author: 11 BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. James Andrew MASTERS, Appellant.
    No. 37,967-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2003.

      Paula Corley Marx, Peggy J. Sullivan, Louisiana Appellate Project, Counsel for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, Assistant District Attorneys, Counsel for Appellee.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   11 BROWN, C.J.

Defendant, James Andrew Masters, pled guilty as charged to one count of DWI, fourth offense, a violation of La. R.S. 14:98 punishable, under the circumstances of this case, by imprisonment at hard labor for not less than 10 years nor more than 30 years without benefit. Defendant was sentenced to 15 years at hard labor without benefit of probation, parole or suspension of sentence. He did not move for reconsideration of sentence, but has appealed his sentence as excessive, contending that the facts and circumstances of the case do not warrant a 15-year hard labor term. Finding no error, however, we affirm.

Discussion

The record shows that on May 31, 2001, defendant was observed driving a vehicle which repeatedly drove off the road onto the shoulder then crossed the center line. A traffic stop was made. Defendant failed all field sobriety tests and registered .320 on the breath alcohol test. For charging purposes, the dates of defendant’s predicate DWI convictions were February 14, 1995; February 28, 1995; April 8, 1997; and October 26, 1998. Defendant’s record, however, reveals at least ten prior DWI convictions, as well as three pending DWI charges in Winn and Natchitoches Parishes.

Inasmuch as defendant did not file a La. C. Cr. P. art. 881.1 motion to reconsider his sentence, we will limit our review to the bare claim that his sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.02/25/98), 707 So.2d 164; State v. Raev, 36,847 (La.App.2d Cir.03/05/03), 839 So.2d 1015, unit denied, 03-0988 (La.10/10/03), 855 So.2d 330. Constitutional review | ^determines whether a 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).

La. R.S. 14:98(E)(l)(a) provides that:
Except as otherwise provided in Sub-paragraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.
La. R.S. 14:98(E)(4)(b) provides that:
If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

Prior to imposing sentence, the court reviewed a PSI report which provided extensive details of defendant’s social history, including his education and work experiences. Defendant, 40 years old at the time of this offense, was a fourth felony offender with convictions for simple burglary in 1978 and 1992, and for unauthorized use of a moveable in 1988. He had convictions for DWI in 1978, 1980, four in 1981, and others in 1984, 1985, 1987 (in conjunction with resisting an officer), 1995, the four predicate offenses, and a DWI fourth conviction in 2002 for which he received a 10-year sentence with all but 60 days suspended with substance abuse | ¡¡treatment and home incarceration. Defendant, who had completed the 11th grade, began drinking “heavily” at age 24. He is married and has a 21-year-old son. His employment history consists of jobs involving manual laborer, as well as in construction and on an offshore drilling rig. Defendant received treatment for substance abuse in 1996 and 1999. Considering these factors, the court concluded that defendant was in need of correctional treatment, that a lesser sentence would deprecate the seriousness of the offense, that the circumstances were likely to recur, and that incarceration would not entail an excessive hardship on defendant’s dependents.

On this record, we do not find constitutional error. Defendant has a very substantial record of driving while intoxicated. The instant offense occurred some two hours after police had responded to a domestic disturbance call from defendant’s wife which arose when she tried to prevent him from driving. He has received substance abuse treatment and probation after his numerous DWI convictions, including suspension of his sentence after his DWI fourth offense conviction in 2002. Defendant’s 15-year sentence, considering his background and the facts of this case, is certainly not grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice.

Appellate defense counsel’s claim that defendant’s trial attorney counsel was ineffective for failing to move for reconsideration of sentence is without merit.

| ¿Conclusion

For the reasons set forth above, we affirm defendant’s sentence. AFFIRMED.

      . As noted above, there are also three DWI charges currently pending in Winn and Natchitoches Parishes.


source: Caselaw Access Project

author: _[iGASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Nathan E. WHITE, Appellant.
    No. 37,815-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2003.

      Bertha M. Hillman, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, R. Lane Pittard, Jeff Cox, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   _[iGASKINS, J.

The defendant, Nathan E. White, was charged with aggravated incest, a violation of La. R.S. 14:78.1 which is punishable by imprisonment for five to 20 years, with or without hard labor, plus an optional fine not to exceed $50,000. However, the state agreed to accept the defendant’s guilty plea to attempted aggravated incest. The trial court sentenced the defendant to serve six years at hard labor, three years of which were suspended; he was also placed on five years supervised probation. Following the denial of his timely motion for reconsideration, the defendant appeals his sentence as excessive. We affirm.

In December 2001, the defendant, then age 28, engaged in vaginal intercourse with his 14-year-old stepdaughter while the girl’s mother went to a fast food restaurant to get dinner. According to the defendant, the girl enticed him to commit the crime, and he denied that he actually penetrated the victim. A condom, which the victim described by its unique color and which contained the defendant’s semen, was recovered at the scene of the crime.

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 trial court reviewed a presentence investigation (PSI) report which provided extensive details of the defendant’s social history, including his education and work experiences and his lack of any prior convictions. The court noted the financial impact which the defendant’s incarceration would work upon his family. The court considered the facts of the case and concluded that intercourse actually had occurred. It also noted that the defendant took advantage of his position as the stepfather of the victim. The court stated its opinion that a lesser sentence would deprecate the seriousness of the offense.

On this record, we do not find constitutional error. The defendant apparently had a non-abusive childhood. As shown by the PSI report, he had work skills and a stable employment record. However, there is no justification for the commission of this egregious offense. The victim is undergoing counseling for severe depression.

The lawful sentence imposed is mid-range under the statute of conviction. The court granted leniency by suspending execution of half the sentence. The offense to which the defendant was allowed to plead guilty does not adequately describe his criminal conduct. The sentence is neither grossly disproportionate to the severity of the offense of conviction nor 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 case, is not constitutionally excessive.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Although the victim’s age is given throughout the record as 15 at the time of the crime, our review of the dates indicates that the offense apparently occurred several days before her 15 th birthday.


author: _JjAMY, Judge. b SAUNDERS, J.,

text:
    Allean CURTIS v. COLUMBIA DOCTORS' HOSPITAL OF OPELOUSAS, et al.
    No. CA 03-916.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.
    Rehearing Denied Jan. 28, 2004.

      William Winfield Stagg, Daniel C. Pal-mintier, Durio, McGoffin & Stagg, Lafayette, LA, for Defendant/Appellee, Doctors Hospital of Opelousas.
    Guy 0. Mitchell, III, Ville Platte, LA, for Plaintiff/Appellant, Allean Curtis.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   _JjAMY, Judge.

The plaintiff filed suit against the defendant hospital alleging that she fell from a bed at the facility following total knee replacement surgery. She sought damages associated with the complications and surgeries subsequent to the fall. Following a bench trial, the trial court concluded that the plaintiff failed to prove that the fall resulted from negligent care by the hospital. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Allean Curtis, was a patient in the rehabilitation unit of Columbia Doctors’ Hospital of Opelousas on July 10, 1997. She had been admitted to the rehabilitation unit following a total knee replacement performed at the hospital on June 30, 1997. The instant matter arose due to a fall Ms. Curtis suffered on the morning of July 10.

The plaintiff alleges that the bed rails along the side of the bed were not in their upright position and that the fall resulted when she tried to roll over in bed. She contends that the hospital staff was required to keep the rails in their upright position as she was at a high risk for falling. She alleges that this risk resulted from the type of surgery from which she was recovering, her mental health history, and the type of medications she required. She contends that these factors indicated that she should have been closely monitored/supervised under the hospital’s Fall Alert Program and that the failure to more closely follow the requirements of the program caused her injuries.

As a result of the fall, the plaintiff required an immediate corrective surgery. Her course subsequent to this second surgery was difficult, with history of an infection and additional hospitalization and procedures. Suit was filed against | ^Doctors’ Hospital and the physician who performed the initial total knee replacement. The physician was ultimately dismissed from the suit. The defendant hospital refuted the allegation that the bed rails were not in their upright position.

