author: EDWARDS, Judge. DALEY, Judge,

text:
    Robert Scott JARRELL and Vanessa Jarrell v. WEST JEFFERSON MEDICAL CENTER.
    No. 06-CA-889.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      David J. Foshee, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Rodi W. Culotta Curry & Friend, APLC, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   EDWARDS, Judge.

| sPlaintiffs/appellants, Robert Scott Jar-rell and Vanessa Jarrell (“Jarrell”), appeal a judgment of the district court granting an Exception of Prescription in favor of defendant/appellee, West Jefferson Medical Center (“West Jefferson”).

On October 28, 2004, Jarrell filed a petition for damages against Dr. John Steck (“Dr. Steck”) claiming that he suffered damages as a result of alleged negligence on the part of that physician on August 29, 2000. In the petition, Jarrell averred that, as a result of the medical negligence, he received new injuries and faced complications of injuries previously sustained in a helicopter accident. West Jefferson was not named in the petition. In brief, Jarrell asserts that he was visiting Dr. Steck for treatment of the helicopter accident injuries. Dr. Steck filed an Exception of Prescription, averring that the act on which the cause of action was taken occurred on August 29, 2000, and that, on August 29 2001, a complaint was filed with the Commissioner of Administration. The Medical Review Panel was continued until November 10, 2003, at which time it expired. Dr. Steck urged that, according to LSA-R.S. 40:1299.47(B)(3), ninety days after the notification to all parties of the dissolution of the medical review panel, or ninety days after the |,-¡expiration of any court-ordered extension, the suspension of the running of prescription with respect to a qualified health care provider shall cease. Therefore, Dr. Steck alleged that, since there was no additional time left on the original prescriptive period, the action had prescribed.

Jarrell originally opposed the exception on due process grounds. He filed a supplemental opposition, alleging that he was in the course and scope of his employment when he was originally injured in the helicopter incident and that Dr. Steck was solidarily liable with his employer. Jarrell filed a Supplemental and Amending Petition urging simply that Dr. Steck and his employer were jointly and solidarily liable for the damages suffered as a result of the malpractice. At the trial of the exception, and on appeal here, Jarrell urges that a timely-filed suit against his employer interrupted prescription as against all soli-dary and joint obligors.

LSA-C.C. art. 3492 provides a one-year prescriptive period for delictual actions. Because Jarrell’s suit for tort damages was filed more than one year after the incident, the action had prescribed on its face. In such circumstances, the plaintiff carries the burden of proving that prescription was interrupted, suspended, or renounced. When the plaintiffs basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. According to LSA-C.C. art. 3462, “Prescription is interrupted when ... the obli-gee commences action against the obligor, in a court of competent jurisdiction and venue.” Furthermore, LSA-C.C. art. 1799 provides that “[t]he interruption of prescription against one solidary obligor is effective against all solidary obligors.... ” Louisiana jurisprudence holds that third-party tortfeasors and employers involved in suits arising out of the |4same injury/accident are solidary obligors. “Thus, when an injured employee timely files a claim seeking workers’ compensation benefits from his employer, prescription is interrupted with regard to the injured employee’s claim against the third party tortfea-sor.”

To establish solidary liability in this case, Jarrell must show that at least some of the injuries he suffered in his helicopter work-related accident were complicated by, aggravated by, or otherwise related to, the actions of Dr. Steck. The first issue has been at least partially alleged and, in the absence of any evidence on this question, may be taken as true for purposes of the current exception.

Here, the only evidence introduced was attached to the Exception of Prescription filed by Dr. Steck and consisted of letters and a document extending the Medical Review Panel. Nowhere in the record on appeal are there any pleadings, documents, etc., evidencing Jarrell’s suit against his employers, or its status at the time the malpractice suit was filed. To defeat prescription, Jarrell must show not only the relationship of the malpractice injuries to any injuries suffered in the helicopter accident, but he must also show that the compensation suit to which he seeks to attach was timely filed. On the appellate record, we are unable to establish that fact. Further, we are unable to determine the status of the compensation lawsuit at the time the malpractice action was filed. “With regard to actions in tort, interruption generally occurs with the filing of a suit in a court of I ¡¡competent jurisdiction and venue and an action remains interrupted while the suit is pending.” See, LSA-C.C. arts. 3462 and 3463.

Jarrell did not carry his burden of proof in the trial on the exceptions. For these reasons, we affirm the judgment of the trial court granting prescription. However, because we find that facts exist which may be sufficient to overcome prescription, we hold that Jarrell should be given the opportunity to amend his petition to allege those facts. Accordingly, we remand for the district court to amend the judgment to allow Jarrell to amend his petition within a specified period of time. If he fails to so amend the petition, the claim should be dismissed. If he amends his petition and alleges new facts, the district court should consider anew the exception of prescription.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

DALEY, J., dissents with reasons.

DALEY, Judge,

dissenting.

_JjThe majority opinion states there are facts that exist “which may be sufficient to overcome prescription” and amends the judgment to allow the plaintiff to amend his petition to include these facts. I disagree that plaintiffs suit, which is prescribed on its face, can be resurrected given the facts presented.

In LeBreton v. Rabito, 1997-2221, (La.7/8/98), 714 So.2d 1226, the Supreme Court determined that in a medical malpractice lawsuit the specific medical malpractice prescription provisions contained in LSA R.S. 40:1299.47 should be applied, rather than the general provisions dealing with interruption of prescription. In overruling the Court’s prior holding in Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), which had allowed the simultaneous application of the interi’uption and suspension of prescription statutes in medical malpractice actions, the LeBreton Court explained that when there is a conflict between two statutes on the same subject matter, the statute specifically directed to the matter at issue must prevail as an exception to the more general statute. In further explanation, the Court stated: “the filing of a medical malpractice claim with a medical review panel triggered the suspension of prescription specifically provided by the Medical Malpractice Act, rather than the interruption of the liberative prescriptive period generally provided in the Civil Code.” Id. at 1230.

Ijn Schulingkamp v. Ochsner Clinic, 01-1137 (La.App. 5 Cir. 3/12/02), 813 So.2d 524, this Court followed LeBreton to affirm the trial court’s grant of the defendant Ochsner’s Exception of Prescription. In Schulingkamp, as in the case at bar, plaintiffs argued that the pending suit against solidary obligors continued to interrupt prescription against Ochsner. In rejecting plaintiffs argument, this Court explained that to do as plaintiff urged “is to ignore to [the] statute more specifically directed at the prescription issue in the context of the medical Malpractice Act.” Id. at 528.

More recently in Borel v. Young, 2006-352, (La.App. 3 Cir. 12/29/06), 947 So.2d 824, which currently has writs pending to the Supreme Court, the Third Circuit relied on LeBreton to uphold the trial court’s grant of defendant’s Exception of Prescription. In Borel, the plaintiff filed a claim with the Patient’s Compensation Fund against Dr. Young and Lafayette Medical Center. After the panel rendered an opinion, plaintiff filed suit against the Medical Center and did not file suit against Dr. Young. Later, when plaintiff discovered the Medical Center would present evidence of Dr. Young’s negligence, the plaintiff sought to amend the petition to include Dr. Young. When this was denied, plaintiff filed a separate suit against Dr. Young that was later consolidated with the suit against the Medical Center. In affirming the Exception of Prescription in favor of Dr. Young, the Court explained: “Subsequent jurisprudence applying the principals of LeBreton to joint tortfeasor situations have concluded that the specific provisions in the medical malpractice statute regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general codal articles on interruption of prescription against joint tortfeasors.” Id. at p. 831.

In the case at bar, plaintiff filed a timely claim with the Patient’s Compensation Fund as provided in the Medical Malpractice Act. As per the ^provisions in the Act, this panel expired on November 10, 2003, after no party moved to extend the life of the panel. Under LSA R.S. 40:1299.47 B(3) plaintiff had 90 days from November 10, 2003 to file suit. When plaintiff failed to do so, his claim against Dr. Steck prescribed. For the foregoing reasons, I would affirm the judgment of the trial court as written.

      . Gary v. Camden Fire Ins. Co., 96-0055 (La.7/2/96), 676 So.2d 553.

      . Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).

      . Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993).

      . See, e.g., Segura v. Cleco Power, LLC, 2004-1368 (La.App. 3 Cir. 3/2/05), 900 So.2d 897, 900, writs denied, 2005-1660 (La.1/9/06), 918 So.2d 1051.

        .Bell v. Kreider, 03-300 (La.App. 5 Cir. 9/16/03), 858 So.2d 58, 63, writ denied, 2003-2875 (La.1/9/04), 862 So.2d 986 (emphasis supplied). See also, McGuire v. Envtl. Monitoring Serv., Inc., 03-497 (La.App. 5 Cir. 9/30/03), 865 So.2d 759.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Carol MOISE v. Keith Leonard MOISE.
    No. 06-CA-876.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.
    M. Claire Durio, Simon, Peragine, Smith & Redfearn, New Orleans, Louisiana, for Plaintiff/Appellant.

