text:
    Clarence G. GUIDRY v. The CITY OF RAYNE POLICE DEPARTMENT, et al.
    No. 09-664.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      J. Floyd Johnson, Lafayette, LA, for Plaintiff/Appellant, Clarence G. Guidry.
    Michael Robinson, Pucheu, Pucheu, & Robinson, L.L.P., Eunice, LA, for Plaintiff/Appellant, Clarence G. Guidry.
    Karen Day White, Baton Rouge, LA, for Defendants/Appellees, City of Rayne and Gerites Cormier.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| iPlaintiff/Appellant, Clarence G. Guidry, appeals a judgment granting a motion for involuntary dismissal orally made by Defendants, Gerites Cormier and the City of Rayne, after his presentation of evidence at the trial of his negligence action. For the following reasons, we affirm.

FACTS AND HISTORY

Around 12:30 a.m., on December 17, 2002, Mr. Guidry was struck by a police patrol car being driven by a Rayne police officer, Gerites Cormier. Officer Cormier was on routine patrol, driving on Section Avenue in Rayne, Louisiana, when his vehicle struck and seriously injured Mr. Gui-dry.

After a two-day bench trial on Mr. Gui-dry’s negligence action, and at the close of Mr. Guidry’s case, the trial court granted Defendants’ motion for involuntary dismissal and dismissed Mr. Guidry’s case. Mr. Guidry filed a Motion for New Trial which was denied by the trial court. Mr. Guidry now appeals.

ASSIGNMENTS OF ERROR

Mr. Guidry asserts the following assignments of error:

1. The trial court erred in granting the involuntary dismissal in the face of uncontroverted evidence.
2. The trial court erred in excluding Anthony McClelland for failing to appear at [his] deposition.
3 The trial court erred [by] allowing the statements of [the] paramedics] against the physician/patient privilege.

LAW AND DISCUSSION

The procedure governing motions for involuntary dismissal is found in La.Code Civ.P. art. 1672(B), which provides as follows:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving | .¿his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

A trial court is accorded much discretion in deciding a motion for involuntary dismissal. Koonce v. Dousay, 06-1498 (La.App. 8 Cir. 3/7/07), 952 So.2d 893. This court reviews a trial court’s judgment on a motion for involuntary dismissal under a manifest error standard of review. Fontenot v. Granger, 07-1588 (La.App. 3 Cir. 6/4/08), 985 So.2d 859, writ denied, 08-1475 (La.7/14/08), 986 So.2d 67.

In granting the motion for involuntary dismissal, the trial court stated:

[I]n a civil case, the plaintiff does have the burden of proof, by a preponderance of the evidence, that the accident was caused in this case by the negligence of the defendant.
And, in proving that, the plaintiff must show that it’s more probable than not that the facts as set forth by the plaintiff are the facts that exist in this case.
And I understand the theory in this case of [Mr. Guidry] is that [Officer Cormier] was headed in a southbound direction, rather than a northbound direction, and that that was the mechanism by which the accident occurred.
However, I am going to state again, as I stated before during your arguments, ... there is not any credible evidence in the record to establish that [Officer Cor-mier] was traveling in that direction.
There is no evidence to establish that [Officer Cormier] left the roadway or in any way drove his vehicle in a manner that caused this accident.
In fact, all of the evidence establishes that it was very dark and that [Mr. Guidry] really was not seen by [Officer Cormier] until the actual impact in this case.
I agree ... that, certainly, a motorist has a duty to a pedestrian. But that does not extend to the duty to anticipate that, in the dark of night, somebody is going to suddenly appear in the middle of the roadway.
IsAnd, again, the evidence that has been presented does not show that it’s more probable than not that the accident happened in the way [Mr. Guidry] is contending. And that is the plaintiff’s burden in this case.
In this case, I’m going to grant that involuntary dismissal. [Mr. Guidry] has not shown that the — by a preponderance of the evidence, that the defendant, City of Rayne, was negligent in this action. So I am going to grant the dismissal.

In Uriegas v. Gainsco, 94-1400, pp. 15-18 (La.App. 3 Cir. 9/13/95), 663 So.2d 162, 171-72, writ denied, 95-2485 (La.12/15/95), 664 So.2d 458, this court set forth a thorough analysis of the law concerning motorist/pedestrian accidents:

Louisiana law does not impose absolute or strict liability upon a motorist involved in a collision with a pedestrian. Aetna Cas. & Sur. Co. v. Nero, 425 So.2d 730 (La.1983). Motorists are not the insurers of pedestrians’ safety. Puearry v. Department of Pub. Safety, 496 So.2d 1372 (La.App. 3 Cir.1986). However, a motorist is statutorily obligated to exercise due care to avoid colliding with any pedestrian upon the roadway and must give warning to the pedestrian by sounding the horn when necessary. Furthermore, a motorist must exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway. La. R.S. 32:214.
The fact that an accident occurs does not create a presumption of negligence in favor of either the pedestrian or motorist. Accidents occurring between a pedestrian and a motorist are governed by the principles of comparative fault. La.Civ.Code art. 2323; Turner v. New Orleans Pub. Serv. Inc., 476 So.2d 800, 803 (La.1985). Therefore, a determination of negligence in motorist/pedestrian accidents rests upon the particular facts and circumstances of each case. See Myles v. Turner, 24,198 (La.App. 2 Cir. 1/19/94); 632 So.2d 384.
The driver of a vehicle bears a greater responsibility to avoid pedestrian/motorist accidents because the consequences of his fault present the potential for causing the greater havoc. Turner, supra. “The greater the risk of harm to others, the greater is the fault.” Id. at 805. As stated by the Louisiana Supreme Court in Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400, 406 (La.1978):
The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the Impossible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety.... It must be noted, however, that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.
Likewise, a pedestrian is charged with a duty to exercise reasonable care when entering the roadway or a crosswalk. Miller v. Bailey, 621 So.2d 1174 (La.App. 3 Cir.), writ denied, 629 So.2d 358 (La.1993). A pedestrian simply may not freely choose to leave a position of safety and pursue a course certain to enter the path of a vehicle which is so close that it is impossible for the driver to yield. La. R.S. 32:212(B). Furthermore, when a pedestrian crosses a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection, the pedestrian must yield the right of way to all vehicles upon the roadway. La. R.S. 32:213(A). Therefore, responsibility for travel free from undue peril on the streets and highways of this state is shared by both the motorist and pedestrian. The countervailing duties that motorists and pedestrians owe to each other ensure that both pedestrians and motorists may safely coexist on roadways traversed by both.
Although a motorist commands a greater instrumentality of harm, a pedestrian still bears the burden of proving that the motorist was negligent before he can recover damages. Puearry, 496 So.2d at 1374; Bennett v. State, Through DOTD, 503 So.2d 1022 (La.App. 2 Cir.), writ denied, 505 So.2d 58 (La.1987); McKenzie v. NOPSI, 455 So.2d 678 (La.App. 4th Cir.), writ denied, 460 So.2d 1043 (La.1984). A motorist has no special duty to anticipate the presence of a pedestrian in a roadway where there is no crosswalk. Shroyer v. Grush, 555 So.2d 534 (La.App. 4 Cir.1989); writs denied, 559 So.2d 139, 140 (La.1990); Osby v. Harris, 375 So.2d 181 (La.App. 2 Cir.1979). Moreover, a motorist is not held to the highest' standard of care in guarding against unexpected or unusual obstructions in the road. Calais v. Thibodeaux, 220 So.2d 209 (La.App. 3 Cir.), writ denied 254 La. 15, 222 So.2d 67 (1969). A motorist has a right to assume that a pedestrian will remain in a position of safety and will not attempt to enter the path of a moving vehicle. Puearry, 496 So.2d at 1374. However, a motorist may not blindly rely upon this assumption when he sees, should have seen, or anticipates that the pedestrian is going to cross the path of his vehicle. Henry v. Svebek, 339 So.2d 895 (La.App. 3 Cir. 1976), writ refused 341 So.2d 1127 (La.1977). When a motorist sees, should have seen, or anticipates that the pedestrian is going to cross the path of his vehicle, the motorist must exercise reasonable care to protect the pedestrian. Baumgartner, 356 So.2d at 407.

