source: Caselaw Access Project

author: |.¡SUSAN M. CHEHARDY, Judge. B EDWARDS, J., McMANUS, J.,

license: Public Domain

text:
    ENERGY DEVELOPMENT CORPORATION v. QUALITY ENVIRONMENTAL PROCESSES, INC., Michael X. St. Martin and Virginia Rayne St. Martin.
    No. 02-CA-221.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.
    Rehearing Denied Jan. 7, 2003.
    David R. Richardson, Schully, Roberts, Slattery, Jaubert & Marino, New Orleans, LA, Raymond G. Hoffman, Metairie, LA, Patrick W. Gray, Jamie D. Rhymes, Lis-kow & Lewis, APLC, Lafayette, LA, for Plaintiff-Appellant, Energy Development Corporation.
    Conrad S.P. Williams, III, St. Martin and Williams, Houma, LA, for Defendant-Appellee, Quality Environmental Processes, Inc.
    A.J. Gray, III, Lake Charles, LA, John M. Mamoulides Metairie, LA, for Defendants-Appellees, Quality Environmental Processes, Inc., Michael X. St. Martin and Virginia Rayne St. Martin.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   |.¡SUSAN M. CHEHARDY, Judge.

In this mineral rights litigation, plaintiff seeks nullification of an amended judgment on the basis that it grants substantive relief and, thus, violates La. C.C.P. art.1951. For the reasons that follow, we declare the district courts November 14, 2001 amended judgment null, set it aside and reinstate the judgment entered December 17,1999.

This litigation arose over disputed mineral rights on land known as the “Protective Area” in the Sunrise Field area of Terrebonne Parish, Louisiana. After a three-day bench trial in October of 1999, the trial judge took the matter under advisement. On December 17, 1999, the trial court found in favor of defendant, Quality Environmental Processes, Inc. (“QEF’j, ruling that “mineral servitudes ... burdening the Protective Area of the Sunrise Field” previously held by plaintiff, Energy Development Corporation, Inc.(“EDC”) were prescribed based on ten years non-use. Specifically, the judgment read:

After reviewing all pleadings, stipulations and evidence, and hearing the arguments of counsel, the court considering the law and evidence to be in favor of the defendant-plaintiff in reconvention, | ¿Quality Environmental Processes, Inc., and against the plaintiff-defendant in reconvention, Energy Development Corporation. Accordingly,-[sic]
IT IS ORDERED ADJUDGED AND DECREED that the mineral servitude and rights burdening the Protective Area of the Sunrise Field stem from an instrument executed between South-down, Inc. and Southdown Exploration, dated August 31,1966;
IT IS FURTHER ORDERED ADJUDGED AND DECREED that those mineral servitude or mineral rights have been extinguished by the prescription based on ten (10) years nonuse;
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the Omnibus property description attached as Exhibit “A” to the May 3, 1971 conveyance was not adequate to put third parties on notice as to which properties were being encumbered.

This Court affirmed that ruling and the Louisiana Supreme Court denied writs of certiorari.

On June 25, 2001, QEP and co-defendants, Michael and Virginia St. Martin(“St.Martins”), filed a “Rule to Provide a More Complete Property Description” alleging that, while the parties “recognize that the property in dispute is in the Sunrise Field area of Terrebonne Parish, Louisiana,” the property in dispute may not be clear to title examiners. EDC filed numerous exceptions, including, inter alia, lack of subject matter jurisdiction, prescription, no right of action and res judica-ta. The hearing on defendants rule began on July 23, 2001, was continued and concluded on November 14, 2001. On that day, the trial judge signed the “Judgment Providing a More Complete Property Description,^which is the judgment at issue in this case. The amended judgment, which purports to “modify” and “supplement” the December 17, 1999 judgment in a “nonsubstantive” manner, reads as follows:

Commencing July 23, 2001 and continuing on November 14, 2001, the Court heard the Motion to Provide a More Complete Property Description filed by Quality Environmental Processes, Inc., Michael X. St. Martin and Virginia Rayne St. Martin and the exceptions thereto filed by Energy Development Corporation.
PRESENT: David R. Richardson, Patrick W. Gray and Jamie D. Rhymes, attorneys for Energy Development Corporation
A.J. Gray, III and John M. Mam-oulides, attorneys for Quality Environmental Processes, Inc., Michael X. St. Martin and Virginia Rayne St. Martin
After reviewing the entire record of this case particularly including the “PETITION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION” filed herein by Energy Development Corporation on July 7, 1997; the “SUPPLEMENTAL AND AMENDING PETITION” filed by Energy Development Corporation on or about March 23, 1998; the Judgment and Reasons for Judgment of this Court dated December 17, 1999; the decision dated December 4, 2000, by the Court of Appeal, Fifth Circuit, State of Louisiana under docket number 00-CA-314 on the appeal of this matter, and hearing the arguments of counsel, the Court considering the law and record of these proceedings to be in favor of defendants-plaintiffs in reconvention, Quality Environmental Processes, Inc., Michael X. St. Martin and Virginia Rayne St. Martin, and against 'plaintiff-defendant in reconvention, Energy Development Corporation, as mandated by Articles 1919 and 2089 of the Louisiana Code of Civil Procedure and in accordance with Article 1951 of the. Louisiana Code of Civil Procedure, • this Courts December 17, 1999 Judgment in the captioned matter as .affirmed by the Court of Appeal, Fifth Circuit, State of Louisiana, in its decision dated December 4, 2000 under docket number 00-CA-314 thereof, is hereby modified and supplemented in the following nonsubstantive manner:
.a. IT IS ORDERED ADJUDGED AND DECREED that the reference in these proceedings and in the Courts December 17, 1999 Judgment to the August 31, 1966. mineral conveyance refers to the August 31, 1966 mineral conveyance by Southdown, Inc., as grantor, to Southdown Exploration, Inc., as grantee; recorded under entry number 315794, COB 433, Folio 128, Terrebonne Parish, Louisiana, attached as Exhibit “C” to the “PETITION FOR DECLARATORY JUDGMENTJ^AND PERMANENT INJUNCTION” filed herein by Energy Development Corporation in July 7, 1997 and introduced into evidence in these proceedings as EDC Exhibit Number 13 and St. Martin Exhibit .Number 6;
b. IT IS ORDERED ADJUDGED AND DECREED that the reference in these proceedings and in the Courts 'December 17, 1999 Judgment to the 1971 mineral conveyance is to the May 3, 1971 (effective January 1, 1971) general mineral conveyance by South-down Lands, Inc. to Pelto Oil Compa- - ny, recorded under entry number 402359, COB 515, Folio 753, Terre-bonne Parish, Louisiana, attached as Exhibit “E” to the “PETITION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION” filed herein by Energy Development Corporation on July 7, 1997 and introduced into evidence in these proceedings as EDC Exhibit Number 26 and St. Martin Exhibit Number 14;
c. IT IS ORDERED ADJUDGED AND DECREED that the reference in these proceedings to the 1944 Mortgage refers to the Act of Mortgage dated September 8, 1944, filed under Entry Number 56J03, MOB 90, Folio 342, Terrebonne Parish, Louisiana, and introduced into evidence in these proceedings as EDC Exhibit 96 and St. Martin Exhibits Number 5 and 88;
d. IT IS ORDERED ADJUDGED AND DECREED that the property affected by the Courts December 17, 1999 Judgment in these proceedings, as modified, clarified and supplemented herein, is any and all property described in the following instruments: June 28, 1992 Cash Sale by Contran Realty Corporation to Michael X. St. Martin and Virginia Rayne St. Martin, recorded under entry number 900447, COB 1324, Folio 695, Terrebonne Parish, Louisiana, introduced into evidence in these proceedings as EDC Exhibit Number 73 and St. Martin Exhibit Number 22; Affidavit of Correction dated September 4, 1992 and filed for record September 4, 1992, under Entry Number 903752, Conveyance Book 1333, Folio 341, Parish of Ter-rebonne, State of Louisiana, introduced into evidence in these proceedings as EDC Exhibit 75 and St. Martin Number Exhibit 24; June 11, 1984 Cash Sale by AG-Lands Investment Company to Michael St. Martin, recorded under Entry Number 739234, Parish of Terrebonne, State of Louisiana, introduced into evidence in these proceedings as EDC Exhibit Number 146; and October 24, 1984 Cash Sale by AG-Lands Investment Company to Michael St. Martin and Virginia Rayne St. Martin, recorded under Entry Number 744732, Parish of Terre-bonne, State of Louisiana, introduced into |7evidence in these proceedings as EDC Exhibit Number 147;

