author: PETTIGREW, J. KUHN, J.,

text:
    M.D., Wife of/and C.R.W., Individually and as Administrators of the Estate of the Minor Child, K.W. v. STATE of Louisiana, the DEPARTMENT OF SOCIAL SERVICES, Office of Community Services of the State of Louisiana and Julianne North.
    No. 2005 CA 1044.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 1, 2006.

      Robert S. Tóale, Gretna, for Plaintiffs-Appellees M.D., Wife of/and C.R.W., Individually and as Administrators of the Estate of the Minor Child, K.W.
    Charles C. Foti, Jr., Attorney General, Nicole M. Duarte, Special Assistant Attorney General, New Orleans, for Defendants-Appellants State of Louisiana, the Department of Social Services, Office of Community Services of the State of Louisiana and Julianne North.
    Before: CARTER, C.J., WHIPPLE, KUHN, GUIDRY, and PETTIGREW, JJ.

      . In the interests of privacy, we have used the initials of the parties involved in this matter. See Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2.

   PETTIGREW, J.

| .¿Defendant, State of Louisiana through the Department of Social Services, Office of Community Services (“OCS”), filed the instant appeal from a judgment finding OCS liable to plaintiffs, M.D., wife of/and C.R.W., individually and as administrators of the estate of the minor child, K.W., and awarding plaintiffs damages.

Plaintiffs have answered the appeal alleging that the damages awarded are inadequate and should be increased. They further allege that OCS caseworker, Julianne North, should have also been held liable in the judgment below. For the reasons that follow, we reverse in part, amend in part, affirm as amended, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On November 12, 1991, OCS assigned caseworker Julianne North to investigate an allegation that K.W. had been the victim of sexual abuse by her father, C.R.W. Following an investigation by OCS, K.W. was separated from her family and placed in the care of her maternal grandparents. By court order dated November 12, 1991, the State of Louisiana, through the Department of Health and Human Resources, was granted temporary custody of K.W. Because of the ongoing investigation and OCS’s allegations of sexual abuse by KW.’s father, M.D. was only allowed supervised visitation with K.W. C.R.W. was denied any contact with his daughter. This scenario continued through July 23, 1992, when K.W. was returned to her parents’ home. However, legal custody of K.W. was not returned to her parents until November 6, 1992. OCS officially closed the case on November 30,1992.

The trial court, in its written reasons for judgment, gave an extensive and well reasoned finding of the facts with regard to this ease, which we adopt herein as our own:

