author: TERRI F. LOVE, Judge.

text:
    Andrew MARQUINEZ v. LAFAYETTE INSURANCE COMPANY, Fleet Tire Service, Inc., Transit Management of Southeast Louisiana, Inc. and Regional Transit Authority.
    No. 2007-CA-0486.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.
    Veronica E. Henry, Wilkerson & Henry, LLC, New Orleans, LA, for Transit Management of Southeast Louisiana, Inc. and Regional Transit Authority.
    Stephen N. Elliott, David M. McDonald, Bernard, Cassisa, Elliott & Davis, Metair-ie, LA, for Lafayette Insurance Company.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| iThis appeal arises from injuries resulting from the collision of a streetcar and a truck. Andrew Marquinez, a passenger on the streetcar, filed suit to recover for his injuries. The Regional Transit Authority and the Transit Management of Southeast Louisiana, Inc. filed a motion for summary judgment alleging that no genuine issues of material fact existed as the truck driver made an illegal left turn in the streetcar’s path. The trial court granted the motion. We find that no genuine issues of material fact exist as to fault and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Andrew Marquinez (“Mr. Marquinez”) was a passenger on a streetcar, operated by Willie Rhodes (“Mr. Rhodes”), when a Fleet Tire Service, Inc. (“Fleet”) truck, driven by Houston O’Neil (“Mr. O’Neil”), collided with the streetcar. Mr. Marqui-nez suffered injuries as a result and filed a petition for damages against Lafayette Insurance Company (“Lafayette”), Fleet’s insurer, Fleet, the Transit Management of Southeast Louisiana, Incorporated (“TMSEL”), and the Regional Transit Authority (“RTA”).

RTA and TMSEL filed a motion for summary judgment asserting that Mr. Rhodes was free from fault. Mr. Marqui-nez did not oppose the motion for 12summary judgment. However, Lafayette and Fleet filed an opposition. The trial court granted RTA and TMSEL’s motion for summary judgment, which the trial court amended to declare the judgment as final and appealable. Lafayette and Fleet filed a timely devolutive appeal asserting that genuine issues of material exist as to Mr. Rhodes’ fault.

STANDARD OF REVIEW

Summary judgments are reviewed using the de novo standard of review. Henry v. S. La. Sugars Co-op., Inc., 06-2764, p. 4 (La.5/22/07), 957 So.2d 1275, 1277. “Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate.” Id. The “mover is entitled to judgment as a matter of law,” “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to material fact.” La. C.C.P. art. 966(B). The mover carries the burden of proof. La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden of proof at trial ... the movant’s burden” is “to point out ... an absence of factual support” for an element essential to the adverse party. La. C.C.P. art. 966(C)(2). Further, “an adverse party may not rest on the mere allegations or denials of his pleading.” La. C.C.P. art. 967(B). Summary judgment will be rendered against the adverse party if he does not “set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967(B).

SUMMARY JUDGMENT

Lafayette asserts that genuine issues of material fact exist as to Mr. Rhodes’ and Mr. O’Neil’s negligence. In support of its motion for summary judgment, |SRTA and TMSEL submitted the deposition of Mr. Rhodes. Mr. Rhodes testified that Mr. O’Neil made an illegal left turn in front of the moving streetcar that was already in the intersection. Lafayette and Fleet attached the depositions of Mr. Rhodes and Mr. Marquinez. Mr. Marquinez’s deposition testimony does not contradict Mr. Rhodes’ statement that Mr. O’Neil made an illegal left turn into the streetcar’s path. Thus, Lafayette presented no countervailing evidence or specific facts regarding Mr. Rhodes’ alleged negligence pursuant to La. C.C.P. art. 966 and 967. Therefore, we find that Lafayette did not meet their burden of proving that genuine issues of material fact existed.

DECREE

For the above-mentioned reasons, we find that no genuine issues of material fact exist and affirm the judgment of the trial court.

AFFIRMED.

      . Lafayette contends that partial fault should be apportioned to RTA and TMSEL. However, the trial court’s dismissal of RTA and TMSEL does not prevent Lafayette and Fleet from producing evidence in order to apportion partial fault of the accident to RTA and TMSEL at trial.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph FOUNTAIN.
    No. 2007-KA-1004.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiffi'Appel-lee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe defendant, Joseph Fountain, was charged by bill of information with simple robbery, a violation of La. R.S. 14:65. On April 28, 2005, the defendant was arraigned and entered a plea of not guilty. On September 27 2006, following a jury trial, the defendant was found guilty as charged. He was sentenced on March 2, 2007 to serve seven years at hard labor with credit for time served but without eligibility for good time. The defendant’s motion to reconsider his sentence was denied. On appeal the defendant raises one assignment of error.

