author: 11 TERRI F. LOVE, Judge.

text:
    Gregory FLINT v. The TROLLEY STOP and Essex Insurance Company.
    No. 2002-CA-1423.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.
    Rehearing Denied May 15, 2003.

      Marti Tessier, Mandeville, LA, for Plaintiff/Appellee.
    Al M. Thompson, Jr., Berrigan, Litch-field, Schonekas, Mann, Traína & Thompson, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   11 TERRI F. LOVE, Judge.

Trolley Stop, Inc. appeals the trial court’s judgment, which found the Trolley Stop and its waitress, Dana Maurice, negligent based on injuries Gregory Flint, Sr., sustained as a result of coffee spilling onto his hand, stomach, legs, and groin area. The trial court awarded $15,000 in general damages, $1,502.82 in lost wages, and $544 in lost details to the plaintiff. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 22, 1996, Gregory Flint (“Flint”), a New Orleans police officer, entered the Trolley Stop, Inc.(“Trolley Stop”) to purchase a cup of coffee. A Trolley Stop employee, Dana Maurice, served Flint along with several other police officers. While raising his cup for a refill of coffee, the coffeepot collided with the cup and shattered. Hot coffee spilled onto Flint’s hand, stomach, legs, and groin area. Flint was taken to the emergency room and admitted to the hospital. As a result of his injuries, Flint underwent physical therapy for his hand. Upon Flint’s return to work on December 15, 1996, he was assigned to work desk duty Lfor several months. Flint’s hand was discolored immediately after the incident and remains slightly discolored where the coffee spilled onto his hand, stomach, legs and groin area.

The defendant filed suit against the Trolley Stop and its insurer, Essex Insurance Company (“Essex”), for damages. Essex was dismissed from the suit for failure to produce a copy of the insurance policy. After a bench trial, judgment was rendered in favor of the plaintiff awarding $15,000 in general damages, $1,502.82 in lost wages, and $544 in lost details. Trolley Stop filed a Motion for a New Trial, which was denied by the trial court. Subsequently, Trolley Stop filed a Motion and Order for Suspensive Appeal.

DISCUSSION

It is well settled that a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176. Thus, in order to reverse a trial court’s finding of facts, an appellate court must first determine, after reviewing the record in its entirety, that a reasonable factual basis does not exist for the finding and that the record establishes that it is clearly wrong. Housley v.Cerise, 579 So.2d 973 (La.1991).

In the appellant’s first assignment of error, the Trolley Stop argues that the plaintiff failed to prove by a preponderance of the evidence each of the elements necessary to establish Trolley Stop’s negligence. Trolley Stop contends the three elements were as follows:

|gl. Trolley Stop, Inc. owned the business where plaintiff was injured;
2. Trolley Stop, Inc. employed the waitress who spilled the coffee;
3. Trolley Stop, Inc. owned the coffee pot that shattered.

A review of the record reveals the plaintiffs petition for damages is styled “Gregory Flint v. Trolley Stop & Essex Insurance Company.” However, in the body of the text, the defendant is properly recognized as “Trolley Stop, Inc.”. The trial court’s judgment failed to reflect the corporate nature of the defendant.

In accordance with La. C.C. art. 24, the Trolley Stop, Inc., a Louisiana corporation, was served under its corporate name. The defendant filed its answer without any exceptions to sufficiency of service or right of action. This court deems the omission of “Inc.” in the defendant’s name as harmless error.

This court held in Washington v. Avondale Industries, Inc., 1998-0362, p. 3 (La.App. 4 Cir. 3/18/98), 708 So.2d 1254, 1256-1257: “An employer is answerable for the damage occasioned by his servant in the exercise of the functions in which the servant is employed. La. Civ. Code art. 2320. In the application of Article 2320, an employer’s vicarious liability for conduct not his own extends only to the employee’s tortious conduct, which is within the course and scope of employment.” Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985).

Whether a party is hable for the act of a tortfeasor on the basis that the tortfeasor was the party’s employee in the course and scope of employment depends upon the proof and assessment of several factors, including payment of |4wages by the employer, the employer’s power of control, the employee’s duty to perform the particular act, the time, place and purpose of the act in relation to service of the employer, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act. Id. at 1161.

Officer Ferrier testified that he and Officer Gina Cousins and Flint visited the Trolley Stop frequently and Dana Maurice had waited on their table during many of their visits to the Trolley Stop. When asked to describe the sequence of events leading to the incident, Officer Cousins testified as follows:

Q. Could you describe, to your best recollection, of what happened?
A. “Um, Greg asked Dana for some more coffee. He motioned her to come over because he needed more coffee. He picked his cup up because she had a habit of overflowing the coffee and it would waste all over the table, and he— so he picked the cup up to hand it to her and she was walking. And as she was walking she was rushing along, and she went to pour the coffee and she hit the cup. And I don’t know if the glass exploded or the cup, I’m not sure, but I know coffee went everywhere.”

It is evident Flint and the other officers present at the time of the incident were familiar with Dana Maurice in her capacity as a waitress employed by the Trolley Stop restaurant. The trial court was presented sufficient evidence to conclude Dana Maurice’s tortious conduct occurred during the course and scope of her employment with the Trolley Stop.

| ¡¿Further, Trolley Stop alleges the plaintiff failed to prove the last element, ownership of the coffeepot used on the morning of the incident.

Officer Cousins testified that the coffeepot used on the morning of the incident was the same type of coffeepot used during previous visits to the restaurant and it appeared to be in good condition prior to the accident.

The record reflects Flint was injured in the Trolley Stop restaurant. The witnesses testified Dana Maurice had served them as waitress on several occasions, including the morning of the incident. There was also testimony that the coffeepot, which was in good condition prior to the accident, was a commonly used type of carafe in the restaurant. The Trolley Stop failed to call any witnesses or experts to refute the testimony rendered at trial.

This court finds the trial court did not abuse its discretion in finding the Trolley Stop was the correct corporate entity to file suit against and it was sued in its capacity as a Louisiana corporation. Moreover, Dana Maurice was clearly in the scope of her employment as a waitress for the Trolley Stop. Therefore, Trolley Stop is legally responsible for the damages Dana Maurice caused under the doctrine of respondeat superior.

In appellant’s second assignment of error, the Trolley Stop alleges the damages awarded to the plaintiff are excessive. Thus, we must determine whether an award of $15,000.00 in general damages, $1,502.82 in lost wages, and $544 in lost details is an abuse of discretion.

| fiThe trial court has great discretion when assessing damages. An appellate court should not disturb an award unless it is an abuse of discretion. See Guillen v. Transit Management of Southeast Louisiana, 94-0947 (La.App. 4 Cir. 12/28/94), 648 So.2d 487. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the great discretion of the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379. General damages involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors, which affect the victim’s life. Delphen v. Dep’t of Transp. and Dev., 94-1261, pp. 13-14 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 336.

The medical records of Dr. Norman McSwain, M.D., an emergency room physician, stated the plaintiff sustained second-degree burns on his right hand, groin areas, and his abdomen. Flint was subsequently admitted to the hospital for two days. Upon his discharge from the hospital, Flint was instructed to schedule followup visits with Dr. McSwain in addition to undergoing physical therapy. At the trial on the merits, the plaintiff testified the skin discoloration from the burns remained noticeable on his hand, thighs, and stomach.

Flint did not return to work until three weeks after the incident and he was placed on “light” duty upon his return to work, which lasted for several months. This court finds that the record supports the trial court’s damage award. Therefore, |7we find that the trial court’s award of damages did not constitute a clear abuse of discretion.

In the appellant’s third assignment of error, the Trolley Stop avers the trial court erred in not attributing any fault to the plaintiff for lifting his coffee mug into the air, causing the collision between the coffee pot and coffee mug.

In assessing the trial court’s allocation of fault regarding general damages awards, this court applies the following standard: “By analogy the trier of fact is owed some deference in allocating fault, for the finding of percentages of fault pursuant to the comparative fault article. La. Civ.Code art. 2323 is also a factual determination. There is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations. In both, the trier of fact, unlike the appellate court, has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence. After the court of appeal finds a “clearly wrong” apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Riley v. Reliance Ins. Co., 97-0445, p. 6 (La.App. 4 Cir. 11/19/97), 703 So.2d 158, 163. See also Clement v. Frey, 96-1119, 95-1163 pp. 7-8 (La.1/16/96), 666 So.2d 607, 610-611.

Officer Gina Cousins testified Dana Maurice had a habit of overflowing coffee cups and Dana was in a rush because the restaurant was busy that morning. Officer Robert Ferrier stated he and Officers Flint and Cousins were regulars at the IsTrolley Stop where Dana Maurice usually waited on their table. He explained the sequence of events as follows:

Q. Was she acting in a different manner from her usual?
A. Sometimes she would sit and talk with us and converse with us. She was, you know, a nice waitress. But at that time she was rushing. She appeared to be rushing.
Q. Did you hear how hard or see how hard—
A. She hit it — she hit it relatively hard. You heard — you heard a pretty loud smashing sound at which time the coffee pot exploded.
Q. And just from what you saw do you believe the accident could have been avoided?
A. Yes.

