author: GASKINS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Robert HILL a/k/a Robert Adams (Cut Rate Bail Bonds & Accredited Surety, Inc.), Defendant-Appellant.
    No. 41,925-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Lavalle B. Salomon, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Cynthia Lavespere, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

|TIn this bond forfeiture case, the trial court granted an exception of prescription in favor of the plaintiff, State of Louisiana, and dismissed a motion by Cut Rate Bail Bonds, as agent for Robert Hill, and Accredited Surety, Inc. (Cut Rate), to set aside a judgment of bond forfeiture and to release the surety. For the following reasons, the trial court’s judgment is reversed in part and affirmed in part.

FACTS

By a bill of information, Robert Hill was charged with three counts of attempted second degree murder in Louisiana. When Mr. Hill failed to appear for arraignment on April 18, 2005, a bench warrant was issued. On May 27, 2005, a judgment of bond forfeiture was signed in favor of the State of Louisiana and against Mr. Hill and his surety, Accredited Surety, Inc., in the amounts of $35,000, $35,000, and $50,000 on each of the respective counts of attempted second degree murder. Notice of the judgment of bond forfeiture was sent to the defendant and surety, as well as to Cut Rate Bail Bonds on June 2, 2005.

On November 14, 2005, Cut Rate filed a motion to set aside the bond forfeiture and for release of the surety. The motion alleged that, even though Mr. Hill was not presently incarcerated, he had been arrested three times since his incarceration in Ouachita Parish. His name had been placed on the National Crime Information Center (NCIC) registry, and he had warrants against him in San Bernardino County, California, as well as in Ouachita Parish, Louisiana. In a supplemental motion filed on November 22, 2005, Cut Rate alleged that the State placed Mr. Hill’s name |?in the NCIC registry system after his three arrests in California. Cut Rate asserted that, due to the State’s failure to timely place Mr. Hill’s name in the NCIC registry, the surety was unable to have him detained in California and returned to Ouachita Parish. Cut Rate claimed that, because it was prejudiced by these actions, the State should be estopped from enforcing the bond forfeiture.

On March 15, 2006, the State filed a peremptory exception of prescription alleging that under the provisions of La. R.S. 15:85(5), the defendant and his sureties were required to bring defenses and actions in nullity 60 days from mailing of the notice of the signing of the judgment of bond forfeiture and that Cut Rate’s claim prescribed on August 1, 2005. Cut Rate opposed the peremptory exception, arguing that a six-month period was applicable.

The matter came before the court for hearing on April 3, 2006. In addition to the argument of counsel, the court heard the testimony of two witnesses, Joan R. Toston, an employee of the Ouachita Parish Sheriffs Office, and Brett Parker, III, an agent for the surety. Ms. Toston testified that she was a deputy working for the warrant division at the Ouachita Parish Sheriffs Office. She said that Mr. Parker asked her to enter Mr. Hill’s name in the NCIC registry on October 24, 2005.

According to Ms. Toston, Mr. Parker had first spoken to Ms. Lively, who also worked in the warrant division, about entering the name in the computer system. However, Ms. Toston did not know exactly when that conversation took place; Ms. Lively was not called to testify. Ms. To-ston | astated that she entered the information into the NCIC registry system on October 24, 2005, but the entry did not show up until November 2, 2005. Although she was not sure why the entry did not appear on the NCIC registry sooner, Ms. Toston testified that requests to enter names must first be cleared with the Oua-chita Parish District Attorney’s Office.

Even though statutes regarding the placing of names in the NCIC system contemplate the payment of $25.00 fee, Ms. Toston testified that her office never accepted a fee. Ms. Toston indicated that she had been employed in the warrant division for nine and one-half years and that she and Ms. Lively were the only persons in the warrant division to whom a bondsman would make a request for placement in the NCIC registry.

The next witness was Mr. Parker. He testified that he was aware that Mr. Hill had been arrested in California; he checked and found that Mr. Hill was not entered in the NCIC. Mr. Parker contacted the Ouachita Parish Sheriffs Office regarding placement into the NCIC computer system. Mr. Parker could not recall the first date upon which he had contacted the sheriffs office for entry of the matter into the NCIC registry, but he knew that it was prior to October 24, 2005. He stated that when he spoke with Ms. Toston in October concerning placing Mr. Hill in the NCIC system, she stated that “she’d heard them talking about it two or three weeks prior to that for him to be put in there,” and that Mr. Hill would be entered “in the next couple of days.” According to Mr. Parker, the entry appeared shortly thereafter.

|4When Ms. Toston was called to the stand for further testimony, she again stated that she had never collected a $25.00 fee on behalf of the sheriffs office and that Ms. Lively had not done so either. She also reiterated that her notes showed that Mr. Parker contacted the sheriffs office and talked to Ms. Lively at some point prior to Mr. Parker’s conversation with Ms. Toston about the matter. She did not know when the initial contact occurred.

The court found that there was merit to the State’s exception of prescription. It appears that the trial court applied the 60-day prescriptive period in this matter. In granting the peremptory exception of prescription, the trial court found no indication that the Ouachita Parish Sheriffs Office refused to comply with Cut Rate’s request to place Mr. Hill’s name in the NCIC registry or that the name was ever removed. The court found that Cut Rate did not comply with provisions that allow setting aside a judgment of bond forfeiture if a defendant is surrendered to the court, or a sufficient showing is made that the defendant is incarcerated elsewhere and a fee is paid for his return. The court granted the exception and dismissed the motion/suit of the surety seeking to set aside the previously entered bond forfeiture. Cut Rate appealed.

BOND FORFEITURE

On appeal, Cut Rate argues that the trial court erred in granting the State’s exception of prescription and in failing to set aside the judgment of |sbond forfeiture. Cut Rate argues that the trial court erred in accepting the State’s argument that the surety had 60 days to have the judgment of bond forfeiture set aside. Cut Rate urges that the applicable prescriptive period was six months from the mailing of the notice of the judgment of bond forfeiture. Cut Rate contends that the State’s failure to timely place Mr. Hill’s name in the NCIC registry prevented the surety from being able to detain him upon his arrests in California and have him returned to Ouachita Parish. For the following reasons, we find that the trial court failed to apply the correct prescriptive period in this matter. Therefore, we reverse that portion of the trial court judgment finding that the surety’s claim is prescribed. However, we find that the trial court did not err in denying the motion to set aside the judgment of bond forfeiture.

Discussion

The general rule is that bond forfeitures are not favored. A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules set forth in the Code of Criminal Procedure. In order to obtain a judgment of bond forfeiture against a surety, the state must strictly comply with the terms of the statutory provisions regulating bond forfeitures. Bankers Insurance Company v. State, 37,-080 (La.App. 2d Cir.4/11/03), 843 So.2d 641, writ denied, 2003-1240 (La.6/27/03), 847 So.2d 1268.

Cut Rate does not complain about the issuance, signing or notice of the judgment of bond forfeiture. Cut Rate filed its motion as a summary proceeding in the criminal matter before the trial court which issued the |fjudgment of bond forfeiture. Summary proceedings for bond forfeitures are outlined in La. R.S. 15:85(5), as follows:

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 315 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture unthin six months from mailing the notice of the signing of the judgment of bond forfeiture. [Emphasis supplied.]

The parties in this matter focus upon La. R.S. 15:85(5) for determining the applicable prescriptive period. The State argues that the defendant was required to bring a summary proceeding to set aside the bond forfeiture within 60 days from the mailing of the notice of the signing of the judgment of bond forfeiture. Cut Rate contends that it had six months to surrender the defendant or show that he was incarcerated in order to have the judgment of bond forfeiture set aside, citing La. C.Cr.P. art. 345.

Under La. R.S. 15:85(5), the 60-day period for bringing a summary judgment proceeding to assert defenses and actions in nullity is aimed at procedural deficiencies and other matters that render the judgment of bond forfeiture null or inappropriate. See and compare State v. Rivera, 04-822 (La.App. 5th Cir.1/25/05), 894 So.2d 496. If a summary proceeding for nullity under La. C.C.P. art. 2001 is not filed with 60 days, the action must |7be brought by an ordinary proceeding. La. R.S. 15:85(9). Cut Rate did not allege any procedural deficiencies in its motion to set aside the bond forfeiture judgment.

Under La. R.S. 15:85(5), a summary proceeding may also be brought within six months of the mailing of the notice of judgment in the criminal court that rendered the judgment, pursuant to La. C. Cr. P. art. 345 and La. R.S. 15:87. Cut Rate filed this motion as a summary proceeding within six months of the notice of judgment being mailed. La. C. Cr. P. art. 345(A) and (B) provides that a surety may be relieved of its bond obligation if it physically surrenders the defendant, or if the officer originally charged with the defendant’s detention incarcerates him. Cut Rate urges that La.C.Cr.P. |sart. 345(D) is applicable and, under the provisions of La. R.S. 15:85(5), it had six months to surrender the defendant or prove that he was incarcerated elsewhere and provide the cost of his return. We agree.

