author: b DREW, J.

text:
    Margaret KEISER, Plaintiff-Appellee v. CATHOLIC DIOCESE OF SHREVEPORT, INC., Defendant-Appellant.
    No. 38,797-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for Appellant.
    Keiser, Auzenne & Boudreaux, L.L.C. by Randall B. Keiser, Alexandria, for Ap-pellee.
    Before BROWN, STEWART and DREW, JJ.
   b DREW, J.

Appellant, Catholic Diocese of Shreveport, Inc., d/b/a Our Lady of Fatima School, seeks review of the trial court’s judgment awarding Margaret Keiser unpaid wages in the amount of $2,069.81, sick leave pay of $108.09, plus penalty wages and attorney fees. For the reasons assigned below, the judgment of the trial court is amended in part and affirmed as amended.

FACTS

Just prior to the start of the 2002-2003 school year, Margaret Keiser took a job with Our Lady of Fatima School in Monroe, Louisiana, to teach its pre-kindergar-ten program. On August 12, 2002, she signed a one-year contract of employment commencing that day and ending on July 31, 2003. Keiser was to earn a yearly salary of $21,193.00 to be paid in bi-monthly installments. The contract further provided that full-time staff members are entitled to ten sick days with pay per year.

Paragraph 14 of the teacher contract contained the following stipulated damages clause:

In the event that the teacher fails to fulfill the obligations set forth in this agreement prior to the effective termination date then in such event the teacher shall, ipso facto, be deemed to have breached this agreement. The school shall be entitled to recover such damages as it may have incurred as a result of such breach, including but not limited to, costs and expenses in the hiring of substitute and/or replacement teacher^), or other incidental damages. Alternatively, at the sole option of the school, the school shall be entitled to recover from the teacher the sum of $2,500.00 as stipulated damages, which sum the teacher agrees to pay as damages if the school chooses this alternative.

Both Keiser and the school’s principal, Sherry Fontana, acknowledged that at the time the contract was signed, Keiser inquired |2about the above-quoted provision and was assured by Fontana that the provision had never been enforced.

Keiser received a total of four paychecks on these dates in 2002: August 30, September 13, September 30, and October 15, each for gross pay of $921.43, or a total of $3,685.72. On October 9, 2002, Keiser gave to Fontana a letter of resignation effective October 25, 2002, since she had taken another teaching position with the Ouachita Parish School Board (OPSB). On October 25, 2002, Keiser worked her last day at the school.

The parties stipulated that the gross wages which Keiser had not been paid were $2,602.56 and the net (after governmental withholding) wages were $2,069.81. The evidence also established that Keiser was supposed to work a total of 182 seven-hour days at a daily gross rate of $116.45.

On November 1, 2002, Keiser went to the school and met with Fontana regarding her unpaid wages. At their meeting, Fontana took a check from a folder and indicated to Keiser that it was her last paycheck. However, the principal told Keiser she would have to endorse it back over to the school for payment of the stipulated damages reflected in the contract. The meeting was witnessed by the school’s bookkeeper, Maria Pipes. All parties admit that the check was not actually delivered to Keiser, who did not agree to endorse the check back over to the school. When Keiser departed, Fontana replaced the check in the folder from which she had taken it.

On November 5, 2002, Keiser called Fontana to inquire again about her unpaid wages. Fontana indicated that she would not reconsider her | .¡position and that Keiser would have to take legal action to pursue the matter any further. On the same date, Fontana executed a form for the Ouachita Parish School Board entitled “Verification of Teaching Experience and Sick Leave,” indicating that Keiser had earned 2.5 days of sick leave and used one, leaving her with a balance of 1.5 sick leave days. The form was apparently solicited by the OPSB, Keiser’s new employer.

On November 6, 2002, Keiser mailed a certified letter to Fontana making a written request for her unpaid wages, or in the alternative, a written statement regarding the amount of wages being withheld. Fon-tana did not respond to the request.

On April 16, 2003, Keiser filed a rule requesting that the Diocese be ordered to show cause why judgment should not be rendered against it and in favor of Keiser for all past due wages plus statutory penalties and attorney fees under La. R.S. 23:632. The matter was heard on September 23, 2003, after which the trial court took the matter under advisement.

On November 13, 2003, the court issued its reasons for judgment finding that the plaintiff was entitled to $2,069.81 in unpaid wages, $108.13 for accrued unused sick leave, 90 days of wages totaling $10,480.50, and attorney fees in the amount of $3,000.00. A judgment to this effect was signed on December 8, 2003. The Diocese appealed.

LAW

La. R.S. 23:631 provided at the time, in pertinent part:

A(l)(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the |4empIoyment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.
La. R.S. 23:632 provides:
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.
La. R.S. 23:634(A) provides:
No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

DISCUSSION

On appeal, the Diocese contended the trial court erred in:

• concluding that the provision in the teacher’s contract for stipulated damages in the event of Reiser’s breach was a “forfeiture of wages” provision and, therefore, against public policy; and,
| awarding past due wages, penalty wages, and attorney fees by failing to apply the principle of compensation to extinguish the school’s debt for unpaid wages.

In answering the appeal, Reiser assigns error to the trial court’s:

• refusal to admit her W-2 into evidence, and
• award of compensation for only 6.5 hours of sick leave.

She also requests additional attorney fees relative to this appeal.

Sick Leave

The issue is whether, on the basis of the evidence presented, Reiser proved that she was due more than 6.5 hours in sick leave as of the date of her resignation. We find that she did, based upon the school’s own documentation. However, Reiser’s assertion that she is due the entire ten days of sick leave (less the sick leave actually used) is patently unreasonable. The evidence showed she had used one full day plus half an hour of another day as sick leave. To award almost nine days of unused sick leave would be an unconscionable windfall and contrary to all common sense and contractual interpretation. Her entitlement to sick leave is based upon what portion of the contractual term she actually worked.

The only evidence in this sparse record on the issue of sick leave is the teacher’s contract, which states that all full-time staff members are entitled to ten days of sick leave with pay per year. The principal’s testimony on sick leave accrual and the OPSB form executed by the school’s principal showed that Reiser was entitled to 1.5 days of sick leave as of the date of her resignation.

lfiThe burden to prove wages due and accumulated sick days was Reiser’s. After thoroughly reviewing the record and examining the entirety of the testimony and documentary evidence, we conclude that Reiser had worked 30% of the school year (the 54 days Reiser worked from August until October 25, divided by 182 work days in the school year). Accordingly, she was entitled to 30% of the ten days of sick leave provided for in her contract, or three days. Based upon seven-hour workdays, Reiser had earned a total of 21 hours of sick leave, of which she had used 7.5 hours. Thus she was entitled to 13.5 hours of sick leave (in contrast to the 6.5 hours awarded by the trial court) as of the effective date of her resignation. At the rate of $16.64 per hour, Reiser was entitled to $224.64 in compensable sick leave (as opposed to the $108.13 awarded by the trial court).

Stipulated Damages Clause and Compensation

To recover penalty wages, the claimant must show that (1) wages were due and owing, (2) demand for payment thereof was made where the employee was customarily paid, and (3) the employer did not pay upon demand. Winkle v. Advance Products & Systems, 98-694 (La.App. 3d Cir.10/28/98), 721 So.2d 983. A trial court’s findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error. Loup v. Louisiana State School for the Deaf, 98-0329 (La.App. 1st Cir.2/19/99), 729 So.2d 689.

Keiser satisfied her burden of proof under La. R.S. 23:632 and established her entitlement to penalty wages. She proved that (1) the school Lowed her wages at the time of her resignation, (2) she made written demand upon the school at its customary place of business, which is where she was customarily paid, and (3) the school did not pay upon demand.

The next issue is whether the school proved an equitable defense to their liability for the unpaid wages. A claim for penalty wages under La. R.S. 23:632 may be defeated by an equitable defense. Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233. However, it is only “a good-faith, non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability” which permits a court to excuse the employer from the imposition of penalty wages. Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978).

An employer’s reliance on an unlawful company policy does not constitute a good faith, non-arbitrary defense to liability for unpaid wages under La. R.S. 23:632. Beard, supra. Louisiana courts have recognized that an employer’s claim of setoff, or compensation, constitutes an equitable defense to a penalty wage claim. See Richard v. Vidrine Automotive Services, Inc., 98-1020 (La.App. 1st Cir.4/1/99), 729 So.2d 1174; Brown v. Navarre Chevrolet, Inc., 610 So.2d 165 (La. App. 3d Cir.1992); and Demery v. Cook, 525 So.2d 157 (La.App. 3d Cir.1988). In the present case, the school claims it is not liable for penalty wages because its debt was extinguished by a setoff of Reiser’s debt for the stipulated damages of $2,500.00 set forth in the teacher’s contract.

| ¡¡Legal compensation takes place when two persons owe each other sums of money or quantities of fungible things identical in kind, and these sums or quantities are liquidated and presently due. La. C.C. art. 1983. It is only applicable when two distinct debts, equally liquidated and demandable, exist contemporaneously. Hill Wholesale Distributing Co., Inc. v. Louis W. Howat & Son, 27,936 (La.App.2d Cir.1/24/96), 666 So.2d 1252. One who asserts compensation necessarily admits the debt sued upon. Hill, supra, citing Tolbird v. Cooper, 243 La. 306, 143 So.2d 80 (1962). As the party claiming compensation as an affirmative defense, the Diocese had the burden of proving the extinguishment of the debt for unpaid wages. Winkle, supra.

