text:
    Patricia LENNIE, Brett Lennie, and Marcella Fueslier v. EXXON MOBIL CORPORATION, et al.
    NO. 17-CA-204
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2018
   COUNSEL FOR PLAINTIFF/APPELLANT, PATRICIA LENNIE, BRETT LENNIE AND MARCELLA LENNIE FUSELIER: Timothy J. Falcon, Jeremiah A. Sprague, Jarrett S. Falcon, Marrero

COUNSEL FOR DEFENDANT/APPELLEE, CHEVRON U.S.A., INC.: Michael R. Phillips, Brett P. Fenasci, Shannon A. Shelton, Carol M. Wood, New Orleans, Lynn K. McKay

COUNSEL FOR DEFENDANT/APPELLEE, SHELL OIL COMPANY, SHELL OFFSHORE INC. AND SWEPI LP: Deborah D. Kuchler, Janika D. Polk, Michele H. DeShazo, Mark E. Best, Skylar B. Rudin, Joshua J. Doguet, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, BP PRODUCTS NORTH AMERICA, BP AMERIC PRODUCTION COMPANY AND ATLANTIC RICHFIELD COMPANY: Michael P. Cash, Wade T. Howard, Mark L. McNamara, Joseph I. Giarrusso, III, Lauren R. Bridges, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, INTRACOASTAL TUBULAR SERVICES, INC.: Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Ryan R. Brown, Baton Rouge

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

CHAISSON, J.

In this survival and wrongful death suit, plaintiffs, who are the children and surviving spouse of decedent, Julius Lennie, appeal a judgment of the trial court that sustained defendants' exceptions of prescription. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

From 1961 to 1994, Julius Lennie worked as an employee of Tuboscope, a company that was hired by various oil companies and pipe cleaning contractors to clean and refurbish used oilfield production pipe and tubing. The cleaning process used by Tuboscope involved grinding scale out of the used pipe, a process that allegedly caused the emission of naturally occurring radioactive material ("NORM"). Mr. Lennie retired from Tuboscope in 1994.

On January 28, 2010, approximately fifteen years after his retirement, Mr. Lennie was diagnosed with lung cancer. Mr. Lennie died less than a month later, on February 20, 2010. Nearly four years later, on January 2, 2014, Mr. Lennie's surviving spouse, Patricia Lennie, and his children, Brett Lennie and Marcella Lennie Fueslier, filed a survival and wrongful death suit against various oil companies and pipe cleaning contractors that had hired Tuboscope to clean and refurbish used oilfield pipe.

In their petition, the Lennies alleged that Mr. Lennie was exposed to dangerous levels of radiation from the scale and dust while working in defendants' pipe yards, and that this exposure caused Mr. Lennie's lung cancer and ultimately his death. They further alleged that during the time of Mr. Lennie's exposure, defendants were aware of the dangers of NORM, that they failed to warn Mr. Lennie of those dangers, and that they failed to correctly identify, handle, contain, clean up, or dispose of NORM in their pipe yards. The Lennies additionally alleged that in August 2013, Mr. Lennie's son, Brett, discovered a newspaper article regarding lawsuits involving radiation exposure in pipe yards, and that they were not on notice of their wrongful death or survival claims until September 30, 2013, when they met with attorneys at the Falcon Law Firm regarding these lawsuits. According to the Lennies, neither they nor Mr. Lennie had any knowledge of their claims because defendants actively worked to conceal the discovery of NORM and the dangers it presented to oilfield workers. The Lennies also alleged that defendants actively lobbied government environmental regulators to adopt tests and standards that were ineffective in correctly detecting NORM levels.

In response to the Lennies' petition, because it was filed more than one year after Mr. Lennie's death, various defendants filed peremptory exceptions of prescription. Regarding the Lennies' survival claims in particular, defendants argued that the survival claims were extinguished due to their failure to file suit within a one-year peremptive period established by La. C.C. art. 2315.1. In opposition, the Lennies argued that because of defendants' concealment, and/or because the Lennies had no actual or constructive knowledge of their claims before Brett Lennie found the newspaper article in April 2013, that the prescriptive periods for their wrongful death and survival claims had been suspended under the doctrine of contra non valentem . Before the hearing on these exceptions, the Louisiana Supreme Court rendered its opinion in Watkins v. Exxon Mobil Corp. , 13-1545 (La. 5/7/14), 145 So.3d 237, where it determined, under facts very similar to the case sub judice , that the one-year period for survival actions set forth in Article 2315.1 is prescriptive rather than peremptive. Following this ruling, defendants refiled their exceptions of prescription and argued that the survival claims were prescribed, if not perempted.

At the hearing of defendants' exceptions, the Lennies argued that, under the theory of contra non valentem , their claims had not prescribed. The trial court, finding that the Lennies failed to meet their burden of proof for the application of contra non valentem , sustained defendants' exceptions of prescription and dismissed the Lennies' claims with prejudice. It is from this judgment that the Lennies now appeal.

On appeal, the Lennies raise the following four assignments of error:

I. The trial court erred as a matter of law because it based constructive notice on what the Lennies could have known rather than what they actually did know.
II. The trial court committed legal error in its analysis of constructive notice because it did not consider that the Lennies must have knowledge of facts indicating to a reasonable person that they were the victim of a tort.
III. The trial court erred in its factual finding that the Lennies possessed sufficient information to begin an investigation of their cause of action.
IV. The trial court erred in not finding defendants' concealment impeded the Lennies from acquiring knowledge of their cause of action.

DISCUSSION

Because a peremptory exception raises a legal question, appellate courts review a judgment sustaining the exception de novo . Vicari v. Window World, Inc. , 14-870 (La. App. 5 Cir. 5/28/15), 171 So.3d 425, 435. However, if evidence is introduced at the hearing on the peremptory exception of prescription, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations Inc. , 08-1163 c/w 08-1169 (La. 5/22/09), 16 So.3d 1065, 1082. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

The Lennies concede that, because their petition for wrongful death and survival claims was filed on January 2, 2014, nearly four years after Mr. Lennie's death on February 20, 2010, it appears on the face of the petition to have prescribed. Ordinarily, the party urging prescription bears the burden of proof at the trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show that the action has not prescribed. Palazola v. IMC Consulting Eng'rs, Inc. , 16-22 (La. App. 5 Cir. 6/30/16), 197 So.3d 782, 784.

At the trial of the exceptions of prescription and on appeal, the Lennies maintain that the prescriptive periods on their claims were suspended pursuant to the doctrine of contra non valentem . The doctrine of contra non valentem agere nulla currit praescriptio ("prescription does not run against the party unable to act") is an exception to La. C.C. art. 3467, which states that prescription runs against all persons unless an exception is established by legislation. Guillot v. Daimlerchrysler Corp. , 08-1485 (La. App. 4 Cir. 9/24/10), 50 So.3d 173, 181 (citing Wimberly v. Gatch , 93-2361 (La. 4/11/94), 635 So.2d 206, 212 ). Pursuant to the doctrine of contra non valentem , prescription does not run against a claimant who is ignorant of the existence of facts that would enable him to bring a cause of action, provided that his ignorance is not willful, negligent, or unreasonable. Id.

The doctrine of contra non valentem may apply when: 1) there is some legal cause which prevented the court or its officers from taking cognizance of and acting on the plaintiff's actions; or 2) where there is some condition coupled with the contract or coupled with the proceedings which prevented the plaintiff from suing or acting; or 3) where the defendant has done some act effectually to prevent the plaintiff from availing himself of his cause of action; or 4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Tenorio v. Exxon Mobil Corp. , 14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269, 274-75. The Lennies contend that the third and fourth categories of contra non valentem are applicable to their claims.

The Lennies have brought both survival claims and wrongful death claims, which are separate and distinct causes of action. See Watkins , 145 So.3d at 241 ; Guidry v. Theriot , 377 So.2d 319, 322 (La. 1979). Although both actions arise from a common tort, survival and wrongful death actions are separate and distinct, arise at different times, and address themselves to the recovery of damages for totally different injuries and losses. Walls , 98-0455 (La. 9/8/99), 740 So.2d 1262, 1274.

A survival action is authorized when a person, who possesses a cause of action for injuries sustained by an offense or quasi offense, subsequently dies. In these circumstances, the right to recover all damages for injury to the decedent caused by the offense or quasi offense is recognized in favor of certain statutorily-designated beneficiaries of the decedent. La. C.C. art. 2315.1. In contrast, a wrongful death action is recognized in favor of certain statutorily-designated beneficiaries of a person who dies due to the fault of another, to recover damages which they themselves have sustained as a result of the death. La. C.C. art. 2315.2 ; Walls , 740 So.2d at 1269-70. Because each right arises at a different time, we address the relevant prescriptive periods for each distinct classification of claims, and the proper application of the doctrine of contra non valentem to each of those claims, separately.