La.C.Cr.P. art. 345(D) provides in pertinent part:

D. If during the six-month period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion in summary proceeding within the six-month period.
(2) The defendant’s sureties produce to the court adequate proof of defendant’s incarceration, or the officer originally charged with defendant’s detention verifies the defendant’s incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the six-month period at the time the defendant or the surety files the motion, shall be deemed adequate proof of the defendant’s incarceration.
(3) The defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant’s return.

This statute provides that a surety may set aside a judgment of bond forfeiture within six months of the notice of signing of the judgment if the defendant is surrendered or the surety shows that the defendant is incarcerated in another jurisdiction and provides the cost for returning the | (¡defendant. See State v. Rice, 36,401 (La.App. 2d Cir.9/18/02), 827 So.2d 1180, writ denied, 2002-2587 (La.12/13/02), 831 So.2d 989; State v. Matteson, 36,628 (La. App. 2d Cir.12/11/02), 833 So.2d 1199; State v. International Fidelity Insurance Company, 32,837, 32,838 (La.App. 2d Cir.3/1/00), 756 So.2d 565: State v. Davila, 2001-0418 (La.App. 1st Cir.3/28/02), 814 So.2d 56.

However, Cut Rate argues that the State interfered with its ability to comply with these provisions by failing to enter Mr. Hill’s name in the NCIC registry in a timely fashion. Cut Rate cites La.C.Cr.P. art. 345(G) and State v. Harris, 2003-2328 (La.App. 1st Cir.9/17/04), 887 So.2d 519, in support of this argument.

| inLa.C.Cr.P. art. 345(G) provides:

G. During the six-month period provided for surrendering the defendant, the surety may request from the officer originally charged with a felony defendant’s detention that the felony defendant’s name be placed into the National Crime Information Center registry. Upon such a request, the surety shall pay to the officer originally charged with the felony defendant’s detention a fee of twenty-five dollars for processing such placement. If, after the request by the surety and payment of the twenty-five dollar fee, the defendant’s name is removed from the National Crime Information Center registry without cause during the six-month period provided for surrendering the defendant, the surety shall be relieved of all obligations under the bond.

In State v. Harris, supra, the surety provided an appearance bond for the defendant, Mr. Harris. When Mr. Harris failed to appear for arraignment, a judgment of bond forfeiture was rendered. Within a few days, the surety requested that the sheriffs department enter information regarding the defendant’s arrest warrant into the NCIC registry. The surety paid the applicable fee. The sheriffs office failed to enter the information into the NCIC registry. When the defendant was arrested in another state, law enforcement authorities were not able to hold the defendant because they could not verify the Louisiana warrant for the defendant’s arrest. Based upon the failure of the sheriffs office to enter the information into the NCIC registry, the surety filed to set aside the bond forfeiture judgment. The appellate court found that, under the facts of that case, the sheriffs office was required to enter the information into the NCIC registry and the failure to do so was tantamount to removing the defendant’s name from the registry. The judgment of bond forfeiture was set aside.

In We find that the provisions of La. R.S. 15:85(5) and La.C.Cr.P. art. 345 are applicable in this matter. Cut Rate could have set aside the bond forfeiture judgment within six months of the mailing of notice of the judgment if the defendant had been surrendered or if Cut Rate proved that the defendant was incarcerated in another jurisdiction and provided the cost of returning the defendant.

Although it filed its motion within the six-month period, Cut Rate failed to meet the requirements of La.C.Cr.P. art. 345 within this time period. Further, Cut Rate failed to show that any action by the State prevented it from complying with the requirements of the provision.

Cut Rate did not show that the State failed to timely place Mr. Hill’s name in the NCIC registry, ultimately preventing the surety from being able to hold the defendant when he was arrested in California. Although Cut Rate contended that it requested that Mr. Hill’s name be put in the NCIC computer prior to October 24, 2005, the trial court found that it did not show when that request was made. One week passed between the time the request was made of Ms. Toston and the time the warrant showed up on the NCIC. This time period was not unreasonable and did not prejudice Cut Rate.

Simply stated, Cut Rate had six months from June 2, 2005, to surrender the defendant or provide adequate proof that he was incarcerated elsewhere and provide the cost of his return to Ouachita Parish. This time period expired in December 2005. Mr. Hill’s name was entered into the NCIC registry in November 2005, prior to the expiration of the six-month time period. However, Mr. Hill apparently was not arrested in any | ^jurisdiction after that occurred. The six-month time period elapsed without surrender of the defendant or compliance with La.C.Cr.P. art. 345. The time lapse between the request by the surety for the warrant to be placed in the NCIC registry and the actual entering of the warrant was reasonable.

CONCLUSION

For the reasons stated above, we find that the motion to set aside the judgment of bond forfeiture was brought timely within the six-month time period. Therefore, we reverse that portion of the trial court judgment finding that the claim had prescribed. We affirm that portion of the trial court judgment finding that the surety failed to show compliance with the requirements of La.C.Cr.P. art. 345 and dismissing the surety’s claim to have the judgment of bond forfeiture set aside. Costs in this court are assessed to Cut Rate.

REVERSED IN PART AND AFFIRMED IN PART.

      . We are unclear whether the trial judge found the 60-day prescriptive period applied, or the trial court found that the plaintiff failed to comply with statute requirements within the six month period.

      . La. R.S. 15:85(9) states:
      Nullity actions pursuant to La. C.C.P. art. 2001 et. seq. not filed within 60 days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.
      La. C.C.P. art. 2001 provides:
      The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.

      . La.C.Cr.P. art. 345 provides in pertinent part:
      A. A surety may surrender the defendant or the defendant may surrender himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond. For the purpose of surrendering the defendant, the surety may arrest him. Upon surrender of the defendant, the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety. Thereafter, the surety shall be fully and finally discharged and relieved of any and all obligation under the bond.
      B. If the defendant is incarcerated by the officer originally charged with his detention at any time prior to forfeiture or within the time allowed by law for setting aside a judgment for forfeiture of the bail bond, the surety may apply for and receive from any officer in charge of any facility in the state of Louisiana or a foreign jurisdiction charged with the detention of the defendant a letter verifying that the defendant is incarcerated, but only after the surety verifies to the satisfaction of the officer charged with the detention of the defendant as to the identity of the defendant. Thereafter, the surety shall be fully and finally discharged and relieved of any and all obligation under the bond.

      . Cut Rate also cites La. R.S. 15:87 in support of its argument that it had six months to seek revocation of the judgment of bond forfeiture. That statute provides for situations in which the defendant is prevented from appearing in court for specific, enumerated reasons. The statute, which is not applicable to the facts of the present case, provides:
      A.No judgment decreeing the forfeiture of an appearance bond shall be rendered, if it is shown to the satisfaction of the court that the defendant, principal in such bond, is prevented from attending because of any of the following:
      (1) He has a physical disability, illness, or injury.
      (2) He is being detained in the jail or penitentiary of another jurisdiction.
      (3) He is serving in the armed forces of the United States.
      B. A sworn affidavit of the jailer, warden, physician, commanding officer, or other responsible officer where the principal is detained, who attests to the cause of the defendant's failure to appear shall be considered adequate proof of the defendant/principal's inability to appear.
      C. If a judgment of bond forfeiture is rendered while the defendant is prevented from appearing for reasons enumerated in this Section, the court shall declare the judgment of bond forfeiture null and void if the defendant or his sureties file a motion to set aside the judgment of bond forfeiture within six months of the mailing of notice of the signing of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that the defendant was prevented from attending for the causes enumerated in this Section.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Kelly G. AUCOIN, et al. v. SOUTHERN QUALITY HOMES, LLC, et al.
    No. CA 2006-979.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 28, 2007.
    Rehearing Denied April 11, 2007.

      Patterson F. Willis, Jr., Opelousas, LA for Plaintiffs/Appellees: Kelly G. Aucoin Cindy Aucoin.
    Lamont Paul Domingue, Voorhies & Labbe, Lafayette, LA, for Defendant/Appellant: Dynasty Homes.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

11 This is a redhibition case wherein a buyer of a mobile home and land sued the manufacturer of the mobile home and seller of the mobile home and land. The buyer alleged that the seller and manufacturer were solidarily bound for redhibitory defects throughout the mobile home.

The trial court found both the manufacturer and seller solidarily bound to the buyer for the return of the purchase price of the mobile home and land and expert fees. Further, the trial court found both the manufacturer and seller solidarily bound to the buyer for mental pain and suffering due to his nonpecuniary interests in the mobile home. Finally, the trial court found the manufacturer and seller in bad faith and therefore solidarily bound for the fees of the buyer’s attorney.

