author: hPEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Darryl Dewayne BRIGHT, Appellant.
    No. 39,003-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Louisiana Appellate Project by James E. Beal, for Appellant.

      Paul J. Carmouche, District Attorney, Lea R. Hall, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART & PEATROSS, JJ.
   hPEATROSS, J.

Defendant, Darryl DeWayne Bright, was initially charged with one count of carjacking, one count of illegal possession of stolen things and two counts of resisting an officer. Defendant and the State entered into a plea agreement whereby Defendant would plead guilty to the carjacking charge in exchange for the State’s dismissal of the remaining charges and its agreement not to file a habitual offender bill. There was no agreement as to sentencing. Accordingly, Defendant pled guilty to one count of carjacking, a violation of La. R.S. 14:64.2, punishable by imprisonment for 2 to 20 years at hard labor, without benefits. The district court sentenced Defendant to serve 18 years at hard labor without benefits. No motion for reconsideration sentence was filed. Defendant now appeals, arguing that his sentence is excessive. For the reasons stated herein, we affirm.

DISCUSSION

On April 12, 2003, a cashier at an Eck-erds Drugs store observed Defendant and Antonio Washington following a 75-year-old woman in the store. The two stood behind the woman in line, but had nothing in their hands to purchase. In the parking lot, Defendant stood behind the woman while she put her purchases into her car. Apparently, Washington had walked to an adjacent parking lot after the two men exited the Eckerds. When the woman turned to face Defendant, he was holding one of her bags and put it into the car for her. After the woman got into the driver’s seat, however, Defendant demanded her keys. When she refused, he forcibly took the keys from her hand and physically pulled her from the vehicle, got in and drove away. Defendant stopped to pick up Washington in the ^adjacent parking lot and fled the scene. On April 21, 2003, a Shreveport police officer spotted the car and watched as Defendant parked and entered a store. When Defendant exited the store, he fled in the car, parked it in another lot and then led police on a foot chase until he was ultimately apprehended.

As previously stated, pursuant to a plea agreement, Defendant pled guilty to the carjacking charge and the remaining charges of illegal possession of stolen things and resisting an officer were dismissed and he was not charged as a habitual offender. There was no agreement as to sentence; and, on appeal, Defendant argues that the 18-year sentence imposed is excessive.

Since Defendant did not file a motion to reconsider sentence, he is relegated to having this court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164; State v. Robinson, 37,043 (La.App.2d Cir.5/14/03), 848 So.2d 642. Whether a sentence imposed is too severe depends on 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 the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it |3shocks 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.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280.

A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Davis, 30,532 (La.App.2d Cir.4/8/98), 711 So.2d 356; State v. Gant, 29,169 (La.App.2d Cir.1/22/97), 687 So.2d 660, writ denied, 97-0465 (La.6/30/97), 696 So.2d 1006.

In selecting a proper sentence, the trial court is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Barber, 34,832 (La.App.2d Cir.6/20/01), 793 So.2d 251.

Defendant argues that the district court did not give appropriate weight to mitigating factors and erred in considering his prior arrests not resulting in convictions. We find no merit in Defendant’s arguments.

Prior to sentencing, the trial judge ordered and reviewed a Presentence Investigation Report (“PSI”). After reviewing the PSI, at sentencing, the trial judge specifically stated that she considered the mitigating facts that Defendant has a small child for whom he claims to provide support and that he pled guilty “without any promise of sentence.” |4The trial judge also thoroughly recited the aggravating factors in this case. In particular, the trial judge stated that Defendant knew or should have known that the victim was particularly vulnerable due to advanced age. Further, Defendant’s adult criminal history considered at sentencing included an arrest in 2001 for trespass, resisting arrest, simple assault and possession of marijuana. He pled guilty to possession of marijuana and was sentenced to six months in jail. That sentence was suspended, and Defendant was placed on 18 months supervised probation. Thirteen counts of simple burglary were pending against Defendant in Madison Parish. A trial date was also set in Madison Parish for April 26, 2004, on charges of aggravated kidnapping, simple criminal damage to property, aggravated assault and six counts of resisting an officer. Defendant was convicted of burglary of a business in Mississippi and was sentenced to three years. That sentence was suspended, and he absconded from supervised probation. Defendant escaped from the Madison Parish Detention Center and was a fugitive at the time of the instant offense. These facts were properly considered by the trial judge. See State v. Barber, supra.

In addition, Defendant received a substantial benefit from his plea agreement, which dismissed all additional charges and whereby the State agreed not to file a habitual offender bill. Defendant’s maximum sentence exposure was reduced from 40 years without benefits to 20 years.

In summary, we find that the trial judge properly weighed the mitigating and aggravating factors as listed in La. C. Cr. P. art. 894.1 and determined that Defendant should be imprisoned because of the undue risk | Bof continued crime, the need of correctional treatment and the fact that a lesser sentence would have deprecated the seriousness of the crime. We find that the sentence imposed is not shocking to the sense of justice and is not constitutionally excessive.

Finally, our review for patent errors revealed that the trial court failed to specifically credit Defendant for time served, which is mandated by La. C. Cr. P. Art. 880. Failure to give credit for time served is error patent and may be corrected by an appellate court under La. C. Cr. P. art. 882 without remanding to the trial court for resentencing. State v. Eason, 37,303 (La.App.2d Cir.7/16/03), 850 So.2d 1090; State v. Sweet, 575 So.2d 937 (La. App. 2d Cir.1991). Accordingly, Defendant’s sentence is hereby amended to credit him for time served.

DECREE

For the foregoing reasons, Defendant’s, Darryl Dewayne Bright, sentence is amended to credit Defendant with time served and, as amended, is affirmed.

SENTENCE AMENDED, AND, AS AMENDED, AFFIRMED.


source: Caselaw Access Project

author: h LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Marvin SMITH, Appellant.
    No. 39,026-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Louisiana Appellate Project by Paula Corley Marx, Peggy J. Sullivan, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   h LOLLEY, J.

This criminal appeal arises from the Twenty Sixth Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Marvin Smith (“Smith”) was charged with armed robbery in violation of La. R.S. 14:64 and two counts of attempted first degree murder. Pursuant to a plea agreement, the state agreed to dismiss the attempted murder charges in exchange for Smith’s guilty plea to the armed robbery charge. The trial court imposed a sentence of 25 years at hard labor without benefits and denied Smith’s timely motion for reconsideration. Smith appeals his sentence contending it is excessive. For the following reasons, we affirm the sentence imposed by the trial court.

FACTS

On November 17, 2003, Smith entered a gasoline station near the intersection of I-220 and Benton Road in Bossier City. He confronted the lone, female clerk and ordered her to open the cash register at gun point. Smith then forced the clerk into a rear room where he bound her hands behind her back with a telephone cord and then choked her until she lost consciousness. Just as Smith was preparing to leave, a female police officer entered the store. Smith pointed his handgun at the officer and told her she had made a big mistake. The officer told Smith to drop his weapon, but he continued to point his weapon at the officer. The officer fired at Smith, striking him at least once. A second police officer arrived on the scene. Smith continued to wield his weapon and, when he moved suddenly, both officers shot him. Smith sustained serious injuries, but recovered.

I ¡.DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. Where, as here, the record clearly shows an adequate factual basis for the sentence imposed, remand for further articulation of reasons for sentence is not necessary. State v. Landos, 419 So.2d 475 (La.1982).

Whether a sentence imposed is too severe depends on 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 the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed 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. Bonanno, 384 So.2d 355 (La.1980); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158.

| /There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La. App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. In the instant case, the record clearly shows the trial court was aware of and considered Smith’s lack of criminal history.

Louisiana R.S. 14:64(B) provides in pertinent part:

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

Prior to imposing sentence, the court informed Smith that his sentence would be 25 years without benefit. The court considered the facts of the case, and noted that the plea bargain had secured the dismissal of two charges which carried minimum sentences of 20 years at hard labor without benefits. The court was well aware that Smith, age 24 and a high school drop out, had no prior felony convictions and had been seriously injured in the course of his crime. The court also noted the violent and dangerous nature of the crime of conviction and referenced the available sentencing range for this offense.

We find no constitutional error after reviewing this record. Smith was exposed to a sentencing range of no less than 10 years to no more than 99 years under the terms of his plea bargain. The record shows that Smith committed this armed robbery in an unnecessarily cruel manner. The sentence is lawful, and approximately only one-quarter of what could have been imposed. Under the circumstances of this offense, we do not find that | ¿the sentence is grossly disproportionate to the severity of the offense committed, nor does it shock our sense of justice.

