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

text:
    SUCCESSION OF Mary Ory FEITEL.
    No. 2005-CA-1482.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2007.
    Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., Stuart H. Smith, Smith Stag, L.L.C., New Orleans, LA, for Appellant.

      Thomas A. Casey, Jr., Miriam W. Henry, Jones Walker Waechter Poitevent Car-rere & Denegre, New Orleans, LA, for Appellee.
    (Court Composed of Judge DENNIS R. BAGNERIS, Sr., Judge, MAX N. TOBIAS, JR., And Judge, EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

I,This ease concerns a dispute over the ownership of antique furniture bequeathed to appellant, Robert Travis Kenny, M.D. (“Dr.Kenny”), by Mary Ory Feitel (“Mrs.Feitel”), who died testate on 24 August 2001.

Mrs. Feitel left behind both a statutory will, dated 22 December 1989, and an olo-graphic notarized codicil, dated 18 January 1990. The codicil stated that Mrs. Feitel “wishes to leave the antique furniture in my bedroom, in my apartment, to Dr. Robert Travis Kenny, our old friend and physician of my deceased husband, Arthur and myself. Free of all taxes.” The validity of the will and the codicil are not being challenged; rather, the testamentary co-executors, Edward B. Ory (“Ory”) and Iris B. Ory (collectively “co-executors”), contend that the furniture in question was not owned by Mrs. Feitel at the time of her death, but rather was owned by a family partnership, Edward B. Ory Commercial Enterprises (“the partnership”).

In September 2001, Dr. Kenny filed a “Petition to Probate Codicil and to Appoint Provisional Administrator” and was appointed provisional administrator of Mrs. Feitel’s succession on 12 October 2001. The co-executors filed a motion to dismiss and/or exception of lack of subject matter jurisdiction, which was | ¡.ultimately denied. On 24 June 2002, the co-executors filed a petition to probate Mrs. Feitel’s will and were confirmed as co-executors of the succession. The co-executors filed a Detailed Descriptive List of Assets and Liabilities of the succession.

On 19 September 2002, Dr. Kenny filed a Motion to Traverse the detailed descriptive list filed by the co-executors on the grounds that the antique bedroom furniture that was bequeathed to him was omitted from the list. Dr. Kenny’s Motion to Traverse was set for hearing on 15 April 2005. On 31 May 2005, the trial court rendered judgment denying the Motion to Traverse, finding that the antique bedroom furniture in question was owned by the partnership and not by Mrs. Feitel at the time of her death.

On appeal Dr. Kenny assigns two errors committed by the trial court. He asserts that the trial court erred in determining that the furniture was not owned by the succession and in denying the motion to traverse the detailed descriptive list.

First we look to the alleged factual error made by the trial court. We note that we are bound to review the factual findings of the trial court using a manifest error/clearly wrong standard. Succession of Dorand, 94-1627, p. 5 (La.App. 4 Cir. 7/26/95), 659 So.2d 523, 526, citing, Moody v. Moody, 622 So.2d 1381 (La.App. 1st Cir.1993). See also, Succession of Steckler, 97-1243, p. 6 (La.App. 5 Cir. 5/27/98), 712 So.2d 1066, 1069-70. Thus, if there is any reasonable factual basis for the finding of the trial court, we are required to affirm.

The trial court heard live testimony from Ory, his son, and Dr. Kenny. Ory, Mrs. Feitel’s son, testified that the family partnership was created in 1954 as a venture capital partnership. Mrs. Feitel was a partner, although in 1989 she made an inter vivos donation to her grandson, Edward P. Ory, of her interest in the | .¡partnership. A partnership agreement dated 8 May 1984 references the ventures undertaken in the past by the partnership, and antiques are included. The co-executors also introduced into evidence a sample antiques inventory for Mary Ory Antiques, which Ory testified was a subdivision of the partnership. The inventory is not dated, but does list each antique with the date acquired, the dealer from whom it was acquired, and the cost, as well as the “destination” of each item. A tax return for the partnership from 1978 also lists antiques as an investment for the partnership in the amount of $43,197.00. Ory testified that Mrs. Feitel wanted to run an antiques business, and that the partnership funded the business as a capital venture. He further testified that the antique bedroom furniture in question had belonged to the partnership for decades and had been kept in many locations over the years prior to its being kept by Mrs. Feitel at her French Quarter apartment. He testified that it had never been personally owned by Mrs. Feitel, but rather had been inventory in her antiques shop.

Ory admitted that the antique bedroom furniture in question was in Mrs. Feitel’s French Quarter apartment and that it was removed by the Neal Auction Company prior to her death. He testified that the auction house was advised that the furniture belonged to the partnership, even though none of the documentation referencing the auction of the furniture acknowledges that fact and refers to the furniture as “property of Mrs. Mary Ory Feitel.” Ory further testified that Mrs. Feitel was aware that the contents of her apartment were being inventoried and prepared for auction, and that she never mentioned the bequest to Dr. Kenny.

DEdward P. Ory, Mrs. Feitel’s grandson, testified concerning the financial statements of the partnership, and confirmed that he and his father were managing partners. He recalled being notified of the codicil by Dr. Kenny, and he advised Dr. Kenny that the furniture belonged to the partnership. He confirmed that antiques were a part of the ventures undertaken by the partnership over the years, and testified that Mrs. Feitel was aware that Neal Auction House was to sell the furniture removed from her apartment.

Dr. Kenny testified that he had a close friendship with both Mr. and Mrs. Feitel while they lived in the French Quarter. He described Mrs. Feitel giving him a copy of the codicil, and advising him that her son would try to keep him from receiving the furniture. Dr. Kenny also testified that he believed that Ory was jealous of his relationship with Mrs. Feitel.

Louisiana Code of Civil Procedure Article 3137 provides that a sworn descriptive list of the property of a succession is deemed prima facie correct, but it may be traversed if an interested party believes it is in error. La. C.C.P. art. 3137. The burden is on the party filing a motion to traverse to show that the descriptive list is in error. In the present matter, although it is clear that Mrs. Feitel wished to bequeath the antique bedroom furniture to Dr. Kenny, there is sufficient evidence in the record on appeal to support the factual finding of the trial court that the partnership owned the furniture. Therefore, we do not find that the trial court was manifestly erroneous or clearly wrong.

Insofar as the trial court was not manifestly erroneous in its finding of fact, we find that it follows that it did not err as a matter of law with regard to the motion to traverse. The motion to traverse was heard and both sides were afforded ample opportunity to present evidence on the issue of ownership of the furniture. | sAs this was the only factual issue before the trial court, its resolution in favor of the co-executors leaves no viable basis for the motion to traverse. Therefore, the trial court’s denial of the motion was correct as a matter of law.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Mrs. Feitel moved out of her apartment in the French Quarter and to Lake Charles to live with the co-executors in the months prior to her death.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Allen P. NGUYEN.
    No. 06-KA-969.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Laura Schneidau, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

| ¡.The defendant, Allen Nguyen, has appealed the 30 year sentence imposed for his conviction of attempted second degree murder after being adjudicated a second felony offender. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY:

At trial, the victim, Edward Lavigne (Lavigne) and his passenger, Kristeena Perez (Perez), testified that they stopped at a Shell gas station during the early morning hours of January 1, 1999. At the station, Perez called Lavigne’s attention to an Asian man, who had recently been in an altercation with Lavigne’s niece and nephew. Lavigne testified that he did not know the Asian man. Lavigne testified that as he exited the gas station, he “rolled by” the Asian man and stared at him with an aggressive expression for “about five seconds.” He then drove away from the station.

| ¡¡While driving on the West Bank Expressway, Lavigne saw the van containing the Asian man from the Shell station pull up behind him. A short time later, La-vigne pulled into the parking lot of a storage facility, exited his truck, and walked toward the van gesturing and shouting at its occupants. Perez stayed in the truck.

Lavigne testified that, as he walked towards the van, the van door opened, a man exited and fired a gun at him three times. Lavigne was shot in the abdomen. La-vigne managed to walk back to his truck and drove to a nearby bar for help. The shooter fled the scene in the van.

Although Lavigne testified that he was unable to identify the shooter, Perez testified that she was certain that it was the defendant who fired the shots at Lavigne.