Wrongful Death Claims

The wrongful death action is subject to a one-year prescriptive period which begins to run at the death of the decedent, not from the time of the tortious conduct resulting in death. La. C.C. art. 2315.2(B) ; Landry v. Avondale Indus. , 03-3432 c/w 03-3434 c/w 03-3435 (La. 7/2/04), 877 So.2d 970, 979. All three plaintiffs have filed claims for wrongful death pursuant to La. C.C. art. 2315.2, which are prescribed on their faces because they were filed on January 2, 2014, nearly four years after Mr. Lennie's death in February 2010. The burden, therefore, is on the Lennies to show that the doctrine of contra non valentem should be applied to suspend the running of prescription.

Concealment

We begin with the third category of contra non valentem , which applies when the defendant has done some act effectually to lull the victim into inaction and prevent him from availing himself of his cause of action. To trigger application of the third category, a defendant's conduct that keeps the victim in ignorance must rise to the level of concealment, misrepresentation, fraud, or ill practices. Dominion Expl. & Prod. v. Waters , 07-0386 (La. App. 4 Cir. 11/14/07), 972 So.2d 350, 358 (citing Fontenot v. ABC Ins. Co. , 95-1707 (La. 6/7/96), 674 So.2d 960, 963 ). Where the plaintiff is able to establish such conduct, prescription is suspended until the plaintiff is made aware of the truth of the matter. Id. Accordingly, we must examine the conduct of defendants to determine whether they have done some act or acts which effectually prevented the Lennies from availing themselves of their wrongful death cause of action.

The Lennies have argued under this third category of contra non valentem that defendants actively sought to conceal the causal link between work-related NORM exposure and lung cancer, and downplay the danger of exposure to the radioactive material in the workplace. In support of their contention that defendants actively concealed the link between work-related NORM exposure and cancer, the Lennies presented evidence documenting the following: the oil industry's discovery of NORM in the North Sea in 1981 and in Mississippi in 1986; the formation of an industry trade group which developed a screening method for finding NORM in their oil wells; the promotion of this screening method (which the Lennies characterize as ineffective at detecting NORM); the adoption of this screening method by the State of Louisiana in its NORM regulations in 1989; and the subsequent adoption by Tuboscope of the state-approved NORM screening method in its standard operating procedures.

The Lennies argue that, through defendants' lobbying efforts and publication of academic papers, defendants engaged in an ongoing pattern of concealment that prevented the Lennies from acting on their claims. In this, their argument is similar to that put forth by the plaintiffs in Lester v. Exxon Mobil Corp. , 10-743 (La. App. 5 Cir. 5/31/12), 102 So.3d 148. In Lester , this Court upheld the decision of the trial court finding that the third category of contra non valentem applied to the delictual claims for injuries caused by NORM exposure among oilfield workers because the defendant, Exxon Mobil, showed videos to its workers which stated that it would be very unlikely for an oilfield worker to inhale or ingest a harmful amount of NORM.

The case sub judice is distinguishable. Here, the Lennies neither allege nor provide any evidence of actions taken by defendants that would rise to the level of concealment, misrepresentation, or fraud directed towards them. The last act of "concealment" by defendants alleged in the Lennies' petition is the publication of a NORM-related academic study in 2002, eight years before their wrongful death cause of action arose.

The record evidence shows that subsequent to the discovery of NORM in Mississippi in 1986, defendants participated in the formation of an industry trade group which developed a screening method to detect NORM. That screening method was adopted by the State of Louisiana in its NORM regulations in 1989. The record evidence also shows that Tuboscope adopted these state-approved screening methods in its standard operating procedures and conducted training sessions with its employees regarding NORM in the workplace. Regardless of any assertion that these screening methods may have arguably been ineffective at detecting NORM, the evidence does not establish that defendants intentionally adopted inadequate screening methods that were known in the industry to be ineffective at detecting NORM.

Furthermore, the actions of defendants in forming the industry trade group, developing screening methods for NORM, and participating in adoption of regulations by the State of Louisiana, directly contradict any suggestion that defendants were downplaying the significance of NORM in the workplace or were otherwise engaging in concealment of Mr. Lennie's or his family's causes of action from them. We find no manifest error in the trial court's factual finding that the Lennies failed to meet their evidentiary burden to show that defendants were involved in any actual conspiracy, misrepresentation and/or fraud to conceal their causes of action from them.

Actual or Constructive Knowledge

Next we turn to the application of the fourth category of contra non valentem , sometimes known as the "discovery rule," which suspends the running of prescription where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Tenorio , 170 So.3d at 275.

In rejecting the Lennies' contention that the running of prescription on their claims was suspended under the fourth category of contra non valentem , the trial court stated:

In the not too distant past, the ability to obtain the information needed to make causal connections between environmental exposures in the workplace and health risks was tedious, difficult, cumbersome and often slow. With the invention of the computer and related technology, the process for gathering and weighing information has changed significantly. Today, as well as in 2010, the ability to make a connection, if one exists, between two items is at one's fingertips and can be ascertained in a matter of minutes, if not seconds. Never in the history of mankind has information been more accessible. All of the information which could have and would have incited an inquiry of Brett Lennie to pursue further remedy, was available to him, his sister, and his mother in 2010. Consequently, this Court finds the cause of action was reasonably knowable in 2010.

Regarding this statement by the trial court, the Lennies complain that the trial court erred as a matter of law by, rather than considering the actual knowledge that the Lennies did have, finding that they could not benefit from contra non valentem because there was "... information out there that the Plaintiffs could have found ." (emphasis in original).

While it is not entirely clear to us from the trial court's statement that it was inferring that the availability of information on the internet, in and of itself , with nothing more, is sufficient constructive knowledge to put the Lennies on notice of their cause of action, to the extent that this was the standard the trial court applied to the fourth category of contra non valentem , we agree with the Lennies that this would be legal error.

The Louisiana Supreme Court has stated:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. (Citations omitted)

Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502, 510-11.

In discussing the knowledge that is sufficient to start the running of prescription under the fourth category of contra non valentem , the Louisiana Supreme Court subsequently described constructive knowledge as "... the acquisition of sufficient information, which, if pursued, will lead to the true condition of things." Marin v. Exxon Mobil Corp. , 09-2368 (La. 10/19/10), 48 So.3d 234, 246. According to Marin , "the ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiff's action or inaction in light of his education, intelligence, and the nature of the defendant's conduct. Id. ;

Lapuyade v. Rawbar, Inc. , 15-705 (La. App. 5 Cir. 4/13/16), 190 So.3d 1214, 1221. Contra non valentem will not apply to exempt a plaintiff's claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect. Id.

In analyzing the reasonableness of a plaintiff's action or inaction, and the distinction between what the plaintiff actually knew and what the plaintiff could have known by further research, the Louisiana Supreme Court has stated, "the law of prescription references what a plaintiff knew or should have known about his potential cause of action not what he could have known." (emphasis in original). Wells v. Zadeck , 11-1232 (La. 3/30/12), 89 So.3d 1145, 1152 (quoting Amoco Production Company v. Texaco, Inc. , 02-240 (La. App. 3 Cir. 1/29/03), 838 So.2d 821, 831-32, writ denied , 03-1104 (La. 6/6/03), 845 So.2d 1096 ). Thus, "[t]he reasonableness of the plaintiff's actions centers upon the knowledge she possessed." Id. Clearly, a plaintiff must possess some baseline knowledge relevant to his potential cause of action, from which the reasonableness of his subsequent action or inaction can be judged in light of his education, intelligence, and the nature of the defendant's conduct.

Application of a standard whereby the mere availability of information on the internet, in and of itself , is sufficient constructive knowledge of his cause of action would eliminate any requirement that a plaintiff have some baseline knowledge sufficient to excite attention and call for inquiry. Consequently, we reject any contention that the mere availability of information on the internet, in and of itself , can serve as sufficient constructive knowledge of a plaintiff's cause of action. To find otherwise would effectively impute all knowledge obtainable through an internet search to every plaintiff as constructive knowledge.

Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Schouest v. Burr , 09-356 (La. App. 5 Cir. 1/12/10), 30 So.3d 1017, 1022. Because the statements of the trial court in its reasons for judgment suggest that it may have applied an incorrect legal standard, we choose to conduct a de novo review of the entire record before us to determine if the Lennies possessed sufficient constructive knowledge of their causes of action to commence the running of prescription on their claims.

Beginning with what the Lennies actually knew at the time of Mr. Lennie's death in February 2010, the time at which the running of prescription on their wrongful death claims would have begun, the following evidence was presented:

Patricia Lennie, a graduate of New Iberia High School, testified that she had been married to Mr. Lennie the entire time he worked at Tuboscope and that she knew a lot about his work there, including that he worked in the pipe yards. During that time, neither he nor anyone else mentioned NORM or radiation in the pipe yards to her. The first she learned of NORM and its potential cause of her husband's cancer was when her son Brett mentioned a news article to her in April 2013. She also testified that her husband smoked a pack and a half of cigarettes a day from age 15 to age 66. She did not undertake any type of investigation into the cause of her husband's lung cancer.

Marcella Fueslier, a graduate of John Ehret High School, testified that she knew her father worked in the pipe yards for Tuboscope, but that neither he nor anyone else mentioned NORM or radiation to her. She further testified that she knew nothing about NORM as a potential cause of her father's cancer until sometime in 2013 when her brother Brett brought her the newspaper article. She did nothing to research the type of cancer her father had, and did not inquire as to the cause of his cancer.

