author: J^SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Creighton L. WUNEBURGER.
    No. 03-KA-490.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Jennifer L. Pate, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Creighton L. Wuneburger.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

On October 18, 2001, the Jefferson Parish District Attorney’s Office filed a bill of information charging Creighton L. Wune-burger and Jodie L. Barrios with one count of armed robbery in violation of La. R.S. 14-M. On October 19, 2001, defendant was arraigned on the charges and entered a plea of not guilty. On January 29, 2002, defendant proceeded to trial by jury. After a one-day trial, the twelve-person jury unanimously found defendant guilty as charged.

On February 19, 2002, defendant’s motion for new trial was heard and denied. After defendant waived the statutory sentencing delays, the trial judge sentenced him on his armed robbery conviction to 50 years at hard labor without benefit of parole, probation or suspension of sentence. That same day, the State filed a habitual offender bill of information alleging defendant was a third felony offender. Defendant denied the allegations of the habitual offender bill.

On March 18, 2002, after a hearing, the trial judge found that the State had proven that defendant was a third felony offender with three violent felony offenses. After defendant waived sentencing delays, the trial judge vacated defendant’s underlying armed robbery sentence and sentenced defendant to life |simprisonment without benefit of parole, probation, or suspension of sentence. On appeal, defendant seeks review of his adjudication as a third-felony offender and his life sentence, which he alleges is excessive. Facts

In the early morning hours of May 17, 2001, Alicia Jones and her infant daughter were visiting her then-husband, Richard King, at his place of employment, the E-Z Serve Convenience Store at 3751 Barataría Boulevard in Marrero. At about 4:00 a.m. that morning, a woman walked into the store to pay for gas and purchase cigarettes. Subsequently, a man entered the store, talked briefly to the woman, and exited. Moments later, the same man reentered the store, grabbed Jones by the hair and put a sharp object to her throat. The man demanded money from the cash register. After King opened the cash register, the man took the money then he and the woman left in a white van. Jones phoned the police, who arrived shortly thereafter.

Detective Kevin Decker of the Robbery Division of the Jefferson Parish Sheriffs Office (“JPSO”) investigated the robbery. Detective Decker, after reading the initial report, learned that a deputy, who had responded to the robbery, reviewed the video surveillance tape and recognized the female suspect as Jodie Barrios. Detective Decker prepared a six-picture photographic lineup that contained a photograph of Barrios. When Detective Decker showed the lineup separately to Jones and King, they both positively identified Barrios as being the woman in the store during the robbery.

Detective Decker obtained an arrest warrant for Barrios. When he arrived at Barrios’ home to execute the warrant, he observed a full-sized white Ford van parked outside of her house. Detective Decker learned that Mark Hilton, who was 14present at Barrios’ residence, owned the van. Further, Hilton gave Detective Decker and JPSO Sergeant Scott Fontaine permission to search the van. In the van, the officers found two utility knives, which are also commonly known as “box-cutters,” similar in description to the weapon used during the robbery.

When interviewed, Hilton stated that he was asleep at Barrios’ home on the morning of May 17, 2001 when he awoke and realized that his keys and phone were missing from his pocket. When he walked outside, he saw his van being backed into Barrios’ yard. When he yelled at the people in his van, the male driver stopped the van and quickly exited through the passenger door. Hilton then saw Barrios in the passenger seat of the van. After exchanging words with Barrios, Hilton retrieved his keys and phone from Barrios and left her house.

Detective Decker then interviewed Barrios and her houseguest, Pandora Brennan, who both implicated defendant, Creighton Wuneburger, in the armed robbery. Brennan told Detective Decker that, at approximately 4:00 a.m. on May 17, 2001, she was in her room at Barrios’ home when defendant and Barrios left to go to the store. A short time later, the two returned with handfuls of money. When Brennan asked where they had gotten the money, defendant responded they had just robbed a local convenience store.

After receiving that information, Detective Decker compiled a photographic lineup, which included a photograph of defendant. When King and Jones separately viewed the photographic lineup, they both positively identified defendant as the perpetrator. Based on all of the information gathered in his investigation, Detective Decker swore out an arrest warrant for Creighton Wuneburger on May 21, 2001.

About five months later, on October 9, 2001, Detective Decker was advised that defendant had been arrested pursuant to his warrant and was incarcerated on | Bthe charge. ■ The detective, after advising defendant of his constitutional rights and obtaining a waiver of those rights, interviewed the defendant.

In his statement to Detective Decker, which was played to the jury at trial, defendant admitted that he and Barrios went to the E-Z Serve in a white van belonging to Hilton. He walked into the store and grabbed a woman in the store, and, with a box cutter to her throat, demanded money from the man behind the counter. After taking the money, defendant and Barrios returned to Barrios’ home. After hearing the evidence, including testimony from witnesses, the jury unanimously found the defendant guilty as charged of armed robbery.

In his first assignment of error, defendant argues that the trial court erred adjudicating him a third felony offender. He contends that the trial court erred in finding him to be a third felony offender because, at the time of one of his prior guilty pleas, the trial court failed to correctly inform him of the nature of the charge to which he was pleading guilty.

In the instant case, the State filed a habitual offender bill of information alleging defendant to be a third felony offender. Although defendant did not file a written response challenging the validity of his prior guilty plea as required by La. R.S. 15:529.1(D)(l)(b), he did orally object at the habitual offender hearing to the failure of the trial judge to correctly inform defendant of the nature of the charge in one of his prior convictions. Therefore, because defendant objected at the habitual offender hearing, he has preserved the issue for review. State v. Sanders, 00-1369 (La.App. 5 Cir. 2/28/01), 784 So.2d 19, 21.

In State v. Hollins, 99-278 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587, this Court, citing, State v. Shelton, 621 So.2d 769 (La.1993), summarized the burden of proof in habitual offender proceedings as follows:

| (Where a prior conviction resulted from a guilty plea, the State must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to the guilty plea, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [(1969)].... If defendant denies the allegations of the bill of information, the State has the burden of proving the existence of the prior guilty pleas and that defendant was represented by counsel. Once the State meets this burden, defendant must produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. Thereafter, the State must prove the constitutionality of the plea.
In proving the constitutionality of the plea, the State must produce either a ‘perfect’ transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an ‘imperfect’ transcript. If anything less than a ‘perfect’ transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary. (Citations omitted).

State v. Hollins, 742 So.2d at 685.

