author: GENOVESE, Judge.

text:
    COULEE KINNEY DRAINAGE DISTRICT v. Pierre W. BROUSSARD.
    No. 2007-175.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      James J. Davidson, III, Davidson, Meaux, Sonnier & McElligott, Lafayette, Louisiana, for Defendant/Appellant, Pierre W. Broussard.
    Paul G. Moresi, III, Assistant District Attorney, Abbeville, Louisiana, for Plaintiff/Appellee, Coulee Kinney Drainage District.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this suit for declaratory judgment, the trial court rendered judgment in favor of Plaintiff, the Coulee Kinney Drainage District (Drainage District), finding that the drainage ditch which traversed the property of the Defendant, Pierre Brous-sard (Mr. Broussard), was a natural drainage ditch subject to the authority of the Drainage District for cleaning and maintenance. For the following reasons, we affirm.

FACTS

The drainage ditch at issue in the present litigation forms the northern boundary line of property owned by Mr. Broussard. Due to the nature and location of the work to be performed, the Drainage District needed access over Mr. Broussard’s property for the cleaning and maintenance of the ditch. When Mr. Broussard denied access to the Drainage District, the Drainage District filed suit for a declaratory judgment.

Following a trial on the merits, the trial court found that the drainage ditch at issue was a natural drain which the Drainage District had the authority to clean and maintain. The trial court, in addition to rendering judgment in favor of the Drainage District, imposed specific restrictions on how the work was to be performed by the Drainage District in a manner least invasive and least injurious to Mr. Brous-sard’s property. The trial court also cast Mr. Broussard with all costs of court, including the expert witness fee of Plaintiffs expert, which was fixed at $1,000.00. Mr. Broussard appeals.

ISSUES

The issues raised by Mr. Broussard in this appeal are summarized as follows:

| ⅞>1. whether the trial court committed error in finding that the drainage ditch in question was a natural drain;
2. whether the trial court committed error in casting Mr. Broussard with the obligation to pay the expert fees of Elizabeth Girouard; and
3. whether the trial court erred in failing to award Mr. Broussard compensation for the Drainage District’s use of the construction servitude.

LAW AND DISCUSSION

The statutory provisions governing drainage districts are contained in Title 38 of the Louisiana Revised Statutes. These provisions include La.R.S. 38:1764 which provides, in relevant part, that the Drainage District shall have the power “to plan, construct, maintain and operate such works of improvement as land treatment for watershed protection, flood prevention works, irrigation improvements, recreation, municipal and industrial water storage, and fish and wildlife developments.” The authority granted by statute and the works therein authorized may be exercised by the Drainage District “so long as they inure to the direct benefit of the district and the inhabitants thereof ... for the purpose of securing a proper outlet for the waters of the district or sub-drainage district they represent....” Louisiana Revised Statutes 38:1804 grants additional authority to the Drainage District to “[djrain lands in said district by the construction, maintenance, and operation of gravity and/or forced drainage facilities, including drains, drainage canals, ditches, pumps, and pumping plants, dikes, levees, and other related works” and to “[c]ut and open any drains and canals and open, deepen and enlarge natural drains within or without the district and perform all work in connection therewith which maybe deemed necessary to provide drainage for the lands in the district, and perform all other acts necessary to drain the land in the district and maintain the drainage when established.” Finally, La.R.S. |a38:113 provides that the Drainage District “shall have control over all public drainage channels or outfall canals within the limits of their districts which are selected by the district, and for a space of one hundred feet on both sides of the banks of such channels or outfall canals, and one hundred feet continuing outward from the mouth of such channels or outfall canals.... ” This authority is granted to the Drainage District “whether the drainage channels or outfall canals have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels or outfall canals.... ”

In the instant matter, Mr. Broussard complains that the trial court erred in its determination that the drainage ditch at issue is a natural drain. This finding of fact by the trial court may not be set aside on appeal absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). Absent manifest error, application of the foregoing statutory authority to the trial court’s factual determination yields the inevitable conclusion that the Drainage District possesses the statutory authority to clean and maintain the ditch at issue, which includes the authority to enter Mr. Broussard’s property contiguous thereto.

John Carroll Duhon (Mr. Duhon), a member of the Vermilion Parish Police Jury, whose district encompasses the ditch at issue, testified that the ditch runs from the ditch along Kirk Road westward to an arm of Coulee Use des Cannes. This ditch has historically had drainage problems. According to Mr. Duhon, in response to complaints in 1997 or 1998, the policy jury cleaned out culverts and the ditch paralleling the roadway, and also dug the ditches which connect the ditch along Kirk Road to the Coulee Use Des Cannes in an effort to improve drainage in that area. Mr. |4Puhon also testified that work had been done to clear the ditch between Kirk Road and a cattle guard located west thereof, fifty to seventy-five feet onto Mr. Brous-sard’s property. Mr. Duhon also explained the presence of a “dry ramp,” a crest or high point located along Kirk Road, on the west and north of Mr. Brous-sard’s property. Mr. Duhon testified that because of this dry ramp the water naturally drains south toward Mr. Broussard’s property.

Victor Hebert (Mr. Hebert) lives on the east side of Kirk Road, north of Mr. Broussard’s property. He testified that “years ago[,]” before he owned his present property, the ditch had been dug to facilitate drainage. Mr. Hebert testified that the ditch on Mr. Broussard’s property extends to an unnamed drainage system which has been in existence since he was a child. According to Mr. Hebert, the ditch on Mr. Broussard’s property drains the road ditches along Kirk Road. Finally, Mr. Hebert testified that the ditch at issue has been there for as long as he can remember and that it is the only way for the water to drain.

John K. Andrus (Mr. Andrus), the President of the Drainage District, testified that the Drainage District retained Elizabeth Girouard (Ms. Girouard), a civil engineer, to survey the area and to verify that the water that was coming off Kirk Road and the adjacent properties did require the ditch at issue to reach Coulee Use des Cannes. Ms. Girouard prepared a drainage study which was presented to the board.

Expert testimony was given by Ms. Gir-ouard, who testified that she investigated the drainage in the area of the ditch at issue and that her purpose was “to determine where the flow was going and where it was headed.” Ms. Girouard visited the location, studied a quadrangle map, and viewed aerial photographs of the area. |fiShe testified that the ditch at issue was present at least since 1955 and “was indicated as a contour to the natural ground” on the quadrangle map. Moreover, according to Ms. Girouard, the ditch at issue is a natural “outfall ditch” which she defined as “a ditch where the surrounding area drains to, to carry water to the ultimate receiving stream.” She explained that this ditch “receives water from the high points to the north and south of the entry, of the beginning of the ditch at Kirk Road [ ... including] anything that falls into the roadway ditches along Kirk Road from each high point on the north and south.” The waters are then deposited via this ditch “into that branch of Coulee Use des Cannes to the south of the coulee.” Based upon the aerial photographs of the subject property, Ms. Girouard was of the opinion that this drainage scheme had been there for “forty (40) plus years.” It was her uncontroverted expert testimony that the ditch at issue is a natural outfall ditch that is part of the natural drainage scheme of the surrounding area which drains the road ditches of Kirk Road and the surrounding area.

Based upon the foregoing, we find that the evidence in the record clearly establishes that the drainage ditch at issue is a natural drain which forms part of the natural drainage scheme in the geographical area which has been in existence for decades. Thus, the factual findings of the trial court that the drainage ditch at issue is a natural drain and that the Drainage District has the authority to clean and maintain same are not manifestly erroneous.

Mr. Broussard also complains that the trial court erroneously cast him with the costs associated with the expert witness, Ms. Girouard. We disagree.

A trial court is given great discretion in taxing court costs in any manner it deems equitable. La.Code Civ.P. art. 1920. It is the general rule that a party cast in judgment is taxed with the costs of the proceedings. However, the trial court may assess costs in any equitable manner and | ⅜⅛ assessment will not be reversed on appeal in the absence of an abuse of discretion. Esté v. State Farm Ins. Co., 96-99 (La.App. 3 Cir. 7/10/96); 676 So.2d 850.

Trahan v. Asphalt Associates, Inc., 01-311, p. 13 (La.App. 3 Cir. 10/17/01), 800 So.2d 18, 27.

In this suit for a declaratory judgment, the Drainage District prevailed. Under these circumstances, we find no abuse of discretion in the trial court’s assessment of the costs of court against Mr. Broussard, including the $1,000.00 expert witness fee fixed by the trial court for Plaintiffs expert, Ms. Girouard.

Mr. Broussard also complains on appeal that the trial court erred in failing to award him compensation for the use of a construction servitude by the Drainage District. We note that La.R.S. 39:113 grants the Drainage District a legal servitude for the use of one hundred feet in order to perform the necessary maintenance. We further note that the record is void of any evidence to support the allegation that Mr. Broussard was damaged, or the amount of any damages alleged. Therefore, we find this contention to be without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court finding that the drainage ditch located on the property of Pierre Broussard is a natural drain and that the Coulee Kinney Drainage District has the authority to clean and maintain same. We likewise affirm that portion of the trial court judgment casting Pierre Broussard with the costs associated with the expert witness fee of Elizabeth Gir-ouard set at $1,000.00. Finally, we also affirm the judgment of the trial court denying Pierre Broussard compensation for the use of the legal servitude by the Coulee Kinney Drainage District.

