author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Louis Tyrone McKEAVER, Appellant.
    No. 44,907-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      James E. Beal, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Catherine M. Estopinal, Edward M. Bros-sette, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

I,This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Following a bench trial, the defendant, Louis Tyrone McKeaver, was convicted of manslaughter, a violation of La. R.S. 14:31. After being adjudicated a second felony offender, he was sentenced to 36 years’ imprisonment at hard labor without the benefit of parole, probation or suspension of sentence, which McKeaver appeals. For the following reasons, we affirm McKeaver’s conviction and amend his sentence to delete the restriction on the parole eligibility. In all other respects, his sentence is affirmed.

Facts

In the early morning hours of February 7, 2005, McKeaver, stabbed 43-year-old Cynthia Breda, his sometimes-girlfriend, four times-including one fatal wound to the left chest which incised her heart. The additional stab wounds were to Breda’s wrist, upper arm and left back.

McKeaver was indicted by a grand jury, with one count of second degree murder and was tried before a judge on August 24 and 25, 2006. McKeaver took the stand at his trial, testifying that he and the victim had argued just before the stabbing and that she had run him out of her house. He testified that he believed Breda had gone to get her gun to shoot him so, fearing for his life, he grabbed a large butcher knife out of his car (he claimed he used the knife to start his vehicle). McKeaver claimed that when Breda came out of her house “trying to get full control of the gun,” he approached her and stabbed her multiple times with the first wound being the one “in her heart.”

12Breda’s daughter, Chinitra Pennington, also testified at MeKeaver’s trial. Pennington, who lived next door, was asleep on the couch at the time the crime occurred. She testified that she heard a voice she recognized as McKeaver’s scream an expletive, which prompted her to go outside to see what was going on. After stepping out onto her front porch, she did not see anything and turned to go back inside. Deciding instead to check on her mother, Pennington turned back around, went down the front steps into the front yard and found her mother lying on the ground with blood on her shirt and running down her leg. Pennington saw McKeaver walking down the street away from the scene, and testified that he briefly stopped and looked back in her direction, then continued walking away from the scene. Pennington called 911 and waited for the emergency personnel to arrive. Pennington testified that while her mother owned a .25 caliber gun, Pennington did not see it or any other gun on or around her mother at the scene. According to Pennington, on the evening of the stabbing, her mother was not in possession of the gun because she had left it at a friend’s house.

Corporal Robert Elliott with the Shreveport Police Department also testified at McKeaver’s trial. According to Corp. Elliott, he was patrolling the neighborhood in the early morning hours of February 7, 2005, in response to a BOLO (be on the lookout) put out on police radio for a black male named Tyrone McKeaver wearing a white T-shirt and black pants. Corporal Elliott spotted a man fitting McKeaver’s description step out from behind a house near Evers Drive and Broadway Avenue. The man was wearing black pants and a white T-shirt that appeared to be bloodstained. 1,,Corporal Elliott exited his patrol unit and yelled “Tyrone” at the suspect, who turned to look at the officer and stopped right by the side of the road. Corporal Elliott then conducted a search of the suspect and placed him in handcuffs. As he did so, people began coming out of nearby homes to whom the suspect, according to Corp. Elliott, made the following statement, “She said she was going to get a gun, so I got her first.”

Corporal Elliott testified that McKeaver was subsequently read his Miranda rights and transported to the Shreveport Police Department. The state introduced a videotape from the recording system in Corporal Elliott’s patrol unit which he identified as accurately depicting the events that transpired during McKeaver’s arrest. The audio portion is difficult to understand because numerous voices can be heard speaking simultaneously. Clearly discernible at one point, however, one voice can be heard to say the following: “I kilt [sic] her, momma. She was gonna try to get a (unintelligible) to kill me with, so I got her first. I got her first man. I got her first man. I got her first. God knows.”

At McKeaver’s trial, various law enforcement officials responsible for securing the scene in and around Breda’s home testified that no gun was found in or around the victim’s body or in her home. The medical personnel who unsuccessfully attended to Breda also testified that they saw no gun on or around the victim’s body.

The trial court found McKeaver guilty of manslaughter. The state then filed a habitual offender bill charging McKeaver as a second-felony offender on the basis of his May 7, 1996, conviction for possession of a | .[firearm by a convicted felon. Following a hearing, McKeaver was adjudicated a second felony offender. That same day, a sentencing hearing was conducted during which McKeaver took the stand and testified that he had no choice but to act as he did because of his belief that Breda possessed a gun. The trial court imposed a sentence of 36 years’ imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. A motion to reconsider the sentence as excessive was denied without a hearing. Subsequently, McKeaver filed an application for post-conviction relief seeking an out-of-time appeal, which the trial court granted. This appeal by McKeaver ensued.

Discussion

In his first assignment of error, McKeaver argues that the sentence imposed is excessive, because the trial court failed to give proper weight to Breda’s alleged possession of a gun at the time of her stabbing and the role that played in his state of mind as a mitigating factor. He also argues that the trial court failed to particularize the sentence to the offender. We disagree.

Under La. R.S. 14:31, the underlying manslaughter conviction subjected McKeaver to a term of up to 40 years. As a second habitual offender, La. R.S. 15:529.1(A)(l)(a) subjected him to a term not less than one half the maximum nor more than twice the maximum for the underlying conviction, or from 20 to 80 years.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show |fithat the trial court took cognizance of the criteria set forth in La. 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.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. 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.09/28/07), 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 and needless infliction of pain and suffering. State v. Smith, 2001-2574 (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 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.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

Louisiana C. Cr. P. art. 881.1 precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121. Here, the state argues that McKeaver is relegated to a bare claim of constitutional excessiveness because he failed to raise the improper weighing of mitigating factors argument in his motion to reconsider sentence filed with the trial court. However, we do not read the motion to reconsider so narrowly. In the motion to reconsider, McKeaver makes the following allegation: “Given the mitigating circumstances of this particular offense, the remorse shown by Defendant, and the reasons indicated by this Court, said sentence is unduly harsh and excessive.” Accordingly, while McKeaver may not have made specific mention of the evidence regarding the victim being armed, his allegation that she was armed would clearly qualify as a mitigating factor of the offense which he was urging had not been given proper consideration.

17As to the merits of this assignment of error, we find that McKeaver’s argument is weak and his claim is unsupported by the record on this issue. McKeaver brutally stabbed his victim with a butcher knife with enough force to pierce her sternum and puncture her heart. Then, according to his own testimony, he stabbed her an additional three times, including once in the back. While McKeaver argues that he was forced to murder Breda because she had a gun, the trial court properly noted that under McKeaver’s own version of the events, if true, he had ample opportunity to remove himself from the situation when he was forced out of the home. He did not do so, choosing instead to walk to his car, arm himself with his butcher knife, await the victim outside her home and then brutally stab her with enough force as to kill her. While the trial court considered McKeaver’s remorse as a mitigating circumstance, the record reflects that he fails to actually take responsibility for his conduct, but expressed remorse only for how things turned out. Remorse for committing a crime and being caught is far different from actual and meaningful contrition for one’s criminal actions.

Additionally, McKeaver’s crime was committed while he was on parole from an earlier conviction of possession of a firearm by a convicted felon, a conviction stemming from an incident in which he allegedly shot his aunt and was originally charged with attempted second degree murder. It is unclear to what extent the trial court considered the underlying facts of | Sthis conviction since they were never made part of the evidence before the trial court, although they are in police reports contained in the record in the form of discovery responses. Regardless, the criminal history shows a propensity for violence on the part of this defendant, the latest victim of which is dead.