Flint and two of the officers that were present during the incident testified that Dana Maurice was working hurriedly, because there were a large number of patrons in the restaurant. There was also testimony regarding Dana’s propensity for overfilling a coffee cup. In order to prevent such an overflow, Flint testified to the following order of events:

Q. When she hit your cup, was it a tap or was it a slam?
A. It slammed into the cup.
Q. When it slammed into the cup what happened to the coffee?
A. Uh, the pot burst and the coffee went all over me.
Q. Where did it go?
A. Uh, well, when I picked my cup up to bring it over to my right side, before I could put it down I had my cup in my right hand. Before I could put it down she had went to pour the coffee and slammed the pot into it so the coffee spilled on my right hand, to the table, and then into my lap.

lain the trial court’s written reasons, it stated, “the waitress employed by the Trolley Stop proceeded in haste in pouring the coffee, and thus was negligent.” Therefore, the trial court did not find that Flint’s actions warranted apportionment of some degree of fault. Based on the testimony of Flint in conjunction with that of the two witnesses and medical records introduced into evidence at trial, this court does not find the trial court’s decision to apportion 100% of the fault to the defendant clearly wrong.

CONCLUSION

For the above mentioned reasons, the trial court’s decision is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: | t GASKINS, J.

license: Public Domain

text:
    BANKERS INSURANCE COMPANY, Plaintiff-Appellee, v. STATE of Louisiana, Defendant-Appellant.
    No. 37,080-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2003.

      Richard Ieyoub, Attorney General, for Appellant.
    Jerry Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, William Noland, for Appellee.
    Before GASKINS, MOORE and KOSTELKA (Pro Tempore), JJ. •
   | t GASKINS, J.

The State of Louisiana appeals from a trial court judgment granting a petition for nullity of judgment on a bond forfeiture. The state contends that the trial court erred in not dismissing the petition on the basis of prescription. For the reasons set forth below, we reverse.

FACTS

David Leslie Methvin was charged with felony theft in a criminal case in the Fourth Judicial District in Ouachita Parish. On or about April 11, 1994, Bankers Insurance Company, through its bondsman, Affordable Bonding, obtained Meth-vin’s release on a $3,500 bond. The bond contract required Methvin to appear in court on April 27, 1994, and to appear in court thereafter until discharged by law.

Methvin failed to appear in court on April 27, 1994, but no bench warrant was issued. The transcript indicates that his attorney called the prosecutor about confusion as to the court date. The prosecutor stated he would like to call Methvin on bond, reset arraignment for May 4, 1994, and reserve the right to take a judgment on that date if Methvin failed to appear.

On April'28, 1994, the trial court signed an order setting May 4, 1994, for arraignment and determination of counsel with notice being sent to Methvin and his defense counsel, Michael Courteau.. On April 29, 1994, the district attorney’s office apparently mailed copies of the notice to Methvin, Mr. Courteau and Affordable Bonding. The sheriffs office was unable to locate Methvin to actually serve the notice on him.

|gOn May 4, 1994, Methvin failed to appear in court. That same day, the court rendered a judgment of bond forfeiture and ordered that a bench warrant be issued. A written judgment was signed on May 13, 1994; it stated that the bond forfeiture was based on the failure to appear May 4, 1994. The judgment also specified that the state offered “proper evidence” as to the defendant and the surety being notified as required by law.

On February 22, 2001, the state requested payment of the judgment by Bankers Insurance Company.

On June 4, 2001, Bankers Insurance Company filed a petition for nullity of judgment of bond forfeiture. It asserted that when Methvin failed to appear on April 27, 1994, the provisions of La. C. Cr. P. art. 344(B)(8) requiring notice to the agent or bondsman of the new appearance date were triggered. It further contends that under La. R.S. 15:85(1), the state was required to introduce into evidence at the May 4, 1994 bond forfeiture hearing notice to the criminal defendant and to the surety under La. C. Cr. P. art. 344(B)(3). Due to the failure to introduce such notice as pertained to the surety or its agent or bondsman, Bankers Insurance Company brought a nullity action pursuant to La. R.S. 15:85(9) and La. C.C.P. art.2001, et seq.

The state filed an exception of prescription. While conceding that notice to the bondsman of the May 4, 1994 court date was not filed into evidence at the time the bond forfeiture was ordered on May 4, 1994, the state asserted that the bondsman did, in fact, receive notice as required by law and that proof of that notice was attached to the bond forfeiture judgment when it was submitted for the judge’s signature. Bankers | -¡Insurance Company filed an opposition. It claimed that the state’s pleading asserted a defense but did not set out an exception of prescription. On March 5, 2002, the trial court signed an order denying the state’s exception of prescription.

On August 30, 2002, the state filed an answer. While admitting that notice to the surety or its agent or bondsman was not admitted at the hearing, the state again asserted that notice was sent to the surety and that proof of notice to the surety was attached to the bond forfeiture judgment when it was submitted to the judge for signature.

The matter was argued and submitted at a hearing on August 30, 2002. The parties stipulated that the state did not introduce evidence of proof of notice to the bondsman at the time of the bond forfeiture hearing on May 4, 1994. On September 27, 2002, the trial court ruled in favor of Bankers Insurance Company, finding that the requirements of La. R.S. 15:85 were not fulfilled by the state.

The state appeals.

LAW

The general rale is that bond forfeitures are not favored. State v. Bailey, 567 So.2d 721 (La.App. 2d Cir.1990).

A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules set forth in the Code of Criminal Procedure. State v. Likens, 577 So.2d 285 (La.App. 3d Cir.1991), writ denied, 580 So.2d 386 (La.1991).

4 In order to obtain a judgment of bond forfeiture against a surety, the state must comply strictly with the terms of the statutory provisions regulating bond forfeitures. State v. DeLaRose, 391 So.2d 842 (La.1980); State v. Hathaway, 403 So.2d 737 (La.1981); State v. Bailey, supra.

La. R.S. 15:85 provides, in relevant part: All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture....
(6) Appeals, (a) The defendant and his sureties shall have the right to an appeal that suspends the effect or the execution of the judgment of bond forfeiture....
(9) Nullity actions. Nullity actions pursuant to Code of Civil Procedure Art. 2001 et seq. not filed within the sixty days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.

In pertinent part, La. C. Cr. P. art. 344 stated:

B.... If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the personal surety or the agent or | ¡^bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date.

Proof of notice is essential before a bond can be forfeited. State v. Holloway, 28,901 (La.App.2d Cir.12/11/96), 684 So.2d 1068.

The action for nullity is provided for in the Louisiana Code of Civil Procedure by Articles 2001, et seq. It is available with respect to bond forfeiture judgments. State v. Likens, supra.

Judgments can be attacked on the grounds that they are absolutely null under the provisions of La. C.C.P. art.2002 (vices of form) or relatively null as provided by La. C.C.P. art.2004 (vices of substance). State v. Bailey, supra. Failure to properly serve a defendant with process as required by law is a vice of form upon which a judgment can be nullified. La. C.C.P. art. 2002(A)(2). State v. Cook, 616 So.2d 272 (La.App. 2d Cir.1993). An action to annul a judgment due to vices of form may be brought at any time. La. C.C.P. art. 2002(B).

DISCUSSION

The state contends that the surety’s claim, which was filed seven years after the bond forfeiture, was prescribed.

Bankers argues that the jurisprudence requires that the state strictly comply with the bond forfeiture statute and that the state’s failure to introduce into evidence at the May 4, 1994, hearing any evidence of notice 1 fito the surety subjects the ensuing bond forfeiture judgment to being set aside as a nullity.

Our consideration of this matter begins with a review of Bankers’ carefully drafted petition for nullity. It is apparent that Bankers was seeking to have the seven-year-old bond forfeiture judgment declared a nullity under La. C.C.P. art.2002, since such an action could be brought at any time. However, the petition does not allege the presence of any of the exclusive grounds for a nullity action under La. C.C.P. art.2002, including failure to serve a defendant with process as required by law. While Bankers alleged that proof of notice to the surety was not introduced into evidence at the bond forfeiture hearing as required by La. R.S. 15:85, it failed to allege that such notice of the May 4, 1994, court date was not given. (During arguments before the trial court, counsel for Bankers candidly referred to the letter to the bondsman as “[a] document which issued and which probably was sent to the agent timely.”)

The vices of form found in La. C.C.P. art.2002 sound of due process violations. Failure to make adequate notification is a due process violation and makes a judgment subject to nullification. Failure to present evidence of notification, however, when notification has been made, is manifest error, but not a due process violation. Had this matter been addressed in a timely summary proceeding under La. R.S. 15:85(5) or in an appeal, Bankers would be successful in arguing that La. R.S. 15:85 was not followed. Here, where the error was one of statutory noncompliance, the vice did not rise to 17the constitutional level of due process and, consequently, nullification was not an available remedy. See State Through DOTD v. Knight, 93-767, p. 3 (La.App. 3d Cir.2/2/94); 631 So.2d 714, 715-716, writ denied, 94-0571 (La.4/22/94), 637 So.2d 161, and Gunter v. Moore, 2002-1126, p. 7 (La.App. 3d Cir.2/5/03), 838 So.2d 118, 123.