The Diocese is unable to show extin-guishment of the debt. The parties stipulated that Reiser’s gross unpaid wages at the time of her resignation amounted to $2,602.56. All this money actually belonged to her, not the government, at least until her taxes were finally computed the next year.

The record further reveals that Reiser was also entitled to $224.64 in compensable unused sick leave. Therefore, at the time of her resignation, Reiser was owed $2,827.20 in unpaid wages. Even if the $2,500.00 in stipulated damages could have been appropriately taken by the Diocese as a setoff of her obligation to them, Reiser would still have been owed $327.20.

| flBecause the Diocese was obligated to tender any undisputed amount, the trial court did not err in finding that a violation of La. R.S. 23:631 occurred. The trial court properly assessed penalty wages and attorney fees against the Diocese.

The only question remaining is whether the Diocese was entitled to setoff for the stipulated damages as provided in Reiser’s contract. As noted above, the jurisprudence is clear that compensation is a defense to a penalty wage claim. The Diocese was only entitled to the setoff if the trial court erred in its conclusion that the stipulated damage clause is the equivalent of a forfeiture of wages provision and, therefore, against public policy. Beard, supra. The trial court properly found that the stipulated damages clause was the equivalent to a prohibited forfeiture of wages.

While stipulated damage clauses are provided for in La. C.C. art. 2005, et seq., they should reasonably approximate the obligee’s loss in the event of a breach and should not be penal. American Leasing Company of Monroe, Inc. v. Lannon E. Miller & Son, General Contracting, Inc., 469 So.2d 325 (La.App. 2d Cir.1985). To determine the reasonableness, the court should inquire as to whether the parties attempted to approximate the actual damages in confecting the agreement. Carney v. Boles, 25,905 (La.App.2d Cir.9/21/94), 643 So.2d 339. In reviewing the entire record, it is clear that the stipulated damage clause in the teacher’s contract is not enforceable.

Both Reiser and Fontana’s testimony reflects that the stipulated damage clause does not reflect an attempt by the parties to approximate the actual damages which might be suffered by the school in the event Reiser | inleft her employment early. To the contrary, the evidence establishes that the clause was part of the school’s standard teacher contract. Furthermore, when Reiser expressed concern about the clause, she was informed that the clause had never been enforced against any other employees.

In addition to the admission that the clause does not reflect an attempt to approximate the actual damages, the record is devoid of any evidence regarding actual damages suffered. While Fontana testified that she had to hire a substitute for five weeks until Reiser’s teacher’s aide was hired as the permanent replacement, there was no indication that the substitute made more or even the equivalent of what the school would have paid Reiser during the same time period.

We find under the circumstances of this particular case that the $2,500.00 stipulated damage clause, more than Reiser made in a month, is unenforceable as a de facto forfeiture of wages clause expressly prohibited under La. R.S. 23:631. Accordingly, we find no error in the trial court’s refusal to give the clause any effect.

Louisiana Civil Code Article 2750

The Diocese also argues that the trial court erred in failing to apply the provisions of La. C.C. art. 2750 to find that Reiser was not entitled to her unpaid wages. It provides:

But if, on the other hand, a laborer, after having hired out his services, should leave his employer before the time of his engagement has expired, without having any just cause of complaint against his employer, the laborer shall then forfeit all the wages that may be due to him, and shall moreover be compelled to repay all the money he has received, either as due for his wages, or in advance thereof on the running year or on the time of his engagement.

InAs suggested by the introductory language to the article, this provision is an extension of the preceding article, La. C.C. art. 2749, which provides as follows:

If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

An editor’s note to this article indicates that the English translation from the French text is incomplete and omits the phrase “as said in the foregoing article” following the phrase “for a certain time.” Accordingly, the applicability of Articles 2749 and 2750 may have been intended to be limited by the provisions of La. C.C. art. 2748, which reads:

Laborers, who hire themselves out to serve on plantations or to work in manufactures, have not the right of leaving the person who has hired them, nor can they be sent away by the proprietor, until the time has expired during which they had agreed to serve, unless good and just causes can be assigned.

Reiser is not a laborer hired out to work on either a plantation or in manufacturing. Therefore, to the extent this article’s applicability was intended to be limited to such employees, the trial court did not err in failing to apply it to the facts herein. Nevertheless, to the extent the provisions of this article might be in conflict with La. R.S. 23:634, we agree with the position set forth in Litvinoff, The Law of Obligations, § 14.29, Forfeiture of Salaries Problem and Solution, 6 Louisiana Civil Law Treatise (1999), on the present viability of La. C.C. article 2750:

One century later, by special act, the Louisiana Legislature provided that employees shall not enter into contracts by which they shall forfeit their wages if they are discharged or if they resign their employment before expiration l1P,of the contractual term, and that in every such cases [sic] the employee shall be entitled to the wage actually earned up to the time of his discharge or resignation. Without having been expressly repealed, the article of the Louisiana Civil Code that provided to the contrary had thus been deprived of effect.

We hold that the present case is controlled by provisions of La. R.S. 23:634 and that the provisions of La. C.C. art. 2750 are not applicable.

Exclusion of Reiser’s W-2

Reiser’s assignment of error that the trial court erred in excluding her W-2 from evidence is moot. Reiser argues that the W-2 is evidence that Reiser never in fact received payment for her unpaid wages. The parties admitted Reiser did not receive wages. Any error in this regard was harmless.

Additional Attorney Fees

We find that $1,250.00 will adequately compensate counsel for defending and pursuing this appeal.

CONCLUSION

The trial court’s judgment is hereby amended to increase the award for sick leave pay from $108,09 to $224.64. In addition, additional attorney fees in the amount of $1,250.00 are assessed against Catholic Diocese of Shreveport, Inc. The judgment is affirmed in all other respects. All costs of this appeal shall be borne by the Diocese.

AMENDED, AND AS AMENDED, AFFIRMED.

      . While the trial court only awarded Keiser the net (after withholding) wages of $2,069.81, Keiser was actually entitled to the gross amount of her unpaid wages. As Keiser did not assign error to this ruling in its answer to the appeal, we must decline to amend the judgment in this regard. In argument, Reiser's attorney stated that the W-2 form that Keiser received from the Diocese showed that she had been compensated in full and that Reiser had paid taxes based upon the W-2.


source: Caselaw Access Project

author: I,STEWART, J.

license: Public Domain

text:
    SUCCESSION OF William Ivey TAYLOR.
    No. 38,732-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    John W. Montgomery, Minden, for Appellant, Robert Huddleston.
    Peters, Ward, Bright & Hennessy, by Frank Bright, Shreveport, for Appellee, Sharon Griffin.
    Before STEWART, GASKINS and LOLLEY, JJ.
   I,STEWART, J.

This is an appeal by Robert Huddleston, plaintiff/appellant, from a judgment probating the will of his maternal uncle, William Ivey Taylor. Because we find no error on the part of the trial judge, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts of this litigation are not contested. William Ivey Taylor died on July 28, 1998. Taylor left no surviving spouse, ascendants or descendants. Taylor purportedly left an olo-graphic will dated March 13, 1991, leaving all of his belongings to his surviving sister, Sharon Taylor Griffin. Taylor was predeceased by another sister, Patsy Ruth Taylor Huddleston.

On August 3, 1998, Griffin filed a petition to appoint a provisional administratrix of Taylor’s succession and submitted his handwritten testament for probate. In addition to the testament, the petition was accompanied by the affidavits of two witnesses attesting to the fact that the testament was entirely written, dated, and signed in Taylor’s handwriting. That same date, the trial court issued an order appointing Griffin as the provisional ad-ministratrix of the succession upon her compliance with the legal requirements thereof. Griffin subsequently posted the required bond and was issued letters of provisional administratrix.

On December 21, 1998, Griffin filed a petition for judgment of possession, for waiver of accounting and tableau of distribution, and for discharge as administra-trix. The petition was accompanied by a detailed descriptive list setting forth all of the decedent’s assets. On that same date, lathe trial court signed a judgment of possession recognizing Griffin as Taylor’s sole legatee and placing her in possession of all the decedent’s property as set forth in the detailed descriptive list. The judgment also discharged Griffin as administratrix and cancelled the bond.

On August 1, 2003, Robert David Hud-dleston filed a petition to decree Taylor as having died intestate, to set aside the previously rendered judgment of possession, and for a new judgment of possession declaring Huddleston and his brother, William Ray Huddleston, as the lawful heirs to one-fourth each of Taylor’s property, and Griffin as the lawful heir to the remaining one-half. The Huddleston brothers are the children of Patsy Ruth Taylor Huddleston, the decedent’s sister who preceded him in death. The petition, filed less than five years since the judicial opening of the succession by Taylor’s petition for appointment of provisional administra-trix, claimed that the last will and testament presented by Griffin had never been probated and that the opportunity to do so had now prescribed.

Griffin responded by filing peremptory exceptions of no cause of action and no right of action on September 23, 2003. The exceptions were argued before the trial court on November 18, 2003. The trial court denied the exceptions and ordered the succession to be re-opened for hearing on the probate of the last will and testament. After the brief probate hearing on December 16, 2003, the trial court signed an order probating the March 13, 1993, last will and testament of William Ivey Taylor.

| ¡¡Robert David Huddleston appealed on the grounds that the will could not be probated after passage of five years from the date of the opening of the succession. Griffin answered the appeal on the basis that the trial court erred in not ruling that the December 21, 1998, judgment of possession had the effect of an order of probate.

