author: MARION F. EDWARDS, Judge.

text:
    Walter J. BAUDIER, Jr. v. Patrick CHERON, James C. Cheron and Patricia Cheron, individually and as the Parents of Patrick Cheron, and ABC Insurance Company; Matthew Scalco, Steven A. Scalco, individually and as the Father of Matthew Scalco, and XYZ Insurance Company; Mark Levy, John Doe, individually and as the Father of Mark Levy, and CDE Insurance Company.
    No. 04-CA-5.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      J. Michael Grimley, Jr., Anthony S. Maska, New Orleans, LA, for Plaintiff/Ap-pellee.
    John E. McAuliffe, Jr., Metairie, LA, for Defendani/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

Defendants/Appellants seek reversal of a jury verdict which awarded plaintiff $150,000.00 in general damages and $365,000.00 for mental anguish, arising from an incident in which defendant intentionally shot the plaintiff. For the following reasons, the jury’s verdict is affirmed.

FACTS AND PROCEDURAL HISTORY

On May 17, 1999, Walter Baudier (“Bau-dier”) was on the premises of the Metairie Country Club in Jefferson Parish for the purpose of playing a round of golf with an associate. During the game, Baudier heard a gun shot and immediately felt pain in his left hip as a bullet entered his body. As Baudier fell to the ground, he heard two more gunshots being fired. He thereafter witnessed the shooter run toward a red vehicle and speed away.

The physical injuries that Baudier suffered included a hole in his pelvic bone, and bullet fragments near his colon that can not be removed. Thereafter, Baudier also underwent weekly counseling to cope with psychological trauma that he endured as a result of the shooting.

Several months later, the individual who shot Baudier was identified as Patrick Cheron (“Cheron”), a minor. After his arrest, Cheron admitted to the shooting and further revealed that he shot Baudier as the result of a bet with a friend, Mark Levy. On the day of the shooting, Cheron was accompanied by Matthew Scalco, who ultimately drove the vehicle Cheron fled in. Scalco and Levy were also arrested and charged for their alleged involvement in the incident as well.

On May 16, 2000, Baudier filed suit in the Twenty Fourth Judicial District Court for the Parish of Jefferson against Patrick Cheron, his parents, James and Patricia Cheron (“the Cherons”), and them homeowners insurer, State Farm Fire and Casualty Company; Matthew Scalco, his father, and their insurer, and; Mark Levy, his father, and their insurer. The Scalcos and the Levys settled with Baudier prior to trial.

A jury trial began on May 12, 2008, during the course of which Baudier dismissed his claims against Patrick Cheron, individually, and also dismissed “negligent supervision claims” against Cheron’s parents. On May 16, 2003, the jury found that Patrick Cheron was 75% at fault, and Matthew Scalco was 25% at fault for Bau-dier’s injuries that resulted from the shooting. The jury further awarded Bau-dier $150,000.00 for “past and future physical pain and suffering and disfigurement”, $365,000.00 for “past and future mental anguish,” and $25,740.11 for past and future medical expenses.

It is from these awards that the Cherons have timely filed the present appeal.

LAW AND ANALYSIS

On appeal, the Cherons assert that the amounts awarded by jury for physical and mental pain and suffering were both excessive and constituted manifest error.

A jury verdict is a factual finding and cannot be disturbed on appeal unless the trial court committed manifest error or a finding of fact is clearly wrong.

In regard to Baudier’s physical pain and suffering, the jury was presented with the following testimony and evidence:

First, the jury heard the testimony of Baudier himself, who described his initial pain after being shot:

The bullet hits me. And the only way I can describe it, and people have asked me over the last four years, what’s it feel like to be shot? What’s it feel like? Does it burn? The fact is, it didn’t burn me. What it feels like, and the only way I’ve been able to describe it, and some of you guys might know what a beanball hammer is. It looks like a maul. It’s about this big and it’s got a round head on it. But if you can imagine this little beanball hammer or maul on the end of a baseball bat, and somebody swinging it as hard as they can to hit a home run, when it hits you, that’s what it feels like. It hurts. It hurts bad.

At trial, Baudier recounted that he was then transported to the hospital, and described his pain threshold during that time as well:

[The pain] doesn’t stop. It just is there. And then my leg was in this up position. You couldn’t straighten it out. It was just paralyzed. And if you tried to straighten it out, the pain was so bad, that you couldn’t stand it ... Then the procedures that they do, which they have to do, it’s no question that they have to do these procedures are also painful.

Baudier was told by a treating physician, Dr. Hoffman, that he would experience pain sometimes because of the bullet fragments. Baudier testified that during his immediate recovery after the shooting, he walked around on crutches for a while, but was unable to put weight on his legs because it hurt him so badly. After some time had passed, his treating physicians at Southern Orthopedic told Baudier that there was nothing they could do for him other than to tell him to continue to do leg exercises and give him medication for the pain.

One year after the accident, Baudier went to see Dr. Meyer. In regard to that time period, Baudier told the jury:

I found that walking hurt me more than-you know, I’d walk a block or two, and for some reason or other, it would hurt pretty bad. And I really couldn’t determine why ... So, I was kind of limiting my activities, because it hurt, painful.

The jury was further presented with Baudier’s testimony and evidence that, two years post accident, he was still having hip pain. One such example was documented in a visit to Dr. Finney on December 6, 2002.

Baudier testified that he made an effort to return to a regimen of running that was his routine prior to the shooting, but found it difficult because of the pain. On March 13, 2003, Baudier saw Dr. Claude Williams, at which point Baudier had managed to run up to three miles, but only with “really intense pain.”

At trial, Baudier testified that he was still experiencing pain from the injury.

The jury also observed the video deposition testimony from one of Baudier’s treating physicians, Dr. Hoffman, who recalled his treatment of Baudier for the hip injury. On May 25, 1999, several days after the shooting, Dr. Hoffman recalled that Baudier was walking with a cane, and appeared to be healing, however was “definitely” still in pain. On a June 22, 1999 visit, Dr. Hoffman noted that Baudier was still having hip pain and weakness, which is normal because of muscle trauma. Dr. Hoffman saw Baudier on May 1, 2003, one week before trial, and noted that Baudier complained of pain in both hips, which Dr. Hoffman thought might be radiating from the lower back. Hoffman opined that he believed that the complaints about lower back pain are related to the gunshot wound.

Dr. Hoffman further testified that the gunshot wound is the type of injury where Baudier is going to have to live with the pain as it comes in his future, and explained that the bullet fragments that remain in his tissue will serve as an irritant that could cause him future pain.

On cross examination, Dr. Hoffman was asked about Baudier’s treatment of a left thumb on May 2, 2001, related to “excessive golfing.” Dr. Hoffman admitted that excessive golfing could also be a cause of hip or low back pain.

The jury was also presented with the deposition testimony of Dr. Richard Meyer, who treated Baudier for his injury. During his deposition, Dr. Meyer was asked:

Does it tell you anything, by the fact that we’re now four years after the accident, and if he still gets pains like that when he does certain activities, what does that tell you about the nature and duration of the pain?
DR. MEYER:
Well, it implies that they are chronic symptoms at this point, and he’s likely to have these symptoms in the future.

In support of their position that the award for Baudier’s physical injury was excessive, the Cherons argue that the evidence suggests that Baudier’s hip injury resolved as early as May 2, 2001, or December 4, 2001 at the latest. They further argue that Baudier’s activities since the shooting, namely, jogging and skiing, are inconsistent with his claim that the pain and suffering are continuing. The Cher-ons further point out that Baudier’s physical injury since the shooting has not prevented him from being active at work or in the community.

In this case, the jury awarded Baudier $150,000.00 for “past and future physical pain and suffering and disfigurement” for his hip related injuries. In disputing this amount, the Cherons cite to several Louisiana cases in which shooting victims were awarded general damages for their injuries ranging from $40,000.00 to $75,000.00. Conversely, Baudier argues that the case cited by the Cherons are distinguishable, and that the awards cited, some as far back as 1977, do not take into account what those judgments might be worth today after an adjustment of inflation.

In Theriot v. Allstate Ins. Co., the Louisiana Supreme Court explained:

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion. And, “it is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.” Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff.