Examination of other actions for nullity in bond forfeiture cases indicates that there were at least allegations — if not actual evidence — that no notice was sent. See State v. Bailey, supra (“On May 13, 1988, Ralph’s Bail Bonds, agent for the surety, filed a motion to set the bond forfeiture aside, alleging that notice to the surety as required by La. C. Cr. P. Article 337 was not given....”); State v. Bailey, supra (“Bankers appealed arguing that the State failed to send the notice required by La. C. Cr. P. art. 344(B)(3), and that the State failed to introduce the proper evidence at the forfeiture hearing as required by LSA-R.S. 15:85(1).... The record does not contain any evidence of notice sent by the State to Bankers that would meet the requirements of La. C. Cr. P. art. 344(B)(3)”). However, see and compare State v. Likens, supra.

We find that since Bankers failed to allege that it “has not been served with process as required by law,” its nullity suit was not properly brought under La. C.C.P. art.2002. Consequently, we reverse the judgment of nullity in Bankers’ favor and find that the bond forfeiture judgment is valid.

[¡¡CONCLUSION

The judgment of the trial court is reversed. Costs are assessed against the appellee.

REVERSED.

      . Although the record indicates that an attorney named Michael Courteau was appointed to represent Methvin, the attorney who called the prosecutor was from Mississippi and had not yet enrolled.

      . Although La. C. Cr. P. art. 344 (formerly art. 337) has been amended since May 1994, the law in effect at the time of the bond forfeitures applies. State v. Adkins, 613 So.2d 164 (La.1993).

      . The slate further argues that while the proof of notice to the bondsman was not introduced into evidence at the bond forfeiture hearing, it was attached to the bond forfeiture judgment when it was presented to the judge for signing on May 13, 1994. However, the record is devoid of any evidence supporting this contention and we cannot rely solely on an argument presented in brief for factual information. State v. Holloway, supra.

      . An action to annul a judgment obtained by fraud or ill practices under La. C.C.P. art. 2004 must be brought within one year of the discovery of the fraud or ill practices.


author: J^DREW, J.

text:
    STATE of Louisiana, Appellee, v. Denise J. KLASEK, Appellant.
    No. 37,114-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2003.

      Louisiana Appellate Project, by G. Paul Marx, Paula Corley Marx, Indigent Defender Board, by Pamela G. Smart, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, John Schuyler Marvin, Joseph A. Gregorio, Spencer Hays II, David G. Griffith, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   J^DREW, J.

Pursuant to a plea bargain, Denise J. Klasek entered a plea of guilty to one count of distribution of cocaine in violation of La. R.S. 40:967. The trial court imposed the 30 year maximum sentence and denied defendant’s timely motion for reconsideration of the sentence. Contending the trial court erred in considering past arrests in imposing her sentence, Klasek appeals her sentence as excessive. For the following reasons, we affirm.

Initially, the state charged Denise J. Klasek with three counts of distribution of cocaine and two counts of distribution of methamphetamine, violations of La. R.S. 40:967, each of the five counts being punishable by imprisonment at hard labor for not less than five to no more than thirty years, the first five years of which must be served without benefits, and an optional fine. The state also charged defendant with one count of distribution of alprazo-lam (a Schedule IV CDS commonly known as Xanax), a violation of La. R.S. 40:969, punishable by imprisonment at hard labor for not more than ten years. In exchange for defendant’s agreement to plead guilty to the first count, the state agreed to dismiss all the remaining charges.

The matters of record disclose that during an undercover investigation conducted at various locations in Bossier City, defendant distributed cocaine to a police agent on May 22, May 27, and June 2,1999. She distributed alprazolam, an anti-depressant, to the same agent on July 16, 1999. Defendant also distributed methamphetamine to the same agent on June 17 and August 6, 1999. The crime lab verified the identities of all the suspected substances.

2 When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, she is relegated to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992). A trial court has broad discretion to sentence within the statutory limits. Past records of drug offenses should weigh heavily in the decision to uphold the imposition of maximum sentences. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Jones, 31,569 (La.App.2d Cir.12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40, 42.

Prior to imposing sentence, the trial court reviewed a thorough pre-sentence investigation report and considered the facts of the case. The court noted that the defendant was a third felony offender. Her adult record Ubegan in 1991 in San Diego, where she was convicted of possession of a controlled substance but was placed in a misdemeanor diversion program. In 1992, again in San Diego, defendant was convicted of forgery. In 1994 she was convicted of burglary and possession of a controlled substance in San Diego. In 1999, defendant had moved to Shreveport, where she was convicted for misdemeanor possession of a controlled substance. She returned to San Diego where, in 1999, she was again convicted for misdemeanor possession of a controlled substance.

Defendant was 44 years old at the time of sentencing, meaning that at the time of the offense, she was old enough to know better. Her plea bargain had secured the dismissal of five counts. Defendant makes a big point that she had not actually “sold” the drugs to the officer, arguing that she had merely “traded” the drugs with the agent. However, she conceded that trading constituted distribution, making this factor a distinction without a difference. Defendant claimed to have been a drug addict all her life.

The court pointed out that:

• The charges could have resulted in a sentence in excess of natural life if individual sentences had been imposed consecutively on each count;
• The sentence could have been natural life if the state had charged defendant as a third felony offender;
• Defendant had been on probation at least four times to no avail; and
• A lesser sentence would deprecate the seriousness of the offense.

On this record, we do not find constitutional error. Defendant’s significant criminal history includes prior convictions for drug possession. She received a substantial reduction in sentencing exposure through her plea | ¿bargain and was given lenience by the state through its decision not to charge her as an habitual offender. The sentence imposed is lawful. Giving due consideration to the facts of the case— including how the defendant bragged about the quality of her CDS — and her background of criminality, the sentence is neither grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. The trial court did not err in considering those charges in formulating its sentence. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of this case, is not constitutionally excessive.

The conviction and sentence are affirmed.

AFFIRMED.

      . The sentence technically is illegally lenient because the trial court failed to state that the first five years of the term must be served without benefits, as required by the statute of conviction. This error, however, will automatically be corrected by operation of La. R.S. 15:301.1.


author: I t STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Travis GLOSSON, Appellant.
    No. 36,999-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2003.
    Rehearing Denied May 8, 2003.

      Kidd-Culpepper, by Paul H. Kidd, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Charles L. Brumfield, Edward D. Young, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and KOSTELKA (Pro Tempore), JJ.
   I t STEWART, J.

The defendant, Travis Glosson (“Glos-son”), entered a guilty plea to the charge of distribution of CDS II, cocaine, in violation of La. R.S. 40:967. Glosson now appeals the trial court’s denials of two pretrial motions and the length of his sentence. We affirm the defendant’s conviction and sentence.

FACTS

On November 17, 2000, Glosson was approached by an undercover agent, Perry Fleming (“Fleming”), and a confidential informant, Wade Hatfield (“Hatfield”), for the purchase of $200 worth of crack cocaine. Glosson got in a car with Fleming and Hatfield and had Fleming drive him home. When Glosson arrived at his house, he went inside his home and returned with drugs. Glosson reentered the vehicle and handed a piece of crack cocaine to Fleming who then gave the defendant $200.00. Fleming then drove Glosson back to where his car was parked. Fleming and Hatfield later met with Lieutenant Antonio German (“German”) of the Morehouse Parish Sheriffs Office Narcotics Division where Fleming gave German the piece of crack cocaine.

Glosson does not dispute the occurrence of a drug transaction, he disputes the facts surrounding the drug transaction. He contends that he did not give the piece of crack cocaine to Fleming. Instead, he asserts that he sold the drugs inside his home to Hatfield. The state answered the defendant’s bill of particulars in the affirmative when asked (1) if the state was charging defendant with distributing crack cocaine to Perry Fleming; and (2) does the state contend that defendant distributed the crack cocaine to | ¡¿Perry Fleming when defendant was present in the car along with Perry Fleming and the confidential informant. On the basis of his contention that he sold drugs to Hatfield inside the home, rather than to Fleming in the car as the state asserted, Glosson sought to have any evidence of a drug transaction inside his home excluded as other crimes evidence. He also filed a motion to have the state reveal an alleged agreement that it had with their confidential informant, Wade Hatfield. Both motions were denied. Glosson pled guilty to one count of distribution of cocaine, and was sentenced to twelve years at hard labor. He appeals the trial court’s denial of his two pretrial motions and his sentence as excessive.

DISCUSSION

Bill of Particulars

Article 1, § 13 of the Louisiana Constitution states in pertinent part, “In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” The function of the bill of particulars is to inform the accused of matters pertinent to the charge which the district court in its sound discretion considers necessary, in fairness, to permit the accused to defend himself. State v. Harris, 627 So.2d 788 (La.App. 2d Cir.1993); State v. Valentine, 565 So.2d 511 (La.App. 2d Cir.1990). However, a defendant is not entitled to a bill of particulars to discover the details of the evidence with which the state expects to prove its case. State v. Ford, 349 So.2d 300, 303 (La.1977).

In the instant case, the facts surrounding the exact location of the drug transaction |sare disputed. The defense contends the transaction occurred in the defendant’s house, the state contends that the transaction occurred in a car. The record reflects that there was only one transaction connected to the distribution charge by the state. There was not a completely different charge as defense counsel states in his brief.