17Costs of this appeal are assessed against Pierre W. Broussard.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

| ¶ This case involves a balancing of the rights of a landowner to the peaceful possession of his property and the right of a Drainage District to provide a system of effective drainage control for the common good. The Coulee Kinney Drainage District filed suit for declaratory judgment against landowner, Pierre Broussard, asserting its right to clean and maintain a drainage ditch traversing the boundary of Mr. Broussard’s property. Mr. Brous-sard’s property falls within the drainage district and the cleaning and dredging of his ditch is part of a larger scheme of-providing drainage to the entire area. The issue presented in this case has been extensively litigated as far back as 1848 (See Landry v. McCall, 3 La.Ann. 134 (La.1848) and the jurisprudence in this area of the law is well settled.

The majority opinion correctly cites the provisions of Title 38, which delineate the rights of a Drainage District, the most onerous of which is Section 113; however, it fails to place these provisions in the larger context of Civil Code articles on servitude and the jurisprudence which places limits on the rights of a Drainage District to enter upon the property of a landowner.

The majority opinion finds based on the testimony: (1) the ditch on Mr. Brous-sard’s property provides a natural drain; (2) his property falls within the Drainage District; and, therefore, (3) the Drainage District under Title 38 has the right | Rto enter upon his property, up to 100 feet on each side of the ditch under Section 113, without just compensation to clean and maintain the ditch for the common good. Interpreting Title 38 in such a sweeping fashion has never been done in Louisiana and adopting the reasoning of the majority opinion would be a drastic departure from the jurisprudence in this area and contrary to constitutional provisions.

The Civil Code provides for a three kinds of servitudes, each with its own restrictions-natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servitudes are established by juridical act or prescription. La. Civ.Code art. 654. A natural servitude of drainage arises when an estate, situated below, is bound to receive the surface waters that flow naturally from a estate situated above. La.Civ.Code art. 655. “The owner of the servient estate may not do anything to prevent the flow of water and the owner of the dominant estate may not do anything to render the servitude more burdensome.” La.Civ.Code art. 656. However, even when there exists a natural servitude of drain, the jurisprudence places limitations on the rights of the owner of the dominant estate. As between neighbors, if the flow of water is impeded due to naturally occurring forces, such as the growth of trees or underbrush, the owner of the dominant estate cannot enter the land of his neighbor to clean out the obstruction without first obtaining a voluntary or conventional servitude. Compensation will be necessary to obtain a conventional servitude. Landry v. McCall, 3 La.Ann. 134 (La.1848); Thibodeaux v. Landry 351 So.2d 522 (La.App. 3 Cir.1977).

This rule applies to public bodies as well. Whipp v. Bayou Plaquemine Brule Drainage Board, 476 So.2d 1042 (La.App. 3 Cir.1985). Absent a showing that the public body has a legal or conventional servitude, the courts do not allow entry onto | ¡¡private property without just compensation. In other words, in this case, the Coulee Kinney Drainage District can obtain a legal servitude to use, clean and maintain Mr. Broussard’s natural drainage ditch, but they must pay him for the servitude. This well established principle allows a public body to move forward with improving drainage for the common good without trampling on the rights of an individual to the peaceful possession of his property.

This circuit’s case of Whipp v. Bayou Plaquemine Brule Drainage Board provides an scholarly review of the law in this area. The Whipp case involved two canals (actually ditches) — the Whipp Canal and the Boone Canal. The issue presented was whether the Drainage Board had statutory jurisdiction to enter onto plaintiffs’ land for restoration and/or excavation of the two connecting ditches. A resolution of the issue turned upon the interpretation of the provisions found in Title 38. Citing La.R.S. 38:113 the court held this provision “grants to the Drainage Board a legal servitude over drainage channels within its district. Certain prerequisites are essential before the Drainage Board can take advantage of the servitude.” Whipp at 1044 (emphasis added). The first prerequisite is that the drainage channel must have been either previously improved by the -drainage district or adopted without prior improvement as a necessary part of or extension to improved drainage channels. This court defined what is necessary for a district to “adopt” a ditch.

To adopt a canal as part of or an extension to an improved drainage channel the drainage district must obtain a right of way either by expropriation or by purchase. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982)(the legislature does not have the constitutional power to authorize either the taking or the damaging of private property without due process of law); see also Grimble v. Rapides Parish Police Jury, 322 So.2d 835, 837 (La.App. 3rd Cir.1975) (Police Jury excavated new canal while under an inaccurate but good faith belief that it had a valid right of way. The trial court held the Police Jury liable for damages.); LSA-R.S. 38:1764 (statutory authority granting Drainage Board power to either obtain or purchase a right of 1 ¿way).

Id. at 1046.

This court found with regard to the Boone Canal the Drainage Board admitted it had no right of way. “Therefore, with respect to the Boone Canal, defendants failed to prove the first prerequisite necessary for a Section 113 legal servitude.” The court stated:

The Boone canal was selected during the recent drainage project as a necessary-part of the over-all drainage plan. The Section 113 legal servitude would extend to the Boone Canal if it was adopted as a necessary part of or extension to the improved drainage channel L-30. However, the Board failed to adopt the Boone Canal because they failed to obtain or purchase a right of way from the landowners. The result is that defendants did not acquire a Section 113 legal servitude over the Boone Canal and, as to their presence along that canal, they damaged private property without just compensation and without due process of law.

This court found it did not matter that the Boone Canal was a natural or artificial drainage ditch. The Board had to acquire a right-of-way by compensating the landowner. With regard to the Whipp Canal, the court allowed the Drainage District to enter the property to clean and maintain the ditch because the District had acquired a conventional servitude by 30 year acquisitive prescription.

In this case, we need not resolve whether this is a natural or artificial drainage ditch. Even if the ditch is found to be part of the natural drainage, as the trial court concluded from the expert testimony, the Drainage District cannot enter the property to clean the ditch without just compensation. It is in no better position than the dominant landowner who cannot enter the property by relying on the Civil Code articles.

The majority apparently believes an owner’s right to claim compensation is dependent on there being “damage to the property.” The owner is entitled to compensation for the “right-of-way” required to access the natural drain whether his [^property is damaged by the drainage activities or not! La.R.S. 38:1804 which

grants a gravity drainage district the right to “[c]ut and open any drains and canals and open, deepen and enlarge natural drains” is contingent upon the District first obtaining a “right-of-way” from the landowner. This has not occurred in this case. Reading the provisions in Title 38, particularly Section 113, literally and without reference to limitations provided under the constitution and the jurisprudence would lead to absurd results. For example, Section 113 allows a Drainage District access “for a space of 100 feet on both sides” of the ditch “and 100 feet continuing outward from the mouth” for excavation and cleaning. It is a fact that substantial residential neighborhoods and thriving businesses are built around and up to existing public channels and natural drainage ditches. Were we to read this provision literally, even an ordinary drainage ditch or coulee bordering a residential lot would not escape the reach of Section 113 and the landowner’s morning cup of coffee at the breakfast table might have to yield to the presence of bulldozers on the 100 easement. This is why in the exercise of the legal servitude under Title 38 the District is only allowed to “perform ordinary maintenance necessary” and to use only that portion of the land which is essential, and no more, to keep the public ditches clear and in good working order. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981).

The Drainage District, however, is not without recourse under the law. Section 113 gives the Drainage District the right to perfect a legal servitude on natural drains in the district for use as part of it drainage system. Because the Coulee Kinney Drainage District has not perfected a legal servitude in this case, it did not fulfill the first essential prerequisite — payment of compensation to the landowner— as required in the Whipp case. Mr. Broussard position is exactly in keeping with his | (¡constitutional right to demand just compensation and a restriction on the Drainage District’s invasion of his property rights consistent the statute and jurisprudence on expropriation of a servitude. I submit, the provisions found in Title 38, including Section 113, cannot be read without reference to the constitutional provisions on expropriation and the jurisprudence which places limits on the authority of the State to infringe on property rights. To read these provision in the fashion proposed by the majority opinion would amount to an unconstitutional infringement. See Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981), which held Section 113 “does not authorize the taking or damaging of private property without just compensation or without due process of law; nor do we think the legislature could do so constitutionally.” See also Gravity Drainage District v. Vallee, 512 So.2d 473 (La.App. 3 Cir.1987) another case from this circuit which recognized the police power of the State to open, maintain and control natural drains but held “[t]his legislation, however, does not permit a drainage district without paying just compensation, to enter onto estates and make natural drains more burdensome by increasing the natural flow of the water.” In order for a Drainage District to enter onto private property it must “either compensate defendant for damage sustained due to the burden imposed on the defendant’s property or have acquired the right to enter onto the defendant’s property by some other means.” Id. at 478.

Not only should Mr. Broussard not be cast with expert witness fees and all costs in this case, he has a claim for full compensation and attorney’s fees under La.R.S. 13:5111 and the payment of all costs in connection with asserting his rights in this case. Therefore, I would reverse the declaratory judgment in favor of the Drainage District and remand this matter to the district court for a determination of the amount of compensation which should be paid to Mr. Broussard for the right of |7way the Drainage District is seeking and payment of attorney’s fees and all costs to Mr. Broussard, including the costs for this present appeal

      . The restrictions imposed by the trial court on the manner in which the work was to be performed by the Drainage District are not at issue in the present appeal.

      . According to Ms. Girouard, a quadrangle map is "a geodetic survey of the area that shows topography, as far as for roads, streams, [and] contours.”