Accordingly, after a review of the record, we do not find that the jury abused its discretion in awarding $150,000.00 in general damages to Baudier for his physical injuries, given the specific circumstances of this case, and we affirm this portion of the jury’s verdict.

Next, the Cherons assert that the jury’s award to Baudier for mental pain and suffering was excessive.

Regarding the issue of Baudier’s mental pain and suffering, the jury was presented with the following evidence and testimony. First, Mrs. Baudier testified as to Mr. Baudier’s behavioral changes after the shooting:

Well, he became very short-tempered with us. And it wasn’t with just — it wasn’t with most people, it was with his family. I mean, he became hard to deal with, hard to get along with, because he was so stressed out and worried, and he knew he couldn’t function like he did before. He was just — it was awful.

Mrs. Baudier ultimately recommended that her husband begin to see a mental health professional to receive help with problems that she felt she could no longer help Mr. Baudier with.

Next, Mr. Baudier himself recounted to the jury how he was affected mentally during the shooting:

And if there was ever a time when you felt like you were going to die, that’s the time. You know you’ve been shot, you know you’ve been hit. You know you’ve been hit hard.

He then described what it was like after he had been transported to the Metairie Country Club Clubhouse immediately after the shooting, when he couldn’t move his leg, and wondered if he was going to die.

At the hospital, Baudier was told by the head nurse:

We don’t know whether or not there is anybody out there trying to kill you. And in order to protect us, and in order to protect you, we’re going to have to give you an alias, we’re going to give you 24-hour guards, and we’re also going to move you to a secure room. And during this time, no one will be able to come in and see you... .You will be in an isolation area, not even your wife, because we don’t know if she is even involved.

The threat of a second attack on his life was something that Baudier had to live with daily prior to the time that Cheron had been arrested. Shortly after the shooting, the Jefferson Parish Sheriffs Office gave Baudier the precaution of being careful where he went, who he saw and what he did.

When asked how he felt when the police were investigating his attempted murder, Baudier testified:

You feel horrible. I mean, you feel like, why does somebody want to kill me? What could I have done to do this? And you just start questioning yourself. What’s wrong with me?

Baudier told the jury that he had concerns about the safety of his family, and was constantly preoccupied with his surroundings when in public. Upon the advice of the police, he obtained a permit to carry a concealed weapon. He was always on edge during the days, and at night he had what he described as “horrific bloody nightmares.” He recalled the events of the shooting in vivid detail on a daily basis, and described how the shooting affected his marriage:

Well, my wife was very supportive, but she was also telling me, “You have to get passed this. You have to get over it ... We have to get back to real life.”... I have to take care of this problem. Because if I don’t take care of this problem, this problem is going to eat me alive. I’m not going to be able to do my job. I’m not going to be a good husband. I’m not going to be a good father. I can’t do anything.

Baudier told the jury about his constant fear from between May 17 and October 1999, that someone would finish the job:

[I]t was a real fear that there was somebody out there doing something to us, and we didn’t know who or where it was. So, every time we would leave our house and, of course, as I said earlier, I was asked to carry a gun, which I did, as we would walk out of a door ... we’d look around to make sure that there wasn’t anybody outside ...
So we always had to do that. It was a consistent threat and it was a constant fear, and we always felt this emotional fear ... Just all the time, it was out there forever.

Baudier said that he was shunned by associates after the shooting amid rumors that Baudier was shot because he was involved in drug deals, the mafia, or had a vengeful mistress, and that he was repeatedly questioned about the shooting with those he came into contact with. Even after Cheron was arrested, Baudier said that people he came into contact with still viewed him suspiciously, and, in the course of work and socializing, he was prompted to retell the story approximately 50 to 100 times in a single week.

Even in spite of his counseling, Baudier testified:

And there’s always regression where you go back and you have to deal with that again. And there are always people who really do want to know and there are always people who want you to relive this rather traumatic event that you have, and they always bring back these emotions to you ... It doesn’t stop.
And I think that I almost lost my family. I was almost thrown out of the house for being whatever I was. I almost lost my business because I couldn’t communicate. I almost lost my livelihood, because I couldn’t work in the job I used to work.

The jury also heard the testimony of Eliot Levin, a psychotherapist trained as a clinical social worker, who saw Baudier on a weekly basis from March 2001 until January, 2003. Levin gave the jury the following overview of Baudier’s symptoms:

The type of event that Mr. Baudier was involved in, is similar to someone who has been raped, someone who has been held up at gunpoint ... that’s a similar type.of trauma where the symptoms afterwards are very similar to the ones Mr. Baudier described. Anyone suffering some sort of shock that they weren’t expecting, particularly when it comes to something that was violent, is something that is going to show some similar symptoms and last over generally the same period of time is going to last quite a long time in terms of how their symptoms will persist or show up for years and years.
And, to some degree, it paralyzes you. It paralyzes your decision-making. It paralyzes you in expressing emotions. It makes you terrified of what people would think about why would somebody shoot me.

Levin then described Baudier’s symptoms for the jury:

... [L]arge mood swings, extreme sadness and pain, emotional pain that you can’t get past the sadness, heightened fears, being afraid of everything ... The inability to function well at work. The inability to function very well at home. Tremendous amount of replaying the event. The inability to sleep very well.

In Levin concluded that Baudier’s emotional damage is chronic, and will go on “for a very long time.” Levin also stated that there would be improvement in Baudier’s condition, but that there would also be regression as well.

The Cherons produced no witnesses at trial relating to Baudier’s mental injury. On appeal, however, the Cherons contend that the award is excessive for several reasons. First, they argue that Baudier was never diagnosed with either major depression or with Post Traumatic Stress Disorder by Levin, who they deem to be a “mere social worker.” Next, they cite to lower damage awards in Louisiana cases in which a plaintiff was shot and injured. Then they contend that Baudier himself testified that he felt relief from his stress and concern after Cheron was arrested as the shooter. They further claim that there was an absence of evidence, other then plaintiffs own testimony, that rumors were circulating about his alleged involvement with unseemly elements that led to his shooting. The Cherons also assert that Baudier never reported any feelings- of anxiety, fear or depression or any other mental or emotional problem to his treating physicians.

Even in the absence of a medical diagnosis, it is apparent from a review of the record that Mr. Baudier has experienced significant pain and anguish in this circumstance.

In the midst of the shooting, Baudier recalled that he was required to face his own mortality. Thereafter, Baudier was advised by law enforcement officials that they could not guarantee his safety against an assailant who could have returned to murder him, and he lived his life for a period of time in understandable fear prior to the time that Cheron was arrested for the shooting. In the aftermath of the violence against him, the record suggests that Baudier suffered an emotional strain that affected his self-image, marriage, and career.

In the present case, as previously discussed, the jury was presented with the testimony of several witnesses, including the victim and a mental health professional, who detailed the severity and duration of the emotional distress that Baudier suffered as a result of being shot by the defendant. This evidence was unrebutted at trial. It is also undisputed, however, that no medical diagnosis was ever made regarding Baudier’s claimed symptoms resulting from the attack. Baudier argues that the evidence presented at trial shows that he suffered emotional problems very similar in nature to those diagnosed with Post Traumatic Stress Disorder (PTSD), and that therefore, the jury award should be reviewed in light of other cases where victims of a violent crime have been awarded substantial sums for their PTSD which resulted from the criminal activity.

Conversely, the Cherons assert, however, that the jury’s award for emotional damages is inconsistent with the quantum found in other similar Louisiana cases where a plaintiff was shot and claimed an emotional injury. Specifically, the Cher-ons rely on the several cases in which the total damage award, some including awards for mental anguish, ranged from $40,000.00-$75,000.00.

The Louisiana Supreme Court noted in Theriot v. Allstate Ins. Co.:

Prior awards under similar circumstances serve only as a general guide. If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. See, Reck v. Stevens, supra, 373 So.2d 498 (La.1979); Wactor v. Pickens Lumber Co., 505 So.2d 815 (La.App. 2d Cir.1987), writ denied, 508 So.2d 827 (La.1987). In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Scott v. Hospital Service District No. 1 of the Parish of St. Charles, 496 So.2d 270 (La.1986); Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., supra, 341 So.2d 332 (La.1976).