DISCUSSION

Huddleston argues that because prescription had run under La. C.C.P. art. 2893 and La. R.S. 9:5643, the trial court erred in probating the will. We disagree.

La. C.C.P. art. 2893 provides:

No testament shall be admitted to probate unless a petition therefor has been filed in a court of competent jurisdiction within five years after the judicial opening of the succession of the deceased.

This statute does not operate to prohibit the probating of the will in the present case. The earliest time that the judicial opening of Taylor’s succession could be deemed to have occurred was when the initial petition for appointment of a provisional administrator was filed six days after Taylor’s death. In that same petition, Griffin submitted the olographic will for the express purpose of probate and also submitted the requisite affidavits for probating an olographic will. Consequently, the trial court did not err in concluding that a petition for probate was filed within five years of the judicial opening of the succession of the deceased.

La. R.S. 9:5643 provides:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession of the deceased.

l4The interruption of this prescriptive period was discussed in the Succession of Daigle, 2001-1777 (La.App. 1st Cir.6/21/02), 822 So.2d 83, writ denied, 2002-2389 (La.11/22/02), 829 So.2d 1045, wherein the First Circuit Court of Appeal reasoned:

Liberative prescription is a mode of barring of actions as a result of inaction for a period of time. La. C.C. art. 3447. La. C.C. art. 3462 provides, in pertinent part, “Prescription is interrupted ... when the obligee commences action against the obligor, in a court of competent jurisdiction and venue.” La. C.C. art. 3464 provides, “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” By analogy, the prescriptive period applicable to the probate of a testament is interrupted by the filing of a petition to probate the testament in the proper court. [Footnote omitted]. If the petition to probate is filed within five years of the judicial opening of the succession, the probate of the testament can proceed; if it is filed more than five years later, it is procedurally barred.

We agree with the first circuit’s analysis. The initial petition in this matter which both judicially opened the succession and requested probate of the testament simultaneously commenced and interrupted the running of prescription for probate of the testament under La. R.S. 9:5643. Accordingly, the assignment of error urged by the appellant is without merit.

Having found that the trial court did not err in admitting the will into probate by its judgment of December 16, 2003, we need not address the question raised in Griffin’s answer to the appeal of whether the December 21, 1998, judgment of possession constituted an order of probate.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are to be borne by the appellant, Robert David Hud-dleston.

AFFIRMED.


author: h STEWART, J.

text:
    Stephanie Doskocil McINNIS, Plaintiff-Appellee v. Harold Wayne McINNIS, Defendant-Appellant.
    No. 38,748-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Rollin W. Cole, Jr., for Appellant.
    Mayer, Smith & Roberts, by Steven E. Soileau, Shreveport, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   h STEWART, J.

The defendant, Harold Wayne Mclnnis, appeals a judgment in favor of the plaintiff, Stephanie Doskocil Mclnnis, for past due periodic support payments in the amount of $5,100.00, with interest from date of judicial demand. We affirm the trial court’s judgment.

FACTS

On October 8, 1999, Stephanie Mclnnis filed a petition for a protective order against her husband, Harold Mclnnis, pursuant to La. R.S. 46:2131, et seq., of the Protection From Family Violence Act. Ms. Mclnnis’ petition included a request for “temporary spousal support.”

At a hearing on October 18, 1999, the parties reached an “interim agreement” as to the relief requested by Ms. Mclnnis in her petition. Counsel for Mr. Mclnnis read the parties’ stipulations into the record. The stipulations provided for reciprocal protective orders and injunctions, as well as use of certain community property. Addressing the stipulation as to Ms. Mcln-nis’ request for temporary support, counsel for Mr. Mclnnis stated:

And we have agreed to continue the rule for some temporary spousal support to a date to be agreed upon by Ms. Johnson and myself. And we will submit a joint motion on that to the court; however, in the interim, we have agreed that Ms. Mclnnis may receive three hundred dollars as temporary spousal support, which is to come from rent on a trailer that the parties own in common, pending further hearing.

After the stipulations were recited on the record, the trial judge discussed the import and consequences of the protective order and directed counsel to ascertain Mr. Mclnnis’ understanding of the agreement. The | ¿following colloquy between Mr. Mclnnis and his attorney, Rollin Cole, occurred:

MR. COLE: Mr. Mclnnis, you have heard the stipulation that I have entered into the record this morning and also the discussion from the bench by the judge concerning that?
MR. MCINNIS: Yes.
MR. COLE: Do you understand the nature of this order, and are you in agreement with it?
MR. MCINNIS: Yes.
MR. COLE: And you are in agreement with the other stipulations that have been offered this morning?
MR. MCINNIS: Yes.
MR. COLE: Do you feel like you understand it?
MR. MCINNIS: I understand it.
THE COURT: You understand it and will obey it?
MR. COLE: Will you agree to obey all orders of the Court?
MR. MCINNIS: Yes, sir.

No further proceedings occurred, no other orders were issued, and no written judgment was prepared or signed.

On March 15, 2000, Ms. Mclnnis filed a petition for divorce which included a request for temporary spousal support. However, the couple obtained a divorce in a separate proceeding filed by Mr. Mcln-nis. Then, on August 14, 2003, Ms. Mcln-nis filed “Rule to Accrue Past Due Support and for Contempt,” seeking to collect support of $300.00 per month as agreed to by Mr. Mclnnis at the hearing on October 18, 1999.

IsAsserting that there was no judgment ordering him to pay support, Mr. Mclnnis opposed the claim for past due support payments. As an alternative, Mr. Mclnnis argued that any support obligation was limited to eighteen months in accordance with La. R.S. 46:2136(F). He also asserted reconciliation as a defense to Ms. Mcln-nis’ claim.

At a hearing on September 22, 2003, the transcript of the hearing on October 18, 1999, was introduced into evidence, and the trial court heard the testimony of both parties. Harold Mclnnis testified that he was not aware of any final judgment ordering spousal support; however, he also testified as follows:

I understood that I was ordered to pay her or I agreed to pay her $800 per month, but it was to be collected by her for a trailer that she and I owned jointly, and I was to have nothing to do with it. That was my understanding that she was supposed to be paid the rent by the tenant, and it wasn’t supposed to go through me, and that was all I knew.

Mr. Mclnnis testified that he was not aware of whether Ms. Mclnnis collected any rent. Objections by Ms. Mclnnis’ counsel to questions pertaining to Mr. Mclnnis’ claim of reconciliation were sustained.

Stephanie Mclnnis testified that she collected one rental payment of $300 from the tenant. According to Ms. Mclnnis, the tenant told her that she could not pay her anymore because the payment had to go to “Harold’s hand.” Ms. Mclnnis also testified that she did not pursue payment from Harold at the time because he told her that she “wouldn’t see a dime of it.”

In written reasons for judgment, the trial court determined that the agreement entered into by the parties at the hearing on October 18, 1999, was a consent agreement which put an end to all existing claims between |4them. In addition, the trial court determined that the agreement was effective for eighteen months as no contradictory hearing was ever requested. The trial court rendered a judgment awarding Ms. Mclnnis $5,100.00 ($5,400 minus the credit of $300 for the payment she received) with interest from date of judicial demand and costs assessed to Mr. Mclnnis. This appeal followed.

DISCUSSION

In his first two assignments of error, Mr. Mclnnis challenges the trial court’s finding that the parties entered a consent agreement for payment of support. He argues that there was no agreement personally obligating him to pay support. Rather, the parties agreed to continue the matter of support and provided a temporary relief measure allowing Ms. Mclnnis to collect the rental on a trailer. Mr. Mclnnis also argues that any agreement reached was invalid due to noncompliance with La. R.S. 46:2136; he complains that he was not served with a protective order.

La. C.C. art. 3071 provides:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

| ¡¡Jurisprudence defines a consent judgment as a bilateral contract whereby the parties adjust their differences by mutual consent and thereby end the lawsuit with each party balancing the hope of gain against the fear of loss. McDaniel v. McDaniel, 567 So.2d 748 (La.App. 2d Cir. 1990). A consent agreement has binding force from the voluntary acquiescence of the parties, not from the court’s adjudication. Gulledge v. Gulledge, 32,561 and 32, 562 (La.App.2d Cir.8/18/99), 738 So.2d 1229. Once a consent judgment is read into the record, it becomes a legal judgment even if not reduced to writing. Magdon v. Guertin, 97-0235 (La.App. 4th Cir.10/1/97), 701 So.2d 480, writ denied, 97-2400 (La.12/12/97), 704 So.2d 1201.

The trial court correctly determined that the parties entered into a consent agreement. As shown by the transcript of the proceedings of October 18, 1999, the stipulations were recited on the record by Mr. Mclnnis’ counsel. The stipulations resolved the matters then in dispute. Through these stipulations, Mr. Mclnnis agreed that Ms. Mclnnis was to receive temporary support in the amount of $300. Though the stipulation also provided that the rule for support would be continued, no further proceedings occurred. Consequently, the agreement had the effect of ending litigation on Ms. Mclnnis’ petition for protective orders.

