author: J^SUSAN M. CHEHARDY, Judge. hGOTHARD, J.,

text:
    Wayne TAUZIER, Jr. v. Angela KRAUS, Regina Kraus, Hartford Insurance Co. of the Midwest and State Farm Mutual Automobile Insurance Co.
    No. 02-CA-1015.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Tracey L. Rannals, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, for Wayne Tauzier, Jr., Appellant.
    L. Jay McCreary, John J. Erny, III, Law Offices of John J. Erny, III, Metairie, LA, for Angela Kraus, Regina Kraus and Hartford Insurance Co. of the Midwest, Appellees.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

In this personal injury lawsuit where defendant stipulated to liability, the jury awarded plaintiff general damages, medical expenses and lost wages. Plaintiff appeals the jury’s award of general damages as abusively low. For the following reasons, we affirm.

Facts

On the afternoon of December 21, 1999, the plaintiff, Wayne Tauzier, Jr., was driving southbound on Williams Boulevard in Kenner in his 1988 Ford F-150 pickup truck. Although traffic was stopped in the center and left lane, plaintiff was in the far right lane traveling between 30 to 35 miles per hour, which was below the posted speed limit on that portion of Williams Boulevard on that date. As plaintiff approached the intersection of Williams and 31st Street, defendant, Angela Kraus, who had been traveling west on 31st Street in her mother’s 1991 Dodge Dynasty, pulled out from between the cars stopped in the center lane into plaintiffs lane and stopped. Although he braked, plaintiff was unable to stop and broadsided defendant.

After the accident, even though he did feel pain in his left knee, plaintiff refused medical treatment at the scene. Defendant was cited for driving with a | .^suspended license and failure to yield. Both cars were severely damaged in the collision.

Later that evening, plaintiffs mother brought him to the emergency room at East Jefferson General Hospital because he was complaining of pain in his left knee. X-rays of plaintiffs knee on that date revealed no abnormality of the left knee. On December 21, 1999, the emergency room physician prescribed an anti-inflammatory to help reduce any swelling and discharged plaintiff with a diagnosis of “knee contusion.”

Plaintiff continued to experience knee pain and swelling so he made an appointment with Dr. Chad Millet, an orthopedic surgeon. On December 30, 1999, Dr. Millet examined plaintiff and found “some tenderness over the patella with some patello-femoral arthrosis” or, in laymen’s terms, pain under the kneecap. Dr. Millet also noted “no obvious swelling.” Dr. Millet continued the anti-inflammatory medications with recommendation to plaintiff to return if he had further problems.

Although plaintiff contends that during his first visit to Dr. Millet after his automobile accident he told Dr. Millet that he had pain “on the top of his [left] kneecap” and “pain to the inside of the [left] knee,” there was no mention in Dr. Millet’s record that plaintiff complained that day of tenderness near the medial joint line of his left knee. Dr. Millet also stated that he did not believe that plaintiff had a tear in the medial meniscus of his left knee at that point.

On February 11, 2000, plaintiff returned to Dr. Millet stating that his knee was fine until “last week [when] he was running and felt his knee pop.” That day, Dr. Millet observed swelling and “tenderness over the medial joint line with no obvious effusion,” which indicated a “possible tear” in the medial meniscus of the |4left knee. Dr. Millet testified that the plaintiffs complaints during his February 2000 visit were very different from his complaints right after his automobile accident. Although Dr. Millet could not rule out the automobile accident as the cause of plaintiffs meniscal tear, he opined that, of the two events, the running event would seem the more likely cause of the meniscal tear.

Plaintiff testified that the “knee popping incident” did not occur when he was running as Dr. Millet described but he experienced pain after walking rapidly in an attempt to catch up to a group of coworkers when they were all leaving work. Further, he could not recall exactly what he told Dr. Millet about the incident.

When plaintiff visited Dr. Millet on April 6, 2000 with continuing complaints of persistent pain and swelling in his left knee, Dr. Millet recommended arthroscopic surgery. On May 1, 2000, Dr. Millet performed arthroscopy and repaired the torn medial meniscus of plaintiffs left knee. On May 8, 2000, Dr. Millet examined plaintiff who, according to Dr. Millet’s records, presented “without complaints” and determined that plaintiff was recovering very well.

On May 31, 2000, plaintiff again visited Dr. Millet and reported, according to Dr. Millet’s records, that he been doing very well until the previous week when he “tripped and injured his left knee.” He presented with complaints of pain in the medial area of his left knee. Dr. Millet diagnosed plaintiff with a “strain vastus medialis left knee” and prescribed anti-inflammatory medication and therapy with heat and ice. Plaintiff testified that he did not remember tripping and injuring his left knee in May of 2000 or telling Dr. Millet that he had tripped.

In plaintiffs final visit with Dr. Millet on June 22, 2000, plaintiff complained of pain in his left knee and Dr. Millet observed “minimal tenderness |5over the medial joint line” and “mild pain with patellofemoral compression.” Dr. Millet discharged him on that date to return on an “as-needed” basis.

On July 31, 2000, plaintiff sought treatment for pain in his knee from another orthopedist, Dr. Warren Bourgeois. On that date, after examining plaintiff, Dr. Bourgeois diagnosed plaintiff with persistent symptomatic inflammation of the medial plica and pain at the patella of the left knee. In laymen’s terms, plaintiff was experiencing pain associated with an injury to the cartilage on the underside of the kneecap and a thickening of the lining of the knee joint at the inside of the kneecap. Dr. Bourgeois prescribed anti-inflammatory medications and referred plaintiff for physical therapy.

On September 18, 2000, plaintiff again visited Dr. Bourgeois, who determined that plaintiff was still experiencing inflammation of the medial plica in his left knee. Dr. Bourgeois prescribed anti-inflammatory medication and continued physical therapy. After several weeks of physical therapy, plaintiffs symptoms ceased and he was released by Dr. Bourgeois without restrictions. Plaintiff testified that his knee is “fine now.”

On December 13, 2000, plaintiff filed suit against Angela Kraus, Regina Kraus, Hartford Insurance Company of the Midwest (“Hartford”), and State Farm Mutual Automobile Insurance Company (“State Farm”) for damages arising out of the automobile accident. Hartford was the Krauses’ insurer on the date of the accident. State Farm was plaintiffs uninsured/underinsured motorist carrier on the date of the accident. On January 30, 2001, State Farm, in its answer, filed a cross-claim seeking reimbursement for medical payments made to plaintiff pursuant to its uninsured/underinsured motorist coverage for plaintiff.

On February 25, 2002, the matter proceeded to trial. At trial, the Krauses and Hartford stipulated that Angela Kraus was at fault in the automobile accident on December 21, 1999. Further, the parties stipulated that, to the extent that | ¡¡plaintiff recovered medical expenses, State Farm would recover $5,000.00, the amount of its medical payments to plaintiff.

On February 26, 2002, after hearing testimony and evidence, the twelve-person jury awarded the plaintiff medical expenses totaling $17,870.79, lost wages totaling $1,800.00, and pain and suffering totaling $2,000.00. The trial judge thereafter issued a written judgment awarding $16,670.79 to plaintiff and $5,000.00 to State Farm.

On appeal, plaintiff contends that the jury’s award of $2,000.00 for pain and suffering was abusively low since he was in physical therapy for five months and underwent knee surgery. He claims that his general damage award should have been higher because he was unable to participate in leisure sports for the duration of his injury. Further, he also contends that he can no longer participate in these activities “in order to preserve himself for his employment.”

In Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993), the Louisiana Supreme Court said:

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion. And, “it is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.” Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. 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.
Prior awards under similar circumstances serve only as a general guide. If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. In instances where the appellate court is compelled to modify awards, |7the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court.
This court recently considered the standard of appellate review of general damages awards in Hae Woo Youn v. Maritime Overseas Corp., et al, 623 So.2d 1257 ... (La.1993);[sic] the majority opinion contains the following commentary of the interpretation and application of the controlling legal precepts:
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck v. Stevens, 373 So.2d 498, 501 (La.1979) to the present case is that the 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. [Citations omitted.]

Theriot, 625 So.2d at 1340-1341.

In this case, the jury awarded $2,000.00 for pain and suffering. Plaintiff underwent outpatient surgery to repair the torn medial meniscus in his left knee. Both of plaintiffs orthopedists indicated that his post-surgery recovery was excellent. Further, he was released by both orthopedists without any physical restrictions. In fact, at trial, he stated that he was free from pain and his knee was “fine.” Moreover, both orthopedists stated that neither the injury that he received nor the surgery that it required were likely to increase his chances for future knee problems.

At trial, plaintiff testified that he left his job as a warehouseman after his injury because his co-workers were “harassing” him about his work performance. At trial, however, he testified that he was now working at a better job with higher pay. Further, he was physically able to perform each of his job requirements. |R After a thorough review, we are of the firm opinion that the jury did not abuse its vast discretion in this award and, thus, we decline to modify it.

Plaintiff has requested that we compare the damages award given in this case with prior awards given in other cases involving similar injuries. However, as noted above, the Louisiana Supreme Court in Youn v. Maritime Overseas Corp., supra, stated that it “disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. (Citation omitted).”

Further, it is only after the reviewing court finds an abuse of the trial court’s vast discretion in setting an award of damages that the court can then “resort to a review of prior awards to determine the appropriate modification of the award.” Theriot, 625 So.2d at 1340. Because we do not find an abuse of the vast discretion afforded the trier-of-fact in setting the award for damages in this case, we cannot resort to a review of prior awards to determine whether or not the award in this case is insufficient.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED.

GOTHARD, J., Dissents.

hGOTHARD, J.,

dissents.

I respectfully dissent from the majority opinion. I find that an award of $2,000.00 in general damages for an injury that resulted in surgery for a torn medical meniscus and caused ten to eleven months of knee pain, as well as several months of therapy, is abusively low. The jury-awarded $17,870.79 in medical expenses and $1,800.00 for lost wages and impairment of wage earning capacity. Thus, it is obvious that the jury found that the surgery and aftermath of pain and therapy were caused by the accident. I would find the award of general damages in the amount of $2,000.00 is abusively low and would review similar eases for an appropriate increase in general damages. See, Herzog v. Fabacher, 01-432 (La.App. 5 Cir. 10/17/01), 800 So.2d 997; Ganucheau v. Winn Dixie La., Inc., 99-432 (La.App. 5 Cir. 11/10/99), 746 So.2d 812, writ denied, 99-3641 (La. 2/18/00), 754 So.2d 972; Mankin v. Continental Ins. Co., 93-1058 (La.App. 5 Cir. 5/31/94), 638 So.2d 460.

      . Medial is defined as "relating to, situated in, or extending toward the middle; median.” American Heritage Dictionary of the English Language (4th ed.2000). For example, when referring to the knee, medial would mean the side of the knee that is closest to the other knee.


source: Caselaw Access Project

author: 1 «CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Allen FLETCHER.
    No. 03-KA-60.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Anthony G. Falterman, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for State.

      William R. Campbell, Jr., New Orleans, LA, for defendant-appellant.
    Allen Fletcher, In Proper Person, St. Gabriel, LA.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   1 «CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

This is defendant’s fourth appeal to this Court. On June 3, 1994, the St. James Parish District Attorney filed a bill of information charging defendant, Allen Fletcher, with second degree battery, a violation of LSA-R.S. 14:34.1. On May 8, 1994, Gustavia Lewis was sitting on the hood of a friend’s car in the parking lot of the Cool Spot Bar in Vacherie. An individual, unknown to her at the time but subsequently identified as defendant, approached her and said, “Look like you don’t want to be bothered with nobody.” When Ms. Lewis replied that she did not want to be bothered, defendant cursed at her, spit in her face, and then punched her, causing her to fall back on the car. At that point, Desmond Scineaux, a friend of the victim’s, exited the bar, saw what was happening and grabbed defendant. However, a friend of defendant then grabbed Desmond Scineaux, allowing defendant to break free from his hold. Defendant ran over to Ms. Lewis, pushed her to the ground and started kicking her in her face and in the side of her body. )3 Defendant even bit Ms. Lewis’ finger during this assault. Eventually, the incident subsided, and the parties went their separate ways. As a result of the defendant’s attack, the victim suffered a fractured jaw that required surgery.

Ms. Lewis subsequently identified defendant in a photographic lineup and at trial as the individual who punched and beat her.

In contrast to the testimony of the victim and her witnesses, defendant testified that he approached Ms. Lewis and began talking to her as she sat on top of a car. According to defendant, Ms. Lewis told him that she did not want to be bothered, that she spit in his face, and then grabbed his face and tried to claw him. When he grabbed Ms. Lewis’ hand to make her let go, she used her other hand and ripped his shirt. As defendant attempted to break away, he hit Ms. Lewis. Defendant said that Desmond Scineaux then beat him and Ms. Lewis hit him in the head with her shoes.

After considering the evidence presented, the jury found defendant guilty as charged of second degree battery. The State filed a multiple offender bill of information alleging defendant to be a fourth felony offender. After conducting a hearing, the court found defendant to be a fourth felony offender. The court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence, which defendant appealed.

On June 30, 1997, this Court vacated the defendant’s life sentence and remanded for resentencing on the basis that the trial judge had retroactively applied the 1996 amended version of LSA-R.S. 15:529.1, rather than the version in effect at the time the offense was committed, which permitted in some circumstances, but did not require, a life sentence. State v. Fletcher, 97-40 (La.App. 5 Cir. 6/30/97), 698 So.2d 75, not designated for publication.

On April 7, 1998, the defendant was resentenced as a third felony offender to life imprisonment with benefit of probation, parole, or suspension of sentence. |4 Defendant filed a motion for reconsideration, and after a hearing on September 9, 1998, the trial court vacated the life sentence and resentenced defendant to ten (10) years of imprisonment at hard labor and defendant appealed his sentence again. On June 23, 1999, this Court rendered an unpublished per curiam that “set aside Fletcher’s life sentence” and remanded for resentencing, noting only that defendant was improperly sentenced as a fourth felony offender.

After this case was remanded, the State filed a Memorandum in Support of Resen-tencing Defendant as a Third Felony Offender. On April 3, 2001, the trial judge resentenced defendant as a third felony offender to ten (10) years at hard labor, and defendant appealed again.

On February 26, 2002, this Court “set aside defendant’s adjudication as a third felony offender, enter[ed] judgment adjudicating the defendant a second felony offender, and remand[ed] to the trial court for resentencing.” State v. Fletcher, 01-809 (La.App. 5 Cir. 2/26/02), 811 So.2d 1010, 1014. The Fletcher court noted that the State could not use two of the three predicates in the multiple bill because to do so would constitute double enhancement. After discussing the applicable cleansing period, the Fletcher court found that only one of the eligible predicates fell within the applicable cleansing period, making defendant a second felony offender.

