author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Roland Damond FOSTER, Appellant.
    No. 43,777-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2009.
    Rehearing Denied Feb. 19, 2009.

      Kenota L. Pulliam, Joseph R. Keene, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

11 The defendant, Roland Foster, was convicted after bench trial of Possession with Intent to Distribute a Schedule II Controlled Dangerous Substance, namely Cocaine, and Possession of Marijuana, Third Offense. He was found to be a habitual offender and then was sentenced to two years at hard labor for the marijuana conviction to run concurrently with a sentence of 35 years at hard labor without benefit of probation or suspension for the third felony offense conviction of possession of cocaine with intent to distribute. The defendant now appeals. For the reasons set forth below, we affirm the defendant’s conviction, but vacate the defendant’s sentence, and remand the matter for proceedings in accordance with the habitual offender issue.

FACTS

On the morning of January 29, 2004, the defendant and Lorna Wilson were sleeping in the master bedroom of a house located at 4118 Martha Street in Shreveport. The defendant and Ms. Wilson were awakened when officers entered the home to execute a search warrant. Agent John Witham of the Caddo Parish Sheriffs Office was the first officer to enter into the residence. He approached the defendant and Wilson in the master bedroom and ordered the defendant to get onto the ground. Agent Witham testified that he witnessed the defendant attempting to reach for a SKS rifle that was located in a corner of the room. The defendant and Wilson were subsequently removed from the master bedroom, placed in the living room, and read their Miranda rights, while the officers conducted the search. The officers located marijuana on the floor of the master bedroom, as well as 12crack cocaine in a blue slipper that Agent Witham stated he had witnessed the defendant attempting to slide under the bed when Witham entered the room. The defendant asserted that the officer could not have seen him attempt to kick or slip anything under the bed because, as photos of the scene seemed to indicate, the bed was simply a mattress and box spring set on the floor.

A total of 25 grams of cocaine were found in the slipper, 35 grams of marijuana were found in a jacket located in the master bedroom, and approximately 40 grams of marijuana were found packaged on the floor of the master bedroom. Additionally, approximately $600 cash was found in the pants pocket of a pair of jeans that belonged to the defendant, along with digital scales near the marijuana on the floor. Agent Shron Johnson also found a partially smoked marijuana cigarette on the floor of the master bedroom. Agent Witham testified that the amount of narcotics found in the house coupled with the money and the digital scales was consistent with possession with intent to distribute.

Agent Witham testified that the defendant admitted that the narcotics belonged to him. The defendant asserted that he only said the narcotics were his because Wilson was in college and he wanted to help keep her out of trouble.

While the officers were waiting to transport the defendant and Wilson from the home, another man approached them, later identified as Jacoby Foster. Agent Wit-ham said that Jacoby Foster, the defendant’s cousin, stated that the marijuana belonged to him, but made no mention of the U,cocaine. Wilson and the defendant, as well as Jacoby Foster, Ruthie Foster (the defendant’s grandmother), and Orlando Foster (the defendant’s cousin and Ja-coby Foster’s brother), testified that Jaco-by Foster had stated that everything in the house was his.

Lieutenant Owen McDonnell was called to testify regarding the defendant’s prior convictions for possession of marijuana, but both parties stipulated as to the evidence of the prior convictions.

Several of the defense witnesses referred to the house at 4118 Martha Street as a “family house,” stating that all members of the family were permitted to use it. However, Jacoby Foster testified that only two people lived in the house at that time: himself and his “Auntie.”

Wilson and the defendant both testified that there was no power in the house at 4118 Martha Street. They claimed that they were not aware of anything in the house because they arrived late at night, had sex, fell asleep and did not wake up until the police officers entered the home the following morning.

The trial court found the defendant guilty of both Possession With Intent to Distribute a Schedule II, Controlled Dangerous Substance, Cocaine, and Possession of Marijuana, Third Offense. Because the trial court was unable to determine if the defendant had been guilty of being a felon in possession of a firearm beyond a reasonable doubt, it found the defendant not guilty on that charge.

Motions for post-verdict judgment of acquittal and requesting post-conviction bail was filed and denied. The state initially filed a multiple |,[Offender bill; however, the original multiple offender bill mistakenly charged the possession of marijuana conviction as the third offense and contained the wrong date The trial court permitted the state to amend the bill and an amended bill of information was ultimately filed which charged the cocaine conviction as the third offense and contained the correct conviction date. The defendant waived arraignment and pled not guilty to the multi-bill. Lieutenant Owen McDonnell was called to testify regarding the identity of the defendant through fingerprint analysis. McDonnell stated that the fingerprints found on the two prior bills of information were those of the defendant. The trial court found the defendant to be a third felony habitual offender.

Both parties agreed that sentencing could occur that same day and the defendant was sentenced to two years’ imprisonment at hard labor for the charge of Possession of Marijuana, Third Offense, to be served concurrent with the Habitual Offender Sentence of 35 years at hard labor “without benefit of probation or suspension.” In rendering the sentence for the habitual offender conviction, the trial court stated, “On the other charge, the Court has reviewed Code of Criminal Procedure Article 894.1, I would like to ask if either side has any information they would like to provide that deals with any of the sentencing guidelines.” The trial court then asked the defendant’s age, his education level, the school from which he graduated |s(which the trial court noted was a disciplinary school), the defendant’s work history, his family situation and whether he had children, his prior criminal history, and the amount of drugs involved in the present case. The court then stated:

All right. As I said, I reviewed 894.1. Essentially, it’s the sentence of the Court that you serve 35 years at hard labor. That’s without probation or suspension, and costs to be paid through Inmate Banking. I believe that any other sentence would deprecate the seriousness of the exposure. His exposure was 20 to 60, it’s still something on the low end of the exposure. But I note his age of 29 that, at least, will put him out of the drug business until he gets considerably older, hopefully entirely out of the drug business. I believe the evidence showed he was well into the drug business. He has a history of problems with the law, some don’t rise to the level of felonies, but they still show — they still show a resistance to proper behavior, starting out with Oak Terrace and working his way forward through some of the various misdemeanors and then the unauthorized use and the other drug charges. So I believe that anything less — I believe that’s the least sentence I can give that is consistent with what we’ve seen and what his record is.

The defendant now appeals his conviction and sentence.

DISCUSSION

Sufficiency of the Evidence

In the defendant’s first assignment of error, he contends that the evidence is insufficient to support the verdict of guilty of Possession of Marijuana Third Offense and Possession with Intent to Distribute a Schedule II, Controlled Dangerous Substance. The defense argues that no evidence was presented at trial to support the requirements of La. R.S. 40:966 C & D(3). More specifically, the defense argues that there was no evidence presented to show that the defendant had the intent to distribute the narcotics allegedly in his possession and further, that no evidence was | (¡presented to show that he even had knowledge of the presence of the narcotics in the home. The defense argues that the elements of distribution of cocaine were not met because the state failed to prove the existence of all of the following: “(1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of the transfer; and (8) the exact identity of the controlled dangerous substance.”

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, unit denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson vJ^Virginia and does not extend to credibility determinations made by the trier of fact. State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, unit denied, 2002-2634 (La.9/05/03), 852 So.2d 1020; State v. Williams, 448 So.2d 753 (La.App. 2d Cir. 1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2d Cir.9/18/02), 828 So.2d 622, units denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

To support a conviction for possession of a controlled dangerous substance the state must prove the defendant was in possession of the illegal drug and that he knowingly possessed the drug. State v. Matthews, 552 So.2d 590 (La.App. 2d Cir.1989), writ denied, 559 So.2d 137 (La.1990). The state need not prove that the defendant was in actual physical possession of the drugs found; constructive possession is sufficient to support a conviction. State v. Matthews, supra; State v. Moore, 490 So.2d 588 (La.App. 2 Cir.1986). Constructive possession means having a | ¡¡relationship with an object such that it is subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Perez, 569 So.2d 609 (La.App. 2d Cir. 1990), writ denied, 575 So.2d 365 (La. 1991).

Factors which may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that illegal drugs were present, evidence of recent drug use, the defendant’s proximity to the drugs, and evidence the area is frequented by drug users. State v. Barthe, 2000-2404 (La.App. 4th Cir.12/27/01), 806 So.2d 53. Another consideration is the defendant’s relationship with the person in actual possession of the drugs. State v. Toney, 99-1574 (La-App. 4th Cir.11/8/00), 796 So.2d 1, unit denied, 2000-3474 (La.11/16/01), 802 So.2d 619.

