author: JjLOLLEY, J.

text:
    STATE of Louisiana, Appellee v. LaCharleston WHITE, Appellant.
    No. 38,178-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.
    LaCharleston White, In Proper Person.
    Louisiana Appellate Project by Kenota Pulliam Johnson, for Appellant.
    ■J. Schuyler Marvin, District Attorney, Jason Brown, Assistant District Attorney, for-Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   JjLOLLEY, J.

LaCharleston White (“White”) seeks review of his conviction and. two-year .sentence by the . Twenty-Sixth Judicial. District Court in the Parish of Webster for simple escape. La. R.S. 14:110(A)(1), For the following reasons, we-affirm the conviction and sentence.

On October 2, 2001, White was in the custody of officers of the Minden Police Department due to a probation violation. White was on a work crew when he intentionally ran from the area without permission and was later arrested at his home.

White pleaded guilty pursuant to a plea bargain in which the parties and the trial court agreed the sentence to be imposed would be two years, consecutive to any other sentence to be served. The trial court imposed a sentence of two years at hard labor and denied a pro se motion for review and correction of an illegal sentence. This appeal by White ensued.

White’s court-appointed appellate attorney filed a brief and motion in this court stating that she had conscientiously and thoroughly reviewed the trial court record and found no non-frivolous issues to raise on appeal, nor any trial court ruling to arguably support White’s appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). In addition to summarizing the procedural history and the facts of the case, the court-appointed attorney’s [gbrief provided a detailed, reviewable assessment of whether the appeal was worth pursuing.

In accordance with Anders, Mouton and Benjamin, supra, White’s appellate counsel also notified him of his right to file a pro se brief and sought to withdraw from the case. This court held the motion to withdraw in abeyance and advised White of his right to file an appellate brief within 30 days of our October 9, 2003 Order deferring a ruling on counsel’s motion to withdraw. White never responded to the notice.

We have examined all the pleadings filed in the trial court, the court proceedings, the bill of information and all transcripts contained in the record. White was properly charged by bill of information which was signed by an assistant district attorney. He was present in court and represented by counsel at all important stages of the proceedings. A review of the trial court transcript reveals there was a factual basis for the guilty plea, that White was properly advised of his rights, and that he agreed to the sentence which was imposed. Since the sentence imposed is within that range, it cannot be appealed as excessive, and there was no need for the trial judge to give reasons for the sentence as required by La. C. Cr. P. art. 894.1. See, La. C. Cr. P. art. 881.2(A)(2); State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Bell, 412 So.2d 1335 (La.1982); State v. Rice, 26,478 (La.App.2d Cir.12/07/94), 648 So.2d 426, writ denied, 95-0431 (La.06/16/95), 655 So.2d 340; State v. Brown, 427 So.2d 1284 (La.App. 2d Cir. 1983). The sentence imposed is lawful.

| sEven if we were to review the constitutionality of White’s sentence, we would find it is commensurate with the offense of conviction. The sentence, which is the statutory minimum, neither shocks the sense of justice nor does it constitute a purposeless and needless infliction of pain and suffering. The legislatively prescribed range for the offense of conviction is not less than two years nor more than five years. White received great benefit from his plea bargain. Notably, White, who at the time of his guilty plea was 31 years old and had a high school education, has prior convictions for armed robbery, unauthorized entry of an inhabited dwelling, and simple robbery. He has also violated parole.

Our independent review disclosed no non-frivolous issues and no rulings which arguably support an appeal. We also examined the record for errors patent. Finding none, we affirm the conviction and sentence, and appellate counsel’s motion to withdraw is granted.

AFFIRMED.

      . The plea bargain also secured the dismissal of a charge of distribution of cocaine in an unrelated case, in which White agreed to plead guilty to another distribution charge with an agreed sentence of seven years at hard labor.


source: Caselaw Access Project

author: JjPICKETT, Judge. h COOKS, J.,

license: Public Domain

text:
    Robert Troy RICHARD v. Karl M. MILLER, et al.
    No. 03-1448.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Rehearing Denied April 7, 2004.

      Guy Olden Mitchell III, Attorney at Law, Ville Platte, LA, for Plaintiff/Appellant, Robert Troy Richard.
    James L. Pate, Laborde & Neuner, Lafayette, LA, for Defendant/Appellee, City of Opelousas, Larry Caillier, Lt. Mark Gui-dry.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

This suit arises out of an automobile collision that occurred on October 1, 2000. On that date, Lieutenant Mark Guidry (Lt.Guidry) of the Opelousas Police Department was conducting night patrol near Blanchard and Academy streets in Opelou-sas, Louisiana. Lt. Guidry was driving a white Ford Crown Victoria unmarked police unit equipped only with a revolving dash light. As Lt. Guidry approached the stop sign at Blanchard street, he observed a white male drive by in a red Taurus. Lt. Guidry turned around behind the Taurus and began proceeding in the same direction. The driver of the Taurus failed to stop at a stop sign at the intersection of Blanchard and Foster streets, which Lt. Guidry observed. He tried to conduct a traffic stop on the driver but the driver sped off driving an estimate of fifty (50) miles per hour in a twenty-five (25) mile per hour area. Lt. Guidry called in a description of the vehicle, requested back up, and continued to trail the vehicle with the dash light in his unit flashing. Because he did not have a siren, Lt. Guidry stopped at each stop sign that he encountered while in pursuit of Miller. He remained at least six blocks behind Miller as a result.

On that same night, Robert Troy Richard was a guest passenger in a vehicle being driven by his brother, Jared Lane Richard. They were proceeding in a westerly direction on Landry Street in Opelou-sas, Louisiana, when their vehicle was struck by the Taurus which was being driven by Karl M. Miller. Jared Richard died and Robert Richard sustained serious bodily injuries as a result of the collision. Richard brought an action for damages against Miller, the liability insurer of the vehicle that Miller was operating, Safeway Insurance Company of Louisiana, the Opelousas Police Department, Larry Cail-lier, who is the Chief of Police of the Opelousas Police 12Pepartment, Lt. Guidry, the liability insurer of his brother’s automobile, American Colonial Insurance Company and ABC Insurance Company of Louisiana, the public liability insurer of the Opelousas Police Department.

The Opelousas Police Department, the Chief of Police, Larry Caillier, and Lt. Mark Guidry filed a motion for summary judgment on the issue of liability. The motion was heard on June 30, 2003. On July 18, 2003, the trial court issued a judgment granting the motion for summary judgment in favor of the defendants and dismissing the plaintiffs action with prejudice.

It is from this judgment that the plaintiff appeals.