In reasons for ruling, the trial court concluded that the plaintiff failed to meet her burden of proving that the fall resulted from negligence of the hospital or hospital staff. In particular, the trial court concluded that the evidence did not support the plaintiffs allegation of having fallen from the bed. Rather, the trial court concluded, the evidence indicated that the plaintiff attempted to travel to the bathroom unaccompanied and fell while trying to do so.

The plaintiff appeals, assigning the following as error:

The Court committed legal error or manifest error that plaintiff did not prove it’s case by a preponderance of the evidence in spite of overwhelming evidence in plaintiffs favor.

The plaintiff asks that, in the event the trial court’s determination is reversed on appeal, damages be awarded.

Discussion

The plaintiff contends that the evidence presented indicated that the side rails were required to be in their upright position and that they were not in place at the time of the fall. In her brief to this court, the plaintiff states that: “It is almost impossible for the accident to have happened any other way than the plaintiff described, supporting plaintiffs argument that the Court committed legal error.” She later states that: “Even if she somehow got out of bed, rather than rolled out, the probability is great that the hospital did not follow the mandate of the fall alert; i.e., side rails up at all times, directly and negligently leading to the accident.” The plaintiff argues alternatively that the trial court’s finding that she failed to prove her case by a | ¡¡preponderance of the evidence is legal or manifest error. The plaintiff asks this court to reverse the trial court’s determination and award damages.

La.R.S. 9:2794(A) sets forth the burden of proof for medical malpractice claims, requiring that a plaintiff establish the applicable standard of care, breach of the standard, and a causal link between the breach and the injuries suffered. With regard to the burden of proof applicable to a patient’s stay in a hospital, the Louisiana Supreme Court has observed that the occurrence of an injury or accident, alone, does not raise a presumption of negligence on the part of the hospital. See Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003 (La.1992). With regard to the hospital’s duty, the supreme court further stated:

However, “[i]t is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control”. Hunt v. Bogalusa Community Medical Center 303 So.2d 745, 747 (La.1974). Moreover, determining whether the hospital has “breached the duty of care it owes to a particular patient depends upon the circumstances and facts of that case”. Id.

Id. at 1008.

|/The trial court rendered extensive written reasons, referencing the plaintiffs testimony that she fell from the bed while attempting to turn over in bed. However, the trial court further referenced the notes of the nursing staff and involved physicians who indicated that the plaintiff fell while attempting to go to the bathroom unassisted. The trial court observed that the nurse on duty the morning of the fall testified that he found the plaintiff near the door, a distance explained to be approximately six or seven feet from the bed. The trial court also noted that “the last two (2) nurses’ notes (at 2200 and 2300 on 7/9/97) before the fall indicated the bed side rails as being up (SRf).” Furthermore, the trial court discounted the testimony of the plaintiffs expert witness, an emergency room physician critical of the defendant hospital’s implementation of its Fall Alert Program. The trial court found the testimony of little value due to the physician’s practice in the field of emergency medicine and lack of experience “in the field of rehabilitation or nursing programs (such as a Fall Alert Program).” The trial court explained that it was “doubtful that [the expert witness] could or would meet the Daubert/Foret test relative to rehabilitative nursing care.” In its conclusion, the trial court stated:

Unquestionably, Ms. Curtis suffered a serious fall and was seriously injured as a result thereby. This court is quite sympathetic toward her in that regard, but the law is the law, and it applies equally to all. The law requires that the plaintiff must prove a breach of the applicable standard of care by a preponderance of the evidence. This, the plaintiff has not done. Plaintiff has proven her fall with serious injury. Plaintiff has not proven a breach of the applicable standard of care and that said substandard care caused an injury to her which would not have otherwise occurred. The evidence preponderates toward plaintiff falling while improvidently attempting to go to the bathroom without seeking assistance. The evidence does not preponderate toward plaintiff “rolling out of bed” onto the floor. For six (6) days prior to her fall, plaintiff had been in the rehabilitative unit successfully voiding with the assistance of hospital personnel. She also had available to her a “call button” to summon assistance, and her room was right across from the nurses’ station wherein she could have actually called out for | ¡¡assistance if she was not properly being attended to or cared for. Despite her mental deficiency, for six (6) days prior to her fall, she appeared to adequately progress in her rehabilitation without incident. Unfortunately, and regrettably, she fell and seriously damaged her knee replacement requiring corrective surgery. Simply stated, plaintiff has not proved her case.

Although the plaintiff asserts that the trial court’s conclusion was legal error given the state of the evidence in the record, the reasons indicate that the trial court ultimately found that the “breach” element of the burden of proof was not established. This question of whether a health care provider’s conduct fell below the applicable standard of care is a factual determination and is thus subject to the manifest error standard of review. See Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991). We find no such error.

In short, the record supports the trial court’s findings. Although the plaintiff testified that she rolled from the bed, the trial court did not accept this testimony. This type of credibility determination is appropriately left to the trier of fact and will not be disturbed on appeal absent manifest error. See Elevating Boats, Inc. v. St. Bernard, Parish, 00-3518 (La.9/5/01), 795 So.2d 1153. Instead of the plaintiffs version of events, the trial court relied on other evidence indicating that the bed rails were in place and that she attempted to go to the bathroom. The nurse’s notes include a statement that Ms. Curtis reported that she fell while attempting to go to the bathroom unassisted. The trial court heard from the nurse on duty that morning, who explained that Ms. Curtis was found by the door. The nurse further testified that it was his practice to ensure that the bed rails are up when he checks on a patient during his hourly rounds. The nurse’s notes from earlier in the evening contain an inscription referenced by the trial court that the rails were in their upright position. Finally, the medical personnel who testified at trial indicated that bed rails are used | fiin a rehabilitation facility to both prevent situations in which patients fall from the bed as well as to serve as a reminder to the patient to not move from the bed without assistance. However, the witnesses explained that patients can and do, in fact, get up from the bed with the side rails in place.

Our review of the record reveals support for the trial court’s determination that the plaintiff failed to satisfy the necessary burden of proof with regard to a breach of the standard of care. Accordingly, we conclude that this assignment lacks merit. Due to our resolution of this assignment in favor of the appellee, we do not reach the plaintiffs request for the award of damages.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff, Allean Curtis.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

b SAUNDERS, J.,

dissenting.

I must respectfully dissent, in part, from the majority opinion, specifically as to the trial court’s decision to discount the testimony of the plaintiffs expert witness, Dr. Samuel Richardson, a physician specializing in Emergency Room medicine. The trial court explained that it was “doubtful that [the expert] could or would meet the Daubert/Foret test relative to rehabilitative nursing care.” While the trial court questioned whether Dr. Richardson would meet the Daubert standard for admissibility of expert opinion evidence, the court did not find his testimony inadmissable, it merely chose to discount his testimony due to this perceived failure under the Dau-bert/Foret standard. I find this basis for discounting Dr. Richardson’s testimony to be manifestly erroneous.

The Daubert standard, established for determining the admissibility of expert testimony, is intended to ensure that scientific testimony is both relevant and reliable. State v. Foret, 628 So.2d 1116 (La. 1993). This requirement recognizes that the rules on expert testimony relax the standard requirement of first-hand knowledge on the part of the witness, which is deemed to be justifiable where the expert’s opinion has “a reliable basis in the knowledge and experience of his discipline.” Id. at 1122. 11 ¡¡find that the witness’s extensive experience in hospital care would render him eminently qualified to state opinion evidence on the hospital’s implementation of its Fall Alert Program. Moreover, absent the trial court specifically finding Dr. Richardson’s testimony in-admissable under Daubert, it did not present sufficient grounds for discounting Dr. Richardson’s testimony. When a trial court commits manifest error, the appeals court conducts a de novo review of the record and, where possible, should render a decision. I do not feel this procedure is appropriate for this case. Therefore, I would remand this matter to the trial court for a new trial with instructions that the testimony and opinions of Dr. Richardson should be given full weight.

      . A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
      (2) That the defendant either lacked his degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of .care the plaintiff suffered injuries that would not otherwise have been incurred.


author: h STEWART, J.

text:
    STATE of Louisiana, In The Interest of J.T., S.T., L.T., D.T., K.T., and E.T.
    No. 38,149-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2003.