Mr. Mclnnis’ reliance on the procedural requirements of La. R.S. 46:2136 is misplaced. The parties reached an agreement which resolved the issues raised by Ms. Mclnnis in her petition for protective orders. While La. R.S. 46:2136(B)(1) provides that the court may render a protective order if the parties enter a consent agreement, issuance of such an order is not | ^mandated. Moreover, nothing in the statute suggests that a consent agreement reached by parties would be invalid between them if no written order is issued by the court and served on the person to whom the order applies.

Mr. Mclnnis argues that he did not personally obligate himself to pay support and points out that the stipulation provided for payment to come from rental on a trailer. However, he testified at trial that he “agreed to pay her $300 month.” This testimony establishes Mr. Mclnnis’ understanding that the ultimate responsibility for payment of the support obligation was his even though the source of the funds was to be from rental income. Testimony at trial suggests that Mr. Mclnnis interfered with Ms. Mclnnis’ collection of the rental payments. Regardless of what transpired with the tenant, Mr. Mclnnis bore the ultimate obligation for payment of the amount agreed to by the parties. Accordingly, we find no merit in Mr. Mcln-nis’ first two assignments of error.

In his third assignment of error, Mr. Mclnnis complains that the trial court erred in not allowing evidence of reconciliation. Mr. Mclnnis’ argument that evidence of reconciliation was improperly excluded by the trial court’s sustaining an objection of collateral estoppel is without merit. In the reasons for judgment, the trial court correctly determined that the agreement for payment of support could not be classified as an agreement for payment of interim spousal support. Under La. C.C. art. Ill, awards of interim spousal support are limited to proceedings “for divorce or thereafter.” Moreover, Mr. Mclnnis’ defense of reconciliation is based on|7La. C.C. art. 104, which provides, “The cause of action for divorce is extinguished by the reconciliation of the parties.” Ms. Mclnnis’ request for support and the consent agreement for payment of support were not part of a proceeding for divorce; rather, this matter was brought and resolved under the provisions of the Protection From Family Violence Act and prior to either party filing for divorce. Accordingly, the defense of reconciliation provided by La. C.C. art. 104 does not apply, and evidence relevant to the defense was not improperly excluded.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . The eighteen month limit is taken from La. R.S. 46:2136(F), which provides:
      F. Any final protective order or approved consent agreement shall be for a fixed period of time, not to exceed eighteen months, and may be extended by the court, after a contradictory hearing, in its discretion. Such protective order or extension thereof shall be subject to a devolutive appeal only.


author: hBROWN, C.J.

text:
    Robert JONES, Jr., Plaintiff-Appellant v. Victor HERNANDEZ, M.D., Defendant-Appellee.
    No. 38,818-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Cicardo Law Firm, by V. Ross Cicardo, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Lawrence W. Pettiette, Jr., Shreveport, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   hBROWN, C.J.

This medical malpractice action was instituted by plaintiff, Robert Jones, Jr., a 23-year-old airman stationed at Barksdale Air Force Base, against defendants, Dr. Victor Hernandez and Louisiana Mutual Insurance Company (“LAMMICO”). On the night of October 30, 1999, plaintiff went to the emergency room at Christus Schumpert Medical Center in Shreveport, Louisiana. Dr. Hernandez was the general surgeon on call. After explaining the situation to plaintiff and to plaintiffs father in Kentucky by telephone, Dr. Hernandez removed plaintiffs gallbladder by performing an emergency laparoscopic cholecystectomy early the next morning.

About a month after being discharged from the hospital, Jones went to the clinic at Barksdale reporting nausea, vomiting, orange urine, pale gray stools, and yellow eyes. Thereafter, on November 30, 1999, he was readmitted to Christus Schumpert. On December 1, 1999, tests revealed a near obstruction of the common hepatic duct near the site of surgical clips used by Dr. Hernandez in the cholecystectomy.

On December 3, 1999, Jones underwent an exploratory laparotomy performed by Drs. Gazi Zibari and Earl Walker. The cause of obstruction [¿was determined to be a surgical clip blocking the common hepatic duct. This obstruction was corrected with a Roux-en-y procedure.

Jones filed a request for a medical review panel on October 10, 2000, asserting negligence on the part of Dr. Hernandez. On January 15, 2002, the panel rendered an opinion in favor of Dr. Hernandez, finding no malpractice on his part in performance of the emergency laparoscopic chole-cystectomy on claimant. Thereafter, on April 16, 2002, Jones filed a petition seeking damages from Dr. Hernandez and LAMMICO. The matter was tried in June 2003. The issues presented at trial were whether the common duct was clipped, and if so, whether this was a recognized risk of the procedure; and whether defendant breached the standard of care by not converting from a laparoscopic to an open procedure.

The trial court issued written reasons on September 23, 2003, and rendered judgment in favor of defendants on October 9, 2003. It is from this judgment that Jones has appealed, claiming manifest error. We affirm.

Discussion

Plaintiff asserts that the trial court erred in failing to find that Dr. Hernandez deviated from the applicable standard of care by: (1) placing a clip on the common hepatic duct; (2) failing to convert from a laparoscopic cholecystectomy to an open procedure; and (3) failing to recognize and correct the improperly placed clip.

La. R.S. 9:2794 requires that in a medical malpractice action against a specialist, the plaintiff must prove by a preponderance of the evidence: (1) |3that the physician’s treatment fell below the standard of care applicable to a doctor in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991); Powell v. Fuentes, 34,666 (La.App.2d Cir.05/09/01), 786 So.2d 277, writ denied, 01-1675 (La.09/21/01), 797 So.2d 674; Marks v. Jones, 29,881 (La.App.2d Cir.12/10/97), 705 So.2d 262; Roberts v. Cox, 28,094 (La.App.2d Cir.02/28/96), 669 So.2d 638.

An unsuccessful course of treatment is not per se an indication of malpractice. Wainwright v. Leary, 623 So.2d 233 (La.App. 2d Cir.1993), writ denied, 629 So.2d 1127 (La.1993). A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession, and to use reasonable care, diligence, and judgment. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986); Hughes v. Bailey, 29,314 (La.App.2d Cir.04/02/97), 691 So.2d 359. A physician is not required to exercise the highest degree of care possible. Instead, his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. The law does not require absolute precision from a physician. A physician’s conduct and professional judgment are to be evaluated in terms of reasonableness under the existing circumstances and are not to be viewed in hindsight, in terms of results, or in light of subsequent events. Campbell v. Hospital Service District No. 1 Caldwell Parish, 37,876 (La.App.2d Cir.12/10/03), 862 So.2d 338, writ denied, 04-0069 (La.03/19/04), 869 So.2d 852; |4Marks, supra; Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App. 2d Cir.1991), writ denied, 595 So.2d 657 (La.1992).

The assistance of expert testimony is needed to establish the applicable standard of care, whether the standard of care was breached by the defendant doctor’s conduct, and whether that breach resulted in injury to the plaintiff. Edwards v. Raines, 35,284 (La.App.2d Cir.10/31/01), 799 So.2d 1184; Pugh v. Beach, 31,361 (La.App.2d Cir.12/11/98), 722 So.2d 442. The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Green v. K-Mart Corporation, 03-2495 (La.05/25/04), 874 So.2d 838; Bolton v. Louisiana State University Medical Center, 601 So.2d 677 (La.App. 2d Cir.1992); Sawyer v. Niagara Machine and Tool Works, 535 So.2d 1057 (La.App. 2d Cir. 1988), writ denied, 536 So.2d 1222 (La.1989). The importance placed upon such testimony is largely dependent upon each expert’s qualifications and the facts that form the basis of each opinion. Solito v. Horseshoe Entertainment, 36,667 (La.App.2d Cir.12/18/02), 834 So.2d 610; Bolton, supra; Winford Co., Inc. v. Webster Gravel and Asphalt, 571 So.2d 802 (La.App. 2d Cir.1990). Where there are contradictory expert opinions concerning compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Lyons v. J.A. Auger, Inc., 35,691 (La.App.2d Cir.06/12/02), 821 So.2d 536, writ denied, 02-2337 (La.11/15/02), 829 So.2d 437; Marks, supra; Wainwright, supra.

[(¡The threshold element that a medical malpractice claimant must establish in an action against a specialist such as Dr. Hernandez is that the conduct of the defendant physician fell below the applicable standard of care. Edwards, supra; Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134.

To establish the standard of care applicable to general surgeons who perform gallbladder surgeries, plaintiff presented the expert testimony of Earl Walker, M.D., and introduced into evidence the deposition testimony of David Rayburn, M.D., a general surgeon practicing in the Alexandria/Pineville area and a member of the medical review panel in this case.

Earl Walker, M.D., is a retired general surgeon who, after years of private practice, enlisted in the Air Force. During that time, he served as chief of the medical staff at Barksdale Air Force Base. Dr. Walker noted that for the first two years he was stationed at Barksdale, there were on-base facilities for surgeries, including gallbladder removals, but because of cutbacks, beginning in 1997 the base was restricted to providing only clinic services. By the time that Jones required emergency gallbladder surgery, October 1999, all surgical procedures were done off base.