DISCUSSION

In his sole assignment of error, the plaintiff asserts that the trial court committed legal or manifest error in granting summary judgment in favor of the defendants.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, under the same criteria which governs the district court’s consideration of the appropriateness of summary judgment. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991).

Summary Judgment

Louisiana Code of Civil Procedure Article 966 provides the standard for considering motions for summary judgment. That article provides, in pertinent part:

(2)The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is now favored and shall be construed to accomplish these ends.
B. The judgment sought 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.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant 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 rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. 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.

The plaintiff submits that summary judgment was not proper in this case because there are questions of fact as to the issue of whether or not there was a pursuit (by Lt. Guidry) and, if so, whether he was reckless and disregarded the safety of others.

Duty of Care for Emergency Vehicles

La.R.S. 32:24 prescribes the privileges and duties of the driver of an emergency vehicle, and provides, in pertinent part, as follows:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, á fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger [ 4life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

In Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175, the supreme court addressed the standard of care set forth in subsection D of Louisiana’s emergency vehicle statute stating that:

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle drivers depending on the circumstances of the case. If, and only if, an emergency vehicle driver’s actions fit into subsections A, B and C of La.Rev. Stat. 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver’s actions will be gauged by a standard of “due care.”
“Due care” is synonymous with ordinary negligence. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, “gross negligence.” Gross negligence has been defined by this court as “the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). “Reckless disregard” or “gross negligence” is the standard to be applied if the emergency vehicle driver’s actions fit La.Rev.Stat S2:2k(A) through La. Rev.Stat. S2:2^(c). Otherwise, the standard is ordinary negligence.

(emphasis ours)

Thus, if the provisions of subsections A, B and C of La.Rev.Stat. 32:24 apply to the accident or incident in question, then the driver will be held liable only for his conduct which constitutes reckless disregard for the safety of others. For example, for the actions of a driver in circumstances like that involved in this case to be scrutinized under the 1 ^reckless disregard standard of care, the following must be met:
The emergency vehicle must be authorized and the driver must be:
Responding to an emergency call; (or in pursuit of an actual or suspected violator of the law; or returning from a fire alarm)
and the accident or incident in question must arise out of the emergency vehicle driver’s parking or standing; (or proceeding past a red or stop signal or stop sign; or exceeding the maximum speed limits; or moving or turning against the normal flow of traffic)
and the driver must make use of audible or visual signals sufficient to warn motorists of their approach. (A police vehicle, however, need not be equipped with or display a red light visible from in front of the vehicle.)

In the instant case, upon reviewing the depositions of Karl Miller, Lt. Guidry, the law, and evidence, the trial court found that Lt. Guidry was, in fact, in pursuit of Miller and, therefore, La.R.S. 32:24 was invoked. We disagree.

As previously noted in Lenard, 805 S.o.2d 175, the supreme court found that the standard of care relative to emergency vehicle drivers is set forth in subsection D. It determined that if the provisions of subsections A, B and C of the statute apply to the accident or incident in question, then the driver will be held liable only for his conduct which constitutes reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver’s actions will be gauged by a standard of “due care.” “Due care” is synonymous with ordinary negligence. Id. at 180.

The trial court found that La.R;S. 32:24 was invoked because the facts clearly show that Lt. Guidry was in pursuit of Miller. Therefore, we must determine whether the trial court was reasonable in finding that Lt. Guidry’s actions fit into subsections A, B and C of La.R.S. 32:24.

Upon reviewing the rqcord in its entirety, we find that Lt. Guidry’s actions fit | (¡subsection A of La.R.S. 32:24, because on the night of the incident in question, Lt. Guidry was operating his unmarked police patrol unit in pursuit of an actual or suspected violator of the law. We find, however, that his actions do not fit subsection B. Although he was in pursuit of an actual violator of the law, the incident in question did not arise out of the emergency vehicle driver’s parking or standing; or proceeding past a red or stop signal or stop sign; or exceeding the maximum speed limits; or moving or turning against the normal flow of traffic.

In order to be subjected to one of the standards of care set forth, in La.R.S. 32:24, the emergency vehicle driver’s actions must fit into subsections A, B and C of the statute. Because Lt. Guidry’s actions -do not fit into subsection B, our analysis ends here and La.R.S. 32:24 is not applicable to the instant case. As set forth by the supreme court in Lenard, the applicable standard in this case is ordinary negligence. ■ •

A trial court’s findings of fact are subject to the “manifest érror” 'or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, when the issue is a question of law, the appellate court simply determines whether the trial court’s decision is legally correct or. incorrect. Scobee v. Brame, 98-564 (La.App. 3 Cir. 10/28/98), 721 So.2d 977, writ denied, 98-2952 (La.1/29/99), 736 So.2d 833.

In this instance, we find that the trial court held Lt. Guidry to the standard of gross negligence, thus, it applied the wrong standard of care in determining that he did not breach the duty he owed to Richard. The proper standard to apply in this instance was ordinary negligence. We must conduct a de novo review of the record and determine whether summary judgment is appropriate.

Negligence

In Syrie v. Schilhab, 96-1027, pp. 4-5 (La.5/20/97), 693 So.2d 1173, 1176-77, the supreme court set out the duty-risk analysis used to determine whether liability exists:

Under this analysis, plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of the protection afforded by the duty breached. Berry v. State, Through Dept, of Health and Human Resources, 93-2748, p. .4 (La.5/23/94), 637 So.2d 412, 414; Mundy v. Dept. of Health and Human Resources, 620 So.2d. 811, 813 (La.1993). Under the duty risk analysis, all four inquires must be affirmatively answered for plaintiff to recoyer. Mathieu v. Imperial Toy Corp., 94-0952, p. 4 (La.11/30/94), 646 So.2d 318, 322.

In addressing the duty owed by the state trooper in that case to the plaintiffs, the Supreme Court stated:

We stated in Blair v. Tynes, 621 So.2d 591, 596 (La.1993), that the legislature has given law enforcement officers the exclusive power to regulate traffic and the public has a corresponding obligation to follow traffic regulations. Law enforcement officers are duty bound to exercise this power reasonably to protect life and limb and to refrain from causing injury or harm. When a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that motorists are not subjected to unreasonable risks of harm. Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3 Cir.1991). In Mathieu, 94-0952 at 10, 646 So.2d at 325, this court stated that the scope of an officer’s duty is to choose a course of action which is reasonable under the circumstances. In other words, the scope of an officer’s duty to act reasonably under the circumstances does not extend so far as to require that the officer always choose the “best” or even a “better” method of approach.

Dorty v. City of Pineville, 01-1470 (La.App. 3 Cir. 4/3/02), 815 So.2d 393, writ denied, 02-1271 (La.8/30/02), 823 So.2d 950.

