author: ¡WALTER J. ROTHSCHILD, Judge.

text:
    Fay Guillot Wife of/and Ron GUILLOT v. EAST JEFFERSON GENERAL HOSPITAL, Jane Doe and Mary Doe.
    No. 02-CA-1074.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Writ Denied April 25, 2003.
    Richard T. Gallagher, Jr., Gallagher Law Firm, New Orleans, LA, for Fay Guil-lot, Wife ofiand Ron Guillot, Plaintiff/Appellant.
    Catherine M. Williams McCranie, Sis-trunk, Anzelmo, Hardy, Maxwell, & McDaniel, Metairie, LA, for East Jefferson General Hospital, Jane Doe and Mary Doe, Defendant/Appellee.
   ¡WALTER J. ROTHSCHILD, Judge.

On February 17, 1998, Fay and Ronald Guillot filed suit against East Jefferson General Hospital (East Jefferson), and others, alleging that Mrs. Guillot suffered a dislocated hip as a result of the negligence of two hospital nursing aides while she was recovering from surgery at East Jefferson. Trial was held on March 28, 2002, and the parties submitted post-trial memoranda after trial. On May 21, 2002, the parties appeared in court for closing arguments and for the trial judge to make her ruling and recite oral reasons for judgment. The trial court ruled in favor of the defendant, East Jefferson, finding that the plaintiffs had not proven that the dislocation of Mrs. Guillot’s hip was caused by the nursing aides, and the plaintiffs’ lawsuit was dismissed. It is from this judgment that the plaintiffs appeal. For the reasons which follow, we affirm.

FACTS

Dr. Santo LoCoco, an orthopedic surgeon, had been treating Mrs. Guillot since 1992 for various problems, including rheumatoid arthritis. In March of 1994, he recommended that Mrs. Guillot undergo a total hip replacement after he determined that she suffered from aseptic necrosis of her right hip. On March 31, 1 s1994, Dr. LoCoco performed the total hip replacement at East Jefferson. Mrs. Guillot testified that while she was recuperating from the surgery, two ladies came into her room to turn her. She stated that they raised her up high and then one of the ladies let go of the pad they were using to move her, and they dropped her. She asserts that she was in severe pain when the nursing aides dropped her and that she continued to have pain after this incident. She also testified that she was not able to do any physical therapy or walk while she was in the hospital. She contends that she did not want Dr. LoCoco to discharge her from the hospital, because she was in severe pain caused by the nursing aides dropping her. Ronald Guillot also testified, and he stated that his wife was dropped while the nursing aides were turning her.

On May 2,1994, Mrs. Guillot returned to Dr. LoCoco’s office. Dr. LoCoco, who testified via his deposition, stated that when Mrs. Guillot walked into his office, he immediately noticed that she had an abnormal gait, and he had an x-ray done. The x-ray revealed that the hip prosthesis had become dislocated. Dr. LoCoco tried to get the hip back into place without surgery, but was unsuccessful. Therefore, he performed another surgery on May 4, 1994 in order to correct the problem.

Jean Bachus was the patient care technician or nursing aide who was caring for Mrs. Guillot on the day of the incident, and Diana Dumas was a patient care technician who Ms. Bachus asked to assist her with Mrs. Guillot. In lieu of live testimony at trial, the parties stipulated that if Ms. Bachus were called to testify, she would testify as follows. Ms. Bachus would state that she and Ms. Dumas were in the process of transferring Ms. Guillot from an orthopedic chair to her bed. Ms. Bachus contends that her hand slipped while they were pulling Mrs. Guillot onto the bed, but Mrs. Guillot was already on the bed at that time and did not make any complaints to her that she was hurting from the transfer. Ms. Dumas states |4that while she was assisting Ms. Bachus in moving Mrs. Guillot, Ms. Bachus’ hand slipped and let go of the sheet. However, Ms. Dumas asserts, just as Ms. Bachus did, that Mrs. Guillot was already on the bed and was not up in the air or dropped. She also states that Mrs. Guillot did not make any complaints to her that she was hurting from the transfer.

The parties stipulated that if Vonda Stamply were called to testify, she would qualify as a nursing expert, and she would state that it is a breach of the standard of care to drop a patient, and that Ms. Ba-chus and Ms. Dumas breached the standard of care when they moved Mrs. Guil-lot.

Dr. LoCoco testified that Mrs. Guillot was always in pain in all parts of her body before and after the first hip surgery. He testified that Mrs. Guillot had told him that within 24 hours of the first hip surgery, the bed dropped about two feet and she had a sudden onset of pain in her hip. He asserts that Mrs. Guillot did not tell him about this incident until after she was admitted to the hospital for the second hip surgery, and she did not tell him that the nursing aides had dropped her. He stated that “she was complaining of pain before the bed dropped, after the bed dropped, and it looked like no dislocated hip that I have ever seen.” He further stated, “It’s very difficult to tell with this patient. She hurts everywhere, everywhere she has pain.”

Dr. LoCoco testified that this was the first time that he had used the particular prosthesis that he placed in Mrs. Guillot. He indicated that he had never seen a hip dislocate the way hers did and that it may have been from the design of the new prosthesis. He testified that the prosthesis has a metal cup which is secured in the patient by screws and a polyethylene snap-in liner is then placed into the metal cup. The liner is wider on one side than the other in order to prevent displacement. He further stated that when he performed the second surgery, all he had to do was take the cup liner out, reverse it 180 degrees, and snap it back in. |s Dr. LoCoco also testified that when he discharged Mrs. Guillot after the first surgery, she was ambulatory and had no specific complaints of hip pain. He stated that Mrs. Guillot likes her pain medication, and he believes that she did not want to be released from the hospital because she wanted to keep taking narcotics.

Dr. David Aiken, an orthopedic surgeon, testified via deposition. Although he testified that a “drop” or even simply “rolling over in bed” could cause a dislocation, Dr. Aiken believed that the placement of the cup in Mrs. Guillot’s hip, particularly the elevation of the cup, was the major cause of Mrs. Guillot’s hip dislocation. However, he testified that he did not believe that Dr. LoCoco breached the standard of care due to the difficulty in placing these types of prostheses into patients. He also stated that the exercises that Mrs. Guillot performed after the first surgery, according to the physical therapy notes, could not have been done if her hip had been dislocated at that time.

The physical therapy records indicate that Mrs. Guillot was able to walk with a walker and do several exercises, though she denies that she was able to walk during her first hospitalization.

DISCUSSION

On appeal, Mr. and Mrs. Guillot assert that the trial court erred in finding medical causation without any supporting expert medical testimony. They further argue that the trial court erred in assigning fault to Dr. LoCoco, because there was no testimony that he breached the standard of care.

A court of appeal may not set aside the findings of the trial court unless they are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); LaSalle v. Benson Car Co., Inc., 00-1459 (La.App. 5 Cir. 1/30/01), 783 So.2d 404, 408. Under this standard, the issue is whether the trier of facts conclusion was reasonable, not whether it was right or wrong. Stobart v. State, DOTD, 92-1328 (La.4/12/93), 617 So.2d 880, 882. When factual findings are |Rbased on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Schexnayder v. Exxon Pipeline Company, 01-1236 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 160. The manifest error standard of review applies to all findings of fact, regardless of whether the evidence consists of live witness testimony or written depositions. Darbonne v. Wal-Mart Stores, Inc., et al., 00-551 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022, 1026.

Mrs. Guillot’s testimony was largely unsupported and contradicted by the medical records and the testimony of other witnesses. One such example is that Mrs. Guillot testified that she was unable to walk during the first hospitalization; however, the physical therapy records indicate that she was indeed able to walk with a walker and perform exercises during her physical therapy sessions. Dr. LoCoco testified regarding several incidents reported to him by Mrs. Guillot long after the surgeries, such as an accident at Service Merchandise and a physical altercation during Mardi Gras. However, Mrs. Guillot denied that she was involved in any of these events or that she reported them to Dr. LoCoco.

In her oral reasons for judgment, the trial judge stated that Mrs. Guillot’s testimony was very difficult to follow and internally inconsistent, and she concluded that the testimony of Mrs. Guillot was “utterly incredible” and did not consider it. She further noted, “I have never had a witness so tragically come before me in the altered state probably caused by prescription medication as Mrs. Guillot,” and “I’m not sure that Mrs. Guillot knew what she was talking about that day that she was here for trial.” The trial judge disregarded the testimony of Mrs. Guillot, because she did not believe it was rehable due to her medicated state.

Although Mrs. Guillot claims that she was dropped two feet above her bed, the nursing aides testified that she was already on the bed when Ms. Bachus’ hand slipped and that Mrs. Guillot did not make any complaints at that time. Both Ms. JjBachus and Ms. Dumas testified about the procedure for moving a patient from a chair to a bed and indicated that it does not involve raising the patient two feet or even several inches above the bed. The trial judge indicated that, based on all of the testimony, she believed that Mrs. Guil-lot was dropped an inch or two above her bed when the nursing aides moved her.