Finally, McKeaver’s sentencing exposure was no less than 20 years’ nor more than 80 years’ imprisonment at hard labor. Accordingly, the 36-year sentence imposed is less than half the maximum he could have received. In imposing the sentence, the trial court noted that it had considered the factors of La. C. Cr. P. art. 894.1 and found McKeaver’s use of a knife to inflict multiple stab wounds on the victim, his failure to seize the opportunity to remove himself from the situation, and the impact on the victim’s family as aggravating circumstances. The trial court also indicated that McKeaver’s prior conviction on a weapons charge made a probated sentence, even if available, inappropriate. As mitigating factors, the trial court cited the evidence of alcohol and cocaine in Breda’s bloodstream and the trial court’s belief that there may have been provocation for McKeaver’s actions. Given the trial court’s considerations in fashioning McKeaver’s sentence, the midrange sentence is not grossly disproportionate to the seriousness of the crime nor does it shock one’s sense of justice. Accordingly, McKeaver’s assignment of error is without merit.

In his second assignment of error, McKeaver argues that the trial court erred in imposing his sentence without the eligibility for parole. The state agrees.

|ftAt the time of the commission of the offense, La. R.S. 14:31(B) provided, in pertinent part, as follows: “Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” Since McKeaver was charged as a second felony habitual offender, also applicable in this instance is La. R.S. 15:529.1(A)(l)(a) and (G), which states:

(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
⅜ * * *
(G) Any sentence imposed under the provisions of this Section shall be without the benefit of probation or suspension of sentence.

Here, the trial court imposed McKeaver’s 36-year-sentence “without the benefit of probation, parole, or suspension of sentence as contemplated by the second felony offender statute.” However, the second felony habitual offender statute does not prohibit eligibility for parole, thus McKeaver’s sentence was illegal in regard to the trial court’s denial. Under La. C. Cr. P. art. 882, this court has the authority to amend the erroneous sentence, making all necessary corrections to make the sentence legal. The defendant’s sentence, therefore, is amended to delete that portion which denies him eligibility for parole. State v. Garner, 39,731 (La.App. 2d Cir.09/08/05), 913 So.2d 874, writ denied, 2005-2567 (La.05/26/06), 930 So.2d 19.

| ^Conclusion

For the foregoing reasons, Louis Tyrone McKeaver’s conviction is affirmed, his sentence is amended to delete the restriction on parole eligibility and is affirmed, as amended.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Juan G. SANDOVAL.
    No. 2009-KA-0542.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Christopher S. Bowman, Assistant District Attorney, New Orleans, LA, for Appellee/State.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DENNIS R. BAGNERIS, SR.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

| STATEMENT OF THE CASE

On November 28, 2006, the State filed a bill of information charging the defendant, Juan G. Sandoval, with second degree battery, a violation of La. R.S. 14:34.1. The defendant failed to appear at arraignment, and an alais capias was issued. On October 25, 2007, the defendant appeared for arraignment and pled not guilty.

Defense motions were heard on February 14, 2008. The trial court denied both the motion to suppress the evidence and the motion to suppress the identification and found probable cause. The case was tried before a jury on May 28, 2008. The defendant was found guilty as charged.

The State filed a multiple bill of information alleging that the defendant was a second felony offender having previously been convicted of attempted second degree burglary in the State of California. The defendant filed a motion to quash the multiple bill prior to the hearing. The multiple bill hearing was conducted on July 10, 2008. At the hearing, the State introduced a certified copy of a minute entry from the Superior Court of Santa Clara County, California which reflected that on October 3, 1997, in case number 197395, Juan Gabriel Sandoval pled guilty |2to attempted second degree burglary in violation of California Penal Code §§ 664, 459, 460 subd. (b).

The minute entry reflects that the defendant was represented by counsel and pled guilty after waiving his constitutional rights. The State also introduced a certified copy of a fingerprint form from the Superior Court of Santa Clara County, which was also identified with case number 197395.

At the hearing, the State called Officer Joseph Pollard of the New Orleans Police Department. It was stipulated that he was an expert in fingerprint examination. Pollard informed the court that earlier that day he had fingerprinted the defendant, that he had compared the defendant’s right thumb print with the right thumbprint from the California fingerprint form, and that he found them to be a match with over nineteen points of comparison. Cross examination of Officer Pollard was limited to the quality of the photocopy of the fingerprint form from California. The minute entry and the fingerprint card were entered into evidence without objection. The defendant called no witnesses and presented no evidence.

The trial court found that the defendant was one and the same person who pled guilty to attempted first degree burglary in case number 197-395 in the Superior Court of Santa Clara, California. The Court then sentenced the defendant to ten years at hard labor and imposed a fine in the amount of two thousand dollars.

The trial court found the defendant to be a second felony offender and denied the motion to quash. The trial court sentenced the defendant to ten years at hard labor and imposed a fine of two thousand dollars. This appeal followed.

¡STATEMENT OF THE FACTS

Dung Le testified that he has been the manager of the Williams Supermarket on Jackson Avenue in New Orleans for four years. Le explained that on July 8, 2006, the defendant entered the store on two occasions. On the first, Le observed as the defendant attempted to make a purchase. After the cashier totaled the sale, Sandoval did not have enough money and became agitated saying that he was overcharged. Le told the cashier it was okay, to let him go. Le explained that when customers are short of cash, he frequently tells them that they can pay him next time.

Later, the defendant came back to the store. At this point, his demeanor and appearance had changed from earlier in the day. Sandoval’s shirt was unbuttoned, and he was sweating heavily. Also, the defendant had a young child perched on his shoulder. As before, the defendant attempted to make a purchase but did not have enough money. He began to curse at the cashier, and Le told him to put some items back. Because of his demeanor, Le told Sandoval that it was time to leave and walked the defendant to the door. When they reached the door, the defendant was cursing in Spanish and English. Le asked the defendant what he said, but he realized that the defendant was on something. Also Le was concerned about how Sandoval was holding the baby. Le knew not to come any closer. Le told the jury that he did not remember anything more about the incident and only remembers waking up in the hospital.

Le reviewed a video tape of the incident for the jury, commenting on both the defendant’s initial purchase and subsequent appearance.

Willie Monroe testified that on the day in question he was in the Williams Supermarket buying some lottery tickets when he was distracted by some noise. |4He observed that the defendant was attempting to make a purchase but did have enough money. He heard the store manager tell him to put something back which resulted in a confrontation in which the manager asked him to leave the store. When the two got to the steps, the customer hit the manager and knocked him down. Then he kicked him several times. One of the cashiers called out, “Someone call the police. He’s going to kill that man.”. The defendant left the store. The manager was unconscious. He was still unconscious when EMS arrived. Monroe did not observe Le raise his hand or become confrontational. Monroe was not able to identify the defendant.

Detective Kristen Krzemienieck related that on the day in question he was notified that a battery had occurred at the Williams Supermarket on St. Charles and Jackson Avenue. When he arrived, he spoke with the responding officers. The victim was being taken to the hospital by EMS, and the responding officers had an arrested subject in the rear of their police unit. Krzemienieck spoke with the owner of the store and learned that he had video surveillance in the store, which Krzemien-ieck then watched. Krzemienieck could see that the arrested subject matched the person in the video footage. Krzemienieck identified the defendant as the subject arrested that day.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR

The defendant contends, both through counsel and pro se, that the State submitted insufficient evidence at the multiple bill hearing to establish that he was | sa habitual offender on the basis of his California conviction. The Louisiana Supreme Court explained the State’s burden in a multiple bill hearing in State v. Shelton, 621 So.2d 769, 779-780 (La.1993), as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between the judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than the “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must then weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulate waiver of the three Boykin rights. (Footnotes omitted).

Shelton was incorporated into La. R.S. 15:529.1(D)(l)(b) which states:

The district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information.The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response.

The defendant contends that the evidence presented failed to adequately demonstrate the constitutionality of the defendant’s previous guilty plea. Specifically the defendant suggests that although the document provides that defendant was advised of his rights, there is no indication or summary of what rights the defendant agreed to waive by pleading guilty or whether he understood what was occurring when he pled guilty.

|fiThe minute entry from the defendant’s plea clearly reflects that he was represented by counsel and that he waived his constitutional rights. The defendant did not present any evidence of a procedural irregularity or an infringement of his rights. Accordingly, the State met its burden of establishing a valid prior conviction. The defendant’s argument lacks merit.

