author: MARION F. EDWARDS, Judge.

text:
    Roslyn IRSCH v. ARGONAUT GREAT CENTRAL INSURANCE COMPANY and Harbor Seafood and Oyster Bar, Inc.
    No. 02-CA-988.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Eric J. Halverson, Jr., Metairie, LA, for Appellants.
    Leonard J. Cline, Thomas G. Robbins, Metairie, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

Defendants/appellants Harbor Seafood and Oyster Bar (Harbor), and its insurer Argonaut Great Central Insurance Company (Argonaut), appeal a judgment of the district court in favor of plaintiff/appellee Roslyn Irsch. For the reasons to follow, we amend and affirm.

Mrs. Irsch filed suit for injuries suffered when she fell near the front entrance of Harbor. She alleged in her petition that as she walked to the restaurant a number of chairs placed in a parking space obstructed her view of a bumper guard and presented a tripping hazard, which precipitated her fall. In its answer, Harbor requested a jury trial. On the morning of trial, Mrs. Irsch moved to strike the jury, stipulating that her injuries were worth less than $50,000.00. Harbor objected, arguing that a settlement demand of $125,000 had recently been made. The court granted the motion, and Harbor took writs to this court, which writs were denied.

| ¡¡The trial proceeded, and at its conclusion, the court granted judgment in favor of Mrs. Irsch and against Harbor and Argonaut in the amount of $36,500.00 for general damages, and $11,967.02 for past medicals, for a total of $48,467.02. It is from this judgment that Harbor and Argonaut appeal.

In its Reasons for Judgment, the court determined that the evidence and testimony established that Harbor commonly used the portion of the parking lot where Mrs. Irsch fell as a seating area for its patrons. Eight to ten plastic chairs, placed in the far right parking aisle just in front of the entrance, were in front of the yellow concrete bumper guard, and some were behind it. Although Harbor claimed Mrs. Irsch was legally blind and had other physical limitations that restricted her ability to walk without assistance, the court reviewed the evidence presented at trial and concluded that she could adequately see large objects which were in close proximity. The court then reviewed the testimony of expert witnesses presented by both parties and concluded that the placement of the chairs presented an unreasonable risk of harm, and that no person walking through an area in which chairs for seating have been placed should reasonably expect to encounter a large immovable obstruction at just above ground level. An even greater hazard existed when chairs were placed in front of that obstruction. The court found that customers had most likely inadvertently moved the chairs from their proper U-shaped arrangement. Photographs suggested that the area was clearly intended to be a means of ingress and egress, and failure to remove the bumper guard created an unreasonable risk of harm. It was determined that the accident was foreseeable.

At trial, Mrs. Irsch testified that in 1998, she fell, tearing her left kneecap and breaking a bone in her right leg. Dr. Parnell placed metal clamps holding her knee together and a plate in her right leg. After this, her progress was “awesome”, and she had no problems walking after that. On the date of this accident, she did |4not need any assistance. She had also had a problem with her eyes, in that sometimes she saw well and other times did not, and sometimes saw better out of one eye than the other. Her doctor had given her a laser treatment in the September preceding the accident in question, which worked. She could shop, walk her grandson to school, watch television and read large print. When the present accident occurred, she had gotten out of the car and began walking through the seating area to the restaurant with Dylon. Dylon went through one white chair and she went through the other, and when they were four or five feet into the middle of the walkway, the hostess told them to put in their name. She told Dylon to go ahead and give the hostess their name, and then instead of waiting for her daughter, she decided to also go on in. The next thing she remembered was going past the chairs and hitting her right foot very hard on an obstruction. The chairs were up against the bumper, which her foot hit, causing her to fall. There were four chairs on the front, or Williams Boulevard side, of the guard. She did not see the bumper guard before she fell, not did she expect it to be there, because she had just walked through some chairs with no obstructions. When she had gone there previously, there was a bench where people waited, but no chairs. She had always entered the place before from the back. In the accident she injured her hip. The hostess saw her fall, and came to help her. Eventually she was taken away by - ambulance. She often walked holding hands with her daughter, as “a loving thing.” None of her doctors told her she should not walk unless she had assistance.

Mrs. Irsch’s daughter, Karen Schillace, testified that for thirty days prior to the accident, her mother’s eyesight was “doing very well.” She could see characters on cards, large writing, television and movies. On the day of the accident, Ms. Schillace and. Mrs. Irsch, who lived together, had gone shopping, at which time Mrs. Irsch walked around without assistance. Once or twice a week Mrs. Irsch walked her grandson Dylon six blocks to school, then walked home | Bunassisted. After a fall in 1996, Mrs. Irsch fractured her tibia, but eventually was able to walk, although she could not bend her knees totally. After another fall in 1998, metal screws placed in her knee appeared to make her leg stronger, and she could walk and bend her knees normally, including walking up and down stairs.

On the day of the accident, Mrs. Irsch, Ms. Schillace, and Dylon went to Harbor for lunch. Ms. Schillace left her mother and Dylon in front of Harbor while she parked the car in the back lot, since the parking spaces in front were full. When she walked around, she saw her mother on the ground, but did not see her fall. There were four to six chairs out in front of the bumper guard, extending from one end to the other. There were also other chairs out in the area. Mrs. Irsch related that she had tripped over the bumper and fallen. She had broken her hip and was transported to Charity Hospital, by ambulance.

On cross-examination, Ms. Schillace stated that when she saw her mother on the ground, the restaurant hostess was tending to her. She had been to the restaurant several times in the past, but had never before seen the chairs configured in the front. There was no car parked in front of the bumper guard where her mother fell. One could have approached the front entrance from the right hand side of the bumper guard, but Mrs. Irsch would have had to go backwards to go around, walking in essentially a half circle. Further, she stated that prior to the accident in question, she had escorted her mother to her doctor’s appointments, holding her hand and steering her.

Dylon, who was ten years old on the date of the accident, and twelve years old at the time of trial, testified that Ms. Schil-lace let him and his grandmother out in front of the restaurant, and they went on through the chairs until at about the middle of the way, the hostess leaned out and told them to put their name in. Dylon had his back to his grandmother, and the hostess went in to get a pen. When she returned, she ran out with a scared look and Dylon turned around to see that [ r,Mrs. Irsch had fallen over the parking bumper. He did not actually see her fall, and she did not tell him what had happened. There were about twelve chairs in front of the .restaurant, located.in the first parking spot. He himself tripped over the bumper, but caught himself. After the accident, the chairs were moved around. Mrs. Irsch had not had trouble walking prior to this, and had walked him to school and gone shopping without difficulty. There was no space where someone could walk between the side of a parked car and the chairs. There were more chairs, which were more jumbled up, on the day of the accident then there were in the photographs admitted at trial.

Victor Bedikian was qualified as an expert architect with emphasis on building standards and codes. He inspected the Harbor premises, and viewed various photographs. Assuming the scene to be as described by Ms. Schillace, the witness concluded that several code violations occurred and several standards were violated. The Life Safety Code governs Louisiana in this regard, and states there should be no obstructions in the path of travel, for egress or ingress. According to the evidence and to his inspection, the area of the concrete bumper, when used as an overflow seating area, changes the use of the area, and the five-inch high bumper guard became an obstruction, serving no useful purpose. The chairs were also obstructions, and the fire marshal has the right to have chairs removed in order to make the most direct path of travel free from obstruction. The most direct route into Harbor was through the chairs. People walk the most direct route, and the code holds the path of egress is the most direct route. Harbor eliminated the most direct passage to the street right of way, and the chairs should have been placed with a gap down the middle to allow clear passage. If this area were going to be used on a permanent basis as a seating area, the bumper guard should have been removed. The bumper guard located in an area used as a seating area was a violation of the Life Safety Code. The National Safety Code states that bumper |7stops are to be placed only in parking lanes of parking facilities. This is so because the guards present a tripping hazard. The location of the guard also violates the Americans with Disabilities Act, which mandates that buildings shall be made safe for the handicapped, including senior citizens whose senses may have been diminished by age. The expected norm is that the path of travel would not have an obstruction such as a bumper guard, and the most plausible reason Mrs. Irsch did not see it is because she did not expect it to be there.

On cross-examination, Mr. Bedikian stated that if Mrs. Irsch had been let off in a position such that she .had a straight approach to the restaurant, and the chairs were to the right of the bumper, he would assume that she would have made for the gap. Even if the chairs were to the side, a bumper guard in a space that is used for seating is a hazard.

Chester George, manger of the Fisherman’s Cove, which is part of Harbor and next door, testified that on the day of the accident he was working .at Harbor as an oyster shucker, and heard that someone fell. When he went to assist Mrs. Irsch, she told him that she had fallen and was not supposed to walk without assistance or without her knee stabilizer. When Ms. Schillace arrived, she also commented that her mother was not supposed to walk by herself. He did not remember seeing chairs in the vicinity of the parking space, but did not think there were any. Chairs were put out at busy times, and occasionally, customers moved them around. The hostess was supposed to reconfigure the arrangement, and the proper form was a U-shape set inside the yellow lines of one parking space. The. chairs do not go up against the bumper. No one has ever fallen in this lot before.