In the instant case, as a law enforcement officer, Lt. Guidry had a duty to choose a course of action during his pursuit of Miller that did not subject other motorists to unreasonable risks of harm. We find that by coming to a complete stop |sat each stop sign that he encountered, Lt. Guidry did not breach the duty owed to motorists such as Richard to act reasonably under the circumstances. We further find that Lt. Guidry’s actions were not a cause-in-fact of the collision that occurred, but rather, Miller’s failure to obey the traffic laws by not stopping at the stop signs and by driving at a rate of speed that was in excess of the posted speed limit in the area was the eause-in-fact of the collision.

DECREE

There are no genuine issues of material fact. The question before the court is purely legal. We find no negligent behavior or actions on the part of Lt. Guidry, and find Guidry’s actions were not a cause-in-fact of the collision. Therefore, the mover is entitled to judgment as a matter of law. We affirm the judgment of the trial court. The costs of this appeal are assessed to the plaintiff-appellant, Robert T. Richard.

AFFIRMED.

AMY, J., concurs in the result.

h COOKS, J.,

concurs.

I agree with the trial judge that La.R.S. 32:24 is applicable, but even using ordinary negligence as the applicable standard, the grant of summary judgment is appropriate.


author: |-iWILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Earnest Ray WILSON, Jr., Appellant.
    No. 38,219-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2004.

      Mary L. Harried, New Orleans, Kenota P. Johnson, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, J. Thomas Butler, Lea R. Hall, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   |-iWILLIAMS, J.

The defendant, Ernest Ray Wilson, Jr., was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64 and simple escape, a violation of LSA-R.S. 14:110(A)(1). After a bench trial, the defendant was found guilty as charged. Thereafter, the state filed an habitual bill of information against the defendant. After a multiple offender hearing, the district court adjudicated the defendant a second felony offender and imposed a sentence of sixty years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery conviction and a sentence of five years at hard labor for the simple escape conviction. The court ordered that the sentences be served consecutively. Defendant’s motion to reconsider sentence was denied. Defendant appeals his sentences as excessive. We affirm.

FACTS

On November 4, 2002, at approximately 4:25 p.m., the defendant entered the Continental Baking Company, located at 2800 Hollywood Avenue in Shreveport, Louisiana. The defendant approached the counter pretending to purchase a package of hotdog buns. When the manager, Sarah Connell, opened the cash register, the defendant held a knife against Connell’s throat. The defendant then took money from the cash register drawer, which was later calculated to be $84, and fled the scene in a green 2002 Oldsmobile Alero. The cashier pressed the panic button and dialed 911. When the Shreveport Police Department officers arrived, Connell informed Officer D.L. Coney that the armed robbery had been recorded by the store’s video surveillance camera. She also stated that she had seen |?some of the numbers on the license plate of the vehicle in which the defendant fled.

After hearing a radio broadcast of the crime and a description of the defendant and the vehicle, Officer T.A. Bell pulled into a driveway behind a vehicle matching the description of the suspect’s vehicle. After a brief discussion with the driver of the vehicle, Officer Bell noticed that the passenger in the vehicle fit the description of the suspect from the armed robbery. The individual was later identified as the defendant, Ernest Ray Wilson, Jr.

The defendant attempted to escape, but was eventually advised of his Miranda rights, arrested for the robbery and transported to the Violent Crimes Unit at the Shreveport Police Department. Thereafter, the defendant confessed to the armed robbery and admitted that he was the suspect shown on the store’s surveillance videotape.

As the officers moved the defendant from the interrogation room into the hallway, the defendant asked if he could use the bathroom. Officer ■ Parker told the defendant that he would be escorted to the bathroom. At that point, the defendant ran down the hallway to the back door and fled from the building. Officers Parker and Smith repeatedly ordered the defendant to stop as they pursued him.

The defendant was finally apprehended by Detective Hinderberger. The defendant continued to be aggressive and combative. The defendant was transported back to the Violent Crimes Unit and charged with simple escape. Thereafter, the defendant continued to be uncooperative and to | ¡¡threaten the officers.

After a bench trial, the defendant was found guilty as charged of armed robbery and simple escape. Thereafter, the state filed a habitual offender bill of information charging the defendant as a second felony offender. The bill of information reflected that the defendant had a prior felony conviction of unauthorized use of a movable in September 1998. The trial court adjudicated the defendant a second felony offender and imposed a sentence of sixty years at hard labor without benefit of parole, probation, or suspension of sentence for the armed robbery conviction. The court sentenced defendant to serve five years at hard labor for the simple escape conviction, to run consecutively with the sentence imposed for the armed robbery conviction. Following a hearing, the defendant’s motion to reconsider sentence was denied. Defendant now appeals his sentences as excessive.

DISCUSSION

At the crux of the defendant’s assignments of error is his second assignment, i.e., the trial court erred by failing to particularize his sentences pursuant to LSA-C.Cr.P. art. 894.1. The defendant argues that the trial court should have considered that he was young enough to be rehabilitated, and should have imposed less severe sentences. The defendant also argues that the trial court failed to consider his familial ties and family support as evidenced by the letter written by the defendant’s mother and the fact that he has one child. Lastly, the defendant argues that the trial court failed to consider the amount of money at issue, the fact that no one was physically Lharmed during the perpetration of the crime and that the defendant has diabetes.

As a general rule, the trial court has wide discretion to sentence within statutory limits. Thus, absent a showing of manifest abuse of discretion, the appellate court may not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Thompson, 25,583 (La. App.2d Cir.1/19/94), 631 So.2d 555. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show adequate consideration of the criteria set forth in LSA-C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith, supra; State v. Gene, 587 So.2d 18 (La.App. 2d Cir. 1991), writ denied, 604 So.2d 993 (La.1992). The articulation of the factual basis for the sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Remand is unnecessary when a sufficient factual basis for the sentence is shown. State- v. Lanclos, 419 So.2d 475 (La.1982). Important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981).

The second inquiry is whether the sentence imposed is too severe in light of the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1 § 20 if it is grossly out of proportion to lRthe seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Gene, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

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.

The present record clearly shows adequate compliance with LSA-C.Cr.P. art. 894.1. The trial court considered the pre-sentence investigation (“PSI”) report which contained information about the defendant’s personal history, prior criminal record, the seriousness of the offenses and the likelihood of rehabilitation.

The trial court noted that due to the defendant’s status as a second felony habitual offender, a sentence of up to 198 years at hard labor without [^benefit of parole, probation or suspension of sentence could have been imposed for the armed robbery conviction. He also was exposed to two to five years incarceration for the simple escape conviction, a sentence which is statutorily required to be served consecutively to any other sentence imposed.