The trial judge stated that she found the testimony of Dr. LoCoco to be very candid. She noted that Dr. LoCoco did not notice any evidence of a dislocation of the hip during Mrs. Guillot’s first hospitalization. However, he noticed immediately on May 2, 1994, when she walked into his office, that she was not walking properly and he had an x-ray done. The trial judge noted that Dr. LoCoco testified that Mrs. Guillot is in pain all of the time and has always enjoyed her pain medication. The medical records indicate that Mrs. Guillot was taking pain medication since at least 1992.

The trial judge stated that “the physical therapy notes do not indicate that this hip dislocated as of the beginning of April, because she is walking without that abnormal gait on the multiple days following that.” She concluded as follows:

I find that while there was malpractice, it is more probable than not that the malpractice did not cause the hip dislocation. It is more probable than not that the hip dislocation was caused by an inappropriate placement of the cup liner in the prosthesis used by Dr. LoCoco during his first surgery.

It is undisputed that Mrs. Guillot suffered a hip dislocation. However, it is the plaintiffs burden to establish a causal connection between injuries and an accident by a preponderance of the evidence. Jones v. Rapides General Hospital, 598 So.2d 619, 621-622 (La.App. 3 Cir.1992). The trial judge concluded that the plaintiffs did not meet their burden of proving that the incident with the nursing aides caused Mrs. Guillot’s hip dislocation.

IsAlthough the plaintiffs argue that the trial court erred in finding that the cup was put in backwards by Dr. LoCoco and that this caused the dislocation, Dr. LoCo-co did testify that in order to correct the dislocated prosthesis, he merely reversed the cup lining 180 degrees. Regardless, even if the trial judge had not found that the cause of the dislocation was improper placement of the cup liner, she clearly did not believe that the “drop” by the nursing aides caused the dislocation and did not believe that the hip was dislocated prior to Mrs. Guillot’s discharge from the hospital. Therefore, she did not find that the plaintiffs met their burden of proving by a preponderance of the evidence that the negligence of the East Jefferson employees caused Mrs. Guillot’s hip to dislocate. The testimony and evidence indicates that this finding by the trial judge is reasonable, and therefore, this court may not disturb it on appeal.

Accordingly, considering the record before us, we find that the trial judge was not manifestly erroneous or clearly wrong when she found in favor of the defendant and dismissed the plaintiffs’ lawsuit. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SOL GOTHARD, Judge.

license: Public Domain

text:
    Rhonda S. BRUNNER and Tamara Brunner v. ALLSTATE INSURANCE COMPANY.
    No. 02-CA-1039.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Christopher E. Lozes, Lozes, Cambre & Ponder, Mandeville, LA, for Defendant/Appellant.
    Kerry P. Cuccia, New Orleans, LA, for Plaintiffs/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and WALTER J. ROTHSCHILD.
   SOL GOTHARD, Judge.

Defendant, Allstate Insurance Company (Allstate), appeals an adverse judgment of the trial court that found in favor of plaintiffs, Rhonda and Tammara Brunner. The judgment decreed that a policy of insurance issued by Allstate was in effect on the date of loss, and not cancelled for nonpayment of premium. Because we have no appellate jurisdiction over this interlocutory judgment, we dismiss the appeal.

According to the record before us, plaintiffs fíled a claim with their insurance carrier, Allstate, for the theft of their 1988 Mazda RX 7. Allstate refused the claim on the basis that the policy that covered the Mazda was cancelled for non-payment of premium before the date of the theft. Plaintiffs filed suit against Allstate seeking damages for the loss of the vehicle and for statutory penalties, attorney fees and costs. Allstate filed a motion for summary judgment asserting that the claim was not due because the policy was properly can-celled before the theft. That motion was denied and the matter was set for a trial on the merits.

According to the judgment in question, the matter went to trial on April 16, 2002 and judgment was rendered on July 9, 2002. The trial court rendered written reasons for judgment that state:

This matter came for hearing before the Court on the Court’s regularly assigned docket for Trial on the Merits on the 16th day of APRIL, 2002. In rendering the decision of this Honorable Court, I find that there was insurance coverage at the time of the loss. Ms. | ¡¡Brunner made timely payments towards her policy; thus there was ample coverage to cover this claim of loss. Additionally, I find that through the fault of Allstate Insurance Company, alone, was the cause for failing to notify, (sic) Ms. Brunner about the late fees, and the cancellation in coverage, and Ms. Brun-ner would have paid the coverage fully had it not been for the misrepresentation of Allstate Insurance Company, concerning the late fees.

However, a note from the court reporter placed in the record indicates that the matter “was not taken up in open court and was not put on the record”; thus there is no transcript of the hearing for this Court to review. It appears from a post-trial memorandum filed by Allstate that the parties agreed to submit the matter by exhibits and memo in lieu of live testimony. The attachments filed with that memo include documents from Allstate to bolster its argument that the policy was cancelled for non-payment of premiums before the date of loss.

The judgment only rules on the issue of coverage and does not award any damages, either for the covered vehicle or for statutory penalties. The trial court has not yet addressed those issues. Further, there is nothing in the record that could be used by this court to determine the amount of damages.

This Court’s appellate jurisdiction is limited to final judgments, or interlocutory judgments that may cause irreparable harm. LSA-C.C.P. art. 2083. In the instant matter, this interlocutory judgment does not award damages as prayed for, and is not a final judgment. The matter must be remanded for a trial court determination of damages. Allstate may appeal this matter after all of the issues presented have been decided by the trial court.

For the foregoing reasons, we dismiss the appeal, and remand the matter for proceedings consistent with this opinion.

APPEAL DISMISSED, MATTER REMANDED.


author: ¡.JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Daimeyahn C. STEVENSON.
    No. 02-KA-769.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   ¡.JAMES L. CANNELLA, Judge.

The Defendant, Daimeyahn Stevenson, appeals from his convictions of attempted armed robbery and armed robbery and respective sentences of imprisonment at hard labor for 47 years and, as a fourth offender, to life imprisonment without benefit of parole, probation or suspension of sentence, to run concurrently. For the reasons which follow, we affirm the conviction and sentences and remand.

The Defendant was originally charged in a bill of information with one count of attempted armed robbery, La. R.S. 14:27:64, one count of armed robbery, La. R.S. 14:64, and one count of possession of a firearm by a convicted felon, La. R.S. 14:95.1. The Defendant proceeded to trial on counts one and two only. His first trial ended in a mistrial. He was tried a second time.

At trial, the following evidence was adduced. At approximately 4:50 a.m. on August 23, 2001, Ashley Bulot (Bulot) and Donna Kay Billiot (Billiot) were working at Terrytown Café when the Defendant entered wearing a baseball cap. He pulled a gun, pointed the barrel of the gun at Bulot and demanded the “metal |3box.” The metal box is a fire-safe box that is bolted under the counter and contains poker money and poker tickets. On the morning of the robbery, the box contained approximately $6,000 in cash and poker tickets. Bulot, in shock, turned and ran out the back door of the café.

The Defendant then came to Billiot’s side of the counter and demanded the box. He tried to pick up the box but it was bolted to the counter. The Defendant demanded that Billiot open the box with her key. He took the money and tickets and stuffed them into his pockets. While the Defendant was crouched down behind the counter taking the contents of the box, Sergeant Brian Boudreaux on duty with the Jefferson Parish Sheriffs Office, entered the café. Billiot attempted to alert Sgt. Boudreaux to the situation but to no avail. The Defendant then stood up and pointed his gun at Sgt. Boudreaux, telling him not to move or he would Idll him. Sgt. Boudreaux put his hands up and stepped away from the door to give the Defendant a clear path to leave. The Defendant jumped over the counter and ran out of the café. Sgt. Boudreaux ran after the Defendant with his weapon drawn.

Thereafter, Sgt. Boudreaux radioed headquarters. Approximately nine police units responded to the area and set up a perimeter around the block, sealing it off. A K-9 unit arrived at the scene and tracked the Defendant to a locked backyard shed. When the Defendant ignored several warnings to come out, the dog was sent in. The Defendant was apprehended and suffered several dog bites. Money and poker tickets were found on the floor of the shed.

The Defendant testified at trial. He admitted running from the police and hiding in a backyard shed. He claimed that he was walking along the road when the police pulled up beside him. The Defendant ran because of past bad experiences with the police. The Defendant denied robbing Terrytown Café and denied having been in the café that morning. Terrytown Café has several video Lsurveillance cameras. The entire robbery was caught on tape and was played at trial.. The jury found the Defendant guilty as charged on both counts.

The Defendant was sentenced to imprisonment at hard labor for 47 years on his attempted armed robbery conviction and 85 years on his armed robbery conviction. Both sentences were without benefit of parole, probation or suspension of sentence and to run concurrently.