      H. Craig Cabral, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| JPlaintifiyappellant, Carol Moise, appeals from a trial court judgment which determined that an L.L.C. was the separate property of her former husband, defendant/appellee, Keith Moise. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Carol Moise (“Ms.Moise”), and defendant, Keith Moise (“Mr.Moise”), were married in Jefferson Parish in February of 1995 and subsequently established domicile there. On July 7, 2003, Ms. Moise filed a petition for divorce, which was granted on June 9, 2004. Ms. Moise and Mr. Moise thereafter partitioned all assets of the community with the exception of The Moise Family, L.L.C. (“the L.L.C.”), which Mr. Moise contended was his separate asset. Following a hearing on November 30, 2005 on the Motion for Partition of Community Property, the trial court, in a judgment dated December 1, 2005, ruled that the L.L.C was the separate property of Mr. Moise. From that ruling, Ms. Moise timely filed the present appeal.

| JLAW AND ANALYSIS

On appeal, Ms. Moise raises two assignments of error: (1) The trial court erred in finding that the L.L.C was the separate property of Mr. Moise, and (2) the trial court erred in finding that Ms. Moise was not a member of the L.L.C.

The record in this case establishes that, on March 17, 1993, prior to his marriage to Ms. Moise, Mr. Moise purchased property in Tangipahoa Parish for a sum of $24,000. The L.L.C. was formed on December 31, 2002, with Mr. Moise and Ms. Moise named as the first managers or members of the L.L.C. On December 31, 2002, Mr. Moise also executed an Assignment of Interest, whereby, in partial consideration of 100 percent interest in the L.L.C, he transferred a partial interest in the Tangi-pahoa property to the L.L.C. On February 6, 2003, Mr. and Ms. Moise, as “members” of the L.L.C, entered into a Land Lease Agreement with Verizon Wireless for the same parcel that Mr. Moise had previously transferred; the lease called for Verizon to pay the L.L.C. $12,000 annually.

At trial, Ms. Moise presented evidence which she contended established that, not only was the L.L.C. a community asset, but that she was also a member of the entity as well. In support of her claim, she referenced the documents which formed the L.L.C. in which she was listed among “the first managers, or the members” in the initial report. Ms. Moise further relied on the L.L.C.’s tax return for 2003, which lists Mr. and Ms. Moise as 50 percent partners for the purposes of profit sharing, loss sharing, and capital. Ms. Moise testified at trial that she contributed services to the L.L.C., including cutting grass on the Tangipahoa property, payment of corporate fees, including one-half of those paid to the company accountant, meeting with Verizon representatives in pursuit of the lease Ragreement, and opening the company’s bank account. Ms. Moise further introduced the Verizon lease into evidence, in which she was identified as a member of the L.L.C.

We first address Ms. Moise’s assignment regarding her classification as a non-member of the L.L.C. While the documents creating the L.L.C. are silent with respect to Ms. Moise’s definitive designation as either a member or manager, we find no such ambiguity on the role of Mr. Moise within the L.L.C. The record shows that, on December 31, 2002, Mr. Moise executed an Assignment of Interest, whereby he gave up a certain interest in his separate property in partial consideration of 100 percent interest in the L.L.C. Accordingly, his capital contribution to the L.L.C. would have entitled Mr. Moise to become the only member of the L.L.C., pursuant to the terms of the property assignment.

In spite of the fact that Ms. Moise is designated on the Verizon lease as a member, we do not find that this changes her status in fact. Furthermore, we are not persuaded by Ms. Moise’s argument that her equal share of profits from the L.L.C. indicates her status as a member. As the trial court correctly noted, “[t]he rental payments [from Verizon] are natural and civil fruits and hence, are community property” to which Ms. Moise was clearly entitled. We further agree with the trial court’s assessment that the duties performed by Ms. Moise for the L.L.C. amount to those of a manager and find this assignment to be without merit.

We next consider Ms. Moise’s argument that the trial court erred in finding the L.L.C. to be the separate property of Mr. Moise.

| ¡[Louisiana law provides clear guidelines to be used in the determination of whether an asset should be deemed community or separate property. As this Court recently, noted in McClanahan v. McClanahan:

Community property is made up of property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse, property acquired with community things or with community and separate things, unless classified as separate property under Article 2341. La. C.C. art. 2338. The natural and civil fruits of the separate property of a spouse are community property. La. C.C. art. 2339. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340. The separate property of a spouse is his exclusively.

In addition, the classification of property as separate or community is fixed at the time of its acquisition.

A trial court’s findings regarding nature of the property as community or separate is a factual determination subject to manifest error review.

In finding that the L.L.C. was the separate property of Mr. Moise, the trial court appears to have relied primarily on Mr. Moise’s transfer of his separate property in Tangipahoa to the L.L.C.

LSA-C.C. art. 2341 states, in relevant part:

The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used[.]

(Emphasis added.)

|fiIn the present case, the Tangipahoa property, which was clearly the separate asset of Mr. Moise, was given in consideration for 100 percent ownership interest of the L.L.C., which also became his separate asset. As noted by Ms. Moise, we acknowledge that LSA-R.S. 12:1329 provides that an L.L.C. member shall have no interest in a limited liability company property. However, while the status of Mr. Moise’s Tangipahoa property made as a capital contribution to the L.L.C. may have changed after he transferred it, the status of Mr. Moise’s 100 percent ownership interest in the company acquired by virtue of his separate property remained unchanged from its inception. Furthermore, even had the L.L.C. been a community asset, Mr. Moise still would have been entitled to the return of his capital eontri-button, his separate property, upon the winding up of the L.L.C. As provided by LSA-R.S. 12:1337, in relevant part:

A. Upon the winding up of a limited liability company, any assets remaining after paying or adequately providing for the payment of all debts and liabilities of the limited liability company, including all costs and expenses of the liquidation and any and all contingent liabilities of which the members or liquidator has knowledge, shall be distributed as follows:
(2) Except as provided in the articles of organization or a written operating agreement, to members and former members, first, for the return of their capital contributions, and secondly, respecting their membership interests, in the proportions in which the members share in distributions.

(Emphasis added.)

Accordingly, based upon our review of the record, we cannot say that the trial court was manifestly erroneous in its factual determination that the L.L.C. was the separate property of Mr. Moise for which the community was entitled to ^reimbursement for expenses. For the foregoing reasons, the judgment of the trial court is affirmed; costs of this appeal are to be borne by the appellant.

AFFIRMED.

      . The L.L.C.'s Initial Report does not specify whether Ms. Moise is a first manager or a member.

      . The amount of lease payments was made pursuant to an Amendment to Lease Agreement, which was executed between Mr. Moise and a representative of Verizon on August 1, 2003.

      . As defined by LSA-R.S. 12:1301(A)(3), " 'Capital contribution’ means anything of value that a person contributes to the limited liability company as a prerequisite for, or in connection with, membership, including cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services.”

      . As defined by LSA-R.S. 12:1301 (A)(12) " 'Manager or 'managers' means a person or persons designated by the members of a limited liability company to manage the limited liability company as provided in its articles of organization.”

      . 03-1178 (La.App. 5 Cir. 2/23/04), 868 So.2d 844, 847, writ denied, 2004-1175 (La.9/3/04), 882 So.2d 609, reconsideration denied, 2004-1175 (La.11/8/04), 885 So.2d 1133.

      . Smith v. Smith, 95-0913 (La.App. 1st Cir. 12/20/96), 685 So.2d 649, 651.

      . Ross v. Ross, 2002-2984 (La.10/21/03), 857 So.2d 384.

      . Our finding is further supported by the court's holdings in Succession of Sonnier, 208 So.2d 562, 566 (La.App. 3d Cir.1968) and Reeves v. Reeves, 607 So.2d 626 (La.App. 2d Cir.1992), writ denied, 608 So.2d 1010 (La.1992).


text:
    Kevin and Wayannita AUSTIN, Individually and on Behalf of their Minor Daughter, Andrinika Austin v. STATE FARM INSURANCE COMPANY.
    No. 06-CA-808.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.
    James M. Williams, Gauthier, Houghtal-ing & Williams, L.L.P., Metairie, Louisiana, for Plaintiffs/Appellants.
    Deidra L. Cooper, Frederick A. Miller & Associates, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| pPlaintiffs/appellants, Kevin and Wayan-nita Austin, individually and on behalf of their minor daughter, Adrinika Austin, appeal the trial court’s judgment which granted an Exception of Prescription in favor of defendant/appellee, State Farm Insurance Company (“State Farm”), in this automobile accident case. For the reasons that follow, we affirm.

On February 13, 2003, the plaintiff, An-drinika Austin (“Austin”), a minor, was a passenger in a ear driven by Renard Mar-key. While traveling north on LA 3160 in St. Charles Parish, Markey attempted to pass another vehicle when a collision occurred. Following the accident, Austin was brought to St. Charles General Hospital where her ankle was treated for injury.

On June 9, 2005, Austin’s parents filed suit on her behalf in the Twenty-Ninth Judicial District Court for the Parish of St. Charles against both St. Charles General Hospital and her treating physician at St. Charles General Hospital, |3alleging substandard care that resulted in an “irreparably injured ankle.” As Markey was uninsured at the time of the accident, Austin further named State Farm Insurance Company (“State Farm”), which provided uninsured motorist coverage to the plaintiffs. Austin contended in her petition that all named defendants were jointly and severally liable for her injury.

On July 26, 2005, St. Charles General Hospital filed Dilatory Exceptions of Prematurity and Vagueness and a Peremptory Exception of No Right of Action on the basis that plaintiffs had not convened a Medical Review Panel pursuant to the Louisiana Medical Malpractice Act. On January 30, 2006, State Farm filed a Peremptory Exception of Prescription, which asserted that plaintiffs’ claims were expired since suit was not filed until over two years after the accident had occurred. On June 16, 2006, the trial court granted St. Charles General Hospital’s Exception of Prematurity, and, on June 28, 2006, granted State Farm’s Exception of Prescription.

Plaintiffs timely filed the present appeal from the trial court’s judgment granting State Farm’s Exception of Prescription.