The cause of this lawsuit began on November 12, 1991 when [K.W.], the four-year-old daughter of [M.D.] and her husband [C.R.W.,] was brought to the attention of the Office of Community Services of the State of Louisiana (hereafter OCS). [K.W.] had a history of difficulty with bowel movements, and at home she often had to be helped with enemas and even manual extraction for elimination of her feces. Her mother usually took care of [KW.’s] problems, but when the child began preschool, the teachers occasionally had to help the child with her restroom problems. The teachers’ aides reportedly became annoyed on occasion |swith the additional chore and failed to properly clean the child, so that irritation of [KW.’s] private parts was not an uncommon event for her mother.
On November 12, 1991, officials at [KW.’s] school called the St. Tammany Parish Sheriffs Office with the advisory that the child may have been sexually abused. At the school, a teacher’s aide informed Sheriffs Detective Grant Ross and Julianne North, a crisis intervention officer of OCS, that [KW.’s] vaginal area looked “unusual” when she was being assisted in the restroom, that there was blood on her panties, and that the child had said “My daddy hurt me there.” [K.W.] also reportedly had stated to the teacher’s aide that “her daddy hurt her with his d* *k.” At the time, Detective Ross and Ms. North, the social worker, were not informed of [KW.’s] defecation problems and her phobia over going to the bathroom, resulting from her past difficulties and pain.
... [K.W.] was questioned for over thirty minutes by Ross and North, the investigators, without a parent present. When [K.W.] was asked by the two where she was hurt, she reportedly pointed to her posterior. The two investigators did not examine [K.W.] physically, nor did they ask at that time how the “hurt” happened....
[K.W.] was in a special education class, partly for her poor articulation. She was difficult to understand verbally and had problems expressing herself. [K.W.] had also 'fallen on the school’s monkey bars six months previously, and had then injured her perineal area. After the fall, she had bled in her vaginal area. She was treated for her injury by her pediatricians, Dr. Sanders and Dr. Andreica, who also noted her phobia with defecation. According to medical records, [K.W.] had had problems with defecation since 1988, and the injury on the monkey bars seemed to exacerbate her reluctance to visit the toilet. She would often retain her feces for days, exhibiting discomfort but refusing to move her bowels.... [M.D. and C.R.W.] were called to the school after the child’s interview. They were observed to be pleasant and cooperative but bewildered and shocked by the allegations.
The OCS worker took [K.W.], her mother, and Detective Ross to see Dr. Joan Curtis of the Covington Surgery Center on that same afternoon, November 12, 1991. Doctor Curtis was chosen by OCS. Although no written report was ever made by Dr. Curtis, Ms. North wrote up a report of what she surmised that Dr. Curtis had “said” .... [K.W.] was traumatized by the examination. Even though she was given a sedative, she would not cooperate. Dr. Curtis nevertheless reportedly found tears on the vagina and ordered a full examination for the next day under complete sedation. The results of that exam [were] also summarized by Ms. North. Ms. North stated that the labia, clitoris, and hymen were “intact” but the “rectum was all torn up, her perineum is torn, and there is severe and acute trauma to the entire perineal area.” ... An undated handwritten report from Dr. Curtis is in the record ... which appears from the context to have been scribbled on November 12. Those handwritten notes appear to rely heavily on the child’s statements of her history, and because of “fissures,” Dr. Curtis finds “conclusion for blunt trauma” and recommends contact with the father be terminated.
The mother objected at the time to her child being subjected to sedation as well as examination by strangers, but to no avail.
|4On November 18, 1991, an Instanter Order was issued, removing [K.W.] from her home and placing her with her grandparents. [C.R.W.] was arrested on November 15, 1991 for aggravated rape of his child. He was later released on bond, and was denied any contact with [K.W.] at all. Because [M.D.] would not admit to OCS that her husband had raped their child, she was allowed only limited and supervised visitation.
The world of the ... family was completely disrupted. The [family’s] two other ... children were closely interviewed. [M.D.] worked as an LPN, while [C.R.W.] was a truck driver for St. Tammany Parish. Both had their social, economic, and personal lives in turmoil. [M.D.] described it as a “living hell.”
A succession of medical doctors and social workers entered the process at this point. Dr. Gerard DiLeo of the Covington Surgery Center participated in another physical examination of [K.W.] under general anesthesia on November 13.1991. He found “a rectal exam revealed the sphincter to be intact and no evidence of hematoma” with no lesions to the hymen. This report is in direct opposition to the one made by Dr. Curtis the day before. Dr. DiLeo’s report was not submitted to the Juvenile Court or to the ... family[,] ... although caseworker Linda Amos noted that his findings “go against other reports” and he “doesn’t believe any sexual abuse occurred.” ...
Dr. Jodie Holloway of Tulane Medical Center wrote an evaluation on January 10[,] 1992. He noted [KW.’s] problems with articulation and expression, and refused to draw any definite conclusions from his brief interview ....
On March 31, 1992, Ms. Ginger Pine and Ms. Linda Amos of OCS picked up [K.W.] from school and, without notifying the parents or grandparents, took the child to Kathryn Coffman of Children’s Hospital for an examination. Dr. Coffman noted the change in [KW.’s] story from her father hurting her to stating that her mother hurt her. At that examination, [K.W.] stated that “no one” had ever hurt her and denied that her father had ever touched her private parts. Dr. Coffman noted that there were no signs of any previous severe physical trauma and that a dermatologic condition, which Dr. Curtis had attributed to sexual activity, was “a condition of unknown etiology which is not related to sexual abuse.” ... This is the same conclusion which Dr. Susan McBurney, the dermatologist, had reached when issuing treatment for [K.W.] on May 25, 1992. Therefore, Dr. Coffman found no evidence either supporting or denying sexual abuse.
On May 28,1992[,] Dr. John Willis ... examined [K.W.] and noted her on-going-treatment ... for her bowel problems. Dr. Willis found the child to be physically normal and ready developmentally for a normal kindergarten class ....
OCS engaged Valerie Turgeon, Ph.D., to evaluate and treat [K.W.] under the Child in Need of Care Act. Dr. Turgeon wrote two lengthy reports: on January 22, 1992 and on May 19, 1992.... Dr. Turgeon was frequently hired by OCS to treat allegations of child abuse professionally. The January report gave summaries of interviews with [K.W.] and her mother, at which time [K.W.] made contradictory statements, including that “no one hurt her.” Although Dr. Turgeon noted that [K.W.] missed her mother and her home deeply, she wanted to remove [K.W.] from her | ¡^grandparents’ home since they were denying that the abuse had happened. There was obviously a personality conflict between Dr. Turgeon and [M.D.] from the beginning -Despite [M.D.’s] request, OCS refused to appoint the family a more suitable counselor. Dr. Turgeon’s May report detailed an evaluation of [C.R.W.], at which he appeared completely cooperative while denying abuse. In this report, Dr. Turgeon recommended family counseling for them all.
The family was seen by Victoria Witt, Ph.D., first on May 19, 1992, and her report indicates that by this time [K.W.] has been returned to live with her family.... [C.R.W.] agreed to the counseling once the rape charges against him were dropped by the district attorney and he was allowed supervised visitation in May 1992. Dr. Witt noted that [K.W.] was easily frightened and fearful of being separated from her family. Dr. Witt believed that while sexual abuse could not be completely ruled out, “There is reasonable evidence to suggest the likelihood of other, far more reasonable possibilities which coexisted prior to her complaint.” The recommendation is that [K.W.] return to her parents and brothers, where Dr. Witt believed she would be safe. The family continued to receive counseling from Dr. Witt for some time.
The OCS report, written by Linda Amos, to Judge Chaisson of Juvenile Court ... on July 17, 1992, indicates that [K.W.] is not living in the home, but recommends that she be reunified with her family on July 23,1992. The recommended reunification was dependent upon cooperation of the family and continued counseling, and was to be unsupervised ....
Ms. North’s (OCS crisis intervention worker) testimony was certainly interesting. She admitted that while her duty is “to investigate and get all the facts,” she did not even consider [M.D.’s] version of the facts since that “was not how she worked.” In addition, she was far too rushed to ever consult with Dr. DiLeo about his report that said he believed there was probably no abuse. Ms. North ignored all denials by the family, dismissing them as “hallmarks” of abuse cases. On the witness stand under oath, she did not remember certain important and pertinent facts and admitted errors in the written records, such as wrong dates. She was often confused. She never wrote down the details of her interviews with [C.R.W.]. In fact, she does not remember if she ever spoke to him. She had decided by November 13,1991 that [K.W.] had been raped by her father. She decided this even before a group meeting at OCS. She stated that working for OCS was the most difficult job she had ever had, and she also admitted to having trouble handling and closing cases. Her memory of events is vague, and apparently Ms. North failed to write many items in her reports. It appears that the volume of work, the pending adjudication of this case, and her imminent transfer became instrumental in her being replaced with Linda Amos. Ms. North asked to be transferred in the spring while the investigation was still being made....
Linda Amos, a social worker since 1989 and with OCS since 1991, also did not appear to remember much about the case even though she was appointed on November 21, 1991 to handle it. She admitted that Dr. Holloway’s evaluation entitled “Short-Term Clinic Evaluation” dated January 10, 1992, remarks about [K.W.] that “It was difficult to understand her verbal content. She had definite articulation difficulties and at times it was hard to understand her verbal content.” ... His “Impression” under “Axis III,” stated that he “Rule[d] out sexual abuse.” ... Ms. Amos remembers that this report was sent to her and she read it, | fibut she does not remember if she gave it to the Juvenile Court as part of her review. She never spoke to Dr. DiLeo about his report.
On November 13, 1991 OCS refused to allow [M.D.] to take [K.W.] for an examination to a doctor of her choosing or a doctor who had previously treated [K.W.], saying it would be too “traumatic” for the child ... but OCS had [K.W.] examined ..., less than a month later, by Dr. Holloway. Since OCS had custody of the child from November 13, 1991, [M.D.] could do nothing.
Although [M.D.] complained about Dr. Turgeon and her preconceptions, she was not allowed to visit with another therapist until May of 1992. At that time, events seem to have speeded toward a conclusion.
The written reports not supporting the OCS beliefs seem to have been omitted from Juvenile Court records and withheld from the plaintiffs’ attorney. Ms. Amos selectively does not remember anything that would reflect poorly on her or on OCS.... She still maintains that the allegations are “inconclusive,” and the fact that the father was unable to see his child until May, and the mother had supervised visitation until July, was appropriate. She thought that [M.D.] was uncooperative because she refused to admit that her husband had sexually abused their child. She held on to this opinion in spite of the fact that the mother had cooperated in every other way. Ms. Amos had no explanation for the fact that in spite of no new information, OCS began allowing the father visitation only when he was willing to stipulate to the child being “in need of care,” taking that statement as an admission of guilt. Then the reunification with the family was suddenly made in July 1992 without restrictions. Dr. Witt’s report was not made until October 1992, but apparently OCS was no longer worried about [KW.’s] safety in July, 1992, and relinquished custody completely to the parents. It is only at this trial in 2004 that OCS makes the allegation that enemas may have hurt the child and that therefore the family should be split apart....
[M.D.], an LPN for twenty-five years, testified for her family. Her mother, an R.N., worked as a pediatric nurse at Charity Hospital for thirty-seven years. They were both dealing with [K.W.’s] bowel habits and phobia over defecation, and they had admonished the school workers for not cleaning the child properly after a bowel movement. [K.W.] had returned home from school often with dried feces on [her] bottom and the beginning of irritation on her skin. The monkey-bar incident was appropriately treated by [K.W.’s] regular pediatrician, so when the parents were called to the school on November 12, 1991, they were stunned.
The parents sleep in a 10' x 10' bedroom in a trailer, and there are two other children, so there is very little privacy within the family. [M.D.] was dismayed at the aggressiveness of Detective Ross and Ms. North, and threats of being arrested as an accessory to a crime frightened her enormously. During the hour’s interrogation, [M.D.] inquired as to the evidence for the allegation of rape. Ross and North refused to answer. Ms. North was always “in control” with a heavy hand. [M.D.] was forced to hold her child and attempt to sedate her for the physical examination by Dr. Curtis, even though [K.W.] was screaming and fighting, both at the initial exam and the next day. Ross and North entered her home with no consent to search or [a] search warrant. They removed bed linens and underwear.
17[M.D.] agreed to allow [K.W.] to be placed at her grandparents’ home, as she knew she was helpless to stop her removal and was afraid that she would be placed with strangers. As [a] mildly autistic child, [K.W.] is abnormally sensitive to change and upset.
On November 13, 1991 the mother was forced to once again assist in sedating her child, after following the instructions of not washing or holding her at home. She was required by the instructions of the authorities and Dr. Curtis not to wash the dried bowel excretion off [K.W.]. The child smelled bad and was miserable with this dried material left on her until the examination the next day.
Dr. Curtis would not listen to the mother’s recitation of her child’s history. But when Dr. DiLeo stated that [KW.’s] hymen was intact and that there was no evidence of molestation, [M.D.] thought the nightmare was over. In reality, it was just beginning. [C.R.W.] could not even wave to his child on the street, or attend church since [K.W.] would be there. He was placed in the St. Tammany Parish jail and had to post bail for the criminal charges alleged against him. Both [M.D. and C.R.W.] had to answer the most personal questions.
[M.D.] did not like Dr. Turgeon, since the [psychologist] assumed she was lying. The doctor would not make eye contact with her, and she obviously had assumed that the allegations were true and that [M.D.] was protecting her husband. Ms. Amos was indifferent to [M.D.], keeping a cool distance and merely tolerating her. The mother’s requests for a different therapist went unheeded until April 1992, when Dr. Witt was approved.
The lines of communication were open between [M.D.] and Dr. Witt, and rapid progress was then made toward the reunification. The [family] continued to see Dr. Witt for two and one-half years, for [K.W.] was traumatized by the separation, as were the parents. The father is still afraid to touch his child, and they feel “watched” and “threatened” by strangers. Although now sixteen years old, [K.W.] is better, but some of the pain, depression, and anger persist. ... It was only after [M.D. and C.R.W.] were willing to stipulate, upon the advice of their counsel, that the child “was in need of care” that [K.W.] regained visitation with her family. They knew that this was the only way they would get their child back.
[C.R.W.], [KW.’s] father, testified that Detective Ross and Ms. North interviewed him at the time of the incident, accusing him and saying that [K.W.] had alleged he “hurt” her. He denied it, and told them of her bowel problems. He testified that the unwarranted search of their trailer was “humiliating” and he was angry and confused. He was fearful that the other children would be taken away as well, and felt helpless to fight the charges.
Ginger Pine, a supervisor with OCS, was questioned closely but could add little to the testimony for she was not directly involved with the case. She admitted an inability to explain what had happened, but she made new allegations of obsession of the parents with bowel movements, neglect of the parents in caring for the child, problems of the child with | ¿‘equilibrium,” and “poor parenting” by the use of enemas. She was unable to support the reasons why these new problems were a basis for removing the child from the home and denying her parental affection. Although she supported Dr. Curtis’s verbal reports wholeheartedly, she did note that Dr. Coffman found no evidence of sexual abuse, but instead theorized that a hard stool could have caused the initial problem .... She adhered to the OCS line that she still believed that sexual abuse occurred, but she had no explanation why, if she so believed, that the child would have been returned to the parents with no restrictions except that the father was receiving treatment....
This Court finds that the plaintiffs have proved their case by a preponderance of the evidence, and awards damages against the Office of Community Services. Ms. North is not personally liable, as she was acting as an employee of the organization. Plaintiffs are to be reimbursed for their fees to Dr. Victoria Witt from July 17, 1992 to the end of their treatment and for all legal fees they incurred as a result of defending themselves against OCS taking their child and the criminal case resulting from OCS’s allegations. They are also to be awarded general damages in the amount of seventy-five thousand dollars ($75,000.00) for their mental pain and suffering.