The State filed a habitual offender bill of information alleging that the Defendant was a fourth felony offender based on his present armed robbery conviction, a 1991 conviction for possession of cocaine with intent to distribute, a 1992 conviction for possession of cocaine, and a 1994 conviction for possession of cocaine. A habitual offender hearing was held and the trial court took the matter under advisement. Thereafter, the trial court found the Defendant to be a fourth felony offender. The Defendant’s original sentence on the armed robbery conviction was vacated and he was resentenced to life imprisonment, under La. R.S. 15:529.1, without benefit of parole, probation or suspension of sentence, to run concurrently with the other sentence. The Defendant filed a motion to reconsider sentence which was denied. It is from these convictions and sentences that the Defendant appeals, assigning one error and requesting review for any errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error the Defendant claims that his enhanced sentence of life imprisonment is constitutionally excessive under State v. Dorthey, 623 So.2d 1276 (La.1993), which held that a punishment required by statute may nonetheless constitute excessive punishment if it is a purposeless imposition of pain and suffering and is grossly disproportionate to the severity of the crime. The Defendant argues that his non-violent history of drug offenses shows that he has a drug addiction and is not a hardened criminal who deserves a life sentence. He Rargues that a life sentence under the habitual offender law is not graduated and proportioned to his offense and is, therefore, excessive.

The Defendant, age 29, was sentenced to life imprisonment after being found a fourth felony offender following the armed robbery conviction. His predicate convictions are for possession of cocaine with intent to distribute and two convictions for possession of cocaine.

At the time the Defendant committed the instant offense, August 21, 2001, the provision applicable to his habitual offender sentence, La. R.S. 15:529.1(A)(l)(c)(i), provided that a fourth felony offender shall be sentenced “for a determinate term not less than the longest prescribed [sentence] for a first conviction but in no event less than twenty years and not more than his natural life.” Thus, in this case, because the maximum sentence for armed robbery is 99 years, the Defendant faced a sentencing range of 99 years to life without benefit of parole, probation or suspension of sentence. The trial judge imposed a life sentence.

Both the United States and the Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. Amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the 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. State v. Wickem, 99-1261 (La.App. 5th Cir.4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. If the trial judge finds that an enhanced punishment mandated by the Habitual Offender Law, La. R.S. 15:529.1, makes “no measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and | ^suffering” and is “grossly out of proportion to the severity of the crime,” the court has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1998).

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the presumption of constitutionality. Id. The burden is on the defendant to rebut the presumption of constitutionality by showing:

[h]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 709 So.2d at 676, quoting State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

There must be substantial evidence to rebut the presumption of constitutionality. The “trial court may not depart from the legislatively mandated minimum simply because of some subjective impression or feeling about the defendant.” State v. Bell, 97-1134 (La.App. 5th Cir.2/25/98), 709 So.2d 921, 927, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477. Additionally, a defendant’s record of non-violent offenses cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive. State v. Johnson, 709 So.2d at 676. The Louisiana Supreme Court explained:

[t]his is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.

State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (4/30/01). Although Lindsey was decided under the old scheme of the Habitual Offender Law, its rationale is still viable. The 2001 amendments to La. R.S. 15:529.1 still maintain a gradation of punishment based on the non-violent and violent nature of the defendant’s underlying and predicate offenses. The amended version of La. R.S. 15:529.1 is simply more lenient in that life sentences are mandated less often.

In the present case, the Defendant made no showing of exceptional circumstances to justify a downward departure from the mandatory 99 year to life sentence. No evidence was presented at the time of sentencing and no argument was made at sentencing regarding a downward departure from the required minimum sentence. Rather, the Defendant merely relies, on appeal, on the fact that his past three offenses were non-violent drug offenses. As stated above, the mere fact that a defendant’s predicate convictions were non-violent does not warrant an automatic downward departure from a mandatory life sentence.

In Lindsey, supra, defendant was convicted of simple robbery which is classified as a crime of violence. However, his prior convictions consisted of non-violent crimes: attempted simple burglary, attempted burglary and simple burglary. The Supreme Court stated that the defendant was the exact type of offender that the Habitual Offender Statute intends to punish so severely. The court stated:

[h]e is sentenced to life imprisonment because he continues to commit felony after felony. The fact his last felony was the only violent crime against a person is not an “unusual circumstance” that would support a downward departure. A person with three prior nonviolent felony convictions who then proceeds to commit a felony involving violence against a person has shown that his criminal conduct is becoming worse. The goals of the Habitual Offender Statute, to deter and punish recidivism, are satisfied by imposing a life sentence against such a person.

IsState v. Lindsey, supra at 344.

Additionally, in State v. Baker, 00-1050 (La.App. 5th Cir.11/15/00), 776 So.2d 1212, 1218-1219, writ denied, 01-0044 (La.11/16/01), 802 So.2d 621, this Court determined that a record of non-violent offenses coupled with the fact that the defendant was an admitted drug addict was insufficient to rebut the presumption of the constitutionality of the defendant’s enhanced life sentence under the multiple offender statute.

In the present case, we find that the Defendant clearly failed to carry the burden of proof necessary for this Court to follow Dorthey and impose a sentence less than the minimum. This Court has upheld mandatory life sentences on the basis that the defendants have failed to offer evidence to rebut the presumption of constitutionality of their life sentences. See, State v. Armstrong, 99-925 (La.App. 5th Cir.2/16/00), 756 So.2d 533, 538, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182, and State v. Bell, supra. This assignment of error lacks merit.

ERROR PATENT REVIEW

As requested by Defendant, the record was reviewed for errors patent, according to LA.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir. 1990). We note the following.

The habitual offender bill of information contains errors regarding the date of the original bill of information charging the Defendant with the offense sought to be enhanced and the date on which the Defendant was found guilty of that offense. Although the State amended the habitual offender bill of information twice, correcting various errors regarding the predicate offenses, it still contained several errors. The final amended habitual offender bill, filed May 20, 2002, alleged that the Defendant was charged in a bill of information with armed robbery on January 7, 2001, when the actual date of the original bill was September 7, | fl2001. Also, the habitual offender bill alleged that the Defendant was found guilty of the underlying armed robbery on December 7, 2001, when the actual date was November 15, 2001. The docket number and division for the offense that the State sought to enhance was correct on the amended habitual offender bill.

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, art. I, § 13. A clerical error in the bill does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice. La.C.Cr.P. art. 464; State v. Varnado, 01-367 (La.App. 5th Cir.9/13/01), 798 So.2d 191, 194; State v. Jason, 99-2551 (La.App. 4th Cir.12/16/00), 779 So.2d 865, 873, writ denied, 01-0037 (La.11/9/01), 801 So.2d 357.

We find that the errors in the amended habitual offender bill of information in the present case did not mislead or prejudice the Defendant. The habitual offender bill contained the correct case number, division, and statutory citation of the felony sought to be enhanced. A habitual offender hearing was held and there is no indication that the Defendant was confused, uninformed or prejudiced by the above errors.

We also found errors in the commitment. The commitment erroneously reflects the date on which the charges were resolved against the Defendant as being December 7, 2001, when the actual date was November 15, 2001. The commitment also erroneously indicates that the Defendant was found guilty by the judge, when he was actually found guilty by a jury. The commitment further fails to indicate that the Defendant was found to be a fourth felony offender. While these errors do not require that the habitual offender finding or enhanced sentence be set aside, they must be corrected. State v. Norman, 99-600 (La.App. 5th Cir.2/16/00), 756 So.2d 525, 532, writ denied, 00-0971 (La.3/23/01), 787 So.2d 1007.

ImBased on Norman, we will remand the case to the trial court with an order that the trial court amend the commitment to correct the inaccurate information regarding the date and the method by which the Defendant’s charges were resolved. The trial court is also ordered to amend the commitment to provide the appropriate information regarding the multiple offender finding, namely that the Defendant was found to be a fourth felony offender as indicated by the transcript.

Accordingly, we affirm the Defendant’s convictions of attempted armed robbery and armed robbery and his sentences of imprisonment at hard labor, respectively, to 47 years and, as a fourth offender, to life imprisonment, without benefit of parole, probation or suspension of sentence, to run concurrently, and remand the case to the trial court and order that the commitment be corrected to accurately reflect the record events.

CONVICTIONS AND SENTENCES AFFIRMED;REMANDED.

      . The State nolle prosequied count three at the sentencing hearing on counts one and two.

      . Defendant relied on the wrong habitual offender statute in his appellate brief. He erred in two respects. He relied on the version of the statute in effect prior to June 15, 2001 and he relied on the wrong section, La. R.S. 15:529.1(A)(1)(c)(m] rather than the applicable section, La. R.S. 15:529.l(A)(l)(c)(tj.