Mona Carter testified that on the day of the accident, she was sitting in her car in the parking lot, in the space next to where the chairs were placed, waiting for her sister to pick up their order from Harbor. A car pulled up and a lady and child got out. The lady was unstable, and walked past her side of the car, passing the | ¡¡bumper. Ms. Carter was certain that Ms. Irsch walked between the bumpers and did not stumble or stagger, but rather collapsed. She did not remember if there were chairs in front of the bumper guard, but knew that Mrs. Irsch was past the chairs when she fell on the ramp.

Shelly Melgar was employed at Harbor as a manager at the time of the accident. Usually, on weekends the first parking space is blocked off by chairs set in a horseshoe shape, with the open end of the configuration toward the restaurant entrance. She did not remember any chairs in the vicinity where Mrs. Irsch fell. Customers change the arrangement of chairs when they sit in them. Mrs. Irsch told her after the accident that she had tripped over the bumper guard and said “I know better than to walk unattended. I only have seventy percent vision.” She told the witness that she could only see her outline, not her face. When Mrs. Schillace arrived, Ms. Melgar asked her to sign a statement or accident report indicating that she had tripped over the guard. Ms. Carter also volunteered to give a written statement.

Mr. Joseph Lafranca, a forensic engineer, was qualified as an expert in the field of construction. He testified that placing chairs in the parking space did not violate the Life Safety Code, because it is related to fires and deals with exiting, not entering, a building. The Southern Building Code is required for construction in Ken-ner. Looking at the photographs admitted into evidence, Mr. Lafranca did not find any violations. There was egress from the building parallel to the building with the walkway, as well as egress perpendicular to Williams Boulevard between the last parking place and the edge of the building. The codes that Mr. Bedikian discussed referred to buildings, not parking lots. If the chairs were in the direct path of someone walking, it made sense that they would first hit the chair before hitting the bumper. It was Mr. Lafranca’s opinion that if Harbor put chairs out and allowed people to sit in a parking spot, this would not be changing the use from a 19parking space to a seating area. If there were chairs by the bumper guard, the guard was no more of an obstruction than if one were traversing the area as just a parking lot.

The deposition of Dr. Catherine Fitz-morris was entered into evidence. Dr. Fitzmorris is also an ophthalmologist who treated Mrs. Irsch beginning in January 1999. According to Dr. Fitzmorris, Mrs. Irsch’s vision without glasses was 20/400, and with glasses it was 20/200. This translated to an 80% loss of vision, and this would require walking with some assistance. However, she has had patients with this same vision who drive and have never had a wreck, and some people can walk without problems. The doctor diagnosed diabetic retinopathy and referred her to a retinal specialist, Dr. Saer. Dr. Fitzmorris felt that Mrs. Irsch was not capable of judging how much she could see.

Dr. John Saer, an ophthalmologist, testified that he first treated Mrs. Irsch in January 1999 for severe diabetic macular edema and proliferative diabetic retinopa-thy in both eyes. When he first began to treat her, she had twenty two hundred vision in her right eye, and counting fingers at twelve feet in her right eye. Dr. Saer agreed that such a patient could get around or walk reasonably well. He deferred to Dr. Fitzmorris’s, Mrs. Irsch’s treating ophthalmologist, opinion on her visual loss, and did not measure her visual field. Rather, measurements were made in his office by his technician. Vision measurements changed during the course of treatment, and Dr. Saer did not know her range of vision at the time of the accident, in November 1999. Throughout the course of treatment, Dr. Saer treated her with lasers to stabilize the retinas. He continued to treat her and on September 16, 1999, she complained that her vision had worsened. It was possible that laser surgery that was done at that time could have improved her eyesight. He did not dispute Mrs. Irsch’s statement that she could get around reasonably well.

|inDr. Gerardo Aristimuno, an internist, testified via deposition that he first treated Mrs. Irsch in January, 1999. Mrs. Irsch had a longstanding history of diabetes and because her vision had deteriorated, Dr. Aristimuno referred her to Dr. Fitzmorris. In November 1999 she returned to him complaining of blurred vision. She was walking but had difficulty in her vision, and her daughter was helping her. The doctor felt that Mrs. Irsch was legally blind and did not think she could have seen the bumper guard.

Also testifying by deposition was Dr. Melvin Parnell, an orthopedic surgeon. He first treated Mrs. Irsch after her 1998 fall. At that time, he operated on her, using a plate and screws to repair a fracture in her right leg, and on her kneecap he used pins and wire. She also had osteoporosis. Her last visit to him was in March 1999, at which time she was not walking much. Dr. Parnell advised her to walk as tolerated, and if she decided to, she could eventually have walked through a shopping center. However, he did not have any knowledge of her condition or ability to walk eight months after last seeing her.

On appeal, Harbor alleges that the trial court erred in denying it a jury trial, which it had requested. On the morning of trial, Mrs. Irsch’s counsel stipulated that her injuries were not valued in excess of the $50,000.00 jurisdictional limit, and requested that the court strike the jury trial requested by Harbor. The court granted the motion over Harbor’s objection. Harbor applied to this court for supervisory writs, and the application was denied. This argument was fully briefed in the writ application.

It is well settled that procedural maneuvers designed solely to deprive litigants of their right to a jury trial based on jurisdictional amounts are |n disfavored. Our Supreme Court has held that under La. C.C.P. art. 1732, the focus is not on the amount of the plaintiffs overall claim arising out of the transaction or occurrence, but on the value of the plaintiffs cause of action against the defendant or defendants who are before the court at the time the right to a jury trial is litigated. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties are binding on the trial court when not in derogation of law. By her stipulation, the value of Mrs. Irsch’s claim did not exceed the applicable jurisdictional limit at the time the trial was litigated. The stipulation was made just prior to trial, after extensive discovery was had and Mrs. Irsch could have reasonably evaluated her claim. Under these circumstances, we cannot say the trial judge erred in striking the jury.

Harbor also asserts that it was error for the court to find that the placement of chairs in the parking space constituted an unreasonable risk of harm. In brief, Harbor appears to argue that the trial court erred in relying on the testimony of Mr. Bedikian rather than that of Mr. Lafranca. While the court specifically disagreed with Mr. Lafranca’s opinion that the placement of the chairs did not constitute an unreasonable risk of harm, it did not express a preference for Mr. Bediki-an’s opinion. Nevertheless, it was well within the discretion of the trial court to grant to Mr. Lafranca’s opinion whatever weight it chose to accord.

The trier of fact is not bound by expert testimony; rather, expert testimony must be weighed just as any other evidence. The weight to be accorded to the testimony of experts depends largely on their qualifications and the facts on which they base their opinions. The trial court may evaluate expert testimony by the same principles as apply to other witnesses; it has great discretion to accept or reject medical or lay opinion.

haBased on the record, we find no abuse of that discretion.

Harbors urges that the safety codes discussed by Mr. Bedikian relate to fire safety and egress in an emergency situation, rather than ingress, and thus were inapplicable to the present case. However, there is no indication that the court relied on those codes to determine that the placement of chairs constituted an unreasonable risk of harm.

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. This duty is the same under both the strict liability theory of La. C.C. art. 2817 and the negligence liability theory of La. C.C. art. 2315. Under both theories, the absence of an unreasonably dangerous condition of the thing implies an absence of a duty on the part of the defendant.

Because a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference and we therefore hold that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. A reviewing court may only disturb the lower court’s holding upon a finding that the trier of fact was clearly wrong or manifestly erroneous. In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance thé gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put: The trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. W. PAGE KEETON ET AL„ PROSSER AND KEETON ON THE LAW OF TORTS §§ 31 (5th ed.1984). The reviewing court must then evaluate the fact finder’s determination under the manifest error standard of review.

In the present case, the court held as follows:

As a result of [the chairs’] placement in the parking space, it was not possible for the plaintiff to see the bumper guard when she walked toward the restaurant’s entrance ... No person walking |13through an area in which chairs for seating have been placed should reasonably expect to encounter a large immovable obstruction at just above ground level. An even greater hazard existed when chairs were placed in front of that obstruction.

On review, we find no manifest error in this determination. The testimony of Mrs. Irsch, Mrs. Schillace, and Dylon was that there were at least four chairs placed in front of the bumper guard, and Dylon added that he tripped over the bumper but was able to catch himself. Mrs. Irsch did not expect them to be there since she had just walked through other chairs without .obstruction. The location of the chair arrangement was directly in front of the entrance to Harbor, and there was a ramp leading into the building located directly behind the bumper. The situation could have easily been remedied by removing the guard. We affirm the finding that the arrangement presented an unreasonable and foreseeable risk of harm.