Officer Christopher Harris testified that he was on patrol on February 20, 2005 when he received a dispatch to proceed to 9201 Airline Highway, the location of a Circle K convenience store, in response to a 911 call that a fight was in progress at that location. Upon arrival, Officer Harris stated that he observed the victim, Michael Warren, who was bleeding from his face and whose eyes were beginning to swell shut. He also observed blood splatter and a white tennis shoe in the parking lot area of the store. He called for an ambulance, the crime lab and Detective Michael Sam. He directed the crime lab to collect the tennis shoe as evidence and to take photographs of the crime scene and the victim. During his initial on-scene investigation, he learned of the identity of a suspect.

^Detective Michael Sam testified that on February 20, 2005, Officer Harris contacted him about an incident that had occurred at the Circle K convenience store on Airline Highway. Upon arrival at the scene, he spoke to Raymond Farr, the store employee. He subsequently spoke to the victim who had been transported to the hospital. He developed a suspect and obtained an arrest warrant for the defendant. He later compiled a six photograph line-up which included defendant’s photograph and showed the line-up to Mr. Farr and Mr. Warren. Mr. Warren was unable to make a positive identification. Mr. Farr positively identified the defendant as the person who attacked and robbed Mr. Warren.

On cross-examination, Detective Sam testified that he obtained and secured a surveillance video from the store’s cameras which showed the entire incident. He stated that he viewed the tape with Mr. Farr.

Michael Warren testified that on the night of February 20, 2005, he walked to the Circle K convenience store on Airline Highway, which was located next door to the London Lodge Motel where he was staying. He walked up to the store window and got in line to purchase a pack of cigarettes. When he approached the store window, he placed a five dollar bill inside the drawer and asked for a pack of cigarettes. At that moment, he felt a hand on his right rear wallet pocket and heard a voice over his shoulder say, “I need some money,” or “give me some money.” Warren grabbed for his wallet and turned to see who was behind him. As he turned, he was punched in his left temple, and his glasses got broken. The attacker then dragged the victim into the parking lot near the gas pumps and began to beat him until he was able to take his wallet. Warren saw the attacker run across Airline Highway. He testified that the bones around his eyes were broken, his nose was broken and he sustained multiple lacerations from his broken glasses. He | Sstated that his wallet contained a Winn Dixie card, photographs of his family, his Dutch driver’s license and between $120 and $140 dollars in cash.

Raymond Farr testified that on February 20, 2005, he was employed by the Circle K convenience store on Airline Highway. He stated that he knew the defendant, who was a regular customer at the store. He confirmed that the store had a surveillance video camera which was operating on that date. He testified that Mr. Warren was standing in line at the security window when the defendant walked up behind Warren. He heard Warren scream, “He’s trying to take my bill fold.” Farr ordered the defendant to leave the premises. The defendant began beating Warren and trying to take his wallet. He testified that the defendant had Warren upside down, was biting his leg, and was kicking him in the head. He immediately telephoned 911 to report the incident. He stated that when he spoke to the police, he identified the defendant as the perpetrator from a photographic lineup and from the video surveillance tape taken from the store cameras.

Carney Johnson, an employee of the communication division of the New Orleans Police Department, testified that he was one of the custodians of the 911 calls which were recorded in the normal course of Police Department business. He stated that he did not have an audio tape of the 911 call because of a power failure, however, he did have a paper print out of the call which showed that a call was received by someone identifying himself as Raymond and telling the 911 operator that a black male named Joseph was beating a white male outside the store.

A review for error patent reveals none.

By his sole assignment of error, the defendant asserts that his statutory maximum sentence of seven years at hard labor without eligibility for good time is unconstitutionally excessive and constitutes cruel and unusual punishment. He 14argues that the trial court failed to articulate any factual basis for the maximum sentence and failed to consider the mitigating factors of alcohol and drug abuse and defendant’s health status as HIV positive. He further argues that instead of denying defendant eligibility for good time, the trial court should have considered placing conditions on defendant’s eligibility for good time to help him correct his bad behavior.

Article 1, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive or unusual punishment.”