At the habitual offender hearing, the State sought to prove that defendant had two prior felony convictions: a 1992 guilty plea to attempted simple robbery in Docket No. 92-1052 in the Twenty-Fourth Judicial District Court and a 1996 guilty plea to attempted armed robbery under Docket No. 95-6486 in the Twenty-Fourth Judicial District Court. At the hearing, Sergeant Virgil McKenzie, an expert latent fingerprint examiner with the Jefferson Parish Sheriffs Office, testified that defendant’s fingerprints, taken shortly before the habitual offender hearing, were “identical” to the fingerprints on the arrest register and the bill of information for the underlying armed robbery conviction (Docket No. 01-5491), the fingerprints on the bill of information for the predicate attempted armed robbery conviction (Docket No. 95-6486), and the fingerprints on the arrest register for the predicate attempted simple robbery conviction (Docket No. 92-1052). Further, the State introduced into evidence the district court record for the underlying armed robbery conviction (Docket No. 01-5491), the predicate |7attempted armed robbery conviction (Docket No. 95-6486), and the predicate attempted simple robbery conviction (Docket No. 92-1052).

Thereafter, defendant introduced a copy of the transcript of the guilty plea proceeding for defendant’s 1992 conviction. Defendant points out that, during the trial judge’s guilty plea colloquy, the trial court mistakenly indicated that defendant was pleading guilty to “14:27:65, an armed robbery or attempted armed robbery” when, in fact, defendant was pleading guilty to attempted simple robbery. The trial judge further stated, “The maximum sentence I can impose is three and a half years at hard labor, without the possibility of probation, parole or suspension of sentence for the crime of armed robbery or attempted armed robbery.”

At the close of the habitual offender hearing, the trial judge found that record as a whole reflected that defendant was aware that he was charged with and pled guilty to attempted simple robbery. The court noted that the bill of information in case No. 92-1052 indicated that defendant was charged with the violation of La. R.S. 14:27:65, in that he did attempt to rob Joseph Barron on February 8, 1992. The trial judge also noted that the “Boykin form” in case No. 92-1052, which was signed by defendant, defendant’s counsel, and the trial judge, indicates that defendant was pleading guilty to La. R.S. 14:27:65. Further, the “Boykin form” provides that the maximum sentence that defendant could receive was three and a half years at hard labor. Most importantly, on the “Boykin form,” the defendant acknowledged that “my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty....” Finally, the trial judge |snoted that the hard labor commitment/minute entry reflected that defendant pled guilty to attempted simple robbery.

Here, with respect to defendant’s guilty plea in Docket No. 92-1052, the State presented evidence of the existence of defendant’s guilty plea and, further, that he was represented by counsel for that guilty plea. The State met its burden so the burden shifted to the defendant to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. In this case, defendant alleges that an infringement of his rights occurred because the trial court mistakenly referred to the charge as “an attempted armed robbery.” The burden then returns to the State to prove the constitutionality of the plea.

In proving the constitutionality of the plea, the State must produce either a ‘perfect’ transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an ‘imperfect’ transcript. State v. Hollins, supra, 742 So.2d at 685. If anything less than a ‘perfect’ transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary. Id.

In this case, the State presented a minute entry and guilty plea form for defendant’s 1992 guilty plea. Defendant presented the ‘imperfect’ transcript of the proceedings. The trial judge then weighed the entirety of the evidence submitted and found that the State met its burden that defendant’s 1992 guilty plea was informed and voluntary. We have reviewed the record as a whole and find no error in the trial judge’s ruling.

|9In his second assignment of error, defendant contends that his sentence is excessive, arguing that a downward departure from the mandatory life sentence was warranted. At trial, defendant objected to the sentence as being excessive and argued that his family background, which included an alcoholic mother, the suicide death of his sister, and the loss of his father at an early age, as well as his own history of drug abuse, justified a deviation from the mandatory life sentence.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const, art. I, § 20. The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Cushinello, 01-109 (La.App. 5 Cir. 7/30/01), 792 So.2d 926, 929, unit denied, 01-2505 (La.9/20/02), 825 So.2d 1159.

When a trial court determines that the minimum sentence mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280; State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 383. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226.

In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the jinoffender, the gravity of the offense and the circumstances of the ease.” State v. Harbor, 817 So.2d at 227. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism.

Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, 709 So.2d at 677.

At the enhanced sentencing, the trial court considered defendant’s family history and prior drug abuse and noted that neither was an excuse for his behavior. The trial court further noted that defendant’s convictions, all of which were crimes of violence, had escalated in seriousness from his first conviction for attempted simple robbery, to his second conviction for attempted armed robbery and finally, to his third conviction for armed robbery. Finally, the trial judge, after referring to State v. Dorthey, supra, noted that “the Court can find no reason to deviate from the provisions of [the Habitual Offender Statute], with regard to the sentence mandated to someone who is a third felony offender, in which the three felonies are crimes of violence.”

Based on our review of the record, we do not find that defendant has shown that he is “exceptional” requiring a downward departure from the mandatory life sentence. The fact that his offenses have escalated in seriousness appears to show that his criminal conduct is becoming worse, and, as such, he is exactly the type of offender that the Habitual Offender Statute intends to punish so severely. See, State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

Finally, our review of the record for errors patent, according to La.C.Cr.P. art. 920, reveals none requiring remand in this case. Accordingly, defendant’s habitual offender adjudication and enhanced sentence are affirmed.

AFFIRMED.

      . On January 31, 2001, the charge against Barrios was amended to accessory after the fact to armed robbery, a violation of La. R.S. 14:25:64. Barrios was not tried with defendant and is not a party to the instant appeal.

      . Defendant filed his motion for appeal after his conviction and original sentencing but before his multiple offender sentencing. The resulting prematurity was cured, however, by the subsequent re-sentencing. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351.

      . We note that the exhibit folder contains a second copy of the July 13, 1992 guilty plea proceeding in Docket No. 92-1052, which the court reporter, in an attached letter, purports is the "corrected” copy of the transcript. Unfortunately, the "corrected" transcript was not introduced into evidence at the trial court level. Further, the district court record was not properly supplemented with this "corrected” transcript. Documents not properly placed in evidence cannot be considered on appeal. The court of appeal has no jurisdiction to receive new evidence. Phillips v. Space Master Intern., Inc., 96-877 (La.App. 5 Cir. 5/14/97), 696 So.2d 64, 69.

      . We note that the trial judge referred to the correct statute number.