      . In Baker, the defendant was convicted of possession of heroin and had two prior convictions for possession of cocaine and one prior conviction for felon in possession of a firearm.

      . See, State v. Lynch, 441 So.2d 732 (La.1983), which provides that the transcript prevails over the minute entry or commitment where there is a discrepancy.


author: I «SOL GOTHARD, Judge.

text:
    Clement and Joan EISWIRTH v. ANTHONY L. GOLEMI CONTRACTOR, INC.
    No. 02-CA-1060.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Rehearing Denied March 24, 2003.

      Kyle Schonekas, Maria G. Marks, Schonekas, Winsberg, Evans & McGoey, New Orleans, LA, for Plaintiffs/Appellants.
    Temple A. Stephens, Stephens & Grace, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and WALTER J. ROTHSCHILD.
   I «SOL GOTHARD, Judge.

Plaintiffs, Clement and Joan Elswirth, appeal from the granting of an exception of prescription. The judgment on appeal is a partial, final judgment that is not immediately appealable pursuant to La. C.C.P. art. 1915. Accordingly, we dismiss this appeal.

Plaintiffs filed suit for damages for breach of warranty and for breach of contract. In their suit, plaintiffs alleged that they contracted for the construction of a house, and that defendant failed to complete construction in a timely and adequate manner. In their suit, plaintiffs allege both breach of contract and breach of warranty. Plaintiffs allege that they “intended to satisfy a non-pecuniary interest” and defendant’s failure to perform caused non-pecuniary loss, including damages for mental anguish, distress, inconvenience, and loss of use. Plaintiffs also allege that they suffered damages as a result of delay in construction, and damages for defective building construction.

Defendants filed exceptions of no cause of action, no right of action, and prescription. Defendants argued that plaintiffs had no cause/no right of action save that under the Louisiana New Home Warranty Act (La. R.S. 9:3141 et seq). | ¡¡Defendant argues that plaintiffs’ claims for breach of contract, mental anguish, distress, inconvenience, and loss of use, as well as the claim for delay damages, are not provided in the Act. Defendants also argued that any claims plaintiffs may have under the New Home Warranty Act had prescribed. Thereafter, defendant filed an answer and third party demand against various subcontractors. Defendant further filed a re-conventional demand for breach of contract and/or suit on open account pursuant to La. R.S. 9:2781.

The trial court denied the exception of no cause of action and no right of action, and granted the exception of prescription. Plaintiffs filed a motion for appeal from that judgment.

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

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

In this case, while the trial court granted the exception of prescription, thereby dismissing any claims for breach of warranty under the New Home Warranty Act, the court denied the exceptions of no cause/no right of action as to the breach of contract claims. The trial court’s judgment did not dismiss the claims for breach of contract (since the exceptions of no cause/no right of action were denied), and those claims are still pending against defendant. In addition, defendant’s claims against plaintiffs, alleged in the reconven-tional demand, are | ¿still pending. Since La. C.C.P. art.1915 does not authorize a partial final judgment on the exception of prescription unless a party is dismissed, and in this case defendant was not dismissed from this suit as plaintiffs’ breach of contract claims are still pending, the judgment in the instant case granting the exception of prescription is an interlocutory judgment that is not appealable in the absence of irreparable injury. See, McDonald v. Zapata Protein (USA), Inc., 97-10 (La.App. 3 Cir. 4/30/97), 693 So.2d 296. Here, irreparable injury has not been proven, or even alleged. Furthermore, there is no designation in the record that the judgment would be final for purposes of appeal or that there was no just reason for delay.

Accordingly, we dismiss this appeal and remand this matter to the trial court.

APPEAL DISMISSED.


author: .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Ronald J. WILLIAMS.
    No. 02-KA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Appel-lee.
    Martin E. Regan, Jr., Kris A. Moe, New Orleans, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   .MARION F. EDWARDS, Judge.

Defendant, Ronald J. Williams, appeals his conviction for attempted armed robbery. For the following reasons, we affirm.

On September 7, 2001, defendant, Ronald J. Williams, was charged by bill of information with the July 26, 2001 attempted armed robbery of Murphy Noel. Williams was arraigned on September 10, 2001, and entered a not guilty plea. Williams filed pre-trial motions on September 13, 2001, including Motions to Suppress Identification, Confession, and Evidence. A hearing on the motions to suppress was held on December 12, 2001 and the motions were denied. The two-day trial was held December 18, 2001 and December 19, 2001. The 12-person jury unanimously found Williams guilty as charged.

|3On January 24, 2002, Williams was sentenced to seven years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence with credit for time served. Also on January 24, 2002 Williams filed a written motion for appeal, which was granted that day by the trial court judge.

On January 25, 2002, the State filed a multiple offender bill wherein it alleged Williams was a second-felony offender under the Habitual Offender Law. Williams thereafter denied the allegations of the multiple bill. On February 27, 2002, Williams filed a Motion to Quash the multiple bill, wherein he attacked the predicate conviction being utilized by the State in the multiple bill.

On March 21, 2002, a hearing was held on the multiple bill and the court found Williams to be a second felony offender. The court vacated defendant’s original sentence and imposed a multiple offender sentence of 25 years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Williams appeals his conviction and sentence relying on two assignments of error.

On July 26, 2001, at approximately 11:30 a.m., while on routine patrol in the Wood-mere area of Harvey, Deputy Rainey Lyons of the Jefferson Parish Sheriffs Office drove past the intersection of Post Boulevard near Belaire Street. Officer Lyons observed three black males at that location. One of the men, a juvenile known as M.N., was on the ground holding his mouth and his shirt was bloodied. Standing over M.N. and facing him were two men later identified as Ronald Williams and Lavelle Simpson. The two men turned and headed south on Belaire Street, away from M.N., as the marked unit driven by Officer Lyons was | observed by Williams and Simpson. Officer Lyons drove to where M.N. was located and interviewed him concerning the incident. It was discovered that while M.N. was waiting for a bus to go to work, Williams and Simpson accosted him. According to M.N., Simpson punched him in the mouth and both men demanded money. The victim told the attackers that he did not have any money. Williams pulled out a gun, pointed it in the victim’s face and again demanded money, telling the victim, ‘We ain’t playing with you.” The gun was described as a small chrome gun with a black handle.

Officer Lyons canvassed the neighborhood near the crime scene for the gun. The gun was found under the bushes, about two doors from the crime scene The firearm was loaded with a bullet in the chamber and the trigger was cocked.

Prior to interviewing the victim, Officer Lyons had watched the two suspects as they walked at a fast pace up Belaire Street. Officer Lyons watched them for a matter of 15 to 20 seconds and then lost sight of them. After the investigation, the suspects were stopped, about two doors down the street from where this incident occurred. Williams and Simpson were apprehended on Belaire Street, placed under arrest, handcuffed, advised of their rights and placed in the back of the patrol unit for transport to the lockup. They were transported by Jefferson Parish Deputy Mike Burgess. At the time of their arrest, Simpson had a cut on the knuckle of his right ring finger.

The crime scene unit was summoned and they took photographs of the crime scene, gun and the defendant’s finger that had been cut.

M.N.’s mother took him for medical treatment. He received five stitches to repair the cut to his mouth.

Following their booking, both defendants were transported to the Investigation Bureau under the direction of Sergeant Scott Fontaine, supervisor of |Rthe Armed Robbery Division. Each defendant gave a taped statement, both of which were later admitted as evidence and played for the jury. Defendant Simpson turned State’s evidence, in return for a reduced charge in this case and consideration in an unrelated case. Simpson testified against Williams at the trial. He identified Williams as the one who pointed the gun at M.N. He also identified the firearm used in the robbery. Simpson admitted he also hit the victim in the mouth and demanded money from the victim.

At the trial, Williams denied that an armed robbery occurred. Rather, he said that Simpson walked up to M.N. and punched him in the mouth because Simpson recognized the victim as someone Simpson had previously had a fight with on Canal Street. Williams admitted having a gun in his right pocket that day but stated that he merely carried it for “protection.” He explained that a man who lived a few doors from him, Wendell Harris, and “his whole family” had been giving him trouble and that Harris had tried to kill him. Williams stated that he had called the police a number of times because of this.

On appeal, Williams first contends the trial court erred in denying his request for a police report. He reasons that the report would have bolstered his trial testimony and substantiated his reasons for being in possession of a firearm: that he carried a gun for his own protection, that he had been in a neighborhood dispute and had been threatened, and that he had reported the altercation to police and had since carried the firearm for his safety.

The State responds that no error was committed and contends that the subpoena was a part of a “fishing expedition.” In the alternative, the State argues that even if error was committed, there was no prejudice because Williams testified at trial that the weapon was for self-defense. Finally, the State Rargues that the reason for Williams’ possession of a firearm was irrelevant to his defense.