There is no showing of an abuse of the district court’s discretion in the imposition of this sentence or in its denial of the motion for reconsideration of sentence. The assigned errors are without merit. Accordingly, we do not find the sentence complained of is constitutionally excessive.

For the reasons assigned above, Smith’s sentence is affirmed.

AFFIRMED.


author: JjMOORE, J.

text:
    STATE of Louisiana, Plaintiff-Appellee, In the Interest of Q.U.O., Defendant-Appellant.
    No. 39,303-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Layne M. Adams, Monroe, for Appellant.
    Juvenile Justice Project of LA by Der-wyn Bunton, for Appellant Q.U.O.
    Charles Foti, Attorney General, Jerry L. Jones, District Attorney, Johnny L. Sanders, II, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   JjMOORE, J.

The state charged 14-year-old QUO with two counts of delinquency arising from separate incidents of simple burglary of an inhabited dwelling. Pursuant to a plea agreement, QUO admitted his guilt to one count and the state dismissed the other. The district court, sitting as a juvenile court, imposed a judgment of disposition of secure detention until QUO’s 21st birthday. QUO now appeals. Finding that QUO was not properly advised of his Boy-kin rights, we reverse and remand.

Factual Background

On November 5, 2003, the state filed a petition to declare QUO delinquent for committing the simple burglary of a neighbor’s house on Jerald Drive in Monroe on October 12, 2003. The matter was set for an answer on November 20 and again on December 8, but according to the minutes no appearances were made on those dates. QUO and his mother appeared for a detention hearing on January 15 at which Corporal Wyatt testified that QUO admitted entering the victim’s house to look for drugs. The court continued QUO in custody pending adjudication and disposition, but at some point he was released to his mother’s custody.

Meanwhile, on January 12, 2004, QUO was arrested for committing another simple burglary of the same inhabited dwelling on January 11. The state filed a second petition, seeking to have QUO declared delinquent for this offense, on January 16. On January 22, QUO appeared in court, represented by counsel. He waived formal arraignment and denied the allegations.

|2On April 8, 2004, QUO appeared in court, represented by counsel and accompanied by his mother. He admitted being delinquent to one count of simple burglary of an inhabited dwelling, with the other to be dismissed, in the following colloquy:

Mr. Sanders: Your honor, this is Number 2 and 3 on the docket, [QUO], No. 16,927. He’s in court today with his mother and represented by Mr. Adams. He has two charges of simple burglary of an inhabited dwelling. He’ll be admitting to one of those and we’ll dismiss the other charge pursuant to the plea.
Mr. Adams: That is correct, Your Hon- or. I have spoken to [QUO] and his mother and there is a factual basis for the charges and at this time he’ll plead delinquent to one count of simple burglary of an inhabited dwelling with the other one to be dismissed.
The Court: All right, very well. The court accepts the plea and orders a PDI.

The court then questioned QUO’s mother regarding his behavior; she admitted he had been out of control and, shortly after being released to her custody, he had stolen a car.

At the disposition hearing on May 17, 2004, counsel for QUO urged that he be confined to no worse than non-secure custody. Stating that it had read the PDI and QUO’s letter, the court ordered QUO to secure detention until his 21st birthday. The court also allowed QUO to speak, but replied that his claims of reform did not alter the disposition.

QUO now appeals, raising three assignments of error.

1sDiscussion

By his first assignment of error, QUO urges that his plea was not made knowingly, voluntarily or intelligently, thus requiring the reversal of his adjudication and disposition. He contends that the record does not show that he affirmatively waived his constitutional rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Bouie, 2000-2934 (La.5/14/02), 817 So.2d 48. Specifically, he contends that prior to accepting the guilty plea, the court did not advise him on the record of his right against self-incrimination, his right to trial or his right to call and confront witnesses. La. Ch. C. art. 855; Boykin v. Alabama, supra.

The state submits that QUO was represented by counsel at every stage of the proceeding; counsel stated on the record that he had conferred with QUO; and his mother admitted there was a factual basis for the plea. Without any citation of authority, the state concludes that QUO’s guilty plea was adequately supported by the advice of his mother and attorney.

A valid guilty plea requires a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation, and the privilege against compulsory self-incrimination. Boykin v. Alabama, supra; State v. Montalban, 2000-2739 (La.2/26/02), 810 So.2d 1106, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002). The due process principles of Boykin apply to juvenile delinquency proceedings. La. Ch. C. art. 855; State in Int. of JG, 96-718 (La.App. 3 Cir. 12/11/96), 684 So.2d 563. The juvenile must be advised of and waive his right to an adjudication hearing and to confront his accusers, and his privilege against Lself-incrimination. State in Int. of Lucas, 543 So.2d 634 (La.App. 1 Cir. 1989). On direct appeal, the court will not presume a valid waiver of rights from a silent record. Boykin v. Alabama, supra; State v. Deville, 2004-1401 (La.7/2/04), 879 So.2d 689.

On close examination, we are constrained to agree with QUO’s contention that “as the record indicates, the trial court failed to initiate any part of the Boykinization plea colloquy.” Neither the transcript nor the minutes of the April 8 hearing show that QUO was formally advised of his rights under Boykin. Although he was actually represented by counsel at that and all other hearings, we cannot infer Boykin compliance from a silent record. In the absence of such compliance, we must vacate QUO’s admission, reverse the adjudication and disposition, and remand the case for further proceedings. State in Int. of JG, supra, and citations therein.

By his second assignment of error, QUO urges the juvenile court erred in adjudicating him delinquent based on a charge and petition that were both untimely. He contends that as he was not continued in custody, the state had to begin adjudication within 90 days of the date of filing the petition, or before February 3, 2004. La. Ch. C. art. 877 B. He further urges that the court made no finding of good cause to extend this deadline, and concludes that the remedy is dismissal of the petition under La. Ch. C. art. 877 C and State in Int. of RDC, 93-1865 (La.2/28/94), 632 So.2d 745.

The state argues that dismissal under Art. 877 C is predicated on a motion filed by the juvenile. This is correct. The article provides:

A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall 1 Rcommence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause shown, the court may extend such period. (Emphasis added.)

The article plainly requires the “motion of a child” to trigger the release of a child continued in custody and the dismissal of the petition. QUO filed no such motion and, in fact, did not object to the alleged delay in holding the adjudication hearing. In the absence of a contemporaneous objection, QUO cannot now raise this issue for the first time. La. C. Cr. P. art. 841; State ex rel. KG, 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716; State in Int. of DJ, 29,474 (La.App. 2 Cir. 4/2/97), 691 So.2d 839. Finally, QUO’s reliance on State in Int. of RDC, supra, is unpersuasive, as in the instant case there is no showing that the state improperly dismissed a petition to avoid a time delay. This assignment of error lacks merit.

By his third assignment of error, QUO urges the disposition of juvenile life is excessive for a 15-year-old first felony offender. However, because we are reversing the adjudication and disposition and remanding the case for further proceedings, we pretermit any consideration of the length of the disposition.

Conclusion

For the reasons expressed, QUO’s admission of guilt is vacated and | fiset aside; the adjudication and disposition are reversed; and the case remanded to the juvenile court for further proceedings.

ADMISSION OF GUILT VACATED; ADJUDICATION AND DISPOSITION REVERSED; CASE REMANDED.

      . By this time, QUO had turned 15.

      . At the time of the disposition hearing, QUO had been charged with three additional counts of delinquency, including two incidents of simple burglary of an inhabited dwelling and one of aggravated burglary. He was also charged with three traffic offenses arising from crashing a stolen car on March 14, 2004, but those charges were later dismissed.


author: | .PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Louis Dan HARGROVE, III, Appellant.
    No. 39,045-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Louisiana Appellate Project, by Carey J. Ellis, III, Paula Corley Marx, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before PEATROSS, GASKINS & LOLLEY, JJ.
   | .PEATROSS, J.

In January 2003, Defendant, Louis D. Hargrove, III, was convicted of armed robbery, aggravated second-degree battery and conspiracy to commit armed robbery. After the court imposed a sentence of 50 years for the armed robbery, the prosecution filed a habitual offender bill alleging that Defendant had a 1998 conviction for possession of marijuana with intent to distribute and a 2002 conviction for simple robbery. The court conducted a contradictory hearing and adjudged Defendant to be a third-felony offender allowing for a sentence range of 66 to 198 years. The court then vacated the 50-year armed robbery sentence and imposed a new sentence of 150 years at hard labor without benefits. The defense did not object or move for reconsideration of sentence. For the reasons set forth herein, the judgment of the trial court adjudicating Defendant to be a third felony offender and the resulting sentence are vacated and the matter is remanded for further proceedings consistent with this opinion.