Louisiana courts, including this one, have previously upheld large awards to victims of violent crime that have included damages for mental anguish. General damages, however, do not have a common denominator, but are decided on a case-by-case basis. We note that in affirming awards to victims of crime, the courts almost invariably rely on a record which contains a medical diagnosis that sufficiently documents the plaintiffs mental injury. Such a diagnosis does not exist in the record before us. However, we distinguish the facts of the present case from those in cases cited by appellees in support of a lower award for mental damages. Specifically, we find that a cumulation of factors, including the five months during which Baudier was unsure of whether a second attempt would be made on his life or on the lives of his family members, makes for a stark contrast against other cases where the injurious act itself quickly resolves, thereby leaving the victim free to begin a process of mental healing. Here, not only was Baudier required to sustain the trauma of being shot the first time, he was realistically required to relive the fear and anguish of his experience daily until his would-be assassin was arrested for the crime. Accordingly, after a review of the record in this case, we find that, even in the absence of such objective medical diagnosis or documentation, the award of $365,000.00 to Baudier was not an abuse of the jury’s discretion.

For the foregoing reasons, we affirm the jury’s award of $150,000.00 in general damages, and $365,000.00. in mental damages. In all other aspects, the jury’s award is affirmed.

AFFIRMED.

      . Mart v. Hill, 505 So.2d 1120 (La.1987), citing Arceneaux v. Domingue, 365 So.2d 1330 (La. 1979).

      . Lawrence v. Hartsuck, 383 So.2d 453 (La.App. 4 Cir. 1980); Barker v. City of New Orleans, 503 So.2d 536 (La.App. 4 Cir.1987); Matthews v. Felps, 515 So.2d 545 (La.App. 1 Cir.1987), and Frank v. Pitre, 341 So.2d 1376 (La.App. 3 Cir.1977), reversed on other grounds, 353 So.2d 1293 (La.1977).

      . 625 So.2d 1337 (La.1993).

      . In Lawrence v. Hartsuck, 383 So.2d 453 (La.App. 4 Cir.1980), the court awarded $50,000 in general damages, however, and award for mental damages was not specifically discussed. In Barker v. City of New Orleans, 503 So.2d 536 (La.App. 4 Cir.1987), the court reduced an award of $544,101.19 to $75,000 in general damages, finding in part that the plaintiffs emotional injury was not supported by the record as being chronic or severe. In Matthews v. Felps, 515 So.2d 545 (La.App. 1 Cir.1987), the court raised the amount of the award to plaintiff to $40,000, noting in part that at the time of the shooting, plaintiff didn't know if he would die or be paralyzed for life. In Frank v. Pitre, 341 So.2d 1376 (La.App. 3 Cir.1977), reversed on other grounds, 353 So.2d 1293 (La.1977), the court affirmed an award of $41,004 to a policeman who sued to recover for injuries sustained when he was shot by a prisoner.

      . 625 So.2d 1337 (La.1993).

      . Morris v. Yogi Bear’s Jellystone Park Camp Resort, 539 So.2d 70 (La.App. 5 Cir.), writ denied, 542 So.2d 1378 (La.1989); Louviere v. Louviere, 2001-0089 (La.App. 1 Cir. 6/5/02), 839 So.2d 57, writ denied, 827 So.2d 1150 (La.), writ denied, 827 So.2d 1151, writ denied, 827 So.2d 1152; Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363 (La.App. 1 Cir.1989).

      . Coscino v. Wolfley, 96-0702 (La.App. 4 Cir. 6/4/97), 696 So.2d 257.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Estelle W. COOK, Individually and Lorraine Cook Denina, Sheron Cook Bayard and Kim Cook Leger on Behalf of Estelle W. Cook v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2 d/b/a East Jefferson General Hospital.
    No. 04-CA-17.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Denied July 20, 2004.

      Christopher J. Bruno, New Orleans, LA, for Plaintiff Appellee.
    Thomas P. Anzelmo, Sr., Jacqueline Blankenship, McCranie, Sistrunk, Anzel-mo, Hardy, Maxwell & McDaniel, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

At issue in this medical malpractice case is whether the trial court erred in finding that the nursing staff breached the applicable standard of care by not creating a “Falls Care Plan” since documentation of this plan could not be found in the patient’s record. For the following reasons, we affirm the trial court’s judgment concluding the requisite standard of care was breached in this case, but amend the judgment to delete the special damages award for medical expenses that were contractually adjusted by East Jefferson General Hospital pursuant to Medicare.

FACTS AND PROCEDURAL HISTORY

On September 24, 1999, plaintiff, Estelle Cook, was admitted to East Jefferson General Hospital after she fell and broke her left arm at home when trying to get to the bathroom. While in the hospital she fell and broke her right arm while trying to close her room door and go to the bathroom on September 27, 1999. Dr. Stephen Gergatz, her treating physician, had ordered that she be placed Don bed rest. She was not supposed to get out of bed for any reason, not even to go to the bathroom. She allegedly called the nurses’ station to get assistance but no one responded. She remained in the hospital until November 2, 1999. She received home health assistance until June 2000.

Subsequently, Ms. Cook and her daughters filed a complaint with a medical review panel. In the complaint, they alleged that East Jefferson breached the applicable standards of care by failing to implement a falls care plan for Ms. Cook upon her admission to the hospital, because she was 70 years old and had a history of a prior fall. Plaintiffs further allege that East Jefferson breached the applicable standard of care by failing to properly restrain and supervise her. Specifically, the complaint alleged that either the hospital nursing staff did not devise and implement a preventative fall plan for Ms. Cook or, if implemented, the proposed actions were inappropriate. East Jefferson contended that the plan was implemented, but actual documentation thereof was lost.

In accordance with the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., the complaint was presented to a medical review panel. The panel was composed of Arnold Alper, M.D., Bruce Samu-els, M.D., Mack Holdiness, M.D. and John R. Wellman, attorney and chairman of the panel. In December 2001, the panel issued its opinion. One panelist opined that the evidence did not support the conclusion that East Jefferson failed to meet the applicable standard of care because the documented nursing care appeared appropriate for this patient’s history and physical condition. Two panelists opined that the evidence supported the conclusion that East Jefferson failed to comply with the appropriate standard of care, resulting in injuries because standard falls management guidelines were not followed in this ease.

In January 2002, the instant petition for damages was filed in district court against Jefferson Parish Hospital Service District No. 2 d/b/a East Jefferson General Hospital, (“East Jefferson”), alleging negligence by the hospital’s nursing staff for failing to follow its own standard Falls Management Guidelines/Fall Prevention Protocol and for failing to provide adequate supervision and restraints for this patient who was at high risk for a fall. In May 2003, Ms. Cook died; and her daughters, Lorraine Cook Denina, Sheron Cook Bayard and Kim Cook Leger, were substituted as the plaintiffs in the case.

On July 31, 2003, East Jefferson filed a motion in limine to exclude the testimony of plaintiffs expert, Crystal Keller, R.N., arguing that she was not familiar with the local standard of care because she has not practiced nursing since 1997 and was not familiar with the 1999 changes to the Patients’ Bill of Rights concerning the use of restraints in hospitals. Thus, East Jefferson urged, Ms. Keller could not testify as to the applicable nursing standards of care at East Jefferson in September 1999. The trial court allowed the testimony, noting that it would give the testimony due weight and consideration.

The matter proceeded to a bench trial. Ms. Cook’s daughters testified that a falls care plan was not discussed with them, nor did they sign such a plan until after their mother fell in the hospital. Additionally, there was no care plan posted in their mother’s room. They also testified that they routinely told nurses to keep the bed rails raised on their mother’s bed. The deposition of medical review panel member Bruce Samuels, M.D. was introduced. Dr. Samuels concluded that, based on the evidence, a falls care plan had not been implemented.

Dr. Stephen Gergatz, Ms. Cook’s treating physician, testified via deposition that Ms. Cook had been his patient for many years and that he had treated her for diabetes, emphysema, an aneurysm of the thoracic aorta, congestive heart failure, arthritis, osteoporosis and a thyroid condition. Her condition caused her to be short of breath and very weak. Thus, when she was admitted to the hospital in September 1999, he ordered strict bed rest and that all four rails on her bed be raised, especially at night. Dr. Gergatz reviewed Ms. Cook’s chart and did not see that a fall assessment plan was devised.

