author: 1MAX N. TOBIAS, JR., Judge.

text:
    Perry BURNS v. UHS OF NEW ORLEANS, INC., Individually, d/b/a, and Chalmette Medical Center, and Chalmette Medical Center, Inc., UHS of De La Rhonde, Inc., Individually, d/b/a, and Chalmette Medical Center.
    No. 2002-CA-1514.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Writ Denied May 9, 2003.

      Robert F. Shearman, Kevin D. Shear-man, Shearman & Shearman, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    David A. Bowling, Douglas R. Kraus, Wilson & Bowling, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   1MAX N. TOBIAS, JR., Judge.

In this medical malpractice case, the defendant, Chalmette Medical Center, Inc. (“CMC”) , appeals the judgment against it, contending that it should be reversed, or in the alternative, that the award of damages should be reduced. In addition, the plaintiff, Perry Burns, asks the court to set aside or, in the alternative, reduce the allocation of comparative fault of 30% against him. For the reasons set forth below, we reverse the judgment and render judgment in favor of the defendant.

The plaintiff alleged medical malpractice against CMC after he underwent surgery for the removal of a boil from his buttock. Prior to the procedure, a saline or “Jelco” lock was placed in Mr. Burns’ left arm. CMC concedes that the Jelco lock was not removed before Mr. Burns was discharged from the hospital. The plaintiff alleges that his mother discovered the Jelco lock, which the plaintiff describes as a needle, protruding from his arm surrounded by dried blood; she | ¡removed the Jelco lock herself without difficulty. Mr. Burns subsequently sought medical treatment for pain, weakness, and numbness in the arm, as well as a substantial loss of use of the aim.

The matter was presented to a Medical Review Panel, which determined that CMC failed to comply with the appropriate standard of care as alleged in the petition. With regai-d to the issue of causation, the ruling stated: “One panelist is of the opinion that the patient suffered damage; two panelists are of the opinion that the patient did not suffer damage.”

At the commencement of the 9 October 2001 bench trial, the parties stipulated on the record that CMC breached the applicable standard of care by failing to remove the Jelco lock prior to the plaintiffs discharge from the hospital. However, a determination as to the existence or cause of any injury or contributory or comparative fault was left to the determination of the trial court.

The trial court issued its judgment on 11 October 2001, wherein it entered judgment in favor of the plaintiff and against CMC in the amount of $35,000.00. The court further assessed the plaintiff with comparative fault in the amount of 30%. In the reasons for judgment issued the same day, the court stated:

The testimony of Dr. Salvador E. Murra, the treating physician and Dr. Austin Sumner, a plaintiff expert were persuasive and when combined with the testimony of Dr. Dileo, the long time .treating physician which the court felt corroborated the plaintiff that there was no prior injury, and particularly notify [sic] that there were objective findings by Dr. Murra. The court found for the Plaintiff.
The court however did find that a reasonable, prudent man would have returned to the hospital or ^sought other professional medical help once he realized that an instrument remained in his arm, and therefore finds comparative fault.

On 16 November 2001, the trial court issued an amended final judgment upon motion for clarification and/or for new trial filed by CMC. In that judgment, the trial court reduced the award of damages by 30%, or from $35,000.00 to $24,500.00, plus court costs and legal interest. Both parties seek review of the judgment.

Before addressing the issues presented on appeal, we set forth the facts as detailed in the evidence introduced during trial. The medical records reveal that Mr. Burns was admitted to the emergency room at CMC on 19 June 1997 at 9:10 a.m., complaining of a boil on his right buttock. At 10:30 a.m., Mr. Burns was given saline though a saline or “Jelco” lock, which had been placed in his left forearm. At 10:58 a.m., 2 milligrams of Versed were administered intravenously. Soon thereafter, Dr. Domangue incised the boil, and a few minutes later, the plaintiff was reported to be sleeping comfortably. At 11:25 a.m., the wound was cleaned with saline and dressed. When the plaintiff complained of pain at 11:45 a.m., he was given 12.5 milligrams of Demerol intravenously, which relieved the pain. When the plaintiff was discharged at 11:50 a.m., the wound was warm and dry. Plans were made for Mr. Burns to return the next day for a followup appointment. He was instructed as to how to take his medication and told to take 14salt baths. The plaintiff was also told, and given written discharge instructions, to return to the ER if any problems occurred. Mr. Burns stated that he understood those instructions. The plaintiffs uncle, William Dison, took Mr. Burns to his mother’s house.

The plaintiffs chart reflects that at 12:40 p.m., the plaintiffs mother, Rosemary Thompson, called the hospital and spoke with Nurse Todd Cooper, stating that the Jelco lock was still in place. Nurse Cooper advised Ms. Thompson to bring Mr. Burns back to the hospital so it could be removed; Ms. Thompson abruptly hung up the phone. At 12:45 p.m., Nurse Peggy Hartdegen, the charge nurse, was informed of the situation. Nurse Cooper called Ms. Thompson at 12:50 p.m., but there was no answer. He tried several times to call, but could not reach Ms. Thompson. Finally, at 7:00 p.m., Nurse Cooper spoke to Ms. Thompson, who reported that she had removed the Jelco lock herself without problems. She told Nurse Cooper that she had done so because the plaintiff could not find a ride to the hospital.

Contrariwise, Ms. Thompson testified that when she saw her son after the surgery, his arm was bleeding profusely. Upon examination, she saw that a “needle” had been left in his left arm at the crease of the elbow. She called the hospital to speak with the doctor who treated her son, but was told that the doctor was busy and that he would call her back. About one-half hour later, the hospital called and told her to bring Mr. Burns back, but she had already pulled out the “needle.” She did so because she was afraid that he was “bleeding to death.” She testified that she removed a long metal needle from his arm.

IsOn 30 June Í997, Mr. Burns saw Dr. F.J. Soler, complaining of pain and swelling in the antecubital area of his left arm. This was the area where the plaintiff claims the Jelco lock had been placed. The plaintiff was found to have a small area of swelling and mild tenderness in the antecubital fossa; Dr. Soler diagnosed localized thrombophlebitis and Mr. Burns was instructed to apply warm compresses to the affected area. Although he had improved by his 8 July 1997 visit, Mr. Burns returned to Dr. Soler on 21 August 1997, complaining that he could not hold things with his left arm. Dr. Soler referred the plaintiff to Dr. Salvador E. Murra, a neurologist.

Mr. Burns saw Dr. Murra on 22 August 1997, complaining of burning, pain, numbness, and weakness of the hands. Sensory studies of 10 September 1997 revealed probable polyneuropathy, an acute neuro-pathy at or below the left elbow and bilateral carpal tunnel syndrome.

Mr. Burns’ treating physician, Dr. Lucas DiLeo, a general practitioner, testified at trial. Dr. DiLeo stated he first saw Mr. Burns in April 1994, when he presented with complaints of back pain. A history showed that the plaintiff had a rod inserted in his back due to scoliosis approximately 15 years earlier. He was diagnosed with recurrent low back myofascial pain syndrome secondary to scoliosis. He was put on various medications for his symptoms. Mr. Burns saw Dr. DiLeo on numerous other occasions for updated evaluations and prescriptions of medications. His diagnosis remained unchanged for his back symptoms.

With the exception of some minor ailments, the plaintiffs symptoms and diagnosis were unchanged from 1994, until his last visit in May 1999. His medical records indicate that the plaintiff never made a single complaint regarding his left arm to Dr. DiLeo in any of the sixteen visits made after the alleged injury at issue | fiin this matter. In fact, Dr. DiLeo saw Mr. Burns on 1 July 1997, less than two weeks after the incident at issue. At that time, the plaintiff made no complaints regarding his left arm and the physical exam revealed nothing irregular with the arm. Dr. DiLeo discharged the plaintiff from further care on 25 May 1999, after he learned that Mr. Burns was receiving narcotic pain medication from another doctor and did not advise Dr. DiLeo of that fact.

In December 1999, the plaintiff twice returned to CMC with a chief complaint of a left ankle injury. He told the emergency room personnel that he sustained a left ankle/foot injury while playing basketball. He specifically told Nurse Cooper (the same nurse who inserted the Jelco lock at issue in this case) that he twisted his left ankle while “jumping going for a rebound.” No mention was made by Mr. Burns of any injury to his left arm.

The plaintiff testified at trial that Nurse Cooper inserted the Jelco lock at the crease of his elbow on his left arm. He claimed that the symptoms of loss of use of his left hand appeared a week or two after the surgery to his buttock. Mr. Burns stated that he could not do many things with his hand, such as lift his arm, pick up his daughter, hold things, write, play basketball, and wash cars. Upon further examination, he clarified that he could accomplish these activities “every now and then.”

During cross-examination, Mr. Burns admitted that his mother removed the Jel-co lock after being told to return to the hospital for its removal. He also stated that the last time he saw a doctor for his arm was in September 1997. He confirmed that when his deposition was taken in December 1998, he could not hold things for long, tightly squeeze the nozzle of a hose for a period of time, play basketball, or wash cars.

|7One month after the plaintiffs deposition, CMC retained the services of Frank Vitrano, a private investigator, to conduct surveillance on Mr. Burns on 16 January 1999. A videotape of the surveillance was admitted into evidence. Mr. Vitrano testified that he observed Mr. Burns engaged in cleaning and washing vehicles using both of his hands, and possibly performing mechanical repairs on a vehicle. According to Mr. Vitrano’s observations, Mr. Burns did not appear to be limited in the movement of his left arm during the time he was under surveillance or exhibit any signs of pain or discomfort. Our review of the videotape confirms Mr. Vitrano’s observations, as discussed infra.