|fiThe accident report, prepared by Louisiana State Trooper First Class Kevin Dies, indicates that the accident occurred on Section Avenue at its intersection with West Harrop Street in the city of Rayne, Louisiana. According to the accident report:

[Officer Cormier’s vehicle] was traveling north on Section Avenue and approaching the intersection with West Harrop Street. [Mr. Guidry] was running east on West Harrop Street and approaching the intersection with Section Avenue. As [Mr. Guidry] was crossing Section Avenue, he was struck by [Officer Cormier’s vehicle]. [Officer Cormier] locked his brakes and swerved to his right prior to impact. The area of impact was determined by [Officer Cor-mier’s] skidmarks’ path prior to the intersection. After impact, [Mr. Guidry] traveled 22'4" until his final point of x-est on the southbound shoulder of Section Avenue, just north of the intersection. [Mr. Guidry] had no comment when asked about what happened.

At the heart of Mr. Guidry’s contention that the trial court erred in granting Defendants’ motion for involuntary dismissal at the close of his case is Mr. Guidry’s argument that the trial court erred in not accepting his version of how the accident occurred. Mr. Guidry contends that Officer Cormier was driving south, not north, on Section Avenue, and that he was on the west side of West Harrop Street, not the east side as indicated in Trooper Dies’s investigative report. Therefore, Mr. Gui-dry asserts that Officer Cormier was negligent.

Defendants, in brief, assert that Mr. Guidry’s x’endition of how the accident occurred is seriously flawed, primarily because Mr. Guidry himself does not recall what occurred. According to Defendants, “[t]he ti’anscript reveals that [Mr. Gui-dry’s] version of events is replete with inconsistencies and contradictions, including his inability to explain where he was during a near [seven]-hour lapse in time between arriving home and the accident.” Defendants also assert there was no credible evidence offered by Mr. Guidry which proved by a preponderance of the evidence that Officer Cormier acted negligently.

| fíOur thorough review of the record clearly indicates that the trial court did not abuse its discretion in granting Defendants’ motion for involuntary dismissal. Mr. Guidry’s efforts at trial were consumed by his attempts to thwart the credibility of the accident report and the state trooper responsible therefor. In doing so, Mr. Guidry failed to offer evidence that Officer Cormier breached any duty when his vehicle tragically struck Mr. Guidry. Even Mr. Guidry’s own accident reconstruction expert, Mr. Jere Johnson, stated that he was unable to render an opinion as to what happened. Furthermore, the physical evidence in this case does not support Mr. Guidry’s claim as to how the accident happened. Thus, the trial court correctly concluded that Mr. Guidry did not present sufficient evidence to establish his negligence claim by a preponderance of the evidence. We find no manifest error in the trial court’s ruling that Mr. Guidry failed to prove, by a preponderance of the evidence, his claims against Defendants.

We, likewise, find no merit in Mr. Gui-dry’s remaining assignments of error. Contrary to Mr. Guidry’s assertion, the trial court did not prohibit Mr. Anthony McClelland from testifying on Mr. Gui-dry’s behalf. Mr. McClelland did in fact testify. Further, during the arguments of counsel after Defendants moved for an involuntary dismissal, it is clear that the trial court understood fully Mr. McClel-land’s testimony. During this exchange, the trial court stated:

[L]et’s say we accept what Mr. McClel-land said. He didn’t even see the accident himself. All he said is he saw [Mr. Guidry] right before it happened. He walked home. He heard a crash and turned around. So he really doesn’t aid in that, either. Because the vital issue is where was [Mr. Guidry] when this accident happened.

As set forth by this court in Johnon v. Safeway Insurance Co., 06-224, p. 5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1221, 1224:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.
Robin v. Allstate Ins. Co., 03-1009, OS-926, p. 4 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, 406, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted)).

Because credibility determinations by the trial court are given great weight by a reviewing court, we cannot say that the trial court erred in assigning little or no weight to the testimony of Mr. McClelland with regard to how the accident occurred.

Mr. Guidry also argues that the trial court erred in allowing the statements of the paramedics on the scene of the accident to be admitted into evidence. Said statements were attached to Trooper Dies’s investigative report which was submitted into the note of evidence without objection from Mr. Guidry. Now, on appeal, Mr. Guidry attempts to object to the introduction thereof. However, “[t]o preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony, and state the reasons for the objection.” LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La. App. 3 Cir.1990), writ denied, 575 So.2d 391 (La.1991) (citing Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860 (La.1989), and 556 So.2d 1262 (La.1990)). A review of the record reveals that this issue was not properly preserved; therefore, it is not before this court for appellate review. See La.Code Evid. art. 103; Petre v. State ex rel. Dep’t of Transp. and Dev., 00-545, 00-546 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, aff'd, 01-876 (La.4/3/02), 817 So.2d 1107.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. All costs of these proceedings are assessed against Plaintiff/Appellant, Clarence G. Guidry.

AFFIRMED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    MWD SERVICES, INC. v. Anthony HUMPHRIES.
    No. 09-668.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Lawrence Curtis, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Anthony Humphries.
    Reneé Willis, Attorney at Law, Baton Rouge, LA, for Plaintiff-Appellee, MWD Services, Inc.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

_J_]The Workers’ Compensation Judge (WCJ) maintained an exception of prescription as to medical benefits sought by claimant, Anthony Humphries. Hum-phries appeals, asserting that his employer, MWD Services, Inc. (MWD), did not present any evidence to establish when the last payment of medical expenses was made and that the WCJ failed to apply the law that was in effect at the time of accident. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Humphries was employed by MWD and was injured in an automobile accident on September 25, 1998, while in the course and scope of his employment. On July 10, 2000, the WCJ rendered judgment awarding Humphries $367.00 per week in indemnity benefits as well as “all reasonable and necessary medical expenses occasioned by his injury.” MWD filed a motion for modification of judgment on July 1, 2008, seeking to have the indemnity benefits reclassified as supplemental earnings benefits (SEB) based on the allegation that Hum-phries had not seen his treating physician since June 26, 2003, at which time he was released to light duty work. MWD’s motion was set for hearing; however, a minute entry signed by the WCJ on the date of the hearing indicates that “it became apparent that the matter could not move forward without having the issue of prescription addressed by the court.” MWD then filed an exception of prescription alleging that the claim for medical benefits had prescribed pursuant to La. R.S. 23:1209 because more than five years had elapsed since Humphries’ last medical treatment. The exception of prescription was heard on January 14, 2009. Counsel for MWD indicated that the adjuster was present to testify as to the date of the last payment of medical benefits. When asked by the court whether that date was in dispute, counsel for Humphries responded: “[wje’re not fighting about that.” Therefore, no testimony was taken at the hearing. The WCJ took the matter under advisement, and the parties submitted briefs. On March 11, 2009, the WCJ issued written reasons for judgment and signed a judgment in favor of MWD, sustaining its exception of prescription and dismissing any and all of | .¿Humphries’ claims for medical benefits with prejudice. Humphries appeals, asserting that MWD did not present any evidence to establish when the last payment of medical expenses was made and that the WCJ failed to apply the provision of La. R.S. 23:1310.8 in effect on the date of his accident. Hum-phries alleges that he is entitled to seek a modification of the judgment to award additional medical expenses. However, no such assertion has been made by Hum-phries, and there is no allegation that any medical expenses have gone unpaid. MWD’s motion for modification of judgment seeking to have the benefits reclassified remains outstanding.