Brett Lennie, a graduate of the University of Louisiana at Lafayette, testified that he began working in the oilfield industry for Superior Energy sometime in 2003, at which time he attended a training session that mentioned NORM and that exposure to it carried health risks, though he does not recall the training explaining how NORM exposure might occur. He further testified that he never discussed his NORM training with his mother or sister, and that he first recalls learning about the potential exposure of pipe yard workers to NORM in April 2013 from an online news article regarding NORM litigation. He also testified that he had no discussions with his father's doctors regarding what could have caused his father's cancer nor did he conduct any investigation whatsoever to determine the cause of his father's cancer.

According to this testimony, the Lennies did not have actual knowledge of facts indicating that another party wrongfully caused Mr. Lennie's death until the discovery of the news article in April 2013. In this, the plaintiffs' argument is similar to that set forth by the plaintiffs in Griffin v. Kinberger , 507 So.2d 821 (La. 1987). In that case, nineteen years after an alleged tortious incident, a mother filed an action for damages against a hospital for negligent administration of oxygen to her premature baby. The plaintiff argued that the doctrine of contra non valentem suspended the running of the prescriptive period because her cause of action was not known or reasonably knowable until 1982 when she read a newspaper article that reported the settlement of a lawsuit in Florida involving a child who had lost vision in one eye from negligent treatment with oxygen during a premature birth. The Louisiana Supreme Court agreed with this argument and found that the plaintiff's claims had not prescribed. In particular, the Court noted that the mother, an eighteen-year old with a sixth-grade education, was assured by the child's treating physicians that his injuries were a natural and expected consequence of the necessary administration of oxygen to premature children at birth. Id. at 824. In light of her education and experience, and based on the assurances of the doctors, the Court found it reasonable for her to make no further inquiry or pursue the cause of action. Id.

The facts of that case are distinguishable from those presented here, however. The Lennies have offered no evidence as to what they understood caused Mr. Lennie's lung cancer and subsequent death. There is no evidence that they reasonably relied on a doctor's explanation as to the cause of Mr. Lennie's lung cancer ; to the contrary, they testified that they did not speak with Mr. Lennie's doctors about what caused his cancer. Evidence was introduced that Mr. Lennie was a heavy smoker, but none of the Lennies stated that they believed that smoking caused the decedent's lung cancer. Additionally, none of the Lennies stated that they had a conversation with Mr. Lennie himself as to what he believed caused his lung cancer.

Each of them testified that they made no inquiry whatsoever into the cause of Mr. Lennie's lung cancer. While under the facts of this case it may not have been reasonable for the Lennies to contact Mr. Lennie's former co-workers following his death from lung cancer when they had no knowledge of NORM, its hazardous effects, or of Mr. Lennie's potential exposure to it at the workplace, their failure to make even a rudimentary inquiry into the causes of Mr. Lennie's illness and death appears unreasonable.

In Tenorio , supra , this Court previously addressed the issue of whether a diagnosis of a disease process of the body is sufficient constructive notice of a potential cause of action such that the plaintiff is prevented from relying upon the doctrine of contra non valentem to suspend the running of prescription. In that case, Mr. Tenorio worked from 1981 through 1988 in yards that performed operations that cleaned oil field generated radiation scale from pipes used in oil and gas production. Twenty-one years later, in 2009, Mr. Tenorio was diagnosed with squamous carcinoma of the vocal chords (throat cancer ). After learning from a former co-worker in 2013 that his cancer might be related to his work activities, Mr. Tenorio filed suit in 2014, over four years after the date of his diagnosis. Tenorio , 170 So.3d at 272.

In response to the defendants' exception of prescription, Mr. Tenorio argued that the doctrine of contra non valentem applied to his claim because he did not have knowledge of the cause of his throat cancer until his discussion with his former co-worker in 2013. In rejecting Mr. Tenorio's argument regarding his lack of knowledge regarding the cause of his cancer, this Court found that "[h]is diagnosis was constructive notice sufficient to put Mr. Tenorio on guard and to call him to inquire into the cause of his condition. Contra non valentum (sic) will not protect a plaintiff's claim from the running of prescription when his own willfulness or neglect caused his ignorance." Tenorio , 170 So.3d at 275.

Upon our de novo review in this case, we likewise conclude that Mr. Lennie's diagnosis of lung cancer in January 2010 was constructive notice sufficient to put the Lennies on guard and to call for them to inquire further into the cause of his condition. As the parties seeking the application of the exception of contra non valentem to suspend the running of prescription, the Lennies have not met their evidentiary burden to show that their lack of knowledge is attributable to anything other than their own failure to investigate. Therefore, prescription began to run on the Lennies' wrongful death claims on February 20, 2010, the date of Mr. Lennie's death, and was not suspended by the operation of the doctrine of contra non valentem .

Survival Claims

The survival action is established in Louisiana Civil Code article 2315.1, which states in pertinent part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased...
...
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

The survival action, which is derivative of the primary tort victim's action, is linked to the inception of the tortious act, omission or neglect. The action is based upon the primary tort victim's right to recovery being transferred by operation of law to the statutorily-designated beneficiaries. Therefore, the survival action is dependent upon the primary tort victim having a viable cause of action on the date of his death. Walls , 740 So.2d at 1274 (citing Taylor v. Giddens , 696 So.2d 834, 840 (La. 1993) ). Consequently, if the cause of action of the primary tort victim has prescribed prior to his date of death, then there is no viable action to transfer to his statutorily-designated beneficiaries. Richardson v. Avondale Shipyards, Inc. , 600 So.2d 801, 803 (La. App. 5th Cir. 1992).

In cases in which the viability of the primary tort victim's cause of action on the date of his death is contested, and his statutorily-designated beneficiaries invoke the doctrine of contra non valentem , the knowledge of the primary tort victim regarding his cause of action from the date of the tortious act, omission or neglect until the date of his death is a pertinent inquiry. In the case sub judice , apparently because Mr. Lennie learned of his lung cancer diagnosis in January 2010 and died less than a month later on February 20, 2010, defendants have not argued that Mr. Lennie had no viable claim on the date of his death. Therefore, for purposes of our analysis, we do not concern ourselves with Mr. Lennie's knowledge of his potential cause of action.

Defendants do, however, argue that plaintiffs themselves had sufficient knowledge regarding their potential survival claims such that they are not able to rely upon the doctrine of contra non valentem to suspend the running of prescription after the date of Mr. Lennie's death. In order for the Lennies to successfully invoke the third and fourth categories of contra non valentem as to their survival claims, they would have to prove either that there were acts of concealment, misrepresentation, or fraud by the defendants that prevented them from availing themselves of their respective causes of action, or that their causes of action were not known or reasonably knowable by them.

Because the Lennies' wrongful death and survival actions both arise from a common tort, the defendants' alleged conduct regarding concealment of that tort and the Lennies' knowledge of that tort are the same regarding both causes of action. Consequently, our previous determination that the trial court was not manifestly erroneous in its finding that defendants' actions did not amount to fraud, misrepresentation, or concealment that prevented the Lennies from availing themselves of their wrongful death cause of action, also applies to the Lennies' survival cause of action. Likewise, our determination that, upon de novo review of the record, the Lennies' ignorance of their wrongful death cause of action may be attributed to an unreasonable failure to make any inquiry whatsoever into the cause of Mr. Lennie's lung cancer, also applies to the Lennies' survival cause of action.

As its findings relate to the Lennies' survival claims, we find no manifest error in the trial court's factual findings that the Lennies failed to meet their evidentiary burden to show that defendants were involved in any actual conspiracy, misrepresentation and/or fraud to conceal the Lennies' cause of action from them. Upon our de novo review of the application of the fourth category of contra non valentem to the Lennies' survival cause of action, we find that the Lennies failed to show that they did not have constructive knowledge of their survival cause of action at the time of Mr. Lennie's death.

CONCLUSION

We conclude that the Lennies failed to prove that they are entitled to rely upon the doctrine of contra non valentem to suspend the running of prescription on their facially-prescribed wrongful death and survival claims. Accordingly, the judgment of the trial court sustaining defendants' peremptory exceptions of prescription and dismissing the Lennies' claims with prejudice is affirmed.

AFFIRMED

      Although the Lennies' petition stated that Brett Lennie discovered the newspaper article in August 2013, Brett Lennie testified that he read the article in April 2013.

      The judgment that is the subject of this appeal pertains to exceptions of prescription filed by OFS, Inc., Shell Oil Company, Shell Offshore Inc., SWEPI LP, ConocoPhillips Company, Chevron U.S.A., Inc., BP Products North America, Inc., BP America Production Company, Atlantic Richfield Company, Marathon Oil Company, Devon Energy Production Company, L.P., and Intracoastal Tubular Services, Inc.

      Subsequent to the trial court sustaining the exceptions of prescription, ConocoPhillips, Marathon Oil Company, and Devon Energy Production Company were dismissed from this litigation on joint motions of the Lennies and those defendants. Their exceptions are therefore not before this Court on appeal. Additionally, defendant OFS, Inc. has not filed a brief with this Court or otherwise participated in this appeal.