DISCUSSION

The habitual offender bill of information alleges a conviction on October 12, 1998, for possession of marijuana with intent to distribute and a conviction on March 20, 2002, for simple robbery. Defendant argues that the State did not prove that he had a conviction for possession of marijuana with intent to distribute; that the State proved a 1996 simple robbery, not one occurring in 2002 as alleged in the habitual offender bill; and that the only witness at the habitual offender hearing did not link Defendant to the prior offenses alleged in the habitual offender bill. The State concedes that it failed to prove the prior conviction for possession of marijuana with intent [2to distribute; however, because the 150-year sentence is within the range provided for a second-felony offender (49.5 to 198 years), the sentence should be affirmed.

The only witness to appear at the habitual offender hearing was Debra Young (“Ms.Young”), a probation and parole specialist with the Louisiana Department of Corrections. Ms. Young identified Defendant in court and testified that, beginning in October 2002, she supervised his parole following a conviction for possession of cocaine. Ms. Young also identified a first-offender pardon Defendant received in 1996 after completing parole on a simple robbery charge. Ms. Young told the prosecutor she was not familiar with a conviction relating to possession of marijuana with intent to distribute.

Without objection, the State introduced the court minutes which the prosecutor mistakenly thought showed both of the convictions on the charges alleged in the habitual offender bill. On examination, the court determined that the minutes contained no documentation concerning the alleged 1998 conviction for possession of marijuana with intent to distribute. The State also offered, for the court’s consideration, a rap sheet which showed that Defendant had a prior conviction for possession of a firearm by a convicted felon. The court sustained an objection by the defense to the rap sheet and said it would not consider the sheet for purposes of the multiple offender bill.

l.qThe parties submitted the matter at that point. The court ruled that Defendant was a third-felony offender, based on the convictions for possession of cocaine and simple robbery, vacated the prior armed robbery sentence and imposed a sentence of 150 years at hard labor. From this ruling, Defendant appeals.

The State initially argues that Defendant cannot appeal his sentence because he failed to make any objection or move for reconsideration of the sentence. The State points to La. C. Cr. P. art. 881.1(E), which states:

Failure ... to file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Since this is an appeal of an adjudication as a third habitual offender, not an appeal of Defendant’s sentence, we find no merit to this argument.

The State further argues, in the alternative, that, while it failed to prove that Defendant had been convicted in 1998 of possession of marijuana with intent to distribute at the hearing on the multiple bill, it did present documentary evidence to prove that Defendant had been previously convicted of armed robbery, simple robbery, possession of cocaine and possession of a firearm by a convicted felon.

Defendant raises a number of issues on appeal, none of which were raised by objection or other motion during the habitual offender hearing. Jurisprudence holds that it is error patent for a trial court to sentence a defendant as a habitual offender based upon a felony conviction which was not specifically alleged in the habitual offender bill of information. State v. Donahue, 572 So.2d 255 (La.App. 1st Cir. 1990), grant of habeas corpus aff'd, 231 F.3d 1000 (5th Cir.2000). Further, in State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Supreme Court stated:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. [Footnote omitted]. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a ‘perfect’ transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a ‘perfect’ transcript, for example, a guilty plea form, a minute entry, an ‘imperfect’ transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

Defendant points out, and the State admits, that it (the State) did not accomplish the initial burden set out in Shelton. The proof offered in this hearing failed to reflect the manner of conviction or whether Defendant was represented by counsel at either of the prior alleged offenses. Further, if by plea, the State did not meet its burden of proving that Defendant’s prior guilty pleas were informed and voluntary and made with an articulated waiver of the three Boykin rights.

Accordingly, in the case sub judice, the burden should not shift to the Defendant to prove a significant procedural defect in the proceedings because the State did not meet its initial burden. The State, therefore, does | Rnot enjoy the “presumption of regularity” stemming from the introduction of reliable, worthy documents such as transcripts, minutes of the court, final judgments, plea bargain agreements and more. Since the court found that the minutes did not support the allegation that there was a prior conviction for the charged 1998 possession of marijuana with intent to distribute offense, for the court to find that Defendant was a third-felony offender, it had to consider the conviction for possession of cocaine that had not been alleged in the bill of information. This constituted a fundamental violation of due process.

Defendant’s final argument is that the prosecution did not establish his identity as the person referred to in the various documents entered into evidence. To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Henry, 96-1280 (La.App. 4th Cir.3/11/98), 709 So.2d 322, writ denied, 99-2642 (La.3/24/00), 758 So.2d 143. Prima facie proof of identity (and incarceration dates) for multiple bill purposes is set out in La. R.S. 15:529.1(F), which requires a certificate from the head jailer or clerk of court containing the name of the prisoner, a photograph, fingerprints, a statement of the convicting court, the date and time of sentence, the length of the sentence and the time of discharge. The fact that the defendant and the person described in the records evidencing the prior convictions have the same name is, standing alone, insufficient to prove that the defendant was the same person who was convicted of the previous crimes. City of Monroe v. French, 345 So.2d 23 (La.1977).

IfiMs. Young identified Defendant at the hearing and testified as to her supervision over his conviction for cocaine possession and his parole violation relative to said conviction. Ms. Young also testified to documentary evidence as to Defendant’s first-offender pardon for simple robbery. Ms. Young was not, however, familiar with Defendant’s prior convictions listed in the habitual offender bill and did not establish that Defendant was the same person who committed those crimes in accordance with La. R.S. 15:529.1.

Defendant had not been put on notice that he was charged with the 2002 possession of cocaine conviction about which Officer Young testified and which the court expressly considered in making its habitual offender ruling. Accordingly, the court erred in considering that conviction in adjudicating Defendant a third-felony offender.

DECREE

For the foregoing reasons, Defendant’s, Louis Hargrove, III, adjudication as a third-felony offender and resulting sentence are vacated, and the matter is remanded for resentencing as a second-felony offender in accordance with this opinion.

HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED AND REMANDED.

      . This was not charged in the bill of information at the habitual offender hearing.

      . This was not charged in the bill of information at the habitual offender hearing.


author: h GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Dennis L. MESHELL, Appellant.
    No. 39,171-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Laura Marie Pavy, Louisiana Appellate Project, Michelle Andrepont, Assistant Indigent Defender, for Appellant.
    Paul J. Carmouche, District Attorney, Ron Christopher Stamps, J. Thomas Butler, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, GASKINS and MOORE, JJ.
   h GASKINS, J.

The defendant, Dennis L. Meshell, appeals as excessive his sentences of eight years at hard labor on each of three counts of carnal knowledge of a juvenile and seven years at hard labor for one count of indecent behavior with a juvenile, with the sentences to run concurrently. We affirm the convictions and sentences.

FACTS

In October 1992 and May 1993, the defendant, then 26 years old, engaged in “consensual” vaginal sexual intercourse with AAB, who was born in May 1978. This activity resulted in charges of two counts of carnal knowledge of a juvenile against the defendant. On other dates between March 1990 and May 1996, excluding the dates previously mentioned, the defendant committed lewd and lascivious acts, including fondling and sexual intercourse, upon the person of AAB, resulting in a charge of one count of indecent behavior with a juvenile. As consequences of these offenses, AAB gave birth to two children. The defendant married her in June 1996.

Thereafter, between June 2001 and January 2002, the defendant repeatedly engaged in vaginal sexual intercourse with another victim, BEH, a 14-year-old habitual runaway, resulting in a charge of one count of carnal knowledge of a juvenile for the defendant.

On July 18, 2002, the above-mentioned charges were filed against the defendant, three counts of carnal knowledge of a juvenile and one count of indecent behavior with a juvenile. On March 4, 2004, the defendant pled guilty as charged. The defendant was subsequently sentenced as set forth Rabove. The trial court then denied timely motions for reconsideration of his sentences.

DISCUSSION

The defendant appealed, claiming that his sentences are excessive. In his brief, the defendant’s counsel first argues that the court imposed an illegal sentence of eight years on the indecent behavior charge. This argument has no valid factual basis. The argument apparently is based solely on defense counsel’s reading of the court minutes which do not accurately reflect the sentencing colloquy. The sentencing transcript clearly shows that the trial court initially sentenced the defendant to eight years at hard labor on each charge, then corrected the indecent behavior with a juvenile sentence to seven years at hard labor. The jurisprudence holds that where there is a discrepancy between the minutes and the sentencing transcript, the transcript prevails. State v. Sebastien, 31,750 (La.App.2d Cir.3/31/99), 730 So.2d 1040, writ denied, 1999-1426 (La.10/29/99), 748 So.2d 1157. Thus, the claim that this sentence was in excess of that allowed by the statute of conviction has no factual basis.