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    FIRST CONSUMERS FINANCIAL, LLC v. Larry FRANK.
    No. 07-342.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Richard D. Bankston, Baton Rouge, LA, for Plaintiff/Appellant, First Consumers Financial, LLC.
    Larry Frank, Opelousas, LA, in proper person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

| -,The plaintiff filed suit seeking recovery under a promissory note as well as for interest and attorney fees. The trial court entered a default judgment, awarding the outstanding balance on the promissory note, but less attorney fees than the plaintiff sought. On appeal, the plaintiff seeks an increase in the attorney fees awarded. For the following reasons, we affirm.

Factual and Procedural Background

First Consumers Financial, LLC filed a Petition in Suit on a Promissory Note in Lafayette City Court, asserting that the defendant, Larry Frank, failed to make the required installment payments. The note, which pertains to the financing of an automobile and is attached to the petition, provides as follows in the event of default:

If you default, to the extent permitted by law, you agree to pay all the out-of-pocket collection costs and expenses we incur to collect this debt and realize on any security. You also agree to pay such additional collection costs and expenses that may be authorized by law, including eolleetion/enforcement attorney fees in an amount not to exceed 25% of the total amount payable under this Contract.

First Consumers’ petition sought the unpaid balance, interest, and attorney fees. Thereafter, First Consumers filed a Motion for Entry of Default Judgment which was granted by the trial court. The default judgment awarded First Consumers $4,079.90 with interest from date of judicial demand until satisfied, attorney fees of ten percent of the total amount, and all costs.

First Consumers appeals the default judgment, asserting that: “The Lafayette City Court erred in reducing the 25% attorney’s fee to a 10% attorney’s fee.”

Discussion

In its sole assignment of error, First Consumers asserts that the trial court erred in setting the attorney fees at ten percent of the amount recovered, rather than the | ^twenty-five percent it asserts was contractually provided for. It contends that twenty-five percent is reasonable given the nature of collections representation.

With regard to motions for default judgment brought in City Court, La. Code Civ.P. art. 4904 provides:

A. In suits in a parish court or a city court, if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary.
B. The 'plaintiff may obtain a final judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.
C. When the sum due is on an open account, promissory note, negotiable instrument, or other conventional obligation, a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or no other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court.

(Emphasis added.) The supreme court has explained that a plaintiff “must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant.” Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). “In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits.” Id. While, on review, there is a presumption that the trial court rendered a default judgment on sufficient evidence, this presumption is [ inapplicable when the record indicates otherwise. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993). See also Moreau v. Griffith, 96-683 (La.App. 3 Cir. 12/11/96), 685 So.2d 563.

In support of its motion, First Consumers attached the affidavit of its manager, Bob Chedville. The affidavit indicates that the promissory note was included as Exhibit “A-l.” The note provides as follows with regard to payment of attorney fees upon default: “You also agree to pay such additional collection costs and expenses that may be authorized by law, including collection/enforcement attorney fees in an amount not to exceed 25% of the total amount payable under this Contract.” (Emphasis added.) Mr. Ched-ville’s affidavit further provides:

5. Larry Frank is (are) truly and justly indebted, unto First Consumers Financial, LLC, in the amount of $4,079.90 together with interest thereon from the date of judicial demand at the rate of 27.00%, until satisfied, and an attorney’s fee of Twenty Five Percent (25%) of that amount, and for all costs;
6. He has confirmed the above facts by reviewing the records of First Consumers Financial, LLC, which records are kept in the ordinary course of business, under his supervision and control, and which are made at or near the time of the events and facts memorialized thereon, by persons with knowledge of said events and facts.

First Consumers presented no evidence regarding attorney fees other than the above statement by Mr. Chedville. Given that the promissory note anticipated a range of permissible attorney fees in an amount “not to exceed 25%,” the trial court was not required to find that Mr. Chedville’s conclusory statement that “an attorney’s fee of Twenty Five Percent” was earned or was reasonable under the circumstances. Rather than constituting relevant and competent evidence, Mr. Chedville’s statement in this regard merely constitutes a conclusory claim. No underlying evidence which would have demonstrated the reasonableness of the claimed fee of twenty-five percent was Lprovided. First Consumers’ statements regarding the nature of collections representation are contained only in its brief to this court, not in its motion for default judgment. Thus, given the record presented to the trial court, we find neither error nor abuse of discretion in its assessment of a ten percent attorney fee as reasonable.

Neither do we find merit in First Consumers’ contention that the trial court “modified” the attorney fee proven by the evidence or that any such modification required a hearing. Again, First Consumers merely asserted a claim to an attorney fee of twenty-five percent. The trial court was not required to find that it proved this claim with relevant and competent evidence indicating the reasonableness of that figure. Thus, there was no “modification” nor was any award contrary to the evidence presented. Furthermore, we note that La.Code Civ.P. art. 4904(C) provides for a hearing in open court only if “the judge in his discretion directs that such a hearing be held.” We find no abuse of the trial court’s discretion in its determination that a hearing was not required.

DECREE

For the foregoing reasons, the default judgment is affirmed. All costs of this proceeding are assessed to the appellant, First Consumers Financial, LLC.

AFFIRMED.


text:
    Christopher K. WOLFF v. Elizabeth B. WOLFF.
    No. 07-332.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Rodney M. Rabalais, Marksville, Louisiana, for Defendani/Appellant, Elizabeth B. Wolff.
    James T. Lee, Bunkie, Louisiana, for Plaintiff/Appellee, Christopher K. Wolff.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this domestic case, Defendant, Elizabeth B. Wolff, seeks reversal of the trial court’s judgment finding that she was not free from fault in the dissolution of her marriage to Plaintiff, Christopher K. Wolff, and thus precluded from final periodic spousal support. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Christopher K. Wolff (Mr. Wolff) and Elizabeth B. Wolff (Ms. Wolff) were married on May 19, 1990. Two children were born of the marriage. According to the record, Mr. Wolff moved out of the family residence on January 4, 2006, and on January 13, 2006, he filed a petition for divorce pursuant to La.Civ.Code art. 102. On February 17, 2006, Ms. Wolff filed an answer and reconventional demand, alleging that she was in need of interim periodic spousal support and also that she was free from fault in the break-up of the marriage for the purpose of pursuing final periodic spousal support. The parties were divorced on July 24, 2006.

On July 21, 2006, Ms. Wolff filed a motion to extend interim periodic spousal support and for final periodic spousal support. Following a trial on October 23, 2006, solely on the issue of fault, the trial court took the matter under advisement. On November 22, 2006, written reasons for ruling were issued by the trial court denying Ms. Wolffs request for final periodic spousal support. The trial court ruled that Ms. Wolff did not satisfy her burden of proving that she was free from fault in the dissolution of the marriage, based on its finding that Ms. Wolffs accusatory behavior towards Mr. Wolff rendered the marriage unsupportable. In its reasons for ruling, the trial court stated:

| a[T]his court is of the opinion that Ms. Wolff subjected Mr. Wolff to a pattern of mental harassment, nagging and griping which rendered the marriage insupportable. The nagging was accusatory in this case, and without merit. In this case, there was no conduct by Mr. Wolff which necessitated such accusations, thus the conduct by Ms. Wolff was not a legitimate “reaction” or “response” to anything. To reiterate there was nothing to indicate that Mr. Wolffs visits to “Gentlemens’ [sic] Clubs was a predicate to marital strife; rather, that seemed to be his “reaction” to a failing marriage. (The dissolution of the marriage at issue is obviously via mutual fault).

Judgment in accordance with the trial court’s ruling was signed on December 12, 2006. Ms. Wolff appeals.

ASSIGNMENT OF ERROR

In her sole assignment of error, Ms. Wolff argues that the trial court incorrectly denied her request for final periodic spousal support.

LAW AND DISCUSSION

Ms. Wolff contends that the trial court erred in its acceptance of Mr. Wolffs testimony that she was unjustifiably jealous, accusatory, and cruel towards Mr. Wolff as a basis for finding that she was not free from fault in the break-up of the marriage. We disagree.

The statutes applicable to the award or denial of final periodic spousal support are La.Civ.Code arts. 111 and 112. Louisiana Civil Code Article 111 states:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.

Louisiana Civil Code Article 112 lists various factors for the trial court’s consideration in determining whether an award of final periodic spousal support is merited. Louisiana Civil Code Article 112 provides, in pertinent part, “When a spouse has not been at fault and is in need of support, based on the needs of that party 13and the ability of the other party to pay, that spouse may be awarded final periodic support. ...”

In seeking final periodic spousal support, Ms. Wolff bears the burden of proving that she was free from fault in the dissolution of the marriage. Terry v. Terry, 06-1406 (La.App. 3 Cir. 3/28/07), 954 So.2d 790. “It is well settled that a trial court’s factual findings regarding fault in the area of domestic relations are given great deference on review. If the trial court’s findings are reasonable, i.e. not manifestly erroneous or clearly wrong, then they will not be disturbed.” Id. at 793 (citing Coleman v. Coleman, 541 So.2d 1003 (La.App. 3 Cir.1989)).