The record reflects a pretrial pro se motion entitled “Motion and Order for Production of the Original Police/Sheriff Incident Report of the Investigation” filed by the Williams in the record. The motion requests the initial police report but gives neither a name nor item number. Defendant’s pro se motion asks for a “subpoena duces tecum” directed to the sheriff or district attorney, ordering them to produce the initial police report “bearing Item Number_” This motion was denied by the trial judge on September 27, 2001, with the notation “Defendant has counsel of record.”

Thereafter, on December 14, 2001, defense counsel filed a “Motion for Issuance of Instantier Subpoena Duces Tecum.” In this document he seeks the following:

To issue an instanter subpoena duces tecum to the Custodian of Records for the Jefferson Parish Sheriffs Office 1233 West Bank Expressway, Harvey, LA, 70058 to produce at the trial in these proceedings on December 17, 2001 and any other date to which this trial may be continued or recessed, the police report/incident report relative to Item No. H-5486-00.

The trial judge denied the motion on December 14, 2001, with the following reasons: “Unable to determine if the defendant is entitled to the entire report on the facts set forth before the court.”

On the first day of trial, defendant, in a bench conference, told the judge that he wished to re-urge his motion for instanter subpoena duces tecum that had previously been denied by the judge for failure to make a sufficient showing. The following discourse occurred:

Mr. Creech (Defense):
In that motion for issuance of an instanter subpoena duces tecum I requested a police report in connection with a certain item |7number, a Jefferson Parish Sheriffs Office item number. That item number, I mean, that police report relates to an ongoing dispute between Mr. Williams and a man that lived, a family that lived a few doors down from him. I believe that police report may be relevant to my case as it would give some reason why Mr. Williams who gave a statement in this matter and said he had a gun for protection, why he might need that pistol.
The Court:
The police report?
Mr. Creech:
It’s a totally extraneous matter, Judge.
The Court:
Let me tell you the problem. You’ve identified, of course, the request which you submitted to the Court which requests a police report under an item number. There is no name of any individual contained within the request. There are no reasons set forth why counsel is asking the Court to sign its signature on the document. There is no indication that the matter, the police report is subject of an incident which has been completed and the Court takes notice of the jurisprudence and the laws of this state. It does not entitle Counsel to a police report. Counsel is entitled to the initial report, but not the entire investigative file of the police department, so I’m not able to determine, Counsel, I’ve not heard you say that matter is concluded and not an open investigation. And until such time as that is placed before the Court to satisfy it that an ongoing investigation would not be jeopardized resulting from this subpoena, I’m not able to grant your request.
Mr. Creech:
Note my objection.
The Court:
So you’re not aware of whether—
Mr. Creech:
I do not know.
The Court:
Have you inquired?
Mr. Creech:
|RI have, but I don’t know the answer to that question. Thank you, Judge.

At trial, Williams testified that no armed robbery had occurred. In explaining the reason why he was carrying a gun, Williams stated that it was for his “protection.” He testified that a neighbor, Wen-dall Harris, had tried to kill him. He stated that he had trouble with the entire Harris family and had called the police several times because of this. He testified that he threw the gun away because, at the time of this incident, he was on probation for another offense and he did not want to get into “trouble.”

Defendant argues that he is entitled to the police report and cites the Public Records Statute, LSA-R.S. 44:3.

The initial police report is a public record, under the Public Records Act. In State v. Shropshire, the Louisiana Supreme Court for the first time found that the initial report of an investigating officer is a public record, under the Louisiana Public Records Act, and is discoverable by the defendant in a criminal prosecution.

In order to secure a public record under the Louisiana Public Records Act, one must follow the procedure set forth in LSA-R.S. 44:31 et seq. of the Act. In this case, there is no indication that Williams followed the procedures set forth in the Act for securing a public document. Rather, Williams first filed a pro se motion and then applied for a subpoena duces tecum for the production of the police report. Both pleadings appear to be defective.

The method of securing documents in a criminal prosecution, which are not otherwise discoverable from the State, is by use of a subpoena duces tecum. In this case, the document was sought for use at trial. The law concerning this discovery device is set for in LSA-C.Cr.P. art. 732, which provides, as follows:

A subpoena may order a person to produce at the trial or hearing, books, papers, documents or any other tangible things in his possession or under his control, if a reasonable accurate description thereof is given, but the court shall vacate or modify the subpoena if it is unreasonable or oppressive.

(Emphasis added).

The pro se motion, filed by Williams, even if considered a subpoena duces tecum request, was deficient. Specifically, the pro se motion provides no description of the police report being requested. It, therefore, fails to give an accurate description of the document sought by defendant, as required by LSA-C.Cr.P. art. 732.

Moreover, the subpoena request filed by defense counsel likewise does not appear to comply with the dictates of LSA-C.Cr.P. art. 732. Although the subpoena request listed an alleged number for the police report, the request gave no other clarifying information, in terms of location, date or name(s) of the subject(s) involved. Under these circumstances, the subpoena did not comply with the requirements of LSA-C.Cr.P. art. 732, that the description be “reasonably accurate.”

Additionally, although a defendant is generally entitled to the initial police report, State v. Shropshire, supra, he is generally not entitled to any supplemental or | infollow-up report. In this case, defendant’s subpoena request failed to specify that he only sought the initial police report.

Therefore, because the subpoena was not reasonably accurate in the description of the document requested, we find that the trial judge did not err in denying the request. Even assuming for the sake of argument that the trial judge erred in refusing the defendant’s request, we find that no prejudice resulted and the error was harmless. Williams testified at trial about the altercation with his neighbor and that this was the reason he was in possession of a firearm on the date of this incident.

For these reasons, this assignment is without merit.

Williams next contends that the motion to quash the multiple bill in this case should have been granted, alleging that the guilty plea in the predicate conviction was defective. In this regard, he testified at the hearing on the multiple bill that he did not read the Waiver of Rights, but merely signed it in order that he could get out of jail. Williams reasons, therefore, that the trial judge in the present case could not just assume defendant was advised of his rights and was properly represented.

The State replies that Williams failed to meet his burden under Shelton in establishing a defect in the underlying guilty plea.

To prove a defendant is a habitual offender, the State must initially prove the prior felony conviction(s) and that defendant is the same person who was convicted of the prior felony, as well as that the predicate conviction falls within the applicable time period prescribed by the Multiple Offender Statute. In State v. Shelton, the Louisiana Supreme Court discussed the State’s burden of proof in a multiple offender proceeding when the evidence consists of a conviction based upon a prior guilty plea. In Shelton, supra, the Court stated the following rules:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of his prior guilty plea and that the defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving the defendant’s prior guilty plea was informed and voluntary, and made with an articulated Boykin rights.

(Footnotes omitted; emphasis added).

In this case, Williams filed a Motion to Quash the multiple bill, wherein he alleged (1) the defendant was not properly Boykin-ized; (2) the defendant was not the same person as in the predicate offense; and (3) the documentary evidence offered by the State was inadequate to support a multiple offender adjudication.

A hearing was held during which the defense told the court that a Motion to Quash had been filed because Williams was not properly Boykinized before he pled guilty to the underlying offense. He also advised the court that Williams would testify that his counsel in the prior proceedings did not explain defendant his rights and defendant merely signed the Waiver form to get out on probation. The following discussion occurred:

The Court:
Mr. Creech, you understand the Boy-kin is the colloquy between Court and defendant, not between counsel and defendant.
|1P,Mr. Creech (Defense Counsel):
Yes, I do, Judge, but I think it’s part and parcel because, as a practical matter, Judge, the trial court can only do so much to insure the defendant understands his rights. That’s why he has an attorney. The attorney has — to discuss that.
The Court:
I understand that but I don’t find that you have set forth in your Motion to Quash, which sounds like a post-conviction issue, any misconduct on the part of his lawyer. Your motion makes reference to ‘properly Boykinized’ and that is a conduct of the judge who has a conversation with the defendant. And, therefore, I will not here [sic] arguments concerning matters between the lawyer and his client unless that has been properly set forth in the motion which I do not find it to be so. Therefore, I will not hear that argument.
Mr. Creech:
The balance of the Motion to Quash, Your Honor, we will submit. I ask the Court to examine the certified documents offered by the State in connection with the plea.
The Court:
All right. At the request of counsel, I’m going to take up the Motion to Quash at the same time that the hearing takes place and I will rule upon the motion at the same time as the Court makes a finding on the merits of the multiple bill.

At the hearing on the multiple bill, the State presented Deshotel Young, a probation officer who had formerly supervised Williams when he was on probation for a conviction in Orleans Parish before Judge Hunter, wherein Williams pled guilty to possession of stolen good (auto) in an amount over $500. Ms. Young identified Williams as the person she formerly supervised. In conjunction with this testimony the State offered a pen pack, as State’s Exhibit No. 1, in globo. The pen pack consisted of a certified copy of the bill of information, a certified copy of the minute entry which indicated that defendant 1 iahad received probation for the conviction and a certified copy of the Boykin form.

