author: 1 .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Anthony D. JEFFERSON.
    No. 03-KA-820.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Kia Habisreitinger, Christopher Cox, Assistant District Attorneys, Gretna, LA, for Appel-lee.
    Prentice L. White, Baton Rouge, LA, for Appellant.

      Anthony Jefferson — in Proper Person, Angola, LA.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   1 .MARION F. EDWARDS, Judge.

Defendant, Anthony Jefferson, appeals his conviction and sentence for theft in the amount of more than five hundred dollars. For the following reasons, defendant’s conviction and sentence are affirmed, and we further order the commitment amended to conform with the transcript in this case, in order to correct an error patent on the face of the record.

On July 9, 2002, the Jefferson Parish District Attorney filed a bill of information charging defendant, Anthony Jefferson, with theft in the amount of more than five hundred dollars, a violation of LSA-R.S. 14:67. Jefferson’s mother, Maxine Mahaffy, was also charged as a co-defendant. Jefferson was arraigned on July 10, 2002, and pled not guilty.

Co-defendant Maxine Mahaffy filed pretrial motions to suppress the evidence, confession and identification, and it appears from the record that Jefferson adopted Ms. Mahaffy’s motions. On November 14, 2002, the trial court held a hearing on the motions to suppress the evidence and the identification. The court denied the motion to suppress evidence, and deferred its ruling on the motion to suppress identification.

| «Jefferson was tried together with his co-defendant by a six-person jury on November 20 and 21, 2002. The jury returned a verdict of guilty as charged. Ms. Mahaffy filed a Motion for New Trial on December 11, 2002, which Jefferson adopted.

On December 12, 2002, the trial court heard arguments on the new trial motion, and denied it. Defense counsel waived statutory delays, and the court sentenced Jefferson that day to serve eight years at hard labor. The state thereafter filed a habitual offender bill, alleging Jefferson to be a fourth felony offender.

Jefferson filed a Motion for Appeal in proper person on December 2, 2002. Defense counsel filed a Motion for Appeal on December 12, 2002, and the trial court granted Jefferson an appeal on December 12, 2002. A habitual offender hearing was held on January 9, 2003, and the court found Jefferson to be a fourth felony offender. On that day, the judge vacated Jefferson’s original sentence and imposed an enhanced sentence of thirty-five years, without benefit of probation or suspension of sentence.

At trial, Carmen Yitrano testified that she generally works at night, and that after work she sometimes goes to a donut shop called “Coffee & ...” at 2010 Williams Boulevard in Kenner. At about 8:00 a.m. on May 8, 2002, she went into the shop, ordered a cup of coffee, and asked the cashier, Maxine Mahaffy, for change to use in the video poker machines. She gave Ms. Mahaffy two hundred dollars in cash, and then went into the restroom. A donut cutter named Jonas Hall was the only employee in the shop aside from Ms. Mahaffy.

|4When Ms. Vitrano returned to the serving area, she saw that a male customer known to her as George was now sitting at the counter, asleep. Jonas Hall’s shift had ended, and he had left the shop. A man was standing at the counter talking to Ms. Mahaffy. The man told Ms. Mahaffy that he wanted the money bag, saying “If you do as I tell you, nobody will get hurt. I have a gun.” Ms. Vitrano testified that Ms. Mahaffy motioned to her by nodding her head, as if she were attempting to let the man know Ms. Vitrano was there. The man turned to look at Ms. Vitrano, and she was able to see his face. Ms. Vitrano testified that she saw the man, later identified as Anthony Jefferson, holding what she believed was a gun, but that it was partially hidden by his hand.

Ms. Mahaffy walked toward the back of the shop, and returned minutes later with a zippered bag. Ms. Mahaffy opened the bag, removed currency, and placed it in one of the shop’s white paper bags. She gave the bag to the perpetrator and he left the shop. Ms. Vitrano testified that the man did not ask for the money that was in the cash register. Ms. Vitrano further remarked that Ms. Mahaffy did not appear distressed either during or after the robberies.

Ms. Mahaffy told Ms. Vitrano she had been robbed. Ms. Vitrano asked Ms. Ma-haffy whether she was going to call police. Mahaffy responded, “Well, yeah.” Ms. Mahaffy then went to the telephone and began to shake it. She told Ms. Vitrano it was not working! Minutes later, when the phone became operable, Ms. Mahaffy telephoned Randal Daigle, the manager of the shop. Mr. Daigle testified that when he spoke to Ms. Mahaffy on the telephone, he asked whether she had called police. When she said she had not, he told her to do so.

■ Ms. Vitrano again prompted Ms. Mahaffy to call police. Instead, Ms. Mahaffy waited on a customer. Her attitude remained nonchalant, and she did j5not appear shaken or frightened by the incident. Ms. Vitrano again insisted that Ms. Mahaffy telephone police. It was only then that the cashier called 9-1-1. A cassette tape of Ms. Mahaffy’s call to 9-1-1 was admitted in -evidence and was played for the jury.

Mr. Daigle testified that he routinely keeps two thousand dollars in a bag inside the shop’s safe in order to pay winnings on the shop’s video poker machines. The safe also contains another one thousand dollars in cash. The cashier on duty has access to the safe. Daigle went to the shop after Ms. Mahaffy called him to report the robbery. He found that the one thousand dollars was still in the box inside the safe, and that there was no money missing from the cash register. Daigle testified that the shop is equipped with security cameras, but that they were out of service at the time of the offense.

Officer Pat’ Gallagher of the Kenner Police Départment testified that he reported to Coffee & ... after'hearing an alert over the police radio regarding a robbery there. Gallagher was accompanied by an officer trainee, Louis Frost. Gallagher and Frost supervised the scene. Gallagher testified that he observed Ms. Mahaffy as she waited on customers. She seemed a bit nervous, but did not appear upset over the incident.

Ms. Mahaffy told Officer Gallagher that the perpetrator was a short black man wearing a black T-shirt and dark-colored pants. She said the perpetrator implied he had a gun, but that she did not see it. She told the officer that the man asked for the money bag, and that she retrieved it from the back room. Gallagher asked her how someone would know there was a money bag in the back room. Ms. Mahaffy responded that she had taken the bag out earlier to pay out some video poker winnings: Gallagher inquired as to whether the perpetrator was at the shop when she took out the bag, and she said he was not.

IfiMs. Vitrano testified that the perpetrator was a black man who stood 5' 8" to 5' 9" tall. He wore a white T-shirt with writing on it, blue jeans, and a dark-colored cap. Ms. Vitrano testified that when police officers arrived at the scene, she attempted to give them information, but they did not seem interested in what she had to say. She heard Ms. Mahaffy give inaccurate and conflicting accounts of the incident.

On May 20, 2002, Detective Cunningham interviewed Ms. Vitrano at her home. He presented her with a photographic lineup from which she identified defendant, Anthony Jefferson, as the perpetrator. She signed the back of Jefferson’s photograph, adding the date and time when she made the identification. Cunningham also showed the photographic lineup to Ms. Mahaffy, who told him she, could not identify any of the subjects as the man who took the money. She did not immediately point out to the officer that her son’s photograph was included in the lineup. However, when Cunningham told her that Jefferson had been identified as the robber, Ms. Mahaffy said, “Oh, that’s Anthony’s picture there.”

Detective Cunningham asked Ms. Ma-haffy whether she had had anything to do with the incident. She denied any involvement. She also told him that her son had been out of town for two months. Cunningham responded that he had information that defendant had been in the city for four days prior to the interview. Ms. Ma-haffy then remembered that her niece had seen defendant on the preceding Sunday.

Based on the information he collected, Detective Cunningham obtained a search warrant for Ms. Mahaffy’s residence at 2200 Idaho, Apartment A, in Kenner. He participated in the search of the apartment. Among the items recovered were a dark-colored baseball cap, a payroll check bearing defendant’s name, and a photocopy of Jefferson’s Louisiana driver’s license. _[¿The address on the license was 2200 Idaho, Apartment A. Cunningham testified that the apartment is two city blocks away from the donut shop.

In her trial testimony, Ms. Mahaffy denied that either she or her son were involved in the crime. She testified that, at the time of the incident, Ms. Vitrano was playing video poker, and could not have seen the perpetrator’s face from her vantage point. Ms. Mahaffy further testified that the hat seized at her apartment belongs to her daughter’s husband.

Mattie Evans, Ms. Mahaffy’s sister, testified that she is a cook at the donut shop. She went on duty shortly after the offense occurred. With respect to Ms. Mahaffy’s delay in calling police, Ms. Evans testified that the telephone in the shop had not been working properly for two to three weeks leading up to the robbery. Ms. Evans further testified that she knows Ms. Vitrano as a regular customer at the shop. When police arrived at the shop to investigate the robbery, Ms. Evans heard her tell them that she had not seen the robber’s face.

We first address Jefferson’s assignment of error related to his Motion for a New Trial on the basis of what he considers to be a highly suspect witness identification. Specifically, Jefferson argues that the witness’ identification of him was suspect since she willingly conceded that she only got a “glimpse” of the perpetrator and could not properly identify the clothing found in the residence to be the same item worn by the assailant on the night in question.