The defendant also suggests that the State failed to establish that the conduct which led to his California conviction would constitute a felony in Louisiana. In order for a conviction from another state to serve as a predicate felony for enhancement purposes, the conviction must be for a “crime which, if committed in this state would be a felony....” La. R.S. 15:529.1(A)(1). If the offense from the other state for which the defendant was convicted does not necessarily include conduct considered to be a felony under Louisiana law, that conviction cannot be used to enhance a subsequent felony under the habitual offender statute. The habitual offender statute requires Louisiana courts to determine the analogous Louisiana crime according to the nature of the act involved in the crime of the other state or jurisdiction, not the penalty provided for the offense in the other state or jurisdiction. State v. Carouthers, 618 So.2d 880 (La.1993).

Initially, the defendant notes that in California the definition of an “attempt” does not provide that mere preparation to commit a crime is insufficient to constitute an offense, while in Louisiana, mere preparation is statutorily excluded from the definition of an attempt by La. R.S. 14:27. Accordingly, the defendant |7argues that he may have been convicted of a crime in California involving only his mere preparation to commit a crime for which he could not have been punished in Louisiana. Although California Penal Code § 664 is silent on the issue of mere preparation, California jurisprudence clearly establishes that mere preparation is insufficient to constitute an attempt. See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1322, 88 Cal.Rptr.3d 41, (“[Mjere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt.”); People v. Prince (2007) 40 Cal.4th 1179, 1275, 57 Cal.Rptr.3d 543, 156 P.3d 1015, (attempted burglary requires activities which go beyond mere preparation.).

The defendant also contends that absent a factual basis one cannot determine whether his actions would have constituted the crime of simple burglary as defined by La. R.S. 14:62. In California, burglary is defined in § 459 of the California Penal Code as follows:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

|8The degrees of burglary are delineated in § 460 as follows:

(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.
(b) All other kinds of burglary are of the second degree.
La. R.S. 14:62 provides in part:
A. Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein,

Although the structure element of simple burglary is defined in Louisiana by a more general reference to structures of different types while in California burglary is defined by a more lengthy reference to specific types of structures, a review of § 459 and the statutes included by reference reflects that a violation of § 459 would constitute a simple burglary in Louisiana in violation of La. R.S. 14:62. The defendant notes certain differences in the California statute such as the inclusion of structures “designed for habitation” which is not included in the Louisiana statute, and the distinction regarding doors of a vehicle being locked; however, these differences are cosmetic only and do create circumstances wherein conduct of the California statute would not constitute the crime of simple burglary in Louisiana.

|9In sum, the State complied with the requirements of La. R.S. 15:529.1, and the trial court properly determined that the defendant was a second felony offender.

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

AFFIRMED.

      . La. R.S. 14:27(B), provides:
      B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

      . California Penal Code § 664 states in part:
      Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows:

      . Through counsel, the defendant also argues that it is impossible to determine whether the defendant’s conduct would be punishable "at hard labor” in Louisiana. The argument operates from the incorrect assumption that only crimes that are punishable "at hard labor” are felonies in Louisiana. La. R.S. 14:2(4) provides that a " 'Felony' is any crime for which an offender may be sentenced to death or imprisonment at hard labor.” Accordingly, simple burglary is certainly a felony as it is punishable "with or without hard labor.” Therefore, the defendant’s arguments in this regard are without merit.


author: CLARENCE E. McMANUS, Judge.

text:
    Desiree GONZALEZ v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, State of Louisiana through the Department of Transportation and Development and the Public Belt Railroad Commission of the City of New Orleans.
    No. 09-CA-140.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.
    Rehearing Denied March 2, 2010.

      Wayne M. LeBlanc, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    James D. Caldwell, Attorney General, John E. Sudderth, Assistant Attorney General, Louisiana Department of Justice Litigation Division, New Orleans, Louisiana, for Defendants/Appellees.
    Harry S. Hardin, III, Avery P. Pardee, Jones, Walker, Waechter, Poitevent, Car-rére & Denegre, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appel-lee, The Public Belt Railroad Commission of the City of New Orleans.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

^Plaintiff, Desiree Gonzales, filed suit for injuries received in a one car accident. Plaintiff filed suit against several defendants. At the time of trial, there were two defendants remaining, Louisiana Department of Transportation and Development (DOTD), and the Public Belt Railroad Commission of the City of New Orleans. (NOPB).

The trial in this matter was bifurcated, with the claims against DOTD tried by a jury and the claims against NOPB tried by the judge. After trial both triers of fact, the judge and the jury, found in favor of their respective defendants. Accordingly, the trial court rendered judgment in favor of defendants, dismissing plaintiffs claims against them. For the reasons that follow, we affirm the judgment of the trial court.

FACTS

The accident at issue occurred in the early morning hours of September 19, 1998. Ms. Partain was driving a vehicle, plaintiff and two others were in the back seat and a fourth passenger was in the front. Ms. Partain drove her vehicle past the dead end of Labarre Road, over a set of railroad tracks and then over a canal. The front of the vehicle hit the other 14side of the canal, and the rear of the vehicle dropped into the water at the bottom of the canal.

On the night in question, plaintiff and Ms. Partain first went to a daiquiri shop, and then to a party. At the party, Ms. Partain consumed two beers and two shots of tequila. They left the party with three males and three females, and Ms. Partain gave the females a ride home, somewhere on or near Deckbar Ave., off Jefferson Highway, in Jefferson Parish, Louisiana. It had been raining earlier and the streets were wet. Ms. Partain turned off Jefferson Highway, and onto Rio Vista Ave, with her goal being to get to Airline Highway. From Rio Vista Ave., she turned onto San Jose Ave., and then possibly onto San Carlos Ave. and ultimately onto Labarre Rd., two blocks from where it ended at the railroad tracks. Beyond the tracks was the Hoey Canal. Ms. Partain testified that she did not see a Dead End sign when she turned onto Labarre Rd., and if she had she would have turned off that street. She further testified that she did not see any signage to indicate that the road ended. She stated that she could see a red light at Airline Highway, and this visual led her to believe that the road went all the way through. She testified that she did not see a chain or a stop sign at the end of the road.

The testimony of neighbors to the canal, as well as testimony from the DOTD indicated that the end of the road was normally secured with a chain stretched across the road, and a stop sign hanging from the chain. On the night of the accident and after the car came to rest on the opposite side of the canal, the chain was stretched across the hood of Ms. Partain’s car. The stop sign was not seen.

After the accident, the occupants exited the car. Plaintiff was bleeding from a head wound, and had injured her leg. Plaintiff and Ms. Partain, now on the other side of the canal, began walking toward the Airline | r,Highway area. Because of plaintiffs injured leg, she leaned on Ms. Partain part of the way, and Ms. Partain carried her part of the way. They walked to Earhart Blvd, and then recognizing where they were, they began to walk down Earhart Blvd. Ms. Partain tried to flag down cars as they passed, but none would stop. When they reached the corner of Earhart Blvd. and Cleary Ave., they went toward Airline Highway. They then saw a police ear that they were able to flag down. They were transported by ambulance to Ochsner Hospital.

Deputy Peggy Thibodeaux was qualified as an expert as a traffic officer and in traffic investigation. She testified that she received a call that the accident had occurred at 12:25 am. She arrived at the scene of the accident at 12:33 am. When she first observed the scene, she did not see the driver of the vehicle. She saw two boys sitting in the grass on the other side of the canal from where the car was located. It was cloudy when she arrived; it had rained earlier and the road surface was wet. She measured 69 feet of skid marks. There were no markings on the railroad tracks themselves to show where the car traversed, so she thought that the car may have become airborne.