Mr. Wolff argues that Ms. Wolff was unjustifiably jealous, and years of her accusations of infidelity showed a pattern of mental harassment and cruel treatment towards him which rendered their marriage unsupportable. According to Mr. Wolffs testimony, Ms. Wolff harassed him about recurring dreams she had about him and a former schoolmate, and she accused him of having affairs with at least two women. Mr. Wolff denied ever committing adultery. Mr. Wolff contends that the evidence, or lack thereof, supports the trial court’s finding that Ms. Wolff failed to prove her freedom for fault. We agree.

Ms. Wolff asserts that the trial court erred by relying on Mr. Wolffs testimony that she nagged him incessantly in concluding that she was not free from fault in the dissolution of the marriage. Ms. Wolff testified that she was a dutiful wife and mother, and that she never initiated an argument with Mr. Wolff. She claimed that not until the night before he left did Mr. Wolff ever tell her that he was unhappy -with her as a wife, or that she was too jealous. He never complained about her either being a nag, being insecure, or being accusatory. In fact, Ms. Wolff denied being either |unreasonably jealous or unjustly accusatory. Ms. Wolff admitted to having an on-going argument with Mr. Wolff over his hiring of their mutual friend, Mrs. Charity Naquin (Mrs. Na-quin); however, Ms. Wolff denied being unreasonable.

According to Ms. Wolff, Mr. Wolff was overly flirtatious and would openly flaunt his attraction to other women in front of her. Ms. Wolff admitted that on these occasions she would voice her displeasure; however, she denied overreacting, nagging, or bickering incessantly.

Mrs. Tina Ormsby (Mrs. Ormsby) testified on behalf of Ms. Wolff; however, her testimony did not corroborate Ms. Wolffs testimony. Mrs. Ormsby admitted to witnessing Ms. Wolffs jealousy and nagging. Further, she also witnessed Ms. Wolffs efforts to make Mr. Wolff angry and jealous.

Mrs. Naquin was called to testify on behalf of Mr. Wolff. Her testimony corroborated Mr. Wolffs assertion that Ms. Wolff was jealous. In fact, Mrs. Naquin testified that Ms. Wolff told her that she was not happy with Mr. Wolff because he had employed her against her (Ms. Wolffs) wishes. According to Mrs. Na-quin, Ms. Wolff stated that until Mr. Wolff terminated Mrs. Naquin’s employment, she, Ms. Wolff, was going to make his life “a living hell.” It is noteworthy that Ms. Wolff did admit telling this to Mrs. Na-quin; however, she denied actually making Mr. Wolffs life such.

“The jurisprudence attendant to Louisiana Civil Code Articles 111 and 112 emphasizes that for a claimant spouse to prove entitlement to final support, that spouse must affirmatively prove freedom from fault.” Floyd v. Floyd, 03-1126, p. 5 (La.App. 3 Cir. 12/10/03), 861 So.2d 837, 840 (citing Harrington v. Montet, 93-984 (La.App. 3 Cir. 3/2/94), 634 So.2d 1302; Gibson v. Gibson, 592 So.2d 855 (La.App. 3 Cir.1991)). Considering the evidence, law, and jurisprudence, we do not find that the trial court clearly erred or was manifestly erroneous in finding that Ms. Wolff failed to affirmatively prove her freedom from fault and that her continued pattern of mental harassment rendered their marriage insupportable.

DECREE

For the foregoing reasons, the judgment denying Ms. Wolff final periodic spousal support is affirmed. Costs of this appeal are assessed against Defendant/Appellant, Elizabeth B. Wolff.

AFFIRMED.


text:
    Nelda SMITH, et al. v. ST. PAUL FIRE AND MARINE INSURANCE CO., et al.
    No. 07-285.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Todd A. Townsley, The Townsley Law Firm, Lake Charles, LA, Edmund M. Thomas, Shreveport, LA, for Plaintiffs/Appellants, Nelda Smith, et al.
    James R. Shelton, Ryan M. Goudelocke, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendants/Appellees, St. Paul Fire & Marine Insurance Company and Dr. Brian Gamborg.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiffs, Nelda Smith, Cathy Breaux, Wilburn G. Smith, and Gordon Smith, appeal an adverse verdict following a jury trial on their medical malpractice claim against Defendant, Dr. Brian Gamborg (Dr. Gamborg). Plaintiffs also appeal the trial judge’s refusal to give a certain jury instruction. For the following reasons, we affirm.

STATEMENT OF THE CASE

On January 7, 1999, Dr. Gamborg, a family practitioner, treated Mr. Wilburn Smith (Mr. Smith) for sinus congestion progressing into chest congestion with an unproductive cough and shortness of breath on exertion. Mr. Smith was diagnosed by Dr. Gamborg as having acute bronchitis and acute exacerbation of chronic obstructive pulmonary disease (COPD), for which Dr. Gamborg prescribed an antibiotic and steriodal breathing aids. At his home that night, Mr. Smith began having extreme difficulty breathing and asked his wife to get help. Mrs. Smith immediately called 911 and her son, Wilburn G. Smith. Shortly after the arrival of emergency personnel, Mr. Smith suffered cardiopulmonary arrest. Mr. Smith was then transported by ambulance to DeQuincy Memorial Hospital where efforts to resuscitate him were unsuccessful, and he expired.

Mr. Smith’s surviving spouse, Nelda Smith (Mrs. Smith), and three children, Cathy Breaux, Wilburn G. Smith, and Gordon Smith, Plaintiffs herein, filed a complaint of medical malpractice against Dr. Gamborg with the Louisiana Patients’ Compensation Fund. On December 12, 2000, a medical review panel unanimously determined that Dr. Gamborg met the applicable standard of care in his treatment of Mr. Smith. Thereafter, on March 9, 2001, Plaintiffs instituted the present wrongful | ¡.death and survival action against Dr. Gamborg and his medical malpractice insurer, St. Paul Fire and Marine Insurance Company (St. Paul). A jury trial was held from September 25, 2006 through September 29, 2006, wherein the jury returned a verdict in favor of Dr. Gamborg. The jury found that Plaintiffs failed to satisfy their evidentiary burden of proving that Dr. Gamborg breached the requisite standard of care. Judgment in accordance with the jury verdict was signed by the trial court on October 31, 2006. Plaintiffs appeal.

ISSUES

Plaintiffs assert that the trial judge erred when he denied their request to include a jury charge regarding “a special standard of care that applies when a patient presents to his primary care doctor with a life-threatening condition in the differential diagnosis.” Plaintiffs also argue that the jury erred in finding that Plaintiffs failed to establish by a preponderance of the evidence that Dr. Gamborg breached the standard of care in his treatment of Mr. Smith.

LAW

Standard of Review

The determination of whether Dr. Gamborg breached the standard of care is a factual determination which is subject to the manifest error standard of appellate review; consequently, a court of appeal may not set aside a trial court’s or jury’s finding unless it is manifestly erroneous or clearly wrong. Greer v. State, Through Dep’t of Transp. & Dev., 06-417 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, writ denied, 06-2650 (La.1/8/07), 948 So.2d 128.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact pfinder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

Id. at 145.

Burden of Proof

Plaintiffs in a malpractice action based upon the negligence of a physician must establish their claim by a preponderance of the evidence. See La.R.S. 9:2794(C). Louisiana Revised Statutes 9:2794(A) provides that the plaintiff shall prove:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

DISCUSSION

Plaintiffs, pursuant to La.R.S. 9:2794 and the jurisprudence interpreting said statute, had the burden of proving, by a preponderance of the evidence, the following: (1) the standard of care for treating a patient such as Mr. Smith; (2) that Dr. Gamborg breached that standard of care; and (3) that the breach caused Mr. Smith’s death. See also Browning v. West Calcasieu Cameron Hosp., 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La.2/13/04), 867 So.2d 691.

| AJury Instruction

Plaintiffs contend that the trial judge committed reversible error by not instructing the jury on the “special standard of care that applies when a patient presents to his primary care doctor with a life-threatening condition in the differential diagnosis”; therefore, they contend that the jury was not properly instructed as to the standard of care. Plaintiffs offered evidence that Mr. Smith was a patient of Dr. Gamborg’s with a history of having a heart attack in 1978. Mr. Smith had ischemic coronary artery disease, or impending heart attack, and was on heart medication. On January 7, 1999, Mr. Smith presented to Dr. Gamborg with symptoms of significant dyspnea, or shortness of breath on exertion, and an exercise tolerance of 100 yards. Plaintiffs argue that based on these factors, it was incumbent upon Dr. Gamborg to place ischemic coronary artery disease in his differential diagnosis, and that once it was in his differential diagnosis, Dr. Gamborg had a duty to perform the necessary tests to determine whether or not Mr. Smith was in imminent danger of having a life-threatening cardiac event. Plaintiffs argue that Dr. Gamborg’s examination of Mr. Smith was grossly and negligently insufficient and that Dr. Gamborg breached the standard of care in his treatment of Mr. Smith.

Dr. Rick Matis (Dr. Matis) was called to testify by Dr. Gamborg. Dr. Matis explained a differential diagnosis as “a shopping list of things that could be” from which “you try to come to an idea of what your best course for allowing that person to improve with whatever it is they have.”

Louisiana Code of Civil Procedure Article 1791 states, “The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of the |Bwitness, or giving an opinion as to what has been proved, not proved, or refuted.”