The defendant, Allen Nguyen, was found guilty as charged of attempted second degree murder and was sentenced to 25 years at hard labor. The State filed a multiple bill alleging defendant to be a third felony offender. After granting the defendant’s Motion to Quash one of the predicate offenses, the trial judge sentenced defendant to 40 years at hard labor as a second felony offender. On September 28, 2004, this Court affirmed the conviction, but vacated the habitual offender adjudication and sentence because the record did not reflect that defendant stipulated to the multiple bill or that a multiple bill hearing was held. State v. Nguyen, 04-321 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, writ denied, 2005-0220 (La.4/29/05), 901 So.2d 1064. This Court reinstated the original sentence and remanded.

On June 22, 2005, the State filed a new multiple bill alleging defendant to be a second felony offender, and defendant denied the allegations of the multiple bill. On that same date, a multiple bill hearing was held, and the trial judge found |4defendant to be a second felony offender. On February 2, 2006, the trial judge vacated the original sentence and resentenced defendant to imprisonment at hard labor for 30 years to run consecutively with the sentence defendant was serving in another case. Defendant timely filed a Motion for Appeal that was granted.

ASSIGNMENT OF ERROR NUMBER ONE

In his first Assignment of Error, the defendant argues that his 30-year enhanced sentence is constitutionally excessive because the predicate conviction, burglary of a vehicle, was not a particularly serious crime, and because he accepted responsibility for that crime by entering a guilty plea. He also claims that the sentence is excessive because the facts of the instant case show that the victim wanted to engage in a fight with him. Defendant further contends that the trial court erred by failing to articulate reasons for the sentence in accordance with LSA-C.Cr.P. art. 894.1, especially since the trial judge imposed a consecutive sentence. The State responds that the sentence was not excessive considering the circumstances of the case.

The record reflects that, on June 22, 2005, a multiple bill hearing was held after which the trial judge found defendant to be a second felony offender. At the sentencing hearing on February 2, 2006, defense counsel called Sheila Chenevert to present testimony on defendant’s behalf. Chenevert testified that she represented Louisiana Coalition for Reform, a faith-based non-profit organization that focused on helping inmates prepare to successfully re-enter society. She further testified that she was familiar with defendant’s incarceration, and that he had taken advantage of every positive program, but mainly the faith-based [ .¡programs that had proven to be successful. Chenevert indicated that defendant had used his incarceration to help others, and that he had obtained certificates for all the programs he completed. She stated that her organization supported defendant and his family, and she asked the trial judge for leniency in sentencing.

The prosecutor reminded the trial judge that defendant had a simple burglary conviction in 1997, and that defendant had pleaded nolo contendere to attempted first degree murder, a crime of violence, when he was a juvenile. After hearing arguments of counsel, the trial judge vacated the previous sentence and resentenced defendant to imprisonment at hard labor for 30 years to be served consecutively with the other sentence defendant was presently serving. He did not provide reasons for the sentence.

The record reflects that defendant did not file a Motion to Reconsider his enhanced sentence as required by LSA-C.Cr.P. art. 881.1, nor did he orally object to the sentence at the hearing. Nevertheless, this Court has reviewed a defendant’s constitutional challenge of his sentence even in the absence of an objection to the sentence or a Motion to Reconsider. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, writ denied, 1999-3148 (La.4/20/00), 760 So.2d 340. The failure to file a Motion to Reconsider Sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a limited review of the sentence for constitutional excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, writ denied, 1999-3217 (La.4/20/00), 760 So.2d 342. Accordingly, the sentence will be reviewed only for constitutional ex-cessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is | r,grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739 (La.1992).

In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 868 So.2d at 880. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192.

In the instant case, the defendant was convicted of attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. At the time the offense was committed in 1999, the penalty for a violation of those statutes was imprisonment at hard labor for not less than 10 nor more than 50 years without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:27 D(l); LSA-R.S. 14:30.1 B. The trial judge sentenced defendant to imprisonment at hard labor for 25 years. On remand, after being adjudicated a second felony offender, the trial judge vacated the original sentence and resentenced defendant under the multiple bill statute to 30 years at hard labor to run consecutively to the sentence he was presently serving.

|7LSA-R.S. 15:529.1 A(l), the multiple bill statute, provides in pertinent part:

(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

According to LSA-R.S. 14:27 D(l), LSA-R.S. 14:30.1 B, and LSA-R.S. 15:529.1 A(l)(a), defendant’s sentencing exposure on his enhanced sentence was 25 to 100 years. Clearly, defendant’s 30-year enhanced sentence was on the low end of the sentencing range. Thus, we find that the 30-year enhanced sentence is not constitutionally excessive. As the State noted in its brief, defendant opened fire on the victim in a public place, causing serious injury to the victim. We further note that defendant has a conviction for simple burglary, and he pleaded nolo contendere to attempted first degree murder, a crime of violence, when he was a juvenile. Additionally, the sentence is supported by jurisprudence. See, State v. Snyder, 97-226 (La.App. 5 Cir. 9/30/97), 700 So.2d 1082.

ASSIGNMENT OF ERROR NUMBER TWO

In his second Assignment of Error, the defendant argues that his trial counsel was ineffective for failing to file a Motion to Reconsider Sentence. He asserts that the failure to file such a motion prevents this Court from reviewing the trial court’s lack of compliance with LSA-C.Cr.P. art. 894.1. The State responds that the ineffectiveness claim is without merit because defendant has not shown a reasonable probability that, but for counsel’s error, his sentence would have been lowered.

The Louisiana Supreme Court has held that a claim of ineffective assistance of counsel is most appropriately addressed through Application for Post-Conviction Relief rather than direct appeal, so as to afford the parties an adequate | ¿record for review. State v. Truitt, 500 So.2d 355 (La.1987). However, if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, cert. denied, 522 U.S. 1124, 118 S.Ct. 1070, 140 L.Ed.2d 129 (1998). The record in this case contains sufficient evidence to decide this issue, and the issue is properly raised by assignment of error on appeal, therefore, we will address the issue in the interest of judicial economy.

The Sixth Amendment of the United States Constitution and Article I, Section 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. According to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffectiveness claim must show (1) that defense counsel’s performance was deficient, and (2) that the deficiency prejudiced the defendant. To demonstrate prejudice under this test, the defendant must show that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland, 466 U.S. at 687, 104 S.Ct at 2064.

This Court has recognized that defense counsel’s failure to file a Motion to Reconsider Sentence cannot “automatically be considered deficient performance.” State v. Williams, 98-1146 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, writ denied, 1999-1984 (La.1/7/00), 752 So.2d 176. This Court has also held that the failure to file a Motion to Reconsider Sentence does not prejudice a defendant when the court reviews the sentence for constitutional excessiveness. State v. Dammeron, 98-378 (La.App. 5 Cir. 9/29/98), 719 So.2d 1151.

However, in the instant case, the defendant complains of a statutory violation. He asserts that his counsel’s deficient performance precludes him from | ¡¡raising the claim that the trial judge failed to comply with LSA-C.Cr.P. art. 894.1. Although defendant is correct in that he is relegated to urging a claim of constitutional exces-siveness due to the absence of a Motion to Reconsider Sentence, remand for more complete compliance with LSA-C.Cr.P. art. 894.1 is not necessary when the record clearly shows an adequate factual basis for the sentence imposed. State v. Thompkins, 04-1062 (La.App. 5 Cir. 2/15/05), 896 So.2d 1165.

Our review of the record clearly shows an adequate factual basis for the sentence imposed. As was discussed above, defendant caused serious injury to the victim when he shot at him multiple times in a public place. Defendant also has a criminal history, including an adjudication for attempted first degree murder as a juvenile. Thus, we find that defendant has not met his burden to support a claim of ineffective assistance of counsel.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent requiring corrective action in this case.

For the foregoing reasons, the defendant’s sentence is affirmed.

AFFIRMED.

      . It is noted that LSA-C.Cr.P. art. 883 authorized the trial judge to order the sentences to run consecutively since the two offenses were not based on the same act or transaction, nor did they constitute parts of a common scheme or plan.


author: MARION F. EDWARDS, Judge.

text:
    Mirna IRULA v. Bob JEAN Doing Business as Airline Skate Center and ABC Insurance Company.
    No. 06-CA-927.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.

      Harold J. Lamy, Barker, Boudreax, Lamy & Foley, New Orleans, Louisiana, for Plaintiff/Appellant.
    Lambert J. Hassinger, Jr., Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Louisiana, for Defendants/Appel-lees.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

Lin this personal injury action, the plaintiffiappellant appeals a motion for summary judgment granted in favor of defendants/appellees. For the reasons that follow, we reverse.