After remand, the original trial judge was recused pursuant to defendant’s motion. On August 19, 2002, the defendant appeared before a different trial judge and was resentenced as a second felony offender to ten years of imprisonment. Defendant made an oral motion for appeal, which the trial court granted, and defendant filed a motion to reconsider sentence, which the trial court denied.

| ^Defendant's appellate counsel filed a brief on the defendant’s behalf alleging one assignment of error. Thereafter, the defendant filed a pro se brief alleging three other assignments of error. This opinion addresses all alleged assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that his ten-year sentence, the maximum term of imprisonment, is constitutionally excessive because it is the very same sentence imposed upon him when he was previously considered to be a fourth felony offender and again when he was considered to be a third felony offender.

The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Williams, 98-1146 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, 655, writ denied, 99-1984 (La.1/7/00), 752 So.2d 176.

Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. at 64.

Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

As a second felony offender, defendant faced not less than one-half (1/2) of the maximum sentence of the underlying offense and not more than twice the maximum sentence of the underlying offense. Defendant’s underlying offense of second degree battery is punishable by a term of imprisonment of not more than five years. LSA-R.S. 14:34.1. Thus, defendant faced a sentencing range between two and one half (2)4) years to ten (10) years of imprisonment. LSA-R.S. 15:529.1(A)(1). (West, 1994).

Before sentencing the defendant, the trial judge stated that he had thoroughly reviewed the record. In fact, the judge stated he reviewed the record twice, once that morning, and again immediately before sentencing the defendant. Thereafter, the judge imposed the maximum ten-year term of imprisonment.

The record reflects that defendant has had a lengthy criminal history, which is demonstrated by the Pre-Sentence Investigation Report (PSI) that was ordered in 1995. Defendant began his adult criminal career one month after his seventeenth birthday in 1977. Additionally, the PSI indicates defendant has been involved in criminal activity at least once a year thereafter, with the exception of periods of incarceration. The PSI also indicates defendant has at least four felony convictions, several misdemeanor convictions, and numerous arrests. And, defendant committed. the instant offense while on parole.

The defendant has suggested in the motion to reconsider and on appeal that the sentence is vindictive because he has received the same sentence as previously imposed, despite the fact that his habitual offender status is less. Generally, if a convicted defendant is successful in having his conviction overturned on appeal, and is subsequently re-tried and convicted, the trial judge may not then impose a |7more severe sentence. North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). Thus, if a judge imposes a more severe sentence upon a defendant when he is convicted following a successful appeal, the trial judge’s reasons for the increased sentence must affirmatively appear in the record. Otherwise, there is a presumption of vindictiveness. The purpose behind this rule is to prevent defendants from being penalized for having exercised their constitutional rights. Id. The Louisiana Supreme Court has applied the Pearce presumption of vindictiveness when a defendant is re-sentenced after his conviction is affirmed but the sentence is vacated on appeal. State v. Lucas, 598 So.2d 338 (La.1992).

Defendant is correct in that he has received the same sentence of ten years as a third felony offender and as a second felony offender. However, this can be explained by the fact that, according to the 1994 version of LSA-R.S. 15:529.1(A)(1) and 2(a), the maximum term of imprisonment is the same under LSA-R.S. 15:529.1 for second felony offenders and for the third felony offenders who are not eligible for life sentences. Under that statute, the maximum term of imprisonment cannot exceed the longest term of the underlying offense. The record clearly evidences the sentencing judges’ intent to impose the maximum term of imprisonment upon defendant. Every time defendant has been sentenced in this case, it has been to the maximum term of imprisonment that the district court believed was possible. Therefore, the Pearce presumption does not apply in this case because defendant has not received an increased sentence.

Maximum sentences are generally reserved for the most serious violations of the relevant statute and for the worst type of offenders. State v. Stucke, 419 So.2d 939, 947 (La.1982); State v. Taylor, 98-603 (La.App. 5 Cir. 3/10/99), 733 So.2d 77, 82. After thoroughly considering the record, the trial judge obviously concluded that the maximum sentence was justified. The record in this case |sreflects that defendant beat the victim, a complete stranger, without provocation. He inflicted such severe injuries that the victim’s jaw was wired shut, and she could only sip liquids through a tube for two months thereafter.

When reviewing a sentence, the question is not whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. Considering the defendant’s lengthy criminal history and the violence of the instant offense, we find the trial judge did not abuse his discretion in sentencing the defendant to the maximum term of ten years. Therefore, we affirm the defendant’s sentence of ten years imprisonment.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends that the trial judge improperly denied his pro-se motion to reconsider sentence. He contends that the trial judge did not entertain his motion for reconsideration because an appeal had been granted.

The record reflects that defendant filed a timely pro-se motion to reconsider sentence on September 17, 2002, within 30 days of his sentencing on August 19, 2002. The order attached to the motion contains a handwritten notation which stated the motion was denied and it was on appeal at the present time.

According to LSA-C.Cr.P. art. 881.1(B), “the trial court may resentence the defendant despite the pendency of an appeal.” (emphasis added). Further, LSA-C.Cr.P. art. 881.1(C) permits the trial court to deny the motion for reconsideration without a hearing. See also LSA-C.Cr.P. art. 916(3), which states that a trial court has jurisdiction to correct an illegal sentence pursuant to a motion to reconsider sentence.

Defendant cites State v. J.R.S.C., 00-2108 (La.6/1/01), 788 So.2d 424, for the proposition that this Court should remand the case for the district court to consider the defendant’s motion for reconsideration of his sentence. In that case, l9the Louisiana Supreme Court held that a juvenile’s motion to modify the judgment of disposition is the equivalent of an adult defendant’s motion to reconsider sentence and could be considered even though an appeal was pending.

J.R.S.C. does not compel remand in this case. J.R.S.C. is a very brief per curiam and does not even contain the ruling of the juvenile court judge. To the contrary, in the instant case the trial judge denied the defendant’s motion to reconsider sentence, albeit by noting that the case was on appeal. But, nothing in the record reflects that the trial judge did not consider the defendant’s motion. In denying the motion,1 the trial judge obviously did not believe that modification of the sentence was appropriate.

Therefore, we find this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that he did not receive effective assistance of counsel because his trial counsel did not file a motion to reconsider his sentence.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. Truitt, 500 So.2d 355, 359 (La.1987); State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. Only when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, may it be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993). In the present case, the record is adequate to address defendant’s claim in this regard.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution of 1974. When a defendant raises a claim of ineffective assistance of counsel, that claim is evaluated under the two-prong test established | inby Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show (1) that defense counsel’s performance was deficient, and (2) that the deficiency prejudiced the defendant. To show prejudice under this test, the defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct at 2064.

There is no indication that defendant’s trial attorney was ineffective in not filing a motion to reconsider sentence. As noted above, the defendant filed his own timely motion to reconsider sentence, thereby preserving the claims therein for appeal. Thus, there was no need for defendant’s trial attorney to file another motion for reconsideration. We find this assignment of error is also without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, the defendant contends the trial court erred in imposing the maximum sentence allowed under the law as a second offender, particularly so when considering the exceptionally unusual nature and circumstances of this case, without any consideration and/or articulation as it relates to justification for this harsh sentence under La.C.Cr.P., article 894.1, and particularly since the original sentencing judge was recused as a result of the appearance of improprieties, allegations of criminal conduct, bias and prejudice towards this appellant.