DISCUSSION

We first address Humphries’ contention that the WCJ erred in sustaining the exception of prescription, alleging that MWD did not meet its burden of proof. Specifically, Humphries asserts that MWD did not produce any evidence to support the allegation that the last payment of medical benefits was for a June 26, 2003 visit.

We note that:

If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). 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., 617 So.2d at 882-83.

Rando v. Anco Insulations, Inc., 08-1163, p. 10 (La.5/22/09), 16 So.3d 1065, 1082.

But here, no evidence was introduced at the hearing on the exception. However, the claims adjuster was present at the hearing and was prepared to testify to the fact that the last payment for medical benefits was made in 2003. In his argument, Humphries ignores the fact that his counsel, in response to a specific question from the WCJ as to whether that fact was in dispute, informed the WCJ that they were “not fighting about that.” Further, Hum-phries’ counsel specifically stated: “His medical is being paid up until the last three or four years when he hasn’t required any further medical.”

^Nonetheless, since no evidence was introduced at the hearing, the doctrine of manifest error does not apply to our review of the WCJ’s legal conclusion. Our review of questions of law is simply to determine whether the trial court was legally correct. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375. And, in reviewing a peremptory exception of prescription, we must review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Katz v. Allstate Ins. Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443. It is clear that the party urging the exception of prescription bears the burden of proving facts sufficient to support the exception. Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918 (La.11/29/05), 917 So.2d 424. This case is in a unique procedural posture since Humphries, the claimant, is the defendant and is making no immediate claim for payment of medical expenses. Thus, there is no pleading on which prescription can be evident on its face. We agree with the WCJ’s conclusion that:

[a] judgment of the OWC cannot award future medical benefits. As to the future, such an award can only grant the injured worker the right to reasonable and necessary medical treatment as it becomes necessary. The judgment itself cannot act as a continuing interruption of prescription. The right awarded in the judgment must be exercised by the injured worker to prevent the loss of that right.

Accordingly, based on the fact that there is no disagreement as to the fact that the date of the last medical payment was in 2003, we affirm the WCJ’s finding that any claim by Humphries for medical benefits has prescribed.

We next turn to Humphries argument that the WCJ erred in applying the provisions of the law that were not in effect at the time of his accident in 1998. At the hearing on the exception, counsel for Hum-phries argued that La. R.S. 23:1209 did not apply to this case because it was not in effect at the time of the accident.

Louisiana Revised Statutes 23:1209(C) provides:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take ^effect until the expiration of three years from the time of making the last payment of medical benefits.

This particular provision concerning the three-year prescriptive period for medical benefits became effective September 6, 1985, well before the accident in question. It was redesignated as subsection (C) by Acts 1985, No. 926, § 1, effective January 1, 1986. Although the statute has been amended several times, the three-year prescriptive period provided therein has not been changed. Realizing his mistaken argument at the hearing on the exception, Humphries now argues on appeal that La. R.S. 23:1310.8 was not effective until after the subject accident.

Louisiana Revised Statutes 23:1310.8(D) provides that: “A petition to modify a judgment awarding benefits shall be subject to the prescriptive limitations established in R.S. 23:1209.” This provision did not exist at the time of Humphries’ accident, and Humphries alleges that the WCJ erred in applying it to his case retroactively. We agree with the WCJ’s finding that this statute has “no bearing on the applicability of 23:1209 to the present facts,” and we find no merit to this assignment of error.

DECREE

For all of the foregoing reasons, the judgment of the WCJ is affirmed. All costs of this appeal are assessed to Defendant-Appellant, Anthony Humphries.

AFFIRMED.


author: GENOVESE, Judge.

text:
    GULF COAST MINERAL, LLC v. Robert GROTHAUS.
    No. 09-685.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 27, 2010.

      Guy E. Wall Wall, Bullington & Cook, LLC, Harahan, LA, for Plaintiff/Appellant, Gulf Coast Mineral, LLC.
    Joseph P.H. Babington, Helmsing, Leach, Herlong, Newman & Rouse, Mobile, AL, for Defendant/Appellee, Robert Grothaus.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ,In this possessory action, Plaintiff, Gulf Coast Mineral, LLC (Gulf Coast), appeals the trial court’s grant of a Motion to Dismiss filed on behalf of Defendant, Robert Grothaus. For the following reasons, we reverse and remand.

FACTS

On December 18, 2008, Gulf Coast filed a Possessory Action against Mr. Grothaus, a domiciliary of the state of Illinois. Therein, Gulf Coast alleged the following:

4. Gulf Coast possesses] for itself, and has lawfully possessed for itself for over a year, an undivided two percent interest in an oil and gas lease (the “Lease”) dated May 6, 2003[,] granted by Louise Carpenter Aiken, et al, to Bayou Choctaw, Inc.[,] covering approximately 160 acres more or less in Section 28, T11S, R8E, Iberia Parish, Louisiana, which mineral lease was recorded at COB 1291, Entry No. 04 — 14004[,] of the public records of Iberia Parish, Louisiana.
5. At various times from on or about March 2008 through September 2008, while Gulf Coast was in possession of its interest in the Lease and had been in possession of it for over a year, Gro-thaus disturbed Gulf Coast’s possession by asserting ownership of the a[sic] portion of Gulf Coast’s interest in the Lease.

On January 14, 2009, in response thereto, Mr. Grothaus filed a Motion to Dismiss, seeldng a dismissal of the possessory action “pursuant to Article 531 of the Louisiana Code of Civil Procedure.” In support thereof, the Motion to Dismiss |2contains the following assertions:

1. Gulf Coast Mineral, L.L.C., filed the instant action on December 18, 2008, seeking to have this Court determine the respective ownership interests in the commonly called “Carpenter Well” located in Iberia Parish, Louisiana.
2. Almost four months prior, on August 22, 2008, Gary and Patricia Billingsley, the members of Gulf Coast Mineral, L.L.C., filed a complaint against Robert Grothaus in the Circuit Court of Baldwin County, Alabama; said case styled as “Patricia Billingsley and Gary Billingsley v. Robert Grothaus, CV-08-900920.”
3. On September 30, 2008, three months before the instant case was filed, Robert Grothaus answered the Billings-leys’ complaint and filed counter-claims against the Billingsleys and third-party claims against Gulf Coast Mineral, L.L.C.
4. The third-party claims filed against Gulf Coast Mineral, L.L.C., by Grothaus in the Alabama action, assert that Robert Grothaus owns a working interest in the Carpenter Well, seek a judgment recognizing that working interest, and demand an accounting and payment of royalties from the Carpenter Well.... Gulf Cost Mineral, L.L.C., answered the third-party claims against it on October 29, 2008.

Attached to Mr. Grothaus’s Motion to Dismiss were the pleadings referenced therein which were filed in the Circuit Court of Baldwin County, Alabama. Again relying on La.Code Civ.P. art. 531, his Motion to Dismiss further alleges that:

The third-party claims against Gulf Coast Mineral, L.L.C., were brought in Alabama well before this case was filed in Louisiana, and concerns the same facts and claims as the instant case, namely an adjudication of the parties’ respective ownership interests in the Carpenter Well. Therefore, the instant case is due to be dismissed to allow the previously filed Alabama case to proceed to adjudication on the merits.

Finally, Mr. Grothaus’s Motion to Dismiss avers that “[bjecause all of the elements of res judicata are met and the Alabama case was the first filed, the instant litigation is due to be dismissed.”

Notably, paragraph ten of Mr. Gro-thaus’s Motion to Dismiss expressly states that he “does not request a hearing on this Motion to Dismiss.” The trial court signed |san Order on January 20, 2009, dismissing Gulf Coast’s possessory action, with prejudice.