ACCORDINGLY, IT IS FURTHER ORDERED ADJUDGED AND DECREED that the properties affected by this Courts December 17, 1999 Judgment and described in paragraph d. above are not burdened by any mineral servitude purported to have been established by the May 3, 1971 (effective January 1, 1971) general mineral conveyance by Southdown Lands, Inc., to Pelto Oil Company, recorded under entry number 402359, COB 515, Folio 753, Terrebonne Parish, Louisiana, attached as Exhibit “E” to the “PETITION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION” filed herein by Energy Development Corporation on July 7, 1997 and introduced into evidence in these proceedings as EDC Exhibit Number 26 and St. Martin Exhibit Number 14 May 3, 1971[sic],

On appeal, EDC argues that the trial court erred in substantively amending the original judgment, in contravention of La. C.C.P. art.1951. Specifically, EDC contends that the amended judgment adds parties not included in the original judgment and illegally expands the property affected by the 1999 judgment far beyond that actually at issue at trial.

La.C.C.P. art.1951 provides:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation. (Emphasis added).

In Alliance for Good, Government, Inc. v. Jefferson Alliance for Good Government, Inc., 96-309 (La.App. 5 Cir, 10/16/96); 683 So.2d 836; 839, this Court confirmed our restrictive view of permissible amendments to final judgments:

[A] judgment may be amended by a trial court where the judgment takes nothing away from or adds nothing to the original judgment.
As a general rule, a final judgment is not subject to substantive amendment by the trial judge on his own motion or motion of any party. In such an event, the proper recourse is a timely application for new trial or a timely appeal. The district court may grant a limited |sor unlimited new trial, but until it does, it can not modify its previous judgment as to substance.

In Hebert v. Hebert, 351 So.2d 1199 (La.1977), the Supreme Court rejected the idea that a written judgment could be amended to reflect oral statements by the trial court, stating:

A written judgment may be revised before it is signed thus eliminating many possibilities of error or misunderstanding. In the event a substantive error nevertheless creeps into the written judgment the aggrieved party has recourse to a timely application for a new trial or a timely appeal.
Article 1951 does not permit the trial court to substantively alter a final judgment even if the amendment merely expresses the trial court’s actual intention. (Emphasis in the original). (Citations omitted).

Even a cursory review of the amended judgment reveals that the “modifications” to the original judgment are substantive. While the first two paragraphs of the amended judgment, which supply the re-cordation details of the 1966 and 1971 mineral conveyances referred to in the original judgment, may not amount to a substantive alteration of the original judgment, the remaining three paragraphs significantly add to the substance of the original judgment. In fact, the final paragraph states: “the properties affected by this Courts December 17, 1999 Judgment and described ... above are not burdened by any mineral servitude purported to have been established by the May 3, 1971 ... general mineral conveyance... ”. This pronouncement reaches beyond the original tracts that were the subject of this litigation between these parties and, thus, represents a substantive change to the original judgment.

For the foregoing reasons, we hold that the November 14, 2001 judgment clearly alters the substance of the December 17, 1999 judgment in violation of La. C.C.P. art.1951. The usual remedy applied by an appellate court that finds a | gsubstantial amendment in a judgment is to annul and set aside the amending judgment and reinstate the original judgment. Alliance for Good Government, Inc., 683 So.2d at 839. Accordingly, we annul and set aside the amended judgment of November 14, 2001, and reinstate the judgment of December 17, 1999. Because we have reinstated the original judgment, it is unnecessary for us to reach the remainder of EDCs assignments of error. Costs of this appeal are assessed to appellees, QEP and the St. Martins.

JUDGMENT OF NOVEMBER 14, 2001 ANNULLED AND SET ASIDE; ORIGINAL JUDGMENT OF DECEMBER 17, 1999 REINSTATED.

EDWARDS, J. dissents with reasons.

McMANUS, J. Dissents.

B EDWARDS, J.,

dissenting with reasons.

I respectfully dissent from the majority in regard to the expanded property description. In my opinion, a review of EDO’s Supplemental and Amending petition, which was filed on March 23, 1998, shows that EDC, by Amending Paragraph 11, changed from relying on the 1966 Act, which had a narrower description, to two, May 3, 1971 Acts, that expand the property in dispute. I further find no distinction between the productive and protective areas in the 1971 documents. They come from the 1966 Act, which this amendment deletes. There is no narrowing of the description, but includes all of the property owned by Quality. This entire description was placed into the record, and was not objected to by EDC. It appears that this amendment is what the trial court relied upon in formulating its property description.

McMANUS, J.,

dissenting.

hi respectfully dissent for the reasons assigned by Judge Edwards.

      . For a detailed account of the factual and procedural history of this case, see this Courts opinion in Energy Development Corporation v. Quality Environmental Processes, Inc., et al, 00-314 (La.App. 5 Cir. 12/04/00), 777 So.2d 481.

      . Energy Development Corporation v. Quality Environmental Processes, Inc., et al, 00-314 (La.App. 5 Cir. 12/04/00), 777 So.2d 481.

      . Energy Development Corporation v. Quality Environmental Processes, Inc., et al, 01-0010 (La.3/09/01), 786 So.2d 734.

      . For purposes of completeness, we note that the record also contains a document entitled "Judgment Providing More Complete Property Description” dated October 30, 2001, which was signed by the trial judge. The record, however, does not reflect that either party was notified that this judgment was signed as required by La. C.C.P. art.1913. Further, neither party refers to the October 30, 2001 judgment. Finally, the record reflects that the hearing on defendants rule was concluded on November 14, 2001, two weeks after the documents date. We, therefore, opine that the document dated October 30, 2001 was inadvertently placed in the district court record and does not affect the outcome of this appeal.