      Audie L. Jones, Haughton, for Plaintiff-Appellant, State of Louisiana DOSS.
    Stephen T. Collins, for Defendant-Appellant Willie Brookshire and Defendants Appellees, Bryan Gates and Lonzie Harris.
    W. Allen Haynes, for Defendant Appellant, Latasha Thomas.
    Susan E. Hamm, Monroe, for Intervenor Appellee, TLC Adoptions.
    Walker, Tooke & Lyons by H. Clay Walker, Shreveport, for Plaintiffs Appel-lees, L.T., D.T., K.T., and E.T.
    Public Defender’s Office by Michelle Dufour Brown, for Plaintiffs Appellees, S.T. and J.T.
    Before STEWART, DREW and LOLLEY, JJ.
   h STEWART, J.

The juvenile court rendered a judgment terminating the parental rights of the parents to the minor children, L.T., D.T., K.T., and E.T., and certifying the children as free for adoption. However, citing the best interest of the child, the juvenile court refused to terminate parental rights as to the minor child, S.T., even though the court concluded that the grounds for termination were proven by clear and convincing evidence. The mother, Latasha Thomas, appeals the termination of her parental rights as to L.T., D.T., K.T., and E.T. Willie Brookshire, the father of E.T., appeals the termination of his parental rights. Finally, the Department of Social Services (“DSS”) appeals the court’s decision regarding S.T. We reverse that portion of the trial court’s judgment which denied termination of parental rights as to S.T., affirm in all other respects, and remand for further proceedings.

FACTS

DSS received a report of neglect due to substance abuse concerning Latasha Thomas and her children. J.T. (born 02/24/91), S.T. (born 01/13/97), L.T. (born 09/24/98), and D.T. (born 01/10/2000) were placed into state custody by instanter order issued July 14, 2000, and subsequently adjudicated as children in need of care on October 6, 2000. Thomas, was unable to properly care for her children due to her use of crack cocaine and her unstable living situation. Thomas was also on supervised probation.

Following the removal of her children from her custody, Thomas entered Pines Treatment Center on August 23, 2000, to address her drug addiction; however, she only stayed two days and made insignificant 12progress. Thomas, who was on supervised probation, discontinued contact with her probation officer. A warrant was issued for her arrest in October 2000. In juvenile court proceedings, the children were continued in state custody and a case plan with the goal of family reunification was approved by the court in a judgment of disposition rendered October 26, 2000. In December 2000, Thomas had another relapse and was found with burn marks from a crack pipe on her lips and hands.

In accordance with the requirements of the court approved case plan, Thomas underwent a psychological evaluation in February 2001. She was found to be in need of intensive long-term mental health and substance abuse counseling. A psychiatric assessment was recommended to determine the need for medication to address anxiety and depression noted by the evaluation. The psychiatric evaluation took place in April 2001. That same month, Thomas also began therapy with Jodie McJunkins of Community Support Programs. This was just prior to giving birth to her fifth child, K.T., on May 5, 2001. The record indicates that Thomas continued to use crack cocaine at times during this pregnancy and that drug use may have precipitated her going into labor. The record further indicates that she made little progress during her therapy with McJunkins which concluded in June 2001, when she stopped attending.

Following the birth of K.T., Thomas became a resident of Providence House and obtained employment. However, her stay at Providence House was terminated after only two months due to her argumentative and [¡¡threatening behavior. Linda Wells, a case worker at Providence House, testified that Thomas had confrontations with staff and residents, made threatening remarks, and violated the rules by coming into Providence House drinking. Thomas also attended substance abuse counseling at Northwest Regional Center for Addictive Disorders beginning in June 2001. She did not successfully complete the program due to poor attendance because of employment. Thomas had a negative drug screen during this time.

The record indicates that Thomas had a relapse in January 2002 and overdosed on medication in April 2002. In January 2002, she began a new substance abuse counseling program with the Center for Families. Again, she had inconsistent attendance and was noncompliant with the counseling. She was transferred to a new counselor, but this move was also unsuccessful. The counselor described Thomas as a “very angry young lady” and believed that she needed more intensive counseling than what was being provided. Counseling terminated on May 9, 2002, when Thomas was arrested on the warrant for her probation violation. She remained in jail until September 5, 2002. At a permanency hearing on August 22, 2002, the case plan goal was changed to termination of parental rights and adoption. The record indicates that drug screens during the period of September 2002 to January 2003 were negative. Thomas gave birth to her sixth child, E.T., on April 4, 2002. This child was placed for adoption and taken to the adoptive family in Utah soon after his birth. Thomas also underwent [ 4additional psychological and psychiatric assessments during 2002. The psychological assessment noted that she exhibited a combination of emotional and behavioral disturbances and that she was at risk to mistreat a child in her care. As a result of another psychiatric evaluation, she was placed on medication.

In January 2003, Thomas underwent a substance abuse evaluation with the Council on Alcoholism and Drug Abuse. Even though she had been having negative drug screens during the past few months, treatment was still recommended. Thomas also began counseling with a licensed clinical social worker, Shauna Gilbert, in January and attended nine sessions through July 2003, during the course of the termination proceedings. However, she missed many appointments. Gilbert noted moderate improvement in Thomas’s anger management and a decrease in her paranoia. Thomas also underwent an additional psychiatric assessment on January 15, 2003. The assessment revealed that she was taking addictive medications that she had obtained without informing the physician of her substance abuse disorder. She continued to exhibit anger and lack of insight into her problems. The psychiatrist, Dr. Paul Ware, concluded that Thomas was not mentally capable of parenting her children, and he did not believe that she would reach that level of functioning.

DSS filed the petition to terminate parental rights on April 9, 2003. DSS alleged lack of substantial parental compliance with the case plan and no reasonable expectation of significant improvement in Thomas’s condition in the near future as grounds for termination under La. Ch. C. art. | ¡4015(5). As grounds for terminating the parental rights of Willie Brookshire, the father of E.T., DSS alleged his failure to provide significant contributions to the child’s care and support and his failure to maintain significant contact for more than six months in accordance with La. Ch. C. art. 1015(4)(b) and (c). The hearing took place over the course of four days on June 16 and 30, 2003, and on July 14 and 15, 2003. Thomas did not attend the last two days of the hearing and was not present for the presentation of her case. Brook-shire was also absent for the last two days of the hearing and did not appear for the presentation of his case. Bench warrants were issued for both of them for their failure to appear. J.T., the oldest child, was dismissed from the proceeding by motion of DSS and agreement of the parties.

The juvenile court judge found that DSS proved by clear and convincing evidence the grounds for termination of parental rights and found termination to be in the best interest of the children L.T., D.T., K.T., and E.T. As to S.T., although the court found the grounds for termination established, the court did not find termination of parental rights to be in his best interest. However, the court did not articulate any reasons for this exceptional finding. Appeals by Thomas, DSS, and Brookshire followed.

| ^DISCUSSION

Appeal by Latasha Thomas

In a proceeding to terminate parental rights, the state as the petitioner must prove all the elements of its case by clear and convincing evidence. La. Ch.C. art. 1035; State in the Interest of T.D., T.D., & W.D. v. R.D. & L.D., 34,580 (La. App.2d Cir.3/2/01), 781 So.2d 871. The grounds for termination are set forth in La. Ch.C. art. 1015, in relevant part, as follows:

(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order, there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

While the state need only establish one ground for termination, it must also establish that termination is in the child’s best interest. State in the Interest of I.D.H. v. Thomas, 34,962 (La.App.2d Cir.5/9/01), 787 So.2d 526.

La. Ch.C. art. 1036, which governs proof of parental misconduct, states in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
|7(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(5), lack of any reasonable expectation of improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(3) Any other condition or conduct that reasonably indicates that the parent is unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.

This issues of parental compliance with a case plan, the parent’s expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a termination proceeding. State in the Interest of A.R.H. & A.A. H. v. Hines, 35,800 (La.App.2d Cir.2/27/02), 810 So.2d 1166. The manifest error standard of review applies to a trial court’s findings as to whether parental rights should be terminated. State of Louisiana, In the Interest of KG. & T.G., 2002-2886, 2002-2892 (La.3/18/03), 841 So.2d 759.

