapon on his hip at his waistline.

Upon returning to Greenbrook Loop, Carlzays testified that the group parked in front of Arthur Sloan's house, where everyone except Denise Hill got out. Carlzays asserted that everyone was intoxicated. He stated that Alexander had the gun in his hand as he continued to argue with everyone. Carlzays said that Brandon tried to control the escalating situation between Alexander and White, who were arguing. According to Carlzays, White told Alexander to "put the gun down, fight like a man." He saw White hit Alexander in the face, but Alexander did not fall down. Carlzays then heard a "boom" and saw the gun fire as Alexander shot White in the face. He saw Alexander run from the Greenbrook Loop subdivision toward St. Vincent. Carlzays confirmed that he saw the shot take place.

Carlzays communicated that White ran to the SUV and said he had been shot in the face. Denise Hill got out of the vehicle, and Brandon drove White to the hospital. Carlzays and Hill ran to his cousin's house.

On cross-examination, Carlzays confirmed that White punched Alexander once in the face. While Alexander did not fall, Carlzays believed Alexander acted out of fear and reflex when he responded by shooting White in the face. He stated that everyone was drinking and using ecstasy. Carlzays again affirmed that he saw the flash of the gun when Alexander fired the shot and that White said "he shot me in the face." Carlzays testified that Alexander was the only one carrying a firearm. According to Carlzays, before White threw the punch, White told Alexander to put the gun down and fight, and Alexander responded, "I ain't about no fighting."

Denise Hill, Carlzays Hanson's girlfriend, testified that she spent the day with Carlzays and Brandon riding around before they picked up White and went to the liquor store. At one point, they picked up Alexander, whom Hill identified in court. Hill stated that Alexander appeared upset and mad. She said that Alexander and Carlzays "had words," then Alexander and White "had words." She did not recall the subject of the arguments.

Hill testified that the group traveled to Greenbrook Loop and parked in front of someone's house, where she remained in the vehicle. She said that she saw Alexander walk down the street, but not out of sight, then return. Hill then heard a gunshot and looked up to see Alexander standing there with the gun in his hand. She saw Alexander run off and White stagger over to the vehicle holding his face. Hill indicated that White said "he just shot me in the face, take me to the hospital." She left the vehicle, and White got in. Hill confirmed that she never saw anyone except Alexander with a gun.

Greg Clement, Caddo Parish Deputy Coroner Investigator, testified that he viewed White's body and took pictures for identification. He also received the DNA bloodstain card and the deformed lead core fragment that had been removed from White's neck.

Long Jin, M.D., was accepted as an expert in forensic pathology. He testified that he performed White's autopsy. Dr. Jin stated that the gunshot wound was a small, irregular hole found close to White's mouth. He opined that soot found near the mouth indicated that the gun was fired so close to White's face that the gun barrel left a contact mark. Reviewing the autopsy photos published to the jury, Dr. Jin noted the numerous large staples on the left side of White's face, where physicians had attempted to surgically repair the damage caused by the bullet to White's fractured jaw. Dr. Jin asserted that the bullet travelled from White's mouth, through the jaw, then perforated the trachea, which White needed in order to breathe. The bullet ended up in White's cervical spine at C6. Dr. Jin concluded that White's death was caused by a single, penetrating gunshot wound to the left side of his face, and the manner was by homicide.

On cross-examination, Dr. Jin testified that White was 5'10? and weighed 318 lbs.

He stated that the .45 caliber bullet was "pretty big." Dr. Jin said that the toxicology report showed White had medications in his system from the surgery, along with some marijuana and a low level of methamphetamine.

Detective Johnny Elie of the Shreveport Police Violent Crimes Unit was the last to testify. He was informed by physicians that the gunshot obliterated White's mouth and tongue, and he was being prepped for surgery. Unable to speak with the victim, Detective Elie reviewed the hospital's security footage, which showed White being dropped off at the hospital in a white SUV. The vehicle immediately departed while White walked up to the building. Detective Elie testified that, based on information obtained during a canvas of the 100 block of Greenwood Loop the next day, he interviewed Avid Hall. Hall told Detective Elie that he had assisted his friend Brandon Hanson with cleaning blood from Hanson's white SUV at Hanson's home on Easy Street. Detective Elie stated that he proceeded to Hanson's residence, but Hanson was not home. However, Helena Monera, Hanson's girlfriend and owner of the SUV, gave Detective Elie consent to process the vehicle.

The State rested. Alexander exercised his right to remain silent, and the defense rested. After deliberating, the jury voted 11-1 to find Alexander guilty as charged of second degree murder.

On May 8, 2017, Alexander filed a motion for post-verdict judgment of acquittal, which the trial court denied.

Alexander appeared for sentencing on May 22, 2017. The trial court reviewed the sentencing guidelines set forth in La. C. Cr. P. art. 894.1 and found many factors were applicable. The trial court also noted that Alexander's offense was a crime of violence under La. R.S. 14:2. Alexander was sentenced to the mandatory sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Alexander now appeals.

DISCUSSION

On appeal, Alexander contends that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of the second degree murder of White. Additionally, Alexander argues that he acted in self-defense after White punched him in the face. He asserts that the State failed to meet its burden of proving that he did not act in self-defense and that his actions did not constitute a justifiable homicide.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Ward , 50,872 (La. App. 2 Cir. 11/16/16), 209 So.3d 228, writ denied , 17-0164 (La. 9/22/17), 227 So.3d 827. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Bass , 51,411 (La. App. 2 Cir. 6/21/17), 223 So.3d 1242. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Haley , 51,256 (La. App. 2 Cir. 5/24/17), 222 So.3d 153.

Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he or she saw or heard something. State v. Howard , 49,965 (La. App. 2 Cir. 6/24/15), 169 So.3d 777. Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the State relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove, and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 12-2658 (La. 5/17/13), 117 So.3d 918.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 12-2667 (La. 5/24/13), 116 So.3d 659. The trier of fact is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part. The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Woodard , 47,286 (La. App. 2 Cir. 10/3/12), 107 So.3d 70, writ denied , 12-2371 (La. 4/26/13), 112 So.3d 837.

Second degree murder is 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(A)(1). The penalty is life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B).

Specific 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 and the actions of the defendant. State v. Walker , 51,217 (La. App. 2 Cir. 5/17/17), 221 So.3d 951. Specific intent can be formed in an instant. State v. Washington , 50,424 (La. App. 2 Cir. 3/16/16), 188 So.3d 350, writ denied , 16-0718 (La. 4/13/17), 218 So.3d 119.

The discharge of a firearm at close range and aimed at a person is indicative of specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd , 48,914 (La. App. 2 Cir. 1/14/15), 161 So.3d 879, writ denied , 15-0307 (La. 11/30/15), 184 So.3d 33, cert. denied , --- U.S. ----, 137 S. Ct. 227, 196 L.Ed.2d 175 (2016). Specific intent to kill may also be inferred from the extent and severity of the victim's injuries and the defendant's use of a deadly weapon to produce those injuries, which involved serious risk of death. State v. Washington, supra .

The determination of whether the requisite intent to kill is present is a question for the trier of fact. State v. Walker, supra .

The eyewitness testimony presented at trial was sufficient to establish that Alexander shot White in the face, and White died as a result of the gunshot wound. Brandon Hanson, Carlzays Hanson, and Denise Hill testified that they saw Alexander with a gun. They also stated that they witnessed Alexander arguing with White shortly before they heard the gunshot. Their testimony was corroborated by Arthur Sloan, who disclosed in an interview that the voices arguing outside his home belonged to White and Alexander. Additionally, White's sister received an anonymous phone call from a female telling her that "B shot Kevin" in the face. White's girlfriend also had a text message from White saying that Alexander had pointed a gun at him. Finally, Carlzays asserted that he saw Alexander shoot White in the face. Based on this evidence, the State met its burden of proof.

The testimony was also sufficient to establish that Alexander had the specific intent to kill or inflict great bodily harm. Dr. Jin testified that Alexander fired the gun close enough to White's face that the barrel left soot marks. Firing this close to White's face was guaranteed to result in, at a minimum, great bodily harm. Unfortunately, however, the shot resulted in White's death. A rational trier of fact could have found the essential elements of second degree murder were proven beyond a reasonable doubt. This assignment of error lacks merit.

Alexander further asserts that he acted in self-defense. A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in 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. 14:20(A). The possibility of retreat may not be considered as a factor in determining whether or not the defendant had a reasonable belief that deadly force was reasonable and apparently necessary. La. R.S. 14:20(D).

When the defendant claims self-defense, the State has the burden to prove beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Edwards , 49,635 (La. App. 2 Cir. 2/26/15), 162 So.3d 512, 518, writ denied , 15-0628 (La. 2/5/16), 186 So.3d 1163. When a defendant claiming self-defense challenges the sufficiency of the evidence on appeal, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. Id.

Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character. State v. Jones , 48,458 (La. App. 2 Cir. 11/20/13), 128 So.3d 593, writ denied , 13-2926 (La. 5/30/14), 140 So.3d 1173. The use of deadly force against an unarmed victim, even in the midst of a physical altercation, may be an excessive use of force. State v. Edwards, supra .

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith. La. R.S. 14:21. Not only must the aggressor withdraw from the conflict, but the withdrawal must be in such a way that the other person "knows or should know" of the desire to withdraw. State v. Edwards, supra . If the aggressor's withdrawal is not made sufficiently known to his adversary, he is not eligible to claim the justification of self-defense for the homicide. Id.

The eyewitness testimony at trial was sufficient to establish that Alexander was the initial aggressor. According to witnesses, Alexander was angry and arguing with Brandon Hanson and White from the moment he got into the SUV that night. Alexander was the only person with a gun, and he refused to put it down. Although Carlzays Hanson stated that White punched Alexander in the face, Alexander did not fall down or retreat. Instead, Carlzays saw Alexander shoot White in the face.

Based on the testimony, Alexander did not have a reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm. Shooting White with a gun at close range was not necessary to save himself. Viewing the evidence in the light most favorable to the prosecution, the trier of fact could have found beyond a reasonable doubt that Alexander killed White, and the homicide was not reasonably committed in self-defense.

CONCLUSION

For the foregoing reasons, the defendant's conviction and sentence are affirmed.

AFFIRMED.

      Yolanda clarified that Labroderick Anderson went by the nickname "B."

      Officer Jeff Allday of the Shreveport Police Department testified that he captured the text messages from a third party app called Ding Tone using screen shot and UFED Cellebrite, a hardware and software solution used to capture digital data from cellphones.