      . La. C.C.P. art. 1951 is not the appropriate procedural mechanism to seek substantive amendment of a judgment. Substantive amendments may only be made by a timely motion for new trial, a timely appeal, or by consent of the parties. Pitard v. Schmittzehe, 28,571 (La.App. 2 Cir. 8/21/96), 679 So.2d 515, 517. Even if we were to treat the defendants "Rule to Provide a More Complete Property Description” as a motion for new trial, the motion was not timely since it was filed months after the original judgment became final. La. C.C.P. arts.1971, 4907, 4908. Further, the co-defendants did not raise this issue on original appeal to this Court. See n. 2, supra. Finally, it is clear that EDC did not consent to these amendments.


author: | JOAN BERNARD ARMSTRONG, Judge. | MURRAY, J.,

text:
    Elmer R. DROUANT, Jr. v. Martin JONES and Allstate Insurance Company.
    No. 2002-CA-0356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2002.

      Robert W. Drouant, New Orleans, LA, for PlaintiffAppellee.
    James L. Donovan, Jr., Donovan & Lawler, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge JAMES F. McKAY, III).
   | JOAN BERNARD ARMSTRONG, Judge.

This is an automobile personal injury ease. The trial court found liability and awarded damages. In addition, the trial court found that the defendant driver was intoxicated and that he was willful and malicious. These latter two findings are relevant to the defendant driver’s bankruptcy proceedings. The defendant appeals as to those latter two findings and also as to the general damages awarded. As we find that the trial court was not clearly wrong-manifestly erroneous as to the findings of intoxication and willful malice, and as those issues have now been decided adversely to the appellant in the bankruptcy proceeding, and because we find no abuse of discretion as to the amount of general damages, we will affirm.

Defendant-appellant Martin Jones was driving on a divided highway. A non-party eyewitness, Cherie Pons Gunther, observed Mr. Jones’ pickup truck swerve across the median into the lanes for oncoming traffic over a period of ten or fifteen minutes. It appeared to her that the Jones’ vehicle was being driven by an intoxicated driver. Eventually, on one of the occasions where Mr. Jones swerved into the lanes for oncoming traffic, he had a head-on collision with the vehicle |2driven by plaintiff-appellee Elmer D. Drouant, Jr. The result was severe injuries, described further below, to Mr. Drouant.

At the scene of the accident, Ms. Gunther suggested to the investigating police officer that Mr. Jones be field tested for alcohol but that was not done. The investigating officer was deceased as of the time of trial so it is not known why he did not perform a field sobriety test. The police report contained no indications for alcohol but did note that Mr. Jones was combative. Mr. Jones, who also was injured, was taken to Charity Hospital. The EMT and Charity Hospital records state that Mr. Jones was combative. Eventually, the day after the accident, at an unknown time of day, Mr. Jones was given a urine test which was negative for alcohol. There was no expert testimony as to whether the negative urine test the next day was indicative as to intoxication at the time of the accident. Empty beer cans were observed in the back of Mr. Jones’ pickup truck.

Mr. Jones denied drinking alcohol on the day of the accident. He testified that he is a diabetic and that the last thing he remembers prior to the accident is working on his truck and that the next thing he remembers is waking up in the hospital. He suggests that he must have had a diabetes-related blackout which caused the accident. There was no medical testimony about the diabetes. The trial court specifically found Mr. Jones’ credibility to be “very questionable”. The trial court also found in its written Reasons For Judgment that: “The evidence of his [Mr. Jones’] behavior is one of intoxication and nothing else.”

|sWe may disturb the trial court’s factual finding that Mr. Jones was intoxicated only if that finding was clearly wrong-manifestly erroneous. E.g. Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670, 675; Lewis v. State, DOTD, 94-2370 (La.4/21/95), 654 So.2d 311, 314. The question is whether, in light of the record as a whole, the trial court’s finding was reasonable. Id. Also, we have held in pri- or cases that, even absent a positive alcohol test, a driver’s intoxication can be proven by the circumstances. Lacoste v. Crochet, 99-0602 (La.App. 4 Cir. 01/05/00), 751 So.2d 998, 1004; Owens v. Anderson, 93-1566 (La.App. 4 Cir. 1/27/94), 631 So.2d 1313, 1317-1318. Based upon the record as a whole, including the factual circumstances described above, and giving proper deference to the trial court’s evaluation of credibility, we cannot say that the trial court was clearly wrong-manifestly erroneous in finding that Mr. Jones was intoxicated.

Additionally, in Mr. Jones’ bankruptcy proceeding, the Bankruptcy Court, some months after the trial below in this case, held a hearing on an opposition to the discharge of Mr. Jones. The Bankruptcy Court specifically found that Mr. Jones willfully and maliciously injured Mr. Drouant and that Mr. Jones was intoxicated at the time of the accident. The time for appeal of that Bankruptcy Court decision has long since passed. Bankruptcy Rule 8002. The decisions of the Bankruptcy Court must be given res judicata or collateral estoppel effect. E.g., Samour v. Louisiana Casino Cruises, Inc., 2001-0831 (La.App. 1 Cir. 2/27/02) 818 So.2d 171. For this reason also, we do not disturb the trial court’s finding that Mr. Jones was intoxicated.

Mr. Jones also argues on appeal that the trial court’s award of general damages was excessive and should be reduced. The trial court made the following findings of fact, which are not disputed on appeal, as to Mr. Drouant’s injuries:

Plaintiff, Elmer Drouant, at age 69, was stuck [seq.] with such force he had to be cut out of his auto. He was unconscious when he was taken by ambulance to the hospital and remained there for approximately two months. In addition to massive internal injuries he sustained a fracture of every bone in his right foot, which required four (4) surgeries, pins being implanted in his foot, only some of which have been removed as of this trial date. This same foot, seven years later, still drains and must be changed twice a day every day. Further, if he walks to an extent, his foot bleeds and this medi-eally cannot be corrected, short of amputation. Mr. Drouant also had 4 broken ribs, a broken sternum, a broken kneecap, a broken nose, a cut on his entire nose from the top to the tip end exposing the bone, a nose operation, and a severe concussion rendering him unconscious with consciousness returning only when he was in the hospital and a nose operation. This Air Force pilot plaintiff worked 40 hours per week prior to this accident and he can no longer do that. He cannot fish, shrimp or hunt despite having his own boat and a strong desire to do those things; he can no longer jog nor walk to any extent and must wear foot sandals or be in severe pain. In addition to the above, his short term memory has been affected and his life style at his Venetian Isle home is far removed from his active pre-accident life.

Also, the trial court noted that Mr. Drouant’s stipulated medical bills were $144,834.07 as of the time of trial.

An award of general damages may be disturbed upon appeal only if the trial court abuses it vast discretion. E.g. Duncan v. Kansas City Southern Railway Co., 00-06 (La.10/30/00), 773 So.2d 670, 682-83; Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. Based upon the extent of the injuries to Mr. Drouant, we cannot say that the trial court’s award of general damages was an abuse of discretion.

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

AFFIRMED.

MURRAY, J., concurring with reasons.

| MURRAY, J.,

concurring with reasons.

Although I agree with the result, I write separately to address the statement that this court is bound to give res judicata effect to a decision of the bankruptcy court made after the issue was decided by a district court although the latter decision was not yet final. That statement addresses Mr. Drouant’s exception of res ju-dicata, which was filed in this court. In that exception, Mr. Drouant argues that the bankruptcy court’s April 17, 2002 ruling that Mr. Jones’ actions were willful and malicious and that he was intoxicated is dispositive and that those issues should be dismissed as res judicata or moot. The bankruptcy court’s ruling was made after the district court’s ruling on review before us. Indeed, the district court’s ruling likely influenced the bankruptcy court’s ruling. It follows then, as Mr. Jones argues, that the res judicata exception is proeedurally incorrect.