Glosson argues that during the trial the state intended to elicit testimony about the facts of the drug transaction that supposedly occurred in his home from him and Hatfield, and that the testimony would be evidence of other crimes and should not be admissible without notice from the state to introduce such evidence at trial under State v. Prieur, 277 So.2d 126 (La.1973). Glosson further states that he was misled by the state’s answers to the bill of particulars.

The bill of information charged the defendant with distribution of cocaine on November 17, 2000. The bill of information did not state the name of the individual who received the drugs or the place where the distribution occurred. However, the defendant knew of the nature and cause of the accusation against him. He admitted to distributing crack cocaine on the day specified in the bill of information and did not show any signs of confusion regarding a possible separate occasion of distribution of the substance. The following colloquy took place between the trial judge and the defendant:

The Court: This bill that I’m looking at in your case ... do I have the record back? Here it is. I’ve got it right here. Okay. The bill that I’m looking at charges that you committed this offense on or about the 17th of November of the year 2000. It says you distributed cocaine. What did you do that day to get charged with this?
[4Mr. Glosson: Sir?
The Court: What did you do? How did you get charged?
Mr. Glosson: Well Wade Hatfield came into the resident [sic] of 1423 Rosina.
The Court: I can’t quite hear you. Now tell me a little bit louder.
Mr. Glosson: Wade Hatfield.
The Court: Wade Hatfield came, okay.
Mr. Glosson: Came into the resident [sic] of 1423 Rosina and purchased narcotics from me.
The Court: From you?
Mr. Glosson: Uh huh.
The Court: Okay. Now as I understand it Mr. Young you contend there was a distribution but it was to another party, right?
Mr. Young: Yes sir.
The Court: Can you state the basis of the State’s charge?
Mr. Young: Your Honor the State contends that on the 17th of November I believe is the date, he’s right. Wade Hatfield and undercover officer Perry Fleming were in a vehicle that picked up Mr. Hat ... excuse me, that picked up Mr. Glosson. He was getting his car washed. They went to his home, 1423 Rosina. They let Mr. Glosson out. He went inside and got two hundred dollars worth of crack cocaine. Came back, got in the car. At that point he distributed the crack to the undercover officer and the undercover officer in turn gave him two hundred dollars. Then they took him back to where his car was.
Mr. Kidd: Judge that’s the purpose of our motion is that we, we don’t dispute anything about |Rpicking him up at the car wash, coming back to 1423 Rosina but we contend that it happened inside the house between Travis Glosson and Wade Hatfield.
The Court: Okay.
Mr. Kidd: It’s just a matter of contention.
The Court: Okay. But as I understand you, you are telling me that you did distribute crack cocaine or cocaine on that particular day. Is that correct?
Mr. Glosson: Yes sir.

Because Glosson charges that the drug transaction did not take place in the manner that he admits to, he asserts that the trial court erred in denying his motion to exclude evidence of other crimes. Specifically, the court failed to exclude his distribution of crack cocaine to Wade Hatfield inside the residence of 423 Rosina on November 17, 2000.

The state argues that the defendant was charged by bill of information with distribution of cocaine, which occurred on November 17, 2000. The state contends that this is the crime they intended to prove and it is irrelevant whether the transaction occurred in a car or in a house, because the same crime is being referred to by both parties.

In this instance, the defendant was fully aware of the nature and charge of his offense. The record does not reflect that the state’s answers to the bill of particulars misled or prejudiced the defendant in any way. This assignment is therefore without merit.

I RCrosby Plea

After the trial court denied Glos-son’s motion in limine to exclude other crimes evidence, he plead guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976). This assignment of error deals with a pretrial ruling on a denial of a motion, by the defense, to disclose requested information regarding a confidential informant. In State v. Crosby, supra, the Louisiana Supreme Court set out principles applicable to appellate review of assignments of error reserved at the time a defendant enters a plea of guilty. The court stated, “the functional purpose involved is to permit a fair and efficient method to review a central issue of a trial and a prosecution, in instances where the pre-plea ruling, if erroneous, mandates a reversal of any conviction which may result.” The court went on to say, the type of error usually here assigned represents a violation of a constitutional or statutory right which, for reasons beyond guilt or innocence, would mandate a reversal of any conviction resulting from a trial. When a conditioned plea is accepted reserving an assignment of error as to a pre-trial ruling of this nature, we will assume that the evidence questioned is of this prejudicial nature and will be offered at the trial, unless the record prior to the plea demonstrates otherwise.

Since a plea of guilty by its nature admits factual guilt and relieves the state of the necessity to prove it by a contested trial, assignments based upon incidents relating to procedural conduct of the merit-trial will be reviewed (if permitted to be reserved, as in the present case) upon the |7assumption that they represent harmless error, La.C.Cr.P. art. 921, unless the record clearly demonstrates otherwise. Crosby, supra at 591.

Glosson argues that since the identity of the confidential informant had been disclosed, the state is no longer protected under La. R.S. 44:3 and that he was entitled to any information from the state showing an agreement that it had with the confidential informant, Wade Hatfield. Glosson asserts that the disclosure of this alleged agreement would reflect that someone had set Hatfield up, and that the state offered Hatfield a deal if he would set up the defendant. Glosson further argues that he should have been allowed to show motive and bias on the part of Hatfield, since the state planned to elicit testimony from Hatfield regarding the alleged drug transaction that occurred in the defendant’s home, outside the presence of Fleming. Additionally, Glosson contends that under La.' R.S. 44:3, he is entitled to a full disclosure of all information related to Wade Hatfield, his involvement in this matter, and any agreement he may have had with the state. The state counters that it is unaware of any agreement made with Wade Hatfield or any confidential informant in relation to the Glosson’s case.

Louisiana Revised Statute 44:3(A) and (B) states in pertinent part:

(A) Nothing in this Chapter shall be construed to require disclosure of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, intelligence agencies, or publicly owned water districts of the state ...
(B) All records, files, documents, and communications, and information contained | ¡¿herein, pertaining to or tending to impart the identity of any confidential source of information of any of the state officers, agencies, or departments mentioned in paragraph A above, shall be privileged, and no court shall order the disclosure of same except on grounds of due process or constitutional law ...

The jurisprudence concerning the discretion vested in the trial court in determining what information about confidential informant’s identities or deals with the state is well established. For instance, in State v. Matthews, 382 So.2d 917 (La.1980), the Louisiana Supreme Court stated,

The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. It is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This court has consistently held that a confidential informant’s identity will be divulged only under exceptional circumstances. State v. Robinson, 342 So.2d 183 (La.1977); State v. Russell, 334 So.2d 398 (La.1976); State v. Thorson, 302 So.2d 578 (La.1974). The general rule is that the burden is upon the defendant to demonstrate exceptional circumstances and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Robinson, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (La.1971); cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Greenbaum, 257 La. 917, 244 So.2d 832 (La.1971).

Recently, the court in State v. Bowie, 2000-3344 (La.4/3/01), 813 So.2d 377 noted:

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the prosecution of evidence favorable to the accused when requested, violates the defendant’s due process rights, if the evidence is material either to guilt or punishment without regard to the good or bad faith of the prosecution. The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may be determinative of guilt or innocence. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Knapper, 579 So.2d 956, 959 (La.1991).

The Louisiana Supreme Court has long enforced a defendant’s right to production of arrest and conviction records of state witnesses for impeachment purposes which satisfy Brady’s materiality standard. State v. Bowie, supra, citing, State v. Robinson, 96-0343, 96-0353 (La.9/20/96), 679 So.2d 411.

The instant assignment of error falls into the “incidents relating to procedural conduct of the merit-trial” category discussed by the court in Crosby, supra. The record does not support that this error “represents a violation of a constitutional or statutory right which, for reasons beyond guilt or innocence, would mandate a reversal of any conviction resulting from trial.” Crosby, supra. The denial of defendant’s motion, by the trial court to grant the defense disclosure to documents reflecting the state’s alleged agreement with Wade Hatfield does not constitute a cause for reversal.

In the instant matter, the identity of Wade Hatfield, the confidential informer, had already been disclosed. In fact, he had been subpoenaed by the defense as a witness. The record indicates that during the pre-trial hearing on the defendant’s motion, defense counsel requested Hatfield’s rap sheet and “papers he filled out” prior to assisting Fleming with the drug buy. Defense counsel wanted to prove a theory that some sort of deal was made between the state and Hatfield. The state objected to disclosure of the requested information based on relevancy.

in Confidential informant identity and information pertaining to them are considered privileged information under La. R.S. 44:3. The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. It is founded upon public policy and seeks to advance the public interest in effective law enforcement. State v. Matthews, 382 So.2d 917 (La.1980), citing, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Although the identity of Hatfield had been disclosed, that does not give the defense access to any and all information held by the state pertaining to this informant, without showing a violation of due process. In State v. Matthews, supra, the Louisiana Supreme Court noted that “much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure.”

