author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Courtney MOSES.
    No. 05-KA-787.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 9, 2006.

      Harry J. Morel, Jr., Kim McElwee, Assistant District Attorney, St. Charles Parish District Attorney, Hahnville, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendant, Courtney Moses, appeals his conviction and sentence on charges of attempted armed robbery in violation of La. R.S. 14:27:64 and aggravated battery in violation of La. R.S. 14:34. For the reasons that follow, we affirm.

On June 5, 1996, the St. Charles Parish District Attorney’s Office filed a bill of information in case number 96-372 against the defendant, Courtney Moses, charging him with two counts of attempted armed robbery, violations of La. R.S. 14:27:64. On February 28, 1997, the State amended the bill of information to add count three charging the defendant with attempted first degree murder while engaged in the perpetration or attempted perpetration of a felony, a violation of La. R.S. 14:27:30. The defendant pled not guilty to all charges. On June 24, 1997, the State amended count three of the bill to charge the defendant with attempted |.-¡second degree murder with specific intent to kill, a violation of La. R.S. 14:27:30.1(A)(1). After a three-day trial, the defendant was found guilty as charged in count one of attempted armed robbery, not guilty in count two of attempted armed robbery, and guilty in count three of a responsive verdict of aggravated battery. On September 17, 1997, the defendant was sentenced to thirty-six years, at hard labor, without benefit of parole, probation, or suspension of sentence with credit for time served, for his attempted armed robbery conviction and to eight years, at hard labor, for his aggravated battery conviction, with credit for time served to run concurrently with his sentence on the attempted armed robbery conviction. The trial court also found defendant ineligible for diminution or reduction of sentence for good behavior because he committed crimes of violence.

Before considering the merits, we will address the timeliness of defendant’s appeal, as it pertains to this court’s jurisdiction. On its face, the appeal appears untimely.

After his sentencing, defendant retained new counsel who, on July 27, 1998, approximately ten months after sentencing, filed a motion for an out-of-time appeal alleging that trial counsel was ineffective in failing to file a notice of appeal. The trial court granted the motion. Appellate defense counsel took no further action. Service on appellate defense counsel was attempted unsuccessfully. Thereafter, on January 19, 1999, the defendant’s appeal was dismissed, at the request of the Clerk of Court, for failure to pay costs. At the time he dismissed the appeal, the trial judge stated he would reconsider the dismissal of the appeal, as the defense counsel had not received proper service.

|40n April 19, 2004, defendant filed a pro se Application for Post-Conviction Relief, Writ of Habeus Corpus, in which he requested an out-of-time appeal. On February 24, 2005, after a hearing, the trial court granted the defendant’s out-of-time appeal, to which the State did not object.

Generally, once the delays for appeal have lapsed, the defendant’s conviction and sentence become final and are not subject to review by ordinary appellate process. State v. Orgeron, 97-1054 (La. App. 5 Cir. 3/11/98), 708 So.2d 1242, 1243. The defendant must then seek reinstatement of his right to appeal through an application for post-conviction relief to the district court within the statutory period allowed. Id. At the time the defendant committed the offense and was convicted, no application for post conviction relief, including applications which sought an out-of-time appeal, were to be considered if filed more than three years after the judgment of conviction and sentence became final. La.C.Cr. P. art. 930.1.

Although defendant’s application appears to be untimely on its face, we find the application is in fact timely. We find the July 27, 1998 motion for out-of-time appeal may be treated as a timely application for post-conviction relief which resulted in the granting of an out-of-time appeal. Since the trial court stated it would reconsider the dismissal of the July 27, 1998 appeal, the defendant’s April 19, 2004 Application for Post-Conviction Relief may properly be treated as a motion to reconsider the dismissal and a supplementation of a prior Application for Post-Conviction relief, and therefore, timely. Id. In State v. Sampson, 02-909 (La.2/14/03), 841 So.2d 747, the Louisiana Supreme Court found that regardless of the [¿words used in its order, a district court can act within its discretion when it in effect orders supplementation of a timely-filed application for post-conviction relief, even if the supplementation does not arrive until after the expiration of the prescriptive period. Finally, the State did not object to the out-of-time appeal, nor has the State challenged the present appeal as untimely.

Accordingly, we find that the grant of the subsequent pro-se application for post-conviction relief constitutes a reconsideration of the trial court’s dismissal of a timely filed application for post-conviction relief.

Facts

At trial, Joyce Woodruff (“Joyce”) and David Woodruff (“David”) testified that on May 11, 1996, in St. Charles Parish, Joyce was driving their car home with David as a passenger. While driving, a tan, beige Mustang driven by a black male turned onto the road and appeared to swerve into their lane. Joyce blew her horn. The driver of the Mustang then followed them right on their bumper. When they arrived home, they waited in the car for a minute or two, and then started to get out. Joyce got out first and walked around the front of the car. After she got out of the car, she saw the black male in her yard. She looked away, and when she looked back, he was two or three feet away from her with a gun pointed in her face. He yelled, “Give me your wallet.” She yelled “No”, and pushed the gun away. The gun went off in her hand, and then he ran away. She had no doubt that he tried to kill her. The Woodruffs’ neighbor, Kenneth Ship-ley, asked if they were all right, and Joyce told him that she had been shot in the hand, and asked him to call 911. According to the Woodruffs, the bullet pulverized three-quarters of the major bone in Joyce’s hand, and fractured in half the remaining quarter of the bone. All of the nerves and tendons in that part of her hand were also damaged.

| (While in the hospital, Joyce identified the defendant in a photographic lineup as the man who shot her. She stated she was absolutely certain that the man depicted in the photo was the person who shot her. In addition, Joyce and David both identified the defendant, in the courtroom, as the man who attempted to rob them and shot Joyce.

Kenneth Shipley, a neighbor of the victims, testified that he was outside on the steps of his trailer when he heard some vehicles coming down Lussan Lane. He saw the Woodruffs’ car and a Mustang tailgating behind it. The Woodruffs pulled into their driveway and the Mustang went past their house, but he could hear the exhaust of the Mustang as it turned towards his house. He described the Mustang as an early 80s model with black trim molding down the side with a black grille; it had something hanging from the mirror, and either a missing or a dirty hubcap. Mr. Shipley also stated that the vehicle made a “unique sound,” because it had an exhaust problem. When he heard gunfire, he ran down the side of the house and he looked in the backyard. He saw David struggling up the back steps. He called 911, and said that his neighbor, Joyce, had been shot.

Detective Allen Wall, a detective with the St. Charles Parish Sheriffs Office, testified that, oh May 11, 1996, he investigated an attempted armed robbery and a shooting at the Woodruffs’ residence, in Luling, Louisiana. He spoke with Mr. Shipley and David Woodruff that evening, who gave him similar descriptions of the car that followed the Woodruffs. A vehicle fitting that description was later located at 239 Allen Street in Ama, Louisiana. Detective Wall later learned the owner of the vehicle was Anitra Harris. Ms. Harris gave permission for her car to be searched. The vehicle was started to ascertain if it made a unique sound. Mr. Shipley was present when the vehicle was started, and he identified the vehicle by both sight and its unique sound. Detective Wall testified that he could tell the car |7was recently used by the dew marks on the grass, and the lack of dew on the windows. David Woodruff was brought to the location and identified the vehicle; he also identified Courtney Moses, who was present on the scene. Detective Wall then advised Courtney Moses of his rights and placed him under arrest. The police never found the gun and the gunshot residue test on the defendant was inconclusive.

Courtney Michael Moses, the defendant, testified that on the night of May 11, 1996, he was at the home of Glenn Singleton, Sr. watching movies with some family and friends, and his girlfriend, Anitra Harris. When the police arrived, he went to the car to find out what was happening. He denied being in the car that night. However, he admitted that he normally drives Ms. Harris’ car, and that the car makes a different sound, like something is wrong with it. The defendant denied knowing the Woodruffs or being involved in the crime alleged.

Assignments of Error

First Assignment of Error:

Denial of a Mistrial

The defendant argues the trial court erred in denying his motion for a mistrial for two reasons: first, because the trial judge interjected himself during the trial, thereby abandoning his neutral role and appearing as an advocate for the State; second, because the trial judge incorrectly ruled on hearsay objections and therefore, allowed hearsay testimony to be admitted.

The defendant alleges that the trial judge interjected himself into the trial on three occasions: (1) by suggesting to the State, at a bench conference, exceptions through which hearsay testimony objected to would be admissible; (2) by stating at a bench conference he would not “carte blanche” say no hearsay statements; (3) by questioning a state witness during direct examination.

IsFirst, we will address the trial judge’s conduct during bench conference. During a bench conference, in response to a defense objection, the trial judge suggested that the proper hearsay exception to the objected to testimony was under Louisiana Code of Evidence article 803(1), present sense impression. Further, during the same bench conference discussing possible exceptions, the trial judge stated he was “not going to ‘carte blanche’ say no hearsay statements”. Defendant argues these comments reveal the trial judge had abandoned his role as a neutral referee for the role of advocate on the side of the State. Defendant further argues that the comments may have suggested to the jury the judge’s opinion on defendant’s guilt or his defense.