Thereafter, Ronald Williams testified. He admitted pleading guilty, in Orleans Parish to possession of stolen property valued in excess of five hundred dollars. He admitted he was represented by counsel, but alleged that his attorney did not explain his Boykin rights to him. Williams stated that he did not know what he was doing when he pleaded guilty. Williams further stated that he was told that if he signed the forms he would get a year probation, “roll out of jail” and go home. Williams also testified that if he had known he was going to have a conviction, he would not have signed the waiver form.

On cross-examination, Williams admitted that the underlying offense was not his first. He also admitted that he knows how to read but did not read the form he was given to sign. He identified the signature and initials on the waiver form as being his.

The matter was submitted and the Court made the following ruling:

The Court:
All right. The Court has heard the evidence in this case, has reviewed the exhibit which is submitted as State’s Exhibit 1, as the witnesses who have testified in this matter, both for the State and the defense.
The court takes notice of State’s Exhibit 1, which is a three-page document, one of which contains the Bill of Information concerning the offense in Division K, under case number 419-530.
The court finds that pursuant to the jurisprudence of this case there is a valid minute entry which contains information indicating a colloquy between the Court and the defendant concerning his various rights.
The document indicated the defendant was informed of his constitutional rights. The defendant informed the Court that he understood his rights but wished to waive them. The Court accepts the guilty plea and the Court sentenced defendant and so forth.
I i4The Court further takes notice of the Waiver of Constitutional Rights which is signed by the defendant, by his counsel, and by the presiding judge. Included among which is signed by the defendant, by his counsel, and by the presiding judge. Included among which is contained various rights required to be provided to the defendant by the law, as well as the following notation executed by the defendant and I quote: T understand all the possible legal consequences of pleading guilty and I wish to plead guilty at this time because I am in fact guilty of this crime.” It is therefore further followed: This plea of guilty is accepted by the court as having been knowingly, intelligently and voluntarily made.
These documents are signed by all of the parties for which the Court states: There is no information provided to this Court except for the self-serving testimony of the defendant concerning conduct between he and his lawyer. The record presented before the Court supports the finding that there was colloquy between the court and the defendant for which the defendant informed the Court that he understood his rights; he made a knowing, intelligent, free and voluntary exercise of those rights pursuant to the jurisprudence of this law — of the law concerning multiple bill hearings and rights of defendant. That satisfies the requirements whereby the Court could accept the guilty plea and the court so did..
I, therefore, find the comments made by the defendant concerning his lawyer to be without merit and unfounded and I find them to be self-serving. I reject those comments that he did not understand his rights. The record simply does not support that.
Accordingly, I find that the State has sustained its burden of proof concerning this matter and, therefore, under the requirements of Revised Statute 15:529.1, I find the defendant to be a second felony offender....

Under the facts of this case, Williams denied the allegations of the multiple bill and attacked the predicate conviction by filing a motion to quash the multiple bill.

Thereafter, the burden under Shelton shifted to the State. The State met its burden of proof, by presenting the testimony of the probation officer for the underlying offense and a pen pack that consisted of certified copies of the bill of information, Waiver of Rights form, and minute entry for the predicate offense. Under Shelton, the burden then shifted to the defendant.

1^Although Williams attempted through his testimony to demonstrate an unknowing and involuntary guilty plea, the testimony was not accepted by the trial judge as being credible. Under these circumstance, we find that Williams failed to meet his burden under Shelton. The trial judge correctly found that the State met its burden of proving defendant was a second-felony offender under the Habitual Offender Statute, LSA-R.S. 15:529.1(A)(2)(a).

For the reasons stated, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. We note one error patent in this case.

Defendant filed a premature motion for appeal after he was convicted and sentenced for the offense but before the multiple bill adjudication. However, that procedural defect was cured by the subsequent sentencing as a multiple offender.

Accordingly, based on the foregoing, the defendant’s conviction is affirmed.

AFFIRMED.

      . LSA-R.S. 14:27:64.

      . LSA-R.S. 15:529.1(A)(1)(a).

      . LSA-R.S. 44:3(4)(a).

      . 471 So.2d 707, 709 (La.1985).

      . LSA-R.S. 44:3. See also, State v. Jackson, 608 So.2d 949, 957 (La.1992).

        . State v. Silva, 96-0407, p. 8 (La.App. 4 Cir. 9/3/97), 699 So.2d 487, 490, writ denied, 97-2578, 709 So.2d 704 (La.1/30/98).

      . LSA-R.S. 15:529.1(C); State v. Mims, 00-1507 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766.

      . 621 So.2d 769 (La. 1993).

      . 621 So.2d at 779-780

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

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

        .State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351.


author: ¡..SUSAN M. CHEHARDY, Judge.

text:
    Gloria Millet, Wife of/and Walter MILLET v. EVANGELINE HEALTH CARE, INC.
    No. 02-CA-1020.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      John J. Rabalais, Janice B. Unland, Robert T. Lorio, Laurie W. Maschek, Cov-ington, LA, for Defendant-Appellant, Evangeline Health Care, Inc.
    Christopher T. Grace, Jr., Metairie, LA, for Plaintiffs-Appellees, Gloria Millet and Walter Millet.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   ¡..SUSAN M. CHEHARDY, Judge.

This is a slip-and-fall personal injury case. The defendant appeals a judgment that awarded the plaintiff general damages in the amount of $100,000.00, reduced by forty percent for comparative fault. We affirm.

The accident occurred on August 10, 2000. Gloria Millet (hereafter “Millet”) was visiting her brother at Evangeline of Ormond, a nursing home in which he was a patient. As Millet walked out of her brother’s room, she fell and injured her knee, fracturing her left patella. This resulted in two surgeries, a lengthy recuperative period, and residual injury.

Millet filed this suit against Evangeline Health Care, Inc., owner of the nursing home (hereafter “Evangeline”). Her husband, Walter Millet, joined as plaintiff to recover for loss of consortium. After trial without a jury, the trial court rendered judgment in favor of the plaintiffs, awarding Gloria Millet $100,000.00 in general damages and $14,185.35 in special damages, a total of $114,185.35, reduced by her forty percent comparative fault to $68,478.51. The judgment also awarded Walter Millet $3,000.00 for loss of consortium, as well as giving the plaintiffs legal interest from date of demand and sixty percent of all costs.

Pursuant to Evangeline’s post-trial request for written reasons for judgment, the trial judge read his findings of fact and conclusions of law into the record in open court. Evangeline appealed.

|3On appeal Evangeline asserts the trial court erred in finding that Millet sustained her burden of proving negligence on Evangeline’s part and in finding Millet entitled to $100,000.00 in general damages.

FACTS

On August 10, 2000, Gloria Millet was visiting her brother, a resident of the defendant’s nursing home, Evangeline of Or-mond. After approximately 20 minutes Millet exited her brother’s room into the hallway. As she was leaving the room, Millet was looking back towards her brother, who was lying in his bed; apparently she was talking to him while she was going out the door. Millet slipped and fell on a wet floor near or adjacent to her brother’s room. As a result of her fall, Millet sustained a transverse comminuted fracture of her left patella, i.e., she shattered her left kneecap.

In lengthy and thorough reasons for judgment, the trial court found the evidence established that one of Evangeline’s employees had mopped the floor in the hallway of the nursing home prior to Millet’s slip-and-fall. There were “wet floor” signs down the hallway from Millet’s brother’s room 20 to 25 feet away, near the nurse’s station, but not in the area where Millet fell.

The trial judge specifically stated he found Millet’s testimony credible. He referred to Millet’s testimony that the floor was “very wet” and that there were no “wet floor” warning signs either in the area where she fell or nearby that would have put her on notice to take special precautions and to be more careful.

The judge also believed Millet’s testimony that one of Evangeline’s employees (a nurse named Rowena Jones who came to assist plaintiff after she fell) said, “Where are my warning signs?” The judge noted that Evangeline did not call Rowena Jones to testify and that Millet’s testimony regarding Jones’ statement was not refuted by any other witness called by the defense. The judge concluded |4that the warning signs were not placed in a strategic area near enough to have effectively warned Millet that the floor was wet. The judge also believed that warning signs shown in photographs entered into evidence as defense exhibits had been placed by Evangeline’s employees after Millet fell. He also found that the warning signs were located down the hallway near the nurse’s station, which was not close enough to effectively warn Millet of the wet area of the hallway.

The judge referred to testimony of John Convoy, the nursing home’s administrator, that the janitor had recently mopped the hallway floor. The judge pointed out that fact is verified by the accident report filed in evidence. Although Convoy testified that he saw warning signs in place when he arrived, the judge found that the warning signs had been placed in position after Millet’s fall rather than before.