The manufacturer appealed the trial court’s judgment claiming multiple errors. First, the manufacturer claimed that it was error to find the manufacturer solidarily bound with the seller. Second, the manufacturer claimed it was error for the trial court to find the manufacturer liable for damages to the buyer for improper setup and sealing of the home and it was error for the trial court to find the manufacturer liable for return of the purchase price of the land and costs associated with preparing the land for the mobile home. Third, the manufacturer claimed it was error for the trial court to find the manufacturer liable for the mental pain and suffering of the buyer. Finally, the manufacturer claimed it was error for the trial court to assess the manufacturer for excessive expert witness fees and it was error for the trial court to award interest on those expert fees.

The buyer answered the appeal and claimed that the trial court erred when it did not award principle and interest on the payments made on the mobile home. The judgment of the trial court is affirmed on all assignment of errors.

| .FACTS AND PROCEDURAL HISTORY:

On July 6, 2001, plaintiff, Kelly Aucoin (hereinafter “Aucoin”), purchased a manu-factored mobile home and land from defendant, Southern Quality Homes, LLC (hereinafter “Southern Quality”) for $94,980.00. The mobile home had been delivered to Southern Quality by its manufacturer, Dynasty Homes (hereinafter “Dynasty”).

After delivery and setup of the mobile home, Aucoin and his wife began to experience problems and defects with the mobile home. From August 11, 2001, through February 2002, Southern Quality, Dynasty or someone hired by either of them was called by Aucoin or his wife on sixty-nine different occasions. Despite eight attempted repairs numerous defects in the home were not remedied.

Aucoin filed a complaint in March of 2002 with the Louisiana Manufactured Housing Commission, but ultimately filed suit against both Southern Quality and Dynasty alleging redhibitory defects in the home and seeking to hold Southern Quality and Dynasty solidarily bound for rescission of the sale, damages and expenses.

After a trial on the merits, on February 23, 2006, the trial court issued its Final Amended Judgment in favor of Aucoin and against defendants, Dynasty and Southern Quality, in solido, for a return of the purchase price of the home and land due to redhibitory defects. Further, because the trial court found that Aucoin had a nonpe-cuniary interest in this mobile home, its judgment not only included damages for the return of the purchase price of the home and land ($93,980.00), closing costs ($4,190.33), dirt work ($1,000.00), and expert fees ($25,000.00), but it also included an award for Aucoin’s mental pain and suffering ($25,000.00), medical bills ($288.18), prescription bills ($285.00), insurance and taxes ($6,446.13), and expenses | related to depositions of Aucoin’s medical doctors ($2,160.35). The trial court further found both the manufacturer and seller in bad faith and therefore awarded attorney’s fees ($25,000.00).

Dynasty filed an appeal on March 24, 2006, claiming numerous errors committed by the trial court. Aucoin answered the appeal and claimed that the trial court erred by not awarding him the principle and interest he paid for the mobile home since its purchase. We affirm the trial court on all assignment of error.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in holding Dynasty Homes solidarily bound with Southern Quality Homes?
2. Did the trial court err in holding Dynasty Homes liable for the improper set-up and sealing of the mobile home, for the return of the purchase price of the land and for the dirt work performed on the land to ready it for the mobile home?
3. Did the trial court err in holding Dynasty Homes liable for damages for the mental pain and suffering and associated expenses incurred by Aucoin?
4. Did the trial court err in awarding Aucoin excessive expert witness fees and in awarding legal interest on plaintiffs expert fees?
5. Did the trial court err in failing to award Aucoin damages for principle and interest paid on the mobile home since its purchase?

ASSIGNMENT OF ERROR # 1:

Dynasty asserts that the trial court erred by finding that it was solidarily bound with Southern Quality to Aucoin in his redhibition action. We disagree.

Louisiana Civil Code Article 2545, in pertinent part is as follows:

A seller who knows that the thing he sells has a defect but omits to declare it ... is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees.

|/‘When the thing sold contains a redhibitory defect, the manufacturer and the seller are solidarily liable to the buyer for a return of the purchase price.” Womack and Adcock v. 3M Business Products Sales, Inc., 316 So.2d 795 (La.App. 1 Cir. 1975); Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972); comment (c) La.Civ.Code art. 2545. In Louisiana, and more specifically in this circuit, there is a presumption that manufacturers and sellers are solidarily bound to the buyer for his or her redhibition claim. LeGros v. ARC Services, Inc., 03-918 (La.App. 3 Cir. 2/25/04), 867 So.2d 63.

Dynasty has argued that since the 1996 revision of La.Civ.Code art. 2323 and La. Civ.Code art. 2324, a finding that the manufacturer and seller have a solidary obligation is no longer appropriate in redhibition cases. Dynasty argues that the seller and the manufacturer should instead have their fault compared under the above referenced articles. We disagree.

Dynasty has cited two cases to provide a foundation for its position. First, Dynasty cites Petroleum Rental Tools, Inc. v. Hal Oil & Gas Company, Inc., 95-1820, 95-1821 (La.App. 1 Cir. 8/22/97), 701 So.2d 213. In the Petroleum Rental Tools case the court was not presented with the issue of whether a manufacturer and a seller are solidarily bound. The plaintiff in the Petroleum Rental Tools case had already recovered in its action for redhibition against a seller of a used casing that was defective. After the seller had been released from the case, the court attributed fault to that seller for the damages its defective casing caused in eventually making an entire oil rig useless. While there was fault allocation to a defendant for the damages caused by its product found to have redhibitory defects, there was never any discussion in the case regarding the issue for which it was cited. We find no merit in ^Dynasty relying upon this case for the purposes of avoiding being found solidarily bound with Southern Quality.

Next, Dynasty cites Hampton v. Cappaert Manufactured Housing, Inc., 36,773 (La.App. 2 Cir. 1/29/03), 839 So.2d 363. In this case, the second circuit rejected the seller’s argument that the manufacturer was solidarily bound with them to the plaintiff. The seller based its argument for solidarity on Duplechain v. Clausing Machine Tools, 420 So.2d 720 (La.App. 4 Cir.1982). The Hampton court refused to follow Duplechain because that case was based on La.Civ.Code art. 2324. The court reasoned that because the code article had been amended since the Duple-chain case, it would be unsound to rely on reasoning from that case.

The second circuit instead decided that the manufacturer and seller were liable jointly and divisibly. The Hampton court did so because the revised La.Civ.Code art. 2324 required that a conspiracy be found between parties in order to be soli-darily bound. In Hampton, because there was no conspiracy proven, and because there was no clear expression by the seller and manufacturer of an intent to be soli-darily bound under La.Civ.Code art. 1796, the court reasoned that there was no basis for finding the seller and the manufacturer solidarily bound under La.Civ.Code art. 2324.

While we respect the second circuit for its analysis and choice to use La.Civ.Code art. 2324 in finding that the manufacturer and seller are not solidarily bound, we instead choose to rely upon La.Civ.Code art. 2545, Media Production Consultants, Inc., Womack and Adcock, and LeGros.

We choose to use La.Civ.Code art. 2545 and the Media line of cases for several reasons. First, Media has not been overruled and the legislature has endorsed its interpretation and holding in comment (c) of La.Civ.Code art. 2545.

| ^Second, it is well settled in Louisiana that if there are two conflicting statutes, a more specific statute will prevail over the more general. State in the Interest of A C., 93-1125 (La.1/27/94), 643 So.2d 719. We feel that La.Civ.Code art. 2545 deals more specifically with a fact intense situation, redhibition. A redhibition claim exists when a narrowly tailored set of circumstances set forth by the legislature in La.Civ.Code art. 2520, et seq. arises.

Third, a redhibition claim has its basis in breach of warranty and breach of contract whereas most actions decided under La.Civ.Code art. 2324 have their basis in tort. The remedy in a redhibition claim is that of reduction of price for the thing or recision of the contract and return of the purchase price. The remedy given in a tort claim is usually that of compensation for damages. To find that the legislature intended for a code article located in Title V of Book 3 “Obligations Arising Without Agreement” dealing with tortious conduct to be applied over code articles wherein the legislature has specifically spelled out a remedy, is something this court is not inclined to do.

Finally, our civilian principles require that we follow the clear legislative intent expressed in La.Civ.Code art. 2545 to hold manufacturers and sellers generally solidarity bound to help protect consumers. An unsophisticated buyer relies upon both the seller and manufacturer to provide a product that is free from redhibitory defects. Because of this reliance, the manufacturer and seller should be solidarity bound, especially if both the manufacturer and the seller each created redhibitory defects, and, therefore, each could have been found fully responsible for the single debt of a return or reduction of the purchase price to the buyer. We find no reason why the buyer should be expected to bear the risk of receiving less than they would 17have received if there was but one party creating a redhibitory defect. If we were not to hold the manufacturer and seller solidarity bound, the buyer would bear the burden of receiving less than full indemnity in his or her redhibition action while the manufacturer would be able to benefit from doing business with a seller that also created a redhibitory defect in a product that they put on the market together. We find this result unconscionable.