On April 28, 2004, plaintiff, Mirna Irula (“Irula”), filed the instant suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against defendants, Bob Jean (“Jean”) d/b/a/ Airline Skate Center and his insurer, alleging that they were liable for a fracture to Irula’s left ankle sustained at the Airline Skate Center facility (“Airline”). Airline thereafter filed a Motion for Summary Judgment, which the trial court granted on June 29, 2005 following a hearing on June 22, 2005.

Irula timely filed the present appeal.

On appeal, Irula’s sole assignment of error is that the trial court erred in granting summary judgment in light of which she contends is deposition testimony that creates a genuine issue of material fact.

| .¡Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

In the present case, the record before us shows that Irula was a patron at Airline in Metairie on August 23, 2003 for the purpose of attending a birthday party. In her deposition, Irula testified that a boy, approximately 15 or 16 years old, bumped into her on the skating floor and knocked her down. Irula said that she had seen the boy approximately two or three times previously on that date while he was skating on the carpeted area on the side of the rink. She does not know if the boy ran into her on purpose because the incident happened so quickly. She claimed that she believed that Airline was at fault for allowing people to enter the rink too fast from the carpeted area. Irula stated that Jose Villata (“Villata”) |4complained to Airline employees about a lack of control over how patrons were skating at the rink.

The record also contains the deposition testimony of Villata, who indicated that he saw a boy come from the carpeted area and bump into Irula on the skating rink. Villata described the boy as “a black person, approximately 72 to 73 inches tall.” Villata said that he had seen the boy before he bumped into Irula, describing him as “crazy,” “going in and out” along with “a lot of other people.” He also indicated that the boy had run into him one time earlier in the day. Villata said that he complained to employees of Airline about the way that more than one of the other patrons was skating dangerously, not just the one boy in particular. He believes that he made a total of three or four complaints to Airline personnel in a booth above the rink, in the refreshment stand, and to someone working at the door. Vil-lata said that the nature of his complaints was about a lack of security on the skating floor. He also said that he notified rink floor guards of what he thought was dangerous behavior; however, he testified that he did not specifically point out the boy who bumped into Irula.

The deposition testimony of Mario Fuentes (“Fuentes”) was also made part of the record. Fuentes testified that he saw a young man, 15 to 17 years old, go in from the portion of the carpeted area at a fast velocity and knock someone over. Fuentes stated that he had seen the boy four or five times previously but that the boy was not doing anything that Fuentes thought was inappropriate. Fuentes said that he heard Villata complain that the Airline employees were not “having a lot of control over some of the young people,” but that at least one employee ignored Villata.

Airline’s Safety Survey was also in evidence. The report indicated that Irula said at the time of the accident, “I was skating and a small child cut in front of me | r,causing me to lose my balance and fall forward.” The report also indicated that there were approximately 50 skaters on the skating floor at the time of the accident and two floor guards. In an affidavit from defendant Jean, Jean indicates that the “industry standards” for skating rinks recommend that there be one floor guard on duty for every 200 skaters.

In Lambert v. Wheels “R” Rolling Skate Center, Inc., the First Circuit set forth the following analysis in a similar case, which we find illustrative:

It is well settled jurisprudentially that the operator of an amusement facility is not an insurer of the safety of the patrons but is liable for injuries received by them only if he is guilty of negligence. Heard v. Bonnie and Clyde’s of Hattiesburg, Inc., 501 So.2d 1003(La.App. 2d Cir.), writ denied, 503 So.2d 481 (La.1987); Hills v. Skate Country East, Inc., 430 So.2d 1035 (La.App. 4th Cir. [1983]), writ denied, 438 So.2d 568 (La.1983). Prior jurisprudence also held that one who participates in a sport or recreational activity assumes the ordinary risks attendant upon such participation. Heard, 501 So.2d at 1007; Dobard v. Skate Country, Inc., 451 So.2d 1231 (La.App. 4th Cir. 1984); Hills, 430 So.2d at 1037. However, in light of Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), the use of the terminology “assumption of the risk” in recreational activity and sports eases has been abandoned, although the end result is still the same. Under the reasoning set out in Murray, the duty/risk analysis must be applied to these situations. While rink operators must provide skaters with a reasonably safe area in which to skate, they either owe no duty or have not breached their duty to a participant by failure to protect him or her from reasonable risks ordinarily attendant upon such participation. 521 So.2d at 1129, 1134. For example, some bumping or jostling is an ordinary risk of participation in roller skating. Dobard, 451 So.2d at 1233; Hills, 430 So.2d at 1037. Therefore, the defendant in Hills did not breach its duty to provide skaters with a reasonably safe place to skate when the plaintiff was injured by skaters who suddenly and without warning dashed onto the floor, causing her to fall and injure herself. On the other hand, the defendant in Dobard did breach its duty by failing to prevent the prolonged, observable misconduct of wildly skating patrons which caused plaintiffs injuries.

|Jn the present case, Airline argues that Irula’s allegations closely match those considered and rejected by the court in Hills v. Skate Country East, Inc. Specifically, Airline relies on the court’s holding in Hills to defeat Irula’s contention that it was negligent in not posting guards at every entrance to the skating floor.

Conversely, Irula argues that this case more closely resembles the facts considered by the court in Phillips v. Skate Country East in which the Fourth Circuit held that a skating rink was liable for injuries sustained by a patron who was injured by fellow skaters, who had been previously seen by plaintiff speeding and weaving around the other skaters, and whose behavior was within the control of the floor guards whose duty it was to prevent such practices. In response to this argument, Airline contends that, even if the child in question had misbehaved prior to plaintiffs fall, there is no cause-in-fact between that conduct and the plaintiffs fall. Airline further argues “there is no evidence that the small child was engaged in any conduct immediately prior to the accident so as to place a duty on the operator to take action against him.”

Louisiana courts have also found, however, liability on the part of a rink operator who failed to take action against a skater whose reckless behavior was observed over a longer period of time. In Dobard v. Skate Country, Inc., the court, in affirming a jury verdict against a rink operator, reasoned:

In the instant case, as in Phillips, the testimony of plaintiff and her witnesses establishes that the offending youths had skated wildly for some time prior to the accident, posing a danger to plaintiff and other patrons. Although defendant’s floor manager testified that he had removed the two young men from the floor for twenty minutes prior to plaintiffs |7injury, plaintiffs witnesses recalled only oral warnings that were disregarded.
Under these circumstances, we find no error in the jury’s conclusions that plaintiff was free from fault, that plaintiff had not knowingly and voluntarily assumed the risk of injury, and that defendant was negligent by breaching its duty to supervise more closely the horseplaying skaters to prevent this accident.
In. so holding, we distinguish Hills v. Skate Country East, Inc., 430 So.2d 1035 (La.App. 4th Cir.1983), relied on by defendants. In Hills, the defendant rink was exonerated from liability to a plaintiff bumped by an unidentified skating couple who had “dashed” onto the floor from a snack bar area. The evidence in Hills indicated that the rowdiness of the unidentified couple 30 minutes before the accident was not connected in time or place with the injury, and that they had not engaged in any conduct immediately prior to the accident to place a duty on the operator to take action against them. We noted in Hills that the couple’s “sudden and precipitous conduct” was the “antithesis of the ongoing, observable misconduct which supports liability to a patron who is bumped and falls.”
In the instant case, unlike Hills, the evidence supports the jury’s finding, based on credibility, that the offending skaters’ misconduct was ongoing for quite some time prior to plaintiffs injury, rather than sudden and unexpected. A reasonable conclusion can be reached that the jury believed plaintiffs version of the ongoing wild behavior of the offending skaters.

In the present case, the record contains testimony from Villata that the individual who bumped in Irula had been observed skating wildly earlier in the evening and had, in fact, also bumped into Villata. Villata also testified that he made repeated attempts to notify the management at Airline of behavior that he ■ believed would pose a danger to other patrons. The deposition testimony of Fuentes indicated that at least one of Villata’s attempts to notify the management of Airline went unheeded. We find that this evidence creates a genuine issue of material fact regarding Airline’s liability for Irula’s injury sufficient to defeat summary judgment.

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed.

REVERSED.

      . Bua v. Dressel, 96-79 (La.App. 5 Cir. 5/28/96), 675 So.2d 1191, writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348 (citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180).

      . Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5 Cir. 4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305.

      . 552 So.2d 732, 734 (La.App. 1 Cir. 1989), writ denied, 556 So.2d 1265 (La.1990).