The judge also stated he heard no evidence that any of Evangeline’s employees verbally notified Millet that the hallway had been recently mopped while she was visiting in her brother’s room. The judge concluded that Millet “had no effective notice either by warning sign or by verbal announcement or notice from one of Evangeline’s employees that the hallway was wet before she walked into it.”

The trial judge concluded that Evangeline was sixty percent at fault because Evangeline created an unreasonable risk of harm by failing to warn Millet of the recently-mopped wet floor in the hallway next to her brother’s room. The judge found it was “reasonably foreseeable that Millet might slip and fall and injure herself while walking into the hallway if she had not been properly and effectively notified that the hallway was wet due to being recently mopped.”

The judge found Millet had forty percent contributory fault, however, because she was looking back into the room talking to her brother as she was walking into the hallway. The judge noted that if she had been looking ahead of |Kherself, she probably would have noticed the wet floors and would have entered the hall floor more carefully.

ANALYSIS

Liability

Evangeline contends the trial court committed legal error when it determined that Millet sustained her burden of proof under La.R.S. 9:2800.6. Evangeline asserts there is “absolutely no evidence” that it either created the condition, had actual or constructive notice of the condition, or failed to exercise reasonable care. Evangeline argues there is nothing more it could have done to prevent the accident. Assuming that it was aware of a wet floor condition, Evangeline argues the trial testimony established there were “wet floor” signs in place. Alternatively, assuming there were no wet floor signs, Evangeline asserts there is no evidence that it knew or should have known a hazardous condition existed at the time Millet fell or that it was negligent.

First, we find no merit to Evangeline’s argument about the lack or presence of “wet floor” signs. The trial court’s findings regarding the presence and location of “wet floor” signs were based on credibility determinations, which may not be reversed in the absence of manifest error. We find no manifest error and, hence, we find no error in the court’s determination that there were no wet floor signs in the area where plaintiff fell. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); see also, Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

We adopt the recent statement of the fourth circuit regarding hospital slip-and-fall liability:

[T]he burden of proof that LSA-R.S. 9:2800.6 establishes...should not have been used in this case where the accident occurred on a hospital’s premises, instead of a merchant’s premises.
|„The proper burden of proof in a claim for injuries caused by a condition in a hospital is set forth in Neyrey v. Touro Infirmary, 94-0078 (La.App. 4 Cir. 6/30/94), 639 So.2d 1214.
A plaintiff in a slip and fall case against a hospital must show the fall occurred and injury resulted from a foreign substance on the premises. The burden then shifts to the hospital to exculpate itself from the presumption of negligence. A hospital owes a duty to its visitors to exercise reasonable care commensurate with the particular circumstances. The hospital must show that it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity. [Citations omitted.]

Mosley v. Methodist Health System Foundation, Inc., 99-3116, pp. 3-4 (La.App. 4 Cir. 11/15/00), 776 So.2d 21, 23, writ denied, 01-597 (La.4/27/01), 791 So.2d 633. See also, LeBlanc n Alton Ochsner Medical Foundation, 563 So.2d 312 (La.App. 5 Cir.1990).

Applying these principles to the facts here, we find no merit to Evangeline’s argument in brief to this Court that there is no evidence that Evangeline either created the condition or had actual or constructive notice of the condition. The evidence is undisputed that the floor on which Millet slipped was wet and that the floor was wet because it had been mopped by Evangeline’s employee. Accordingly, Evangeline cannot dispute knowledge of the dangerous condition.

Similarly, the evidence is unrefuted that the signs in place at the time Millet fell were not near the doorway of her brother’s room, but instead were 20 to 25 feet away, near the nurses’ station at the end of the hall. We find no error in the trial court’s determination that the placement of the signs was a failure to exercise reasonable care to prevent the unreasonable risk of harm caused by the wet floor.

The unreasonable risk of harm criterion encompasses a myriad of considerations and can not be applied mechanically. Consequently, the trial court’s factual findings and the ultimate determination of unreasonable risk of harm are subject to the manifest error standard. A reviewing court may not disturb a lower court’s holding 17unless it finds that the trier of fact was clearly wrong. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. [Citations omitted.]

Shavers v. City of Baton Rouge/Parish of East Baton Rouge, 00-1682, pp. 2-3 (La.App. 1 Cir. 9/28/01), 807 So.2d 883, 884-885.

Accordingly, we affirm the trial court’s finding of liability against Evangeline.

Damages

The next issue is whether the award of $100,000 for general damages was an abuse of the trial court’s discretion.

Millet’s kneecap was shattered. The pa-tellar fracture required two surgeries. The first surgery was an open reduction and internal fixation of the left patella, using pins and wires to piece the various bone fragments together. Later Millet underwent a second surgery for removal of the pins and wires. The injury significantly curtailed Millet’s social and physical activities. She wore a cast for several weeks, then wore a brace for three to three-and-a-half months.

Millet started a first round of physical therapy approximately four months after the accident, due to continuing problems with her knee. She ceased the physical therapy after approximately one month in order to under go the second surgery. Approximately six; weeks later she resumed physical therapy, but went to only three physical therapy visits during the second phase of physical therapy.

Millet was age 74 at the time of the accident and had been a physically active person. The injury to her left knee inhibited and curtailed her physical and social lifestyle: she was not able to go dancing as much as she had before the accident and she could not take the social walks with her husband as she frequently did before. She testified that before the accident she had enjoyed water-skiing andjjparasailmg, but was no longer able to participate in those sports. She has difficulty getting up and down steps. The injury was very painful and, as of the date of the trial, she still experienced periodic pain and discomfort in her knee, particularly with changes in weather.

Walter Millet testified that his wife suffered emotional changes and was easily agitated during her recovery period. His wife was unable to perform her household duties and, for a certain period, unable to care for herself, requiring her husband to take over these duties and to care for her person.

Finally, Millet incurred medical expenses of $14,130.85 for her injuries.

In the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332, 334 (La.1976).

On appellate review, it is only after articulated analysis of the facts discloses an abuse of discretion that an award may be considered either excessive or insufficient. Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate [or excessive].

Theriot ex rel. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993).

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

Applying these principles in this case, we are unable to find that the trier of fact abused his great discretion in the award of general damages.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Evangeline Health Care, Inc.

AFFIRMED.

      . For ease of reference and because there is no, we refer only to the term "plaintiff” rather than "plaintiffs” is used


author: GARRISON, Judge Pro Tem.

text:
    David HAMPTON and Linda Hampton, Plaintiff-Appellant, v. CAPPAERT MANUFACTURED HOUSING, INC., et al, Defendant-Appellee.
    No. 36,773-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Dianne Hill, for Plaintiff-Appellant.
    Richard Fewell, Jr., for Defendant-Ap-pellee, Cappaert Manufactured Housing.
    Leo J. D’Aubin, for Defendant-Appellee, Manufactured Housing of Alexandria, Inc.
    Before PEATROSS, KOSTELKA and HARRISON (Pro Tem.), JJ.
   GARRISON, Judge Pro Tem.

David and Linda Hampton appeal a summary judgment that dismissed their redhibition claim against Manufactured Housing of Alexandria, d/b/a Farr’s Manufactured Housing (“Farr”), the seller of an allegedly defective mobile home. They also contest an earlier judgment that denied their rule to transfer the case from the Fourth Judicial District Court, Ouachi-ta Parish, to the 23d Judicial District Court, Ascension Parish, where they live and the mobile home is located. For the reasons expressed, we affirm.

Procedural background

On July 12, 1993, the Hamptons special-ordered a new Phoenix double-wide mobile home from Farr in Alexandria, Louisiana. It was not delivered to their site in Don-aldsonville, however, until early November. According to the petition, the Hamp-tons immediately discovered “numerous defects, inferior materials and inferior workmanship.” They filed the instant suit in August 1994 against three defendants “jointly, severally and in solido”: Cappaert Manufactured Housing, the manufacturer (“Cappaert”); Farr; and Manufactured Housing of Jena (apparently another business name of Farr’s, no longer being pursued by the Hamptons). The Hamptons sought to rescind the sale or reduce the purchase price. Their attorney filed the suit in Ouachita Parish, Farr’s domicile.

Represented by new counsel, in February 1995 the Hamptons agreed to dismiss Cappaert without prejudice, reserving their rights to proceed against the other defendants. They filed a new suit against Cappaert only in Ascension Parish, reiterating the same allegations, but itemizing the alleged | ¡.defects room-by-room.

In January 1996, the Hamptons filed a rule to show cause why the Ouachita Parish suit against Farr should not be transferred to Ascension Parish. They contended that both suits “arise out of the same or similar facts and contain common issues of fact and law,” and that a transfer would serve the convenience of the parties. La. C.C.P. art. 123. Farr countered that the plaintiffs were forum-shopping. By-judgment of April 15, 1996, the District Court denied the Hamptons’ rule to transfer.