Appellate defense counsel also complained that the defendant was not arraigned on the bill of information. The record, in a minute entry for July 18, 2002, shows the defendant waived arraignment at the preliminary examination. Even if the defendant had not been arraigned, La. C. Cr. P. art. 555 states that any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto.

[«Next, counsel argues that the concurrent sentences are excessive. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982).

The 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. Jenkins, 38,534 (La.App.2d Cir.5/12/04), 874 So.2d 368.

Whether the sentence imposed is too severe depends on 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 the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158.

Prior to imposing sentence, the trial court considered the facts of the case and heard testimony from the mother of the victim, BEH, that, due to the defendant’s actions, the child had gone from being an honor roll student to one who consistently failed her classes. We note that the record shows that the defendant obtained a first offender pardon for an unspecified offense committed in 1987.

On this record, we do not find constitutional error. Although the court’s articulation of reasons for sentence are minimal, the record supports the sentences imposed. The defendant repeatedly engaged in improper sexual acts and sexual intercourse with AAB over a period of years. She had two children due to his actions. Several years later, the defendant demonstrated that he is a serial sexual predator of young girls by repeatedly engaging in sexual intercourse with BEH. Thus, he is among the class of worst offenders for whom maximum sentences are appropriate. The trial court granted great leniency in imposing less than the maximum terms of imprisonment on the carnal knowledge counts and in directing that the | ^sentences be served concurrently rather than consecutively. The aggregate sentence imposed is lawful and is neither grossly disproportionate to the severity of the offenses of conviction nor is it shocking to our sense of justice. There is no showing of a manifest abuse of the district court’s discretion in the imposition of these sentences, viewed either individually or collectively.

ERROR PATENT

The defendant requested that the record be examined for errors patent and that this court “take whatever corrective action it deems appropriate.” This request is superfluous since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556. Our examination of the record fails to reveal such error.

CONCLUSION

For the reasons stated above, the convictions and sentences of the defendant, Dennis L. Meshell, are affirmed.

AFFIRMED.


author: hBROWN, C.J.

text:
    John Wilson OLLIS and Linda Neu Ollis, Husband & Wife, Plaintiffs-Appellees v. Adam Edward MILLER and Mary Ann Nimm Miller, Husband & Wife, Defendants-Appellants.
    No. 39,087-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2004.

      Charles J. Neupert, Jr., Shreveport, for Appellant.
    Katherine Clark Dorroh, for Appellee.
    Before BROWN, CARAWAY, and DREW, JJ.
   hBROWN, C.J.

On January 10, 2000, plaintiffs, John and Linda Ollis, agreed to purchase from defendants, Adam and Mary Miller, a home located at 590 Waterford Place in Shreveport, Louisiana, for the price of $335,000. Prior to the closing, on January 17, 2000, plaintiffs had the property inspected by Jimmy Sitter, who noted numerous defects, including visible moisture rot on the front balcony and visible moisture effects (soft areas) on the east balcony. Prior to plaintiffs’ taking possession, repairs were made to the posts on the front balcony. Based upon Sitter’s recommendations, plaintiffs did not require that repairs be made to the east balcony. Thereafter, on February 1, 2000, plaintiffs purchased the property from defendants.

In the fall of 2000, plaintiffs hired Ken McDonald to repaint their home. As the painters were preparing the wood on the balconies, several problems were discovered. Plaintiffs hired a civil engineer to determine what repairs would be necessary. The following conditions were found:

Front balcony:
1. The lumber used to originally construct the cantilever beams was not pressure treated or designed for exteri- or use, resulting in severe wood rot.
2. Drywall mud, designed for interior use, had been used to fill in areas of rotted wood within the beams and spaces between the beams.
3. On the inside, the paint on the drywall had bubbled and peeled because of the dampness of the exterior conditions.
4. Supporting studs as well as the siding on the exterior of the second story of the house had to be replaced.
12Side balcony:
1. The balcony had sustained internal fire damage which was not visible during the inspection conducted by plaintiffs prior to closing; this cause the porch to be structurally unsafe.
2. Damaged floor joists in the interior of the house had to be replaced, which also involved removing and replacing the floor decking on the second floor.
3. The ceiling of the bedroom below required repair.
4. The side balcony needed to be made smaller to enable connection to the new floor joists.

Plaintiffs filed suit against defendants in February 2001, seeking a reduction in the price of the home, together with damages, costs and attorney fees. After dismissing claims related to an allegedly defective septic system and inadequate spacing between sprinkler heads, the trial court found that defendants made repairs “in a fashion (that) amounted to an intentional concealment of the damaged areas.” The court awarded plaintiffs repair costs in the amount of $24,980 and damages for inconvenience and aggravation in the amount of $5,000; however, the court reduced the total damage award by 15% because plaintiffs failed to call their painter and contractor, Kenneth McDonald, as a witness or offer his testimony by deposition which made it difficult for the court to determine the exact repairs made, together with the associated costs. Plaintiffs were also awarded expert witness fees in the amount of $2,000, together with attorney fees in the amount of $19,954.38. It is from this judgment that defendants have appealed. For the reasons set forth below, we amend the judgment in part and, as amended, affirm.

| ¿Discussion

There are two preliminary matters that bear on our analysis of whether plaintiffs established their redhibitory claim against defendants.

First, defendants argue that without the testimony of their painter and contractor, plaintiffs did not carry their burden of proof, and the trial court erred in finding in their favor. According to defendants, Ken McDonald’s testimony was critical inasmuch as. he was the person who inspected plaintiffs’ home, estimated the necessary repairs, bid on the project, and then performed the repair work on the house.

An adverse presumption exists when a party having control of a favorable witness fails to call him to testify. Louisiana Safety Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App.2d Cir.06/20/01), 793 So.2d 218, writ denied, 01-2557 (La.12/07/01), 803 So.2d 973. However, the adverse presumption rule is tempered by the fact that a party need only put on enough evidence to prove its case. Id.; State Farm Fire and Casualty Co. v. Torregano, 00-141 (La.App.5th Cir. 09/26/00), 769 So.2d 754. He may do so by calling one or more other witnesses concerning an issue. Wilson v. U.S. Fire and Casualty Co., 593 So.2d 695 (La.App. 4th Cir.1992), writs denied, 597 So.2d 1027, 1037 (La.1992).

For the reasons expressed further in this opinion, we find no merit to this assignment of error, inasmuch as the record contains sufficient testimony from the engineer, Jimmy Sitter, and John Ollis, as well as documentary evidence to support plaintiffs’ claim. See Davis v. Puryear, 95-1637 (La.App. 4th Cir.05/01/96), 673 So.2d 1298, writ denied, 96-1380 (La.10/04/96), 679 So.2d 1381.

Second, defendants assert that the trial court erred in allowing into evidence written proposals and invoices prepared by Ken McDonald, who did not testify at trial as set forth above. According to defendants, the proposals and statements constituted inadmissible hearsay.

The proposals and invoices were introduced into evidence during the testimony of Mr. Ollis, who coordinated the repairs and paid for the work as it was completed. These documents were introduced as evidence of payments made by plaintiff to repair the home. Bills, invoices, and statements are admissible under the business records exception to the hearsay rule to prove damages. Carroll v. Coleman, 27,861 (La.App.2d Cir.01/24/96), 666 So.2d 1264; Fidele v. Crescent Ford Truck Sales, Inc., 00-1934 (La.App. 5th Cir.04/11/01), 786 So.2d 147. As noted by this court in Carroll, supra, invoices and bills are admissible to show a plaintiffs expenses or damages, not to show that the services or work was necessary or that the expenses incurred were reasonable. We find no error in the admission of this documentary evidence.

A more difficult consideration is the fact that the trial court reduced the total damages awarded to plaintiffs by 15% due to McDonald’s failure to testify. Plaintiffs did not claim this as error and this is not before us at this time. It does, however, give credence to defendants’ claim that plaintiffs failed to prove with exactitude their damages. We will address this issue later in this opinion.

| ^Defendants next take issue with the ruling of the trial court finding that there were redhibitory defects in the home plaintiffs purchased from them.

The warranty against redhibitory defects is set forth in La. C.C. art. 2520, which provides:

The seller warrants the buyer against redhibitory defects or vices in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Article 2521 provides that a seller owes no warranty for defects that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer. Generally, the seller warrants the thing sold against hidden or non-apparent defects. La. C.C. arts. 2475, 2521. Apparent defects are those defects that the buyer might have discovered by simple inspection, while hidden or non-apparent defects are those which cannot be discovered by simple inspection. Rey v. Cuccia, 298 So.2d 840 (La.1974); McGough v. Oakwood Mobile Homes, 34,091 (La. App.2d Cir.11/01/00), 779 So.2d 793.