Plaintiffs expert, Crystal Keller, testified that a falls care plan was not done when Ms. Cook was admitted, that standard safety measures were not carried out. She opined that East Jefferson’s nursing staff deviated from the standard of care by failing to assess Ms. Cook upon admittance to the hospital on September 24, 1999, and by failing to implement a falls care plan for her until after September 27, 1999.

Becky Gaspard, Ms. Cook’s nurse at East Jefferson, testified that the hospital uses a computer program called MIDAS to input falls risk assessment information and that, when the assessment is completed, the computer indicates that it has been “done.” She stated that this assessment should be completed when the patient is admitted. She reviewed the patient record and did not find that a falls risk assessment was “done” on September 25, 1999 or before September 27, 1999. She indicated that record demonstrated that an assessment was done on September 28, 1999, after Ms. Cook fell. She stated that raising all four rails on a patient’s bed is considered too restrictive for the patient and that the hospital’s policy was that two bed rails should be raised. She testified that a falls care plan was posted in Ms. Cook’s room over her bed and that she completed one.

At the conclusion of trial, the trial court determined that East Jefferson breached the applicable standard of care and awarded $45,000.00 plus medicals to the plaintiffs. East Jefferson filed this appeal.

DISCUSSION

East Jefferson first argues that the trial court committed manifest error in finding it breached the standard of care for failing to produce documentation that a falls care plan was implemented in this case and that it was negligent. Second, East Jefferson argues that the trial court erred in allowing plaintiffs expert, Crystal Keller, to testify as she was not qualified to render an opinion in this case. Finally, East Jefferson argues that the trial court erred in not specifying the amount of recoverable medical expenses.

In an action against a hospital, the general rules of negligence apply. A plaintiff must show a standard of care, a breach of that standard, an injury and a causal relationship between the injury and the breach of that duty. A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case. Boutte v. Jefferson Parish Hosp. Service Dist. No. 1, 01-918 (La.App. 5 Cir. 1/15/02), 807 So.2d 895, writ denied, 2002-0498 (La.4/19/02), 813 So.2d 1093.

A hospital is responsible for the negligence of its nurses under the respon-deat superior doctrine. In re Triss, 01-1921 (La.App. 4 Cir. 6/5/02), 820 So.2d 1204. The liability imputed upon the hospital must be viewed in light of the nurses’ actions. Id. Nurses and other health care providers are subject to the same standard as physicians. It is a nurse’s duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. Id. These factual questions which should not be reversed on appeal absent manifest error. Holtzclaw v. Ochsner Clinic, P.C., 02-555 (La.App. 5 Cir. 10/29/02), 831 So.2d 495.

Plaintiffs argue a falls care plan was simply not done in this case while East Jefferson argues the plan was done but somehow became lost. We note that two members of the medical review panel opined that East Jefferson breached the standard of care and that breach resulted in injury to Ms. Cook.

In this case, we are not convinced that defendant did, in fact, devise and implement a falls care plan for Ms. Cook when she was admitted to the hospital on September 24, 1999. Rather, the record reflects that a falls care plan was not done until after Ms. Cook fell and broke her right arm in the hospital on September 27, 1999. The record further demonstrates that on at least four other occasions when admitted to East Jefferson, Ms. Cook’s patient records contain the requisite documentation that a falls care plan was done when she was admitted to the hospital. In fact, the MIDAS computer program does not generate an assessment unless it is actually “done.”

Nurse Gaspard testified that she did a falls assessment on Ms. Cook but had no explanation why the documentation was not in her patient record. Ms. Keller and Dr. Samuels testified that a falls care plan was not done in this case. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The only issue on appeal is whether the factfinder’s conclusion was reasonable, not whether it was right or wrong. Id. Evaluation of live witnesses on matters of credibility is better determined by the trial court, rather than from a cold record. Credibility and reasonable inferences of fact should not be disturbed where there is evidence of conflicting testimony at trial. In re Abdo, 02-2513 (La.App. 4 Cir. 7/9/03), 852 So.2d 513. We can only conclude that the trial court did not believe Ms. Gaspard’s testimony that a falls care plan was done when Ms. Cook was admitted to the hospital. We find no manifest error with such a finding. We further find that the failure to devise and implement a falls care plan constituted a breach in the standard of care in this case which resulted in injury and damages to Ms. Cook.

Regarding Crystal Keller’s testimony in this case, we note she has testified in other cases as an expert in nursing. The court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. As with all other admissible evidence, expert testimony is subject to being tested by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Keener v. Mid-Continent Cas., 01-1357 (La.App. 5 Cir. 4/30/02), 817 So.2d 347, writ denied, 2002-1498 (La.9/20/02), 825 So.2d 1175. We also point out that the trial court noted that it would give due weight to her testimony. Thus, we find no error in the trial court’s ruling allowing her to testify as an expert in this case.

Finally, East Jefferson argues that plaintiff should not be able to recover the portion of medical expenses written off by East Jefferson pursuant to Medicare under the collateral source rule.

The collateral source rule applies to situations where the victim receives compensation for his damages from a source independent of the tortfeasor. Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be diminished, because of benefits received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Suhor v. Lagasse, 00-1628 (La.App. 4 Cir. 9/13/00), 770 So.2d 422.

The Second Circuit has held that “a plaintiff may not recover as damages that portion of medical expenses ‘contractually adjusted’ or ‘written-off by a healthcare provider pursuant to the requirements of the Medicaid program.” Terrell v. Nando, 33-242 (La.App. 2 Cir. 5/10/00), 759 So.2d 1026, 1031. The rationale behind that decision was that a plaintiff should not be compensated for damages which he had not suffered, and thus, “a recipient of free medical care provided at the expense of taxpayers should not be allowed to recover damages from the tortfeasor and pocket the windfall.” Id. at 1031. Because the portion of medical expenses that are “written-off’ by a healthcare provider are not damages incurred by the injured plaintiff, they are not subject to recovery by application of the “collateral source” rule. Id at 1031.

We note that the issue was presented to, but not determined by, this Court in Kozina v. Zeagler, 94-413 (La.App. 5 Cir. 11/29/94), 646 So.2d 1217, and therefore we do not find the Kozina case applicable to this appeal.

Accordingly, we find that the trial court erred in awarding that portion of medical expenses that were “contractually adjusted” or “written-off’ by East Jefferson pursuant to Medicare.

For the above discussed reasons, we amend the judgment of the trial court to delete the special damages award for medical expenses that were “contractually adjusted” or “written-off’ by East Jefferson General Hospital pursuant to Medicare. In all other respects the judgment of the trial court is affirmed.

AFFIRMED AS AMENDED.


text:
    Richard A. ARIAS v. Joseph G. ALBE.
    No. 04-CA-26.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      R. Ray Orrill Jr., New Orleans, LA, for Plaintiff/Appellee.
    Joseph G. Albe, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

At issue in this breach of contract and attorney fee dispute is whether the trial court erred in finding that a reciprocal services contract existed between two attorneys for the sum of $5,000.00 each, and that defendant-appellant was not entitled to keep $20,000.00 he asserted was awarded to him as attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Richard Arias, and defendant, Joseph Albe, are attorneys who allegedly agreed with one another to render legal and expert services in two suits filed in Jefferson Parish. In 1996, Richard Arias filed suit in proper person against his former employer, Cytec Industries, alleging wrongful termination. That case was allotted to Judge Patrick McCabe. Prior to 1996, Joseph Albe filed a toxic tort suit on behalf of Cheryl Franklin against her employer, Cytec Industries. The Franklin case was allotted to Judge Melvin Zeno. Plaintiff asked defendant to serve as co-counsel in his wrongful termination case. Plaintiff offered to be expert in the Franklin case.

On March 27, 1996, plaintiff sent defendant a letter to confirm their discussion about the “possibility” that they would exchange services in these cases, with each to be paid $5,000.00 when both cases were completed. Defendant enrolled in plaintiffs case.