On February 4, 2009, Gulf Coast filed a rule entitled “Plaintiffs Rule to Show Cause on Defendant’s Motion to Dismiss.” Therein, it asserted that Mr. Grothaus’s ex parte Motion to Dismiss was not filed in accordance with the uniform district court rules. Further, Gulf Coast’s rule to show cause alleged that:

Defendant contends that its claim in a lawsuit in Alabama to title to Louisiana immovable property (an oil and gas lease) should prevent this possessory action from proceeding. But the Alabama court ruled that it did not have subject matter jurisdiction to try title to Louisiana immovable property and dismissed defendant’s claim.

Attached to the rule to show cause was a January 13, 2009 order signed by the Baldwin County circuit judge dismissing the counterclaims filed by Mr. Grothaus in the Alabama proceeding. The trial court set a hearing date of April 1, 2009, on Plaintiffs Rule to Show Cause on Defendant’s Motion to Dismiss ordering Mr. Grothaus to show cause “why his [M]otion to [D]ismiss should not be denied.”

On February 6, 2009, Mr. Grothaus filed a pleading entitled “Response to Plaintiffs Request to Set Hearing and Show Cause” which asserted, among other things, that Gulf Coast “mischaracterize[d] the nature of Grothaus’[s] claims against it.” Specifically, as to the claims asserted by him, Mr. Grothaus stated:

Grothaus is not seeking to execute, attach or gain any direct possessory interest in the Carpenter Well. Rather, Gro-thaus is seeking a judicial determination from the Alabama Circuit Court that Grothaus purchased a one percent working interest in the Carpenter Well from the Plaintiff in 2006. Alternatively, Gro-thaus is seeking a judicial determination from the Alabama Circuit Court recognizing that he has an indirect interest, through agreements reached with the Plaintiff, in the proceeds received by the Plaintiff from the Carpenter Well. Gro-thaus is also seeking an accounting from the Plaintiff regarding the Carpenter Well.
3. The dispute between the parties thus centers on their contractual relationship. None of the parties is a citizen of the state of Louisiana; |4and all of them are already parties to a case pending in Baldwin County, Alabama. Any money gained by Grothaus in the course of this action will flow from the Plaintiff to Grothaus, and not from the Carpenter Well directly. Likewise, any future royalty payments will flow from the Carpenter Well to the Plaintiff and then to Grothaus, and not from the Carpenter Well directly.
4. There is no need for a hearing on Grothaus’[s] motion to dismiss. The facts and law are clear and were set out in Grothaus’[s] motion. This Court’s determination that the instant case should be dismissed and the Alabama case be allowed to continue was correct in light of the facts and the law. The parties to the instant case are already involved in an identical lawsuit in Alabama and that court can determine the rights of the parties with respect to the contract between them. As set forth in Gro-thaus’[s] Motion to Dismiss, any ruling by the Alabama court will satisfy the elements of res judicata and preclude further action. The elements of Article 531 of the Louisiana Code of Civil Procedure have been met and the instant case is due to be dismissed.
5.While the Alabama action has been dismissed, Grothaus is requesting that the Alabama Court reconsider its ruling that it does not have subject matter jurisdiction to hear the case and requests that this court not reverse its decision until the Alabama court has heard Grothaus’[s] motion to reconsider so as to avoid both cases being reinstated.

On February 17, 2009, Gulf Coast filed a pleading entitled “Plaintiffs Motion to Vacate or, Alternatively, For Reconsideration or New Trial, Memo in Support and Rule to Show Cause.” In filing this motion, Gulf Coast sought to vacate the January 20, 2009 Order of the trial court which dismissed its claims, with prejudice, without a contradictory hearing.

However, the record reveals, and the parties do not now dispute, that the January 20, 2009 Order dismissing the action in the Sixteenth Judicial District Court was inadvertently signed by the “duty judge” under the mistaken belief that it was a consent order. To rectify the error, in lieu of signing the order presented in connection with Gulf Coast’s motion of February 17, 2009, the “duty judge” signed an order on February 17, 2009, entitled “Order Va-eating [the] January 20, 2009 Order” thereby annulling the January order which dismissed the lawsuit.

|fiMr. Grothaus’s Motion to Dismiss was heard by the trial court on April 1, 2009. The trial court orally granted the Motion to Dismiss and signed a judgment to that effect on April 6, 2009. It is from this judgment that Gulf Coast appeals.

ASSIGNMENTS OF ERROR

Gulf Coast assigns the following as errors of the trial court:

1. The district court erred in dismissing this possessory action in favor of a title claim in an Alabama state court because only a Louisiana court can determine possession of Louisiana immovable property.
2. The judgment should be reversed because the district court misapplied the law and relied upon manifestly erroneous facts in dismissing the possessory action.

LAW AND DISCUSSION

In its first assignment of error, Gulf Coast asserts that “only a Louisiana court can determine possession of Louisiana immovable property.” Gulf Coast argues in brief that “Louisiana courts have exclusive jurisdiction over title and possession of immovable property in Louisiana and ... a Louisiana court may not dismiss a pos-sessory action concerning Louisiana immovable property so that an Alabama state court can decide whether it will hear a claim of title to the same property.”

In response, Mr. Grothaus agrees with the proposition that “a mineral right is immovable real property under Louisiana law.” However, he argues that he “is not attempting to assert a direct claim on any mineral right.” In his words, “[a]t its core, [his] claims against Gulf Coast Mineral are contract claims, nothing more or less.” Distinguishing the present action from the jurisprudence relied upon by Gulf Coast, Mr. Grothaus explains as follows:

In the instant case, and as stated above, the agreement between Grothaus and Gulf Coast Mineral deals only with the payment of money from Gulf Coast Mineral to Grothaus. The agreement between Gulf | fiCoast Mineral and Gro-thaus does not affect the title to or sale of real property in Louisiana. It deals only with what money, if any, Gulf Coast Mineral is contractually obligated to pay to Grothaus.

Mr. Grothaus, therefore, concludes that the trial court did not error in dismissing the possessory action and in allowing the suit to continue in the Alabama state court.

The arguments of both parties sound in subject matter jurisdiction, as they focus on the nature of the claim asserted in a particular tribunal. However, considering the record of these proceedings, and the procedural history involving two suits in different states, we find these arguments to be misplaced. The confusion which arose at the trial court level is further evidenced by the oral reasons for ruling wherein the trial court stated: “So this court finds that the appropriate forum under the conflict of interest laws and judicial efficiency would best be served by the Alabama court continuing this matter.”

The Motion to Dismiss did not raise the issue of subject matter jurisdiction. The substance of the motion also did not necessitate the application of “conflict of interest laws.” These issues were not before the trial court, nor are they properly before this court. We, therefore, pretermit any discussion on the nature of the claims asserted, and we make no findings herein relative to whether the Sixteenth Judicial District Court or the Circuit Court of Baldwin County, Alabama, has subject matter jurisdiction over the present claims.

The second assignment of error presented by Gulf Coast asserts a misapplication of the law by the trial court. For the reasons that follow, we find merit in this contention.

As set forth in detail above, when Mr. Grothaus’s Motion to Dismiss was filed in the trial court, the motion expressly cited La.Code Civ.P. art. 531. However, 17La.Code Civ.P. art. 531 was not the controlling legal authority since said article governs “[w]hen two are more suits are pending in a Louisiana court or courts.... ” Due to his reliance on the provisions of La.Code Civ.P. art. 531, and the relief provided thereunder, Mr. Gro-thaus sought a dismissal of the pending claims in Louisiana. Consequently, the parties argued to the trial court the appropriateness, vel non, of its dismissal of the action pending in the Sixteenth Judicial District Court in Louisiana. Ultimately, and apparently for reasons other than those argued by the parties, the trial court granted the motion and dismissed Gulf Coast’s possessory action. We find, however, that in so doing, the trial court misapplied the law.