      . A plea cannot be considered voluntary unless the defendant has notice of the essential nature of the charge against him. State v. Anderson, 00-1737 (La.App. 1 Cir. 3/28/01), 784 So.2d 666, 680, writ denied, 01-1558 (La.4/19/02), 813 So.2d 421. The voluntariness of a guilty plea does not depend on whether the trial judge specifically informed the accused of each and every element of the crime. Rather, the defendant must establish that his lack of awareness resulted in an involuntary plea. State v. Hampton, 97-667 (La.App. 5 Cir. 3/11/98), 709 So.2d 318, 320, writs denied, 99-2408 (La.2/4/00), 754 So.2d 223 and 01-0083 (La.9/14/01), 796 So.2d 679.


source: Caselaw Access Project

author: I JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    In re MEDICAL REVIEW PANEL OF Keyaka LAFAYETTE and Nathaniel Batiste on Behalf of Their Minor Son, Shamar Lafayette (Deceased).
    No. 03-CA-457.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Joseph W. Thomas, New Orleans, LA, for Appellants.
    Richard P. Ieyoub, Attorney General, G. Scott Vezina, Andrea Celia Caplan, Kelli M. Khalaf, Special Assistants Attorney General, Gretna, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   I JAMES L. CANNELLA, Judge.

In this medical malpractice action, the Plaintiffs, Keyaka Lafayette, (Keyaka), individually and on behalf of her deceased son, Shamar Lafayette (Shamar) and Nathaniel Batiste, individually, the father of Shamar Lafayette, appeal from a judgment granting the peremptory exception of prescription filed by Defendant, the State of Louisiana (the State), Louisiana State University Medical Center, Health Care Services Division, Charity Campus and University Campus, (the State). We reverse and remand.

On April 28, 2001, Keyaka gave birth to Shamar at the University Campus of the Defendant. Thereafter, he was hospitalized for one week. On May 25, 2001, the child was circumcised at the Charity Campus of the State. He developed a hernia and was taken to West Jefferson Medical Center (West Jefferson) on June 4, 2001 where Dr. Gerald A. Ross attempted to push the hernia back in the abdomen and scheduled him for surgery to repair it. The surgery was performed on June 5, 2001 by Dr. Adolph Vincent. On June 8, 2001, x-rays disclosed a hole in the child’s intestine. Emergency surgery was misperformed on June 9, 2001 by Dr. Rodney Steiner. Shamar died on June 10, 2001.

The Plaintiffs filed an administrative medical malpractice complaint on May 30, 2002 against Dr. Ross, the Louisiana Medical Center at New Orleans known commonly as Charity Hospital, University Hospital, West Jefferson, and Dr. Vincent. An amended complaint was filed on June 4, 2002.

On November 15, 2002, the State filed an exception of prescription contending that the face of the petition shows that the acts complained of in the petition against it and Dr. Ross occurred over one year before the claim was filed. The Plaintiffs filed an opposition on January 2, 2003. The hearing was held on January 8, 2003. Counsel for the Plaintiffs did not appear, although he notified the court that he was running late. After waiting 30 minutes, the trial judge convened the hearing. Following argument by the State, the trial judge granted the exception and dismissed Plaintiffs case. On appeal, Plaintiffs assert that the trial judge erred in granting the exception.

Plaintiffs contend that their petitions assert the discovery exception to the general one year prescriptive period for malpractice claims relative to survival actions, and that, under Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, a claim cannot prescribe on the face of the petition when the well pleaded facts allege that the tort was discovered after the act. In the petition, they allege that they did not discover the alleged malpractice of the State hospitals and physicians until the date of the child’s death, June 10, 2001, when Keyaka asked Dr. Ross what caused it and he responded that it was the result of the “botched” circumcision (on May 25, 2001). Plaintiffs also contend that the wrongful death claim is not prescribed since they filed suit within one year of the death, pursuant to La.C.C. art. 3492.

RThe State responds that the claim is prescribed on its face and that Campo did not hold that a discovery allegation in a petition protects it from being prescribed on its face. Nevertheless, it also argues that the discovery allegation was refuted by Dr. Ross in an affidavit in which he denied making any such statement. The State argues further that the appropriate prescription for medical malpractice claims of any kind against the State is governed by La.R.S. 40:1299.39(c).

La.R.S. 9:5628 provides the prescriptive period for medical malpractice actions:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. {Emphesis added}

In Campo, the Louisiana Supreme Court specifically stated that it was resolving a “split among the circuit courts on the issue of when a plaintiffs petition is prescribed on its face in medical malpractice actions when the claim is brought within one year from the date of discovery.” Campo, 01-2707 at 6, 828 So.2d at 507. Thus, the Louisiana Supreme Court did decide that issue and we are obliged to follow its holding. The Campo Court explained:

It is well established that the action for medical malpractice sounds in negligence. LA.REV.STAT. ANN. § 40:1299.41(A)(8). The plea of prescription must be specifically pleaded, and may not be supplied by the court. LA.CODE CIV. PROC. ANN. art. 927(B). Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed ....
IrA straight forward reading of LA. REV.STAT. ANN. § 9:5628 clearly shows that the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims.... Thus, a petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient. [Citations omitted; Emphasis added]

Campo, 01-2707 at 7-8, 828 So.2d at 508, 509.

The Plaintiffs are correct that the claim against the State hospitals and physician is not prescribed on its face because of the discovery allegation. Further, the facts asserted indicate that the delay in filing suit “was not due to willful, negligent, or unreasonable action of the patient.” Id. Thus, at the hearing, the State had the burden of proving that the claim was prescribed. See: Campo, 01-2707 at 7, 828 at 508. What did they prove? The State argued that Dr. Ross denied in an affidavit that he told Keyaka that the circumcision caused the death and that the Plaintiffs failed to controvert that affidavit.

The exception of prescription is a peremptory exception which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to its submission after trial. On the trial of the peremptory exception prior to the trial of the case, evidence may be introduced to support or controvert any of the objections plead, when the grounds thereof do not appear from the petition. La>C.C.P. art. 931. However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Eastin v. Entergy Corp., 02-1119 pp. 4-5 (La.App. 5th Cir.3/11/03), 844 So.2d 144, 146.

The running of the prescriptive period is triggered when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he Lor she is the victim of a tort. Campo, 01-2707 at 12, 828 So.2d at 511. Constructive knowledge is whatever notice is sufficient to excite the attention of the injured party and which puts the party on notice that an inquiry is necessary. That notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id. However, the mere apprehension of a plaintiff that something may be wrong is not sufficient to begin the prescription. Campo, 01-2707 at 12, 828 at 511. Only if the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice does prescription begin to run. Id.; Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). “The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.” Campo, 01-2707 at 12, 828 at 511.