Thomas argues that termination of her parental rights was in error. She asserts that she has substantially complied with her case plan by remaining drug free since May 8, 2001, completing parenting and anger management classes, and attending counseling. She further argues that there is a reasonable expectation of significant improvement in her condition and conduct as evidenced by her cooperation with the state and lathe improvements she has shown. Finally, she argues that it is not in her young children’s best interest to permanently terminate her rights.

The case plan set forth specific goals for Thomas to meet and actions for her to take. The first goal required her to “acknowledge how her substance abuse has negatively impacted her family.” In meeting this goal, she was required to submit to substance abuse assessments, follow through with all treatment recommendations and random screening, demonstrate her ability to remain sober by clean urine screens for six months after completing treatment, and demonstrate changes in her behavior and lifestyle. The record indicates that Thomas has not met this goal or fulfilled the required actions. In her most recent substance abuse evaluation conducted by Rukiya Brown with the Council on Alcoholism and Substance Abuse on January 3, 2003, Thomas admitted to using drugs to excess in the past, but indicated that she does not consider herself an addict. This same attitude toward her condition was found by Dr. Ware, who conducted three separate psychiatric evaluations of Thomas and found her to be in denial about her problems. In his last report of January 2003, Dr. Ware noted concern that Thomas had obtained prescriptive medications without informing the physician of her substance abuse problem. While Thomas has had periods of negative drug screens, she has also had periods of relapse into drug use, even during her pregnancy with K.T. While she asserts that she has been drug free, information at trial indicated incidents of drug use in the early part of 2002, and Thomas has refused drug screens as recently as 1¡¡February and March of 2003. The record also indicated that Thomas has not successfully completed any substance abuse counseling program.

The second goal of the case plan required Thomas to maintain relationships with her children by visiting in accordance with the visitation agreement and providing safe care and supervision of the children during visits. Cynthia Wood, the foster care case manager for the children, testified that she was present for most of Thomas’s visits with the children. Wood stated that some visits were good, but that some could be “quite chaotic.” Wood testified that, at times, Thomas exhibited anger and hostility toward the case workers in front of the children. She described one visit in February 2003 which had to be cut short due to Thomas’s uncooperative attitude. Wood stated that Thomas failed to demonstrate control of her anger, appropriate parenting skills, and empathy for the feelings of her children. She also stated that Thomas canceled some visits.

As another goal, Thomas was to maintain stability and demonstrate her ability to properly care for herself and her children by maintaining a safe and stable home and enough income to support herself and her children; verifying her income and employment; arranging childcare for her children for when she is not with them; and demonstrating the child care techniques she learned. The case plan attached to the permanency hearing judgment of April 7, 2003, shows that her progress on these matters was “ongoing.” The record indicates that Thomas had difficulty securing a place to live, as shown by her short stay at Providence House, and was not clear as to her housing and employment situation at the time of trial. Cynthia Wood |intestified that while she generally knew of her whereabouts, Thomas did not provide much information on her living arrangements or employment situation. Wood did testify that Thomas’s home was neat and looked nice during visitations conducted from January 2003 through March 2003.

Another goal required Thomas to work cooperatively with DSS. In doing so, she was required to submit to psychological evaluation and follow the recommendations. She did submit to two psychological evaluations. However, no significant improvement was shown in her condition. She also attended parenting classes. An additional goal required Thomas to improve stress and anger management techniques by completing anger management class and demonstrating management of her anger by not being involved in fights. While she did attend anger management class, the record establishes that she was not very successful in controlling her anger, particularly in dealings with DSS case workers and some counselors. Her failure to control her anger also impeded her ability to successfully complete the Providence House program and benefit from counseling.

Finally, Thomas was required to resolve all legal issues by cooperating with her probation officer. She failed to meet this goal. Her probation officer, Leonard Pierce described her as “very uncooperative.” Her probation was revoked and she ended up serving about five months in jail until her case was terminated unsatisfactorily.

From our review of the record, we find no manifest error in the trial court’s determination that DSS proved the grounds for termination by clear and convincing evidence. DSS established that there was no substantial [ n compliance with the case plan and that there is no reasonable expectation of significant improvement in Thomas’s condition in the near future. As shown by the evidence, Thomas failed to complete many of the required goals of her case plan and, most importantly, the weight of the evidence indicates that there is no reasonable expectation of significant improvement in the near future. Thomas has not taken responsibility for her own behavior which led to removal of her children and has not acknowledged the seriousness of her substance abuse problem and other emotional and mental health issues. Her lack of understanding and concern for her children was demonstrated by her use of drugs during her pregnancy with K.T. and her failure to appear at the hearing for the final two days. Finally, we agree with the trial judge that termination of parental rights is in the best interest of the younger children, L.T., D.T., K.T., and E.T., none of whom were shown to have substantial bonds with their mother. Termination will allow these children the opportunity to establish secure, stable, long-term, and continuous relationships in a family home environment through adoption. For these reasons, we affirm the termination of Thomas’s parental rights as to L.T., D.T., K.T., and E.T.

Appeal by DSS

DSS appeals the trial judge’s determination that termination of parental rights would not be in the best interest of S.T. even though the grounds for termination were proven by clear and convincing evidence. DSS asserts that S.T.’s father has not been identified and that no one has l12come forward to claim paternity. DSS also asserts that the evidence shows termination of Thomas’s parental rights to be in S.T.’s best interest.

Where the grounds for termination are proved, then ordinarily termination will be in the best interest of the child. However, even after proof of grounds for termination under La. Ch.C. art. 1015, the court may, in an exceptional case, refuse to terminate based on a best interest determination. State in the Interest of S.D. v. Moore, 31,192 (La.App.2d Cir.8/19/98), 717 So.2d 265; State in the Interest of D.G. v. Danny G., 30,196 (La.App.2d Cir.10/29/97), 702 So.2d 43.

The trial judge found the grounds for termination established, and we have affirmed this finding. The trial judge then found that termination would not be in S.T.’s best interest but refused to articulate any reason for this finding. Having thoroughly reviewed the record, we find no basis for the trial judge’s best interest determination.

The record establishes that sometime after his removal from Thomas’s custody, S.T. spent about a year living with his elderly great-grandmother, Delores Johnson. Johnson, according to Cynthia Wood’s testimony, was ambivalent about whether she wanted raise any of the children and had problems coping with the behavior of the children, S.T. and J.T., who were in her care. Sometime in April 2003, S.T. was placed in a foster home and began receiving counseling for his behavioral problems. S.T.’s counselor, Shelly Booker, a psychiatric social worker and expert in child social work, testified at trial. Booker began working with S.T. in June 2003, and had met with him three times as of the time of her testimony. She l13noted that S.T., who was six years old, had been through a lot of conflict and had witnessed his mother’s drug use, anger, and violent aggression toward others. Booker described S.T.’s relationship with his mother as difficult and chaotic. Booker noted that S.T. loves his mother, but that he also expresses some fear about her. Booker found S.T. to be capable of participating in counseling and to be in need of treatment for a least a year-or longer to address-his behavioral and emotional problems. Booker expressed the belief that through intensive counseling, S.T. would become stable and be a good candidate for adoption. In the meantime, she believed that his foster care placement should remain stable as the foster mother had indicated a desire to work with S.T. to address his problems.

Booker believed termination of parental rights to be appropriate for S.T. and in his best interest. According to Booker, S.T. is at a point where he can go in one of two directions. He is in need of the type of stable, consistent environment that he has not been provided by his mother. While Booker admitted that S.T. would experience some sadness as a result of the termination, she believed that he could bond with a stable, functional, loving and nurturing family.

Roberta Moses, the CASA volunteer working on the case, testified about S.T.’s closeness with his mother and the fact that he did not want to leave her when visitations ended. Moses also noted that S.T. was having difficulty adjusting to his foster home. In a report dated May 27, 2003 and submitted into evidence, Moses noted her belief that S.T. would adjust to | 14his foster placement and that he would adjust and thrive if parental rights were terminated.