The record shows that Jefferson joined in a Motion for New Trial filed by co-defendant Maxine Mahaffy on December 11, 2002. LSA-C.Cr.P. art. 842 provides that “[i]f an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the |sobjection has been made by all the defendants.” This applies, by analogy, to written motions.

A review of the new trial motion shows that the sufficiency of identification evidence was not raised as an issue therein. LSA-C.Cr.P. art. 852 provides that a motion for new trial “shall be in writing” and “shall state the grounds upon which it is based.” Such an omission does not preclude appellate review of a defendant’s allegation that the state failed to present sufficient evidence to prove an essential element of the charged offense. We find that Jefferson is, nevertheless, not entitled to review of this issue, as his brief contains no argument regarding the sufficiency of Ms. Vitrano’s identification. Similarly, Jefferson offers no argument with respect to the reliability of the identification procedure (i.e., the photographic lineup).

Co-defendant Maxine Mahaffy did file a motion to suppress the identification. The motion came on for hearing on November 14, 2002. The trial judge deferred his ruling on the motion until such time as the state could produce the photographic lineup for his examination. The record shows that prior to the commencement of trial on November 20, 2002, the prosecutor asked the judge for a ruling on the motion to suppress identification. The discussion turned to other pre-trial matters, and the judge failed to rule on the motion. Jefferson did not object to the court’s failure to issue a ruling. It is well settled that a defendant who proceeds to trial without objecting to the trial court’s failure to rule on an outstanding motion waives the pending [¡¡motion. Furthermore, assignments of error that are neither briefed nor argued are considered abandoned on appeal.

As part of his argument in support of this assigned error, Jefferson also argues that the trial court erred in denying his motion to suppress the evidence. Jefferson asserts that he argued in his motion to suppress that the search warrant for the Idaho Avenue apartment was stale by the time it was executed, and that it was not based on probable cause. This argument is not encompassed by Jefferson’s stated assignment of error, however, as it has nothing to do with the new trial motion.

Additionally, Jefferson refers in his brief to a motion to suppress which he filed. Again, the only motion to suppress evidence found in the record is a motion filed by co-defendant, Maxine Mahaffy. That motion is nonspecific, and contains no allegation regarding the timeliness of the search warrant’s execution, or the probable cause to support said warrant. Moreover, a reading of the hearing on the motion to suppress evidence does not show that defense counsel made any argument or presented evidence with respect to timeliness of the warrant’s execution. There is, therefore, nothing for this Court to review with respect to that issue, and accordingly, we find this assignment of error to be without merit.

Jefferson next argues that the district court erred in denying his Motion for a New Trial since it was undisputed that the process server failed to timely issue a subpoena for a witness that could have provided vital information in favor of the defense. In several pro se assignments of error, Jefferson asserts that the trial court denied him the right to compulsory process. Specifically, Jefferson complains that he was denied his right to compulsory process due to |inthe absence of a potential defense witness, Jonas Hall. Jefferson further argues that the trial court erred in denying the motion for new trial, the vehicle by which he raised this issue below.

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to compulsory process and to present a defense. The state violates that right when it arbitrarily denies a defendant the opportunity to put on the stand a witness whose testimony would be relevant and material to his defense. A defendant’s right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served.

The potential defense witness, Jonas Hall, was an employee of the donut shop. The record shows that defendant received notice on September 16, 2002 that his trial was scheduled for the week of November 18, 2002. However, it was not until November 20, 2002, the day trial began, that Maxine Mahaffy’s attorney filed a request with the clerk of court to issue instanter subpoenas for three witnesses, including an individual listed only as “Jonas.” There were two addresses listed for Jonas: one on North Howard Street in Metairie and the other at 2010 Williams Boulevard in Kenner, the location of Coffee & .... That subpoena was returned unserved, with the notation, “Need full name of witness.”

Immediately prior to jury selection, Ms. Mahaffy’s counsel, Mr. Netterville, addressed the court with regard to the instanter subpoenas:

One of the people we had subpoenaed actually works for the coffee shop. We don’t know his last name. His name is Jonahs. He comes in at three in the morning and he works until either ten or two depending on how he’s needed. InSo we don’t hold this up later on looking for this witness, he’s actually under the control of the State’s primary witness, the victim in this case, so we have issued the subpoena for him.
But if we’re going to move things along a little easier, I just ask the State to ask their victim, alleged victim to have the man here by the time we start our case, and we subpoenaed him at his home and the coffee shop.

Mr. Netterville then informed the judge that he did not know the witness’ last name; only that his first name was Jonas and that he was a donut cook at the shop. The judge told counsel, “in all fairness to the sheriffs, I can’t demand that the sheriffs serve a subpoena on just a Jonahs.” The prosecutor informed the court that the witness’ last name was Hall, and that Randy Daigle, the manager of the donut shop, would telephone him and ask him to go to court.

Mr. Netterville later informed the court that Mr. Daigle had contacted Mr. Hall, but that Hall was not able to get to court at that time. Additionally, Hall had not received a subpoena. Mr. Netterville suggested that a process server deliver a subpoena to the donut shop at 9:30 that night, when Hall was scheduled to go on duty.

The judge asked Mr. Netterville, “What are you requesting that I do?” Counsel responded, “Enforce the compulsory process provisions of the Constitution.” Mr. Netterville said he did not have Mr. Hall’s telephone number, but that it appeared Mr. Daigle would be in touch with him. It was at that point that jury selection began. When the state rested its case, Mr. Net-terville proceeded with his case without mention of Mr. Hall.

Mr. Netterville called three witnesses, including Ms. Mahaffy. Thereafter, the following exchange ensued:

MR. NETTERVILLE:
|12We have no other witnesses except we would ask that [sic] Court to subpoena Jonahs Hall. We would ask the Court to subpoena Jonahs Hall and Mr. Hall is not here. I talked to Mr. Hall by telephone. He works for—
THE COURT:
Mr. Netterville—
MR. NETTERVILLE:
He’s not present.
THE COURT:
—none of that. Come on.
MR. NETTERVILLE:
I don’t have him here. We object to him not being here.
We rest.

Defendant’s 'counsel, Ms. Guste, rested without objecting to Mr. Hall’s absence, and without having called a single witness.

On December 12, 2002, Mr. Netterville argued in support of the Motion for New Trial. Ms. Guste, declined to present an argument. Mr. Netterville asserted that Mr. Hall would have refuted Ms. Vitrano’s identification testimony, and that Hall’s testimony “would have been very, very important.” In an affidavit dated December 10, 2002 and attached to the new trial motion, Jonas Hall stated that he returned to the donut shop after the robbery and saw Ms. Vitrano playing video poker. He heard Ms. Vitrano say she did not see the robber’s face. The prosecutor argued that Mr. Netterville should have attempted to locate Mr. Hall long before the day of trial, and that his choice to wait until then was a matter of trial strategy.

The trial judge denied the motion. In response to counsel’s argument, the judge noted that the trial lasted for two days. On the first day, court did not recess until 11:00 p.m. Mr. Netterville had ample opportunity to secure Mr. Hall’s presence on that day. Moreover, Mr. Netterville could have had |13the witness appear on the second day of trial. The judge did.not feel that counsel made sufficient effort to secure Mr. Hall’s presence.

After a review of the record, we find that the trial court did not err in its ruling. The defense was remiss in failing to request a subpoena for Mr. Hall in advance of trial. The defense also failed to make the minimal effort it would have taken to obtain the witness’ last name. Instead, defense counsel apparently assumed the prosecutor would have one of the state’s witnesses secure Mr. Hall’s presence. The government generally has no obligation to look for a defendant’s witnesses unless a witness has been made unavailable through suggestion, procurement, or negligence of the government.

Mr. Netterville and Jefferson’s counsel might have sought relief below by moving for a continuance prior to trial or by requesting a recess in the proceedings in order to search for Mr. Hall. They did neither. In State v. Luna, this Court rejected the defendant’s argument that he was deprived of his right to compulsory process when the trial court proceeded to trial absent some defense witnesses. This Court found the defendant was not denied the right to present a defense or the right to compulsory process “because of his apparent knowledge of the trial date, his failure to file a continuance, and his failure to move for a recess.”

Neither Mr. Netterville nor defendant’s counsel moved the court to allow a proffer of the evidence they wished to elicit from Mr. Hall. In State v. Gordon, this Court rejected the defendant’s argument that he was deprived of his right to compulsory process when several defense witnesses were not | ^subpoenaed for trial despite his submission of several pre-trial motions. This Court reasoned that there was nothing to show that the defendant raised the issue before the district court at the time of trial, and that there was nothing in the record to show that the defendant made a proffer of what the witnesses’ testimony would be if they were to testify.

We further find that Jefferson was not prejudiced by his inability to call Mr. Hall as a witness. His testimony would have been duplicative of Ms. Evans’ and Ms. Mahaffy’s testimony that Ms. Vi-trano said she had not seen the perpetrator’s face. Based on the foregoing, we find these assignments of error to be without merit.

In his next assignment of error, Jefferson asserts that “the district court’s answer to the jury’s inquiry during the deliberation period was prejudicial because the answer submitted to the jury did not specifically address the questions asked by the jury and district court did seek any guidance from the parties on how to answer said question? [sic]” Jefferson also argues that the trial court erred in giving erroneous jury instructions on “reasonable doubt” over defense counsel’s objections. Jefferson claims that the trial court’s instruction to the jury regarding reasonable doubt was incorrect, and that it served to lessen the burden of proof by which the jury evaluated the state’s case.