Dr. Walker first saw Jones on November 30, 1999. At that time, Jones was complaining of nausea, vomiting, orange/yellow urine, and gray stools. From his physical exam, Dr. Walker found that Jones was jaundiced, and the doctor referred Jones to Christus Schumpert. Given Jones’ history of prior gallbladder surgery, Dr. Walker consulted with Dr. Dale McGinty, |fiwho performed an endoscopic retrograde cholangiography, which revealed an obstruction in the proximal portion of Jones’ common hepatic duct. Specifically, there was a surgical clip across the common duct. Dr. Walker conceded that the obstruction was not total, but was a partial occlusion. Had the clip caused a total obstruction, Jones would have been symptomatic immediately, rather than four weeks post-op.

Dr. McGinty recommended surgical intervention at that time. Dr. Walker, who had not done a Roux-en-Y procedure in over ten years, requested the services of Dr. Gazi Zibari, a liver transplant specialist at LSU Health Sciences Center. Dr. Walker testified that he assisted Dr. Zibari during the procedure and observed a clip across the common hepatic duct, approximately lk centimeters from the bifurcation of the left and right hepatic ducts. The clip had caused formation of dense fibrotic tissue around the area. Dr. Walker noted that the Roux-en-Y procedure was successful.

In his 40 years experience as a general surgeon, Dr. Walker stated that he has performed both open and laparoscopic cholecystectomies. The laparoscopic procedure was developed to shorten the patient’s hospital stay and to cause less trauma to the abdominal wall. Dr. Walker acknowledged that there is no difference in the standard of care for emergent versus elective gallbladder surgery. Dr: Walker opined that converting from a la-paroscopic procedure to an invasive open one is indicated if there is |7excessive inflammation and/or edema of the gallbladder or if excessive bleeding is encountered.

Having reviewed all of the pertinent medical records, Dr. Walker testified that, given the fact that Jones had overwhelming inflammatory changes in his gallbladder, together with distension, redness and edema, the standard of care required Dr. Hernandez to convert from a laparoscopic to an open procedure.

According to Dr. Walker, in a typical laparoscopic cholecystectomy in which there' are no complications, an expected blood loss would be around 15-22 ccs. In Jones’ case, Dr. Hernandez noted a blood loss of 100 ccs. The standard of care, when there is such a large amount of blood lost, requires conversion from a laparo-scopic procedure to an open one.

Furthermore, it is within the standard of care for surgeons who perform cholecys-tectomies to confirm proper placement of the surgical clips used prior to terminating the procedure. Clip placement compromises blood flow to the area clipped. It is a common occurrence for scar tissue to form around or at the site of a surgical clip. The body responds to a foreign body such as a clip, which it isolates by forming fibrous tissue around the object. Specifically, bile fluids in the common hepatic duct also have an effect on the development of scar tissue.

Dr. David Rayburn, a board certified general surgeon in private practice in the Alexandria/Pineville area, testified via deposition. Dr. Rayburn served on the medical review panel in the instant case. He noted that he has performed numerous abdominal surgeries, including open and | ^laparoscopic gallbladder removals. Dr. Rayburn reaffirmed the panel’s conclusion that Dr. Hernandez met the applicable standard of care for a general surgeon in his care and treatment of Jones.

The pertinent records show that there was no question but that Jones, who had acute cholecystitis, presented an urgent surgical need, and it was in his best interest that his gallbladder be removed as soon as possible. The pathology confirmed that Jones had an inflamed gallbladder and gallstones. Dr. Hernandez’s operative notes support that his decision to proceed laparoscopically was prudent and appropriate.

One day post-operative, Jones’ lab values, particularly the liver function studies, were normal. At that time, there was no indication that his common hepatic duct had been compromised. When Dr. Hernandez saw Jones ten days later, he noted that Jones was doing well, had no infection, and no complaints of any significance.

On cross examination, Dr. Rayburn’s testimony became equivocal. He confirmed that the standard of care requires the surgeon to clearly define the ductal anatomy prior to division and transection. According to Dr. Rayburn, the standard of care regarding conversion from laparosco-py to an open procedure requires conversion only when the surgeon cannot clearly define the ductal anatomy during the course of a laparoscopic procedure.

Dr. Rayburn testified that it is below the applicable standard of care to place clips on the common hepatic duct during a gallbladder removal. Likewise, it is a deviation from the standard of care to fail to recognize that a clip has been placed on the common duct and to correct it prior to closure.

19According to Dr. Rayburn, had Dr. Hernandez placed a clip on the common duct, creating a partial obstruction, and failed to recognize and correct the situation prior to closing, this would have been a deviation from the standard of care. From his review of the pertinent records, however, Dr. Rayburn was adamant that there was no evidence to support the conclusion that a clip had been placed on the common duct. Dr. Rayburn noted that had he been presented with any evidence to show that Dr. Hernandez did in fact place a surgical clip on the common hepatic duct during Jones’ procedure, his opinion that the surgeon met the applicable standard of care would change.

Jones’ post-operative lab values support the conclusion that Dr. Hernandez did not clip the common duct, inadvertently or otherwise. Had a clip been placed such that it was partially obstructing the common duct, Jones’ bilirubin count would have been elevated and this fact would have shown up in the lab workup. Jones had no such change in his lab values. What that indicates to Dr. Rayburn is that Jones did not have a common duct obstruction at that time, or, if he did, it was minimal, occluding at most 10-20% of the common duct.

Dr. Rayburn noted that, with the passage of time and the development of scar tissue, a stricture would have formed, increasing the narrowing and causing an elevation in the bilirubin levels. This was the situation when Jones presented to the hospital on November 30,1999.

As part of his case in chief, plaintiff called Dr. Hernandez on cross examination. When Jones presented to the emergency room on October 31, Iml999, Dr. Hernandez examined him, reviewed x-rays, lab tests, and an abdominal ultrasound, and concluded that Jones had cholecystitis (inflammation of the gallbladder) as well as cholelithiasis (presence of a stone in the gallbladder). Dr. Hernandez felt that emergent laparoscopic gallbladder surgery was indicated.

Dr. Hernandez stated that the standard of care ordinarily practiced by surgeons who perform laparoscopic cholecystecto-mies requires the physician to clearly define the ductal anatomy prior to cutting anything. In a laparoscopic cholecystecto-my, he typically uses four surgical clips on the cystic duct, two close to the gallbladder and two close to the common hepatic duct, and four clips on the cystic artery. In the absence of any biliary connections that require clipping, it is normal for four clips to be left in the patient.

Dr. Hernandez’s operative notes do not indicate that he encountered any vessels or biliary connections which would have required extra clips, but he testified that he could very well have used extra clips and just failed to indicate this in his report.

Dr. Hernandez stated that in a typical gallbladder removal, blood loss is 50-75 ccs, but noted that it is not unusual for blood loss to exceed that, particularly in cases of severe, acute cholecystitis, as was the situation he encountered in Jones’ presentation. In cases in which the patient has excessive bleeding which would prevent dissection, conversion to an open procedure is an option. However, 90% of the time, proceeding laparoscopically is warranted. Dr. Hernandez noted that Jones had a In distended gallbladder with fluid accumulation. He also found a good deal of inflammatory changes in the gallbladder.

Notwithstanding these findings, Dr. Hernandez felt that inasmuch as he was able to dissect and identify the anatomical structures, laparoscopic surgery was appropriate. He conceded that the presence of inflammation and distension makes the procedure more difficult, but testified that he had no trouble identifying the anatomy, so he proceeded laparoscopically. Although he did encounter excessive bleeding in Jones’ case, Dr. Hernandez testified that he controlled the hemostasis (bleeding) through electrocautery.

Dr. Hernandez testified that clipping the common hepatic duct is not in the surgical technique of gallbladder removal. Specifically, placing a clip on the common duct during gallbladder surgery is not within the applicable standard of care. Dr. Hernandez was adamant that he did not place a clip on Jones’ common hepatic duct during the laparoscopic cholecystectomy. Dr. Hernandez reiterated that he placed a clip one-half to one centimeter below the bifurcation of Jones’ right and left hepatic ducts. He also disputes that Dr. Zibari found a clip on Jones’ common duct. According to Dr. Hernandez, scar tissue and inflammation caused the surgical clips he left in Jones to relocate and, along with the cystic duct, crowd the common hepatic duct. This is why a clip was found in scar tissue in the area of Jones’ common duct.

Dr. Hernandez noted that it is a surgeon’s responsibility to look around and make certain everything is in place prior to closing the patient. | ^Particularly, it is within the applicable standard of care for a surgeon to confirm proper clip placement. Although he continued to deny that he placed a clip on Jones’ common hepatic duct, Dr. Hernandez stated that, hypothetically speaking, had he done so and then failed to check the clips for proper placement, he was wrong.

On direct examination, Dr. Hernandez testified that when Jones presented to the emergency room on October 31, 1999, his gallbladder, which was reddened, edema-tous, and inflamed, required emergency surgical intervention. During the laparo-scopic procedure, there was no indication that conversion to an open surgery was necessary.

Dr. Hernandez stated that when bleeding is encountered during a laparoscopic cholecystectomy, it does not automatically require conversion to an open procedure. When the bleeding can be controlled, and the structure to be dissected can be accurately identified, there is no reason to convert mid-procedure.