To convict a defendant of possession of a controlled dangerous substance with intent to distribute, the state must prove beyond a reasonable doubt that he knowingly or intentionally possessed the contraband and that he did so with the intent to distribute it. La. R.S. 40:967; State v. Moore, 40,311 (La-App. 2d Cir.1/13/06) 920 So.2d 334, unit denied, 2006-2267 (La.6/1/07), 957 So.2d 167.

The test for determining whether intent to distribute exists includes five factors: (1) packaging in a form usually associated with distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an inference of intent to | adistribute; (4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute. State v. Clark, 35,272 (La.App. 2 Cir. 12/5/01) 803 So.2d 280. Testimony of street value and dosage of the drug is also relevant to the issue of intent to distribute. State v. Tornabene, 337 So.2d 214 (La.1976); State v. Gladney, 29,791 (La.App. 2d Cir.9/24/97), 700 So.2d 575.

In the instant case, the defendant was charged with possession of marijuana, third offense and possession of cocaine with intent to distribute, for which he was also subsequently charged as a multiple offender and sentenced accordingly.

First, in order to prove possession of marijuana, third offense, the state must prove that the defendant was in possession of marijuana, actual or constructive, and that the possession with which he was charged this time was the third time he would be convicted of possession of marijuana. In order to prove possession of cocaine with intent to distribute, the state must prove that the defendant knowingly and intelligently possessed the cocaine and did so with the intent to distribute it. The intent can be inferred from other circumstances.

Here, a large amount of evidence was presented concerning the defendant’s possession of the marijuana. Agent John Witham, the first officer in the house, testified that he entered the master bedroom where the defendant and Wilson were sleeping and ordered them to remain still, followed by an order to the defendant to get on the floor. The defendant did |1(lso and Witham testified that he witnessed the defendant attempting to shove a slipper under the bed. Subsequent testimony and photographic evidence suggested that it would have been impossible for the defendant to shove a slipper under the bed since the bed consisted of a mattress and box spring resting directly on the floor. Wit-ham, along with several other officers, searched the house pursuant to the search warrant and located, in total, 25 grams of cocaine inside the slipper and 75 grams of marijuana in various other locations. The officers also located two digital scales in the master bedroom and $600 in a jacket that also contained the remaining 35 grams of marijuana. Agent Carl Townley, a Sergeant with the Caddo/Shreveport Narcotic Unit, testified that the amount of cocaine and other evidence found was consistent with distribution.

No drugs were found on the body of the defendant. However, constructive possession does not require that a defendant be in actual physical possession of any substance in order to be found guilty of possession. A defendant can be found to be in constructive possession of a controlled dangerous substance if he exercises dominion and control over that substance. The factors that demonstrate dominion and control are listed above. Here, there was evidence of recent drug use, because Agent Shron Johnson recovered a partially smoked marijuana cigarette that she testified had been recently smoked. The defendant was found in the same house as all of the drugs, and the vast majority of the drugs, along with drug paraphernalia, were found in the master bedroom where the defendant and Wilson were sleeping. The defendant and his witnesses testified that he hadjjjno knowledge of the drugs in the house, because he did not live there most of the time and he entered the house after dark when there was no power and could barely see what was going on around him, let alone notice the presence of drugs in the room he was in. Witham testified, however, that the defendant admitted that the drugs belonged to him. A trier of fact is permitted to make a judgment call regarding the reliability or credibility of a witness’s testimony. Here, the trial judge stated that he believed that the defendant and his witnesses would say anything to keep the defendant out of trouble. The trial court’s credibility determinations are entitled to great deference. The final factor in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession is evidence that the area is used or frequented by drug users. The record does not include any information regarding this factor. However, the other three factors clearly weigh in favor of a finding that the defendant was in constructive possession of both the marijuana and cocaine found in the home.

The next question is whether the evidence was sufficient to find that the defendant was in possession of the cocaine with intent to distribute it. The factors to be considered when determining whether a defendant has intent to distribute (or whether that intent can be inferred) are: (1) whether the drugs are packaged in a form usually associated with distribution; (2) whether there is evidence presented of other sales or attempted sales; (3) whether a large amount or quantity of drugs were found such as to create an inference of intent; (4) the existence of expert or other testimony that states |12the amount of drugs is inconsistent with personal use; and (5) the existence of paraphernalia evidencing the intent to distribute.

Agents Witham and Townley, both accepted by the court as experts in the traf-Ticking of narcotics, testified that the amount of drugs found in the home was consistent with distribution. Digital scales and $600 cash were found in and around the master bedroom. Agent Townley testified as to the packaging of the drugs found in the home. Townley opened the packaging and was able to somewhat describe the contents and amount of drugs inside:

THE WITNESS: Mr. District Attorney, your question was whether or not I think this is consistent with personal use. I would say this is going to be consistent with the sale and distribution of cocaine.
BY MR. BROSSETTE:
Q: And as an expert, why after looking at the drugs coupled with the scales and other factors do you feel that this is someone who intends to distribute this versus someone who only has the cocaine for personal use, could you please explain as an expert? A: Just what I have right here in front of me. Also, along with the information about the actual sales of cocaine from the residence. You have several amounts here. You have a small amount which I would say is consistent with to sell to smaller users [sic ], and then you actually had probably which is probably known as an eight-ball, probably three and a half grams of cocaine here, and they’re all separately packaged. And then you also have the scales to go along with it.
Q: And every one of these — this cocaine isn’t just in one lump sum; it’s broken down into individual pieces where it’s ready for individual street sale; is that correct?
A: That’s correct.
11SQ: And the scales, what would those be used for?
A: They would be used to weigh the cocaine up to make sure. Like I said, one bag could weigh one gram, the other could be three point five grams, which would be an eight ball, for different type of users that want to come purchase.

Considering the testimony and evidence presented, we find that the direct evidence, when viewed in the light most favorable to the state, was sufficient to establish possession of both marijuana, third offense and the possession of cocaine with the intent to distribute. Therefore, this assignment of error is without merit. Assignment of Error Number Two: Right to Counsel

The defendant’s second assignment of error alleges that he was denied his right to counsel guaranteed by the Sixth Amendment and the Fourteenth Amendment of the Constitution of the United States and Article I, § Two and Thirteen of the Louisiana State Constitution. He claims that his counsel was ineffective and that this ineffectiveness caused prejudice in the matter.

The defense argues that counsel failed to file a motion to quash the third felony habitual offender bill and a motion to correct an illegal sentence. The defense asserts that the defendant faced a doubly-enhanced sentence because sentence had already been enhanced pursuant to the Uniform Controlled Substances Act.

The state argues that it did not charge the defendant as a multiple offender for the possession of marijuana charge; rather, the defendant was multi-billed on the charge of possession of cocaine with intent to distribute.

114As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,-394 (La.App. 2d Cir.9/27/95), 661 So.2d 673.

We decline to consider the allegations of ineffective assistance of counsel. The argument raised on appeal pertains to habitual offender and sentencing issues, which are addressed in this opinion. Moreover, the defendant will have the opportunity to raise any ineffective assistance claims in applications for post-conviction relief. Assignment of Error Number Three: Motion to Quash

In the defendant’s third assignment of error, he asserts that the trial court erred in failing to quash the third felony habitual offender bill of information.

La. C. Cr. P. Article 532 contains the grounds for filing a motion to quash. Subsection (2) states that a motion to quash may be based on the ground that: “[t]he indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.” Subsection (6) of 11sthat provision states another ground that: “[t]rial for the offense charged would constitute double jeopardy.”

La. C. Cr. P. Article 487 allows the amendment of a defective indictment:

A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect of imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

State v. Baker, 2006-2175 (La.10/16/07), 970 So.2d 948, concerned a sentence imposed for a felon in possession of a firearm and stated that such a sentence may also be enhanced under the habitual offender law provided that the offense used as an element in the possession of a firearm offense was not subsequently used to enhance the penalty under the habitual offender statute, as well. This ease overruled prior case law, stating: “We find that a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information.” Baker, supra, at 958. The Court overruled State v. Sanders, 337 So.2d 1131 (La.1976), and v. Firmin, 354 So.2d 1355 (La.1978), to the extent that they were not consistent with this ruling.