Given that punitive damages are not being sought in this tort action, the issues of willful and malicious actions and into^d-cation are relevant solely to Mr. Jones’ entitlement to have the trial court’s judgment discharged in bankruptcy.

In sum, I do not agree that the bankruptcy court’s ruling made subsequent to the district court’s decision, yet prior to this appeal, is entitled to any res judicata effect.


author: hSTEVEN R. PLOTKIN, Judge.

text:
    Helen Tasker, Wife of and Chip F. CAILLOUET v. CITY OF NEW ORLEANS.
    No. 2002-CA-0475.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2002.

      Clement P. Donelon, Metairie, LA, for Plaintiff/Appellee.
    George C. Wallace, Chief Deputy City Attorney, Arlene Lombard Compass, Deputy City Attorney, Annabelle H. Walker, Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY).
   hSTEVEN R. PLOTKIN, Judge.

We are called upon to decide whether an amateur-volunteer rescuer is owed a duty of reasonable care by a professional rescuer, and if so, does the doctrine of comparative fault and governmental immunity apply. We hold that a professional rescuer owes a duty of reasonable care to the volunteer rescuer, comparative fault is applicable within a duty/risk analysis, but the doctrine of governmental immunity is inapplicable. For the reasons assigned, we affirm.

Facts

On November 5, 1989, Chip Caillouet, received a call from his neighbor, Eliska Schneider, asking for help. Mrs. Schneider told the plaintiff that she thought her husband had suffered a heart attack. When Caillouet arrived at the Schneiders’ house he discovered George Schneider lying on the sofa. After the plaintiff was unable to find a pulse, he and Mrs. Schneider rolled George onto the floor. Once George was on the floor, the plaintiff started giving him Cardio Pulmonary Resuscitation (CPR). Ms. Helen Tasker Caillouet, plaintiffs wife, called 911. Two Emergency Medical Technicians arrived on the scene in a New Orleans Emergency Medical Services (EMS) ambulance. Lisa Williams was a certified paramedic and Bruce Pizzolata was an Intermediate Emergency Medical 1 ¡/Technician. The EMTs started emergency aid on Mr. Schneider and at the request of the technicians, the plaintiff continued performing CPR. Subsequently, the EMTs decided to transport Mr. Schneider to Mercy Hospital for further medical treatment.

The technicians were unable to get the stretcher inside the home because of the narrow entrance to the house so they retrieved a trauma backboard from the ambulance. They put the patient on the trauma board and secured him by strapping him to the board. Since Mr. Schneider was about 6'4" and weighed over 300 pounds the EMTs requested the plaintiff to help them carry Mr. Schneider to the stretcher. The plaintiff testified that when it was time to lift Mr. Schneider the two EMT’s positioned themselves at his head with their back to the doorway and the plaintiff was at Mr. Schneider’s feet, facing the doorway. As the EMTs started lifting and moving the trauma board, the plaintiff was flexed forward in a crouched position. In the process of initiating the lifting motion the rotation caused the plaintiff to injure his back. The plaintiff did not tell the technicians to stop because he did not have time to say anything. After the patient was carried outside Caillouet continued CPR. When the ambulance departed the plaintiff returned to his house and laid down.

Bruce Pizzolata, one of the EMTs, testified that he did not recall the incident in question. He stated that at the time of the incident the New Orleans Health Services did not have a protocol regarding the lifting and transporting of patients. However, he had received training in lifting and carrying patients. In his training, he was taught the importance of everyone moving together and making certain that before you move that the person at the other end of the backboard was also ready to move. As to a volunteer who assists in transporting a large person, the volunteer 1¡¡would become a partner. In a situation where a huge individual is being transported on a board and a volunteer is assisting two EMTs, the EMTs should have been on each end of the board with the volunteer at the heavier end, which was not the situation in this case. On cross examination Mr. Pizzolata testified that he had not ever lifted a person and started moving forward without ensuring that everybody was ready to move at the same time. He also stated that he had never carried a spine board with two EMTs on one side and a volunteer on the other side. Lisa Williams, the other EMT, did not testify at trial.

Dr. Russell Levy, an orthopedist, saw the plaintiff for the first time on November 27,1989 and treated him until December 7, 1989. Dr. Levy did an MRI, which revealed “a big L5 disc”, and he recommended that the plaintiff see a neurosurgeon. Caillouet testified that he had no pre-existing back problems. The plaintiff then went to Dr. J. Ollie Edmunds, an orthopedic surgeon at Tulane Medical Center for care and treatment. An MRI was taken which showed the plaintiff had a left posterior herniated nucleus pulposus at L5-S1. Dr. Edmunds performed a lumbar discectomy and laminectomy on the plaintiff on December 18, 1989. At this time the plaintiff was forty-two years old. Dr. Edmunds stated that as a result of his back injury and the surgery caused by the jerking motion of the EMTs, the plaintiff has “a 10% permanent partial physical impairment of the whole person.” The trial court agreed with this finding.

Prior to the accident, plaintiff was doing film production work. At the time of his injury he was making $250 a day on some jobs and $500 a day on others. He testified that he had been working about three days a month, so he earned between $750 to $1,000 per month. The plaintiff stated that he had to refuse jobs after the incident because he could not do that kind of work. Further, he testified [ ¿that he could not lift the type of heavy equipment or spend the amount of time on his feet that is required in that type of work.

After trial the district court found in favor of the plaintiffs and awarded Cail-louet $200,000 in general damages, $20,000 for past and future medical expenses, and $125,000 for loss of income and earning ability. The plaintiffs wife, Helen Tasker, was awarded $5,000 for loss of consortium. Duty Risk

The Restatement of the Law of Torts (Second) § 472 states:

It is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.

In Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, the Supreme Court discussed Fowler v. Roberts, 556 So.2d 1 (La.1989) and the application of the duty-risk analysis, rather than the public duty doctrine, to claims brought against employees of public entities. The court emphasized that reliance on the public duty doctrine is misplaced and stated that the court had never adopted its rule. La. R.S. 9:2798.1 exempts public entities for their employees’ discretionary acts. “However, where liability is based on a public entity’s non-discretionary acts, liability will be judged under the traditional duty-risk analysis. Fowler v. Roberts, supra.Hardy v. Bowie, 744 So.2d at 613. In order to determine whether the discretionary function exception applies a court must consider whether the government employee had an element of choice.

If the employee had no discretion or choice as to appropriate conduct, there is no immunity. When discretion is involved, the | ñcourt must then determine whether that discretion is the kind which is shielded by the exception, that is one grounded in social, economic or political policy. If the action is not based on public policy, the government is liable for any negligence, because the exception insulates the government from liability only if the challenged action involves the permissible exercise of a policy judgment.

Id. Under the duty-risk analysis, plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Berry v. State, Through Department of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412, 414. “Governmental agencies in the performance of governmental functions may be subjected to the imposition of certain duties, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty. The determination of whether a particular duty should be imposed on a particular governmental agency is a policy question.” Hardy v. Bowie, 744 So.2d at 614.