The trial court signed a judgment in accordance with its findings on December 7, 2004, personally dismissing Ms. North, with prejudice, and ordering as follows:

[OCS] is found at fault, and furthermore acted arbitrarily and capriciously in its capacity in removing the minor child from her household, and is liable for general damages in the amount of $75,000.00, all legal fees incurred by the plaintiffs in the criminal matter, and for all counseling fees to Dr. Victoria Witt from July 17, 1992 to the end of the child’s treatment, plus legal interest from date of filing.

It is from this judgment that OCS filed the instant appeal, assigning the following specifications of error:

1. The trial court erred and/or manifestly erred in holding the OCS liable for wrongfully removing and retaining the plaintiffs’ child from their home.
2. Even if the liability determination could be upheld, the trial court’s award of attorney’s fees to compensate the plaintiffs for the amounts they expended to defend plaintiff [C.R.W.] in the criminal prosecution filed by the district attorney against him and to represent the [family’s] interests in the Child in Need of Care proceeding must be set aside, and the court’s award of general damages should be reduced.

Plaintiffs answered the appeal, setting forth the following assignments of error for our review:

1. The trial court erred in failing to award any sums for legally compensable elements of damages proven at trial, including loss of consortium, loss of enjoyment of life and interference with custody, mandating an increase in general damages.
|¡)2. The trial court abused its discretion in only awarding $75,000.00 for mental pain and suffering, mandating an increase in general damages.
3. The trial court erred in failing to specify the amount of special damages in the judgment, requiring correction by this court.
4. The trial court erred in omitting to cast defendants with costs in the judgment, requiring correction by this court.
5.The trial court erred in failing to hold defendant Julianne North liable in her official capacity in the judgment, requiring clarification by this court.

STATUTORY IMMUNITY

In Todd v. State Through Deft, of Social Services, Office of Community Services, 96-3090, p. 8 (La.9/9/97), 699 So.2d 35, 39, the Louisiana Supreme Court held that the duty of a child protection caseworker and OCS is delineated by La. Ch. C. arts. 611 and 612, and by La. R.S. 9:2798.1. These statutes provide, in pertinent part, as follows:

Art. 611. Immunity from civil or criminal liability

A. (1) No cause of action shall exist against any:
(a) Person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter.
(b) Caseworker who in good faith conducts an investigation, makes an investigative judgment or disposition, or releases or uses information contained in the central registry for the purpose of protecting a child.
(2) Such individuals shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.
B. This immunity shall not be extended to:
(1) Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the child.
(2) Any person who makes a report known to be false or with reckless disregard for the truth of the report.

Art. 612. Assignment of reports for investigation and assessment

G. The Department of Social Services shall set priorities for case response and allocate staff resources to cases identified by reporters as presenting immediate substantial risk of harm to children. Absent evidence of willful or intentional misconduct or gross negligence in carrying out the investigative functions of the state child protection program, caseworkers, supervisors, program managers, and agency heads shall be immune from civil and criminal liability in any legal action arising from the department’s decisions made relative to the setting of priorities for cases and targeting of staff resources. (Emphasis added.)

linLa. R.S. 9:2798.1. Policymaking or discretionary acts or omissions of public entities or their officers or employees

B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

Thus, although OCS and its employees may be entitled to the qualified immunity set forth in La. Ch. C. arts. 611 and 612 and La. R.S. 9:2798.1, there is no such immunity if gross negligence is alleged and proven.

In Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112, pp. 5-6 (La.7/5/94), 639 So.2d 216, 219-220, the supreme court addressed the concept of gross negligence as follows:

Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” “There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning.” Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence. (Citations omitted.)

On appeal, OCS argues the record does not clearly demonstrate the trial court applied the proper standard of liability under La. R.S. 9:2798.1 in determining the liability of OCS. Thus, OCS maintains, the trial court committed legal error such that the normally applicable manifest error/clearly wrong standard of review is inapplicable, and this court should conduct a de novo review of the trial court’s findings and conclusions. We find no merit to this argument.

It is well settled that the appellate court’s review of factual findings is governed by the manifest error-clearly wrong standard. The two-part test for the appellate preview of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobart v. State of Louisiana, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541, 97-0577, p. 7 (La.2/6/98), 708 So.2d 731, 735. If, however, the trial court does make an error of law but such error does not interdict the court’s fact finding, de novo review is not warranted. David v. Thibodeaux, 2004-0976, p. 7 n. 4 (La.App. 1 Cir. 5/11/05), 916 So.2d 214, 219 n. 4, writ denied, 2005-1575 (La.1/27/06), 922 So.2d 545.

Lain the instant case, after considering the evidence and the applicable law, the trial court found liability on the part of OCS, noting as follows:

This Court finds that the actions of OCS were far beyond diligent, and in fact stepped over into [harassment]. The allegations certainly demanded an investigation, and a physical examination of the child, but the roughness and insensitivity to the child’s feelings was certainly unnecessary as she was manhandled and sedated. Dr. [Curtis’s] report may have called for removal to the grandparents’ home for a day or two, but Dr. DiLeo’s opinion should have been considered as well, since his report of November 13, 1991 was contrary to that of Dr. Curtis. Also, the child’s slowness in mental development and difficulty in articulation should have been weighed, as well as the fact that she was only four years old. From November 13, 1991, OCS should have been on notice that there was not a certainty that the child was abused, and should have proceeded with care. Instead, the child and the parents have suffered a trauma that will probably stay with them for the rest of their lives. OCS acted in an arbitrary and capricious manner in removing the child from her home for nine months, and acted in bad faith then and now in refusing to entertain the credible evidence against its position. The OCS workers were guilty of gross negligence in their repeated examinations of the child without parental presence or even parental notification, and in their insistence upon following the worst possible course for a sensitive and largely incoherent child. Their refusal to allow the parents to use their own physician or psychologist was unwarranted and cruel.

While it is true that the trial court used terms such as “arbitrary and capricious,” “far beyond diligent,” “bad faith,” “harassment,” and “unwarranted and cruel,” in describing the actions of OCS and its employees, this does not equate with legal error by the trial court. Thus, the applicable standard of review in this case is the manifest error-clearly wrong standard.

It is evident from a reading of the trial court’s extensive reasons for judgment that it carefully considered all of the evidence in the record before finding that plaintiffs met their burden of proving that OCS and its employees committed gross negligence in handling this case. The trial court specifically found that none of OCS’s witnesses were credible or believable and that the witnesses’ testimony appeared to be rehearsed. To the contrary, the court found both M.D. and C.R.W. to be “completely credible witnesses.” We agree. The nature of the allegations against C.R.W. certainly warranted an investigation by OCS. However, the actions taken by OCS and its employees throughout this ordeal went beyond that which was necessary and exhibited 1 istheir refusal to entertain any credible evidence that the alleged sexual abuse had not occurred.

Following an exhaustive review of the record, including the numerous reports that outline, in detail, OCS’s involvement with this case, we find that the trial court’s conclusions concerning OCS’s liability are reasonable and that its findings are not manifestly erroneous. Although this court may have reached a different conclusion, deference must be accorded to the trial court’s findings of fact. Thus, we may not disturb the trial court’s findings in this regard. However, our inquiry regarding liability does not end here.

In their petition for damages, plaintiffs named Ms. North personally as a defendant in her capacity as an agent and employee of OCS. Plaintiffs alleged that OCS was responsible to them for the damages occasioned by the acts and/or omissions of Ms. North under the doctrine of respondeat superior. Thus, plaintiffs asserted, OCS and Ms. North were liable, jointly and solidarity, for their damages.

In answering the instant appeal, plaintiffs argue that the trial court erred in failing to hold Ms. North liable in her official capacity as an OCS employee. Plaintiffs maintain the trial court “found that OCS was liable for Ms. North’s conduct, and that was the intent of its Judgment.” Citing Smith v. Our Lady of the Lake Hospital, 96-1837 (La.9/27/96), 680 So.2d 1163, plaintiffs assert that in the absence of liability on the part of the State’s employees, the State cannot be held vicariously liable for the employees’ actions. Thus, plaintiffs maintain, the judgment below must be amended to clarify Ms. North’s liability. We agree. Therefore, we reverse that portion of the judgment that personally dismissed, with prejudice, Ms. North from this case and amend the judgment accordingly to reflect Ms. North’s liability.

DAMAGES

On appeal, OCS attacks the trial court’s $75,000.00 general damage award as abusively high. In brief, OCS sets forth the following reasons in support of its contention that the general damage award should be reduced:

lu(l) the importance of the policy interests involved; (2) ... OCS’s retention of custody was temporary, lasting a matter of months; (3) [M.D.] exercised visitation with [K.W.] throughout the period of OCS custody when [K.W.] was living nearby with family relatives; (4) [C.R.W.] was without visitation for a period of only five months; and (5) [K.W.’s] temporary removal from the family home did not result in any permanent damage to [K.W.], who was only four years old at the time OCS removed her from the home, and her family.

On the other hand, plaintiffs assert the trial court erred in failing to award damages for several compensable elements of damages proven at trial, including loss of consortium, loss of enjoyment of life, and interference with custody. Plaintiffs contend the $75,000.00 awarded in general damages is abusively low and must be increased. Further, plaintiffs assign error to the trial court’s failure to specify the amount of special damages awarded to plaintiffs for the counseling fees paid to Dr. Victoria Witt from July 1992 to the end of KW.’s treatment.