In his initial jury charge, the judge stated, in part:

Ladies and gentlemen, a person who is accused of a crime is presumed by our law to be innocent until each element of the offense necessary to constitute their guilt is proven beyond a reasonable doubt.
It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the Court, to give the defendant or defendants the benefit of any reasonable doubt arising out of the evidence or out of the lack of evidence in this case.
11BIt is also the duty of the jury, if not convinced of the guilt of the defendant beyond a reasonable doubt, to find them Not Guilty. .
A reasonable doubt is a doubt based upon reason and common sense.

This instruction tracks the mandatory language in LSA-C.Cr.P. art. 804(A).

After deliberations were begun, the jury requested that the judge give further instruction with -regard to reasonable doubt. The judge stated:

All right. As I instructed you earlier, I said that what we mean by “reasonable doubt” is a doubt which is based upon reason and common sense. To elaborate on that definition, the law goes on to state, “While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. A reasonable doubt is- a doubt based upon reason and common sense and is present when, after ” you have carefully considered all the evidence, you can not say that you are firmly convinced of the truth of the charge.”

Ms. Mahaffy’s attorney objected and moved for a mistrial, on grounds that the court’s supplemental explanation of reasonable doubt was incomplete, and denigrated the burden of proof. The court denied the mistrial. Defendant restates counsel’s argument here, although he does not say precisely what part of the charge he feels is improper.

The instruction in this case tracks the proposed charge on reasonable doubt in Louisiana Judges’ Criminal Bench Book, Vol. I, § 3.03,- which reads:

While the State must prove'guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt which is based on reason and common sense and is present when, after you have carefully considered all the evidence, you cannot say that you are firmly convinced of the truth of the charge.

Additionally, the trial court’s supplemental charge is included in the charge approved by the Louisiana Supreme Court in State v. Brumfield,

Based on the foregoing, we find that the trial court’s charge on reasonable' doubt was not unconstitutional. This assignment is without merit.

1^Jefferson next argues that his thirty-five year sentence as a fourth felony offender is unconstitutionally excessive in that it is not tailored to his offense, and amounts to a needless imposition of pain and suffering.

We note that Jefferson did not make an oral or written motion to reconsider sentence in the district court. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, .limits a defendant to a review of the sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is constitutionally excessive, even if it is within statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. Trial judges are granted great discretion in imposing sentence, and if the record supports the sentence imposed, the court of appeal will not set it aside on grounds of excessiveness.

The sentencing range to which Jefferson was subject under the law at the time of the underlying offense was twenty years to life. At the time of the habitual offender sentencing, the prosecutor listed for the court Jefferson’s defendant’s prior offenses. There were two felony thefts in 1999, one of which was used as a predicate offense in the habitual offender bill. 117Jefferson’s record also includes a simple escape, purse snatching, issuing worthless checks, and an earlier conviction for felony theft. The prosecutor further noted that he had recently handled charges against Jefferson in another section of court involving possession of a gun. The prosecutor characterized Jefferson as a career criminal whose conviction record dates back to 1983. He requested that the court impose a sentence of at least forty years.

The trial judge allowed both defense counsel and defendant to respond to the prosecutor’s remarks. Counsel asked the court to consider Jefferson’s age, of nearly forty. She also argued that Jefferson’s prior offenses did not involve weapons. The judge imposed sentence without giving reasons. After reviewing the record, we find the trial court did not abuse its wide discretion in imposing a forty-year sentence. First, the sentence is near the lower end of the statutory range. Secondly, the sentence is supported by the record.

Based on the foregoing, we find this assignment to be without merit.

In his next two pro se assignments, Jefferson first asserts that the trial judge erred when he went into the jury-deliberating room during deliberations and discussed his opinion of appellant’s and co-defendant’s guilt and reasons for guilt with degrees of culpability, outside the presence of appellant and counsel. Jefferson then argues that his trial counsel was ineffective “wherein after learning of the trial judge’s errors in Assignment of Error Number One, counsel failed to move for a continuance in sentencing and timely move for a new trial based upon the judge’s errors.”

The record shows that, after the jury returned its verdict, the trial judge thanked them for their service, and directed them to go to the jury room. He then said, “I’ll met [sic] with you in just a moment if you don’t mind.” There is nothing in the record to show that Jefferson or his attorney had, at that point, left the courtroom. The judge went on to discuss the date of sentencing 11swith Ms. Mahaffy’s attorney. There was no objection to the judge’s statement that he planned to speak to the jurors.

At the time of sentencing, the judge made the following comments in reference to his post-verdict discussion with the jurors:

When the jury came in the courtroom I noticed what I guess I can explain is maybe somewhat looks of exasperation on the faces of the jurors and I felt it was sometimes necessary after two long days and it had been two long days for the jury to go into the room to talk to them about the case and basically they asked me what did I think and what was I going to do and they specifically said with Ms. Mahaffy. I said, “I think Ms. Mahaffy made a mistake because of her love for her son.” I said, “I do believe unfortunately Ms. Mahaffy was involved and did attempt to help her son.” But they expressed a concern to me that they wanted me to show some leniency, some compassion, some mercy with regard to Ms. Mahaffy because they said that she is not a bad person in then-mind or their opinion and they felt that she was working for, unfortunately, the rotten apple in the group and that a mother has a love for her son and that a mother’s love for that son is going to sometimes get even the mother in trouble. But it was their desire that she be made to make restitution to the victim as a result of her participation in this activity. It was also their expressed desire that she not be made to serve any jail time because they felt up to this point in her life she had lived an exemplary life and they felt that there should be some reward given to her as a result of that. So, essentially the jury asked me for some leniency or some consideration in sentencing with regard to Ms. Mahaffy.

Neither Jefferson’s counsel nor Ms. Ma-haffy’s counsel made objections in response to the judge’s disclosure. Both defendants waived statutory delays, and stated they were ready for sentencing. In failing to make a timely objection below, Jefferson failed to preserve this issue for appeal. Furthermore, Jefferson would not be entitled to review of this issue even if his counsel had objected, since Jefferson’s complaint has to do with a sentencing hearing whose results were later vacated when he was sentenced as a habitual 11 ¡¡offender. Because there is nothing for this Court to review, this assignment is without merit.

Finally, Jefferson asserts that the trial court erred in sentencing him as a multiple offender under the double jeopardy clause. Because Jefferson has not briefed the assignment, however, it is considered abandoned, pursuant to Uniform Rules Courts of Appeal, Rule 2-12.4. We therefore decline to consider this assignment of error.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. One error patent is noted.

The transcript of the habitual offender sentencing shows that the trial judge properly denied Jefferson the benefit of probation and suspension of sentence, as provided by LSA-R.S. 15:529.1 However, the commitment shows that the judge also denied defendant parole eligibility. The denial of parole eligibility would make defendant’s sentence illegal. Where there is a conflict between the transcript and the minute entry, the transcript prevails. We therefore order the commitment amended to conform with the transcript. In all other respects, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . It does not appear that the trial court issued a ruling on the motion to suppress the identification.

      . The trial court’s order granting appeal is dated December 12, 2001. It appears, however, that use of 2001 in the document instead of 2002 is a typographical error.

      .Mr. Hall’s first name is spelled "Jonahs” throughout most of the record. However, an affidavit executed by Mr. Hall and contained in the record shows that Mr. Hall actually spells his name "Jonas.” (First Supplemental Record, p. 9).

      . State v. LaCaze, 99-0584, p. 21 (La. 1/25/02), 824 So.2d 1063, 1079, fn. 37, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002).

      . State v. Fontana, 396 So.2d 1251, 1252 (1981).

      . State v. Fletcher, 02-707, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-0409 (La. 10/10/03), 855 So.2d 334.

      . Uniform Rules Courts of Appeal, Rule 2-12.4; State v. Blank, 01-564, pp. 10-11 (La.App. 5 Cir. 11/27/01), 804 So.2d 132, 139.

      . See also, LSA-C.Cr.P. art. 731.

      . Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

        .State v. Rodriguez, 02-334, p. 13 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 117, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061, cert. denied, - U.S. -, 124 S.Ct. 444, 157 L.Ed.2d 321 (2003).

      . State v. Hogan, 404 So.2d 488, 489 (La.1981).

      . See, LSA-C.Cr.P. art. 709; State v. Snyder, 98-1078, pp. 35-36 (La.4/14/99), 750 So.2d 832, 858.

      . 00-858 (La.App. 5 Cir. 10/31/00), 772 So.2d 249, writ denied, 00-3244 (La.10/12/01), 799 So.2d 495.

      . Luna, 00-858 at p. 16, 772 So.2d at 257.

      . 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, writs denied, 02-0362 (La.12/19/02), 833 So.2d 336, and 02-0209 (La.2/14/03), 836 So.2d 134,

      . 96-2667, pp. 46-47 (La.10/20/98), 737 So.2d 660, 684-685, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999).

      . LSA-C.Cr.P. art. 881.1.

      . State v. Dillon, 01-906, p. 4 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, 773, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779.