      . 430 So.2d 1035 (La.App. 4 Cir. 1983), writ denied, 438 So.2d 568 (La.1983).

      . 420 So.2d 730 (La.App. 4 Cir. 1982), writ denied, 423 So.2d 1162 (La.1982).

      .451 So.2d 1231, 1233-34 (La.App. 4 Cir. 1984).


author: MICHAEL E. KIRBY, Judge.

text:
    Tremekia J. BOYKINS v. Darren J. BOYKINS.
    No. 2004-CA-0999.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2007.
    Rehearing Denied May 23, 2007.

      Roderick Christopher Patrick, World Trade Center, New Orleans, LA, for Plaintiff/Appellee.
    Darren J. Boykins New Orleans, LA, In Proper Person, Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

Bln this domestic matter, Darren Boy-kins appeals the trial court judgment partitioning the community property owned by Mr. Boykins and his former wife, Tremekia Boykins.

The parties were married on June 26, 1999, and the community property regime was terminated as of June 10, 2002. The trial court rendered a judgment of divorce on June 25, 2003. Subsequent to the judgment of divorce, a three-day trial was held on Ms. Boykins’ petition to partition community property. The trial court rendered judgment on October 8, 2003, recognizing certain assets as community assets of the parties. The court set forth a detailed list of these assets, and a detailed list of community debts and ordered that all assets and liabilities of the community be adjudicated to Ms. Boykins. The court stated that its order required Ms. Boykins to extinguish the entire community debt. Included in the community assets were two businesses co-owned by the parties, Jazz City Parking of New Orleans, Inc. (“Jazz City Parking”) and Daily Klean Janitorial Supply Company (“Daily Klean”). The court specified that it was granting Ms. Boykins full | {¡ownership in Jazz City Parking, all inventory, assets and debts of Daily Klean and all movable property acquired during the community. The court also stated that all other property not specifically enumerated in the judgment as community property was adjudicated as separate property of the parties.

Mr. Boykin was awarded all items of personal property in his possession as described in Ms. Boykins’ sworn descriptive list, and the judgment listed those items. The court also allocated to Mr. Boykins the obligation for the GrayStar mortgage encumbering the Convention Center lot owned by the parties in the original amount of $81,000.00 plus interest and penalties, and ordered Mr. Boykins to extinguish the mortgage.

The judgment further ordered that Ms. Boykins is to receive reimbursement for separate funds paid on community obligations, and the judgment listed those items. The parties were each awarded the items of clothing and furniture in their possession, and were each ordered to pay their own federal and state tax obligations that accrued during the existence of the community. The court denied Ms. Boy-kins’ claims relating to Mr. Boykins’ dental work and amounts paid to Divine Providence Full Gospel Baptist Church, and also denied Mr. Boykins’ claim for reimbursement for payments made by the community on Ms. Boykins’ separate mortgage during the existence of the community. After tallying the assets and liabilities of the parties, and taking into account the reimbursement amounts ordered by the court, the court ordered Mr. Boykins to make an equalizing payment to Ms. Boy-kins, within thirty days, in the amount of $6,890.17. The court lafurther ordered the parties to take all steps necessary, including executing any reasonably necessary documents, to give the judgment effect.

In reasons for judgment, the trial court noted that in support of her sworn descriptive list, Ms. Boykins presented credible testimony supported by a number of exhibits on the value of the community assets and debts. She also presented her original checking account statements, check registers and cash receipts to support her claims of reimbursement. Mr. Boykins chose not to take the stand or produce any testimony, but instead relied upon a few items of evidence and additional proffers. The court found that Mr. Boykins did not present any credible proof in his behalf.

Mr. Boykins appealed the trial court judgment, and has set forth twelve assignments of error in his appeal brief. In his first assignment of error, Mr. Boykins argues that the trial court erred as a matter of law in not following the provisions of La. R.S. 9:2801 relative to the partitioning of community property. Mr. Boykins claims that the trial court erred in not allowing him to submit his sworn descriptive list into evidence, even though the court allowed Ms. Boykins to submit her sworn descriptive list. The record shows that Ms. Boykins introduced her sworn descriptive list into evidence at the beginning of the three-day trial. Her attorney noted that the documents introduced at trial by Ms. Boykins were available to Mr. Boykins’ prior counsel for review before trial began. Mr. Boykins did not attempt to submit his sworn descriptive list into evidence until the third day of trial, and Ms. Boy-kins’ attorney had not seen the list prior to that time. For Rthese reasons, the trial court refused to allow Mr. Boykins to introduce his sworn descriptive list into evidence.

A trial court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal unless there is an abuse of that discretion. Miller v. Southern Baptist Hospital, 2000-1352 p. 5 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 15. The trial court’s decision to exclude Mr. Boykins’ list was not an abuse of discretion. Furthermore, the court’s decision to accept Ms. Boykins’ list was not an abuse of discretion.

Mr. Boykins also argues that the trial court erred in accepting the valuations listed in Ms. Boykins’ sworn descriptive list. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The trial court stated in its reasons for judgment that Ms. Boykins presented credible testimony in support of her sworn descriptive list. We conclude that the trial court’s credibility determination was reasonable, and the decision to accept the valuations provided by Ms. Boykins was neither manifestly erroneous nor clearly wrong.

Mr. Boykins further objects to the procedures used by the trial court in determining the partitioning of community property, and in the allocations ordered 15by the court regarding the community assets and liabilities. A review of the record shows that the trial court properly followed the provisions of La. R.S. 9:2801 in this partition proceeding. Furthermore, we find no merit in Mr. Boykins’ argument that the trial court failed to allocate all the assets and liabilities of the parties. Mr. Boykins did not properly offer evidence of the additional liabilities that he claims were not listed in Ms. Boykins’ sworn descriptive list. Accordingly, the trial court did not err in failing to allocate other liabilities allegedly owed by the parties.

Mr. Boykins’ second argument is that the trial court erred in not granting his request for a continuance. A trial judge has wide discretion in controlling his docket, in case management, and in determining whether a motion for continuance should be granted. Crawford v. City of New Orleans, 2001-0802, p. 4 (La.App. 4 Cir. 1/23/02), 807 So.2d 1054, 1056. Absent a showing of abuse of that discretion, a trial court’s decision on a motion for continuance will not be disturbed on appeal. Id. Mr. Boykins made his request for a continuance on the day trial was scheduled to begin. In denying the continuance, the trial court noted that the parties had been given ample opportunity to prepare for trial and notice that trial was going to go forward on the scheduled date. We find no abuse of discretion in the trial court’s decision to deny Mr. Boykins’ request for a continuance of trial.

Mr. Boykins’ third argument is that the trial court erred in granting Ms. Boykins reimbursement for expenses relating to three vehicles. He claims that these vehicles were used exclusively by Ms. Boykins during her separation from Mr. Boykins, and that she should be responsible for these expenses. Ms. Boykins | ^listed these items in her sworn descriptive list of community property. Mr. Boy-kins failed to offer any evidence to rebut that these vehicles were community property. Thus, the trial court’s decision to order Mr. Boykins to reimburse Ms. Boy-kins for ½ of the expenses relating to these items was not error.

The fourth argument is that the trial court erred in placing judgments in its reasons for judgment. Specifically, Mr. Boykins objects to the trial court’s statements in its reasons for judgment regarding the division of tax liabilities for Jazz City Parking, and the obligation of Mr. Boykins in the event that Ms. Boykins extinguishes the GrayStar obligation. Reasons for judgment are not controlling and do not constitute the judgment of the court. Kaufman v. Adrian’s Tree Service, Inc., 2000-2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104. A trial court’s reasons for judgment, while defining and elucidating a case, form no part of the official judgment it signs and from which appeals are taken. Id. In this case, even though the trial court improperly included language normally used in judgments in portions of the reasons for judgment, nothing in the reasons for judgment constitutes the judgment of the court and the parties in this matter are only bound by the terms of the trial court’s judgment.

Mr. Boykins’ fifth and sixth arguments allege error in the trial court’s finding that Mr. Boykins misappropriated funds from Jazz City Parking, the parking lot business owned by the parties. The trial court’s finding that Mr. Boykins misappropriated funds from this business is supported by the testimony and evidence provided by Ms. Boykins. Mr. Boykins did not provide any |7testimony or documentary evidence at trial to refute Ms. Boykins’ evidence on the issue of misappropriation of funds. As stated above, the trial court found Ms. Boykins to be a credible witness, and we find the court’s credibility determination to be reasonable.