Harbor also urges that the court erred in failing to apply the criteria of La. R.S. 9:2800.6. Under the circumstances presented here, we find the better analysis is under the negligence statutes. However, even if R.S. 9:2800.6 is applied, the burden of proof is similar, requiring findings of an unreasonable risk of harm, prior knowledge, and failure to exercise reasonable care. An added component requires the claimant to prove that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition. The requirements were met in the instant case. Restaurant personnel testified that the chairs were regularly placed there on weekends to accommodate overflow crowds and free interior space, and they were generally arranged in a horseshoe shape. They were aware that customers moved them around when they |usit in them, and that it was the duty of the hostess to re-configure the chairs. Mrs. Irsch and Dylon testified that the hostess, who did not appear at trial, was at the front door. A reasonably prudent restaurant employee should have observed the misalignment of the chairs and the danger they imposed. Under either analysis, Mrs. Irsch carried her burden of proof.

Harbor avers that the court erred in failing to assign comparative negligence to Mrs. Irsch, contending that difficulty in walking and poor eyesight caused or contributed to the accident. The court found that although Mrs. Irsch suffered some visual impairment, her vision was not so impaired that she would not have been able to see the bumper had it not been obstructed by the chairs.

The appellate courts determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). In Watson, we said “various factors may influence the degree of fault assigned, including:
(1) [Wjhether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.”

The court found that it was the placement of the chairs, not Mrs. Irsch’s eyesight, which caused the accident. In so doing, the court apparently placed a great deal of weight on the testimony of Mrs. Irsch and her family relative to her abilities and we find no abuse in the exercise of the court’s discretion. Vis-a-vis the opinions of her doctors, Mrs. Irsch stated that she her vision changed and on some days, she could see well and on others days could not. Applying the above factors to the entire record, we conclude that if Dy-lon, whose eyesight is not questioned, could trip over the concealed guard, it is reasonable to assume that Ms. |15Irsch’s vision did not play a role in causation. Additionally, Harbor urges that Mrs. Irsch needed assistance in walking, and refers to her statements to Mr. George, as well as to the testimony of Ms. Carter, the latter of whom the court found to be “somewhat credible.” However, the court found, after reviewing the evidence, that the medical testimony indicated that Mrs. Irsch had recovered from her prior injuries and that “Orthopedieally, her gait at the time of the accident was normal.” The testimony of Dr. Parnell, as well as that of Mrs. Irsch and her family, supports this conclusion. Again, the determination of the court to accept or reject evidence, and to assess credibility, is an exercise of discretion, and the record discloses no abuse of that discretion.

Harbor urges that the court erred “when transferring the amount awarded plaintiff for pain and suffering from its Reasons for Judgment ($36,-000.00) to the Judgment itself ($36,-500.00).” In this regard we note that appeals are taken from the judgment, not the written reasons for judgment. On appeal, we review judgments and, where the court of appeal believes that the trial court reached the proper result, the judgment will be affirmed. Harbor does not argue that the sum awarded in the judgment was excessive. This assignment of error is without merit.

Finally, Harbor argues that the court failed to recognize the privilege in favor of Medical Center of New Orleans (Charity Hospital) for its medical expenses. Medical Center of New Orleans did not intervene in these proceedings, but the record discloses that it perfected its privilege for such expenses, created in La. R.S. 9:4752, upon notification to Harbor’s counsel, in accordance with R.S. 9:4753. The parties stipulated to the lien in the amount of $11,476.02. Under R.S. 9:4754:

|1fiAny person who, having received notice in accordance with the provisions hereof, pays over any monies subject to the privilege created herein, to any injured person, or to the attorney, heirs, or legal representatives of any injured person, shall be liable to the licensed health care provider, hospital, or ambulance service having such privilege for the amount thereof, not to exceed the net amount paid.

Although R.S. 9:4752 grants a privilege on the judgment, and it has been held that “the judgment is a property right owned by the tort victim-patient, the tort victim-patient is the debtor of the health care provider for purposes of the privilege,” the above statute appears to place liability on Harbor if the medical expenses are paid to Mrs. Irsch. Harbor thus has standing to raise the issue. The hen in favor of Medical Center of New Orleans should have been recognized by the court for the stipulated amount of expenses, and we therefore amend it accordingly.

For the foregoing reasons, the judgment of the trial court is amended to recognize the lien of Medical Center of New Orleans in the amount of $11,476.02. In all other respects, the judgment is affirmed. Harbor is taxed with all costs of this appeal.

AFFIRMED.

      . Pallet v. Louisiana Farm Bureau Cas. Ins. Co., 99-208 La.App. 5 Cir. 7/27/99, 751 So.2d 925, writ denied 99-2877 (La.12/10/99), 751 So.2d 857.

      . Benoit v. Allstate Ins. Co., 2000-0424 (La.11/28/00), 773 So.2d 702.

      . Burse v. Allstate Ins. Co., 00-1895 (La.App. 5 Cir. 3/28/01), 783 So.2d 548

      . Keener v. Mid-Continent Cas., 01-1357 (La.App. 5 Cir. 4/30/02), 817 So.2d 347, writ denied 2002-1498 (La.9/20/02) 825 So.2d 1175.

      . Calcagno v. Kuebel, Fuchs Partnership 01-691 (La.App. 5 Cir. 11/14/01, 802 So.2d 746). 802 So.2d 746; Gray v. DOTD, 00-7 (La.App. 5 Cir. 5/17/00), 761 So.2d 760, writ denied, 00-2369 (La.11/03/00), 773 So.2d 146.

      . Id.

      . Calcagno, supra, citing Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362, 364-365.

      . See e.g. Calcagno, supra.

      . Duncan v. Kansas City Southern Railway Co., 2000-0066 La. 10/30/00, 773 So.2d 670.

      . Mason v. Kansas City Southern Ry. Co., 00-208 (La.App. 5 Cir. 9/26/00), 769 So.2d 1249.

      . Nicholes v. St. Helena Parish Police Jury 604 So.2d 1023, (La.App. 1 Cir.1992).


source: Caselaw Access Project

author: 1CHARLES R. JONES, Judge.

license: Public Domain

text:
    Veronica S. MEDICE v. Timothy P. RUIZ, XYZ Insurance Company and State Farm Insurance Company.
    No. 2002-CA-0894.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2003.
    Writ Denied May 9, 2003.
    Catherine J. Smith, New Orleans, LA, for Plantiff/Appellee.

      Arthur C. Walton, Frederick A. Miller & Associates, Metairie, LA, for Defen-danVAppellant.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   1CHARLES R. JONES, Judge.

The Appellant, State Farm Insurance, appeals the judgment of the district court awarding the Appellee, Veronica Medice, $20,710.80 in damages subject to a credit of $10,000. We reverse in part, amend in part, affirm as amended and vacate in part.

In 1998, Ms. Medice was in an automobile accident wherein she was rear ended by Timothy Ruiz, who was admittedly intoxicated at the time of the accident.

In the Civil District Court for the Parish of Orleans, Ms. Medice filed a Petition for Damages against Mr. Ruiz and his insurer, Allstate Insurance Company, and her insurer, State Farm. State Farm subsequently filed a third party demand and cross claim against Allstate. Prior to trial, Ms. Medice settled her claim with Mr. Ruiz and Allstate for a sum of $10,000, Mr. Ruiz’s policy limitation. State Farm proceeded to trial on the issue of quantum as the sole defendant. The district court cast judgment against State Farm and awarded the following in damages to Ms. Medice:

Medical expenses $ 2,200
Lost wages $ 490.82
Exemplary damages $ 12,500
General Damages $ 6,500
12Total $20,710.80 (subject to the $10,000 credit)

It is from this judgment that State Farm takes this timely appeal.

In its first assignment of error, State Farm contends that the district court erred in failing to enforce the exemplary damage exclusion in the State Farm insurance policy issued to Ms. Medice. State Farm argues that LSA-R.S. 22:1406(D)(l)(a)(i), discussed infra, excludes coverage for exemplary damages by the terms of the policy, and that the policy held by Ms. Medice is unambiguous and specifically excludes exemplary damages. State Farm further contends that this Court should follow the finding in Yonter v. State Farm Mut. Auto. Ins. Co., 01-601 (La.App. 5 Cir. 11/27/01), 802 So.2d 950, wherein the court held that “as a matter of law the State Farm UM (uninsured motorists) policy clearly excludes coverage for punitive/exemplary damages”.

At trial, Ms. Medice argued that although State Farm filed a policy declaration sheet evidencing insurance on behalf of Ms. Medice, State Farm never introduced the policy nor formulated an argument relating to the exclusion of coverage for punitive damages. Ms. Medice further maintained in her brief and in her oral argument to this Court that the record was never supplemented with the insurance policy and that State Farm introduced no evidence of the insurance policy’s exclusions. However, there is no merit to this argument. A review of the record reveals that both the policy declaration page and the policy itself were entered as exhibit D-l.

The judgment of the district court clearly states that $12,500 represents “exemplary damages”. The UM section of the State Farm policy issued to Ms. Medice states that:

| ¡We "will pay nonpunitive damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

Further, the policy states that:

There is no coverage:
3. For punitive or exemplary damages.

LSA-R.S. 22:1406(D)(l)(a)(i), as it applies to uninsured motorist coverage, provides in pertinent part that, “[t]he coverage provided under this Subsection may exclude coverage for punitive or exemplary damages by the terms of the policy or contract”. In accordance with Pike v. National Union Fire Ins. Co., 2000-1235 (La.App. 1 Cir. 6/22/01), 796 So.2d 696, the above-cited language has been held non-violative of public policy, and has been upheld by courts of this State.