The evidence establishes that S.T. does have a bond with his mother, but that the relationship has not been beneficial to his well-being. His counselor found no basis for continuing the parent-child relationship and related through her testimony why termination would clearly be in S.T.’s best interest. We note that termination of parental rights does not have to result in a complete severing of familial ties. While a child remains in the custody of DSS following termination, La. Ch.C. art. 1037.1 allows the court to order continuing contact between the child and his parent, sibling, or other biological relative where such contact is determined to be in the child’s best interest. In the event of adoption, some continuing familial contact may also be allowed by the court in accordance with the provisions of La. Ch.C. art. 1269.1.

For these reasons, we find manifest error in the trial judge’s best interest determination regarding S.T. As shown by the record, DSS established termination to be in S.T.’s best interest by clear and convincing evidence. The trial court failed to articulate any exceptional circumstance as a basis for its finding that termination was not in S.T.’s best interest, and the record reveals no such exceptional circumstance. We hereby reverse that part of the judgment denying termination as to S.T., and we hereby order termination of the parental rights of Latasha Thomas and any unknown father to the minor child, S.T.

h ^Appeal by Willie Brookshire

Brookshire appeals the termination of his parental rights as to the minor child, E.T. As grounds for termination, DSS alleged that Brookshire, for a period of more than six consecutive months, failed to provide significant contributions to E.T.’s care and support and failed to maintain significant contact with E.T. by visiting or communication. See La. Ch. C. art. 1015(4)(b) and (c). Brookshire argues that DSS failed to prove these grounds by clear and convincing evidence as there was no direct testimony of his failure to support or communicate with E.T. He also points out that he did not know he was E.T.’s father until sometime after May 15, 2003, when the DNA tests were complete.

The record establishes that E.T. was born on April 4, 2002. Prior to the birth, Brookshire signed for a certified letter on March 2, 2002, which notified him of his possible paternity and the imminent birth of the child. This letter was from an attorney preparing for the adoption of E.T. There is no indication in the record of any action taken by Brookshire in response to the information in the letter. After his birth, E.T. was taken to Utah to be with his adoptive family and has remained there since that time. When Brookshire was finally located by DSS on March 10, 2003, he submitted to a paternity test which verified him as E.T.’s father. At trial, Cynthia Wood’s testimony established the lack of any indication of support or contact attempted, offered, or provided by Brookshire to E.T. since his birth. Brookshire did not register with the putative father registry, did nothing to indicate paternal care and concern at the time of E.T.’s birth., and took no |1fisteps to investigate the whereabouts of his child after his birth. Although Brookshire objected to termination of his parental rights, he was not present for the final two days of the hearing and was not present for the presentation of his case.

On this record we find no error in the trial court’s termination of Brookshire’s parental rights. Brookshire has had no contact with E.T. since his birth and has provided no support for the child. The grounds for termination were established by clear and convincing evidence and termination was clearly shown to be in E.T’s best interest.

CONCLUSION

For the reasons mentioned, we affirm the judgment terminating the parental rights of Latasha Thomas to the minor children L.T., D.T., K.T., and E.T., and we affirm the judgment terminating the parental rights of Willie Brookshire to the minor child E.T. We reverse the .judgment as it pertains to S.T., and we hereby order termination of the parental rights of Latasha Thomas and any unknown father to the minor child S.T., and remand for further proceedings. In accordance with La. Ch.C. art. 406(A), costs are not assessed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . K.T. was placed in state custody on May 9, 2002, and adjudicated in need of care.

      . E.T. was placed in state custody on August 23, 2002, and adjudicated in need of care.

      , DSS was unable to identify the fathers of S.T., L.T., and K.T. Lonzie Harris was identified as the father of J.T., and he admitted to the termination. Bryan Gates was identified as the father of D.T. Gates' parental rights were terminated, and he has not appealed. Willie Brookshire was identified as the father of E.T. His rights were terminated, and he has appealed.


author: h STEWART, J. L GASKINS, J.,

text:
    Donald Brent HOPE, Plaintiff-Appellant, v. CITY OF SHREVEPORT and D.W. Ramsey, Defendants-Appellees.
    No. 37,759-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2003.

      Walker, Tooke & Lyons by Henry C. Walker, Shreveport, for Appellant.
    Tutt, Stroud & Bordelon by A.M. Stroud, III, Jennifer P. McKay, Blanchard, Walker, O’Quin & Roberts, by Stacey D. Williams, for Appellees.
    Before STEWART, GASKINS and MOORE, JJ.
   h STEWART, J.

The plaintiff, Donald Brent Hope, appeals the dismissal of his claims of malicious prosecution and defamation stemming from his arrest for driving while intoxicated (“DWI”) by D.W. Ramsey, an officer with the Shreveport Police Department. Hope argues that the trial court erred in finding that the arresting officer acted on probable cause, in good faith, and without malice in making the arrest. Finding merit in Hope’s arguments, we reverse the trial court’s judgment.

FACTS

On July 29, 1999, Hope was arrested for a third offense DWI in Shreveport, Louisiana. The arrest occurred on Commerce Street near the Texas Street Bridge where Hope’s black Chevrolet pick-up truck was parked in a parking spot along the street. The facts surrounding the arrest are disputed by the parties.

Ramsey, the arresting officer, claimed that he encountered a black Chevrolet pick-up coming toward him when he turned northbound from Milam Street onto Commerce. By visual estimation, Ramsey determined that the truck was speeding at 37 miles per hour, so he turned his vehicle around to follow the truck and to look for other violations. He followed the truck to Spring Street where he observed it make a right turn onto a pedestrian walkway on the south side of the Texas Street Bridge. Ramsey was driving too fast to make the turn, so he drove to Travis Street where he made a right turn and then made another right turn back onto Commerce where he saw a black Chevy pick-up in a parking space. Hope exited from the driver’s side, and Ramsey could see a passenger seated on the |2passenger’s side. Ramsey administered three field sobriety tests to Hope and arrested him for DWI.

Hope denied driving the vehicle as alleged by Ramsey. Instead, Hope claimed that he and a friend, Douglas Connelly, had just walked to the truck after leaving the Blind Tiger, a downtown restaurant and bar, where they had been for the past few hours. Hope, who had prior DWI’s and whose license was suspended, had gone out for the evening with Connelly. Connelly had driven Hope’s vehicle, and upon arrival, Hope had given his keys to another friend, George Hatfield, for safekeeping. Hatfield left the Blind Tiger before Hope and Connelly, but he later went to Hope’s vehicle to retrieve some items. Hatfield testified that he left the truck unlocked and kept the keys. When Hope and Connelly were ready to leave the Blind Tiger, they walked to the truck so that Hope could retrieve his cell phone in order to call his sister for a ride home. Both walked to the passenger side of the truck, at which point Ramsey arrived on the scene. Hope claimed that Ramsey asked who was driving the truck. When he and Connelly denied driving, Ramsey asked who owned the truck. Hope admitted that he owned the truck. Ramsey then directed Hope to step to the front of the police ear, and he began administering the sobriety tests, which were recorded on videotape. Hope told Ramsey that they had just left the Blind Tiger and asked him to verify this with another officer who was working there as security for the evening. Ramsey did not attempt to verify Hope’s claim. Hope was placed under arrest. His vehicle was impounded and towed away.

|3Two other officers, K.P. Anderson and Todd Blackmon, arrived on the scene after Hope’s arrest. Both checked the front of the truck and found it to be hot. They believed this indicated that the vehicle had recently been driven. The two officers searched Connelly for the keys to the truck, but they found only the keys to Connelly’s own vehicle. The record indicates that keys to Hope’s vehicle may have been found either stuffed between the seat and the console or inside the console. Hope claimed that these were spare keys that he did not even know were in the console.

Hope’s version was corroborated by an independent witness who claimed to have witnessed the encounter between Hope and Ramsey. The witness, Veronica Diez, came forward with an affidavit and her deposition was entered into evidence in the civil trial. Diez knew Hope through his sister, whom she had known for five years and whose children had attended school with hers. Diez claimed that she observed two men walking toward Commerce Street from the alley area or walkway under the Texas Street Bridge as she walked to her vehicle after leaving Harrah’s Casino. She further observed the two men walk to the passenger side of a truck. An officer pulled up beside them and approached the two men. As she drove away, Diez saw Hope performing sobriety tests. In her deposition, Diez testified that she did not completely recognize Hope that night, but that she thought the man she saw might be him. She learned from Hope’s sister about the arrest weeks later and realized that it had been Hope’s arrest which she witnessed.