Since we have chosen to conduct our analysis with regards to whether Dynasty and Southern Quality are solidarity bound under La.Civ.Code art. 2545, Media Production Consultants, Inc., Womack and Adcock, and LeGros, we presume that Dynasty and Southern Quality are solidarity bound to Aucoin. In order for Dynasty to not be held solidarity bound with Southern Quality, it must show that the redhibi-tory defects present in the home sold to Aucoin were solely caused by Southern Quality.

The trial court found that the main and principle redhibitory defect in the home is a moisture problem that caused mold to proliferate. Therefore, Dynasty, in order to rebut the presumption that they are solidarity bound with Southern Quality, must show that they have no fault in creating this redhibitory defect in the home. They have failed to do so.

Whether Dynasty had any fault in creating any redhibitory defect in the home is a finding of fact. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court |8or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

After a thorough review of the record, we find that the trial court’s determination that both Dynasty and Southern Quality were at fault in creating the main and principle redhibitory defect in the home is reasonable. The trial court put great weight on the testimony of Mr. Alexis Mallet, Jr. Mr. Mallet is an expert in general construction, in estimating, in analysis of construction and design defects, in building science, and mold remediation. Mr. Mallet testified that the main and principle defect in the home was the moisture problem that cause a proliferation of mold. He also testified that this infiltration of moisture occurred because of a combination of negative air pressure and several defects in the home. Mr. Mallet testified that the manufacturer was at fault for several defects that related to the infiltration of moisture in the home including, but not limited to, improper installation of the vinyl vapor barrier, improper sealing of windows, improper fastening and installation of roof shingles, and improper installation of drywall on the ceiling.

Further, the trial court also relied on the testimony of Mr. Ervin Ritter. Mr. Ritter is an expert in environmental engineering and mechanical engineering. Mr. Ritter concurred with the testimony of Mr. Mallet. He also found that the negative air pressure, coupled with the defects in the home, caused a moisture infiltration that resulted in mold proliferation. Mr. Ritter then testified that mold proliferation leads to a complete deterioration of the home. He directly related some of those defects to the manufacturer, Dynasty, as well.

| ^Accordingly, we find that the trial court was not manifestly erroneous or clearly wrong in finding that Dynasty, as manufacturer, and Southern Quality, as seller, are solidarity bound. There is evidence in the record to find that both Dynasty and Southern Quality were responsible for defects in the home sold to Aucoin. This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 2:

Dynasty claims that the trial court erred in finding it liable for the improper setup and sealing of the mobile home, and for the cost of the land and closing costs. We disagree.

We have already determined that Dynasty is solidarily bound with Southern Quality for the damages of Aucoin. Louisiana Civil Code Article 1794 states the following: “An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee.”

Under La.Civ.Code art. 1794, Dynasty is liable to Aucoin for the whole performance. The whole performance in this case as dictated by La.Civ.Code art. 2545 is as follows: “[T]he return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees

The improper setup and sealing of the home is part of the whole performance. Therefore, Dynasty is liable to Aucoin for the damages caused by the improper setup and sealing of the home. Accordingly, we affirm to trial court’s finding that Dynasty is liable to Aucoin for the damages occasioned by the improper set up and sealing of the home.

Next, Dynasty argues that the trial court erred in finding it responsible for a return of the purchase price and dirt work associated with the land bought by Aucoin. This argument lacks merit.

| ^Louisiana Civil Code Article 2540 states the following: “When more than one thing are sold together as a whole so that the buyer would not have bought one thing without the other or others, a redhibitory defect in one of such things gives rise to redhibition for the whole.”

Aucoin was sold the home and lot together at the same time. The trial court gave great weight to the testimonies of both Aucoin and his wife. Aucoin and his wife testified that they would not have bought the land without purchasing the home. Further, the cost of the dirt work was incurred to ready the land for this defective home. Therefore, under La.Civ. Code art. 2540, the land and dirt work associated with readying the land for the home are part of the whole performance. Accordingly, as we have determined that as Dynasty and Southern Quality are soli-darily bound and Dynasty is bound for the whole performance, Dynasty is liable for the return of the purchase price of the land and the costs associated with the dirt work. The trial court’s finding as such are affirmed.

ASSIGNMENT OF ERROR # 3:

Dynasty argued that the trial court erred in holding it liable for damages for mental pain and suffering and associated expenses suffered by Aucoin. We disagree.

Dynasty argues that the sole recovery available to Aucoin for nonpecuniary damages for a defective product is under the Louisiana Products Liability Act. This assertion lacks merit, This court in the cases of Taylor v. Burton, 97-1348 (La. App. 3 Cir. 3/6/98), 708 So.2d 531, and Mayerhofer v. Three R’s, Inc., 597 So.2d 151 (La.App. 3 Cir.), unit denied, 600 So.2d 680 (La.1992), among others, has held that a purchase of a home can have a nonpecuniary purpose.

The Louisiana Supreme Court in Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La.1992), held that when the requisites of La.Civ.Code arts. 2545 and 1998 are met, a buyer can recover for mental anguish damages that were caused by the purchase of a defective product.

We have already found in Assignment of Error # 1 that Dynasty is liable to Aucoin under La.Civ.Code art. 2545, so now we must determine if Aucoin qualifies for recovery for nonpecuniary damages under La.Civ.Code art. 1998.

Louisiana Civil Code Article 1998 states the following:

Damages for a nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

The trial court gave great weight to the testimonies of Aucoin and his wife. Much like the Taylor and Mayerhofer, and cases above, the Aucoin’s testimony displayed a considerable nonpecuniary interest in acquiring this home. They testified that pri- or to the purchase they were living in a single-wide mobile home that was | n nearly three decades old, that the family was not comfortable because the mobile home was small and old, that they were purchasing the home to entertain family and friends and that purchasing this home would fulfill, to them, the American Dream.

Given the reasonable credibility determination of the trial court made regarding the veracity of the Aucoins, and given that Aucoin and his wife testified that he entered into this contract for many nonpecu-niary interests, the trial court’s finding of liability on the part of Dynasty for the mental pain and suffering and associated expenses suffered by Aucoin is affirmed.

ASSIGNMENT OF ERROR # 4:

Dynasty argues that the trial court erred in awarding Aucoin excessive expert witness fees and erred in finding those expert fees as an element of damages in redhibition and therefore awarding interest on those expert fees. We disagree.

In Trans Louisiana Gas. Co. v. Heard, 629 So.2d 500, 505 (La.App. 3 Cir.1993), this court stated the following:

The fixing of expert witness fees is largely within the sound discretion of the trial court, and on appeal, we may not reverse the trial court’s fixing thereof absent an abuse of discretion. In fixing expert witness fees, each case must turn on its own peculiar facts and circumstances. However, the jurisprudence has provided us with factors to consider such as the amount of time consumed by the experts in compiling their reports; the amount charged the landowner; the amount of time spent in preparing for trial; the amount of time actually spent in court; the expertise of the expert; the difficulty of the appraisal; the amount involved in the award; and the degree to which the expert’s opinion aided the court in its decision.

Dynasty argues that the trial court rejected the opinion of Mr. Mallet and Mr. Ritter, the plaintiffs experts. We find the opposite to be true. The trial court found the testimony of both plaintiffs experts credible and helpful. Further, there is evidence in the record that the experts spent considerable time and effort performing 112tests at the plaintiffs home and preparing for the trial. Further, the experts testified regarding a very complex issue for an extensive three-day trial. Given these facts and the complexity of the testimony of the experts, we find no abuse of discretion on the part of the trial court in fixing their fees.

Finally, Dynasty argues that the trial court incorrectly found that expert fees were an element of damages in redhibition and awarded Aucoin interest on his incurred expert fees. This argument lacks merit.

Dynasty argues that the trial court incorrectly interpreted A. Copeland Enterprises, Inc. v. Harimaw, Inc., 528 So.2d 707 (La.App. 5 Cir.1988), writ denied 531 So.2d 475 (La.1988), in finding that the expert fees are an element of Aucoin’s redhibition claim. Dynasty attempts to distinguish the experts in the case at bar from the experts in the A. Copeland Enterprises, Inc. case by claiming that the experts in the A. Copeland Enterprises, Inc. case were part of the plaintiffs cost of correction whereas the experts here were hired to prosecute Aucoin’s redhibition claim. Dynasty cites no authority for why there needs to be such a distinction made, and we were unable to find any such authority. As cited above, the trial court has great discretion in setting expert fees, and we find no abuse of discretion on the part of the trial court in assessing the expert fees or interest upon them therein. Therefore, we find that this assignment or error lacks merit.