The facts in the instant case are parallel to Yonter. Mr. Yonter and Mr. Crawford were in an automobile accident whereby Mr. Crawford was found to be intoxicated. Mr. Yonter settled his claim against Mr. Crawford. Mr. Yonter then filed suit against State Farm, his UM carrier, alleging damages in excess of the $10,000 limits in Mr. Crawford’s liability policy, and exemplary damages pursuant to LSA C.C. art. 2315.4. The district court granted an Exception of No Cause of Action filed by State Farm and Mr. Yonter appealed.

The Fifth Circuit concluded that under the UM exclusion portion of Mr. Yonter’s policy, State Farm clearly states that there was no coverage for punitive Lor exemplary damages and that there was no error in granting the exception of no cause of action. We adopt the analysis of our colleagues in the Fifth Circuit.

In the case at bar, the policy issued to Ms. Mediee is clear and unambiguous, and reads in its terms as the policy issued to Mr. Yonter. Despite the intoxication of Mr. Ruiz at the time of the accident, the court stated it best in Yonter that “as a matter of law the State Farm UM policy clearly excludes coverage for punitive/exemplary damages, the sufficiency, or lack thereof, of the proof of the tortfeasor’s intoxication is not relevant to the correctness of the trial court’s judgment”. Yonter v. State Farm Mut. Auto Ins. Co, 01-601 at p. 5, 802 So.2d at 952.

The district court erred in casting State Farm in judgment for $12,500 in exemplary damages when Ms. Medice’s policy clearly excludes such an award. Further, LSA-R.S. 1406(D)(1)(A)®, as amended in 1997, is not retroactive and applies to the case at bar because the accident took place in 1998. Mr. Ruiz shall be cast with $12,500 in exemplary damages not State Farm, and the judgment of the district court shall be amended as discussed.

State Farm raises a second assignment of error by arguing that the remaining award of $8,210.82 to Ms. Mediee for compensatory damages was well within the policy limits of Mr. Ruiz’s $10,000 policy with Allstate. State Farm argues that as a matter of law, Mr. Ruiz was neither uninsured or underinsured.

The $8,210.82 differential between the total damages sustained by Ms. Mediee and the exemplary damages awarded falls within the amount that Allstate |Bpaid on its and Mr. Ruiz’s behalf. Further, Mr. Ruiz was insured, Ms. Mediee has been fully compensated for her general and special damages and State Farm, as the uninsured/underinsured carrier of Ms. Mediee, is not liable for the $8,210.82.

Decree

For the reasons stated herein, the part of the judgment of the district court awarding Veronica S. Mediee $12,500 in exemplary damages against State Farm is reversed. We amend the judgment to cast Mr. Timothy P. Ruiz with $12,500 in exemplary damages. Further, the remainder of the judgment against State Farm for a total of $8,210.82 is vacated.

REVERSED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED; VACATED IN PART.


author: 2THOMAS F. DALEY, Judge.

text:
    Carol Entrekin, Wife of and Billy ENTREKIN v. Joanne POWELL and Allstate Insurance Company.
    No. 02-CA-1038.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.
    John H. Brooks, Gretna, LA, for Plaintiffs/Appellants.
    Christopher E. Lozes, Lozes, Cambre & Ponder, Mandeville, LA, for Defendants/Appellees.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   2THOMAS F. DALEY, Judge.

Plaintiffs, Carol and Billy Entrekin, appeal the quantum in a damage award in their favor and against Allstate Insurance Company for injuries Mr. Entrekin sustained in a car accident on May 1, 2000, in the parking lot of Tastee Donuts on Bara-taría Boulevard. In a bench trial, the trial judge awarded Mr. Entrekin $9,500.00 in damages and Mrs. Entrekin $1,000.00 for loss of consortium. The Entrekins appeal, arguing that the awards were inadequate.

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. Youn v. Mari time Overseas Corp., 623 So.2d 1257 (La.1993).

The plaintiff argues that the trial court’s award of $9,500.00 was grossly inadequate because he will experience neck pain and headaches related to this accident for the rest of his life, according to Dr. Ribando.

The record shows that Billy Entrekin was 76 years old at the time of the accident, which occurred in a parking lot. Jeanne Powell backed into Entrekin’s vehicle. Mr. Entrekin testified that he immediately had muscle spasms, cervical [ spain, and headaches that were severe. Dr. Russell Ribando, plaintiffs physician of some 30 years, treated Mr. Entrekin for this accident. Dr. Ribando testified that Mr. Entrekin had a pre-existing, though nonsymptomatic, arthritic development that was made symptomatic by this accident. Dr. Ribando felt that Mr. Entrekin would have some pain for the rest of his life, and though some of this might be related to the normal aging process, Mr. Entrekin had no pain before the accident.

Dr. Ribando first saw Mr. Entrekin on May 8, 2000. He reported severe headaches and muscular pain in his neck.. Dr. Ribando’s notes indicate that he diagnosed cervical spine muscular sprain and headaches, and prescribed analgesics for pain, rest, a heating pad, and recommended weekly visits for follow up. Mr. Entrekin returned on May 15, 22, 29, June 12, 26, July 10, 24, August 28, September 18, October 16, and was discharged on November 13, 2000. Throughout this time Mr. Entrekin treated conservatively with analgesic pain medication, rest, and heat. Improvement is noted in each visit, with July 10 being the last time spasms were noted.

Mr. Entrekin returned to Dr. Ribando on December 18, with a recurrence of the neck pain and headaches. Spasms were again noted in the cervical muscles. He saw Dr. Ribando again on February 5, 2001, with the same complaints, and on April 2, 2001. In the April notes, Dr. Ribando advised him to see a neurologist, but he refused, and continued with conservative treatment. Two more visits are noted, June 4 and August 6, 2001, wherein the doctor notes that plaintiff continued to complain of headaches and neck pain. The notes do not indicate whether spasms were present. Dr. Ribando advised Mr. Entre-kin that his treatment would be symptomatic only.

On September 17, 2001, Mr. Entrekin returned to Dr. Ribando with the same pain complaints, but this time also reporting lower back pain for the first time. Conservative treatment was continued. He returned to the doctor on November 19, |42001, reporting no improvement, but again refused to see a neurologist or neurosurgeon. He saw Dr. Ribando again on January 7, 2002, and February 25, 2002. At that visit, Dr. Ribando told the plaintiff that his condition was probably “stationary” and he might even get worse as he ages. The records show two more visits to Dr. Ribando, in March and April of 2002, wherein plaintiff continued to have neck pain and headaches, and spasms and tenderness of his cervical muscles.

The deposition of Dr. Michael McSween was entered into evidence. Dr. McSween was Mr. Entrekin’s family physician through his HMO, he explained. Dr. McSween treated Mr. Entrekin during this time for headaches, sinus problems, and followed up his previous surgery for colon cancer. Dr. McSween had no record of the May 2000 accident, but did note that Mr. Entrekin reported an accident in March of 1999. Dr. McSween saw Mr. Entrekin on May 25, 2000 for a check up. Mr. Entrekin never reported any headaches or neck pain at this visit. He next saw plaintiff in September of 2000, when Mr. Entrekin complained of “headaches for about one week,” but did not mention a car accident. He did not complain of neck pain at this visit. Dr. McSween noted that Mr. Entrekin said that Vicodin helped his headache pain. Dr. McSween did not prescribe the Vicodin.

Dr. McSween saw Mr. Entrekin again on October 28, 2000, when he complained of some visual problems relative to a cataract, and sinus trouble. Dr. McSween’s notes contain no mention of headaches or neck pain. On November 18, 2000, Mr. Entrekin reported headaches relative to the accident in March of 1999, and reported that he had had a CAT scan, which was normal. He did not mention neck pain at this visit. On December 7, 2000, Dr. McSween saw Mr. Entrekin relative to medical clearance for cataract surgery, and he asked for a refill of his Vicodin, which the doctor gave him, but there was no mention of neck pain at this visit.

|sDr. McSween also saw Mr. Entrekin on December 27, 2000 for a sore throat, but his notes indicate he also diagnosed degenerative joint disease and prescribed some arthritis medicine. The doctor testified that if a patient had reported neck pain, he would have included it in his appointment notes.

The defendants argue that the damage award should not be disturbed. They argue that this was a minor side-swipe type accident in a parking lot. The trial court observed Mr. Entrekin on at least two occasions and was able to judge the effect of his injuries. They further argue that Mr. Entrekin never reported this accident or neck pain to Dr. McSween, who treated him during this time period. (Mr. Entre-kin stated that while Dr. McSween was his “HMO” doctor, Dr. Ribando was his long time treating physician whom he trusted.) The defendants further highlight Dr. Ri-bando’s testimony, who felt that some of plaintiffs pain was due to the normal aging process, and who discharged the plaintiff in November of 2000, six months after the accident. Defendants argue that $9,500.00 is adequate for a soft tissue injury of six months.