Considering the procedural posture of the claims asserted by the parties, including the institution of suit in the state of Alabama and the simultaneous filing of suit in Louisiana, the instant matter is governed by La.Code Civ.P. art. 532 (emphasis added) which provides as follows:

When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same transaction or occurrence, between the same parties in the same capacities, on motion of the defendant or on its own motion, the court may stay all proceedings in the second suit until the first has been discontinued or final judgment has been rendered.

The sole authority granted to a trial court by the provisions of La.Code Civ.P. art. 532 is to stay the proceedings. Unlike La.Code Civ.P. art. 531, dismissal of the second suit is not relief which can be granted under La.Code Civ.P. art. 532.

The fifth circuit, in Baye v. Samson Ocean Systems, Inc., 99-38 (La.App. 5 Cir. 4/27/99), 734 So.2d 147, considered a trial court’s dismissal of a suit in a state district court pursuant to La.Code Civ.P. art. 531 in light of pending litigation in federal court. Recognizing that La. Code Civ.P. art. 531 was inapplicable, the fifth circuit reasoned as follows:

| ¿Louisiana Code of Civil Procedure] Article 532 applies when a prior filed suit is in federal court or a court in another state. The trial court’s authority under article 532 is limited to the discretion to [s]tay the state court proceedings when a suit is pending in federal court [or in another Louisiana state court] on the same cause of action, between the same parties in the same capacity, and having the same object. Amoco Production Co. v. Texas Gas Transmission Corp., 487 So.2d 575 (La.App. 4th Cir.1986).

Applying La.Code Civ.P. art. 532, the fifth circuit reasoned that since the federal action was the first to be filed, “the trial court erred in dismissing the action. In this instance, the trial court only has the authority to make a determination of whether to [s]tay the state court proceedings.” Baye, 734 So.2d at 149. The fifth circuit, therefore, reversed the trial court’s dismissal of the state court suit and “remanded for a hearing by the trial court to determine if a[s]tay [was] appropriate.” Id.

In the instant matter, based upon the record of these proceedings, and considering the relief afforded by La.Code Civ.P. art. 532, we find that the trial court exceeded its authority in granting Mr. Gro-thaus’s Motion to Dismiss, thereby dismissing Gulf Coast’s possessory action in the Sixteenth Judicial District Court. Without deciding whether the requirements of La.Code Civ.P. art. 532 are met, we remand this matter to the trial court for consideration of same, after which, in its discretion, it “may stay all proceedings” if appropriate, after due consideration of the status of the litigation filed in the Circuit Court of Baldwin County, Alabama.

DECREE

For the foregoing reasons, the judgment of the trial court granting Robert Gro-thaus’s Motion to Dismiss, thereby dismissing the claims of Gulf Coast Mineral, LLC is reversed, and this matter is remanded to the trial court for further action consistent with this opinion. Costs of this appeal are assessed to Robert Grothaus.

REVERSED AND REMANDED.

      . The Motion to Dismiss cites La.Code Civ.P. art. 531, which provides as follows:
      When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.
      However, this article is not applicable in this case because the two lawsuits in question are not both "pending in a Louisiana court or courtsf.]" The relevant and applicable article in this case is La.Code Civ.P. art. 532 which governs the situation when there is a suit pending in Louisiana simultaneously with a suit pending either in a federal court or a court of another state. Said article, which forms the basis for our decision herein, is discussed in detail later in this opinion.


text:
    STATE of Louisiana v. Toby R. JAMES.
    No. 09-606.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant-Appellant, Toby R. James.
    Asa A. Skinner, District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

11 On appeal, Defendant, Toby R. James, argues that his sentences are excessive because the trial court advised him that he was not eligible for diminution of sentence. For the following reasons, we affirm the sentence imposed.

FACTS

At the Defendant’s guilty plea and sentencing hearings, the State established that on June 12, 2007, the Defendant forged two checks in the amounts of $418.00 and $475.00.

On June 12, 2007, Defendant was charged by bill of information with two counts of forgery, violations of La. R.S. 14:72. Defendant was also charged with one count of theft over $300.00 and one count of theft of less than $300.00, violations of La. R.S. 14:67. In docket number 74322, Defendant was charged with driving while intoxicated (DWI), third offense, a violation of La. R.S. 14:98. Defendant was also charged with the following misdemeanors which were dismissed as part of the plea agreement: docket number 74323-stopping, standing or parking outside business or residence districts, a violation of La. R.S. 32:141; docket number 74324-possession with intent to introduce a controlled dangerous substance into the human body, a violation of La. R.S. 40:1023; and docket number 74325-operat-ing a motor vehicle upon a public highway while in possession of an open alcoholic beverage, a violation of La. R.S. 32:300.

On December 3, 2008, Defendant entered a plea of guilty to the two counts of forgery and to driving while intoxicated, third offense, a charge from an unrelated docket number. As part of the plea agreement, the remaining two charges for theft were dismissed, as well as misdemeanor charges in three other unrelated docket |2numbers. The State also agreed that he would not be charged as a habitual offender and agreed to the recommendation of concurrent sentences and restitution in the amounts of $418.00 to Mr. Howard Trotti and $475.00 to Merchants & Farmers Bank.

Defendant was sentenced to six years at hard labor and ordered to pay a fine of $1,200.00 on each count of forgery. As a condition of each sentence, the trial court ordered Defendant to pay $418.00 in restitution to Mr. Trotti and $475.00 in restitution to Merchants & Farmers Bank. The sentences were ordered to run concurrently. The sentences for forgery were also ordered to run concurrently with his sentence for DWI, third offense.

DISCUSSION

In his sole assignment of error, Defendant argues that his sentences are excessive because the trial court advised him that his sentences for forgery were not subject to diminution for good behavior pursuant to La. R.S. 15:571.3. Defendant asserts that the trial court was incorrect in its determination that La. R.S. 15:571.3 mandated the denial of good behavior for his forgery convictions and sentences.

After pronouncing Defendant’s sentences, the trial court stated, “I advise you, sir,-you, sir, that pursuant to the Code of Criminal Procedure, Article 894.1 D, you’re sentence is not subject to diminution for good behavior based on your prior convictions.”

Louisiana Code of Criminal Procedure Article 894.1(D) provides:

D. Immediately following the imposition of a felony sentence pursuant to this Article, the sentencing court shall advise the offender in open court of each of the following:

|s(l) Whether, pursuant to the provisions of R.S. 15:571.3, the offender’s sentence is subject to diminution for good behavior.
(2) Whether the sentence imposed was enhanced pursuant to R.S. 15:529.1 et seq., Article 893.3, or any other relevant provision of law. (emphasis added).

The trial court complied with the requirement set forth in La.Code Crim.P. art. 894.1(D) and did not actually deny eligibility for diminution of sentence. In State v. Narcisse, 97-3161, p. 1 (La.6/26/98), 714 So.2d 698, 699, the court held in pertinent part:

[A] trial judge lacks authority under La. R.S. 15:573.1(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is “directed to the Department of Corrections exclusively.” State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661.... When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge’s discretion should be exercised under La. C. Cr. P. 890.1(B).

In this case, the trial court merely advised Defendant pursuant to La.Code Crim.P. art. 894.1 that he was not eligible for diminution of sentence; it did not deny eligibility for diminution of sentence pursuant to La. R.S. 15:571.3, as prohibited by Nar-cisse. Accordingly, no corrective action need be taken regarding Defendant’s sentences.

CONCLUSION

Defendant’s sentences are affirmed.

AFFIRMED.