      The plaintiff's injury in a wrongful death action occurs when the victim dies; thus, a wrongful death action cannot arise until the date of the victim's death. Walls , 740 So.2d at 1270.

      Even had the Lennies rested on the assumption that Mr. Lennie's lung cancer was caused by smoking, at least one other court has held that simply resting on that assumption without making any inquiry into a decedent's cause of death is insufficient for the application of contra non valentem . Henderson v. Todd Shipyards , 462 So.2d 242 (La. App. 4th Cir. 1984).

      The Lennies additionally argue that, even if they had asked Mr. Lennie's doctors about the cause of his lung cancer, it would not have mattered, because Dr. Kennedy, Mr. Lennie's treating oncologist, testified by deposition that he was unaware of the link between NORM exposure and lung cancer at the time he diagnosed Mr. Lennie. Nevertheless, Dr. Kennedy did not testify as to any conversations he had with Mr. Lennie's family regarding the cause of the lung cancer. This ex post facto argument is made in apparent recognition that reasonable persons in the Lennies' positions would have made some inquiry into the cause of Mr. Lennie's illness.

      See generally , Richardson , supra , a survival action brought by the children of a shipyard worker who died of work-related silicosis, where this Court examined the knowledge the decedent had with regard to his illness to determine whether he still had a viable claim on the date of his death to transfer to his survivors.

      Because we find that the Lennies themselves had sufficient knowledge regarding their potential survival claims such that they may not rely upon the doctrine of contra non valentem , we do not address the issue of whether a survival action plaintiff's lack of knowledge can serve to suspend the running of prescription beyond the one-year post-death prescriptive period provided in La. C.C. art. 2315.1, where the primary tort victim himself had sufficient knowledge of his claim such that prescription was running prior to his death, but had not yet tolled on the date of his death.

      Prior to the Louisiana Supreme Court's opinion in Watkins , supra , there was disagreement among our Courts as to whether the one-year period set forth in La. C.C. art. 2315.1 was prescriptive (and therefore susceptible to interruption or suspension) or peremptive. In Watkins , the Supreme Court determined, under a plain language analysis of the statute, that the one-year period is prescriptive rather than preemptive, and thus subject to interruption or suspension.

      Because the Lennies have not shown that they were unable to bring their survival claims within one year of Mr. Lennie's death, either due to concealment from them by defendants, or due to their lack of knowledge not caused by their own fault, it is not necessary for us to engage in a factual examination of what Mr. Lennie himself knew or didn't know regarding his cause of action or whether defendants' actions served to conceal the cause of action from him.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    Forrest P. WALL, M.D., F.A.C.S., Plaintiff-Appellee v. Gregory W. BRYAN, DPM, Michelle R. Ritter, M.D., R. Blair Drummond, DPM, Janna Cruey-Roark and Ambulatory Surgery Center of Louisiana, L.L.C., Defendant-Appellant
    No. 52,165-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    AYRES, SHELTON, WILLIAMS, BENSON & PAINE, By: Lee H. Ayers, Jody Todd Benson, Stacey Smith Melerine, Shreveport, Counsel for Appellant
    BRADLEY, MURCHISON, KELLY, By: David Richard Taggart, Shreveport, Judith Wilkinson Giorlando, Baton Rouge, Brittany Jaudon Walker, Shreveport, Counsel for Appellee
    Before MOORE, STONE, and STEPHENS, JJ.
   STEPHENS, J.

Defendants, Gregory W. Bryan, DPM, Michelle R. Ritter, M.D., R. Blair Drummond, DPM, Janna Cruey-Roark, and Ambulatory Surgery Center of Louisiana, L.L.C., appeal judgments by the First Judicial District Court, Parish of Caddo, State of Louisiana, determining the valuation method and price to be paid to plaintiff, Forrest P. Wall, M.D., F.A.C.S., for his ownership interest in Ambulatory Surgery Center of Louisiana, L.L.C. Plaintiff has answered the appeal and appeals the judgment determining the price to be paid. For the following reason, we affirm the trial court's judgments.

FACTS AND PROCEDURAL HISTORY

Forrest P. Wall, M.D., F.A.C.S., brought suit against Gregory W. Bryan, DPM, Michelle R. Ritter, M.D., R. Blair Drummond, DPM, Janna Cruey-Roark, and Ambulatory Surgery Center of Louisiana, L.L.C. ("ASC" ), in connection with his imminent disqualification as a member of ASC and the forced sale of his ownership interest in ASC that would follow.

ASC is a limited liability company medical practice. At the outset of this litigation, Dr. Wall, Dr. Bryan, Dr. Ritter, and Dr. Drummond were members of ASC's medical staff as well as ASC's board, and Ms. Roark was an employee and the administrator of ASC. In 2007, the members entered into an agreement entitled Operating Agreement of Ambulatory Surgery Center of Louisiana, L.L.C. ("the Operating Agreement"), which governed the management of ASC. It mandated that in order to maintain ownership in ASC, a person must maintain full and unrestricted privileges on ASC's professional staff. Dr. Wall was subsequently suspended from ASC on April 15, 2015. Pursuant to the Operating Agreement, this suspension not only disqualified Dr. Wall from membership in ASC but also barred him from owning any interest in ASC. The Operating Agreement contemplated several scenarios for valuing a withdrawing member's interest, and each of these scenarios required the value of the interest to be calculated in accordance with either "book value" or "computed value."

Following his suspension from ASC, Dr. Wall filed suit seeking damages and injunctive relief to prevent ASC from denying him privileges. A temporary restraining order was issued barring ASC from taking any adverse action against Dr. Wall. Thereafter, the attorneys for the parties signed an agreement, the Confidential Agreement in Principal ("the Agreement in Principle"), which specifically contemplated the execution of final settlement agreements by the parties. The Agreement in Principle provided in pertinent part that "the value of Dr. Wall's interest [is to be] determined in accordance with the ASC Operating Agreement provisions for Voluntary Separation." Voluntary Separation was one of the scenarios contemplated in the Operating Agreement in which either book value or computed value was to be used to value a withdrawing member's interest.

The parties subsequently signed an agreement, the Confidential Settlement and Release ("Settlement Agreement"), pursuant to which Dr. Wall's suspension was rescinded and expunged and all ancillary disputes between the parties were settled except for one: the price to be paid to Dr. Wall for his 24.75% ownership interest in ASC. The Settlement Agreement further provided that in the event the parties were not able to agree on a price, they would seek a determination by the trial court. However, the Settlement Agreement did not specify the method for calculating the value of Dr. Wall's interest, thus triggering the applicability of La. R.S. 12:1325(C), which requires the use of fair market value to determine the value of a withdrawing member's interest when no method is otherwise specified.

A hearing was subsequently held to determine which written agreement between the parties should dictate the valuation method used to calculate the price to be paid Dr. Wall for his ownership interest in ASC. ASC contended that the Operating Agreement and/or Agreement in Principle controlled the method of valuation, which would result in a book or computed value. Dr. Wall asserted the Settlement Agreement controlled, and, therefore, in accordance with La. R.S. 12:1325(C), fair market value was the appropriate method of valuation. A fair market value of Dr. Wall's interest would be substantially higher than a book or computed value.

Ultimately, the trial court concluded that the Settlement Agreement superseded all prior agreements between the parties, specifically, the Agreement in Principle and the Operating Agreement. The trial court reasoned that the following language of the Settlement Agreement was clear and unambiguous and left no room for an alternative interpretation: "This agreement supersedes all prior understandings, negotiations, and agreements between and among the parties." The court further concluded that since the Settlement Agreement did not specify the method for calculating the value of Dr. Wall's interest in ASC, the value should be fair market, in accordance with the requirements of La. R.S. 12:1325(C).

Another hearing was held to determine the fair market value of Dr. Wall's 24.75% interest in ASC. Dr. Wall presented expert testimony from Benjamin C. Woods while ASC presented expert testimony from Stuart Neiberg. Woods is a certified public accountant, a certified valuation analyst, and accredited in business valuation. He testified that approximately 90% of his work consists of business valuation of closely-held businesses, and over the last four or five years, he has valued roughly 18 to 20 medical-field organizations, including five or six surgery centers or related entities. Here, Woods stated his assigned objective was to determine the fair market value of a 24.75% interest in ASC as of April 2015. He testified that in doing so, he considered three different valuation approaches: the asset approach, the income approach, and the market approach. He explained that he determined the income approach was the most appropriate method in this case. Woods also calculated the value using the market approach to use a "self-check" on the income approach. He chose not to calculate the asset approach at all, stating it rarely represented intangible assets. Woods' opinion was that the fair market value of Dr. Wall's interest was $873,146.00. He did not apply any discounts to this value. Regarding whether or not Dr. Wall's interest should be subjected to any discounts, Woods gave the following testimony:

I am aware that Louisiana courts and different courts have different interpretations of what is equitable in the court of law. My assignment is [to] determine the fair market value to a hypothetical buyer and seller on an open market, with both having knowledge of the facts. And then, you know, the courts can apply what we do in any way they choose, that's their discretion.