Bearing in mind the trier of fact’s vast discretion in awarding damages, and considering all of the evidence, we find that the damage award to .Mr. Entrekin was adequate and was not so low as to be an abuse of discretion. Plaintiff cites the case of Ganucheau v. Winn Dixie LA., Inc., 99-432 (La.App. 5 Cir. 11/10/99), 746 So.2d 812. That case is distinguishable. Mrs. Ganucheau sustained serious multiple orthopedic and gastrointestinal injuries that required at least one surgery, with another recommended to treat complications. There was no question that her knee replacement, back injuries, and gastrointestinal bleeding were very debilitating and related to the slip and fall. In the instant case, Mr. Entrekin reported neck pain and headaches to one treating physician, but not another. Dr. Ribando did find objective evidence of injury, muscular spasms, and had | (¡recommended that plaintiff see a neurologist at one time, but plaintiff refused. There was no evidence that his condition has propelled him to see a neurologist or will in the future. Dr. Ribando discharged Mr. Entrekin after six months, though plaintiff did continue to report headache and neck pain after that date.

Under the circumstances and record evidence, the trial judge apparently felt that Entrekin suffered a six month soft tissue injury, and we agree that the evidence reflects that. The award of $9,500.00 is appropriate for this injury. See Medice v. Delckamps, Inc., 96-1868 (La.App. 4th Cir.4/30/97), 694 So.2d 528 [$6,000 for three months soft tissue injury]; Jeanpierre v. Mikaelian, 97-1850 (La.App. 4th Cir.2/25/98), 709 So.2d 915 [$7,500 for five and a half month soft tissue injury and $7,500 for six month soft tissue injury]; Howard v. Derokey, 98-0893 (La.App. 4 Cir. 2/10/99), 729 So.2d 654; Marie v. Allstate Ins. Co., 99-225 (La.App. 5 Cir. 8/31/99),742 So.2d 969.

Plaintiffs argue that $1,000.00 is not enough to compensate Mrs. Entrekin for having her relationship with her husband compromised over the balance of his life. Mrs. Entrekin testified regarding Mr. Entrekin’s pain and reduced activities with his grandchildren, and said that she occasionally had to socialize without him. We find that the trial court’s award to her was appropriate and not so low as to be an abuse of discretion. See Marie v. Allstate Ins. Co., supra.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Dr. McSween testified that he wrote it in his notes as "3/99.”

      . The trial was bifurcated. Liability was found on a previous date, and was not appealed.


author: CLARENCE E. McMANUS, Judge.

text:
    Norma Jean WEBB v. Dr. Hamid MASSIHA and Doctors Hospital of Jefferson.
    No. 02-CA-1014.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.

      George F. Riess, Esq., Law Offices of George F. Riess, New Orleans, LA, for plaintiff-appellant.
    G. Scott Vezina, J. Marc Vezina, Vezina and Gattuso, Gretna, LA, for defendants-appellees.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

At issue in this case is whether an arbitration agreement is invalid. For the following reasons, we reverse the trial court and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

In June 2000, plaintiff, Norma Jean Webb, consulted with defendant, Dr. Ham-id Massiha, a plastic surgeon. Prior to surgery, plaintiff signed an arbitration agreement given to her by Dr. Massiha’s office. In July 2000, defendant ostensibly cleared plaintiff for surgery through routine pre-operative screening. The plastic surgery was extensive and was performed at Doctor’s Hospital of Jefferson. A few days after surgery, plaintiff was admitted to the intensive care unit of Doctor’s Hospital for complications resulting from the surgery.

Subsequently, plaintiff filed a medical malpractice suit in Jefferson Parish against Dr. Massiha and Doctor’s Hospital. Pursuant to the arbitration agreement, the parties jointly agreed to arbitrate the matter and filed a joint motion to stay the proceedings pending arbitration. A copy of the agreement was attached to that 13motion. The trial court granted the motion to stay in October 2001. The parties corresponded back and forth and agreed upon an arbitrator.

In January 2002, Dr. Massiha filed a petition for declaratory judgment seeking to have the arbitration agreement declared invalid because it does not conform to the requirements of La. R.S. 9:423s. Specifically, the agreement failed to inform plaintiff that she had the right to void the agreement within thirty days of its execution. Dr. Massiha contends that he desires to avoid future litigation as he fears plaintiff may try to invalidate the arbitration agreement if she is displeased with the outcome of the arbitration. Plaintiff opposed the declaratory judgment arguing that they twice agreed to arbitrate, that La. R.S. 40:1299.47 allows arbitration in medical malpractice actions and that arbitration agreements are favored.

After a hearing, Judge Kernan Hand granted the petition for declaratory judgment finding the arbitration agreement invalid, relying on Ciaccio v. Cazayoux, 519 So.2d 799 (La.App. 1 Cir.1987). The Trial court’s reasons for judgment indicate it found use of the word “shall” by the legislature in La. R.S. 9:4235, (that an arbitration agreement “shall inform the patient in writing” of her right to void the agreement within thirty days of its execution) made the entire arbitration agreement null and void.

Plaintiff now appeals that judgment.

\ ¡DISCUSSION

Before a district court may compel arbitration, the trial judge must make two preliminary determinations. Collins v. Prudential Ins. Co. of America, 99-1423 (La.1/19/00), 752 So.2d 825. The trial judge must first ensure that a valid arbitration agreement between the parties exists. Id. Second, the judge must decide whether the dispute at issue falls within the scope of the agreement. Id. It is well settled that such agreements are to be given a liberal interpretation in favor of arbitration. Id. As a matter of law, any doubts concerning the scope of arbitration should be resolved in favor of arbitration. Id.

In this case the trial judge did not find a valid arbitration agreement existed. We now turn our attention to that finding. Generally, ordinary contract principles govern the question of who is bound by an arbitration agreement, and a party cannot be required to submit to arbitration any dispute that he has not agreed to submit. Ciaccio v. Cazayoux, 519 So.2d 799 (La.App. 1 Cir.1987). Analogizing this matter according to the law governing obligations, we note that La. Civ.Code art.2056 provides:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.

The trial court found that the arbitration agreement drafted by Dr. Massiha was invalid because it failed to comply with the requirements of La. R.S. 9:4235, in that the agreement did not inform plaintiff that she had the right to revoke the arbitration agreement within thirty days of its execution. In support, it relied on Ciaccio v. Cazayoux. We find that case is inappo-site to the case at hand. The plaintiff in Ciaccio sought to have the arbitration agreement invalidated. Further, |Bthe agreement in Ciaccio contained the language omitted from the instant agreement. Rather, our reading of that case lends credence to a result opposite of that reached by the trial court.

We point out that by the time the validity of this agreement became an issue, the thirty day revocation period passed and plaintiff did not choose to revoke the arbitration agreement. Rather, plaintiff took affirmative steps to substantially comply with the arbitration agreement. Moreover, once the thirty day time period elapsed, plaintiff became bound by the agreement and the general legal principles governing contractual obligations. Likewise, we find that defendant is also bound by the same principles and is not entitled to invalidate his own agreement by pointing out the inartful drafting thereof. The language omitted from the agreement was for plaintiffs protection and she chose arbitration. Initially, defendant agreed to arbitration but for some reason changed his mind. We do not share defendant’s belief that plaintiff may later successfully attack the agreement after receiving an unfavorable arbitration award and, thus, get a second bite at the apple. Because of Louisiana’s strong public policy favoring arbitration, arbitration awards are presumed valid. American LifeCare, Inc. v. Wood, 02-1354 (La.App. 4 Cir. 8/28/02), 826 So.2d 646, 649. Errors of fact or law do not invalidate an award. Id.

Thus, we find that the trial court erred in granting the petition for declaratory judgment invalidating the arbitration agreement. Accordingly, we reverse that ruling and remand this matter for further proceedings.

CONCLUSION

Based on the foregoing, we reverse and remand this matter for further proceedings.

REVERSED AND REMANDED.

      . La. R.S. 9:4235 provides:
      Prior to obtaining a patient’s signature on an arbitration agreement, the medical or dental practitioner or medical institution shall inform the patient in writing that:
      (1)the patient has the right to void the agreement within thirty days of execution thereof, and that
      (2) if an act or acts of negligence and/or medical malpractice is committed prior to the revocation date the arbitration agreement shall be binding with respect to said act or acts, and that
      (3) notification of revocation of the said arbitration agreement must be in writing and mailed by certified mail, return receipt requested.


author: 1CLARENCE E. McMANUS, Judge.

text:
    Terence E. HALL v. VALLEY FORGE LIFE INSURANCE COMPANY, Continental Assurance Company, CNA Insurance Companies, James M. Cook, FLMI, CLU, CLFC, CFP, MSFS, Robert G. McNamara, and XYZ Insurance Company.
    No. 02-CA-977.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.
    Writ Denied May 9, 2003.