She then went to the hospital, where the driver (Ms. Partain) had been taken. She interviewed Ms. Partain who stated that she had been drinking and had consumed two beers, a daiquiri and two shots of tequila. Deputy Thibodeaux testified that she was not able to do a filed sobriety test because there were doctors attending Ms. Partain. She noticed that Partain’s speech was slurred and she was stuttering. Deputy Thibodeaux also testified that she observed a strong smell of alcohol. A blood test was administered at 2:40 am, and the results showed that Ms. Partain had a blood alcohol level of |ti.15. Ms. Partain was arrested for driving while intoxicated and transported to Central Lockup.

Gail Hughes, the intake officer at Central Lockup, testified that she performed the health screening of Ms. Partain. The health screening intake form indicated that this was done at 5:45 am. Ms. Hughes could smell alcohol on Partain’s breath, but visual observations did not indicate that she was under the influence. Hughes did not observe any confusion, staggering, slurred speech or unconsciousness.

Diane Gonzales, plaintiffs mother, testified that she spoke with Ms. Partain while she was at the hospital. Partain was crying and upset, however she did not have slurred speech and she did not see signs of impairment.

Dr. William Troxler, the emergency room doctor who examined both Ms. Par-tain and plaintiff, testified that Partain admitted that she had been drinking prior to the accident. There was nothing in his report that reflected signs of intoxication.

Dr. Joseph Litner, an expert in emergency room medicine, testified by video deposition. He stated that blood alcohol levels did not always indicate whether a person was intoxicated because different patients would metabolize alcohol at different rates. He reviewed both the EMT records and the emergency room intake form of Ms. Partain. The EMT form did not have any reference to intoxication, although it did report that Ms. Partain admitted that she consumed alcohol and that her breath smelled of alcohol. The emergency room intake form also stated that Ms. Partain had alcohol on her breath, but did not contain any description of alcohol impairment. He further testified that if Ms. Partain had exhibited signs of impairment; it would have been standard procedure to record those signs on the intake form. On cross-examination, it was pointed out to Dr. Litner that the [ emergency room form stated that Ms. Partain reported that she lost consciousness at the accident and that she was confused at the hospital. He stated that these findings could have been the result of her striking her head during the accident or because she was intoxicated. Dr. Litner also agreed that the two and one half hour period between the time of the accident and the time Ms. Partain’s blood was drawn would have allowed for some of the alcohol in her system to be metabolized, thereby lowering her blood alcohol level.

At the trial of this matter, Ms. Partain was specifically asked if intoxication was the cause of this accident and she responded, yes, that it was.

At trial, it was established that the DOTD was responsible for the end of La-barre Road, and that NOPB was responsible for the railroad tracks.

Anthony Marinello was employed by NOPB at the time of the accident. He stated that while NOPB was a public entity, the City of New Orleans did not support it, and that it generated its own income and it owned property.

Marinello testified that at the time of the accident, the end of Labarre at the canal was marked by a chain and a stop sign secured at each side of the street to a pole. Raymond Lobrano, track supervisor with NOPB, also testified that the end of the street was marked with a chain and stop sign.

Leroy Henderson, a resident of Labarre Road, testified that he had lived in that area for 29 years, and during that time on three occasions a vehicle had crossed the railroad tracks and gone into the canal. At the time of the accident, the end of Labarre was marked with a chain stretched across the end of the street, approximately 3 feet from the ground, and a stop sign hanging from the middle of the chain. He stated that on some occasions, the 1 ¡¡chain and stop sign would be missing. He stated that on the other side of the canal, the road leads to Airline Drive. At night, it sometimes appears that the road goes through to Airline when the chain and sign are not present.

William Duplaisir, Jr. worked for the Jefferson Parish Department of Drainage, and was in charge of maintenance of the Hoey Canal. To maintain the canal, it was necessary to cross the railroad tracks at various places. He testified that the area at the end of the canal was marked with a chain, and a stop sign 3 to 4 feet off the ground. Mr. Pratt Reddy, Director of Drainage for Jefferson Parish testified that his records reflected that from April of 1997 to October of 1998, the drainage department did not use Labarre Rd. to maintain the canal.

Robert Roth testified that during the time of the accident, he was the district maintenance engineer for the DOTD in New Orleans, and was responsible for overseeing the maintenance and operation of DOTD facilities, including roadways, bridges and movable bridges. He stated that it was DOTD’s responsibility to install signs, not NOPB. Mr. Morvant, traffic engineer, would inform him by memorandum of particular problems with projects or maintenance. There was a superintendent who would ride the streets and report problems if seen. He stated that typically a dead end sign would be in advance of the last intersecting street, right past the corner so that a motorist would see it.

Chris Morvant, district traffic engineer supervisor with the DOTD testified that he knew of nothing to show that NOPB requested signage at the end of Labarre. He wrote a report in which he suggested guard rails and signs, and he suggested a physical barrier at the end of Labarre Road. He ^further testified that he was not aware that Jefferson Parish needed access to the canal or he would not have suggested the physical barrier.

Dr. Oscar Franklin Griffith was qualified as an expert in physics and accident reconstruction. He testified as to reaction times of an individual when confronted with an emergency and stated that the average time was 1.1 second. His testimony on direct and cross examination varied the reaction time of Ms. Partain from 1.4 to 1.7 seconds. He further testified that he did not believe that alcohol played a significant role in the accident, based on the reaction of 1.4 seconds. Dr. Griffith calculated that, based the distance and trajectory of the car, Partain had been traveling around 30 miles per hour when she applied her brakes. On cross-examination, and utilizing the 69 feet of skid marks observed by Deputy Thibodeaux, he stated that the car would have been traveling around 43 miles per hour, when Partain slammed on her brakes, and that the car slowed to 30 miles per hour before traversing the canal. Under this scenario he calculated Partain’s reaction time as 1.7 seconds.

Duane Evans, an expert in traffic engineering, examined the area of the accident and concluded that there should have been dead end sign in each block and end of the road markers with a stop sign at the end. He stated that at night, the visibility of a traffic light on Airline Drive across the canal created an illusion that Labarre was a through street. It was his opinion that the road condition was negligent, and that a DOTD inspector should have noticed this condition. He opined that there was no way to be sure whether an intoxicated driver going 35 mph would have stopped, even if the street had been marked as he thought it should have been.

After trial on the merits, the jury found that the DOTD was not negligent. The trial court also found that NOPB was not negligent. The | inverdiets of the court and the jury were made judgments of the court. The trial court, in its reasons for judgment, cited a combination of speed, alcohol and a wet road, and found that Ms. Partain was negligent and that her negligence was the proximate cause of the accident.

In her appeal, plaintiff lists twelve allegations of error, which she consolidates into six issues for review.

In her first argument, plaintiff contends that the trial court erred in qualifying Deputy Peggy Thibodeaux as an expert, and in allowing Deputy Thibodeaux to testify as to her interpretation of the causes of the accident and her assessment of Ms. Partain’s condition. Plaintiff contends that while Deputy Thibodeaux was qualified only as an expert in traffic investigation, she was allowed to testify as to her opinions in the areas of accident reconstruction, traffic engineer, physicist, and physician. Plaintiff further contends that the trial court erred in allowing Deputy Thibodeaux’s opinion testimony concerning Ms. Partain’s intoxicated condition at the time of the accident.

Pursuant to plaintiffs motion, the trial court conducted a Daubert hearing, and ruled that Deputy Thibodeaux could testify as to what she had put in her report investigating the accident, and that she was qualified to give her opinion as an expert regarding the accident as an accident investigator. During the course of the hearing, Deputy Thibodeaux testified that she had been a police officer for fourteen years, and was assigned to the traffic division for ten of those years. As part of her training, Deputy Thibodeaux took accident investigation classes, but not accident reconstruction classes, and also classes for the administration of field sobriety tests.

hrAt trial, the plaintiff re-urged her objection to Deputy Thibodeaux’s report, alleging that she was not qualified to state some of conclusions found therein.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the U.S. Supreme Court said that the trial judge must ensure that the scientific testing admitted is not only relevant but also reliable. The holding of Daubert was extended to include inquires into the admissibility of expert testimony other than scientific testimony. See; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Kumho, the court also explained that the factors in Daubert are not mandatory, and are not necessary in every circumstance. Id. The ultimate decision on whether the factors of Daubert should be used rests with the trial judge. “Whether DaubeH’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” Kumho, 119 S.Ct. at 1176. City of Kenner v. Parker, 05-250 (La.App. 5 Cir. 11/29/05), 918 So.2d 479, 484.