However, while not a stated "minority discount," Woods did apply an embedded adjustment when initially calculating the value of Dr. Wall's 24.75% interest. Woods testified that this embedded minority discount accounted for the fact that Dr. Wall's interest was a noncontrolling interest in ASC, and the embedded discount was necessary in order to arrive at a fair market value rather than just a fair value. Additionally, he testified that the 15% minority discount applied by Neiberg was reasonable.

Regarding the applicability of a lack of marketability discount, Woods testified his research showed this type of minority interest in ambulatory surgery centers sells readily in the marketplace as there are numerous physician-owned entities like ASC in existence and several big companies that are consolidating these interests, as well as hospitals and other physicians creating the market-a unique situation from other closely-held entities. Accordingly, Woods elected not to apply a lack of marketability discount. He testified that a typical lack of marketability discount is usually 30-35% and the 25% lack of marketability discount applied by Neiberg was not egregious; rather, it was just in error because there actually is a market for minority interests in surgical centers. However, Woods did acknowledge that an investment in any closely-held company contains a greater degree of risk than one in publicly traded stocks due to lack of marketability, size, diversity, and other factors. Notably, part of the research relied on by Woods to justify not applying a marketability discount is a 2015 valuation survey of ambulatory surgery centers that was prepared by Neiberg's company. Woods asserted the survey indicated there is in fact a market for a minority interest in ambulatory surgery centers.

Neiberg is a certified public accountant and a certified financial analyst who is a partner in the company HealthCare Appraisers, Incorporated ("HAI"). HAI almost exclusively handles valuations of healthcare entities, and Neiberg has conducted more than 200 valuations of ambulatory surgery centers. He testified that his assigned objective was to determine the fair market value of a 24.75% interest in ASC as of April 15, 2015. In calculating his valuation, Neiberg relied on the definition of "fair market value" contained in the International Glossary of Business Valuation Terms and accepted by the American Society of Appraisers: "the price in terms of cash equivalents at which property would change hands between a hypothetical willing buyer and a hypothetical willing seller, acting at arm's length in an open and unrestrictive market when neither is under any compulsion to buy or sell, when both have reasonable knowledge of the facts." Like Woods, Neiberg identified three potential valuation approaches: market, income, and asset. He utilized both the market and income approaches. Neiberg explained the market approach and determined the range for the fair market value of Dr. Wall's interest to be $647,955.00-$699,683.00. Using the income approach, he determined the fair market value to be $681,000.00.

In calculating his valuation, Neiberg applied a 15% minority discount and 25% lack of marketability discount. Neiberg testified that in almost every transaction that he has ever worked on for a noncontrolling interest in an ambulatory surgery center, approximately 200 of those types of transactions, there was both a minority discount and a lack of marketability discount applied.

In the survey conducted by HAI that was relied on by both Neiberg and Woods, the median minority discount among the database of transactions analyzed was 26.6%, and the typical lack of marketability discount was 66.4%. However, when calculating the value of Dr. Wall's interest in ASC, Neiberg applied only a 15% minority discount, making subjective adjustments to the minority discount based on the unique characteristics of ambulatory surgery centers as opposed to other healthcare entities. For example, the owners of ambulatory surgery centers are usually also the managers and the operators of the business, so it is unlikely that other owners and operators would act adversely to a particular interest holder because doing so would severely hurt their own financial interests as well.

Additionally, Neiberg applied only a 25% lack of marketability discount because unlike owners of other healthcare entities or closely-held businesses, owners of surgery centers continue to receive distributions from that surgery center while they are waiting to sell their interest, making the interest more marketable to a potential investor. But, because there is still no instantaneous sale of shares like those traded on a public exchange, some sort of discount for lack of marketability must be applied to closely-held businesses in order to arrive at a fair market value. Neiberg testified that he believed Woods misinterpreted the results of HAI's survey in that even if there is a marketplace for minority interests in surgery centers, the lag time in which to consummate a transaction still creates the need to incorporate some sort of discount for lack of marketability. Furthermore, regarding Woods' reliance on HAI's survey as evidence of ASC's marketability, Neiberg testified that zero percent of the subjects in the survey were interested in acquiring a minority interest in ambulatory surgical centers with less than 11 members.

Neiberg testified that excluding the discounts in this particular case would result in a fair value calculation, not fair market value. While Neiberg and Woods both testified there is not a generally accepted defined term for fair value (as opposed to fair market value), Neiberg further stated his experience that many state courts have accepted that fair value would exclude the use of valuation discounts. Furthermore, Neiberg testified that considering the existing owners of ASC were acquiring Dr. Wall's interest would also result in a departure from the fair market standard because the value would no longer be considering a hypothetical buyer but a specific buyer.

After hearing the expert witnesses, the trial court issued a comprehensive written opinion and judgment holding the expert testimony and the circumstances of the case warranted the application of both the minority and the lack of marketability discounts. It ordered the fair market value of Dr. Wall's interest in ASC to be $673.819.00. This appeal by ASC of both judgments issued by the trial court ensued, along with an answer to the appeal by Dr. Wall.

DISCUSSION

On appeal, ASC asserts the following assignments of error: the trial court erred in determining the Settlement Agreement controls the method for calculating the price to be paid Dr. Wall for his interest; the trial court erred in determining the Settlement Agreement supersedes both the Operating Agreement and the Agreement in Principle; the trial court erred in determining that the fair market value basis applies to the valuation of Dr. Wall's interest; and, the trial court erred in determining the amount of damages due to Dr. Wall.

Controlling Agreement

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. Contracts have the effect of law for the parties. La. C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045 ; BRP LLC (Delaware) v. MC Louisiana Minerals LLC , 50,549 (La. App. 2 Cir. 5/18/16), 196 So.3d 37. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046 ; Id.

Parol or extrinsic evidence is generally inadmissible to vary the terms of a written contract, unless the written expression of the common intention of the parties is ambiguous. BRP LLC (Delaware), supra . A contract is considered ambiguous on the issue of intent when either it lacks a provision on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. Id. The trial court's initial inquiry should be whether the words of the contract clearly and explicitly set forth the intent of the parties. Id. This methodology limits the interpretation of a contract to the internal language of the contract itself. Id. If this intent cannot be adequately discerned from the contract itself, the court may then consider evidence as to the facts and circumstances surrounding the parties at the time the contract was made. Id.

Also known as a merger clause, or an entire-agreement clause, an integration clause is a contractual provision stating that the contract represents the parties' complete and final agreement. Integration Clause, Black's Law Dictionary (10th ed. 2014). An integration clause precludes any prior or contemporaneous agreements which are not set forth in the contract. Driver Pipeline Co. v. Cadeville Gas Storage, LLC , 49,375 (La. App. 2 Cir. 10/1/14), 150 So.3d 492, writ denied , 2014-2304 (La. 1/23/15), 159 So.3d 1058.

Here, ASC asserts the language in the integration and merger clause contained in Section 4.7 of the Settlement Agreement entitled "Entire Agreement" does not preclude the Operating Agreement and Agreement in Principle but, instead, evidences the parties' intent for the provisions of those previous agreements to remain in effect. The clause at issue states:

This Agreement and its Exhibits and the referral documents whose terms are incorporated herein, is the entire agreement between and among the Parties and no modification shall be effective unless in writing and signed by the party against whom or which it is sought to be enforced. This Agreement supersedes all prior understandings, negotiations, and agreements between and among the Parties. The Parties represent and warrant no promise of inducement has been given to them other than such promises and inducements as set for the herein and, in executing this Agreement, the Parties are not relying upon any statement, representation, or commitment of any kind not stated herein and, are relying only upon the statements, representations and warranties set forth herein[.]

ASC argues that the Agreement in Principle is a referral document incorporated into the Settlement Agreement, and this integration clause establishes the parties' intent for the Agreement in Principle to be part of the entire agreement among the parties. As neither the Agreement in Principle nor the Operating Agreement was attached as an exhibit to the Settlement Agreement, the basis for ASC's argument is a single reference to the Agreement in Principle that appears in the recitals of the Settlement Agreement. The pertinent recital reads as follows: "WHEREAS, the Parties have previously entered into a "Confidential Agreement in Princip[le]" on June 23, 2015, ("Confidential Agreement"), pursuant to which the parties agreed to resolve their differences without resort to further litigation[.]" ASC asserts the Operating Agreement should, therefore, control the method of valuation since the Agreement in Principle requires the value of Dr. Wall's interest to be calculated in accordance with the provisions of the Operating Agreement. ASC also argues that prior drafts of the Settlement Agreement indicate the parties intended for the Operating Agreement to control the method of valuation.

The trial court held that the Settlement Agreement superseded both the Agreement in Principle and the Operating Agreement. The trial court reasoned that because the Agreement in Principle provided it was "subject to the reduction to writing of the final agreements and the execution thereof by the appropriate authorized representatives," the Agreement in Principle was essentially only an "agreement-to-agree" and did not bind the parties to its terms. We agree.