In his pro se brief, defendant reiterates the claim raised in his counseled brief that his sentence is the product of the trial judge’s vindictiveness. That claim has been addressed above.

In addition, defendant complains that the trial judge failed to state reasons for sentencing the defendant pursuant to LSA-C.Cr.P.art. 894.1. This claim was properly raised in defendant’s motion for reconsideration as required by LSA-C.Cr.P. art. 881.1.

In Article 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing the sentence. State v. Sanders, 98-855 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175. But, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in LSA-C.Cr.P. art. 894.1 does not require a remand for resentenc-ing. State v. Ulmer, 99-1079 (La.App. 5 Cir. 1/25/00), 751 So.2d 1017, 1019; State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076, 1082.

Defendant would have this Court believe that the trial judge simply imposed the maximum sentence without any consideration of the facts of the case. Although the judge did not articulate reasons when imposing the ten-year sentence, the judge stated that he had reviewed the record. The evidence presented at trial reflects that the defendant savagely beat Ms. Gus-tavia Lewis, a woman who was a complete stranger to him. Defendant inflicted such severe injuries that Ms. Lewis’ jaw was fractured and had to be wired shut. For two months thereafter, Ms. Lewis could only sip liquids through a straw. The defendant has an extensive criminal record, which is contained in the Pre-Sen-tence Investigation report.

Based on the foregoing, we find the record contains an adequate factual basis for the sentence such that remand for compliance with LSA-C.Cr.P. art. 894.1 is not required.

Defendant also insinuates that judicial impropriety infected the sentencing process. After this case was most recently remanded, the defendant filed a motion to recuse the original trial judge, the Honorable Alvin Turner, Jr. In the motion to recuse, defendant made several allegations of judicial impropriety against Judge Turner. In his pro se brief, defendant pointed out that Judge Turner recused himself pursuant to defendant’s motion. What defendant does not mention, | ^however, is that the order by Judge Turner, granting defendant’s motion to recuse, states that the judge recused himself for the sake of judicial economy, not because the grounds of defendant’s motion to recuse had any validity. Further, Judge Turner did not sentence defendant. Therefore, this assignment of error is without merit.

ERROR PATENT DISCUSSION

This Court performed an error patent review of the original record in this case at the time of defendant’s first appeal, so defendant is only entitled to an error patent review of the record on re-sentencing. State v. Taylor, 01-452 (La.App. 5 Cir. 1/14/01), 802 So.2d 779, 783, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426. Pursuant to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), the record on resentencing, # 03-KA-60, was reviewed for patent errors.

It is noted that the defendant’s enhanced sentence is illegally lenient because the trial judge failed to specify that the sentence is not subject to probation or suspension of sentence, as required by LSA-R.S. 15:529.1(G) (West, 1994). Under these circumstances, this Court has held that a trial court is in substantial compliance with the sentencing directives of the multiple offender statute if the court does not affirmatively suspend any portion of the enhanced sentence or impose any probationary period, despite the failure to state the above restrictions. State v. Munson, 00-1238 (La.App. 5 Cir. 2/14/01), 782 So.2d 17, 21, and the cases cited therein. Moreover, under LSA-R.S. 15:301.1 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 800-801, which interprets that statute, the sentence is deemed to contain these restrictions. State v. Segura, 02-280 (La.App. 5 Cir. 9/30/02), 829 So.2d 587, 592. Accordingly, no action is required to address the trial court’s failure to specify that the sentence should be served without benefit of probation or suspension of sentence.

1S The sentence is also illegally lenient because the trial judge failed to impose a mandatory fine as provided by LSA-R.S. 14:34.1. When a defendant is sentenced as a habitual offender, “[t]he penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.” State v. Taylor, 99-385 (La.App. 5 Cir. 8/31/99), 743 So.2d 749, 754 (citing State v. Bruins, 407 So.2d 685, 687 (La.1981)).

Because the underlying offense of second degree battery is punishable by a mandatory fíne of not more than $2,000, defendant should have been fined when he was sentenced. This Court has recognized that an appellate court has the authority to notice an illegally lenient sentence. State v. Qutoum, 02-780 (La.App. 5 Cir. 1/28/03), 839 So.2d 323, 333 (citing State v. Williams, supra). In some instances, this Court has remanded for resentencing when the sentence lacks a mandatory fine. State v. Qutoum, supra; State v. Lee, 02-704 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 596; State v. Stansberry, 02-358 (La.App. 5 Cir. 9/18/02), 829 So.2d 472, 475; State v. Clemons, 01-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, 1050, writ denied, 02-918 (La.11/22/02), 834 So.2d 972. Therefore, we remand this matter for imposition of an appropriate fine.

In accordance with the above, we affirm the defendant’s sentence of ten years imprisonment and remand to the district court with instructions to impose the appropriate fine.

SENTENCE AFFIRMED; REMAND WITH INSTRUCTIONS.

      . The record of 99-KA-56 reflects that defendant’s previous life sentence was vacated on September 9, 1998, and that a ten-year sentence was imposed. Therefore, it is unclear why the June 23, 1999 per curiam vacates the defendant's life sentence, since the trial court had already vacated that sentence and imposed a new one.

      . Defendant did not receive the maximum sentence, since a fine could also have been imposed. Considering that the fine was mandatory, as discussed infra, defendant did not receive the maximum sentence.


author: | .MARION F. EDWARDS, Judge.

text:
    Dale J. MADERE v. WESTERN SOUTHERN LIFE INSURANCE COMPANY.
    No. 03-CA-110.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Robert L. Walsh, New Orleans, LA, for Appellant.

      Dale J. Madere, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   | .MARION F. EDWARDS, Judge.

Defendant/appellant Western-Southern Life Insurance Company appeals a judgment denying its Exception of Res Judica-ta and ordering it to reimburse plaintiff Dale Madere the sum of $500.00 for a treadmill, which the court found was medically necessary. We reverse.

The matter was originally filed in the district court in January 2000 as a Motion To Enforce Worker’s Compensation Settlement. In the motion, Madere alleged that Western-Southern repeatedly faded to pay his medical bills pursuant to a Worker’s Compensation settlement entered into on August 23, 1989, and asked that a special administrator be appointed to manage the bills. In February 2000, the trial court denied the motion, finding that the bills had been paid and that it did not have authority to appoint a special administrator. Approximately one year later, in February 2001, Madere filed two more Motions to Enforce the settlement, on similar grounds of unpaid medical expenses and for the cost of a treadmill prescribed by his physician. In June 2001, the motion was again denied, and the | .court found that the bills had once again been paid, and that Mr. Madere had not proven that the treadmill was a medical necessity. In August 2001, Madere filed a fourth Motion to Enforce, solely for the cost of the treadmill. Western-Southern responded that the issue was res judicata, in that Madere did not appeal or seek a rehearing on the earlier judgment. It further contended that Madere was not entitled to such equipment. Following a hearing, the trial court denied the Exception of Res Judicata, and granted the motion only insofar as to order reimbursement in the sum of $500.00 for the treadmill, which the court found medically necessary.

It is from this judgment that Western-Southern appeals. Madere has answered the appeal, contending the judgment should be modified to increase the amount to $5,895.00. As he did throughout the proceedings in the district court, he appears in proper person.

In 1985, Madere was injured in an auto accident, in the course and scope of his employment with Western-Southern. In 1989, the parties entered into a compromise, in which agreement Western-Southern agreed to pay 100% of all medical expenses incurred by Madere for the work-related injury. From the evidence of the underlying injury suffered in the accident, it appears that Mr. Madere had previously suffered from back problems, and in the accident re-injured his back, causing him to become disabled.