In denying Plaintiffs’ requested jury instruction, the trial judge declared that “[t]he court in presenting the instructions to the jury is bound to merely give the members of the jury the current, correct status of the law and is not allowed to make comments on the evidence as required by law.” We agree. To give Plaintiffs’ suggested jury instruction would have required the trial judge to make certain factual determinations, which invades the province of the jury, and is tantamount to commenting on the evidence, which is prohibited by La.Code Civ.P. art. 1791.

Plaintiffs have the burden of proving the requisite standard of care. La. R.S. 9:2794(A); Browning, 865 So.2d 795. The. jury determines what to accept as fact. The standard of care is a factual question .answered by the jury based on the evidence. Thus, we find no error in the trial judge’s refusal to adopt the Plaintiffs’s proposed jury instruction.

Jury’s Verdict

The record reflects that around 4:00 p.m. on January 7, 1999, Mr. Smith reported to the office of Dr. Gamborg, his family physician, with complaints of sinus and chest congestion and shortness of breath on exertion. Mr. Smith’s pulse was 72, his respiration rate was 18, and his oxygen saturation was 96 percent.

Plaintiffs 'allege that Mr. Smith died due to the breach of the standard of care by Dr. Gamborg in failing to adequately assess and/or treat Mr. Smith’s cardiac condition. Plaintiffs petition for damages states:

Dr. Gamborg did not perform the appropriate diagnostic evaluations nor did he document thoroughly enough [Mr. Smith]’s history, physical examination, responses to therapy, and results of diagnostic tests, he did not have the proper tools to make the determination as to whether or not [Mr. Smith] should have been admitted [to the hospital].

| sPlaintiffs assert that Mr. Smith died of a heart attack on the evening of January 7, 1999. Plaintiffs contend that when Mr. Smith visited Dr. Gamborg earlier on the afternoon of January 7, 1999, Mr. Smith should have been assessed for possibly having a life-threatening cardiac problem because he had suffered a heart attack in 1978, he was complaining of shortness of breath on exertion, and Mrs. Smith had recently requested a prescription for nitroglycerin on behalf of Mr. Smith. Therefore, Plaintiffs argue that Dr. Gamborg should have more thoroughly explored the possibility that Mr. Smith was having another heart attack instead of diagnosing arid treating Mr. Smith for exacerbation of bronchitis and COPD. Plaintiffs further contend that Dr. Gamborg’s negligent mis-' diagnosis of Mr. Smith proved to be fatal.

Plaintiffs testified that Mr. Smith had been breathing heavily for a couple of days prior to his doctor’s visit. Mrs. Smith testified that at Mr. Smith’s request, she called Dr. Gamborg’s office on January 5, 1999 to request a prescription for nitroglycerin, and she had the prescription filled that same day. Both Mrs. Smith and Wilburn G. Smith, Mr. Smith’s son, testified that after Mr. Smith’s death, there were only 20 nitroglycerin pills remaining in the bottle which originally contained 25 pills.

Mr. Arthur Tidwell, Mr. Smith’s boss, testified that he suggested that Mr. Smith see a doctor since he was obviously feeling badly. Mr. Smith’s daughter, Cathy Breaux, testified that her father was having difficulty breathing on the evening of January 7,1999.

To support their contention that Dr. Gamborg’s failure to thoroughly evaluate Mr. Smith caused his demise, Plaintiffs offered into evidence the testimony of Dr. pMichael Sills (Dr. Sills) and Dr. John Buckingham (Dr. Buckingham). Dr. Sills, an expert in the fields of both internal medicine and cardiology, testified that Mr. Smith’s 1978 heart attack made him an at risk cardiac patient who needed close monitoring by Dr. Gamborg. Dr. Sills also opined that Mr. Smith would have had an 80 percent chance of survival if Dr. Gam-borg would have sent him to the hospital on January 7,1999.

Dr. Buckingham, an expert in the field of family practice, agreed with Dr. Sills opinion that Mr. Smith would have had an 80 to 90 percent chance of survival if he had been admitted to the hospital. According to Dr. Buckingham, neither the results of Mr. Smith’s physical exam nor his vital signs should have caused Dr. Gamborg to rule out the existence of an imminent life-threatening cardiac problem. He also testified that approving a nitroglycerin refill is below the standard of care.

Dr. Michael Seep (Dr. Seep), an expert in the field of family practice, served as a member of the medical review panel that exonerated Dr. Gamborg. Called by the defense to testify, Dr. Seep stated that he reviewed Dr. Gamborg’s medical records and did not support Plaintiffs’ allegations that Dr. Gamborg was required to rule out any and all life-threatening causes in his differential diagnosis. Dr. Seep testified that “it would become physically impossible to practice medicine in a family practice setting because you would have so many patients that you would have to send to rule out this and that. You can’t do that.” Dr. Seep elaborated that a differential diagnosis is used to “mentally hone down what in your mind is the cause of these problems.... ” Finally, he opined that there was “no evidence to suggest that [Mr. .Smith was] having a cardiac problem.”

According to the opinion rendered by the medical review panel, the physical ^examination performed on Mr. Smith showed no signs of an acute pulmonary or cardiac event. Finding no need for any other diagnostic testing other than the physical examination that was performed by Dr. Gamborg, the panel opined that “the treatment provided was appropriate in light of the history and physical presented.” Further, the medical review panel noted that “the jugular venous pressure was recorded as normal, again diminishing the suggestion of an acute pulmonary or cardiac event.”

Dr. Gamborg’s testimony and medical records reveal that Mr. Smith’s visits to Dr. Gamborg’s office began on March 18, 1997, when Mr. Smith needed an exam required for health insurance. On June 9, 1997, Mr. Smith was treated by Dr. Gam-borg for upper respiratory symptoms that had progressed into chest congestion and shortness of breath. An X-ray showed chronic obstructive pulmonary disease. Mr. Smith returned to Dr. Gamborg’s office on October 31, 1997 with symptoms of sinus congestion and sore throat for which antibiotics were prescribed. Mr. Smith saw Dr. Gamborg on December 19, 1997 for prostatitis, and again on March 2, 1998 for dermatitis.

According to Dr. Gamborg, when he saw Mr. Smith on January 7, 1999, Mr. Smith again complained of sinus congestion progressing into chest congestion with an unproductive cough and shortness of breath. Dr. Gamborg had no recollection nor is there any indication on Dr. Gamborg’s medical chart that Mr. Smith complained of having, any chest pain. However, what is documented is Mr. Smith’s report of having rectal bleeding.

Dr. Gamborg testified that he did construct a mental list, or a differential diagnosis, of the many problems possibly causing Mr. Smith’s symptoms. According 19to Dr. Gamborg, he ruled out pulmonary em-bolus because of the absence of chest pain and a healthy blood-oxygen saturation. Likewise, influenza was ruled out due to the lack of chills and headache. Dr. Gam-borg testified that because of Mr. Smith’s physical examination and the symptoms of gradually worsening upper respiratory congestion leading to chest congestion and shortness of breath only on exertion and not at rest, he believed it was unlikely that Mr. Smith was suffering from an acute coronary condition. Mr. Smith was diagnosed by Dr. Gamborg as having acute bronchitis and acute exacerbation of COPD. Dr. Gamborg testified that based on his records and his standard practice procedures, he was confident that Mr. Smith was not having any chest pain or pressure during his January 7, 1999 visit to Dr. Gamborg.

“Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Davis v. ENSCO Offshore Co., 06-197, p. 1 (La.App. 3 Cir. 5/31/06), 931 So.2d 1194, 1195 (citations omitted). Based on our thorough review of the record, there are two permissible views of the evidence as exhibited by the conflicting expert testimony; therefore, we cannot say that the jury was manifestly erroneous or clearly wrong in determining that the Plaintiffs failed to satisfy their evidentiary burden of proving that Dr. Gamborg breached the requisite standard of care.

DECREE

For the foregoing reasons, the jury’s verdict in favor of Defendant, Dr. Brian Gamborg, is affirmed. Costs of this appeal are assessed against Plaintiffs/Appellants, Nelda Smith, Cathy Breaux, Wilburn G. Smith, and Gordon Smith.

AFFIRMED.

      . This court notes that the actual cause of death remains unknown because no autopsy was performed on Mr. Smith; however, the parties generally agreed that an acute myocardial infarction was more probable than not the cause of Mr. Smith’s death.


text:
    STATE of Louisiana v. Kevin D. ROGERS.
    No. 07-276.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      David W. Burton, District Attorney, DeRidder, Louisiana, for Appellee, State of Louisiana.
    Laura M. Pavy, Louisiana Appellate Project, Orleans, Louisiana, for Defendant/Appellant, Kevin D. Rogers.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

^Defendant, Kevin D. Rogers, was charged by amended bill of information on July 24, 2006 with one count of negligent homicide, a violation of La.R.S. 14:32, and one count of hit-and-run driving, a violation of La.R.S. 14:100. In accordance with his plea agreement, Defendant pled guilty to the one count of negligent homicide on October 16, 2006. In exchange for his guilty plea to negligent homicide, the State dismissed the charge of hit-and-run driving. Defendant was sentenced to imprisonment of three and one-half years at hard labor with credit for time served. He was also ordered to pay a fine of one thousand dollars, plus cost of court.

Defendant filed a motion to reconsider the sentence, alleging that the sentence was excessive under the circumstances of the case. The trial court denied Defendant’s motion to reconsider, without written reasons, on December 22, 2006. Defendant has perfected a timely appeal, asserting that the sentence of three and one-half years imprisonment is excessive.