A judge may not comment on the facts of the case or give opinion as to the case in the presence of the jury. La.C.Cr. P. art. 772. However, La. C. Cr. P. art. 772 does not apply to “statements of the trial judge’s reasons for rulings on objections relating to the admissibility of evidence or to explain the purpose for which evidence is offered or admitted, provided the remarks are not unfair or prejudicial to the defendant ...” State v. Hubbard, 97-916 (La.App. 5 Cir. 1/27/98), 708 So.2d 1099, 1105, citing State v. Gabriel, 542 So.2d 528 (La.App. 5 Cir.1989), turit denied, 558 So.2d 566 (La.1990). Further, La. C. Cr. P. article 772 does not apply to bench conferences because they are not conducted in the presence of the jury so as to influence the jury’s determination of the case. Id. Moreover, comments made by the trial judge that may reveal criticism of the defense counsel do not constitute a reversible error when they are not made in the presence of the jury, therefore not influencing the verdict. Id at 1106.

In the instant case, the judge’s suggestions of possible exceptions to hearsay testimony are not considered error because they relate to the judge’s ruling and reasoning on objections to admitting testimony, and therefore, La.C.Cr. P. art. 772 | fldoes not apply. Further, the suggestions were made at a bench conference and were not prejudicial to the defendant; therefore, the trial judge did not err in suggesting possible hearsay exceptions at a bench conference.

The judge’s comment that he would not issue a “carte blanche” ruling on hearsay statements is also not in error. Rather, the comment only restated the proper trial procedure, requiring a trial judge to rule on the admission of testimony after trial counsel objects and states specific grounds for that objection. La. C.E. art. 103. Accordingly, we find the trial judge’s actions were proper.

We will next consider the issue of the trial judge asking a state witness questions. La.C.Cr.P. art. 772 states that “[t]he judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.” In State v. Williams, 375 So.2d 1379, 1381-1382 (La.1979), the Louisiana Supreme Court explained the no-judge comment rule in La.C.Cr.P. art. 772:

The no-comment rule does not bar a trial judge from asking clarifying questions in the presence of the jury; nevertheless, in the exercise of this power, the judge’s questioning must be cautiously guarded so as not to constitute an implied comment. State v. Nicholas, 359 So.2d 965 (La.1978). The judge may even question a witness as to a material matter which has been omitted, providing he does so in an impartial manner and conducts his examination in such a way that he does not indicate his opinion on the merits or any doubt as to the credibility of the witness. State v. Groves, 311 So.2d 230 (La.1975). See, generally, Joseph, Work of the Appellate Courts in 1974-75 Criminal Trial Procedure, 36 La.L.Rev. 605, 624-26 (1976).
However (whatever its wisdom), the legislative imposition of the no-comment rule represents a considered determination that the trial judge’s role is essentially as an impartial umpire in an adversary trial, rather than as an active participant in the development or presentation of evidence. Therefore, as we warned in State v. Wagster, 361 So.2d 849, 856 (La.1978):
“ * * * (Questioning of witnesses in a criminal jury trial by the judge is a practice to be avoided unless deemed indispensible to a fair |inand impartial trial. A judge should be constantly aware of the basic premise of a criminal trial which calls upon the State, not the judge, to prove the defendant’s guilt beyond a reasonable doubt. It is enough for the judge to impartially and wisely regulate the conduct of the trial without participating in the interrogation of witnesses, a practice fraught with danger of prejudice to the defendant.”

Therefore, a trial judge may ask clarifying questions but must be cautious in questioning a witness, so as not to imply comment on the facts. La.C.Cr.P. art. 772; State v. Burrell, 561 So.2d 692, 702 (La.1990).

The trial court questioned Detective Wall twice in response to defense objections:

DET. WALL:
I walked next door. I was also talking to Mr. Shipley at that time. Mr. Shipley was explaining to me what—
MR. MARINO:
Objection, Your Honor, as far as the hearsay nature of what Mr. Shipley said. It’s hearsay. Now, the exception—
MR. AUTHEMENT:
He’s right. Detective Wall, just testify as to what you learned, what you observed during your investigation.
Don’t say what you were told by someone else.
THE COURT:
How soon after the event did this happen did he tell you this?
DET. WALL:
This is immediately upon my arrival, Judge, within like, what, 20 minutes. THE COURT:
The objection’s overruled. Proceed.
MR. AUTHEMENT:
Approximately how far from David Woodruff was Courtney Moses at the time he made the identification?
DET. WALL:
At the most a car length.
| UMR. AUTHEMENT:
Was there any doubt in his mind?
DET. WALL:
None whatsoever.
MR. MARINO:
Objection, Your Honor. I’m going to object for [sic] the nature of the question. How can the Detective state what was in the mind of the individual?
MR. AUTHEMENT:
Because, Your Honor,—
THE COURT:
Wait, wait. I don’t understand the objection.
MR. MARINO:
He’s asking him—
THE COURT:
No. You have to give — You have to label the objection so that I can look it up. What’s the objection?
MR. MARINO:
The hearsay nature of the statement, Your Honor; and it’s beyond his ability to be able to testify what’s in someone’s mind.
THE COURT:
Detective Wall, did you hear him say anything, or are you guessing at what was in his mind?
THE WITNESS:
He answered my direct question, sir.
THE COURT:
Okay. It’s overruled. Answer the question.
MR. MARINO:
Your Honor, may we approach the Bench?
THE COURT:
Yes.
(On-the-Record Bench conference held.)
MR. MARINO:
At this point I’d like to move for a mistrial, because of the Court’s questioning of the State’s witness. At this particular point and time, it’s highly improper, and I’m just going to make that motion.
\V>THE COURT:
Okay. The Motion is denied.
(On-the-Record Bench conference concluded.)

While questioning of witnesses in a criminal jury trial by the judge is a practice to be avoided and a judge should constantly be aware of the basic premise of a criminal trial which calls upon the State, not the judge, to prove the defendant’s guilt beyond a reasonable doubt, in the instant case, the trial court’s questions did not imply comment or an opinion as to the defendant’s guilt or innocence or the witness’ credibility. State v. Wagster, 361 So.2d 849 (La.1978). The trial court questioned Detective Wall to clarify the testimony sought and to rule on defense counsel’s objections. Therefore, the trial judge did not abuse his discretion in denying a mistrial based on defendant’s objections to his questioning a state witness.

We will now consider the trial judge’s rulings on hearsay objections. Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” It may be oral or written. La. C.E. art. 801(A)(1)(C). Hearsay evidence is not admissible, except as provided by the Louisiana Code of Evidence or other legislation. La. C.E. art. 802, State v. Dyer, 00-1866 (La.App. 5 Cir. 4/24/01), 794 So.2d 1, 12, writ denied, 01-1579 (La.6/27/03), 847 So.2d 1256.

The defendant objected to several questions asked of Detective Allen Wall. Specifically, Detective Wall testified as to the description of the car, which he learned through an interview with Mr. Shipley, the neighbor:

MR. AUTHEMENT:
Can you relate to the jury what you learned through your investigation concerning the vehicle?
\yPET. WALL:
The vehicle was described as being an older model Mustang.
MR. MARINO:
Your Honor, I want to make an objection. I’m going to make an objection as far as the hearsay nature of this particular statement under Code of Evidence art. 801.
(On-the Record Bench Conference held) THE COURT:
... The objection’s overruled. For the record, this court find’s it’s an exception under 803(1), present sense impression.
MR. AUTHEMENT:
And in response to that second BOLO, did your investigation lead you to a vehicle fitting that description?
DET. WALL:

Yes, Sir.

Defendant objected to the testimony as hearsay and the State responded stating that the information was part of his investigation and was admissible. After learning that Detective Wall conducted the interview approximately twenty minutes after the shooting, the trial judge overruled defendant’s objection stating the testimony fell under the exception of hearsay in La. C.E. art. 803(1), present sense impression. Present sense impression is an exception to the hearsay rule wherein the statement describing or explaining an event or condition was made while the declarant was perceiving the event or condition or immediately thereafter. La. C.E. Art. 803(1). In State v. Ditcharo, 98-1374 (La.App. 5 Cir. 7/27/99), 739 So.2d 957, 963, writ denied, 99-2551 (La.2/18/00), 754 So.2d 964, this Court found that an officer’s testimony was admissible as a present sense impression exception to the general rule against admitting hearsay, as provided for in La. C.E. art. 803(1). There the victim testified that she gave a statement to the police five minutes after she was stabbed. The officer testified that the victim was still shaken up and her hand was quite bloody. The victim told him that she had 11 Just jumped from the defendant’s car. In State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95, 98, citing Buckbee v. United Gas Pipe Line Co., Inc., 561 So.2d 76 (La.1990), this Court noted that the Louisiana Supreme Court previously explained a present sense impression exception to the general rule against admitting hearsay, finding, “[t]he statement may follow ‘immediately’ after perceiving an event, allowing only for ‘the time needed for translating observation into speech.’ ” Mr. Shipley’s statement to Detective Wall did not constitute a present sense impression because it was not made immediately after the event, allowing only the time needed to translate observation into speech. However, Mr. Shipley’s statement that evening may have been admissible to show the sequence of events leading to the defendant’s arrest.