In order to determine whether a defect is apparent upon simple inspection, the court must use a reasonableness standard, i.e., whether a reasonably prudent buyer acting under similar circumstances would have discovered the presence of a defect. McGough, supra. A buyer is only | fiunder a duty to make an inspection that is reasonable in light of all the circumstances surrounding the sale. Whether an inspection is reasonable depends upon the facts and circumstances of each case and includes such factors as the knowledge and expertise of the buyer, the opportunity for inspection, and the assurances made by the seller. Rey, supra; McGough, supra; Creger v. Robertson, 542 So.2d 1090 (La. App. 2d Cir.1989); Sells v. Puls, 97-1483 (La.App. 3d Cir.04/22/98), 711 So.2d 432. The buyer, however, is under no obligation to inspect with expertise or to deface the thing purchased while inspecting it. McGough, supra.

John Ollis, a self-proclaimed house husband, testified that he and his wife purchased and moved into the home at 590 Waterford in February 2000. He described their house hunt as a rushed process, inasmuch as his wife had accepted a position as Chief Operating Officer of Christus Schumpert Medical Center and they were relocating from Dallas to Shreveport.

Ollis and his wife went through the house only once in late December 1999 or early January 2000. He testified that the home at 590 Waterford was built in the Acadian style, consisting of five bedrooms and four and one-half baths, with an area of approximately 4400 square feet. The front balcony is supported by cantilever beams and runs the length of the second story of the home. On the east side is another balcony off a second story bedroom.

Prior to closing on the home, plaintiffs had an inspection performed by Jimmy Sitter of Building Inspections Plus. Sitter issued a report dated 17January 17, 2000, in which he noted that he performed a visual inspection of the home to identify areas which needed immediate or major repairs. Specifically excluded were areas which were not exposed to view, concealed or otherwise inaccessible. In his report, Sitter noted that the wood posts on the front porch balcony had visible moisture rot at their bases. Before plaintiffs moved in, defendants addressed this concern by replacing the bases of the posts. Sitter also observed on the side balcony visible moisture effects to the wood timbers with soft areas. Ollis testified that he and Sitter discussed this, and the inspector informed him that this condition was not nearly as severe as the rot noted on the front porch posts.

When he and his wife moved in, Ollis observed that the bottom portion of the front balcony posts had been replaced inasmuch as no rot was visible. Likewise, he didn’t see any signs of wood rot on the side balcony, although he did see the visible moisture effects as described by Sitter.

The Ollises decided to have some work done on their home in the fall of 2000. Plaintiff noted that as early as June or July 2000, the paint on both balconies had begun to bubble and deteriorate at a rapid rate. Plaintiffs hired Ken McDonald, who had done some work for them following the Easter hail storm, to paint the balconies and kitchen ceiling. As he began work on the balconies, McDonald started noticing severely rotted areas, and the damage unfolded as the painter continued his work.

At that time, Ollis began documenting the situation by taking photographs, which were introduced into evidence at trial. These pictures depicted the following conditions: beams filled in with plaster of Paris; | Ssevere dry rot in most of the beams on both balconies; charred timber on an interior weight-bearing beam; fire damage to a wall and to the beams underlying the bedroom floor; and, inter alia, cracked beams which had been spliced together with 2 x 4s and/or 2 X 6s.

Ollis noted that the beams on the front and side balconies run into the structure of the home, all the way to the opposite wall of the bedroom they border. He also observed that several of these beams were weight-bearing, providing support and stability to the home. It was then that plaintiffs hired structural engineer Paul Cormier, who from that point on coordinated the repair work to the home. According to plaintiff, he retained the services of Cormier once he realized the work entailed a good bit more than just a paint job. Ollis and McDonald knew that the side balcony required replacement, but they weren’t exactly sure how to facilitate that.

Ollis identified the disclosure statement signed by the Millers and pointed out the negative responses to questions about knowledge of dry rot, remodeling/ repairs, or fire damage. Plaintiff then testified that he and his wife relied on the disclosure statement in deciding to purchase defendants’ home.

Introduced next into evidence were McDonald’s written estimates and copies of checks paid to McDonald in connection with his repair work. Ollis noted that there were copies of each and every payment he made for repairs. He testified that he was present most of the time that McDonald worked on the house, which began in mid-September 2000 and continued through early 2001. Likewise, he was at the home when Cormier and |9McDonald discussed the work which had to be done to make the home structurally sound. Ol-lis pointed out that Cormier consulted on the structural adequacy work-once that phase was over, it was then simply a matter of restoring the home to a presentable condition. Cormier gave the project his approval in January 2001, and the restoration phase began.

Ollis testified that there were areas in which the siding on the house had to be replaced because of the extent of repair work required by the rotted areas. Also, there were shutters and a balcony door which had to be replaced. He noted that the only work done was that necessary to restore the home to a good condition. Had he known of the extent of the dry rot and fire damage, as well as the extent of the work required to repair both balconies, Ollis stated that he would not have paid $335,000 for the home. The extent of the damage and necessary repairs were a shock to both him and his wife, who thought they had found their dream house. During the repair and restoration process, which lasted about nine months, they had no privacy and had to endure constant noise and confusion.

On cross examination, plaintiff stated that their purchase offer was contingent upon receipt of a satisfactory, complete inspection of the home. Ollis noted that he and his wife relied not only upon the inspector’s report, but upon the sellers’ disclosure statement in deciding to buy the house. As was testified to by the inspector, during Ollis’s walkthrough of the home, he stated that he did not detect any moisture rot on either of the two balconies. He did take Sitter’s recommendation that the bases of the posts on the front lmbalcony be replaced as they did show signs of moisture rot. As far as he knows, defendants’ realtor handled this repair.

In response to a question regarding the necessity of replacing french doors on the side balcony, Ollis noted that these doors had to be replaced because there was work that had to be done under them, specifically, the replacement of wood damaged by fire and seepage. Ollis reiterated that the condition of the side balcony deteriorated very rapidly, which surprised him. He was adamant that his contractor did not damage any of the balcony structure while working on the porch. Instead, the beams, which had sustained severe rot, just fell apart and had to be replaced.

Plaintiffs’ counsel then called John Miller on cross examination, who testified that he and his wife had lived in the Waterford home for about ten years before its sale to plaintiffs. When defendants learned that Miller would be retiring from General Motors, they decided to downsize and relocate to Hot Springs.

Discussing the fire damage discovered on the side balcony, Miller stated that this was caused by a smoldering screw during the July 1999 repairs. According to defendant, while replacing dry rotted areas in one of the load-bearing beams, a screw began smoldering and smoking. His wife called the fire department to make sure there had been no smoke damage to the interior of the home. By the time the firemen arrived, he had put water on the area that was smoldering and he asked the firemen to try to get the smoke out of the house. The firemen recommended that they cut out an area in the floor where the smoldering occurred to determine whether there was h 1 anything sparking or smoldering underneath. When they did this, they didn’t find any further damage.

The repair work that summer also included removal of dry rot from several beams on the front balcony. Defendant and his carpenter, Roger Varnell, rebuilt the dry rotted beams on both porches with new wood, using six inch galvanized screws to connect the new portions to the existing beams. When asked whether he had a contractor to oversee the repairs, defendant opined that the carpenter’s work was adequate to support the two balconies. Miller testified that Varnell did all of the carpentry repair work on the beams on both porches, while he filled in with wood bonding material and painted the beams to seal the areas and protect from water damage, not to cover up dry rot.

Miller stated that prior to the summer 1999 repairs, he had repaired the beams on the balconies two previous times to remove dry rot. He replaced the rotted areas with new wood and bonding material recommended by a man at Home Depot. According to defendant, the materials did not fail; the problem was that water was getting in through the tops of the screws. During the summer 1999 work, Miller sealed the screws with urethane to prevent further damage.

Miller denied giving false answers on the disclosure statement. He pointed out that this document was filled out in July 1999; at that time, the dry rot had been removed and the beams repaired. To him, that indicated that there was no damage due to existing dry rot. He also defended his answer to question 10, stating that the repair work they did on the beams hi.was not an addition, remodel, structural change or alteration, and therefore did not have to be disclosed. Miller felt the same way about the fire damage; because it had been addressed, it did not have to be disclosed. To him, these repairs were simply normal home maintenance. Based on this rationale, defendant testified that he did not disclose any of these problems or repairs to the realtor, inspector, or plaintiffs.