Mr. Madere’s request for approval of medical equipment was within the scope of the compensation settlement agreement, in which Western-Southern agreed to pay 100% of all medical expenses incurred by him for his work related injury. It is apparent that these medical expenses are ongoing, and Western-Southern has acknowledged this by its payments to his treating physicians. Western-Southern is liable for medical expenses occurred if Mr. Madere’s | condition changes as a result of the accident. Thus, he was entitled to bring an action to enforce the agreement for expenses that were medically necessary.

We are of the opinion that the judgment on appeal was not barred by res judicata. Ordinarily, once a judgment becomes final and definitive, parties are bound by it regardless of a subsequent change in circumstances. Workers’ compensation judgments, however, are treated differently from ordinary judgments. This is due to the fact that if the rules of finality applied to ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation system would be greatly restricted. Where the legislature has expressly provided that an award or judgment can be subject to a claim of modification, res judicata does not apply. Under LSA-R.S. 23:1310.8, a compensation award may be modified by either party because of change in disability after an award has been made.

The modification statute is to be liberally construed in favor of the claimant, and that through it, the Legislature did not intend that a judgment determining the extent of a claimant’s disability be res judicata, it having expressly provided that a compensation award can be subject to modification based on a change in the worker’s condition. The power of modification, while not a substitute for the appellate process, exists for the purpose of modifying awards due to a change in the worker’s condition.

Within the entire scheme [of worker’s compensation], the concept of modification is unique because it allows a case to be reopened and the award amended after the judgment becomes final. The purpose of the modification statute is to allow adjustments to be made after judgment “to insure that the employee will be paid compensation during the full period of his disability and that the employer will not be required to pay for any longer than this period of | ^disability.” Where the legislature has expressly provided that an award or judgment can be subject to a claim of modification, res judicata does not apply.

Applying the above principles to the present case, we find that Mr. Madere could pursue his motion for a second time, and that res judicata would not apply to bar the second motion. However, it was necessary that he prove a change in his condition since the time the first motion was denied.

At the hearing on the first motion, Western-Southern introduced the deposition of Dr. Burris. A neurologist, she had treated Mr. Madere since 1993, and at the time of the deposition, saw him regularly once or twice a year. In December 2000, Mr. Madere telephoned and requested a prescription for a treadmill. She did not approve the request because she felt that there were other ways he could exercise without a treadmill. Mr. Madere responded that he could not walk outside because he had a “foot drop,” and that he stumbles and falls in the cracks. He had a treadmill for 30 years, and it had finally given out. Dr. Bums did not feel that she could justify the equipment as a medical necessity, and she has difficulty in so justifying any piece of exercise equipment for any patient. She indicated that Mr. Madere might obtain such a prescription from another physician.

Ramsey Horn, handled Mr. Madere’s account with Gates McDonald, a third party administrator for Western-Southern. In December 2000, he received an invoice from Mr. Madere for a treadmill in the amount of $7,491.31, along with a prescription for a “walking treadmill” from Dr. Montegut, but that physician did not respond to his inquiry of whether the treadmill was a medical necessity. Dr. Burris, his treating neurologist, informed him that the treadmill was not medically necessary. Dr. Montegut later wrote that the treadmill was required “because of impairment of a cervical spine from an auto accident on 11/26 of '85 which prohibits him from exercising in other ways.”

|fiMr. Madere stated that he needed the treadmill as an exercise device to relieve pain, and since his treadmill broke, he had to increase his pain medication. He does not sleep or function as well. Because of his drop foot condition, he stumbles when walking regularly, and he trips on cracks in the sidewalk when walking outside.

In the judgment denying the motion, the court found that Mr. Madere’s treating neurologist, Dr. Debra Burris, did not find the treadmill was medically necessary, although Madere had a prescription for such equipment from Dr. Christy Montegut, his general practitioner. The court found it significant that Dr. Montegut did not examine Madere in connection with the treadmill request, and that no testimony from that physician was offered. The court held that Madere had not met his burden of proving that the treadmill was medically necessary.

At the second hearing, Mr. Madere stated that Dr. Burris was no longer treating him, and that Dr. Montegut was now his treating physician. After Dr. Montegut examined him, he agreed that Mr. Madere did need the treadmill and gave him the prescription.

The deposition of Dr. Montegut was admitted into evidence. Dr. Montegut stated Mr. Madere had long been a patient at the clinic, but that he had begun treating him for various problems in 1997. In June 2001, Mr. Madere came in for a checkup, for refills of pain medication for his neck and low back. He was seen again in July, and in August 2001, he complained of increasing pain in his lower back and right side. X-rays showed a compression fracture of the lumbar vertebra and degenerative arthritis. Mr. Madere, who had both lumbar and cervical laminectomies and a lumbar fusion, related that he felt a sharp pain in his back on making a sudden turn. Another x-ray in October showed the fracture was healing satisfactorily.

|7Mr. Madere suffers from chronic back and neck pain, and has a drop foot. In general, his condition has not changed in the last year. The first prescription for a walking treadmill was probably given as the result of a telephone request from Mr. Madere. It would be risky for him to walk on uneven surfaces because of his drop foot, and the treadmill provides an even surface. Although Dr. Montegut did not prescribe a walking program, such exercise helps strengthen the muscles of the lower back. Mr. Madere requested a prescription for a Quinton treadmill, although Dr. Montegut had never examined that particular brand and had no other reason to prescribe it. It would be convenient and helpful for him to have a treadmill at home, but was probably not medically necessary. The physical condition that requires him to use a treadmill is the same as it was in April 2001.

The trial court found after the second hearing that Dr. Montegut was Mr. Mad-ere’s current treating physician. From both Dr. Montegut’s deposition, and other medical evidence, the court determined that even though Dr. Montegut did not use the term “medically necessary”, it was plain that exercise in a controlled environment on a controlled surface was necessary, since Mr. Madere suffered from drop foot condition.

Based on the testimony of Dr. Monte-gut, his treating physician, Mr. Madere did not carry his burden of proving a change in his condition from the time of the first hearing. Therefore, we reverse the judgment of the trial court granting him $500.00 for partial reimbursement for the treadmill.

For the foregoing reasons, the judgment is reversed. Mr. Madere is assessed costs of this appeal.

REVERSED.

      . Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99) 748 So.2d 399. Landreneau v. Liberty Mut. Ins. Co., 309 So.2d 283, 285-86 (La.1975),

      . Falgout, supra; Jackson v. Iberia Parish Gov’t, 98-1810 (La.4/16/99), 732 So.2d 517,

        . Also, e.g., see Landreneau, supra.

      . Jackson, supra.

      . Falgout, supra, citing Denis luge, Louisiana Workers' Compensation, § 3:7 (2nd ed.1999).

      . Falgout, supra citing Landreneau, supra.

      . Falgout, supra, citing Jackson, supra.


author: |;,JAMES L. CANNELLA, Judge.

text:
    URBAN PROPERTY COMPANY OF LOUISIANA, L.L.C. v. PIONEER CREDIT COMPANY.
    No. 03-CA-38.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Irl R. Silverstein, Gretna, LA, for Appellant.

      Kenneth E. Pickering, Pickering & Co-togno, New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   |;,JAMES L. CANNELLA, Judge.