A police officer’s testimony may include information provided by another individual without constituting hearsay, if it is offered to explain the course of the investigation and the sequence of events leading to the defendant’s arrest. State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 447, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. Such statements are admitted not to prove the truth of the assertion, but rather to explain from the investigating officer’s point of view the sequence of events leading to the arrest of the defendant. State v. Maise, 99-734 (La.App. 5 Cir. 3/22/00), 759 So.2d 884, 895. The testimony is not considered hearsay when the officer does not testify to the substance of what was told to him by another person, but rather what he did in response to that information. Id. However, “admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse.” State v. Wille, 559 So.2d 1321, 1331 (La. 1990), citing McCormick on Evidence § 249 (E. Cleary 3d ed.1984). While the out-ofijcourt15 statement may be relevant to the investigating officer’s conduct, and the defendant’s subsequent arrest, the testimony may not be used as an indirect method of bringing before the jury the substance of an out-of-court assertion of the defendant’s guilt that would otherwise be barred by hearsay. State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 809.

Out-of-court statements made to investigating officers may have both an impermissible hearsay aspect and a permissible nonhearsay aspect. In such cases, the court should then examine the relevancy of the statement, its prejudicial effect, and whether it was made under oath and subject to cross-examination at trial. State v. Witte, 559 So.2d at 1331. In the instant case, Mr. Shipley’s testimony regarding the identification of the vehicle involved would be permissible hearsay testimony because the statement describes Detective Wall’s reasoning for his conduct in later locating the defendant’s vehicle. Further, the statement does not speak to the guilt or innocence of the defendant, merely to the description of the vehicle involved. Moreover, Mr. Shipley also testified to the same description of the car and was subject to cross-examination, rendering any possible harm in admitting Detective Wall’s statement harmless.

The defendant also objected to Detective Wall’s testimony regarding his communications with David Woodruff. Detective Wall was present when David Woodruff identified the defendant at the location of the car in Ama, Louisiana. The State asked Detective Wall if there was any doubt in Mr. Woodruffs mind regarding the identification. To that, Detective Wall responded, “None whatsoever.” The defendant objected to the statement as hearsay, representing that Detective Wall could not possibly testify as to what was in David Woodruffs mind. The State responded that the testimony was not offered to prove the truth of |1fithe statement, but rather to show how Detective Wall’s investigation unfolded and to establish the sequence of events leading to the defendant’s arrest.

A proper objection to this statement would have been speculation. The prosecutor was not asking Detective Wall to testify to an out-of-court statement. Therefore, there was no proper hearsay objection. The State asked Detective Wall “was there any doubt in [David Wood-ruffs] mind” regarding the identification. Since Detective Wall could not know what was actually going on in David Woodruffs mind, this statement should have been excluded as speculative.

Lay witnesses are not generally permitted to give opinion testimony. La. R.S. 15:463. While La. C.E. art. 701 permits lay witnesses to testify in the form of opinions or inferences, such opinions are limited to those rationally based on the perception of the witness and helpful to a clear understanding of the testimony or the determination of a fact in issue. State v. Francis 99-208 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 489. This testimony, however, would not have been admissible pursuant to La. C.E. art. 701 since Detective Wall could not have rationally perceived what was going on in David Woodruffs mind. The State could have been permitted to rephrase the question to ask whether David Woodruff expressed any doubt as to his identification of the defendant or whether he appeared confident in his identification. Id. The question as phrased, however, was speculative and therefore inadmissible.

However, the admission of Detective Wall’s speculative testimony is subject to a harmless error analysis. State v. Merritt, 04-204 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1082-1083, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228. Inadmissible evidence does not require reversal of a conviction, if its admission is harmless. Id. The appropriate inquiry in determining whether the error was harmless is whether the guilty verdict actually rendered was surely 117unattributable to the error. The factors to be considered in determining whether the error was harmless are the importance of the witness’ testimony, the cumulative nature of the testimony, the existence of corroborating or contradictory evidence regarding the major points of the testimony, the extent of cross-examination permitted, and the overall strength of the State’s case. State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 809.

In this case, the defendant did not suffer substantial prejudice from the speculative testimony admitted because David Wood-ruff, in his subsequent trial testimony, corroborated this portion of Detective Wall’s testimony. David Woodruff testified and was also subject to cross-examination by the defense. Furthermore, the admission of the speculative testimony is harmless error, because the verdict actually rendered was surely unattributable to the error. Rather, David Woodruff described the perpetrator, at the scene, to the police, and positively identified the defendant a few hours after the shooting. He also identified the defendant in court. Kenneth Shipley described the car parked by the Woodruffs residence, at the scene, and positively identified the car driven by the defendant a few hours later. Therefore, we find the speculative testimony admitted was harmless and the verdict surely unattributable to its admission.

A mistrial is a drastic remedy. It should be granted only where the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Rodriguez, 02-334 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 128, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061. In this case, we find the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

11sExcessive Sentence

The defendant argues that his sentence of thirty-six years for attempted armed robbery at hard labor without benefit of probation, parole, or suspension of sentence is excessive, because of his youth and insignificant criminal history.

The State argues that the defendant was a twenty-year old adult when he committed this crime and that the sentence is within the statutorily permitted range. Further, the State notes that the trial court meticulously outlined the factual basis supporting the imposed sentence.

Louisiana Code of Criminal Procedure- article 881.1(E) provides that “[failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” State v. Adair, 04-120 (La.App. 5 Cir. 5/26/04), 875 So.2d 972, 974-975. This court has reviewed a defendant’s constitutional challenge of a sentence, in the absence of a motion to reconsider sentence. Id. However, the failure to file a motion to reconsider sentence or to state specific grounds upon which the motion is based, limits the defendant to a bare review of the sentence for constitutional ex-cessiveness. Id.

In the present case, the defendant did not file a motion for the trial court to reconsider his thirty-six year sentence for attempted armed robbery. Therefore, this Court is limited to a bare review of his sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and the Louisiana Constitution Article I, § 20 prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or |18imposes 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 889; State v. Robinson, 04-1417 (La.App. 5 Cir. 5/31/05), 905 So.2d 405, 407-408. In reviewing a sentence for ex-cessiveness, the appellate 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); State v. Robinson, 905 So.2d at 407-408. A trial court is afforded great discretion in determining sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. La.C.Cr.P. art. 881.4(D); State v. Adair, 04-120 (La. App. 5 Cir. 5/26/04), 875 So.2d 972, 974-975; State v. Riche, 608 So.2d 639, 640 (La.App. 5 Cir.1992), writ denied, 613 So.2d 972 (La.1993).

The three factors considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Knightshed, 00-1410 (La.App. 5 Cir. 3/28/01), 783 So.2d 501, 504-505; State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id., State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879-880.

The defendant was convicted of attempted armed robbery and sentenced to thirty-six years, at hard labor, without benefit of parole, probation, or suspension of sentence with credit for time served. The sentencing exposure for an armed robbery conviction under La. R.S.14:64(B) in 1996 was imprison[ment] at hard labor for not less than five years and for not more than ninety-nine years, without | ¡^benefit of parole, probation or suspension of sentence. The sentencing exposure for an attempt conviction under La. R.S. 14:27(D)(3) was in 1996, as now, “fine[ ] or imprisonment] or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” Therefore, the defendant’s sentencing exposure was imprisonment at hard labor for not less than two and one half years and for not more than forty-nine and one half years, without benefit of parole, probation or suspension of sentence. The defendant’s sentence for attempted armed robbery falls within the statutorily mandated sentencing range.

Before imposing the defendant’s sentence, the trial court gave a detailed explanation of the factual basis, considerations, and the aggravating and mitigating circumstances. The trial court found that in committing the crime the defendant had been deliberately cruel, shot one victim, and created a risk of death or great bodily harm to more than one person. In addition, the court found that the defendant caused the victim of the shooting permanent physical and emotional injuries and showed no remorse nor admitted responsibility for the crimes, which the court noted was the first step toward rehabilitation. The court found that the defendant chose a “totally” innocent victim upon which to commit the crime. The court did acknowledge that the defendant did not have a criminal history except for a few minor juvenile matters and the current crimes for which he was convicted were not premeditated. The court also noted the defendant’s age, church attendance, and local neighborhood support, as well as the defendant’s lack of a relationship with his father and loss of his mother at age sixteen. Finally, the court |¾1 explained that diminution or reduction of the defendant’s sentence for good behavior was prohibited by La. R.S. 15:571, because he had committed a crime of violence.

The defendant has failed to show that his sentence for attempted armed robbery is excessive. As noted by the trial court, the defendant pointed a gun at the victim’s face, and as the victim tried to move the gun away from her face to protect herself, the defendant shot her. The trial judge noted that he remembered the facts of the case clearly. The trial court took into account the defendant’s age, criminal history, and the facts of the case. The sentence imposed is within the statutory limitations. Therefore, it does not appear that the defendant’s sentence for attempted armed robbery is excessive.

Errors Patent

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether the defendant makes such a request. The review reveals one error patent in this case.