In Mr. Boykins’ seventh assignment of error, he argues that the trial court erred in not labeling the GrayStar loan as a community debt. The trial court allocated to Mr. Boykins the GrayStar mortgage encumbering the Convention Center lot in the amount of $81,000.00 plus all interest and penalties, and ordered Mr. Boykins to extinguish said mortgage. The court noted in reasons for judgment that Mr. Boykins’ encumbrance of this property was in violation of the court’s October 4, 2002 order, and for that reason, this entire debt was allocated to Mr. Boykins. In his brief, Mr. Boykins acknowledges that he was prohibited from encumbering this property, but claims nonetheless that this debt should be designated as a community debt because the loan was obtained for the benefit of the community.

The trial court did not err in allocating the GrayStar loan obligation solely to Mr. Boykins. We find no merit whatsoever in Mr. Boykins’ contention that the parties should share this debt obligation, which Mr. Boykins admittedly obtained in direct violation of a court order.

1 sMr. Boykins’ eighth assignment of error deals with the trial court’s decision to adjudicate as community property three lines of credit obtained from banks for the purpose of purchasing land for Jazz City Parking. Mr. Boykins argues that these lines of credit should have been classified as the separate property of Ms. Boy-kins because he allegedly signed waivers stating that he had no rights to the funds she was borrowing to loan to the parking lot business.

The record shows that Ms. Boykins’ offered testimony and documentary evidence in support of her contention that these lines of credit were obtained to buy the property used for the parking lot business owned by both parties during the community regime. Mr. Boykins did not controvert this evidence. The trial court found that Ms. Boykins established that these lines of credit were community property, and we find no error in that conclusion.

In his ninth assignment of error, Mr. Boykins argues that the trial court erred in finding that the house located at 6920 Queensway Drive in New Orleans was Ms. Boykins’ separate property. He argues that the court erred in not classifying this property as community property. Alternatively, Mr. Boykins argues that if the property is Ms. Boykins’ separate property, then the trial court erred in not awarding Mr. Boykins reimbursement for his half of the mortgage payments made on the property during the existence of the community.

At trial, Ms. Boykins established that she purchased the property on Queensway Drive two days before her marriage to Mr. Boykins. However, Mr. Boykins argues that the parties had an “oral agreement” that the property would be |scommunity property. Ms. Boykins testified that she purchased the property for herself, and not for her and Mr. Boykins. Mr. Boykins did not offer any evidence to refute Ms. Boykins’ assertion that this was her separate property. Therefore, the trial court correctly held that this property is Ms. Boykins’ separate property.

The trial court also denied Mr. Boykins’ claim for reimbursement for payments made by the community on Ms. Boykins’ separate mortgage. In reasons for judgment, the trial court noted that neither Mr. Boykins nor Ms. Boykins presented any evidence to verify payments on the mortgage made during the existence of the community. Accordingly, the trial court did not err in denying Mr. Boykins’ claim for reimbursement.

Mr. Boykins’ tenth assignment of error is that the trial court erred in not granting him half of the profits of Jazz City Parking for the period of February 2003 through September 2003, and in granting Ms. Boykins an award for her management of this business from April 2003 through September 2003. As stated above, we find no error in the trial court’s finding that Mr. Boykins misappropriated funds from Jazz City Parking. The court found that this misappropriation totaled $218,882.43. Additionally, Ms. Boykins testified regarding her management duties performed for this business, and Mr. Boy-kins did not offer any evidence to refute this testimony. Given the evidence concerning Mr. Boykins’ misappropriation of funds from the parking lot business, and evidence concerning Ms. Boykins’ management of the business, we conclude that the trial court did not err in failing to award Mr. Boykins half of the profits from Jazz City | inParking for the period of February 2003 through September 2003, nor did the court err in allowing Ms. Boykins reimbursement for fees earned for managing this business from April 2003 through September 2003.

In his eleventh assignment of error, Mr. Boykins argues that the trial court erred in classifying Jazz City Parking as community property rather than as his separate property. Specifically, he claims that the trial court erred in finding that a sole proprietorship owned before marriage and incorporated during marriage is community property. Although the court made no such specific finding in its judgment, the court did classify the business entity of Jazz City Parking as community property.

At the time of the trial of the partition of community property, the parking lot business owned by the parties was a corporation, i.e., Jazz City Parking of New Orleans, Inc. This corporate entity was created during the existence of the community, and is therefore community property. See La. C.C. article 2338. Mr. Boykins did not offer any evidence to rebut the presumption that this property belonged to the community. See La. C.C. article 2340. Accordingly, the trial court did not err in classifying Jazz City Parking as community property.

Finally, Mr. Boykins argues in his twelfth assignment of error that the trial court erred in the valuations of Jazz City Parking and Daily Klean. As stated above in the discussion of Mr. Boykins’ first assignment of error, the trial court found that Ms. Boykins presented credible testimony in support of her sworn descriptive list, which included these two businesses. Mr. Boykins did not offer l^any evidence to rebut the valuations offered by Ms. Boykins. The trial court’s credibility determination as to Ms. Boykin was reasonable, and the decision to accept her valuations of the two businesses was neither manifestly erroneous nor clearly wrong.

In addition to his twelve assignments of error, Mr. Boykins also listed several issues of law presented for review, most of which have been covered in his assignments of error. Mr. Boykins asserts that the court improperly awarded Ms. Boy-kins’ attorney some of his personal assets. There is no such award in the trial court’s judgment. Mr. Boykins’ allegations regarding perjury and misrepresentation of information to the court are completely unsubstantiated. And finally, in response to Mr. Boykins’ statement regarding whether a court should be lenient, indulgent or relax court rules for a pro se litigant, we note that it is clear from the record that the trial court gave Mr. Boy-kins a tremendous amount of leniency at trial with regard to his self-representation in this matter.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . Mr. Boykins, who represented himself at trial and in this appeal, improperly attached numerous exhibits to his brief that were not introduced at trial. Those exhibits are not part of the record, and will not be considered by this Court. As a court of record, we must limit our review to that which is in the record before us. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. D.M., Appellant.
    No. 42,038-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Don Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before BROWN, STEWART & PEATROSS, JJ.
   PEATROSS, J.

[ defendant, D.M., was charged with aggravated incest. After being found competent to stand trial, Defendant was convicted as charged in a bench trial and was sentenced to ten years at hard labor, with credit for time served. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

An investigator for the DeSoto Parish Office of Child Protective Services (“OCS”), Janet Arnold, received a report alleging that Defendant was molesting his grandchildren. Defendant was in his mid-50s and had been diagnosed with and was being treated for paranoid schizophrenia. He lived with his daughter, who is also the mother of the victim in this case. Ms. Arnold went to the home to talk to her and her two children, B.M. and B.M.’s sister. B.M. was a 14-year-old boy with Asper-ger’s Syndrome, a form of autism, who was in special education classes at school. During her interview with B.M., he denied that Defendant had ever tried to have sex with him, but stated that he did not know what oral sex meant. Ms. Arnold testified that, after she explained oral sex to B.M., he quickly responded that he and Defendant did that when Defendant would take him for walks in the woods. B.M. told Ms. Arnold that Defendant would ask him to pull down his pants and then Defendant would perform oral sex on him. B.M. told |2Ms. Arnold that this had occurred three times, and after each time, Defendant would take him to a nearby store for cigarettes or candy.

Ms. Arnold further testified that, during this initial interview, the mother indicated to her that she was aware of a prior allegation that Defendant had molested B.M.’s sister, but that she had no knowledge of Defendant molesting B.M. Ms. Arnold informed her supervisor, removed the children from the home and contacted DeSoto Parish Sheriffs Office.

Adam Ewing, an investigator for the DeSoto Parish Sheriffs Office, conducted an investigation after being contacted by Ms. Arnold. Officer Ewing testified that B.M. told him about the walks in the woods where Defendant would put his mouth “between his legs” and then take him to the Big Bass Grocery Store for candy. Officer Ewing explained that the neighborhood where they lived was surrounded by woods and that the Big Bass Grocery Store was around the corner from the home. Officer Ewing further testified that B.M. told him that Defendant would pick up leaves from the ground, roll them in notebook paper and let him smoke it.

Officer Ewing testified that B.M. was very uncomfortable discussing this and it was a difficult interview due to B.M.’s mental and emotional problems, but he did not believe anyone had prompted B.M. to make the allegations or that his statement appeared to be rehearsed. Officer Ewing testified that he did not know of a reason for B.M. to make up such an allegation and that he did not think B.M. could understand how he might gain from doing so.