In State v. Brooks, 43,613 (La.App. 2d Cir.10/29/08), 997 So.2d 688, this court applied the Louisiana Supreme Court’s reasoning in Baker to a case in which a defendant was convicted of possession of marijuana, third offense and the state subsequently filed a habitual offender bill of information. This court stated:

The court in Baker found nothing in the purpose of La. R.S. 14:95.1 that would prevent enhancement of a penalty imposed under its provisions. The same is true of La. R.S. 40:966(E). The Baker court ultimately concluded that a genuine construction of La. R.S. 14:95.1 would allow a sentence imposed under the statute to be enhanced under the habitual offender law as long as the prior felony conviction used as an element of the firearms conviction is not also used as a prior felony conviction in the habitual offender bill of information. Applying that reasoning to the instant case, we conclude that a sentence for possession of marijuana, third offense, can be enhanced under the habitual offender law as long as none of the marijuana convictions are used as prior felony convictions in the habitual offender bill of information.

State v. Brooks, supra.

The defendant alleges that the trial court should have granted his motion to quash the habitual offender bill of information that was filed by trial counsel rather than permitting the state to amend the bill. The quoted Code of Criminal Procedure Articles above show that a trial court is within its discretion to allow the state to amend a bill of information. La. C. Cr. P. Article 487 allows for the amendment of a bill of information for typos or | Nnon-sub-stantive errors at any time and further allows for the amendment of substantive errors prior to trial.

In the present case, the state was permitted to amend the habitual offender bill of information to correct the date of the alleged offense and the offense being used for the multiple offender bill. Despite the fact that these are both substantive changes, the changes were permitted prior to trial on the habitual offender bill and so were permissible pursuant La. C. Cr. P. art. 487.

The defendant then argues that trial counsel should have filed a motion to quash the amended bill of information and that counsel’s failure to file such a motion rendered counsel’s assistance ineffective. The defendant argues that trial counsel should have filed a motion to quash under the ground listed in Article 532(6), “Trial for the offense charged would constitute double jeopardy.” Here, the amended bill of information charged the defendant as a habitual offender on the basis of the cocaine charge, not on the third offense, marijuana possession. The prior offenses were a conviction for “unauthorized use of a vehicle” on October 21, 1997; “possession of Schedule I, marijuana, second offense” on August 25, 1999; and “possession of a controlled dangerous substance ... Schedule I, marijuana, second offense with a beginning date of May 14th, 1998 and continues through September 10, 2003.”

1 isThe marijuana possession conviction was enhanced already because the defendant was charged with and subsequently convicted of third offense possession. However, the conviction for possession of cocaine with intent to distribute had not previously been enhanced. Under the reasoning of the Louisiana Supreme Court in Baker and this court in Brooks, the defendant did face double enhancement of his sentence: the prior possession of marijuana offense that the defendant pled guilty to on August 25, 1999 was used to enhance both the defendant’s sentences under the possession of marijuana, third offense conviction and the possession with intent to distribute conviction.

This assignment of error has merit. Therefore we vacate the habitual offender proceeding and sentence, and we remand the case back to the trial court for further proceedings.

Excessiveness of Sentence

In his fourth assignment of error, the defendant asserts that the trial court erred in imposing upon him an illegal and excessive sentence. In his fifth assignment of error, the defendant argues that the trial court erred in denying his motion to reconsider sentence. In his sixth and final assignment of error, the defendant contends that the trial court failed to adequately comply with the requirements of La. C. Cr. P. art. 894.1 in fashioning Roland Foster’s sentencing. Due to the fact that assignments of error four, five and six are interconnected, we will discuss these errors together.

The defense argues that none of the co-defendants received a sentence as harsh as that received by the defendant. The defense further |19argues that the evidence did not prove guilt beyond a reasonable doubt and that the 35-year sentence shocks one’s sense of justice. The defense further argues that the trial court did not adequately comply with the requirements of La. C. Cr. P. art. 894.1, which would require this court to remand the case to the trial court for re-sentencing.

As we have already determined that this sentence must be vacated, assignments of error four, five and six are moot and the discussion on this subject is pretermitted. On remand, the trial court judge will re-sentence the defendant, and if the defendant believes that the sentence imposed upon remand is excessive, he will have the right to appeal that sentence.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction, but vacate his sentence, and remand the matter for proceedings in accordance with this court’s opinion regarding the habitual offender issue.

We note that the trial court should have advised the defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh, 40,159 (La.App. 2d Cir.9/21/05), 911 So.2d 898. On remand, we advise the trial court to inform the defendant of those rights.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

APPLICATION FOR REHEARING

Before STEWART, PEATROSS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

MOORE, J., would grant rehearing.

      . The original bill slated that the defendant was convicted on January 29, 2004, when in fact, that was the date that the offense was allegedly committed. The defendant was convicted on October 18, 2007.

      . The Code articles speak in terms of indictments; however, it has been inferred in the cases interpreting and comments following these articles that these provisions are applicable to bills of information in the same way they are applied to grand jury indictments.

      . The original bill of information charged the defendant as a habitual offender using the third offense possession of marijuana conviction as the subject offense. The amended bill of information substituted the possession of cocaine conviction in the place of the marijuana conviction as the present offense.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    CAJUNDOME COMMISSION v. Carl MECHE, Director Sales Tax, et al.
    No. 2008-1057.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Gary McGoffín, Ryan M. Goudelocke, Durio, McGoffín, Stagg & Ackerman, Lafayette, LA, for Plaintiñ/Appellant, Cajun-dome Commission.
    Robert R. Rainer, Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA for Defendants/Appellees, Cynthia Bridges, Carl Meche, Director Sales Tax Division, LPSB.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

LThe Cajundome Commission (Commission) appeals a grant of partial summary judgment and writ of mandamus ordering it to collect and remit sales tax to the Lafayette Parish School Board (Board) and the State Department of Revenue (Department).

FACTS

The Cajundome is a public facility, a joint venture of the University of Louisiana at Lafayette and the City of Lafayette. It is governed by a five-member Commission which promotes and hosts a variety of events at which it sells food, beverages, and other merchandise.

For the first time since it opened in 1985, the Commission was jointly audited by the Department and the Board for the period January 1, 2004 to June 30, 2007. The audit revealed that, though registered as a dealer with both the Department and the Board, the Commission did not collect nor remit sales tax on its sales of taxable items. Prior to 2004, the Commission contracted with outside vendors for the sales of catering service and merchandise, who were in turn responsible for collecting and remitting the sales tax. During 2004, the Commission purchased the assets of one of these vendors, Artisan Creative Catering, Inc. (Artisan).

While the audit was pending, the Commission filed a Petition for Declaratory Judgment averring that it was not a “person” or “dealer” under the sales tax statutes and, therefore, not required to collect or pay sales tax. Artisan was included as a party plaintiff. The Department reconvened for the delinquent tax, interest, penalties and attorney fees, and the Department and Board filed a Joint Motion for Partial Summary Judgment directed to the principal demand alone. Prior to hearing, the Department and Board filed a Joint Petition for Writ of Mandamus ordering the Commission to begin collecting and remitting the sales tax on all taxable transactions. | ¿The writ of mandamus was granted, and the Commission filed a supervisory writ to this court which denied the writ.

Subsequently, the district court granted the motion for partial summary judgment declaring the Commission to be legally obligated to charge, collect, and remit sales taxes to the defendants. The Commission lodged this appeal alleging the district court erred in granting the writ of mandamus and granting partial summary judgment. The Department and Board answered seeking damages for frivolous appeal.

PARTIAL SUMMARY JUDGMENT

The Commission contends the trial court erred in granting the Defendants’ Motion for Partial Summary Judgment. An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material facts, and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

In this case, we are called upon to decide a dispute between the parties over the interpretation of the sales and use tax statute. Specifically, we must decide whether the Commission has a duty under the statute to collect and remit sales and use taxes to the Department and Board.