In Driver Pipeline Co. , supra , the court found the following language of the contract comprised a valid and sufficient integration clause:

This Contract and the Exhibits hereto constitute the entire agreement between the Parties hereto with respect to the matters covered hereby. No statements, representations, warranties, or agreements with respect to such matters, written or oral, except those expressly set out in this Contract or expressly incorporated herein by reference, shall have any further force or effect between the Parties, or shall same be relied on by the Parties hereto, it being agreed that this Contract supersedes all prior negotiations and understandings. This Contract can be hereafter modified or amended only by a document duly executed by the authorized official of each of the Parties. This Contract shall be binding upon the Parties hereto, their heirs, executors, administrators, successors or permitted assigns.

Id. at 501. Similarly, here, the language of the Settlement Agreement, and in particular the merger and integration clause, clearly and explicitly set forth the parties' intent that the Settlement Agreement superseded all prior agreements and understandings, including the Agreement in Principle and Operating Agreement. Accordingly, where the language of the Settlement Agreement is clear and unambiguous and can lead to no alternative conclusion other than that Dr. Wall and ASC intended for the Settlement Agreement, alone, to form the law between the parties, no other interpretation in search of the parties' intent is permitted with regard to prior drafts of the Settlement Agreement or the single mention of the Agreement in Principle in its recitals. Therefore, the trial court was not plainly wrong in holding the Settlement Agreement superseded the Agreement in Principle and the Operating Agreement. ASC's assignments of error on this issue are without merit.

Basis for Valuation

The trial court further held that the Settlement Agreement controlled the basis of valuation to be used in determining the price to be paid for Dr. Wall's interest in ASC and ordered the value be calculated according to La. R.S. 12:1325(C), which provides:

Except as otherwise provided in this Chapter, on withdrawal or resignation, a withdrawing or resigning member is entitled to receive such distribution, if any, to which the member is entitled under a written operating agreement and, if not otherwise provided in a written operating agreement , within a reasonable time after withdrawal or resignation, the fair market value of the member's interest as of the date of the member's withdrawal or resignation . (Emphasis added).

As discussed herein, the Settlement Agreement superseded the Agreement in Principle and the Operating Agreement; thus the methods for calculating a withdrawing member's interest provided in those documents are not applicable. Because the Settlement Agreement does not specify the method for calculating the value of Dr. Wall's interest in ASC, we look, as the trial court did to La. R. S. 12:1325(C) in ordering that Dr. Wall's interest be determined in accordance with the fair market value basis. We conclude that the value assigned by the trial court was not in error and this assignment of error is without merit.

Damages

ASC failed to brief its fourth assignment of error regarding the damages awarded; therefore, that assignment of error is abandoned. See, U.R.C.A. Rule 2-12.4, where an appellant fails to brief an assignment of error, the appeal court may deem that assignment abandoned. Lawson v. Lawson , 48,296 (La. App. 2 Cir. 7/24/13), 121 So.3d 769, 775.

Application of Discounts

Dr. Wall answered the appeal and asserts in his own assignment of error that the trial court erred by applying discounts to the valuation of his interest in ASC. After extensive and competent testimony by both Woods and Neiberg, and multiple pre- and post-trial memorandums submitted by Dr. Wall and ASC, the trial court issued thorough written reasons, holding that in this particular case, the discounts applied by ASC's expert, Neiberg, were appropriate.

The trial court's factual findings will not be overturned unless they are clearly wrong or manifestly erroneous. In re P.K. Smith Motors, Inc., 50,357 (La. App. 2 Cir. 3/9/16), 188 So.3d 324, writ denied, 2016-0852 (La. 6/17/16), 192 So.3d 771. The manifest error standard of review demands great deference to findings based on the credibility of witnesses. Id. The rule governing review of credibility determinations applies to the evaluation of expert testimony, including the resolution of conflicts in such testimony. Id.

Here, the trial court made a factual determination that given the particular facts and circumstances of the case, the fair market value of ASC was most accurately calculated by Neiberg. The trial court found Neiberg to be a more credible, qualified, and reliable expert than Woods. It was apparently particularly convinced by Neiberg's definition of fair market value and the notion that it hinges on both the contemplation of a hypothetical buyer and hypothetical seller, and the application of discounts, without which the value would be just fair value-not fair market value. These credibility determinations by the trial court were not clearly wrong.

Further, we recognize Dr. Wall's reliance on Cannon v. Bertrand , 2008-1073 (La. 1/21/09), 2 So.3d 393, but Cannon can be distinguished from the present case. The Louisiana Supreme Court held in Cannon that "[m]inority discounts and other discounts, such as for lack of marketability, may have a place in our law; however, such discounts must be used sparingly and only when the facts support their use." Id. at 396. While Cannon did involve the buyout of a minority owner's interest by the remaining members of the entity, that entity was a limited liability partnership rather than a limited liability company. The amount due a partner withdrawing from a limited liability partnership is governed by La. C.C. art. 2823, which provides as follows: "The former partner, his successors, or the seizing creditor is entitled to an amount equal to the value that the share of the former partner had at the time membership ceased." Thus, unlike the present case, there was no requirement in Cannon that the value calculated be fair market value. Rather, in Cannon, the appropriate valuation methodology and the applicability of any discounts were left to the sound discretion of the court. This flexibility in the basis for valuation increases a court's ability to avoid discounts while still achieving equitable results. Steven G. (Buzz) Durio, Discounts in Business Valuations After Cannon v. Bertrand , 57 La. B.J. 24, 27 (2009). Additionally, with regard to Cannon , the court specifically conceded that it cannot fashion a "one size fits all" method of valuation which would be fair in all cases. Cannon, supra at 397. Simply put, Cannon did not universally bar the application of discounts, considering particular factual differences that might occur.

In Fancher v. Prudhome , 47,575 (La. App. 2 Cir. 2/27/13), 112 So.3d 909, we applied the holding in Cannon to a limited liability company. Notably, however, Fancher , unlike Cannon , did not reverse a trial court's application of discounts. Instead, Fancher simply affirmed the trial court's finding of fact that the asset approach/book value, without the application of discounts, most accurately depicted, under its particular circumstances, the fair market value of the withdrawing member's interest.

Conversely, as recently as 2016, this court upheld a trial court's exercise of its discretion in applying discounts. See In re P.K. Smith Motors, Inc., supra, where the trial court applied a lack of marketability discount to the price to be paid to the estate of a deceased shareholder selling its shares back to the family-owned corporation when the parties agreed their intent was for a fair market value or fair price to be the basis for valuation. Furthermore, both the first and the fifth circuits have distinguished Cannon and affirmed the application of post- Cannon discounts in valuations of limited liability companies. See Vedros v. Vedros , 2016-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, writ denied, 2017-02119 (La. 2/23/18), 237 So.3d 1185, and writ denied , 2018-0004 (La. 2/23/18), 237 So.3d 520 ; Trahan v. Trahan , 2010-0109 (La. App. 1 Cir. 6/11/10), 43 So.3d 218, writ denied , 2010-2014 (La. 11/12/10), 49 So.3d 889.

Furthermore, while the mandate of the supreme court in Cannon is that discounts should be used sparingly, it is actually the industry standard for both minority and lack of marketability discounts to be applied to noncontrolling interests in ambulatory surgery centers. The record clearly shows that Neiberg is an expert in not just valuation of closely-held companies, but specifically in ambulatory surgery centers, and the trial court was by no means clearly wrong in placing great weight in his testimony. The trial court simply exercised the discretion Cannon afforded it and applied the discounts it thought best to achieve an equitable outcome within the constraints of the statutorily required fair market value basis. Accordingly, Dr. Wall's assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court. All costs of this appeal are assessed equally between the parties.

AFFIRMED .

      "ASC" is used throughout in reference not only to Ambulatory Surgery Center of Louisiana, L.L.C., but also in reference to all of the defendants, collectively.

      Although the initial contract was inadvertently entitled Agreement in "Principal," the grammatically correct spelling is "Principle" and will be used hereafter in this opinion.

      The term "minority discount" is used interchangeably throughout the record with the terms "noncontrolling discount" and "lack of control discount."

      He actually valued the ASC up to April 30th, but testified there was no significant difference.

      The total discount ultimately applied, according to the formula used, was 34.1%, which was a combination of the lack of control and lack of marketability discounts.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Robert Alan BRIDGES, Appellant
    No. 52,104-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    LOUISIANA APPELLATE PROJECT, By: Annette F. Roach, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TRENEISHA JACKSON HILL, REBECCA ARMAND EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, GARRETT, and STEPHENS, JJ.
   GARRETT, J.

The defendant, Robert Alan Bridges, was convicted as charged of indecent behavior with a juvenile, in violation of La. R.S. 14:81, for sending a lewd text message to a 14-year-old girl. He was sentenced to four years at hard labor. He was also ordered to pay a fine of $4,000 or serve three years in the parish jail in lieu of payment. We affirm the defendant's conviction. However, we amend the sentence to vacate the portion ordering jail time in default of payment of a fine and affirm the sentence as amended.

FACTS

The 14-year-old female victim knew the married, adult male defendant from church, where he attended a Sunday school class taught by one of her grandparents. On February 22, 2016, the victim had her iPad with her in gym class when the following message from the defendant appeared on the screen:

So you would let me fuck you while on your period and then you would suck your period blood off of my dick? ?