      Sidney Cotlar, David K. Fox, W. Jared Vincent, Herman, Herman, Katz & Cotlar, New Orleans, LA, for plaintiff-appellant.
    Lance J. Arnold, Baldwin & Haspel, New Orleans, LA, and Stephen C. Barker, Steven B. Davis, Jason P. Gosselin, Drinker Biddle & Reath, Philadelphia, PA, for Valley Forge Life Insurance Company, Continental Assurance Company and Robert G. McNamara.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   1CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

In 1999, Plaintiff, Terrence Hall (“Hall”), and his mother, Dorothy Thompson (“Thompson”), sought a replacement life insurance policy on Thompson for $1 million. Thompson had a $1 million policy with New York Life Insurance naming her as the insured, owner and beneficiary. She wanted to replace the insurance policy with a new policy naming her son, Hall, as the owner and beneficiary. She wanted to make these changes for estate planning purposes so that the insurance benefits would be paid directly to Hall and could be used to pay estate taxes without encumbering her assets after her death. Under the New York Life Insurance policy her estate would have to pay thousands of dollars in taxes on the proceeds.

Hall and Thompson decided to obtain a life insurance policy through Valley Forge Life Insurance (“Valley Forge”) and/or Continental Assurance Company (“CNA”). On August 20, 1999, Robert McNamara (“McNamara”) met with Cindy Paulin (“Paulin”), an independent insurance broker for Thompson and Hall, at Paulin’s office to complete the application. McNamara filled out the application, which was already signed by Thompson. The application provided that if no premium was given to the agent with the application, the insurance would not take effect until the application was approved and accepted by the company and the policy was delivered while the health of the person insured remains the same and at least the first premium had been paid in full. The application also indicated a New York Life Insurance policy would be surrendered and the unused premiums from that policy would be applied to the first premium on |sthe replacement CNA policy. Neither Hall nor Thompson paid any premiums for the policy along with the application.

On December 17, 1999, the application for insurance was approved. On January 1, 2000, Thompson died in a car accident. Hall collected on the New York Life Insurance policy and only received $450,000 after the estate taxes were taken from the $1 million policy. Hall then tried to collect on the CNA policy, but coverage was refused.

Hall filed a Petition for Damages naming Valley Forge, CNA and McNamara as defendants. On January 14, 2002, the defendants, Valley Forge, CNA and McNamara filed a motion for summary judgment. On June 7, 2002, Hall amended his petition to add Paulin and the Underwriters as defendants. On June 10, 2002, the trial court heard the motion for summary judgment and granted the motion without reasons and dismissed plaintiffs claims against Valley Forge, CNA and McNamara. This judgment was designated a final judgment and Hall now appeals.

Hall appeals the judgment alleging three assignments of error: 1) the trial court erred by allowing the defendants to rely on non-delivery of the replacement life insurance policy after approval, although non-delivery was attributable to CNA, Valley Forge, McNamara and the Underwriters, 2) the trial court erred when it found that 15 days is a reasonable period between approval of the life insurance policy and notification to the insured, irrespective of the circumstances of the case, when jurisprudence says an unreasonable delay depends on the facts and circumstances of the case, and 3) the trial court erred by making findings of fact and credibility determinations in a summary judgment proceeding. For the reasons set forth below, we affirm the trial court’s judgment granting summary judgment in favor of the defendants.

DISCUSSION

This is a review of a summary judgment granted by the trial court. A summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA C.C.P. art. 966(B). Appellate courts review summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Weeks v. Bossier Parish School Board, 26,927 (La.App. 2 Cir. 5/10/95) 655 So.2d 590.

14When applying for life insurance coverage for Thompson with Valley Forge, Hall completed and signed an application. That application contained the following paragraph:

The Proposed Insured(s) and the Applicant, if other than the Proposed Insured/s), agrees that: (1) all statements and answers in this application are complete, true and correctly recorded to the best of my (our) knowledge and belief; (2) if this application is accepted by the Company, the policy applied for and this application will constitute the entire insurance contract; (3) if no premium has been given to the agent with this application, insurance will not take effect until the application is approved and accepted by the Company at CNA Plaza, Chicago, Illinois, 60585 and the policy is delivered while the health of each person proposed for insurance and other conditions remain as described in this application and at least the Minimum Premium for the Quarterly Mode (for Universal Life) or the first premium (for all other plans of insurance) has been paid in full. The acceptance of the policy by the Proposed Insured(s) will ratify any corrections and notations, including amendments of amount, risk calculation, age at issue, plan of insurance or benefits. However, in those states where written consent is required, any such amendment will be made only with the written consent of the Proposed Insured(s) and the applicant, if other than the Proposed Insured(s).

According to the above paragraph, the insurance would take effect only after the first premium was paid in full and the policy was delivered. No premium was paid by Hall when this application was completed. At the time of Thompson’s death, no premium had been paid and the policy had not been delivered. Therefore, according to the application for insurance, the insurance policy was not in effect at the time of Thompson’s death.

Hall has also alleged a cause of action for negligent delay in delivering the policy. He argues that 15 days was an unreasonable length of time between the company accepting the application and delivery of the policy to him. First, we must point out that the trial court did not specifically find that 15 days was a reasonable delay in delivering the policy. The trial court granted the defendants’ motion for summary judgment without reasons and did not make this specific finding.

LSA R.S. 22:634(A) states that “(subject to the insurer’s requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance.” In Sims v. Insurance Unlimited of West Monroe, 28,234 (La.App. 2 Cir. 2/28/96), 669 So.2d 709, the Second Circuit held that twenty three days was a “reasonable period of time” within the meaning of the statute. In Sims, the Christmas and New Year’s holidays fell within the 23-day period and the Court considered these holidays in finding the time to be reasonable. Also in Sims, the premium on the policy had been paid at the time the application was filed.

|fiIn the case at hand, the period of delay in delivering the policy encompassed the Christmas holiday, just as in Sims. The company approved the application on December 17, 1999 and did not deliver the policy before the insured died on January 1, 2000. This case only differs from Sims because the premium had not yet been paid. LSA R.S. 22:634 provides that the delivery of the policy is subject to the insurer’s requirements as to payment of the premium.

We find that payment of the premium is necessary before a claim may be made concerning the reasonableness of the delay in delivering the policy. No premium was paid in this case, therefore, we will not address plaintiffs claim for negligent delay in delivering the policy. Accordingly, the trial court correctly granted defendants’ summary judgment.

In accordance with the above, we affirm the trial court’s judgment granting summary judgment in favor of defendants Valley Forge, CNA and McNamara and dismissing all of plaintiffs claims against these defendants.

AFFIRMED.


author: 2WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Irvin BROOKS.
    Nos. 00-KA-953, 00-KA-954.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.

      Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, for Irvin Brooks, Defendant/Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreax, Thomas J. Butler, Frank Brindisi, Assistant District Attorneys, Gretna, LA, for Allstate Insurance Company, Plaintiff/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   2WALTER J. ROTHSCHILD, Judge.

This case is on remand from the Louisiana Supreme Court.

FACTS AND PROCEDURAL HISTORY

Defendant, Irvin Brooks, was convicted of three counts of distribution of cocaine in violation of La. R.S. 40:967(A). In his original appeal from these convictions, defendant asserted four assignments of error, including a claim that the trial court erred in allowing the jury to view videotapes of the drug transactions during deliberations. We found merit in this argument, and we also considered defendant’s claim that the evidence was insufficient to support his convictions. Although we found the evidence sufficient, we reversed defendant’s convictions based on the improper showing of the videotapes to the jury during deliberations, and we remanded the matter for a new trial. State v. Brooks, 00-953 c/w 00-954 (La.App. 5 Cir. 1/30/01), 777 So.2d 643. Based on this holding, we pretermitted defendant’s remaining assignments of error. Following this court’s denial of the State of Louisiana’s application for rehearing on February 28, 2001, the State sought writs to the Louisiana Supreme Court.

13On March 22, 2001, the Supreme Court granted the State’s application for writ of certiorari and/or review. State v. Brooks, 01-785 (La.3/22/02), 811 So.2d 924. By per curiam opinion rendered on January 14, 2003, the Supreme Court determined that the trial court did not err in allowing the jury to view videotapes of the drug transactions during their deliberations. The previous decision of this court was therefore reversed and the matter was remanded to this court “for consideration of defendant’s remaining assignments of error pretermitted on original appeal.” State v. Brooks, 01-785, (La.1/14/03),838 So.2d 725, 2003 La. LEXIS 9.

DISCUSSION

Defendant’s remaining assignments of error which were not considered in his original appeal relate to sentencing. The record reveals the following with regard to defendant’s sentence:

On June 30, 1998, the trial judge sentenced defendant to 25 years on each of the three counts to run concurrently with each other and with the first five years to be served without benefit of parole, probation, or suspension of sentence. On July 6, 1998, defendant filed a motion to reconsider sentence. On that same date, the State filed a multiple offender bill of information on count 2 of the bill of information alleging that defendant was a third felony offender. On January 5, 1999, defendant denied the allegations of the multiple bill. On September 8, 1999, the trial judge denied defendant’s motion to reconsider sentence and motion for presentence investigation. Following denial of defendant’s motions, defendant was found to be a multiple offender under LSA-R.S. 15:529.1. The trial judge vacated the original sentence on count 2 and sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence to run concurrently with the 25-year sentences on the other two counts. | ¿Defendant objected to the exees-siveness of the sentences in an oral motion, which was denied. Defendant’s new counsel filed a motion for appeal, which was granted.