The trial court stated it had read a letter from defendant’s mother, wherein she asked for mercy. The trial court noted that defendant had committed a very serious offense. The trial court also recounted that the defendant had “put up a very difficult struggle” to resist arrest initially and had fought with the police again after he escaped from custody. The trial court noted that the victim had suffered extreme emotional and psychological damage, was not able to work at the time of sentencing and was undergoing counseling at the expense of her employer and the workers’ compensation fund. When questioned about his criminal actions, the defendant claimed he committed the offenses because he needed money for his daughter and because he was “messed up” by marijuana.

The trial court then summarized the defendant’s extensive criminal history, which included a significant juvenile criminal history. The defendant’s adult criminal record began in 1998 with a conviction for unauthorized use of a movable, although he had also been arrested for aggravated flight from an officer, interference with an officer and reckless operation of a vehicle in conjunction with the offense for which he was convicted. He had convictions in 1999 for theft, theft by shoplifting and simple battery. In 2000, he secured another conviction for unauthorized use |7of a movable. The defendant was convicted in 2001 for theft of goods, battery of a police officer and simple criminal damage to property. In addition to numerous arrests, in 2001 the defendant was arrested, without disposition, in Natchitoches, Louisiana for armed robbery.

The trial court found that the defendant was the type of person for whom the Louisiana Legislature had enacted the habitual offender laws. The trial court observed that defendant had dropped out of school in the ninth grade, was twenty-two years old at the time he committed the present offenses, and had no significant employment history. Defendant was not married and claimed to have one child. Furthermore, the defendant had failed miserably during two previous periods of probation with the Louisiana Department of Corrections. The trial court stated that it had considered the Article 894.1 factors, and found there was an undue risk of the commission of another offense unless defendant was imprisoned for a lengthy period of time and lesser sentences would deprecate the seriousness of the offenses.

Our review of the entire sentencing colloquy shows adequate consideration of the defendant’s personal and criminal history. The record demonstrates the court was aware of defendant’s age, his claim to have a child and the extent of injury suffered by the victim of the armed robbery. Under these circumstances, the sentences imposed by the trial court are lawful, not grossly disproportionate to the severity of the offenses and not shocking to the sense of justice. We conclude that this case presents no manifest abuse of the trial court’s broad discretion in sentencing, and we pfind that the total sentence of sixty-five years without benefit of parole, probation or suspension of sentence is not constitutionally excessive.

By the defendant’s final assignment of error, he contends the trial court erred in denying his motion to reconsider sentence. Since we have found that the sentences are not unconstitutionally excessive, we also conclude that the trial court did not err in denying his motion to reconsider sentence.

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

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences for armed robbery and simple escape are affirmed.

CONVICTIONS AFFIRMED; ADJUDICATION AS A HABITUAL OFFENDER AND SENTENCES AFFIRMED.


text:
    Carroll Riley FLOYD and Constance Grigg Floyd, Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, Defendant-Appellee.
    No. 38,187-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2004.

      Ronald Douglas Smith, Shreveport, for Appellants.
    Lemle & Kelleher, L.L.P., by Robert William Kyle, Shreveport, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   _|_1DREW, J.

Carroll Riley Floyd and Constance Grigg Floyd, plaintiffs, appeal the trial court judgment, which sustained Bossier City’s exception of res judicata based upon the judgment in an earlier action filed by the plaintiffs against the City. On appeal, the plaintiffs contend that the trial court erred in failing to give the Floyds the opportunity to amend their petition, which was dismissed with prejudice when the trial court sustained and granted the City’s peremptory exception of peremption. The Floyds also argue that exceptional circumstances exist which justify their being granted relief from res judicata. For the following reasons, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1994, the Floyds bought a piece of property on Wilhelmina Street in Bossier City near the Red River. They did not pay the property taxes owed for the 1995 tax year, and on July 2, 1996, the property was adjudicated to the City. The adjudication was recorded in the public records of Bossier Parish on July 5,1996.

In the summer of 2001, the Floyds inquired of the City the amount of taxes, penalties and interest due on the property, and whether they could redeem the property. By this time, the property was the subject of a proposed entertainment/shopping development later known as the Louisiana Riverwalk. Although the City initially provided a breakdown of the costs required to redeem the property, the Floyds later learned that the City did not intend to permit the redemption.

On December 4, 2001, the City of Bossier City passed an ordinance authorizing the City to acquire the property in question under the auspices | Ppf La. R.S. 33:2891.1, et seq., a statute which became effective on August 15, 2001. The ordinance was recorded in the conveyance records on December 27, 2001, and the City mailed to the Floyds notice of the passage of the ordinance by certified mail, return receipt requested, on January 24, 2002.

On May 23, 2002, the Floyds filed their first lawsuit, a “Petition Contesting Acquisition of Adjudicated Property,” in the district court. They alleged that they are the owners of the property described as:

LOT FOUR (4), BLOCK TEN (10), McCormick Annex East, a subdivision of the City of Bossier City, Bossier Parish, Louisiana, as .per plat thereof recorded in the Conveyance records of Bossier Parish, Louisiana, together with all buildings and improvements thereon; being also municipally known as 114 Wilhelmina Street, Bossier City, Louisiana.

They further alleged:

• The property was adjudicated to the City on July 2, 1996, for non-payment of taxes; the adjudication deed was recorded July 5, 1996, under Registry No. 617716, Conveyance Book 1116, Page 268, Bossier Parish, Louisiana.
• The City had a long-standing policy of allowing property owners to redeem adjudicated properties from the City even after the three-year redemptive period provided'by law had elapsed so long as the owners were willing to pay the back taxes and associated penalties, interest, and costs.
• Plaintiffs endeavored to redeem their property in April 2001 per this policy. On July 9, 2001, plaintiffs’ counsel received a fax stating the amount for redemption was $4,346.03.
• Through La. R.S. 33:2881.1, et seq., the City enacted Ordinance 126 of 2001 in an effort to assist the private , land developer of the Louisiana Riverwalk acquire the property.
• Plaintiffs received notice of the recor-dation of the ordinance more than 30 days after that event.
L* The City is attempting to take their property without due process of law.

The Floyds demanded that the court:

(1)deny the City the right to acquire the property;
(2) order the City to accept the Floyds’ tender of back taxes, interest, penalties and costs;
(3) order the Clerk of Court of Bossier Parish to cancel the inscription of the ordinance from the conveyance records; and
(4) award the Floyds ’ attorney fees and costs.