ASSIGNMENT OF ERROR # 5:

Aucoin argues that the trial court erred in fading to award Aucoin reimbursement for principal and interest payments made on the mobile home since its purchase. We disagree.

| mThe remedy chosen by the trial court in this case was that of return of the purchase price of the home to Aucoin and judicial interest for the purchase price from the date of sale. If we were to further find that Aucoin should be reimbursed for the principle and interest he paid for the house, we would be allowing him to recover the return of the purchase price along with the principle he paid. This would be a double recovery. Further, if we were to grant Aucoin reimbursement for the actual interest paid and for the judicial interest awarded by the trial court, we again would be allowing Aucoin to recover twice. This would be inappropriate. Therefore, the judgment of the trial court denying Aucoin damages for principal and interest for payments made for the home is affirmed.

CONCLUSION:

The judgment of the trial court is affirmed on all assignments of error. Additionally, we award five thousand dollars in attorney’s fees to Aucoin for work performed on this appeal. The costs of this appeal are assessed to Dynasty Homes.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Gregory Ronard TYNER, Appellant.
    No. 41,937-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, J. Dhu Thompson, Jeremy S. Lacombe, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

LThe defendant, Gregory Ronard Tyner, was convicted by a jury of aggravated battery. After pleading guilty to being a second felony offender, the defendant was sentenced to an agreed term of 20 years at hard labor without benefit of probation or suspension of sentence. The defendant appeals his conviction. For the following reasons, we affirm.

FACTS

On May 17, 2005, the defendant was charged by bill of information with one count of aggravated battery for striking Jecorey Wayne Bryant over the head with a metal pipe. The defendant’s trial was held on October 25-26, 2005.

The victim testified that during the early evening of April 24, 2005, he and the defendant were among a group of people hanging out at a park. At some point, the defendant, who was carrying a metal pipe and appeared upset, approached Mr. Bryant. The defendant asked Mr. Bryant, “Who got my backpack?” Despite Mr. Bryant’s denial of having the defendant’s backpack, the defendant accused him of taking it. Mr. Bryant claimed the defendant then struck him over the top of the head with the metal pipe. Mr. Bryant testified that he was bleeding profusely from the wound and that he was treated by firefighters and paramedics who arrived soon thereafter. While he was being treated in the back of the ambulance, the defendant approached again and charged at Mr. Bryant with a wooden stick that he was holding like a baseball bat. The defendant was wrestled to the ground by fire personnel who held him until the police arrived. Mr. Bryant was subsequently taken to the hospital where he received staples to close his |gwound. Mr. Bryant denied being armed or making any threatening gestures toward the defendant either prior to or after being struck in the head.

Michael Covert, a firefighter and paramedic with the Shreveport Fire Department, testified that he was in one of two units that responded to an aggravated battery call in the park on April 24, 2005. He testified that when the fire department units arrived, the defendant and the victim were “squared off’ against each other as though they were ready to fight and that this situation continued for a few minutes until the defendant ran out of sight. When he did, Mr. Bryant, who was covered with blood, approached the paramedics for treatment.

Firefighter Covert, who was standing back while other paramedics treated Mr. Bryant, heard someone say, “Look out, here he comes.” The firefighter turned to see the defendant approaching with a wooden stick over his shoulder and apparently looking for someone. Firefighter Covert stated that when the defendant saw the victim, he raised the stick over his head and began charging in that direction. The firefighter tackled the defendant from behind, causing him to lose his grip on the stick. Firefighter Covert testified that he kept the defendant pinned down until the police arrived and took him into custody. According to Firefighter Covert, at no time after his arrival on the scene did Mr. Bryant attack the defendant or brandish a weapon of any kind.

Felton Wayne Dukes lives near the park and testified that he was between 10 to 15 steps from Mr. Bryant at the time of the incident. He testified that there were a lot of people around engaging in different Inactivities, such as dice games. Mr. Dukes stated that the defendant “came out the blue with a pipe and struck the little dude in the head.” Mr. Dukes testified that Mr. Bryant asked the defendant why he hit him and the defendant stated that Mr. Bryant had stolen something from him. The two then ran around each other until the defendant left the scene. Mr. Dukes confirmed that the defendant later returned and tried to hit Mr. Bryant again. Mr. Dukes did not see a gun or any other weapon on Mr. Bryant’s person and said that Mr. Bryant did not attack the defendant prior to being hit with the pipe.

Jeff Allday, an officer with the Shreveport Police Department who was dispatched to investigate this incident, testified that when he arrived at the scene, the defendant was being held on the ground by two members of the Shreveport Fire Department. Mr. Bryant was being treated in the back of the ambulance. He stated that the victim had a large laceration on the top of his head and was covered in blood.

Officer Allday took photographs of the injury and collected the wooden stick from the firefighters. He also found a metal pipe with blood on it while combing the scene. Officer Allday testified the defendant was read his Miranda rights several times. While being transported to the police station, the defendant made an unsolicited admission that he hit the victim because the victim had stolen $1,500.00 from him.

Officer Allday was questioned about whether there had been any other dispatches made during the time in question regarding a report of anyone having money stolen. He denied the existence of any such dispatch |4and stated that as the officer on the scene, he would have been the officer to receive such a dispatch. After Officer Allday’s testimony, the metal pipe, wooden stick, photographs of the victim’s injury and the victim’s medical records were all offered and admitted into evidence; the state rested its case.

The defendant took the stand and testified that on the day in question, he placed his backpack on a bench in the park. The backpack contained $1,500.00 which he had recently received from his mother-in-law. He claimed that he had been saving money to go to California and enter a drug rehab program. He left the backpack while he went to “get stuff from the house,” which was near the park. When he returned, the backpack was gone. He testified that he was told Mr. Bryant was the one who took his backpack. The defendant said that he went to his house and dialed 911 to report the theft. Then, concerned that Mr. Bryant would leave the scene before the police arrived, he approached the victim, picking up a metal pipe on the way.

According to the defendant, Mr. Bryant was leaning over a car talking to some people when the defendant asked him, “Je-corey, do you have my money?” The defendant testified that Mr. Bryant denied having the money and then started walking toward the defendant in an “aggressive” manner. The defendant alleges that he saw a gun on Mr. Bryant’s side when he first approached him and that Mr. Bryant then purposely showed it to him. As the victim continued to approach the defendant, the defendant began swinging the pipe in front of the victim to keep him at bay. While swinging the pipe, the defendant claimed that it accidentally slipped out of his hand |5and struck Mr. Bryant on the top of the head. According to the defendant, Mr. Bryant then picked up a stick and started pursuing the defendant. The defendant ran to his home, retrieved another stick, and returned to the scene to talk to the police. On cross-examination, the defendant added that, at some point during the altercation, the victim threw bottles at him. The defendant claimed that the backpack and the gun were in the car and he asserted that the people in the car talked Mr. Bryant into taking the backpack.

At the conclusion of the trial, the jury returned a verdict of guilty as charged of one count of aggravated battery. Thereafter, the state filed a bill of information alleging that this last conviction was the defendant’s third felony conviction and requesting that he be sentenced as such. The defendant filed a motion to quash the bill of information on the basis that the pleas obtained in the two prior convictions were not voluntarily given after a proper advisement of rights. The defendant also filed a motion for a new trial and a motion for post verdict judgment of acquittal, arguing that the evidence adduced at trial was insufficient to support a conviction. These two motions were denied by the trial court.

The adjudication hearing on the multiple offender bill of information took place on May 18, 2006. During the course of the proceedings, a plea agreement was reached in which the defendant agreed to plead guilty as a second felony offender and to receive a sentence of 20 years at hard labor with credit for time served. The defendant withdrew his motion to quash the multiple offender bill of information. He also forfeited his right to | ^appeal or seek review of the agreed upon sentence. The defendant reserved his right to appeal the conviction for aggravated battery. The plea was entered on the record and the defendant was sentenced to 20 years at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals.

SUFFICIENCY OF THE EVIDENCE

The defendant claims that the evidence was insufficient to convict him of aggravated battery. The defendant’s appellate counsel argues that the state failed to prove beyond a reasonable doubt that he was not acting in self-defense when he struck the victim. The defendant cites his own testimony as to the victim’s possession of a gun, and that the victim was advancing toward him. In his brief, the defendant also points out that he is terminally ill. At trial, the defendant stated that he went home and got the wooden stick because he was sick and did not want to fight the victim.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State ex vel. Graffagnino v. King, 436 So.2d 559 (La.1983). This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of-the-evidence evaluation under Jackson v. Virginia and does not extend to credibility determinations made by the trier of fact. La. Const. 17art. 5, § 10(B); State v. Williams, 448 So.2d 753 (LaApp. 2d Cir.1984). It is the role of the fact finder to weigh the respective credibility of the witnesses and, therefore, an appellate court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

A battery is the intentional use of force or violence upon the person of another, or the intentional administration of a poison or other noxious liquid or substance to another. La. R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. “Dangerous weapon” includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3).