      . It appears the supreme court intended to refer to La. R.S. 15:571.3 rather than La. R.S. 15:573.1 as La. R.S. 15:571.3 concerns diminution of sentence. Louisiana Revised Statutes 15:573.1 concerns prohibited contact with the Board of Pardons.


author: AMY, Judge.

text:
    FIRST BAPTIST CHURCH OF WESTLAKE, Louisiana v. Julia Elise Curry LEPPO, et al.
    No. 09-695.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 27, 2010.

      Gregory S. Erwin, Baton Rouge, LA, for PlaintiffAppellant, First Baptist Church of Westlake, Louisiana.
    William C. Kaufman, III, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Defendant/Appellee, Citibank, N.A.
    Stephen C. Polito, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP, Lake Charles, LA, Randall C. Roth, Capital One Legal Department, New Orleans, LA, for Defendant/Appellee, Capital One, N.A.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

| ,The plaintiff filed suit against an employee and her husband, alleging that they personally used church funds by various means, including check forgery and unauthorized use of credit cards. The plaintiff confirmed a default judgment against these defendants. On the same day as the confirmation of default, the plaintiff amended its petition, naming two banks as defendants and contending that their alleged negligent conduct enabled the misappropriation of funds. In light of the default judgment previously entered, the bank defendants filed motions for summary judgment. The trial court granted the summary judgments, dismissing the plaintiffs suit against the banks. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, First Baptist Church of Westlake (FBC), filed suit against its former financial secretary, Julia Elise Curry Leppo, alleging that during the course of her three-year employment, she used church funds for her personal use. The actions stemmed from the unauthorized use of checks and credit cards. FBC also 12named Mrs. Leppo’s husband, Gene Allen Leppo, as a defendant, alleging that the funds benefitted the community and, therefore, he was responsible for reimbursement of damages as well. FBC named no additional defendants.

A preliminary default was entered against Mr. and Mrs. Leppo on April 14, 2008. Thereafter, on April 29, 2008, and upon evidence entered by FBC, the trial court confirmed a default judgment against Mr. and Mrs. Leppo in the amount of $384,032.78, legal interest, and costs of the proceeding.

On the same day FBC confirmed the default judgment against the Leppos, it filed an amending petition, naming Citigroup, Inc. and Capital One ACP, LLC, (hereinafter Capital One) as defendants. The petition alleged that Citigroup was liable for FBC’s losses as it “negligently, improperly and without authority issued in the name of First Baptist 'Church of West-lake Louisiana a credit card used by [Mrs. Leppo] to charge personal items to the church which were solely for the use and benefit of herself and her family....” FBC asserted that “Citigroup failed to follow reasonable and safe business practices and procedures to assure that the Church had authorized the issuance of credit cards in its name used by Julia to make these charges[.]” The petition further alleged that Citigroup “breached its duty to protect the Church from fraudulent use of its name and financial resources for the issuance of credit and payment of unauthorized and fraudulent charges by Julia.” Citibank (South Dakota), N.A., (hereinafter Citibank) filed an answer, noting that the petition erroneously identified it as Citigroup.

With regard to Capital One, FBC alleged that, due to the bank’s negligence and lack of care, Mrs. Leppo “was able to draw unauthorized funds for payment for her, |sher husband Gene and her family’s sole benefit by forging signatures of other authorized persons, using Capital’s internet banking features to avoid the requirement of two authorized signatures to draw on the Church’s accounts[.]” FBC further asserted that Capital One failed “to warn the Church of obviously improper transactions which a reasonably prudent bank knew or should have known were fraudulent.” FBC later corrected the corporate name of Capital One to “Capital One Bank, N.A., Capital One, N.A., Capital One Services, Inc., Capital One Financial Corp. and Capital One ACP, LLC[.]”

FBC reiterated the prayer of the original petition and sought judgment “against Citigroup, Inc. and Capital One ACP, LLC, jointly, severally and in solido with Julia and Gene Leppo awarding them damages for the loss it has suffered as plead herein, with legal interest thereon from the date of the original demand filed herein until paid, reasonable attorney fees and all costs of these proceedings.”

Thereafter, both defendants filed motions for summary judgment and alleged that the default judgment entered against the Leppos precluded proceeding against them. They referenced the fact that FBC’s original petition only named the Leppos, made no mention of the banks’ alleged contribution to the misappropriation at that time, and that the default judgment was confirmed on the same date as the filing of the supplemental petition. Accordingly, the defendants contended that the default judgment was entered for all damages alleged to have arisen out of FBC’s cause of action and that the evidence used in support of the default did not reveal any evidence implicating the banks. They noted that FBC did not preserve an action against other defendants. The trial court granted the motions for summary judgment, dismissing FBC’s claims against Citibank and Capital One.

UFBC appeals the dismissal of the defendants.

Discussion

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) requires that a summary judgment be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Although the moving party bears the burden of proof on the motion, if the moving party will not bear the burden of proof at trial, he or she is not required “to negate all essential elements of the adverse party’s claim, action, or defense[.]” La.Code Civ.P. art. 966(C)(2). Instead, the moving party is required:

[T]o point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Id. On review, an appellate court considers the granting or denying of a motion for summary judgment de novo. Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945.

Merits

On appeal, FBC questions the summary judgments raising several procedural issues. For instance, it contends that the record lacks evidence that the default | ¿judgment was entered before the amencl-mg petitions was filed and that, because an answer had not been filed, it was able to amend the petition and name additional defendants. It argues that the substance of the defendants’ argument was in the nature of a cumulation of actions rather than a motion for summary judgment, and that, by answering the petition, the bank defendants waived any argument in that regard.

As in their motions for summary judgment, Citibank and Capital One argue, in part, that Bolesny v. Cannonball Moving, Inc., 99-2096 (La.App. 4 Cir. 2/9/00), 752 So.2d 979, writ denied, 00-0741 (La.4/28/00), 760 So.2d 1179, prevented the plaintiffs pursuit of other defendants following confirmation of the default judgment. In Bolesny, the fourth circuit concluded that, after obtaining a default judgment against an original defendant, the plaintiff could not later amend the petition to add another defendant. The panel remarked that the plaintiff “should not be allowed to repudiate his own petition in these proceedings once it has been reduced to judgment in these same proeeed-ings[.]” Id. at 981. FBC asserts that Bolesny is inapplicable in |fithis case since the default judgment in that case was clearly obtained prior to amendment of the petition whereas, in this case, Citibank and Capital One have only alleged that the amending petition was filed after the confirmation of the default judgment. FBC also argues that this case is distinguishable from Bolesny as its petition against the Leppos does not assert that they were solely at fault.

Despite the procedural arguments from both parties regarding the applicability of Bolesny and the FBC’s ability, or lack thereof, to amend the original petition, it is clear that this matter was presented to the trial court on motions for summary judgment. Review of the record indicates that this case was properly dismissed against these defendants on the merits of those motions.

Certainly, as the moving parties, Citibank and Capital One satisfied their initial burden of demonstrating that “there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense” as is required by La.Code Civ.P. art. 966(C)(2). The record contains both the petition filed against the Leppos, which makes no reference to other defendants or liable parties, and a default judgment entered in the underlying action against the Leppos in the amount of $384,082.78. The default judgment does not reserve an action against other defendants. In short, Citibank and Capital One pointed to an absence of factual support for their own liability.

Thereafter, FBC failed to sustain its corresponding burden of proof as the party that would bear the burden of proof at trial. See La.Code Civ.P. art. 966(C)(2). In response, FBC only offered the allegations of its petition, the pleadings, and an affidavit from its current financial secretary attesting to the fact that the Leppos had not satisfied the judgment entered against them. It offered no proof indicating that |7it could satisfy its evidentiary burden of proving either independent or solidary liability for the judgment entered against the Leppos. Neither did it offer proof that it incurred damages beyond those accounted for in the default judgment. FBC relied, instead, on arguments asserting that it was able to amend the initial petition, notwithstanding the default judgment. On the record before us, this argument does not preclude summary judgment on the merits.

