author: _|jMAX N. TOBIAS JR, Judge. h JONES, J.,

text:
    STATE of Louisiana v. Frank SMITH.
    No. 2002-KA-2340.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2003.

      Laura Pavy, Louisiana Appellate Project, New Orleans, LA, For Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. MCKAY, III, and Judge MAX N. TOBIAS, JR.).
   _|jMAX N. TOBIAS JR, Judge.

On 28 June 2001, Frank Smith (“Smith”) was charged by indictment with (a) two counts of aggravated rape, a violation of La. R.S. 14:42, (b) one count of aggravated oral sexual battery, a violation of La. R.S. 14:43.4, and (c) one count of armed robbery, a violation of La. R.S. 14:64. He entered a plea of not guilty at his arraignment on 10 July 2001. In a series of hearings, the court granted the state’s motion to introduce DNA evidence and the defense’s motion to have its expert examine the DNA evidence submitted by the state. After a two-day trial on 11 and 12 June 2002, a twelve-member jury found Smith guilty of two counts of attempted aggravated rape, one count of aggravated oral sexual battery, and one count of armed robbery. Smith was sentenced on 12 August 2002 to serve fifty years at hard labor without benefit of parole, probation, or suspension of sentence on each of the two counts of attempted aggravated rape, twenty years at hard labor without benefit of parole, probation, or suspension of sentence on the aggravated | ¡..oral sexual battery, and ninety-nine years at hard labor without benefit of parole probation, or suspension of sentence on the armed robbery conviction. All the sentences are to run concurrently. The defense attorney objected to the sentence as excessive and filed a motion for reconsideration of sentence, which the court denied. Smith’s motion for an appeal was granted.

STATEMENT OF FACTS

At trial, S.C, the twenty-eight year old victim, testified that she is now employed as an aeronautical engineer with Lockheed Martin; at the time of the incident at issue here, she was studying for her master’s degree in engineering management. On 9 May 2001, while living in the 300 block of South Murat Street in New Orleans, she had a satellite dish installed at her house. The person installing the dish left between five and six o’clock in the evening. The victim went to a poetry reading with a friend that night, departing her home between seven and eight o’clock and returning shortly after eleven o’clock. She went to bed immediately. Her small dog was on her bed. She was awakened some hours later by the sound of her dog walking across the floor, and she saw a shadow in the doorway of her bedroom. By the time she was fully awake, she realized a male was standing near her bed. The man said “to be quiet and not make any noise because he had a knife and he told me to get up and turn on the light.” When she turned on the light, the victim saw a naked young man holding a knife from her kitchen. She pleaded with him, but he warned her to be quiet. He tried to get on top of her but she told him she was having her period. He told her to take out the tampon; she did so and he then raped her vaginally. He next told her to give him [ 3oral sex. She resisted and he jumped at her with the knife. She complied, and after a few minutes, he told her to stop because he wanted to rape her anally. Again she pleaded with him not to do it. She had Vaseline on her dresser that she used on her feet at night, and he used that prior to the anal rape. She said that she kept watching him to see if he would let go of the knife because he was not very big, and she thought she might be able to get away from him, but he kept the knife in his hand. She noticed the man had a scar over his left eye. He next raped her vaginally again. He ejaculated on the sheets of her bed.

He told her “he felt like he had a hostage” and he was going to remain there for a while. She told him she was expected at work very early and that people would come looking for her if she were late. He immediately got up, dressed, and asked her for money. She had only five dollars, which she gave him. He also took her driver’s license. He dressed in plaid boxer shorts and a dirty T-shirt. Before he left, he took the sheets off her bed and began wiping the doorknobs and other items he had touched. She estimated that the entire ordeal took about an hour and a half to two hours. As he was readying to leave, he turned to her and said that he probably should not leave because she “might say something.” She assured him she was too frightened to tell anyone. He threw the knife on the sofa and left taking the sheets from the bed, her driver’s license, and the five dollars.

The victim locked the door and called her parents. Her mother instructed her to call 911, but she was frightened that the rapist might still be outside. Her mother then suggested that she call a neighbor, which she did. The neighbor came to her residence and called the police. S.C. spoke to the 911 operator; she described a young man, shorter than five feet, eight inches tall, with a scar over his left eye. After the police arrived, she noticed that there was a ladder against her 14back door, and the window vent above the door was open. S.C. was taken to Charity Hospital for a rape examination. When she returned to her house, she found the man who had installed the satellite dish had returned for his ladder; she told him the police had it because someone had used it to break into her house. S.C. then went to her parents’ house in Slidell.

The following Saturday, 12 May 2001, S.C., several family members, and friends returned to her residence in order to move her belongings. S.C. began crying when she entered her bedroom, and her mother told her to go outside. She was standing outside with one of her neighbors when she saw the man who raped her. She pointed to the man and screamed to her brother “[tjhat’s him.” Her brother, her parents, an uncle, and cousins ran toward him. She identified him, Smith, both at that time and again in court.

Creighton Attaway of the 300 block of South Murat Street testified that he received a telephone call from the victim’s mother in the early hours of 10 May 2001. He went to S. C.’s house where he found her “curled up in a fetal position ... crying hysterically.” Mr. Attaway called 911. He told the court that he had seen Smith hanging around the neighborhood prior to 10 May 2001. Mr. Attaway said that in spite of the fact that his home shared walls with S.C.’s home, he did not hear anything that night.

Kate Palisi, a forensic nurse expert at Charity Hospital, testified that she examined S.C. at about four o’clock in the morning on 10 May 2001. Ms. Palisi learned from the victim that she had been penetrated vaginally, anally, and orally. S.C. also told her that the assailant held a knife during the attack. In her examination of the victim, Ms. Palisi found a one-quarter-inch tear in the vagina and an eight-inch rectal tear. Ms. Palisi completed a “rape kit,” so that a chemist | Bcould examine the oral, vaginal, and rectal swabs for detection of seminal fluid.

Denise Mire, a chemist from the Orleans Parish Coroner’s Office, testified that she tested the swabs. She found that the vaginal and rectal swabs were positive for seminal fluid, and the oral swabs were negative. Of the interior and exterior vaginal and rectal swabs, both the vaginal and rectal external swabs tested positive for seminal fluid, and both the internal vaginal and rectal swabs tested negative. The samples were then released to Richard LeBlanc of the Orleans Parish District Attorney’s Office, who transported them to ReliaGene Technologies where DNA testing was done.

Ms. Amrita Lai, an expert in forensic DNA analysis, testified that she manages the laboratory at ReliaGene Technologies that conducted the DNA testing of the body fluids submitted from Smith and the victim. The DNA tests indicated that Smith’s DNA was consistent with the fluid found on the rectal swab from S.C. The DNA results from the vaginal swab excluded Smith as a donor.

Sergeant Steven Villere and Detective Henry Waller both investigated the incident. Sergeant Villere arrived shortly after one o’clock in the morning of the crime and spoke to Mr. Attaway and the victim. Detective Waller got a description of the attacker from the victim and later that week searched Smith’s house where he found boxer shorts similar to those described by the victim.

W.C., the victim’s brother, testified that he was at his parents’ house in Slidell on 10 May 2001 when his sister telephoned them. His parents left immediately, but he stayed there because a young cousin was sleeping over. On 12 May 2001, while he was helping his sister move, both of them were outside the house; he noticed she was crying, and she said, “That’s him.” At that moment Smith was standing across the street. W.C. ran over to him and asked if he knew [fiS.C., and Smith answered that he did not. Smith began backing away from W.C., and when he turned to run, several other men in S.C.’s family were coming toward him. Smith turned and ran toward W.C. who immediately caught him. The police were called, and Smith was arrested. The victim’s father and uncle testified to the same facts concerning the apprehension of Smith.

Officer Jason Giroir answered the call on 12 May 2001 and proceeded to the intersection of Palmyra and Olympia Streets. (The intersection is one block from the victim’s house). There he found “almost the whole neighborhood outside.” He spoke to S.C., who positively identified the person being held as the man who raped her on 10 May 2001.

Frank Smith, III (“Mr. Smith”), the defendant’s father, testified that his son was at home the entire night of 10 May 2001. Mr. Smith remembered that on 12 May 2001 his son went down the street to a friend’s house. Sometime later someone knocked on the door to tell Mr. Smith that the police had his son. On the following Sunday, the police searched his house; they were looking for a sheet, plaid boxer shorts, a five dollar bill and a driver’s license, but they took only a pair of boxer shorts belonging to Mr. Smith’s nephew.

Ms. Vesta Smith, the defendant’s mother, told the court that her son came home by nine o’clock in the evening on 10 May 2001. Mrs. Smith said it was unlikely that her son went out that night because he did not have a key to get out or back into the house.

Corey Davis, Smith’s thirteen-year-old cousin, testified that he and his cousin share a room. Corey sleeps on the top bunk, and when he went to sleep about midnight on 10 May 2001, Frank was sitting on the bottom bunk talking on the telephone. The next morning Corey saw Smith fixing breakfast about seven |7o’clock. Corey stated that the back door is locked with a key and only Mr. Smith has the key.

Ms. Lisa Simoneaux, Smith’s aunt, testified that she lived with her brother, his wife, and children during May of 2001. On 9 May 2001 she was working as a security guard and left her job about eleven o’clock in the evening and got home about one in the morning (on 10 May 2001). Smith was on the telephone when she got home. She recalled that because she wanted to use the telephone. She asked him for the telephone but he would not hang up. When she finally went to sleep after three o’clock in the morning, he was still on the telephone.