FACTS:

Defendant pled guilty to the charge of negligent homicide. It is noted that at the guilty plea hearing, the trial court did not state the facts of the case. The following facts are taken from the trial court’s written reasons for sentencing.

The victim in this case died as result of a single car accident. Late in the evening, Defendant was driving the victim and her young son home. An accident reconstruc-tionist calculated the car was traveling at a speed of ninety miles an hour when it left the roadway and struck a tree. The victim’s body was burned beyond recognition. Defendant and the boy survived without serious injury. Defendant took the boy and hitchhiked to his grandmother’s house, where he left him on the front porch. Defendant then went home and did not report the accident.

| ^ASSIGNMENT OF ERROR:

In Defendant’s sole assignment of error he alleges that the sentence of three and one-half years at hard labor is constitutionally excessive, considering the circumstances of the case. Because he was only nineteen years of age at the time of the accident and had never been in trouble with the law before this incident, Defendant asserts that the term of imprisonment imposed should have been less, rather than more, than one-half of the maximum term permitted by statute.

Our negligent homicide statute, Louisiana Revised Statutes 14:32(C), provides for a range of punishment “with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.” Defendant was sentenced to three and one-half years at hard labor and fined one thousand dollars, plus cost of court.

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

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

A trial court must look at the particular circumstances of the case and the defendant’s background in order to impose a sentence that is suited for him. On review, the issue is not whether another sentence would have been more appropriate; rather, it is whether the trial court abused its discretion.

State v. Beverly, 03-1348, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 107, 110 (footnotes omitted); See also State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In its written reasons for imposing the three and one-half year term of imprisonment at hard labor, the trial court noted that it had reviewed a pre-sentence investigation report and read the letters sent on behalf of Defendant and the State. The trial court stated:

You profess to not remember the event of the accident and even state that you do not believe you were driving. On your initial interview with the Probation and Parole Officer, Paul Cryer, you stated: “I’m sorry for what I done[.] I believe it wasn’t my fault. I can’t remember driving. I don’t think I was. I took the plea for the lessor [sic] charge. If I could change one thing. I would be not going out that night.”
In short you deny responsibility for the accident and for the death of Sonia Reid. You have no sense of personal accountability.
This court is very skeptical of your lapse of memory pertaining to the actual occurrence of the accident. Your memory is selective in that you clearly remember events shortly before and after the accident. On the other hand your statements of “I don’t remember” are quite consistent with your total lack of acceptance of responsibility for this tragedy. The Court does not share your view that you are not at fault.
You are twenty-one years of age and you are a first felony offender. As stated I have read all of the submissions made by your attorney and by the District Attorney’s Office, and all of the information found in the Court record. I have carefully studied the PSI. I have taken into consideration all of the provisions of Code of Criminal Procedure Article 894.1. Although you are a first offender I do not believe that a probated sentence would be appropriate in this case since such a sentence would deprecate the seriousness of the crime.

In State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ denied, 04-663 (La.12/24/04), 882 So.2d 1165, the maximum sentence of five years imposed on a conviction for negligent homicide was found not to be excessive even though Hughes was a first time felony offender and the mother of four children. In that case, Hughes attempted to commit suicide by driving at a high rate of speed into|4the path of an oncoming pick-up truck. The driver of the pick-up was killed. This court stated:

The trial court cited the applicable factors set forth in La.Code Crim.P. art. 894.1, noted Defendant’s lack of a criminal record and letters of support in her favor; but, concluded Defendant’s “wanton and reckless disregard for the lives and safety of others ... dictates a sentence that fits the nature of this offense.” The trial court did not abuse its discretion in sentencing this Defendant to the five-year maximum term of imprisonment.

Id. at 860.

In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court affirmed a sentence of three years imposed on a conviction for negligent homicide. Gregrich, who was legally intoxicated at the time, drove his car left of center and hit an oncoming car head on, killing the driver. In State v. Clark, 529 So.2d 1353 (La.App. 5 Cir.1988), the fifth circuit affirmed a three-year sentence imposed on a conviction for negligent homicide. In that case, Clark was also determined to be intoxicated at the time and drove through a stop sign, striking the victim’s vehicle. The victim died as a result of the accident. Clark had previous convictions for driving while intoxicated.

The above cited cases show that Defendant’s sentence of three and one-half years is comparable to other sentences imposed for the same offense in similar situations. While Defendant was not intoxicated, as in Clark and Gregrich, he was also charged with hit-and-run driving. In exchange for his guilty plea, the State agreed to dismiss the charge of hit-and-run driving. Louisiana Revised Statutes 14:100(C)(2) provides for a range of punishment of not more than ten years imprisonment and a fine of not more than five thousand dollars. As noted, Defendant took the victim’s infant son out of the car, hitchhiked home, left the boy on his grandmother’s porch at three o’clock in the morning, and never reported the accident. Defendant received a benefit when he pled guilty to negligent homicide in exchange for the dismissal of the hit and run driving charge. He could have received a more onerous sentence. A trial court may take into consideration the benefit received in exchange for a guilty plea when imposing a sentence. State v. Spencer, 04-857 (La.App. 3 Cir. 12/8/04), 888 So.2d 1128.

For the reasons set forth above, we find that Defendant’s sentence is not constitutionally excessive and that the trial court did not abuse its considerable discretion when it sentenced Defendant to three and one-half years imprisonment on his conviction of negligent homicide.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Billye Jo Jeter GORDON v. Michael Elbert GORDON.
    No. 07-272.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      D. Wayne Bush, S. Christie Smith, IV, The Smith Law Firm, L.L.P., Leesville, LA, for Plaintiff/Appellant, Billye Jo Jeter Gordon.
    Judi F. Abrusley, Oakdale, LA, for De-fendani/Appellee, Michael Elbert Gordon.
    Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese, Judges.
   GENOVESE, Judge.

Lin this domestic case, Billye Jo Jeter Gordon (Ms. Gordon) appeals the trial court judgment denying her claim for interim spousal support from Dr. Michael Elbert Gordon (Dr. Gordon). For the following reasons, we affirm.

FACTS

Dr. and Ms. Gordon were married on July 1, 2001. On July 10, 2003, the parties physically separated. Ms. Gordon filed a petition for divorce on July 17, 2003, seeking, among other matters incidental to the divorce, interim spousal support. On July 19, 2004, the trial court granted the judgment of divorce. Inexplicably, Ms. Gordon’s rule for interim spousal support was not heard until October 5, 2006. The trial court denied Ms. Gordon’s claim for interim spousal support, and a judgment in accordance therewith was signed on November 9, 2006. It is from this judgment that Ms. Gordon appeals.

ISSUE

The sole issue presented for our review is whether the trial court erred in denying Ms. Gordon’s claim for interim spousal support.

LAW AND DISCUSSION

Standard of Review

The trial court enjoys considerable discretion in its decision to award interim support. Their decision will not be disturbed on appeal absent a clear abuse of discretion. Smoloski [v. Smoloski, 01-485 (La.App. 3 Cir. 10/3/01)], 799 So.2d 599; Brar [v. Brar, 01-370 (La.App. 3 Cir. 10/3/01)], 796 So.2d 810. An abuse of discretion will not be found if the record supports the trial court’s conclusions about the means of the pay- or spouse and his or her ability to pay.

Derouen v. Derouen, 04-1137, p. 4 (La.App. 3 Cir. 2/2/05), 893 So.2d 981, 984.

12Interim, Spousal Support

Louisiana Civil Code Article 113 provides that a “court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage.... ”

A spouse’s right to claim interim periodic support is based on the statutorily-imposed duty of spouses to support each other during their marriage. McAlpine v. McAlpine, 94-1594 (La.9/5/96); 679 So.2d 85. It is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. Daigle v. Daigle, 96-541 (La.App. 3 Cir. 11/6/96); 689 So.2d 478. Interim periodic support exists “to maintain the status quo without unnecessary economic dislocation until a determination of the amount of final support can be made, and until a period of time for adjustment elapses that does not exceed, as a general rule, one hundred eighty days after the judgment of divorce.” Defatta v. Defatta, 32,636, 32,637, p. 2 (La.App. 2 Cir. 2/1/00), 750 So.2d 503, 504-05.

Speight v. Speight, 03-1152, p. 2 (La.App. 3 Cir. 2/4/04), 866 So.2d 344, 346.

Finally, when awarding interim spousal support it “is the ability of the trial court to examine a spouse’s entire financial condition, which is not limited only to income, but also any resource from which the wants of life can be supplied, including a spouse’s earning capacity.” Smoloski v. Smoloski, pp. 4-5 (La.App. 3 Cir. 10/3/01), 799 So.2d 599, 602 (citing Goldberg v. Goldberg, 96-2145 (La.App. 4 Cir. 7/23/97), 698 So.2d 63).

In the case at bar, though counsel in their respective briefs address the needs, vel non, of Ms. Gordon, the trial court, in its oral reasons for judgment, based its ruling solely upon the inability of Dr. Gordon to pay interim spousal support. It is only this factual determination that is assigned as error on appeal. The issue of Ms. Gordon’s needs, as set forth in Louisiana Civil Code Article 113, is not before this court. Therefore, we shall only address the issue of the ability of Dr. Gordon to pay | aiuterim spousal support.

Ability to Pay

Ms. Gordon contends that the trial court erred in finding that Dr. Gordon did not have the ability to pay interim spousal support and failed to consider his earning capacity or other sources of income.