Accordingly, we find no error in the summary judgments entered in favor of the defendants.

Decree

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of this proceeding are assessed to the appellant, Fii'st Baptist Church of Westlake.

AFFIRMED.

      . The petition alleges that Julia violated "the duties and responsibilities of her job in that she:
      a. Signed other persons' names to Church checks without authorization.
      b. Reported to Church that checks were written to one person or company when in reality checks were written to unauthorized persons or companies.
      c. Reported to Church that checks so written were in one amount and in fact were written in other amounts not shown.
      d. Opened credit accounts and credit cards in the Church's name unknown to Church but were used for unauthorized expenses which were not for the use and benefit of Church but for Julia and/or her unauthorized designee.
      e. Used Church funds for the use and benefit of Julia and/or her designee without Church authorization.
      f. Failed to make appropriate and timely payments to the Internal Revenue Service of taxes withheld from employee payroll checks.
      g. Duplicated payroll payments to herself in excess of the salary amounts authorized by the Church.
      h. Improperly and inaccurately balanced and reported on bank statements and business accounts of Church to cover up the misuse and misappropriation of Church funds.

        i. Failed to use good and acceptable business accounting practices in her fiduciary capacity as an employee of the Church.
      j. Violated Church financial policies and practices and engaged in conduct to cover up all violations.
      k.Other acts of negligence and fault that will be shown at the trial of this matter. [”]

      .The plaintiff assigns the granting of the summary judgments as error, but designates the following issues for review:
      1. Was the First Amending Petition adding Capital One APC, LLC and Citibank (South Dakota), N.A. as defendants filed after the Judgment by Default was granted?
      2. If a suit is amended to add additional defendants after a default judgment is taken against the originally named defendants and the newly added defendants file answers without filing a D[e]clinatory Exception of improper cummulation [sic] of actions and parties, have the defendants waived any alleged defect in filing that amendment adding those defendants to the proceedings?
      3. Can a suit be amended to add additional defendants after a default judgment is taken against the original defendants?
      4. Can the Trial Court grant summary judgment on the merits of a lawsuit if there is no petition of record before the Court?
      5. Are the pleadings filed by First Baptist Church of Westlake, Louisiana in the case at bar distinguishable from the pleadings filed in Bolesny v. Cannonball Moving Inc., 99-2096 (La.App. 4 Cir. 2/9/00), 752 So.2d 979 so as not to be construed as pleading that only the Leppos were solely liable to plaintiff/appellant and no one else could be at fault causing its damages?
      6. Should the grant of the Motion for Summary Judgment by the Trial Court be reversed and this matter and remanded to the Trial Court for a trial on the merits in due course?


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Maurice Dwayne WASHINGTON, Appellant.
    No. 44,864-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    English & Associates by: W. Larry English, Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Dale N. Montgomery, II, Assistant District Attorneys for Appellee.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   BROWN, Chief Judge.

| (Defendant, Maurice Dwayne Washington, pled guilty to failing to register as a sex offender, a violation of La. R.S. 15:542.1.4, and was sentenced to eight years of imprisonment at hard labor without benefit of probation, parole or suspension of sentence (but with credit for time served). Defendant now appeals, asserting that his sentence is excessive. Finding no error, we affirm.

Discussion

Between the dates of February 2, 2000, and May 19, 2008, defendant failed to register as a sex offender as required in connection with a 2000 conviction for contributing to the delinquency of a juvenile. Defendant pled guilty to failing to register as a sex offender on September 17, 2008.

On appeal, defense counsel urges that defendant’s sentence is excessive because he has not been arrested for a sex crime or shown himself as a threat to the community since his 2000 conviction. Defendant further argues that the trial court failed to specify any facts related to the underlying crime which would warrant such a sentence.

At the sentencing hearing, the trial court discussed the pre-sentence investigation report and the La. C. Cr. P. art. 894.1 factors, as well as defendant’s personal and criminal history. The trial court noted that defendant had a lengthy criminal history and discussed the details of his past convictions. The court found that defendant was in need of |gcorrectional treatment that could be provided most effectively by commitment to an institution and that a lesser sentence would deprecate the seriousness of the crime. Also, the court found no grounds which would excuse or justify, defendant’s criminal conduct, which the court opined was likely to recur. The trial court sentenced defendant to eight years of imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant’s timely filed motion to reconsider sentence was denied after a contradictory hearing.

At the hearing on the motion to reconsider, defense counsel argued that, although defendant had an extensive criminal history, it consisted mostly of misdemeanors and petty crimes, not sex crimes. Defendant’s attorney further noted that defendant had not been convicted of a sex crime in the approximately eight years since his guilty plea [to contributing to the delinquency of a minor].

The trial court pointed out that defendant had never registered as a sex offender, something he would have been required to do until 2016. The court then found that defendant’s criminal record, which includes two prior felonies and 29 misdemeanor convictions, as well as the facts of the instant case, would most likely have supported the maximum sentence of ten year's.

A sentence violates La. Const, art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is 13considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.04/02/98), 691 So.2d 864.

In the instant case, the trial court considered the PSI and other relevant factors in sentencing defendant to eight years at hard labor, particularly defendant’s extensive criminal history and the fact that defendant had failed to register as a sex offender for approximately eight years. The trial court reiterated its reasons for sentencing at the hearing on defendant’s motion to reconsider. This sentence is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice. Defendant’s sentence is equal to the period of time he failed to register as a sex offender. We find no abuse of the trial court’s vast discretion in this matter.

Defendant’s conviction and sentence are AFFIRMED.

      . At the guilty plea hearing in connection with the instant offense, the prosecutor advised the trial court that although in 2000, defendant had been arrested and charged with carnal knowledge of a juvenile, a violation of La. R.S. 14:80, for having "consensual” sex with a 15-year-old, he pled guilty to contributing to the delinquency of a minor, a violation of La. R.S. 14:92(A)(7), pursuant to a plea agreement.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Therlow NOBLE, Jr., Appellant.
    No. 44,857-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    G. Paul Marx, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, R. Nicholas Anderson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

| Jfhe defendant, Therlow Noble, Jr., was charged by bill of information with aggravated arson, a violation of LSA-R.S. 14:51. Pursuant to a plea agreement, the defendant pled guilty to simple arson, a violation of LSA-R.S. 14:52, and the state agreed not to file an habitual offender bill. The district court sentenced defendant to serve 15 years’ imprisonment at hard labor and denied his motion to reconsider sentence. Defendant appeals his sentence as excessive. For the following reasons, we affirm.

DISCUSSION

The record shows that in May 2008, the defendant purchased gasoline at a service station and went to the Windsor Inn, a motel located in Monroe, Louisiana. The defendant approached a vehicle that had been loaned to the victim, Edward Robinson. Defendant intentionally poured gasoline into the victim’s vehicle and ignited the fuel, setting the vehicle on fire. The flames then spread to another vehicle and to the building. The fire scorched the outside wall of the motel and both vehicles were damaged beyond repair. After being identified as the person who was at the scene of the fire, defendant was arrested and charged with aggravated arson. Pursuant to a plea bargain, defendant pled guilty to simple arson and the district court imposed the maximum sentence of 15 years’ imprisonment at hard labor. This appeal followed.

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that he should not have received the maximum sentence, which is reserved for the worst type of offenders, because he was provoked by his wife’s affair with the victim, who could not |2be located and apparently was not interested in the case.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). Aj^sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

A trial court has broad discretion to sentence within the statutory limits. When a defendant has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App. 2d Cir.12/13/06), 945 So.2d 267. Absent a showing of manifest abuse of that discretion, this court will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.5/12/04), 873 So.2d 939. The penalty for simple arson causing property damage of $500 or more is imprisonment at hard labor for not less than 2 years nor more than 15 years and a fine of up to $15,000. LSA-R.S. 14:52.