LAW AND ARGUMENT

On appeal, plaintiffs’ lone assignment of error is that the trial court erred in granting State Farm’s Exception of Prescription in light of a timely filed Medical Review Panel Complaint against St. Charles General Hospital which interrupted prescription against all joint tortfeasors.

An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to its submission after trial. LSA-C.C.P. art. 929 provides when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of Ror on the trial of the case. LSA-C.C.P. art. 931 allows the introduction of evidence at the trial of all peremptory exceptions, except the objection of no cause of action. The trial court is not bound to accept as true the allegations of plaintiffs petition in its trial of the peremptory exception. When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.

LSA-R.S. 9:5629 provides, “Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”

In the present case, the accident that caused the alleged injury to Austin occurred on February 13, 2003. Plaintiffs filed their petition for damages on June 9, 2005, well over two years later. Accordingly, the plaintiffs’ claim against State Farm is prescribed on its face.

Where the petition on its face reveals prescription has run, the responsibility shifts to the plaintiff to show otherwise.

Plaintiffs assert that a timely filed Medical Review Panel Complaint against St. Charles General Hospital interrupted prescription against what they contend to be joint tortfeasors, including State Farm. In reviewing the record, however, we note that no evidence of a Medical Review Panel Complaint was ever introduced by plaintiffs. Although plaintiffs attached a copy of a Request for Review by a Medical Review Panel to their appellate brief, an appellate court is forbidden by the law and jurisprudence to consider evidence which is outside the record on | ¡¡appeal. It is also well established that the appellate briefs of the parties are not part of the record on appeal, and this Court has no authority to consider, on appeal, facts referred to in appellate briefs if those facts are not in the record that is lodged in the appellate court.

Because no evidence of a Medical Review Panel Complaint appears in the record, we have no basis upon which to consider the merits of plaintiffs’ argument on appeal. Therefore, based upon the record before us, we cannot say that the trial court erred in granting State Farm’s Exception of Prescription in this case. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against the appellants.

AFFIRMED.

      . LSA-C.C.P. arts. 927 and 928(B).

      . Bowers v. Orleans Parish Sch. Bd., 95-2530 (La.App. 4 Cir. 5/29/96), 694 So.2d 967, 972.

        .Id.

      . Lima v. Schmidt, 595 So.2d 624 (La.1992).

      . First Nat' l Bank of Commerce v. Keyworth, 98-1255 (La.App. 5 Cir. 6/1/99), 738 So.2d 110.


text:
    Mary Dancy BREWTON v. STATE of Louisiana DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 06-CA-804.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      Neal R. Elliott, Jr., Attorney at Law, Louisiana Department of Health and Hospitals, Baton Rouge, Louisiana, for Defendant/Appellant.
    Roy C. Cheatwood, Baker, Donaldson, Bearman, Caldwell & Berkowitz, New Orleans, Louisiana, for Plaintiff/Appellee.
    Joel A. Mendler, Sirote & Permutt, P.C., New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

IgThe State of Louisiana, Department of Health and Hospitals (“DHH”) appeals a judgment of the Twenty-Fourth Judicial District Court reversing the DHH’s denial of Medicaid benefits on behalf of Mary Dancy Brewton (“Mrs.Brewton”). We affirm.

In January 2003, Mrs. Brewton was admitted to Chateau Living Center for long-term nursing care with Medicaid as her payment source. Her husband, Marvin L. Brewton (“Mr.Brewton”), remained in the family home until April 2003, when he entered Chateau as a private pay patient. The family home was placed on the market in July of 2003. In August 2003, the Brewtons entered into a Personal Care Service Agreement with three relatives, namely their niece, Cynthia Cheatwood; her husband, Roy Cheatwood (“Mr.Cheat-wood”); and a nephew, Campbell Morrison. By virtue of that agreement, the Cheatwoods and Morrison were to provide certain personal services to Mr. and Mrs. Brewton over the Lremainder of their lives. The Brewtons’ only child, a son, had died earlier in 2003. The agreement specified what services were to be provided and held that the providers would be compensated with a lump-sum payment of $150,000 after the sale of the home. At that time, Mr. Cheatwood also had general power of attorney to act on behalf of Mrs. Brewton. It is not disputed that the Brewtons did not have $150,000 at the time the agreement was confected.

The residence was sold in November 2003. On March 30, 2004, $109,478.78 was transferred to Mr. Cheatwood from the Brewtons’ checking account as partial payment pursuant to the personal care agreement. An additional debit of $8,826.44 was transferred to Mr. Cheatwood' in April 2004, also as payment under the agreement. DHH concluded that the total amount paid for services under the agreement was $118,805.22.

DHH became aware of the sale of the Brewton home in May 2004 when Mr. Brewton applied for Medicaid benefits. At that time, DHH also became aware of the Personal Care Service Agreement and of the payments made to the providers. DHH imposed a “transfer of resource for less than fair market value” penalty against the Brewtons. It was determined that the agreement “was not actuarially sound because recipients [were] unable to receive agreed services due to nursing home admission.” Mrs. Brewton’s penalty, which is the only one at issue, was for one-half of $118,805.02, or $59,402.61. However, DHH later determined that $17,688.84 of that amount was expended, in fact, for non-Medicaid covered expenses, with a total uncompensated transfer of $41,781.87. DHH terminated payments to the nursing home, and Mrs. Brewton was found to have been ineligible for Medicaid benefits for thirteen months, beginning March 2004.

DHH’s determination was appealed to an Administrative Law Judge (“ALJ”) who upheld the department’s decision. Mrs. Brewton then appealed to the |4district court, which reversed the decision of ALJ. It is from the ruling of the district court that DHH appeals.

In her findings of fact, the ALJ determined that Mrs. Brewton owed Mr. Cheat-wood $17,638.84 and that the transfer of the remaining $41,781.87 was for no compensation. In her analysis, the ALJ discussed the chronology of events involving the sale of the Brewton home and disbursal of the funds. In so doing, she held that the sequence of events indicated that Mrs. Brewton was ineligible for Medicaid funds from July 2003 through at least March 2004 and that the transfer of funds was made in order to qualify Mr. Brewton for Medicaid. Then, the ALJ held that the services to be provided in the Personal Service Agreement were already provided to Mrs. Brewton by Medicaid when the agreement was entered into and, thus, could have no value. She held that the fund transfer, which occurred more than seven months after the agreement was signed and four months after the sale of the house, supported her conclusion.

The district court found, in its cogent Reasons for Judgment, that the only issue properly before the ALJ was whether or not the transfer of funds from Mrs. Brew-ton to the providers was, in fact, uncompensated so as to trigger the penalty. The court found that simply asserting the proposition that any personal care services rendered to a nursing home resident are of no value when the facility is receiving Medicaid benefits is unreasonable and relied on the analysis found in Reed v. Missouri Dep’t of Soc. Serv.

DHH alleges the trial court was incorrect in reversing the ALJ’s holding that Mrs. Brewton’s home became a countable resource when it was placed on the market in July of 2003. DHH further alleges that the court erred when it failed to [fifind the transfer of the funds from the sale of the home was a prohibited transfer of resources.

The exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in LSA-R.S. 49:964(G) of the Administrative Procedure Act. Section 964(G) provides that a court can reverse an agency’s decision if the appellant’s substantial rights have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

On our review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of a court of appeal.

The applicable law is as follows: An individual who transfers his resources for less than full value may be subject to a period of Medicaid Long Term Care ineligibility. 42 U.S.C. § 1396p(e)(l); Medicaid Eligibility Manual (“MEM”) Section I-1674. The months of ineligibility from the date of transfer is computed |fiby taking the total, cumulative uncompensated value of assets transferred and dividing by the state’s average private pay facility cost, rounded down. “Uncompensated value” is the difference between the fair market value of the asset on the date of transfer and the amount received for that asset. MEM Sections 1-1674, 1675. “Valuable consideration” means that which an individual receives in exchange for his or her right or interest in some act, object, service, or other benefit which has a tangible and/or intrinsic value to the individual that is roughly equivalent to or greater than the value of the transferred asset. Id. Compensation includes items and/or services received by the individual at or after the time of transfer in exchange for the resource, as well as services received prior to the transfer of resources if such services were provided under a binding contract between the parties. Considering such contracts, the value of the compensation is the gross amount paid or agreed to be paid, and is based on the agreement, the expectation of the parties at the time of transfer, and the form of compensation. Id. Relatives and family members can legitimately be paid for care they provide. MEM Section 1674.

We agree with the trial court’s finding that, in the record on appeal, there is no indication that the parties disputed the form of the Agreement, insofar as it complied with all of the requirements of a Personal Services Contract under Section 1-1764 of the MEM. As found in the Reasons for Judgment,

[fjurther, there was no claim by the DHH that the services recited therein were not, in fact, provided; nor that the providers expended less time providing such services than was contemplated in the Agreement; nor that the rate of compensation to the providers or the compensation set forth in the agreement were unsound. Further, this Court agrees with plaintiff that although the ALJ found that Mrs. Brewton may have been ineligible for Medicaid from July of 2003 when her home became subject to a sales contract, this issue was not a part of the DHH’s original determination and |7therefore should not have been an issue at the hearing before her.

As we read the Reasons for Judgment, the trial court evidently concluded that the ALJ erroneously considered certain evidence regarding the sale of the Brewton residence in bolstering its conclusion. The record supports this determination. DHH’s case log summary, as well as its notification to Mrs. Brewton of its decision, discloses that DHH’s determination of ineligibility was based solely on its contention that the transfer of funds was uncompensated, i.e., the transfer of resources was below fair market value and because Mrs. Brewton agreed to services which were already provided as a Medicaid client in a nursing home.