In assessing a spouse’s ability to pay, the court must consider his or her means. Means includes “any resources from which the wants of life may be supplied,” requiring an assessment of the entire financial condition of the pay- or spouse. Dagley v. Dagley, 96-1796, p. 4 (La.App. 4 Cir. 5/21/97), 695 So.2d 521, 523. Entire financial condition “is not limited to income, but also includes any resource from which his or her needs can be supplied, including a spouse’s earning capacity.” Hitchens [v. Hitchens, 38,339, p. 3 (La.App. 2 Cir. 5/12/04)], 873 So.2d [882,] 884-85.

Derouen, 893 So.2d at 985.

However, as this court recognized in Derouen, “[i]n several cases, courts have found that the payor spouse was financially unable to provide any support at all.” Id. In some cases, “[t]he payor spouse’s inability to pay thus obviates the claimant spouse’s request for interim support, despite having established need.” Id. at 985-86.

Considerable evidence was presented to the trial court on the “pretty substantial standard of living” Dr. and Ms. Gordon enjoyed during their marriage. However, germane to the issue presently before this court is the trial court’s factual determination that Dr. Gordon “doesn’t have the ability to pay anymore than what he has already paid in the form of interim spousal support....” We find that the record supports the trial court’s conclusions relative to the means of Dr. Gordon and his inability to pay interim spousal support. Therefore, we find no abuse of the trial court’s discretion in denying Ms. Gordon’s claim for interim spousal support.

The record reveals that Dr. Gordon worked as a dentist for twenty-eight years. 1 ¿However, his dental office has been closed since September of 2004. Dr. Gordon testified that he had not worked in two years, that he has no money, and that he has no income. It was also his testimony that he has no personal funds, that he owns no real estate, and that he has no credit cards. Dr. Gordon admitted that he did at one time have assets in some investment accounts, but he was forced to deplete it to meet expenses. According to Dr. Gordon, his “money ran out a year ago, [and his] mother is supporting [him].” It was the unrefuted testimony of Dr. Gordon that he does not have any funds, that his mother pays his expenses such as his electricity bill, water bill, and car insurance, and that when he needs “a dollar” he must ask his mother for it.

The trial court recognized that “[i]t may be, ... that [Dr. Gordon’s] got a bunch of cash squirreled away in a cigar box somewhere, but that’s speculative, speculation.” However, the trial court correctly opined that it “simply can not speculate and conclude that he has money that belongs to him in the possession of his mother with which to pay.” Thus, the trial court found that “he simply doesn’t have the ability to pay according to the evidence.”

The trial court also noted the significant payments made by Dr. Gordon to Ms. Gordon between the date of their separation, July 17, 2003, and the date of trial, October 5, 2006. It was established that despite Dr. Gordon’s financial condition, he continued to pay Ms. Gordon’s health insurance until September 2004, and paid for the insurance on the vehicle which Ms. Gordon had in her possession until August 21, 2006. It is evident from the trial court’s oral reasons for judgment that the amount of these payments were considered by the court in ruling on the claim for interim spousal support. Additionally, the trial court made it clear in its judgment that what |sDr. Gordon “paid so far ... satisfies his obligation for interim support” and that said obligation ceased as of the date of trial.

Voluntary Unemployment

Although Ms. Gordon contends that Dr. Gordon is voluntary unemployed, the evidence does not support this contention, and Ms. Gordon, who has the burden of proof under La.Civ.Code art. 113, has failed to prove same. Dr. Gordon testified that he has not worked for over two years. Dr. Gordon further testified that he wants to return to work as a dentist; however, he has not done so at the instruction of his criminal attorney due to “pending matters.” The record does not reveal the nature of these matters, nor the circumstances surrounding same. There being nothing further in the record on this issue, we find that Ms. Gordon has failed to establish, much less prove, that Dr. Gordon’s unemployment is, in fact, voluntary. Considering that the burden of proving entitlement to interim support rests with the party seeking same, and considering the record before us, we find that the trial court did not abuse its discretion relative to Ms. Gordon’s claim for interim support.

DECREE

For the foregoing reasons, we affirm the trial court judgment denying Billye Jo Jet-er Gordon’s claim for interim spousal support.

Costs of this appeal are assessed against Billye Jo Jeter Gordon.

AFFIRMED.


text:
    STATE of Louisiana v. James Manuel TURNBO.
    No. 2007-270.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      James F. Slaughter, Colfax, Louisiana, for Defendant/Appellant, James Manuel Turnbo.
    James P. Lemoine, District Attorney-Thirty-fifth Judicial District, ADA Jimmy D. White, Colfax, Louisiana, for appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hOn April 28, 2004, the Defendant, James Manuel Turnbo, was charged by bill of information with creation or operation of a clandestine laboratory for the unlawful manufacture of methamphetamine, in violation of La.R.S. 40:983(A)(3), and illegal carrying of weapons, in violation of La.R.S. 14:95(E). The Defendant entered a plea of not guilty to both charges on June 3, 2004.

Pursuant to trial by jury, a verdict of guilty as charged was rendered on July 21, 2006. On September 7, 2006, the Defendant was sentenced to eight years at hard labor for the drug-related offense and to five years at hard labor, without benefit of probation, parole, or suspension of sentence, for the weapons offense. The sentences were ordered to run concurrently. Defendant timely filed a Motion to Reconsider Sentence which was denied on October 4, 2006.

The Defendant appeals, asserting five assignments of error. He alleges: (1) that his Motion to Quash should have been granted; (2) that numerous exhibits should not have been introduced into evidence at trial; (3) that the calling of a rebuttal witness by the State was improper; (4) that his sentence was excessive; and (5) that he be granted a review for errors patent.

FACTS

On February 3, 2004, police went to the home of the Defendant in order to serve an arrest warrant on Carlton Hall (Hall). The Defendant informed police that Hall lived in a mobile home on his property. The Defendant then allowed police to look through his home for Hall, who was not present.

The Defendant subsequently opened the mobile home Hall rented from him. While looking for Hall, police found what they believed to be anhydrous ammonia Rand several other items associated with the production of methamphetamines in a slide-in motor home. As a result thereby, police asked the Defendant for consent to continue searching the property, and the Defendant told police to get a search warrant. A search warrant was subsequently obtained, and a search conducted.

During the search of the property and buildings surrounding the Defendant’s home, police seized surveillance equipment, numerous items associated with methamphetamine production, and several firearms. Police also searched the Defendant’s residence where they found marijuana and two percocet tablets in the room of the Defendant’s daughter and three guns in the master bathroom.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the Defendant contends that his Motion to Quash should have been granted by the trial court.

This court discussed motions to quash in State v. M.J.S., 05-380, pp. 6-7 (La.App. 3 Cir. 11/2/05), 916 So.2d 1215, 1219-20, as follows:

Louisiana Code of Criminal Procedure Article 532 (footnote omitted) provides:
A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court | ¡¡may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

Louisiana Code of Criminal Procedure Article 485 states:

If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to. make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.
In State v. Mulvihill, 03-691, p. 3 (La.App. 5 Cir. 10/28/03), 860 So.2d 266, 267-68, an appeal by the state from the granting of a motion to quash, the court explained the use of the motion to quash:
In State v. Perez, 464 So.2d 737 (La.1985), the Louisiana Supreme Court discussed the nature of a motion to quash and stated:
The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. La.C.Cr.P. art. 531-534.[I]t is treated much like an exception of no cause of action in a civil suit. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971).
In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720 (1971); State v. Ponthieux, 254 La. 482, 224 So.2d 462 (1969). The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974); State v. Snyder, 277 So.2d 660 (La.1973).
Therefore, a motion to quash is decided on the face of the bill of information and the bill of particulars.

A Motion to Quash was filed by the Defendant on July 17, 2006. Therein, the Defendant cited La.Code Crim.P. arts. 532(5) and 485 and sought to have the charge of illegal carrying of weapons quashed. The Defendant further alleged that there was no factual basis for the charge of illegal carrying of weapons, as he had not committed a crime of violence or been charged with possession, sale, or distribution of a controlled dangerous substance.

On the date the motion was filed, a hearing on the matter was held. At the hearing, the State objected to the filing of the motion, alleging that the motion was untimely and argued that no bill of particulars had been filed; therefore, the Defendant’s basis for the motion was improper. In response, the Defendant argued that there was open file discovery in the matter which was tantamount to a bill of particulars. The Defendant further argued that he was not charged with the distribution, sale, or possession of a controlled dangerous substance or a crime of ^violence; therefore, “the facts do not fit it.” The motion was subsequently denied.

In brief to this court, the Defendant argues that his Motion to Quash should have been granted because at no time did he possess, have control of, or have use of a weapon while operating a clandestine laboratory. The State asserts that the Defendant’s argument is incorrect because there was ample proof that the Defendant either possessed a controlled dangerous substance or was a principle to the crime. The State additionally asserts that no evidence was presented at the hearing on the motion; therefore, the motion was properly denied.

The defendant in M.J.S., 916 So.2d 1215, argued that materials obtained through open file discovery were to be treated as if they constituted a bill of particulars for purposes of the interpretation of La.Code Crim.P. art. 485. This court noted that the defendant offered no law in support of his contention that open file discovery could be substituted for a bill of particulars for purposes of La.Code Crim.P. art. 485, and stated that “this court can find no authority for such an interpretation.” Id. at 1221.