The discretion vested in the trier of fact in fashioning an award of general damages is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 628 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Millican v. Ponds, 99-1052, p. 6 (La.App. 1 Cir. 6/23/00), 762 So.2d 1188, 1192.

Based on our review of the evidence before us, we find no abuse of discretion by the trial court in its $75,000.00 general damage award. Given the “particular injuries and their effects under the particular circumstances” in the instant case, the trial court’s general damage |1Baward sufficiently compensates plaintiffs. See Youn, 623 So.2d at 1260. Thus, we find no merit to the arguments concerning the trial court’s general damage award and decline to disturb same. With regard to Dr. Witt’s counseling fees, the record reflects that K.W. was treated by Dr. Witt from July 1992 through January 1995, with charges totaling $3,585.00. Thus, we amend the judgment accordingly to specify this amount as special damages awarded to plaintiffs.

AWARD OF ATTORNEY FEES

In addition to challenging the trial court’s general damage award, OCS argues the trial court erred in awarding $15,000.00 in attorney fees. OCS maintains that attorney fees can only be awarded if specifically provided for by a contract or statute. OCS asserts that neither the Children’s Code nor any other statutes provides for an award of attorney fees on the facts of this case. Thus, OCS contends, the award of attorney fees must be reversed and set aside. To the contrary, plaintiffs argue that the attorney fees they incurred in the underlying criminal proceeding and OCS case should be recoverable as any other expense necessitated by OCS’s fault.

At the outset, we find no legal basis for an award of attorney fees associated with the underlying criminal matter. However, with regard to the legal fees associated with defending the OCS matter, we find plaintiffs are entitled to recover same as special damages as these expenses were necessitated by the gross negligence of OCS and its employees. According to the record, plaintiffs paid $15,000.00 in legal fees for representation in both the criminal matter and the OCS case. Unfortunately, we are unable to discern from the record what portion of these fees was attributable to defending the OCS case. Therefore, we remand the matter to the trial court for the purpose of determining an appropriate amount of attorney fees to be awarded to plaintiffs as “legal fees incurred by plaintiffs in defending the OCS case.”

Jj/IOURT COSTS

The final issue for our consideration is whether the trial court erred in failing to cast defendants with costs in the judgment below. Plaintiffs argue that as the prevailing parties, they are entitled to costs. OCS maintains that pursuant to La. R.S. 13:5112, the trial court may, but is not required to, award costs against a State entity such as OCS. Thus, OCS contends, plaintiffs are not entitled to an award of costs. We find merit to plaintiffs’ argument on this issue.

Louisiana Revised Statutes 13:5112 provides, in pertinent part, as follows with regard to the award of costs against a State entity:

A. In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor, of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party’s court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

Based on the unique facts and circumstances herein, and considering the grossly negligent actions by OCS and its employees in the handling of this investigation, we conclude plaintiffs are entitled to recover court costs below. Thus, we remand this matter to the trial court for assessment of court costs in a dollar amount as is required by La. R.S. 13:5112. See Gordon v. Louisiana State Bd. of Nursing, 2000-0164, pp. 10-11 (La.App. 1 Cir. 6/22/01), 804 So.2d 34, 40-41, writ denied, 2001-2130 (La.11/16/01), 802 So.2d 607.

CONCLUSION

For the above and foregoing reasons, we reverse that portion of the judgment that personally dismissed Julianne North as a defendant and amend the judgment to reflect that Julianne North, as well as the State of Louisiana through the Department of Social Services, Office of Community Services, acted with gross negligence and are liable to plaintiffs for general damages in the amount of $75,000.00 and special damages in the amount of $3,585.00 for Dr. Victoria Witt’s counseling fees. We remand the matter |17to the trial court for the purpose of determining an appropriate amount of attorney fees to be awarded to plaintiffs as “legal fees incurred by plaintiffs in defending the OCS case” and for assessment of court costs against the State of Louisiana through the Department of Social Services, Office of Community Services, in a dollar amount as is required by La. R.S. 13:5112. Appeal costs in the amount of $156.25 are assessed against the State of Louisiana through the Department of Social Services, Office of Community Services, and Julianne North.

REVERSED IN PART; AMENDED IN PART, AND AS AMENDED, AFFIRMED; REMANDED WITH INSTRUCTIONS.

KUHN, J., dissents and assigns reasons.

GUIDRY, J., dissents and adopts the reasons assigned by KUHN, J.

KUHN, J.,

dissenting.

liThe majority correctly points out that in order to find OCS liable, plaintiffs had to present evidence that the state agency engaged in willful or intentional misconduct or gross negligence, but then disregards this standard by affirming the trial court’s award of damages. In this case, the evidence in the record simply does not demonstrate the agency or its employees engaged in willful or intentional misconduct or acted grossly negligent, i.e., “without the want of even slight care and diligence” or “with utter disregard for the dictates of prudence, amounting to complete neglect of the rights of others.” See Ambrose v. New Orleans Police Dep’t Ambulance Srvc., 93-3099, pp. 5-6 (La.7/5/94), 639 So.2d 216, 219-20.

The trial court’s reasons for judgment, which the majority quotes quite liberally, mischaracterize the actions of OCS and its employees. Of particular concern is the trial court’s finding that “[Ms. North] was far too rushed to ever consult with Dr. DiLeo about his report that said he believed there was probably no abuse.” But after reviewing Dr. DiLeo’s November 13, 1991 report, no comments can be found by him whatsoever addressing whether abuse occurred. His specific finding is “there was superficial tearing (primary laceration) of the interior fourchet extending into the | ¿perineal region.” Thus, he confirmed the pre-op diagnosis of “Trauma to perineum” after completion of the procedure.

Another example of the inaccuracy of the trial court’s findings in its reasons for judgment is its statements, “[Dr. DiLeo’s November 13, 1991] report [was] buried in the OCS files. It was not available to the Court or to the Williams’ attorneys. That report ... did not come to light until this trial.” A review of the record shows that at the commencement of trial, plaintiffs’ counsel stated, “The plaintiffs and the defendants have agreed to at least initially two joint exhibits. They have been marked as Exhibit Joint One and Joint Two.... These exhibits contain numerous documents, including doctor[s’] reports.” Dr. DiLeo’s November 13, 1991 report was contained in both joint exhibits. Thus, the record fails to support a finding that Dr. DiLeo’s report had been withheld or otherwise been unavailable to plaintiffs.

Additionally, a review of the record shows that subsequent to OCS’s involvement stemming from the allegations against Mr. Williams, on two separate occasions and in the presence of their attorney, plaintiffs stipulated that the child was a child in need of care. Moreover, the record establishes that once an OCS-approved psychologist concluded that it was in the child’s best interest to be with her parents and brothers, which apparently coincided in time with the district attorney’s dismissal of the criminal charge of aggravated rape of his daughter against Mr. Williams, OCS returned the child to the parents, although it continuing to monitor her progress. At the one-year review, OCS closed its file.

The legislature’s imposition of a burden of proof which requires plaintiffs to establish that OCS engaged in willful or intentional misconduct or gross negligence and its grant of immunity to the agency correspond to an obvious point: in the exercise of its legal authority the agency must always | o,weigh the protection of the child against parental interests. In this case, the majority’s reversion to what appears to be the proof of plaintiffs’ case by a preponderance of the evidence certainly will chill the decisions of OCS workers in their assessments of children’s needs and protection. With criminal charges pending against the father, would the majority agree that OCS would have been grossly negligent had it closed its file if the charges had later been proven true? Second guessing by the trial court and the majority may bring about results that, though unintended, pose extreme danger for child protection.

I additionally point out that the majority’s amendment of the judgment to cast Ms. North in her personal capacity serves no useful purpose. Ms. North is immune from liability pursuant to La. R.S. 9:2798.1 B. Nothing in the record demonstrates that her actions in handling this matter were criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct so as to exempt her or her employer from immunity.

Plaintiffs have failed to establish that OCS and North’s actions amounted to “an extreme departure from ordinary care or the want of even scant care.” Although OCS and North certainly were careless and misguided, because their actions do not rise to the level of gross negligence or to criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct, I believe the imposition of liability is legal error and, accordingly, I dissent.

      . We note a discrepancy between the trial court’s November 30, 2004 written reasons for judgment and the December 7, 2004 judgment. When addressing the award of attorney fees, the trial court's written reasons refer to "all legal fees [plaintiffs] incurred as a result of defending themselves against OCS taking their child and the criminal case resulting from OCS’s allegations.” However, in the December 7, 2004 judgment, the trial court referenced only the legal fees incurred by plaintiffs in the criminal matter. Where there is a conflict between the judgment and the written reasons, the judgment controls. Delahoussaye v. Board of Sup’rs of Community and Technical Colleges, 2004-0515, p. 13 (La. App. 1 Cir. 3/24/05), 906 So.2d 646, 654. Thus, we must treat the award of attorney fees as though it was rendered solely for the legal fees associated with the underlying criminal matter.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    ANGELO IAFRATE CONSTRUCTION CO. v. Billy HERRING Billy Herring v. J.I.C.
    Nos. 2005 CA 1461, 2005 CA 1462.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 1, 2006.