The commitment entry does not mention whether the defendant is eligible for benefits. However, the September 17, 1997 sentencing transcript states that the defendant’s thirty-six year sentence for the attempted armed robbery conviction is to be served without benefit of parole, probation, or suspension of sentence. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Further, in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799, the Louisiana Supreme Court found:

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

Since the benefits provisions of La. R.S. 14:27:64 are self-operating under-La. R.S. 15:301.1, it is not necessary to remand the case and order the trial court to correct the commitment to conform to the transcript.

For the foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

      . The bill of information indicates that the amendment was made on March 24, 1997, but a review of the transcripts indicates that the amendment was made on June 24, 1997.

      . The amended bill of information still indicates that the defendant committed the attempted second degree murder while in commission of a felony.

      . Compare State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, 1284, citing Smith v. Cajun Insulation, 392 So.2d 398 (La.1980), where the Louisiana Supreme Court has recognized that courts should "look through the caption of pleadings in order to ascertain their substance and to do substantial justice ..." Also see, Atchley v. Atchley, 01-67 (La.App. 5 Cir. 5/30/01), 788 So.2d 690, 693, writ denied, 01-1915 (La.2/8/02), 808 So.2d 349.

      . Infra.

      . This sentencing provision was amended in 1999, making the minimum sentencing ten years rather than five years. La. R.S. 14:64(B) 2005, amended by 1999 La. Acts No. 932 § 1. The law that applies is the law in effect at the time the offense was committed. State v. Sugasti, 01-770 (La.App. 5 Cir. 11/27/01), 802 So.2d 943, 946, citing State v. Wright, 384 So.2d 399, 401 (La. 1980).

      . In 1996, when the crime was committed, La.C.Cr.P. art. 890.1 allowed the sentencing court to deny or place conditions on eligibility for diminution of sentence for good behavior unless prohibited, if the defendant was convicted of a crime of violence as defined in La. R.S. 14:2(13) and sentenced to imprisonment for a stated number of years or months. Note: La.C.Cr.P. art. 890.1 subsequently was changed to require the court when imposing a sentence to designate whether the crime involved was a crime of violence or an attempted crime of violence as defined or enumerated in La. R.S. 14:2(13).


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Melanie WILLIAMS v. MEDICAL CENTER OF LOUISIANA IN NEW ORLEANS.
    No. 2005-CA-0958.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.
    Joseph G. Albe, Bay St. Louis, MS, for Plaintiff/Appellee.
    Charles C. Foti, Attorney General, Gary J. Beauchamp, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

11 Defendant, the Medical Center of Louisiana in New Orleans [hereinafter “the Medical Center”], appeals the judgment of the Office of Workers’ Compensation in favor of plaintiff, Melanie Williams. For the reasons that follow, we affirm.

On January 5, 1997, Ms. Williams, an employee of the Medical Center, fell down a flight of stairs and was injured while in the course and scope of her employment. She was initially treated by orthopedist Dr. James Butler for back and hip pain. On December 10, 1998, Dr. Butler performed a lumbar laminectomy on Ms. Williams. She continued to have pain after the surgery. In May, 2000, Dr. Butler referred Ms. Williams to a neurosurgeon, Dr. Kenneth Vogel. Dr. Vogel evaluated her on July 12, 2000, at which time Ms. Williams was complaining of back, leg, neck and head pain. Dr. Vogel treated her conservatively for approximately two years. He ordered a cervical MRI, which was negative. On her last visit to him in 2002, Dr. Vogel recommended that Ms. Williams undergo a cervical arthrogram to determine if she was a candidate for a cervical neurotomy. ^However, approximately one year prior to trial, Ms. Williams stopped seeing Dr. Vogel because of her employer’s refusal to authorize further treatment.

The case was tried by the Office of Workers’ Compensation on October 6, 2004. The trial court rendered judgment January 26, 2005, holding that Ms. Williams was entitled to payment by her employer for her treatment by Dr. Vogel. The Medical Center filed the instant appeal. The sole issue on appeal is whether the trial court erred by finding that Ms. Williams’ cervical complaints were related to the January 5,1997 accident.

Findings of fact made by a hearing officer in a workers’ compensation court are reviewed according to the manifest error standard. Johnson v. Cox Communications, 2003-0060, p. 13 (La-App. 4 Cir. 5/14/03), 848 So.2d 48, 55-56. Under that standard, the appellate court must determine not whether the fact finder’s conclusion was right or wrong, but whether it was reasonable. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review.2003-0060 at p. 13, 848 So.2d at 56 (citing Jackson v. Quikrete Products, Inc., 2001-1181 (La.App. 4 Cir. 4/17/02), 816 So.2d 338).

The claimant’s testimony alone may be sufficient to prove that he sustained a work-related injury, provided that no other evidence discredits or casts serious doubt upon his version of the incident, and his testimony is corroborated by the circumstances following the incident. Jackson v. Quikrete, supra, at pp. 2-3, 816 So.2d at 341.

| sIn the instant case, there is no dispute that Ms. Williams sustained a work-related injury to her back when she fell down the stairs. The employer has been paying temporary total disability benefits to Ms. Williams since the accident and has paid medical benefits for treatment of her back problem. Rather, the issue is the reasonableness of the hearing officer’s determination that Ms. Williams also injured her neck in the accident. The evidence introduced at trial consisted of Ms. Williams’s testimony, the testimony of the employer’s workers’ compensation claims manager, the depositions of Dr. Butler and Dr. Vogel, and Ms. Williams’s medical records.

Ms. Williams testified that on January 5, 1997, she was working as a hospital clerk at Charity Hospital. She was ascending a flight of stairs leading from the basement where she had gone to retrieve some records when she slipped on an unknown substance near the top of the stairs, grabbed a railing that was unstable, and fell backward down the flight of stairs to the bottom. She testified that she fell on her right hip and elbow, and also hit the wall going down. Ms. Williams stated that after the accident, her entire body ached. She was initially treated by Charity Hospital emergency room physicians, which determined she had bursitis of the hip and a sprained ankle. She was then seen by Dr. James Butler, an orthopedist. Ms. Williams testified that she told Dr. Butler she had pain in her neck, back, right hip and right leg. She stated that Dr. Butler treated her back because he believed all her other problems stemmed from her back. Following an MRI which showed a herniated disk in her back. Dr. Butler performed a |4laminectoiny on Ms. Williams in 1998, but the surgery did not give her any significant relief from her pain. Ms. Williams also underwent pain management and physical therapy while being treated by Dr. Butler. On May 22, 2000, Dr. Butler determined there was nothing further he could do for Ms. Williams and referred her to a neurosurgeon, Dr. Kenneth Vogel. Ms. Williams testified that she saw Dr. Vogel until about a year prior to trial, when she discontinued treatment because her employer had failed to approve it. Ms. Williams stated that she was still in significant pain at the time of trial, and that she had not returned to work. She stated that she had never had neck pain prior to her accident.

Dr. Vogel initially examined Ms. Williams on July 12, 2000. She complained of neck, back and leg pain since the accident. He ordered a cervical MRI, which was negative. He continued to treat her with prescription medication for several years. In May of 2002, he noted she had neck spasms. Ms. Williams related to him an incident in 2002 where her right leg had become numb and “given way;” she said her neck pain had worsened after this incident. Dr. Vogel related this incident to Ms. Wiliams’ accident, opining that patients who have had similar back surgery often complain that their leg gives way. Dr. Vogel recommended that Ms. Williams undergo a cervical arthrogram to determine whether she would be a candidate for a cervical neurotomy. In his deposition, he opined that the arthrogram was medically necessary. He also opined, based on Ms. Williams’ history, that her neck problems were related to the January 5, 1997 |fiaccident. He admitted that he did not review Dr. Butler’s records and said he would defer to Dr. Butler regarding Ms. Williams’ back problems.

Dr. Butler’s records contain no mention of Ms. Williams’s having complained of neck pain. He testified in his deposition that she did not relate any complaints about her neck after the accident. He therefore opined that her cervical pain was not related to the 1997 accident. He stated that his opinion was not changed by the fact that the February 1999 notes of the physical therapist treating Ms. Williams listed cervical pain as one of her symptoms.

Ms. Renee Moses, the workers’ compensation claims adjuster who handled Ms. Williams’s claim, stated she received the claim in 1998 and had never examined any medical records prior to Ms. Williams’s treatment by Dr. Butler. She stated that the employer did not dispute that the claimant’s hip and leg injuries as treated by Dr. Butler were related to the accident. However, after approving the initial evaluation by Dr. Vogel, Ms. Moses refused to approve any further testing or treatment by him because Dr. Butler, the initial treating physician, did not believe the claimant’s neck complaints were related to the accident. Ms. Moses stated she had no documentation of Ms. Williams’s having had any cervical complaints until her first visit to Dr. Vogel.