At the hearing on the exception of prescription, the State argued, but failed to introduce, Dr. Ross’s affidavit or any other evidence. In the absence of evidence, we must decide the exception of prescription on the facts alleged in the petition and must accept all allegations thereof as true. Eastin, 02-1119 pp. 4-5, 844 So.2d at 146. Based on our review of the petitions, we find that the Plaintiffs’ cases are not prescribed. Thus, the trial judge erred in granting the exception of prescription.

The State also argues that the Plaintiffs are incorrect that the prescriptive period for wrongful death is governed by La.C.C. art. 3492. We agree with the State that La.R.S. 40:1299.39(c) limits the claims against State medical providers to the provisions of the Medical Malpractice Act, 40:1299.41 et seq. and the prescriptive period set out in La.R.S. 9:5628. However, this does not change the result at this time.

^Accordingly, the judgment of the trial court is hereby reversed and the case remanded for further proceedings. Costs of this appeal are to be paid by the State.

REVERSED AND REMANDED.


author: | .THOMAS F. DALEY, Judge.

text:
    Cheryl Kliebert GRAVOIS v. Kenneth J. GRAVOIS, Sr.
    No. 03-CA-559.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.
    Rebecca N. Robichaux, Raceland, LA, for Defendant/Appellant.
    Michael K. Heltz, Kliebert & Heltz, Gramercy, LA, for Plaintiff/Appellee.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   | .THOMAS F. DALEY, Judge.

Defendant/Appellant, Kenneth J. Gra-vois, Sr. (Kenneth), appeals the trial court judgment that granted his former wife, Cheryl Kliebert Gravois (Cheryl), reimbursement for the fair rental value of the community home while he occupied it pending the couple’s divorce and partition of community property. Appellant argues that this award is contrary to law and jurisprudence because Cheryl agreed to waive her claim for rental value in a Consent Judgment granted on September 5, 2000 (signed on December 4, 2000). Further, he argues that the court may not retroactively award one spouse rental value of the community home absent an agreement or court order awarding rental value at the time use and occupancy is determined, as per LSA-9:374(C). In the alternative, should this Court uphold the award to Cheryl, Kenneth argues that Cheryl failed to substantiate the amount of the award, $400.00 per month, by competent evidence.

We affirm the trial court’s ruling that Cheryl is entitled to an award for fair rental value of the home during the time it was co-owned and used exclusively by Kenneth. We find, however, that the record is devoid of any competent evidence establishing the amount of the award. We reverse the amount of the award, and remand for further proceedings.

|sThe briefs and record shows that the parties were married in 1981, with Cheryl filing for divorce on March 6, 2000. A Consent Judgment entered on September 5, 2000, decided some preliminary matters, and is pertinent to this appeal, Paragraph 8 stated:

“Cheryl Kliebert Gravois shall waive her claim for rental reimbursement for the value of the family residence in consideration for Kenneth J. Gravois, Sr.’s waiver of his claim for reimbursement for any mortgage payments made on the family residence at the time of the settlement of the community property between the parties.”

The Judgment was silent as to whom was awarded the exclusive use and occupancy of the home, but by testimony of the parties on February 3, 2003, both parties testified that Kenneth occupied their former home in Vacherie, Louisiana, from March 2000 through December 2000, and from December 2001 until the time the appeal brief was filed. Kenneth further testified that from December 2000 until December 2001, he worked and lived in Florida. The testimony suggests that Cheryl did not occupy the family home during Kenneth’s absence in Florida, but that Kenneth retained the right to its exclusive use and occupancy.

Cheryl filed a Rule for Past Due Child Support on October 31, 2002. Among other items, in that Rule she asked for an award for fair rental value during his exclusive use of the family home, retroactive to the date of the filing of her Petition for Divorce; Contempt; Attorney’s Fees, and Costs. Following a hearing on February 3, 2003, the trial court entered judgment in favor of Cheryl on February 21, 2003, awarding her, in addition to other items not at issue in this appeal, fair rental value of the family home in the amount of $400.00 per month for 33 months or $13,200.00.

Kenneth appeals this award, arguing that Cheryl agreed to waive her claim for rental reimbursement in the September 5, 2000 Consent Judgment; that she | transferred ownership of her interest in the residence to Kenneth prior to hearing on her Rule for rental value reimbursement; that she failed to reserve her claim for rent before transferring ownership to Kenneth; and that, as a co-owner, Cheryl is not entitled to rent from Kenneth absent a written agreement or court order to that effect at the time use and occupancy were awarded. Last, Kenneth argues that she failed to establish by a preponderance of the evidence that the fair rental value of the home was $400.00 per month.

ANALYSIS

LSA~9:374(C) states in pertinent part:

C. A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.

Jurisprudence has interpreted this section to require that such an agreement or court order be made at the time use and occupancy is awarded; rental payments may not be retroactively assessed. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280.

In Richard v. Richard, 00-08 (La.App. 5 Cir. 5/30/00), 762 So.2d 271, this court discussed the policy considerations behind LSA-R.S. 9:374(C):

The request for rent in this matter was made by Austin pending settlement of the community, post divorce. Therefore, after dissolution of their community, and until it is partitioned, Austin and Peggy continued to hold the property as owners in indivisión, or, as co-owners. Anderson v. Anderson, 520 So.2d 1236, 1239 (La.App. 5 Cir.1988). In this situation, as has been made clear by the Supreme Court, LSA-R.S. 9:374 does not sidestep more general principles of co-ownership, but is applied in conjunction with the principles found in Civil Code articles 797 through 818 — articles governing “ownership in indivisión.” Article 802, in particular, provides that one co-owner cannot prevent another co-owner from making use of the property. Rights of each party, therefore, spring not from another co-owner’s mere use of the common property — here, the family home' — but from the fact of ownership. And though one party’s exclusive use of Ifithe property does give rise to an action for damages, the action only arises if, and when, a demand for shared use is made and refused. McCarroll, 96-2700 at pages 19-20, 701 So.2d at 1289-90. Applying this principle to divorced spouses who yet hold property in common, if rent in this situation is a form of damages, the Supreme Court has held that “[f]or the assessment of rent under La.R.S. 9:374(C), there must be an agreement between the spouses or a court order for rent contemporaneous with the award of occupancy.” McCarroll, 96-2700 at p. 20, 701 So.2d at 1290. That is, “Mental payments may not be assessed retroactively unless otherwise agreed to by the spouses or ordered by the court ... there must be an agreement between the spouses or a court order for rent contemporaneous with the award of occupancy.” Lupberger v. Lupberger, 99-0144 at p. 3 (La.App. 4 Cir. 6/16/99), 738 So.2d 138, 140 (emphasis supplied).