In the Parker case, supra, the court considered that Daubert’s concern was with “determining the admissibility of new techniques as a basis for expert scientific testimony,” citing Merlin v. Fuselier Construction Company, Inc., 00-1862 (La.App. 5 Cir. 5/30/01), 789 So.2d 710, 718. The Parker court further stated that “The trial judge has broad discretion in determining whether to admit or exclude expert testimony, and this Court will not overturn that decision absent a showing of ah abuse of that discretion. Included in that discretion is the trial judge’s decision on whether Daubert’s specific factors are reasonable measures of reliability in a particular case.” at page 484, 113 S.Ct. 2786, (citations omitted.)

Iii>ln this case, we find no error in the trial court’s ruling that allowed Deputy Thibodeaux to testify as to the contents of her investigation report of the accident.

Plaintiff contends that Deputy Thibo-deaux’s testimony included not only her findings as an investigator, but also her opinions of how the accident occurred despite the fact that she was not qualified as an accident reconstructionist. Defendants respond that the testimony to which plaintiff objects was actually elicited by plaintiff. We have reviewed the testimony of Deputy Thibodeaux and we do not believe that she testified outside her area of expertise.

Plaintiff also contends that Deputy Thibodeaux was incompetent to give her opinion regarding the intoxication of Partain. However, intoxication is an observable condition about which a witness may testify. State v. Kestle, 07-1573 (La.12/2/08), 996 So.2d 275. “Expert testimony is not necessary when a factfinder can reasonably draw inferences based on his own knowledge and experience.” Theri-ot v. Lasseigne, 93-2661 (La.9/15/94), 640 So.2d 1305,1308.

Plaintiff argues that the trial court and the jury both found intoxication based on blood alcohol levels alone, despite the fact that “there is no statutory presumption of intoxication in civil cases.” Duzon v. Stallworth, 01-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, 854-855, writ denied, Duzon ex rel. Community of Acquiets and Gains v. Stallworth, 03-0589 (La.5/2/03), 842 So.2d 1101. We find no merit to this assertion.

Deputy Thibodeaux testified as to Ms. Partain’s condition and stated that her observations led to her conclusion that Partain was intoxicated. These observations included that Ms. Partain was stuttering/slurring and smelled strongly of alcohol, and further that she admitted that she had been 11sdrinking. She admitted to consuming 1 daiquiri, 2 beers and 2 shots of tequila. In addition, Ms. Partain herself stated that alcohol consumption was the cause of the accident.

Plaintiff further contends that the trial court should not have allowed Deputy Thibodeaux to state her opinion concerning plaintiffs impairment, alleging that her opinion was contrary to the testimony of Dr. Litner and others, including Dr. Griffith. Plaintiffs complaint goes not to admissibility, but rather to credibility:

The finder of fact is required to assess the credibility of both expert and lay witnesses to determine the most credible evidence. Magee v. Pittman, 98-1164, p. 12 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 742, writ denied, 00-1684 (La.9/22/00), 768 So.2d 602. The appellate court applies the manifest error standard in deciding conflicts between expert and lay testimony. St. Martinville, L.L.C. v. Louisiana Tax Commis sion, 05-457, p. 8 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 44. In applying the manifest error standard of review, the appellate court must determine not whether the factfinder was right or wrong, but whether his finding was a reasonable one. Id.; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993)

Johnson v. E.I. DuPont deNemours & Co., Inc., 7 So.3d 734, 08-628 (La.App. 5 Cir. 1/13/09).

Based on the foregoing we find that the trial court did not err in allowing Deputy Thibodeaux to testify, as an accident investigator, to the contents of her police report and to testify concerning her observations of Ms. Partain’s impairment.

Plaintiff next argues that the trial court erred in failing to liability on the part of DOTD and NOPB. She also contends that the court erred in failing to find a defective condition in the roadway under R.S. 9:2800. In conjunction with this argument, plaintiff also alleges that trial court committed reversible error in faffing to include the elements of LSA-R.S. 9:2800 in its jury interrogatories. In her fourth argument, plaintiff also |14argues that the trial court erred in refusing to allow proffer-3 into evidence, which would have presented evidence to show the defective condition of the roadway. Plaintiff contends that these errors mandate a reversal of the trial court’s ruling and requests that this Court conduct a de nova review of this case. However, as discussed infra, we do not find reversible error in either the court’s failure to give defendant’s requested jury charge or in its failure to admit proffer-3 into evidence. Accordingly, our review of the factual findings of the trial court is governed by the manifest error-clearly wrong standard.

The manifest error-clearly wrong standard authorizes an appellate court to reverse a trial court’s factual finding only if it finds from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). This standard requires that the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding; rather, the reviewing court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The appellate court must determine whether the fact finder’s conclusion was reasonable, not whether the fact finder was right or wrong. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly wrong. Id.

| ifiThe issue of liability of the defendants herein is governed by LSA-R.S. 9:2800, which provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

In order to recover under this statute, a plaintiff must prove that: (1) the defendant owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and (4) the defect was a eause-in-fact of plaintiffs’ injuries. Charan v. Bowman, 06-0882 (La.App. 1 Cir. 8/1/07), 965 So.2d 466, 469-470, writ denied, 07-1773 (La.11/9/07), 967 So.2d 505. To recover, plaintiff bears the burden of proving all these inquiries in the affirmative and failure on any one is fatal to the case. Netecke v. State ex rel. DOTD, 98-1182 (La.10/19/99), 747 So.2d 489.

In this case, the plaintiff failed to prove that the roadway was defective, and that the condition of the roadway caused the accident.

Concerning the condition of the roadway, whether it was unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong. Rizzuto v. State, Dep’t of Transp. and Dev., 2002-1687 (La.App. 4 Cir. 3/17/04), 870 So.2d 1034, 1041. Ms Partain stated that she did not see a dead end sign when she | ^entered the last block of Labarre, however, she admitted that she had seen several dead end signs. Ms. Partain further stated that she did not see a barrier when she entered the roadway, however pictures of the accident show the chain of the barrier stretched across the hood of the car. While Ms. Partain stated that she did not see a stop sign, several witnesses testified that when the chain was there, the stop sign was also there. In addition, while it was acknowledged that this may have not been the best marking of the roadway, a rational trier of fact could have found, and the trial court did so find, that this method of marking the dead end was not unreasonably dangerous.

In addition, a rational trier could have found that the accident was caused, not by the method of marking the roadway to show that it ended, but by Ms. Partain’s intoxication. Deputy Thibodeaux testified that Partain exhibited intoxicated behavior and her blood level alcohol was .15 over two hours after the accident. In addition, Ms. Partain herself testified that alcohol was the cause of the accident.

Accordingly, we cannot find that the trial court was manifestly wrong in concluding that NOPB was not liable. Also we cannot find that the jury was wrong in concluding that DOTD was not negligent.

To support her request that this Court conduct a de novo review, plaintiff argues that the trial court erred in not giving his suggested jury charges. She further contends that the court’s jury charges, especially charges one and two concerning the negligence of the DOTD and NOPB were deficient.

LSA-C.C.P. Article 1812 provides that the court must inform the parties of the special verdict form and instructions it intends to submit to the jury within a reasonable time prior to their argument to the jury. If an issue |17of fact raised by the pleadings or by the evidence is omitted, the parties waive their objection, unless they raise the issue before the jury retires. Soares v. Lewis, 566 So.2d 129 (La.App. 5 Cir. Jun 25, 1990).