A sentence is constitutionally excessive if it is either grossly disproportionate to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992). A grossly disproportionate sentence is one that “when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.” Id. An appellate court will not set aside a sentence absent a showing of manifest abuse of the trial court’s broad discretion to impose sentences within the statutory range. Id. A reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1988); State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Caston, 477 So.2d 868 (La.App. 4th Cir.1985). Even where there has not been full compliance with Article 894.1, remand is not necessary where the record clearly shows an adequate factual basis for the sentence imposed. State v. Landos, 419 So.2d 475 (La.1982). If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the ^particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, Id.; State v. Guajardo, 428 So.2d 468 (La.1983). However, even a sentence within the statutory range can violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

In this case, the defendant was convicted of simple robbery. Pursuant to La. R.S. 14:65, simple robbery is punishable by imprisonment from zero to seven years with or without hard labor, and/or a fine of up to three thousand dollars, or both. Simple robbery is a crime of violence pursuant to La. R.S. 14:13 which brings it within the ambit of La.C.Cr.P. art. 890.1(B), which provides: “the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior”.

Prior to sentencing the defendant, the trial court reviewed the pre-sentence investigation report. The report showed that the defendant was a fourth class felony offender. His criminal record extended back to 1979 when he was convicted as a juvenile for simple battery. As an adult, his criminal record consisted of both felonies and numerous misdemeanor arrests and convictions including seven convictions for public drunkenness. His prior felony convictions consisted of simple robbery in 1981 and simple kidnapping and forcible rape of a thirteen year old girl in 1989. He showed no remorse and consistently denied committing the instant offense as well as all prior felony offenses. He stated that he had two daughters but never paid child support. He was addicted to alcohol and heroin. It was noted that he often loitered and drank on the premises of the Circle LK convenience store, and because of this activity, he had an ongoing “feud” with Raymond Farr.

It was determined that he was not eligible for Intensive Incarceration or Intensive Parole Supervision because of his status as a fourth offender and a sex offender. In addition, the trial court took into consideration the pain and suffering of the victim stemming from his severe injuries which included several broken facial bones.

In State v. White, 35,235 (La.App. 2 Cir.10/31/01), 799 So.2d 1165, the court imposed on the defendant a seven year maximum sentence for simple robbery to be served consecutively with sentences for conspiracy to commit simple robbery and second-degree battery where the victim sustained broken jaws on both sides of the face requiring thousands of dollars in medical bills for reconstructive surgery.

In State v. Wilson, 660 So.2d 571 (La.App. 2 Cir.1995), the court imposed on the defendant, a first felony offender, a seven year maximum sentence where the defendant acted without provocation, using a ruse to lure the victim to him, used a gun during the robbery and before robbing the victim wrestled him to the ground and repeatedly struck him in the face. The defendant had previous misdemeanor arrests and convictions for possession of drugs and drug paraphernalia.

In State v. Capano, 466 So.2d 649 (La.App. 5 Cir.1985), the court imposed on the defendant the maximum seven year sentence where the defendant, who was sixteen at the time of the offense, had an extensive juvenile record and the pre-sen-tence investigation indicated that he committed crimes on a regular |7basis and that he would likely commit another crime if not committed to an institution for an extensive period of time.

Given the above facts and the circumstances of this case, and the similarity to the above cited cases, the trial court did not abuse its discretion in imposing the instant sentence.

Accordingly, the defendant’s sole assignment of error lacks merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Dawn Marie GIECK v. TENET HEALTHCARE CORPORATION, Tenet Healthsystem CM, Inc. and Tenet Healthsystem Memorial Medical Center, Inc.
    No. 2007-CA-1597.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.

      Daniel J. Caruso, Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Kurt S. Blankenship, Robert I. Baudouin, Richard E. Gruner, Jr., Njeri Bat-tiste Maldonado, Blue Williams, L.L.P., Metairie, LA, for DefendanVAppellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|, Defend ant, Tenet Healthcare Corporation (“THC”), appeals the judgment of the trial court overruling its Exception of Lack of Personal Jurisdiction. Because the judgment appealed from is a non-appeal-able interlocutory judgment, we dismiss the appeal and remand the case to the trial court.

Relevant Facts

On August 29, 2006, Plaintiff, Dawn Marie Gieck (“Ms. Gieck”), a nurse formerly employed by Memorial Medical Center, filed suit against THC, Tenet Healthsys-tem CM, Inc., and Tenet Healthsystem Memorial Medical Center, Inc. (“Memorial”) (hereinafter collectively referred to as “Defendants”), for damages she allegedly sustained after being stranded at Memorial Medical Center in New Orleans in the days following Hurricane Katrina.