In August 2000, plaintiff sent defendant a letter suggesting that the two attorneys needed to agree on a fee schedule in the event the matter went to trial. The letter stated that Albe would get 25% of the net proceeds from Arias v. Cytec, after expenses, and 100% of the contempt of court fee in Arias v. Cytec, if the case went to trial. Plaintiff wanted to go to trial; while defendant did not think the case could be won at trial.

In Arias v. Cytec, Cytec failed to fully respond to certain discovery requests, prompting contempt proceedings. Following those proceedings, Cytec was found to be in contempt of court and defendant submitted an attorney fee petition to Judge McCabe seeking $32,250.00 in attorney fees. Defendant noted that he would accept $25,000.00 in attorney fees at the contempt hearing. Judge McCabe did not issue a judgment awarding defendant any attorney fees at the contempt hearing.

Defendant persuaded plaintiff to settle the case against Cytec. Plaintiff told defendant that he would settle the case for $75,000.00. There is a dispute as to the substance of these settlement discussions between plaintiff and defendant. Plaintiff states that defendant told him that Cytec was willing to pay $75,000.00 immediately and subsequently give defendant $25,000.00 in attorney fees. However, defendant asked plaintiff to loan him $25,000.00, which he would pay back to plaintiff when he received the $25,000.00 from Cytec. Defendant argues that the $25,000.00 is owed to him as attorney fees in this case. Plaintiff contends that his appreciation of settlement discussions with defendant was that Cytec would tender $75,000.00 to him and an additional $25,000.00 to Albe as attorney fees on the contempt of court ruling.

Cytec did offer to settle the case for $75,000.00. Defendant accepted this offer on plaintiffs behalf. Defendant called Cytec’s attorney, William Bologna, and asked him to have one check issued in the amount of $50,000.00 payable to plaintiff, Richard Arias, and another check in the amount of $25,000.00 payable to him. Mr. Bologna complied with this request even though he thought it was a little odd because he knew both men were attorneys. Mr. Bologna testified that Cytec never agreed to tender an additional $25,000.00 in attorney fees and that it would never have agreed to pay that amount of attorney fees for a contempt of court proceeding. Mr. Bologna further testified an attorney fee award was not reduced to writing or agreed upon by Judge McCabe in conjunction with the contempt of court.

Sometime later, plaintiff requested that defendant give him $20,000.00. Defendant refused, stating that was his attorney fee. Defendant filed a motion to set attorney fees. At that hearing, Judge McCabe stated that $25,000.00 in attorney fees was not unreasonable in this case. The judge did not award defendant $25,000.00 for a contempt of court fee. The judge declined to decide the attorney fees issue, noting there was a dispute as to attorney fees because plaintiff contended the parties had a verbal agreement limiting fees to $5,000.00. The judge noted that a separate suit for attorney fees should be filed. The transcript of that hearing reflects that Judge McCabe stated that he thought $25,000.00 was a reasonable fee.

In January 2002, plaintiff filed this suit in First Parish Court against defendant seeking return of $20,000.00 defendant kept as attorney fees. Plaintiffs petition contends that the parties agreed to $5,000.00 each and that a subsequent modification was never confected. Defendant filed a reconventional demand for defamation, asserting his damages were more than $20,000.00 but less than $50,000.00, in excess of the First Parish Court jurisdictional limit. The case was transferred to the Twenty-Fourth Judicial District Court and allotted to Judge Zeno.

In May 2003, this matter proceeded to a bench trial. At trial, plaintiff testified that he and defendant agreed to $5,000.00 each and that subsequent discussions regarding modifying their agreement applied only if the case went to trial. He further testified that he loaned plaintiff the $25,000.00. Defendant testified that Judge McCabe essentially approved the $25,000.00 attorney fee when he stated that the fee was not unreasonable. Defendant believes he was entitled to that amount either as a contempt of court fee or as reasonable attorney fees for the work he performed in Arias v. Cytec. Defendant denied that he asked plaintiff to loan him the $25,000.00. Defendant stated that plaintiffs letter to him discussing the need to conclude on a fee schedule demonstrates he did not agree to accept $5,000.00 as attorney fees in this case.

After taking the matter under advisement, the trial court found in favor of Mr. Arias, stating:

Upon review of the evidence, we find that an agreement did exist between the parties ... whereby Mr. Albe would render legal services for Mr. Arias in the [Arias v. Cytec] case and that Mr. Arias agreed to provide consulting/expert services for Mr. Albe in the [Franklin v. Cytec] case. Each party would be paid $5,000.00 for services rendered. The record does not support that a judgment for a $25,000.00 fee in a contempt proceeding before [Judge McCabe] was ever rendered. Accordingly, Mr. Albe unlawfully withheld the $20,000.00 from the settlement which he obtained of behalf of Mr. Arias. We find thus Mr. Albe breached the contract existing between himself and Mr. Arias. Since the agreement did not provide for attorney fees should same be the subject of a breach, none have been requested herein and none will be awarded.

The trial court dismissed defendant’s re-conventional demand asserting defamation as without merit. The trial court awarded plaintiff $20,000.00 plus interest and all costs. This appeal followed.

DISCUSSION

On appeal, defendant argues that the trial court erred in finding that a binding and enforceable contract existed between him and plaintiff that limited his attorney fees to $5,000.00 because there was no meeting of the minds as evidenced by correspondence from plaintiff to him. Additionally, the trial court failed to determine the amount of attorney fees he was entitled to on a quantum meruit basis under La. R.S. 37:218 based on the amount of work he performed in Arias v. Cytec. Plaintiff asserts that defendant consented to the terms of representation by enrolling as co-counsel in Arias v. Cytec. Thus, he was only entitled to $5,000.00 in attorney fees.

It is well settled that a court of appeal may not set aside a trial court’s factual finding in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Furthermore, a determination as to the existence of a contract is a finding of fact which may not be disturbed on appeal unless it is clearly wrong. O’Glee v. Whitlow, 32,955 (La.App. 2 Cir. 4/7/00), 756 So.2d 1288. In this case, the trial court found a contract existed between plaintiff and defendant. The trial court apparently believed plaintiffs account of the reciprocal services arrangement between he and defendant, and we find that determination is not manifestly erroneous. To us, defendant’s credibility became questionable when he mischarac-terized Judge McCabe’s statement that $25,000.00 was not an unreasonable attorney fee in an attempt to circumvent his original agreement with plaintiff and justify his intent to retain that money as his attorney fee.

Under Louisiana law, formation of a valid and enforceable contract requires capacity, consent, a certain object, and a lawful cause. Marcantel v. Jefferson Door Co., Inc., 01-1307 (La.App. 5 Cir. 4/10/02), 817 So.2d 236. The court must find there was a meeting of the minds of the parties to constitute the requirement of consent. Id. Our review of the record supports the trial court’s conclusion. We agree that defendant accepted the terms of the March 27, 1997 letter from plaintiff by enrolling in Arias v. Cytec.

Turning to defendant’s assertion that the trial court erred by not awarding him attorney fees based on quantum meru-it, we note that where a contract exists there can be no recovery in quantum me-ruit. Bamburg Steel Buildings, Inc. v. Lawrence General Corp., 36,005 (La.App. 2 Cir. 5/8/02), 817 So.2d 427. A party who knowingly and willingly enters into a contract cannot later successfully assert a claim in unjust enrichment or quantum meruit for services rendered under that contract by attacking the validity and legality of the contract. Id. Because the trial court found that a contract existed between plaintiff and defendant, it did not have to determine if defendant was entitled to attorney fees based on quantum meruit. This assignment of error is without merit.

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed against defendant.

AFFIRMED.


author: SOL GOTHARD, Judge.

text:
    SUCCESSIONS OF Virginia Fairburn Pelicano Wife of/and Anthony John PELICANO, Sr. Anthony J. Pelicano, Jr. v. Angela P. Shockley.
    Nos. 04-CA-45, 04-CA-46.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Mariateresa P. Bankerd-Barnett, Gret-na, LA, for Plaintiff/Appellee.
    Mary A. Mumme, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   SOL GOTHARD, Judge.

Angela P. Shockley appeals from a decision of the trial court which denied her summary judgment, and granted summary judgment in favor of Anthony J. Pelicano, Jr., and finding that a document executed between the two parties was a contract of sale. Because we find that the trial judge granted a partial summary judgment, which was not certified as a final, we dismiss this appeal. La. C.C.P. art. 1915(B).