^Following his arrest, Hope was charged with a fourth offense DWI. A preliminary examination took place on January 10, 2000, at which the trial judge heard testimony from Ramsey, Hope, Con-nelly, and Hatfield. Ramsey admitted that he did not see Hope park the vehicle, but testified that he saw Hope exiting from the driver’s side. The trial judge found no probable cause for the arrest, and the state later dismissed all charges.

Hope then filed the instant civil matter against the City of Shreveport and Ramsey seeking damages for false arrest, malicious prosecution, and defamation. The false arrest claim was dismissed on an exception of prescription, and the matter proceeded to trial on his other claims. Based on the evidence presented and his findings of fact, the trial judge concluded that “the preponderance of the evidence fails to establish that Officer Ramsey was not in good faith in his belief that he had probable cause on the night in question to stop, question, and arrest Mr. Hope.” As such, the trial judge found in favor of the defendants and dismissed Hope’s claims with prejudice in the final judgment. This appeal by Hope followed.

DISCUSSION

An action for malicious prosecution requires proof of the following elements: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards | ¿resulting to the plaintiff. Miller v. East Baton Rouge Parish Sheriff’s Department, 511 So.2d 446 (La.1987); Jones v. Soileau, 448 So.2d 1268 (La.1984); Plessy v. Hayes Motor Co., Inc., 31-947 (La.App.2d Cir.6/16/99), 742 So.2d 934; Jenkins v. Baldwin, 2000-0802 (La.App. 4th Cir.8/29/01), 801 So.2d 485; Winn v. City of Alexandria, 96-492 (La.App. 3d Cir.11/20/96), 685 So.2d 281.

The plaintiff ordinarily bears the burden of proof on all the elements of the malicious prosecution action, including proving the absence of probable cause and malice. However, there is a presumption of lack of probable cause which is set forth in Robinson v. Rhodes, 300 So.2d 249, 251 (La.App. 2d Cir.1974), writ refused, 303 So.2d 178 (La.1974). Robinson firmly establishes

“the rule that where a committing magistrate, without a trial, has discharged the accused, or the prosecuting officer has dismissed the charge, or where a grand jury has returned a no bill, there is a presumption of want of probable cause with the result that, in a suit for malicious prosecution based on that discharge, the burden of showing that he acted on probable cause and without malice is upon the defendant.”

See also Keppard v. AFC Enterprises, Inc., 2000-2474 (La.App. 4th Cir.11/28/01), 802 So.2d 959; Winn v. City of Alexandria, supra.

Clearly, the first three elements are met in this instance. There was a commencement of criminal proceedings against Hope caused by Ramsey arresting Hope for DWI on July 29, 1999. There was also a bona fide termination of the criminal proceedings in favor of Hope as a result of the dismissal of the prosecution against Hope by the district attorney. In addition, the dismissal of the prosecution gives rise to the presumption of a |filack of probable cause and shifts to burden to the defendants to show that Ramsey acted on probable cause and without malice in arresting Hope. The elements of probable cause and malice are at issue in this appeal.

Probable cause for an arrest exists when the facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Miller v. East Baton Rouge Parish Sheriff’s Dept., supra and cases cited therein. Probable cause is not proof beyond a reasonable doubt; rather, the probable cause standard recognizes that a degree of uncertainty may exist. Winn v. City of Alexandria, supra. The facts need not exclude all possible innocent explanations in order to support a finding of probable cause. Id.

Malice may be inferred when there is a lack of probable cause or when the defendant acted in reckless disregard of the other person’s rights. Miller v. East Baton Rouge Parish Sheriff’s Dept., supra; Jones v. Soileau, supra.

We are mindful that an appellate court cannot disturb the factual findings of the trial court in the absence of manifest error. Currie v. Myers, 32,633 (La.App.2d Cir.1/26/2000), 750 So.2d 388, writ denied, 2000-0665 (La.3/17/00), 756 So.2d 316. We are also mindful of our duty to review facts to determine whether the trial court’s judgment was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. LeBlanc v. Stevenson, 2000-0157 (La.10/17/00), 770 So.2d 766; Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. When testimony on an issue conflicts, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the findings of fact, the trial court concluded that Ramsey was in good faith in his belief that he had probable cause to arrest Hope. Hope argues on appeal that this finding is manifestly erroneous, particularly in light of Ramsey’s impeached testimony and the uncontradicted deposition of Veronica Diez, an independent witness. Our review of the record compels agreement with Hope’s argument.

In the findings of fact, the trial judge seems to accept Ramsey’s version of events beginning with his initial sighting of a black pick-up truck and ending with the arrest of Hope. However, Ramsey’s testimony of what occurred was rife with inconsistencies as evidenced by his previous statements in the police reports, at the preliminary examination, and in his deposition.

A significant problem is Ramsey’s identification of Hope’s vehicle as the vehicle he had allegedly been pursuing. In the police videotape of the stop, Ramsey insists that he saw Hope driving. At trial, Ramsey admitted that he saw only a truck; he did not see the driver. At his deposition and at trial, Ramsey claimed he identified Hope’s vehicle as the vehicle he was following by its license plate number which he saw while following the truck and verified it after the stop. However, this seemingly salient | ¡¿nformation regarding identification was not included in the police reports prepared by Ramsey, and he did not bring this information forward at the preliminary examination. While Ramsey may have been following a black pick-up truck, he came forward with nothing to establish that Hope’s truck was in fact, or even likely, the vehicle he had been pursuing.

Another inconsistency is Ramsey’s testimony about what he saw when he returned to Commerce Street after he lost sight of the truck that allegedly turned down the pedestrian walkway by the bridge. In the police report and at the preliminary examination, Ramsey claimed that he saw Hope’s truck pull into the parking space on Commerce Street where the stop occurred. On cross at the preliminary examination and at trial, Ramsey was forced to admit that he did not see Hope pull into the parking space. Ramsey also claimed that he saw Hope exit the driver’s side of the vehicle and that he could see the passenger, Connelly, strapped into the passenger side. Both Hope and Connelly flatly denied this. In addition, Veronica Diez, whose deposition was entered into evidence, stated that she observed the two men, Hope and Connelly, walk from the area of the Texas Street Bridge to the passenger side of the vehicle where they were standing when' Ramsey made his stop. Diez’s uncontradicted testimony supports Hope’s claim that he had not been driving. Her testimony, along with Ramsey’s many inconsistencies, calls into question Ramsey’s credibility and suggests that he could not have had an honest and reasonable belief that Hope’s vehicle was the same vehicle he had been following.

| flThere was also some inconsistencies in Ramsey’s reporting of the results of Hope’s performance on the sobriety tests, particularly the test for which Hope had to pronounce the ABC’s. The most glaring inconsistency was Ramsey’s statement in the police reports that Hope was slow and hesitant in pronouncing the ABC’s and that he mixed or missed letters. The videotape of the test flatly contradicts Ramsey’s report. Furthermore, Ramsey was forced to admit at trial that “(I)f the tape shows otherwise, then I was mistaken in what I wrote down.”

Finally, there were inconsistencies in Ramsey’s testimony regarding the barricades that were in place along the pedestrian walkway. In the police report, Ramsey stated that the vehicle he was following drove around steel barricades. At the preliminary examination and at trial, he claimed that the steel barricades had been removed and that there were orange barrels in place which the truck drove around.

In light of these many inconsistencies, we believe the trial court’s factual conclusions to be clearly wrong. Due to his impeached testimony and contradictory statements made throughout the course of the criminal and civil proceedings, Ramsey’s testimony lacked all credibility. As previously stated, dismissal of the charges against Hope had the effect of shifting the burden to the defendants to show that Ramsey acted on probable cause and without malice. The defendants chiefly relied upon Ramsey’s testimony to meet this burden. We find that this burden was not met.