      . State v. Zaldivas, 02-0690, p. 9 (La.App. 5 Cir. 12/30/02), 836 So.2d 577, 583, writ denied, 03-0705 (La. 10/17/03), 855 So.2d 757.

      . LSA-C.Cr.P. art. 881.4(D); State v. Richmond, 98-1015, p. 8 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

      . LSA-R.S. 14:67(B)(1); LSA-R.S. 15:529. l(A)(l)(c)(i).

      .A sentencing judge may consider not only convictions, but past criminal behavior which did not result in a conviction. State v. Anderson, 02-273, p. 7 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 522, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254; State v. Gilbert, 00-1822, p. 5 (La.App. 5 Cir. 5/16/01), 788 So.2d 574, 577.

      . LSA-C.Cr.P. art. 841.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).


source: Caselaw Access Project

author: J^THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Philip GUIDRY & Kaycee Sterling.
    No. 03-K-625.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Jackie Maloney, Assistant District Attorneys, 24th Judicial District Court, Gretna, LA, for Relator.
    George P. Vedros, and Marquite D.M. Naquin, Indigent Defender Board, Gretna, LA, for Respondent.

      Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   J^THOMAS F. DALEY, Judge.

PROCEDURAL HISTORY

This Writ Application is before the Court following a remand from the Louisiana Supreme Court. The case on remand concerns whether or not suppression of evidence is appropriate for searches conducted pursuant to a facsimile-issued search warrant when the procedural requirements of LSA-C.Cr.P. art. 162.1(d) are not met.

Following the trial court’s granting of a Motion to Suppress the State filed a Writ Application with this Court from a ruling granting Philip Guidry’s and Kayeee J. Sterling’s, defendants/respondents, oral Motion to Suppress Evidence seized as a result of a search warrant issued by facsimile transmission. Defendants asserted these defects:

1. The judge failed to certify on the facsimile the date and time of the administration of the oath; and
2. The judge did not administer the oath to the applicant.

|3The trial court found the warrant violated mandatory requirements of LSA-C.Cr.P. art. 162.1 and suppressed the evidence. This Court originally denied the State’s Writ Application (Writ 03-K-625, La. 5th Cir. May 30, 2003) holding that, “the trial court correctly granted the defendants Motion to Suppress because the procedure used to obtain the search warrant failed to comply with the provisions of the LSA-C.Cr.P. art. 162.1.”

The Louisiana Supreme Court remanded the matter to this Court for written treatment and reconsideration in light of United States v. Leon, which generally recognized a “good faith” exception to precluding suppression. The Supreme Court also cited federal cases that interpret comparable Fed.R.Crim.P. rule 41.

SUPPRESSION HEARING

On September 14, 2002, Sergeant Jason Renton submitted a search warrant application by facsimile to the issuing judge. That day he obtained a signed search warrant from the judge for the specifically requested address of 736 MacArthur Drive in Harvey. The sergeant and other officers executed the search warrant at 2:40 p.m. the same day.

Sergeant Renton testified that his verbal telephone communication with the judge was limited. Initially, he advised the judge: “I have a search and seizure warrant that I’d like for you to read and approve.” He then asked, “what would you like for me to do?” The search warrant application was then faxed to the judge. Sergeant Renton had no further verbal communication with the judge. The officer did, however, identify himself by name as an officer in the narcotics division. The judge did not ask him any questions before Sergeant Renton faxed the documents.

| ¿Copies of the application and search warrant were introduced. These are dated by facsimile notation on September 14, 2002 with varying times. Sergeant Ren-ton did not make a notation of the time he furnished the documents, and the judge did not note the time that he signed the warrant before transmitting it.

The sergeant did not recall whether- he signed the application when he sent it to the judge. He probably did so, however, he does not always sign the application. He might have signed, it the following Monday when he met the judge, presented him with the results of the search, and obtained the judge’s original signature.

The search warrant exhibits indicate that the judge signed the warrant, acknowledging that he had probable cause for issuing a search warrant for the described address, as requested in the application. The warrant authorized the search and seizure of specifically designated items associated with distribution and manufacturing of- illegal drugs. The return on the search warrant, which lists the seized items, is dated the same date as the warrant’s issuance.

The original warrant application and affidavit contain the affiant’s signature and the judge’s signature.

The warrant affidavit recites that in August 2001, Sergeant Renton met with a confidential source regarding an ongoing narcotics investigation. The informant told the officer he knew Philip Guidry, who resided at 1737 Robin Street in Marrero. Philip Guidry told the informant that he (Guidry), who used methamphetamine, would be rich because he was one ingredient (red phosphorus) away from manufacturing the drug.

IsThe informant related that Merlin Des-paux, a mutual friend, returned from California to reside with Philip Guidry. Merlin Despaux was convicted in California for manufacturing this drug. The informant described Philip Guidry’s vehicles, which included motorcycles. He also related that Philip Guidry used “Casey” (Guidry’s girlfriend), to distribute drugs. He said that “Casey” resided at 736 MacArthur Drive in Harvey. According to the informant, “Casey” worked at a bar, which officers later learned was a “biker bar.”

Beginning in August 2002, Sergeant Renton and Agent Boylan conducted numerous surveillances of Philip Guidry’s residence. They never saw any vehicles there. On September 9, 2002, Sergeant Renton conducted a surveillance on Robin Street and saw a truck with a license number registered to Stephanie and Spencer Lester at 1713 Robin Street in Marrero. The agents saw no unusual activity.

On September 13, 2002, Sergeant Ren-ton conducted a surveillance of Philip Gui-dry’s residence located at 1737 Robin Street in Marrero. Sergeant Renton saw an additional vehicle in the driveway that was registered to Stephanie and Spencer Lester of 1713 Robin Street in Marrero. Sergeant Renton ended the surveillance. While he returned to the narcotics office, Lieutenant Timothy Miller received an anonymous telephone complaint. The citizen stated that neighbors in the area of the 700 block of MacArthur Drive complained of a strong ammonia smell coming from the residence at 736 MacArthur Drive in Harvey. The citizen advised that Philip Guidry and Merlin Despaux lived there.

Sergeant Renton stated that based on his laboratory training, the smell of ammonia is associated with the type of ammonia that can be used in place of red phosphorus. This type has a distinctive smell and is extremely dangerous.

Sergeant Renton conducted a criminal history check of Merlin Despaux and learned he had a criminal history in California from 1997 through 1998 relative to manufacturing and possession of a controlled dangerous substance. In 1997, he |fiwas convicted of manufacturing a controlled dangerous substance. A criminal history check of Philip Guidry revealed that he was on probation for possession of controlled dangerous substances.

Based on Sergeant Renton’s 11-1/2 years of service in the narcotics division, he believed it was in the community’s best interest to grant a search warrant because all of the chemicals used in the manufacture of methamphetamine are highly toxic and the least disruption in the manufacturing process could result in an explosion.

On September 14, 2002, Sergeant Ren-ton observed the targeted residence and saw Philip Guidry’s pickup truck in the driveway and a truck registered to Merlin Despaux.

At the hearing, Sergeant Renton testified that he is certified in the area of volatile labs and knows how quickly these labs can explode. He seized items that are consistent with distribution of illegal drugs.

He also testified that he did not corroborate the ammonia complaint and he did not detect the odor. The citizen reported the smell on September 13th around 11:00 p.m. Officers responded, but the wind was blowing and there was no way to detect the ammonia smell. Sergeant Renton personally spoke to the neighbor and he entered this person’s backyard. Sergeant Renton began preparing the warrant around 9:00 a.m. the following day. Meanwhile, officers conducted a surveillance. The sergeant did not want to enter the house while people were cooking the drug because of its explosive potential. He waited for someone to leave. Merlin Des-paux left at 1:25 p.m.

|7The trial judge did not err in finding the warrant was defective since Article 162.1’s requirements were not met. Sergeant Renton was uncertain whether he signed the application before submitting it by facsimile. In addition, the warrant here did not meet the requirement of the judge’s certifying on the facsimile transmission the date and time of the administration of the oath. According to Sergeant Renton, the trial judge did not administer an oath. Both the United States and Louisiana Constitutions provide that no warrant shall be issued unless based on probable cause, supported by oath or affirmation.

ANALYSIS

We now consider whether the defect in the warrant necessitates the granting of the Motion to Suppress. This court, in Hogan, explained that Leon created an exception to the exclusion of evidence where an officer relies in good faith on a magistrate’s probable cause determination and the technical sufficiency of the warrant. The reasoning is that exclusion is designed as a deterrent to “bad faith” police searches and not clerical errors by the criminal magistrate. Hogan further explained that Leon enumerated four instances in which suppression remains appropriate: (1) where the magistrate or judge was misled by information the affi-ant knew was false or would have known was false except for a reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his detached and neutral judicial role; (3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the warrant is so facially deficient, i.e., fails to particularize the place to be searched or the things to be seized, that the ^executing officers cannot reasonably presume it to be valid. An officer’s reliance on the issuing magistrate’s probable cause determination and on the technical sufficiency of the warrant must be objectively reasonable.

Considering the four Leon situations where suppression is appropriate, and in light of the presentation at the suppression hearing, it is noted that these situations are not present.

First, there is no indication that the issuing judge was misled by information Sergeant Renton knew was false or would have known was false except for a reckless disregard for the truth. Second, there is no indication that the issuing judge wholly abandoned his detached and neutral judicial role. Third, the warrant is not so facially deficient that the executing officers could not reasonably presume it to be valid.