The Hamptons went to trial against Cappaert in Ascension Parish in April 1997. After that court took the case under advisement, the parties settled their claims for $15,000. The receipt and release dismissed all the Hamptons’ claims against Cappaert without mentioning Farr.

In the instant suit, Farr filed a third party demand against Cappaert, seeking indemnity for manufacturing defects. In June 1999, Cappaert filed an exception of prescription, informing Farr (apparently for the first time) that it had settled with the Hamptons in Ascension Parish.

Farr filed the instant motion for summary judgment in April 2002, urging that since the Hamptons settled with Cappaert, their claim against Farr, a solidary obligor, was extinguished.

The Hamptons opposed the motion. They conceded that in petition, they had alleged that the defendants were liable in solido. However, they now alleged that some of the defects resulted from Farr’s negligence in improperly setting up the mobile home. In support, they attached a certified transcript of the Ascension Parish trial, in which their expert testified that | .-¡certain defects were the result of the setup. They also attached certified copies of answers to interrogatories in which they alleged that the defects were the result of installation of the mobile home on the property site, a copy of their petition against Cappaert in the 23d Judicial District Court, and a copy of the receipt and release with Cappaert, dated May 21,1997.

The hearing on the motion for summary judgment was not transcribed. According to the minutes, however, the District Court ruled that three of the Hamptons’ attachments (including the trial transcript) were inadmissible hearsay, and that summary judgment was granted. The court signed a judgment to that effect on July 9, 2002.

The Hamptons now appeal, designating two assignments of error and arguing three issues.

Discussion: Forum non conveniens

By their first assignment, the Hamptons urge the District Court erred in denying their rule to transfer the case to Ascension Parish. They contend that Ascension Parish is where they live and where the mobile home is located, and that there is no nexus to Ouachita Parish. They urge that these facts satisfy La. C.C.P. art. 123 in that the work was performed in Ascension Parish. Clarendon Nat. Ins. Co. v. Belt, 33,997 (La.App. 2 Cir. 8/25/00), 766 So.2d 717, unit denied, 00-2673 (La.11/17/00), 774 So.2d 982. They also urge that the facts satisfy the jurisprudential requirements of E. Sondheimer Co. v. Hibernia Corp., 97-2460 (La.App. 4 Cir. 12/10/97), 704 |4So.2d 386, unit denied, 98-0085 (La.3/13/98), 713 So.2d 470.

While there is some merit to this position, we are constrained to note that the denial of an exception of improper venue is an appealable interlocutory judgment. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Danny Weaver Logging Inc. v. Norwel Equip. Co., 33,793 (La.App. 2 Cir. 8/23/00), 766 So.2d 701. The Hamptons neither appealed nor sought supervisory relief from the 1996 judgment that denied their motion to transfer. In Danny Weaver Logging, this court noted the sound policy reasons for immediately appealing an interlocutory ruling as to venue. These are equally compelling in the instant case, even though here the matter was resolved by summary judgment.

This assignment of error lacks merit.

Summary judgment evidence

By their second assignment, the Hamp-tons urge the summary judgment was improper because their settlement with Cappaert is not res judicata as to their claim against Farr. We will address the propriety of the summary judgment in the next part of the opinion.

The Hamptons further argue that the District Court erred in excluding the transcript of the Ascension Parish trial as hearsay on the motion for summary judgment. They concede that trial transcripts are not generally admissible on motions for summary judgment. Miramon v. Woods, 25,850 (La.App. 2 Cir. 6/22/94), 639 So.2d 353. They contend, however, that the purpose of this rule is to avoid any tendency by the court to weigh evidence; since the instant transcript would only establish that certain defects were |sdue to the installation (rather than the manufacture) of the home, no weighing of evidence is necessary and the transcript should be admitted.

The jurisprudence has uniformly treated trial transcripts as testimony which cannot be received on motion for summary judgment. Miramon v. Woods, supra; Aaron v. New Orleans Riverwalk Ass’n, 580 So.2d 1119 (La.App. 4 Cir.), writ denied, 586 So.2d 534 (1991). In Wattigny v. Lambert, 453 So.2d 1272 (La.App. 3 Cir. 1984), the court explained that the parties at trial were not the same as those on the motion for summary judgment, and the plaintiff had no opportunity to cross examine the trial witnesses. Such is obviously the case here; Farr was unaware of the Ascension Parish proceedings and was not present to cross examine the Hamptons' expert. Under the circumstances, we see no reason to deviate from the well-established rule of Miramon v. Woods, supra. This argument lacks merit.

Propriety of summary judgment

By their third assignment, the Hamp-tons urge the District Court erred in granting the summary judgment, in that there is still a genuine issue of material fact, whether Farr is responsible for any of the defects alleged in answers to discovery. Because Farr has denied liability, the Hamptons contend this is a disputed issue which must go to trial. By their second assignment, the Hamptons urge that the settlement in the 23d Judicial District Court is not res judicata as to the instant suit, as the parties, thing demanded and issue were not the same. La. R.S. 13:4231. They contend that the concept of res judi-cata will not support the summary judgment.

Without pleading res judicata, Farr responds that the factual | ^allegations and relief demanded in both suits are substantially the same, so the settlement with Cappaert appears to have compensated the Hamptons adequately for any alleged red-hibitory defects. Farr also argues that in redhibition cases, the manufacturer and seller are held liable in solido. Duplechain v. Clausing Machine Tools, 420 So.2d 720 (La.App. 4 Cir.1982). Under La. C.C. art. 1803, a transaction or compromise between the obligee and one obligor benefits the other solidary obligors in the amount of the portion of that obligor; thus, when the Hamptons released Capp-aert, this benefitted Farr to the extent of Cappaert’s liability. Farr contends that the Hamptons offered no summary judgment evidence to show that Farr was responsible for any percentage of fault for the defects.

Neither side’s argument precisely addresses the issue in the case. We agree that res judicata does not apply to this suit. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210. Nevertheless, the release of a solidary or joint obligor may have the effects as set forth in art. 1803 or 1789 and may serve to release Farr.

We do not accept Farr’s claim, based on Duplechain v. Clausing Machine Tools, supra, that manufacturers and retailers are held liable in solido. Duple-chain relied on La. C.C. art. 2324 which, since 1979, has reserved solidary liability only for conspirators to an intentional tort. Solidarity can arise only from a clear expression of the parties’ intent or from the law. La. C.C. art. 1796. The party claiming solidary liability between two or more, parties has the burden of proving it. Davis v. Burlingame, 607 So.2d 853 (La.App. 2 Cir.1992), writ denied, 612 So.2d 84 (1993). Apart from allegations, neither Farr nor the Hamptons have proved a conspiracy.

If liability is not solidary pursuant to a conspiracy to commit an intentional or willful act, then liability is joint and divisible. La. C.C. art. 2324 B. On the facts alleged (that Cappaert manufactured a defective mobile home, and that Farr further damaged it by negligent installation), the defendants’ liability is joint and divisible. Each joint obligor is bound to perform only his portion of the obligation. La. C.C. art. 1789.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966 A(2). After adequate discovery or after a case is set for trial, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B, C(l). Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial court’s grant of the judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

When a motion for summary judgment is made and supported as provided by law, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine | tissue for trial. If he does not so respond, summary judgment, if appropriate, will be rendered against him. La.C.C.P. art. 967; Independent Fire Ins. Co. v. Sunbeam Corp., supra.

If the moving party will not bear the burden of proof at trial on the matter that is before the court on motion for summary judgment, that party’s burden on the motion for summary judgment is to point out to the court an absence of factual support for one or more essential elements of the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2); King v. Phelps Dunbar, LLP, 98-1805 (La.6/4/99), 743 So.2d 181.

On de novo review, we find that Farr alleged facts sufficient to show that it owed one portion of a joint and divisible obligation to the Hamptons, who compro-raised a portion of their obligation for $15,000. In essence, Farr pointed out that there was no factual support for the Hamptons’ claim that their obligation exceeded $15,000. The burden therefore shifted to the Hamptons to produce factual support to create a genuine issue for trial. The Hamptons offered a trial transcript which, as we have already concluded, was not admissible on the motion for summary judgment. They also filed pleadings and discovery responses that listed alleged defects, but these are “mere allegations” rather than factual support. La. C.C.P. art. 967. In addition, they did not show that the obligation exceeds $15,000. Because 1 athe Hamptons failed to satisfy their burden of proof under La. C.C.P. art. 966 C(2), summary judgment was proper.

These assignments of error lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are assessed to the appellants, David and Linda Hampton.

AFFIRMED.

      . The answers to interrogatories also cited La. R.S. 51:912.22(7), a provision of the Uniform Standards Code for Mobile Homes and Manufactured Housing requiring that "piers or load-bearing supports or devices shall be installed and constructed to evenly distribute the loads.”

      . The settlement figure of $15,000 was over one-third of the purchase price of the Phoenix mobile home, $39,690.