The plaintiff presented the testimony of his treating physician, Dr. Murra, a board certified neurologist, who stated that Mr. Burns had sustained damage to the high median nerve of the left arm, although he also demonstrated irregularities on the right side, an extremity not affected by the Jelco lock placement. The diagnosis was confirmed through a nerve conduction study. Dr. Murra testified that it was an unusual injury, but that the study showed that an injury occurred at the elbow. He sees a high medial neuropathy only once or twice a year; more often he sees injury lower on the arm, at the carpal tunnel. Dr. Murra causally related Mr. Burns’ injuries to the incident at the hospital.

Under cross-examination, however, Dr. Murra conceded that he did not know exactly what caused the injury to the plaintiffs arm. He knew that something happened high in the area of the arm, but that it could have been some kind of reaction since the plaintiff had presented to Dr. Soler with a thrombophlebitis, which could cause swelling or redness. He, however, was relying on the history given by the plaintiff in making his findings.

IsFinally, Mr. Burns presented the expert testimony of Dr. Austin John Sumner, a board certified neurologist, who served on the medical review panel regarding the plaintiffs claim against CMC. Dr. Sumner was the expert who opined that the “Jelco and its placement may have caused the patient’s complaints at the elbow based on the neurological exam and the EMG studies.” Dr. Sumner stated that it is “relatively common” to injure the median nerve at the elbow when an IV line is placed there because the nerve lies just medial to the tendon biceps. The veins that one attempts to impale while performing an IV infusion overlay the nerve. In doing so, the nerve can be impaired in various ways. However, Dr. Sumner testified that he would expect the abnormalities of nerve function to be evident virtually instantaneously, not when Mr. Burns’ mother removed the Jelco lock. He reviewed Mr. Burns’ record and satisfied himself that Mr. Burns was not sedated at the time the needle was inserted, and admitted that had the injury occurred as plaintiff alleged, Mr. Burns would have felt an immediate painful electric-shock-like sensation in his arm.

Dr. Sumner identified two mechanisms of injury to the high median nerve through the use of a Jelco lock: (1) at the time the Jelco is inserted in the antecubital fossa and (2) the physical presence of an object in the facility of the nerve for two or three hours. Dr. Sumner, however, admitted that he could not remember ever having started an IV, and testified that he had never seen Mr. Burns. Dr. Sumner testified only that the catheter placement might have caused Mr. Burns’ alleged injuries if it had been placed in the antecubi-tal fossa.

Dr. Sumner was also questioned about the placement of the needle. He told the court that the antecubital fossa is the term given to a particular portion of the forearm. Therefore, the documentation of a needle placed in the forearm did not | apreclude it being placed in the antecubital fossa. One term is more specific descriptively than the other.

CMC presented the expert testimony of the two doctors who sat on the medical review panel with Dr. Sumner, Dr. Brob-son Lutz, board certified in internal medicine, and Dr. Thomas A. Krefft, a board certified neurologist, who testified by deposition. Dr. Lutz testified that he had administered, examined, treated, or placed over 1,000 Jelco locks during his twenty-three years of private practice. During that time, Dr. Lutz had never encountered a patient with a medial nerve injury from a Jelco lock. He also researched the medical literature related to this matter and could not find any published reference to any similar type of injury caused by the instrument. Dr. Lutz testified that had Mr. Burns sustained an injury to the median nerve, he would have experienced symptoms immediately. Dr. Lutz reaffirmed his opinion that the breach in the standard of care in discharging the plaintiff with the one-inch pliable plastic catheter still in place caused no injury to the plaintiff, which opinion he arrived at after reviewing Mr. Burns’ medical records from CMC, Dr. Murra, and Dr. Soler.

Dr. Krefft testified that he had seen patients with median nerve neuropathy on over 1,000 occasions. Based on his review of the medical records, as well as his expertise and years of experience, Dr. Krefft testified that the plaintiff did not sustain any injury from the Jelco lock. He stated that the only possible injury to the nerve would have been at the time the needle was inserted and, in such a case, the plaintiff would have experienced immediate pain. Dr. Krefft also testified that he did not see any possible way that the pliable Jelco catheter itself could have damaged something as tough as the median nerve. In addition, Dr. Krefft stated that in his seventeen years of private practice, he had never heard of any injury |incaused by withdrawing a Jelco. Again, if an injury occurred during removal, Dr. Krefft testified that Mr. Burns would have immediately displayed symptoms of injury. Finally, Dr. Krefft could not establish causation between Dr. Soler’s findings of 30 June 1997 and the results of the studies performed by Dr. Murra.

CMC presented abundant evidence to distinguish between the forearm and the antecubital fossa. First, Nurse Cooper testified that he specifically inserted the Jelco lock in the forearm, as reflected in his contemporaneous chart notation. Nurse Cooper had used the Jelco lock 4,000 to 5,000 times during his years working as a paramedic and nurse. He stated that on the rare occasions that he inserts a Jelco at the antecubital fossa, he notes “AC” in the chart, not “forearm,” as he did in the instant case. In his charting practice, the forearm and the antecubital fossa are two different regions altogether. Finally, he testified that he does not like to start a Jelco in the antecubital fossa because it gives the patient discomfort, can dislodge with movement, and infiltrate under the skin.

The charge nurse on duty at the time of the incident, Peggy Hartdegen, also testified that the practice at CMC is to chart the location at which a Jelco is started. If it is placed in the antecubital fossa, they chart “AC.” If it is in the hand or wrist, they specify the location. Usually, a Jelco is started in the forearm, which she described as two inches above the wrist to about two inches below the elbow. Like Nurse Cooper, Nurse Hartdegen testified that she prefers to insert a Jelco in the forearm rather than in the antecubital fos-sa for many reasons.

The distinction between the antecubital fossa and the forearm was corroborated by both Drs. Lutz and Krefft. Even Dr. Sumner testified that the antecubital fossa is a triangular location that extends from the crease of the elbow, In although he stated that the antecubital fossa is technically a portion of the forearm itself.

The burden of proof in a malpractice suit is governed La. R.S. 9:2794(A). A medical malpractice claimant carries a burden of proof that is two-fold. The plaintiff must establish by a preponderance of the evidence that the treatment was below the standard of care for particular specialties and a causal «relationship existed between the alleged negligent treatment and the injury sustained. Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991); Moore v. Wal-Mart, Inc., 98-1806 (La.App. 4 Cir. 3/10/99), 729 So.2d 187, writ denied, 99-0984 (La.5/28/99), 743 So.2d 669. In the instant matter, the parties stipulated to the fact that CMC breached the standard of care. The plaintiff, however, was still required to prove by a preponderance of the evidence that CMC’s breach caused the high median nerve neuropathy documented in his medical records.

The “manifest error — clearly wrong” standard of review applies in this case, which has been explained as follows:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous — clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice |12that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.”

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted; emphasis added).

While a trial court’s findings of fact may not be reversed absent manifest error or unless clearly wrong, this court has a constitutional duty to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. Because we have this duty, we must determine whether the trial court’s decision was clearly wrong based on the evidence, or clearly without evidentiary support. Id. The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, through Dep’t of Transp. and Dev., 92-1328 (La.4/12/93), 617 So.2d 880, 882. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that “if the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La.1991)) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)). However, as cautioned by the Supreme Court:

Notwithstanding the Court’s earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La.1993), it was not our purpose in that case to mandate that the trial court’s factual determinations cannot ever, or hardly ever be upset.

Ambrose, 93-3099, 93-3110, 93-3112 at p. 8, 639 So.2d at 221 (emphasis added).

The only evidence in the record which supports the trial court’s judgment is the testimony of Mr. Burns and his mother, who testified to the location of the Jelco lock at the antecubital fossa, Dr. Murra’s testimony that there is a causal relationship between the placement of a Jelco lock at the antecubital fossa and the nerve conduction study results, and Dr. Sumner’s testimony that such an injury was possible. This is the evidence on which the trial court relied, as well as the fact that the plaintiff never complained of a prior injury to his left arm to Dr. DiLeo before the incident in question.

All of the remainder of the evidence, however, favors the defendant. Nurse Cooper, the person who inserted the Jelco lock, testified that it was placed in the plaintiffs forearm and not the antecubital fossa. The medical records support this testimony. Both Drs. Lutz and Krefft testified that they had never known of an injury caused by a Jelco lock, whether while being inserted or removed. Further, [uall the medical testimony was to the effect that symptoms from a nerve injury would have manifested almost immediately, not a week or two later. In addition, the plaintiff saw Dr. DiLeo about two weeks after this incident and never mentioned an injury to his left arm during this visit or at any of fifteen appointments that followed. The court also takes note of the fact that while Ms. Thompson could not find a ride to take Mr. Burns to the hospital to remove the Jelco lock, she was able to take him there later that day to retrieve his car; curiously, Mr. Burns and Ms. Thompson did not seek medical attention despite their assertions that Mr. Burns was bleeding profusely before the lock was removed. Also, no indication exists that Mr. Burns kept his follow-up appointment the next day.