Roger Varnell, the carpenter who did the repair work for the Millers in the summer of 1999, testified next. He described that particular job as involving the repair of rotted wood on both balconies. At the start of the job, the beams were in good condition except for sections which had rotted through. Varnell stated that he repaired the decayed sections below the flooring with pressure treated lumber. He noted no sagging on the balcony or deck.

Varnell pointed out that his job involved wood replacement. To that effect, he anchored the replacement wood to the solid areas with galvanized wood. During the repair work on the side balcony, while grinding some nails off existing beams, some sparks flew into a hole and smoldered on top of one of the 2 x 12s. When he and Miller saw the smoke, they watered the area. When the firemen recommended that they check underneath the flooring, they did so and saw a charred area, but because that area wasn’t load bearing, they did nothing, just replaced the flooring.

On cross examination, Varnell observed that the 1999 work was the only time he worked on the balcony beams; he wasn’t involved in Miller’s prior repair work. Likewise, he did none of the sealing or filling work, nor |13did he paint the beams. When asked whether he noticed the rotted condition of the beams he did not work on, Varnell noted that this was not obvious inasmuch as the other beams were still painted and covered up with plaster or bonding material.

Paul Cormier was the structural engineer who coordinated the repairs undertaken by plaintiffs. Cormier stated that he performed a structural inspection on the home, specifically, the two balconies. Introduced into evidence were his field notes and final report. On October 30, 2000, Cormier inspected the front balcony. He opined that some of the beams had to be replaced because of splicing, areas of dry rot, and repairs which had been made with wood that was not pressure treated. Cormier stated that he was very concerned with the way that 2 x 6s and 2 x 12s had been connected to the existing beams; to him, it appeared that the new portion and old structure were held together with drywall mud. He saw no evidence whatsoever that there were screws holding the beams together. On the front balcony, six of the 13 beams showed various degrees of patching and needed replacing. Cormier pointed out that during prior repairs, the wood rot had been cut out of the middle of the beams, with 2 x 6s being spliced in as “scabs” or patches. This type of repair was structurally inadequate and unsafe.

Cormier also examined the side balcony, finding pretty much the same thing — wood rot which had been patched with untreated wood and drywall mud. However, he also noted previous fire damage under the bedroom bordering the side balcony. Although these beams didn’t have h4load bearing capacity, Cormier felt they needed to be replaced because the fire had burned one of the 2 x 12 joists holding up the flooring for the second story bedroom, as well as the beam running to the outside of the house. Cormier recommended replacement of the balcony if it were to continue being used as a porch. Specifically, he suggested replacement of the floor joists in the house underneath the plywood floor, as well as the beams holding up the balcony. To access the floor joists, the bedroom flooring would have to be removed and replaced.

Cormier felt that from a structural standpoint, none of the repairs undertaken by plaintiffs were excessive or unnecessary. He pointed out that certain structures, such as the siding and french doors, had to be removed during the repair process, either because of damage sustained during the work or because the new dimensions were slightly different.

Jimmy Sitter, who performed the inspection prior to plaintiffs’ purchase of the home, testified that his inspection was limited to a visual inspection of areas not concealed or inaccessible because of walls, floor coverings, floors, etc. He clarified that an inspection is not a guaranty or warranty against any future latent defect, which is anything hidden or not revealed as a repair or replacement in the past life history of the home.

Sitter testified that his inspection report contained his recommendation that the wood posts on the front balcony be replaced due to visible moisture rot at their bases. He also observed visible moisture effects to wood timbers with soft areas on the side balcony. Sitter stated that the difference between moisture effects and visible moisture rot is that with 11Kmoisture effects, the wood itself is soft on the surface to about inch deep, which is insufficient to constitute wood rot. What he saw on the side balcony when he performed his inspection were soft areas, timbers and overall age and deteriorated conditions normal for the house being exposed to the weather. He didn’t observe similar conditions on the front balcony at the time of the inspection.

Sitter stated that information about the previous repairs to the beams would have caused him to then look closer at the structural conditions of the balconies. Likewise, had the fire damage been disclosed, he would have examined more closely the structural integrity of the side deck. Had Sitter known of the repairs and fire damage, he would have asked the sellers for a copy of the repairs made as well as the extent of the damage. He reiterated that Miller did not disclose either the repairs or the fire damage to him.

Once plaintiffs’ contractor, Ken McDonald, began to uncover the damage on the front balcony, Ollis called Sitter to come back. On the front balcony, he saw beams with visible water and rot damage. He noted that several of these beams had been spliced in with framing timbers or patched with drywall compound material. The beams he was called out to examine had to be replaced. Sitter opined that this damage, which was revealed only after the paint and bonding material was removed, had occurred over a long period of time.

The existence of a redhibitory defect is a question of fact that is not to be disturbed unless the record establishes that the finding is manifestly erroneous. McGough, supra; Ford Motor Credit v. Laing, 30,160 (La.Ap.2d Cir.01/21/98), 705 So.2d 1283. Likewise, the determination of whether a defect is apparent by reasonable inspection is a factual determination that will not be disturbed unless it is clearly wrong. Id.

The above testimony clearly establishes that the home contained hidden defects at the time of sale which were not readily apparent upon inspection by a reasonably prudent buyer. We do not find error in either conclusion made by the trial court, i.e., that the home contained redhibitory defects and that these defects were not apparent by reasonable inspection.

Defendants also argue that plaintiffs failed to prove with any certainty the damages to which they were entitled.

In the instant case, plaintiffs sought and were awarded a reduction in the purchase price they paid for their home, together with damages, costs and attorney fees. As noted above, the price reduction that may be demanded under La. C.C. art. 2541 is the difference between the sale price and the price that a reasonable buyer would have paid had he known of the defects. Capitol City Leasing Corp. v. Hill, 404 So.2d 935, (La.1981); Agee v. Speers, 35,600 (La.App.2d Cir.12/19/01), 803 So.2d 406. As was done in this case, the amount awarded is typically the cost of repairs, or the amount necessary to convert an unsound structure to a sound one. Agee, supra.

The amount awarded for a reduction of the purchase price is a question of fact for the trial judge which will not be disturbed in the absence of manifest error or abuse of discretion. Sells, supra; Destefano v. Crump, 96-951 (La.App. 5th Cir.04/09/97), 694 So.2d 424.

|17The record in this matter does not reflect manifest error or abuse of discretion on the part of the trial court in calculating the price reduction and damages to which plaintiffs are entitled. Each repair and expenditure was discussed by Ollis during his testimony. In fact, he excluded several items as being unrelated to the balcony repairs. Although McDonald was the best witness as to these costs, we feel that the testimony of Ollis supports a reduction in price as found by the trial court.

Defendants’ last assignment of error is that the attorney fees awarded to plaintiffs in this case are excessive. According to defendants, an award of attorney fees in the amount of $19,954.38 in a matter in which the total recovery is $25,483 is unreasonable on its face. We agree.

Successful claimants in a redhibition action may recover reasonable attorney’s fees incurred in bringing the action if the seller knew or should have known of the defect in the object or thing that was the subject of the sale. La. C.C. art. 2545; Linoski v. Fleetwood Homes of Texas, # 12, 38,338 (La.App.2d Cir.05/12/04), 873 So.2d 886; Dailey v. The Home Furnishings Store, 02-1225 (La.App. 4th Cir.09/17/03), 857 So.2d 1051. Whether a seller is in bad faith is a question of fact subject to the manifest error standard of review. Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2d Cir.1975); Chaudoir v. Porsche Cars of North America, 95-729 (La.App. 3d Cir.12/06/95), 667 So.2d 569, writ denied, 96-0800 (La.05/31/96), 673 So.2d 1033.

While the trial court has great discretion in awarding attorney fees in a redhibition case, such an award must be reasonable, based upon the degree [1sof skill and work involved in the case, the number of court appearances, the depositions, and the office work involved. Linoski, supra; Gaston v. Bobby Johnson Equipment Co., Inc., 34,028 (La.App.2d Cir.11/03/00), 771 So.2d 848; Frentress v. Howard, 31,609 (La.App.2d Cir.02/24/99), 728 So.2d 1019.

Reasonableness of an attorney’s fee is to be determined by the factors set forth in Rule 1.5(a) of the Rules of Professional Conduct, which include: (1) the time and labor required, the novelty or difficulty of the issues, and the skill required to properly perform the legal services; (2) the likelihood, if apparent to the client, that the matter will preclude other employment; (3) the fee customarily charged in the locality for similar services; (4) the amount involved and results obtained; (5) the time limitations involved by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer; and (8) whether the fee is fixed or contingent. Linoski, supra.