Based on this evidence, the trial court determined that Ms. Williams’ cervical pain was related to her 1997 accident, and that she was entitled to medical benefits including testing and treatment by Dr. Vogel. On appeal, the Medical Center argues this finding is manifestly erroneous because the absence of any |fimention of neck pain from Dr. Butler’s records refutes Ms. Williams’s testimony that she has had neck pain since the accident. The Medical Center also argues that Dr. Vo-gel’s opinion is not reliable because he based it mainly on the prior history related to him by Ms. Williams, without considering the records of Dr. Butler. Appellant cites the case of Johnson v. Cox Communications, supra, 848 So.2d 48, in which this court reversed the finding of the workers’ compensation court that the claimant’s back injury was caused by his work-related accident in falling off a ladder. However, we find Johnson to be distinguishable from the instant case because none of the physicians involved in Johnson related the claimant’s back problems (as opposed to his neck and shoulder problems) to his fall. In the instant case, Dr. Vogel opined that Ms. Williams’ cervical complaints are related to her 1997 accident.

The Louisiana Supreme Court has held that a causal relationship between a work-related accident and a disability can be established, creating a presumption that the accident caused the disability, when the employee shows that before the accident he or she was in good health, and commencing with the accident the disabling symptoms appeared and continuously manifested themselves thereafter, provided there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Quinones v. U.S. Fidelity and Guar. Co., 1993-1648 (La.1/14/94), 630 So.2d 1303, 1307.

In the instant case, we find no manifest error in the trial court’s judgment, which is based upon the credibility of Ms. Williams and the medical opinion of Dr. |7Vogel. There is no evidence that Ms. Williams ever had any neck problems before her work-related accident. Moreover, the workers’ compensation claims adjuster admitted that she had no medical evidence, other than the absence of neck complaints from Dr. Butler’s records, to counter Dr. Vogel’s opinion that the claimant’s cervical problems were related to her accident. Under the circumstances, we cannot say it was unreasonable for the workers’ compensation court to find that the cervical complaints were causally related to the accident, therefore entitling Ms. Williams to medical benefits.

Accordingly, for the reasons stated, we affirm the judgment of the Office of Workers’ Compensation.

AFFIRMED.


text:
    Deone MEYERS On Behalf of Her Minor Daughter, Kiyante MEYERS v. CITY OF NEW ORLEANS, New Orleans Department of Streets and Downtown Development District.
    No. 2005-CA-1142.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.

      Rudy W. Gorrell, Jr., The Law Office of Rudy W. Gorrell, Jr., Lafayette, LA, for Plaintiff/Appellant.
    Sherry S. Landry, Former City Attorney — Parish of Orleans, Shawn Lindsay, Heather M. Valliant, Assistant City Attorneys — Parish of Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, Jr., Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

| plaintiff, Deone Meyers, appeals the trial court’s denial of her motion to vacate the court’s ex parte order dismissing her case on account of abandonment. For the reasons that follow, we affirm.

On March 12, 1993, Ms. Meyers filed the instant suit on behalf of her minor daughter, Kiyante Meyers, against the City of New Orleans [hereinafter “the City”] and the Downtown Development District, alleging defendants were liable for injuries her daughter suffered when she fell in an uncovered street hole while attempting to board a city bus. On June 20, 2001, the trial court granted summary judgment in favor of the Downtown Development District, dismissing plaintiffs case against it. On July 23, 2004, the City filed a motion to dismiss the plaintiffs case for want of prosecution for three years pursuant to Louisiana Code of Civil Procedure article 561; the trial court signed the attached order of dismissal the same day. Plaintiff then filed a motion to vacate and set aside the dismissal. On April 29, 2005, the trial court heard the motion and rendered judgment denying it, ^confirming its dismissal with prejudice of plaintiffs case. Plaintiff filed a motion for new trial, which was denied, and this appeal followed.

On appeal, plaintiff argues that the parties reached a verbal agreement settling the case on the morning of June 27, 2001, just prior to the commencement of the trial, which was noted on the trial court’s docket sheet for that day. Plaintiff further argues that City’s counsel then failed to prepare a judgment reflecting the settlement and further failed to remit the settlement funds, for a period of time exceeding three years. Plaintiff contends that these circumstances do not warrant the dismissal of her suit for failure to prosecute or abandonment.

The sole issue on appeal is whether the trial court erred by finding that the plaintiffs suit was abandoned according to the precepts of La. C.C.P. art. 561. Whether an action has been abandoned is a question of law; thus, the standard of review of the appellate court is simply to determine whether the lower court’s interpretive decision is correct. Olavarrieta v. St. Pierre, 2004-1556, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568, writ denied, 2005-1557 (La.12/16/05), 917 So.2d 1118.

La. C.C.P. art. 561 provides, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a)Which has been opened;
(b) In which an administrator or executor has been appointed; or
(c) In which a testament has been probated.
|s(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of abandonment....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

This court has held that Article 561 imposes three requirements on a plaintiff to avoid abandonment: (1) The plaintiff must take some “step,” which is defined as any formal action before the court intended to hasten the suit toward judgment, in the prosecution of the lawsuit; (2) The step must be taken in the proceeding, and with the exception of formal discovery, must appear in the record of the suit; and (3) The step must be taken within the legislatively prescribed time period of the last step taken by either party. Olavarrieta, supra, at p. 4, 902 So.2d at 569 (citing Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784).

There are two judicially recognized exceptions to the abandonment rule. The first exception, based on the concept of contra non valentum, applies where the plaintiff is prevented by circumstances beyond the plaintiffs control from prosecuting a case. The second exception applies where the defendant has waived the right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Olavarrieta, supra, pp. 4-5, 902 So.2d at 569 (citing Clark, supra, at p. 7, 785 So.2d at 784-85).

Plaintiff herein does not specifically argue that one of the above exceptions is applicable to the instant case. Rather, plaintiff contends that she could not take |4any step in the prosecution of the case because the case was settled, and there were no further steps to be taken. We cannot accept plaintiffs argument, however, because no evidence of the settlement is contained in the record.

Attached to plaintiffs brief on appeal is an unauthenticated copy of a document with the heading:

Honorable Madeleine M. Landrieu Trial Docket for 6/27/2001

The first entry contains the title of the instant case, the names and phone numbers of the attorneys involved, and the following notation:

Trial remarks: BENCH TRIAL ONE

DAY

Disp. Date: 6/27/2001

Disp.: Settled — Final

Disp. Remarks: $12,500.00 INT TO

RUN WITH IN 30 DAYS

The plaintiff relies on this trial docket notation as evidence that the case was settled, but this document is not part of the record on appeal, as it was merely attached to plaintiffs brief; there is no indication that it was submitted to the trial court as evidence on the motion to vacate or the motion for new trial. Even if we could take judicial notice of its existence as a public document, it shows only that a verbal settlement agreement was reached between the parties’ counsel on July 20, 2001. However, the law is clear that in order for a settlement to be binding or enforceable, it must be in writing. See La. C.C. art. 3071. Moreover, it has been held that evidence of settlement negotiations, which consisted only of written correspondence between attorneys, was not sufficient to warrant reversal of the trial court’s prior order dismissing the case on grounds of abandonment. Lizama v. Williams, 99-1040 (La. App 5 Cir. 3/22/00), 759 So.2d 865. The Lizama court reasoned that no binding settlement existed until an agreement was reduced to writing and signed by the parties, and further, that ongoing settlement negotiations |Bdid not relieve the parties of their duty to protect the court record by taking timely steps on the record to avoid abandonment.

In the instant case, even if we were to consider the trial court docket sheet notation of settlement to be a “step” in the prosecution or defense of the case, it would be insufficient to overturn the trial court’s order of abandonment because the order was rendered July 23, 2004, more than three years after the date on the docket sheet. We therefore do not reach the issue of whether the docket sheet notation constitutes a “step” pursuant to La. C.C.P. art. 561. However, we do find that a verbal settlement agreement does not relieve the parties of their responsibility to protect the record by filing a written confirmation of settlement within at least three years of the last “step” in the case to avoid abandonment. The fact that the plaintiffs counsel was relying upon his opposing counsel to prepare a judgment did not prevent plaintiffs counsel from filing some pleading to force the opposing party to honor the settlement agreement before the passage of three years.

We therefore hold that the trial court correctly denied the motion to vacate its prior order of abandonment. Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

TOBIAS, J., Concurs in the Result and Assigns Reasons.

TOBIAS, J., Concurs in the Result and Assigns Reasons.

_JjI respectfully concur in the result.

Although the result in this case may appear harsh, this Court is required to enforce the law. The Court of Appeal is a court of record. The Court cannot consider a document that is not part of the record on appeal. The minute entry of the trial court showing a purported settlement of the case for $12,500.00 plus judicial interest to commence 30 days hence is not part of the record on appeal. The appellant attaches a copy of the purported minute entry to her brief; she did not seek to supplement the record on appeal with a certified copy of the minute entry. Whether a certified copy of a minute entry properly made part of the record on appeal is sufficient to interrupt the three-year abandonment period of La. C.C.P. art. 561 is not properly before this Court at this time.


author: CHARLES R. JONES, Judge. C.J. ARMSTRONG

text:
    Steve BATTAGLIA and James Massacci v. Charles JOHNSON, Cleveland Turner, Coleman Cab Company and Excell Underwriters.
    No. 2005-CA-0153.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.
    Rehearing Denied June 30, 2006.