The defendant’s burden of proof, when a defendant claims self-defense in a nonhomicide case, is a preponderance of the evidence. State v. Freeman, 427 So.2d 1161 (La.1983); State v. Updite, 38,423 (LaApp. 2d Cir.6/23/04), 877 So.2d 216, writ denied, 2004-1866 (La.11/24/04), 888 So.2d 229. The state must then prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert denied, Scales v. Louisiana, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996), rehearing denied, 516 U.S. 1142, 116 S.Ct. 977, 133 L.Ed.2d 897 (1996); State v. Updite, supra. The issue of self-defense requires a dual inquiry: an objective inquiry into whether the force used was reasonable under the circumstances and a subjective inquiry into | ^whether the force was apparently necessary. State v. Robinson, 37,043 (LaApp. 2d Cir.5/14/04), 848 So.2d 642. A person who is the aggressor or who brings on the difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21; State v. Updite, supra; State v. Robinson, supra.

In the case sub judice, the evidence was sufficient under the Jackson standard to support the defendant’s conviction of aggravated battery. There is no question that the defendant struck the victim over the head with a metal pipe with sufficient force to create a large laceration and cause copious amounts of bleeding. The record reflects that the defendant intentionally used force and violence upon the victim while using a dangerous weapon. The metal pipe used in the instant case was a dangerous weapon, due both to its weight and the manner in which it was used. It was clearly calculated or likely to produce death or great bodily harm.

The record also supports the conclusion that the defendant failed to prove his claim of self-defense by a preponderance of the evidence. See State v. Freeman, supra; State v. Updite, supra. The only evidence that he acted in self-defense was his own self-serving testimony, which was not corroborated by anyone, including an eyewitness who claimed to be present during the entire altercation. The defendant’s testimony was obviously discredited by the jury, given all the evidence to the contrary. Even the defendant’s own testimony tended to prove that he armed himself with the | gmetal pipe as he approached the victim with the intent to have a confrontation with him. While the defendant claimed that he had been told the victim had a gun, that he saw the gun, and that the victim was acting aggressively, there was no corroborating evidence to that effect despite the presence of dozens of other people. The defendant’s contention that he suffers from a terminal illness is of no moment. The record overwhelmingly supports the fact that the defendant was not attacked by the victim before he struck the victim over the head with the metal pipe. Accordingly, whether his health made him feel more vulnerable to such an attack is irrelevant.

Further, the defendant testified that he left the scene, went home and returned with a stick. Witnesses testified that the defendant tried to attack the victim again as the victim was being treated for his injuries.

The trier of fact made specific findings regarding the credibility of the witnesses. The role of this court is not to assess the credibility of witnesses or reweigh evidence. See State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. From the record before us, those findings are clearly reasonable.

The defendant’s appellate counsel also complains of the presence in the appellate record of the medical records of an individual who is unrelated to the case. The appellate counsel admits that he did not see the actual trial exhibits; however, he challenges the use of these medical records in the event they were submitted to the jury. While appellate counsel correctly notes that the appellate record contains the medical records of someone other than the victim, it appears that they were incorrectly provided to defense counsel in a pretrial supplemental response to discovery. The |inexhibit folder containing evidence actually admitted into evidence and considered by the jury contains the records of the victim, Jecorey Bryant, and not those of the other person. Accordingly, the defendant’s claim that the evidence was insufficient to support his conviction is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of the defendant, Gregory Ronard Tyner, are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana in the Interest of C.N., Plaintiff-Appellee v. Ryan HAWKINBERRY, Defendant-Appellant.
    No. 42,085-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      J. Brad Smitherman, for Appellant.
    Schuyler Marvin, District Attorney, Karen Stubbs, Assistant District Attorney, for Appellee, State of Louisiana.
    Donald A. Weathersby, II, for Appellee, C.N.
    Ross E. Shacklette, for Appellee, Angela Noble Hart.
    Before GASKINS, MOORE and LOLLEY, JJ.
   MOORE, J.

_JjThe father, Ryan Hawkinberry, appeals a case review judgment that found his 11-year-old son, C.N., still in need of care and continued him in the custody of the Office of Community Services (“OCS”). Finding no abuse of discretion or violation of Children’s Code provisions, we affirm.

Factual and Procedural Background

In early 2005, C.N. and his two brothers were living with their mother, Angela, and her husband, James, in the Green Acres area of Bossier City. According to OCS reports, Angela and James were heavy drug users who sold everything in the house to support their habit; they eventually abandoned the children. OCS reports also listed C.N.’s father as unknown; Ryan had never had any paternal relationship with his son.

Somebody took the boys to an RV in Cypress Black Bayou Park, where they lived a while with another crack addict, Marsha, who finally threw them out on May 23. They then walked to a clinic in Plain Dealing for help. The staff called OCS, which found the boys had not been eating regularly, bathing or going to school.

The state obtained an instanter order placing the three boys in OCS custody. In late May the Bossier City Court, exercising juvenile jurisdiction, continued their custody with OCS and ordered officials to locate Ryan, C.N.’s putative father. Counsel was appointed for Ryan. At an adjudication hearing on August 19, counsel offered DNA test results proving Ryan’s paternity of C.N., but conceded he (counsel) had been unable to reach Ryan. Citing the neglect of the parents, the court found all jgthree boys in need of care. These hearings were not transcribed.

The boys received temporary placement in Louisiana, but in late August 2005 they were sent to foster care with a Mrs. Snyder in New Paris, Ohio. Apparently both Ryan and Angela were from Ohio, and other relatives live near New Paris. By all accounts C.N. and his half brother A.B. have done well there. Ryan lived in Mansfield, Ohio,, about three hours’ drive from Mrs. Snyder’s house, and was able to exercise monthly visitation for the first time.

According to OCS reports, the visits were intermittent. The first time, Ryan drove to New Paris and asked C.N.’s grandfather for $50 gas money each way; the grandfather complied, but refused to cosign a loan so Ryan could buy a car. On the return trip, Ryan asked if he, his wife and four children could stay the night with the Snyders, as they usually were ejected from motels due to the kids’ unruly behavior. The Snyders agreed, but found the kids had rummaged through their drawers and closets, apparently without objection from Ryan. C.N. stated that on another visit, he found a smoldering marijuana joint on the back porch shortly after Ryan and his wife had been sitting there; he was afraid of returning to a drug-using home. At some point, Ryan moved from Mansfield to a farm in Eaton, Ohio, to be with his ailing father; this is only about 30 minutes’ drive from Mrs. Snyder’s house. No home study has yet been conducted on the farmhouse, but C.N. told investigators that he felt out of place when he visited the large family there and was unhappy that Ryan wanted to schedule visits that ^conflicted with football practice.

Case review hearings in November 2005 and April 2006 found C.N. still in need of care. These proceedings were not transcribed, but the court minutes show that Ryan was present for the April 2006 hearing. The original case plan addressed resolutions for C.N., his mother Angela, his two brothers and their respective fathers, but not Ryan, as his whereabouts were not known at that time.

In May 2006, Ryan filed a motion to modify the disposition, obtain custody of C.N. and end OCS’s involvement in the case. At a case review hearing on May 26, the court denied this motion. The hearing was not transcribed, but the minutes show that Ryan and his counsel were present, and that the court adopted the case plan with modifications.

Case Review and Action of City Court

The instant case review hearing took place in August 2006. Ryan did not attend but appeared through counsel. The state introduced three reports from Volunteers for Youth Justice setting out the facts summarized above. These found that C.N. was thriving at Mrs. Snyder’s house, benefited from being with his brother A.B. and close to his grandfather and cousins, and expressed a strong opinion to stay there. They also advised that it would be detrimental to move him to the “unknown environment” that his father would offer, citing certain legal problems. The recommendations were: (1) allowing C.N. to testify at the case review hearing; (2) giving Ryan a copy |4of the earlier case plan; (3) taking a home study of Ryan’s father’s farmhouse in Eaton; and (4) requiring Ryan and his wife to take parenting classes. The state asked the court to maintain the status quo, and counsel for C.N.’s mother agreed.

Ryan’s counsel called one witness, Andrew Wilson, an OCS agent who supervised C.N.’s foster care. He admitted he had spoken to Ryan only once, about three weeks prior to the hearing, but that Ryan had seen a family counselor in Ohio and was not responsible for any of the missed visits with C.N.

Angela’s counsel called Mrs. Snyder, who chronicled the problems of coordinating C.N.’s visits with Ryan. Finally, the court interviewed C.N. in chambers.

The court ruled from the bench that there was good cause for the initial intervention by OCS, there was continuing necessity for placement of C.N., he had not yet established a meaningful relationship with his father, and his current placement with Mrs. Snyder was appropriate. However, the court stated it did “not approve of the [OCS case] plan in its present version and orders modifications.” These included parenting classes for Ryan and his wife, counseling for C.N., Ryan and his wife, random and regular drug screens for Ryan and his wife, monthly visits not to interfere with C.N.’s education or extracurricular activities, and a home study of Ryan’s current residence. The court added that based on its interview, it found C.N. old enough and articulate enough to express his feelings and interests.