Finally, this court has carefully reviewed the surveillance tapes, which shows the plaintiff predominately using his left arm and hand to wash a car and pickup truck for over forty-five minutes, work on his car engine and jump out of the flat bed portion of a vehicle he was washing while pivoting on his allegedly impaired left hand. Despite his deposition testimony only one month earlier that he was severely restricted in his movements, Mr. Burns exhibited no restraint whatsoever in the use of his left arm and hand and showed no pain while performing these activities.

It is our considered opinion, after a careful, thorough, and thoughtful review of the testimony and objective evidence adduced in this case, that if the constitutional mandate of Article V, § 10, of the Louisiana Constitution, that this court review both fact and law is to have any meaning at all, the trial court’s judgment must be reversed and judgment rendered in favor of the defendant. The record in its entirety convinces the court that this is one of the rare cases in which |1fithe fact finder’s judgment is manifestly erroneous and contrary not only to the weight of the evidence, but also contrary to the objective evidence. Although two doctors were willing to testify to a causal relationship between the incident and the plaintiffs injury, their téstimony hinges on the Jelco lock having been placed in the antecubital fossa, or the crease of the elbow, and not the forearm, or the area two to three inches below the crease. The only testimony to support the placement of the Jel-co lock at the antecubital fossa is that of the plaintiff and his mother, whose testimony is called into serious question by their actions after the incident and the surveillance videotapes.

Consequently, we reverse the trial court and enter judgment in favor of the defendant. All costs of this appeal are assessed against the plaintiff.

REVERSED AND RENDERED.

      . The petition named UHS of New Orleans, Inc., individually, áPo/aJ, and Chalmette Medical Center, as defendants. UHS of New Orleans, Inc. was dismissed without prejudice by the trial court in the amended final judgment of 16 November 2001.

      . The parties dispute the exact location of the Jelco lock, which is a material issue in this case.

      . The Jelco lock itself is a small pliable plastic catheter. It is inserted into the vein by the use of a metal needle, which needle is then withdrawn and discarded. All that remains in the arm is about one-inch of the plastic catheter, through which medication and other fluids are administered. Nothing can flow through the Jelco lock if the metal needle is not removed. A Jelco lock can remain in the vein for up to 72 hours, per CMC regulations.

      . The trial testimony was that 12.5 milligrams of Demerol is one-half of the dose usually given for pain.

      . The record does not reflect whether Mr. Burns returned for his follow-up appointment.

      .Ms. Thompson drove the plaintiff to the hospital later that evening to retrieve his car, but they did not seek treatment or have medical personnel examine his arm.

      . Upon cross-examination, Dr. Murra was asked if the Jelco lock could have caused his findings of an injury if the lock was not started at the antecubital fossa. His reply was:
      It might. It might cause damage to that; I don't know... .Something caused it. I am not someone to say what caused that ... It could be the needle, perhaps; I don’t know.

      . We also note that Mr. Burns never complained to Dr. DiLeo of an injury to the left arm after the incident in question.


source: Caselaw Access Project

author: 1MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Leon A. RICKS.
    No. 2002-KA-1499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Harry F. Connick, District Attorney, C. Adriana White, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Karen G. Arena, Louisiana Appellate Project River Ridge, LA, for Defendant/Appellant.

      (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   1MICHAEL E. KIRBY, Judge.

This appeal concerns a resentencing only.

Leon A. Ricks was charged with possession of cocaine with intent to distribute on December 11, 2001. He was found guilty of distribution of cocaine after a jury trial on February 6, 2002. On April 29, 2002, after having reviewed a pre-sentence investigation report, the trial court sentenced the defendant to forty months at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence. The State filed a multiple bill charging the defendant as a second offender. Ricks admitted to his identity, and the trial court vacated the prior sentence and sentenced the defendant under La. R.S. 15:529.1 to serve ten years at hard labor, the first two years without benefit of probation, parole, or suspension of sentence under State v. Dor-they, 623 So.2d 1276 (La.1993). The State objected to the sentence because it was five years below the minimum mandated term. The trial court denied both the defendant’s and the State’s motions to reconsider sentence. The State filed a notice of intent to file an application for writs from the denial of its motion to reconsider the sentence. This Court granted the State’s writ application, vacated the sentence, and 12remanded the case for resen-tencing. State v. Ricks, 2002-1126 (La.App. 4 Cir. 7/10/02), 823 So.2d 441.

The facts as presented in the earlier appeal are as follows:

The State summarized the facts and attached the police report in order to show that the defendant was arrested during a joint investigation of NOPD officers and FBI agents. FBI undercover agents made narcotics purchases from known dealers. A vehicle with videotape equipment was deployed and used to record the actual transactions. The investigation occurred during July through September 2001. The transaction between the defendant and an undercover FBI agent was observed by officers and videotaped.

State v. Ricks, 2002-1126, pp. 2-3 (La.App. 4 Cir. 7/10/02), 823 So.2d 441, 443.

At the resentencing hearing on July 19, 2002, the defendant was resentenced to serve twenty years as a second offender; the first two years are to be served without benefit of parole, probation, or suspension of sentence.

In a single assignment of error, the defendant, through counsel, now argues that the twenty-year sentence is excessive. Ricks faced a sentencing range of fifteen to sixty years at hard labor, and he received five years more than the minimum sentence.

An appellate court reviews sentences for constitutional excessiveness under La. Const. Art. I, § 20. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment or is the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677. Although a sentence is within the statutory limits, the sentence may still violate |3a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).

At the resentencing hearing, the trial court stated:

We have to increase your sentence because of an Order from the Court of Appeal. I deviated from the mandatory minimum sentence by five years. I’m going to have to add those extra five years onto your sentence. Okay? .... I will again maintain my same position that the sentence is excessive. I think the sentence that I initially imposed does satisfy the crime ... you have committed and I also think it takes into account your criminal history. It should be noted that the prior felony conviction upon which they are relying to Multiple Bill this person is Possession of Marijuana Second Offense. He was found guilty of Distribution of Cocaine. .... Again, my initial thinking was that second offense Marijuana was not such a significant felony offense in that it merited the full range of the Multiple Bill brought here, and I therefore deviated to a lesser extent. The Fourth Circuit however says that I questioned the wisdom of the legislature in this Court. Of course I would never question the wisdom of the legislature. [Emphasis added].

Here the court told the defendant that five years would be added to his ten-year sentence so that the minimum term could be imposed. However, the defendant was then sentenced to twenty years rather than the minimum fifteen-year term. The court obviously misspoke when pronouncing the twenty-year sentence. The court’s reason for a lesser sentence that was offered at the first sentence hearing — that the underlying crime, second offense marijuana possession, is not significant — is reiterated. Clearly the court intended to impose the minimum term. In attempting to follow this court’s order, the court mistakenly increased the sentence by an extra five years to twenty years.

LAccordingly, because the sentence is not what the trial court specifically stated it would be, we vacate the sentence and remand the case for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . Under La. R.S. 40:967(B)(4)(b), the first two years of the sentence are without benefits; however, under La. R.S. 15:529.1(G), the entire sentence is without benefit of probation or suspension of sentence.


author: 1PATRICIA RIVET MURRAY, Judge.

text:
    Mrs. Tuat NGUYEN and Mrs. Chi Nguyen v. Mrs. Ngot TRAN.
    No. 2001-CA-1612.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.

      Randall A. Smith, Andrew L. Kramer, Smith & Fawer, L.L.P., New Orleans, LA, for Plaintiff/Appellee.
    Gerard G. Metzger, Julia P. McLellan, Gerard G. Metzger, APLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY).
   1PATRICIA RIVET MURRAY, Judge.

Defendant, Mrs. Ngot Tran, appeals the judgment of the trial court, which found her liable for negligent misrepresentation and awarded damages to the plaintiffs, Mrs. Tuat Nguyen and Mrs. Chi Nguyen. For the reasons that follow, we affirm.

Plaintiffs sued Mrs. Tran seeking rescission of an oral contract confected in April, 1998, whereby plaintiffs purportedly purchased from Mrs. Tran a business known as “Seafood City.” In their petition, plaintiffs alleged that as a result of Mrs. Tran’s fraudulent misrepresentation to them that she owned the business and other pertinent misrepresentations by her, they were evicted from the leased premises on which they were operating Seafood City in February, 1999, were forced to abandon the business, and suffered monetary damages.

The matter was tried to the district court without a jury on December 18-21, 2000. On March 22, 2001, with the parties present, the trial court dictated its judgment and extensive reasons for judgment into the record. The court found that the agreement between the parties was not subject to rescission on grounds of error Ror fraud, but held that it could be rescinded for negligent misrepresentation. Recognizing that the plaintiffs had derived some benefit from the contract, the court awarded $141,000 in damages against Mrs. Tran, which amount is equal to sixty percent of the amount the plaintiffs paid for the business.

There was significant disagreement among the parties as to the facts of this case both at trial and in the appellate court. Because we find no manifest error in the facts as determined by the trial court, we adopt those facts, which are as follows.