Kenneth argues that the judgment retroactively assesses him with rental payments after Cheryl specifically waived such in the Consent Judgment of September 5, 2000. On appeal, Kenneth argues that the parties had no agreement regarding rental value.

It is clear that the parties had an agreement relative to their respective liabilities for fair rental value and the mortgage at the outset of Kenneth’s exclusive use and occupancy of the home. The Consent Judgment was rendered on September 5, 2000, six months after Cheryl’s Petition for Divorce was filed. The testimony established that Kenneth enjoyed exclusive use of the community home from March of 2000 until December of 2002, at which time Cheryl transferred her ownership in the home to Kenneth in the community property partition proceeding. The September 5, 2000 Consent Judgment is the first judgment in this divorce record, adjudicating various issues, including, in Paragraph 8, the parties’ respective rights and liabilities regarding rent and the mortgage. Though the language is inartful, we agree with the trial court’s interpretation thereof that the parties agreed that Cheryl would waive her right to seek fair rental value from Kenneth in consideration of him waiving his right to seek reimbursement from her of mortgage payments he made while enjoying exclusive use and occupancy of the community home. Kenneth’s testimony shows that he had enjoyed the exclusive 1 fiuse of the home since March of 2000 when the parties separated, yet had only made possibly one mortgage payment during that time. The record shows that while he was in Florida from December 2000 to December 2001, he continued to pay the utilities on the house, though not the mortgage. The record contains no documentary evidence regarding who, if anyone, made the mortgage payments, though evidence in the record suggests that on at least one occasion the mortgage was paid via a transfer from an account at the bank.

The cases interpreting R.S. 9:374(C) highlight the extremely prejudicial result that occurs when the occupying spouse is retroactively assessed with rental long after the spouses consented to the one’s occupation of the house. Such an award denies the occupying spouse the chance to avoid an assessment of “damages,” i.e. rental value, by offering the non-occupying spouse the use of the home (and likewise the non-occupying spouse could have asked for the use of the home himself). Such was the case in Richard v. Richard, 762 So.2d 271, 00-08 (La.App. 5th Cir.5/30/00). In that case, it appears that though the parties did agree that Mrs. Richard should occupy the home, the issue of rental payments was never addressed, because no contemporaneous order existed regarding rent. Here, though no award of rent was made in the September 5, 2000 Consent Judgment, it cannot be said that an order regarding rent does not exist contemporaneous with Kenneth’s award of use and occupancy. The issue of rental value was indeed addressed in Paragraph 8.

Other cases cited in Richard make clear that the “extreme prejudice” of a retroactive award of rental value is caused when the issue of rent itself is not addressed at the time occupancy is awarded, thus in effect “blindsiding” the occupying spouse with a liability for rental value not contemplated at the time the agreement or court order was confected. Here, it cannot be said that the issue of rent comes as a surprise to Kenneth. Paragraph 8 is the parties’ agreement relative |7to fair rental value and the mortgage while Kenneth occupied the community home. The parties apparently considered it equitable that while Kenneth had exclusive use and occupancy of the home, he would be liable for the mortgage payments, and Cheryl would, therefore, not seek rental reimbursement from him in consideration for that.

It is clear from the testimony that Kenneth did not abide by Paragraph 8. He did not pay the mortgage except possibly once during the time he enjoyed exclusive use and occupancy of the community home. We agree that under the jurisprudence interpreting R.S. 9:374, the parties’ agreement concerning rent in the Consent Judgment now entitles Cheryl to an award for fair rental value of the home.

In brief, Kenneth contends that Cheryl transferred ownership of her interest in the residence to Kenneth prior to hearing (but after her filing) on her Rule for rental value reimbursement, and that she failed to reserve her claim for rent before transferring ownership to Kenneth. We find no provision in the law, and none was argued, that negates a spouse’s right to assert a claim for rental value after the home is eventually transferred in full to the occupying spouse. Cheryl’s claim for rent is for the time period prior to the community property partition while the home was co-owned in indivisión.

Kenneth argues, lastly, that the amount awarded by the court, $400.00 per month, is not supported by competent evidence. We agree, and reverse the part of the judgment fixing the rental value at $400.00 per month, and remand for recalculation.

In the Consent Judgment, the parties agreed that the rental reimbursement would be waived in exchange for waiver of any claim for reimbursement for any mortgage payments made by Kenneth on the family residence. By this agreement, the parties agreed to tie the fair rental value to the amount of the mortgage 1 spayment(s) reimbursement that would be owed at the time of community partition. As per that agreement the rental reimbursement value per month was limited to one-half of the monthly mortgage payments) that were due on the community home. The record does not establish the exact amount of the monthly mortgage payment(s) or establish exactly when and with whose funds the mortgages were paid off. The record reveals that there were two mortgages on the home and that at least one of them may have been paid off during Kenneth’s occupancy, but prior to Cheryl’s transfer of the home to him in full ownership. The amount of the monthly mortgage payment, as well as what payments were made, and whether those payments were made with separate or community funds will all affect the amount of past due rental reimbursement owed by Mr. Gravois.

The matter is remanded to the trial court for a determination of what the appropriate rental reimbursement should be, given that the Consent Judgment establishes a basis for calculating the rental reimbursement value. Accordingly, the trial court’s judgment is affirmed in part, reversed in part, and the matter remanded for recalculation of the amount of fair rental value due Cheryl from Kenneth.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Nathaniel A. HERNANDEZ.
    No. 03-KA-424.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry M. Bou-dreaux — Appellate Counsel, Andrea F. Long — Counsel of Record on Appeal, Gev-in P. Grisbaum — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellant.
    Arcenious F. Armond, Jr., Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

For the third time in this case, the State has appealed, arguing again that the trial court erred in deviating from the statutorily mandated minimum sentence of 10 years imprisonment at hard labor. For the reasons which follow, we vacate the sentence and remand with instructions.

On October 12, 2000, the Defendant pled guilty to armed robbery, a violation of La. R.S. 14:64, pursuant to a plea agreement that he would be sentenced to five years in prison at hard labor without benefit of parole, probation or suspension of sentence. The trial court ordered that execution of the sentence be delayed until October 31, 2000. The matter was then continued until November 27, 2000, at which time the State pointed out to the trial court that the five year sentence agreed upon by the parties was illegally lenient. The prosecutor informed the trial court that about six months before the date of the offense, the State legislature amended La. R.S. 14:64 to raise the mandatory minimum sentence from five to ten years.