The Defendant, in his Motion to Quash, cited La.Code Crim.P. art. 532(5), which states that “[a] bill of particulars has shown a ground for quashing the indictment.” The Defendant herein failed to file a motion for bill of particulars and relied on open file discovery. As set forth in M.J.S., open file discovery is not the equivalent of a bill of particulars. Therefore, the trial court did not err in denying the Defendant’s Motion to Quash.

Even if this court were to consider open file discovery as the equivalent of a bill of particulars for the purposes of the Defendant’s Motion to Quash, the Defendant’s motion would still fail.

This court stated in M.J.S., 916 So.2d 1215, 1221:

In State v. Gerstenberger, 260 La. 145, 255 So.2d 720, 722 (1971) (emphasis added), the court addressed the application of La.Code Crim.P. arts. 485 and 532, stating:
Under Article 536 the court is required to limit its consideration of a motion to quash to the objections stated in writing in that motion; and under the grounds here urged the motion must be disposed of as a matter of law on the face of the information and the bill of particulars. The trial court erred in allowing evidence to be heard on this motion to quash. Evidence may be introduced in the consideration of some motions to quash, but the motion which was considered below and is now reviewed by us does not allege a ground which admits of any proof of fact. The court in con-, sidering this motion to quash must accept as trae the facts set out in the bills of information and in the bill of particulars, and determine whether as a matter of law they charge a crime. The evidence which may be taken on a motion to quash is limited to 'procedural matters and may not include a defense on the merits.

There was no bill of particulars in this case, and the Defendant did not designate what documents it received as a result of open file discovery. Therefore, we are unable to address the Defendant’s claim. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the Defendant contends that the percocet tablets, marijuana, and State Exhibits eight through ninety should not have been allowed at his trial on the merits.

In his argument, the Defendant alleges that State Exhibits twenty through ninety-one should not have been admitted and used against him because all of the items were seized from property being utilized by Carlton Hall and were the property of Hall. Additionally, no fingerprints, receipts, or other connections linked the Defendant to these items. Further, Defendant contends that allowing such items into |7evidence at trial was overwhelmingly prejudicial to him. The Defendant also argues that the percocet and marijuana should not have been allowed into evidence because the drugs belonged to his daughter, and because she had a prescription for the percocet.

State Exhibits Eight Through Ninety-one

The State avers that the Defendant failed to object to the introduction of State Exhibits eight through ninety-one; therefore, they were properly admitted at trial. The State’s assertion is correct. The Defendant failed to object to the introduction of State Exhibits eight through ninety-one. Therefore, the Defendant failed to preserve the issue of their admissibility for appellate review. La.Code Crim.P. art. 841; State v. Allen, 03-2418 (La.6/29/05), 913 So.2d 788, cert. denied, — U.S. -, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006).

Percocet and Marijuana

At trial, the Defendant objected to the admissibility of the percocet and marijuana found in his home. The Defendant’s objection was based on relevancy and prejudice. He argued that the percocet and marijuana were not relevant because they were found in his daughter’s bedroom. He additionally argued that the admission of the items would be prejudicial and inflammatory. The State argued that the Defendant had three pistols in his home as well as the percocet and marijuana. The State further asserted that one of its theories was that the Defendant had drugs and guns in his house and had ample time to put the drugs in his daughter’s room, which was a question of fact.

In brief to this court, the Defendant argues that the percocet and marijuana should not have been admitted at trial because the items were found in his daughter’s |sroom and that she had a prescription for the percocet. The Defendant further argues that the items had nothing to do with the elements of the crime for which he was on trial and that it was undisputed that he neither owned nor possessed the items at issue.

The State asserts that once police arrived at the Defendant’s home, it took him a considerable amount of time to answer the door and that there was sufficient time for the Defendant to conceal the marijuana and percocet in his daughter’s room. The State further argues that, because the Defendant was charged with possession of a firearm in connection with a controlled dangerous substance, it was entitled to present evidence of the percocet and marijuana.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. Relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or waste of time. La.Code Evid. art. 403. “The trial court’s determination regarding the relevancy of evidence offered is entitled to great weight and should not be overturned absent a clear abuse of discretion.” State v. Stringer, 06-800, p. 13 (La.App. 3 Cir. 12/6/06), 949 So.2d 464, 475 (citation omitted).

The Defendant was charged with illegal carrying of weapons while in possession of a controlled dangerous substance. The percocet and marijuana were relevant to the charge of illegal carrying of weapons and could be used to prove an element of that offense. Whether the marijuana was possessed by the Defendant’s daughter, and whether she had a valid prescription for the percocet, were questions | sof fact for the jury to consider. Therefore, we cannot say that the trial court abused its discretion in finding that the marijuana and percocet were relevant and, therefore, admissible. Additionally, the evidence- at issue was not unduly prejudicial in light of its relevancy to the charge of illegal carrying of weapons. Further, if the jury believed that the per-cocet and marijuana actually belonged to the Defendant’s daughter, the Defendant would not have suffered prejudice, as they would have been deemed not to have been in his possession. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the Defendant contends that allowing the State to call a rebuttal witness, Mollie Moody (Moody), was improper and that she should not have been allowed to testify-

At the close of the Defendant’s case, the State informed the trial court that it intended to call Moody as a witness and would provide her with immunity. The Defendant objected, based on surprise and late notice. The State then informed the trial court that it did not decide to call Moody as a witness until the defense chose to put on character evidence. The State also stated that it had met with Moody the previous night. The court subsequently overruled the Defendant’s objection.

In brief to this court, the Defendant argues that the State should not have been allowed to call Moody as a rebuttal witness when the State had ample reason to elicit her testimony in its case-in-chief. The Defendant additionally argues that he was ambushed by the rebuttal witness because he had no prior notice that the State intended to call Moody to the stand. The Defendant further argues that even if the State did not know of the rebuttal witness, her testimony should not have been allowed because it was tantamount to allowing the State to reopen its case-in-chief. |inLastly, the Defendant argues that the State deliberately used a rebuttal witness in order to negate his ability to properly prepare cross-examination.

The State argues that the testimony of Moody was vital to rebut the testimony of defense witnesses who said that the Defendant was not involved in illegal drug operations.

Louisiana Code of Criminal Procedure Article 765 sets out the normal order of trial as follows: The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal.

Rebuttal evidence is that which explains, repels, disproves or counteracts. State v. Deboue, 552 So.2d 355, 362 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990); State v. Truitt, 500 So.2d 355, 359-360 (La.1987); State v. Huizar, 414 So.2d 741, 751 (La.1982). The determination of whether evidence is rebuttal evidence and hence admissible is an issue which is addressed to the sound discretion of the trial court. Huizar, supra; State v. Green, 390 So.2d 1253, 1260 (La.1980). Contradiction is one means of rebutting testimony of a witness. See generally State v. Garrison, 260 La. 141, 255 So.2d 719 (1971); State v. Poe, 214 La. 606, 38 So.2d 359 (1948).

State v. Tilley, 99-569, p. 19 (La.7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). “However, it is well settled that the state may not reserve part of its case-in-chief for rebuttal testimony after the defense has rested.” State v. Deboue, 552 So.2d 355, 362 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990).

The Defendant presented several witnesses who testified that he was not involved with drugs. In rebuttal, the State called Moody, who testified that the Defendant knew of Hall’s actions.

We find that the State properly called Moody in rebuttal. See State v. Beason, 26,725 (La.App. 2 Cir. 4/7/95), 653 So.2d 1274, writ denied, 95-1388 (La.10/27/95), 661 So.2d 1359. Additionally, the State was not required to give notice of its intent Into call Moody as a witness, as the State would not know in advance of the Defendant putting forth his case that a rebuttal witness was needed, and who that witness would be. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the Defendant contends that his sentences are excessive based on his previous record, age, and health issues.

The Defendant was convicted of creating or operating a clandestine laboratory and illegal carrying of weapons. The sentencing range for creation or operation of a clandestine laboratory is five to fifteen years at hard labor, and the sentencing range for illegal carrying of weapons is five to ten years, without benefit of probation, parole, or suspension of sentence. La.R.S. 40:983 and 14:95(E). The Defendant was sentenced to eight years at hard labor for the drug offense and to five years at hard labor, without benefit of probation, parole, or suspension of sentence, for the weapons offense. The sentences were ordered to run concurrently.

The supreme court discussed the standard applicable to excessive sentencing claims in State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17, as follows:

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The Defendant argues that his sentences are excessive in light of the fact that 112he had only one prior conviction for fraud in selling agricultural equipment in June 2001. Additionally, he asserts that his pri- or offense was not violent and that the current offenses are also nonviolent. The Defendant further asserts that he is a good family man who is held in high regard in his community.

The Defendant received the minimum sentence for illegal carrying of weapons and that sentence was ordered to run concurrently with the sentence for the drug offense. Accordingly, we cannot say that the sentence for illegal carrying of weapons is excessive.

At present, there are no cases involving excessive sentencing claims for creating or operating a clandestine laboratory. The Defendant’s sentence for that offense is three years more than the minimum sentence. We likewise cannot say that the trial court abused its discretion when imposing that sentence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5 (ERRORS PATENT REVIEW)

After reviewing the record, we find that there are no errors patent.

CONCLUSION

The Defendant’s convictions and sentences are affirmed.

AFFIRMED.