This suit involves the Successions of Anthony John Pelicano, Sr. (deceased December 11, 1995) and Virginia Fairburn Pelicano (deceased June 16, 1996). The decedents had two children, the parties to this suit. On September 27, 2001, Mr. Pelicano, Jr. filed a Petition for Recordation and Execution of Statutory Testaments, seeking to open the successions of his parents.

On November 22, 2002, Mr. Pelicano filed a Petition for Specific Performance and to Enforce Contract and For Damages. In that petition, Mr. Pelican alleges that, in April of 1997, the parties entered into a contract in which Ms. Shockley agreed to sell any and all rights to her portion of the succession. He further alleges that he tendered, and she accepted, a cash advance of $14,000.00, with the balance to be paid once the value of the estate was settled and Ms. ^Shockley’s portion determined. He asserted that Ms. Shockley was to immediately open the succession; however, she failed to do so, and that he finally filed to open the succession in September of 2001. He further alleges that he has suffered damages as a result of Ms. Shockley’s failure to comply with the contract and to proceed with the succession. The petition prays that the contract be enforced as written, that the value of the estate be determined and that he be placed in possession of Ms. Shockley’s portion of the estate. He also requests damages for nonperformance of the contract.

Mr. Pelicano’s suit was consolidated with the succession proceedings on February 13, 2003. Thereafter, Ms. Shockley’s attorney filed for summary judgment, alleging that the agreement between her and her brother was a promissory note, subject to a liberative prescription of five years. Mr. Pelicano filed for summary judgment seeking a finding that the document at issue is a contract of sale. After a hearing, the trial court denied Ms. Shockley’s motion and granted the motion filed by Mr. Pelicano, ruling that the document at issue is a contract of sale. Ms. Shockley filed her appeal from this ruling.

La. C.C.P. art. 1915(B) provides that:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

In this case, the judgment granted by the trial court was only a partial summary judgment since the judgment did not address all of Mr. Pelicano’s claims or demands. Further, the judgment did not certify that judgment as a partial summary judgment. According to La. C.C.P. art. 1915(b), the judgment at issue does not constitute a final judgment for appeal purposes. Accord, Southern Silk Screen, Inc. v. Kardon, 02-515 (La.App. 5 Cir. 9/30/02), 829 So.2d 517.

For the above discussed reasons, we dismiss this appeal.

DISMISSED.


text:
    Donna FITCH v. TOYS “R” US—DELAWARE, INC., Patent Plant Services Harsco Corporation.
    No. 04-CA-68.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Joseph J. Weigand Jr., Houma, LA, for Plaintiff/Appellee.
    Randy J. Ungar, George W. Byrne, Jr., Kristi A. Post, Gregory T. Discon, New Orleans, LA, for Intervenor/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   SOL GOTHARD, Judge.

Intervenor, the law firm of Unger & Byrne, appeals from a judgment holding it liable for interest on a promissory note signed by plaintiff Donna Fitch. For the reasons that follow, we reverse the decision of the trial court.

In October of 1997, Ms. Fitch retained intervenor to represent her in a tort suit. On October 15, 1997, she signed a promissory note drawn on Crescent Bank and Trust for $10,000.00, at 18% interest. In-tervenor signed as guarantor of the note. Funds were drawn on the account to pay costs of litigation and medical expenses incurred by plaintiff and/or intervenor on her behalf. Subsequently, intervenor paid the principal and interest on the loan.

Thereafter, Ms. Fitch discharged inter-venor and obtained new counsel who settled the personal injury case for $40,000.00. Intervenor filed a motion to set fees and costs, including the amounts paid on the loan. The trial court awarded costs and attorney fees to intervenor, but exonerated her from paying the interest on the loan, and found that the interest was to be paid by the firm of Unger and Byrne.

In this appeal appellant argues that the trial court abused its discretion in refusing to allow intervenor to recover for interest owed, contrary to the Louisiana Supreme Court decision of Chittenden v. State Farm Mut. Auto. Ins. Co., 98-2919 (La.App. 4 Cir. 12/15/99), 748 So.2d 641. Appellant also argues that the trial court had no authority to exonerate plaintiff from the interest, while holding her responsible for the principle amount of the loan.

In Chittenden, the Louisiana Supreme Court considered whether a law firm who advances sums to a client can recover for interest on those advanced sums. The law firm at issue had advanced funds to the client, and secured a loan to cover those advanced funds. The retainer agreement provided that “the full amount of the interest charged on such loans will be reimbursed to Attorneys ... out of the funds received on this claim.” The Court found that charging of interest was not unethical, and cited with approval the principles that (1) the client must agree in writing to such a charge; and (2) the interest rate must be lawful and reasonable. 788 So.2d at 1150. The law firm was allowed to recover reasonable interest it paid on a loan it obtained and used to advance costs to the client.

Here, plaintiff does not argue that the amount of interest charged is unreasonable, or that the loan at issue was not used to pay expenses associated with the litigation and/or medical expenses. In brief to this court, plaintiff argues only that retainer at issue is silent on the issue of advanced costs and/or medical expenses, and that “The District Court, in the absence of a contractual provision ... had the discretion to determine whether it was reasonable or unreasonable for appellant attorney to pay the interest due on the note.” However, the retainer agreement does address the issue, by providing that “IF, for any reason or no reason at all, ATTORNEY is discharged by CLIENT, ATTORNEY will be entitled to be reimbursed his costs, advances and expenses, plus a fee based upon the work preformed (sic).” The interest on the loan was an expense incurred by intervenor, Land therefore under the terms of the agreement, the firm is entitled to reimbursement of that expense.

Finally, it was the plaintiff, and not the intervenor, who executed the note, and is therefore liable for both the principal and interest. Intervenor signed the note, not as a principal, but as a guarantor. La. C.C. art. 3047 provides that “A surety has the right of subrogation, the right of reimbursement, and the right to require security from the principal obligor.” A surety who pays the debt has the right of recourse against the principal debtor. Louisiana Bank & Trust Co., Crowley v. Boutte, 309 So.2d 274 (La.1975). In this case, the intervenor paid the principal and interest, and therefore has the right to receive reimbursement from plaintiff for the interest paid.

We find that the trial court erred in absolving plaintiff from liability for the interest accrued pursuant to the terms the loan.

Intervenor also argues that the trial court erred in ruling without the joinder of Crescent Bank & Trust, “... a party needed for a just adjudication of any matters affecting the obligation concerning the loan.”

La. C.C.P. art. 641 provides that “indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the 1 controversy cannot be made unless they are joined in the action.” Pecoraro v. The Napoleon Room, Inc., 95-00511 (La.App. 5 Cir. 12/13/95), 666 So.2d 1151, 1154.

In this case, we see no error in the trial court’s ruling. The record before us reflects that an equitable adjudication of the controversy could be made without joining Crescent Bank and Trust. The issue presented to the court was whether interve-nor or plaintiff was liable for the interest on a promissory note made by plaintiff and guaranteed by intervenor, and the resolution of this issue did not require the join-der of the lending institution.

For the above discussed reasons, the decision of the trial court finding that in-tervenor is to pay the interest on the promissory note is reversed, and it is ordered that plaintiff reimburse to interve-nor the amount of interest paid on the promissory note. Costs of this appeal are assessed against plaintiff/appellee.

REVERSED.

      . A person shall be joined as a party in the action when either:
      (1) In his absence complete relief cannot be accorded among those already parties.
      (2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
      (a) As a practical matter, impair or impede his ability to protect that interest.
      (b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Mark J. FORREST.
    No. 04-KA-43.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Martin A. Regan, Jr., Kristen A. Moe, New Orleans, LA, for Appellant, Mark J. Forrest.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis — Appellate Counsel, Gretna, LA, for Appellee, State of Louisiana.

      Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

On December 14, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Mark J. Forrest, with armed robbery in violation of La. R.S. 14:64. Defendant was arraigned on December 15, 2000 and pled not guilty.

On March 29, 2001, defendant withdrew his former plea of not guilty and entered a plea of guilty. After accepting the defendant’s guilty plea, the trial court sentenced defendant to imprisonment at hard labor for twelve years without benefit of parole, probation, or suspension of sentence. The trial court also ordered the sentence to run concurrently with the defendant’s sentence in case number 00-6314.