At a meeting in April 1998 at the home of Mrs. Tran, the parties entered into an oral agreement whereby the plaintiffs, Mrs. T. Nguyen and Mrs. C. Nguyen, agreed to purchase from Mrs. Tran for $245,000 the business known as Seafood City, including all its inventory and equipment. The business, located at 5769 Crowder Boulevard, had been in operation for two months. The trial court found that Mrs. Tran led the plaintiffs to believe that she owned the business. $235,000 of the agreed-upon price was ultimately paid, the bulk of it in cash, delivered to Mrs. Tran at her home in May of 1998; the payment also included two checks for $5,000 each made out to Mrs. Tran.

There were other people besides the plaintiffs and Mrs. Tran present at the April meeting, including the husband of plaintiff C. Nguyen, the brother of plaintiff T. Nguyen, and several members of Mrs. Tran’s family. The only written document given to the plaintiffs at the meeting was a copy of the lease for the premises; however, the lease was written in English, which the plaintiffs could not |3read. Mrs. T. Nuyen’s brother, who testified that he could read English “somewhat,” did not attempt to read the lease.

The lease, which was introduced into evidence, reflected that on September 1, 1997, for a period of sixty months, Mr. Scott Wolfe leased the premises at 5769 Crowder Boulevard to Twin’s Anchor, Inc. Twin’s Anchor, Inc. was, in fact, owned by the daughter and son-in-law of Mrs. Tran, Tami and Tuyen Nguyen. The lease provided for a total rental of $150,000 for the five-year term ($2,500 per month), required the lessee to escrow each month an amount equivalent to one-twelfth of the anticipated taxes for the year, and prohibited the lessee from subletting the premises without the written consent of the lessor. An addendum to the lease gave the lessor the exclusive right to put video poker gaming devices on the premises, and stated that if the lessee personally or his business failed to qualify for a video poker license within six months of operation, the rent would increase to $3,500 per month.

Despite the terms of the lease, the trial judge found that the plaintiffs in making the agreement relied on several assertions made by Mrs. Tran, whom they had known as a friend for many years. These assertions included that Mrs. Tran was the owner of the business; that she had or would obtain the landlord’s approval of the plaintiffs as sublessees; that video poker machines would be installed within a few weeks of the sale; and that she would personally handle the landlord and the lease obligations; that the business typically grossed $5,000 to $6,000 per day in Usales; and that all the equipment was in good working order and under warranty. The plaintiffs accepted these assertions without attempting to verify them.

Once the plaintiffs began operating Seafood City, they became dissatisfied because the sales never approached the level indicated by Mrs. Tran, the equipment broke down repeatedly, and no video poker machines were ever installed. Although Mrs. Tran’s witnesses claimed that she applied for the video poker license in July of 1998, it was never granted. Therefore, in October of 1998, the landlord, Mr. Wolfe, increased the rent to $3500 per month. Because during the time they operated the business, the plaintiffs paid the rent to Mrs. Tran who then paid Mr. Wolfe, the trial court found that “months went by” before the landlord realized that the premises had been sublet. On January 22, 1999, Mr. Wolfe sent a letter to Twin’s Anchor, Inc., stating that the rent was being increased by $400 per month to cover the property taxes. Plaintiffs refused to pay this amount, and testified that Mrs. Tran then agreed to pay the taxes. However, on February 25, 1999, Mr. Wolfe sent Mrs. T. Nguyen a certified letter informing her she was being evicted. Plaintiffs attempted to return the keys to Mrs. Tran, but she refused to accept them. Plaintiffs then left the keys at Mrs. Tran’s home and abandoned Seafood City, leaving the inventory and equipment in the store. Mrs. Tran’s son-in-law, Mr. Tuyen Nguyen, subsequently sold Seafood City, including the inventory and equipment, to Mr. Wolfe.

At trial, plaintiffs sought rescission of the contract and damages. Mrs. Tran argued that plaintiffs had no cause of action against her for rescission because there |Rwas no sale by her. She asserted that she could not have sold Seafood City to the plaintiffs because she did not own it; her daughter and son-in-law owned it, and she had merely negotiated the sale for them. The trial court found that because Mrs. Tran held herself out as the owner, rescission was an appropriate remedy. Nevertheless, the court held that the contract could not be rescinded on the ground of error, because it found the plaintiffs guilty of inexcusable neglect in failing to undertake even the most rudimentary investigation of Mrs. Tran’s assertions. Similarly, the court found that the contract could not be rescinded for fraud, as the law is that fraud does not vitiate consent to an agreement when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience or special skill. Although the jurisprudence recognizes an exception to this rule when there is a “relation of confidence” between the opposing parties, the trial court determined that no such relationship existed between the plaintiffs and Mrs. Tran ; therefore, the plaintiffs had a duty to attempt to ascertain the truth, which they could have done easily, before agreeing to purchase the business.

After holding that the contract could not be rescinded for error or fraud, however, the trial court concluded that it could be rescinded on the basis of negligent misrepresentation. The court found that because there was privity of | (¡contract between the parties, Mrs. Tran had a legal duty to provide correct information to the plaintiffs; that she breached that duty by making misrepresentations regarding the ownership, the lease, the level of sales, and the condition of the equipment of Seafood City; and finally, that her breach caused the plaintiffs to suffer damages, for which she was liable under Civil Code article 2315. Declining to award non-pecuniary damages, attorney fees or lost profits, the trial court assessed as damages sixty percent of the $235,000 paid by the plaintiffs for the business, or $141,000. The trial court reasoned that although the plaintiffs clearly had derived some monetary benefit from operating seafood City for eight months, they were nevertheless entitled to recoup the damages they incurred because of Mrs. Tran’s misrepresentations. The trial court specifically noted that the lower-than-expected level of sales combined with the higher rent and taxes made it economically unfeasible for the plaintiffs to continue to operate Seafood City and led to their ultimate eviction. Taking into account these factors, the trial court found that sixty percent of the purchase price was an accurate assessment of the damages due upon rescission of the contract.

On appeal, Mrs. Tran again contends that the plaintiffs’ action against her for rescission of the sale should have been dismissed as procedurally improper because she was not the owner of Seafood City, and the plaintiffs failed to sue the actual owner. She also argues that the trial court erred by holding that the plaintiffs were entitled to the contractual remedy of rescission based on the court’s finding of negligent misrepresentation, which is a tort; that the plaintiffs did not|7assert a claim for negligent misrepresentation; and that the trial court used an erroneous measure of damages. In response, the plaintiffs/appellees assert that the trial court’s judgment was correct in all respects.

Applying the law to the facts as found by the trial court, we affirm the result reached by that court, but for different reasons. Mrs. Tran claimed that she was merely negotiating the sale on behalf of her daughter and son-in law, the true owners of the business, and they did not dispute this claim. However, the trial court found that Mrs. Tran represented herself as the owner to the plaintiffs. These facts indicate that Mrs. Tran was acting as the undisclosed agent, or mandatary, of the owners. Therefore, this case is properly resolved by referring to the law of mandate expressed in the Louisiana Civil Code.

The law does not require the contract of mandate to be in any particular form. La. Code Civ. Art. 2993. Regarding an undisclosed mandate, article 3017 states:

A mandatary who contracts in his own name without disclosing his status as a mandatary binds himself personally for the performance of the contract.

This article affords the plaintiffs a cause of action against Mrs. Tran personally, thus refuting her primary arguments on appeal: that rescission of the contract is not an appropriate remedy as to her, and that rescission is not an appropriate remedy for negligent misrepresentation. By failing to disclose that she was negotiating the sale on behalf of a corporation owned by her daughter and son-in-law, Mrs. Tran became personally liable to | sdeliver the ownership of Seafood City to the plaintiffs, which she could not do. The plaintiffs were thus entitled to rescission of the contract.

With regard to damages, Mrs. Tran argues that because rescission was not an appropriate remedy, it was wrong for the trial court to base the award on a percentage of the purchase price paid by the plaintiffs. She also asserts that plaintiffs failed to introduce sufficient evidence to prove they suffered an economic loss in the amount awarded by the trial court.

Because we have concluded that rescission was an appropriate remedy, we reject Mrs. Tran’s first argument. Concerning the effect of rescission, Louisiana Civil Code article 2018 provides, in pertinent part:

Upon dissolution of a contract, the parties shall be restored to the situation that existed before the contract was made. If restoration in kind is impossible or impracticable, the court may award damages.

The trial court clearly stated that its award was based upon the amount of the purchase price paid by the plaintiffs, less any benefit they had derived from operating Seafood City for eight months. The trial court’s approach, therefore, was an attempt to restore the plaintiffs to the situation in which they were before they made the agreement with Mrs. Tran, as is contemplated by article 2018. Moreover, we do not find the amount awarded to be unreasonable in light of the evidence, and therefore, we reject Mrs. Tran’s argument that the award is abusively high and should be lowered.

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      . Significant to this determination, according to the trial court, was the fact that an uninterested witness testified that four years earlier, Mrs. Tran had tried to sell another Seafood City store, only revealing at the last minute that she was not the owner.

      . See Scott v. Bank of Coushatta, 512 So.2d 356 (La.1987).

      . See La. Civ.Code art.1954.

      . See Lupo v. Lupo, 475 So.2d 402; Garner v. Hoffman, 638 So.2d 324(La.App. 4th Cir. 1994); Smith v. Frey, 703 So.2d 751(La.App. 4th Cir.1997).

      . The effective date of Article 3017 is January l, 1998.


text:
    STATE In the Interest of K.T. & D.K.T.
    No. 2002-CA-2009.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 21, 2003.