^Defense counsel noted that, at the time of the guilty plea, he was not aware that the minimum sentence for armed robbery was ten years, and that the Defendant entered his guilty plea in reliance on the trial court’s promise of a five year sentence. The trial judge commented he was also unaware at the time of the guilty plea that the armed robbery statute had been amended. He informed the Defendant that he could either withdraw his guilty plea and proceed to trial, or allow the guilty plea to stand and accept a ten year sentence. The Defendant elected to withdraw his plea.

On August 1, 2001, the Defendant moved the trial court to enforce the original plea agreement, and thereby deviate from the statutory minimum sentence of ten years. The trial court reinstated the Defendant’s guilty plea based on the original plea agreement and sentenced the Defendant to five years.

The State appealed the trial court’s ruling. A panel of this Court vacated the Defendant’s guilty plea and sentence, and remanded the case for further proceedings. State v. Hernandez, 01-1147 (La.App. 5th Cir.3/13/02), 815 So.2d 126. Citing State v. Dorthey, 623 So.2d 1276 (La.1993), this Court stated:

The record indicates that the trial court felt a sentence of ten years imprisonment would not be appropriate for this defendant and stated reasons for deviation, but did not find the minimum statutory sentence of ten years to be constitutionally excessive. We note that the trial judge does have the authority to deviate from a legislatively mandated sentence; however, in order to deviate from the mandatory minimum sentence the trial judge must find that sentencing this defendant to the minimum term of imprisonment is constitutionally excessive in that it makes no “measurable contribution to acceptable goals of punishment” or that the minimum sentence amounted to nothing more that [sic] “the purposeful imposition of pain and suffering.”

State v. Hernandez, 01-1147 at p. 4, 815 So.2d at 128.

On July 1, 2002, the trial court took up the matter on remand. The Defendant’s guilty plea was reinstated again. The trial court again sentenced the Defendant to five years. The trial court specifically cited Dorthey as authority for |4the downward departure, found that the statutory minimum as applied to this case was constitutionally excessive and gave reasons for imposing a sentence below the minimum term allowed by the statute. The State again challenged the sentence on appeal.

In that appeal, this Court found that the Defendant had not proven, by clear and convincing evidence, that the imposition of the minimum term of years would be constitutionally excessive as applied to him. This Court explained that the Defendant’s youth and his first offender status were not sufficient justification to support a Dorthey departure from the statutory minimum sentence. This Court held that “the defendant did not prove, by clear and convincing evidence, that the imposition of the mandatory minimum sentence of ten years would be constitutionally excessive. Accordingly, the trial court erred in deviating from the statutory minimum in sentencing the defendant.” This Court vacated the Defendant’s sentence and again remanded the case to the trial court for further proceedings, reserving to the Defendant his right to withdraw his guilty plea. State v. Hernandez, 02-892 (La.App. 5th Cir.1/28/03), 839 So.2d 281.

On March 12, 2003, the Defendant again appeared before the trial court. He again argued that the trial court should re-sentence him to a term below the mandatory minimum provided by law, citing new facts to support his position. The judge once again sentenced the Defendant to five years, giving reasons why the mandatory minimum sentence would be constitutionally excessive in this case. In addition to the previously articulated reasons, the Defendant’s youth (16 at the time of the offense) his first offender status and his family and community support, the trial court added that the Defendant had earned a GED diploma and that the co-defendant was allowed to plead to first degree robbery, a lesser offense, and was sentenced to just three years in prison even though he was an adult at the time, a second offender, and was charged with contributing to the Defendant’s 1 ¡¡delinquency as a minor. The State again appeals bringing the case back before this Court.

ASSIGNMENT OF ERROR NUMBER ONE

In the only assignment of error, the State complains that the trial court erred in re-sentencing the Defendant to five years incarceration, a term less than the mandatory minimum of ten years prescribed for armed robbery (La. R.S. 14:64), because the mandatory minimum sentence was not shown by clear and convincing evidence to be constitutionally excessive in this case.

A mandatory minimum sentence is presumed to be constitutional. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional. He must show he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the case before it that would rebut the presumption of constitutionality. State v. Johnson, supra; State v. Temple, 01-655 (La.App. 5th Cir. 12/12/01), 806 So.2d 697. It is not the role of the sentencing court to question the wisdom of the legislature in setting mandatory minimum punishments for criminal offenses. Rather, “the sentencing court is only allowed to determine whether the particular offender before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.” State v. Johnson, supra.

On March 12, 2003, the Defendant appeared before the trial court on remand. Based on this Court’s prior opinions, the trial court could have either sentenced the Defendant, according to the provisions of La. R.S. 14:64, to a sentence greater than the mandatory minimum sentence of ten years or allowed the Defendant to withdraw his guilty plea and proceed to trial. The trial court was not at liberty, based on this Court’s previous opinion, to again sentence the Defendant [ (¡below the statutorily provided mandatory minimum sentence of ten years on the plea of armed robbery. Therefore, we are setting aside the illegally imposed sentence and reserving to the Defendant the right to withdraw his guilty plea. State ex rel Miller v. Whitley, 615 So.2d 1335 (La.1993); State v. Hernandez, 02-892, p. 6, (La.App. 5th Cir.1/28/03) 839 So.2d 281,285.

However, we note that the Defendant has on prior remands “reinstated” his previous plea which was based on the erroneous information that he would receive a five year sentence. Hereinafter, if the Defendant chooses not to withdraw his guilty plea to the crime of armed robbery, it is with the informed knowledge that he will be sentenced at the minimum to the statutorily prescribed mandatory minimum sentence of ten years imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

ERRORS PATENT DISCUSSION

The record on remand was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). We note that at the time of the Defendant’s original sentencing on October 12, 2000, the trial court advised him that he would have two years “from today’s date” to apply for post-conviction relief. This was not correct information under La.C.Cr.P. art. 930.8. The trial court did not mention the provisions of Article 930.8 at the time of the Defendant’s second sentencing, on August 1, 2001, or his third sentencing on July 1, 2002 because we have vacated the Defendant’s current sentence, the error is rendered moot. However, for purposes of judicial economy, we note the error so that it may be corrected when the Defendant is resentenced.

Accordingly, the Defendant’s sentence below the mandatory minimum for the crime of armed robbery, to which he pled guilty, is vacated and the case remanded to the trial court for resentencing. The trial court is ordered to |7resentence the Defendant within the statutorily prescribed sentencing range for that offense (10 to 99 years) or permit him to withdraw his guilty plea and proceed as provided by law.

SENTENCE VACATED; CASE REMANDED.

      . The records pertaining to the State’s earlier appeals, Nos. 01-KA-1147 and 02-KA-0892, are included herein as exhibits.