In this case, the defense failed to show any apparent agreements made between the state and Hatfield, or any basis for a belief thereof. The record is void of any indication that the state withheld any type of Brady information in relation to any deals made with Hatfield. Furthermore, Hatfield is a witness for the defense not the state. Hatfield was present and waiting to testify at trial for the defense. The defense, therefore, had an opportunity to establish, through direct examination of its witness, any possible deals Hatfield may have made with the state prior to engaging in the undercover drug buy. The defendant has failed to show any violation of due process or constitutional law by the denial of his motion.

_J¿¡The record also indicates that at the time of the trial court’s ruling, the trial was scheduled to begin and Hatfield was present and available to testify. The defendant could have chosen to go to trial and elicit testimony from Hatfield regarding the information he sought from the state regarding the informant’s criminal history or any deals that were made between the state and Hatfield. Glosson chose to enter a plea of guilty instead, waiving his right to a trial by jury.

Consequently, this assignment does not have any merit.

Excessive Sentence

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show adequate consideration of the criteria set forth in La.C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). Remand is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475 (La.1982).

The second inquiry requires an examination of the circumstances of the case and the background of the defendant. A sentence is constitutionally excessive 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. Bonanno, 384 So.2d 355 (La.1980).

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, a sentence is not set aside as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

m Glosson argues the trial court did not mention the defendant’s work history, education, or personal background when reciting reasons for sentencing. He further points out that “at the time of this alleged offense, the appellant was only twenty-six years old.” However, the trial court reviewed the applicable provisions of La.C.Cr.P. art. 894.1 and found paragraph A, subparagraphs (1), (2), and (3) applicable to the defendant. The record also indicates that the trial judge concluded that “there to be no mitigation as contained in 894.1 which would apply to the defendant.” Therefore, the trial court complied with the requirement to give adequate consideration of the criteria set forth in La.C.Cr.P. art. 894.1 under State v. Smith, supra.

In State v. Bonanno, supra, the Louisiana Supreme Court found that in sentencing a defendant, a court is required to examine the circumstances of the case and the background of the defendant. In this case, Glosson entered a guilty plea to one count of distribution of cocaine. In exchange for this plea, the state dismissed all other pending charges. The other pending charges were quite extensive and included car jacking, conspiracy to commit car jacking, distribution of cocaine, possession with intent to distribute cocaine, three counts of possession of a firearm by a convicted felon, possession of drug paraphernalia, and possession of marijuana. The trial court considered a pre-sentence investigative report (PSI) and the facts of this case. The court noted that Glosson’s criminal record contained a charge for two counts of distribution of cocaine in 1991. The court further noted that the defendant entered a plea of guilty to a lesser charge of |iaattempted distribution of cocaine in 1992 and received a sentence of four years at hard labor. The court also noted as part of the PSI the record of misdemeanor offenses and convictions. The record indicates that the trial court complied with Bonanno, supra. Moreover, Glosson received a significant benefit in exchange for his plea from the dismissal of all other charges pending against him in exchange for a guilty plea to one count of distribution of cocaine. The trial court did not abuse its discretion in sentencing him to twelve years at hard labor. This assignment is without merit.

CONCLUSION

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

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, PEATROSS and KOSTELKA, JJ.

Rehearing denied.


author: |, CARAWAY, J.

text:
    S. G., Plaintiff-Appellant, v. CITY OF MONROE, Jerry Ellerman, and Meade O’Boyle, Defendants-Appellee.
    No. 37,103-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2003.

      Todd G. Newman, Monroe, for Appellant.
    McLeod Verlander, by David E. Verlan-der III, Monroe, for Appellee, Dr. Meade P. O’Boyle.
    Before STEWART, CARAWAY and MOORE, JJ.
   |, CARAWAY, J.

In this case, the defendant/pediatrician rendered a report to law enforcement concerning the sexual abuse of a child which she examined. The defendant now seeks immunity for negligence from this suit brought by the plaintiff, who was subsequently arrested. Finding that the immunity under La. C. Ch. art. 611 applies, the trial court rendered summary judgment in favor of the defendant. For the following reasons, we affirm the judgment.

Facts and Procedural History

The plaintiff, S.G., and his ex-wife shared joint custody of their two-year old son. On July 13-14, 1999, S.G. exercised his scheduled overnight visitation with the boy. On the morning of July 14th, S.G. contacted his ex-wife and requested that she take care of the child while he mowed his lawn. S.G. was to resume visitation after he finished the chore. The mother agreed and retrieved her son.

When the mother changed the child’s diaper, she noticed what appeared to be blood on the child’s buttocks. Distressed by the incident, the mother took to the child to her family physician,'Dr. Randy Head, who examined him. Fearing the serious likelihood of abuse, Dr. Head recommended that the mother have the child examined by the defendant, Dr. Meade O’Boyle, who is a pediatrician.

Later that day, Dr. O’Boyle also examined the child and noticed apparent abrasions and dried fresh blood around the child’s rectal area. Due to her concern that there was internal injury to the anus, Dr. O’Boyle preferred the child to Dr. Duke McHugh, a gastroenterologist. That same day, Dr. McHugh conducted a scope of the area that revealed no internal damage.

Thereafter, as a mandatory reporter under La. Ch. C. art. 603, Dr. O’Boyle filed a report of abuse in accordance with La. Ch. C. art. 610. The report stated:

Examination of the anus reveals blood and erythema in the buttocks crease and around the anus. He has fresh abrasion around the anus. He has some spasm of the external sphincter with swelling around the anal orifice. There is blood coming out of the anal orifice.
My impression is that this child has been raped.
The diaper that was changed around 9:30 this morning was brought in. There was no obvious blood on the diaper, but there was a large pubic hair which was black in the diaper as well as some other small fragments of something which I could not identify. This diaper was folded up and sent as evidence in the rape kit. I also sent the other diaper which was also sent with the rape kit. I then handed the rape kit, unsealed, to Detective Ellerman who hand-carried it to Glenwood where further examination will be done under anesthesia by Dr. McHugh as this child had blood coming from the rectum and I could not ascertain where the blood was from. I did not see any frank lacerations in the wall as the child was so upset and fighting so much, but the photographs may show a laceration which I could not see while trying to hold him still.

After local law enforcement involvement in the matter, S.G. was arrested on July 16, 2000.

S.G. filed the present suit against the City of Monroe, Detective Jerry Ellerman, who investigated the report of abuse, and Dr.- O’Boyle. The suit was filed prior to plaintiffs July 26, 2000 grand jury indictment for one |3count of molestation of a juvenile. Specifically, S.G. alleged in his petition that Dr. O’Boyle was negligent in failing to properly conduct a medical exam on the child. He further alleges that Dr. O’Boyle failed to rule out any other possibilities for the child’s condition and obtain a complete history to support her diagnosis. S.G.’s claim rests upon Dr. O’Boyle’s filing of the above medical report which indicated that the child had been raped. S.G. also claimed that Dr. O’Boyle committed libel because she knew the diagnosis was unsubstantiated and false.

Dr. O’Boyle moved for summary judgment on the ground that under La. Ch. C. art. 611, she is immune from civil liability arising from the making of a report of suspected child abuse. Moreover, Dr. O’Boyle argued that summary judgment was appropriate to dismiss the libel action because she never identified S.G. as the perpetrator of the offense, a fact necessary to meet his burden of proof on this claim.

The summary judgment hearing was originally scheduled for February 14, 2002. However, at the request of S.G.’s attorney, the parties agreed to postpone the hearing to May 6, 2002 to allow counsel time to prepare his opposition to the motion. In late April or early May, S.G.’s attorney had apparently scheduled a meeting with Dr. McHugh, in order to prepare an affidavit in opposition to the summary judgment. However, due to a death in the attorney’s family on April 27, 2002, the meeting was cancelled and rescheduled. Dr. O’Boyle’s attorney agreed to continue the hearing for an additional three days, until May 9, 2002. It was not until May 8, 2002 that S.G.’s attorney filed the opposition to the summary judgment that included the supporting documentation regarding Dr. McHugh’s medical examination of the child.

On the morning of the hearing, Dr. O’Boyle’s counsel objected to the court’s consideration of the opposition and attached exhibits on the grounds that it had not been timely filed pursuant to La. C.C.P. art. 966(B) and the local court rules. The court sustained the objection, indicating that it would neither consider the opposition memorandum or attachments, nor allow S.G.’s counsel to orally argue the opposition. After the hearing, the court took the matter under advisement and issued written reasons for judgment, granting Dr. O’Boyle’s summary judgment.

On appeal, S.G. makes three arguments. He first contends that the trial court erred in failing to consider his opposition to the summary judgment. S.G. also argues that the trial court erred in concluding as a matter of law that Dr. O’Boyle was immune from civil suit because the immunity set forth in La. Ch. C. art. 611 does not extend to her “ultimate diagnosis,” which he argues she made with reckless disregard for the truth. Finally, S.G. contends that even if we construe the ultimate diagnosis as part of the initial report, genuine issues of fact exist as to Dr. O’Boyle’s good or bad faith.

Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to |Kaccomplish these ends. La. C.C.P. art. 966(A)(2); McKoin v. State Farm Fire and Cas. Co., 36,429 (La.App.2d Cir.10/23/02), 830 So.2d 437. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.1/21/98), 707 So.2d 459. When a motion is made and supported as required by La. C.C.P. art. 966, the adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967; McKoin, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.5/10/00), 760 So.2d 587.