The defendants did not establish that Ramsey acted on probable cause. Moreover, malice may be inferred from a lack of probable cause or | inwhere the defendant acted in reckless disregard of the other person’s rights. Winn v. City of Alexandria, supra. In addition to the lack of probable cause, we find that malice was shown through Ramsey’s reckless disregard of Hope’s rights. This disregard was evidenced by Ramsey’s misreporting of the results of Hope’s ABC sobriety test, his untruthful claim that he saw Hope pull into the parking space, his other inconsistent statements, and his refusal to take any step to investigate Hope’s insistent claim that he had not been driving. For these reasons, we reverse the trial court’s judgment and find in favor of Hope on his claim of malicious prosecution.

, The only issue remaining is the determination of damages. When the trial court has erroneously rejected the plaintiffs claim and the record on appeal is complete as to damages, the appellate court may make an appropriate award of damages. La. C.C.P. art. 2164; Byrd v. Bossier Parish School Bd., 543 So.2d 35 (La.App. 2d Cir.1989), unit de nied, 550 So.2d 628 (La.1989). Where the other elements of malicious prosecution are established, the element of damages is presumed. Jones v. Soileau, supra; Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La. 1980). Damages awarded in an action for malicious prosecution are compensatory only. Jones v. Soileau, supra; Jenkins v. Baldwin, supra.

The record establishes the days Hope missed from work due to his arrest and subsequent criminal proceedings and his expenses associated with those proceedings. These totaled almost $10,000. Following his arrest, Hope was placed in jail and then bonded out the next afternoon. Naturally, Hope experienced some stress from his experience. He was also Infearful of the possibility of being convicted of another DWI offense. We believe that an award of $12,000 is sufficient to compensate Hope for his losses, both special and general damages, associated with this matter.

CONCLUSION

For the reasons mentioned, we reverse the trial court’s judgment and render judgment awarding damages of $12,000 in favor of the plaintiff, Donald Brent Hope. Costs assessed to the defendants, the City of Shreveport and D.W. Ramsey.

REVERSED and RENDERED.

GASKINS, J., concurring with reasons.

L GASKINS, J.,

concurring.

I respectfully concur with the majority’s opinion to reverse the trial court decision in this case. The trial court is vested with making the credibility call, which is the crux of a good faith determination. Therefore, we must adopt the trial court’s view of the evidence, and the resulting good faith finding, when based on conflicting testimony by both sides of this lawsuit. This determination, however, is subject to the manifest error rule when evidence does not support, or directly contradicts, the finding. Contrary to the majority, I would find that the trial court correctly ruled that the stop of Mr. Hope was properly made in good faith. I agree with the majority, however that the arrest of the defendant was improper.

For a DWI charge, the officer needs to find that the offender was driving and that he was intoxicated. Officer Ramsey based his probable cause finding of intoxication on the field sobriety test. Mr. Hope’s “failure” of the field sobriety test was documented in the officer’s police report and testified to by Officer Ramsey. However, this field sobriety test was taped by a video recorder in Officer Ramsey’s vehicle. The tape clearly showed that Mr. Hope performed the field sobriety test maneuvers well, and did not make the mistakes that Officer Ramsey said were the basis of the arrest. This isn’t to say that Mr. Hope was not intoxicated, just that Officer Ramsey was either grossly negligent or fabricated the test results which he used to justify the arrest. Officer Ramsey’s action in arresting Mr. Hope on knowingly false field sobriety test results can only lead to the conclusion that Officer Ramsey had malice, or bad faith, in making this arrest.

      . Our analysis is limited to the malicious prosecution claim, because this is the claim primarily asserted and argued on appeal.


author: JjDREW, J.

text:
    CREDIT RECOVERIES, INC. Plaintiff-Appellant v. Chester L. CROW Defendant-Appellee
    No. 37,913-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2003.

      Rogers, Hearne & Carter by Michael B. Rennix, Counsel for Appellant.
    Robert U. Goodman, Shreveport, Counsel for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   JjDREW, J.

Credit Recoveries, Inc. appeals from a judgment dismissing its lawsuit against Chester L. Crow. We reverse and remand.

FACTS

In this suit on a promissory note, the question is whether the trial court erred in dismissing the plaintiffs lawsuit on the basis that the note was inadmissible into evidence. On July 12, 1988, Chester L. Crow executed a promissory note payable “to the order of THE FIRST NATIONAL BANK OF SHREVEPORT or BEARER” in the amount of $21,578.42 at an interest rate of 3% per annum above the prime rate in effect at The First National Bank of Shreveport until paid. A copy of this note was attached to the petition in this case. It is a standard preprinted promissory note, and the back of the note bears the following undated restrictive indorsement:

PAY TO THE ORDER OF CREDIT RECOVERIES, INC. WITHOUT RECOURSE, REPRESENTATION OR WARRANTY OF ANY KIND. PREMIER BANK, NATIONAL ASSOCIATION
BY: /s/ Palmer Perque
TITLE: PALMER PERQUE, VICE PRESIDENT

On July 15,1999, Credit Recoveries filed this lawsuit against Chester L. Crow, alleging that Crow owed $7,222.57 on the note, plus interest, as of the last payment date of November 11, 1994. Crow filed an answer generally denying the allegations of the petition. Thereafter, Credit Recoveries filed a motion for summary judgment, supported by inter alia an affidavit of its president, James William Scott, alleging the amount owed and the date of the last payment.

[¡.In response, Crow filed an opposition asserting that Premier Bank, N.A., the successor to The First National Bank of Shreveport, had cancelled the debt on September 8, 1994. In support of his opposition, Crow attached:

• A copy of the note that appears identical in substance to the copy attached to the plaintiffs petition, and he stated in his opposition that this note was indeed a copy of the note evidencing the debt.
• What appears to be a bank statement showing a balance on some account of $8,655.73 as of July 8,1991.
• An IRS Form 1099 for 1994 executed by Premier Bank, N.A., as creditor in favor of Crow as debtor cancelling on September 8,1994, a debt of $7,891.00.
• Copies of checks written by Crow and his wife to Premier Bank on September 10, 1994; October 6, 1994; and November 11, 1994, in the amount of $50.00 each.
• An undated and unpersonalized letter from Premier Bank, to “Loan Customer” noting that the customer’s recent loan payment was more than what was due and stating that a check accompanying the letter was a refund of the overpayment.

In an accompanying affidavit, Crow admitted that Premier Bank, N.A., was the successor to The First National Bank of Shreveport, that he was unable to make payments on the note after June 27, 1991, and that Premier Bank, N.A., cancelled the debt on September 8, 1994. Crow stated that the $50 checks were payments made by him to Premier after the bank had cancelled the debt and that by its letter Premier refunded these payments to him.

Upon this evidence, the trial court denied summary judgment for Credit Recoveries, and after both plaintiff and defendant secured new counsel, Crow filed an amended answer. In this answer, Crow alleged that |3at the time Credit Recoveries purchased the note, the obligation represented by the note had been extinguished by the then holder of the note and thus Credit Recoveries had no cause of action. Crow further alleged that the obligation had been extinguished by remission or rescission, and that the actions of Credit Recoveries, “assignee of Bank One,” had prejudiced him and that Credit Recoveries was estopped from asserting its claim against him.

In his witness list, Crow noted that he might call “a representative and employee of Bank One, successor in interest to Premier Bank, as yet unnamed[.]” In the statement of the case in his pre-trial brief, Crow noted that Premier Bank, N.A., was the successor to The First National Bank of Shreveport, and he stated that Credit Recoveries purchased the note on September 30,1994.

Thereafter, the matter went to trial. Prior to the commencement of testimony, the plaintiff offered the note, filed into the suit record as an attachment to its motion for summary judgment, as plaintiffs Exhibit 1. Crow objected to the introduction of the note into evidence, asserting that since the lawsuit was brought by someone other than the payee, the plaintiff had to prove its ownership of the note. After discussion of the applicable law, the court refused to allow Credit Recoveries to introduce the note into evidence at that time. Thereafter, Credit Recoveries called Mr. Crow to testify.