[¡¡The oral ruling was reduced to judgment which Ryan has appealed.

Discussion: Award of Custody

By his first assignment of error, Ryan urges the court committed manifest error in denying him custody of C.N. He contends that the parent has the paramount right of custody which should be denied only when he is shown to be unfit, incapable of caring for the child, or otherwise detrimental to the child. State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228 (1958); State in Int. of DEM, 441 So.2d 514 (La.App. 2 Cir.1983). Referring to earlier case review hearings which were not transcribed, he contends that Ohio authorities conducted a home- study of his home and found it sufficient for a placement of C.N. He also contends that the actions of C.N.’s “caretaker” thwarted the visitation order, not any actions on his own part. He concludes the evidence is neither sufficient nor compelling enough to deny his request for custody.

All other parties respond that the court was not plainly wrong to maintain C.N. in OCS custody. Angela specifically contends that numerous cases cited in Ryan’s brief are inapplicable: State in Int. of DEM, swpra, deals with the burden of proof at an adjudication hearing, not a case review hearing, and State ex rel. Paul v. Peniston, supra, was a custody dispute between private individuals, not proceedings brought by the state. Counsel for C.N. urges that the court applied the proper standard under La. Ch. C. art. 681 A, “the child’s health and safety shall be the paramount concern.” Moreover, Ryan “was a stranger to C.N. before these proceedings began,” thus supporting the decir sion to deny him custody at this time.

| fiThe court correctly noted that C.N. was adjudicated a child in need of care in August 2005. The dispositional alternatives in such a case are provided by La. Ch. C. art. 681 A:

In a case in which a child has been adjudicated to be in need of care, the child’s health and safety shall be the paramount concern, and the court may:
(1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.
(2) Place the child in the custody of a private or public institution or agency.
(3) Commit a child found to be mentally ill to a public or private mental institution or institution for the mentally ill.
(4) Grant guardianship of the child to any individual.
(5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.

The trial court’s award of custody at a disposition hearing is entitled to great deference and will not be reversed on review except in the clearest case of abuse of that great discretion. State in Int. of JW, 2000-1445 (La.App. 4 Cir. 1/10/01), 779 So.2d 961.

The record shows that Ryan had no contact with C.N. until the fall of 2005, when DNA testing proved he was the father of the 11-year-old child. The city court was not plainly wrong to find that the parties needed time to adjust to their new relationship, as they “really don’t know each other.” As noted, the visitations in Ohio have been intermittent and impeded by issues of scheduling and transportation. A home study of Ryan’s previous home in Mansfield noted somewhat cramped quarters and a lack of privacy for the|7children; no home study has yet been conducted on the farmhouse in Eaton. The city court expressed the need “to be satisfied what that environment [the farmhouse in Eaton] is all about.” By contrast, officials found C.N. was thriving in foster care with Mrs. Snyder, enjoying the greatest stability he had ever known in his young life. Finally, the court assigned appropriate weight to C.N.’s testimony in chambers, noting its reluctance to let an 11-year-old dictate the outcome. Based on this evidence, we cannot say the city court abused its great discretion in finding that C.N.’s best interest would be served by not giving his custody to Ryan at this time.

The jurisprudence cited by Ryan in brief does not alter this analysis. Both State ex rel. Paul v. Peniston, supra, and Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274, affirm the parent’s paramount right of custody as against a nonparent. However, as shown by Angela, those cases are custody disputes between private parties, not proceedings filed by the state to declare the child in need of care. In the latter situation, the best interest standard of Art. 681 applies. The cases of State in Int. of DEM, supra, and State in Int. of Black, 310 So.2d 174 (La.App. 4 Cir.1975), are also inapposite as they address the burden of proof at proceedings analogous to the adjudication hearing. After a child has been adjudicated in need of care, Art. 681 applies.

This assignment of error lacks merit.

Other Issues

By his second assignment, Ryan urges the court committed manifest error by revising the case plan sua sponte and ordering OCS to make | particular revisions to it. He contends that under La. Ch. C. art. 700 A, the court must either approve or reject the case plan, but cannot revise it or order any particular placement of children. In support he cites State ex rel. LCB, 2001-2441 (La.1/15/02), 805 So.2d 159. Specifically, he argues that the addition of parenting courses, random drug screening and family counseling were not part of the case plan and not warranted by the evidence.

The court’s authority to render orders is defined in La. Ch. C. art. 700 A, which provides in pertinent part:

At the conclusion of the case review hearing, the court may:
(1) Approve the plan as consistent with the health and safety of the child and order compliance by all parties. * * *
(2) Find that the case plan is not appropriate, in whole or in part, based on the evidence presented at the contradictory hearing and order the department to revise the case plan accordingly.

While some passages of the oral ruling and judgment might suggest that the court itself ordered changes in the case plan, the overall thrust of the judgment is to direct OCS to make certain revisions. Such action is not only authorized by Art. 700 A(2) but also within the court’s discretion, in that Ryan was not a party to the original case plan. On the record presented, the revisions were not an abuse of the city court’s discretion.

Finally, we recognize that under State in Int. of LCB, supra, and State in Int. of RA, 2006-2380 (La.12/15/06), 944 So.2d 1262, “the court cannot revise the plan itself or order specific placements of children placed in the Department’s custody.” In the instant case, the city court certainly did not order any specific placement of C.N. contrary to OCS’s plan, and for the | ¡¡reasons expressed it properly directed modifications to that plan. This assignment lacks merit.

By his final assignment, Ryan urges the court erred in allowing OCS to deny him custody and placement of C.N. “based on the demand for a home study under the Interstate Compact on the Placement of Children.” He contends that ICPC’s requirement of a home study is subject to various exceptions in La. Ch. C. art. 1615(1) and does not apply “in cases in which a parent is being considered for placement of his or her child within OCS custody.”

Ryan’s position lacks merit. The ICPC, which would authorize the home study, does not apply to “[t]he sending or bringing of a child into a receiving state by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state.” La. Ch. C. art. 1615(1) (emphasis added). C.N. was neither sent nor brought to Iowa by Ryan, but through the intervention of OCS. This exemption simply does not apply. On the record presented, the request for a home study is no abuse of discretion. This assignment lacks merit.

Conclusion

For the reasons expressed, the judgment of case review is affirmed. Costs are to be paid by Ryan Hawkinberry.

AFFIRMED.

      . One of the boys, A.B., is C.N.’s half brother; the other, J.H., is the child of James from a prior relationship.

      . Three of these children are from Mrs. Hawkinberry's previous marriage; the youngest is Ryan's child.

      . The reports documented Ryan's string of traffic convictions and revoked driver’s license; also, in early 2005 Ohio officials investigated Ryan and his wife for allegations of child neglect, but the cases were dismissed because Ryan and his wife refused to cooperate.


text:
    Velma PRATT, Plaintiff-Appellant v. LOUISIANA STATE MEDICAL CENTER IN SHREVEPORT, Defendant-Appellee.
    No. 41,971-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Rehearing Denied March 29, 2007.

      Velma Pratt, In Proper Person-Appellant.
    John F. Frederickson, Krystil A. Garrett, Assistant Attorney Generals, for Defendants-Appellees, LSUHSC-S and Dr. Benjamin Li.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

liThe plaintiff, Velma Pratt, appeals from a trial court judgment granting an exception of prescription and dismissing her claims arising from a confrontation with a doctor who allegedly treated her in a “humiliating” manner. We affirm the trial court judgment. Additionally, we deny the defendants’ request for frivolous appeal damages.

FACTS

Mrs. Pratt has filed numerous health-related cases. In 1989, following a needle biopsy at Wilhs-Knighton Medical Center (WKMC), Mrs. Pratt was diagnosed with breast cancer and consented in writing to a radical mastectomy on her right breast. About a year after the surgery, she decided that she did not have cancer and that she had been treated without consent. She and her husband sued the surgeon, the doctor who gave a second opinion agreeing with the surgeon, and the pathologist who determined that the breast tissue was malignant. Summary judgment was granted in favor of the defendants. This court reversed and remanded. See Pratt v. Williams, 26,903 (La.App. 2d Cir.5/10/95), 658 So.2d 4. On remand, the trial court granted an involuntary dismissal of the plaintiffs’ demands. Among other things, the trial court found that the plaintiffs failed to establish the standard of care. It also held that no battery was committed on Mrs. Pratt and that the doctor obtained informed consent from her for all the medical care he provided to her. The plaintiffs’ claim for loss of consortium was also denied, the trial court apparently concluding that the “pain” they claimed was caused by their obsession with pursuing a tort case without objective factual basis and without expert opinion. The plaintiffs appealed. pin an unpublished opinion, this court affirmed the trial court. See Pratt v. Spillers, 29,174 (La.App. 2d Cir.2/26/97), 692 So.2d 45, writ denied, 97-0983 (La.5/30/97), 694 So.2d 250.