On March 28, 2003, defendant filed an application for post-conviction relief alleging ineffective assistance of counsel. The application was summarily denied on April 16, 2003. On June 12, 2003, defendant filed a writ application with this Court regarding the denial of his application for post-conviction relief. On June 26, 2003, this Court granted the writ application, vacated the denial of the post-conviction relief application, and remanded the matter for the limited purpose of granting defendant the opportunity to reinstate his appeal rights. Defendant filed a petition for out-of-time appeal that was granted on September 3, 2003.

Facts

Defendant’s conviction resulted from a guilty plea and, thus, the presentation of facts for the record was limited. According to the record, the prosecutor stated that he could prove that the defendant, who was armed with a stick, entered the convenience store of a Jefferson Parish gas station, struck the cashier, took money from the cash register, and fled the store. During the plea colloquy, defendant admitted that he entered the gas station, struck the cashier, and took money from the business.

Discussion

On appeal, defendant argues that his guilty plea was unknowing and involuntary because he was not fully advised of the elements of the crime of armed robbery as required by La.C.Cr.P. art. 556.1(A)(1). The State responds that the requirements of the statute were met, and alternatively, that it was harmless error not to advise defendant of the elements of the charge.

In this case, defendant pled guilty on March 29, 2001. At that time, La.C.Cr.P. art. 556.1 provided in pertinent part:

A. In a felony case, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

The test for the validity of a guilty plea does not depend upon whether or not the trial court specifically informed the accused of every element of the offense. Rather, the defendant must establish that his lack of awareness of the elements resulted in his lack of awareness of the essential nature of the offense to which he was pleading. State v. Perrilloux, 01-509 (La.App. 5 Cir. 11/14/01), 802 So.2d 772, 775 (citations omitted).

Violations of Article 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158, 1161; State v. Frickey, 00-294 (La.App. 5 Cir. 9/26/00), 769 So.2d 791, 798. The proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his or her willingness to plead guilty. State v. Guzman, supra at 1165; State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 579.

In Perrilloux, 802 So.2d at 775-777, defendant argued that the guilty plea colloquy did not adequately show he had an understanding of the offense for which he was charged. The trial court explained to defendant that he was pleading guilty to the amended charge of possession of stolen things, specifically a van valued over $1,000. After the trial court asked for a factual basis, defendant stated he would stipulate to the bill of information. Additionally, the state told the trial court what it would prove. At no time during the plea colloquy did defendant ask any questions or indicate to the trial court that he did not understand the nature of the charge or any of the elements. This Court concluded that defendant was adequately aware of the nature of the charge and the consequences of pleading to the charge.

In State v. Ford, 02-1394 (La.App. 4 Cir. 4/16/03), 846 So.2d 98, 100-101, writ denied, 03-1401 (La.11/26/03), 860 So.2d 1132, defendant argued that the record contained no evidence to indicate he understood the nature of the charges against him as required by La.C.Cr.P. art. 556.1. The appellate court stated that, at the guilty plea hearing, the trial court informed defendant that he was pleading | guilty to five counts of armed robbery; that the trial court informed defendant of the mandatory minimum and maximum sentence for the offenses and the penalties for subsequent offenses; and that the trial court personally questioned defendant regarding the waiver of his Boykin rights. The appellate court noted that defendant, who was represented by counsel at the time of his plea, failed to complain that he did not understand the charges against him. It concluded that defendant had not shown sufficient prejudice to support his claim.

In the instant case, the trial court informed defendant that he was pleading-guilty to armed robbery. The trial judge personally questioned defendant regarding the waiver of his Boykin rights. When the trial court asked the prosecutor what he was prepared to prove if the case went to trial, the prosecutor stated that he would prove that defendant entered a Shell station armed with a stick, attacked the clerk, and took money from the clerk. Although defendant initially denied striking the victim with the stick, he later admitted that he struck the victim with the stick and took money from him. Defendant, who was represented by counsel at the time of his plea, did not complain that he did not understand the charges against him. In fact, defendant stated that he had discussed these charges with his attorney and that he understood the nature of each charge as well as the possible penalties.

Accordingly, we find that the record clearly reflects that defendant was aware of the nature of the charge and the consequences of pleading guilty to the charge. State v. Perrilloux, supra. Additionally, defendant has not shown sufficient prejudice to support his claim. State v. Ford, supra. This assignment of error is without merit.

Defendant also seeks remand to the district court for an evidentiary hearing on his ineffective assistance of counsel claim. We note that defendant did not assign this claim as error or brief this error on appeal.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In order to show ineffective assistance of counsel, the defendant must demonstrate that 1) his attorney’s performance was deficient, and 2) he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055.

In addition to proving that the attorney’s representation fell below the standard of reasonableness, it is incumbent upon the defendant in the context of a guilty plea to show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also, State v. Washington, 491 So.2d 1337, 1338-39 (La.1986).

A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than a direct appeal. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, supra. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La.C.Cr.P. arts. 924-930.8. State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095.

In the instant case, we find that defendant has failed to brief this issue as an assignment of error and, thus, has not properly raised this issue on appeal. U.R.C.A. 2-12.4; State v. Blank, 01-564 (La.App. 5 Cir. 11/27/01), 804 So.2d 132, 139. Moreover, even if this issue had been properly raised on appeal, the record does not contain sufficient evidence to rule on the merits of the claim. We must conclude that this claim is more appropriately addressed through post-conviction proceedings and, thus, we will not address defendant’s request at this time. We note, however, that this does not preclude defendant from raising this claim in a later application for post-conviction relief.

Finally, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920. We note that the trial court’s advisal to the defendant of the prescriptive period for seeking post-conviction relief as mandated by La.C.Cr.P. art. 930.8 was incomplete. Therefore, we remand and order the district court to inform defendant of the provisions of La. C.Cr.P. art. 930.8 by sending appropriate written notice to defendant within ten days of the rendition of the opinion and to file written proof that defendant received the notice in the record of the proceedings. State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR LA. C.CR.P. ART. 930.8 NOTIFICATION.

      . La.C.Cr.P. art. 556.1 was amended by Acts 2001, No. 243, § 1, effective date August 15, 2001. The comments to the article indicate that the revisions restricted this article's application to felony cases, removed the requirement that the court advise defendant regarding penalties for subsequent offenses, and added Paragraph E, the harmless error provision.


author: THOMAS F. DALEY, Judge.

text:
    Donald G. ROSS v. COMMODITY CONTROL SERVICES CORPORATION d/b/a Comtrol Services Corporation.
    No. 04-CA-139.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Floyd J. Falcon, Jr., Daniel L. Avant, Baton Rouge, LA, for Plaintiff/Appellee.
    Steven F. Griffith, Sr., Destrehan, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and THOMAS F. DALEY.
   THOMAS F. DALEY, Judge.

The defendant, Commodity Control Services Corporation d/b/a Comtrol Services Corporation, (Comtrol), has appealed the trial court judgment in favor of plaintiff. For the reasons that follow, we affirm. FACTS:

The plaintiff, Donald Ross, was employed by Comtrol for 18 years. During the last two years of his employment, he had many personal difficulties including the death of his mother, illness of his father, and his divorce. On September 19, 2000, he was informed that Comtrol was placing him on a leave of absence. On November 15, 2000, he was terminated by Comtrol. After he was terminated, Mr. Ross sought reimbursement for travel and entertainment expenses, as well as unused sick leave and vacation time. He filed suit after Comtrol refused payment.

At the trial in this matter, Mr. Ross testified that at the time he was terminated, he was working as the National Sales Manager, earning $65,000.00 per year. His job duties included calling on existing customers and new customers. This included taking the customers and potential customers to dinner and various entertainment venues. He testified that Comtrol sometimes did not have the money to reimburse him for these expenses. He testified that at the time he was terminated, he was owed $18,254.21 for travel and entertainment expenses. In support of his position, a letter from the owner of Comtrol, James Glynn, was introduced into evidence. This letter acknowledged that Comtrol owed Mr. Ross reimbursement for travel and entertainment expenses in the amount of $12,949.00. Mr. Ross explained that he submitted receipts and documentation to Comtrol to support these expenses, but did not keep copies of this documentation. Mr. Ross explained that during the later part of his employment, he did not have the money to entertain clients because he was not getting reimbursed by the company. Mr. Ross testified part of his compensation at Comtrol included a car allowance of $350.00 per month, which had not been paid in 1999 and 2000. He further testified that he was unaware of any medical expenses paid by Comtrol for him and/or his ex-wife after his termination.