      Hilliard C. Fazande, III, Orleans Indigent Defender Program, New Orleans, LA, for Appellant.
    Linda A. Mitchell, Staff Attorney, for DDS/OCS, New Orleans, LA, for Appellee.
    (Court Composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MAX N. TOBIAS JR.).
   1MAX N. TOBIAS, JR., Judge.

The appellant, Don T., appeals the judgment of 29 August 2002, wherein his parental rights over his two minor children were terminated. After reviewing the record, the applicable statutes, and relevant jurisprudence, we affirm the judgment of the trial court.

The minor children, K.T. and D.K.T., came into the custody of the State on 21 November 2001, following the death of their eleven-month old sibling, who was living in the home with their mother, Kimberly T. Kimberly T. was present in the home as the man with whom she resided repeatedly punched the child in the chest. Don T., the father of the children, was incarcerated at the time of the child’s death.

Don T. was convicted of manslaughter and sentenced to a term of eighteen years imprisonment on 6 January 1987. He was later paroled and fathered three children: D.K.T. (DOB: 3/2/97), K.T. (DOB: 10/1/99), and C.D.T. (DOB: | ¡,12/18/00). Since October 2000, Don T. has been incarcerated for drinking alcohol, in violation of his parole.

The children were first adjudicated as “in need of care” shortly after being removed from the home. The judgments in the record show that Don T. was notified of and present at the hearings regarding the children held on 27 November 2001, 20 December 2001, 28 January 2002, 19 March 2002, and 27 June 2002. At all hearings, it was stipulated that K.T. and D.K.T. were children in need of care.

A petition to terminate Don T.’s parental rights was filed by the State, Department of Social Services, Office of Community Services (“OCS”), under La. Ch.C. art. 1015(4), abandonment, and/or (6), extended incarceration. The Juvenile Court denied the petition under La. Ch.C. art. 1015(6), extended incarceration, and requested written memoranda regarding the effect of incarceration on abandonment. On 29 August 2002, the court terminated Don T.’s parental rights for abandonment under La. Ch.C. 1015(4). In doing so, the court stated:

I struggled with what was an issue for the Court on the intent, whether or not he intended to abandon his children, struggled with the fact that he was incarcerated, struggled with the issue of his plan and the State’s treatment of the person he identified as a potential placement. To the extent that there are issues in regard to that, I do not believe that they are issues that I can address in the context of this case. The identified caretaker and her — or anyone concerned about discrimination based on her age — is not an issue that I believe that I can address in this case. It may or not be an issue that is addressable somewhere else; I don’t believe that I can take it up here.
Based on the cases cited to me in the memoranda submitted to me by the State, I did not see a way in which I could maintain the parental rights of Mr. T[ ... ]. laThe cases indicate that going to jail, under the case law, is a voluntary act. When you do something that breaks the law, that is a voluntary act and that act then is the basis for why you don’t support your children and can’t visit, it’s sufficient to terminate your parental rights based on that, your voluntary act is going to jail. And in that regard, having read the material submitted, I did not see a way that I could avoid terminating the father’s rights and therefore that is my order.

Don T. filed this appeal and presents two assignments of error: that the trial court erred in finding that the State proved he had abandoned his children pursuant to La. Ch.C. art. 1015(4); and that the trial court failed to make a determination of any violation by the State of his 5th and 14th Amendment rights under the United States Constitution.

An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47.

The involuntary termination of parental rights is set forth in article 1015 of the Louisiana Children’s Code, which provides that the grounds set forth in the petition for termination must meet all of the conditions of any one of the enumerated paragraphs. State in the Interest of Latoya W., 97-0695 (La.App. 4 Cir. 2/4/98), 706 So.2d 688. The State is required to prove the grounds for termination by clear and convincing evidence. La. Ch.C. art. 1035(A). Although only one ground for termination need be established, the court must also find that termination is in the best interest of the child. La. Ch.C. art. 1039; State in the Interest of ML, 95-0045, p. 4 (La.9/05/95), 660 So.2d 830, 832.

In State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, the Supreme Court stated:

More than simply protecting parental rights, our judicial system is required to protect the children’s rights to thrive and survive. Furthermore, a child has an interest in the termination of rights that prevent adoption and inhibit that child’s establishment of secure, stable, long term, continuous family relationships. While the interest of a parent is protected in a termination proceeding by enforcing the procedural rules enacted to insure that parental rights are not thoughtlessly severed, those interests must ultimately yield to the paramount best interest of the children.

Id. at pp. 14-15, 719 So.2d at 452 (citations omitted; emphasis added).

Article 1015 of the Children’s Code provides in pertinent part:

The grounds for termination of parental rights are:
(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
* * *
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

Don T. was convicted of manslaughter, and on 6 January 1987, sentenced to eighteen years at hard labor. He was subsequently paroled and fathered three children, the first being born on 2 March 1997. On 10 August 2000, Don T. was arrested for drinking, a parole violation. Since his incarceration on the parole |Kviolation, Don T. testified that he has not had contact with his children, directly or through the OCS case manager. He also testified that he believed that he would be released in 2003 with “good time.”

Ms. Deneen Smith, the OCS case manager, testified that she was assigned to the Kimberly T. Don T. children. She filled out the two “Notices of Termination of Parental Law,” one for each parent. Once the forms were completed, she visited Don T. in jail and read the information with him and explained that the form was provided to incarcerated parents in order to develop a plan for his children. Don T.’s plan was for the children to be released from foster care, where they had been since being removed from their mother’s home, and live with their maternal great-grandmother, Dorothy T., or to the children’s great-aunt, Sharon T.

OCS determined that neither woman was a viable placement for the children. The maternal great-grandmother, Dorothy T., was disqualified due her advanced age coupled with the young age of the children, and for her involvement in another child abuse or neglect case. Ms. Smith also spoke to Sharon T., who expressed reservations in caring for the children. Ms. Smith then spoke with Don T. about alternative resources for the children, but he was unable to provide her with any other names for placement of his children.

Ms. Smith testified that she spoke to the Department of Corrections regarding Don T.’s release. She was informed that he was to remain in prison for another twelve years, the remainder of his sentence. She also stated that to her | ^knowledge, Don T. has not provided any type of financial support for the children since at least November 2001, a fact that was confirmed by the appellant.

Ms. Lynn Bikoi, a licensed clinical social worker, testified on behalf of the State. She has worked with the Kimberly T. Don T. children and issued various therapist reports. Ms. Bikoi testified that it was in the children’s best interests that the parental rights be terminated and that they be freed for adoption. However, she strongly recommended that the children be allowed continued contact with their maternal great-grandmother, with whom they visit twice a month.

We find that the State proved the elements of abandonment, one of the enumerated grounds for termination of parental rights, by clear and convincing evidence. It is undisputed that Don T. has not provided any financial support for his children for more than six consecutive months, or maintained any contact with his children whatsoever for more than six consecutive months.

With regard to the issue of Don T.’s inability to provide financial support to children due to his incarceration, our courts have held that a father’s obligation to support his children is not relieved by a jail term. “Courts will not grant relief from parental support obligations to a parent whose joblessness is his own doing.” Rivers v. Rivers, 511 So.2d 30, 31 (La.App. 3 Cir.1987). In Salazar v. Salazar, 582 So.2d 374, 375 (La.App. 4 Cir.1991), we stated:

It is well settled that a parent’s primary obligation is to support his children. LSA-C.C. Art. 227; Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). If a person becomes unable to provide child support by reason of 17circumstances beyond his control, relief will be granted. LSA-C.C. Art. 232; LSA-R.S. 9:304.1; Laiche, id. In determining child support awards, the court must consider the totality of the circumstances. Petrich v. Petrich, 430 So.2d 829 (La.App. 5th Cir.1983). However, a parent will not be relieved of his primary obligation to support his children because of his financial condition brought upon himself. Duhe v. Duhe, 466 So.2d 595 (La.App. 5th Cir.1985). Imprisonment may not be used as an excuse to escape financial consequences of the father’s own voluntary actions. Vidrine v. Vidrine, 567 So.2d 811 (La.App. 3rd Cir.1990); Rivers v. Rivers, 511 So.2d 30 (La.App. 3rd Cir. 1987); Alexander v. Alexander, 417 So.2d 92 (La.App. 3rd Cir.1982). [Emphasis added.]

Although these cases involved the payment of post-divorce child support, the same principle applies to the instant matter. Don T.’s violation of his parole was a voluntary act. From his continuous failure to financially provide for his children for more than six months or have any contact with them through the OCS case manager, the trial court was entitled to find that he was “demonstrating an intention to permanently avoid parental responsibility.” This is a factual finding that is reasonable under the circumstances presented, and is neither manifestly erroneous nor clearly wrong. In addition, the uncontroverted testimony is that a termination of parental rights is in the children’s best interest. Consequently, we find this assignment of error to be without merit.

The appellant’s second assignment of error involves the trial court’s failure to determine whether the State violated his 5th and 14th Amendment rights under the United States Constitution by refusing to place the children with Dorothy T. due to her advanced age. Don T. argues that the State violated his due process rights by interfering in his fundamental interest in the care, custody, and management of his children.