In response to this lawsuit, Bossier City filed an exception of peremption.- The City cited La. R.S. 33:2891.3(0 for the proposition that any challenge to an ordinance like the one passed regarding the subject property must .be brought within 120 days of the recordation of the ordinance in the public records. The City asserted that the ordinance was recorded on December 27, 2001, and calculated that 120 days from that date was April 26, 2002. The City argued that the Floyds’ petition filed on May 23, 2002, came too late.

The district court heard argument on the exception on September 6, 2002, and that same day the court signed a judgment sustaining the exception of peremption and dismissing the Floyds’ action. The Floyds did not appeal this judgment signed and filed on September 16, 2002.

On December 3, 2002, the Floyds filed the present. lawsuit against the City of Bossier City, this time seeking money damages for the alleged wrongful refusal of the City to allow them to redeem the property seized in 1996 for non-payment of taxes. The City opposed this lawsuit with an exception of res judicata.

, |4In -the Floyds’ second action against the City, they reiterated the basic allegations of their first petition (the first 16 paragraphs are identical) and demanded money damages from the City in the amount of $123,916.00. The Floyds asserted that Bossier City had continued its practice of -allowing out-of-time -redemp-tions for other persons while refusing to allow the Floyds to redeem this piece of property.

Bossier City, in response to the second lawsuit, filed an exception of res judicata, urging that the subject matter of both lawsuits was the redemption of the same piece of property and that the judgment dismissing the Floyds’ first petition was final. In response, the Floyds argued that the judgment in the first action was not valid or final, that no issue was actually litigated and determined in the first action, that the actions are not on the same subject matter, and that the exceptional circumstances of this case justify an exception to res judicata. On February 13, 2003, the district court heard argument on the exception and verbally sustained the exception. The Floyds thereafter filed a motion for new trial which the court denied after a hearing on May 5, 2003. The Floyds filed this appeal.

DISCUSSION

La. R.S. 13:4231 provides, in part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the | ^litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192.

The central inquiry is not whether the second action is based on the same cause of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. Tate v. Prewitt, 33,895 (La.App.2d Cir.9/27/00), 769 So.2d 800, writ denied, 2000-3203 (La.1/26/01), 781 So.2d 1265. After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. This promotes judicial efficiency and final resolution of disputes. Id. See also comment (a) to La. R.S. 13:4231. A judgment determining the merits of a case is a final judgment. La. C.C.P. art. 1841. The concept of res judi-cata should be rejected when doubts exist as to whether a plaintiff’s substantive rights actually have been previously addressed and finally resolved. Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment. Tate, supra.

On appeal, the Floyds first argue that the former judgment of the district court is not valid and final because the court dismissed their action 1 (¡on the grant of a peremptory exception without allowing them the opportunity to amend their petition to cure the defect per La. C.C.P. art. 934. We reject this argument. The plaintiffs sought no review of the district court judgment on that or any other ground; the judgment became final. Moreover, when the exception is sustained, Article 934 only requires an amendment when such an amendment may remove the grounds for the objection pleaded by the exception. In this case, the facts and, in particular, the dates as asserted by the plaintiffs showed that their lawsuit was perempted by the terms of the statute. No amendment could cure this untimely filing.

Next, the Floyds argue that their second petition was not on the same subject matter as their first petition. They assert that their first petition sought to challenge the validity of the City ordinance, not the pecuniary damages they sought in their second petition. We reject this argument as well. The current version of res judicata applies to all causes of action arising out of the transaction or occurrence that was the subject matter of the litigation. Clearly the parties’ rights to the Wilhelmina Streét property were the subject matter of the first litigation, and any damages that the City might arguendo have owed the Floyds as a result of the City’s actions could flow only from the Floyds’ rights, if any, to the property.

The Floyds’ third argument is a permutation of this argument; they assert that the issue of damages was not actually litigated and determined in the first action. However, the City’s exception of res judi-cata was not directed at only the issue of damages (collateral estoppel) under La. R.S. |713:4231(3), but instead, challenged under La. R.S. 13:4231(2) all of the claims raised by the Floyds, a distinction this court observed in Hudson v. City of Bossier City, 33,620 (La.App.2d Cir.8/25/00), 766 So.2d 738, unit denied, 2000-2687 (La.11/27/00), 775 So.2d 450. Because the subject matter of both lawsuits fundamentally concerns the parties’ rights to the property, the final judgment in the first action precluded any future claims by the Floyds to the property.

Finally, the Floyds argue that this case presents an exceptional circumstance where the district court should have exercised its discretion to disregard the res judicata effect of the earlier judgment. La. R.S. 13:4232 provides, in part:

A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment....

Louisiana’s exceptions to res judicata are similar to those recognized in the common law. See discussion in Shearman v. Asher, 2003-0152 (La.App. 4th Cir.7/2/03), 851 So.2d 1226.

La. R.S. 13:4231(1) gives the court the discretion to balance the principle of res judicata with the interests of justice. This discretion must be exercised on a case-by-case basis and relief granted only in exceptional circumstances. It is not to be used where plaintiffs simply fail to assert a right or claim through oversight. See comment to La. R.S. 13:4232. We believe that no exceptional circumstances are present in the instant case. The failure to raise a claim that arises from the transaction or occurrence amounts to a waiver of that claim. Medi-cus, supra. The Floyds should have | sbrought their demand for damages as an alternative in their first action, and they offer no reason why they were prevented from doing so.

CONCLUSION

Accordingly, the judgment of the district court is affirmed at appellants’ cost.

AFFIRMED.


author: JjDREW, J.

text:
    STATE of Louisiana, Appellee v. Bruce Anthony THOMAS, Appellant.
    No. 38,218-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2004.
    Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Jeffrey Stephen Cox, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   JjDREW, J.

Defendant, Bruce Anthony Thomas, pled guilty as charged to one count of felony theft, a violation of La. R.S. 14:67, punishable by imprisonment for not more than 10 years, or a fine not to exceed $3,000, or both. In exchange for the state’s agreement not to file a multiple offender bill, defendant pled guilty as charged. The court imposed a sentence of eight years at hard labor, to be served consecutively with any other sentence. Defendant’s timely motion for reconsideration of sentence was denied, and he appeals his sentence as excessive. We affirm.

The matters of record show that on October 5, 2002, defendant stole a cash register and $100 in cash, for a total value in excess of $500, from a service station in Bossier City.

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993). 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).

Prior to imposing sentence, the court reviewed a PSI report, which provided details of defendant’s social history, including his education and work experience. At the time of sentencing, defendant had pending charges on two counts of theft and one count of simple burglary in Caddo Parish. He was a third-felony offender with prior convictions for four counts of armed robbery in 1990 and for distribution of cocaine in 1996. He had several other arrests for DWI and theft-related offenses, with dismissals [2or without dispositions. The court found that a lesser sentence would deprecate the seriousness of the offense, and that the defendant was in need of correctional custody.