The interpretation of a statutory provision starts with the language of the provision itself. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244. “When the language of the law is susceptible | ¡.of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole.” La. Civ.Code arts. 10 and 12; Sabine, 04-1833 at p. 9, 898 So.2d at 1250. “However, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of legislative intent.” La.Civ.Code art. 9; Sabine, 04-1833 at p. 9, 898 So.2d at 1250. This principle applies to tax statutes. Cleco Evangeline, LLC v. Louisiana Tax Commission (La.4/3/02), 813 So.2d 351; Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La.3/24/94), 634 So.2d 356, 358.

Sales tax law requires that a “dealer” collect the sales tax owed by the consumer and to remit it to the appropriate levying body. La.R.S. 47:304 and La.R.S. 47:337.17. Louisiana Revised Statutes 47:301(4) provides in pertinent part:

“Dealer” includes every person who manufactures or produces tangible personal property for sale at retail, for use, or consumption, or distribution, or for storage to be used or consumed in a taxing jurisdiction.” “Dealer” is further defined to mean:
(b) Every person who sells at retail, or who offers for sale at retail, or who has in his possession for sale at retail, or for use, or consumption, or distribution, or storage to be used or consumed in the taxing jurisdiction, tangible personal property as defined herein.

As noted above, the Commission is registered as a dealer with both the Department and Board. Nevertheless, it contends that it is not a “dealer” because it is not a “person” under sales tax law, and by definition a “dealer” is a “person”.

Louisiana Revised Statutes 47:301(8) provides in pertinent part:

(8)(a) “Person”, except as provided in Subparagraph (c), includes any individual, firm, copartnership, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate, this state, any parish, city and parish, municipality, district or other political ^subdivision thereof or any board, agency, instrumentality, or other group or combination acting as a unit, and the plural as well as the singular number.
(c)(i) For purposes of the payment of the state sales and use tax and the sales and use tax levied by any political subdivision, “person” shall not include this state, any parish, city and parish, municipality, district, or other political subdivision thereof, or any agency, board, commission, or instrumentality of this state or its political subdivisions.

The Commission, relying on La.R.S. 47:301(8)(c)(i), contends that by definition it is not a person. The Department and Board respond that the Commission is a person as defined in La.R.S. 47:301(8)(a). We find that under the plain language of the statute the Commission is a person for all purposes under the sales and use tax statutes except for the payment of sales and use taxes on its purchases. Accordingly, we find the Commission is also a “dealer” to the extent that a “dealer” is required to collect and remit sales and use tax.

The Commission argues that there is no difference between the payment of taxes and the collection and remittance of taxes. We disagree.

Laws on the same subject matter must be interpreted in reference to each other. La.Civ.Code art. 13. The Louisiana Supreme Court has followed the logic of collectively interpreting statutes that deal with the same subject. First Nat. Bank v. City of New Orleans, 555 So.2d 1345 (La.1990). A statutory provision should be construed with the remaining portions of the statute, but more importantly, all statutes on the same subject matter should be read together and interpreted as a whole. Id, Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).

While there is no statutory definition of these terms, the entire sales and use tax statutory scheme is based on the payment, collection, and remittance of the taxes. Despite instances where the language is used interchangeably, the overwhelming ^weight of the statutory usage indicates that they are separate and distinct functions. Were we to accept the Commission’s argument, it would render the distinction between La.R.S. 47:301(8)(a) and La.R.S. 47:301(8)(c) meaningless and confuse the obligations of the dealer and consumer throughout the statute. Clearly, “[t]he seller’s [dealer’s] obligation to remit the taxes is separate from the purchaser’s obligation to pay the tax.” AWC, Inc. v. CSF Const., Inc., 05-865, p. 2 (La.App. 4 Cir. 4/26/06), 931 So.2d 382, 384; See also Traigle v. Fairgrounds Corp. 288 So.2d 409 (La.App. 4 Cir.1974). The dealer is liable for payment of the tax only if he fails to charge, collect, and remit the tax. La.R.S. 47:304 E; La.R.S. 47:337.17 C and E; Baton Rouge Press, Inc. v. Andries, 03-808 (La.App. 3 Cir. 2/4/04), 865 So.2d 950, writ denied, 04-592 (La.6/4/04), 876 So.2d 91.

Accordingly, we find the exclusion in La.R.S. 47:301(8)(c) is only applicable to the payment of sales and use taxes. The Commission is required to collect and remit the sales and use tax to the Department and Board. We note that the trial court’s ruling granting partial summary judgment very tightly frames the question before this court by enumerating and preserving the remaining issues for trial on the merits. Therefore, this opinion specifically does not reach the question of whether the Commission failed to collect and remit sales and use taxes in the past or whether it is required to pay any tax it may have failed to remit. Moreover, this opinion does not reach the question of which, if any, of the specific goods or services offered by the Commission, or any other entity which might be construed to be a “person” under the statute, are subject to the sales and use tax.

WRIT OF MANDAMUS

The Commission alleges the district court erred in issuing the writ of mandamus ordering it to collect and remit the sales tax. We disagree.

| (iIn denying the Commission’s application for a supervisory writ on this issue, we noted that the Commission’s own arguments provided support for the issuance of the writ of mandamus. Moreover, the open question regarding its liability for payment of uncollected taxes, and the impracticality or impossibility of collecting from consumers in the future should they fail to collect taxes at the time of purchase, both support our previous conclusion that there is no other viable relief by ordinary means available to the Department and Board. Accordingly, we affirm the trial court’s issuance of the writ of mandamus in this case.

FRIVOLOUS APPEAL

The appellate court may award damages for a frivolous appeal. La.Code Civ.P. art. 2164. “This provision is penal in nature and is to be strictly construed.” Capdeville v. Winn Dixie Store # 14-73, 07-1425 (La.App. 3 Cir. 4/9/08), 981 So.2d 121, 125. “An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advancing.” Id. at 125. Appeals are favored and appellate courts are reluctant to impose damages for frivolous appeals. Id.

Our review of this record does not show that this appeal was taken solely for delay or that the Commission did not seriously believe it was entitled to relief. An award of damages for frivolous appeal is not warranted.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: PAINTER, Judge.

text:
    Greta (Davis) ARTHOLEE, et al. v. TRINITY UNIVERSAL INSURANCE COMPANY OF KANSAS, et al.
    No. 08-1053.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Gloria A. Angus, Opelousas, LA, for Plaintiffs-Appellants, Greta Artholee, Cas-sandera Ardoin, Keenan Davis, and Wilson Ardoin.
    David Rabalais, Lafayette, LA, for Defendants-Appellees, Trinity Universal Insurance Co. and Gulf States Life Insurance Co.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

11 Plaintiffs appeal the trial court’s dismissal, pursuant to an exception of prescription, of their suit for damages resulting from a toxic mold infestation of their prior workplace.

DISCUSSION

On appeal, Plaintiffs assert that the trial court erred in finding that their petition showed that the action was prescribed on its face and in shifting the burden of proof regarding the peremptory exception of prescription from the mover to Plaintiffs; in sustaining Defendants’ exception of prescription when they failed to meet the burden of proving that prescription was not suspended; and, in its application of the law to the case.

The trial court gave the following reasons for its decision:

REASONS FOR JUDGMENT

A Peremptory Exception of Prescription filed by the defendants in this matter came before the court on April 24, 2008. Present were the following:

GLORIA A. ANGUS, Counsel for plaintiffs Greta Artholee, Cassandra Ardoin, Keenan Davis, and Wilson Ar-doin; and
DAVID R. RABELAIS, Counsel for Trinity Universal Insurance Company of Kansas, and Gulf States Life Insurance Company.

After introduction of excerpts from depositions and argument of counsel, the court took the matter under advisement, with leave to the parties to file additional memoranda within one week. A supplementary memorandum has been received from the defendant.

Background Facts

The four petitioners in this matter derive their claims from the employment of plaintiffs Greta Davis Artholee and Cassandra Ardoin by the St. Landry Parish District Attorney’s Office. Greta Davis Artholee was employed from January 1, 1997, to August 24, 1998. Cassandra Ardoin was employed from some time in September of 1997 until some | ¿time in May of 2000. The employees allege they suffered damages as a result of mold infestation in the Child Support Enforcement Section then located at 128 West Bellevue Street, Opelousas. The parties filed suit on October 13, 2004.