8In response, the State contends that the existence of relatives is generally irrelevant to the termination of parental rights, citing State in the interest of C.J.K., 2000-2504, p. 12 (La.11/28/00), 774 So.2d 107, 116-17. That, the State argues, is relevant only to the trial court’s approving placement in the underlying “child in need of care” case, pointing out that Don T. had the opportunity to appeal OCS’s findings that the relatives were inappropriate placements in lieu of foster care in those earlier hearings. We agree.

Further, we note that the trial court terminated the appellee’s parental rights for abandonment, not extended incarceration. The existence of a reasonable plan for the appropriate care of the children, other than foster care, applies only when the grounds for termination is for extended incarceration, but is not a relevant factor when determining whether abandonment has occurred.

Based on the foregoing, we affirm the. trial court’s judgment terminating the parental rights of Don T.

AFFIRMED.

      . Because this matter is juvenile in nature, in order to protect the privacy of the parties, the initials of the last name of the parties are used in lieu of their full names

      . The court terminated the parental rights of the mother, Kimberly T., on 8 August 2002. She did not appeal that judgment.

      .The appellee filed a motion to expedite appeal in this matter. This case was docketed for 11 February 2003. By our prompt rendition of our decision, we grant the appellee’s motion.

      . The mother, Kimberly T., named the same two women as possible placements for the children.

      . The record reveals that Dorothy T. was 73 years old at the time of the hearing. In addition, her involvement in another case concerned a failure to care for her grandchildren who lived next door to her.

      .Because the trial court did not find sufficient evidence to support termination due to the appellant's incarceration, La. Ch.C. art. 1015(6), we need not discuss the length of Don T.’s remaining prison term or whether he "failed to provide a reasonable plan for the appropriate care of the child other than foster care.” Id.

      . We note, as did the trial court, that OCS would not allow the children to visit Don T. in jail. However, that did not prevent him from contacting them through the OCS worker, which he did not attempt to do.


text:
    The COUNCIL OF The CITY OF NEW ORLEANS v. ALL TAXPAYERS, PROPERTY OWNERS, Citizens of the City of New Orleans and Non-Residents Owning Property or Subject to Taxation Therein, et al.
    No. 2003-CA-0189.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2003.
    Writ Denied April 4, 2003.

      Albert A. Thibodeaux, Chief Deputy City Attorney and Harold B. Judell, Wayne J. Neveu, Meredith L. Hathorn, 0. Ray Cornelius, Foley & Judell, L.L.P., New Orleans, LA, and David E. Henderson, Foley & Judell, L.L.P., Baton Rouge, LA, for Plaintiff/Appellee.
    Cameron C. Gamble, Cameron C. Gamble, A PLC, and Michael A. Duplantier, and Camille Jones Strachan, New Orleans, LA, for Defendants/Appellants.
    Court composed of (Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   1PATRICIA RIVET MURRAY, Judge.

Defendants, a group of taxpayers, property owners and residents of New Orleans, appeal the district court’s granting of the motion for judgment filed by the Council of the City of New Orleans [hereinafter “the City Council”] pursuant to the “Bond Validation Act” (La. R.S. 13:5121 et seq.), which motion sought to have the court declare valid a proposed bond issue prior to the marketing of the bonds. For the reasons that follow, we affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On November 25, 2002, the City Council filed its Motion for Judgment seeking a judicial declaration of the validity of the November 22, 2002, Bond Resolution authorizing the incurrence of debt and the issuance of a maximum of twenty million dollars of “Sales Tax Increment Revenue Bonds” [“the Bonds”] for the purpose of financing a proposed economic development project, as authorized by La. R.S. 33:9033.3 (part of the “Cooperative Economic Development Law,” La. R.S. 33:9020, et seq.). In its motion, the City Council asserted that it had previously adopted Ordinance Calendar No. 24,036, which had established the | ^boundaries of an economic development area known as the St. Thomas Development District [“the District”] and had declared the construction of a new mixed-income housing project [“the Projection the site of the former St. Thomas public housing project to be an “economic development project” within the meaning of La. R.S. 33:9033.3(M). Further, the City Council asserted that it had, by Ordinance Calendar No. 24,072, determined the sales tax increment to be used in financing the aforementioned Bonds to be the City’s 2.5 percent share of the sales tax, as defined in R.S. 47:301 et seq., collected annually in the District. As asserted in the Motion, the Bonds are to be limited obligations of the City secured solely from this increment of the sales tax paid solely by the Wal-Mart store (or any replacement or successor retailer) expected to occupy the District. Terming the project a cooperative endeavor among the City, HANO (the Housing Authority of New Orleans) and HRI (Historic Restoration Incorporated for the Housing Authority of New Orleans St. Thomas Development), the City Council asserted that it had adopted, by Ordinance Calendar Nos. 24,465 and 24,480, the “Development Agreement” to further provide information relative to the use of the proceeds of the Bonds for the Project. Therefore, the City Council moved that the court establish the validity of the Bonds, the Bond Resolution, the aforementioned Ordinances, the Development Agreement, and certain related documents (the “Project Documents”) according to the procedure set forth in the Bond Validation Act.

Is As prescribed in La. R.S. 13:5123-5124, the Motion for Judgment was served on all taxpayers, property owners and residents of the City by means of publication in the Times-Pieayune. Defendants herein filed an Answer, Reconventional Demand, and Exceptions of prematurity, vagueness, and failure to state a cause of action. In accordance with the expedited procedure outlined in La. R.S. 13:5126, a hearing was held in the district court on January 2 and January 6, 2003. The court overruled the exceptions from the bench. At the conclusion of the hearing, the court expressed its intention to grant the City Council’s Motion for Judgment and gave reasons. On January 8, 2003, the court rendered written judgment declaring valid and legal the Bonds (and all other related documents listed in the Motion) and decreeing, pursuant to La. R.S. 13:5129, that its judgment (in the absence of reversal on appeal) was conclusive and forever binding and constituted a permanent injunction against any future challenge to the validity of the Bonds.

From that judgment, defendants have taken an expedited appeal as provided in La. R.S. 13:5128. Defendants assert seven issues on appeal, which we address separately.

DISCUSSION

I. Whether the City Council produced sufficient evidence to meet its burden of proof

In this assignment of error, defendants argue that the City Council’s failure to produce certain documents should have precluded the court from validating the Bonds. Specifically, defendants contend that the City Council failed to introduce |4into evidence the “Supplemental Resolution” (referred to in the Bond Resolution), the Development Agreement, and the Project Documents.

The Bond Validation Act is silent as to what evidence or what type of evidence must be introduced by the governmental entity in order to meet its burden of proof; however, the Act does provide that

No court in which a proceeding to invalidate or sustain bonds is brought shall invalidate the bonds unless it find substantial defects, material errors and omissions in the incidents of such bond issue. Matters of form shall be disregarded.

La. R.S. 13:5130 (emphasis supplied).

Defendants argue that the absence of the aforementioned documents constitutes a material error or omission. This argument is neither accurate nor persuasive.

Contrary to defendants’ assertion, the “Project Documents” and the “Development Agreement,” as those terms are defined in the Motion for Judgment, were attached as exhibits to the City Council’s memorandum in support of its motion, and were therefore considered by the district court and are part of this court’s record. In view of the nature of the hearing and the stipulation in La. R.S. 13:5130 that matters of form are to be disregarded, whether each of these documents was formally introduced into evidence is immaterial. Moreover, we agree with the trial court that the documents in the record sufficiently describe the project, the source of funds, and all other material issues relevant to the Bonds. The fact that subsidiary documents detailing certain aspects of the project have yet to be created should not | ¡^preclude judicial validation of the Bonds at this time, considering that the purpose of the Bond Validation Act is “to provide a uniform, expeditious and equitable procedure ... for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination ... is necessary to insure the marketability of bonds in investment channels. La. R.S. 13: 5122 (emphasis supplied).

With regard to the “Supplemental Resolution,” the district court correctly determined that its absence is of no consequence because it can only be executed upon the actual sale of the bonds. The contemplated supplemental resolution, referred to generally in the Bond Resolution, will be executed in the future to establish the “specific interest rates and principal' maturities, etc.” of the Bonds at the time of pricing and sale. One of the express purposes of the bond validation procedure is to allow the governmental entity to market the bonds to prospective bondholders by means of an offering circular or private placement memorandum which must contain no material misstatements or omissions; the judicial validation allows the bonds to be marketed without a cloud of uncertainty. Following their marketing, it is anticipated that the Bonds will be awarded to a purchaser pursuant to a supplemental resolution that fixes the final terms of the bonds within the parameters of the initial authorization. The absence of such a supplemental resolution at this point is therefore expected, and should not defeat the bond validation.

We therefore reject this assignment of error.

| fiII. Whether the district court erred by denying defendants’ request for discovery

Defendants contend that their constitutional right to procedural due process was denied when the district court refused to grant their motion for adjournment to permit further discovery. Defendants served the motion on the City Council on the morning of the hearing, accompanied by a Request for Admissions and Supplemental Interrogatories and Request for Production, which were proffered after the court refused to adjourn the hearing to allow time for the City Council to respond to the discovery request.

There is no constitutional right to discovery; discovery is a statutorily created privilege. See La. Code Civ. Pro. arts. 1421 and 1422. It is well established that trial courts in Louisiana have broad discretion in regulating pretrial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Central Railroad Company, 93-0783 (La.1/14/94), 631 So.2d 401, 406. In the instant case, the district court had to balance the defendants’ need for further discovery against the expedited nature and limited scope of the bond validation proceeding.