What happened in Jones’ case was not medical malpractice, but a known complication or risk of gallbladder removal surgery. Dr. Hernandez noted that the rate of complications involving injury to the common hepatic duct during gallbladder surgery is .5-1.5%. Again, Dr. Hernandez denied placing a surgical clip across Jones’ common hepatic duct; a CAT scan, which wasn’t done in this case, would have provided a view of the entire common duct. Nonetheless, inadvertent placement of a surgical slip on the common hepatic duct is a complication of gallbladder surgery.

11sDr. Brian Dockendorf, a board certified general surgeon, served on the medical review panel in this matter. Dr. Dock-endorf related that the panel’s decision was unanimous that Dr. Hernandez met the standard of care applicable to a general surgeon in his treatment and care of Jones. This was still his opinion at trial.

According to Dr. Dockendorf, conversion to an open procedure is necessary when the surgeon is unable to clearly see the gallbladder and surrounding structures, or when faced with bleeding that cannot be controlled with the small instruments utilized during the laparoscopic procedure. Dr. Dockendorf pointed out that changing to an open procedure does not prevent injury or complications, which are the same as those which can occur during la-paroscopic surgery. Injury to the common duct is one of the main complications to occur during gallbladder surgery. In fact, it is listed at the top of the consent form as a potential complication. Based upon his review of the information presented to the review panel and at trial, it was Dr. Dock-endorf s opinion that there was nothing in Jones’ case which indicated that removal of his gallbladder could not be accomplished laparoscopically.

Jones’ lab values were within normal limits following the operation, and he presented with no complaints on his visit with Dr. Hernandez eleven days post-surgery. Jones did not begin having problems until 25-26 days post-operative, which is inconsistent with the contention that there was a surgical clip completely occluding the common hepatic duct. According to Dr. Dockendorf, a clip across the common duct would have caused a |ucomplete obstruction, which would have manifested itself with symptoms almost immediately. Dr. Dockendorf pointed out that the x-ray films taken prior to the Roux-en-Y corrective procedure do not show a complete occlusion, but a tapered narrowing with scarring. Nonetheless, whether the surgical clip was partially or wholly occluding Jones’ common duct, Dr. Doekendorf opined that Dr. Hernandez met the applicable standard of care.

On cross examination, Dr. Doekendorf testified that the information presented to the panel and at trial did not establish exactly what it was that caused the obstruction of Jones’ common hepatic duct. He reiterated that, even if there was a clip on Jones’ common duct, Dr. Hernandez did not deviate from the standard of care. Although it is not within the standard of care to intentionally place clips on the common duct during gallbladder surgery, unintentional placement is a complication and is within the standard of care. This occurs when the cystic duct and common duct are misidentified and clipped.

In a routine gallbladder extraction, blood loss is typically less than 50 ccs. In a procedure involving an acute, inflamed gallbladder, as was Jones’, blood loss can be as high as 400 ccs. Dr. Doekendorf observed that Jones’ estimated blood loss was 100 ccs and noted that this type of bleeding is addressed during surgery by suction, irrigation, and cauterization.

On redirect examination, Dr. Docken-dorf emphasized that the decision of whether to convert to an open procedure from a laparoscopic extraction is within the surgeon’s discretion. According to Dr. Doekendorf, it is extremely difficult to second-guess the exercise of this discretion postjoperatively.16 Dr. Doekendorf finally noted that, notwithstanding all of the advances in gallbladder surgery, injuries to the common hepatic duct do occur in a certain percentage of cases, even when there is not a deviation from the standard of care.

Dr. Charles Knight, who is board certified in general and vascular surgery, was the third member of the review panel. He concurs with Drs. Rayburn and Docken-dorf that the evidence supports Dr. Hernandez’s decision to proceed laparoscopi-cally with Jones’ gallbladder removal. Nothing he has heard or seen since rendition of the panel’s opinion has changed his mind.

Because the clinical picture in the diagnostic study done when Jones returned to the hospital three and one-half weeks after his gallbladder was removed was not clear, there is confusion as to what was actually causing the obstruction to his common duct. However, even if there was a clip on Jones’ common hepatic duct, Dr. Knight opined that Dr. Hernandez did not breach the applicable standard of care.

Dr. Gazi Zibari, professor of surgery at LSU Health Sciences Center, and a board certified general surgeon, performed the Roux-en-Y repair surgery on Jones following the development of complications after his gallbladder surgery. Dr. Zibari noted that the standard of care for an emergency gallbladder removal is to begin the procedure laparoscopically. In 98-99% of the time, the organ can be successfully removed by this method. Conversion to an open procedure is not necessary unless uncontrollable bleeding is encountered or clear delineation of the _Jj£anatomical structures is not possible, which would be the case if there were too many adhesions or excessive inflammation. Although distension and/or edema used to indicate a need for conversion to an open procedure, that is no longer the case.

In a routine laparoscopic surgery, blood loss should not exceed 100 ccs. A surgeon encountering excessive bleeding during a procedure can achieve hemostasis by using more surgical clips or electrocautery to coagulate the tissue.

Dr. Zibari concurred with the other experts that it is not within the standard of care to clip the common hepatic duct during a laparoscopic cholecystectomy. Proper identification of ductal structure is within the standard of care. While the common duct should not be clipped, this does happen even in the “best hands.” In fact, this is a well-known complication associated with the procedure.

Dr. Zibari’s pre-operative diagnosis of Jones was post-laparoscopic cholecystecto-my with an iatrogenic (occurring during surgery) injury. When Dr. Zibari performed the corrective procedure on Jones, he found a clip across the patient’s common hepatic duct approximately one-half centimeter from the bifurcation of the left and right ducts. This clip was the cause of the obstruction of the common duct. Dr. Zibari noted that in a case involving an inflamed gallbladder, it is not difficult for the common duct to be confused with the cystic duct. Apparently that was the situation in this case.

117The trial judge’s inferences from the facts of this case, and his conclusion as to the credibility of the extensive expert testimony, were reasonable determinations made on this record. The evidence, particularly the expert testimony, justifies the trial court’s factual determination that plaintiff failed to carry his burden of proof under La. R.S. 9:2794 that Dr. Hernandez breached the applicable standard of care in his treatment of plaintiff.

In his second assignment of error, plaintiff contends that the trial court erred in failing to require Dr. Hernandez to provide a plausible, non-negligent explanation for the injury sustained by plaintiff, and cites Fusilier v. Dauterive, 00-0151 (La.07/14/00), 764 So.2d 74. Although both the instant case and Fusilier involve claims arising out of injuries allegedly sustained as a result of surgical error in the performance of a laparoscopic gallbladder removal, we note that the facts of the case sub judice are inapposite to those presented in Fusilier, supra.

In Fusilier, the claimant underwent la-paroscopic cholecystectomy surgery in 1990. The expert testimony was unequivocal that, at that time, there were no national standards for physicians to follow regarding the performance of a laparo-scopic cholecystectomy. The supreme court rejected the testimony of one of the medical experts and repudiated the contention that the standard of care is met as long as the physician recognizes a complication and handles it appropriately.

Dr. Hernandez performed laparo-scopic surgery on Jones more than nine years after the surgery in Fusilier. During that period of time, as all six | ^medical experts testified in the instant case, national standards for surgeons to follow in performing laparoscopic cholecystectomies were developed. Five of the six physicians testified that the applicable standard of care for a surgeon performing a laparo-scopic cholecystectomy include the following:

(1) the intentional placement of a surgical clip on the common hepatic duct is not within the applicable standard of care; however, injury to the common duct, whether by an inadvertently placed clip or subsequent scar tissue formation, is a known and accepted risk of the procedure; (2) it is within the discretion of a surgeon to determine whether to convert from a laparoscopic cholecystectomy to an open procedure; and (3) when there is injury to the common hepatic duct, it is usually detected post-operatively rather than during the procedure.

As found by the Third Circuit in Primeaux v. St. Paul Fire & Marine Insurance Co., 03-0466 (La.App. 3d Cir.12/17/03), 862 So.2d 496, in the case sub judice, we find that there was sufficient evidence presented which showed that Jones’ injuries could have occurred without any negligence on the part of Dr. Hernandez, and restate our finding that Dr. Hernandez’s actions during the laparo-scopic cholecystectomy were within the ap^ plicable standard of care for general surgeons who perform this procedure.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to plaintiff-appellant, Robert Jones.

      . This surgery involves excision or removal of the gallbladder through an abdominal incision by use of a laparoscope, which is an endoscope used to examine the interior of the abdomen.

      . An endoscopic retrograde cholangiography involves the visual examination of the interior parts of hollow structures in the body and radiographic examination of the bile ducts.

      . This is the predominantly extrahepatic bile duct which is formed by the junction of the right and left hepatic ducts (which are primarily intrahepatic), which in turn joins the cystic duct to form the common bile duct.

      . A y-shaped surgical union or shunt is made or placed between any part of the digestive system, in this case the common hepatic duct, and the small intestine.

      . This juncture is known as the porta hepatis, which also includes the porta vein and hepatic artery.

      . Swollen to reflect an abnormal accumulation of fluid.


author: | .MOORE, J.

text:
    STATE of Louisiana, Appellee v. Maurice TATE, Appellant.
    No. 38,576-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Larry English, Shreveport, for Appellant.

      Walter E. May, Jr., District Attorney, Daniel W. Newell, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   | .MOORE, J.

Defendant, Maurice Tate, was convicted of second degree murder and sentenced to life without benefit of probation, parole or suspension of sentence. He now appeals. We affirm.