Mr. Ross explained that prior to the implementation of a new sick leave policy in 1997, he had 120 days of accrued sick leave. He felt that he was entitled to sick leave pay for the 41 days he was placed on leave, as well as the remaining balance. Mr. Ross testified that during the last 20 months of his employment, he did not use any vacation time or sick leave. He further testified that Comtrol was to pay his medical insurance and benefits until he was terminated. He denied being told by Comtrol that the medical expenses would be paid and this would offset money owed to him by Comtrol for travel and entertainment expenses.

James Glynn testified that he was the person who put Mr. Ross in control of the Houston territory. He was present at a meeting held in 1999 regarding poor sales in the Texas and Louisiana area wherein Mr. Ross acknowledged that he had not done a good job marketing the company’s services and that he was not sure he would be able to do so in the future. Mr. Glynn explained that Mr. Ross had been a good employee and he tried to work with Mr. Ross during his personal crises. He acknowledged discussing Mr. Ross moving from Texas back to Louisiana to take care of his father. Mr. Glynn explained that by the time Mr. Ross was terminated, he had used up all of his sick leave and vacation time.

Mr. Glynn explained that in the July 31, 2000 letter, he was asking Mr. Ross to support his expenses with receipts. Mr. Ross did not respond to this request, so he was not reimbursed. During Mr. Glynn’s testimony, certain computer printouts were introduced into evidence and Mr. Glynn explained that these printouts indicated that Mr. Ross was reimbursed $9,000.00 in 1999 and $4,200.00 in 2000 for travel and entertainment expenses. Mr. Glynn was unable to produce cancelled checks to correspond with these payments. Mr. Glynn further explained that Comtrol continued to pay medical expenses for Mr. Ross and his wife after Mr. Ross was placed on leave and that he had a verbal agreement that the medical expenses would be offset by the travel and entertainment expenses Mr. Ross was owed.

The trial judge took the matter under advisement. He then rendered judgment in favor of Mr. Ross in the amount of $26,949.64, which represents $12,949.64 in travel and entertainment expenses, $10,250.00 for 41 days of sick leave, and $3,750.00 for three weeks of accrued vacation. Costs and attorney’s fees of $5,000.00 were also awarded. This timely appeal followed.

LAW AND DISCUSSION:

In its first Assignment of Error, Comtrol argues the trial court erred in allowing Mr. Ross to claim sick leave and vacation time after his time had already been depleted by his inactivity and voluntary abandonment of his job duties. In support of this position, Comtrol points to the testimony by Mr. Glynn and another Comtrol employee regarding a statement allegedly made by Mr. Ross that he had not done a good job in marketing and that he was not sure he would be able to do so in the future. Comtrol argues that Mr. Ross unilaterally left his position in Texas and moved back to Louisiana and claims Mr. Ross only actually worked % months of the last 20 months of his employment. Comtrol claims that during this time, Mr. Ross spent five months at a camp, while being paid by the company, and used up more than his claimed 120 days of sick time. Comtrol did not file any type of action against Mr. Ross to recover salary paid that was allegedly not earned.

The testimony presented at trial indicates that Mr. Glynn knew that Mr. Ross had moved back to Louisiana to take care of his father. Mr. Glynn admitted that he had no records reflecting Mr. Ross’s vacation or sick leave taken in 2000. Additionally, Mr. Ross testified that during the time he was taking care of his father, he communicated with customers by telephone and traveled to Texas and New Jersey as part of his job duties.

In awarding Mr. Ross 41 days of sick leave, the trial court found that Comtrol’s company policy provided for six sick days per year of employment with a maximum accumulation of 60 days. The Court further found that on September 15, 2000, Comtrol placed Mr. Ross on sick leave as evidenced by the letter sent to Mr. Ross stating "... this step will give you the time necessary to seek proper medical treatment.” In awarding Mr. Ross three weeks of vacation pay, the trial court found that Comtrol’s company policy entitled an employee of Mr. Ross’ tenure to four weeks of vacation per year. The trial court reasoned that he was employed for three quarters of 2000 and as such had accrued three weeks of vacation.

We see no error in the trial court’s award of 41 days of sick leave. This award is supported by the September 2000 letter, as well as Mr. Ross’ testimony that he did not take any vacation or sick time during the last 20 months of his employment. The award of vacation time is supported by Mr. Ross’ testimony and Mr. Glynn’s testimony that he had no documents related to Mr. Ross’ sick leave and vacation time for 2000.

In its second Assignment of Error, Comtrol argues the trial court erred in awarding unsubstantiated expenses allegedly incurred on behalf of Comtrol, which were never documented in accordance with company policy. Comtrol further argues the trial court erred in failing to credit the company for monies paid at Mr. Ross’s request.

In awarding Mr. Ross $12,949.64 of his claimed $18,254.21 in travel and entertainment expenses, the trial court noted that Mr. Ross testified that he gave the receipts supporting these expenses to Com-trol. The trial court treated the August 1, 2000 letter from Mr. Glynn as an acknowledgment of reimbursement expenses owed to Mr. Ross in the amount of $12,949.64. The trial court refused to award the additional expenses claimed finding that Mr. Ross did not prove the additional sums were owed, noting there was no corroborating evidence.

We find no error in this award, as it is supported by the evidence. The August 1, 2000 letter to Mr. Ross from Mr. Glynn states “My records indicate that Comtrol owes you expenses in the amount of $12,949.64 through July 31, 2000.” Further, Mr. Glynn testified that he sent a letter to Mr. Ross in August or September 2000 “admitting how much we owed.” Mr. Glynn then testified that this amount had not been paid.

Comtrol goes on to argue that the trial court erred in not allowing an offset against any expense reimbursement for certain medical expenses it paid for Mr. Ross’ ex-wife. In denying this offset, the trial court found Comtrol did not prove by a preponderance of the evidence that Mr. Ross owed money to the company for unauthorized expenses. The Court went on to state that it should not have allowed Comtrol to introduce evidence that they were entitled to an offset for medical related expenses because this offset was not affirmatively pled. Comtrol argues that its pretrial order put Mr. Ross on notice that it was seeking an offset for payment of medical expenses.

Our review of the evidence presented indicates that the trial court correctly denied Comtrol’s claim for reimbursement of unauthorized expenses and medical expenses. While Mr. Ross did not offer support of the full amount of his claimed expenses, Comtrol did not prove that Mr. Ross made unauthorized expenses. Some of Mr. Ross’ expenses were called into question, but there was no proof that these expenses were unauthorized. Comtrol did not file any type of action against Mr. Ross for reimbursement of unauthorized expenses or medical expenses. Additionally, Mr. Ross was not awarded the full amount of reimbursement sought. With regard to an offset for the medical expenses, Mr. Glynn testified that he had a verbal agreement with Mr. Ross that the reimbursement due Mr. Ross was being offset by medical expenses paid by the company after he was placed on leave. Mr. Glynn offered no documentation or evidence to support this agreement, nor was he able to state the amount of expenses paid. The trial court obviously rejected Mr. Glynn’s testimony regarding this agreement. We see no abuse of discretion in the trial court’s decision to refuse to allow the offset.

In its final Assignment of Error, Com-trol claims the trial court erred in awarding attorney’s fees. We disagree.

Comtrol’s argument is based on its position that the trial court erred in awarding Mr. Ross payment for sick leave and vacation time. Having found these awards were proper, we note that R.S. 23:631, et seq. as well as the jurisprudence entitles a plaintiff to attorney’s fees if any wages are awarded. Vacation pay is wages within the meaning of R.S. 23:632. Wyatt v. Avoyelles Parish School Bd., 2001-3180 (La.12/4/02), 831 So.2d 906. Thus, the trial court correctly awarded attorney’s fees.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.