      Michael B. Forbes, Hammond, for Defendant-Appellee Billy Herring.
    Christopher M. Landry, Raquelle M. Badeaux-Phillips, Metairie, for Appellant.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|⅞⅛ this workers’ compensation action, it was undisputed that claimant was injured while in the course and scope of his employment. Following videotape surveillance, employer subsequently terminated benefits pursuant to La. R.S. 23:1208. Employer now appeals from a judgment ordering a reinstatement of claimant’s benefits. We affirm.

FACTS

Billy R. Herring (“claimant”) fell from a roof while in the course and scope of his employment with Angelo Iafrate Construction Company (“Iafrate”) on January 24, 2001. Claimant alleged injuries to his ribs, lung, shoulder, and neck. As a result of said injuries, the Office of Worker’s Compensation (“OWC”) ordered Iafrate to pay benefits to claimant.

Due to conflicting opinions between the claimant’s choice of physician and the physician selected by the employer, Iafrate requested that an independent medical examiner (“IME”) be appointed pursuant to La. R.S. 23:1124.1. Accordingly, the OWC granted Iafrate’s motion and claimant was examined by Dr. Treg Brown on or about March 13, 2003. Within one week of said examination, Iafrate secured a surveillance film and corresponding written reports wherein claimant was engaged in a number of outdoor activities for which claimant had allegedly advised the IME that he could not perform.

Iafrate filed a Disputed Claim for Compensation on August 12, 2003. Claimant’s indemnity and medical benefits were subsequently terminated on August 26, 2003, due to claimant’s alleged violation of La. R.S. 23:1208. Claimant also filed a Disputed Claim for Compensation against J.I.C. on October 3, 2003, and these matters were later consolidated on December 10, 2003.

Subsequently, on May 20, 2004, the OWC granted Iafrate’s motion to have the IME review the surveillance materials pursuant to La. R.S. 23:1317.1.

A hearing was held in this matter on August 30, 2004. At the hearing, Iafrate alleged that claimant had violated La. R.S. 23:1208 by making a false representation. Following the hearing and review of the exhibits and testimony, the OWC, on August 30, | c.2004, signed a judgment holding that Iafrate had failed to prove that claimant had violated La. R.S. 23:1208. Accordingly, the OWC ordered Iafrate to reinstate both medical and indemnity benefits retroactive to their suspension on August 26, 2003. Iafrate was also assessed judicial interest at the rate of 4.5 percent on all outstanding indemnity benefits from August 26, 2003. From this judgment, Iafrate has appealed.

ISSUES

In connection with its appeal in this matter, Iafrate raises the following issues for review and consideration by this court:

1) Whether claimant has violated La. R.S. 23:1208 by deliberately representing his case for the purpose of obtaining worker’s compensation benefits and, thus, has forfeited all benefits he would be entitled to under the Louisiana Workers’ Compensation Act;
2) Whether the Court erred in not awarding restitution, penalties and attorneys’ fees along with the La. R.S. 23:1208 allegation to the employer for claimant’s fraudulent actions.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the workers’ compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, 14although the appellate court may feel its own evaluations and inferences are as reasonable. Id.

ANALYSIS

In this matter, the workers’ compensation judge determined that claimant had not intentionally misrepresented facts in an attempt to obtain workers’ compensation benefits. Iafrate, claimant’s former employer, contends that pursuant to the provisions of La. R.S. 23:1208, claimant is no longer entitled to workers’ compensation benefits based upon his misrepresentation of facts in an effort to continue receiving benefits. In pertinent part, La. R.S. 23:1208 provides:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * # *
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This section was intended to prevent and discourage fraud in relation to workers’ compensation claims. Newman v. Richard Price Construction, 02-0995, p. 4 (La.App. 1 Cir. 8/8/03), 859 So.2d 136, 140. This broadly worded statute encompasses false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Resweber v. Haroil Construction Company, 94-2708, 94-3138 pp. 1-2, (La.9/5/95), 660 So.2d 7, 9. The statute contains no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. Resweber, 94-2708, 94-3138 at 7, 660 So.2d at 12. Louisiana Revised Statute 23:1208 applies in all circumstances where (1) there is a false statement or representation, (2) the statement or representation is willfully made, and (3) the statement or representation is made for the purpose of obtaining workers’ compensation benefits. Resweber, 94-2708, 94-3138 at 11, 660 So.2d at 14. The statute generally becomes applicable at the time of an employee’s accident or claim. Resweber, 94-2708, 94-3138, at 10, 660 So.2d at 14. The issue of whether an employee forfeited workers’ compensation benefits is one of fact, |Bwhich is not to be reversed on appeal, absent manifest error. Davis v. AMS Tube Corp., 02-2427 (La. App. 1 Cir. 12/31/03), 868 So.2d 141, unit denied, 04-0286 (La.3/26/04), 871 So.2d 354.

Iafrate conducted video surveillance of claimant February 18, and March 13, 18 and 19, 2003. On March 18, 2003, claimant was videotaped loading garbage cans containing what appeared to be construction debris into the bed of his pick-up truck, and later emptying out water that had apparently accumulated inside the can. On March 19, 2003, claimant was videotaped climbing up and down a ladder using a circular saw.

When questioned at the hearing regarding these activities, claimant testified:

A. There was nothing ever said about working with a saw or nothing, [Dr. Robichaux] just said, “Do what you can and if I was you I would try to work with five to twenty pounds.” He said I had a petite muscle or something like that, I forget how he put that, and I needed to try to build that back. He said that when I walked, I needed to put some kind of little weight in my hands.
Q. From the time you fell off the roof and first hurt yourself until the time you saw Dr. Brown [the IME], had you improved somewhat?
A. Yes.
⅜ ⅜ * ⅜
Q. By the time you saw Dr. Brown, you were actually better and able to do most of these things by yourself.
A. Now I do. He asked me a lot of questions. He asked me could I wash dishes, could I vacuum the floor, could I hang up clothes, could I wash clothes? I don’t know why he asked me all of that. Q. Did you tell him that you were adapting to your condition?
A. Yes.
* ⅜ ⅝ ⅜
Q. All right. Was it your hope, Mr. Herring, that you would be able to go back to some kind of work?
A. Yes, but the lady from workers’ comp wrote me a letter and said they had discussed it and they had decided that I wasn’t going back to work. Now, this come from Gallagher and Basset [Iafrate’s workers’ compensation insurer],
Q. All right. But you still tried to do as much as you could, right?
A. Yes. I figured eventually I would go back to work doing something or another.
|fiQ. Did you ever intentionally tell anybody anything about your injuries that wasn’t true?
A. No, no. I might have left off a little bit of it. You don’t just go telling people you’re hurting 24 hours a day. I mean, sometimes you tell them you are feeling good and all that, but -
Q. Did you tell the various doctors that some days were better than others?
A. Oh yeah, I told them that. Some days were pretty good and I felt pretty normal. Then I had days that I was a long way from normal.

At the conclusion of the hearing, the workers’ compensation judge, after consideration of the testimony and evidence submitted, opined:

The issue in this case is whether or not Mr. Herring has violated 1208, Revised Statute 23:1208 for the purpose of obtaining benefits. That statute reads as follows: “A) It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person to willfully make a false statement or representation.” Now, the statement or representation that is being alleged in this case to have been false is with regard to Mr. Herring’s representations to Dr. Brown concerning his abilities or inabilities with regard to his ability to perform certain tasks or inability to perform certain tasks.
I am of the opinion, after reading Dr. Robichaux’s deposition, Dr. Lee’s deposition, Dr. Brown’s deposition, Dr. Robi-chaux, Dr. Lee’s and Dr. Brown’s records, viewing the video tape, reading the investigator’s report and his deposition, that Mr. Herring has not violated 1208. Do I feel that there may have been ... a miscommunieation between Mr. Herring and Dr. Brown? I do. Mr. Herring is very obviously hard of hearing.
This gentleman had a window that had to be covered in order to protect his property and he went out and he did it. If I had this gentleman working on someone else’s house, I’d have a problem. If he was doing something for pay, I’d have a problem, but doing stuff around his own home to try to make it livable, even if they are activities that he should not do or that he told the doctor that he doesn’t do, I do not have anything to show that he does this on a daily basis, that this is something that he can do every day and that he doesn’t suffer for it when he tries to do it. He’s got an obvious deformity as a result of this accident and the broken clavicle.
I would reinstate his benefits at the SEB characterization, at the full rate until such time as the circumstances change to be able to show that there is work out there that he can do. I do not feel that he made a willful misrepresentation in order to obtain benefits.

After a review of the record and consideration of the evidence presented, we find no manifest error in OWC’s finding that claimant did not make a willful misrepresentation in order to obtain benefits. Accordingly, we affirm OWC’s reinstatement of benefits to |7claimant. Considering the above finding, the remaining issue raised by Iafrate is now moot.