      . The sentencing provisions of La. R.S. 14:64 were amended by 1999 La. Acts No. 932, § 1, effective July 9, 1999. Defendant was alleged to have committed the armed robbery on December 22, 1999.


author: I «SUSAN M. CHEHARDY, Judge.

text:
    Hinda Rain KATZ, as Natural Tutrix of Her Minor Son, Noah B. Katz, v. ST. JOHN The BAPTIST PARISH SCHOOL BOARD.
    No. 03-CA-462.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Samuel J. Accardo, Jr., Aceardo Law Firm, P.L.C., LaPlace, LA, for Plaintiff-Appellant, Hinda Rain Katz, as natural Tutrix of her Minor Son, Noah B. Katz.
    Dennis J. Phayer, Burglass & Tankers-ley, L.L.C., Metairie, LA, for Defendants Appellee, St. John The Baptist Parish School Board.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   I «SUSAN M. CHEHARDY, Judge.

The plaintiff appeals a summary judgment dismissing her claims against a school board arising from the sexual assault of her young son by other students in an elementary school restroom. We reverse and remand.

Hinda Rain Katz, as tutrix of her minor son Noah B. Katz, filed suit against the St. John the Baptist Parish School Board, alleging that her son was a kindergarten student at East St. John Elementary School in Reserve on February 25, 2000. On that date the teacher, Kim Smith, allowed Noah to leave the classroom and make an unsupervised visit to the restroom in the company of three other male kindergarten students. While in the restroom the other three boys sexually assaulted Noah by pulling his pants down, attempting to perform anal intercourse in him, and forcing him to perform “sexually explicit oral behavior” with them.

The plaintiff asserted that as a result of the incident, Noah sustained physical pain and suffering, severe and debilitating emotional distress, post-traumatic stress disorder with hospitalization, loss of enjoyment of life, medical expenses including hospitalization and medication, and lost time from school.

RThe plaintiff alleged that prior to the incident, Noah was a healthy, happy and stable six-and-a-half year old child, with no history of previous psychological incident or past injury. Since the February 2000 incident, however, he has become aggressive, displays psychotic behavior, and experiences sleep deprivation resulting from severely disturbing nightmares caused by the incident. In addition, he now takes a medication that causes side effects that include drowsiness, dizziness, nausea, fatigue, and difficulty concentrating.

The plaintiff asserted that the School Board is liable for negligence in failing to provide supervision of its minor students of tender age, failing to provide adequate supervision of her son, allowing four minor boys of tender age to leave a classroom and attend the restroom while unsupervised, failing to implement a policy with regard to student “hall passes,” failing to adequately train or instruct its teachers and other employees, and failing to implement adequate and safe restroom policies.

In addition the plaintiff asserts the School Board is liable because it failed, ignored and refused to remove Noah from the kindergarten class, despite repeated requests of his mother and grandmother that he be placed in a different class. The plaintiff states that Noah suffered severe distress and continued emotional and psychological damage by being forced to remain in the presence of the three other boys.

The plaintiff also alleges the School Board is liable because the principal of East St. John Elementary School, in a letter dated four days after the incident, admitted that the incident occurred. That letter was forwarded to the parents of the other boys. However, the plaintiff asserts, the letter indicated that Noah was a “participant” in the sexual conduct, which the plaintiff asserts caused additional | ¿harm to Noah because the school refused and failed to take any action in the case, “either disciplinary or proactive.”

In its answer, the defendant denied the allegations relating to the occurrence of the sexual assault and affirmatively pleaded that any damages were caused solely through the plaintiffs minor child’s own fault. Alternatively, the defendant asserted the doctrines of contributory negligence and comparative fault, fault of third persons, and failure to mitigate damages. The defendant filed a third-party demand against the parents of the other children involved in the incident.

The School Board subsequently filed a motion for summary judgment, asserting it had no liability for the incident because neither the kindergarten teacher nor the principal of East St. John Elementary was negligent. The defendant attached the affidavits of the teacher, Kim Smith, and the principal, Jerry “Texx” Galloway.

In the affidavits Smith and Galloway each stated that prior to the incident of February 25, 2000 involving Noah and the other three students, the affiant had neither personal/first-hand knowledge nor second-hand knowledge that any of the four boys involved in the incident had ever given any indication, through word or action, that he was inclined, predisposed, curious about, or even aware of the concept and act of anal intercourse, whether voluntary or involuntary. Similarly, prior to this incident they had neither first-hand nor second-hand knowledge regarding any other elementary school students, whether in kindergarten or any other elementary school grade, at East St. John Elementary or at any other elementary school in the St. John school system attempting to engage in acts of attempted anal intercourse, whether voluntary or involuntary.

In addition, Smith and Galloway both stated that the four boys involved were gone from the kindergarten class on a restroom break for less than five | ¿minutes before Smith sent a fifth boy down to the restroom to check on them and that the restroom was located approximately 13 steps (roughly 39 feet) from the kindergarten classroom. Therefore, the defendant asserted, the claims against it should be dismissed.

In opposition, the plaintiff cited the deposition testimony of Smith that she had previously been assaulted by a fourth-grader at the school, that at least once a month there were incidents of students assaulting other students at the school, and that she is personally aware of other teachers who had been assaulted by students at the school. The plaintiff argued that Smith’s testimony showed it was foreseeable that four young children allowed to attend a restroom alone were more likely to “play and get in trouble.” Further, plaintiff asserts that the teacher’s and principal’s actions subsequent to the incident were grossly negligent, in that the failure to transfer Noah to another kindergarten class caused him to suffer trauma by remaining in the presence of the three boys. In addition, the plaintiff alleged that Smith threatened the children with calling the police regarding the incident, which further traumatized Noah, who became distraught when he later saw police cars at the school.

In granting summary judgment the trial court stated:

In the present ease, the conduct by the children involved in the incident was unforeseeable. There had been no evidence that would cause the teacher nor any other school employee to believe that this sort of activity would occur. Additionally, there was no prior history of this type of behavior occurring between the students and no evidence to suggest that this type of behavior was likely to occur. Therefore, when an incident of this nature results from an impulsive act which could not be prevented or is of a spontaneous nature that would not have been preventable absent constant supervision, a school board is not held to be liable.
Additionally, there was no proof that the school board had either constructive or actual knowledge of the lfiinstant behavior. In this case, the conduct of the three 5-year-olds was unforeseeable and, by all accounts, happened suddenly and without warning.
Likewise, the school board is not independently liable under either La.C.C. articles 2315 or 2320. The school board and school were not aware of a pattern of deviant sexual behavior on the part of the five-year-olds. Because of the spontaneous nature and unforeseeability of the children’s actions, neither the School Board nor the teacher could have foreseen the incident nor have prevented it, exercising a reasonable degree of supervision.