The record reflects that the district court judge made reasonable decisions with regard to discovery. The trial court was cognizant of the fact that some of the documents sought by the defendants through discovery did not yet exist, whereas other information could have been obtained by referring to the public records of the City Council’s prior proceedings; none of the information sought, however, was essential to the bond validation procedure. Although the court refused to adjourn the matter entirely to |7permit general discovery, the judge did continue the hearing for several days to give the defendants an opportunity to investigate a particular allegation of the City Council which they challenged: that no portion of the sales tax revenue to be used for the Bonds had been previously dedicated to a special purpose. In that instance, when the hearing reconvened, the defendants admitted that they had found no evidence of a previous dedication other than to “general municipal purposes,” and therefore they stipulated to that fact.

Having thus determined that the documents submitted by the City Council were sufficient to establish the legality of the Bonds and the security for the Bonds, the district court decided that no further discovery was necessary or appropriate. After reviewing the record and the proffered evidence, we cannot say the district court abused its discretion in this regard. We therefore reject this assignment of error.

III. Whether the Bonds violate La. R.S. 33:9033.3 by misusing public funds previously dedicated for a special purpose and/or by impairing existing obligations of the City

La. R.S. 33:9033.3, the so-called “TIF statute,” is a provision of the Economic Development Law that allows municipalities to fund economic development projects by issuing revenue bonds payable or secured by a pledge of “sales tax increments,” which are defined as that portion of the designated sales tax (as defined by La. R.S. 47:301), collected each year from taxpayers within an economic development area, which exceeds the designated sales tax revenues that were collected in the year immediately prior to the year in which the area was designated as an economic development area. The TIF statute also provides that dedication of sales tax increments to pay revenue bonds “shall not impair existing obligations and Lshall not include tax revenues previously dedicated for a special purpose-” La. R.S. 33:9033.3(A).

Defendants stipulated at the hearing that the designated sales tax has not been previously dedicated for a special purpose other than for “general municipal purposes,” which is the only limitation on expenditure of sales taxes contained in the ordinances authorizing the collection of those taxes by the City of New Orleans; nevertheless, defendants argue that this limitation amounts to a dedication “for a special purpose” within the meaning of La. R.S. 33:9033.3.

The district court summarily rejected this argument, and we find no error in that conclusion. Louisiana Civil Code article 11 provides that the words of a law must be given their generally prevailing meaning. Despite defendants’ attempts to convince us otherwise, we believe that the phrase “general municipal purposes,” connotes any purpose that will generally benefit the municipality, and clearly does not equate to a “special purpose,” such as the dedication of certain taxes to fund the Regional Transit Authority or the public schools. We therefore agree with the district court that the defendants failed to show that the dedication of the designated sales tax increments to finance the Bonds either impairs any existing obligation of the City or includes tax revenues previously dedicated for a special purpose.

Accordingly, we reject this assignment of error.

IV. Whether the City failed to comply with the requirements of the TIF statute, which are prerequisites to validation of the Bonds

In an argument raised for the first time in this court, the defendants contend the City Council has failed to comply with certain requirements of | athe TIF statute, namely, the requirement to create an “economic development plan” and to execute a “cooperative endeavor agreement.” This argument fails for two reasons.

First, under La. R.S. 33:9033.3(K), a municipality is authorized to carry out certain purposes of the Economic Development Law without creating an economic development corporation, and any municipality that creates a sales tax area and issues revenue bonds pursuant to the TIF statute is specifically exempted from the requirements of La. R.S. 33:9023-9026, which include the requirement to formulate an “economic development plan.” Therefore, the City is exempt from this requirement.

Secondly, although the terms “economic development plan” and “cooperative endeavor agreement” appear in various other sections of the Economic Development Law, neither are mentioned in the TIF statute (La. R.S. 33:9033.3). More importantly, defendants have not cited any authority to support their assertion that either an economic development plan or a cooperative endeavor agreement is a prerequisite to judicial validation of these Bonds.

We therefore reject this assignment of error.

V. Whether the TIF statute is unconstitutionally vague and, therefore, invalid

Defendants argue that La. R.S. 33:9033.3 is unconstitutionally vague and indefinite because it fails to adequately define its terminology, which allows an “arbitrary and capricious interpretation and implementation of the statute by local governing authorities.” Specifically, defendants contend that Imthe statute is unconstitutionally vague because it fails to adequately define the term “economic development.”

Unless the fundamental rights of a person are involved, legislative acts are presumed to be constitutional. Board of Directors of the Louisiana Recovery District v. All Taxpayers, 529 So.2d 384, 387 (La.1988). This presumption is especially forceful in the case of statutes enacted to promote a public purpose, such as those relating to taxation and public finance. Id. The party attacking such a statute has the burden of showing clearly that the legislation is invalid or unconstitutional, with any doubt to be resolved in favor of constitutionality. Id. This court has held that a law may be impermissibly vague if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so he may act accordingly, or if it does not provide a standard to prevent arbitrary and capricious application. Inter Urban Bar Association of New Orleans v.City of New Orleans, 93-1006, p. 2 (La.App. 4 Cir. 3/16/95), 652 So.2d 1038, 1040.

La. R.S. 33:9033.3(M) states, in pertinent part:

For the purposes of this Section, the term “economic development project” shall mean and include, without limitation, any and all projects suitable to any industry determined by the municipality ... to create ecpnomic development. Economic development projects shall include, without limitation, the following industries:
(1) Industrial, manufacturing, and other related industries.
(2) Housing and related industries.
(8) Any other industry determined by the municipality ... whose assistance will result in economic development.

InWe do not find the term “economic development,” as used in this section, to be so vague that a person of ordinary intelligence would not understand its meaning, or so broad that it allows for an arbitrary and capricious application. Moreover, because “housing” is specifically included in the above definition, it is unquestionable that a mixed-unit housing development, which is the specific project to be financed by the instant Bonds, would be considered economic development under the TIF statute. Therefore, we find that the defendants have failed to meet their burden of proving that the TIF statute is unconstitutionally vague.

We reject this assignment of error.

YI. Whether the City Council has failed to establish a “public purpose” for the issuance of the bonds, as required by Louisiana Constitution Article VII, Section 14

Defendants argue that the validation of the Bonds is in violation of the “public purpose” clause of the Louisiana Constitution because the City Council is using the Bonds as a means of diverting public funds to benefit private entities. Article VII, Section 14(A) of the Constitution provides that the funds of the state or of a political subdivision “shall not be loaned, pledged or donated to or for any person, association, or corporation, public or private.”

Defendants’ contention that the project to be financed by the Bonds violates this Section because it will benefit private persons and entities ignores the fact that the Project, as proposed, will also benefit the public by stimulating the economy and by providing affordable public housing for low-income families. Section 11S14(B) of Article VII provides exceptions to the prohibition of Section 14(A). It provides, in pertinent part:

(B) Authorized Uses. Nothing in this Section shall prevent (1) the use of public funds for programs of social welfare for the aid and support of the needy

Because it will provide public housing, the Project fits within the above exception as a program of social welfare, and therefore promotes a public purpose. Moreover, Section 14(C) of Article VII specifically authorizes cooperative endeavors, such as the contemplated project:

(C) Cooperative Endeavors. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual.

Accordingly, we find that the defendants failed to establish that the project to be financed by the Bonds is in violation of Article VII, Section 14 of the Louisiana Constitution.

We therefore reject this assignment of error.

VII. Whether the TIF Statute is unconstitutional as applied because it confers unequal privileges and financial advantages on purely private interests

Again, defendants argue that the TIF statute, La. R.S. 33:9033.3, is unconstitutional because it allows the diversion of public funds to private interests in violation of the aforementioned Article VII, Section 14, of the Louisiana Constitution. As we noted above, Section 14(C) of that Article specifically authorizes cooperative endeavors between political subdivisions and private entities. Defendants have not produced sufficient evidence to rebut the presumption of constitutionality of the statute. We have found no authority to suggest that the constitutional requirement of a public purpose for public funds 113necessarily excludes any co-existing benefit to private parties. While the defendants may strenuously disagree that the project to be financed by the instant Bonds will benefit the community, they have been unable to show that the intention or objective of benefiting the community does not exist as the impetus for the project, or that the project lacks a “public purpose.”

We therefore reject this assignment of error.

CONCLUSION

Accordingly, for the reasons stated, we find that the district court did not err in granting the City Council's motion to validate the Bonds, and we affirm the district court’s judgment.

AFFIRMED.

      . Defendants also asserted a Third Party Demand against the Louisiana State Bond Commission seeking to invalidate its approval of a resolution authorizing the Bonds, but the demand was never served.

      . The document referred to as the “Development Agreement!’ is actually entitled "Third Amendment and Intervention to Development Agreement,” which amends certain prior agreements adopted by the City Council and which expressly anticipates that further, more detailed documents, subsequently, will be created to complete the agreement among the City, HANO, and HRI.

      . Although this argument was not made to the district court, we consider it here for purposes of judicial economy.

      . The Project specifications call for a minimum of 122 public housing units out of 296 total units to be built in Phase I, and approximately 60 public housing units in Phase II.


author: 1CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Sherlita HOLMES.
    No. 2002-KA-2263.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.