DECREE

For the above and foregoing reasons, the judgment of the OWC ordering a reinstatement of claimant’s benefits is affirmed. All costs associated with this appeal are assessed to Angelo Iafrate Construction Company, a/k/a James Construction Group.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Angelo Iafrate Construction Company is now known as James Construction Group.


author: CARTER, C.J. McDONALD, J.

text:
    Don RISTROPH, and All Those Similarly Situated, All Taxpayers and All Other Persons Interested in or Affected in any Way by the Issuance of not to Exceed $17,500,000 Gulf Opportunity Zone Act to the Louisiana Public Facilities Authority on Behalf of Pipeline Technology VI, LLC v. LOUISIANA PUBLIC FACILITIES AUTHORITY, Pipeline Technology VI, LLC.
    No. 2006 CA 1669.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2006.

      Kirk A. Patrick, Holly Q. Sides, David F. Zuber, Baton Rouge, Counsel for Plaintiffs/Appellants, Don Ristroph, et al.
    Gordon D. Polozola, Baton Rouge, Counsel for Defendant/Appellee, Pipeline Technology VI, LLC.
    Harry J. Philips, Jr., Tracy A. Morganti, Baton Rouge, Counsel for Defendant/Ap-pellee, Louisiana Public Facilities Authority.
    Before: CARTER, C.J., WHIPPLE, PETTIGREW, DOWNING, and MCDONALD, JJ.
   CARTER, C.J.

IsThe sole issue for this court’s consideration is whether plaintiff, Don Ristroph’s, motion for judgment seeking invalidation of a bond issuance is perempted as a matter of law. Finding plaintiff timely exercised his right to challenge the bond issuance, we reverse and remand.

Facts and Procedural History

The undisputed facts establish that on February 7, 2006, and May 8, 2006, defendant Louisiana Public Facilities Authority (LPFA), under and pursuant to the provisions of the Louisiana Public Trust Act, LSA-R.S. 9:2341-2347, adopted Resolutions granting preliminary and final approval to the issuance of up to $17,500,000 of the LPFA’s Gulf Opportunity Zone Bonds (Go Zone Bonds) for the benefit of defendant Pipeline Technology VI, LLC (Pipeline). The bonds were designated as “Louisiana Public Facilities Authority Taxable and/or Tax-Exempt Revenue Bonds (Pipeline Technology VI, L.L.C. Project) Series 2006.” Pipeline seeks the funds to construct an underground benzene pipeline. Notice of the sale of the bonds was published in The Advocate on May 9, 2006, and in the Daily Journal of Commerce on May 11, 2006.

By Resolution dated May 18, 2006, the Louisiana State Bond Commission (Bond Commission) granted final approval to the issuance of the bonds and designated the bonds as “qualified Gulf Opportunity Zone Bonds.”

l40n June 7, 2006, Ristroph filed a “Petition for Motion for Judgment and for Injunctive Relief’ against LPFA and Pipeline. Ristroph’s motion for judgment states “Louisiana Revised Statute[s] 13:5121, et seq. (the “Bond Validation Act”) provides a judicial mechanism by which issuers and challengers of bond issuances or governmental units may validate or challenge the issuance of governmental bonds. This suit is brought pursuant to the Bond Validation Act.”

On June 28, 2006, LPFA and Pipeline filed an answer, therein raising several exceptions and affirmative defenses. Significant to this appeal, LPFA and Pipeline maintained that Ristroph’s suit was per-empted and absolutely null due to Ris-troph’s failure to submit to, or obtain from, the trial court an order for the publication of the motion for judgment. Louisiana Revised Statutes 13:5125 provides that upon the filing of a motion for judgment, “the court shall enter an order” requiring publication of the motion for judgment within five days following its filing.

Following a contradictory hearing and after taking the matter under advisement, the trial court ruled in favor of the defendants, granting their peremptory exception raising the objection of peremption and dismissing plaintiffs’ suit with prejudice. This expedited appeal follows.

| ¡yStandard of Review

The relevant facts are not in dispute; therefore, the doctrine of manifest error does not apply to this court’s review of the trial court’s decision. Appellate review of questions of law is simply to determine whether the trial court was legally correct. Cangelosi v. Allstate Insurance Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1860, twit denied, 96-2586 (La.12/13/96), 692 So.2d 375.

Discussion

The Bond Validation Act sets forth the exclusive procedures for an action seeking the invalidation of the issuance of a municipal bond. Louisiana Revised Statutes 13:5122 states in pertinent part:

All suits, actions and proceedings of whatever nature affecting the validity of bonds of any governmental unit, or the interest thereon, or the sale thereof, or the election, if any, authorizing the issuance of said bonds shall be brought only in accordance with the provisions of this Title. These provisions shall supersede all other acts and statutes on the subject and be controlling in all such cases notwithstanding the provisions of any other law or charter to the contrary; provided, however, nothing herein contained shall affect, change, alter or modify in any way any peremptive or prescriptive period for the contesting of bonds of governmental units or elections authorizing their issuance, established pursuant to the constitution and statutes of this state which shall continue to govern the time within which actions covered thereby may be filed. It is hereby declared that it is the intention of the legislature in enacting this law to provide a uniform, expeditious and equitable procedure with due regard for the public fisc and rights of persons in interest for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination of issues relating to bonds is necessary to insure the marketability of bonds in investment channels. It is not the intention of the legislature to require or to encourage the validation of all bonds by the judiciary. (Emphasis supplied.)

| fiIt is undisputed that the applicable peremptive period is found in LSA-R.S. 9:2347H, which provides in pertinent part:

For a period of thirty days from the date of publication of the notice of sale, any person or persons in interest shall have the right to contest the legality of the notice of sale, resolution or other proceedings authorizing the issuance of the bonds and the legality of the bond issue for any cause, after which time no one shall have any cause or right of action to contest the legality of said resolution or other proceedings or of the bonds authorized thereby for any cause whatsoever. If no suit, action or proceedings are begun contesting the validity of the bonds within the thirty days herein prescribed, the authority to issue the bonds and to provide for the payment thereof, the legality thereof and of all of the provisions of the resolution or other proceedings authorizing the issuance of the bonds shall be conclusively presumed, and no court shall have authority to inquire into such matters. (Emphasis supplied.)

Louisiana Revised Statutes 13:5125 delineates the procedure to be followed after a motion for judgment is filed. Specifically--

Any person, corporation or association desiring to contest or enjoin the issuance of any such bonds or action taken providing for a new or different source of payment for outstanding bonds shall proceed by motion for judgment brought in the court having jurisdiction as provided in R.S. 13:5123. Upon the filing of any such motion for judgment, the court shall enter an order within five days following such tiling requiring the publication of the motion in some newspaper published in or having general circulation in such governmental unit two times within a period of fifteen consecutive calendar days from the date of the issuance of the order specifying the dates for publication thereof, with the first publication as hereinabove provided to be not later than eight days from and after the date of the issuance of the order, and at the same time fix a time and place for hearing the proceeding, which time and place shall be published with the motion for judgment. The date fixed for the hearing shall be at least ten days, but not more than thirteen days, after the second publication of such motion for judgment. In addition to such publication, the plaintiff must secure personal service at least five days prior to the second publication of the motion for judgment on at least one member of the governing body of the governmental unit whose actions or proceedings are sought to be contested or enjoined. (Emphasis supplied.)

17It is undisputed that plaintiffs motion for judgment was filed 28 days after publication of the notice of sale, within the 30-day peremptive period established in LSA-R.S. 9:2347H. However, defendants maintain that because plaintiff has not complied with the requirements of LSA-R.S. 13:5125 (i.e. “the court shall enter an order within five days” of such filing) his motion for judgment is absolutely null. Defendants reason that the filing of a bond validation suit carries with it the responsibility to ensure compliance with the mandatory deadlines established in LSA-R.S. 13:5125.

Defendants rely on a 1978 decision from the Third Circuit Court of Appeal, Lege v. Vermilion Parish School Board, 360 So.2d 664 (La.App. 3 Cir.1978), a decision the trial court also relied on in its reasons for judgment. In particular, the third circuit reasoned:

Our conclusion that the proceedings filed during the peremptive period are null, void and of no effect is made clear when one considers that there was no citation or service of the pleading filed pursuant to the express requirements of the statute [LSA-R.S. 13:5125].... The record reflects that the original pleading was neither published nor was personal service thereof made on any member of the defendant board. Under these circumstances, the proceedings are absolutely null.

Lege, 360 So.2d at 667 (emphasis supplied).

The holding in Lege cannot be considered without reference to the facts of the case. In Lege, the- voters approved the assumption of indebtedness of several parish school districts and the issuance of bonds for a school improvement program. The voters also authorized an individual school district to incur debt and issue bonds. Plaintiffs filed an ordinary proceeding, seeking annulment of the election. Subsequently, plaintiffs filed a supplemental and amending petition, seeking to convert the matter into a “Motion for Judgment,” therein seeking to enjoin the issuance of any bonds | Ror the assumption of any debts. In the supplemental and amending petition, plaintiffs prayed for service by publication in accordance with LSA-R.S. 13:5125. Although the initial petition was filed within the peremptive period for challenging the validity of the bonds, it was not a proper challenge to the bond issuance. The petition was not a “motion for judgment;” it was filed under the wrong statute. And although the supplemental and amending petition properly put at issue the validity of the bond issuance, complying with the substantive and procedural requirements of LSA-R.S.13:5121, et seq., it was not filed within the peremptive period. Nor could the supplemental and amending petition “relate back” to the time of filing the original petition. A peremptive period cannot be interrupted. Lege, 360 So.2d at 668 (jurisprudence now codified in LSA-C.C. art. 3461). It was “[ujnder these circumstances,” the Lege court concluded that the proceedings were absolutely null.