During the early 1990s, Mrs. Pratt began receiving health care at LSU Medical Center in Shreveport (LSUMC). In 1996, she underwent a biopsy and lumpectomy on her left breast. In Januaiy 1997, a lymph node in her neck was excised. In February 1998, she filed a medical malpractice complaint against LSUMC with the state medical review panel. The trial court granted an exception of prescription in September 1998, holding that Mrs. Pratt’s claims of malpractice for acts occurring on or before January 22, 1997, had prescribed. The plaintiffs appealed; this court dismissed the appeal without prejudice because it was taken from an uncertified and unappealable partial judgment. Medical Review Panel of Pratt, 32,236 (La.App.2d Cir.3/11/99). In September 1999, a medical review panel issued an opinion on Mrs. Pratt’s claims arising after the January 1997 excision of the lymph node and found that the treatment she received at LSUMC was within the reasonable standard of care.

In May 1999, Mrs. Pratt filed another medical malpractice suit against LSUMC. The trial court found that the allegations in this matter had been previously ruled upon. Because she failed to file suit within 90 days of the issuance of the medical review panel opinion, her claims were found to be prescribed.

On April 29, 2003, Mrs. Pratt was allegedly referred to the Women’s Clinic and banned from the LSUMC surgery clinic after a confrontation |3with Dr. Benjamin Li about her raising questions about her lumpectomy. In March 2004, Mrs. Pratt filed a claim against LSUMC and Dr. Li commencing the proceedings for a medical review panel; she also reiterated her prior allegations as to her 1989 surgery at WKMC, her June 1996 breast biopsy, and her January 1997 lymph node surgery. The trial court granted the defendants’ exceptions of prescription and res judicata. This court reversed in part as to the April 2003 incident and remanded; however, the court reiterated that this result did not allow Mrs. Pratt to reassert allegations pertaining to prior treatment and surgeries. Pratt v. Louisiana State University Medical Center in Shreveport, 40,476 (La. App. 2d Cir.1/27/06), 921 So.2d 213.

On April 25, 2006, Mrs. Pratt filed the instant suit against the hospital and Dr. Li based on the April 29, 2003 incident. According to the petition, the basis of the lawsuit is the “humiliating, abusive, and degrading treatment” she received from Dr. Li during a unprovoked, “false” and “verbal attack” in which he made her appear to be a “trouble maker” in front of other medical personnel.

The defendants filed an exception of prescription in June 2006, asserting that the lawsuit was prescribed on its face. On August 28, 2006, a hearing was held on the exception. The defendants argued that Mrs. Pratt’s claim in the instant case actually involves only a general tort of intentional infliction of emotional distress which is not covered by the Medical |4Malpractice Act and is subject to a one-year prescriptive period. They contended that the filing of the medical review panel complaint was ineffective to interrupt prescription on the intentional tort claim.

During the hearing, the trial court found that, as an intentional tort, the claim was prescribed on its face; the burden of proof then shifted to the plaintiff to show that the matter was not prescribed. The court allowed the plaintiff to file documents into the record as evidence over the defendants’ objection to relevancy; the court found that the documents appeared to “rehash everything that has occurred in the past.” The trial court held that the plaintiff failed to carry her burden of proof. Accordingly, judgment was rendered in favor of the defendants. The trial court granted the exception and dismissed the lawsuit that the plaintiff filed on April 25, 2006. Costs were assessed against the plaintiff. Judgment in conformity with the trial court’s ruling was signed on August 28, 2006.

Mrs. Pratt appealed.

EXCEPTION OF PRESCRIPTION

Law

The burden of proof on the prescription issue lies with the party asserting it unless the plaintiffs claim is barred on its face, in which case the burden shifts to the plaintiff. Waldrop v. Hurd, 39,855 (La.App. 2d Cir.6/29/05), 907 So.2d 890. The burden is on the plaintiff to prove suspension or interruption. Burdeaux v. Cline, 626 So.2d 1205 (LaApp. 2d Cir. 1993), writ denied, 93-3132 (La.2/11/94), 634 So.2d 833. If evidence is introduced at the hearing on the peremptory exception of prescription, the |strial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261.

In a medical malpractice case, the filing of the request for the review panel suspends prescription running under La. R.S. 9:5628 against the plaintiffs claim. La. R.S. 40:1299.47(A)(2)(a). Medical mal-practice claims must be filed within one year of the date of the alleged act of negligence, or within one year of the date of discovery; however, in all events, such claims must be filed within three years of the act of negligence. La. R.S. 9:5628; Golden v. Patient’s Compensation Fund Oversight Board, 40,801 (La.App. 2d Cir.3/8/06), 924 So.2d 459, writ denied 2006-0837 (La.6/2/06), 929 So.2d 1261.

The basis for the tort of intentional infliction of emotional distress in Louisiana is La. C.C. art. 2315. Nicholas v. Allstate Insurance Company, 1999-2522 (La.8/31/00), 765 So.2d 1017. Claims for intentional infliction of emotional distress are governed by the one-year prescriptive period for delictual actions in La. C.C. art. 3492. Alcorn v. City of Baton Rouge, 2002-0952 (La.App. 1st Cir.12/30/04), 898 So.2d 385, writ denied, 2005-0255 (La.4/8/05), 899 So.2d 12.

Discussion

A review of the plaintiffs petition reveals that the lawsuit sounded in intentional tort, not medical malpractice. Mrs. Pratt alleged that “[t]his humiliating, abusive, and degrading treatment is the basis for this lawsuit.” Her complaint is that Dr. Li supposedly yelled at her, thereby humiliating |fiand demeaning her in the presence of others. It involves not a lack of medical treatment or poor medical treatment, but an affront to Mrs. Pratt’s sensibilities and dignity. Thus, the petition presents a claim for an intentional tort of infliction of mental distress under La. C.C. art. 2315. Such a claim is subject to a one-year prescriptive period under La. C.C. art. 3492. The incident is alleged to have occurred in 2003; suit was filed in 2006. On its face, the claim appeared to be prescribed. As the trial court properly noted, the burden of proof then shifted to the plaintiff to demonstrate that the claim was not prescribed. The plaintiff made no such showing. We find no manifest error in the trial court’s ruling which granted the defendants’ exception of prescription.

FRIVOLOUS APPEAL

The defendants filed an answer to the appeal, contending that the appeal was frivolous and that an award of attorney fees was warranted. They claim that Mrs. Pratt has a history of filing frivolous complaints against LSUMC and should be sanctioned. The defendants maintain that Mrs. Pratt has, on many occasions, attempted to merely rehash old grievances dating back to 1989. Also, they assert that there are no serious legal questions presented here and that Mrs. Pratt has made no attempt to prove that she falls within an exception to the prescription statute. Instead, the defendants argue, she asserted only facts designed to invoke the court’s sympathy.

[ 7Law

An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advancing. Houston v. Blue Cross Blue Shield of Louisiana, 37,097 (La.App. 2d Cir.4/9/03), 843 So.2d 542, writ denied 2003-1342 (La.9/19/03), 853 So.2d 641; Yarnell Ice Cream Company v. Allen, 38,263 (La.App. 2d Cir.3/3/04), 867 So.2d 969. Appeals are favored and appellate courts are reluctant to impose damages for frivolous appeals. Yarnell Ice Cream Company v. Allen, supra; LaPoint v. Beaird Industries, Inc., 34,620 (La.App. 2d Cir.5/9/01), 786 So.2d 301, writ denied 2001-1611 (La.9/14/01), 796 So.2d 686. The provision in La. C.C.P. art. 2164 authorizing an award of damages for frivolous appeal is penal in nature and must be strictly construed. Mitchell v. Brown Builders, 39,673 (La.App. 2d Cir.5/11/05), 902 So.2d 1288. On those rare occasions when such damages are awarded, the amounts are modest and may consist of an amount representing a reasonable attorney fee award for answering and defending the appeal. Yarnell Ice Cream Company v. Allen, supra.

Discussion

While we reject the plaintiffs assertion that the trial court erred in granting the exception of prescription, we cannot say that the appeal was taken solely for delay or that the plaintiff did not seriously believe in her position. The defendants argue that the plaintiff has a history of filing frivolous complaints; however, we note that the plaintiff has, on occasion, | sreceived relief on appeal. We find damages for frivolous appeal are not warranted.

CONCLUSION

The trial court judgment sustaining the defendants’ exception of prescription is affirmed.

The defendants’ request for damages for frivolous appeal is denied.

Costs of this appeal are assessed against the appellant/plaintiff, Velma Pratt.

EXCEPTION OF PRESCRIPTION AFFIRMED; FRIVOLOUS APPEAL CLAIM DENIED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

      . As we noted in this opinion, Mrs. Pratt’s medical review claim included allegations that she was denied treatment and that Dr. Li failed to provide adequate treatment. Insofar as these claims asserted medical malpractice claims, we found that they had not prescribed.