In reaching her determination, the ALJ accepted the affidavits of the Cheatwoods and Morrison as to the services rendered. Although those witnesses were available for questioning, neither the ALJ nor DHH chose to examine them. The affidavits indicate that the Brewtons chose to have the Cheatwoods and Morrison manage their personal and financial affairs for the remainder of their lives. Mr. Cheatwood was given a Health Care Power of Attorney and a General Power of Attorney to carry out some of these arrangements. The affidavits disclose that many hours were spent rendering services to the Brewtons, which included taking care of regular financial arrangements as well as dealing with the sale of the home. For example, much time was spent cleaning, repairing, inspecting, and arranging for professional inspections prior to sale. Although it appears DHH allowed for monies actually expended, there is no indication in the record that it allowed for the actual work done by these relatives. Many other services were performed which are not duplicative of nursing home services: they replaced clothing lost in the home’s laundry, provided a phone and phone service |sfor the Brewtons, and obtained several hearing assistance devices for Mr. Brew-ton, who apparently had a problem keeping track of his hearing aids. They visited regularly to ensure that Mr. Brewton cooperated with the nursing staff, as he had some mental deterioration. On one occasion, Mr. Brewton checked himself out of the hospital where he was being treated and had to be physically returned, by the Cheatwoods, for continuation of necessary hospital care. They attended periodic conferences at the nursing home concerning the Brewtons’ ongoing care. They made funeral arrangements for the Brewtons at their request.

In addition, the Cheatwoods and Morrison did other acts such as visiting regularly, and, in attempting to help Mr. Brewton adjust to the loss of his son and his move to the nursing home, Morrison purchased a record player and radio, found CDs and other music that he enjoyed, and ordered cable television. They brought furniture from the Brewton home to the Brewtons’ room and replaced various personal items for them. When Mr. Brewton was hospitalized, they visited not only with him but with Mrs. Brewton, to reassure her and to keep her apprised of her husband’s condition. They rode in the nursing home van when the Brewtons were taken to their various medical appointments, provided holiday gifts, decorated their room, brought a pet to visit upon the Brewtons’ request, and dealt with Medicaid personnel.

As did the trial court, we find the reasoning in the Reed, case to be persuasive. There, the plaintiffs daughter performed services similar to the ones enumerated here. In finding these services to be valuable consideration for transfer of funds, the Reed court stated, “We find that these services, among others, support Reed’s independence, autonomy, well-being and care in ways that the facility’s ^services do not. They enhance Reed’s life in ways that the facility does not, and are above and beyond the care provided by the facility.”

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

      . 193 S.W.3d 839 (Mo.App.E.D.2006).

      . Volvo Trucks N.A., Inc. v. State, 04-302 (La.App. 5 Cir. 10/12/04), 886 So.2d 556, writ denied, 2005-0003 (La.3/11/05), 896 So.2d 73 and writ denied, 2005-0004 (La.3/11/05), 896 So.2d 73.

      . 193 S.W.3d at 843.


author: SUSAN M. CHEHARDY, Judge.

text:
    Elizabeth B. BLACK & Karen I. Brown v. Dequetta ANDERSON, Vonetta A. Brown, United Services Auto Insurance, ABC Insurance Company.
    No. 06-CA-891.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      J. Douglas Sunseri, Dawn Danna Marul-lo, Nicaud, Sunseri & Fradeila, L.L.C., Metairie, Louisiana, for Plaintiff/Appellant, Elizabeth B. Black.
    Patrick D. DeRouen, Laurie L. DeAr-mond Porteous, Hainkel & Johnson, New Orleans, Louisiana, for Defendant/Appel-lee, State Farm Mutual Automobile Insurance Company.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

| ¡.Plaintiff Elizabeth Black appeals a judgment dismissing her claims against her uninsured/underinsured motorists insurance carrier, State Farm Mutual Automobile Insurance Company. We affirm. FACTS

The record shows that Elizabeth B. Black and Karen I. Brown filed suit against Dequetta Anderson; Vonetta A. Brown; United Services Auto Insurance (“USAA”), liability carrier for Anderson; and ABC Insurance Company as liability carrier for Vonetta Brown. The plaintiffs sought recovery for injuries arising out of a January 22, 2004 collision between a vehicle owned and operated by Elizabeth Black was and a vehicle owned by Dequet-ta Anderson and operated by Vonetta A. Brown. Karen I. Brown was a guest passenger in Elizabeth Black’s vehicle at the time of the accident. The petition alleged that Vonetta Brown was grossly negligent, but made no allegation against Anderson except that she was owner of the vehicle negligently driven by Vonetta Brown and that USAA was Anderson’s automobile insurance carrier. The plaintiffs later voluntarily dismissed their petition as to Anderson without prejudice.

On December 13, 2005, Black filed a First Supplemental and Amending Petition, in which she named State Farm Mutual Automobile Insurance Company | a(“State Farm”) as her automobile liability carrier and uninsured/underinsured motorists insurance (UM) carrier. She alleged that State Farm is liable to her in “an amount greatly in excess of $50,000 ... for reasons stated in petitioner’s original Petition for Damages.” Karen Brown did not join Black in the supplemental and amending petition against State Farm.

On May 4, 2006, the plaintiffs filed a Full and Final Motion to Dismiss, With Prejudice that incorporated an order of dismissal. It stated as follows:

On motion of Elizabeth B. Black and Karen I. Brown, plaintiffs in the above and [sic] entitled and numbered matter, through the undersigned counsel of record, here and [sic] who desires [sic] to dismiss the said CAUSE with prejudice, with USAA to pay court costs associated with the bringing of this action.
All costs and commissions due the Clerk of court of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, have been paid as evidenced by the certificate of that officer annexed hereto and made a part of this motion.
IT IS ORDERED, ADJUDGED AND DECREED, that the above entitled and numbered CAUSE be and the same is hereby DISMISSED, with prejudice, with USAA to pay court costs associated with the bringing of this action. [Boldface, capitals and underlining in original.]

The district court signed the order of dismissal on February 7, 2006.

On May 6, 2006, State Farm filed a Motion for Order of Full and final Dismissal With Prejudice. In it, State Farm requested the court to enter an order stating that the plaintiffs’ Full and Final Motion to Dismiss, With Prejudice, signed by the court on February 7, 2006, constitutes a full and final dismissal of any and all causes of action asserted by the plaintiffs, specifically Elizabeth B. Black, against her alleged uninsured/underinsured motorist carrier, State Farm Mutual.

State Farm asserted that because the motion and order to dismiss did not reserve plaintiffs rights to proceed against any other party or person, named or not | ¿named, specifically State Farm, the action brought against State Farm as Black’s alleged uninsured/underinsured motorist carrier, should be dismissed with full prejudice and plaintiffs precluded from asserting any further claims against State Farm.

Black filed an opposition to the State Farm’s motion, and State Farm filed a supplemental memorandum in support of its motion. Both parties attached various documents to their pleadings as exhibits. State Farm attached a copy of the General Release, Receipt and Indemnity Agreement signed by Elizabeth Black on January 10, 2006.

There was a hearing on State Farm’s motion to dismiss on June 30, 2006. Counsel for both sides argued to the court and referred to language in the settlement agreement that preceded the filing of the Full and Final Motion to Dismiss, but no evidence was admitted on the record.

On August 2, 2006 the trial court granted State Farm’s motion, thereby dismissing Black’s UM claim with prejudice. In written reasons for judgment, the court said:

The issue before the Court is whether the language contained in the dismissal clearly evidenced an intention to release State Farm. The Court concludes it did. After a close review and analysis of the language, the Court finds it to be so broad it covers any liability of any persons arising from this accident. Furthermore, plaintiff neither struck out the expansive language nor made any attempt to limit it to USAI [sic] and the defendant.
Black appeals.

ASSIGNMENTS OF ERROR

On appeal Black contends the trial court erred because the law no longer requires that a party who enters into a transaction or compromise with one of several obligors must expressly reserve rights against co-obligors. Thus, Black | Basserts, under La. C.C. art. 1803 a transaction or compromise with one obligor does not terminate a soli-dary obligation, but merely benefits the other solidary obligors for the portion of the released obligor. Black also contends the settlement documents should be interpreted according to the parties’ true intent, and her supplemental petition against State Farm shows she never intended to release her UM carrier when she released USAA. Finally, she argues the trial court erred when it failed to apply the exception to the prohibition against submitting parol evidence to determine the intent of the parties.

In response to Black’s appeal, State Farm asserts the trial court did not err in finding that the language contained in the settlement documents was so broad it covered the liability of any person arising from the subject accident. Specifically, the plaintiff executed a release that released all claims against any persons who might be responsible for the acts or omissions of the tortfeasors, at no time limiting or editing the language of the release to reserve any and all rights that she may have had to proceed against State Farm. Further, the plaintiff executed a specifically-drafted release, not a preprinted form release, requiring that the release be given its full legal effect. State Farm further contends the trial court did not err regarding consideration of parol evidence because no ambiguities existed within the release, and the dismissal, which would constitute parol evidence, affirms the intent of the release.

LAW AND ANALYSIS

The plaintiff is correct in stating the law does not require a reservation of rights against solidary co-obligors. “[B]y Acts 1984, No. 331, the Legislature changed the law which had previously required an express reservation of rights when an obligee entered into a compromise with one of several solidary obligors.” 6Weber v. Charity Hosp. of La. at New Orleans, 475 So.2d 1047, 1051 n. 4 (La.1985).