On this record, we do not find constitutional error. Defendant received a substantial benefit from his plea bargain in that the state agreed not to charge him as a third-felony offender.

Defendant claims to have skills in culinary arts and mechanical work, and states he is in good health without any physical disability which would preclude him from earning an honest living without resorting to theft. We note that defendant, age 35 at the time of sentencing, has twice failed to complete parole supervision satisfactorily. There is no excuse for the offense of conviction.

The lawful sentence imposed is within the range permitted under the statute of conviction. The sentence is neither grossly disproportionate to the severity of the offense of conviction nor, considering defendant’s background, is it shocking to our sense of justice. 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 the ease, is supported by the record and which is not constitutionally excessive.

The conviction and sentence are AFFIRMED.


author: |-i GASKINS, J.

text:
    Sara MILLER, Through her Duly Qualified Tutrix, Mammie Miller, Plaintiff-Appellee v. NURSING HOMES MANAGEMENT, INC. d/b/a Chateau D’Arbonne, Defendant-Appellant.
    No. 38,198-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2004.

      Adams and Reese, LLP, by Richard B. Eason, II, Raymond P. Ward, Marrick Armstrong, New Orleans, for Appellant.
    Cusimano and Aswell, by Harold W. As-well, Farmerville, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   |-i GASKINS, J.

The defendant, Nursing Homes Management, Inc. d/b/a Chateau D’Arbonne (Chateau), contends that the claims of the plaintiff, Sara Miller, through her duly qualified curatrix, Mammie Miller, were based on medical malpractice. Because the plaintiff did not first convene a medical review panel, Chateau argues that the present suit for damages was premature. The trial court overruled the exception of prematurity and Chateau appealed. For the following reasons, we reverse and remand for further proceedings.

FACTS

The plaintiff is 51 years old and has been bedridden since birth due to severe retardation and/or birth trauma. Mammie Miller is her mother and cares for her on a daily basis. In late July 2000, Sara was placed at Chateau while Mrs. Miller recuperated from a broken hip. The plaintiff alleges that during her two-week stay, she developed decubitus ulcers, also known as bedsores, on her heels as a result of not being turned frequently and not having socks on her feet. She was transferred to Union General Hospital for treatment of the sores. When she arrived, the plaintiff contends that she was covered in her own filth.

On July 27, 2001, the plaintiff filed suit against Chateau, claiming that the sores have not healed and may never heal. She alleged that Chateau breached the standard of care by failing to turn |gher, to keep socks on her feet, and to keep her in a clean and sanitary condition. She claims entitlement to damages due to Chateau’s “lack of care.”

Chateau filed exceptions of prematurity, lack of procedural capacity, and vagueness. In regard to the exception of prematurity, Chateau argues that the plaintiff was required to avail herself of the administra-^ tive remedies provided for in the Louisiana Medical Malpractice Act (MMA), La. R.S. 40:1299.41, et seq., by presenting her claims to a medical review panel prior to filing suit in district court.

A hearing was held on April 14, 2003. On May 8, 2003, the trial court issued a ruling, denying the exception of prematurity. The court found that the plaintiffs claim was not rooted in medical care; therefore, the MMA does not apply and the plaintiff was not required to bring her claim before a medical review panel. Chateau appealed.

LEGAL PRINCIPLES ’

La. C.C.P. art. 926 provides for the dilatory exception of prematurity. A suit is premature if it is brought before the right to enforce the claim has accrued. La. C.C.P. art. 423. Prematurity is determined by the facts existing at the time a suit is filed. Yokem v. Sisters of Charity of the Incarnate Word, 32,402 (La.App.2d Cir.6/16/99), 742 So.2d 906.

The exception of prematurity may be utilized in cases where |sthe applicable law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Generally, the person aggrieved in such a case must exhaust all administrative remedies before being entitled to judicial review. Yokem v. Sisters of Charity of the Incarnate Word, supra.

The MMA provides "such a mechanism by requiring all medical malpractice claims against covered health care providers to be submitted to a medical review panel (MRP) prior to fifing suit in court. This administrative procedure affords the MRP an opportunity to render its expert opinion on the merits of the complaint. Yokem v. Sisters of Charity of the Incarnate Word, supra.

A judgment rejecting an exception of prematurity is interlocutory and unap-pealable in the absence of irreparable injury. However, a judgment requiring a health care provider to forgo the benefit of the MRP is considered appealable because MRP proceedings cannot be adequately replicated after reversal on appeal. The instant judgment is therefore appealable. Fincher v. State Department of Health and Hospitals, 29,640 (La.App.2d Cir.4/2/97), 691 So.2d 844.

In Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460, the Louisiana Supreme Court considered whéther medical malpractice claims against a nursing home that is a qualified health care provider under the MMA must be submitted to a MRP under the MMA or can be brought outside of the Lprovisions of the MMA under the Nursing Home Residents’ Bill of Rights (NHRBR) contained in La. R.S. 40:2010.8, et seq. The.NHRBR provides a civil action for violation of certain enumerated rights held by residents of nursing homes. In Richard, the supreme court stated that nursing homes are “health care providers” under the MMA. The court reasoned that, in enacting the NHKBR in 1985, the state legislature did not intend to repeal, supplant, or replace the MMA’s application to medical malpractice claims against nursing homes. However, the court noted that not all claims will constitute medical malpractice.

The MMA, in La. R.S. 40:1299.41(A)(8), defines “malpractice” as follows:

A. As used in this Part:
(8) “Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

A “patient” is defined in La. R.S. 40:1299.41(A)(3) as “a natural person who receives or should have received health care from a licensed health care provider, under contract, expressed or implied.” “Health care” is defined under La. R.S. 40:1299.41(A)(9) |sas “any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.”

In Richard, supra, it was alleged that the staff of a nursing home negligently allowed a resident to fall from her wheelchair. The court noted that this involved the “handling of a patient, including loading and unloading of a patient,” falling within the definition of malpractice. However, the court noted that in prior decisions, it held that the patient must be in the process of receiving health care from a doctor or hospital when the negligent rendition of professional services occurs. Therefore, the act or omission must have occurred during the patient’s medical care, treatment, or confinement. In Richard, the court stated that a key issue is whether a plaintiffs allegations of wrongdoing are related to treatment and are caused by a dereliction of professional skill.