On appeal, the plaintiff contends the trial court was manifestly erroneous in finding there are no genuine issues of material fact, in finding that there was competent supervision of the minor children based on the record in this case, in finding that the incident and risk of unreasonable injury were not foreseeable, and in failing to consider and address whether genuine issues of material fact exist as to whether the defendant’s actions subsequent to this incident were negligent in causing damage to the plaintiff.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B).

Wallmuth v. Rapides Parish School Board, 01-1779 (La.04/03/02), 813 So.2d 341, is the Louisiana Supreme Court’s most recent pronouncement on the Lability of school boards for injuries to students on school property. The court adopted the court of appeal’s statement of the liability standard:

|7A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. “Injury from horseplay between discerning students which, at some stage may pose an unreasonable risk of harm to the participants, does not automatically and of itself render the supervising authority liable.” Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. [Citations omitted.]

01-1779 at p. 8, 813 So.2d at 346.

In Wallmwth the court found that the defendant school board was not liable because the attack on the plaintiff student by other students was spontaneous and unforeseeable, so that neither the school board nor the supervising faculty member could have foreseen the incident or prevented it while exercising a reasonable degree of supervision. 01-1779 at p. 13, 813 So.2d at 349.

In Vaughn v. Orleans Parish Sch. Bd., 01-556 (La.App. 4 Cir. 11/28/02), 802 So.2d 967, writ denied, 02-0005 (La.6/7/02), 818 So.2d 773, a second-grade student was sexually assaulted by another student in the classroom while the teacher supervised the class. The trial court found that the teacher had negligently supervised her students and awarded damages. The court of appeal affirmed, stating, “Regardless of her presence or absence, a sexual assault occurred in her classroom while she was ostensibly in charge of these grade school children. |sBetween the threats and the assault, this egregious misconduct constituted behavior that Thompson, a self-described experienced teacher, had time and opportunity to notice and prevent.” The supreme court denied writs.

This Court recently upheld a trial court’s finding of liability against the St. John the Baptist School Board in another case. In Coutee v. Glade Middle School, 03-128 (La.App. 5 Cir. 6/3/03), 848 So.2d 754, a seventh-grade student sustained a fractured jaw when he was punched by another student in the school gymnasium. Despite school procedures set up to prevent students being in the gym without supervision, during the period in question there were seven students unsupervised in the gym. Among them was the student who attacked the minor plaintiff. The attacker actually had forged a hall pass in order to get to the gym to hit the plaintiff and the plaintiff knew he was not supposed to go into the gym without a teacher. Thus, both students violated school policy when they chose to be in the gym at that time.

In Coutee, we found that the school and the school board did not provide reasonable supervision over the students, that there was a causal connection between the lack of supervision and the incident, and that the risk of this injury was foreseeable. We amended the judgment, however, to change the allocation of fault, reducing the fault of the school and the school board and assigning a greater percentage of fault to the attacker.

In Pierce v. Tangipahoa Parish Sch. Bd., 02-139 (La.App. 1 Cir. 12/20/02), 836 So.2d 328, the first circuit upheld a summary judgment dismissing a school board and a school principal. In that case parents of injured students brought negligent supervision claims regarding an incident in which students injured other students with blow darts made out of sewing needles blown through drinking straws. In support of a motion for summary judgment, the school board filed an | ^affidavit by the school principal, which established that there were no previous reported incidents of this kind of behavior and, upon learning of the situation, the principal took appropriate steps immediately to address the problem. The court of appeal pointed out that the plaintiffs’ failure to oppose the motion for summary judgment meant there was an absence of factual support for their claim of negligent supervision, which could not be inferred from the mere occurrence of the incidents, so that summary judgment was appropriate.

In this case, however, we find there are genuine issues of material fact regarding foreseeability of a possible attack on one student by other students. Teacher Smith stated in her deposition that she did not always follow the school procedure of giving children a hall pass to go to the restroom because “in kindergarten ... they have to go to the bathroom so often.” If a child requests to go to the restroom during the school day, Smith said, she will give that child a pass to go to the restroom alone. Otherwise, however, Smith had times set aside during the day for all the children to go to the restroom, in which she would send the children in groups of four because of time constraints. “[If] I’m watching them, they don’t require a pass. I’m either standing in the doorway or I’m in the hallway, we’re in a line, and I’m right there in the line, sending four at a time to the bathroom.” Smith said she would watch the children when they made group restroom visits “[bjecause one child is not going to play and get in trouble as likely to play and get in trouble by himself as four students are. But you have to send four because of time restraints.” However, Smith did not specifically state that she was either standing in the doorway or waiting in the hallway for the children on this occasion.

In addition, Smith testified that she once was assaulted by a fourth-grader who struck her as Smith was breaking up a fight between that student and another student. Smith also admitted she is aware of incidents of children at the school | mphysically accosting other students, which she said happens at least once a month, and also of children assaulting teachers.

The plaintiff testified in her deposition that she had a meeting with Galloway (the school principal) and Smith, at which Smith stated that Noah was “just as guilty” as the other children “because he didn’t pull his pants up and run out.” In addition, Smith admitted to the plaintiff that she told the children that she was going to call the police, although Smith told the plaintiff she wasn’t speaking to Noah, but rather she said it because the mother of one of the other children involved in the incident had told her to say that to that child if he did anything bad.

Brenda Grisham, Noah’s grandmother, testified in her deposition that they did not learn of the incident in the school until the following Monday, when they were bringing Noah to school. As they pulled up in front of the school they saw police cruisers parked there and Noah became hysterical. Upon questioning him he told them his teacher had threatened to call the police and he thought the police were there to put him in jail. Grisham and the plaintiff requested a meeting with the principal and insisted that the teacher also attend.

At the meeting the principal told them there had been an incident in the bathroom. He told them “children are curious” and that “they did these things.” Grisham said she was upset because the principal seemed to want to “sweep it under the rug.” She also talked about the school’s lack of cooperation in moving Noah to another kindergarten class so he could avoid being around the other boys.

Based on the evidence above, we find there are genuine issues of material fact regarding the foreseeability of an attack against one student by one or more other students, regardless whether the sexual nature of the attack was foreseeable. Inin addition, we find there are genuine issues of material fact regarding whether the school’s handling of the matter contributed to Noah’s subsequent psychological and medical problems. This case was not ripe for summary judgment.

For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings regarding the reinstated portion. Costs of this appeal are assessed against the defendant-appellee.

REVERSED AND REMANDED.

      . They learned subsequently that the police were at the school to read books to the children.