Under La.C.C. Art. 1803, effective January 1, 1985, the remission of the debt by the obligee in favor of one obligor or the compromise between the obligee and one obligor does not extinguish an obligation which is solidary, but only benefits the other solidary obligors to the extent of the portion of the released obligor. The amendment eliminated the prior requirement of an express reservation of rights, which had been unanimously criticized by French and Louisiana scholars. See comments to La.C.C. Ait 1803.

Id.

However, that does not benefit the plaintiff in this situation. Parties must introduce evidence to support their claims and defenses. Documents attached to pleadings are not evidence. Neither party in this case introduced the settlement document as evidence at the hearing on State Farm’s motion.

An appellate court must render its judgment upon the record on appeal. La.C.C.P. art. 2164. Arguments and pleadings are not evidence. In re Melancon, 2005-1702 (La.7/10/06), 935 So.2d 661, 666.

A Court of Appeal is a court of record, which must limit its review to evidence in the record before it. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Even after the record has been transmitted to the appellate court, the record can be supplemented by stipulation of the parties, by the trial court, or by order of the appellate court, only if the evidence was properly filed into the record in the trial court. [Citations omitted.]

Hover v. Farber, 05-613, pp. 3-4 (La.App. 5 Cir. 1/31/06), 922 So.2d 637, 638.

Except for a motion for summary judgment (where the court may consider the entire record, including pleadings, La. C.C.P. art. 966), or an exception of no cause of action (where the court may consider only the petition, La.C.C.P. art. 931), on any other motion or exception the parties must introduce evidence when |7necessary to support their arguments. Qf. La.C.C.P. arts. 930, 931, 963. Therefore, the settlement document was not before the trial court.

Considering State Farm’s motion solely on the basis of the Full and Final Motion to Dismiss and the order signed by the court on February 7, 2006, we find no error in the trial court’s determination that the order dismissed the entire action, including Black’s claims against State Farm.

Even if we consider the language of the settlement documents out of an abundance of caution, we find the trial court correctly granted State Farm’s motion to dismiss.

The settlement document signed by Black states as follows, in pertinent part:

That the undersigned, ELIZABETH B. BLACK, for the sole consideration of the sum of TWENTY THOUSAND AND NO/lOO ($20,000.00) DOLLARS, in hand paid, the receipt of which is hereby acknowledged, do hereby release and forever discharge Dequetta Anderson, Vonetta A. Brown, and all those for whose acts and omissions any of said parties might be responsible, all persons who might be responsible for the acts and omissions of said parties and all of their insurers, including, without limitation, United Services Automobile Association, of and from any and all claims or further claims, or demands of whatsoever kind or nature, for or because of any matter or thing done, omitted, or suffered to be done by Dequetta Anderson, Vonetta A. Brown, and all those for whose acts and omissions any of said parties might be responsible, all persons who might be responsible for the acts and omissions of said parties and all of their insurers, including, without limitation, United Services Automobile Association, prior to and including the date hereof and particularly on account of any and all claims or further claims, which I have or may have for injuries, damages, loss or expenses, regardless of the kind or nature, as a result of the automobile accident which occurred on or about January 22, 2004, on Louisiana Highway 3152 (Clearview Parkway), at op near its intersection with Citrus Boulevard, near Milepost 901.0; a distance of approximately 1.0 miles south of U.S. Highway 61 (Airline Drive), in the Parish of Jefferson, State of Louisiana.
* * *
|STHE AFORESAID PAYMENT is also received in full compromise and settlement of the matter entitled: Elizabeth B. Black and Karen I. Brown versus Dequetta Anderson, Vonetta A. Brown, United Services Auto Insurance Company and ABC Insurance Company, bearing suit Number 615-553, filed in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, and allotted to Division “E”, and I, ELIZABETH B. BLACK, do hereby instruct my counsel of record ... to execute and file an appropriate motion dismissing said suit, with prejudice, with USAA to pay court costs and filing fees for the bringing of this action.
THE FOREGOING PAYMENT is also received in full compromise and settlement of any and all claims or further claims that I, Elizabeth B. Black, have or may have against the said Dequetta Anderson, Vonetta A. Brown, and United Services Automobile Association, under the policy or policies of insurance issued to or providing insurance coverage to Dequetta Anderson, Vonet-ta A. Brown, or myself, whether under the liability, medical payment, uninsured or underinsured portion, or any other feature of said policy, or policies as a result of the aforesaid accident. [Boldface and italics in original; underlining added.]

As discussed above, under La.C.C. art. 1803 a transaction or compromise with one obligor does not terminate a solidary obligation, but merely benefits the other soli-dary obligors for the portion of the released obligor. Nevertheless, a reading of the language in the General Release, Receipt and Settlement Agreement evinces nothing other than an intent to settle and dismiss all claims against anyone arising of the accident made the basis of the lawsuit. In particular, the language of the last paragraph quoted establishes such intent:

... full compromise and settlement of any and all claims or further claims that I, Elizabeth B. Black, have or may have against the said Dequetta Anderson, Vonetta A. Brown, and United Services Automobile Association, under the policy or policies of insurance issued to or providing insurance coverage to Dequetta Anderson, Vonet-ta A. Brown, or myself, whether under the liability, medical payment, uninsured or underinsured portion, or any other feature of said policy, or policies as Ra result of the aforesaid accident. [Italics added; bold-face in original.] .

Accordingly, we find no error in the trial court’s ruling. The judgment is affirmed. Costs of this appeal are assessed against the appellant, Elizabeth B. Black.

AFFIRMED.


text:
    STATE of Louisiana v. Percy M. TAYLOR.
    No. 06-KA-839.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Juliet Clark — Appellate Counsel, Assistant District Attorneys, Gretna, Louisiana, Appellee, State of Louisiana.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Appellant, Percy M. Taylor.
    Percy M. Taylor, Angola, Louisiana, Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| aThis is defendant’s third appeal. Defendant was convicted of distribution of counterfeit cocaine on September 24, 2003, and subsequently sentenced to three years imprisonment. His conviction and sentence were affirmed on appeal. State v. Taylor, 04-200 (La.App. 5 Cir. 10/26/04), 888 So.2d 272, writ denied, 04-3162 (La.4/1/05), 897 So.2d 601.

On October 29, 2004, defendant was adjudicated a fourth felony offender and received an enhanced sentence of life imprisonment. On appeal, his multiple offender adjudication was affirmed but his sentence was vacated and the matter remanded for resentencing. State v. Taylor, 05-280 (La.App. 5 Cir. 12/27/05), 920 So.2d 287. On remand, defendant was resentenced to twenty years without the benefit of probation or suspension of sentence.

Defendant now challenges his twenty-year sentence. In both his counseled and pro se briefs, defendant argues his enhanced twenty-year sentence as a fourth felony offender is excessive. He contends the trial court erred in failing to deviate lsfrom the mandatory minimum sentence under State v. Dorthey, 623 So.2d 1276 (La.1993). He maintains a downward deviation is warranted because he has been diagnosed with two types of mental illness: schizophrenia and post-traumatic stress disorder. Defendant further asserts that a reduced sentence is warranted because his criminal history consists mainly of drug offenses in the 1980s with only one offense against a person, a simple robbery almost twenty years ago. He suggests that he turned to drugs to medicate his symptoms of schizophrenia. Defendant contends that the mandatory minimum twenty-year sentence is too severe based on his mental illness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Stewart, 03-920 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1028, writ denied, 04-0449 (La.6/25/04), 876 So.2d 832. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.

|4A mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 342, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). In State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993), the Louisiana Supreme Court specifically held that when a trial court determines the minimum sentence mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. Id. The burden is on the defendant to rebut the presumption of constitutionality by showing:

[h]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, supra at 676, quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

Downward departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 132. The trial court must be mindful of the goals of |fithe Habitual Offender Law, which are to deter and punish recidivism. State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 384.

In this case, defendant was adjudicated a fourth felony offender based on his underlying conviction for distribution of counterfeit cocaine and three predicate convictions including distribution of cocaine in 1995, possession of heroin in 1989, and simple robbery in 1985. State v. Taylor, 05-280 (La.App. 5 Cir. 12/27/05), 920 So.2d 287. As a multiple offender, his sentencing range was 20 years to life. La. R.S. 15:529.l(A)(l)(c)(i). Defendant received the minimum sentence of 20 years.

At the sentencing hearing, defendant offered various exhibits including: 1) a psychiatric evaluation report from West Jefferson Mental Health Center, in which Dr. Richard Bergeron concluded defendant suffered from schizophrenia and mental retardation; 2) a report from Dr. Rafael Salcedo, in which Dr. Salcedo concluded defendant was incompetent to proceed to trial on the underlying offense; 3) a subsequent report from Dr. Salcedo, in which Dr. Salcedo determined defendant was competent to proceed to trial and concluded defendant suffered from Psychotic Disorder NOS, in remission, and Borderline Intellectual Functioning; 4) a report from Dr. Sarah DeLand, who performed a psychiatric evaluation of defendant at the request of defense counsel and concluded defendant suffered from Schizophrenia and Post Traumatic Stress Disorder; 5) educational test review results from Louisiana State Penitentiary Education Department, which showed he tested at a third-grade level; and, 6) various certificates of accomplishment earned by defendant while incarcerated.