The trial judge found that based on the testimony of the technicians, someone who volunteers to help paramedics becomes part of their rescue team. Thus, the trial judge concluded that the plaintiff became a voluntary member of the EMS rescue team and the technicians owed him a duty of care for his safety. Therefore, even if the plaintiff did not say anything while they were lifting the board the technicians should have made sure that the plaintiff was ready prior to attempting to move the patient. By failing to do so the technicians breached the duty owed to the plaintiff. Considering all of the facts and circumstances of this case, the trial judge correctly held that the City is vicariously liable for the actions of the technicians.

| (¡Comparative Fault

In Watson v. State Farm Fire and Cas. Ins. Co., 84-2158 (La.1985), 469 So.2d 967, the court set out several factors to consider in allocating fault among the parties involved:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

In the instant case the EMTs were aware of the potential danger to each other and members of the rescue team if they did not take proper precautions when lifting the board. The risk of injury was great if the proper lifting technique was not followed, especially when the person being lifted was as heavy as the patient in this case. The EMTs were obviously more experienced and knowledgeable than the plaintiff regarding the lifting of a trauma board and they needed to ensure that the volunteer was correctly positioned before lifting. In this case there is a direct relationship between the EMTs failure to lift the board properly and plaintiffs resulting injury.

Governmental Immunity

The trial judge held that the defense under R.S. 9:2798.1 is only applicable to protect governmental actions at the policy or ministerial level. The trial court relied on Fowler and Sommer v. State DOTD, 97-1929 (La.App. 4 Cir. 3/29/00), 758 So.2d 923 for the proposition that R.S. 9:2798.1 does not apply to City employee actions at the operational level.

La. R.S. 9:2798.1 provides in pertinent part:

^Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

Governmental agencies in the performance of governmental functions may be subjected to the imposition of certain duties, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty. In Fowler, the Supreme Court held that:

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

In the instant case, the plaintiff had discretion in deciding whether or not to assist the EMTs in' getting Mr. Schneider out of the house. The EMTs, on the other hand, did not have the same choice. The EMTs requested the plaintiffs assistance in moving the patient. Even if the plaintiff had volunteered to help the EMTs, the EMTs would have had a duty to make sure that he was ready prior to lifting the spine board. In this case, the technicians had an even greater duty to insure the safety of the plaintiff given that they had asked him to participate in moving Mr. Schneider. The plaintiffs testimony established that the technicians breached the standard of care by not making the plaintiff aware that they were going to lift the board. Thus, the EMTs’ conduct was a cause in fact of plaintiffs injury. Dr. Edmunds also stated that due to the incident the plaintiff has a 10% permanent Impartial physical impairment of the whole person. Thus, all of the elements of liability have been proven.

Loss of Consortium

The plaintiff appeals the trial judge award of Ms. Tasker $5,000 for her loss of consortium. Ms. Tasker testified that the incident was a factor in the breakup of their marriage. She claimed that as a result of injuries to her husband she had to do more around the house and that her responsibilities for her child increased. In American Motorist v. American Rent-All, 579 So.2d 429 (La.1991), cited by the plaintiff, the injured spouse suffered extreme psychiatric problems, which required hospitalization and numerous medications. The spouse claiming loss of consortium also suffered from mental problems due to the incident. The alleged consortium damages in this case are not nearly as great. Further, Ms. Tasker and her husband were not divorced until nine years after the incident. Thus, the plaintiff fails to demonstrate that the trial court abused its discretion in awarding her $5,000 for this claim.

Conclusion

We agree with the trial court’s determination that someone who volunteers to help paramedics becomes part of their rescue team. In this case, the EMTs had requested plaintiffs assistance in transporting the patient and they owed him a duty to make sure he was lifting properly. By lifting the trauma board prior to the plaintiff being ready the EMTs breached that duty. In the instant case, the governmental immunity does not apply since the person making the claim is a volunteer and not a patient receiving care.

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

AFFIRMED.

MURRAY, J., concurs in the result.


author: 11 Judge STEVEN R. PLOTKIN.

text:
    STATE of Louisiana v. Jerry LEWIS.
    No. 2002-KA-1924.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2002.

      Harry F. Connick, District Attorney, Claire A. White, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   11 Judge STEVEN R. PLOTKIN.

The issue in this appeal is whether the trial court erred in failing to impose a life sentence.

PROCEDURAL HISTORY

The defendant, Jerry Lewis, was charged by bill of information with four counts of armed robbery, two counts of attempted armed robbery, and possession of a firearm by a convicted felon. Three counts of armed robbery, counts three, six and seven of the bill of information, were tried by a jury. Lewis was found guilty as charged on each count. The trial court sentenced the defendant to thirty years at hard labor without benefit of parole, probation, or suspension of sentence as to each count; the sentences are to run concurrently. Lewis appealed, and in an unpublished opinion this Court affirmed his convictions and sentences. State v. Lewis, 2002-0078 (La.App. 4 Cir. 7/17/02, 826 So.2d 662).

The state filed a multiple bill, charging Lewis as a third felony offender, and after a hearing Lewis was sentenced on count three to sixty-six years at hard labor under La. R.S. 15:529.1(A)(l)(b)(i). The state objected to the sentence, and its motion for an appeal was granted.

^STATEMENT OF FACTS

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

On 22 May 2000, Kenneth Smith, the victim, was entering his Burgundy Street home when a subject came from across the street with a gun. The assailant pointed a gun at Mr. Smith and told him not to yell. He asked for money, and Mr. Smith gave him what he had in his front pocket. The perpetrator patted the victim’s pockets and told him to retrieve his wallet. The victim opened his wallet and showed the gunman that it did not contain any money. The gunman then requested the victim’s watch. Mr. Smith removed it and handed it to the gunman, who then told Mr. Smith to go into his house.
Mr. Smith described the perpetrator as being five feet eleven inches tall, 170 pounds, medium complexion with short hair. Mr. Smith believed he was an older person and that he had missing teeth.
On 7 June 2000, Michael McDonald and Brian Thompson were walking on Mandeville Street near the intersection of Burgundy Street. A subject was walking on the opposite side of the street, who then crossed over and began walking in their direction. When the perpetrator was some four to five feet in front of the two he suddenly stopped, and Mr. McDonald realized he had a gun. The perpetrator told them to give him their money. Mr. McDonald gave the assailant his pocket change. ■ Mr. Thompson opened his billfold and threw a few dollars onto the ground. The perpetrator demanded that he pick up the money, but he refused. Mr. McDonald then picked up the money and gave it to the robber. While Mr. McDonald was retrieving the money from the ground, the perpetrator put his gun in Mr. Thompson’s back and checked his pockets. The perpetrator .then told the two to turn around and start walking and not to look back. After going only a few paces, Mr. McDonald realized that his friend had stopped and turned around. Mr. McDonald then heard a gunshot and he ducked and hid behind a car. He then tried to grab and pull Mr. Thompson down. Mr. Thompson testified that when the perpetrator was in the middle of Mandeville Street, he turned and fired a shot at he and Mr. McDonald. Mr. Thompson hid behind a tree. At that point, the perpetrator began running, and Mr. Thompson chased after him briefly.
Mr. McDonald described the perpetrator as being older, or approximately fifty years old, with a large belly, very bad teeth, and wearing a New York Yankees baseball hat.
On 13 June 2000, Detective Harrison Gordon and his partner were on patrol in the Faubourg-Marigny section of New Orleans when Detective Gordon saw the defendant discard a handgun and a baseball |scap to the ground as the officers approached. The defendant was immediately detained, and the gun and hat were recovered.
Detective David Hunter, assigned to the Fifth District robbery squad, conducted the follow-up investigation of the McDonald/Thompson robbery. Detective Hunter learned of the defendant’s arrest and because Lewis fit the description of the perpetrator and was in possession of a New York Yankees baseball cap, he compiled a photographic lineup. Upon viewing the lineup, both victims positively identified the defendant. At trial, both victims identified Lewis as the man who robbed them.
On 15 June 2000, Detective Chris Cam-biotti compiled a photographic lineup containing the defendant. Detective Cambiotti showed the lineup to Mr. Smith at Mr. Smith’s home, and he positively identified Lewis as the man who robbed him. Mr. Smith also identified Lewis at trial.