Under the provisions of La. C.C.P. art. 966(C)(2), when a party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, 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 instead to point out the absence of factual support for one or more elements essential to such claim. 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.

r Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, 128, writ denied, 02-1262 (La.8/30/02), 823 So.2d 952.

Discussion

In the present case, because Dr. O’Boyle did not bear the burden of proof at trial, her burden on the summary judgment was to point out an absence of factual support for one or more elements essential to S.G.’s claim. La. C.C.P. art. 966(C)(2). Dr. O’Boyle sought summary judgment urging that because her report was made in good faith, the immunity provisions protected her from liability as a matter of law.

A physician who examines or treats a child is a mandatory reporter as defined by La. Ch. C. art. 603. A mandatory reporter who suspects that a child has been the subject of abuse endangering either his physical or mental well-being is obligated to make a report of the suspected abuse to either the local child protection unit or law enforcement agency or to a state law enforcement agency. La. Ch. C. arts. 609-610. Further, La. Ch. C. art. 611 provides that:

A. Any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter, or any caseworker who in good faith conducts an investigation, makes an investigative judgment or disposition, or releases or uses information contained in the central registry for the purpose of protecting a child, shall have 17immunity from civil or criminal liability that otherwise might be incurred or imposed.
B. This immunity shall not be extended to:
(1) Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the child.
(2) Any person who makes a report known to be false or with reckless disregard for the truth of the report.

S.G. argues that Dr. O’Boyle’s alleged liability is based upon her “ultimate diagnosis” which, though included in her initial report, was not protected by the immunity provision of La. Ch. C. art. 611. Included within the initial report filed by Dr. O’Boyle was the language, “[m]y impression is that the child has been raped.” It is this statement by Dr. O’Boyle that S.G. contends is “an ultimate diagnosis” that excludes her from the immunity provisions. We find that this argument draws a distinction which is not contemplated by the law.

La. Ch. C. arts. 610(B)(2) and (8) require that the report of a mandatory reporter contain information regarding the “nature, extent, and cause of the child’s injuries ...” and “any other information which the reporter believes might be important or relevant.” The inclusion of the physician as a mandatory reporter under Article 611 contemplates the possibility that medical doctors would provide, in addition to facts, diagnoses in the alleged child abuse cases brought before them. Certainly, one of the primary responsibilities of the physician is diagnosis. In our view, any attempt to separate the reporting of facts and diagnoses in the context of this statutory immunity is misplaced.

Moreover, the immunity afforded the mandatory reporters is meant to encourage those with reasonable cause for suspicion to report suspected Leases, free of the chilling effect presented by the threat of lawsuits. To draw the distinction urged by S.G. would also undermine that purpose. We decline to do so here and find the immunity provision of La. Ch. C. art. 611 applicable to Dr. O’Boyle’s entire report, including the expression of her opinion that the child had been raped.

Alternatively, S.G. contends that summary judgment was inappropriate because a genuine issue of material fact exists as to Dr. O’Boyle’s good faith in filing the report. Specifically, S.G. contends that the deposition of Dr. Scott Benton, plaintiffs expert witness in child abuse, raises a material issue of fact as to Dr. O’Boyle’s recklessness in concluding that the child was raped.

Malice, intent, and other conditions of mind of a person may be alleged generally by the plaintiff. La. C.C.P. art. 856. When intent is disputed in a civil or criminal action, proof of intent or state of mind is rarely established as a fact by direct evidence, but may be inferred from the facts regarding the individual’s actions or other circumstances. Schmidt v. Blue Cross and Blue Shield of Louisiana, Inc., 33,179 (La.App.2d Cir.9/27/00), 769 So.2d 179, writ denied, 00-3011 (La.12/15/00), 777 So.2d 1234; Ledet v. Burgess, 93-600 (La.App. 5th Cir.2/9/94), 632 So.2d 1185; State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382; La. R.S. 14:10. Direct evidence of intent comes from the actor herself, who, as in this case, can admit or deny the alleged state of mind. Schmidt, supra. Nevertheless, when the plaintiffs general allegations are challenged in a motion for summary judgment, the plaintiff must oppose the motion with some 19circumstantial evidence, if not direct evidence, of the bad faith or other condition of mind of the accused.

In support of her motion, Dr. O’Boyle submitted the following documents:

1) The medical records of Dr. O’Boyle’s examination of the child including the above quoted written report sent to law enforcement.

2) Dr. O’Boyle’s preliminary examination testimony of October 29,1999.

3) Photographs taken by Dr. O’Boyle depicting trauma to the child’s perianal area.

4) The medical records of the exam performed by Dr. Duke McHugh.

5) An affidavit of Dr. Head.

6) An affidavit of Dr. Shelly McCormick, a board certified pediatrician.

7) S.G.’s July 26, 2000 grand jury indictment for one count of molestation of a juvenile.

8) An excerpt from the preliminary examination transcript including the trial court’s probable cause ruling.

9) The deposition of Dr. Scott Benton, a physician specializing in forensic pediatrics.

In their affidavits, Drs. Randy Head and Shelly McCormick expressed their professional opinions that Dr. O’Boyle took the proper steps in notifying the authorities and agreed with her opinion that the child had been the victim of abuse. In support of her conclusion, Dr. O’Boyle also | insubmitted photographs that she took showing the condition of the child on the day she saw him. The medical records of Dr. McHugh confirmed that his examination revealed no internal injury. Additionally, the criminal court’s determination of probable cause for arrest at the preliminary examination and the grand jury indictment reveal that independent sources also' found validity to the claim that the child was physically abused.

The record also shows that Dr. O’Boyle informed Dr. McHugh of her belief that penetration had taken place and was concerned that the child’s anus had been torn. Although Dr. McHugh found no internal injury, Dr. O’Boyle still felt that penetration was attempted, although not completed. She did not feel that the injuries could be attributed to diaper rash because the erythema and abrasions extended up the crease of the buttocks. In her opinion, the injuries were caused by trauma in an area not normally affected by diaper rash. Dr. O’Boyle explained that a physician’s definition of penetration is different than a legal definition. In terms of this case, her definition of penetration included her belief that the penis had gone up against the anus and tried to get in and “slipped up into the crack of the buttocks.” Dr. O’Boyle admitted that she did not attempt to rule out any other cause of the injuries and took no scrapings from the child’s fingernails to determine whether the abrasions could have been caused by scratching.

Dr. Scott Benton’s testimony revealed that he did not believe it was bad faith for Dr. O’Boyle to make a report concerning this child. He admitted that even another physician’s contrary opinion in a case does not ^relieve a doctor of her obligation to render a good faith report to the authorities. Dr. Benton admitted that Dr. O’Boyle’s findings were “potentially consistent with abuse,” although he believed he would have had a different opinion and would not have reported the case to the authorities. Nevertheless, Dr. Benton did not believe that Dr. O’Boyle had any reasonable factual basis for the conclusion that the child had been raped after her receipt of Dr. McHugh’s report. Dr. Benton was aware of the fact that Dr. McHugh disagreed with Dr. O’Boyle’s opinion. He felt, however, that she was correct in obtaining a second opinion regarding the extent of the trauma. Dr. Benton expected that Dr. O’Boyle, after hearing Dr. McHugh’s report, would have modified her opinion based upon the evidence showing no internal trauma. Dr. Benton could not say that any of Dr. Boyle’s actions were done in bad faith or with reckless disregard for the truth, which he defined as “an intent to do harm.... ” He would not say that the facts she reported were not a reportable event or that she should not have filed a report.

We find that this evidence is sufficient to show the absence of factual support to prove that Dr. O’Boyle made a “report known to be false or with reckless disregard for the truth of the report.” La. Ch. C. art. 611. The obvious point of disagreement between the physicians in this case is Dr. O’Boyle’s conclusion that the child had been raped. Nevertheless, we find such a difference of opinion irrelevant to the issue of whether or not Dr. O’Boyle filed the report falsely or with reckless disregard for the truth. The crucial issue is Dr. O’Boyle’s subjective belief in making the report. While l13Pr. Benton clearly disagreed with Dr. O’Boyle’s opinion that the child had been raped, he indicated on two occasions that he did not believe that she filed a report in bad faith. In fact, he declined to reach such a conclusion, admitting that he was not in a “position to judge her feelings, or her understanding at that time.”

S.G. apparently contends that, when faced with Dr. McHugh’s report of his endoscopic examination, she merely adjusted her view on how the injury occurred, holding on stubbornly to her diagnosis of rape. In view of Dr. Benton’s testimony, the evidence of Dr. O’Boyle’s reaction to Dr. McHugh’s findings does not allow for a significant inference of reckless disregard or bad faith. Moreover, it is apparent that in Dr. O’Boyle’s medical opinion, penetration was broadly enough defined to include what she believed to have occurred in this case. While such a definition obviously invites disagreement, we cannot say that an opinion based upon such a subjective belief demonstrates bad faith. Indeed, even a mistaken diagnosis can be made in good faith.