IsRegarding the mother, Officer Ewing testified that the mother was aware of a past allegation that Defendant had molested B.M.’s sister but that she told him that she was not concerned about Defendant living in the home with them because there was no proof of those allegations. Officer Ewing also testified that the mother wanted to delay the investigation until she could arrange for Defendant’s disability check to come directly to her.

It was Officer Ewing’s belief that the report to OCS originated from a social worker who worked with Defendant while he was in the mental health unit of the VA hospital. Officer Ewing testified that he did not think that the mother induced B.M. to make false allegations because she did not want law enforcement or OCS involved in her family and that there was no evidence that she wanted to “get rid of Defendant.”

Officer Ewing also interviewed Defendant, during which Defendant told him about the walks in the woods and the trips to the Big Bass Grocery Store. Defendant, however, denied any sexual contact between himself and B.M. According to Officer Ewing, Defendant explained that B.M. would get rowdy after eating candy and that he would have to wrestle him to the floor. Defendant also stated that B.M. pulled out his penis one time and asked Defendant to “suck it,” but that he did not do it. Defendant told Officer Ewing that he did not tell his daughter about this incident because he did not want to get B.M. in trouble. Defendant also told Officer Ewing that allegations regarding B.M.’s sister when she was two years old stemmed from her walking up to him naked, pulling down his pants and'climbing onto his lap. Defendant told Officer Ewing that he put her on the |4floor and told her not to do that. Defendant also told Officer Ewing that he had schizophrenia and had been taking medication for it for years.

B.M. testified that his grandfather, Defendant, had touched his private parts with his hand and mouth when they were in the woods and that he had done this three times. B.M. also testified that his mother did not tell him to say these things about his grandfather.

The mother testified that Defendant had gotten in trouble in Colorado for stabbing a security guard and that he had not been taking medication for his schizophrenia at the time. As a condition of his probation, which was transferred to Louisiana for supervision, Defendant was to live with his daughter while on probation, take his medication and seek mental health therapy. The mother testified that Defendant came to live with her in late August 2004, but that he did not take his medication regularly or seek therapy.

The mother testified that she learned of the allegations regarding B.M. during December 2004, when Defendant had been committed to the mental health unit of the VA Hospital. She further testified that, when Defendant did not take his medication, he would talk to people who were not there and that he had to be committed because he was not taking his medication. While Defendant was in the hospital, the mother found a note written by B.M., wherein he stated that he wanted to sue Defendant or have him put in jail. The mother testified that she had also read something in Defendant’s journal that made her feel uncomfortable, so she asked both B.M. and his sister if Defendant had been touching them or playing with|Bthem. B.M. said no, but the mother testified that she could tell that he was lying. She explained that she had had problems with B.M. “playing with himself’ and that B.M. told her that his penis had been hurting, that he showed it to Defendant and that the Defendant rubbed it to make it feel better. The mother testified that she called OCS because B.M. told the same story to his grandmother.

The mother testified that she did not need Defendant to live with her in order to get money from his disability check because she had a job and her son and husband both received disability checks. Despite her testimony that she called OCS to report the inappropriate behavior allegations that her children had related to her, also testified that she did not believe B.M.’s story and that she believed that OCS gave him the idea. The mother testified that B.M. has a low I.Q., that he was very impressionable and that he was susceptible to repeating something he was told to say. The mother testified that he might have been motivated to make up these allegations because he wanted to live with his grandmother, with whom he had lived until age 11. Finally, the mother also testified that B.M. was a compulsive liar and that B.M. had gotten in trouble in the past for masturbating and for talking about sex at school and on the school bus.

The State also presented the testimony of Marsha McCall, the supervisor of investigations for the DeSoto Parish OCS. Ms. McCall testified that the agency had received other complaints regarding the household, but that the mother had never been the one to call and report a problem. Rather, Ms. McCall testified that the reports were made by people | ¿who had been professionally mandated to report suspected problems. Ms. McCall testified that they received a report that siblings in the household were engaging in sexual acts initiated by B.M. and that the investigation was begun to see whether the mother was properly supervising the children; Ms. McCall testified that OCS does not investigate sibling-on-sibling sexual activity specifically, but that it does investigate to see whether the siblings are properly supervised. Ms. McCall further testified that it was during this investigation that OCS learned that Defendant was sexually abusing B.M. According to Ms. McCall, the mother never filed a complaint, but she had mentioned to Ms. Arnold that there were some problems with Defendant and the children.

As previously stated, Defendant was found competent to stand trial; and, based upon the evidence presented at the bench trial, the trial court found Defendant guilty of aggravated incest and subsequently imposed a sentence of ten years at hard labor with credit for time served. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The State failed to present sufficient evidence to support the verdict, a conviction of aggravated incest.

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have|7been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,-903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App.2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434, citing State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a ^determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Defendant argues that the State failed to present sufficient evidence to support the verdict of aggravated incest because it was based on the testimony of the child victim and no physical evidence. Defendant argues that the child’s story was inconsistent and that the child lacks credibility. He also asserts that there was no evidence of specific intent offered. We are not persuaded by Defendant’s arguments.

According to La. R.S. 14:78.1, the offense of aggravated incest is defined as follows:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in |flsexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desire of either the child, the offender, or both.

In the case sub judice, the State presented evidence that Defendant was B.M.’s grandfather and that B.M. was 14 years old at the time of the offense. Although the trial court did not specifically state which specific act under Subsection B that it found Defendant to have committed with B.M., the alleged act of performing oral sex on a 14-year-old by a 57-year-old man would satisfy the elemental requirements of sexual battery (La. R.S. 14:43.1), felony carnal knowledge of a juvenile (La. R.S. 14:80), indecent behavior with a juvenile (La. R.S. 14:81) and molestation of a juvenile (La. R.S. 14:81.2). Further, it would meet the requirements of La. R.S. 14:78.1(B)(2) as lewd touching done with the intent to arouse or satisfy the sexual desires of either the child or offender. Accordingly, we conclude that the State presented evidence from which a reasonable fact finder could determine that Defendant had committed each of the necessary elements of aggravated incest.

In regard to Defendant’s argument that the State failed to present evidence of Defendant’s specific intent, we note that aggravated incest is not a specific intent crime because the statute does not require the state to prove that the perpetrator intentionally engaged in the prohibited acts listed in Subsection B. Further, many of the underlying offenses listed in Subsection (B)(1) are not specific offense crimes. Of those underlying offenses in Subsection (B)(1) mentioned above as potential offenses for |inwhich Defendant’s alleged actions qualify, only sexual battery is a specific intent offense. The state is also not required to prove specific intent when proving that the defendant committed the prohibited actions described in Subsection (B)(2). Accordingly, Defendant’s assertion that the State’s alleged failure to present evidence of specific intent somehow constitutes reversible error is without merit.

In addition, Defendant emphasizes that the State’s evidence was primarily from the testimony of the child, B.M., who, according to Defendant, lacks credibility. Defendant argues that such evidence is insufficient on which to base a conviction. We disagree. While Defendant alleges that there were inconsistencies in B.M.’s testimony, he fails to allege what those inconsistencies were. As noted above, in the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, supra. The appellate court does not substitute its own appreciation of the evidence for that of the fact finder, nor does it assess the credibility of witnesses or reweigh the evidence. State v. Robertson, supra; State v. Smith, supra. Further, this court has previously found that the testimony of a sexual assault victim alone is sufficient to convict a defendant. State v. Burnham, 41,146 (La.App.2d Cir.10/11/06), 942 So.2d 571, citing State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490; State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207. The lack of physical evidence Indoes not negate the sufficiency of the evidence because “[s]uch testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant.” State v. Burnham, supra, citing State v. Ponsell, supra.

This assignment of error is without merit.

Assignment of Error Number Two (verbatim): The Court erred by imposing an excessive sentence of ten years at hard labor upon this Defendant.

Defendant argues that his sentence of ten years at hard labor is excessive because the goals of punishment and rehabilitation can be best accomplished with a less severe sentence. Defendant also argues that the trial court failed to provide a factual basis for the sentence imposed. In addition, in his motion to reconsider sentence, Defendant argued that it was cruel and unusual to sentence a 57-year-old man with mental health problems, such as schizophrenia, to ten years’ imprisonment.