In this ease, while plaintiffs counsel objected to the trial court’s failure to use his jury interrogatory form, he did not specifically object to jury charges one and two, of which he now complains. By failing to make a specific objection to those interrogatories before they were presented to the jury, plaintiff her right to have the issue considered on appeal. Vaughan Contractors, Inc. v. Cahn, 629 So.2d 1225 (La.App. 4 Cir. Nov 30, 1993) writ denied 94-0393 (La.4/22/94), 637 So.2d 156,

Also in conjunction with this argument of liability, Plaintiff argues that the trial court erred in failing to allow Proffer-3, a letter and attached diagram prepared by Chris Morvant of DOTD. These documents were the subject of a motion in limine prior to trial, at which the trial court denied the introduction of the report. Plaintiff filed an application for writ of review from that decision, and this Court denied relief, stating that:

Third, the trial judge did not allow the DOTD memorandum into evidence. Instead, the ruling allows evidence concerning the memorandum to be elicited through the testimony of DOTD employees. To the extent that relator challenges the ruling denying its admissibility, we conclude the trial court did not err in ruling the memorandum was inadmissible. See, Palacios v. Louisiana and Delta R.R., Inc., 740 So.2d 95 (La.1999).

Gonzales v. State of Louisiana Department of Transportation and Development, et al, 07-785 (La.App. 5 Cir. 10/26/07)(unpublished.)

In this appeal, plaintiff alleges that Mor-vant’s letter was admissible as it was not part of a federally mandated study. Plaintiff requests that this Court reverse itself and consider the memorandum and diagram.

The record reflects that plaintiff and defendants conducted extensive cross-examination of Mr. Morvant concerning the contents of the letter and 11Rdiagram, and therefore any error in denying their admittance into evidence was harmless.

Plaintiff next raises the issue of comparative fault and challenges the failure of both the court and the jury to find any comparative fault on the part of defendants. Plaintiff contends that defendants were comparatively at fault in the cause of the accident, based on the condition of the roadway. She further contends that she should not be found comparatively at fault for riding with an impaired driver, because it is her contention that Partain was not materially impaired.

Because we find that neither the trial court nor the jury committed manifest error in finding that there was no negligence on the part of defendants, we also find that there was no error in the failure to assign comparative fault to those defendants. Furthermore, because Ms. Partain and/or her insurer were not parties at the time of trial, and there is no judgment of liability against them, any question of plaintiffs comparative negligence is moot.

In her sixth and last issue, plaintiff alleges that the trial court erred in allowing a HIPPA (the federal Medical Privacy Act) violation to go uncorrected. Plaintiff alleges that defense counsel had met with Dr. Troxler without medical releases from her. Plaintiff admits that she does not know what was said at this “meeting” between Troxler and defense counsel.

Both defendants state that NOPB’s attorney only asked general questions of Dr. Troxler which were not in violation of HIPPA. They further argue that since the issue of damages was never reached, any alleged violation was harmless. Finally, they allege that plaintiff waived her objection, because the trial court told the attorneys that she was going to instruct the jury to disregard any reference to a violation of patient-client | ^confidentiality, to which the plaintiffs attorney replied, “That’s fine. Let’s do that.”

Based on the record before us, we find that plaintiff did not prove a violation of her HIPPA rights. We further find that plaintiff waived any objection she might have had.

For the above discussed reasons, the judgment of the trial court is affirmed. Costs are assessed against appellant.

AFFIRMED.

      . Morvant’s report was the subject of Proffer-3, discussed infra. Although the report itself was deemed inadmissible, this court held that Morvant could discuss its contents.

      . In her list of arguments, plaintiff alleges that the trial court erred in failing to admit Proffers 1, 2 and 3. The admissibility of proffers 1 and 2 are not briefed and are deemed abandoned.


author: CHARLES R. JONES, Judge.

text:
    ORX RESOURCES, INC. v. MBW EXPLORATION, L.L.C. and Mark B. Washauer. ORX Resources, Inc. v. MBW Exploration, L.L.C. and Mark B. Washauer.
    Nos. 2009-CA-0662, 2009-CA-0859.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.

      Russell L. Foster, M. Taylor Darden, Carver Darden Koretzky Tessier Finn Blossman & Areaux, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Michael A. Patterson, S. Brooke Barnett, Adrian G. Nadeau, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendants/Appellants.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge EDWIN A. LOMBARD.
   CHARLES R. JONES, Judge.

_jjThe Appellants, MBW Exploration, L.L.C. (“MBW”) and Mark Washauer, seek review of a judgment of the district court granting a motion for summary judgment in favor of ORX Resources, Inc. (“ORX”). The court held that MBW and Mr. Washauer are hable in solido to ORX for breach of contract, and awarded ORX attorneys fees. For the reasons that follow, we affirm the judgment determining that Mr. Washauer operated MBW as his alter ego, and allowing ORX to pierce the veil of an LLC.

On January 16, 2003, ORX entered into the “Clovelly Purchase Agreement” with Coastline Oil & Gas, Inc. Pursuant to this Agreement, ORX purchased certain oil, gas and mineral leases/interests in a tract of land located in Lafourche Parish, known as the “Clovelly Prospect.” ORX partnered with other entities, including MBW, to share in the expense and potential profits of the venture to explore and develop the Clovelly Prospect. The partnering parties entered into a Joint Operating Agreement (“JOA”) and the Clovelly Prospect Participation Agreement (“Participation Agreement”). Mr. Washauer signed these documents in October of 2003 and December of 2004, respectively, on behalf of MBW, in his capacity as a “Managing Member.” However, MBW did not come into existence |2until July of 2005, when its articles of organization were filed with the Louisiana Secretary of State.

The JOA provided that ORX was to serve as the “Operator” drilling a well within the Clovelly Prospect. It further provided that the non-operating working interest partners, like MBW, would pay their proportionate share of the costs in exchange for a corresponding working interest ownership share in the Clovelly Prospect. The drilled well was governed by the Participation Agreement, which provided that MBW had a working interest in the Clovelly Prospect whereby MBW would share in 2.5% of the costs incurred, and would gain a proportionate share of the returns, if any, produced by the well.

Later, ORX submitted an Authorization for Expenditure (“AFE”) to MBW for approval, which Mr. Washauer signed in his own name. Additionally, he paid MBW’s participation fee with a check drawn from the account of another entity, MBW Properties, LLC.

In 2006, ORX, as the well Operator, began planning the Allain LeBreton Well No. 2 in the Clovelly Prospect, (“the Well”), which was the “initial well” called for in the Participation Agreement. Adjustments were made in the plan to drill the Well, including the issuance of a revised AFE, which Mr. Washauer signed on MBW’s behalf. Mr. Washauer paid the full amount of MBWs share of an ORX cash call invoice of $59,325 with a personal check.

The well proved to be unsuccessful, and was ultimately plugged. MBW’s unpaid share of expenses for said project amounted to $84,220.01, for which ORX demanded payment via correspondence, but to no avail. As a result, ORX filed suit for breach of contract against both MBW and Mr. Washauer (“the Appellants”).

lain January of 2009, the case was heard by the district court on cross-motions for summary judgment. The district court denied the Appellants’ motion, and granted summary judgment in favor of ORX. The Appellants timely filed a motion for sus-pensive appeal from this judgment. Subsequently, the district court granted ORX’s motion for attorneys fees and issued a Final Judgment in March of 2009, holding:

1.) the Appellants liable, in solido, to ORX in the principal amount of $84,220.01;
2.) awarding reasonable attorneys’ fees in the amount of $43,158.50;
3.) awarding prejudgment and post-judgment interest and court costs, and
4.) awarding all other costs related to the collection of MBW’s unpaid balance.

The Judgment further provided that “ORX’s rights to bring future claims for attorneys’ fees and costs relating to the appeal of this case and/or the collection of this Judgment are reserved.” The Appellants filed a second motion for suspensive appeal, which was granted on May 14, 2009. The two appeals, bearing Docket Nos. 2009-CA-0662, and 2009-CA-0859, were consolidated on June 18, 2009.