The court reasoned that a nursing home resident is not always receiving medical care or treatment for a specific condition, but can always be said to be “confined” to the nursing home. However, the court opined that it was not the intent of the legislature to have every act by any health care provider during the patient’s confinement in a nursing home covered by the MMA. To be covered under the MMA, the negligent act must be related to medical treatment. The court stated that in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303, it set forth a six-part test to determine whether a negligent act by a health care provider is covered under the MMA:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3)whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope- of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; (6) whether the tort alleged was intentional.

In this matter, the trial court-applied the factors set forth in Coleman v. Deno, supra, and determined that this was not a medical malpractice claim. The court stated that the alleged wrong was not related to medical treatment or dereliction of professional medical care. The plaintiff was placed in the nursing home for 24-hour custodial care or shelter and not for medical attention. The trial court reasoned that the allegation that Chateau failed to keep the plaintiff in a clean and sanitary state, free of her own filth and free from bedsores, does not require medical testimony and does not involve an assessment of the plaintiffs condition. The court determined that presumably, the incident was within the scope of activities that Chateau was licensed to perform. The court noted that the injury could have occurred even if the plaintiff had not been admitted to the nursing home, if her caretaker failed to provide a sanitary environment and failed to turn the plaintiff at required intervals. _JjAccording to the trial court,'no evidence suggested that the incident was intentional.

The trial court concluded that, because the purpose of the plaintiffs residence in the nursing home was to receive shelter rather than medical care or treatment, there was no need to bring the matter before' a MRP. Accordingly, -the - court found that the plaintiffs claim was not premature.

We find that the trial court erred as a matter of law. in denying the exception of prematurity,

A decubitus ulcer which forms as a result of improper care in a health care setting is actionable as malpractice. See Smith v. Juneau, 95-0724 (La.App. 4th Cir.4/9/97), 692 So.2d 1365.

The case of Martin v. Comm-Care Corporation, 37,600 (La.App.2d Cir.10/16/03), 859 So.2d 217, writ denied, 2003-3188 (La.2/6/04), 866 So.2d 225, indicates that, where a resident enters a nursing home and already has bedsores which worsen after admittance allegedly due to improper care, the cause of action sounds in medical malpractice and a MRP is required. In Martin, the condition of the patient who was admitted to a nursing home with decu-bitus ulcers deteriorated and he died. His family filed a wrongful death suit, claiming that the nursing home failed to adequately treat the bedsores.

In this matter, the plaintiff was completely bedridden. She |srequired extensive care beyond basic shelter. The failure to give her the proper treatment required by her condition resulted in the development of decubitus ulcers. The allegations involve the dereliction of professional skill in caring for a bedridden patient such as the plaintiff.

Expert medical evidence will be required to determine whether the appropriate standard of care was breached. Allowing the condition to develop and remain untreated constitutes a failure to provide health care. Further, any claims regarding the failure of the nursing home to properly treat the plaintiff once the decu-bitus ulcers developed are squarely based upon medical malpractice.

Caring for a bedridden patient to prevent problems such as bed sores was within the scope of activities the defendant was licensed to perform. The plaintiff alleges that the condition would not have developed if she had not been placed in the nursing home. There is no showing that the tort was intentional.

Accordingly, we find that the issue of failure to treat the decubitus ulcer involved the medical treatment of the plaintiff and therefore, the plaintiff was required to submit that claim to a medical review panel before filing suit in the district court. The exception of 19prematurity is granted on this claim and the matter is remanded to the trial court for further proceedings.

CONCLUSION

For the reasons stated above, we reverse the ruling of the trial court, denying the exception of prematurity filed by the defendant, Nursing Homes Management, Inc. d/b/a Chateau D’Arbonne, on the issue of failure to treat the decubitus ulcer. The exception is granted and the case is remanded to the trial court for further proceedings. All costs in this court are assessed to the plaintiff.

REVERSED AND REMANDED.

      . We note that in the caption of this matter, Mammie Miller is designated as her daughter’s tutrix. However, the record shows that the plaintiff is not a minor and Mammie Miller was appointed as the curatrix for her interdicted daughter.

      . The exceptions of vagueness and lack of procedural capacity were later withdrawn by the defendant. The exception of prematurity is the only issue remaining in this matter.

      . This provision was amended by Acts 2003, No. 479 § 1, to specifically include nursing home residents in the definition of a patient.

      . The facts note the plaintiff's allegation of injury either when she was attacked by a nursing home employee, or when she fell from her wheelchair.

      . This matter was later dismissed on an exception of prescription.

      . See McLemore v. Westwood Manor Nursing & Rehabilitation L.L.C., 37,450 (La.App.2d Cir.8/20/03), 852 So.2d 1170, in which a patient was dropped by nursing home employees. The patient’s leg was broken, but he was placed in his bed and the injury was not treated, resulting in the formation of blood clots. This court held that failing to provide appropriate care and medical treatment after the incident was a medical malpractice claim requiring a MRP.

      . While not dispositive of this case, we note that provisions of the NHRBR contained in La. R.S. 40:2010.8, et seq. have been amended by Acts 2003, No. 506, to limit a resident's cause of action to injunctive relief. Recovery is now limited to attorney fees and costs and does not include damages.


author: j .BROWN, C.J.

text:
    RAY ANDING CONSTRUCTION, INC., Plaintiff-Appellee v. MONROE CITY SCHOOL BOARD, Defendant-Appellant.
    No. 38,228-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2004.

      L. Douglas Lawrence, Bastrop, Tikisha Yvonne Smith, for Appellant, Monroe City School Board.
    Shotwell, Brown & Sperry, by: C.A. Martin, III, Monroe, for Intervenor/Appel-lant, Traxler Construction Co., Inc.
    Sedrie E. Banks, Monroe, for Appellee.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   j .BROWN, C.J.

Plaintiff, Ray Anding Construction Co. Inc. (“Anding”), was the low bidder for a public works project for construction and renovations at Carver Elementary School in Monroe, Louisiana; however, its bid was rejected by defendant, Monroe City School Board (“MCSB”). Consequently, Anding sought injunctive relief in the district court. Traxler Construction Co. Inc. (“Traxler”), who was awarded the contract, intervened. Anding’s rule for injunctive relief was heard as a summary matter. The trial court found in favor of Anding and enjoined and restrained the MCSB from executing any contract with anyone other than Anding. Further, the court concluded that Anding’s bid was in proper form and was the lowest bid. MCSB was ordered to pay all costs and indemnify Traxler for the cost of a performance bond it had purchased. Defendant, MCSB, and defendant-in-intervention, Traxler, have appealed. For the reasons set forth below, we affirm in part and reverse in part.

Factual Background

In early 2003, the Monroe City School Board, in accordance with Louisiana Public Bid Law, La. R.S. 38:2211, et seq., advertised for bids on a public works project for construction and renovations at Carver Elementary School.