FACTS

On March 8, 1997, the Haynesville Police Department began investigating a missing person complaint. A 13-year-old girl, Shannon Capers, was last seen that day walking down a road leading to the woods near the Mill Street Apartments. Over two years later, in May 1999, an anonymous caller told authorities where the girl’s body could be found. Skeletal remains were discovered at the site.

An investigation led authorities to a former boyfriend of the girl, Maurice Tate. On the day the victim was last seen, Tate had asked an acquaintance, Roderick Russ, to tell the victim to meet him (Tate) in the wooded area near some apartments. Tate had previously told Russ that he was going to kill the young girl. Tate’s ex-girlfriend, Chámese McKnight, was the anonymous caller. She testified that Tate had told her he had sex with the girl in the woods, then choked her and shot her in the head.

A bullet was discovered with the remains of the body. The skull had entry and exit holes. Forensic investigators matched the DNA of the girl’s mother and uncle with the DNA extracted from the remains. The mother of the victim identified the shoes and shirt as those being worn by the victim when she was last seen.

Another friend of the appellant, Monica Daniels, testified that the defendant had told her he had hit the victim in the head. This testimony was Inconsistent with expert forensic testimony of a bashed area on the forehead of the victim’s skull. Monica Daniels further testified that defendant said that the police could never prove that he killed the victim.

Monica Daniels’ sister, Leslie, who at one time was involved intimately with defendant, testified at trial that she could not remember her former statement to Detective Ben Booth that she asked the defendant if he had killed the victim and the defendant stated: “Well, maybe I did, maybe I didn’t.”

Tommy Washington initially testified that he knew nothing about the missing girl and could not recall when the event occurred, and he never spoke with the defendant. He later admitted that defendant asked him what you could put on something dead to stop it from stinking, and he had suggested lime. He testified, however, that the conversation took place long before the victim was missing. When confronted with his testimony a few minutes earlier that he could not recall when the victim had been reported missing, he stated that the conversation took place with the defendant in 1997, long before the girl was missing. In fact, however, the girl was reported missing in 1997.

A jury found Tate guilty of second degree murder. He was sentenced on July 28, 2003. However, that sentence was vacated on July 29, 2003, so that his new counsel, who had enrolled on July 17, 2003, could have an opportunity to file post-trial, pre-sentence motions. A motion for new trial was filed. It was denied on September 2, 2003. Defendant was then re-sentenced to a life term without benefit of parole, probation or suspension of | ¡^sentence. This appeal is timely.

DISCUSSION

In his first assignment of error, defendant alleges that the trial court erred by not granting his oral motion to continue the trial so that he could retain private counsel.

After the jury was selected and sworn, defendant orally moved to replace his court-appointed attorney with private counsel hired by his relatives. The defendant told the court that he did not think his court-appointed attorney was able to prepare a “solid defense” because of a heavy case load.

The trial court determined that the appellant’s family had contacted a private Shreveport attorney the previous day. However, according to information from the attorney’s office, no retainer had been paid, and the attorney had informed his staff that he “might get involved in” a case in Claiborne Parish. The attorney was in court and could not be reached for confirmation. Defendant’s brother, through defendant’s appointed counsel, assured the court that he would pay the retainer. The trial court was particularly concerned, however, that the private attorney had not communicated with the court about enrolling in the case, even though, according to the judge, the attorney knew her telephone number. Citing State v. Willis, 36,-198 (La.App. 2 Cir. 8/14/02), 823 So.2d 1072; writ denied, State ex rel. Willis v. State, 2003-0919 (La.4/8/04), 870 So.2d 262, the court informed the appellant that he did not have the right to a continuance in order to change attorneys on the day trial was to | ¿begin.

The court noted that he had been indicted on March 5, 2001, and his court-appointed attorney had filed motions on March 22, 2001, indicating that “two years and almost four months” had passed. The trial court denied the continuance, but gave the appellant the option of representing himself or continuing with the court-appointed attorney. He chose the latter.

Continuances for criminal trials are governed by La. C. Cr. P. art. 707, which reads:

A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

La. C. Cr. P. art. 708 explains the difference between a continuance and a recess. It states:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

In this instance, the appellant made an unsupported, untimely, oral, pro se request for a continuance after the jury was selected and sworn, but before the first witness testified. The jury had been sworn the day before. On these grounds alone, the trial court was justified in denying the continuance.

The right to choose one’s own attorney is a right that must be exercised at a reasonable time at the appropriate stage in the proceedings | ^within the framework of the criminal justice system. State v. Leggett, 363 So.2d 434 (La.1978). There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Id. Based upon this record, we conclude that the defendant had ample time prior to trial to timely acquire a private attorney had he wished to do so. State v. Willis, supra. Accordingly, this assignment is without merit.

In his second and third assignments of error, defendant contends that the trial court erred in denying his motions for mistrial. By his second assignment of error, defendánt contends that the trial court erred by denying his motion for mistrial on grounds of the prejudicial effect of hearsay testimony by Det. Ben Booth allegedly linking the defendant to the missing victim. By his third assignment, defendant argues that the trial court erred by not granting his motions for mistrial based upon the state’s failure to disclose a map drawn by Chámese McKnight and a written statement to police by Monica Daniels. The defendant argues that withholding these two items indicates a clear pattern of the state’s failure to disclose key documents to the defendant.

Mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Sepulvado, 359 So.2d 137 (La. 1978); State v. Stills, 600 So.2d 134 (La.App. 2 Cir.1992). A mistrial is warranted when certain remarks are considered so prejudicial and | fipotentiaIIy damaging to the defendant’s rights that even a jury admonition could not provide a cure. State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). A trial court’s ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443.

HEARSAY

The jury learned from the state’s opening statement that the victim had been missing since March 1997, and, in 1999, an anonymous telephone caller told authorities where to find the body. The state informed the jurors that a former girlfriend of the defendant would testify that she was the anonymous caller.

Following the opening statements, the state’s first witness, Det. Ben Booth, testified that

In 1999, in May of 1999, we received an anonymous tip call. The Haynesville Police Department received an . anonymous call stating that Shannon Capers’ body was buried in the woods behind the Killgore house there in Haynesville, Louisiana, and the first call came in on May 5th. Chief David Mills, Lieutenant David Crump of the Claiborne Parish Sheriffs Office, and another Haynesville police officer, Chris Smith, searched the woods at that time. They could not find anything. Then two days later on May 7th, the Haynesville Police Department received another call from this same caller stating that we missed the body, that Maurice Tate — [Emphasis added).7

Upon mention of the defendant’s name, the defense attorney objected that the statement was hearsay. The trial court agreed and struck the statement.

The defense attorney then asked for a mistrial. After removing the jury from the courtroom, the trial court gave the defense an opportunity to show “that the sustaining of the hearsay objection [was] not sufficient:”

MR. GARNER: That’s correct, your Honor, because at this point we now have the jury believing on the basis of inadmissible evidence that the person who made this anonymous call knew or told the police that Maurice Tate was involved in the placement of that body and implicitly therefore in the murder.
THE COURT: We’ve got just to “Maurice Tate”, and then the objection.
MR. NEWELL: I don’t think that came out, your Honor. All he said was “Maurice Tate”, and he immediately objected.—
THE COURT: Yeah, “Maurice Tate”, and was stopped. I mean you objected there. So, I mean, what you’re indicating is that’s the only natural implication.
MR. GARNER: That’s correct. I don’t think that there’s any—
THE COURT: Although his words were stopped—
MR. GARNER: — way that that can be cured.
THE COURT: — at that point.
|SMR. GARNER: Yes, your Honor.

Mr. Garner argued that he assumed the state would later attempt to link Tate to the call and that would allow the state to have an “additional basis for persuasion ... the well has been tainted. They’ve already got something in their minds about that.”

The trial court denied the mistrial and then admonished the jury to disregard the statement that gave rise to the objection. She informed them it was inadmissible hearsay and that it was not to be considered by them.

Appellant argues that the statement made early in the trial planted in the jury’s mind that the appellant was guilty and subsequent evidence only “cemented that conclusion.” We do not agree.

La. C. Cr. P. art. 775 governs the grounds for mistrial:

A mistrial may be ordered, and in a jury case the jury dismissed, when:

(1)The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial. Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
I9A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

Based upon our review of the record, particularly the subsequent testimony and evidence linking the defendant to the crime, we conclude that defendant was not prejudiced by Det. Booth’s incomplete statement that was terminated by his counsel’s objection at the mention of his name. Chámese McKnight testified that she was the anonymous caller and that the defendant called her and told her he had killed the girl. She testified that he said that he told a friend to tell the victim to meet him in the woods, that he had sex with her and then he choked her and shot her in the head. She also testified that he told her where he had buried the body.

Roderick Russ testified that not long before the victim was missing the appellant had told him he was going to kill her. Russ further testified that on the day the victim was last seen, the defendant had asked him to tell the victim to meet him “on the back road of Mill Street.”

Other testimony established that the victim’s body had been buried in the woods near Mill Street, that the body had a gunshot hole in the skull and that a .380 caliber bullet was retrieved from the grave site. Russ testified that the defendant owned “a .45 and a .38, or a .44.”

Another witness, Tommy Washington, testified that in 1997 the area around Mill Street “just smelled bad” and that the appellant asked him in March 1997 “what was good to put on something to keep it from stinking.”