In the present case, the trial judge did not impose the maximum sentence of life but rather imposed the minimum sentence of 20 years. Defense counsel argued at the sentencing hearing that defendant’s mental condition and the nature of his |ncrimes warranted a downward deviation from the mandatory minimum sentence. When imposing sentence, the trial judge stated a downward deviation from the mandatory minimum sentence was not warranted under Dorthey based on the evidence presented. The trial judge specifically stated that he considered defendant’s mental illnesses and defendant’s accomplishments during incarceration, which moved him to impose the minimum sentence. The trial judge also noted that defendant’s history showed that he habitually committed crimes when he was not incarcerated and found there was a likelihood that defendant would continue to commit crimes if he was given a lesser sentence that would place him back into society, which militated against a downward departure.

As noted above, a court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. State v. Johnson, 709 So.2d at 676. The record before us reveals that the trial judge did not err in refusing to deviate from the mandatory minimum sentence because defendant did not present sufficient evidence to rebut the presumption of constitutionality.

The record demonstrates that, since the 1980s, defendant has been committing crimes either while on parole or within a short time of being released from parole. Despite defendant’s claim that most of his prior crimes were drug offenses, the record shows his criminal history includes a purse snatching that was reduced to simple robbery and an armed robbery that was also reduced to simple robbery.

Additionally, although defendant claims that his sentence is too severe because his underlying offense, selling fake drugs, was relatively insignificant, the Louisiana Supreme Court has stated that, “[tjraffic in counterfeit drugs involves most of the danger to society as does the traffic in real drugs.” State v. Pierre, 500 7So.2d 382, 384 (La.1987). Further, the mere allegation of being a non-violent habitual offender and a drug addict is not sufficient to find the mandatory minimum sentence excessive. State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 227, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388.

Furthermore, in State v. Hart, 397 So.2d 518 (La.1981), the Louisiana Supreme Court upheld a defendant’s 75-year sentence for armed robbery and his maximum 50-year, sentence for attempted first degree murder despite his diagnosis as a schizophrenic. Despite the defendant’s mental condition, the supreme court concluded the trial court did not manifestly abuse its broad sentencing discretion. Also, in State v. Allen, 478 So.2d 589 (La.App. 2 Cir.1985), writ granted, 491 So.2d 12 (La.1986), affirmed as, amended, 496 So.2d 301 (La.1986), the Second Circuit upheld the defendant’s maximum 50-year sentence for attempted first degree murder despite the defendant’s argument that the trial court did not consider his mental problepis. The Second Circuit noted the defendant’s extensive mental health treatment records, which showed he was a schizophrenic, were considered by the trial court as evidenced by the trial court’s statement that defendant’s mental illness could not mitigate the sentence because of the seriousness of the offense.

Finally, Dr. DeLand, defendant’s psychiatric expert, opined that defendant was able to distinguish right from wrong at the time of the offense. Based on the foregoing, we find that, in this case, defendant did not rebut the presumption of constitutionality and, as such, the trial court did not abuse its wide discretion in refusing to deviate from the mandatory minimum twenty-year enhanced sentence.

By his second pro se assignment of error, defendant challenges the validity of one of his predicate pleas on the basis that he was coerced into pleading guilty and was not advised of his right against self-incrimination. He claims this Court overlooked this error in its error patent review in his second appeal. We note that |sthe validity of defendant’s predicate pleas was an assigned error in defendant’s second appeal, which was discussed in detail. See, State v. Taylor, 05-280 (La.App. 5 Cir. 12/27/05), 920 So.2d 287, 290-294.

Finally, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920. Our review of the proceedings conducted on remand reveals no error.

AFFIRMED.

      . The facts of defendant’s underlying conviction can be found in this Court’s prior opinions in this matter. State v. Taylor, 04-200 (La.App. 5 Cir. 10/26/04), 888 So.2d 272, writ denied., 04-3162 (La.4/1/05), 897 So.2d 601 and State v. Taylor, 05-280 (La.App. 5 Cir. 12/27/05), 920 So.2d 287.

      . Defendant has filed a writ with the Louisiana Supreme Court seeking review of this Court's ruling in his second appeal. State v. Taylor, No.2006-KO-859. As of the date of this opinion, the supreme court has not ruled on defendant’s writ application.


author: WALTER J. ROTHSCHILD, Judge. WICKER, J.,

text:
    Christel WILLIAMS v. A DAY TO REMEMBER INVITATIONS, L.L.C. (a/k/a A Day to Remember a/k/a A Day to Remember Garden Club) and Dawn Waterhouse.
    No. 06-CA-757.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      Travis J. Turner, Walter C. Dumas, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

12Plaintiff, Christel Williams, appeals from a summary judgment rendered in favor of defendants, thereby dismissing plaintiffs suit. For the reasons stated herein, we affirm the trial court’s judgment.

Factual and Procedural History

On November 18, 2005, plaintiff filed the present lawsuit for breach of contract and damages against defendants A Day to Remember Invitations, L.L.C. (a/k/a A Day to Remember a/k/a A Day to Remember Garden Club), and Dawn Waterhouse. Plaintiff alleged that on July 19, 2005, she entered into a contract and rental agreement with defendants to rent their facility for her birthday party which was to be held in Jefferson Parish on October 1, 2005. She alleged that she tendered a down payment in the amount of |s$400.00 to defendants on July 20, 2005, and paid the remaining balance of $1,900.00 on August 8, 2005.

Plaintiff alleged that due to the effects of Hurricanes Katrina and Rita which struck the area on August 29, 2005 and September 24, 2005, respectively, she was forced to evacuate and relocate to Houston, Texas. She alleged that the mandatory evacuation continued through October 1, 2005, and she was therefore unable to participate in her birthday party scheduled for that date at defendant’s facility. She thus sought return of full value of the contract.

Defendants initially brought an exception of no cause of action which was denied by the trial court. Defendants then filed an answer to the petition and also reconvened against Ms. Williams to recover attorney’s fees expended in this litigation as provided for in the agreement between the parties. Defendants subsequently brought a motion for summary judgment arguing that plaintiff failed to prove that she would be able to sustain her burden of proof on trial of the merits and that defendants are therefore entitled to judgment as a matter of law.

Plaintiff filed an opposition to the defendants’ motion arguing that discovery was not yet complete as there was an outstanding motion for protective order as to a discovery request. Plaintiff also attached to the opposition copies of the declarations of a state of emergency and all extensions issued by the Parish of Jefferson on August 27, 2006, September 19, 2006 and September 26, 2006.

14The matter was heard by the trial court on May 9, 2006. By judgment rendered on May 24, 2006, the trial court granted defendants’ motion for summary judgment. On motion of plaintiff, the trial court assigned reasons for judgment on June 20, 2006. Plaintiff now appeals from this judgment.

Law and Discussion

Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hosp., 639 So.2d 730, 750 (La.1994); Moody v. United Nat'l Ins. Co., 98-287 (La.App. 5 Cir. 9/29/98), 743 So.2d 680, writ denied, 98-2713 (La.12/18/98), 734 So.2d 639.

An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

The rules governing summary judgments are found in La.C.C.P. art. 966 and 967. A motion for summary judgment shall only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The summary judgment procedure is favored under our law. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to | ¡produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, 609-610. When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967.

The record in this case contains the contract and rental agreement executed by the parties on July 19, 2005. Both parties rely on Paragraph 4 of the agreement, which provides in pertinent part as follows:

4. This agreement is subject to labor troubles, strikes, accidents, government (federal, state or municipal) action, disruption of supplies and other acts of God, whether enumerated herein or not, beyond the control of the management, preventing or interfering with performance. If the foregoing prevents ADRGC from fulfilling this contract, all payments made by Renter will be refunded to Renter and neither party shall have any further liability.

In their motion for summary judgment, defendants argue that this provision of the agreement requires plaintiff to prove that defendants were unable to fulfill the terms of the contract. Defendants submitted several affidavits, including one from Dawn Waterhouse, the owner of the business, which stated that A Day to Remember Garden Club was open and fully staffed on the scheduled date of the party, October 1, 2005, and was therefore able to fulfill the terms of the contract. The affidavits also state that plaintiff declined defendants’ offer to reschedule her party on a later date or to transfer the party to a family member. Plaintiff failed to produce any evidence which contradicted these affidavits, and she did not submit her own affidavit disputing any of the assertions made by defendants’ witnesses.

|r,In granting the summary judgment, the trial court cited plaintiff’s failure to submit any affidavits or other evidence that defendants’ facility was not open or capable of fulfilling the contract and agreement on October 1, 2005. Applying the above-cited law and standard of review, we find that the trial court’s ruling is correct.

Continuance

Plaintiff first argues that the grant of the Motion for Summary Judgment was premature because they did not have adequate time to complete discovery. However, the mere contention of an opponent that he lacks sufficient information to defend a summary judgment motion and that he needs additional time to conduct discovery is insufficient to defeat the motion. Bass Partnership v. Fortmayer, 04-1438 (La.App. 4 Cir. 3/9/05), 899 So.2d 68, 73, citing Crocker v. Levy, 615 So.2d 918 (La.App. 1 Cir.1993). Further, there is no absolute right to delay trial court’s consideration of a summary judgment motion until discovery is completed; rather, the trial judge has discretion to issue a summary judgment or to require further discovery. See, Orillion v. Alton Ochsner Medical Foundation, 97-115 (La.App. 5 Cir. 5/28/97), 695 So.2d 1063, 1065, citing, Smith v. Estrade, 589 So.2d 1158 (La.App. 5 Cir.1991). Absent peremptory causes, the decision to grant or deny a continuance is within the sound discretion of the trial judge whose ruling will not be disturbed on appeal absent a clear showing of abuse of that discretion. Douglas v. Shabuba, Inc., 38,260 (La.App. 2 Cir. 5/12/04), 874 So.2d 377, 380.