In this suit for wrongful cancellation of a mortgage, both Plaintiff, Urban Property Company of Louisiana, L.L.C. (Urban), and Defendant, Pioneer Credit Company (Pioneer), appeal from the trial court judgment which awards Urban $6,000. For the reasons which follow, we vacate the trial court judgment, find that the suit fails to state a cause of action, grant Plaintiff 30 days to amend, and remand.

The events giving rise to this controversy began in 1995, when Edward Joseph and his wife, Audrey Charles Joseph, executed a promissory note (the Joseph note) in the amount of $15,910.54, in favor of Academy Mortgage Company, L.L.C. (Academy). The Joseph note was secured by a second mortgage on property located at 6129 Adam Drive in Marrero. Testimony at trial indicated that the first mortgage on the property was for about $6,000 and the property had an approximate value at the time of trial of $60,000 to $65,000. In 1996, Academy sold several of its notes, including the Joseph note, to Urban. The original Joseph note was in the possession of Urban since it was sold to Urban. Thereafter, in a Buy-Sell Agreement dated February 12, 1997, Academy sold a large number of notes, as well as other company assets (computers) to Pioneer. The Joseph note was not included in the list of notes because it had already been sold to Urban. | ¡¡However, reference to the Joseph note remained in the computers that were also sold to Pioneer. Further, the original Academy file on the Joseph note was in the file boxes that Pioneer took possession of with the sale. Robert Caplan (Caplan), formerly an employee of Academy and now an employee of Urban, testified that the computer files and hard copies were given to Pioneer for the purpose of customer lists only. The Buy-Sell Agreement contained a paragraph that required Pioneer to refer any inquiries it received regarding notes it did not buy to the Seller at the place designated by the Seller. In August of 1998, Pioneer received a fax inquiry, called a verification of mortgage (YOM), from Prestige Mortgage Service, Inc. (Prestige) concerning the Joseph note and mortgage. Upon receiving the VOM, Herbert Baker (Baker), an employee of Pioneer, checked his computer records, which contained the notation “paid out” dated at or about the time that the note was sold to Urban. The computer records did not, however, indicate that the Joseph note had been sold or assigned. Baker then located the hard copy file which was likewise marked with the notation, “paid.” The file contained a copy of the Joseph note which was also marked “paid.” Baker could not find the original copy of the Joseph note. At that point, on February 9, 1999, Baker executed an Affidavit of Lost Note to Cancel Mortgage which had been sent to Pioneer by Prestige. Baker did not check to see whether the Joseph note was one that had been sold to Pioneer.

The affidavit described the Joseph note and mortgage. It also provided as follows:

Affiant further deposed that he (or the corporation the he represents) was the last holder in due course of said note and that said note is lost and cannot be located by affiant after due and diligent search for same.
Affiant did further depose that on the 1st day of July, 1996, makers of said note, or their agents, did pay said note and mortgage in full, and that nothing remains due on same and that affiant does hereby authorize the Recorder of Mortgages for Jefferson Parish to cancel the | inscription of that mortgage above described and recorded in MOB 3716, Folio 361.
The affiant has not sold, transferred, or assigned the note to any other person or entity. Affiant does hereby agree to indemnify any person or entity as a consequence of canceling the aforesaid mortgage or vendor’s lien pursuant to this affidavit which is executed under the provisions of Louisiana R.S. 9:5168.

Baker then sent the affidavit to the mortgage office. Caplan testified that in December of 2000, the Josephs defaulted on their note. When Urban looked into pursuing foreclosure proceedings, they discovered that the mortgage securing their note had been cancelled by a lost note affidavit executed by Pioneer through employee, Baker. Urban filed suit against Pioneer seeking damages for the loss of their security.

Urban’s theory of recovery, as evidenced from its petition and the evidence presented at trial, was that it was entitled to be paid by Pioneer the amount of the outstanding balance on the note, $12,405.03, plus accrued interest and attorney fees, solely on the basis that the mortgage had been erroneously cancelled. Urban neither alleged nor proved that it suffered damages as a result of the mortgage cancellation. Absent damages suffered, we find no cause of action stated in Plaintiffs suit.

Pioneer’s defense was that it had not been negligent since the computer file and the hard copy file left in its possession indicated that the note had been “paid.” Pioneer overlooked the statutory requirements of La. R.S. 9:5168 as well as the erroneous statements that Baker made in the lost note affidavit.

The trial court erred by finding that “since all parties maintained inappropriate ledgers and records” he would award Urban one-half of what it was asking for, or $6,000, rather than resolving the legal issues presented in the case. Then, both parties appealed.

| KUrban argues on appeal that the trial court erred in not finding Pioneer liable for the erroneous execution of the lost note affidavit. Pioneer argues that the trial court erred in awarding Urban any damages because they did not allege or prove any damages. We find merit in both arguments.

La. R.S. 9:5168, upon which liability in this case is based, provides:

A. When a promissory note secured by a mortgage or vendor’s privilege on immovable property has been lost or destroyed, the maker of such note or any other interested party may prove its payment by presentation of the sworn affidavit of the last holder of the promissory note specifically attesting to and testifying as to the truth of all of the-allegations required by this Section.
B. The affidavit from the last holder of the promissory note which is secured by the mortgage or vendor’s privilege shall set forth all of the following:
(1) A description of the promissory note and the encumbered immovable property.
(2) That the affiant is the last holder of the promissory note.
(3) That the note has been lost or cannot be presented.
(4) That the note is paid, forgiven, or otherwise satisfied.
(5) That the affiant authorizes the clerk of court and ex officio recorder of mortgages to cancel the inscription of the mortgage or vendor’s privilege.
(6) That the affiant has not sold, transferred, or assigned the note to any other person or entity.
(7) That the affiant agrees to indemnify any person or entity for any damages resulting to such person or entity as a consequence of the cancellation of the inscription of the mortgage or vendor’s privilege which secured the note upon presentation of the affidavit.
C. An affidavit executed according to the provisions of this Section may be substituted for the original note in conjunction with R.S. 9:5167. No mandamus proceeding is required to use the provisions of this Section. Neither the clerk of court and ex officio recorder of mortgages nor his surety on his official bond | fishall have any liability for any damages resulting to any person or entity as a consequence of canceling the inscription of a mortgage or vendor’s privilege pursuant to an affidavit which complies with this Section.
D. The clerk of court and ex officio recorder of mortgages shall not refuse to accept an affidavit which complies with this Section and shall not require the filing of a mandamus proceeding as a condition of canceling the inscription of a mortgage or vendor’s privilege. (Emphasis added.)

The statute clearly provides that the affiant of a lost note affidavit is liable for “any damages resulting” from the wrongful cancellation of a mortgage based on the affidavit. In this case, although Baker, on behalf of Pioneer, attested to being the last holder of the note, the facts indicate that it was not and a review of the list of notes acquired by Pioneer from Academy would have revealed that. In fact, the note was held by Urban. It had not been paid and the mortgage inscription should not have been cancelled. As the affiant of the lost note affidavit, under La. R.S. 9:5168, Pioneer is hable to Urban for “any damages resulting” as a consequence of the cancellation. But damages are an essential element of the cause of action under the statute. The problem in this case is that, based on the allegations in the petition, and the expansion of those allegations by testimony at trial, Urban has not yet suffered any actual damages. While its mortgage was cancelled by mistake, there is no allegation or showing of damage as a result.