In response to Plaintiffs Petition, counsel retained by Memorial filed responsive pleadings, including an exception of lack of subject matter jurisdiction, on behalf of all Defendants, including THC. Apparently realizing the mistake, counsel for Memorial later filed a motion and order to withdraw as ^counsel of record. THC subsequently filed exceptions of lack of personal jurisdiction, lack of subject matter jurisdiction, and improper service. On September 14, 2007, the Exceptions were argued before the trial court. In a written judgment dated September 19, 2007, the trial court denied THC’s exception of lack of personal jurisdiction but granted its exception of improper service of process. The court also ordered Plaintiff to make proper long-arm service on THC.

THC then filed both an application for supervisory writs as well as the instant appeal in this Court. A panel of this Court denied THC’s application for supervisory writs on October 31, 2007, in writ number 2007-C-1313. THC subsequently filed an application for writs with the Louisiana Supreme Court, which is currently pending. The instant appeal seeks review of the same judgment and issues.

Arguments on Appeal

On appeal, THC argues that the trial court erred in overruling its exception of lack of personal jurisdiction because THC provided uncontroverted evidence that it did not have the requisite minimum contacts with the State of Louisiana to justify exercise of the trial court’s jurisdiction. In response, Plaintiff argues that Health-systems Memorial Medical Center filed responsive pleadings for all three defendants without excepting to personal jurisdiction for THC. In the alternative, Plaintiff argues that even if the exception has not been waived, it is unsupported by the evidence.

| %Law and Discussion

At the outset, we note that the judgment overruling THC’s exception of lack of personal jurisdiction is an interlocutory judgment. A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. La.Code Civ. Proc. art. 1841. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. Id. A judgment that determines the merits in whole or in part is a final judgment. Id. Louisiana Code of Civil Procedure Article 2083 governs the appealability of interlocutory judgments. The Louisiana legislature amended Article 2083, effective January 1, 2006, and in its present form, Article 2083 provides that an interlocutory judgment is appealable only when expressly provided by law. La.Code Civ. Proc. art. 2083(C).

The denial of an exception of lack of personal jurisdiction is an interlocutory judgment that is not expressly appealable by law. The proper procedural vehicle to contest an interlocutory judgment that is not immediately appealable is an application for supervisory writ. See Ganier v. Inglewood Homes, Inc., 06-0642 p. 2 (La.App. 4 Cir. 11/08/06), 944 So.2d 753, 755. We have, in the past, and in the interest of justice, exercised our supervisory jurisdiction by converting interlocutory appeals into applications for supervisory writs. However, in this case, THC has already applied for, and has been denied, supervisory writs on this issue. Therefore, because the trial court’s judgment is not appealable and a writ |4has already been denied by this Court on the same issue, we dismiss the instant appeal for want of jurisdiction and remand the case to the district court for further proceedings.

APPEAL DISMISSED; CASE REMANDED.


text:
    Carol SCOTT v. Milton D. STOKES, Larry Shields and Lockheed Martin Manned Space Systems Corporation.
    No. 2007-CA-0887.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.

      Churita H. Hansell, The Law Office of Churita H. Hansell, L.L.C., New Orleans, LA, for PlaintifflAppellant.
    Michael T. Tusa, Jr., Andre’ Lagarde, Metairie, LA, for Defendant/Appellee, Lockheed Martin Manned Space Corporation.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe plaintiffs appeal a summary judgment dismissing the plaintiffs’ disability discrimination claim. After de novo review of the record in light of the arguments of the parties and relevant authority, we find that the defendants were entitled to summary judgment on this claim and confirm the judgment of the trial court.

Relevant Facts and Procedural History

In March 1988, Carol Scott was employed by the Lockheed Martin (“Lockheed”) as a Security Inspector. In November 1995, Ms. Scott filed suit against her employer, her employer’s liability insurer, and two supervisors (Milton Stokes and Larry Shields), alleging sexual harassment and racial discrimination. In 1997, after fainting at work, Ms. Scott was diagnosed with a seizure disorder. In April 1998, after several more fainting episodes, Ms. Scott was placed on medical leave to undergo medical testing.

In April 1999, by consent judgment, Ms. Scott’s claims against her supervisors were dismissed except for the claim against Mr. Stokes for intentional infliction of emotional distress. In June 1999, Ms. Scott returned to work but, based on anger management issues, was restricted from carrying a weapon. InJ^April 2000, Ms. Scott amended her petition to include a claim of disability discrimination. Ms. Scott was terminated for insubordination in July 2000 and, shortly thereafter, amended her complaint to allege that her termination was a result of retaliation and/or discrimination.