Positions of the Patties

Exceptors argue that since suit was filed more than one year after the periods of employment came to an end, their claims have expired by operation of the one year liberative prescription of La. C.C. Art. 3492. In response, the plaintiffs invoke the doctrine of contra non valentem non currit praescriptio, (contra non valeiitem); prescription does not run against one who cannot bring suit. They argue that their claims have not expired since they filed suit within one year of learning the cause of their symptoms.

Burden of Proof

Defendants contend that since the claims are based upon occurrences more than one year prior to the suit, the plaintiffs bear the burden of proving that their claims have not prescribed. In response, plaintiffs argue that since their petition alleges they were not aware of the cause of their symptoms, their claims are not prescribed on the face of the petition; the burden remains upon the exceptor.

It is the opinion of the court that the defendant has correctly stated the law. When a claim appears to have been filed beyond the prescriptive period but the plaintiff claims some exception to the running of prescription, the plaintiff retains the burden of proof. Kirby v. Field, 2004-1898 (La.App. 1 Cir. 9/23/2005), 923 So.2d 131.

Contra Non Valentem

Plaintiffs rely upon the doctrine of contra non valentem to place their claims beyond the reach of the one-year liberative prescription. The factual categories in which prescription may be suspended under the doctrine are delineated in Wimberly v. Gatch, 93-2361(La.1994), 635 So.2d 206. More specifically, the plaintiffs argue that the third and fourth categories apply to the facts of this case.
In the third category, prescription may be suspended “where the debt- or himself has done some act effectually to prevent the creditor from availing himself of his cause.” Plaintiffs argue that the defendants became aware of the existence of the mold in 2003 and failed to apprise former employees, including Greta Artholee and Cassandra Ardoin. However, even assuming that plaintiffs’ statement is correct, the plaintiffs were not employed past May of 2000; their claims would still be prescribed had they been informed of the condition in 2003. Additionally, the plaintiffs have not brought forth any evidence that the defendants were engaged in any deliberate act of concealment or other | ¿fault. Johnson Controls, Inc. v. Lynch, 92-1558 (La.App. 1 Cir. 11/24/1993), 633 So.2d 212; La. C.C. Art. 3467, Comment (d); Corsey v. State, Through the Dept. Of Corrections, 63931 (La.10/8/1979), 375 So.2d 1319. See also 56 La.Law.Rev. 337,362 (1995).
In the fourth category, prescription may be suspended “where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.” It is the position of the plaintiffs that a claimant must have knowledge of the cause of their complaints before the term begins to run. Plaintiffs argue that although they had symptoms during their employment, neither they nor those who gave them treatment connected their complaints to their work environment. Only on August 26, 2004, when they learned that the defendants were being sued for mold infestation in the Bellevue building, were they in possession of facts sufficient for them to advance a claim. In response, defendants argue that the jurisprudence burdens the plaintiffs with constructive knowledge of the cause of their symptoms if the facts known to them were sufficient to call for inquiry into cause.
Resolution of this issue turns upon the proper interpretation of the term in the fourth category of the doctrine of contra non valentón, “reasonably knowable by the plaintiff.” Plaintiff cites one case, West v. Gajdzik, 82-311 (La.App. 3 Cir. 1982), 425 So.2d 263, in support of a definition of the term that requires a claimant to have facts to support all elements of his claim of action before prescription begins to toll. In that case, the claim of a legatee who was not informed of the death of her father was upheld after a period of eight years; however, the succession representative had withheld information that would have permitted the legatee to know that she had a claim to assert. It is the opinion of the court that the facts of West, are distinguishable from those of the matter at hand.
In the depositions introduced into the record in this matter, both plaintiffs testified that they were aware of unusual and debilitating symptoms during their employment. They sought medical help. Also, they both testified that they observed water leaks and cleaned a grayish substance from the vents and Cassandra Ardoin testified that she smelled a foul odor in the air conditioning closet. Although no one connected the plaintiffs’ symptoms to conditions in the building, it is the opinion of the court that the circumstances set forth in the depositions bear strong analogy to the facts of those cases which define the term and consider such facts a cause of action “reasonably knowable to the plaintiff.”
In Ledet v. Miller, 83-1014 (La.App. 3 Cir. 11/7/1984), 459 So.2d 202, the Third Circuit found that a patient who suffered serious symptoms following surgery, but did not know the reason, had sufficient knowledge to be put on notice of her claim for medical malpractice. The court found constructive knowledge to be whatever is notice enough to |4put the injured party on guard. Similarly, in Opelousas General Hospital v. Guillory, 82-545 (La. Ap.[App.] 3 Cir. 3/21/1983), 429 So.2d 550, the same court found that a claim had prescribed when suit was not brought until more than one year after discovery of the condition of which the patient claimed. Clearly the plaintiffs in the instant case had actual knowledge of their symptoms sufficient to provoke an inquiry into the cause; they testified that they had not had the symptoms prior to employment and sought medical attention.
The case of In Re Asbestos Plaintiffs v. Bordelon[Borden, Inc.], Inc., 01-1379 (La-App. 4 Cir. 8/13[14]/2002), 826 So.2d 581, a case involving toxic conditions of a building, the court found that the onset of symptoms never before suffered by the plaintiff should have provoked an inquiry into the cause; neither an actual diagnosis nor knowledge of the cause was necessary to toll the period. The case posits no requirement that the plaintiffs know that asbestos was present and toxic. The facts of the instant case are stronger for the defendant; these plaintiffs testified that they observed conditions consistent with the effects of water being present in the building.
A case to the contrary, State Farm [.Fire] & Casualty Company v. MLP[M.L.T.] Constniction Company, 02-1811 (La.App. 4 Cir. 6/14[4]/2003), 849 So.2d 762, is distinguishable on its facts. In that case the court found that the plaintiff was not on notice of unusual symptoms; the plaintiff suffered from a similar condition prior to the alleged exposure.

Equity

Plaintiffs also argue that their claims should be maintained under a doctrine of equity because they have significant damages and should have an opportunity to obtain recovery from the defendants who are responsible. Although it is unfortunate when persons are unable to obtain compensation for injuries, the doctrine of prescription has a social utility that has been recognized by the legislature and the courts. It is the duty of the trial court to follow the law.

Decision

For the above reasons, the court finds that the claims of the plaintiffs in the above captioned matter have prescribed.

The Peremptory Exception of Prescription of the defendants is GRANTED.

Finding that each of Plaintiffs assignments of error are correctly addressed therein, we adopt these reasons as our own and affirm the judgment of the trial court.

| .CONCLUSION

For the reasons articulated by the trial court, its judgment is affirmed. Costs of this appeal are assessed to the Plaintiffs.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Wilbert CURRY, Individually, Phillip Curry, Individually, Jowanda Curry, Individually, Phillip Curry and Jowanda Curry as Natural Tutor of the Minor Children, Phillip Curry, Jr. and Joseph Curry v. Javell McGINNIS, Geico Insurance Company, Town of Jonesville, Milton Savage, and Louisiana Municipal Risk Management, Inc.
    No. 08-1050.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Jerry L. Lavespere, Jr., Alexandria, Louisiana, for Plaintiffs/Appellants, Wilbert Curry, Phillip Curry and Jowanda Curry, individually and as natural tutor of the minor children, Phillip Curry, Jr. and Joseph Curry.
    John P. Doggett, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, Louisiana, for Plaintiffs/Appellants, Wilbert Curry, Phillip Curry and Jowanda Curry, individually and as natural tutor of the minor children, Phillip Curry, Jr. and Joseph Curry.
    Samuel T. Singer, Law Office of Samuel T. Singer, PLC, Winnsboro, Louisiana, for Defendants/Appellees, Town of Jonesville, Milton Savage, and Risk Management, Inc.
    Russell L. Potter, Stafford, Stewart & Potter, Alexandria, Louisiana, for Defendants, Geico Indemnity Company, Javell McGinnis, Hillary McGinnis, Jr., and Tan-gee R. Davis.
    Gregory S. Marsiglia, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Louisiana, for Defendant/Third-Party Plaintiff, Javell McGinnis.
    Ronald J. Fiorenza, Theodore D. Vick-nair, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, Louisiana, for Plaintiff, Ereeca Hill, individually and on behalf of her minor son, Davell Davis.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ¾ Plaintiffs/Appellants, Wilbert Curry, Phillip Curry and Jowanda Curry, individually and as natural tutor of the minor children, Phillip Curry, Jr. and Joseph Curry (hereinafter collectively referred to as “Plaintiffs”), appeal the trial court’s ml-ing sustaining the peremptory exception of prescription filed by the Defendants/Ap-pellees, Town of Jonesville and Milton Savage. For the following reasons, we reverse and remand the case for further proceedings.