As pointed out by Pioneer, for example, there has been no allegation or showing that the mortgage cannot be reinscribed or that Urban’s security is compromised. Urban has not secured a ranking judgment. There has been no allegation or proof that the Joseph’s cannot pay the note and it is only in the event of nonpayment that the compromised security would possibly result in a loss or as damages to Urban. Urban has not brought suit on the note against the Josephs, 17obtained a judgment, attempted foreclosure, or secured a deficiency judgment. Prior to sustaining damages, Urban has no cause of action against Pioneer and its lawsuit seeking damages solely for the mortgage cancellation was pre-mature.

La. C.C.P. art. 927(B) provides that the court of appeal may take notice of a party’s failure to disclose a cause of action on its own motion. It is so noted.

Accordingly, we vacate the trial court judgment and find that Urban’s suit against Pioneer, absent any allegations or showing that damages have been sustained, fails to state a cause of action. Urban is granted 30 days from finality of this decision to amend its petition, if possible, to state a cause of action or have the case dismissed without prejudice. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of appeal are to be shared by the parties.

JUDGMENT VACATED; CASE REMANDED.

      . Although there are no original documents filed in the record evidencing any other mortgages on the subject property, Exhibit P-3 which purports to be a mortgage certificate, filed for the purpose of showing the absence of the mortgage securing the Joseph note, shows that another mortgage was placed on the subject property on August 31, 1998, prior to the filing of the lost note affidavit, securing a debt of the Josephs’ in the amount of $54,000, in favor of Option One Mortgage Corporation.


author: laBOL GOTHARD, Judge.

text:
    THE SPORTSMAN’S COVE, INC. v. THE BRUNSWICK CORPORATION and Travis Boating Center Louisiana, Inc.
    No. 03-CA-6.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Jason Lyons, Houma, LA, for Plaintiff/Appellant, The Sportsman’s Cove, Inc.
    C.G. Norwood, Jr., Craig L. Caesar, Anne D. Lejeune, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellee, The Brunswick Corporation.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   laBOL GOTHARD, Judge.

Plaintiff, The Sportsman’s Cove, Inc., (Sportsman’s) appeals a ruling of the trial court in favor of defendant, The Brunswick Corporation (Brunswick), which granted a defense motion of no right of action regarding plaintiffs Unfair Trade Practices Claim under LSA-R.S. 51:1401 et seq. The judgment denies other exceptions of no cause and no right of action filed by defendant, Sportsman’s, as well as those filed by remaining defendants, Travis Boating Center, Louisiana, Inc., (Travis) and Travis Boats & Motors, Inc. The trial court certified the judgment immediately appealable pursuant to LSA-C.C.P. art. 1915.

The petition contained in the record alleges that Sportsman’s is a marine dealer in the business of selling and servicing boats, motors and related marine products. Sportsman’s entered into an agreement with Brunswick to market Mercury marine outboard motors. The agreement was renewed annually for several years. The petition further alleges that in 1997, Brunswick approached Sportsman’s and offered incentive plans if Sportsman’s would shift its advertising and retail focus to promote Brunswick’s products over that of its competitors. The business relationship went sour when Sportsman’s discovered that Brunswick also entered into an agreement with Travis that provided a more lucrative incentive package. Sportsman’s filed this action against Brunswick and Travis, asserting |¡¡several causes of action, including restraint of trade, attempted monopolization and discriminatory pricing. In a supplemental and amending petition, Sportsman’s asserted a cause of action pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPCPL) embodied in to LSA-R.S. 51:1405 et seq.

Brunswick filed peremptory exceptions of no right/no cause of action to all claims. Subsequently, the other two defendants also filed similar exceptions. After a hearing on the matter, the trial court granted the exception of no right of action pursuant to the unfair trade practices allegation as it relates to Brunswick, but denied the other exceptions. Plaintiff appeals the grant of the exception of no right of action to the unfair trade practices claim against Brunswick.

Before us now is the question of whether plaintiff has standing to assert a claim under the Louisiana Unfair Trade Practices and Consumer Protection Law embodied in to LSA-R.S. 51:1405 et seq. The trial court, following National Gypsum Co. v. Ace Wholesale, 98-1196 (La.App. 5 Cir. 6/1/99), 738 So.2d 128, found that plaintiff did not have a right of action under the LUTPCPL, and granted defendant’s exception of no right of action.

This Court in National Gypsum, held that the personal right of action under the LUTPCPL is restricted to direct consumers or business competitors. National Gypsum, a case that is directly on point, concerned the complaint of a business against its distributor. Plaintiff admits it is not a direct consumer or a business competitor. Plaintiff also acknowledges that under National Gypsum it would not have a right of action. Plaintiff urges this court to overrule National Gypsum and declare a private right of action for all under the statute. Plaintiff argues that the wording of the statute should not be interpreted to restrict the right to sue for unfair trade practices as it was in National Gypsum. We have reviewed National Gypsum and the reasoning therein and find that it was correctly decided. Consequently, we reaffirm the holding and refuse to overrule it.

|4We find that the plaintiff in the mstant suit is neither a direct consumer nor a business competitor of Brunswick and does not have a right of action under the LUTPCPL for reasons detailed in National Gypsum Co. v. ACE Wholesale, Inc. supra. Accordingly, we affirm the trial court’s judgment and remand the matter to the trial court for further proceedings.

AFFIRMED AND REMANDED.


author: I ¡¡SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Lenny LANDRY.
    No. 02-KA-1242.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, District Attorney, Thomas J. Butler, Terry M. Boudreaux, Cameron M. Mary, Assistant District Attorneys, Parish of Jeferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   I ¡¡SOL GOTHARD, Judge.

In the appeal of this criminal matter defendant, Lenny Landry, asserts that his guilty plea was not knowingly and intelligently entered. He maintains he mistakenly entered a plea of guilty under North Carolina v. Alford , while his intent was to enter the plea under State v. Crosby , thereby preserving his right to appeal.

The record shows that defendant was charged by bill of information with possession with intent to distribute diazepam in violation of LSA-R.S. 40:969(A). He was arraigned and pled not guilty. Subsequently, that plea was withdrawn and a plea of guilty pursuant to North Carolina v. Alford was entered. Defendant waived delays and was sentenced on the same day to imprisonment at hard labor for fifteen years. The State filed a multiple offender bill of information alleging that defendant was a second felony offender. Defendant stipulated to the charge in the multiple offender bill and was adjudicated a multiple offender. The court vacated the original sentence and imposed a sentence of fifteen years at hard labor.

Defendant filed a pro se motion for out-of-time appeal that was denied by the trial court. Defendant then filed an application for post-conviction relief seeking to reinstate his right to appeal, which was granted.

lain brief to this Court, defendant argues his guilty plea was not knowingly and intelligently entered because he thought he was entering the plea under State v. Crosby, thereby preserving a pre-plea error for appeal. Defendant does not specify the pre-plea ruling in which the error occurred.

The record shows that, on September 4, 2001, defendant withdrew his plea of not guilty and entered a plea of guilty under North Carolina v. Alford. During the Boykin colloquy, defendant testified that he was 24 years old, had completed the eleventh grade, could read and write English, and that he had reviewed the waiver of rights form with his attorney. He testified that the crime occurred on April 9, 2000, that he understood the maximum penalty that could be imposed was 30 years at hard labor, and that if he was convicted of another crime within ten years of the expiration of the sentence for this conviction, he could be adjudicated as a multiple offender. Defendant further stated that this plea was his decision, and that no one had forced or threatened him or a member of his family in order to enter this plea.