Sergeant Renton testified he could not recall whether he signed the application/affidavit at the time of issuance. However, the executing officers reasonably presumed the warrant to be valid given the fact that the judge signed the warrant acknowledging that Sergeant Renton presented an affidavit to him and that he was satisfied that probable cause existed. The warrant refers to the same designated property that is listed in the application/affidavit. It describes in detail the evidence to be seized. Compare, State v. Bagent, where the First Circuit concluded that Leon did not bar suppression where the search warrant did not contain the address of the residence to be searched, the name of any owner or resident, or a list of items to be seized. The court reasoned that an officer could not in good faith rely on a blank search warrant. This is not the case here.

Additionally, we find that the warrant was not based on a search warrant application that was so lacking in indicia of probable cause as to render official 19belief in its existence entirely unreasonable. This was not a “bare bones” application giving only the officer’s suspicions of criminal activity.

The officers who executed the warrant could reasonably have believed the application set forth a sufficient nexus between the MacArthur residence and the hoped-for evidence of drug manufacturing, based on the following facts. The application does not consist only of conclusory inferential hearsay from a confidential tipster. Although surveillance showed no sign of illegal narcotics activity, the application recites that the police independently corroborated much of the informant’s information. The officers had a reasonable basis to believe, based on the following, that there was probable cause that contraband or drug-manufacturing paraphernalia was at the MacArthur residence: (1) a readily identifiable neighbor reported an ammonia smell the day before the warrant was issued; (2) Merlin Despaux was recently convicted of drug manufacturing; (3) surveillance indicated that Merlin Despaux and Philip Guidry were associated with the MacArthur residence; (4) the confidential informant recently told police that Philip Guidry and Merlin Despaux were currently manufacturing and selling drugs; and (5) Sergeant Renton, who was specially trained in laboratories, recited that ammonia was used in drug manufacturing.

The warrant application does not appear so deficient that by authorizing the search the issuing judge failed to act in a neutral and detached manner and that by executing it the officers acted under circumstances in which they could not have reasonably believed the warrant was valid.

Furthermore, consideration of the federal cases cited by the Supreme Court also indicates that the deficiencies do not require suppression. In United States v. Richardson, the government appealed the district court’s granting the defendant’s Motion to Suppress. It argued Leon’s “good faith” exception applied. The district court found that the warrant was defective because the magistrate failed to administer a proper oath or affirmation. The Federal Fifth Circuit reversed. The federal court found the trial judge correctly concluded that the warrant was constitutionally infirm because it failed to meet the Fourth Amendment’s oath or affirmation requirement. Next, the court noted that the district court properly considered that the finding did not end the inquiry since Leon’s “good faith” exception should be considered. The appeals court, however, disagreed with the trial judge’s finding that Leon did not apply.

In that case, the unsigned affidavit was read over the telephone. The court concluded that when the failure to formally administer the oath or affirmation was inadvertent, and there was no showing of dishonesty or recklessness on the part of the applicant, suppression would not serve a deterrent purpose. It found that magistrates were bound accidentally to fail to administer the oath on “rare occasion[s],” and warrant applicants were unlikely to attempt to circumvent the oath or affirmation requirement because they “will expect to be sworn when preparing their warrant applications” and could not “realistically hope to escape the oath or affirmation requirement.”

In the present case, Sergeant Renton testified that he asked the issuing judge for instructions and when he met with the judge the following Monday, he knew he signed the affidavit then. Thus, the deficiencies were inadvertent since the officer expected to be sworn when he prepared the application. There was no indication that he was dishonest or reckless in preparing it.

In United States v. Rome, the Federal 10th Circuit considered the following factors significant: some evidence of exigent circumstances; probable cause was demonstrated; no showing the search prejudiced the defendants; no showing the search would have been less abrasive had the article’s provisions been followed; and no evidence of intentional or deliberate disregard for the rule.

Applying Rome to the present case requires a determination of whether probable cause was demonstrated. As previously mentioned, this was not a “bare bones” affidavit. Like Rome, there is a showing of exigent circumstances due to the explosive nature of ammonia. Furthermore, the defendants here failed to show prejudice, evidence of intentional or deliberate disregard, or that the search would have been less abrasive if Article 162.1’s provisions had been followed.

Based on the above cited jurisprudence, we find that the trial court erred in granting the Motion to Dismiss. We vacate the granting of the Motion to Suppress and remand the matter to the trial court for further proceedings.

VACATED AND REMANDED.

      . State v. Guidry, et al., 03-1944 (La. 11/21/03), 862 So.2d 965.

      . 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

      . Transcript, pp. 5-6, 14.

      . Transcript, pp. 7-8.

      . Transcript, p. 13.

      . Transcript, p. 14.

      . Transcript, pp. 6, 40, 46.

      . Writ Application, Exhibit 9.

      . Transcript, p. 15.

      . Transcript, pp. 15-16.

      . Transcript, pp. 16-17.

      . Exhibit 9.

      . Transcript, p. 18.

      . Transcript, p. 20.

      . Transcript, pp. 19-20.

      . Transcript, pp. 21-22.

      . Transcript, pp. 23-25.

      . See, n. 4, supra.

      . U.S. Const., Amend. IV; La. Const., Art. 1, § 5. State v. Johnson, 408 So.2d 1280, 1285 (La.1982).

      . 02-924 (La.App. 5 Cir. 1/28/03), 839 So.2d 296, 299.

      . 839 So.2d at 299.

      . Id.

      . 839 So.2d at 300 citing Leon, 468 U.S, at 923, 104 S.Ct. at 3421.

      . Leon, 468 U.S. at 922, 104 S.Ct. at 3420.

      . 98-1239 (La.App. 1 Cir. 4/1/99), 734 So.2d 80, 82-83.

      . Leon noted that nothing in its opinion suggested that an officer could obtain a warrant on the basis of a "bare bones” affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search. 104 S.Ct. at 3420, n. 24.

      . 943 F.2d 547, 550 (5th Cir.1991).

      . 943 F.2d at 548.

      . 943 F.2d at 549.

      . 943 F.2d at 550.

      . 943 F.2d at 548.

      . Id. at 551. Compare, State v. Tye, 2001 WI 124, 248 Wis.2d 530, 636 N.W.2d 473 (2001), where the Wisconsin Supreme Court declined to follow Richardson. Id. at 479 and 479, n. 29.

      . 809 F.2d 665, 669 (10th Cir.1987). See also, United States v. Turner, 926 F.2d 883, 886 (9 th Cir. 1991).


author:
| ¡.WALTER J. ROTHSCHILD, Judge.
      It CHE HARDY, J.,

text:
    TREEN CONSTRUCTION CO., INC. v. Mr. & Mrs. Stephen P. SCHOTT.
    No. 03-CA-1232.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      John David Cassanova, Metairie, LA, for Plaintiff/Appellant, Treen Construction Co., Inc.
    Walter J. Leblanc, Jr., John J. Molaison, Molaison & LeBlanc, Gretna, LA, Blake G. Arata, Jr., Rome, Arata And Baxley, L.L.C., New Orleans, LA, for Defendants/Appellees, Mr. & Mrs. Stephen P. Schott.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | ¡.WALTER J. ROTHSCHILD, Judge.

On November 8, 2002, the plaintiff, Treen Construction Co., Inc. (Treen), filed suit against Mr. and Mrs. Stephen Schott, alleging that Treen sold plans for the proposed construction of a home in Savannah Ridge subdivision to the Schotts for $3,895.43, but the Schotts have failed to pay for the plans. The matter came before the court for trial on July 17, 2003. After Treen presented its case, the Schotts moved for an involuntary dismissal, arguing that Treen had failed to show any right to the relief sought. The trial court granted the Schotts’ motion and dismissed Treen’s lawsuit with prejudice. The trial court ordered the parties to pay their own costs.

On July 21, 2003, Treen filed a Motion for New Trial, which was denied by the trial court on August 21, 2003. On August 26, 2003, Treen filed a Motion for Appeal, which was granted by the trial court. The Schotts answered the appeal, asking this Court to modify the trial court’s judgment by ordering Treen to pay all of the costs of the trial court proceedings.

FACTS

13At trial, the plaintiff called two witnesses. The first witness was John Treen, who is the president and sole stockholder of Treen Construction Company, Inc. Mr. Treen testified that he was approached by Stephen Schott to discuss the possibility of Treen Construction building a home for the Schotts on a lot owned by Treen in Savannah Ridge subdivision. The parties had several meetings where they discussed them ideas for the proposed home and prepared preliminary plans. Thereafter, Mr. Treen delivered the preliminary plans to an architect, Mr. Peter Waring, who prepared formal plans for the proposed home.

Mr. Treen testified that he recommended Peter Waring to the Schotts and suggested that they have the plans prepared by him. According to Mr. Treen, Mr. Schott stated that he would rather have Treen pay for the plans and then add the cost of the plans to the cost of the house. Mr. Treen stated that Mr. Schott agreed to reimburse him for the cost of the plans if the house was not built. The cost of the plans, including the fees of the architect and the structural engineer as well as copy charges, was $3,895.43. Mr. Treen paid all of the costs associated with the plans.