PROCEDURAL HISTORY

On August 23, 2006, Plaintiffs filed a Petition for Damages against Javell McGinnnis, GEICO Indemnity Company (GEICO), Milton Savage, the Town of Jonesville (Jonesville), and Risk Management, Inc. (RMI) for an accident which occurred on August 12, 2006. Plaintiffs’ petition provided service information only for GEICO and RMI. GEICO filed an Answer to Plaintiffs’ petition on September 11, 2006; RMI filed an Answer on September 16, 2006; and Javell McGinnis filed an answer on June 22, 2007.

On August 10, 2007, Plaintiffs filed a Motion and Order for Leave of Court and a First Amending and Supplemental Petition for Damages. Plaintiffs’ amending petition provided service information for all Defendants. GEICO and Javell McGinnis filed an Answer to Plaintiffs’ amending petition on August 27, 2007.

On September 5, 2007, Jonesville and Officer Savage filed Declinatory and Peremptory Exceptions. These exceptions asserted that because Plaintiffs had not | ¿requested service upon Jonesville and Officer Savage within ninety days of the filing of Plaintiffs’ original petition on August 23, 2006, La.R.S. 13:5107 mandated that Plaintiffs’ claims against them be dismissed.

A hearing was held on the exceptions filed by Jonesville and Officer Savage on October 29, 2007. The trial court took the matter under advisement and allowed the parties to file post-hearing memoranda. On April 8, 2008, the trial court issued its Reasons for Judgment, sustaining the peremptory exception of prescription filed by Jonesville and Officer Savage. The trial court also ordered the dismissal, with prejudice, of Plaintiffs’ claims against these Defendants. A judgment to this effect was signed by the trial court on the same day. Plaintiffs appeal.

ASSIGNMENT OF ERROR

On appeal, Plaintiffs assert: “The trial court erred in granting the ‘Peremptory Exception of Prescription’ filed by [Defendants, [t]he Town of Jonesville and Milton Savage[,] and thereby dismissing with prejudice [P]laintiffs/[A]ppellants’ complaint against these governmental [Defendants.”

STANDARD OF REVIEW

“A dismissal premised upon La. R.S. 13:5107(D)(2) should not be reversed in the absence of manifest error. Patterson v. Jefferson Davis Parish School Bd., [00-00580] (La.App. 3 Cir. 12/6/00), 773 So.2d 297.” Taylor v. LSU Med. Ctr., 38,944, p. 4 (La.App. 2 Cir. 10/14/04), 892 So.2d 581, 584, writ denied, 05-0480 (La.5/20/05), 902 So.2d 1049.

| ..LAW AND DISCUSSION

Considering the facts in this case, the requirements for service of process and citation upon Jonesville and Officer Savage are found in La.R.S. 13:5107(D)(1):

In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.

The requisite time period in which service is to be effectuated upon Jonesville and Officer Savage, as well as the penalty for the failure to do so, are set forth in La.R.S. 13:5107(D)(2):

If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.

Louisiana Code of Civil Procedure 1672(C) provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

Plaintiffs argue, in brief, that the trial court mis-characterized their “original Petition as containing a ‘non-request’ for service” because Plaintiffs “provided insufficient service information in the original Petition ... on [Jonesville and Officer Savage].” Plaintiffs also assert that the trial court erroneously “reasoned that because [.¡[Jonesville and Officer Savage] were initially named in the original Petition, [Plaintiffs could not cure the defect by filing a Supplemental and Amended Petition and requesting service of same, even [though] the Supplemental and Amending Petition and request for service were filed within the prescriptive period[.]” This interpretation, according to Plaintiffs, “acts as a peremptive bar to a subsequent action filed within the one (1) year prescriptive period.”

Plaintiffs also contend that the trial court erred by failing to determine “whether [Jonesville and Officer Savage] had waived the objection to insufficient service.” According to Plaintiffs, and substantiated by the exhibits accepted into evidence at the hearing on these exceptions, on September 8, 2006, Plaintiffs’ counsel received written correspondence from Mr. Ronald A. Reibe, a Casualty Claims Manager for RMI. In his letter, Mr. Reibe declared: “We[, RMI,] are the servicing agent for the Town of Jones-ville’s liability coverages and have just been forwarded the referenced suit on behalf of your clients.” The letter further requested “an informal extension of time to file responsive pleadings to this matter.” On September 16, 2006, RMI filed an Answer through its attorney, Samuel T. Singer. At the hearing on these exceptions, Plaintiffs argued that, at all times, they believed the Town of Jonesville had been served with them original petition based on Mr. Singer’s representations, the September 8, 2006 letter from Mr. Reibe, and the fact that the Town of Jonesville had no agent for service of process registered with the Louisiana Secretary of State.

Jonesville and RMI counter this allegation, in brief, stating:

Plaintiffs’ counsel did not grant the extension; therefore, [RMI] immediately filed its answer on September 16, [sic] 2006. Said answer stated that RMI was not an insurance company against whom a direct cause of action exists. The answer did not include [Jonesville] or |[Officer Savage] because they had not been served.

Finally, Plaintiffs assert that the trial court clearly erred when it dismissed their claims with prejudice regardless of the fact that Plaintiffs had filed a First Amending and Supplemental Petition for Damages on August 10, 2007. Said amended petition was filed two days before the prescriptive date of Plaintiffs’ claims and did properly request service upon Jonesville and Officer Savage.

In its Reasons for Judgment, the trial court declared that it was “particularly impressed with the Supreme Court decision in Naquin [v.] Titan Indemnity Co., [00-1585 (La.2/21/01), 779 So.2d 704.]” The trial court even quoted numerous “head notes” from Naquin in its Reasons for Judgment. While we agree that Na-quin touches upon the issue in this case, we disagree that it is analogous or controlling.

Naquin primarily considered whether La.R.S. 13:5107, a then newly enacted procedural statute, was applicable to an action which arose prior to the statute’s effective date; however, the claim was not filed until after its effective date. We find Na-quin distinguishable on the basis that it did not involve a subsequent petition which was both timely filed and in which a timely request for service of process upon the governmental defendants was properly made.

Citing La.Code Civ.P. art. 1151, the trial court agreed with Plaintiffs’ assertion that the First Amending and Supplemental Petition for Damages filed on August 10, 2007 “was timely filed prior to the expiration of the one year liberative prescriptive period.” However, the trial court ultimately reasoned that Jonesville and Officer Savage “were ‘initially’ named in the original Petition, the '90 day request | nrequirement’ began to toll from the filing of the original Petition, not the ‘First Amending and Supplemental Petition [for Damages,]’ and as such, Plaintiffs’ ‘service request’ was not timely and their cause of action has prescribed.” We disagree.

We find Filson v. Windsor Court Hotel, 04-2893 (La.6/29/05), 907 So.2d 723, to be pertinent and much more instructive. In Filson, the supreme court examined the requirement in La.R.S. 13:5107(D) to request service within ninety days and distinguished the motion for involuntary dismissal under La.Code of Civ.P. art. 1672 from the declinatory exception of insufficiency of citation or service. The supreme court stated:

First, an objection to insufficiency of citation or service under La.C.C.P. art. 925 “is properly leveled at the form of the citation” and also “focuses on the person to whom citation is delivered or on the manner in which delivery is made.” Maraist, Frank L. and Lemmon, Harry T., Louisiana Civil Law Treatise, Vol. 1, § 6.5, p. 108. When a defendant objects to the failure to request service within 90 days, he is not objecting because the service is “insufficient;” rather, it is either non-existent or it is untimely. Where the objection is based on service outside the 90-day time limit of La. C.C.P. art. 1201(C), La. C.C.P. art. 1672(C) specifically provides that the manner for objecting is by filing a motion for involuntary dismissal. While plaintiffs argue that these statutes conflict and are ambiguous, we disagree. Pursuant to general rules of statutory construction, “where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 3352, 00-1983 (La.6/29/01), 791 So.2d 609, 612; LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. Clearly, even if Article 925’s reference to “insufficiency” of citation and service of process could be read generally to apply where service was not timely requested, Articles 1201(C) and 1672(C) are specifically directed to cases where service was not requested within 90 days of the commencement of the action, making a motion for involuntary dismissal under 1672(C), and not a decli-natory exception, the proper method for objecting to late service.