      W. Patrick Klotz, Klotz & Early, New Orleans, LA, for Plaintiff/Appellant.
    Gregory M. Porobil, The Law Offices of Gregory M. Porobil, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO JR.).
   CHARLES R. JONES, Judge.

|-iThe Appellants, Steve Battaglia and James Massacci, appeal a district court judgment, arguing that the judgment was not a final judgment as it only addressed quantum and not liability. We AFFIRM IN PART, VACATE and REMAND IN PART the district court judgment.

Facts and Procedural history:

This appeal arises out of a motor vehicle accident which occurred on or about September 10, 2002. The Appellants, Mr. Battaglia and Mr. Massacci were passengers in a limousine owned and operated by the Orleans Limousine Rentals and driven by Neil Jody Matthews on Interstate 10 at or near the Louisa Street exit. The Defendant, Charles Johnson, was the driver of a cab owned by co-defendant, Cleveland Turner, and operated by the Coleman Cab Company. Mr. Johnson’s cab rear-ended the Appellants’ vehicle, causing multiple soft tissue injuries to both Mr. Battaglia and Mr. Massacci.

On January 3, 2003, this lawsuit was filed against the named defendants, Charles Johnson, Cleveland Turner, Coleman Cab Company and Excel Underwriters. A supplemental petition was filed on April 1, 2003 which named ^Imperial Fire and Casualty Insurance as a defendant. After proper service of process was made on all defendants, each of them, with the exception of Coleman Cab, answered the petition.

At a bench trial held on September 28, 2004, the district court granted judgment in favor of both Appellants against Coleman Cab only. Specifically, the court awarded $25,000 in damages, plus $1,964.64 in medical expenses, for a total judgment of $26,964.64 to Mr. Battaglia and $10,000 in general damages, plus $500 in medical expenses to Mr. Massacci. However, the judgement itself was silent as to the other named defendants.

On appeal, the Appellants argue that the district court erred in failing to adjudicate the issue of liability as to the other defendants, Charles Johnson, Cleveland Turner, or Imperial Fire & Casualty Company; and, they further contend, the case should be remanded to the district court so that the matter of liability can be adjudicated as to the remaining defendants.

Discussion

Before we discuss the merits of the appeal before us, we must fully discuss the procedural errors in the record. The record indicates that although the only defendant cast in judgment by the district court was the Coleman Cab Company, there was no indication that the other defendants’ liability was ever addressed by the district court. However, while the district court entered judgment against the Coleman Cab Company, the record reflects that the Coleman Cab Company did not file an Answer to the Petition. Thus, the Coleman Cab Company’s actions in this matter do not amount to either an appearance of record nor participation in the |slitigation. Further, the Appellants did not seek a default judgment against the Coleman Cab Company.

Furthermore, what makes these procedural errors more problematic is that counsel for the Appellees, Mr. Proboril, made “appearances” for all of the defendants as follows:

• On March 13, 2003, Mr. Poboril filed an Exception of No Cause or Right of Action on behalf of Excel Underwriters;
• On March 27, 2003, Mr. Poboril made multiple filings: 1) he filed an Exception of Insufficiency of Service of Process on behalf of the Coleman Cab Company; 2) he filed an Answer for Cleveland Turner; and he 3) filed a Request for Notice of Trial and of Signing of Judgment.
• On April 22, 2003, Mr. Poboril filed an Answer to Original and First Supplemental and Amending Petition on behalf of Charles Johnson and Imperial Fire and Casualty Company.

Following the district court’s sustaining the Coleman Cab Company’s Exception of Insufficiency of Service of Process, there was still no Answer filed by the Coleman Cab Company. Pleadings consist of petitions, exceptions, written motions, and answers. LSA-C.C.P. Art. 852. When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition is ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition. La. Code Civ. Pro. Art. 1001. [our emphasis]

Thus, the only Answers appearing in the record are those of Cleveland Turner, Charles Johnson, and Imperial Fire and Casualty Company. However, the |4only defendant cast in judgment is the Coleman Cab Company, which unfortunately, is the only defendant that failed to answer either the original or amended petition. However, the record reflects that despite the fact that proper service was made upon the Coleman Cab Company, no Answer was filed, even though in the Appellant’s brief, counsel notes “all defendant’s [sic] were represented by this counsel and proceeded to trial.” Furthermore, there is no indication that the Appellants ever filed for a Preliminary Default against Coleman Cab Company. Thus, by virtue of the fact that Mr. Porobil appeared as counsel of record for various defendants, he should have followed through by formally submitting an official Motion to Enroll as Counsel of Record for each Defendant he represented, or formally withdrawing as counsel if it was not his intention to fully represent all Defendants. However, despite the fact that counsel for Appellees represented all defendants, he did not file an Answer for all defendants.

We therefore conclude that based on the above procedural errors, the Coleman Cab Company never formally answered the petition as a matter of record. We disagree with the Appellants and find the matters and issues of liability should not have been adjudicated against Coleman Cab Company because the Coleman Cab Company did not file an answer to the Petition, even after the exception filed by Mr. Porobil on the Coleman Cab Company’s behalf was adjudicated. Additionally, since no preliminary default was taken against the Coleman Cab Company by the Appellants, there was literally no legal basis upon which to cast Coleman in judgment since Coleman did not appear on the record after the Exception for Insufficiency for Service of Process was ruled upon. Under no circumstances should judgment have been rendered against a party who has not | smade an appearance, and furthermore, the Appellants also had the option to file a preliminary default against Coleman Cab, but they failed to do so.

In its sole assignment of error, the Appellants argue that the district court erred in not adjudicating the matters of liability and quantum as to all defendants, and as a result, the district court judgment rendered in the case sub judice, is not a final judgment.

In R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La.03/02/05), the Supreme Court recently addressed the issue of the determination of final judgments as follows:

In order to assist the appellate court in its review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay. However, if the trial court fails to do so, we find the appellate court cannot summarily dismiss the appeal. For purposes of judicial efficiency and economy, we approve the approach taken by the First, Third and Fifth circuits, and hold the proper standard of review for an order designating a judgment as final for appeal purposes when accompanied by explicit reasons is whether the trial court abused its discretion. If no reasons are given but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper. Of course, if after examination of the record the propriety of the certification is not apparent, the court of appeal may request a per cu-riam from the trial judge. Alternatively, the court of appeal could issue a rule to show cause to the parties requiring them to show why the appeal should not be dismissed for failure to comply with La.Code Civ. P. art.1915, when the propriety of the certification is not apparent and the trial court has failed to give reasons for its certification ...
However, the overriding inquiry for the trial court is whether there is no just reason for delay. Courts of appeal, when conducting de novo review in matters where the trial court fails to give explicit reasons for the | ^certification, can consider these same criteria. Our interpretation of article 1915, which holds the certified final judgment is properly before the appellate court even when the trial court fails to give explicit reasons for its determination, is in accordance with La.Code Civ. Pro. art. 5051 which provides “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement substantive law and are not an end in themselves.”

Messinger, 894 So.2d at 1122-23. [our emphasis]

In the case sub judice, the judgment does not indicate that it is not a final, appealable judgment. Therefore, based on Messinger, we have determined after our de novo review that this case must be considered as an appeal from a final judgment of the district court.

The appropriate standard for appellate review by appellate courts is the “manifest error-clearly wrong” standard, which precludes the setting aside of a trial court or jury’s findings of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 630 So.2d 706, 710 (La.1/14/94) citing Rosell v. ESCO, 549 So.2d 840 (La.9/12/89).

According to La.Code Civ. Pro. Art. 1841, a judgment is the determination of the rights of the parties in an action and may award any relief. However, if the district court rules on less than all the claims, then it retains jurisdiction to adjudicate the remaining issues in the case. La. C.C.P. Art.l915(C)

In the case sub judice, the parties proceeded to trial after the counsel for the Appellants filed an uncontested Motion to Set for Trial on the Merits. The parties subsequently filed witness lists with the district court, and proceeded to trial on September 28, 2004. Prior to trial, there were no stipulations filed into the record ^concerning liability. There was no indication that the Appellants ever sought to cure the defect in the record concerning the Coleman Cab Company’s failure to answer the Appellants’ Petition for Damages. The district court heard testimony from both Appellants, but none of the defendants were present, even though their counsel, Mr. Porobil appeared on their behalf. After all parties rested, the district court rendered judgment of liability based upon the Appellants’ testimony that their vehicle was struck by a Coleman cab. The Appellants did not contest the finding of liability and the district court proceeded to review the Appellants’ damage claims and subsequently awarded monetary awards to the Appellants.

However, based upon our review of the record in its entirety, and in light of the procedural errors in this record, we conclude that the Coleman Cab Company’s failure to answer and the Appellants’ failure to properly join the issues as to all defendants prior to proceeding to trial, renders this case alive as to the Coleman Cab Company, but adjudicated as to the other defendants. “Where [a] judgment is silent with respect to any demand which was an issue in the case under the pleadings, the silence constitutes an absolute rejection of the demand.” Sun Finance Co., Inc. v. Jackson, 525 So.2d 532, 533. (La.1988).