      Eddie J. Jordan, Jr., District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defen-danVAppellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MAX N. TOBIAS JR.).
   1CHARLES R. JONES, Judge.

Sherlita Holmes appeals her conviction and sentence for attempted possession of cocaine as a third felony offender. She was sentenced to twenty months imprisonment without the benefit of parole, probation or suspension of sentence. We affirm.

The State filed a bill of information charging Holmes with one count of possession of cocaine, a violation of La. R.S. 40:967(C). She was sentenced as a third felony offender, a violation of La. R.S. 15:529.1. Trial occurred before a six-person jury which returned a responsive verdict of guilty of attempted possession of cocaine. The district court sentenced Holmes to serve twenty months at hard labor. The State filed a multiple bill, charging her as a third offender. At the multiple bill hearing, the district court found her to be a multiple offender, vacated the original sentence, and resentenced her to twenty months at hard labor. This timely appeal followed.

Officers Michael Washington and Octavio Baldassaro, testified that they were assigned to the Fourth District of the New Orleans Police Department on March 2, 2002, and were patrolling in a marked unit in the Fischer Housing Development when they observed a vehicle with no visible license plate. They [^testified that the car was occupied by four persons; Holmes was a passenger in the back seat on the driver’s side. The officers elected to conduct a traffic stop based on their inability to observe a license plate. Officer Baldas-saro testified that as he exited the vehicle he saw Holmes throw an object out of the window onto the ground. He immediately retrieved the object, which did not have any debris on it, and saw that it was a clear, plastic bag containing what appeared to be powdered cocaine. Holmes was then arrested.

Officer Washington testified that he did not see Holmes throw anything out of the window because he was focused on approaching the passenger side of the stopped vehicle. He was particularly focused on the passenger in the front-seat because that passenger had been looking over his shoulder nervously and had reached under the seat as if he were concealing a weapon. At the same time, the woman sitting on the rear-passenger side had stiffened and was sitting rigidly. Based on their actions, Officer Washington had directed these passengers to exit the car and searched under the front seat. However, no contraband or weapons were discovered.

Both Officer Washington and Officer Baldassaro testified that the building nearby had spotlights. In addition, the police vehicle lights illuminated the scene to the point that it was almost daylight. Officer Washington also testified that, although only Holmes was arrested in connection with the drugs, all four persons in the vehicle were arrested for criminal trespass on the grounds that not one of them was a resident of the housing project. The driver of the vehicle was also given traffic citations for the license plate violation and for having passengers who were not wearing seatbelts.

1 .-¡Glenn Gilyot, who was stipulated to be an expert in the analysis of narcotics, testified that he tested the substance in the plastic bag, which was identified by Officer Baldassaro as the one he retrieved from the scene, and that it tested positive as cocaine.

A review of the record reveals no errors patent.

In her sole assignment of error, Holmes argues that she was unfairly prejudiced when the State was not prevented from showing her “rap sheet” to a witness, and repeatedly mentioning that she had been arrested for criminal trespass at the same time she was arrested for possession of cocaine in this matter.

La. C.E. article 404 provides that evidence of other crimes, acts or wrongs is generally not admissible. When a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, upon request of the defendant, the defendant’s remedy is a request for an admonition or a mistrial pursuant to La.C.Cr.P. art. 771. The remark or comment must constitute an unambiguous reference to other crimes. State v. Lewis, 95-0769, p. 7 (La.App. 4 Cir. 1/10/97), 687 So.2d 1056, 1060. On request, the trial court shall admonish the jury to disregard such remark or comment. La.C.Cr.P. art. 771. Upon motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. Id. The granting of a mistrial under La.C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515, 522 (La.1982); State v. Allen, 94-1895, p. 9 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, 1085. Mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the defendant. |4 The determination of whether prejudice has resulted lies within the sound discretion of the trial court. Id. A trial court’s ruling on whether or not to grant a mistrial for a comment by a police officer referring to other crimes evidence should not be disturbed absent a clear abuse of discretion. State v. Manuel, 94-0087, 94-0088, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 489, 491.

Holmes’ arrest for criminal trespass was discussed at length during cross-examination of Officer Washington. During that examination, defense counsel was attempting to exploit possible discrepancies and omissions in the police report including that all four occupants of the vehicle were arrested for trespass. Yet, this information was not reflected in the police report which had been given to the defense in connection with this particular case. Holmes does not argue that these references to her criminal trespassing arrest were so prejudicial that reversal of her conviction is appropriate. Instead, she argues that the State went too far when it introduced her rap sheet.

The first reference to a rap sheet occurred during the State’s redirect examination of Officer Washington, and was apparently meant to rebut the defense’s focus on the inadequacy of the police report prepared in connection with the incident. Officer Washington was asked if an arrest is documented anywhere for each individual. He replied, “They will all be documented. That’s what causes us to have the rap sheet.” Officer Washington then explained that a rap sheet results “every time someone is arrested.” At that point defense counsel interposed his objection that any testimony regarding rap sheets would be irrelevant. The prosecutor responded by stating that she was inquiring about arrests which the defense was disputing in this case. Defense counsel argued that arrests of persons who are not present are “not relevant,” and thus any reference to their rap sheets |fiwas improper. The district court overruled that objection, and Officer Washington was allowed to describe a “motion history” and “rap sheet” as follows:

As I was saying, the item numbers would — it would go through motions and it’ll show that on a certain day at a certain time that this person was arrested for a certain violation.

It was at this time that the State introduced, strictly for record keeping purposes (and not shown to the jury), exhibit S-5, which the State referred to only as a “rap sheet”. Defense counsel immediately requested a bench conference off of the record. When the parties resumed on the record, the prosecutor asked Officer Washington whose name was on the rap sheet, and the defense objected and moved for a mistrial. The defense argued that only convictions could be introduced at trial. The district court overruled the objection and denied the request for a mistrial. Officer Washington then testified that Holmes’ name was on the rap sheet and that there was an arrest for trespassing on March 2, 2002. No other testimony regarding arrests on the rap sheet was elicited.

Although Holmes contends that the identification of the rap sheet was a reference to other crimes, this Court has held that a generalized reference to a criminal history file is not an unambiguous reference to other crimes. State v. Bonnee, 02-0637 (La.App. 4 Cir. 8/28/02), 826 So.2d 1187. In Bonnee a police officer testified that he obtained the identification line-up photograph of the defendant from a criminal history file. In discussing whether the district court should have granted a mistrial or admonished the jury, this Court stated:

That comment, although unfortunate, does not constitute the type of egregious reference to specific “other crimes” that would deprive the defendant of any reasonable expectation of a fair trial. Therefore, the trial court did not err in denying the motion for mistrial.
| (/Third, Bonnee argues that the trial court erred in failing to admonish the jury to disregard the police officer’s testimony that he obtained a photograph of Bonnee from a criminal history file. Pursuant to La.C.Cr.P. art. 771, admonishment is triggered only “upon the request of the defendant or the state.” La.C.Cr.P. art. 771; State v. Tribbet, 415 So.2d 182, 185 (La.1982). Neither the defendant nor the state made a request for an admonishment. Therefore, this assignment is without merit.
Assuming arguendo that a request under La.C.Cr.P. 771 had been made, an admonishment would not be necessary unless the remark constituted an unambiguous reference to another crime. State v. Dillion, 99-2175, p. 8 (La.App. 4 Cir. 9/6/00), 770 So.2d 13, 19, writ denied, 2000-2815 (La.9/14/01), 797 So.2d 50, citing, State v. Hayes, 414 So.2d 717 (La.1982). The comment referenced no particular crime by Bonnee and referred only [to] “a criminal history file,” not “Bonnee’s criminal history file.” The statement, while unfortunate, was ambiguous and did not mandate an admonishment. It was, in the words of the Louisiana Supreme Court “nothing more than- an obscure reference to other crimes ... made without explanation or elaboration”, and an admonishment would have focused the jury’s attention on the other crimes issue. State v. Tribbet, 415 at 185. The trial court did not err in failing to admonish the jury, and this assignment is without merit.

Bonnee, pp. 7-8, 826 So.2d at 1191-92.

Here, although Holmes’ rap sheet was shown to Officer Washington, he was asked only to confirm her arrest for criminal trespass which had been an integral part of the instant offense, and about which testimony had already been unob-jected to. Furthermore, the defense through its cross-examination of Officer Washington had first raised the issue of documentation pertaining to the incident and the arrests or non-arrests of the people involved, thus opening the door for the State to present testimony relative to the documentation of arrests. More importantly, however, there was no testimony or reference to any arrests of Holmes other than the two offenses arising from the incident for which she was on trial; possession of cocaine Land criminal trespass. Thus, even if the State should not have been allowed to physically show Holmes’ rap sheet to the witness, the district court did not err in refusing to grant Holmes’ request for a mistrial. The jury did not view the rap sheet, and obviously the jury was well aware of the fact that Holmes had been arrested for the instant offense and had a rap sheet. Furthermore, at no time did the defense ask that the jury be admonished to disregard the evidence of Holmes’ arrest for criminal trespass. This assignment of error lacks merit.

Decree

For the reasons above indicated, the conviction and sentence of Sherlita Holmes is hereby affirmed.

AFFIRMED.