In support of the motion for continuance, plaintiff argued that counsel did not receive a copy of defendants’ motion until April 25, 2006 and that the summary judgment hearing was set for May 9, 2006. Plaintiff also [-relied upon the fact that during this time, defendants’ had filed a motion for protection order regarding the taking of depositions.

Although plaintiff filed an opposition to the motion for summary judgment, she claimed at the hearing that she had not been able to depose Dawn Waterhouse or the other affiants who stated that defendants’ facility was open on the date of the scheduled party and that plaintiff declined an offer to reschedule the event or to transfer it to a family member. The trial court noted during the hearing on this issue that although plaintiff alleged that the deposition of these witnesses was necessary to resolve the factual issues, plaintiff had not submitted her own affidavit in opposition to the summary judgment which presumably would have placed defendants’ factual issues in dispute. We find that plaintiff had sufficient time to conduct the necessary discovery in this case. Our review of the record fails to show that the trial court abused its discretion in denying plaintiffs’ motion to continue in this case.

Summary Judgment

Plaintiff next contends that defendants could not have fulfilled their contract because they were not open on the date of the party, October 1, 2006. Plaintiff also contends that the trial court prematurely granted summary judgment in this case where there was reasonable doubt as to whether the party could have been held on the scheduled date. However, the law is well-settled that once the moving party presents an absence of factual support for one element of the non-moving party’s claim, the burden shifts to the non-moving party who may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial.

|RIn the present ease, plaintiff will have to prove at a trial of this claim that defendants failed to fulfill the contract to host a party for plaintiff on October 1, 2005. However, in support of their motion for summary judgment, defendants submitted several affidavits of individuals who stated they had personal knowledge of defendants’ business and further stated that defendants’ facility was open and fully staffed on October 1, 2006. The affidavits also stated that defendants’ facility reopened after Hurricane Katrina on September 18, 2005 and did not close for Hurricane Rita. Further, the affidavits stated that although defendants offered to reschedule plaintiffs event, plaintiff declined this offer.

Although plaintiff disputes the content of these affidavits, the record indicates that she failed to submit an affidavit or any other evidence which would have placed any of these facts at issue. The only evidence offered by plaintiff was copies of the emergency orders of Jefferson Parish indicating that the parish was under a state of emergency from August 27, 2005 until November 16, 2005. However, this evidence fails to indicate that defendants’ facility was not open on October 1, 2005, and fails to show that defendants could not have fulfilled their contract with plaintiff on that date.

Although we recognize that the area surrounding defendants’ facility was adversely affected by Hurricanes Katrina and Rita, we are nevertheless bound by the well-settled law regarding summary judgments. We have carefully reviewed the record in this matter, and we fail to find any genuine issue of material fact as to whether the hurricanes or the ensuing emergency orders prevented defendants from fulfilling the terms of the contract in question. Further, defendants’ evidence that plaintiff declined their offer to reschedule was uncontroverted.

| ^Accordingly, we conclude that plaintiff is not entitled to a refund of the contract price and that defendants are entitled to a judgment as a matter of law. The summary judgment rendered by the trial court in favor of defendants A Day to Remember Invitations, L.L.C. (a/k/a A Day to Remember a/k/a A Day to Remember Garden Club) is correct and is hereby affirmed.

AFFIRMED.

WICKER, J., dissents.

WICKER, J.,

dissents.

|-i While I do not quarrel with the recitation of facts and law in the majority opinion, I dissent from the final decision. In my view the grant of summary judgment is premature. While I am mindful of the discretion afforded the trial court in its rulings on discovery issues and grants of continuances, I believe in the matter before us plaintiff deserved additional time for discovery to refute defendant’s assertions.

Plaintiff argued that she did not receive the motion for summary judgment until April 25, 2006 and the matter was set for hearing on May 9, 2006. She also relied on a defense motion for protective order restricting depositions. Accordingly, plaintiff asserts she was not able to depose defendant’s affiants who attested to the fact that the facility was fully prepared to host the event as scheduled.

Given the facts and the unusual circumstances presented by Hurricanes Katrina and Rita, I believe the plaintiff should have been granted a continuance for additional discovery. Therefore, I would reverse the grant of summary judgment and allow plaintiff additional time for depositions to resolve material issues of fact.

      . The record indicates that the base price of the contract was $2,500.00 for 100 persons. The record also shows that plaintiff paid a “non-refundable deposit” in the amount of $100.00 on the date the contract was signed, July 19, 2005.


author:
MAX N. TOBIAS, JR., Judge.
      BELSOME, J.,

text:
    Barbara HOLT v. Dr. Donald RICHARDSON and XYZ Insurance Company. In re Medical Review Panel Proceeding of Barbara Holt.
    Nos. 2006-CA-1323, 2006-CA-1324.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.
    Kevin D. Shearman, Metairie, LA, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Karen M. Fonta-na, Niles, Bourque & Fontana, L.C., New Orleans, LA, for Defendant/Appellee.
    (Court Composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

| ./The plaintiff/appellant, Barbara Holt (“Ms. Holt”), appeals from the summary judgment entered in favor of defendant/ap-pellee, Donald Richardson, M.D. (“Dr. Richardson”), on her claim of medical malpractice. After reviewing the record and applicable law, we affirm the judgment.

In her petition, Ms. Holt claims that in February 2001, Dr. Richardson installed a morphine pump in an attempt to alleviate her persistent pain. In October 2001, Ms. Holt noticed that the pump was protruding through the abdominal wall. She contacted Dr. Richardson, who allegedly told her that a stitch had worked its way out. When hot compresses did not resolve the problem, Ms. Holt went to the hospital where Dr. Richardson removed the pump, leaving a hole in her abdomen. In the months that followed, Ms. Holt suffered chronic illness and infection.

In March 2002, Ms. Holt maintains that it was discovered that the infection was caused by a piece of mesh that had been left in her when Dr. Richardson removed the morphine pump. Ms. Holt claims that she later developed a serious | .-¿infection that required additional medical treatment. On 5 September 2002, Ms. Holt filed a complaint with the Louisiana Patient’s Compensation Fund (“PCF”) against Dr. Richardson, alleging medical negligence with regard to his surgical implantation of the morphine pump and its subsequent removal.

The matter was submitted to a medical review panel, whose members unanimously concluded that Dr. Richardson had not deviated from the applicable standard of care as charged in the complaint. Specifically, the members of the panel found that: (1) the initial surgery performed was appropriate; (2) retained foreign bodies are a known consequence of the procedure; and (3) the subsequent surgery was done to remove the retained foreign body.

Ms. Holt thereafter instituted suit on 30 December 2004. Dr. Richardson subsequently filed an answer to the petition and followed with a motion for summary judgment. In the memorandum in support, Dr. Richardson chronicles a doctor-patient relationship that began in October 1995 when Ms. Holt presented with a history of cervical surgery for spinal stenosis. She had already undergone four surgeries related to her lumbosacral spine and had cervical and lumbar dorsal column stimu-lators in place since 1984. However, when she saw Dr. Richardson, the batteries of the stimulators were depleted. Over the years, many physicians treated Ms. Holt for failed back syndrome with chronic pain and she underwent more than 20 surgical procedures to address her pain, including multiple long-term placements of medical devices.

|4In July 2000, after numerous procedures to address the functioning of her medical devices, Ms. Holt sought an intra-thecal morphine pump. On 27 September 2000, Dr. Richardson, who was able to get the lumbar dorsal stimulator working again, saw Ms. Holt, but readings indicated that the batteries were low. Again, Ms. Holt requested implantation of a morphine pump.

In February 2001, Dr. Richardson performed surgery and placed a morphine pump just superficial to Ms. Holt’s abdominal musculature. The morphine pump was designed to remain in the body long-term, just as all of Ms. Holt’s other medical devices had been.

In October 2001, Ms. Holt developed a wound at the site of the morphine pump and home health was prescribed for wound care. Dr. Richardson removed the pump, noticing that since its implantation, Ms. Holt had lost weight, changing the body habitus and causing the pump to come very close to the skin; eventually it came through her skin due to a persistent cough secondary to pneumonia.

On 18 January 2004, Dr. Richardson propounded interrogatories requesting the identity of any experts who would testify at trial. Ms. Holt did not respond to the discovery. Thereafter, Dr. Richardson filed a motion for summary judgment on the basis that Ms. Holt could not carry her burden of proving medical negligence without the testimony of an expert witness to establish the standard of care, breach of that standard of care, and causation. In support of his motion, Dr. Richardson submitted the decision of the medical review panel, as well as affidavits from two of the panel members. In particular, John F. Schuhmacher, M.D. (“Dr. \ BSchuhmacher”) stated that there are certain medical devices or implements that are designed for long-term placement in the human body. In Ms. Holt’s case, the morphine pump and the fixation devices used (i.e., Dacron sac and mesh) were intended to remain in the body. Dr. Schuhmacher stated that mesh is commonly used in hernia repair because it becomes enmeshed with human tissue allowing for better healing and stability. Mesh is routinely left in the body permanently. In Ms. Holt’s case, the morphine pump was being removed because it had become mal-positioned over time; it was not medically necessary to then remove all associated mesh. In the absence of any medical reasons for further exploration, Dr. Richardson was not required to discover and remove every piece of mesh and/or Dacron sac placed in the prior surgery.