In a redhibition action, reasonable attorney fees are awarded to justly compensate plaintiffs who succeed in establishing liability on the part of a bad faith seller under La. C.C. art. 2545. Linoski, supra. As this court recently observed, an award of attorney fees encourages both plaintiffs to pursue meritorious redhibition actions and attorneys to represent plaintiffs with solid claims. Furthermore, an attorney’s fee award in addition to damages discourages sellers and manufacturers from selling shoddy, defective products in the marketplace. Linoski, 873 So.2d at 889.

|iaIn this case plaintiffs’ counsel submitted three invoices. One pre-trial invoice listed 55.50 hours and expenses of $1,060.35; another invoice showed expenses of $488.50; and an invoice for the month of January 2003, which included the trial but without an hourly breakdown or details as to how counsel spent her time working on the case. We note that the expenses listed included filing fees, miscellaneous court charges, and subpoena fees which were taxed to defendants in the judgment.

After an analysis of the above factors and principles of law, we agree with defendants that an attorney’s fee of almost $20,000 in a redhibitory case in which plaintiffs’ total recovery was under $26,000 is patently unreasonable. An action in redhibition to reduce the purchase price is not a complicated matter. Keeping this in mind, and considering the fact that plaintiffs’ attorney did not submit detailed time records showing her hourly fee or a breakdown of her time, i.e., hours spent in preparation, hours spent in trial, etc., we reduce the attorney fee award to $12,000.

Conclusion

For the reasons set forth above, the attorney’s fee awarded to plaintiffs is reduced to $12,000. In all other respects, the judgment of the trial court is AFFIRMED.


author: hMAX N. TOBIAS, JR., Judge.

text:
    Mary Anne HALE v. TOURO INFIRMARY.
    No. 2004-CA-0003.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 3, 2004.
    Rehearing Denied Dec. 10, 2004.

      J. Courtney Wilson, Leonard A. Washof-sky, Metairie, LA, for Plaintiff/Appellant.
    Henry P. Julien, Jr., Sam Zurik III, The Kullman Firm, New Orleans, LA, for Defendant/Appellee.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).
   hMAX N. TOBIAS, JR., Judge.

On 25 April 2002, Mary Ann Hale (“Hale”) filed a petition for damages against Touro Infirmary (“Touro”), alleging that its supervisory employees “engaged in a pattern of supervisory harassment intentionally causing extreme emotional distress upon plaintiff....” She further contends that Touro terminated her employment in violation of La. R.S. 23:967, Louisiana’s “whistleblower statute” (hereinafter “Whistleblower Statute”). She alleges that she was harassed and eventually terminated from employment; thereafter, she became suicidal and had to be hospitalized. Touro contends, however, that Hale has failed to allege any “violation of law” sufficient to trigger the Whistleblower Statute and therefore may not recover. Touro maintains that Hale exhibited poor | ¡^performance and teamwork while in its employ and that her termination was necessitated by her inability to correct poor performance issues and follow instructions. Touro further asserts that Hale brought this litigation in bad faith and that it is entitled to recover attorneys’ fees and costs that it has expended in this litigation.

Touro hired Hale as a part-time social worker in April 2000. She worked part-time until August 2000, when she began a full-time social worker position with Touro. Her duties as a social worker included completing psychological evaluations of patients, treating patients, and discharge planning for patients. Hale’s direct supervisor at Touro was Mary Ann Catalanotto (“Catalanotto”), the Supervisor of Inpatient Social Workers, and Catalanotto’s supervisor was Shawn McLaughlin (“McLaughlin”), the Director of Psychiatry at Touro. Touro maintains that after Hale obtained full-time status as a social worker, she exhibited “performance problems.” According to Touro, from September 2000 until the end 13of December 2000, Catala-notto (1) received complaints from Hale’s co-workers; (2) observed herself that Hale had problems working on a team; (3) noted Hale had “communication issues” with other employees; (4) found that Hale failed to follow discharge planning and implementation instructions in a timely and effective manner; (5) observed that Hale exhibited demeaning and unprofessional behavior toward a co-worker in front of other staff members; and (6) observed that Hale failed to timely complete patient psychosocial assessments. Catalanotto verbally counseled Hale on numerous occasions regarding the complaints about her work and demeanor.

On 16 January 2001, Catalanotto issued a written warning to Hale. The warning stated that Hale had problems “effectively collaborating and communicating” as a team member and that she exhibited a “distortion of reality” in complaints regarding another team member and her own verbal abuse of that co-worker. The written warning also provided that “[a]n-other violation of any of the above will result in further disciplinary action up to and including termination.” According to Touro, Hale’s performance did not improve, and she was issued another written warning on 14 February 2001, which essentially set forth similar complaints of poor team interaction, including failing to communicate with team members to resolve problems and using inflammatory language in the documentation of patient care “when referring to care by other team members or |4the institution.” Hale was finally terminated on 27 April 2001, after failing to follow the orders of the Director of Psychiatry regarding her facilitation of patient groups and after continually failing to turn in group charges in a timely manner.

Hale, on the other hand, cites a number of improprieties at Touro that she brought to the attention of her supervisors, which she asserts caused them to fire her as a whistleblower. First, she alleges that Ca-talanotto gave an illegal order to the social workers on staff that they could override a physician’s orders and refuse to admit a patient. Second, she asserts that the clinic violated one or more OSHA provisions, including having to use a copy room at the hospital to meet with patients’ families; clutter in the copy room; and placing patient beds in the hallways. Hale also alleges without specificity that Touro acted in violation of the Louisiana Social Work Practice Act, La. R.S. 37:2701, et seq.

Touro filed a motion for summary judgment on 19 March 2003, maintaining that Hale could not carry her burden of proof under the Whistleblower Statute. In particular, Touro contends that there is no “violation of law” that Hale can point to that could have triggered her dismissal. Further, Touro argued that even if Hale claims that the violations of OSHA regulations or other professional guidelines are sufficient to trigger protection under the statute, the statute clearly provides protection for a whistleblower who reports violations of state law. The trial court entertained argument on the motion for summary judgment at a hearing on 26 September 2003, and judgment was rendered in favor of Touro on 30 September 2003, dismissing Hale’s claims. The court further awarded Touro $11,520.00 in attorneys’ fees and costs pursuant to the Whis-tleblower Statute. La. R.S. 23:967 D.

IsOn 3 December 2003, the trial court issued written reasons for judgment in response to a request from Hale. The trial court found that Hale did not allege violations of law sufficient to trigger the Whis-tleblower Statute. Specifically, the trial court found that Hale’s claims that Catala-notto instructed social workers that they could deny admission to psychiatric patients was not sufficient to satisfy her burden of establishing a violation of law, as Hale testified by deposition that she didn’t know if Catalanotto’s instruction was actually illegal, and further that she didn’t know if any social worker had actually denied admission to any psychiatric patient. With regard to Hale’s assertion of various OSHA violations at Touro, the trial court found that Hale complained about the violations at least seven months prior to being terminated in April 2001,- and that the time lapse belies a causal connection between the two events as maintained by Hale. The court also noted that Hale testified that the violations had been corrected after Hale made her supervisors aware of them prior to her termination. Finally, the trial court reiterated its award of $11,520.00 to Touro in attorneys’ fees and costs, but did not elaborate on how it calculated this award.

Hale asserts that the trial court erred as a matter of law in its finding that she was required to prove a violation of law to prevail under the Whistleblower Statute. Further, she asserts that even if she were required to establish a violation of law, she does allege OSHA violations and supervisor “violations” that the court disregarded in error. Hale next asserts that the trial court erred in finding that she was terminated for “performance problems” when the parties stipulated that they were not at issue in the motion for summary judgment. Hale also appeals the trial | r,court’s failure to rule on a discovery motion prior to dismissing the case on summary judgment.

As an appellate court, we are bound to review the trial court’s summary judgment de novo. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions on file, and/or affidavits show that there is no genuine issue of material fact. La. C.C.P. art. 966 B. Summary judgment is favored and is designed to secure “the just, speedy, and inexpensive determination” of litigation. La. C.C.P. art. 966 A(2). If a plaintiff fails to put forth evidence that he can carry his burden at trial on any crucial element of the cause of action asserted, summary judgment is appropriate. La. C.C.P. art. 966 C(2).