Although the plans were completed in March of 2000 and Mr. Treen told the Schotts that he would have an estimate of the cost of the house within three or four weeks after the plans were completed, he did not contact the Schotts for three to four months. When Mr. Treen called Mr. Schott and quoted him a price for construction of the home, he apologized for the delay in contacting them, and he told Mr. Schott that he would understand if they did not want him to build their home.

The Schotts agreed to allow Mr. Treen to build them a home, but they wanted the home built on a lot that they had purchased on Magnolia Drive, not the Savannah Ridge lot. Mr. Treen agreed and subsequently built the Schotts’ home on Magnolia Drive. However, they had to have a new set of plans prepared by Mr. 14Waring, because the plans prepared for the Savannah Ridge lot could not be used on the Magnolia Drive lot.

On cross-examination, Mr. Treen admitted that during the negotiations for the Magnolia Drive home, he did not tell the Schotts that they owed him money for the Savannah Ridge plans. He stated that he probably did not even tell them the price. Construction on the Magnolia Drive house began in October or November of 2000, but Mr. Treen did not send the Schotts a bill for the Savannah Ridge plans until December 2001, which was after the Schotts filed suit against Treen Construction alleging defects and other problems with the Magnolia Drive home. Further, Mr. Treen admitted that toward the end of construction of the Magnolia Drive house, the relationship between the parties deteriorated. Charges for any changes made to the original plans, including small charges, had to be paid to Mr. Treen prior to the changes being made. However, during this time, Mr. Treen did not ask the Schotts for payment of the cost of the plans.

Mr. Treen stated that he did not ask the Schotts to pay him for the plans, because the Savannah Ridge lot was for sale, and he believed that he might be able to sell the plans to the person buying that lot. He stated that he would have sold the plans as- a favor to the Schotts, but he sold the lot in December 2001 and the purchaser was not interested in buying the plans.'

The second and final witness to testify at trial was the architect of the plans, Peter Waring. ■ Mr. Waring testified that he agreed to prepare the plans for $3,000 and Mr. Treen paid him for the plans shortly after their completion. However, he did not have any first-hand knowledge of the billing arrangement between Mr. Treen and the Schotts, because he was not present when the agreement was made.

DISCUSSION

On appeal, Treen sets forth seven assignments of error. In its first assignment of error, Treen argues that the trial court erred when it granted a motion |fifor involuntary dismissal, because the plaintiff submitted a prima facie case in support of its lawsuit. We disagree.

LSA-C.C.P. art. 1672 provides in pertinent part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving ■' his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The trial court has much discretion in determining whether to grant .a motion for involuntary dismissal. Lopez v. State, Louisiana Health Care Authority/University Medical Center, 98-577 (La.App. 3 Cir. 10/28/98), 721 So.2d 518, 520. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Foster v. Tinnea, 96-2718 (La.App. 1 Cir. 12/29/97), 705 So.2d 782, 784. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Thornton ex rel. Laneco Const. Systems, Inc. v. Lanehart, 97-2871 (La.App. 1 Cir. 12/28/98), 723 So.2d 1127, 1130, writ denied, 99-177 (La.3/19/99), 740 So.2d 115. The trial court is not required to review the evidence presented in the light most favorable to the plaintiff. Ross v. Premier Imports, 96-2577 (La.App. 1 Cir. 11/7/97), 704 So.2d 17, 20, writ denied, 97-3035 (La.2/13/98), 709 So.2d 750.

According to Mr. Treen, Mr. Schott verbally agreed to reimburse him for the cost of the plans. If a contract is not reduced to writing and its price or value is greater than $500, the contract must be proved by at least one witness and other corroborating circumstances. LSA-C.C. art. 1846; Peter Vicari General Contractor, Inc. v. St. Pierre, 02-250 (La.App. 5 Cir. 10/16/02), 831 So.2d 296, 301. Whether there are corroborating circumstances sufficient to establish an oral contract is a question of fact. Deubler Electric, Inc. v. Knockers of Louisiana, Inc., 95-372 (La.App. 5 Cir. 11/15/95), 665 So.2d 481, 484.

The record supports the trial court’s finding that Treen failed to prove the existence of a contract by a preponderance of the evidence. Mr. Waring finished preparing the plans for the Savannah Ridge property in March of 2000, and Mr. Treen paid Mr. Waring and the engineer for their services shortly thereafter. It was several months later that Mr. Treen contacted the Schotts with an estimate of the cost of building the home as set forth in the plans. At that time, Mr. Treen told Mr. Schott that he would understand if they did not want him to build the house, but he did not mention that they would still owe him for the costs of the plans. Further, Mr. Treen did not bill the Schotts for the plans during the time that he was building a house for them on Magnolia Drive. In fact, he did not send them an invoice for the plans until December 2001, after the Schotts filed suit against Treen for alleged defects in the Magnolia Drive home.

Mr. Treen argues that his testimony is supported by the objective evidence of payments made on behalf of the Schotts and the corroborating testimony of Peter Waring. However, Mr. Waring’s testimony and the evidence indicating that Treen paid for the plans does not corroborate Treen’s claim that the Schotts agreed to reimburse him for the plans. In fact, Mr. Waring stated that he was not present when any payment agreement between Mr. Treen and the Schotts was made.

Considering the testimony and evidence in this case, we find that Treen did not show by a preponderance of the evidence that it was entitled to any of the relief sought in its lawsuit. Therefore, the trial court’s involuntary dismissal of Treen’s lawsuit was not manifestly erroneous, and this assignment of error is without merit.

|7In its second assignment of error, Treen argues that the trial court erred when it considered defenses to Treen’s lawsuit when no evidence has been admitted of record. However, Treen does not set forth the defenses that it believes the trial court improperly considered. Rather, it merely cites statements of law indicating that judgments must be based on pleadings and supporting evidence properly filed in the record.

At the hearing on the Motion for New Trial, the trial court stated:

Can I tell you what really worked against your client? He never sent them a bill. Never sent them a bill even after he had built the second house, went to the architect at [sic] the second set of plans, for the second house, he never once said, ‘Look you still owe me for these other plans’ until after they sued him for not doing a good job in constructing the second house.

The record does not show that the trial court based its decision on evidence that was not admitted or unsupported affirmative defenses. Rather, the evidence shows that Treen failed to prove its case by a preponderance of the evidence. Accordingly, we find that this assignment of error is without merit.

In its third assignment of error, Treen asserts that the trial court erred when it misapplied the open account statute (LSA-R.S.9:2781) and overlooked the applicable legal principles contained therein. Treen argues that the trial judge misapplied LSA-R.S. 9:2781 when he stated that Treen failed to make demand on the Schotts, because citation and service of a petition are sufficient to satisfy the requirement of written demand. Treen further argues that the evidence presented was uncontradicted and there was no credibility determination to be made, so the involuntary dismissal should not have been granted.

First, the trial court did not dismiss Treen’s lawsuit due to noncompliance with the demand requirements of the open account statute. Therefore, this Court can grant no relief to Treen on this issue. Second, the trial court found that the testimony and evidence presented during Treen’s case-in-chief was insufficient to |sestablish entitlement to relief by a preponderance of the evidence, and we agree. When the plaintiff fails to carry its burden of proof, there is no necessity for the defendant to rebut or contradict insufficient evidence. Locke v. Sheriff, Parish of Jefferson, 94-652, (La.App. 5 Cir. 12/28/94), 694 So.2d 257, 258, writ denied, 95-0268 (La.3/24/95), 651 So.2d 293. Therefore, we find that the trial court did not err in refusing to require the Schotts to put on evidence to contradict Treen’s ease, and this assignment of error is without merit.

In its fourth assignment of error, Treen contends that the trial court erred when it deprived the plaintiff of the opportunity to cross-examine the defendants. However, Treen did not call the Schotts as witnesses during the trial. At the hearing on the Motion for New Trial, counsel for Treen stated:

The basis for the new trial is that there were certain actions that were taken that were prejudicial to the plaintiff. Plaintiff whether it was my fault, and I will take responsibility if it was, failed to call the defendants under the act, or under cross-examination during. the case-in-chief, expecting that there would be an opportunity to cross-examine the defendants at the time of their case-in-chief. This resulted in being prejudicial to the plaintiff because the Motion for Involuntay Dismissal was granted by the Court, therefore, if I’m responsible I will take the responsibility and I am at fault—

LSA-C.C.P. art 1634 provides that a party may be called as a witness and examined by the adverse party. Although Treen’s counsel had the right and the opportunity to call the Schotts as witnesses and to cross-examine them, he chose not to do so. The record is devoid of any evidence that the trial court deprived Treen of the right to call these witnesses during its case-in-chief. Therefore, this assignment of error is without merit.

In its fifth assignment of error, Treen argues that the trial court failed to remedy a clear unjust enrichment. It asserts that Treen paid debts that were the obligation of the Schotts and the Schotts benefited from these payments.

19A party making a claim for unjust enrichment must show: 1) enrichment; 2) impoverishment; 3) a rational connection between the enrichment and the impoverishment; 4) lack of justification or cause for enrichment; and 5) absence of any other legal remedy. Blann v. Aldige, 97-1080 (La.App. 5 Cir. 5/27/98), 712 So.2d 1052, 1054.