Smith took the stand. He said he was in the tenth grade at Fortier High School prior to his arrest; however, under cross-examination, he admitted he had quit going to school in April. He explained the scars on his face: he had been hit by a brick on the left side of his face, and he was injured on the right when he fell off a mo-ped. Smith said that his friend lives directly across the street from the victim, and he had seen her a couple of times. On the evening of 9 May 2001 he stayed outside until just about nine o’clock, when he went inside for the rest of the night. He argued with his aunt about using the telephone in the middle of the night. He denied ever assaulting, attacking, or accosting S.C. It is impossible to sneak out of his house at night, he said, because the doors are locked and only the adults have keys.

ERRORS PATENT

The record reflects no errors patent on the face of the record.

^ASSIGNMENT OF ERROR

In a single assignment of error, Smith, though counsel, argues that his sentences are excessive. Smith received the maximum term on each of his offenses: fifty years on each of the two attempted aggravated rape convictions, twenty years on the aggravated oral sexual battery conviction, and ninety-nine years on the armed robbery conviction. All the sentences are imposed without benefit of parole, probation, or suspension of sentence, and all are to run concurrently.

Section 20 of Article I of the Louisiana Constitution explicitly prohibits excessive sentences. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 96-3041 (La.3/4/98), 709 So.2d 679. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 666 So.2d at 979.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is |awarranted under the facts established by the record. State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185. However, in State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, this court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).

Id. at p. 10, 708 So.2d at 819.

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is “ “whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const. art. I, S 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In eases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there 1 inappear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).

At the sentencing hearing the victim addressed the court. She said she has moved away from New Orleans because of her terrible memories of the incident. Furthermore, although she has had extensive counseling, she still misses work because of the impact of the rape. She stated that her sense of independence and personal security has been permanently affected. She suffers from insomnia and frequently feels a knot in her chest.

The court began the sentencing by stating that the case was very difficult because of Smith’s age — he was sixteen at the time of the offense and seventeen at sentencing. The court noted that New Orleans lost a valuable citizen when the victim chose to leave the city as a result of the incident. Through his actions, Smith in effect sentenced the victim to a lifetime of painful memories.

The court next looked at the pre-sen-tencing investigatory report for Smith’s criminal history. He was arrested in August of 1996 for theft and aggravated battery; he was arrested in September of 1996 and later convicted for possession of a stolen automobile; after being on probation for thirteen months, his probation was revoked in October of 1997; he was arrested again in October of 1996 for possession of a stolen auto and theft of an auto. In 1997 he was convicted of criminal damage in excess of $500. He was then sentenced to one year in the Department of Corrections. He was arrested on a battery charge in 2000; he had a burglary arrest in January of 2001, and in May of 2001 the incident at issue occurred.

InThe court stated that Smith’s record indicated that any lesser sentences than the ones imposed would deprecate the seriousness of the offenses. Furthermore, if Smith were released, he would harm other people. The court addressed Smith:

This sentence may appear excessive or extreme to some but I believe it is the appropriate sentence for your conduct for the lives that you have ruined, not only those on the other side but also your own family for the things you put them through as a result of your criminal conduct. You know I gave you an opportunity to make a statement. The Probation Officer gave you an opportunity to make a statement in this Pre-Sentence Report. He said that you showed no remorse.... No feelings of sympathy or concern for the victim in this case.[T]here is no question about your involvement. You had an opportunity this morning to also express any concern or feelings that you may have which you have none. So I can only conclude from that that again there is still no remorse, ... no feelings of sympathy on your part for the action that you have done. Therefore, it is difficult for me to have any sympathy or any feelings for you with regard to this sentence. I am sorry for this sentence but I believe it is the only appropriate one that fits the facts and circumstances of this case as well as your criminal history.

The court then imposed the maximum sentences.

We find that the trial court’s articulated reasons for the sentences amply support its imposition of the maximum terms for this defendant, who has committed violent crimes as well as property offenses. Consequently, we find no abuse of the trial court’s broad sentencing discretion.

Accordingly, for the foregoing reasons, Smith’s convictions and sentences are affirmed.

AFFIRMED.

JONES, J., dissents with reasons.

h JONES, J.,

dissents with reasons.

While this is a horrible crime, the imposition of the maximum sentence upon this seventeen year old is also a crime.

The majority refers to Smith’s extensive criminal record. However, he has two adult convictions, and both are for property crimes, not violent acts against the person.

The Supreme Court has far too often said that the maximum sentence should be imposed upon the worst offenders (cites omitted). Thus, because I do not believe that this seventeen year old is either the worst offender, nor is he capable at this young age of ever rehabilitating himself, we should not impose the maximum sentence. Therefore, I respectfully dissent.

      . La. R.S. 14:43.4 was repealed effective 15 August 2001, well before Smith's trial; however, defense counsel concedes that under La. R.S. 24:171, prosecution under a repealed statute is allowed as long as the offense occurred while the statute was in effect. The offense occurred on 10 May 2001.

      . Because of the nature of the offense, the victim’s initials are used in lieu of her name.


source: Caselaw Access Project

author: | .BROWN, C.J.

license: Public Domain

text:
    Noble Edward ELLINGTON, Jr., Plaintiff-Second Appellant, v. Peggy Marie McDowell ELLINGTON, Defendant-First Appellant.
    No. 36,943-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 18, 2003.

      Ward, Nelson, L.L.C., by Joseph R. Ward, Jr., Lynn H. Frank, New Orleans, for Defendant/First Appellant.
    Samuel T. Singer, Winnsboro, Stephanie B. LaBorde, Baton Rouge, for Plaintiff/Second Appellant.
    Before BROWN, STEWART and DREW, JJ.
   | .BROWN, C.J.

In this community property dispute, both parties have appealed, assigning as error, inter alia, the trial court’s valuation of a community corporation. For the reasons set forth below, we affirm.

Factual and Procedural Background

Peggy McDowell Ellington and Noble Ellington, Jr., were married in 1964 and divorced by judgment dated May 11, 1998. During most of their 85-year marriage, they worked together in the family business, Noble Ellington Cotton Company, Inc. (“NECC”). Noble primarily handled negotiating deals with suppliers and customers, while Peggy ran the office, kept the books and did the paperwork associated with the business. The parties’ sons, Ryan and Noble III, were hired by their parents, Ryan in 1992 and Noble III in 1995, and continue to work in the family business.

The business of NECC is buying and selling cotton. NECC buys from farmers, cotton gins and other producers and sells to textile mills and shippers. The gross profit of the company comes from the margin made from this activity. NECC made a profit every year from 1979 through 1998. By 1996, the Ellingtons had made more than two million dollars in the cotton business. With profits, the parties purchased office buildings, farms and apartment complexes.

The parties separated in 1996 and were divorced in May 1998. The instant action is an ancillary proceeding, brought by Peggy Ellington L.Traylor to partition the community property. Shortly before trial, a considerable part of the community was partitioned by agreement, which, by consent of the parties, was incorporated into a partial judgment of partition dated January 2, 2002.

The trial court was left with two primary issues to address: (1) the value of NECC, a community corporation; and (2) whether Noble caused or permitted the diversion of NECC assets, thereby reducing the corporation’s earnings and value to the prejudice of Peggy and, if so, the extent of this diversion.

Both parties had expert witnesses who prepared valuation reports and testified regarding their opinions as to the value of NECC. Peggy’s expert was Zoe Meeks, a C.P.A. with experience in agricultural business and familiarity with the cotton buying business. Ms. Meeks’ method of valuation was the capitalization of earnings method. According to Ms. Meeks, as of March 31, 2000, the fair market value of NECC was $668,000 and the community interest of each of the parties (and therefore the equalizing payment due to Peggy was $334,000). This valuation method | .¡includes a substantial intangible asset value which she referred to as goodwill. Noble’s expert was Carlton Clark, a certified valuation expert. Mr. Clark used a net asset method of valuing the business because he felt that an earnings or income approach, which included goodwill, was inappropriate. According to Mr. Clark, as of December 10, 2001, NECC’s liabilities exceeded assets by $54,968; therefore, the company had zero value.