In contrast to Lege, in the present suit, plaintiff initiated his “motion for judgment” within the time delays established for challenging the issuance of a municipal bond. As required by LSA-R.S. 9:2347H, plaintiffs suit was filed within thirty days of the publication of the notice of sale of the bonds. Plaintiffs petition clearly states that the action is being brought pursuant to the “Bond Validation Act.”

| aDuring the 1982 Revisions to the Louisiana Civil Code, 1982 Acts No. 187, § 1, effective January 1, 1983, the Louisiana Legislature enacted Louisiana Civil Code articles 3458-3461, relative to peremption. Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. LSA-C.C. art. 3458. Peremption may not be renounced, interrupted, or suspended. LSA-C.C. art. 3461. “Nevertheless, when an action asserting a right subject to peremption has been commenced or served as provided in Article 3462 [by filing suit], the right has been exercised and so long as the action is pending the lapse of the period of peremption does not extinguish the right.” LSA-C.C. art. 3461, Revision Comments-1982, comment c; Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 98-2216 (La.App. 1 Cir. 11/5/99), 745 So.2d 1194, 1195, writ denied, 99-3446 (La.2/11/00), 754 So.2d 937. Like prescription statutes, peremption statutes are to be strictly construed against peremption and in favor of the claim that is said to be extinguished. Of the possible constructions, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement, should be adopted. Albach v. Kennedy, 00-0636 (LaApp. 1 Cir. 8/6/01), 801 So.2d 476, 482, unit denied, 01-2499 (La.10/12/01), 799 So.2d 1138.

We agree with plaintiff that defendants, in effect, seek to insert an additional requirement into LSA-R.S. 9:2347, namely that a plaintiff in a bond validation proceeding shall submit an order for publication to the district court. Although the best practice is that a plaintiff provides the court with such an order, we do not find it to be a legal requirement in the absence |inof which a plaintiff loses his right to proceed with a timely-filed bond validation suit. Plaintiff timely exercised his right to challenge the bond issuance by initiating this action within the peremptive period established by LSA-R.S. 9:2347H. Once the right was exercised and as long as the action is pending, the lapse of the period of peremption will not extinguish that right.

Conclusion

For the above stated reasons, the trial court’s judgment granting the defendants’ peremptory exception raising the objection of peremption and dismissing plaintiffs’ suit is reversed, and this matter is remanded to the district court for further proceedings consistent with this court’s opinion. Costs of this appeal are assessed to the defendants, Louisiana Public Facilities Authority and Pipeline Technology VI, LLC.

REVERSED AND REMANDED.

McDONALD, J.

Concurring.

L While I agree with the result reached by the majority in this opinion, I feel several issues need further amplification. Lege is clearly factually distinguishable. In Lege the Third Circuit did not dismiss the case for failure to follow the requirements of L.R.S. 13:5125 in obtaining the court order and publishing the notice. The decision was based on the plaintiff filing the wrong type of lawsuit and trying to remedy this error by attempting to amend it with the correct petition. As noted by the majority, a peremptive period cannot be interrupted and the supplemental and amending petition could not relate back to the filing of the original suit. The discussion about the failure to comply with the statutory provisions regarding obtaining an order for publication is merely dicta.

I agree that under the facts of this case, the court’s failure to enter the order requiring publication within five days of the filing of plaintiffs motion challenging the validation of the bonds should not defeat the timely filed challenge. I differ with the conclusion reached by my colleagues that “the best practice is that a plaintiff provides the court with such an order.” I believe the plaintiff has the obligation to insure that the court timely enters its order. The statute’s requirement that the “the court shall enter an order,” in my opinion, means that the court will not have any discretion, and once the order is submitted, it shall be signed, and within five days of the filing of plaintiffs motion. Without action by the plaintiff, there is no way the court | ¡would even be aware of the filing of the motion. Therefore, I believe that it is the plaintiffs obligation to submit the appropriate order to the court within five days of filing the motion challenging the bond issuance and the court has no obligation to provide such an order.

I also disagree with the majority’s conclusion that once the pleading is timely filed and “the action is pending, the lapse of the period of peremption will not extinguish that right.” The bond validation procedure was enacted to be an expeditious procedure. The process and the time frames in which it is to occur are mandated by law with due regard for the public fisc and the rights of persons in interest to raise material and substantial questions. In this case, there is no prejudice to the defendant by the failure to secure the order and provide for the publication. The hearing was held on July 13, 2006. Had the statutory provisions been followed, the last day for the hearing would have been July 10. The LPFA filed its answer and responsive pleadings on June 28, two days prior to being served. Because the plaintiff timely invoked his right to challenge the validity of the bond issue, and the hearing on the matter was only days after it would have been had the correct procedures been followed, I agree with the majority that the suit should not have been dismissed. I do not agree that filing suit is sufficient to insure a right to proceed when the further requirements of the action are not timely pursued. I can envision a situation where the petition was filed within the 30 day time period and the delays in notice or service would be such that a defendant could be highly prejudiced. The bond validation procedure is intended to be an expedient, summary proceeding. If the action of the petitioner is such as to basically convert it to an ordinary proceeding, then I would not reach the same conclusion as that reached by the majority today.

For these reasons, I respectfully concur.

      . The Gulf Opportunity Zone Act of 2005, Pub.L. No. 109-135, 119 Stat. 2577 (2005) amended the Internal Revenue Code of 1986 “to provide tax benefits for the Gulf Opportunity Zone and certain areas affected by Hurricanes Rita and Wilma, and for other purposes.”

      . Ristroph is a private landowner whose property Pipeline seeks to obtain for the purpose of constructing its benzene pipeline. An expropriation suit, entitled Pipeline Technology VI, LLC v. Don L. Ristroph, is pending in the Eighteenth Judicial District Court, Parish of Iberville, under docket number 63573-D. Ristroph filed the present suit in his own name and in the name of "all those similarly situated, all taxpayers and all other persons interested in or affected in any way by the issuance” of the bonds.

      .We have treated this appeal expeditiously as mandated by LSA-R.S. 13:5128 of the Bond Validation Act.

      . In their response brief, defendants maintain that plaintiff's petition fails to state a cause of action under the Bond Validation Act. Although defendants have not appealed from the trial court's judgment nor answered this appeal, we will address this issue pursuant to LSA-C.C.P. art. 927B. We find plaintiff’s petition states a cause of action challenging the validity of the bond issue in accordance with LSA-R.S: 13:5122, which states that "[a]ll suits, actions and proceedings of whatever nature affecting the validity of bonds ... shall be brought only in accordance with the provisions of this Title.” (Emphasis supplied.)


author: CARTER, C.J.

text:
    Brenda M. GOMEZ v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER.
    No. 2005 CA 1916.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.
    Denise A. Yinet, Baton Rouge, for Plaintiff/Appellant, Brenda M. Gomez.
    Anthony P. Palermo, Matthew P. Bon-ham, Baton Rouge, for Defendant/Appel-lee, Our Lady of the Lake Regional Medical Center.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   CARTER, C.J.

Brenda Gomez, the claimant in this workers’ compensation proceeding, appeals a judgment sustaining a peremptory exception raising the objection of prescription and dismissing her claim for workers’ compensation benefits. There is no dispute that Gomez’s claim was prescribed on its face. The Workers’ Compensation Judge (WCJ) found that Gomez did not prove that prescription was suspended or interrupted. Gomez appeals, contending the WCJ erred in this finding.

After thoroughly reviewing the record herein, we cannot say that the WCJ was clearly wrong in finding that Gomez did not meet her burden of proving that prescription was interrupted or suspended. Specifically, the record does not establish that Gomez was paid wages in lieu of compensation benefits or that she was lulled into a false sense of security. A reasonable factual basis exists for the WCJ’s ruling; therefore, his findings cannot be manifestly erroneous.

The judgment of the Office of Workers’ Compensation is affirmed in accordance with URCA Rule 2-16.1B. Costs of this appeal are assessed to Brenda Gomez.

AFFIRMED.


author: WHIPPLE, J. McDONALD, J.

text:
    STATE of Louisiana v. Cedrick MORGAN.
    No. 2006 KA 0506.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.
    Doug Moreau, District Attorney, Lori Nunn, Stacy L. Wright, Baton Rouge, for Appellee, State of Louisiana.
    Frederick Kroenke, Baton Rouge, for Defendant/Appellant, Cedrick Morgan.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| aThe defendant, Cedrick Morgan, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:30.1 and LSA-R.S. 14:27 The defendant entered a plea of not guilty. Following a trial by jury, the defendant was found guilty of the responsive offense of aggravated battery, a violation of LSA-R.S. 14:34. Upon fourth felony habitual offender adjudication, the defendant was sentenced to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court denied the defendant’s motion to reconsider sentence. The defendant now appeals, assigning error to the sentence imposed and challenging its constitutionality. For the following reasons, we affirm the conviction and habitual offender adjudication, vacate the habitual offender sentence and remand for resentenc-ing.