The elements of unjust enrichment have not been met in this case. First, the Schotts were not enriched by Treen’s payment . of the costs of the plans. The Schotts did not use or derive any benefit from the plans. Furthermore, there was no contract or payment agreement between Mr. Waring and the Schotts, so Treen’s assertion that it paid the Schotts’ debt is incorrect. Second, Treen cannot show unjust enrichment because it cannot show absence of any other legal remedy. Accordingly, the trial court did not err in failing to find unjust enrichment in this case, and this assignment of error is without merit.

In its sixth .assignment of error, Treen claims that the trial court erred when it failed to remedy a breach of mandate. Treen argues that it was clearly representing the Schotts when it had the custom plans prepared for their proposed home and, pursuant to LSA-C.C. art. 3012, the principal is bound to reimburse the mandatary for expenses paid.

This argument was not raised in the trial court, and has been asserted for the first time on appeal. Issues not brought before the trial court cannot be considered on appeal. Faulkner v. The McCarty Corporation, et al., 02-1387 (La.App. 4 Cir. 6/11/03), 853 So.2d 24, 27. Therefore, we will not consider Treen’s argument that there was an agency relationship and that the Schotts are bound to reimburse Treen due to this relationship.

In its seventh assignment of error, Treen contends that the trial court erred in allowing a part-time fellow judge to practice before him.

hnPrior to the trial, Mr. Leonard Leven-son enrolled as additional counsel of record for the Schotts. Treen argues that Mr. Levenson is a current First Parish Court part-time judge and is prohibited from practicing in that court, pursuant to the judicial canons. The Schotts assert that Mr. Levenson is occasionally a judge ad hoc in First Parish Court, which is different from a part-time judge, and he is not prohibited from practicing in that court.

The issue of whether Mr. Levenson is a part-time judge or a judge ad hoc is irrelevant to these proceedings. When Mr. Le-venson enrolled as additional counsel for the Schotts, he moved to continue the trial due to a scheduling conflict, and this request was denied by the trial court. Mr. Levenson was unable to participate in the trial due to the conflict and he did not file any pleadings on the Schotts’ behalf.

Treen has failed to show that it was prejudiced by the enrollment of Mr. Le-venson in these proceedings, or that it is entitled to any relief from this Court on this issue. Therefore, we find that this assignment of error is without merit.

In their answer to Treen’s appeal, the Schotts seek reversal of the trial court’s order requiring them to pay their costs of the trial court proceeding. They assert that the trial court abused its discretion in failing to assess all costs against Treen, because Treen’s case was not even sufficient to withstand a motion for involuntary dismissal.

LSA-C.C.P. art.1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

The trial court has broad discretion in assessment of court costs, but this discretion is not unlimited. Donavan v. Jones, 26,883 (La.App. 2 Cir. 6/21/95), 658 So.2d 755, 768, writs denied, 95-1786, 95-1891 (La.11/3/95), 661 So.2d 1379. The trial judge cannot tax the prevailing party with costs, unless in some way he incurred additional costs pointlessly or engaged in other conduct which justified assessment of costs against that litigant. Fenton v. Schuster, 98-1068 (La.App. 5 Cir. 3/30/99), 732 So.2d 597, 602.

After a thorough and careful review of the record before us, we find that the trial court abused its discretion when it ordered the Schotts to pay their own costs of the trial court proceedings. Therefore, the portion of the trial court’s judgment which taxed costs of the trial court proceedings to the Schotts is amended to assess all costs to Treen. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are to be borne by the plaintiff, Treen Construction Co., Inc.

AFFIRMED IN PART; AMENDED IN PART.

CHEHARDY, J., concurs in part and dissents in part.

It CHE HARDY, J.,

concurring in part and dissenting in part.

I concur with the portion of the judgment that affirms the trial court’s disposition of the plaintiffs claim. However, I dissent with the portion of the judgment that allocates costs.

As pointed out by the majority, La.C.C. art.1920 allows the trial court to render judgment for costs, or any part thereof, against any party, “as it may consider equitable.” A trial court’s assessment of costs can be disturbed only upon a showing of an abuse of discretion. Palomo v. LeBlanc Hyundai Partnership, 95-278, p. 7 (La.App. 5 Cir. 10/31/95), 665 So.2d 414, 421, writ denied 96-0399 (La.2/22/96), 669 So.2d 1214. In my view there is insufficient showing of an abuse of the trial court’s discretion and, therefore, I would not amend the costs award.


author: | .SUSAN M. CHEHARDY, Judge.

text:
    Heidi Sekinger GRAEFENSTEIN v. Edward H. GRAEFENSTEIN.
    No. 03-CA-1077.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Roland A: Ditta, Gretna, LA, for Appellant, Edward H. Graefenstein.
    Jean.Morgan Meaux, Metairie, LA, and John J. Lee, Jr., New Orleans, LA, for Appellee, Heidi Sekinger Graefenstein.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | .SUSAN M. CHEHARDY, Judge.

Ex-husband appeals the trial court’s December 10, 2002 judgment of partition. For the following reasons, we affirm.

Facts and Procedural History

On August 20, 1999, Heidi Sekinger Graefenstein (“Heidi”) filed for divorce from Edward H. Graefenstein (“Edward”). On February 11, 2000, Heidi filed a Petition for Judicial Partition of Community Property and Rules for Past Due Alimony, Child Support, Contempt and Rent, which included her Sworn Detailed Descriptive List of Community Property. On February 15, 2000, the trial judge ordered Edward to file his detailed descriptive list of all community property within 45 days. Edward, however, did not file his sworn descriptive list within 45 days of the trial judge’s order.

On April 19, 2000, Heidi and Edward’s divorce was finalized. Further, they signed a consent judgment regarding past due child support and spousal support and agreed to list the couple’s home, which was the community’s largest asset, on the real estate market. On June 8, 2000, Heidi filed a Rule for Contempt alleging that Edward refused to comply with the consent judgment and cooperate with selling their house.

| .On June 14, 2000, Edward moved to continue the contempt hearing, which was granted. The record is unclear as to the disposition of this rule for contempt. On June 23, 2000, Edward discharged his attorney and retained new counsel'. On January 18, 2001, Edward discharged his second attorney and began to proceed in proper person.

On January 2, 2002, Heidi requested that her pending Partition for Community Property be set for trial and requested a court date. That day,1 she also filed an Amended Detailed Descriptive List. Trial of the partition was set for July 25, 2002.

On March 8, 2002, Heidi filed her Second Amended Detailed Descriptive List. On April 18, 2002, Heidi filed her Third Amended Detailed Descriptive List. On May 13, 2002, Heidi filed a Rule to Show Cause Why Petitioner’s Sworn Descriptive List Should Not be Accepted as True. That day, she also filed a Rule for Contempt alleging that Edward had refused to comply with the trial court’s order regarding return of Heidi’s separate property.

On July 18, 2002, Heidi filed a Second Rule for Contempt alleging that Edward had withdrawn, without her consent, over $31,000 from a community savings plan in contravention of a preliminary restraining order issued on November 2, 1999. She also alleged that Edward, who had been the sole occupant of their house since October of 2001, had failed to make any of the requisite mortgage payments and, thus, the mortgage holder had instituted foreclosure proceedings.

At the July 25, 2002 hearing, Edward, who appeared in proper person, and Heidi agreed to list the house on the real estate market within one week. Further, Heidi’s Rules for Contempt were continued until August 26, 2002. At the July hearing, both parties waived written notice. According to the August 26, 2002 |4minute entry, Heidi’s Rules for Contempt were continued until October 22, 2002. Again, both parties waived notice.

On October 18, 2002, Heidi filed her Fifth Amended Sworn Detailed Descriptive List. The minute entry for the October 22, 2002 hearing on “Comm Prop” indicates that the hearing was continued until December 10, 2002. As before, both parties waived notice.

On December 10, 2002, Heidi’s Rule to have her Descriptive List accepted as true and correct was heard. Edward did not appear for the hearing. That same day, the trial judge signed the “Consent Judgment of Partition” and “Qualified Domestic Relations Order.”

On December 18, 2002, Edward, who was still appearing in proper person, filed a “Motion for New Hearing Date,” which was granted and set for February 12, 2003. The record does not reflect that either Heidi or her attorney was served with this motion. On February 7, 2003, Edward filed a “Detailed Descriptive List.” On February 12, 2003, neither Heidi nor her attorney appeared and the hearing was continued to April 23, 2003. On that date, again neither Heidi nor her attorney appeared. Again, the record does not reflect that either Heidi or her attorney received notice of this hearing.

On April 24, 2003, Edward, who was still appearing in proper person, filed a second Motion for New Hearing Date, which was set for May 27, 2003. That same day, Edward also filed an Amended Detailed Descriptive List. On April 28, 2003, Edward filed a Motion to Vacate the Qualified Domestic Relations Order, which was also set for May 27, 2003.

On May 21, 2003, Heidi filed exceptions of Insufficiency of Service of Process, No Cause of Action, Res Judicata, Vagueness, and Improper Cumulation of Actions. On May 27, 2003, the trial judge maintained Heidi’s exceptions and ^denied Edward’s Motion for New Hearing Date. On June 2, 2003, the trial judge signed the written judgment. On June 25, 2003, Edward filed a devolutive appeal.