The Whistleblower Statute provides protection to employees against reprisal from employers for reporting or refusing to participate in illegal work practices. Touro argues that it is clear from the wording of the statute that Hale must establish a violation of state law to prevail on the merits of the case. Hale argues, however, that it is far from settled that she must establish an actual violation of a law to prevail, and points to the “good faith” language contained in the statute as requiring only that the employee make a good faith allegation against the employer and that she should not be required to “prove” that a law was violated. She cites Zeringue v. Roche Laboratories, Inc., et al., 2002 WL 1585561 (USDC, E.D.La.7/17/02), in which a federal district court questioned but did not resolve the issue of whether an actual violation of state law had to be proven:

While the statute does not expressly state that Zeringue must prove a violation of law, the Court notes that the statute does not refer to an alleged violation of law but rather “any violation of law.” ...
However, plaintiff makes persuasive arguments against the interpretation urged by Roche. For instance, Ze-ringue points out that the purpose of the statute is to protect employees from reprisal, not to turn them into prosecutors for the government. Rather, the public body conducting the investigation and perhaps a court of law will ultimately determine if a violation of law has occurred — something that a mere citizen like Zeringue lacks the expertise to do.

The district court went on to note that the Louisiana Supreme Court had not addressed whether a plaintiff must prove an actual violation of state law to prevail under the Whistleblower Statute. Because the Zeringue court was only determining whether the plaintiffs claims were sufficient to invoke the jurisdiction of the federal courts, it did not reach any resolution of the question. Id.

There is no controlling precedent on this particular legal question; it is before us res nova. We note that the only Louisiana state court to determine whether an actual violation of state law must be proven by a whistleblower plaintiff under La. R.S. 23:967 is the Fifth Circuit Court of Appeal. In Puig v. Greater New Orleans Expressway Comm’n, 2000-924 (La.App. 5 Cir. 11/2/00), 772 So.2d 842, the court was presented with a whistleblower case and determined that the statute did require proof of an actual violation of law on the part of the employer for an employee to recover. The court did not belabor the point, but noted that:

R.S. 23:967 is clearly distinct [from the Code of Governmental Ethics], and targeted at more serious conduct, in that it specifies that | sthe employer must have committed a “violation of state law” for an employee to be protected from reprisal.

Id. at p. 5, 772 So.2d at 845 [emphasis in original]. Other courts reviewing cases involving the Whistleblower Statute have noted the requirement of proof of a violation of law to invoke the statute, albeit with little, if any, discussion of the arguments for or against this position.

We turn, therefore, to the principles of statutory construction and interpretation. Article 9 of the Louisiana Civil Code advises:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

Thus, what is clear is that we are bound by the language of La. R.S. 23:967, which provides that an employer may not retaliate against an employee who has notified it of a workplace practice in violation of law and who either refuses to participate in the practice or who threatens to publicize the practice. Although there are strong public policy arguments supporting Hale’s interpretation of the statute, we conclude that the very specific language referring to a “violation of law” placed not once, but in several places throughout the statute, manifests a desire by the Louisiana legislature to only provide a remedy to employees of private employers whose practices are in actual violation of law, and not simply practices disagreed with or found distasteful by the employee. On its face, the Whistleblower Statute 19supports actions by plaintiffs who are aware of a workplace practice or act in which a violation of law actually occurred. While this burden may seem an unwieldy, if not unwise, one to place upon a plaintiff in a fact-pleading legal system, the Whistle-blower Statute only offers protection to a specific class of employees: those employees who face “reprisals” from their employers based solely upon an employee’s knowledge of an illegal workplace practice and his refusal to participate in the practice or intention to report it. Therefore, the language of the statute leads us to the conclusion that a violation of law must be established by a plaintiff under the Whis-tleblower Statute in order to prevail on the merits of the case. We are further convinced of this interpretation in light of the damages clause found in the Whistle-blower Statute, La. R.S. 23:967 D, which provides for an award of attorneys’ fees if a plaintiff brings suit in bad faith or fails to prove a violation of law by the employer. We do not casually reach this conclusion, but do so after a full analysis of the legislative history of La. R.S. 23:967.

We further agree that the violation of law in question must be that of a state statute. The first subsection detailing under what circumstances an employer may not take “reprisals” clearly states that the employee must be aware of a violation of state law. The two subsequent subsections prohibit reprisals against employees who not only know of the violation and report it to their employers, but who also Imtestify before public bodies or simply refuse to participate in the illegal activity. Although the language of the statute is inconsistent, the interpretation that is supported by the structure and that fits best into the framework of the statute is one that holds the statute to its most specific terms, i.e., violations of state law only.

Thus, in order to prevail, Hale must establish that (1) Touro violated the law through a prohibited workplace act or practice; (2) she advised Touro of the violation; (3) she then refused to participate in the prohibited practice or threatened to disclose the practice; and (4) she was fired as a result of her refusal to participate in the unlawful practice or threat to disclose the practice. Failure to put forth evidence to satisfy any of these elements must result in a summary judgment in favor of Touro.

Nowhere in the pleadings or evidence in the record on appeal does Hale specifically articulate any “workplace act or practice” that could be considered a violation of Louisiana law. Her allegations regarding violations of the Louisiana Social Work Practice Act are unsubstantiated and vague at best. Even if she were able, as a matter of law, to put forth evidence of violations of federal law to support her claims, she only makes vague allegations of violations of Medicaid and OSHA provisions, without specifically citing any particular provision. After a careful review of the record and the evidence before us, we find that Hale failed to carry her burden in opposing the motion for summary judgment.

With regard to the award to Touro in the amount of $11,520.00, we find no evidence in the record on appeal to support such an award. Although we recognize that the trial court was following the provision of the Whistleblower Statute that permits, but does not require, an award to an employer should the plaintiff be unable to establish a violation of law, the record is devoid of any evidence or of an 1 n evidentiary hearing to determine the amount of the award of “reasonable attorneys fees” and costs associated with defending the litigation. On the record before us, and after a careful review of the evidence, we cannot say the trial court abused its discretion in choosing to award attorneys’ fees and costs. We do note, however, that the trial court did not make a finding of bad faith on the part of Hale and that the issue in the case is res nova. Accordingly, we remand this matter for an evidentiary hearing on what amount of damages, if any, is appropriate to compensate Touro for its defense of this litigation.

For the foregoing reasons, the judgment of the trial court is affirmed in part, vacated in part, and this matter is remanded for an evidentiary hearing to establish appropriate attorneys’ fees and costs, if any.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

      . Hale has abandoned her cause of action of intentional infliction of emotional distress, leaving only a whistleblower claim.

      . The Louisiana Whistleblower Statute, La. R.S. 23:967, provides:
      A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
      (1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
      (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
      (3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
      B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
      C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
      (1) "Reprisal” includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt any employee from compliance with such.
      (2) "Damages” include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal.
      D. If suit or complaint is brought in bad faith or if it should be determined by a court that the employer’s act or practice was not in violation of the law, the employer may be entitled to reasonable attorney fees and court costs from the employee.

      . The litany of complaints with Hale's job performance are attested to in affidavits executed by Catalanotto and McLaughlin, which were filed in support of the motion for summary judgment.

      . Hale cites no specific law to prove this point and we have not found any.

      . The record does not contain any motion to compel or other motion dealing with discovery issues. We believe that part of the record on appeal was omitted in error, as both parties address the discovery issue; we note, however, that counsel for Hale did designate the record for appeal as not including any discovery motions filed on her behalf. As such, we are unable to address this particular assignment of error.

      . Barber v. Marine Drilling Management, Inc., 2002 WL 237848 (USDC, E.D.La.2/15/2002); Goldsby v. State, Dept. of Corrections, 2003-3531, pp. 4-5 (La.App. 1 Cir. 11/7/03), 861 So.2d 236, 238; Nolan v. Jefferson Parish Hospital Service District No. 2, 2001-175 (La. App. 5 Cir. 6/27/01), 790 So.2d 725; Noto v. Regions Bank, 2003 WL 22965568 (5th Cir.(La.)2003).

      . It appears that the legislature envisioned a broader remedy for employees of political subdivisions in creating La. R.S. 42:1169, which protects public employees from reprisal for disclosure of any “violation of this Chapter or of any order, rule, or regulation issued hereunder or any other alleged acts of impropriety within any governmental entity.” La. R.S. 42:1169. If the legislature intended to make the Whistleblower Statute as broad as that in La. R.S. 42:1169, it needs to address the matter in new appropriate legislation.

      . The legislature could have simply provided that a plaintiff would be liable for attorneys’ fees and costs if he filed suit against his employer in bad faith and consequently failed to establish a violation of law.

      . Specifically, we note that the addition of paragraph D to the statute by one branch of the legislature and the use of the word "or” therein directs a finding that the employee must prove the violation of law. The addition of paragraph D effectively narrowed the scope of the cause of action created by the statute.