State v. Lewis, 2002-0078, pp. 1-3, 826 So.2d 662.

ASSIGNMENT OF ERROR

The state appeals Lewis’s sentencing as a third felony offender under the amended version of La. R.S. 15:529.1(A)(l)(b), which became effective June 15, 2001. The state maintains that the trial court erred in sentencing Lewis in accordance with the law in effect on the date of sentencing rather than on the date of the offense.

On September 21, 2000, the date Lewis was charged, La. R.S. 15:529.1(A)(l)(b) provided:

If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) the person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under La. R.S. 14:2(13) ... the person shall be imprisoned for the | remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

After June 15, 2001, La. R.S. 15:529.1(A)(1)(b)(ii) was amended to provide:

(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under La. R.S. 14:2(13) ... the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Lewis’s third felony, armed robbery, is a crime of violence under La. R.S. 14:2(13)(w). His prior offenses are simple robbery, in violation of 14:64.1, and carrying a concealed weapon second offense, in violation of La. R.S. 15:95(C). First-degree robbery is a crime of violence under La. R.S. 14:2(13)(y). Thus, two of Lewis’s three felonies are crimes of violence, and his offenses do not fall under the amended provision of La. R.S. 15:529.1(A)(1)(b)(ii).

At the hearing when the judge pronounced the sentence, the state objected, and the judge responded, “I’m not going to do life. I’m not going to say life. You all can take me up on that.” Thus, the judge deliberately sentenced Lewis to a lesser term than that mandated by La. R.S. 15:529.1(A)(1)(b)(ii) prior to its amendment.

The State argues the court erred in imposing the sentence based upon amendments to La. R.S. 15:529.1 which were not applicable to this case. This Court addressed this issue recently in State v. Houston, 2002-0255 (La.App. 4 Cir. 4/24/02), 818 So.2d 253, where this Court held that the 2001 amendments to La. R.S. 15:529.1 embodied in Acts 2001, No. 403, are to have prospective application Isonly. “It is well settled that the penalty set out in a statute at the time of offense applies. State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99. The fact that a statute is subsequently amended to lessen the possible penalty does not extinguish liability for the offense committed under the former statute. State v. Narcisse, 426 So.2d 118 (La.1983).” Id. at 255.

Because the amendments to La. R.S. 15:529.1 became effective after Lewis committed his most recent offense, we find the amendments do not apply to this case. Thus, the trial court erred in sentencing Lewis to the sixty-six year sentence rather than life imprisonment.

In his brief the defendant, through counsel, contends that the trial court chose to deviate from the statutorily mandated life sentence because that sentence is constitutionally excessive. Although a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992); State v. Telsee, 425 So.2d 1251 (La.1983).

The minimum sentences under the Habitual Offender Law are presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. The defendant bears the burden of rebutting the presumption that the mandatory | fiminimum sentence is constitutional. State v. Short, 96-2780 (La.App. 4th Cir.11/18/98), 725 So.2d 23. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular ease before it that would rebut the presumption of constitutionality. State v. Johnson, 97-1906 at p. 7, 709 So.2d at 676.

In State v. Ricks, 2002-1126 (La.App. 4 Cir. 7/10/02), 823 So.2d 441, (J. McKay, dissenting), this Court considered a case in which the defendant, convicted of distribution of cocaine, was sentenced under State v. Dorthey, 623 So.2d 1276 (La.1993), as a second offender to serve ten years at hard labor. The state appealed the downward departure in the sentence, and this Court stated:

In State v. Lindsey, 99-3256 pp. 4-5 (La.10/17/00), 770 So.2d 339, 342-43, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739 (2001), the Louisiana Supreme Court summarized the current jurisprudence relating to the issue of sentencing below the statutory minimum of the multiple offender law. The court held that the habitual offender statute was constitutional, and that the mandatory minimum sentences contained therein should be enforced unless unconstitutionally excessive under Article I, Section 20 of the Louisiana Constitution. The standard set forth in the Dorthey case requires affirmance of the statutory sentence unless it makes no measurable contribution to acceptable goals of punishment or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. A trial court may depart from the statutory minimum sentence only where there is clear and convincing evidence that would rebut the presumption of constitutionality, and such cases are rare. If a trial judge finds such evidence, he is not free to sentence to defendant to whatever sentence he feels is appropriate, but is bound to sentence him to the longest sentence that is not constitutionally excessive. See, Lindsey, pp. 4-5, 770 So.2d at 342-43.

State v. Ricks, 823 So.2d at 444. In Ricks although the trial court gave reasons for the lesser sentence, this Court-found a lack of clear and convincing evidence that the defendant was exceptional and that the mandated sentence was excessive as to him.

|7In the instant ease, the defendant does not attempt to show that his sentence is excessive given his particular circumstances. Furthermore, nothing in the record or in the facts of the case suggests any mitigating circumstances in this case. Thus, a life sentence in this case is not constitutionally excessive.

CONCLUSION

Accordingly for reasons stated above, the defendant’s sentence on count three is vacated, and the case is remanded for re-sentencing in accordance with this opinion.

VACATED AND REMANDED.

      . In Houston the defendant, convicted of possession of cocaine, was adjudicated a fourth felony offender. One of his prior felonies was distribution of cocaine, a violation of the Controlled Dangerous Substances Law punishable by more than five years that fell under La. R.S. 15:529.l(A)(l)(b)(ii), prior to its amendment, and mandated a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.


author: JjMIRIAM G. WALTZER, Judge.

text:
    STATE of Louisiana v. Darren L. SANTEE.
    No. 2002-KA-0693.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.
    Harry F. Connick, District Attorney, Leslie P. Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Karen G. Arena, Louisiana Appellate Project, River Ridge, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER, Judge MICHAEL E. KIRBY).
   JjMIRIAM G. WALTZER, Judge.

STATEMENT OF CASE

Darren L. Santee was charged by bill of information on 9 July 2001, with possession of cocaine, a violation of La. R.S. 40:967(C)(2). He pled not guilty at his arraignment on 14 August 2001. On 4 October 2001 the trial judge denied San-tee’s motion to suppress the evidence, and found probable cause. Following the 25 October 2001 judge trial, Santee was found guilty as charged. On 6 November 2001 the court denied Santee’s motion for a new trial, and sentenced him to two years with credit for time served. That same day, the State filed a multiple bill. On 29 November 2001, Santee was adjudicated a fourth felony offender. The judge vacated Santee’s original sentence, and re-sentenced him to life imprisonment. Santee filed a motion to reconsider sentence, which the trial court denied.