The trial court did not accept totally the methodology of either Ms. Meeks or Mr. Clark, but instead calculated a value using some of the conclusions of each expert. Specifically, the trial court found that:

(a) The standard definitions of “fair market value” in normal accounting practice are not adaptable to the partition of a community-owned business in which one of the parties is allocated the entire business.
(b) The net asset approach used by Carlton Clark is inappropriate in this case.
(c) One of the methods employed by Zoe Meeks — the capitalization of earnings method — is appropriate in this case, but not if based upon a single year’s earnings.
(d) NECC has an intangible asset value which supports the use of the capitalization of earnings method.
(e) The determination of “normalized net income” for use in the calculation of the value of the business is appropriate if based upon several years earnings, in this case, 10 years, because the records for that period are available.
(f) Ms. Meeks’ calculation of adjustments in arriving at normalized net income is appropriate.
(g)Mr. Clark’s calculation of liabilities exceeding tangible assets by $55,000 is accepted.
|4In order to use the greatest number of years available to determine normalized earnings, it is necessary to use the 2001 figures from Mr. Clark’s report because they are not included in Ms. Meeks’ report. Mr. Clark’s Adjusted Income Statement Summary shows a loss of $142,870 for 2001. The court’s procedure thereafter (in each case rounding the amount to the nearest $100) is as follows:
(1) Add the normalized Pre-tax Income (Loss) for each of the years from Ms. Meeks’ Income Statement Adjustments. [$136,700 + $221,500 + $220,500 + $197,000 + $181,600 + $217,700 + $251,900 + -$347,700 + $234,200]
(2) Add the adjusted loss figure for 2001 from Mr. Clark’s report, as shown above, in order to arrive at a ten year total. [+ -$142,900]
(3) Add $18,000 (based upon $750 per month for the years 2000 and 2001) for expenses paid by NECC but attributable to Ellington-Weaver Cotton Company (“EWCC”) as shown on Noble Ellington’s amended detailed descriptive list. [ + $18,000]
(4) Divide the total by 10 to reach the average annual normalized pre-tax income. [$1,188,500 divided by 10 = $118,850]
(5) Deduct 34% as the estimated provision for income taxes [$118,850-$40,500 = $78,300]
(6) Divide the balance by 22.5% (Ms. Meeks’ discount rate in calculating today’s value of a benefit stream that will be realized over an extended period of time in the future). [$78,300 divided by 22.5% = $348,000]
(7) Deduct the $55,000 negative net worth calculation by Mr. Clark based on tangible assets. [$348,000-$55,000 = $293,000]
The result is a company value of $293,000 if the company is allocated to Noble Ellington, and, in that event, the value to Noble Ellington of Peggy Tray-lor’s one-half interest is therefore $146,500.

The second issue before the trial court was Peggy’s claim that Noble intentionally diverted community assets out of NECC, causing lost earnings |Kand a diminution in the value of the corporation. The court accepted Noble’s explanations for the losses incurred by NECC and rejected Peggy’s claim for reimbursement/damages. Both parties have appealed.

Discussion

Valuation of NECC

Former spouses continue to be co-owners of the former community property even after the termination of the community and until it has been finally partitioned. La.C.C. arts. 2369, 2369.1; Robinson v. Robinson, 99-3097 (La.01/17/01), 778 So.2d 1105. In allocating the community assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court must consider the nature and source of the asset or liability, the economic condition of each spouse and any other circumstance the court deems relevant. La.R.S. 9:2801 A(4)(c); Robinson, supra.

The court is required to divide the community assets and liabilities so that each spouse receives property of an equal net value. La.R.S. 9:2801 A(4)(b); Robinson, supra. In order to avoid an unequal net distribution of assets and liabilities, the court may order the payment of an equalizing sum of money. La.R.S. 9:2801 A(4)(d); Robinson, supra.

La.R.S. 9:2801 A(4)(a) provides that the court shall value the assets at the time of .trial on the merits, determine the liabilities, and adjudicate the claims of the parties. Id. When the parties, however, do not submit evidence of the current value of community assets, the trial court does not err in making its valuations based upon the evidence presented by the |fiparties. See Barrow v. Barrow, 27,714 (La.App.2d Cir.02/28/96), 669 So.2d 622, units denied, 96-1057, 96-1072 (La.06/21/96), 675 So.2d 1080; Roberts v. Roberts, 542 So.2d 517 (La.App. 5th Cir.1989), unit denied, 547 So.2d 1317 (La.1989). As the Fifth Circuit observed in Roberts, supra the trial court is not required to value assets as of the date of trial when the parties do not submit current appraisals or valuations. See also Bridges v. Bridges, 96-1191 (La.App. 3d Cir.03/12/97), 692 So.2d 1186; Monje v. Monje, 94-622 (La.App. 5th Cir.12/28/94), 648 So.2d 1086.

The trial court has broad discretion in partitioning community property. As noted by the Third Circuit in Razzaghe-Ashrafi v. Razzaghe-Ashrafi, 558 So.2d 1368, 1371 (La.App. 3d Cir.1990):

The purpose of [La.R.S. 9:2801(4)(a) ] is to provide an occasion for the court to get a handle on the situation. It does not mean that the court is frozen by any statutory time level or particular valuation at any particular time or for any particular purpose, but simply to place values on the assets for the purpose of accounting, allocation and adjudication in accordance with the further provisions of La.R.S. 9:2801(4)(b, c, d and e).

In light of the discretion granted to the trial court by La.R.S. 9:2801, the court is not required to accept at face value a party’s valuation of assets, debts or claims against the community. Gay v. Gay, 31,974 (La.App.2d Cir.06/16/99), 741 So.2d 149; Kaplan v. Kaplan, 522 So.2d 1344 (La.App. 2d Cir.1988); Alford v. Alford, 94-1464 (La.App. 3d Cir.04/05/95), 653 So.2d 133. If the trial court’s valuations are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be af-. firmed. Alford, supra. As noted by the court in Starr v. Starr, 557 So.2d 1026 (La.App. 4th Cir.1990), the law provides no mathematical formula for determining the value of community assets.

If the community asset to be val„ued is an interest in a partnership or corporation, the court must be careful to value the interest, not just the assets of the business entity. Moody v. Moody, 622 So.2d 1381 (La.App. 1st Cir.1993), writ denied, 629 So.2d 1168 (La.1993); Borrello v. Borrello, 614 So.2d 91 (La.App. 4th Cir.1992); Mexic v. Mexic, 577 So.2d 1046 (La.App. 4th Cir.1991). The trial court’s determination of the value of a community business is a factual one which will not be disturbed absent manifest error. Monje, supra; Moody, supra. Furthermore, the trial court’s choice of one expert’s method of valuation over that of another will not be overturned unless it is manifestly erroneous. Freis v. Freis, 94-442 (La.App. 3d Cir.11/02/94), 649 So.2d 593, writs denied, 94-2939, 94-2942 (La.01/27/95), 649 So.2d 392; Guillaume v. Guillaume, 603 So.2d 235 (La.App. 4th Cir.1992); Stewart v. Stewart, 585 So.2d 1250 (La.App. 4th Cir. 1991), units denied, 590 So.2d 594, 597 (La.1992).

Both parties urge on appeal that the trial court erred in not accepting their respective expert’s opinion regarding the value of NECC. Peggy contends that the trial court, once it decided to use Ms. Meeks’ valuation method, was precluded from then using any of Mr. Clark’s calculations or conclusions. As noted above, this would result in a value of $668,000 for the corporation and an equalizing payment to Peggy of $334,000. On the other hand, Noble asserts that the trial court should have rejected Ms. Meeks’ opinion in its entirety because it was not based upon current data |sand contained considerable errors, relying instead upon Mr. Clark’s opinion that the community corporation was worthless and therefore no equalizing payment was due. Noble also argues that the trial court erred in first allocating NECC to him, then determining its value in his hands. He also takes issue with the trial court’s failure to allow him offsetting credits against the value of NECC.

The above statutory and jurisprudential authorities clearly provide that the trial court has great discretion in valuing community assets and liabilities. Furthermore, in making its valuation determinations, the trial court is not bound to accept one expert’s opinion to the exclusion of the opinion of other experts and witnesses. This court, in Head v. Head, 30,585 (La.App.2d Cir.05/22/98), 714 So.2d 231, 234, observed that:

To value corporate stock [at issue in the instant case], the court is required to assess and weigh the testimony of the two expert witnesses. Business valuations methods are not an exact science and are basically guides to determine a fair market value for buyers and sellers of a given business. Here, the evaluation is made for the purpose of resolving community property disputes. Given the dynamics of businesses and business practices, factoring in circumstances that may be unique to the parties, an inflexible formula for determining value is said to be impractical. Achee v. National Tea Company, 95-2556 (La.App. 1st Cir.12/20/96), 686 So.2d 121, 125.
Generally, the trier of fact is not bound by expert testimony, but is to hear and weigh expert testimony in the same manner as any other evidence. Reasonable and well-founded opinion should be considered. Watts v. Watts, 552 So.2d 738, 740 (La.App. 1st Cir.1989). The weight to be given expert testimony is dependent upon the professional qualifications and experience of the expert and especially on the facts on which the expert’s opinion is based. Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993).
The fact-trier is entitled to assess the credibility and accept the opinion of an expert just as with other witnesses, unless the stated ¡¿reasons of the expert are patently unsound. The effect and weight to be given the expert’s testimony depends upon the validity of the underlying facts relied upon by the expert, and rests within the broad discretion of the trial judge. Chance v. Chance, 29,-591 (La.App.2d Cir.05/07/97), 694 So.2d 613, 617.

As noted by the court in Head, supra, the trial court should not simply accept one expert’s opinion to the exclusion of all other expert evidence. Instead, in this complicated partition/valuation suit, we cannot say that the trial court erred in considering the opinions of both experts to assess and determine the value of the community corporation.

In his written reasons for judgment, the trial court gave detailed support for each of his factual findings regarding the value he assigned to the community corporation. We will examine each one of these determinations in light of the record in its entirety to address the various valuation issues raised by the parties. In this process, given that each of the trial court’s conclusions is based upon expert opinion, we will address each party’s assignment of error regarding the calculations, conclusions and methodology of the other spouse’s valuation expert.