Ms. Holt opposed the motion, arguing that the pump had not been installed deeply enough in her abdomen. She further claimed that the mesh that Dr. Richardson negligently left in her caused serious infection and other injury. Relying on the Supreme Court case of Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228, Ms. Holt argued that she is not required to produce expert testimony in order to prevail on a medical malpractice claim when a physician does an obviously careless act, such as leaving a sponge in a patient’s body, from which a lay person could infer negligence.

In the documentation submitted in support of his motion for summary judgment, Dr. Richardson distinguished between an object negligently left in the body and an object that is purposefully placed in the body. To support the ^distinction, Dr. Richardson referred to the affidavits of the medical experts entered into the record. The trial court asked Ms. Holt if she had any expert witnesses who could speak to the issue of the mesh. Ms. Holt argued that the issue did not require expert testimony for a decision, as this was a “foreign body” case.

The trial court disagreed.

Have you talked to any — My problem is that I’ve got their expert saying that this is not considered a foreign body because of the manner in which it is used, not that it’s not a foreign body, but that it is not considered a foreign body because of the manner in which it is used.
My inclination is to grant the summary judgment. But I’ll hold off on granting the summary adjustment [sic]. How much time do you think you need to at least consult with other physicians to determine whether or not — what they suggest as relates to the use of and the appropriateness of leaving the mesh in?
What I’ll do is — This how I handle this. I’ll take it under advisement, okay, but what I’ll allow is — It won’t be considered truly under advisement until 60 days from now. Sixty days from now, plaintiffs counsel — By 60 days from now, so that we’re clear, plaintiffs counsel needs to have submitted evidence either contrary to what defense counsel says as it relates to the issue of the mesh, or, failing to do so, I’m gonna render on what’s in front of me. Okay?

On 7 April 2006, Ms. Holt requested an additional 15 days to retain an expert. When nothing further was filed, the trial court entered judgment in favor of Dr. Richardson on 16 May 2006.

The standard of appellate review of a motion for summary judgment is de novo.

|7The sole issue presented for consideration is whether expert testimony was required in this case. Ms. Holt, calling this a “foreign body” case, answers in the negative. However, Dr. Richardson answers in the affirmative because he argues that this is not a “foreign body” case; the material in question, surgical mesh, was purposefully and appropriately placed in Ms. Holt for long term, even permanent, retention. We note that this is an issue of first impression, not only in this circuit, but also in the state.

Pursuant to La. R.S. 9:2794, the plaintiff must prove in a medical malpractice case:

(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 ...
(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.

In Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228, however, the Supreme Court held:

The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). Failure to attend a patient when the circumstances demonstrate the serious ^consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. See id. at 719-20.

Id. at p. 9, 643 So.2d at 1234.

The question then is whether this is a case of such obvious negligence that no expert testimony is necessary for Ms. Holt to prevail at trial. Because no statute addresses this issue and no Louisiana cases exist to provide guidance, we have surveyed other states for cases on point. In Rockefeller v. Moront, 81 N.Y.2d 560, 601 N.Y.S.2d 86, 618 N.E.2d 119 (App.1993), the issue was whether a suture that was improperly affixed to an organ not involved in the operation for which the plaintiff sought medical treatment was a “foreign object” sufficient to delay accrual of the governing statute of limitations. After examining the issue, the court held that the suture was an item placed in the patient with the intention that it would remain to serve a continuing treatment function, i.e., securing the surgical closure, and thus was a “fixation device.” Id. at 566, 601 N.Y.S.2d 86, 618 N.E.2d at 123. See also, LaBarbera v. New York Eye and Ear Infirmary, 230 A.D.2d 303, 657 N.Y.S.2d 664 (1st Dept.1997). Although Rockefeller does not address the expert-testimony issue, it draws a clear distinction between a “foreign object” and a “fixation device.”

In Kenyon v. Miller, 756 So.2d 133 (Fla.App. 3 Dist.2000), the court considered the issue of whether the trial court properly gave the jury a res ipsa loquitur instruction in a surgical mesh case. Dr. Kenyon operated on Ms. Miller | pto repair an inci-sional hernia resulting from a previous hysterectomy. In making the repair, Dr. Kenyon utilized a surgical mesh that was intended to incorporate with the body tissue, adding additional support to the hernia’s closure site. A known complication of the procedure is that the mesh may become infected, not incorporate into the tissue, and require additional surgery to remove the infected mesh. Ms. Miller developed such an infection and Dr. Kenyon performed a second surgery to remove the infected portion of the mesh. Approximately a year later, the infection returned and another doctor performed a third surgery.

Ms. Miller filed a medical malpractice action against Dr. Kenyon, claiming that the doctor’s failure to remove all of the mesh originally placed in her constituted negligence. Conflicting expert testimony was presented at trial as to whether all of the mesh, or just the infected portion, should have been removed by Dr. Kenyon during the second surgery. Despite the conflicting testimony, Ms. Miller’s attorney requested that the court give the jury the res ipsa loquitur charge. Over objection, the court allowed the instruction. As a result, during closing argument, Ms. Miller’s attorney argued that expert testimony was unnecessary because the negligence spoke for itself. The jury was charged accordingly.

The jury returned a verdict in favor of Ms. Miller and, after Dr. Kenyon’s motion for new trial was denied, he appealed.

The court of appeal stated:

Moreover, the provision of section 766.102(4) that discovery of a “foreign body” such as surgical paraphernalia is prima facie evidence of negligence, is clearly inapplicable in a case such as this where the mesh was intentionally placed in Miller’s body as part of her treatment, and like screws, plates, pacemakers, and/or linartificial joints was intended to permanently remain in her body.

Id. at 136-37.

In Pogue v. Goodman, 282 Ga.App. 385, 638 S.E.2d 824 (2006), the court distinguished between a foreign object for purposes of tolling the statute limitations and a fixation device. At issue was a drug delivery catheter that Dr. Goodman had intentionally placed in the plaintiffs spine. The plaintiff alleged that the catheter had been placed improperly. The court interpreted “foreign object” to include only those objects that are inadvertently left within a patient’s body. However, where an object is purposely placed in a body, it cannot said to be “left,” which connotes a non-purposeful act. Id. at 388, 638 S.E.2d at 826 (citing Shannon v. Thornton, 155 Ga.App. 670, 272 S.E.2d 535 (1980)). That Dr. Goodman may have negligently placed the catheter did not turn the medical device into a foreign object.

Finally, in Beckel v. Gerber, 578 N.W.2d 574 (S.D.1998), a distinction was made by the South Dakota Supreme Court between a foreign object and a medical device, for the purposes of the tolling of the statute of limitations relating to medical malpractice claims. Ms. Beckel underwent a hysterectomy during which a metal hemoclip was negligently placed over her ureter, eventually causing her to lulose the use of one of her kidneys. Ms. Beckel sued Dr. Gerber, her surgeon, for malpractice, but her complaint was dismissed on summary judgment after the trial court held that the statute of limitations had run.

On appeal, the Supreme Court stated:

We find the above cases persuasive in defining what constitutes a “foreign object” so as to create a duty to disclose its presence. In Alberts [v. Giebink, 299 N.W.2d 454 (S.D.1980) ], we reversed a grant of summary judgment because there were issues of fact to resolve as to whether the pin was intended to remain in the patient’s knee and whether there was a duty to disclose. We hold that because the hemoclip was intended to remain in Marjorie [Beckel] permanently, it was not a “foreign object” for the purpose of tolling the statute of limitations and, thus, Dr. Gerber was under no duty to inform Marjorie that it was placed in her body.

Id. at 578.

We find the distinctions made between “foreign objects,” ie., only those objects temporarily used in the course of surgery, and “fixation devices,” ie., objects deliberately placed and left in a patient, highly persuasive. In the instant case, the surgical mesh was intended to remain in Ms. Holt permanently, absent infection. Therefore, we find that the mesh was a “fixation device” and not a “foreign body.” In addition, the real issue does not involve the initial placement of the mesh, but whether Dr. Richardson should have removed all the mesh when he removed only the infected material. That is not an issue that a layperson could decide without the aid of a medical expert. Thus, Ms. Holt cannot rely upon Pfiffner v. Correa, supra; she had to present expert testimony in order to defeat Dr. Richardson’s motion for summary judgment, especially in light of the evidence presented to support his motion. As she did not, we find that summary judgment was appropriately granted.

|iaBased on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

BELSOME, J., concurs.

BELSOME, J.,

concurs.

|,I respectfully concur in the result but write separately to note that the ruling with regard to the unusual set of facts in this ease does not in any way alter Pfiffner and its progeny, which continue to stand for the proposition that objects left in the body generally do not require expert testimony. Within the limited context of the circumstances in this case, however, the trial judge did not abuse her discretion in granting the motion for summary judgment.

      . We have found several Louisiana cases wherein surgical mesh was used to repair a hernia. See e.g., Post v. State, ex rel. Dept. of Health and Hospitals, 05-0256 (La.App. 4 Cir. 3/8/06), 926 So.2d 48; LeBlanc v. Walsh, 05-0528 (La.App. 5 Cir.2/14/06), 922 So.2d 1248; Welch v. Oakdale Community Hosp., 03-1014 (La.App. 3 Cir. 2/18/04), 866 So.2d 1072. We also note that in Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447, a physician was sued for malpractice for his failure to obtain informed consent from the patient to perform a hernia repair without using mesh to close the wound.

      . Section 766.102(4). Florida Statutes (1993) provides in pertinent part:
      (4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

      . Hemoclips are used in a manner and for a purpose similar to stitches and sutures.