STATEMENT OF FACTS

On 7 February 2001 at approximately 10:30 p.m., Detective Jewels Martin, Sgt. Little and Officer Craig Myers were on pro-active patrol in the 4100 block of Holly Grove when they observed the defendant standing on the sidewalk. As the officers approached in their patrol cars, the defendant appeared nervous, and put | ¡>his hands into his sweater. As the car lights shone on the defendant, the officers observed him discard two objects from his left pocket. Detective Martin exited his vehicle, and retrieved the objects as Sgt. Little and Officer Myers detained the defendant. Detective Martin examined the two objects, and suspected that they were rock cocaine.

The State and defense stipulated that if Officer Harry O’Neal were called to the stand he would be accepted as an expert in the analysis of controlled dangerous substances, and confirm that the two objects retrieved by Officer Martin tested positive for cocaine.

The defendant testified that on the night he was arrested, he had left his mother’s house en route to a bar on Holly Grove. As he approached Holly Grove and Pear Street, he saw three men standing on the sidewalk. He asked them for a ride to a bar on Airline Highway. When the trio refused, he turned, and walked away. As he did so, he noticed car lights shining behind him. He turned around, and noticed the police cars. The three men he asked for a ride fled on foot. He removed his hood from his head to identify himself to the officers. Officers Little and Myers exited them vehicle, and detained him. They took him to Detective Martin who told the defendant that he had seen the defendant discard the contraband. The defendant denied dropping the cocaine, and said he had nothing to do with drugs. Thereafter, the officers handcuffed and arrested him.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant contends he is entitled to a new trial because he did not properly waive his right to trial by jury.

|3A defendant may waive his right to a jury trial and elect to be tried by the judge. La.C.Cr.P. art. 780. Generally, the waiver is to be entered at arraignment. However, the trial judge may accept a waiver of a jury trial at any time prior to the commencement of trial. La. C.Cr.P. art. 780(B). A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475, 486 (La.1983). The waiver must be express and is never presumed. Kahey, 436 So.2d at 486. The record must show a knowing and intelligent waiver. State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 606. While it is preferred for the trial judge to advise the defendant personally on the record of his right to a jury trial and have the defendant waive the right personally on the record, the Louisiana Supreme Court has refused to mandate this method as an absolute rule. Kahey, 436 So.2d at 486. While the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. State v. Frank, 549 So.2d 401 (La.App. 3 Cir.1989).

In State v. Phillips, 365 So.2d 1304 (La.1978), the Louisiana Supreme Court specifically addressed the issue of whether a defense attorney could waive a defendant’s right to trial by jury. In deciding that a defense attorney could in fact waive this right, the Louisiana Supreme Court stated:

We find no error in the determination of the trial judge here that the present defendant gave his informed consent to the waiver made in his presence by his attorney, especially in light of the facts that the judge had informed defendant not once, but twice, of his right to choose between a judge trial and a jury trial, and that the defendant was shown to have had prior experience as an accused in the trial of a criminal prosecution.

365 So.2d at 1309.

14In this case, the defendant was represented by counsel at his arraignment on 14 August 2001 and was advised that he had a right to trial by judge or jury. Trial began on 25 October 2001, and counsel represented the defendant. On the record, defense counsel stated: “Your Honor, the defendant Mr. Santee has elected a trial by judge.” It is clear that the defendant and his counsel consented to the waiver of the right to trial by jury. The defendant remained silent when his attorney conveyed his wish to be tried by the judge. Also, during the trial, defense counsel again asked the defendant if it was his wish to be tried by the judge. The defendant on the record replied: “Yes, ma'am.” In addition to defense counsel’s waiver before trial, and the defendant’s waiver during trial, the transcript also reveals that defendant testified in his own defense, and was aware and alert and able to answer his attorney’s questions. Furthermore, the defendant has previous experience as an accused in at least three prior criminal proceedings, including two where he pled guilty. These factors show that he understood the proceedings and the issue of waiving his rights. Thus, considering the defense counsel’s indication that it was the defendant’s wish for a judge trial, the defendant’s silence after his attorney’s statement, the defendant’s subsequent waiver during trial, as well as his awareness of the proceedings, we find ample evidence in the record that he knowingly and intelligently waived his right to a jury trial. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment of error, the defendant argues he is entitled to a new multiple bill hearing because the evidence introduced at the multiple bill hearing cannot be located for appellate review.

In this record, in response to a second request from this Court for production of the exhibits introduced into evidence at the multiple bill hearing, there is a lRnotation from the Criminal Clerk of Court’s office dated 8 July 2002, which reads: “No exhibits found in the Clerk’s Office file.”

In State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72, 73, this Court held that the failure to file a written response to the multiple bill as required by La. R.S. 15:529.1(D)(l)(b) precluded appellate review of the defendant’s claim that the documentary evidence was not sufficient to support prior convictions set forth in the multiple bill.

In this case, at his arraignment on the multiple bill, the defendant entered a plea of not guilty; however the record contains no written response to the multiple bill as required by La. R.S. 15:529.1(D)(l)(b).

When the record does not contain the defendant’s written response to the multiple bill, the issue will not be preserved for appellate review unless the objection is made orally. State v. Anderson, 97-2587 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 17.

At the multiple bill hearing in this case, defense counsel focused on the fact that one of the arrest registers was missing, and part of the identification could not be matched by fingerprints. Thus, defense counsel clearly preserved the identity issue for appellate review. See State v. Hayden, 98-2768 (La.App. 4 Cir. 5/17/00), 767 So.2d 732, writ den. 2000-1886 (La.9/21/01), 797 So.2d 58. However, because the exhibits are not available, it is impossible to determine the merits of this assignment of error, and whether the State met its burden of proof at the multiple bill hearing. Therefore, the defendant’s adjudication and sentence under the multiple offender statute are vacated. La. Const, art. I, § 19 (1974); State v. Ford, 338 So.2d 107 (La.1976).

| ¡,CONCLUSION

We affirm the conviction of possession of cocaine, but vacate the multiple offender adjudication and sentence. We reinstate the original sentence of two years, and remand for further proceedings consistent with this opinion and the law.

CONVICTION AFFIRMED, MULTIPLE OFFENDER ADJUDICATION AND SENTENCE REVERSED, ORIGINAL SENTENCED IMPOSED.


author: MIRIAM G. WALTZER, Judge.

text:
    STATE of Louisiana, v. David LEE.
    No. 2002-KA-0955.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.
    Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

      Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER, Judge MICHAEL E. KIRBY).
   MIRIAM G. WALTZER, Judge.

STATEMENT OF THE CASE

Defendant David Lee was charged by bill of information with one count each of aggravated burglary (La. R.S. 14:60), aggravated crime against nature (La. R.S. 14:89.1), aggravated arson (La. R.S. 14:51), simple burglary of an inhabited dwelling (La. R.S. 14:62.2), aggravated rape (La. R. S.14:42), and extortion)La. R.S. 14:66). The defendant pled not guilty at his 3 March 1999 arraignment. Defendant elected to be tried by the trial. On 12 August 1999 the trial court found the judge defendant guilty as charged. On 28 September 1999 the defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence for the aggravated rape count, to seven years for the count of aggravated burglary, thirteen months for the count of aggravated crime against nature, to three years for the count of aggravated arson, seven years for the count of simple burglary of an inhabited dwelling count, and two years for the extortion count with all the sentences to run concurrently. On that same date the state filed a multiple bill, and the trial court denied the defendant’s motion for a new trial. On 22 March 2000, after a hearing, the trial court found the defendant to be a third felony offender. The trial court vacated its previous sentence of seven years for the aggravated burglary count and re-sentenced the defendant to life imprisonment without the benefit of probation, parole or suspension of sentence. On 7 February 2002 the trial court granted the defendant an out of time appeal.