Determination of “Fair Market Value” and Allocation of NECC to Noble Ellington

Noble complains that the trial court erred in first allocating the community corporation to him, then valuing the business. The following is excerpted from the trial court’s written reasons:

Both [parties’] expert witnesses acknowledged that their duty was to determine, or estimate, the fair market value of NECC. Meeks’ report on page one defines fair market value as “the value, expressed in cash or its equivalent, at which property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of relevant facts.” Clark Imrites the definition from Treasury Regulations Par. 25.2512-1 which is essentially the same.
It is immediately evident that a community partition is not the “willing buyer and willing seller” situation contemplated by the above definition in the situation where one spouse is to acquire the other spouse’s interest. In testimony, Meeks acknowledged that “when you do valuations you have to consider the purpose for which the valuation is to be used and normally in a divorce situation when you’re settling property its very rare to have a willing seller.” She also testified that as to the valuation done in this case “this is for property settlement purposes, you don’t have to have a willing buyer or a willing seller.” When you consider that explanation, it renders the recited definition of fair market value useless. Perhaps more accurate than “the purpose for which the valuation is used” would be the estimation of the different values when the business is acquired by different persons. On cross examination, Meeks readily admitted that her opinion as to value was based upon present management remaining the same ...
In response to questions by the court, she specifically admitted that her estimated value would be different if the company was acquired by anyone other than Noble Ellington. There was no predetermination that the business would be allocated to Noble Ellington and there was no basis for her to proceed on that assumption. Nevertheless, that is what she did. Although her valuation is limited to that one situation and would be of no value for any other allocation of the business, it will nevertheless be used to a limited extent because of the court’s decision that the company should be so allocated to Noble Ellington.
Following the lead in his expert’s testimony that NECC was worthless, Noble Ellington’s “solution” is for the court to allocate the business to Peggy Traylor “at zero” meaning she would acquire all of the assets, assume all liabilities and pay no equalizing payment. Such a solution would be unjust. In the first place, Peggy Traylor is clearly not capable of operating the business. Without demeaning the work she performed during her many years in the company, the testimony makes it very clear that her duties were essentially clerical. She neither bought nor sold cotton, nor did she make business decisions. Secondly, considering the family bitterness preceding the trial and which presumably still prevails, it is virtually certain that if she acquired the business, none of the present management would remain. It is almost too obvious to merit mention that Noble, Ryan, Noble III and Denise Ellington could, without any legal impediments, immediately open a new business with a very similar name and retain all of the customer base which has been developed through the years. Even if Peggy Traylor were capable of operating the business as |n claimed in Noble Ellington’s memorandum, or even if she could hire an experienced cotton buyer, she would almost certainly have no customers. Even Noble Ellington’s expert witness recognized that 92% of the customer base was attributable to Noble and Ryan Ellington and none was attributed to Peggy Traylor. Counsel for Ellington claim[s] that it would be unfair to allocate the company to Noble Ellington at a value disproportionate to the value of the same company if allocated to Peggy Traylor. That would be a valid statement if the property at issue was a house, or a car, or a piece of farmland. However, it loses its validity in partitioning NECC. The court is not aware of either statutory or jurisprudential law prohibiting courts from recognizing that a community business can have different values depending upon which spouse acquires it.
The business which has made both Noble Ellington and Peggy Traylor wealthy while at the same time enjoying a comfortable life style is, in this court’s opinion, capable of generating handsome incomes for the four members of the family who are presently operating the business. For the court to find that the company has no value in the hands of Noble Ellington based upon financial records showing a negative net worth based on tangible assets only, would be error and a clear abuse of the court’s discretion in partitioning the community.

We agree. As noted by the supreme court in Robinson, supra, in allocating community assets and liabilities pursuant to La.R.S. 9:2801, the trial court has the discretion to divide an asset such as a community owned corporation equally or unequally or to allocate it in its entirety to one of the spouses. In doing so, the court has to consider the nature and source of the asset, the economic condition of each spouse and any other circumstance the court thinks is relevant. (Emphasis added). In the instant case, the trial court determined that the value it placed on NECC was dependent upon which spouse would receive the business. The record, particularly the testimony of the parties and their sons, as well as their respective expert witnesses, supports this conclusion. This assignment of error is without merit.

[ xzUse of Capitalization of Earnings Method Based upon an Average of Ten Years’ Corporate Earnings

The trial court rejected the valuation method of Noble’s expert, Carlton Clark, because it did not include a value for goodwill and instead used the capitalization of earnings method espoused by Peggy’s expert, Zoe Meeks, into which an amount for goodwill was factored. In support of its choice of methodology, the court noted the following:

Noble Ellington is the heart of the business. That is one of the difficulties in attempting to use the ordinary meaning of goodwill in a community partition. Perhaps the answer is that NECC has an intangible value which should be recognized but simply does not fit the usual definition of goodwill. Clark, who testified on behalf of Noble Ellington, said that there was no goodwill but later said that the goodwill is personal and nontransferable without the efforts of Noble Ellington. Whether the designation is goodwill or simply intangible asset or some other term should not be important. What is important is what it does to the value of the business, irrespective of its designation.... In this court’s opinion, there is something which makes NECC a successful business. For lack of a better term, it appears to the court that the item being dealt with is the customer base which the company has built through the years beginning in 1979. There is no magic in the term “customer base” other than it may be free of the restrictive definitions of goodwill. In his testimony, Clark, while denying the existence of goodwill, used the term customer base, estimating that 55% of the customer base of the company is attributable to Noble Ellington and 37% is attributable to Ryan Ellington.
The court has reviewed the Louisiana case law relating to goodwill, particularly with reference to community businesses which were partitioned by the courts. It is essential to distinguish the cases which decided that goodwill could not even be considered because of the nature of the business from the cases in which the courts have determined that, although goodwill may be an issue, the evidence did not establish a separate value based on goodwill. As this court understands the case law, the only businesses which have thus far been excluded from the consideration of goodwill because of the nature of the services provided are medical, legal and engineering practices. Based upon the testimony of Clark and the argument in memorandum, apparently Noble Ellington contends that his cotton buying business should also be excluded from having a goodwill value on the same basis as physicians, attorneys and engineers.
11 Godwin v. Godwin [538 So.2d 1009 (La.App. 1st Cir.1988), unit denied, 537 So.2d 1165 (La.1989) ], had facts similar to the present case. The community owned a carpet, drapery and wallpaper installation business. The husband did most of the work himself but sometimes used contract labor. The wife sometimes assisted in the business by answering the telephone and maintaining the books. The business had very limited tangible assets but the wife claimed the business was worth $300,000 based on goodwill. As in this case, the husband claimed that the business had no value. He asserted that goodwill should not be used in determining value because of the nature of the service he rendered, citing cases in which the husbands had medical practices. The court [in Godwin ] distinguished the facts from the “one man ‘professional’ corporations” and referred to the business ... as a “commercial business.” The trial court accepted an expert’s valuation of $64,000 based upon the business’ goodwill and that valuation was affirmed on appeal. By way of comparison, there is no doubt that the husband was a “professional” carpet installer and wallpaper hanger but his relationship with his customers was clearly different from the relationship of a physician to a patient or an attorney to a client.
... [T]his court finds that NECC can and does have an intangible asset value and whether that intangible value is termed goodwill, customer base or something else is not important. What is important, and also much more difficult, is using that intangible value in determining the total value of the business.

Having reviewed extensively the jurisprudence regarding goodwill and the propriety of its inclusion in the value of a community corporation such as NECC, we agree with the trial court that valuation of the Ellingtons’ business should include consideration of an intangible value predominantly attributable to NECC’s customer base.

Therefore, we will continue our analysis into the trial court’s choice of valuation methodology. Clearly, having determined that goodwill would be a factor, the trial court could not accept the net asset valuation method espoused by Mr. Clark, which did not include a valué for goodwill. The trial court concluded as follows:

| uThe court finds that the income or earnings approach is the most reasonable in the present factual setting but not in the manner applied by Meeks. Although she had compiled the financial information of the company over a period of nine years, she chose to simply choose one year (2000) upon which to determine “Normalized Net Income.” That figure is $153,752 after provision for income taxes. That was the amount used as the “Benefit Stream” in the formula leading to a value of $682,342. She next did what she termed an “Excess Earnings Calculation” which resulted in a value of $653,509. By averaging the Normalized Net Income amount and the Excess Earnings Calculation, she arrived at a rounded value of $668,000. By comparison, Clark did an earnings calculation based upon the last six years of the company’s operation and arrived at an annual adjusted pre-tax earnings figure of $18,427. However, he decided against an earnings approach and concluded that a net asset value method was necessary, presumably because the earnings figure would include goodwill which he felt should be excluded. Accordingly, he did not calculate a value of the business based upon his earnings calculations. Although he chose not to use the income approach, Clark testified that if an income approach is used, a single year, which was used by Meeks, is not an accurate basis to determine the company’s value and that a number of years can better reflect the expected “benefits stream.” The court accepts Clark’s opinion on that issue and finds that Meeks’ choice of using earnings only in the most recent year to determine a “benefits stream” is not the most accurate method available.

Having reviewed the testimony and reports of the two experts, we agree with the trial court’s conclusion to use the income approach, but with an average from a number of years as opposed to a single year’s income. As noted by Noble, Ms. Meeks’ valuation did not include up-to-date figures which were available to her; the trial court’s reluctance to base a corporate value upon a single year’s income, that year not even reflecting the most recent activity, is understandable. Therefore, we will not disturb steps one through six of the trial court’s calculation.

Regarding adjustments, the trial court determined that Ms. Meeks’ adjustments to income were more appropriate than those of Mr. Clark. Again, this is reasonable and is supported by the record, given that the trial court chose an income methodology over a net asset approach. We likewise find no error in the fact that the trial court factored into its valuation Mr. Clark’s determination that NECC had a negative net worth of $55,000.