The Appellants raise four assignments of error:

1. the district court erred in ruling that ORX met its burden of proof to hold Mr. Washauer personally liable for the debts of MBW;
2. the district court erred in ruling that the alter-ego theory of the corporate veil piercing applied to Louisiana limited liability companies;
3. the district court erred in ruling that ORX met its burden of proof to establish that Mr. Washauer was the alter ego of MBW; and
|44. the district court erred in awarding ORX $43,158.50 in attorneys fees.

We will not address the Appellants’ assignments of error in the above-referenced order. We will initially discuss what the Appellants’ have designated as their second assignment of error. Thereafter, the first and third assignments of error will be discussed together because they both involve Mr. Washauer. Review of the Appellants’ fourth assignment of error will be followed by our analysis of ORX’s request for attorneys fees. Lastly, we will address the motion to enroll

Appellate court review of a summary judgment is de novo. Dominio v. Folger Coffee Co., 2005-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16. Furthermore, a motion for summary judgment will be granted 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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. La. C.C.P. art. 966(C)(2). 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.

We first address whether the district court erred in ruling that the alter-ego theory of the corporate veil piercing applied to Louisiana limited liability companies. In support of this argument, the Appellants’ allege the district court |fierred in applying this theory in the instant case because theories of veil piercing and/or other mechanisms that attempt to subject LLC members to personal liability are in direct conflict with Louisiana statutory law.

The Appellants assert that Louisiana’s LLC law does not impose member liability that parallels a shareholder’s potential exposure created by disregarding certain business formalities; furthermore, the failure to follow certain formalities is not ground for imposing liability on members or managers for the debts and obligations of the LLC under La. R.S. 12:1319(C). Lastly, the Appellants maintain that our circuit has never allowed the veil of a LLC to be pierced, and that we have held that absent particularized claims of fraud, breach of a professional duty or other negligent or wrongful act done outside of one’s capacity as a member, the limitation of liability afforded to LLC members cannot be disregarded in favor of individual liability. Curole v. Ochsner Clinic, L.L.C., 01-1734 (La.App. 4 Cir. 02/20/02), 811 So.2d 92; Roth v. Voodoo BBQ, 07-0295, (La.App. 4 Cir. 08/01/07), 964 So.2d 1095.

General Louisiana LLC law pursuant to La. R.S. 12:1320(B) provides that:

• members are not personally liable for the debts, obligations and other liabilities of the LLC to third parties, and
• a LLC member is not a proper party in any proceeding against the LLC.

However, third parties can bring claims against members and managers for “any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud | (¡practiced upon it by him.” La. R.S. 12:1320(D). Our Court has explained that “[t]o have meaning within the entire statute, the phrase ‘or other negligent or wrongful act by such person’ must refer to acts done outside one’s capacity as a member, manager, employee, or agent of the limited liability company.” Curole, p. 7-8, 811 So.2d at 97. [Emphasis added.]

As we reasoned in Curóle, the provisions of La. R.S. 12:1320(D) provide for the piercing of a LLC’s veil when the situation so warrants. We explained in Curóle that:

... the only case applying Louisiana law allowing the veil of an [sic] limited liability company to be pierced in the same way that the view of a corporation is pierced is Hollowell v. Orleans Reg’l Hosp., 217 F.3d 379, 381 (5th Cir.2000). In Hollowell, the court held that a court may allow the piercing of the veil of a limited liability company based on a totality of the circumstances review.

Id., p. 6, 811 So.2d at 96. We interpret that “a totality of the circumstances review” encompasses the possibility that a district court can allow a district court to pierce the veil of a LLC under the alter ego doctrine. Furthermore, as the Louisiana Supreme Court has explained the veil of an entity can be pierced “... where the corporation is found to be simply the “alter ego” of the shareholder. It |7usually involves situations where fraud or deceit has been practiced by the shareholder acting through the corporation.” Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164, 1168 (La.1991) (citing LSA-R.S. 12:95; Dillman v. Nobles, 351 So.2d 210 (La.App. 4th Cir.1977); Bossier Millwork & Supply Co. v. D. & R. Const. Co., Inc., 245 So.2d 414 (La.App. 2d Cir.1971)). The Supreme Court further reasoned that “[i]n order properly to disregard the corporate entity, one of the primary components which justifies piercing the veil is often present: to prevent the use of the corporate form in the defrauding of creditors.” Id., 590 So.2d at 1169 (citing Liberto v. Villard, 386 So.2d 930 (La.App. 3d Cir.1980)).

To apply this standard in the instant matter, piercing the veil of an LLC is justified to prevent the use of the LLC form to defraud creditors. Under our de novo review, we find that the district court did not err in determining that the alter ego theory of corporate veil piercing applies to a Louisiana limited liability company, under the facts of this case, where it appears that Mr. Washauer used MBW as shell and tried to avoid paying a legitimate debt of the LLC. This assignment of error has no merit.

The Appellants’ next two assignments of error center on whether Mr. Washauer can be held personally liable for MBW’s indebtedness to ORX by piercing the veil of an LLC. The Appellants’ first assert that the district court erred in ruling that ORX met its burden of proof to hold Mr. Wash-auer personally liable for the debts of MBW. The Appellants contend that pursuant to Louisiana’s LLC laws, Mr. Wash-auer is statutorily immune from personal liability and was not a proper party defendant.

In response, ORX avers that even though LLC members generally are not liable for LLC debts to third parties, the exception under La. R.S. 12:1320(D) | applies where Mr. Washauer purported to act on behalf of an empty shell company, MBW, that did not exist when the JO A and Participation Agreement were signed. Further, after the company did exist, it never had a bank account, and never paid its invoices on its own behalf for the Clov-elly Prospect. The first invoice was paid by a separate company controlled by Mr. Washauer: MBW Properties, LLC. The second invoice was paid by Mr. Washauer himself.

Secondly, the Appellants aver that the district court erred in ruling that ORX met its burden of proof to establish that Mr. Washauer was the alter ego of MBW. The Appellants contend that the district court examined five (5) factors considered by courts to pierce the corporate veil and that none of these factors were met in the instant case. We disagree.

The Louisiana Supreme Court has identified five non-exclusive factors to be used in determining whether to apply the alter ego doctrine:

1) commingling of corporate and shareholder funds;
2) failure to follow statutory formalities for incorporating and transacting corporate affairs;
3) undercapitalization;
4) failure to provide separate bank accounts and bookkeeping records; and
5) failure to hold regular shareholder and director meetings.

Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164, 1168 (La.1991) (citing Kingsman Enterprises v. Bakerfield Elec. Co., 339 So.2d 1280 (La.App. 1st Cir.1976); Smith-Hearron v. Frazier, Inc., 352 So.2d 263 (La.App. 2d Cir.1977), writ denied, 353 So.2d 1337 (La.1978)).

A discussion of the Riggins factors will resolve how Mr. Washauer can be held personally liable for MBW’s indebtedness to ORX by piercing the veil of an LLC. The first Riggins factor to be considered is whether commingling of ^corporate and shareholder funds occurred. The Appellants assert that while neither of MBW’s check payments to ORX were made directly by MBW, both payments included notations that they were being paid on MBW’s behalf. These payments were interest free loans made to MBW. Our jurisprudence allows a shareholders and/or LLC members to make interest free loans to corporations/LLCs without this act being grounds for invoking the alter ego doctrine. ORX contends that funds were commingled as evidenced by the fact that the two (2) payments made by MBW to ORX were made through third parties. MBW Properties, LLC paid the participation fee of $6,826.00, and Mr. Washauer himself paid the initial cash call of $59,325.00. No payments were made by MBW itself to ORX.