STATEMENT OF FACTS

The victim, Diane Henry, met the defendant in (or sometime near) June of 2003. During an approximate one-year period, they had a relationship that consisted of frequent dates. The victim decided to end the relationship at the end of February of 2004. According to the victim, the defendant did not want to end the relationship and continued to call her frequently.

On March 19, 2004, the defendant called the victim several times in an attempt to arrange a brief meeting. The victim initially refused, but ultimately agreed to meet the defendant. When the victim arrived at a residence located at 2350 N. 20th Street in Baton Rouge, Louisiana (near Monroe Street), during the plate evening hours, the defendant physically attacked her with beer bottles. According to the victim, the defendant stated, “You pretty bitch, die, if I can’t have you, ain’t (sic) nobody going to have you,” as he continued to beat her with bottles, including some that were broken. The victim testified that the defendant also bit her fingers, face, breasts and leg. The victim screamed and cried for help. The victim ultimately escaped from the home.

An anonymous caller reported the incident, and at approximately 1:20 a.m. on March 20, Officer Patrick Wennemann of the Baton Rouge City Police Department was dispatched to the area. The victim was discovered lying on Monroe Street and had several visible injuries. According to Officer Wennemann’s testimony, the victim’s face was covered with blood and her eyes were severely swollen. The victim was admitted to Our Lady of the Lake Regional Medical Center’s emergency room and examined by Dr. Luke Corsten, the State’s expert witness in the field of neurological surgery. The victim had external signs of trauma with multiple lacerations of the scalp, brow, ear, and neck, and injuries to her arms. The victim’s consciousness was altered. The victim was diagnosed with a concussion and a closed-head injury.

PATENT ERROR

In accordance with LSA-C.Cr.P. art. 920(2), all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note the following. The trial court imposed the defendant’s sentence without the benefit of parole when neither the penalty provision of the substantive statute nor the habitual offender law authorized such a restriction on the defendant’s parole eligibility. The Rpenalty for aggravated battery is imprisonment with or without hard labor for up to ten years and a possible fine of not more than five thousand dollars. LSA-R.S. 14:34. While LSA-R.S. 15:529.1G prohibits probation or suspension of sentence, the habitual offender law does not prohibit parole eligibility in this instance. LSA-R.S. 15:529.1A(l)(c)(i).

Thus, the inclusion of the parole restriction rendered this sentence illegal. In State v. Williams, 2000-1725, p. 16 (La.11/28/01), 800 So.2d 790, 802, the Louisiana Supreme Court recognized that this Court has the authority to correct an illegal sentence, i.e., even an illegally lenient sentence, despite the failure of either party to raise the issue in the district court or on appeal if the correction is ministerial. LSA-C.Cr.P. 882A. In State v. Paoli, 2001-1733, pp. 7-8 (La.App. 1st Cir.4/11/02), 818 So.2d 795, 799-800 (en banc), writ denied, 2002-2137 (La.2/21/03), 837 So.2d 628, this court recognized that Williams represented a clear departure from the earlier prohibition against an appellate court taking steps to correct an illegally lenient sentence noted as patent sentencing error.

Herein, the sentencing error noted involves discretion. Specifically, pursuant to LSA-R.S. 15:529.1A(l)(c)(i), the sentencing range herein is twenty years to life imprisonment without probation or suspension of sentence. Moreover, as the Supreme Court has previously admonished, “[t]o the extent that the amendment of defendant’s sentence entails more than a ministerial correction of a sentencing error, the decision in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, does not sanction the sua sponte correction made by the court of appeal on defendant’s appeal of his conviction and sentence.” State v. Haynes, 1,2004-1893 (La.12/10/04), 889 So.2d 224. Thus, we must vacate the sentence and remand for resentencing. Therefore, we pretermit any consideration of the excessive sentence argument raised by the defendant in his sole assignment of error.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED. HABITUAL OFFENDER SENTENCE VACATED AND REMANDED FOR RESENTENCING.

McDONALD, J.

Dissenting in part and affirming in part.

hi agree with the majority in affirming the habitual offender adjudication. However, with the utmost deference to the majority in this matter, I must respectfully dissent in vacating the habitual offender sentence and remanding for resentencing. The majority relies on State v. Williams, State v. Haynes, and State v. Paoli in reaching the conclusion that the illegally imposed sentence requires a remand to the trial court for resentencing. This reliance is both mistaken and misplaced. The mandate in LSA-C.Cr.P. art. 920(2) is for this court to conduct a patent error review. That has been done. Having found a sentencing error, State v. Paoli requires that we “consider” it. Having considered it, I see no reason to remand it to the trial court for resentencing. Morgan was sentenced to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. As the majority notes, this is an illegal sentence because neither the habitual offender statute nor the penalty provisions in the underlying criminal offense provide for such a restriction as to parole. His only assignment of error on appeal is that the 20-year sentence is excessive. The error under consideration by the majority was found by a patent error review. Neither of the parties has raised this particular issue; defendant noted it, but did not brief it.

In Williams the court was faced with the question of an illegally lenient sentence and the retroactive applicability of LSA-R.S. 15:301.1. The |2defendant received a suspended sentence in violation of the applicable statute. The supreme court stated:

In instances where these restrictions are not recited at sentencing, LA.REV. STAT. ANN. § 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

Williams, 800 So.2d at 799.

Unlike in Williams, the sentence before us is illegally harsh. If a sentence that fails to impose a mandatory requirement of no parole eligibility is self correcting, it seems the same should be true for the deletion of a provision of no parole eligibility when the sentence provides for parole eligibility. I agree with Justice Pro Tempore Lobrano’s concurring opinion “that La.C.Cr. Pro. arts. 882 and 920 give a reviewing court the authority to, sua sponte, correct an illegal sentence.” Williams, 800 So.2d at 803. Thus, I disagree with the majority and do not believe Williams prohibits a sua sponte correction of such a sentence as that imposed on Morgan.

Additionally, the majority’s reliance on Haynes is strained at best. Haynes is a per curiam opinion. The supreme court reversed the appellate court’s amendment of the defendant’s sentence by imposing the maximum fine of $5000. Because the range of a fine was from $1000 to $5000, the court found the amendment of the sentence to be more than a ministerial correction because of the discretion available to the trial judge. The'majority notes that the sentence before us involves discretion, but fails to identify in what way the trial court has any discretion. The court cannot impose a sentence that lacks parole eligibility. There is no discretion. One might argue that if the trial court recognized that the defendant would be eligible for parole, he or she might have imposed a lengthier sentence. Such an ^argument is spurious at best. LSA-C.Cr.P. art. 894.1 provides the sentencing guidelines which must be considered by the trial judge in imposing sentence. Parole eligibility is not one of these. This is probably because parole is not guaranteed. The defendant only becomes eligible for parole. Once becoming parole eligible, the Parole Board must decide if parole will be granted. Thus, the trial court is mandated to tailor the. sentence to the specific facts of the case and the character of the defendant. I believe a sentence imposed where part of the consideration was parole eligibility would come under rigorous scrutiny and would not pass a test for excessive sentence. Therefore, I do not believe the sentence imposed on Morgan involves any additional discretion by the trial court.

For these reasons I would amend the sentence to delete the provision “without benefit of parole” and would eliminate the need to remand to the trial court for re-sentencing. I would remand for the limited purpose of - correcting the minutes to reflect this amendment. Therefore, I respectfully dissent from that portion of the opinion vacating the sentence and remanding for resentencing.

McDONALD, j., agrees in part and dissents in part and will assign reasons.

      . The bill of information originally charged the defendant with aggravated second degree battery, but was later amended by the State.

      . The portion of the minute entry referencing the habitual offender adjudication incorrectly states that the defendant was determined to be a third felony habitual offender. The transcript of the habitual offender and sentencing hearing clearly states the defendant was adjudicated a fourth felony habitual offender. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . The victim had never been inside of the residence before the night of the incident, but had previously driven the defendant there.

      . The victim testified that an unknown individual assisted her out of the home, but fled from the scene before the police arrived.

      . The victim's blood-alcohol level was determined to be .103 at the time of toxicological testing, 2:15 a.m. on March 20, 2004. Dr. Corsten testified that some of the victim’s symptoms could have been caused by her blood-alcohol level and/or by her injuries.

      .The record indicates that the forgery and felony theft of goods convictions occurred on the same date and were considered as one conviction by the court in adjudicating the defendant a fourth offender. The habitual offender petition and evidence submitted in support thereof by the State were admitted during the hearing, but were not made a part of the instant record. The PS I is contained in the record. The defendant does not raise any issues on appeal regarding the habitual offender adjudication.

      . In State v. Templet, 2005-2623 (La.App. 1st Cir.8/16/06), 943 So.2d 412, another panel of this court sua sponte amended a sentence to delete the illegal portion of the sentence and remanded solely for the correction of the minutes, despite this court's decision in State v. Paoli, 2001-1733, 818 So.2d at 799-800, and the clear dictates of State v. Haynes, 2004-1893, 889 So.2d at 224. Given the Supreme Court’s decision in Haynes, notions of judicial efficiency cannot override the judicial discretion reserved to the trial court.

      . Parole eligibility would certainly not be considered a relevant aggravating or mitigating circumstance. LSA-C.Cr.P. art. 894.1 B (21), (33).