Likewise, the evidence presented by Dr. O’Boyle on the motion for summary judgment clearly shows that S.G. was never formally indicted or prosecuted for the crime of rape, but rather molestation of a juvenile. The crime of molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age Indifference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. La. R.S. 14:81.2. Dr. O’Boyle’s opinion did not result in an arrest for the crime of rape and therefore is inconsequential to any damages S.G. suffered because of his arrest. Dr. O’Boyle’s report of abrasions around the anus is not questioned by S.G. as having been made in bad faith, and such report ultimately resulted in a charge of only lewd conduct which is something less than actual rape. S.G.’s ability to prove causation was therefore successfully called into question by the motion for summary judgment.

Finally, S.G.’s objection to the trial court’s rejection of his opposition evidence has no merit. As it relates to the contested issue of Dr. O’Boyle’s good faith, S.G.’s opposition to summary judgment duplicates facts and information already before the court by way of pleadings and evidence submitted by Dr. O’Boyle in support of her summary judgment motion. A copy of the initial report filed by Dr. O’Boyle and a portion of Dr. Benton’s deposition, which Dr. O’Boyle submitted in its entirety in support of her motion, was completely duplicated in his opposition. Likewise, the facts established by the preliminary examination testimony of the child’s mother were either replicated in Dr. O’Boyle’s preliminary examination testimony or irrelevant to the issues to be disposed of on summary judgment. Although Dr. McHugh’s affidavit and his preliminary examination [ 14testimony were not specifically introduced to the court, S.G.’s allegations of Dr. McHugh’s findings and Dr. O’Boyle’s reaction thereto, as indicated above (note 4), remain before us on the pleading, unchallenged by evidence in support of the summary judgment. These facts include Dr. McHugh’s examination of the child, his disagreement with Dr. O’Boyle over her diagnosis, and the fact that she changed her description of how the injuries may have been inflicted after he found no internal injuries. Therefore, while we do not believe that the trial court abused its discretion, the factual opposition rejected by the trial court as untimely, offers no additional facts to those otherwise shown by the pleadings, testimony and documentation in the record. See, Mallory v. Pineapple Management Services, Inc., 02-0126 (La.App. 1st Cir.12/31/02), 837 So.2d 693.

Conclusion

For the foregoing reasons, we affirm the summary judgment in favor of Dr. O’Boyle at appellant’s costs.

AFFIRMED.

      . The record shows that the City of Monroe and Detective Ellerman were dismissed from the suit on May 9, 2002.

      . On appeal, S.G. has not complained about the trial court’s dismissal of the libel claim.

      . Lab test results of July 15, 1999, were negative for the yeast associated with diaper rash.

      . As alleged in paragraphs 16 and 17 of S.G.’s petition, when Dr. O'Boyle was informed of Dr. McHugh’s findings, she “then changed her story and said that plaintiff must have rubbed his penis on the child’s rear end to cause the abrasions,” and she persisted with her diagnosis of rape. These factual allegations are not contested by the evidence presented in support of the summary judgment.


author: JjDOUCET, Chief Judge. | THIBODEAUX, J.,

text:
    Bridgett WHITLOW v. THE SHREVEPORT TIMES.
    No. 02-1215.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2003.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant, Bridgett Whitlow.
    Robert Dunkelman, Tara Johnson, Pet-tiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Shreveport, LA, for Defendant/Appellant, Gannett River States Publishing Corporation d/b/a The Times.
    Court composed of NED E. DOUCET, JR., Chief Judge, ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   JjDOUCET, Chief Judge.

Claimant, Bridgett Whitlow, appeals a judgment of an office of workers’ compensation judge dismissing her suit for benefits. Finding that she was an independent contractor and that she did not spend a substantial part of her work time in manual labor in carrying out the terms of her contract, the workers’ compensation judge dismissed Bridgett Whitlow’s claim against The Shreveport Times. We affirm the judgment of the workers’ compensation judge (WCJ).

FACTS

Claimant, Bridgett Whitlow, was a newspaper delivery person for Gannett River States Publishing Corporation, publisher of The Shreveport Times newspaper (hereinafter The Times) in Shreveport. Her delivery area was in rural Sabine Parish. Ms. Whitlow alleges that on May 2, 2001, while delivering newspapers, she was dragged from her vehicle and sexually assaulted by two unknown males. Ms. Whit-low sought workers’ compensation benefits for the alleged injuries she received during the alleged attack.

The Times denied any liability for compensation benefits asserting two defenses. First, The Times maintains that Ms. Whit-low was not its employee, but rather, was an independent contractor. Its second alternative defense was that the incident which allegedly gave rise to Ms. Whitlow’s injuries never happened. The case was decided on the “employer-employee” issue, thus, never reaching the issue of whether Ms. Whitlow was actually the victim of a rape. For the following reasons, we affirm the judgment on the employer-employee issue and pretermit the discussion of any other issues raised as being moot.

ls>LAW AND DISCUSSION

Concerning her status, Ms. Whitlow assigns two errors. First, she maintains that the WCJ erred in finding that she was an independent contractor. Second, she assigns error to the failure by the WCJ to find that, even if she was an independent contractor, she spent a substantial part of her work time in manual labor and was for that reason entitled to benefits. If we were to find in her favor on either of the two appealed issues, she also asks that we determine on the record before us whether she suffered a sexual assault.

Louisiana Revised Statutes 23:1044 provides in pertinent part:

A person rendering service for another in any trades, businesses, or occupations covered by this Chapter is presumed to be an employee under this Chapter.

Ms. Whitlow was rendering service to The Times in its trade, business or occupation on May 2, 2001, and is therefore presumed to have been an employee. As the Claimant seeking benefits, she relied on that presumption. It thus became the newspaper’s burden of proof to overcome the presumption. Estate of Harris v. Ledet, 95-485 (La.App. 3 Cir. 11/2/95), 664 So.2d 561, writ denied, 95-2930 (La.2/2/96), 666 So.2d 1102. An alleged employer can rebut this presumption by either (i) establishing that the services were not “pursuant to any trade, business, or occupation (e.g., construction of one’s private residence);” or (ii) establishing that “the individual was performing services but was doing so as an independent contractor.” 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 7:6. In the present case the WCJ found that Ms. Whitlow was performing services for the newspaper but that she was doing so as an independent contractor.

|sThe distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Guillory v. Overland Exp. Co., 01-419 (La.App. 3 Cir. 10/3/01), 796 So.2d 887. Findings of fact by a trial court may not be set aside in the absence of manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In Fontenot v. J.K. Richard Trucking, 97-220, pp. 7-8 (La.App. 3 Cir. 6/4/97), 696 So.2d 176, 180, this court examined the law applicable to the determination of one’s employment status:

According to La.R.S. 23:1021(6), an independent contractor is:
[A]ny person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the worktime of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.
The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Stovall v. Shell Oil Co., 577 So.2d 732 (La.App. 1 Cir.), writ denied, 582 So.2d 1809 (La.1991). Several conditions must be met for there to be a principal and independent contractor relationship:
1. There is a valid contract between the parties;
2. The work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
3. The contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
|44. There is a specific price for the overall undertaking; and
5. Specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.
Id. at 738-739.
More recently, in Hillman v. Comm-Care, Inc., 01-1140, p. 6-9 (La.1/15/02), 805 So.2d 1157, 1161-63, the Louisiana Supreme Court stated the following:
Inherently, workers’ compensation is a remedy between an employer and an employee; it follows then that absent an employer-employee relationship generally there can be no compensation recovery. Johnson v. Alexander, 419 So.2d 451 (La.1982). The Louisiana Workers’ Compensation Act is silent on what constitutes an employer-employee relationship; the sole provision on this subject is the statutory presumption of employment status. 1 Denis Paul Juge, Louisiana Workers’ Compensation § 7:1 (2001). That presumption provides that “[a] person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.” La. R.S. 23:1044. An alleged employer can rebut this presumption by either (i) establishing that the services were not “pursuant to any trade, business, or occupation (e.g., construction of one’s private residence);” or (ii) establishing that “the individual was performing services but was doing so as an independent contractor.” Juge, supra at § 7:6.
In characterizing Hillman as Comm Care’s employee, the lower courts based their analysis on a jurisprudentially crafted test for determining whether an employer-employee relationship exists that can be traced back to Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487 (La.App. 1st Cir.1950). In Alexander, the court turned for guidance to the general statement of law then set forth in 35 Am.Jur. § 3; to wit:
The essence of the [employer-employee] relationship is the right to control. The four primary evidentiary factors considered in deciding the above are—
1. Selection and engagement;
2. Payment of wages;
| f¡3. Power of [dismissal;
4.Power of control.
44 So.2d at 488. The appellate courts in subsequent cases, including the sitter cases noted above, have utilized this test. In so doing, the courts have reasoned that none of the factors is controlling, that the totality of the circum stances must be considered, and that the burden of proof is on the party seeking to establish an employer-employee relationship.