Diversion/Mismanagement of Community Assets

The trial court rejected Peggy’s claim that Noble intentionally diverted funds out of NECC, causing a loss of earnings and a diminution in the value of the community business. On appeal, she asserts that this conclusion is contrary to the evidence and asks this court to reverse that portion of the trial court’s judgment and either award her damages or add a commensurate amount to the value of NECC.

Article 2369.3 of the Louisiana Civil Code provides in pertinent part:

|1fiA spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default or neglect.

As noted in the 1995 comments, this article imposes a higher standard of care in managing and maintaining former community property than the standard imposed during the marriage. The reason for the higher standard of care is that, after termination of the community property regime, the presumption that a spouse will act in the best interest of the community no longer exists. Knighten v. Knighten, 00-1662 (La.App. 1st Cir.09/28/91), 809 So.2d 324, writ denied, 01-2846 (La.01/04/02), 805 So.2d 207; Comment (a), Article 2369.3.

The spouse alleging improper management bears the burden of proving that her former spouse failed to manage and prudently preserve the former community property prior to partition. Anding v. Anding, 32,084 (La.App.2d Cir.08/18/99), 740 So.2d 253; Drobnak v. Drobnak, 97-0021 (La.App. 1st Cir.02/20/98), 708 So.2d 1162. Comment (c) to La.C.C. art. 2369.3 provides that a spouse who asserts a claim under this article is required to prove that the other spouse failed to act prudently in a manner consistent with the mode of use of the property under his control immediately prior to termination of the regime, not simply that he had former community property under his control. The spouse who has control over former community property is in a position similar to that of a usufructuary and thus owes a high standard of care, that of a prudent administrator, in managing and preserving former community assets. |17 Comment (e), La.C.C. art. 2369.3. As noted by the Third Circuit in Gibson v. Gibson, 96-1472 (La.App. 3d Cir.04/02/97), 692 So.2d 708, 710, bad faith is not required under article 2369.3 because the spouse is “answerable for any damage caused by his fault, default or neglect.”

The trial court, in its written reasons for judgment, analyzed La.C.C. art. 2369.3 and noted that, while the provision imposes a higher standard of care on the spouse with community property under his control, it does not clarify the burden of proof for the spouse claiming mismanagement. Therefore, the court analogized the instant case to one involving a challenge to corporate transactions [see Dunbar v. Williams, 554 So.2d 56 (La.App. 4th Cir.1988)], and, based upon Peggy’s challenge to the integrity of the transactions between NECC and EWCC, placed the burden of proof upon'Noble to establish that the transactions between the two companies were at arm’s length and in good faith. The court found that Noble proved that the corporate dealings were at arm’s length and therefore rejected Peggy’s claim. The court also found that Noble met his burden of proof regarding his organization of Ellington Cotton Company and the “cashing in” of a certificate of deposit.

The trial court’s determination that there was no merit to Peggy’s claim of diversion/mismanagement of assets is subject to the manifest error/clearly wrong standard. See Anding, supra. We will therefore examine the record to determine whether there is a reasonable factual basis for the trial court’s finding.

Peggy claimed that two corporate entities were formed for the purpose of diverting community assets from NECC. As did the trial court, we will examine the evidence regarding the formation and operation of each business.

The first one, Ellington Cotton Company, was organized in 1998 by the parties’ sons. It is uncontradicted that this business was formed by Ryan and Noble III because they did not want to be “in the middle” of their parents’ dispute about NECC and because they wanted to go into business for themselves. The trial court found that there was nothing sneaky or underhanded about the sons’ organization of this business, nor was there any intent to cause problems or financial damage to their mother. Having read the testimony of Ryan and Noble III, we agree. When Peggy’s attorney found out about the new company, he advised Noble and his attorney that because of Ryan’s position with NECC, he had a conflict of interest and the new company’s organization was a potential breach of his fiduciary duties. At that point, Ryan and Noble III agreed to discontinue their business and every transaction which had been conducted was backed out and rebooked through NECC. Again, there was no damage to NECC. The record also supports this finding of the trial court, as well as the court’s determination that Noble and his sons were not “caught” trying to hurt Peggy Traylor.

The second entity allegedly formed to divert assets from NECC was Ellington-Weaver Cotton Company, LLC (“EWCC”). EWCC was formed by Noble Ellington, his sons and Robert Weaver. All related parties testified regarding their reason for forming EWCC, which was to enable the [1flEIlingtons to get into the business of shipping cotton to textile mills. All three Ellingtons testified that NECC, whose business was buying cotton, would benefit from their venture with Mr. Weaver, who had the contacts and expertise in shipping that they lacked. Furthermore, it was their testimony that the shipping business was more risky than the buying business and they did not want to subject NECC to these greater risks.

Although Ryan was the most interested in the Ellingtons getting into the shipping business, Noble III, Noble and Mr. Weaver realized a mutual advantage in going into business together. It was neither practical nor feasible to make Mr. Weaver a part owner of NECC or the Ellingtons part owners of his company, so formation of a new business with shared ownership was the logical solution. EWCC was formed in October 1999, with Mr. Weaver owning one-half and Noble, Ryan and Noble III each owning one-sixth of the business.

Specifically, Peggy claimed that NECC sustained losses from sales of cotton at below cost to EWCC. As the trial court observed, the evidence establishes both that NECC sold cotton to EWCC over a two-year period and that NECC realized major losses in one of these years. The following is from the trial court’s written reasons:

With a background of a bitter dispute about partitioning the business and a further background of the business having been profitable in almost every prior year, the transactions between the two companies understandably caused grave suspicion and were very probably the leading factor leading to this litigation. For obvious reasons, a major loss under those circumstances was a “red flag” to Peggy Traylor and her attorneys.
Meeks testified that in her opinion, one of the reasons for the loss was the sale of cotton to EWCC at lower than market prices. The | ^documentary evidence, together with Meeks’ admissions on cross-examination and the testimony of the witnesses on behalf of Noble Ellington who actually conducted the transactions, establish that Meeks was in error. She did not understand many of the factors involved (such as deductions for payments to the Cotton Board, the “first in, first out” rule and others) and she had not examined all of the documents necessary to evaluate the transactions. To take one purchase from one farmer and attempt to follow it through the process to its sale does not accurately reflect the transactions of which that particular cotton is a part. Hundreds or even thousands of bales are “booked” in advance of sales and when large amounts are included in a sale, there may be individual lots of cotton which are being sold for less than the price for which purchased, but the entire transaction may result in a profit. It is vital to recognize that the market price of cotton is quoted daily on the Memphis cotton exchange and historical records of those prices are available. In the sales to EWCC, the evidence not only refutes the claim that cotton was sold below market but it shows that in fact, NECC made profits on those transactions.

The trial court went on to examine the record for an explanation for the company’s large loss the same year it conducted business with EWCC and relied primarily upon Noble’s testimony:

Noble Ellington testified that losses occur in the normal course of business. Sometimes it is necessary to pay more for cotton than what it will be sold for in order to meet a previously “booked” price to a buyer. Minor losses are usually made up by profit on other transactions but sometimes they are not. Losses can also occur for other reasons. [Noble] testified as to how one particular loss occurred during the period in question and it had nothing to do with EWCC. He admitted mistakes were made and that a large purchase “fell through the cracks.”

The trial court found that the company records supported Noble’s explanation, and also that the market continued to slide downward and that they failed to get the cotton hedged, at a loss of $160,000 to NECC. The court pointed out, however, that this loss did not affect only Peggy, but affected equally Noble’s interest. The court accepted Noble’s explanation of the company losses and observed that the records and invoices relating to the sales to EWCC, as well as the testimony of other witnesses, particularly Li Mr. Weaver, all support that the conclusion that the transactions between the two companies were at arm’s length and in good faith. Placing emphasis on its discretion to hear and observe the witnesses, the trial court further found that there was no “kickback” arrangement between Mr. Weaver and Noble Ellington. The record supports the trial court’s determinations in this regard.

However, our inquiry is not over until we review the trial court’s determination regarding the “cashing in” of a $500,000 certificate of d.eposit. The following is taken from the trial court’s written reasons for judgment:

In January of 1999, the company owed a substantial debt to Franklin State Bank. In addition to the company’s cotton inventory, the debt was secured by a $500,000 certificate of deposit registered in the name of NECC and issued by the same bank. The interest rate on the loan was 2% greater than the interest rate of the CD. Primarily on the recommendation of Noble Ellington III, it was decided that the debt should be paid down by redeeming the CD and applying those funds together with $850,000 cash on hand at the company. Using the CD funds reduced the annual interest being paid by the company by $10,000.
When Peggy Traylor learned that the company no longer owned the CD, she apparently concluded that something improper had occurred. When asked “what possible reason” could she think of for the company paying the $850,000 to the bank, her answer was “to keep me from getting half of it.” Such a response reveals how little she understood about the company’s business. On cross-examination, even Meeks admitted that applying the funds to the debt for the purpose of reducing interest indebtedness was a good business decision. As a director and the owner of half of the company’s stock, Peggy Traylor should have been consulted, or at least informed, of the transaction. However, the evidence indicates that she had not been consulted on management decisions prior to that time, even when she was an employee. There is likewise no evidence indicating that she asked to be consulted or wished to be consulted. Nevertheless, recognizing her position as a director and shareholder, partieu-larly Rafter her employment terminated, would have been a desirable change, irrespective of her failure to request it. Keeping her informed would have, at the very least, explained the “disappearance” of the CD.
Using company money to reduce company debt is too simple an issue to warrant further discussion. There is no evidence even remotely indicating that such a move was intended to, nor did it in fact, prejudice NECC or Peggy Traylor in any way.