After the written bid proposals were opened and reviewed by the MCSB, the bid submitted by Anding was not accepted because the bid amount was recited numerically as “$559,372.00.” (use of periods rather than commas) and in words as “Five Hundred Fifty Nine Three Hundred Seventy Two Dollars” (omission of the word Thousand). The MCSB’s 12attorney informed Anding that its bid was unclear and unacceptable. Subsequently, Traxler was awarded the contract as the next lowest bidder. Traxler then obtained a performance bond at a cost of $5,880. Court action was quickly initiated by Anding, and the matter was heard summarily on June 30, 2003. At this point, no action, aside from Traxler obtaining a performance bond, had been taken.

Discussion

Any contract entered into for the construction of public works in violation of the Louisiana Public Bid Law is void. La. R.S. 38:2220. Any interested party may bring suit in the district court through summary proceedings to seek appropriate injunctive relief to prevent the award of a contract which would be in violation of this part, or may proceed by ordinary process to seek an appropriate remedy to nullify a contract entered into in violation of this part. La. R.S. 38:2220(B). Failure to award the contract to the lowest responsive and responsible bidder is a violation of the public bid law. To obtain injunctive relief, the petitioner must have standing to do so and meet the requirements for this extraordinary relief. As a bidder, Anding was an interested party and clearly has standing to seek injunctive relief.

La. C.C.P. art. 3601 provides in pertinent part:

An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law....

Fairness lies at the heart of the bidding process and violations of competitive bid requirements should not be sanctioned. Injunctive relief is proper where it is clear that it is the only adequate means of protecting the public interest, the integrity of the competitive bidding process, and the rights of the individual bidder.

In Nola Express, L.L.C. v. New Orleans Aviation Board, 02-0662 (La.App. 4th Cir.09/11/02), 826 So.2d 650, unit denied, 02-2774 (La.02/07/03), 836 So.2d 100, a bidder for an airport ground transportation concession contended it was the lowest bidder and sought a preliminary injunction to enjoin the aviation board from re-bidding the concession. The appellate court held that where Nola Express alleged that it was the lowest bidder, the re-bidding of the concession could indeed cause irreparable injury, loss, or damage if the concession was awarded to another bidder.

In the instant case, the trial court states that it is “going to grant the injunction and recognize Mr. Anding’s as the low bid in this particular case.” If Anding was in fact the lowest bidder, awarding the public works contract to Traxler could indeed cause Anding irreparable injury.

The trial court found that Anding was the lowest bidder. The rejection by MCSB of Anding’s bid was based solely on the ambiguity of the written text of the bid amount and the use of periods rather than commas in the numerical recitation. We agree with the trial court that there was no genuine controversy as to the amount of Anding’s bid. MCSB followed its normal procedure of opening and reading the bids aloud and identifying the apparent low bidder. Thereafter, the bids were reviewed by MCSB officials |4and their own architect to determine the lowest responsive and responsible bidder for purposes of actually awarding the contract. When MCSB initially opened and tabulated the bids, it announced that Anding’s bid was the lowest. At that time, MCSB officials had no problem understanding the amount of the bid. Further, MCSB has not asserted that Anding was not a responsible contractor. Because Anding acted swiftly, no construction had started. No evidence was presented by MCSB that a delay would cause a hardship to the school system.

MCSB argues that La. R.S. 38:2220 does not authorize the use of summary proceedings to determine the merits of whether a bid is non-conforming. The statute, however, specifically provides that any interested party may bring suit through summary proceeding to enjoin the award of a contract or to seek other appropriate in-junctive relief to prevent the award of a contract that violates the public bid law. MCSB argues that Anding’s pleadings did not seek a permanent injunction but only a temporary restraining order and a preliminary injunction. In fact, the petition sought interlocutory as well as permanent relief.

A preliminary injunction is an interlocutory procedural device designed to prevent irreparable harm by preserving the status quo between the parties pending a full trial on merits. La. C.C.P. art. 3601; Gaumnitz v. Williamson, 36,177 (La. App.2d Cir.08/14/02), 824 So.2d 531; Wied v. TRCM, LLC, 30,106 (La.App.2d Cir.07/24/97), 698 So.2d 685; Louisiana Gaming Corporation v. Rob’s Mini-Mart, Inc., 27,920 (La.App.2d Cir.01/24/96), 666 So.2d 1268; Bally’s Louisiana, Inc. v. Louisiana Gaming Control Board, 99-2617 (La.App. 1st Cir.01/31/01), 807 So.2d 257, writ denied, 01-0510 (La.01/11/02), 807 So.2d 225.

The principal demand, as opposed to a preliminary injunction, is determined on the merits only after a full trial under ordinary process, even though the hearing on the summary proceeding to obtain the injunction may touch upon or tentatively decide issues regarding the merits. La. C.C.P. art. 3601; Liberty Bank and Trust Co. v. Dapremont, 02-1504 (La.App. 4th Cir.02/11/03), 844 So.2d 877, writ denied, 03-1416 (La.09/26/03), 854 So.2d 361; Bally’s, supra; Neumeyer v. Schwartz, 97-995 (La.App. 5th Cir.03/25/98), 708 So.2d 1258. Furthermore, only where the parties have expressly agreed to submit the case for a final decision at the hearing on the rule for a preliminary injunction may the ruling on the preliminary injunction definitively dispose of the merits of the case. Bally’s, supra; Neumeyer, supra.

The trial court was not clearly wrong or manifestly erroneous in finding that Anding presented a prima, facia case that it was the lowest responsive and responsible bidder. The remedy fashioned by the trial court “enjoined and restrained” the MCSB from executing or awarding the contract to any bidder other than plaintiff. This remedy was clearly within the trial court’s discretion. To reach such a conclusion, the trial court had to find that Anding presented a prima facia case that it was the lowest responsible bidder and that its bid was not ambiguous. However, the ruling of the trial court on all issues, including the conformity and integrity of the bid which led to a final determination on the merits, constitutes error.

| fiAdditionally, MCSB has objected to the trial court ordering it to indemnify Traxler for the cost of its performance bond. This relief was not sought in this proceeding by intervenor, Traxler, and should not have been granted.

Conclusion

For the reasons set forth above, the judgment of the trial court granting the preliminary injunction is affirmed. This case is remanded to allow determination on the merits regarding the conformity and integrity of the bid. The ruling that MCSB pay Traxler the cost of its performance bond is also reversed. All costs are to be paid as allowed by law by MCSB.

AFFIRMED in part, REVERSED in part, and REMANDED.

      . The Traxler bid was for $566,700.00.