Although the employer-employee relationship is not statutorily defined in the Workers’ Compensation Act, an independent contractor is defined. Louisiana Revised Statutes 23:1021(6) reads in part as follows:

[A]ny person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such results are accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

Applying the four factors in Hillman to the case sub judiee we find that Ms. Whit-low contracted with The Times to purchase newspapers at a wholesale rate for resale and delivery. The contract specifically designated Ms. Whitlow as an independent contractor. Ms. Whitlow was not paid wages, but rather derived her profit from the difference between the newspaper’s wholesale and retail prices. The Times withheld neither social security nor income tax. The contract specifically provided that Ms. Whitlow would not “be included in any employee benefit plan” of The Times. Ms. Whitlow was responsible for selecting, purchasing, and controlling her own equipment, method and means of delivery, and was responsible for delivering “a copy of the newspaper ... in dry, readable condition ... to each | (¡subscriber's satisfaction.”. The foregoing was to be accomplished “by whatever manner, means, method or mode” she chose. If Ms. Whit-low needed a substitute, she was responsible for providing one at her own expense and the substitute was to be under her exclusive control and direction. The original contract was for a term of one year and provided for automatic renewal for successive one year periods. The contract also provided for the termination, by either party, under certain conditions.

Paragraph eight of the contract provides as follows:

Contractor [Ms. Whitlow] shall indemnify, defend and hold Company harmless from and against any and all claims, damages, losses and expenses, including, but not limited to, attorneys’ fees, that may hereafter be asserted against Company by Contractor or by anyone performing Contractor’s obligations under this Agreement or by any other person, for injury or death, damages to property or for any other cause, arising out of any acts or omissions in performing Contractor’s obligations under this Agreement, including, but not limited to, use of a motor vehicle. “Claims” as used in the preceding sentence shall include, but not be limited to, any claims brought under any workers’ compensation act or plan, disability benefit act or plan, or employee benefit act or plan, that may hereafter be asserted against Company by Contractor or anyone performing Contractor’s obligations under this Agreement. All rights of indemnification and to be held harmless under this Agreement shall survive the termination of this Agreement for any act or omission occurring prior to or on the date of termination.

Clearly, this is not the type of contract that would be executed between and employer and its employee.

Finally, Appellant argues that, if for no other reason, she should be entitled to compensation benefits because she spent a substantial portion of her time in manual labor to fulfill her duties under the contract. See La.R.S. 23:1021(6). Manual labor in this context “denote[s] work in which the physical element predominates over the mental,” a definition articulated in Welch v. Newport Industries, 86 So.2d 704, 707 (La.App. 1 Cir.1956), and adopted by Riles v. Truitt Jones Construction, 94-1224 (La.1/17/95), 648 So.2d 1296. As the WCJ pointed out in reasons for judgment, Ms. Whitlow admitted that she did a significant amount of driving to deliver the newspapers to her customers. However, we must rely on our finding in Guillory v. Overland Express Co., 01—419, p. 6 (La.App. 3 Cir. 10/3/01); 796 So.2d 887, 891, wherein we found the following:

To fall within the manual labor exception, however, as provided for in La.R.S. 23:1021(6), the plaintiff must show not only that he engaged in manual labor, but that a “substantial part” of his work time was spent in manual labor. We do not find the physical act of actually driving the truck in itself is “manual labor” as defined by law. We must, therefore, look to the other tasks the plaintiff performed in accomplishing his job.

Under the terms of her contract, Ms. Whitlow was required to do a lot of “paper-work.” She had to maintain up-to-date customer lists and keep records of sales information dating back at least one year. She was also responsible for expanding The Times’ business by “seeking out and obtaining new subscribers.” Considering the record as a whole, we find Ms. Whitlow failed to prove she spent a substantial part of her work time engaged in manual labor.

In sum, the relationship between a newspaper and its delivery personnel has been the subject of a substantial amount of litigation over the last fifty years. Every appellate court which has considered the issue, including this one, has ruled that the relationship between a newspaper and its delivery persons is not an employer-employee relationship but rather, the courts have uniformly found newspaper delivery persons to be independent contractors. The facts in this case do not differ greatly from those cases and certainly do not warrant a different result. See Monnerjahn v. Times-Picayune Pub. Co., 67 So.2d 756 (La.Orl.1953); Verrett v. Houma Newspapers, Inc., 305 So.2d 547 (La.App. 1 Cir. 1974); Adams v. Times-Picayune Publishing Corp., 418 So.2d 685 (La.App. 4 Cir.1982); Onyeanusi v. Times-Picayune Publishing Corp., 485 So.2d 622 (La.App. 4 Cir.1986); and Simon v. Orange Leader Newspaper, Inc., 94-589 (La.App. 3 Cir.12/7/94), 647 So.2d 624, writ denied, 95-0068 (La.3/10/95), 650 So.2d 1181.

The workers’ compensation judge gave six pages of reasons for judgment. Having reviewed the record, we find we agree with his conclusion and find the law and facts support his decision.

The Claimant argues that, because she is claiming to be an employee, her status should be analyzed in that context, drawing on the rule of liberal construction required by the Workers’ Compensation Act. From this she argues that the issue of status in a tort context as reflected by the above cases is not an authoritative' reference. However, we regard the above decisions as carrying considerable persuasive authority, as the doctrine of jurisprudence constante requires us to do. Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119. While Appellant’s position is well argued in brief, we feel bound by the preceding fifty years of jurisprudence and leave it up to our supreme court to determine if this seemingly well settled principle is in error.

According, for the reasons set forth above, the judgment of the workers’ compensation judge is affirmed. Having affirmed on the issue of Claimant’s employment status, we pretermit the discussion of all other issues. Costs of this appeal are assessed against Appellant, Bridgett Whit-low.

AFFIRMED.

| THIBODEAUX, J.,

dissenting.

The majority departs from the time-honored rule of liberal construction of workers’ compensation provisions. When one examines the four factors listed in Hillman and scrutinizes the criteria for independent contractor status in the liberal manner in which we must construe workers’ compensation laws, the conclusion militates in favor of awarding employee status to Ms. Whitlow.

Indisputably, the newspaper selected and engaged Ms. Whitlow. While she was not paid wages in the sense of an hourly rate nor were deductions made from her earnings, The Times was responsible for paying her whatever she earned according to a formula set out in the contractual agreement. The Times under paragraph nine of the agreement had the power to dismiss her in the event of a material breach of the contract or the commission of a wrongful act. It also had the power to dismiss her without liability by giving thirty days written notice. The Times established the times of delivery and had the right to designate the place and time for pick up of the newspaper. Although Ms. Whitlow could “deliver in any order and by whatever manner, means, method or mode Contractor chooses,” paragraph seven of the agreement gave the company the power to “change its method of distribution or [¿may continue the use of Contractor to perform the services provided for in this Agreement.” The Times established also the time of payment from Ms. Whitlow to the newspaper. As Hillman explained, the essence of an employer-employee relationship is the right to control the method and means by which an individual performs the work tasks. In my view, the newspaper controlled the “methods and means” by which Ms. Whitlow performed the work of delivering the newspapers.

The primary criterion in an independent contractor status is control over the results and not the means by which a result is accomplished. The Times exerted more than control simply over the results. The Times under the contractual provisions of the Home Delivery Wholesale Agreement also controlled the means to accomplish the results. While there was a valid contract between the parties, Ms. Whitlow did not employ “non-exclusive” means in accomplishing the results. Indeed, under paragraph seven of the Home Delivery Wholesale Agreement, The Times had the right to change the method of distribution whenever it wanted to. While a specific time was agreed upon (one year), the contract was subject to termination under paragraph nine by giving thirty days advance written notice without liability for any breach and “without any breach having occurred.” Moreover, under paragraph seven, The Times could “discontinue the use of Contractor to perform the services provided for in this Agreement.”

The majority seems “bound by the preceding fifty years of jurisprudence” and relies on jurisprudence constante in reaching its conclusion. Not one case cited by the majority stands for the proposition that a newspaper carrier is by virtue of that position an independent contractor. Indeed, the majority recognizes that such a classification relies upon a case-by-case analysis. Furthermore, not one case cited by the majority is in the context of workers’ compensation. The | .jurisprudence cited relates to employer-employee status in a tort context. These tort cases involve the issue of vicarious liability of the newspaper for the negligent acts of the newspaper carrier. The degree of control exerted over the newspaper carrier in those cases was much less, as I see it, than that exerted over Ms. Whitlow in this case.

The factors used in deciding employer-employee versus independent contractor status in a workers’ compensation setting are different from that which exists in a tort environment. The objectives are different (limited recovery in workers’ compensation versus making one whole in tort litigation) and the relationship of the parties are different. For instance, the independent contractor assumes certain risks in achieving a desired result. Those risks are part of the contract price. The true independent contractor absorbs those risks. The true employee, on the other hand, does not have equal bargaining power and has no ability to negotiate the absorption of risks by increasing a contract price. While Ms. Whitlow undertook some risks in delivering the newspapers, she could neither bargain nor negotiate the wholesale or retail price of the newspapers. She had no bargaining power whatsoever. The Home Delivery Wholesale Agreement which she signed was a “take it or leave it” document-almost adhesionary in reality. Furthermore, she could not compel The Times to include the risks of an injury such as a sexual assault in determining what she earned. Given these considerations, Ms. Whitlow was an employee. See generally Malone and Johnson, Louisiana Civil Law TREAtise-WoRkers’ Compensation, § 74.

For the foregoing reasons, I respectfully dissent.