In State v. Davis, 339 So.2d 825 (La. 1976), the supreme court held that the unsolicited answer of a witness that other people had stated that the 110defendant had stabbed a lady, which was clearly inadmissible hearsay, was not of such prejudicial nature to require the grant of a mistrial by the trial judge who admonished the jury to disregard the statement as hearsay, since the statement was merely cumulative or corroborative of testimony of other witnesses.

We conclude that the defendant was not prejudiced by the remark so as to constitute reversible error, and the trial court did not abuse its discretion in denying the motion for mistrial. The remark by Det. Booth, although hearsay, did not expressly identify the defendant to the crime and the alleged inference is extremely thin. Even if the remark connected the defendant or implied that he committed the crime, in this instance, the court’s admonishment to the jury to disregard the remark was sufficient. Other evidence clearly identified the defendant with the crime. Defendant was not denied a fair trial nor did the trial judge’s refusal to order a mistrial result in miscarriage of justice. State v. McMahon, 391 So.2d 1120 (La.1980).

This assignment is therefore without merit.

BRADY VIOLATIONS

At trial, the state introduced a map drawn by Chámese McKnight for police and signed by her on March 1, 2000 indicating the location of the victim’s body. Defendant did not initially object when the map was admitted into evidence, but moments later when the state asked that the map be published to the jury, the defense moved for a mistrial on grounds that the map had not been produced pursuant to pre-trial discovery requests | nunder La. C. Cr. P. art. 718. The court denied the motion.

The map was essentially the same as a map drawn by a police witness and introduced earlier into evidence depicting the approximate location of the body. Further, the state had already established that the defendant told McKnight about the murder. Defendant’s primary argument on appeal is that the failure to provide the map along with the Brady violation discussed below demonstrates a pattern of discovery violations by the state warranting a mistrial.

Prior to trial, the state sent the defense two notices of intent to use incul-patory statements made by defendant to Monica Daniels. The first notice was sent on February 4, 2003. That notice states that the defendant told Monica Daniels that “the police could not prove he killed Shannon Capers.” A second notice was sent on June 19, 2003, just four days before trial began on June 23, 2003, stating that “[djuring the summer of 1997, Maurice Tate told Monica Daniels that he killed Shannon Capers by hitting her in the head and shooting her.”

Regarding this second statement, the prosecutor explained that he was interviewing Ms. Daniels on June 19, 2003 in preparation for trial when she stated that Maurice Tate told her that he killed Shannon Capers by hitting her in the head. He immediately filed a Notice of Intent in the suit record. At this time, the prosecutor was unaware of an earlier recorded statement by Daniels to Det. Booth that was inconsistent with the June 19, 2003 statement.

hüFive months prior to the second notice, on January 15, 2003, Det. Booth interviewed Monica Daniels for the stated purpose of going over what she had told him in a previous interview on October 1, 2000. During the recorded interview, Daniels stated that she learned from the defendant’s girlfriend, Chámese McKnight, and not from the defendant, that the defendant had taken Shannon Capers in the woods, hit her in the head and shot her in the head. She denied talking to Maurice about the murder, stating that “he wouldn’t talk about it.” She confirmed, however, that Maurice Tate told her that “the police could not prove he killed Shannon.”

Hence, the inconsistent statement was not made until June 19, 2003 when McKnight told the prosecutor that the defendant himself told her he hit and shot the victim. Even at this time, the prosecutor did not have actual knowledge that the statement of June 19, 2003 was inconsistent with the January 15, 2003 recorded statement, since he was unaware of the January 15 statement.

On June 25, at trial, Monica Daniels testified that she asked the defendant if he had killed Shannon Capers, and the defendant told her that “he hit her in the head” and the “police could never prove that he did it.” When asked whether the defendant said anything else regarding what he did after he hit her, she responded that he did not.

On cross-examination, counsel for defendant attacked Ms. Daniels’ credibility by asking her about her felony record. He also established that she had violated her probation and attempted to connect her testimony to her release from jail. At this time defense counsel also asked Daniels if she told 1iaDet. Booth something different in an earlier statement. Ms. Daniels said she had not.

On re-direct, the prosecutor attempted to expand the questioning beyond the scope of cross-examination based on the line of questioning on cross regarding what Daniels had told Det. Booth. The defense objected and the court removed the jury from the courtroom to hear arguments. At this time, defense counsel said he had asked Daniels if she told Det. Booth in an earlier interview something different than what she had recently said, because, as he explained to the court, the two Notices of Intent were inconsistent — the first stating that the defendant told her that the police could not prove he killed the victim, while the second stating that the defendant told her he hit and shot the victim in the head.

The court reviewed the two Notices of Intent questioning aloud why Ms. Daniels would make a substantially more incriminating statement in the second notice as opposed to her earlier statement. The court then sustained the defense’s objection to the line of questioning that the prosecutor attempted to open. The jury returned to the courtroom and the prosecutor asked no further questions of Monica Daniels. Ms. Daniels was dismissed subject to recall and instructed regarding the rule of sequestration.

Later in the afternoon or evening of June 25, the state prosecutor discovered the transcript of the recorded statement of January 15, 2003. He immediately supplied the transcribed statement to defense counsel. Defendant moved for a mistrial on grounds of a Brady violation.

| uHearing the motion the next day, the court noted that the second Notice of Intent was not really inconsistent with the first Notice of Intent, but represented an amplification. On the other hand, the transcribed statement of the January 15 recorded statement of Daniels was clearly inconsistent with the June 19 statement, and this was the focus of the Brady violation.

The court noted that Monica Daniels was available to be called back by the state if the defense wanted to impeach her testimony using the prior inconsistent statements on January 15, 2003. Defense counsel elected not to put Daniels back on the stand stating that he believed that he could possibly further prejudice his client if he attempted to rectify the damage caused by Daniels’ testimony by introducing the inconsistent statements.

The trial court denied the motion for. mistrial on grounds that, taken as a whole, the inconsistent statement of January 15, 2003 was “not so significant that the trial proceedings are defective.” Elaborating, the court noted that while the January 15 statement was inconsistent with the statement attributed to Daniels in the June 19, 2004 Notice of Intent, Ms. Daniels’ actual testimony was considerably less damaging than the statement she made on June 19 and also, the actual testimony was less inconsistent with the January 15 statements than the June 19 statement. Ms. Daniels testified at trial only that the defendant told her that he hit the victim in the head and the police could not prove he did it. In other words, the inconsistent statements of which the state failed to disclose were largely inconsistent with statements Daniels made on June 19 prior to trial, but|15much less so with respect to her actual testimony at trial which the jury heard. Daniels did not testify that the defendant told her he shot the victim.

On appeal, the defendant contends the trial court should have granted a mistrial based upon the ground that the state failed to disclose the map drawn by Ms. McKnight and the prior inconsistent statements constituting exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042, 1044 (La.1982). Discovery procedures enable a defendant to properly assess the strength of the state’s case against him in order to prepare his defense. State v. Roy, 496 So.2d 583 (La.App. 1 Cir.1986), writ denied, 501 So.2d 228 (La.1987). If a defendant is lulled into a misapprehension of the strength of the state’s ease by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Ray, 423 So.2d 1116, 1118 (La.1982).

Under the United States Supreme Court decision in Brady, supra, the state, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. This rule has been expanded to include evidence that impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for |1ficlaiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge for an in camera inspection. See U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Cobb, 419 So.2d 1237 (La.1982).

The test for determining materiality was firmly established in U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and has been applied by the Louisiana Supreme Court. See State v. Rosiere, 488 So.2d 965 (La.1986). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

In this instance, the defense had the opportunity to further attack Monica Daniels credibility when it was given a copy of the transcribed recorded statement of January 15, 2003, but declined to do so for reasons of trial strategy. If he had done so, Ms. Daniels might have given testimony even more damaging than her previous testimony. As it stood, she had testified only that the defendant said he hit the victim, and he said the police could not prove he had done it. The only inconsistency was that he told her himself that he had hit the victim in the head. In her January 15, 2003 statement, she said Char-nese MeKnight told her that he hit the victim in the head and shot her in the head.

1i7As previously noted, Chámese MeKnight testified that the defendant told her he killed Shannon Capers and described how, when and where the murder occurred. Roderick Russ testified that the defendant said he was going to kill the victim and used him to get her to meet him on the day of the murder. Other testimony and forensic evidence corroborated this testimony and tended to identify the defendant as the killer. Hence, Monica Daniels’ testimony was cumulative and corroborative in nature.

After reviewing this trial record and statements of Ms. Daniels, we conclude that the undisclosed January 15, 2003 inconsistent statement of Monica Daniels constituted a Brady violation because it was favorable to the defendant for impeachment purposes. Giglio v. U.S., supra. However, we also conclude that the failure to disclose did not result in revers ible error. The evidence simply did not rise to the level of materiality in this instance. U.S. v. Bagley, supra. Although Monica Daniels’ testimony was used to bolster the state’s case, we are confident that had the defense known of the prior inconsistent statement of Ms. Daniels earlier and used it to impeach her testimony, or had Ms. Daniels testified only that the defendant told her that police could not prove he killed the victim, or even if Ms. Daniels had not testified at all, the outcome of this case would not have been different.

Accordingly, the trial court did not error in denying the defendant’s motions for mistrial.

I ^CONCLUSION

For these reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.