Filson, 907 So.2d at 726-27.

17Thus, pursuant to Filson, we find that the trial court erred in dismissing Plaintiffs’ action for failure to request service within ninety days because Jonesville and Officer Savage failed to file the requisite motion for involuntary dismissal pursuant to La.Code Civ.P. art. 1672(C).

Further, we find the trial court’s dismissal of Plaintiffs’ claims “with prejudice” against Jonesville and Officer Savage to be clearly in derogation of the law. Louisiana Revised Statutes 13:5107(D)(2) imposes the penalty of dismissal “without prejudice” of actions where service is not timely requested upon governmental defendants. Thus, the trial court’s judgment was legally erroneous in this respect as well.

In the instant case, the Plaintiffs timely filed suit against Jonesville and Officer Savage. Even considering the fact that service was not timely effectuated against Jonesville and Officer Savage, the legal remedy was to pursue an involuntary dismissal without prejudice. This was not done. Instead, the trial court sustained Defendants’ peremptory exception of prescription and dismissed Plaintiffs’ lawsuit with prejudice. The record clearly states, and the trial court clearly acknowledged, that Plaintiffs’ lawsuit and their first supplemental and amending petition, with the legally required request for service of process upon Jonesville and Officer Savage, were timely filed prior to the expiration of the one year liberative prescription period. Therefore, Plaintiffs’ lawsuit has not prescribed.

DECREE

Accordingly, we find the trial court erred in sustaining the peremptory exception of prescription filed by the Town of Jonesville and Milton Savage and dismissing Plaintiffs’ claims under La.R.S. 13:5107(D). We reverse the trial court _yudgment and remand the case for further proceedings. Further, we assess all costs of this appeal against the Defendants/Appellees, Town of Jonesville and Milton Savage, in accordance with La.R.S. 13:5112, in the amount of $1,838.75.

REVERSED AND REMANDED.

      . Plaintiffs' petition erroneously identified GEICO Indemnity Company as GEICO Insurance Company. For accuracy, we refer to this Defendant by its correct name (GEICO Indemnity Company) as ascertained from its responsive pleadings.

      . Plaintiffs' petition erroneously identified Risk Management, Inc. as Louisiana Municipal Risk Management, Inc. For accuracy, we refer to this Defendant by its correct name (Risk Management, Inc.) as ascertained from its responsive pleadings.

      . Officer Savage is a police officer whose alleged actions while in the course and scope of his employment with Jonesville is the basis of Plaintiffs’ suit.

      . Notably, Mr. Singer appears herein as counsel for RMI, Jonesville, and Officer Savage.

      . Louisiana Code of Civil Procedure Article 1151 provides, in pertinent part: “A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 and 934.”


text:
    David L. BIENEMANN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 08-1045.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    James S. Gates, Opelousas, LA, for Plaintiff-Appellant: David Bienemann.
    Gretchen Heider Mayard Katherine Paine Martin, Lafayette, LA, for Defendant-Appellee: State Farm Mutual Automobile Insurance Company.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

11 Plaintiff, David Bienemann, appeals the trial court’s judgment in favor of the uninsured/underinsured motorist (UM/UIM) carrier, State Farm Mutual Automobile Insurance Company (State Farm). For the reasons that follow, we reverse the trial court’s ruling and render judgment in favor of Bienemann in the amount of $21,868.87.

FACTUAL AND PROCEDURAL BACKGROUND

On December 28, 2004, Bienemann, who was driving a 1991 GMC Jimmy owned by Michael Patout, was rear-ended by a 1987 Lincoln Towncar driven by Joseph Babi-neaux. State Farm was the liability insurer for Babineaux as well as the UM/UIM carrier for Patout.

Bienemann, who suffered from chronic neck pain resulting from a 1995 accident, alleged a severe aggravation of his preexisting condition. Bienemann also had pre-existing back problems. He was being treated by Dr. Randy Lavespere at the time of the subject accident and had seen Dr. Lavespere the day before. Although he testified that he knew that he was hurt, Bienemann did not seek medical treatment immediately after the subject accident but returned to Dr. Lavespere on January 6, 2005, nine days afterwards and for a regularly scheduled appointment, complaining that his pain had worsened since the accident at issue herein. He began treating with Dr. Doreen Abadco in May of 2005 when Dr. Lavespere discontinued his practice. In a report dated September 10, 2005, Dr. Abadco, who is board certified in anesthesiology and pain medicine, opined that both his neck and back pain were aggravated by the subject accident. He began treatment with a neurologist, Dr. Ronnie Goswami, on November 22, 2006. In 2007, Dr. Goswami referred |¿Bienemann to a psychiatrist for depression and to a pain management clinic. At the time of trial, Bienemann was living with his sister in San Antonio. He was not employed at the time of trial, and his employment history was varied. He had worked as a hotshot driver, owned and operated several bars, owned a scrap automobile business, and sold cars. However, Bienemann testified that, prior to the subject accident, he did not have any periods of unemployment that lasted more than two or three months. In October of 2005, after Hurricane Katrina, Bienemann worked as an insurance adjuster for about eight months, and that was his last time of employment.

State Farm, as liability insurer for Babi-neaux, settled with Bienemann for the $10,000.00 policy limits prior to trial. As UM/UIM carrier for Patout, State Farm paid $5,000.00 in medical payment coverage and $13,131.13 in unconditional tenders. The policy limit of the UM coverage was $100,000.00. The matter proceeded to bench trial against State Farm in its UM/ UIM capacity, with Bienemann stipulating that his total damages did not exceed $50,000.00. Liability was not at issue. The only issue was the amount of damages, if any, Bienemann was entitled to recover under the UM/UIM policy. Bien-emann was the only witness to testify at trial. All of the evidence, which consisted of medical records, photographs, and accident reports, was received by stipulation. State Farm contended that, even if he were able to prove an aggravation of his pre-existing condition, the amount received by Bienemann was adequate to compensate him for the injuries allegedly received in this minor accident where the property damage totaled only $145.00. The trial court found that Bienemann suffered an aggravation of his pre-existing condition but failed to prove that his damages exceeded the total of $28,131.13 that he had already received. Accordingly, the trial court rendered judgment in favor of State Farm. | nBienemann now appeals, asserting that the trial court committed manifest error in finding that his damages were not in excess of the sums already received.

DISCUSSION

The trial court found as follows:

Dr. Doreen Abadco, who started treating Mr. Bienemann in May of 2005, stated in her narrative report of September 10, 2005 that it was more probable than not that the December 2004 accident aggravated his neck pain. There is no medical testimony that contradicts that.
Mr. Bienemann suffered an aggravation of an already serious and chronic condition of the neck and back. However, the Court finds that the plaintiff has failed to prove that his damages exceed what he has received to date, $28,131.13. In reaching this determination, the court is persuaded by the evidence showing no substantial change in medication following the accident and the evidence showing that Mr. Bienemann was able to work as an insurance adjuster in September of 2005. In addition, the evidence shows that most of the post-accident medical expenses would have been incurred anyway due to the chronic nature of the plaintiffs condition.

The determination that Bienemann’s damages did not exceed the coverage provided by Babineaux’s liability policy is factual in nature. Russell v. Allstate Ins. Co., 02-1178 (La.App. 4 Cir. 5/28/03), 848 So.2d 730. In Rabalais v. Nash, 06-0999, p. 4 (La.3/9/07), 952 So.2d 653, 657, the Louisiana Supreme Court has recently reiterated the applicable standard of review as follows:

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. Blair v. Tynes, 621 So.2d 591, 601 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). To reverse a fact-finder’s determination, the appellate court must find 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. Mart v. Hill, 505 So.2d 1120 (La.1987). Where the jury’s findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different | ¿result, reversal of the trial court is improper unless the trial court’s ruling is manifestly erroneous, or clearly wrong. Blair, supra.