We note that Defendant did not argue in the motion to reconsider sentence that the trial court failed to provide a factual basis to justify the ten-year sentence. According to La. C. Cr. P. art. 881.1(E), a defendant must raise a specific ground in the motion to reconsider sentence, and the failure to do so precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Accordingly, because Defendant did not 112argue in the motion to reconsider sentence that the trial court failed to give a factual basis for the sentence imposed, the appellate court is precluded from considering the issue on appeal. Thus, Defendant is relegated to a claim of constitutional excessiveness on appeal.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence | ^violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,-233 (La.App.2d Cir.1/26/05), 892 So.2d 710.

According to La. R.S. 14:78.1(D), the sentencing range for aggravated incest is imprisonment “with or without hard labor, for a term not less than five years nor more than twenty years.” Notably, a sentence of 10 years falls within the low to medium range of the prison term that could have been imposed. Further, had the State sought to sentence Defendant as a habitual offender, he could have been eligible for a prison term between 10 and 40 years. At the sentencing hearing, the trial court stated that it 114noted that Defendant was a second-felony offender, that it had considered the information in the pre-sentence investigation, that it had noted the sentencing guidelines and that it had noted the aggravating and mitigating circumstances. The pre-sentence investigation showed that Defendant was on probation from Colorado for felony menacing at the time he committed the present offense of aggravated incest. The pre-sen-tence investigation indicated that Defendant was on disability for mental health problems and that he reported suffering from paranoid schizophrenia. His pre-sen-tence investigation included a mental health evaluation performed by the Colorado Mental Health Institute, wherein it found that he had a psychotic disorder and that he had a history of being non-compliant with treatment.

Given that Defendant committed the present crime while on probation for another felony offense, we find that there would be an undue risk of Defendant committing another crime during a period of suspended sentence or probation. In light of Defendant’s resistance to mental health treatment, we agree with the trial court that Defendant is in need of correctional treatment in a custodial environment. Further, due to the serious nature of the crime, we conclude that a lesser sentence would deprecate the severity of the crime. The nature of the crime showed that Defendant manifested deliberate cruelty to the victim, that he knew the victim was particularly vulnerable due to his youth and mental disabilities, that he used his position as the victim’s grandfather to facilitate the offense and that he committed this offense on more than one occasion. Significantly, Defendant showed no remorse for his actions and, rather, only insists that there is no evidence | ^against him. Our review of the record and pre-sentence investigation shows that the trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

The sentence of ten years is not grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering. In light of the circumstances of this offense, the trial court did not abuse its discretion, and the ten-year sentence is not constitutionally excessive. This assignment is, therefore, without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, D.M., are affirmed.

AFFIRMED.

      . To protect the minor victim's identity, initials are used rather than full names. There are other individuals involved in this matter also with the initials including the victim’s mother, who is also Defendant's daughter, and the victim's sister. For clarity, the defendant will hereinafter be referred to only as "Defendant,” the victim's mother will be referred to as "the mother” and the victim’s sister will be referred to as "B.M.’s sister.”

      . At the time of the trial of this matter, the mother was incarcerated pursuant to a plea bargain on the charge of accessory after the fact to aggravated incest surrounding the same incidents involved herein.


text:
    Jessie Mae BROWN v. TULANE MEDICAL CENTER HOSPITAL AND CLINIC, Dr. Raoul Rodriguez, and Dr. Malcolm W. Marks.
    No. 2004-CA-0688.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2007.
    Rehearing Denied June 20, 2007.

      Robert G. Harvey, Sr., New Orleans, LA, for PlaintiffAppellee.
    Stewart E. Niles, Jr., Michelle A. Bo-urque, Niles, Bourque & Fontana, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

| j Defendant/Appellant, Raoul Rodriguez, M.D. appeals a Civil District Court Judgment of February 2, 2004 awarding the plaintiff, Ms. Jessie Mae Brown, general damages in the amount of $75,000 and medical costs associated with the injuries sustained as a result of Dr. Rodriquez’s negligent follow-up care.

On September 16, 1985, the plaintiff in this matter, Ms. Jesse Mae Brown, was in a motorcycle accident that dislocated her left knee. Subsequent to the accident Ms. Brown was admitted to the emergency room at Hotel Dieu Hospital, whereupon she was evaluated and referred to Dr. Rodriguez. Following the advice she received at the Hospital, Ms. Brown sought medical treatment at Tulane Medical Center, where on September 17, 1985, Dr. Rodriguez treated her. In Dr. Rodriguez’s pre-operative report he noted rotary instability of the left anteromedial knee. Ms. Brown’s left knee had suffered significant structural damage to the ligament complex of the left knee joint.

Dr. Rodriguez performed surgery to repair her knee. The procedures were a left knee arthotomy, a medial and lateral meniscus repair, a repair of the tibial ^collateral ligament, a repair of the posterior oblique ligament, the removal of a torn anterior cruciate ligament (ACL) and an anti-lateral augmentation of the iliotibial band.

Following the surgery, Dr. Rodriguez placed Ms. Brown’s leg in a fiberglass cast. She was discharged from the hospital on September 21, 1985, four days after surgery. Dr. Rodriguez administered post-operative care on an out patient basis.

On October 1, 1985, the cast covering the sutures was removed and Dr. Rodriguez noted that he found a blister at the wound site on the medial part of her knee. Dr. Rodriguez treated the blister by de-bridement and placed a new cast on the plaintiff. On October 22, 1985 the plaintiff visited with Dr. Rodriguez for another post-operative treatment. On this date Dr. Rodriguez’s patient notes reflect a good post-operative course. The cast was not removed or changed on this date.

Ms. Brown then followed with her third post-operative treatment on November 5, 1985. During this treatment Dr. Rodriguez removed the cast and examined her leg. He noticed in the place of the blister an area of skin slough around the medial side of the knee. He treated the area by surgically removing the damaged tissue and advised the plaintiff to return to his office in two days.

On November 7, 1985 the plaintiff returned to Dr. Rodriguez’s office for further debridement treatment. About this time she was admitted to the hospital for a skin necrosis because the skin slough remained present.

In a second surgery, Dr. Marks, a plastic surgeon, with Dr. Rodriguez’s assistance, attempted to remove the necrotic tissue of the skin slough and cover the [ sarea with a skin graft. This second surgery caused additional scarring because more incisions were made. On November 12, 1985, blistering was noticed on the skin flap over the knee. Apparently the graft itself had problems and became necrotic.

On November 21, 1985, a third surgery was performed. The plaintiff underwent another treatment whereby a gastrocnemi-us (calf) muscle flap from the lower leg was transferred to the knee area. This was accomplished by making yet another incision around her calf muscle to move it. This use of the calf is the recommended surgical technique to help provide soft tissue coverage of exposed tendons, ligaments, and bone, in and around the knee joint. Ms. Brown was then discharged from the hospital on November 28, 1985.

Although the plaintiff does not allege any malpractice regarding the procedure she underwent immediately following the motorcycle accident injury, she does allege malpractice with her post-operative treatment. Specifically, the plaintiff contends that Dr. Rodriguez either placed the lateral and medial incisions too close, causing the death of the skin and the necessity of skin grafts; or that Dr. Rodriguez failed to follow proper protocol after noting the blister at the wound site, thereby permitting the skin to die and creating the need for the skin graft.

The plaintiff brought suit, and on February 2, 2004 the trial court ruled in her favor. Specifically, the trial court found that Dr. Rodriguez could have been more vigilant in managing the plaintiffs wound. The trial court stated that Dr. Rodriguez noticed the presence of a blister, was put on notice that the wound was not healing well, and he therefore should have periodically removed the plaintiffs cast to inspect plaintiffs wound. Plainly, the trial court found that Dr. Rodriguez should have viewed the blistered site more often than he initially did because he |4was put on notice that the wound was not healing normally. It was this failure, the trial court found, that led to a breach of the standard of care. The trial court awarded $75,000 in general damages to the plaintiff and reimbursement for medical expenses necessitated by Dr. Rodriguez’s deviation from the standard of care.

Appellant asserts seven assignments of error. Specifically, he contends that the trial court erred because the record contains no expert testimony to support the court’s conclusion that the standard of care for an orthopedic surgeon in 1985 required Dr. Rodriguez to periodically remove the plaintiffs leg cast. Also, the defendant claims that the trial court erred because the plaintiff did not provide evidence that ■periodic removal of her leg cast would have prevented the blistering, skin slough, skin graft, and eventual scarring. Finally, the defendant asserts that the trial court erred in awarding medical expenses for cosmetic scarring that could have not been prevented, and further asserts that the award was in excess of a judgment limiting the defendant’ liability to $100,000.