Defendant further testified his counsel advised him that, in the event the court accepted his guilty plea, the State would file a multiple bill alleging him to be a second felony offender. Defendant also stated that he understood that if he would plead guilty to that multiple bill, the court would sentence him to fifteen years as a second offender. Defendant stated that he understood he was waiving his right to a jury trial, his right to confront his accusers, and his right to compel testimony from his witnesses.

The following exchange then occurred:

THE COURT:
If you were to go on trial and in the event of a conviction, you would have the right to an appeal. If you could not afford an attorney to represent you on appeal, one would be appointed to represent you. 14Po you understand that by entering this plea, you’re waiving or giving up your rights to an appeal?
DEFENDANT:
Yes, ma’am.
THE COURT:
If the Court accepts your guilty plea, you do not have the right to assert any allegations of defect, such as an illegal arrest, an illegal search and seizure, an illegal confession or lineup, and the fact that the State might not be able to prove this charge or that a jury would find you not guilty. Do you understand that by entering this plea, you’re waiving or giving up these rights?
DEFENDANT:
Yes, ma’am.
THE COURT:
Do you understand that by entering this plea you’re telling this Court that you have, in fact, committed this crime? Excuse me. That’s not correct. That’s not the case.
MR. ARCHER: [Defendant’s attorney]
Judge, I think in Alford v. North Carolina [North Carolina v. Alford] he’s acknowledging that this is a guilty plea; it has all the ramifications of a conviction.
THE COURT:
Right.
MR. ARCHER:
However, he’s entering a plea because it’s in his best interest.
THE COURT:
Right. So just omit that question. Strike that question from the Boykin.

Defendant’s attorney stated he was satisfied that his client knowingly, willingly, intelligently, freely, and voluntarily entered the guilty plea. Defendant testified that all of his rights had been explained to him by his attorney and by the trial judge, that he was waiving or giving up those rights, that his act of pleading |Rguilty was a knowing, intelligent, free, and voluntary act on his part, and that he signed the Boykin form.

The trial judge subsequently stated that she was satisfied that the defendant understood the consequences of his guilty plea, that he made a knowing, intelligent, free, and voluntary act of pleading guilty to the crime with which he was charged, and that she accepted the plea. Defendant waived sentencing delays, and the trial judge sentenced defendant to fifteen years at hard labor. The State then filed a multiple bill that alleged defendant is a second felony offender. Defendant stipulated to the multiple bill.

The trial judge asked defendant if he understood that he had a right to a hearing in this matter, that he had the right to call witnesses and to confront his accusers, that he had the right against self-incrimination, that by entering his plea he was giving up or waiving those rights, and that he was stipulating that he was a double offender under LSA-R.S. 15:529.1. Defendant responded affirmatively. The trial judge subsequently accepted the plea and found that defendant was a double offender. Defendant waived sentencing delays, and the trial judge vacated the original sentence and sentenced defendant to fifteen years at hard labor.

The prosecutor subsequently told the trial judge he needed to take a note of evidence from defendant. Defendant testified that he was arrested on April 9, 2000, that Wilma Curse was in the house with him that day, that there were fifty-one tablets of Valium found in the house pursuant to a consent to search, and that the Valium belonged to him. Defendant further testified that, if the State proceeded against Ms. Curse as charged, with possession with intent to distribute, that he would testify on her behalf, and that he would testify that the Valium found in the house belonged to him.

Defendant argues that his guilty plea was not knowingly and intelligently entered. He claims that, although he pled guilty under North Carolina v. Alford, he thought he was pleading guilty under State v. Crosby, which would have reserved his right to appeal pre-plea error. The State responds that the record does not support this claim.

A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632. However, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, supra; State v. King, 99-1348 (La.App. 5 Cir. 5/17/00), 761 So.2d 791, 793, writ denied, 00-1824 (La.6/29/01), 794 So.2d 822.

The “best interest” or Alford plea, which derives from the U.S. Supreme Court case, North Carolina v. Alford, supra, is one in which the defendant pleads guilty while maintaining his innocence. In that case, the United States Supreme Court ruled that a defendant may plead guilty, without foregoing his protestations of innocence, if “the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.” North Carolina v. Alford, supra, 400 U.S. at 31, 91 S.Ct. at 164.

In a case involving a bona fide Alford plea, the record must contain “strong evidence of actual guilt.” North Carolina v. Alford, supra, 400 U.S. at 38, 91 S.Ct. at 167. This Court has held that where a defendant pleads guilty under Alford, “constitutional due process requires that the record contain ‘strong evidence of actual guilt.’” State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745.

|7In the instant case, defense counsel stated on the record during the Boykin colloquy that defendant was pleading guilty under Alford. In fact, when the trial judge asked defendant during the Boykin colloquy whether he was telling the court he had committed the crime, the trial judge stopped, said that was not correct, and struck the question from the Boykin examination. Defense counsel reiterated that defendant was pleading guilty under Alford because it was in his best interest.

Further, during the Boykin colloquy, defendant testified that, by pleading guilty, he understood that he was waiving or giving up his right to an appeal. Also during the Boykin colloquy, defendant testified that he understood that if the court accepted his guilty plea, he would not have the right to assert any allegations of defect, such as an illegal arrest, an illegal search and seizure, an illegal confession or lineup. Defendant also testified that all of his rights had been explained to him by his attorney and by the trial judge, that he was waiving or giving up those rights, that his act of pleading guilty was a knowing, intelligent, free, and voluntary act on his part, that no one had forced him to plead guilty, and that he had signed the Boykin form.

On the waiver of rights form, defendant initialed the paragraph that stated he was pleading guilty under Alford. He initialed the paragraph that stated he understood that by entering a guilty plea, he was giving up his right to an appeal and to an attorney to represent him on appeal. Defendant initialed the paragraph that stated he understood that, if he pled guilty, he was giving up his right to assert any allegations of defect. Defendant signed the waiver of rights form indicating that all of his rights had been explained to him, that he understood he was giving up certain rights, and that his act of pleading guilty was a knowing, intelligent, free, and voluntary act.

Defendant’s attorney signed the waiver of rights form following the paragraph that stated he had explained defendant’s rights to him, including that |sdefendant would only have the right to appeal jurisdictional defects if he pled guilty. Defendant’s attorney also indicated during the Boykin colloquy and in the waiver of rights form that he was satisfied that defendant knowingly, willingly, intelligently, and voluntarily entered the guilty plea knowing the consequences.

The record does not support defendant’s contention that he believed he was pleading guilty under Crosby. Crosby was never mentioned either during the Boykin colloquy or in the waiver of rights form. Defendant never stated during the Boykin colloquy or in the waiver of rights form that he wanted to preserve his right to appeal a specific adverse ruling of the court. Finally, defendant does not state in his brief the specific adverse ruling he claims he intended to preserve for appeal; and, the record does not reflect that there was an adverse ruling for defendant to appeal. Therefore, a plea under Crosby would have been useless, as was noted by the State in its brief. Based on the foregoing, we find that defendant’s assignment of error is without merit. Accordingly, we affirm the criminal adjudication and sentence.

Upon review of the record for errors patent, we find that the trial court did not indicate to defendant when the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8 began to run. Accordingly, we remand the matter to the trial court with an order to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to him within ten days of the rendition of this Court’s opinion, and to file written proof that defendant received the notice in the record. See, State v. Gibson, 97-1203 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276, 1281.

AFFIRMED AND REMANDED.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . State v. Crosby, 338 So.2d 584 (La.1976).

        . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).