With respect to Bienemann, who was clearly an eggshell plaintiff, we are mindful that:

[t]he defendant’s liability for damages is not mitigated by the fact that the plaintiffs pre-existing physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993), citing Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980), Sansonni v. Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th Cir.1977), Deville v. United States Fidelity & Guaranty Company, 258 So.2d 694 (La.App. 3d Cir.1972), Dufrene v. Miller, 266 So.2d 462 (La.App. 4th Cir. 1972), Rachal v. Bankers and Shippers Insurance Company, 146 So.2d 426 (La. App. 3d Cir.1962), and Johnston v. Ford Motor Co., 443 F.Supp. 870 (E.D.La.1978). The “eggshell plaintiff’ is required to establish a causal link between the tortious conduct and the aggravation of his preexisting condition. Chavers v. Travis, 04-0992 (La.App. 4 Cir. 4/20/05), 902 So.2d 389.

We have reviewed the record and agree with the trial court’s finding that Bienemann suffered an aggravation of his pre-existing condition. We also find that Bienemann proved the requisite causal link between the subject accident and the aggravation of his pre-existing condition as the report of Dr. Abadco was uncontradict-ed. However, we find that the trial court committed manifest error in failing to find that Bienemann’s damages exceeded the amount previously received in settlement. Bienemann stipulated that his damages did not exceed $50,000.00. He contended that his medicals totaled $37,218.28 while State Farm contended that his medicals from the date of the accident until he was able to take physical labor jobs [5in September of 2005 totaled $13,854.38. Even accepting State Farm’s contention, we find that trial court was manifestly erroneous in failing to award any additional damages. Prior to the subject accident, Bienemann was able to live alone, own his own home, and maintain his employment. He currently resides with his sister and is unable to maintain employment. He also testified that he was depressed since this accident, that the pain now interferes with ability to concentrate, and that he was required to abandon his volunteer activities due to the constant pain. Based on the medical records and Bienemann’s uncontroverted testimony, we find that $28,131.13 was inadequate to compensate him for the aggravation of his pre-existing condition that was caused by this accident. Accordingly, we award Bienemann an additional $21,868.87 in damages.

DECREE

We reverse the judgment of the trial court and render judgment in favor of Bienemann in the amount of $21,868.87. Costs of this appeal are assessed to Defendant-Appellee, State Farm Mutual Automobile Insurance Company.

REVERSED AND RENDERED.


author: EZELL, Judge.

text:
    Mary Guillory WILLIS, et ux. v. CENLA TIMBER, INC.
    No. 08-1041.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      R. Greg Fowler, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee: Robert Guillory.
    Ricky L. Sooter, Jeremy C. Cedars, Attorney at Law, Alexandria, LA, for Third-Party/Appellant: Donald Guillory.
    Walter Brent Pearson, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee: Mary Guillory Willis.
    Gregory Lynn Jones, Attorney at Law, Pineville, LA, for Defendant/Appellee: Cenia Timber, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjIn this appeal, Donald Guillory appeals the decision of the trial court granting summary judgment in favor of Cenia Timber, Inc. The trial court ordered Mr. Guil-lory to completely indemnify Cenia in a suit brought against it by Mary Guillory Willis, Mr. Guillory’s sister, for the wrongful cutting of timber. For the following reasons, we reverse the decision of the trial court and remand the case for further proceedings consistent with this opinion.

FACTS

In May 2003, Mr. Guillory contacted Cenia through his agent, Bruce Willis Forest Management, to sell standing timber on three tracts of land. Mr. Guillory represented that the land was owned in whole by him throughout the dealings with Cen-ia. Cenia agreed to purchase “all merchantable timber” on the tracts of land, and Willis Forest Management prepared a timber deed in accordance with the agreement. Cenia paid Mr. Guillory $33,696 for the timber, that was actually co-owned by his sister, Mary Guillory Willis. The timber was cut during 2003 and 2004.

In October 2005, Mrs. Willis filed suit against Cenia to recover damages resulting from the cutting of her share of the timber. Cenia then filed a third-party demand against Mr. Guillory. Cenia filed a motion for summary judgment seeking to have Mr. Guillory held liable to them for the amounts paid to him for the timber which was co-owned by Mrs. Willis, and to order Mr. Guillory to indemnify Cenia for “any and all amounts awarded” to Mrs. Willis in her suit against them. The trial court granted the summary judgment in favor of Cenia. From this decision, Mr. Guillory appeals.

| ..ISSUE

Mr. Guillory asserts three assignments of error on appeal. However, as we agree with the second, that the trial court erred in granting Cenia complete indemnification when issues of fact existed as to its own liability under La.R.S. 3:4278.1, et seq., we need not address the remaining two.

STANDARD OF REVIEW

A motion for summary judgment shall 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.Code Civ.P. art. 966(B). The party seeking summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. La.Code Civ.P. art. 966(C). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. Appellate review of summary judgments is de novo, utilizing the same criteria that guide the trial court. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152.

Louisiana Revised Statutes 3:4278.1 states, in pertinent part:

A. It shall be unlawful for any person .to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
I.C- Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.

Further, La.R.S. 3:4278.2 states, in pertinent part, as follows:

B. A buyer who purchases the timber from a co-owner or co-heir of land may not remove the timber without the consent of the co-owners or co-heirs representing at least eighty percent of the ownership interest in the land, provided that he has made reasonable effort to contact the co-owners or co-heirs who have not consented and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with the other co-owners or co-heirs.
E. Failure to comply with the provisions of this Section shall constitute pri-ma facie evidence of the intent to commit theft of the timber by such buyer.

As stated in McConnico v. Red Oak Timber Co., 36,985, p. 4 (La.App. 2 Cir. 5/16/03), 847 So.2d 191, 195:

La.R.S. 3:4278.1 must be read in pan matena with its companion statute, La. R.S. 3:4278.2. R.S. 3:4278.2 provides that a co-owner of land may sell his or her undivided interest in the timber; however, the buyer cannot remove the timber without the consent of at least 80% of the ownership interest in the land. La. R.S. 3:4278.2(A) and (B). Failure to comply with the provisions of the statute constitutes prima facie evidence of intent to commit theft by the buyer. La.R.S. 3:4278.2(E). Accordingly, reference to “the owner or legal possessor” in La. R.S. 3:4278.1 must be construed to mean “at least 80% of the ownership interest in the land.”

In general, a third party dealing with immovable property is charged with knowledge and notice of the existence and contents of a recorded instrument affecting the property. Ignorance of such is culpable. Powell v. Dorris, 35,510 (La. App. 2 Cir. 4/5/02), 814 So.2d 763; Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1 Cir. 5/19/99), 740 So.2d 173. Where such an instrument contains language that fairly puts a purchaser on inquiry as to the title and he does not avail himself of the |4means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having bought at his own risk and peril. Cole-Gill v. Moore, 37,976 (La.App. 2 Cir. 12/19/03), 862 So.2d 1197, units denied, 04-446, 04-657 (La.4/30/04) 872 So.2d 501, 502.

The evidence submitted by Cenla in conjunction with its motion for summary judgment does not indicate that there is no genuine issue of material fact as to its own liability in this matter. To the contrary, the affidavit of Blaine Ussery, the vice-president of Cenla, indicated that, rather than checking the public record as required by them, Cenla executed the timber deed solely based on the representations of Mr. Guillory and his agent, Bruce Willis.

As noted above, Cenla is charged with knowledge of Mrs. Willis’ ownership interest and cannot insulate itself from any liability merely by purchasing the property from Mr. Guillory, regardless of how improper his actions may have been, when the public records indicate that the property was owned by Mrs. Willis. By failing to examine the public record, Cenla proceeded at its own peril. Moreover, Cenla’s reliance on the specific terms of a legal contract with less than eighty percent of the ownership does not exempt it from liability under La.R.S. 3:4278.1. McConnico, 847 So.2d 191. As such, there exists a genuine issue of material fact as to the comparative fault between Cenla and Mr. Guillory for the wrongful cutting of Mrs. Willis’ timber. While Mr. Guillory did not supply any evidence in opposition to Cen-la’s motion for summary judgment, he did not need to, as Cenla failed to made a prima facie showing that its motion should be granted, or that it was entitled to judgment as a matter of law.

^CONCLUSION

For the above reasons, the decision of the trial court granting summary judgment in favor of Cenia is hereby reversed. The matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to Cenia Timber, Inc.

REVERSED AND REMANDED.