This message was accompanied by the defendant's name, screen name, and photo. A second message-"Hello? ?"-followed.

A gym teacher saw the victim with the iPad and confiscated it. Upon seeing the message, the gym teacher reported it to a school counselor. Sgt. Andray Miles, a deputy sheriff who served as the school resource officer, was then informed of the situation, and he contacted the Youth Services Division of the Caddo Parish Sheriff's Office. Sgt. Miles testified that, after locating another photo of the defendant on Facebook, he contacted his headquarters to obtain the defendant's date of birth and verified that he was an adult.

During the ensuing investigation, the defendant was interviewed on two occasions by Detective Trey Keene. In the first interview, the defendant denied sending any sexually inappropriate messages to the victim. In the second interview, which occurred three days later, the defendant admitted sending the message at issue. Both interviews were recorded. The defendant was charged with indecent behavior with a juvenile.

At a preliminary examination on April 19, 2016, the trial court found probable cause for the charge. On the same date, the state tendered its discovery items to the defense. They consisted of 73 pages of documents filed in the record, as well as "a copy of four DVDs and three CDs" received by defense counsel in court. Included in the discovery documents was a written report by Detective Jared Marshall, the investigator who conducted the forensic search of the victim's iPad and the defendant's cell phone. He specifically described some of the deleted files he recovered from an SD card found attached to the defendant's cell phone. They included nude photos, some of the defendant and some of children.

At the April 2017 trial, the state presented the testimony of the victim, the gym teacher, Sgt. Miles, Detective Keene, and Detective Marshall. The victim testified that the gym teacher took the iPad away from her before she could read the message from the defendant. She stated that she and the defendant were Facebook friends and used Facebook Messenger to communicate outside of church. In addition to messages, she testified that they had exchanged inappropriate pictures, "[s]tuff that shouldn't have been sent." According to her testimony, in one of the photos sent to her by the defendant, he was clothed on the top but "exposed" on the bottom. Detective Keene testified about his interviews with the defendant, specifically the defendant's denials in the first one and his admissions in the second interview. He also stated that, while he did not know his exact age, the defendant was over the age of 18 years.

During Detective Marshall's testimony, the defense made an objection and asked for the jury to be removed before he was questioned about what he found during the forensic search of the defendant's cell phone. The defendant objected to the state eliciting testimony about nude photos found on the cell phone. The state agreed not to refer to the photos of naked children found on the device. However, the state noted that there was "a lot of pornographic material found" on the phone which it believed was relevant and which was included in the materials tendered to the defense in discovery. The defense objected to "all of it." The state then announced its intention to ask questions about the defendant's internet search for certain topics, such as "naïve teen girl." According to the state, Detective Marshall had placed a software report, which included thumbnail photos of the defendant's cell phone internet search history, on a disc, and it had been tendered to the defense during discovery. The trial court examined the "thumbnails" and asked if the evidence was of a "lustful disposition." The state indicated it was not, and that the websites were legal and did not involve child pornography. Ultimately, the trial court reasoned that La. C.E. art. 412.2, which pertains to evidence of similar crimes, wrongs, or acts in sex offense cases, was applicable. The trial court also applied a prejudicial versus probative analysis. It sustained the objection in part and denied it in part, limiting the testimony to websites referencing behavior similar to that of which the defendant was accused. Thereafter, Detective Marshall testified before the jury that the internet history on the defendant's cell phone had links to pornographic videos with titles including words like "teen naïve" and "virgin." He also stated that he was able to recover some deleted material from an SD card in the cell phone which included numerous photos of an erect penis.

The defendant testified on his own behalf. He denied sending the victim any inappropriate or sexual messages, denied confessing the same to Detective Keene, and claimed his Facebook account was hacked, most likely by a man with whom his former wife had been involved. On rebuttal, the state recalled Detective Keene and played for the jury a portion of his second interview with the defendant in which the defendant admitting sending the message at issue. A unanimous jury found the defendant guilty as charged.

The defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal. Following a hearing, both motions were denied. As to the motion for post-verdict judgment of acquittal, the defense argued that the state failed to establish the defendant's age because no evidence was presented as to his date of birth. In denying this motion, the trial court specifically cited the testimony of Detective Keene that the defendant was over the age of 18. The trial court also stated, "[w]hile we may not be able to pin the exact year, I think everyone would agree he's at least 30 years old because we can all see him."

Finding no mitigating factors and several aggravating factors, including the defendant's "utter lack of any remorse" and his refusal to accept responsibility for his actions, the trial court sentenced the defendant to four years at hard labor. Additionally, it imposed a $4,000 fine, and ordered that the defendant serve three years in the parish jail in lieu of payment of the fine. The defendant's motion to reconsider sentence was denied. The defendant appealed.

SUFFICIENCY OF EVIDENCE

The defendant argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. He maintains that there was no "completed act"

because the gym teacher intercepted his message to the 14-year-old intended recipient before she saw it. As a result, he requests that his conviction be vacated and the responsive verdict of attempted indecent behavior with a juvenile be entered.

Law

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. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175, writ not cons. , 2017-0895 (La. 9/6/17), 226 So.3d 428. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Sullivan , supra.

In relevant part, La. R.S. 14:81 provides:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
...
(2) The transmission , delivery or utterance of any textual , visual, written , or oral communication depicting lewd or lascivious conduct, text, words , or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.
...
C. For purposes of this Section, "textual, visual, written, or oral communication" means any communication of any kind, whether electronic or otherwise, made through the use of the United States mail, any private carrier, personal courier, computer online service, Internet service, local bulletin board service, Internet chat room, electronic mail, online messaging service, or personal delivery or contact.
...
E. An offense committed under this Section and based upon the transmission and receipt of textual, visual, written, or oral communication may be deemed to have been committed where the communication was originally sent, originally received, or originally viewed by any person. [Emphasis added.]

In order to convict a person under La. R.S. 14:81(A)(2), the state must prove that the offender intended on sending obscene material to a juvenile under the age of 17, through electronic or textual transmission, in order to gratify his, or the child's, sexual desires. The last provision of section (A)(2) simply provides that incidental transmission to a person over the age of 17 is not a defense. State v. Whitmore , 46,120 (La. App. 2 Cir. 3/2/11), 58 So.3d 583, writ denied , 2011-0614 (La. 11/14/11), 75 So.3d 937, cert. denied , 566 U.S. 1012, 132 S.Ct. 2434, 182 L.Ed. 2d 1067 (2012).

The completed crime of indecent behavior with a juvenile is accomplished by the mere "transmission of an electronic textual communication or an electronic visual communication depicting lewd or lascivious conduct, text, or images to any person" reasonably believed to be under 17 and at least two years younger than the offender. State v. Jones , 10-0762 (La. 9/7/11), 74 So.3d 197. In the context of La. R.S. 14:81(A), the Louisiana Supreme Court has defined "lewd and lascivious" as an act which is "lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner." State v. Jones , supra.

Discussion

In support of his argument that the state was required to prove receipt of the message by the 14-year-old victim, the defendant cites La. R.S. 14:81(E). He contends that the wording of this section contemplates that three actions are required for communication-sending, receiving and viewing. However, review of the statute reveals that La. R.S. 14:81(E) is a venue provision, while La. R.S. 14:81(A)(2) sets forth the elements of the offense. The language of that section requires only that the defendant transmit the "lewd or lascivious" message and that the transmission must be to "any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender." The provision further explicitly provides actual receipt by a person who is not under the age of 17 shall not be a defense. Consequently, the adult defendant's transmission of this lewd message to a 14-year-old girl satisfies the requirement of La. R. S. 14:81(A)(2) even if it was intercepted and viewed by the gym teacher after it was received on the young girl's iPad.

Finally, the defendant argues that his follow-up message-"Hello? ?"-somehow negates any finding that his sexual desires had been gratified. However, the statute does not require that the state prove that the defendant's sexual desires were gratified, merely that the transmission was made with the intention of arousing or gratifying his sexual desires.

Despite the defendant's testimony to the contrary, the testimony of the state's witnesses established that the adult defendant intended to send the lewd message to a juvenile under the age of 17, through electronic transmission, in order to gratify his sexual desires. The message speaks for itself. The jury obviously believed the testimony of the state's witnesses while finding the defendant's testimony was not credible. As noted above, we do not assess the credibility of the witnesses or reweigh evidence. Considering the evidence in the light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant was guilty of indecent behavior with a juvenile.

This assignment of error is meritless.

ADMISSION OF EVIDENCE OF PORNOGRAPHIC VIDEO LINKS ON DEFENDANT'S CELL PHONE

The defendant contends that the trial court erred in allowing the state to question Detective Marshall about pornographic video links found on the defendant's cell phone with titles containing the terms "virgin" and "teen naïve."

Law

"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. La. C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, the Louisiana Code of Evidence, or other legislation. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or by considerations of undue delay or waste of time. La. C.E. art. 403. A trial judge's determination of the relevancy of testimony is afforded great weight and will not be disturbed absent an abuse of discretion. State v. Henderson , 46,057 (La. App. 2 Cir. 3/2/11), 58 So.3d 552, writ denied , 11-0674 (La. 10/14/11), 74 So.3d 216 ; State v. Wiley , 614 So.2d 862 (La. App. 2 Cir. 1993).