STATEMENT OF FACTS

N.M. testified she met the defendant one day on the street and they had a discussion of the Bible and scripture. The victim further testified that she allowed the defendant to live with her for a week because he had no place to live. At the end of the week the victim asked the defendant to leave her home. Initially, the defendant resisted but he then complied and left the victim’s apartment. According to the victim a few days later the defendant returned to her apartment asking her to let him in but she refused. She testified that the defendant then forced his way into her apartment by pushing a window unit air conditioner back into her apartment and crawling in through the opening. Once inside the apartment the defendant allegedly held the victim at knifepoint for hours. She further testified while the defendant held her hostage at knifepoint he put the air conditioner unit back in the window, put the curtains back at the window, forced her to cook him a meal, smoked a cigarette, drank a beer, and then forced her to have intercourse and perform oral sex. As the morning approached the defendant then told N.M. to set her alarm clock so that he would not be late for work. After the defendant left the apartment for work N.M. called 911 to report that she had been raped.

Detective Bradley Glaudi testified that while the detectives were conducting their investigation at N.M.’s apartment the defendant called several times asking her “not to do this to me ... you know I didn’t break into your house ... I’ll pay you one thousand dollars.”

Officer Kenneth Spooner testified that he responded to a burglary call at the victim’s apartment and when he arrived he found her front door open and her iron security door locked. Officer Spooner then walked around the side of the residence and encountered N.M., and a few seconds later they heard a loud explosion in the rear of the building. As the officer and the victim walked to the front of the apartment there was a second explosion. Officer Spooner testified he heard footsteps rapidly moving from the rear to the front of the apartment. The officer then saw the defendant exit the apartment using a key to open the iron security door. The defendant was detained, read his rights, and placed in a squad car. The officer testified that the defendant told him “that if the victim testified against him, he would kill her” and asked “if they could lift his fingerprints off some gas cans.”

Madeline Collins, of the New Orleans Police Department Crime Lab, testified that she found seminal fluid on a pair of stretch pants and a comforter but she was unable to type the material and match it to any particular individual.

Captain Vincent Roppolo of the New Orleans Fire Department testified as an expert arson investigator that the fire at the victim’s apartment was intentionally set using an accelerant.

Joe Tuffaro, of the NOPD Crime Lab, testified that material recovered from the victim’s apartment tested positive for the presence of a Class II accelerant consistent with gasoline.

The defendant testified on his own behalf that he and the victim lived together for four months and that he repeatedly contributed financially to the cost of maintaining the household. The defendant further testified that he realized the victim had psychiatric problems so he moved out of the apartment. The defendant denied breaking into N.M.’s apartment and raping her.

DISCUSSION

The defendant complains the trial court erred by proceeding to trial without first ascertaining the defendant’s competency to proceed.

La.C.Cr.P.art. 643 provides in part:

The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.

The Louisiana Supreme Court, in State v. Comeaux, 514 So.2d 84 (La.1987), stated that the trial judge’s determination of capacity to stand trial is entitled to great weight and will not be disturbed on appeal absent abuse of discretion. However, La. C.Cr.P. art. 642 provides in part that “[w]hen the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.” In addition, La.C.Cr.P. art. 647 provides in part that “[t]he issue of the defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing.”

In State v. Nomey, 613 So.2d 157 (La.1993), the Court found that the trial court’s failure to rule on the defendant’s competency prior to accepting his guilty pleas violated the defendant’s right to a fair trial. In Nomey, the court ordered a lunacy commission to examine the defendant’s mental capacity to proceed. The psychiatrists examined the defendant, and before they could convey their findings to the trial court, the defendant pled guilty to the charges. After the plea, the trial court received the lunacy report. In an application for post conviction relief, the defendant raised the issue of his capacity to plead guilty voluntarily. The trial court looked at the findings of the lunacy commission and found that the defendant was mentally competent at the time of his pleas. On review, the Supreme Court found the trial court erred by making this retroactive finding. The Court found the trial court violated both La.C.Cr.P. arts. 642 and 647 by taking the pleas before determining the defendant’s mental capacity to proceed. The Court stated:

It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense may not be subject to trial. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975). The failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Id. at 172, 95 S.Ct. at 904; Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State v. Rogers, 419 So.2d 840 (La.1982). Our statutory scheme for detecting mental incapacity “jealously guards a defendant’s right to a fair trial.” Rogers, at 843.

Id., at 161. The Court found that it did not matter whether the trial court could determine after the fact that the defendant was competent to proceed at the time he gave his pleas because “[t]he fact remains that defendant was deprived of the protective procedures set forth in our criminal code prior to the entry of his guilty pleas, thus depriving him of his due process rights.” Id.

In State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, this court distinguished Nomey. In Bonicard, the court appointed a sanity commission. The transcript of the sanity hearing showed one doctor testified that he thought the defendant was competent to proceed, and it was stipulated that the other doctor’s opinion would concur with that of the testifying doctor. The transcript did not show that the trial court then explicitly found the defendant competent, but instead the court set the case for trial. The defendant eventually pled guilty, and on appeal he sought to set aside his plea because the transcript did not reflect that the trial court made the competency finding. This court upheld the plea, finding that although the transcript did not show the finding, the minute entry and docket master entry of the date of the sanity hearing indicated the trial court found the defendant competent to proceed. The Supreme Court denied writs from this ruling. State v. Bonicard, 99-2632 (La.3/17/00), 756 So.2d 324.

In the instant case the defendant requested a lunacy hearing on 7 April 1999. The minute entries indicate the hearing was reset to 27 April 1999. There is no minute entry for 27 April 1999, but the docket master entry for that date indicates the defendant withdrew his request for a lunacy commission. However, the transcript of that date shows no such withdrawal. Indeed, the transcript shows defense counsel reminded the trial court of the lunacy hearing, and the court stated: “I’m going to call the doctors. This matter is set for trial tomorrow?” Defense counsel agreed the case was set for trial and then asked for a continuance of the trial to allow her to subpoena psychiatric records of the victim. The transcript ends with the court refusing to grant the continuance. There is no indication in the transcript or the docket master entry that the doctors testified or that the court made a ruling on competency. The successive minute entries (the court granted a joint continuance of the trial the next day) also give no indication the court ever ruled on the defendant’s competency.

Unlike Bonicard, where the record indicated that the court determined the defendant’s competency to proceed before the defendant entered the plea, here the record is silent as to any such ruling. There is nothing in the record to show that the trial court considered defendant’s competency before his trial. Therefore, we are compelled to reverse defendant’s conviction and sentence.

CONCLUSION

For the above reasons, we reverse the defendant’s convictions and sentences.

REVERSED.

      . Due to the nature of the offense, we will use the victim’s initials in this opinion.