Defendant argues that the trial court erred in imposing a sentence that is constitutionally excessive. For the reasons stated herein, we find no merit in this claim.

Defendant filed a motion to reconsider his original sentences alleging that they were constitutionally excessive; however, he failed to file a motion to reconsider the original sentences as is required by LSA-C.Cr.P. art. 881.1. Defendant did object orally after the trial judge sentenced the defendant as a multiple offender. LSA-C.Cr.P. art. 881.1 provides that a defendant may file a motion to reconsider sentence within 30 days of sentencing, but requires that the motion be made orally at the time of sentencing, or in writing, and that it set forth the specific grounds on which the motion is based. The failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, precludes a defendant from raising those grounds on appeal. State v. Mims, 619 So.2d 1059 (La.1993); State v. Holmes, 94-907 (La.App. 5 Cir. 3/15/95), 653 So.2d 642, 646. In Mims, the Louisiana Supreme Court was silent as to whether the failure to comply with Article 881.1 precludes even a claim of constitutional excessiveness. However, in similar circumstances, this court has considered the issue of whether the sentence was constitutionally excessive. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 789; State v. Richmond, 98-1015 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

In the instant case, defendant was initially sentenced to serve 25 years on each of the three counts, with the sentences to run concurrently, and with the first five years to be served without benefit of parole, probation, or suspension of|ssentence. Subsequently, the court found defendant to be a third felony offender under LSA-R.S. 15:529.1, vacated the sentence on count 2, and re-sentenced defendant to life imprisonment at hard labor, with the sentence to run concurrently with the 25-year sentences on the other two counts.

Defendant argues that all of his sentences are constitutionally excessive, because the trial judge did not adequately consider all of the criteria set forth in LSA-C.Cr.P. art. 894.1 when he imposed the original and the enhanced sentences. However, prior to the original sentencing, the trial judge stated as follows:

Now, as to the sentence, I have considered the sentencing guidelines in Article 894.1 of the Code of Criminal Procedure. I have also considered this Defendant’s prior record. And that prior record is as follows: In 1991, he was pled, or he pled guilty to the crime of distribution of cocaine. In 1995, he pled guilty to possession of cocaine, in that same year to possession of drug paraphernalia. After considering the sentencing guidelines, his prior record, I’ve determined to sentence this defendant as follows: ...

This court examined a defendant’s claim that her sentence should be overturned for failure to comply with LSA-C.Cr.P. art. 894.1 in State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855, writ denied, 99-1785, 750 So.2d 980 (La.11/24/99). In Battie, the defendant contended that the trial court erred by failing to state for the record the considerations taken into account and the factual basis for imposing sentence as required by LSA-C.Cr.P. art. 894.1C. However, this court noted that the defendant did not include the issue of failing to comply with LSA-C.Cr.P. art. 894.1 C in either her motion to reconsider sentence nor did she argue regarding that issue at the hearing on the motion to reconsider sentence. In Battie, this court therefore found that the defendant’s failure to raise the issue in the trial court precluded her from raising the issue on appeal. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 967-968, writ denied, 00-1371, (La.2/16/01), 785 So.2d 839, citing State v. Battie, 98-1296 at 18-19, 735 So.2d at 855-56 (citations omitted).

In the instant case, defendant did not raise the issue of the trial court’s failure to comply with LSA-C.Cr.P. art. 894.1in the trial court, and he raises this issue for the first time on appeal. Therefore, under the authority of State v. Wick-em and State v. Battie, cited above, defendant is precluded from raising this issue on appeal. Even if defendant was not precluded from raising this issue on appeal, if there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not require a remand for re-sentencing. State v. Tribbit, 00-153 (La.App. 5 Cir. 8/29/00), 767 So.2d 901, citing State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076, 1082. In the instant matter, the record reflects that, in 1991, defendant pled guilty to the crime of distribution of cocaine, and in 1995, he pled guilty to possession of cocaine and to possession of drug paraphernalia. Therefore, we find an adequate factual basis for the sentences contained in the record.

Next, defendant challenges the exces-siveness of the enhanced sentence to life imprisonment based on State v. Dorthey, 623 So.2d 1276 (La.1993). Defendant received the mandatory minimum sentence under LSA-R.S. 15:529.1(A)(l)(b)(ii), the Habitual Offender Law. Despite having received the mandatory minimum sentence, defendant’s sentence may be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676; State v. Armstrong, 99-925 (La. App. 5 Cir. 2/16/00), 756 So.2d 533, 538, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182.

A mandatory sentence may be excessive if the sentence “makes no measurable contribution to acceptable goals of punishment or ... amounts to nothing more than the purposeful imposition of pain and suffering and is grossly |7out of proportion to the severity of the crime.” State v. Armstrong, supra at 537. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Dorthey, 623 So.2d 1276 (La.1993). To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:

[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.

State v. Johnson, supra at 676. A trial court may not rely solely upon the nonviolent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of the constitutionality of the mandated minimum sentence. Id.

In the present case, defendant argued at the enhanced sentence hearing that a person who has been convicted of three counts of distribution of cocaine does not deserve the same sentence as another defendant in another high-profile case who was sentenced to life imprisonment for murdering his children. Defendant also argued that his prior offenses were not crimes of violence, and that he does not deserve life in prison “for having a drug problem.” The trial judge considered defendant’s argument and found that, based on the record in the case and defendant’s prior record, it was appropriate to sentence defendant to life as required under the Habitual Offender Law.

In State v. Robertson, 99-1029 (La.App. 5 Cir. 2/29/00), 756 So.2d 1148, 1149-1150, defendant was convicted of distribution of cocaine and sentenced as a third felony offender to life imprisonment without benefit of parole, probation or suspension of sentence. He alleged on appeal that the trial court erred by imposing an excessive sentence. This court found that defendant was a habitual offender |swith an extensive criminal history and held that the sentence of life imprisonment was not constitutionally excessive. Likewise, in State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 926-927, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477, and writ denied, 01-2911 (La.8/30/02), 823 So.2d 943, defendant was convicted of possession with intent to distribute cocaine and sentenced as a third felony offender to life imprisonment. This court found that defendant had not presented sufficient evidence to rebut the presumption of constitutionality of the sentence imposed and, therefore, the statutory minimum sentence of life imprisonment was mandated and proper.

This court has held that mandatory life sentences under the Habitual Offender Statute for distribution of cocaine and possession with intent to distribute cocaine are not constitutionally excessive. Based on a review of the record and the law, we find that the defendant has not presented sufficient evidence to rebut the presumption of constitutionality of the sentence imposed and, therefore, we find that the statutory minimum sentence of life imprisonment is mandated and proper in this case.

Defendant next argues that the failure of trial counsel to file a motion to reconsider sentence should not preclude this court from considering the constitutionality of the sentence; and, in the event that it does, then the failure of trial counsel constitutes ineffective assistance of counsel. The state responds that claims of ineffective assistance of counsel are more properly raised in the trial court in a motion for post conviction relief, or alternatively, that since even a proper objection would not have affected the sentence imposed, defendant cannot show the prejudice necessary to prevail on a claim of ineffectiveness.

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 |9afford 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); State v. McIntyre, 708 So.2d at 1075. The appellate record in this case contains sufficient evidence for this court to consider defendant’s claim of ineffective assistance of counsel.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Sec. 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, 93-1042, 636 So.2d at 1075.

In State v. Chess, 00-163 (La.App. 5 Cir. 6/27/00), 762 So.2d 1279, 1285-1286, defendant argued that his trial counsel was ineffective because counsel failed [into object to his sentence or to file a motion to reconsider sentence. Even though defendant failed to file a motion to reconsider sentence, the court reviewed his sentence for excessiveness. The court held that, because defendant failed to demonstrate any prejudice caused by the failure to file a motion to reconsider, he failed under the second prong of the Strickland test to show that his trial counsel was ineffective.

This court has routinely reviewed sentences for constitutional excessiveness despite a defendant’s failure to file a timely motion to reconsider sentence. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, writ denied, State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342. This court has also held that a defendant is not prejudiced by counsel’s failure to object to a sentence at the trial court level when the sentence has been reviewed for constitutional excessiveness on appeal. State v. Lewis, 98-672 (La.App. 5 Cir. 3/10/99), 732 So.2d 556, 561, writ denied, 99-2818, 760 So.2d 334 (La.4/20/00). By this opinion, the defendant’s sentence was reviewed for constitutional excessiveness. Therefore, based on the foregoing, we find that defendant has failed to demonstrate any prejudice caused by the failure to file a motion to reconsider sentence and, therefore, that he has failed under the second prong of the Strickland test to show that his trial counsel was ineffective.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Welland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals errors patent in this case.