Having reviewed the record, we likewise find no error in the trial court’s determination that Noble’s use of the $500,000 CD to reduce outstanding company debt did not rise to the level of mismanagement or diversion. We conclude that the trial court correctly found that Peggy’s article 2369.3 claim was not meritorious.

Conclusion

For the reasons set forth above, the trial court’s judgment is AFFIRMED.

Costs of this appeal are to be divided equally between the parties.

AFFIRMED.

      . Peggy worked at NECC until the parties separated in August 1996.

      . After her divorce from Noble, Peggy married Louisiana Supreme Court Justice Chet Traylor. Prior to his election to the supreme court, Justice Traylor served as a district judge in the 5th J.D.C. In light of this fact, all of the judges of the 5th J.D.C. recused themselves from the partition suit and an ad hoc judge was appointed by the supreme court.

      . Other parties were added as defendants and other causes of action were asserted by supplemental pleadings filed by Peggy. These additional parties and causes, however, have been dismissed and are no longer part of this litigation.

      .The parties also asked the trial court to include in the partition a grand piano. The court, however, found that this piano was not community property, but was either the separate property of Peggy or belonged to the parties' son, Noble III, who was not a party to the partition proceeding. Therefore, ownership of the piano was not determined by the court.

      . According to Mr. Clark, the company's goodwill is personal and therefore should not be considered.

      . The parties have not questioned the 22.5% used by Ms. Meeks.

      . Neither party assigned as error step five, deduction of 34% for estimated income taxes or step six, division of the balance by 22.5% (Ms. Meeks’ discount rate for benefit stream.)

      . In his appeal, Noble asserted that the trial court erred in failing to allow him offsetting credits against the value of NECC. He urges this court that the company value should be offset with: a $10,000 "loan’’ to Peggy; $139,443.19, which is the salary Peggy received from NECC after she ceased working there; and $238,630, which represents loans to the parties. Addressing first the shareholder loans, the trial court found that these were not loans, but withdrawals or shareholder dividends used for community purposes which were simply carried on the books of the company as loans for tax purposes. The court noted that the alleged borrowers never signed notes evidencing the debts, nor was there any type of debt repayment schedule. Regarding the amounts received by Peggy after she stopped working for NECC, the trial court noted that there was no objection to Peggy’s withdrawal of $10,000 and that her salary and expenses were voluntarily paid by the management of the company. Notwithstanding her withdrawal from the day-to-day affairs of the community business, Peggy remained a director and the owner of one-half of the corporate stock. We agree with the trial court that reimbursement or offsetting credits are not appropriate. This assignment of error is without merit.


author: I WILLIAMS, J.

text:
    The ESTATE OF Guy Wilson WILBURN, et al., Plaintiff-Appellant, v. Dr. Ben LEGGIO and Desoto Regional Health System, Defendant-Appellee.
    No. 36,534-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2003.
    Writ Denied June 6, 2003.

      Georgia P. Kosmitis, Shreveport, for Appellant.
    Mark A. Goodwin, Shreveport, for Ap-pellee, Dr. Ben Leggio.
    Rene’ J. Pfefferle, Baton Rouge, for Ap-pellee, DeSoto General Health System.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   I WILLIAMS, J.

In this medical malpractice action, the plaintiffs, Estate of Guy Wilson Wilburn, the legal representative of the decedent’s husband and the decedent’s major children, appeal a summary judgment in favor of the defendant, Desoto Regional Health System d/b/a DeSoto General Hospital (“DeSoto General”), dismissing the plaintiffs’ claims. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In June 1991, the decedent, Lela Wilburn (“Wilburn”), was admitted to the Heritage Manor Nursing Home, in Mansfield, Louisiana. In September 1992, Dr. Ben Leggio began treating Wilburn, as her primary care physician. Dr. Leggio provided medical care and treatment for Wilburn in the nursing home, in his office and at DeSoto General.

In their petition, plaintiffs allege that on numerous occasions, between September 1992 and November 1995, Wilburn was admitted to DeSoto General suffering from improper care and attention, coupled with signs of drug addiction. Specifically, plaintiffs allege that Dr. Leggio inappropriately treated Wilburn’s medical condition, which was diagnosed as “phantom leg pain.” They allege that Dr. Leggio failed to obtain a consultation or inquire into any alternate treatment plans for Wilburn. Instead, he improperly ordered and administered narcotic medications to her. According to the plaintiffs, as a result of Dr. Leggio’s treatment, Wilburn suffered an increased reliance on opioids, benzo-diazepines and 1 j>phenothiazines. Plaintiffs allege that Dr. Leggio failed to monitor the medications and plan of treatment provided by the nursing home for the care of Wilburn. Additionally, the plaintiffs allege that agents of DeSoto General provided “over the phone” care to Wilburn by authorizing medications without a physician’s order.

On several occasions, Wilburn was taken to the emergency room of DeSoto General and was found to be in extreme crisis and near a diabetic coma. She had knots or calcifications on her buttocks which resulted from the numerous injections of excessive medications she was receiving at the nursing home. She was also found to be suffering from an addiction to prescription medications, which required that she be hospitalized in the detoxification unit.

On November 17, 1995, Wilburn was transferred to the DeSoto General emergency room where she was administered the drug Toradol. According to the plaintiffs, this drug was clearly contraindicated in Wilburn’s case. Dr. Leggio was working in the emergency room at the time of Wilburn’s arrival and ordered the Toradol. She was transported to Willis-Knighton Medical Center, in a semi-comatose state, suffering from severe pneumonia, dehydration, malnutrition, a urinary tract infection, renal insufficiency and septicemia. Wilburn later died from her condition.

On July 1, 1996, the plaintiffs filed a medical malpractice claim against defendants, Dr. Leggio and DeSoto General, pursuant to the Louisiana Medical Malpractice Act. LSA-R.S. 40:1299, et seq. The claim was presented to a medical review panel, which rendered the opinion that laDeSoto General did not breach the standard of care in this case. However, the plaintiffs filed suit for the personal injury and wrongful death of Wilburn alleging: (1) the hospital’s agents, including Dr. Leggio, caused injury to Wilburn by inducing a drug addiction and authorizing the administration of medication without a physician’s order; (2) the hospital breached its duty to hire competent physicians and ensure patient safety and patient rights; and (3) the hospital, through its contracts, relationships, employment arrangements and employees, provided substandard care and perpetuated the substandard care that was provided by Dr. Leggio.

Dr. Leggio and DeSoto General filed motions for summary judgment asserting that there was a complete absence of expert testimony to support the plaintiffs’ contention that DeSoto General had breached the standard of care in connection with the treatment of the decedent. After a hearing, the trial court denied Dr. Leggio’s motion for summary judgment. However, the court granted DeSoto General’s motion and dismissed all claims against the hospital. The trial court found that there were no material issues of fact with regard to the vicarious liability of DeSoto General, but all proceedings with regard to Dr. Leggio would continue. The plaintiffs appeal the summary judgment in favor of DeSoto General.

DISCUSSION

On appeal, the plaintiffs contend the trial court erred in granting summary judgment in favor of DeSoto General because genuine issues of material fact exist as to its liability. The plaintiffs argue that the trier of fact should determine the following issues: (1) Whether Dr. Leggio was an [/‘employee agent” of DeSoto General or an “independent contractor,” and (2) Whether DeSoto General breached its duty to provide “quality care and competent physicians to Wilburn, and as a result, is liable for any negligent acts of Dr. Leg-gio.”

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be denied. Stroder v. Horowitz, 34,048 (La.App.2d Cir.12/20/00), 776 So.2d 1175. The party seeking summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Barnett v. Staats, 25,857 (La.App.2d Cir.1/19/94), 631 So.2d 84. Recent amendments to LSA-C.C.P. art. 966 were intended to bring Louisiana summary judgment procedure more closely in line with the federal standard. These enacted changes have leveled the playing field for the litigants. Documentation submitted by the parties will now be scrutinized equally and the earlier overriding presumption in favor of trial on the merits has been removed. In fact, summary judgment procedure is now favored to secure the just, speedy, and inexpensive determination of all except certain disallowed actions. LSA-C.C.P. art. 966 A(2); Campbell v. Hospital Service District No. 1, Caldwell Parish, 33,874 (La.App.2d Cir.10/4/00), 768 So.2d 803, writ denied, 2000-3153 (La.1/12/01), 781 So.2d 558. The mover has the burden of establishing the absence of a genuine issue of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. LSA-C.C.P. art. 966(C)(2). The duty of the appellate court is to conduct a de novo review of the documentation supporting and opposing summary judgment under the same criteria which govern the trial court’s determination of whether summary judgment is appropriate. Stroder v. Horowitz, supra.

A hospital is responsible for the negligence of its employees under the doctrine of respondeat superior. Under this theory, the standard of care and burden of proof involved is the same as for the physician whose activities are questioned. Campbell v. Hospital Service District No. 1, Caldwell Parish, supra.

To prevail in a medical malpractice action against a physician, the plaintiff must establish that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical spe-ciality, and also that a causal relationship existed between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Stroder v. Horowitz, supra; Campbell v. Hospital Service District No. 1, Caldwell Parish, supra. Subsequently, when a patient dies and the aforementioned causal relationship exists, the plaintiff need only prove that the defendant’s malpractice resulted in the loss of a chance of survival, and is not faced with [fithe unreasonable burden of demonstrating that the patient would have survived if properly treated. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986).