Generally, evidence of other acts of misconduct is inadmissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a "bad person." La. C.E. art. 404(B)(1) ; State v. Breedlove , 51,055 (La. App. 2 Cir. 1/11/17), 213 So.3d 1195, writ denied , 2017-0270 (La. 11/6/17), 229 So.3d 468. However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1) ; State v. Roberson , 40,809 (La. App. 2 Cir. 4/19/06), 929 So.2d 789. It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence. State v. Taylor , 2016-1124 (La. 12/1/16), 217 So.3d 283.

As to sex offenses involving a victim under the age of 17, La. C.E. art. 412.2(A) provides that evidence involving "sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403."

The erroneous admission of other crimes evidence is subject to harmless error analysis on appeal. State v. Bell , 99-3278 (La. 12/8/00), 776 So.2d 418 ; State v. Small , 50,388 (La. App. 2 Cir. 2/24/16), 189 So.3d 1129, writ denied , 2016-0533 (La. 3/13/17), 212 So.3d 1158. Such error is harmless where the verdict is "surely unattributable to the error." State v. Small , supra.

Indecent behavior with a juvenile is a specific intent crime for which the state must prove the offender's intent to arouse or gratify his sexual desires by his actions involving a child. State v. Holman , 46,528 (La. App. 2 Cir. 9/21/11), 73 So.3d 444 ; State v. Caston , 43,565 (La. App. 2 Cir. 9/24/08), 996 So.2d 480. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Cortez , 48,319 (La. App. 2 Cir. 8/7/13), 122 So.3d 588. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Chatman , 49,970 (La. App. 2 Cir. 6/24/15), 167 So.3d 1136, writ denied , 2015-1422 (La. 9/6/16), 205 So.3d 916.

Discussion

The defendant argues that the trial court incorrectly applied the provisions of La. C.E. art. 412.2, rather than the relevancy articles of La. C.E. art. 401, et seq. Although the state specifically stated that the evidence was not offered to show a lustful disposition, the trial court found La. C.E. art. 412.2 was controlling. Even if La. C.E. art. 412.2 was not the controlling article, we find that the limited evidence presented to the jury was admissible under the relevancy articles of La. C.E. art. 401, et. seq.

The trial court clearly concluded that the probative value of Detective Marshall's testimony outweighed any prejudicial effect that the testimony might have. The trial court placed very strict limitations on what the witness was allowed to say in order to prevent the admission of any irrelevant evidence. Consequently, Detective Marshall's testimony about the results of his forensic exam of the defendant's cell phone consisted of a statement that the defendant's internet history contained links to two or three videos with titles including words like "teen naïve" and "virgin," and a statement that the defendant's SD card had numerous photographs of an erect penis. The defendant does not complain about the latter statement. The evidence of the defendant's internet history was directly related to the offense of which the defendant was accused, transmitting a lewd message to a young, teenage girl with the intention of arousing or gratifying his sexual desires, and was relevant to the jury's determination of the defendant's intent when he sent that message. This evidence showed his interest in sexual matters involving young, teenage girls.

The trial court did not abuse its discretion in admitting the extremely limited testimony of Detective Marshall regarding the internet history he recovered from the defendant's cell phone. Furthermore, the evidence was clearly sufficient, even without Detective Marshall's testimony, to sustain the defendant's conviction for indecent behavior with a juvenile. Accordingly, any error of the trial court in admitting the evidence, whether under La. C.E. art. 412.2 or La. C.E. art. 401, et seq. , was harmless.

This assignment of error is without merit.

DEFAULT TIME

The defendant argues that the trial court erred in imposing default time of three years in the parish jail for failure to pay a fine of $4,000. The state agrees and requests that the default time be vacated from the defendant's sentence.

An indigent defendant cannot be subjected to default time in lieu of payment of a fine, costs or restitution. Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed. 2d 221 (1983) ;

State v. Roebuck , 94-1127 (La. 6/30/95), 657 So.2d 1009. Indigence may be discerned from the record. State v. Pratt , 50,152 (La. App. 2 Cir. 12/30/15), 184 So.3d 816, writ denied , 2016-0123 (La. 1/25/17), 215 So.3d 262. This court considers a defendant indigent when he is represented at trial by an indigent defender's office or a court-appointed attorney, and on appeal by the Louisiana Appellate Project. State v. Lee , 51,508 (La. App. 2 Cir. 8/9/17), 243 So. 3d 1133, 2017 WL 3401345, writ denied , 2017-1498 (La. 5/18/18), 242 So. 3d 570 ; State v. Fontenot , 51,072 (La. App. 2 Cir. 1/11/17), 211 So.3d 1236. The defendant meets each of these criteria, and thus his indigence is apparent from the record. Consequently, we vacate the portion of the sentence ordering three years' jail time in default of payment of the fine. In all other respects, the sentence is affirmed.

ERROR PATENT

Our error patent review reveals that the trial court did not properly advise the defendant of the prescriptive period for seeking post-conviction relief, as required by La. C. Cr. P. art. 930.8(C). Therefore, we advise the defendant, by way of this opinion, that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. State v. Little , 50,776 (La. App. 2 Cir. 8/10/16), 200 So.3d 400, writ denied , 2016-1664 (La. 6/16/17), 219 So.3d 341.

CONCLUSION

The defendant's conviction is affirmed. His sentence is amended to vacate the default time and, as amended, affirmed.

CONVICTION AFFIRMED. SENTENCE AMENDED TO VACATE DEFAULT TIME AND, AS AMENDED, AFFIRMED.

BROWN, C.J., concurs with reasons.

BROWN, C.J., concurring with reasons.

The fine was to be imposed after defendant completed his jail time. It is premature to now vacate the default time. See State v. Brown , 43,458 (La. App. 2d Cir. 9/24/08), 996 So.2d 461, 470 (Gaskins, J., concurring in part and dissenting in part):

After imposition of sentence, the trial court is the one in the best position to determine the handling of default time. The trial court is able to consider any requests by the defendant, and make inquiries, as needed. If, for example, the defendant is paroled, payment of the fine may be set up on an affordable plan or schedule. Or, if the defendant is found by the trial court to still be indigent and no alternative to paying the fine is appropriate, then the trial judge may dismiss the default time, as mandated by law.

      At the time of the second interview, the defendant was incarcerated at Caddo Correctional Center on an unrelated matter.

      The record indicates that the nude photos of children did not fit the definition of child pornography.

      The testimony about the inappropriate photos was elicited on redirect in response to the defendant's insinuation on cross-examination that the victim might have been communicating with someone whom she incorrectly believed to be the defendant.

      At a hearing in June 2016, the trial court found both of the defendant's statements to Detective Keene were made freely and voluntarily.

      As previously mentioned, the video recording of the defendant's second statement to Detective Keene was played for the jury. Based upon our review of that recording, we agree with the trial court's observation that the defendant appeared to be at least 30 years old.
      Evidence establishing a defendant's age may include his physical appearance before the trier of fact. See State v. Shelton , 545 So.2d 1285 (La. App. 2 Cir. 1989), writ denied , 552 So.2d 377 (La. 1989) ; State v. Zihlavsky , 505 So.2d 761 (La. App. 2 Cir. 1987), writ denied , 511 So.2d 1152 (La. 1987). However, in the instant case, both Sgt. Miles and Detective Keene testified that the defendant was an adult over the age of 18 at the time of the offense.
      The defendant's age was relevant because the elements of the offense required that the offender reasonably believe that the intended recipient of the lewd message was under the age of 17 and at least two years younger than the offender. At the trial, which occurred about 14 months after the offense, the victim testified that she was 15 years old and would be turning 16 in a few weeks, thus making her 14 years old at the time of the offense. Consequently, she was under the age of 17 and at least two years younger than the defendant, who was older than 18.

      Another aggravating factor cited by the trial court was the defendant's criminal history. In 2009, he was convicted in Kansas of domestic battery, criminal restraint, and intimidation of a witness.

      The Court tracked the language of an earlier version of La. R.S. 14:81, which was more limited than the version in effect at the time of the instant offense.

      The defendant concedes in his brief that, based upon the evidence presented at trial, which we discussed supra , the jury could have concluded that the age difference element of La. R.S. 14:81 had been satisfied.

      Prior to Detective Marshall's testimony, the jury had already heard the victim testify that the defendant had sent her a photo in which he was "exposed." Later, on rebuttal, the jury viewed a portion of the recording of the defendant's second statement, during which he admitted that there were photos of his genitalia on his cell phone which he deleted.

      The cases cited by the defendant in support of this assignment of error, State v. Thomassie , 2016-0370 (La. App. 4 Cir. 12/21/16), 206 So.3d 311, writ denied , 2017-0186 (La. 2/24/17), 216 So.3d 60, and State v. Raines , 2013-304 (La. App. 3 Cir. 11/13/13), 124 So.3d 1275, are distinguishable from the instant case. In both of these cases, the evidence of the defendant's guilt was deemed to be "not overwhelming," whereas here the defendant admitted sending the lewd message to the victim in his second statement to the police.