Crow admitted that he was the person who borrowed $21,578.42 from The First National Bank of Shreveport on July 12, 1988, and admitted that |4he had made payments on the note to that bank and to other unspecified payees. Crow was not asked and did not admit that the note offered as plaintiffs Exhibit 1 was the note that he signed. Crow admitted that he had received a demand for payment on the note from Credit Recoveries and that he had asserted the remission of the debt. When shown a letter purportedly written by him to Credit Recoveries containing an offer to repay the debt under different terms, Crow said that he had no recollection of the letter, and the court refused to allow this into evidence as well, citing its absence on the exhibit list filed by the plaintiff. Counsel for Credit Recoveries asked for a continuance to allow the owner of the company to testify about the chain of ownership of the note since that issue was a surprise. The court denied this request, and when the plaintiff had nothing further to offer, Crow moved for an involuntary dismissal under La. C.C.P. art. 1672(B). The court granted the motion, noting that it could do nothing else, since no evidence had been admitted to identify the note. The court specifically observed, “Actually, I think the note possibly could have been identified by Mr. Crow, but it is too late for that now.”

The court signed a judgment dismissing Credit Recoveries’ lawsuit on April 22, 2002, but no proof of mailing of notice of the judgment to the plaintiff or his counsel appears in the record. Credit Recoveries filed a motion for new trial on May 10, 2002, urging that the court should have admitted the note. Credit Recoveries filed a motion to set aside the judgment on June 18, 2002, urging that its counsel had not been given the | ^opportunity to review the judgment before signing as contemplated by Rule 9.5 of the Rules for Louisiana District Courts. On August 12, 2002, the court signed a second judgment identical to the April 22, 2002, judgment dismissing Credit Recoveries’ action, and notice of judgment was mailed to the plaintiff on August 14, 2002. On August 21, 2002, Credit Recoveries filed a second motion for new trial, urging that the court should have admitted the note; the court denied the motion in open court on October 14, 2002, and signed a judgment memorializing the denial on December 26, 2002. No notice of mailing of judgment per La. C.C.P. art. 1914(C) appears in the record. Credit Recoveries filed a motion for appeal on February 21, 2003, and the matter is now before this court for a decision.

DISCUSSION

Given that there is no proof in the record of the mailing of notice of the April 22, 2002, judgment and all remaining pleadings were timely filed, we consider this appeal on the merits despite potential questions of timeliness.

The issue that ultimately led the court to dismiss the plaintiffs action was the admissibility into evidence of the 1988 note executed by Crow to First National Bank of Shreveport. La. C.E. art. 902 provides, in part:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

| ^Crow's argument at trial was that this note could not be admitted as self-authenticating because the party seeking payment was not the named payee. For that proposition he cited La. R.S. 10:3-203; Vidrine v. Carmouche, 422 So.2d 1327 (La. App. 3rd Cir.1982); and N.E. England Associates, Inc. v. Davis, 333 So.2d 696 (La.App. 4th Cir.1976). The theory upon which the trial court did not allow the note into evidence is not completely clear from the record but seems to be based on Crow’s assertions about the right of Credit Recoveries to enforce the note. The court noted that there had been an “assignment” of the note and its belief that a witness must therefore identify the note before it could be admitted. Crow’s argument is more nearly a substantive defense to the lawsuit rather than a challenge that the note is inauthentic or not what it purports to be. The genuineness of the note had never been attacked prior to trial, and indeed the parties seemed to agree prior to trial that the note in question was the one executed by Mr. Crow. Nevertheless, the appeal is taken from the judgment and not from the reasons for judgment.

All relevant evidence is admissible unless otherwise provided by law. La. C.E. art. 402. Generally, the trial court is accorded discretion concerning the admission or exclusion of evidence. A trial court’s decision to admit or exclude evidence will not be reversed absent an abuse of discretion. Holloway v. Midland Risk Ins. Co., 36,262 (La.App.2d Cir.10/30/02), 832 So.2d 1004, writ denied, 02-3247 (La.3/28/03), 840 So.2d 571. Likewise, an appellate court should not reverse an involuntary dismissal based on La. C.C.P. art. 1672(B) in the absence of manifest error. Davies v. Johnson Controls, Inc., 36,498 (La.App.2d Cir.10/23/02), 830 So.2d 462, writ denied, 02-2855 (La.1/31/03), 836 So.2d 70.

Regarding the transfer of negotiable instruments, La. R.S. 10:3-203 provides, in part:

(a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
(b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the trans-feror to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.

More specific provisions govern the instrument at issue in this case. La. R.S. 10:3-109 provides:

(a) A promise or order is payable to bearer if it:
(1) states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment;
(2) does not state a payee; or
(3) states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.
(b) A promise or order that is not payable to bearer is payable to order if it is payable (i) to the order of an identified person or (ii) to an identified person or order. A promise or order that is payable to order is payable to the identified person.
|s(c) An instrument payable to bearer may become payable to an identified person if it is specially indorsed pursuant to R.S. 10:3-205(a). An instrument payable to an identified person may become payable to bearer if it is indorsed in blank pursuant to R.S. 10:3-205(b).

Comment 2 to this statute states, in part:

2) ... Under subsection (b), if an instrument is payable to bearer it can’t be payable to order. This is different from former Section 3-110(3). An instrument that purports to be payable both to order and bearer states contradictory terms. A transferee of the instrument should be able to rely on the bearer term and acquire rights as a holder without obtaining the indorsement of the identified payee....

Former La. R.S. 10:3-110(3) provided that “[a]n instrument made payable both to order and to bearer is payable to order unless the bearer words are handwritten or typewritten.”

Under the rule announced by the comment to La. R.S. 10:3-109 (and even under the former version of the rule), this pre-printed note payable to either the named payee or to bearer was, at its inception, bearer paper. Accordingly, the note could be negotiated, not merely transferred, by physical delivery. La. R.S. 10:3-201(b). Whatever person thereafter was in possession of the note became the holder. La. R.S. 10:1-201(20) provides:

(20) “Holder”, with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the ease of an instrument payable to an identified person, if the identified person is in possession. “Holder” with respect to a document of title means the person in possession if the goods are deliverable to bearer or to the order of the person in possession.

Regardless of the identity of the holder, the instrument remained bearer paper until some event changed that status.

|aThe note contains an indorsement purportedly made by a vice president of Premier Bank, N.A., to Credit Recoveries, Inc. This is the first and only indorsement on the note. Regarding indorsements, La. R.S. 10:3-205 provides, in part:

(a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special in-dorsement.” When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in R.S. 10:3-110 apply to special indorsements.
(d) “Anomalous indorsement” means an indorsement made by a person who is not the holder of the instrument. An anomalous indorsement does not affect the manner in which the instrument may be negotiated.

The holder of bearer paper may make a special indorsement, and if Premier Bank, N.A., was the holder of the instrument, the indorsement is effective. The defendant was seemingly in agreement that Premier Bank, N.A., was the successor to The First National Bank of Shreveport; he asserted this to be the case in various filings including at least one affidavit. We believe that Crow is thus estopped from arguing that Premier Bank, N.A., was not the successor to the rights of The First National Bank of Shreveport.

Further, assuming arguendo that Premier Bank, N.A., was not the successor to the rights of The First National Bank of Shreveport, and additionally assuming ar-guendo that it was not the holder of the instrument by virtue of possession, then its indorsement on the instrument was merely | man anomalous indorsement without effect. If that is the case, then the instrument remained bearer paper, and any future holder had the right to enforce the instrument.

We find the cases cited by Crow inapposite to this case. Those cases concern the mere transfer by a holder of an instrument payable to his order; in other words, a transfer without indorsement of a specially indorsed instrument. The instrument in this case was bearer paper and was either specially indorsed to Credit Recoveries by a holder, or indorsed anomalously by an unrelated party. Under either theory, the note was of sufficient authenticity to overcome the objections of Crow under La. C.E. art. 902 or any provision of the Louisiana Commercial Laws. The trial court abused its discretion by refusing to allow the note into evidence; the court should have admitted the note into evidence and then allowed Crow to raise his defenses to the note. The note would have been sufficient to defeat Crow’s motion for involuntary dismissal. Accordingly, the trial court was clearly wrong in granting Crow’s motion for involuntary dismissal.

The judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to Chester L. Crow.

DECREE

At appellee’s costs, the judgment is REVERSED and the matter REMANDED.

      . The copy of the form in the record is difficult to read and the numbers in the hundreds and tens positions are unclear.

      . Although the court offered to let Credit Recoveries proffer this letter, it does not appear as an exhibit or any other part of the appellate record.