Expert testimony is necessary to prove that the health care provider failed to possess the required skill and knowledge or failed to exercise reasonable care and diligence. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991). However, that necessity for expert evidence is abolished as to the standard of care required by the hospital or doctor where a reasonable juror can conclude that neghgence has occurred. Hastings, supra.

In the present case, DeSoto General moved for summary judgment asserting that it did not exercise control over Dr. Leggio’s activities or decisions in the emergency room and that it was not responsible for any neghgence, if found, of the doctor. In support of its motion, De-Soto General submitted the report issued by the medical review panel. In opposition to the motion, the plaintiffs filed the affidavit of Dr. Lige Borroughs Rushing, a physician board certified in internal medicine, rhuematology, and geriatrics.

Dr. Rushing opined that Dr. Leggio breached the standard of care with regard to Wilburn’s treatment by:

1. Failing to explore additional and/or alternative treatment for her phantom hmb pain;
2. Failing to seek consultation;
3. Failing to adequately evaluate Wilburn’s depression; and
4. Failing to adequately treat Wilburn’s depression.

Although Dr. Rushing’s opinion criticizes the acts or omissions of Dr. |7Leggio, and not the hospital, DeSoto General can be held liable for the negligent acts of Dr. Leggio through the law of vicarious liability once a plaintiff has established the employment relationship between the two.

The medical review panel is a pre-trial screening procedure designed to give both parties a preliminary view of the merits of the case. Everett v. Goldman, 359 So.2d 1256, 1264 (La.1978); Rowsey v. Jones, 26,823 (La.App.2d Cir.5/10/95), 655 So.2d 560, 576. Contrary to DeSoto General’s arguments, the medical review panel’s findings are not to have a preemptive or dispositive effect on subsequent litigation. Everett, supra at 1267.

DeSoto General argues that the trial court was correct in granting the motion for summary judgment. It examines both Powell v. Fuentes, 34,666 (La.App.2d Cir.5/9/01), 786 So.2d 277and Campbell v. Hospital Service District No. 1, Caldwell Parish, supra, and argues that those cases clearly involve emergency room physicians who were providing services at the respective hospitals pursuant to emergency-room physician contracts, and the emergency-room physician contracts and other documents were offered into evidence to create material issues of fact. Although DeSoto General disagrees with the result reached in those cases, it contends that a distinction from the present case can be readily made because Dr. Leggio was the regular and preferred physician of the deceased. DeSoto General further contends it is not responsible for the actions of Dr. Leggio and it did not breach the standard of care required. DeSoto General argues that it had no control over Dr. Leggio’s decisions and its main function was to provide the facilities as directed by the physicians. Campbell v. Hospital Service District No. 1, Caldwell Parish, supra; Tabor v. Doctors Memorial Hospital, 563 So.2d 233 (La.1990).

The legal issues in this case are very similar to the legal issues presented in Powell v. Fuentes, supra. There, as in the case sub judice, the medical review panel found that the standard of care required by the hospital/defendant had not been breached. On appeal in Powell, this court noted that “the distinction between employee and independent contractor status is a factual determination that must be decided on a case-by-case basis, taking into consideration the total economic relationship between the parties and the various factors weighing out in favor of or against an employer-employee relationship.” We also noted that the “most important element to be considered is the right of control and supervision over an individual.” We explained that the power to control is the deciding factor within the relationship, not whether supervision and control was actually exercised. We further held that even the existence of an independent-contractor agreement is not necessarily dis-positive of the issue of whether a doctor is an independent contractor as opposed to an employee of the hospital.

A similar situation was also presented to this court in Campbell v. Hospital Service District No. 1, Caldwell Parish, supra. There, the plaintiff argued that a hospital was liable for the actions of the emergency room physician under the theory of re-spondeat superior. The hospital responded that the emergency room doctor was an independent contractor, employed by a company that contracted to supply emergency room physicians to the |9hospital.

We note, and plaintiffs emphasize in their brief, that the physician in the Campbell case was a member of Gould Group, the same physician staffing service of which Dr. Leggio was a member. Dr. Leggio states in his deposition that he was not working in the hospital’s emergency room pursuant to his contract with Gould Group. However, as stated above, this court found, in Campbell, that the existence or non-existence of a emergency care contract is not necessarily dispositive of the issue of whether the doctor is an independent contractor, as opposed to an employee of the hospital.

In both Campbell and Powell, this court found that summary judgment was not appropriate. We explained that it is unreasonable to expect persons entering the hospital to know whether the physicians treating them are “independent,” and not agents and/or employees of the hospital.

In the instant case, Dr. Leggio admitted in his deposition that when he was working in the emergency room at DeSoto General Hospital, there were no notices, or other communications to inform the patient that he was not an employee of the hospital. DeSoto General’s contention that notice was apparent and unnecessary to the deceased because she was a long term patient of Dr. Leggio, and therefore, knowledgeable of his employment status, is illogical and unreasonable. Clearly, most individuals who make regular visits to their family physician do not inquire as to their doctor’s employment contracts with a particular hospital or medical center. The 11flknowledge of the patient has nothing to do with the hospital’s control over the physician. It is within the duty of the hospital to ensure that they hire only competent physicians and to verify that they are able to render care in a competent manner. This duty extends to all employees whether they are independent contractors, full-time, part-time or temporary workers. Campbell v. Hospital Service District No. 1, Caldwell Parish, supra.

We find that a genuine issue of material fact exists as to whether DeSoto General controlled, or had the right to control, the manner in which Dr. Leggio rendered his services. We also note that plaintiffs have alleged independent acts of negligence on the part of DeSoto General which clearly create genuine issues of material fact. Therefore, we conclude that summary judgment in favor of DeSoto General was improperly granted.

CONCLUSION

For the reasons expressed above, the judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to DeSoto Regional Health System d/b/a DeSoto General Hospital.

REVERSED AND REMANDED.

      . In the petition, the plaintiffs are individually listed as follows: The Estate of Guy Wilburn, Herman Pete Sepeda, Jewell Phillips, Ruby Remedies, Wilbert Maxey, Joann Warren, Johnny Remedies, Billy Sepeda, Jack Sepeda, Edward Sepeda, Carolyn Stockton, Danny Wilburn and Peggy Mobley.


author: JjDECUIR, Judge.

text:
    STATE of Louisiana v. Mark Anthony BROWN.
    No. 02-1382.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.
    J. Phillip Haney, District Attorney, New Iberia, LA, for State of Louisiana.
    Thomas M. Calogero, Regan, Manasseh & Boshea, New Orleans, LA, for Mark Anthony Brown.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   JjDECUIR, Judge.

The Defendant, Mark Anthony Brown, was charged by bill of information with possession with intent to distribute marijuana, in violation of La.R.S. 40:966(A). The bill of information was later amended to reflect the charge of attempted possession with intent to distribute marijuana. The Defendant pled guilty to the amended charge and was sentenced to five years at hard labor with credit for time served. After a motion to reconsider sentence was denied, the Defendant filed this appeal and now seeks review of his sentence.

FACTS:

On October 14, 1999, the Defendant was a passenger in a vehicle driven by Wesley Harris. The two men were stopped for a traffic violation on Interstate 10 in St. Martin Parish. After the men gave the officer conflicting stories regarding their origin of travel, the officer obtained permission to search the vehicle. The search of the vehicle yielded twenty-eight pounds of marijuana found in a hidden compartment. According to the officer’s affidavit, the Defendant stated the drugs belonged to him. The driver of the vehicle denied any knowledge of the secret compartment or the drugs. The record indicates the Defendant is a paraplegic and is confined to a wheelchair. He has no prior felony convictions.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. In this case, we find error in the sentencing minutes which requires correction. The minutes indicate that the Defendant was sentenced to serve fifteen years at hard labor with ten years suspended; however, the sentencing transcript states the Defendant was sentenced to serve five years at hard labor. “When there is a conflict between the transcript and the minutes, the transcript prevails.” State v. Guillory, 00-386, p. 19 (La.App. 3 Cir. 11/2/00), 773 So.2d 794, 805, writ denied, 00-3334 (La.11/9/01), 801 So.2d 362. We must therefore remand for correction of the sentencing minutes.

ASSIGNMENT OF ERROR:

The Defendant argues that his five year sentence at hard labor is excessive and that the trial court failed to adequately consider such mitigating factors as his paralysis and lack of a prior criminal record in conformity with the sentencing guidelines of La.Code Crim.P. art. 894.1.

In determining whether a sentence is excessive, this court applies the following standard:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals, and therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982).

State v. Walker, 96-112, p. 3-4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534-35, writ denied, 96-1767 (La.12/6/96), 684 So.2d 924.

The Defendant was sentenced to five years at hard labor with credit for time served. Under the original charge of possession with intent to distribute marijuana, the Defendant was exposed to a potential thirty-year sentence. However, after the charge was amended to attempted possession with intent to distribute marijuana, his sentence exposure decreased to fifteen years at hard labor. The Defendant bene-fitted from the plea bargain, and the trial court imposed a low-range sentence of five years.

|aThe Defendant argues the trial court failed to adequately consider his paralysis and lack of a prior criminal record as mitigating factors. With respect to the issue of compliance with La.Code Crim.P. art. 894.1, this court stated in State v. Hopkins, 96-1063, pp. 6-7 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541:

The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La.Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph (c) of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The trial court need not refer to every aggravating and mitigating circumstance in order to comply with the article. However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983).
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 resentenc-ing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983).