The second Riggins factor to be considered is whether Mr. Washauer failed to follow statutory formalities for incorporating and transacting corporate affairs. Mr. Washauer avers that he complied with all statutory requirements in forming MBW. Under La. R.S. 12:1310, when immovable property is acquired by an individual — who is acting in any capacity for and in the name of any LLC — and the LLC is later issued a certificate of organization, the LLC’s existence is retroactive to the date of acquisition of the interest in the immovable property. Thus, when MBW acquired a 2.50% interest in the Clovelly Prospect, which included oil, gas and mineral leases, MBW acquired an interest in immovable property because a mineral lease is a mineral right equating to an incorporeal immovable. Thus, while MBW was issued its certificate of organization on July 20, 2005, its creation was retroactive to the date it acquired its interest in the Clovelly Prospect, October 20, 2003.

ImORX contends that in Louisiana, a LLC is not formed until “the articles of organization are signed and filed with the secretary of state.” La. R.S. 12:1304(B). Thus, MBW did not exist until July 20, 2005, when said statutory formalities were met. While Mr. Washauer signed the JOA (in January of 2003) and the Participation Agreement (in December of 2004), MBW did not exist, and this evidences that he did not observe statutory formalities in creating MBW.

The third Riggins factor to be reviewed is whether MBW was undercapitalized. MBW maintains that it was capitalized by the payments made on its behalf to ORX, and our jurisprudence allows individuals to create minimally capitalized entities like LLCs to limit their individual liability. ORX avers that MBW never owned any assets apart from its working interest in the Clovelly Prospect wells. Further, as discussed above, MBW never used its own capital to pay its expenses for this venture. Thus, MBW was not capitalized at all.

The fourth Riggins factor to be reviewed is whether the Appellants failed to provide separate bank accounts and bookkeeping records. The Appellants assert that after issuing a check for $59,325.00 to ORX on MBW’s behalf, Mr. Washauer did not see the point in creating a checking account and getting a tax ID for a one time investment. He anticipated that the above-referenced check was going to be the last payment made relative to the Clovelly Prospect. He further contends that evidence of a common bank account is not sufficient to prove that a LLC entity was disregarded to the extent that it became indistinguishable from its members. ORX counters that a lack of a banking account and other accounting records evidences that the Appellants failed to maintain separate accounts.

The fifth Riggins factor to be considered is the failure to hold regular shareholder meetings. The Appellants argue that LLCs are not required to comply |nwith corporate formalities. Under Louisiana LLC law, members or managers of LLCs do not have to hold meetings, keep minutes or act through formal resolutions. Additionally, ORX knew that it was only contracting with MBW because all documents executed between the entities identified MBW as the signatory and indicated that Mr. Washauer was signing the documents on behalf of MBW. Nothing in the JOA indicated that he was signing said document on his own behalf. Lastly, no correspondence related to the Clovelly Prospect was sent directly to him, nor did ORX make “cash calls” or AFEs to him personally. ORX does not dispute that LLC’s are not required to observe the above-referenced formalities. And, in this instance Mr. Washauer’s admission that he has only held informal MBW meetings and/or discussions on the creation and operation of MBW, and that he has not spoken to MBW’s other member about MBW in over a year further evidences that the corporate veil should be pierced. ORX avers that the totality of the circumstances supports piercing the corporate veil where Mr. Washauer signed an AFE in December of 2004 in his own name, and he has not provided a reason for MBW’s refusal to pay a valid debt.

In applying the Riggins factors, under our de novo review, we find that Mr. Washauer’s activities on behalf of MBW do merit the piercing of the veil of this LLC. Commingling of the LLC’s funds occurred with the funds of Mr. Washauer and a separate company of his. This commingling occurred because MBW was un-dercapitalized, and did not have a separate bank account to transact its own affairs. Furthermore, at the time MBW began contracting with ORX, it was not yet recognized as an LLC by the Louisiana Secretary of State. Lastly, while LLC’s are not bound by corporate laws to hold regular meetings, the fact that MBW has not had a meeting in over a year further evidences that Mr. Washauer was operating |12MBW at his leisure and direction. Thus, we find that the district court did not err in determining that MBW was being operated as the alter ego of Mr. Washauer under the Riggins factors, and therefore, he can be held personally liable jointly and solidarily with MBW. These assignments of error are without merit.

The fourth assignment of error raised by the Appellants is that the district court erred in awarding ORX $43,158.50 in attorneys fees. District courts are vested with great discretion in arriving at an award of attorneys’ fees. Filson v. Windsor Court Hotel, 2007-0755, p. 6 (La.App. 4 Cir. 7/23/08), 990 So.2d 63, 67 (citing Troth Corp. v. Deutsch, Kerrigan & Stiles, L.L.P., 06-0457 (La.App. 4 Cir. 1/24/07), 951 So.2d 1162, 1165 (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983))). “The exercise of this discretion will not be reversed on appeal without a showing of clear abuse of discretion.” Id. Furthermore, a “reasonable attorney’s fee is determined by the facts of an individual case.” Id. at 6, 434 So.2d at 67 (citing Gottsegen v. Diagnostic Imaging Servs., 95-977 (La.App. 5 Cir. 3/13/96), 672 So.2d 940, 943).

The Appellants assert that the district court’s award is excessive pursuant to Rule 1.5 of the Rules of Professional Conduct (which mandates that a lawyer’s fee be reasonable) and La. R.S. 9:2781 (reasonable attorney’s fees for the prosecution and collection of the claim can be collected). The Appellants aver that ORX’s bill of $43,158.50 in attorneys fees is not reasonable where the instant case involved: limited written discovery, limited document production, two depositions, two 1 ^hearings and no trial. The case was allegedly not highly complex and was determined on a motion for summary judgment. The fees in this case were fixed. Thus, the Appellants assert that there was no risk factor involved that would warrant an award of attorney’s fees over half of the principal amount of ORX’s claim.

ORX maintains that the Appellants cannot prove that the district court abused its discretion in applying the above-referenced factors, especially where the conduct of the Appellants in contesting their underlying liability contributed greatly to the amount of work ORX’s counsel had to perform. We agree. There is no indication that the district court abused its vast discretion. The district court, as the trier of fact, was in a superior position to observe the work and effort of ORX’s attorneys in the case sub judice. Therefore, we cannot say that the district court clearly abused its discretion based on the record before us.

Next we address the request of ORX that it be awarded $23,832.00 in attorneys fees for work performed by its counsel on appeal. ORX avers that its counsel should be compensated for briefing a response to the instant appeal, and for presenting oral argument on the same. It suggests that $17,832 in attorneys fees was incurred by the time its Appellee’s brief was filed with our court, and that approximately $5,000.00 is owed for presenting oral argument on appeal.

La. C.C.P. art. 2164 provides:
[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

114In the instant case, an attorney prepared and filed an appellee brief, and presented oral argument before this court, but did not file an answer to the appeal asking for an award of attorneys fees. We note that pursuant to La. C.C.P. art. 2164, an appellate court has the discretion to tax costs “of the lower or appellate court, or any part thereof, against any party to the suit, as ... may be considered equitable.” Exercising our discretion in this matter, we deny the ORX’s request for additional attorneys’ fees, but we assess the costs incurred by ORX to the Appellants.

Lastly, we grant the motion to enroll as additional counsel of Adrian G. Nadeau on behalf of the Appellants.

DECREE

For the foregoing reasons, the request of ORX Resources, Inc. for attorneys fees on appeal is denied. In all other respects, the judgment of the district court is affirmed, and the costs of this appeal are to be paid by MBW Exploration, L.L.C. and Mark Washauer. The motion to enroll as additional counsel of Adrian G. Nadeau, on behalf of the MBW Exploration, L.L.C. and Mark Washauer, is granted.

AFFIRMED; MOTION TO ENROLL AS ADDITIONAL COUNSEL GRANTED.

      . La. R.S. 12 § 1320, entitled Liability to third parties of members and managers, states:
      A.The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
      B. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
      C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person's rights against or liability to the limited liability company.
      D. Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

      . Under Rule 1.5 factors to be considered in determining reasonableness are: 1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3) the fee customarily charged in the locality for similar legal services; 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or by the circumstances; 6) the nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and 8) whether the fee is fixed or contingent.