On appeal, Edward alleges 11 assignments of error, which focus on two major arguments: first, the December 10, 2002 “consent” judgment was invalid because he was not present to consent to the content and language of the judgment and, second, the judgment was invalid because it did not fully comply with the requirements of La. R.S. 9:2801. We note that implicit in Edward’s arguments is the contention that the trial judge erred in denying his Motion for New Hearing Date, which the trial court considered as a Motion for New Trial.

La. C.C.P. art.1972 provides the peremptory grounds for granting a new trial which are, in pertinent part:

(1) when the verdict or judgment appears clearly contrary to the law and the evidence or
(2) when the party has discovered since the trial evidence important to the cause, which he could not with due diligence have obtained before or during the trial.

La. C.C.P. art.1973 allows the court the discretion to grant a new trial for “good grounds.” The appellate courts will not disturb a decision of the trial court denying a motion for new trial unless there has been a clear abuse of discretion. Territo v. Schwegmann Giant Supermarkets, Inc., 95-257 (La.App. 5 Cir. 9/26/95), 662 So.2d 44.

Regarding Edward’s argument that the judgment was invalid, a trial judge may sign in chambers a judgment decreeing or homologating a partition, when unopposed. La. C.C.P. art. 194(1), La. C.C.P. art. 2592(5). Here, although Edward was ordered by the trial judge to file his own detailed descriptive list, Edward failed to timely file his descriptive list. Further, Heidi filed the proper motion, according to La. R.S. 9:2801(l)(a), to cause her sworn descriptive list to constitute a judicial determination of the community assets and liabilities. Edward, | (¡although he had notice of the proceeding, failed to appear for proceeding and Heidi’s descriptive list was accepted as a true and correct listing of the communities’ assets and liabilities. Thus, we find no error in the partition judgment rendered December 10, 2002.

Regarding Edward’s second argument that the judgment fails to comply with La. R.S. 9:2801, the statute reads, in pertinent part:

Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities.... If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a ... list. If the court grants the request, no traversal shall be allowed. (Emphasis added.)

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99. A court of appeal may not set aside a trial court’s finding of fact in absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility .and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989); Madere v. Modere, 93-610 (La.App. 5 Cir. 2/9/94), 632 So.2d 1180.

In this case, contrary to Edward’s contentions, we find that the trial court followed La. R.S. 9:2801(l)(a). Heidi filed her first Sworn Detailed Descriptive List on February 11, 2000. Edward was ordered by the trial judge to file his Detailed Descriptive List within 45 days of February 15, 2000, which would have been March 31, 2000. Edward failed to file his descriptive list by that date.

17After two years had passed and Heidi had filed four amended sworn descriptive lists, she finally filed a rule to show cause why the trial court should not adopt her list as a judicial determination of the community assets and liabilities. On December 10, 2002, the trial judge heard that rule and granted Heidi’s request that her sworn descriptive list would constitute a judicial determination of the community assets and liabilities as permitted by La. R.S. 9:2801.

Based on the foregoing, we find that no error in the trial court’s denial of Edward’s Motion for New Hearing Date. Further, we affirm the December 12, 2002 judgment. Defendant, Edward H. Grae-fenstein, is taxed with the costs of this appeal.

AFFIRMED.

      . At a later hearing, Heidi's attorney stated that Edward sought a continuance on July 25, 2002 in order to hire an attorney.


author: 1,THOMAS F. DALEY, Judge.

text:
    Vayneary WILLIAMSON v. HOSPITAL SERVICE DISTRICT NO. 1 OF JEFFERSON d/b/a West Jefferson Medical Center.
    No. 03-CA-1066.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Michael A. Triay, Robert E. Tarcza, Tarcza & Associates, L.L.C.,'New Orleans, LA, for Plaintiff/Appellant.
    Peter J. Butler, Peter J. Butler, Jr., Ralph T. Rabalais, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for De-fendanVAppellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   1,THOMAS F. DALEY, Judge.

The plaintiff, Vayneary Williamson, has appealed the trial court’s grant of the defendant’s Exception of Prematurity. For the reasons that follow, we affirm.

FACTS:

The plaintiff sought treatment at West Jefferson Medical Center (WJMC). As she was leaving the facility, she was being pushed .in a wheelchair by a WJMC employee to the facility’s parking lot. While in route, a wheel fell off of the wheelchair, causing plaintiff to fall to the ground. Plaintiff filed suit against WJMC for injuries sustained in this incident. WJMC responded with an Exception of Prematurity, claiming that as a qualified healthcare provider under the Medical Malpractice Act (MMA), it was entitled to have this claim reviewed by a medical review panel. The trial court found that this incident came under the scope of the MMA and granted the exception. Plaintiff timely filed this appeal.

| JLAW AND DISCUSSION:

On appeal, the plaintiff contends that certain mechanical failure of medical equipment is-outside of the scope of R.S. 40:1299.41, et seq, the MMA. Plaintiff argues that given the facts of this case, ordinary negligence, rather than the MMA applies. The defendant responds that this incident occurred as the plaintiff was being transported during the process of her discharge and falls squarely under the parameters of the MMA.

The general rule is that any conduct by a hospital of which a patient, complains is within the scope of the MMA if it comes within the definitions .of the MMA, even if there are alternative theories of liability. Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460. Any ambiguities in the MMA should be strictly construed against falling under the MMA because the MMA is in derogation of the rights of tort victims. Id.

■.R.S. 40:1299.47, provides that all malpractice claims against healthcare providers covered by the MMA shall be reviewed-by a rpedical review panel. R.S. 40:1299.41 A(8) defines malpractice as:

... any unintentional tort or any breach of contract based on health care or professional -services rendered, or which should'have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of. a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in -the training or supervision of health care providers,- or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

In Sewell v. Doctors Hospital, 600 So.2d 577, (La.1992), the Court held that an allegedly defective hospital bed did not fall under the purview of the MMA because there were no allegations of negligence on the part of the hospital. The Court went on to state that the legislature intended to exclude a healthcare provider’s liability for defective things “unless negligence by the healthcare |4provider caused the thing to be defective or unreasonably dangerous.” Id. at 579. In footnote 6, the Court stated that the healthcare provider would not be included under the MMA when the patient was injured in a fall because a bed collapsed from a “metallurgical defect, unless the provider caused the defect or knew or should have known of the defect and neglected to repair it.” Id. at 580.

In her petition, the plaintiff alleged that her injuries were caused by the negligence of the WJMC employee who failed to inspect the wheelchair and carelessly used the wheelchair to transport her. The plaintiff further alleged that WJMC was negligent for failing to inspect the wheelchair, carelessly allowing one of its employees to use the wheelchair when WJMC knew or should have known that it was unreasonably dangerous, and failing to properly maintain the wheelchair. In her amended petition, plaintiff alleged that her injuries were caused by a WJMC employee for “negligently failing” to repair the wheelchair and to insure that the wheelchair was in proper working condition pri- or to returning the wheelchair for use. The amended petition further alleged that plaintiffs injuries were caused by a WJMC employee for “negligently failing” to supervise the repair of the wheelchair. Clearly, plaintiff is alleging WJMC should have known of the defect in the wheelchair and that WJMC’s negligence caused the wheelchair to fail.

In Sewell, the Court set forth a three-prong test to determine whether the MMA or general tort law applies in a case. The Court expanded on these factors in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303. These factors are:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
ls(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the alleged tort was intentional.

Based on these factors we find that plaintiffs claim falls under the MMA. First, we find that the transportation of a patient in a wheelchair as the patient is being discharged from the facility is part of the overall treatment of the patient and is, therefore, “treatment related”. The next factor of whether expert medical evidence is needed in order to determine whether the standard of care was breached is less clear cut. In order to determine whether the standard of care was breached, the trier of fact will have to look to WJMC’s policies regarding the maintenance and inspection of equipment used to transport patients. Expert testimony as to whether these procedures were appropriate and adhered to would be required to determine if the standard of care was breached. Kegarding the third factor of whether the conduct involved an assessment of the patient’s condition, we find that the hospital employee’s decision as whether to use a wheelchair to transport the plaintiff involved an assessment of her condition. Next, we find that transporting a patient in a wheelchair is within the scope of activities that a hospital is licensed to perform. As this incident would not have occurred had the plaintiff not sought treatment at WJMC, we find the fifth factor is met. And finally, the plaintiff concedes that the act was not intentional.

We note that at first impression, it would appear that the claim of a patient who is injured due to a wheel coming off of a wheelchair would not fall under the provisions of the MMA, however, we are bound by the broad interpretation of the MMA in our jurisprudence and as such find that plaintiffs claim falls under the provisions of the MMA. In addition to the Coleman factors being met, we reject plaintiffs contention that her claim, that there was a failure of the wheelchair caused by the hospital’s improper maintenance and repair of the wheelchair, falls under general negligence. Plaintiff cannot avoid the MMA by attempting to couch Ifiher claim in language that would fall outside of the MMA when the claim could also be phrased so that it fits within the definitions of the MMA. The conduct complained of must be handled under the MMA if it falls under the definitions of the MMA, even though alternative theories of liability may exist. Richard, supra.

Accordingly, the trial court correctly granted defendant’s Exception of Prematurity. For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.