Although the Coleman Cab Company submitted to the jurisdiction of the district court through its attorney of record, the Coleman Cab Company cannot be cast in judgment until such time as the issues are properly joined and the Coleman Cab Company answers the Petition for Damages. The failure to join a party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion. La.C.C.P. Art. 645. However, we find that the district court judgment was clearly wrong due to the Appellants’ failure to properly join the issues as to the Coleman Cab Company. Thus, considering that |Rthe judgment is silent as to defendants other than the Coleman Cab Company, we VACATE the judgment as to the Coleman Cab Company.

However, because it was manifest error by the district court in not casting other defendants in judgment, we conduct a de novo review as to the liability of the other defendants

The record reflects that Excel Underwriters filed an Exception of No Cause or No Right Action on the basis that it is not an insurance company. However, the record indicates that there was no determination of the exception, nor did Excel Underwriters file an Answer. Therefore, Excel Underwriters was never determined to have liability as an insurer in this matter due to the Appellants’ failure to properly join the issues as to Excel Underwriters.

When this matter proceeded to trial, the Appellants presented their case through counsel and proved their damages by way of medical records and medical bills. However, the trial transcript reflects that when the issue of liability was discussed, no stipulations were agreed to by the attorneys of record, no witnesses were called to prove the damages against the named defendants, nor were insurance policies subpoenaed from either Imperial Fire and Casualty or Excel Underwriters as insurers by Counsel for the Appellants as evidence to cast either of the purported insurers in judgment. Furthermore, to the Appellants’ disadvantage, their counsel rested their case without having examined any of the Appellees. Therefore, we AFFIRM the judgment of the district court finding no liability on the part of the purported insurance providers, Excel Underwriters and Imperial Fire Rand Casualty, and Cleveland Turner.

However, Charles Johnson, who was an employee of the Coleman Cab Company, was the driver of the cab on the evening he collided into the Appellants’ limousine. This fact alone is prima facie proof of Charles Johnson’s liability in this matter, although the district court judgment was silent as to the liability of Charles Johnson. Therefore, we find that the district court was manifestly erroneous in not finding liability against Charles Johnson. As a result of his negligent operation of the vehicle, both Appellants sustained physical injuries and medical damages. Therefore, we find that Charles Johnson was liable for the injuries and damages sustained by the Appellants. We therefore AMEND and RENDER judgment against Charles Johnson, finding him liable for the injuries and damages sustained by the Appellants, and casting him in judgment in the exact amounts expressed in the district court judgment against the Coleman Cab Company.

DECREE

For the aforementioned reasons, we hereby AFFIRM the district court judgment with respect to the defendants Cleveland Turner, Excel Underwriters, and Imperial Fire and Casualty; we VACATE the district court judgment as to the Coleman Cab Company, and Excel Underwriters as issues were not properly joined as to these defendants, and we RENDER judgment against Charles Johnson finding him liable for the injuries and damages sustained by the Appellants in the exact amounts expressed in the district court judgment against the Coleman Cab Company.

AFFIRMED IN PART; VACATED AND RENDERED IN PART

ARMSTRONG, C.J., respectfully concurs in part and dissents in part with reasons.

LOMBARD, J. Concurs.

CANNIZARO, J., dissents with reasons.

C.J. ARMSTRONG

Respectfully Concurs in Part and Dissents in Part with Reasons.

_jjl agree with the majority insofar as it vacates the judgment with respect to Coleman Cab Company. This defendant filed an exception of insufficiency of service of process, claiming that service was not made on its registered agent for service of process. The sheriffs return in the record shows domiciliary service on Cleveland Turner at Mr. Turner’s residence. The record contains no evidence that this exception was set for hearing, heard or acted upon by the trial court. Issue was not joined as between this defendant and the plaintiffs, and I would, therefore, vacate the judgment and remand to the trial court for hearing and disposition of the exception filed by Coleman Cab Company.

I also agree with the majority in affirming the trial court’s implicit judgment with respect to Mr. Turner and Imperial Fire and Casualty Company. The record does not show that Excell Underwriters’ exception of no cause of action was set for hearing, heard or ruled upon by the trial court. Therefore, issue has not been joined as to that defendant. I would vacate the implicit judgment dismissing the plaintiffs’ claims against that defendant for the same reasons as set forth herein and in the majority opinion with respect to Coleman Cab Company, remanding the case to the trial court for hearing and disposition of the exceptions filed by Excell Underwriters.

|2I am unable to agree with the rendition of judgment against Charles Johnson. Mr. Johnson’s answer admits only that he is a resident of the Parish of Orleans, State of Louisiana. Specifically, he does not admit having been the driver of the cab that was involved in the accident. Furthermore, Paragraph VI of Mr. Turner’s answer to the original petition states: “Further answering defendants [sic] aver that the [sic] Charles Johnson is not his employee and he has no liability for his actions.” The trial court did not allow the introduction of the police report into evidence, and that ruling has not been appealed or brought before this Court by application for supervisory review. Mr. Massacci testified at the trial that he did not know who owned the cab, and had had no conversation with the cab driver. At no time during his testimony did Mr. Massacci identify the driver as Charles Johnson. Although Mr. Battaglia testified that he had asked the cab driver how he was doing after the accident, when asked if he recalled the name of the cab driver, Mr. Battaglia testified, “No. Offhand, I don’t.” Because I find no evidence of record identifying Mr. Johnson as the driver of the offending taxi-cab, I am unable to agree that he should be cast in judgment.

CANNIZZARO, J. Dissents with Reasons.

_JjI respectfully dissent from the majority opinion. In their appellant brief the plaintiffs raised the following assignments of error:

I. The Judgment Rendered by the Honorable Judge Rosemary Ledet does not Dispose of all Claims Listed in Plaintiffs/Appellant’s Original and Supplemental Petition, thus, the Judgment is not Final.
II. In the Alternative, Because the Judgment Rendered by Judge Rosemary Ledet Failed to Litigate the Merits of the Case, Only Causing an Adjudication on the Issue of Quantum, it is an Interlocutory Judgment.

Rule 2-12.4 of the Uniform Rules-Courts of Appeal provides in relevant part that “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed.”

In the instant case the plaintiffs’ discussion of the two assignments of error focuses only on the argument that the trial court judgment is not a final judgment, because it does not specifically address the liability of each defendant. After a trial on the merits, the trial court found that a single defendant, Coleman Cab Company, was liable to the plaintiffs. The judgment is silent as to the other defendants. The failure of the trial court judgment to expressly state that a determination of liability as to each defendant had been made in no way detracts from the finality of the judgment.

|9It is well settled that when a judgment is silent as to part of the relief requested, the judgment is deemed to have denied that relief. See, e.g., Rhone v. Boh Brothers, 2001-0270 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 768; Bain v. Middleton, 2000-2630 (La.App. 4 Cir. 11/14/01), 802 So.2d 837, 838 n. 1; Lacour v. Lacour, 99-0913 (La.App. 4 Cir. 2/9/00), 763 So.2d 678, 681. Therefore, I must dissent from the majority’s finding that Charles Johnson should be cast in judgment. Under the applicable jurisprudence, the silence of the trial court judgment on the issue of Mr. Johnson’s liability means that the trial court rejected the claim against him. Also, no one has requested that this Court review that finding.

I also dissent from the majority’s holding that vacates the judgment against Coleman Cab Company. The majority cites no authority for their holding on this issue, and I do not think that the fact that a defendant which does not answer a petition can release that defendant from the court’s jurisdiction, especially when the defendant appears at the trial on the merits through an attorney, does not object to any of the proceedings, and does not appeal the judgment that is rendered against it.

Additionally, I think that the majority erred in reviewing this case to determine whether the trial court’s findings of fact were manifestly erroneous or clearly wrong. Neither of the assignments or error raised by the plaintiffs contended that the trial court’s fact finding was in error. By raising and addressing an issue not included in an appellant’s assignments of error, this Court becomes an advocate for the appellant rather than an impartial arbiter.

Finally, I think that the majority’s reliance on the Messinger case, La. C.C.P. art. 1915(C), and La C.C.P. art. 645 is misplaced. The language quoted from the Messinger case relates to a summary judgment. In the instant case we are not reviewing a decision on a summary judgment. There was a trial on the merits. La. |3C.C.P. art. 1915(C) relates to partial judgments and partial summary judgments. The judgment in the instant case is not a partial judgment. It is a final judgment that is silent as to part of the relief requested. All of the issues in this case were tried in the trial court, and the judgment is not a partial judgment to which article 1915(C) is applicable. La. C.C.P. art. 645 relates to the failure to join a party to an action. La. C.C.P. art. 641 requires all parties necessary for the just adjudication of an action to be made parties to the action. All of the parties required by article 641 to be joined in the instant case were joined. Therefore, article 645 has no relevance in the instant case.

Based on the foregoing, I would affirm the trial court’s judgment, because neither of the assignments of error raised by the plaintiffs on appeal has merit. No other assignments of error were raised, and we should consider them abandoned. Rule 2-12.4 of the Uniform Rules-Courts of Appeal.

      . Only the Appellants, Mr. Battaglia and Mr. Massacci, testified at trial.