See also State v. Iron, 00-1238, p. 10 (La.App. 3 Cir. 2/14/01), 780 So.2d 1123, 1128, writ denied, 01-1232 (La.3/15/02), 811 So.2d 898.

As stated in State v. Cottingin, 476 So.2d 1184, 1186 (La.App. 3 Cir.1985) (citations omitted):

There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines.

At the sentencing hearing, the trial court expressly noted several aggravating and mitigating circumstances particular to the Defendant and the nature of the offense committed:

14Mr. Brown, in considering the appropriate sentence in your case, I’ve taken into account the information provided to me today from the pre-sentence investigative report, the information provided by the lawyers, the letters that were presented on your behalf, and the provisions of Code of Criminal Procedure Article 894.1. I note that you’ve had no criminal activity for the past — for a period of eleven, almost eleven years, before the present offense — present arrest, I should say. I note that this did not involve any violence or threats of violence, or the use of any firearm or dangerous weapon. I’ve taken into account the amount of marijuana involved in this case. It concerns me, your lawyer indicates that, you know, this was one mistake for over a period of being a contributing member to society in a good way, but this would be different if it was just a possession with intent to distribute that, in a weak moment, you got some marijuana and transported it for financial gain. This is, you grew this marijuana which took an extended period of time and it involved more than just one weak moment.
Based on this information and these considerations, it’s the sentence of this court that you serve five (5) years at hard labor with the Department of Public Safety and Corrections. You get credit for all time served since your arrest.

The Defendant asked the trial court to consider his paralysis as a mitigating factor at both the sentencing hearing and the hearing on his motion to reconsider sentence. The court was aware of the Defendant’s medical condition, although it did not specify that condition as a factor in the sentencing decision. In State v. deBeche, 01-1088 (La.App. 3 Cir. 1/6/02), 815 So.2d 1028, writ denied, 02-0686 (La.9/13/02), 824 So.2d 1187, this court refused to find excessive a twenty-five year sentence imposed on a defendant with congestive heart failure. Similarly, in State v. Graham, 35,184, p. 6 (La.App. 2 Cir. 10/31/01), 799 So.2d 645, 650, the trial court heard evidence regarding the defendant’s medical condition but “the court was not required to find Graham’s disability a persuasive mitigating condition considering that his physical condition did not stop Graham from selling cocaine.” Id. at p. 6, 650. Furthermore, La.R.S. 15:574.20(A) provides, in pertinent part, that “any person sentenced to the custody of the Department of Public Safety and Corrections may, | supon referral by the department, be considered for medical parole by the Board of Parole.”

The Defendant further contends the trial court failed to give adequate consideration to his first offender status. However, the record reflects the trial court acknowledged the Defendant’s lack of a criminal record in almost eleven years as a mitigating circumstance during sentencing.

Our review of the record reveals no manifest abuse of the sentencing court’s discretion. We conclude the trial court was familiar with and considered all mitigating factors in arriving at what it thought to be an appropriate sentence for the Defendant. On review, we find no error in the proceedings. Accordingly, the sentence imposed on Defendant is affirmed; this matter is remanded, however, for correction of the minutes.

SENTENCED AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: | .DECUIR, Judge.

text:
    Semeki TURNER v. CONAGRA POULTRY COMPANY.
    No. 02-1424.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Semeki Turner.
    John B. Saye, Hayes, Harkey, Smith & Cascio, L.L.P., Monroe, LA, for ConAgra Poultry Company.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   | .DECUIR, Judge.

In this workers’ compensation case, the claimant, Semeki Turner, appeals a judgment of the workers’ compensation judge denying her benefits, penalties, and attorney fees. For the reasons that follow, we affirm.

FACTS

On November 2, 1998, Semeki Turner had worked in the deboning department for ConAgra Poultry Company for approximately six years. On that date, while taking a break she pulled off her gloves and noticed a rash and blisters on her hands. She reported her discovery to her supervisor and was sent to the company nurse, who gave her some ointment and sent her back to work. Over the next several days, Turner’s condition worsened, and on November 17, 1998, she was referred to Dr. James D. Kneeht.

Dr. Kneeht diagnosed bilateral eczema and secondary fungal infection and restricted her to dry work. He prescribed Nyzoral, both oral and topical cream, as well as Cutivate cream. On December 1, 1998, the fungal infection had abated, but the eczema persisted. On December 15, 1998, Dr. Kneeht noted a flare-up of the eczema and prescribed prednisone, a Decadron injection, and changed to Pencare and Pandil cream. On December 29, 1998, Dr. Kneeht found right hand eczema only and ordered the prednisone continued and added hydrocortisone and Eucerin cream. On January 19, 1999, Dr. Kneeht noted recurrent bilateral eczema and referred Turner for a dermatology consult.

On February 10, 1999, Turner saw Dr. David J. Clemons, a dermatologist. Dr. Clemons found eczema and contact dermatitis and prescribed an injection of Kenalog and topical cortisone. Dr. Clemons saw Turner next on March 10, 1999 and again on April 21, 1999. On that date, allergy testing revealed an allergy to Carba mix which is found in rubber products, herbicides, pesticides, soaps, shampoos, disinfectants, hand some adhesives. Dr. Clemons concluded that she had allergies of an endogenous nature exacerbated by external factors which might be chemicals or possibly things at work. However, Dr. Clemons also noted that while Turner was off work for two to three weeks for an ankle injury, her hands cleared and reflared before her return to work. Dr. Clemons continued to see Turner until January 2, 2000 and then again on July 2, 2001. Dr. Clemons noted that Turner’s last day at ConAgra was February 1, 2001, but her problems persisted at her July visit. Dr. Clemons found nothing in her condition that would prevent her from working.

From the time she noticed the rash on her hands in November 1998 until February 6, 2001, Turner worked in various dry areas at ConAgra. On February 6, 2001, she was laid off by ConAgra. On May 23, 2001, Turner filed for workers’ compensation benefits. The matter was tried, and the workers’ compensation judge found that Turner had not established a work-related accident or occupational disease resulting in disability. The workers’ compensation judge denied all claims with prejudice. Turner lodged this appeal.

ENTITLEMENT TO BENEFITS

Turner first contends that the workers’ compensation judge erred in finding she was not entitled to benefits as a result of an occupational disease claim. We disagree.

In Coats v. American Telephone & Telegraph Co., 95-2670 (La.10/25/96), 681 So.2d 1243, 1246-1247 (footnote omitted), the court said:

Occupational disease is defined in LSA R.S. 23:1031.1(B) as follows:
An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, hand heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
In examining the merits of an occupational disease claim, the threshold question is whether or not the claimant has sustained an occupational disease resulting from causes and conditions characteristic of and peculiar to his particular trade, occupation, process, or employment. LSA R.S. 23:1031.1; Peck v. Procter & Gamble Manufacturing Co., 586 So.2d 714 (La.App. 3 Cir.1991). Proof of such a causal connection need not be shown to an absolute certainty. It is sufficient that the claimant establish the cause of his disability by a reasonable probability. However, even assuming that a claimant proves the existence of an occupational disease, the claimant also has the burden of proving that the injury was disabling. Miller v. Roger Miller Sand, Inc., 94-1151 (La.11/30/94), 646 So.2d 330.

In this case, the record fails to clearly establish that Turner suffers from an occupational disease. The medical evidence submitted indicates that Turner suffers an endogenous allergy to Carba mix products. One physician opined that this condition could possibly be exacerbated by things in the work place. However, this suggestion was mitigated by the fact that her condition both cleared and reappeared while off work for two to three weeks due to an unrelated accident and persisted months after she was laid off by ConAgra.

Accordingly, based on the record before us, we find that the workers’ compensation judge could reasonably have concluded that Turner failed to establish that she had an occupational disease.

Even if Turner established the existence of an occupational disease, she would still need to prove that her condition is disabling. The record before us clearly establishes that Turner continued to work at the ConAgra plant for over two years after her symptoms appeared. Furthermore, Turner did not offer any medical evidence to show that she was “physically unable to engage in any employment.” In fact, Dr. Clemons and Dr. Kneeht were of the opinion that she could return to work Usubject to certain dry work area restrictions similar to those already on Turner since her symptoms appeared in 1998.

After a thorough examination of the record, we find that the workers’ compensation judge was correct in determining that Turner failed to prove that she was disabled as a result of her condition. Thus, the workers’ compensation judge correctly determined that Turner was not entitled to benefits pursuant to LSA-R.S. 23:1031.1.

PENALTIES AND ATTORNEY FEES

Turner next contends the workers’ compensation judge erred in failing to award penalties and attorney fees. We disagree.

The determination of whether an employer should be cast with penalties and attorney’s fees is a question of fact, and the hearing officer’s findings shall not be disturbed on appeal absent manifest error. Woolley v. CAS Refining, Inc., 94-648 (La.App. 3 Cir. 1/11/95), 651 So.2d 860, writ denied, 95-1158 (La.6/16/95), 655 So.2d 331. We find no error in the workers’ compensation judge’s denial of penalties and attorney’s fees. As previously stated, Turner failed to establish disability and, therefore, penalties and attorney’s fees are inappropriate.

Finally, counsel for the claimant is admonished to refrain from language in briefs to this court that does not fully comply with Rule 2-12.4 of the Uniform Rules of the Court of Appeals.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to appellant, Semeki Turner.

AFFIRMED.