A multiple offender bill of information was filed against defendant. When a multiple offender bill of information is filed, LSA-R.S. 15:529.1 D(l)(a) provides that the trial court shall order the defendant to appear before it and shall inform lnhim of the allegation contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. The statute also requires that the court advise the defendant of his right to remain silent. In the instant case, the trial court failed to advise defendant of his multiple bill rights on the record. However, in State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir.1992), overruled on other grounds in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 131, this court held that the failure of the trial court to advise the defendant of his right to a trial and to remain silent was harmless error where the multiple offender status was established by competent evidence offered by the state at the hearing, rather than by admission of the defendant. In the instant case, defendant denied the allegations of the multiple bill, and the state presented competent evidence at a hearing to establish defendant’s multiple offender status. As such, we find that the trial court’s failure to advise defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error.

The multiple offender bill of information did not specify the offense for which the state sought enhancement. Defendant objected to the lack of notice when the state advised the court at the conclusion of the multiple offender hearing that it was multiple billing the defendant on count 2 of the bill of information. Although the defendant objected, he did not file a written response to the multiple offender bill of information as is required by the multiple offender statute, LSA-R.S. 15:529.1(D)(l)(b). Therefore, we will not consider this issue.

Although defendant was properly advised of the three-year period for filing post-conviction relief at the time of the original sentencing, he was not advised of the prescriptive period after he was sentenced as a multiple offender as mandated by LSA-C.Cr.P. art. 930.8. Therefore, the trial court is hereby instructed to advise 112defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that defendant received the notice into the record of the proceedings. State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975.

DECREE

Accordingly, for the reasons assigned herein, the convictions and sentences of defendant, Irvin Brooks, are hereby affirmed.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . The factual basis for defendant’s convictions was accurately stated in our opinion on defendant's original appeal and will not be repeated herein. See, State v. Brooks, 00-953 c/w 00-954 (La.App. 5 Cir. 1/30/01), 777 So.2d 643, 644-645.


author: 2CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Walter MASSEY.
    No. 02-KA-872.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Walks, Assistant District Attorneys, Gretna, LA, for the State.
    Jane L. Beebe, Gretna, LA, for appellant.

      Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   2CLARENCE E. McMANUS, Judge.

In this case, defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Officers of the Gretna Police Department received anonymous complaints about drug transactions occurring at the donut shop, motel and grocery located at the corner of Kepler and Solon Streets in Gretna, Louisiana. Acting on this information, Detective Russell Lloyd, Detective Scott Zemlick and another officer set up surveillance in that area on Wednesday, January 23, 2001, at approximately 2:30 p.m.

The informant told officers that the drug transactions normally occurred when a green, four-door Mercury would arrive in the area with the passenger of the vehicle delivering the cocaine. According to Detective Lloyd, shortly after the arrival of the officers at the specified location, a green four-door Mercury automobile approached the side of the donut shop and parked. The driver of the vehicle, later identified as Stanley Tucker, exited the vehicle. The three 1 ^policemen, dressed in plain clothes, got out of their vehicle and moved toward the driver and passenger of the vehicle. The officers approached the passenger side of the vehicle and found defendant, later identified as Walter Massey, seated therein.

Officer Zemlick testified at trial that they identified themselves as police officers as they approached the men. As officers neared the car, they observed defendant retrieve a black canister from his right area near his midsection and throw it over his shoulder. Apparently, small rocks of cocaine fell from the object to the back seat and floor of the vehicle. The officers placed defendant under arrest, searched him and found three rocks of cocaine in his right front pocket.

On February 20, 2001, defendant, Walter Massey, was charged by bill of information with possession of cocaine in violation of La. R.S. 40:967(C). He was arraigned on February 21, 2001 and pled not guilty. On April 21, 2001, a motion to suppress hearing was held and the motion was denied. On May 21, 2001, defendant filed a Motion for Appointment of a Sanity Commission. On July 19, 2001, following the sanity hearing, the defendant was found competent to stand trial.

On September 24, 2001, a twelve-person jury unanimously found defendant guilty as charged. The defendant was sentenced on October 25, 2001 to five years imprisonment at hard labor with credit for time served. Also on October 25, 2001, the State filed a multiple bill, wherein it alleged the defendant to be a fourth felony offender under La. R.S. 15:529.1(A)(l)(c). On November 29, 2001, following a hearing, the defendant admitted the allegations of the multiple bill in exchange for a negotiated multiple offender sentence of 15 years of imprisonment. The trial judge vacated defendant’s original sentence and sentenced defendant as a multiple offender to imprisonment for 15 years at hard labor with credit for time served but without benefit of probation or suspension of sentence.

^Defendant now appeals his conviction and sentence challenging the denial of his motion to suppress the evidence.

DISCUSSION

The record indicates that defendant did not file a written motion to suppress the evidence. Although there was a suppression hearing, defendant did not object to the ruling on the motion to suppress or to the introduction of the contraband. The trial court denied the motion to suppress the evidence stating it thought it was “a good search.” Defendant argues that the basis of the police action was based on an unsubstantiated tip by a confidential informant that did not give police probable cause for defendant’s arrest or even reasonable suspicion for a stop. Thus, the trial court erred in granting the motion to suppress the evidence.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Manson, 01-159, pp. 6-7 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. State v. Manson, supra, (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. Jones, 99-972 (La.App. 5 Cir. 2/29/00), 757 So.2d 110, 112. The trial judge’s determination on the motion to suppress will not be disturbed on appeal, unless it is clearly wrong. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1029, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In reviewing the ruling on the motion to suppress, the appellate court will look to the totality of the evidence as presented at the hearing | Rof the motion and the trial. State v. Wilson, 00-0178 (La.12/8/00), 775 So.2d 1051, 1053; State v. Manson, 791 So.2d at 755.

Probable cause needed for a full custodial arrest is more than reasonable suspicion. State v. Fisher, 720 So.2d at 1183. Probable cause exists when the facts and circumstances known to the arresting officer, based on reasonably trustworthy information, are sufficient to justify a belief in a man of ordinary caution that the person to be arrested has committed a crime. State v. Edwards, 00-1246, p. 8 (La.6/1/01), 787 So.2d 981, 986, n. 4.

In this case, Detective Lloyd’s testimony at the suppression hearing was un-controverted. According to him, there were complaints of drug activity involving the donut shop at Kepler and Solon Streets. On January 23, 2001, acted on anonymous tip that indicated that a passenger in a green, four-door Mercury automobile would be going to the donut shop to deliver cocaine. This witness and two additional officers went to the location and parked awaiting the arrival of the green car. Shortly thereafter arriving at the location, a vehicle arrived matching the description parked at the side of the donut shop. As the driver of the vehicle exited the Mercury, the three officers, dressed in plain clothes approached. It was at this moment, according to Detective Lloyd, that the defendant reached toward his right side and threw the film canister over his shoulder, spilling cocaine into the back of the car.

Similarly, in State v. Johnson, 01-2436, (La.1/25/02), 806 So.2d 647, 648, the subject was approached by police as the result of an anonymous tip that there was a person meeting his description who was dealing heroin. As the officers exited their vehicle and were observed to be police (although they had not identified themselves), the subject threw down a bag that contained heroin. The | (¡Louisiana Supreme Court, in Johnson, 806 So.2d at 648, held that the seizure of evidence was lawful.

In the instant case, the facts indicate that the officers approached the subjects and the defendant discarded the contraband prior to any stop. When the defendant discarded the contraband, without a prior intrusion on his privacy, he provided probable cause for his arrest. Defendant’s assertion that police approached the car to make the arrest is not substantiated by the record. Thus, we find the contraband discarded into the back of the vehicle were lawfully seized without a warrant and the trial court properly denied the motion to suppress the evidence and affirm defendant’s conviction.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according 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 review reveals one error patent in this case as it relates to defendant’s sentence as a multiple offender.

The negotiated sentence of fifteen years of imprisonment at hard labor imposed after defendant admitted to being a fourth-felony offender, appears to be illegally lenient under La. R.S.15:529.1(A)(l)(c)(ii). The record indicates that the defendant had three prior felony convictions: (1) a second offense for possession of marijuana, in violation of La. R.S. 40:966 on May 19, 2001; (2) a conviction for second degree battery, in violation of La. R.S. 14:34.1, on April 17, 2000; and (3) a conviction for aggravated battery in violation of La. R.S. 14:34, on December 12,1989.

Defendant admitted to the allegations of the multiple bill, which stated that he was a fourth-felony offender. As a fourth-felony offender, with a prior conviction for a violent crime, defendant was subject to a mandatory life sentence without benefit of parole, probation or suspension of sentence under La. |7R.S. 15:529.1(A)(l)(c)(ii). However, neither the State nor defendant raises this issue on appeal.

We note that in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court expanded our error patent review to include illegally lenient sentences. See, State v. Cox, 02-0333, p. 9 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 2002 La. LEXIS 2849. It is well established that the defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So.2d 790, 797. We note that the Louisiana Supreme Court stated the following in State v. Campbell, 01-0329 (La.11/2/01) 799 So.2d 1136:

The appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in disposition of the case favorable to the defendant.

Following that edict, we will not disturb defendant’s sentence. Accordingly, we affirm defendant’s conviction and sentence.

CONCLUSION

Based on the foregoing, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Prior to amendment by 2001 La. Acts 403.