      . Plaintiffs’ counsel rested without having subpoenaed the defendants to appear at trial. Although he served them with notice of the suit, he never subpoenaed them to appear at trial to testify.


author: JAMES F. McKAY III, Judge.

text:
    Johnny CRUTCHFIELD v. The CITY OF NEW ORLEANS, DEPARTMENT OF PARKS AND PARKWAYS, and James Parker.
    No. 2005-CA-1485.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.
    Lawrence D. Wiedemann, Wiedemann & Wiedemann, New Orleans, Louisiana, for Plaintiff/Appellee.
    Kenneth B. Krobert, Law Offices of Marvin H. Olinde, Metairie, Louisiana, for Appellant, Liberty Mutual Insurance Company.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

11 This case arises out of an accident at Joe Bartholomew Municipal Golf Course in Pontchartrain Park where Johnny Crutch-field was struck by a golf cart driven by fellow golfer, James Parker. Mr. Crutch-field filed suit against Mr. Parker and the City of New Orleans. Mr. Parker’s insurer, State Farm Insurance Company, settled with Mr. Crutchfield for the policy limits. Mr. Crutchfield, however, contended that his damages exceeded this amount, so he sued his uninsured/underinsured motorist carrier, Liberty Mutual Insurance Company. Liberty Mutual moved for summary judgment seeking a declaration that the golf cart was not an “uninsured motor vehicle” under the terms of the Liberty Mutual policy, and therefore Liberty Mutual provided no coverage to Mr. Crutchfield for his alleged injuries. The trial court denied the motion for summary judgment and Liberty Mutual appeals. The trial court certified the judgment as final pursuant to La. C.C.P. art.1915.

Because no appellate jurisdiction lies from a trial court’s denial of a motion for summary judgment, this appeal must be dismissed. Clark v. Legion Ins. Co., L2002-2487 (La.App 4 Cir. 7/23/03), 853 So.2d 684. The denial of a motion for summary judgment is an interlocutory judgment that is not susceptible to being certified by a trial court as final for purposes of immediate appeal under La. C.C.P. art.1915. Id. at 687; See also Brennan v. Shell Offshore, Inc., 93-1525 (La.App. 4 Cir. 3/29/94), 635 So.2d 429. Although La. C.C.P. art.2083 provides that an appeal may be taken from an interlocutory judgment which may cause irreparable injury, irreparable injury exists in the context of an interlocutory judgment only where the error cannot be corrected on appeal following a determination of the merits. Blanchard v. State Through Parks & Rec. Comm’n, 96-0053 (La.5/21/96), 673 So.2d 1000. That is not the situation in the instant case. Accordingly, the appeal of Liberty Mutual Insurance Company is dismissed without prejudice.

APPEAL DISMISSED WITHOUT PREJUDICE.


author: SAUNDERS, Judge.

text:
    Mary K. BIHM v. Seth J. BIHM.
    No. CW 05-1550.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Lee Watkins Boyer, Stockwell, Sievert, Viccellio, Clements, & Shaddock, L.L.P., Lake Charles, LA, for Plaintiff Respondent, Mary K Bihm.
    Richard Dale Moreno, Yul Dubart Lorio, Doucet, Lorio <& Moreno, L.L.C., Lake Charles, LA, for Applicant, Anne Fournet.
    Evelyn M. Oubre, Lake Charles, LA, for Defendant Respondent, Seth James Bihm.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

| Relator, Anne Fournet, seeks a writ of review from a judgment of the Fourteenth Judicial District Court, the Honorable Li-lynn Cutrer, presiding, which denied her Motion and Order to Quash Subpoena Duces Tecum for Deposition. We affirm.

FACTS AND PROCEDURAL HISTORY

In this domestic matter, Mary Bihm filed for divorce from her spouse, Seth Bihm, on June 2, 2004. On September 28, 2004, the parties were awarded joint custody and co-domiciliary custody of their minor children, Hunter Bihm, age 6, and Kamryn Bihm, age 3. The divorce was finalized on February 15, 2005 and the prior custody plan was to remain in full force.

Eventually, Ms. Bihm sought the counseling services of Relator, Anne Fournet, for her oldest child, Hunter. Ms. Fournet concluded that Mr. Bihm was emotionally abusing Hunter which led to Ms. Bihm’s Rule for Contempt, Injunction and Supervised Visitations filed on November 3, 2005. In defense of the these allegations, Mr. Bihm sought the records of Ms. Four-net. Ms. Fournet believed that the release of the records to Mr. Bihm could result in harm to the child, and thus, she filed a motion to quash the subpoena duces te-cum. Ms. Fournet’s motion was based on the Health Insurance Portability and Accountability Act (HIPPA), 42 U.S.C. 1320d-7 et seq., and its regulation, 45 CFR 164.524, and the interplay and preemptive effects of same in conjunction with and on the Louisiana Code of Civil Procedure and the Louisiana Code of Evidence. Ms. Fournet’s motion to quash was subsequently denied by the trial court on December 6, 2005.

Ms. Fournet sought a writ of review with this court in a timely manner, and on December 28, 2005, the writ was granted for the purpose of calling the matter up for [2a written opinion on same. All proceedings were stayed at that time pending this court’s opinion.

ASSIGNMENT OF ERROR

The trial court erred in holding that, pursuant to HIPPA, a parent, who has joint care, custody and control of his child be denied mental health records of his child and be denied the right to depose the medical provider of those records while a custody proceeding is pending.

DISCUSSION

In her application to this court, Relator argues that she has serious concerns regarding production of the requested documents and information — that production of same may be detrimental to the health, welfare and mental status of the minor child. Accordingly, Relator has refused to produce same pursuant to HIPPA provisions. Relator relies on 45 C.F.R. § 164.524(a)(3)(i) and (ii), which provide that:

(3) Renewable grounds for denial. A covered entity may deny an individual access, provided that the individual is given a right to have such denials reviewed, as required by paragraph (a)(4) of this section, in the following circumstances:
(i) A licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person;
(ii) The protected health information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to such other person; or
(iii) The request for access is made by the individual’s personal representative and a licensed health care professional has determined, in the exercise of professional judgment, that the provision of access to such personal representative is reasonably likely to cause substantial harm to the individual or another person.

IsPursuant to 45 C.F.R. § 164.524(a)(4), Relator has referred the subject documents to an independent healthcare professional, who, as of this date, has not rendered an opinion.

The trial court’s ruling states, in part, “... [ajfter review of applicable federal regulations, the Court is of the opinion that the subject records should be produced and the deposition of ANNE FOURNET proceed as scheduled.” In a handwritten note below the trial court’s order, it refers the reader to La.Code Evid. art. 510(B)(2)(d). Article 510 addresses the health care provider-patient privilege and provides, in pertinent part:

B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
(2) Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
(d) When the communication relates to the health condition of a patient when the patient is a party to a proceeding for custody or visitation of a child and the condition has a substantial bearing on the fitness of the person claiming custody or visitation, or when the patient is a child who is the subject of a custody or visitation proceeding.

Thus, applying Article 510 to the instant case, there is no health care provider-patient privilege between Ms. Fournet and Hunter under Louisiana law because custody and visitation proceedings are excepted from the privilege. Accordingly, the question becomes whether HIPPA precludes the disclosure of information at issue here. We find that it does not.

| ¿The federal provisions of HIPPA are set forth in the United states Code, Title 42, which is entitled Public Health and Welfare. The general provisions indicate that HIPPA provides a uniform reporting system for health service facilities and organizations; thus, HIPPA was designed to maintain control over federal dollars spent for medical services. Given this statutory design and the stated purpose of HIPPA, courts have specifically declined to hold that this legislation creates the privilege claimed by Relator. Indeed, it has specifically been held that HIPPA does “not create a federal physician-patient privilege and that [its] Privacy Rule is procedural in nature.” Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir.2004). This supports the contention that HIPPA was not intended to apply to Louisiana laws governing child custody or to child custody proceedings held in family courts; therefore, Louisiana law applies in those instances. The joint custody provisions set forth in La.R.S. 9:351 provide either parent access to a minor child’s medical records and that such access cannot be denied solely due to lack of designation as a custodial parent. That statute provides that:

Notwithstanding any provision of law to the contrary, access to records and information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to a parent solely because he is not the child’s custodial or domiciliary parent.

Considering same in light of Article 510 as quoted above, which clearly provides that the privilege does not apply to minor patients involved in custody disputes, Louisiana law provides Mr. Bihm access to Hunter’s medical records.

Even assuming arguendo that HIP-PA does apply, it would not preempt Louisiana law as maintained by Relator. HIP-PA preempts a “less stringent” state law. Thus, unless Louisiana law imposes a stricter requirement on the disclosure of the |Binformation sought by.the parties, Relator contends that HIPPA is controlling. In this case, however, Louisiana law imposes strict requirements with regard to the disclosure of medical records. The Louisiana Code of Evidence article 510 sets forth a health care provider-patient privilege which clearly protects the disclosure of a patient’s medical records. There are few circumstances, such as a custody dispute of a minor child, which circumvent this protection. Relator has not shown that Article 510 provides less stringent protection with regard to the disclosure of the records maintained by Ms. Fournet, thus, HIPPA does not preempt Article 510. Accordingly, we find no merit in Relator’s arguments.

CONCLUSION

The judgment of the trial court is affirmed. Costs are assessed against Relator.

WRIT DENIED.