STANDARD OF REVIEW

In Salvant v. State, 2005-2126 (La.7/6/06), 935 So.2d 646, the Louisiana Supreme Court reiterated that the standard of review for factual findings in medical malpractice cases is the manifest error or the clearly wrong standard. In other words, in order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Rulings on law receive de novo review. A crucial mixed question of fact and law in this case was lBthe etiology of the necrosis, the determination of which affects the standard of care. In layman’s terms, the lack of blood supply caused the necrosis, but there was conflicting testimony concerning what caused the October 1, 1985 blister initially, this in turn affected whether the blister put Dr. Rodriguez on notice as to whether there was an avascular condition.

DISCUSSION

La. R.S. 9:2794 A. The state’s medical malpractice statute, in pertinent part states:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

To help prove these elements by a preponderance of evidence, expert testimony is used. This testimony by a medical professional helps guide the court in determining whether the physician possesses the requisite skill or knowledge or | (¡whether he exercised reasonable care or diligence. Broussard v. Andersson, 2005-0006, p. 5 (La.App. 4 Cir. 11/30/05), 921 So.2d 128, 132. An absence of expert testimony that the physician breached the proper standard of care precludes a finding of liability for medical malpractice. Peters v. ABC Ins. Co., 552 So.2d 430, 434 (La.App. 4th Cir.1989).

Dr. Peter Indelicato, the plaintiffs orthopedic surgeon expert, testified by deposition that Dr. Rodriguez breached the standard of care in two ways: first, in the placement of the incisions too close together during the first surgery; and second, in the post-operative treatment of Ms. Brown. The trial court rejected this first contention, and determined that Dr. Rodriguez did not deviate from the standard of care during the operation. Since the first basis mentioned has not been appealed, we will solely address the second. Dr. Indeli-cato’s rationale for finding breach of the standard of care in Dr. Rodriguez’s postoperative care was that the positioning of the incisions so close together increased the risk of necrosis occurring between them. He stated that Dr. Rodriguez should have had a heightened concern regarding the potential of complications arising because of the location of the incisions in relation to one another. He went on to state that he would have placed a window in the cast or taken some other measure to ensure easy visible access and inspection of this area. On cross examination, Dr. Indelicate admitted he could not cite any published study in medical literature that supported his contention that an incision should be four (4) to six (6) inches apart between the medial parapatellar incision and a lateral parapatellar incision.

We have thoroughly reviewed the record herein and could not find a preponderance of evidence to establish that the standard to which Dr. Indelicate testified was the standard at the time of this surgery, much less the standard for all |7orthopedic surgeons. Thus, the plaintiff did not meet her burden of proof on this issue and the trial court properly found the same.

Dr. Glenn Terry, one of defendant’s experts, on direct examination testified that Dr. Rodriguez’s September 17, 1985 incisions were to a reasonable medical probability located in accord with directives of national programs concerning placement of incisions for similar injuries. He stated that Dr. Rodriguez’s post-operative care was within the prevailing standard of care at that time because his diagnosis of the genesis of the problem differed from that of Dr. Indelicate. However, on cross examination, Dr. Terry admitted that he would have changed the original cast sooner, as opposed to the length of time Dr. Rodriguez left it in place. Nevertheless, he qualified that response by stating that the ligaments do better from not changing the cast. There was no expert testimony that the prevailing standard of care requires orthopedic surgeons to fit patients such as Ms. Brown with a cast with a window to view a blistered area.

Dr. Terry stated that in his opinion the blistering and subsequent necrosis was caused not by the situs of the incisions, but rather from a neurohormonal response that caused skin swelling/edema in the skin that precipitated venous insufficiency. He explained that skin swelling can cause a deprivation of the blood supply. Dr. Terry testified that he was of the opinion that the initial blister Dr. Rodriguez found was caused by swelling of the skin, akin to a shoe that is too tight thereby creating a condition in which the epidermis does not receive the blood supply it needs. Thus, he did not look askance at Dr. Rodriguez identifying the October 1, 1985 blister as a normal response and to simply treat the blister and | ^replace the cast on Ms. Brown’s leg. Dr. Terry bolstered his opinion by citing Ms. Brown’s physical therapy notes, which indicated ongoing difficulty with pain when passive motion therapy was applied. He correlated this pain with an abnormal sympathetic nerve response.

Moreover, Dr. Terry testified that the consequences of not having the knee surgery done would have resulted in chronic instability, a severely arthritic condition in the knee and irreversible damage to the articular cartilage. These conditions would have necessitated a fusion of the knee or a future total knee replacement. Finally, alluding to Dr. Indelicato’s testimony, Dr. Terry stated he would not treat his diagnosis of Ms. Brown’s condition with a window in the cast, but rather with a uniform compression under the cast.

Dr. Terry Habig, a member of the medical review panel and expert for the defense, testified extensively about the tremendous trauma, to Ms. Brown’s knee sustained in the motorcycle accident. He also stated that because the knee was swollen due to the traumatic condition, the distance between Dr. Rodriguez’s incisions would be most likely even wider than 6 centimeters. He stated that a culture taken on November 19, 1985, revealed that the patient had staph epidermis, but was otherwise negative for any anaerobic or aerobic bacteria. This he said was normal, as he explained that while a staph is a contaminant he would not consider it an infection.

Plaintiff presented witnesses who testified to a foul odor emitting from the cast. This alleged condition was not memorialized in any of Dr. Rodriguez’s notes. The trial court placed great weight on this testimony in finding that the post-operative care left much to be desired of uncharacteristic odors. However, there was no testimony that the plaintiffs outcome would have been any different |9had the slough been discovered any sooner as a result of the alleged odor. She still would have needed the same treatments.

Because of the lack of expert testimony showing by a preponderance of the evidence that Dr. Rodriguez deviated from the standard of care provided to Ms. Brown in the post-operative treatment, we find the trial court erred in its determination that Dr. Rodriguez breached the standard of care in his post operative treatment of plaintiff.

Additionally, appellant asserts that the plaintiff failed to provide evidence that periodic removal of the leg cast would have prevented the blistering from occurring. A physician’s duty is to exercise the degree of skill ordinarily possessed by his professional peers. Soteropulos v. Schmidt, 556 So.2d 276, 277 (La.App. 4th Cir.1990). Further, the mere fact that an injury occurred, specifically the blistering on Ms. Brown’s leg, raises no presumption or inference of negligence. Galloway v. Baton Rouge General Hosp., 602 So.2d 1003, 1008 (La.1992). Although the trial court states that Dr. Rodriguez should have been more vigilant in caring for the blistered area, specifically by removing the cast more frequently, there was no preponderance of evidence provided by the plaintiff that this would have prevented the blistering and skin injury.

In order to find that Dr. Rodriguez failed to prevent the blistering because he was not more vigilant in his post-operative care of Ms. Brown, the plaintiff must have submitted evidence or testimony of his alleged deviation and the causation of this deviation. La.R.S. 9:2794 A. Our review of the record reveals a lack of evidence and testimony proving that more vigilant care could have prevented the blistering from occurring. Stated another way, there was testimony that there were alternative causes of the skin slough and necrosis. These alternative causes, such |inas venous insufficiency, could have been related to the initial trauma suffered as opposed to the surgery. For these factual and medical reasons, it was not appropriate to apply the doctrine of res ipsa loquitur.

We find that the trial court erred in finding that Dr. Rodriguez was guilty of malpractice because he should have been more vigilant in his post-operative treatment of Ms. Brown. The preponderance of the evidence in the record is in favor of the cause being an abnormal sympathetic nerve response that led to venous insufficiency. Since there was not sufficient testimony or evidence provided that Dr. Rodriguez failed to use reasonable care in his post-operative treatment of the plaintiff, and that his failure led to subsequent skin injuries, we reverse the ruling of the trial court.

Finally, the defendant asserts the trial court erred in its award of damages; however, because of the plaintiffs failure to provide adequate evidence to support the medical malpractice claim any issue regarding the alleged award is moot.

CONCLUSION

For the aforementioned reasons, we reverse the judgment of the trial court and render judgment in favor of the defendant dismissing plaintiffs suit at her cost.

REVERSED.

      . We note that both defense experts stated different casts were placed. Dr. Terry stated a fiberglass cast was used while Dr. Habig stated a plaster cast was used.

      . Dr. Terry defined a neurohormonal response as one in which the injury creates a trangidate of juice that is inflammatory and incites a healing response.