Prior to imposing sentence, the district court reviewed a presentence investigation (PSI) report and recited the defendant’s criminal history, which included prior felony convictions for burglary and theft. The court noted that defendant was on parole when this crime was committed. The court considered the sentencing guidelines of Article 894.1, finding there was an undue risk that defendant would commit another offense if not incarcerated and that a lesser sentence would deprecate the seriousness of the crime. In addition, the court noted that defendant’s crime resulted in significant economic loss to the victims.

Regarding the defendant’s personal history, the court was aware of | ^defendant’s age, that he had dropped out of high school and that he was a father of three children. The trial court stated that the defendant has never held consistent employment or accumulated any wealth; therefore, there was no indication he would ever be able to pay restitution to the victims. The court also pointed out that defendant had reduced his sentencing exposure through the state’s agreement not to file a multiple offender bill of information.

The record demonstrates that the district court was cognizant of the appropriate factors in determining the defendant’s sentence. The court articulated adequate reasons for the imposition of this maximum sentence, which is neither grossly disproportionate to the severity of the offense committed nor an abuse of the court’s discretion. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

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

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Milton Moore SLOCUM, Appellant.
    No. 44,871-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Daryl Gold, Shreveport, for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy J. Johnson, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

11 Originally charged with indecent behavior with juveniles, La. R.S. 14:81.1 A(2), Dr. Milton Slocum pled guilty to obscenity, La. R.S. 14:106 A(2)(a). The district court imposed the maximum sentence of three years at hard labor and a fine of $2,500, and denied a motion for reconsideration. Dr. Slocum now appeals, urging only that his sentence is excessive. For the reasons expressed, we affirm.

Dr. Slocum is a 45-year-old vascular surgeon who practiced medicine at Ark-La-Tex Vein Care Center in Shreveport. He is married and has three children ranging in age from 14 to 18. In August 2006, he entered an Internet chatroom and exchanged instant messages (“IMs”) with a person he believed to be a 15-year-old girl named Lori Poff, but who was in fact a Caddo Parish sheriffs deputy on the Northwest Louisiana Internet Crimes Against Persons Task Force. They exchanged some personal information (Dr. Slocum disclosed to Lori that he was a 42-year-old physician) and some photos that were not pornographic. After two IMs, the contacts ceased for a while.

In late January 2007, Dr. Slocum again IMed Lori, reminding her he was the 40-year-old guy she had talked to earlier; they exchanged more photos, and he complimented her appearance. In the next IM, he asked for a swimsuit photo and wanted to know her cup size; in the next, on February 17, he disclosed he had cheated on his wife and he wanted to see nude pictures of Lori. He sent her a picture of his genitals and talked to her about sexual positions and orgasms. On February 19, he IMed and asked if Lori would meet him at Columbia Park, just to exchange nude photos; a female |2deputy on the task force called his cell phone to confirm the tryst for the next day. Dr. Slocum followed up by emailing her a composite picture of Lori next to his erect penis.

On February 20, when Dr. Slocum went to Columbia Park at the appointed time, deputies arrested him for pornography involving juveniles, indecent behavior with juveniles and computer-aided solicitation of a minor. According to the incident report, Dr. Slocum waived his Miranda rights and admitted starting an online relationship with a 15-year-old girl and eventually sending her, on two occasions, sexually explicit pictures of himself.

As noted, the state initially charged Dr. Slocum with one count of indecent behavior with juveniles, La. R.S. 14:81 A(2). Pursuant to a plea agreement, the state filed an amended bill charging him with one count of obscenity, La. R.S. 14:106, for the electronic communication of hardcore sexual conduct with the intent of arousing sexual desire. The district court accepted Dr. Slocum’s guilty plea and stated that it would use the state’s discovery packet, rather than a presentence investigation report, for sentencing purposes.

At sentencing on February 20, 2009, the court recited the background facts (in much greater detail than we have indulged in this opinion), describing the initial contacts as “grooming” the child and noting with disfavor that after a lapse of several months, Dr. Slocum reinitiated the IMs. The court further found that Dr. Slocum had never expressed any remorse for his conduct and, more damningly, his wife and daughter had offered |aweak excuses such as addiction and entrapment. The court intoned that in the Internet age, sexual predators come not only from neighbors and folks around the bus stop but 6½ billion people worldwide. The court discussed the sentencing factors of La. C. Cr. P. art. 894.1, noting especially that Dr. Slocum was a well-educated professional with children roughly the same age as his intended victim, and that he had received significant benefit from a plea bargain. The court found only two mitigating factors: Dr. Slocum’s clean criminal record and the potential hardship on his family from his incarceration. The court then imposed the maximum sentence of three years at hard labor and a fine of $2,500, adding that it would have imposed more time if it could. The court later denied Dr. Slocum’s motion for reconsideration.

Dr. Slocum now appeals, urging that maximum sentences should be reserved for the most serious violations of the charged offense and the worst kind of offender. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665. He submits that he is a first-time offender with an immaculate record; the search of his three computers uncovered no child pornography and no lewd conversations with anybody except the fictitious Lori Poff; he and his wife have now undergone two years of counseling, with some progress; and that his family is now destitute as his medical license has been suspended for the duration of these proceedings. He adds that the court appeared unduly influenced by his wife’s comments, which must be understood to reflect her anger and frustration at the whole situation. He concludes that a more appropriate sentence would have been probation with the special | condition that he continue counseling and not be allowed access to any computer.

The state responds that Dr. Slocum initiated the contacts with Lori Poff, broached the subject of sexuality, heated up the messages and sent her pictures of his genitals; moreover, he received a tremendous benefit from the plea bargain. It submits that the maximum sentence was no abuse of the district court’s great discretion.

Appellate review of sentences for exces-siveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1, which requires the court to state an adequate factual basis and consider enumerated factors to support the sentence imposed. State v. Lobato, 603 So.2d 739 (La.1992). Dr. Slocum concedes that the coui't carefully and meticulously applied the criteria of this article.

The second prong is constitutional ex-cessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

As a general rule, maximum or near-maximum sentences are reserved for the most serious violations of the charged offense and the worse kind of offender. State v. Cozzetto, supra. When the offense to which the defendant pled guilty does not adequately describe his conduct, the court has great discretion to impose the maximum or a near-maximum sentence. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Johnson, 43,810 (La.App. 2 Cir. 1/14/09), 2 So.3d 567. As originally charged with indecent behavior with juveniles, Dr. Slocum faced a maximum of seven years at hard labor and a fine of $5,000, without benefit of suspension or deferral of sentence. La. R.S. 14:81 H(l). The plea bargain obviously sliced his sentencing exposure by more than half.

This court would agree that Dr. Slocum is probably not the worst kind of offender: he has a clean criminal record and exemplary professional attainments; moreover, he admitted his guilt. We would not ascribe to him the indignation voiced by his wife and daughter toward the task force’s operation. Also, we would not seek to punish Dr. Slocum any harder simply because the Internet exposes children to a global community of potential predators. However, the fact remains that Dr. Slocum initiated contact with a person he believed was a 15-year-old girl, resumed them after several months’ silence, introduced sexual topics and sent pictures of his genitals. His conduct culminated in a planned rendezvous with Ms. Poff; despite his argument to the contrary, the situation easily could have led to molestation of a 15-year-old.

Lin view of these facts, and the significant benefit from the plea bargain, we cannot say that the maximum sentence of three years at hard labor and the fine of $2,500 is an abuse of the district court’s discretion. State v. Guzman, supra; State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166. While it is severe, it does not shock our sense of justice.

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2).

The conviction and sentence are therefore affirmed.

CONVICTION AND SENTENCE AFFIRMED.