In October 2001, Ms. Scott died and, in August 2002, family members were substituted as party-plaintiffs. In October 2002, the plaintiffs filed a third amended petition, alleging wrongful death in addition to the pending claims for sexual harassment, intentional infliction of emotional distress, disability discrimination, and retaliation.

In March 2006, Lockheed and Milton Stokes filed a joint motion for summary judgment. A motion hearing was held in March 2006 and, shortly thereafter (July 20, 2006), the trial court granted summary judgment in favor of Mr. Stokes, dismissing all claims against him, and granted in part and denied summary judgment in favor of Lockheed, dismissing with prejudice the claims for sexual harassment, intentional infliction of emotional distress, and disability discrimination but denying the defendants’ motion for summary judgment on the retaliation claim. The plaintiffs appeal only the dismissal of the disability discrimination claim.

Summary Judgment

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). In 1996, this article was amended to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action |s... The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ. Proc. art. 966(A)(2). Pursuant to La.Code Civ. Proc. art. 966(C)(2), the burden of proof in summary judgment proceedings is as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Thus, similar to the federal standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the burden of producing evidence at the hearing on the motion for summary judgment is first placed on the mover (normally, as in this case, the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually, as in this case, the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates an ability to meet the burden of proof at trial. See MARAIST AND LEM-MON, 1 LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.8 (1999). Accordingly, once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 1998-2821 (La.9/8/99), 744 So.2d 606.

Louisiana’s Anti-Discrimination Law

The State of Louisiana’s anti-discrimination legislation is contained in three distinct titles of the Revised Statutes: Titles 23, 46 and 51.

LLa.Rev.Stat. 23:323 states:

A. No otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment
B. An employer, labor organization, or employment agency shall not engage in any of the following practices:
(1) Fail or refuse to hire, promote, or reasonably accommodate an otherwise qualified disabled person on the basis of a disability, when it is unrelated to the individual’s ability, with reasonable accommodation, to perform the duties of a particular job or position.
(2) Discharge or otherwise discriminate against an otherwise qualified disabled person with respect to compensation or the terms, conditions, or privileges of employment on the basis of a disability when it is unrelated to the individual’s ability to perform the duties of a particular job or position.
(3) Limit, segregate, or classify an otherwise qualified disabled person in a way in which deprives the individual of employment opportunities or otherwise adversely affects the status of the individual on the basis of a disability when it is unrelated to the individual’s ability to perform the duties of a particular job or position.

In addition, La.Rev.Stat. 23:322 states in pertinent part:

For the purposes of this Part, the following terms shall have the following meanings ascribed to them:
* * *
(3) “Disabled person” means any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment.
(4) “Discrimination” shall include unreasonable segregation or separation.
(5) “Essential functions” means the fundamental job duties of the employment position the disabled person holds or desires. “Essential functions” does not include the marginal functions of the position.
(6) “Impairment” means retardation, any physical or physiological disorder or condition, or prior mental disorder or condition ...
(7) “Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(8) “Otherwise qualified disabled person” means a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires.
| r(9) “Reasonable accommodation” means an adjustment or modification to a known physical limitation of an otherwise qualified disabled person which would not impose an undue hardship on the employer. This shall not require an employer to spend more for architectural modifications than that amount now allowed as a federal tax deduction. However, “reasonable accommodation” shall not be construed to impose on any private sector employer, unless required by law or under any contract with a federal, state, or local promotion of a disabled person. Undue hardship is determined on a case-by-case basis taking into account all of the following:
(a) The employee or applicant for which accommodation is to be made.
(b) The specific disability of employee or applicant.
(c) The essential job duties of the position.
(d) The working environment.

Next, La.Rev.Stat. 46:2251. et seq., entitled Civil Rights for Handicapped Persons, prohibits disability discrimination and preserves all remedies available under the law to a handicapped person who suffers discrimination. La. 46:2253 states in pertinent part:

(1) “Handicapped person” means any person who has an impairment which substantially limits one or more life activities or (a) has a record of such an impairment or (b) is regarded as having such an impairment.
(2) “Impairment” means retardation; any physical or physiological disorder or condition, or prior mental disorder or condition, but does not include chronic alcoholism or any other form of active drug addiction; any cosmetic disfigurement; or an anatomical loss of body systems.
(3) “Major life activities” mean functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.

Finally, La.Rev.Stat. 51:2231, et seq., prohibits disability discrimination in connection with employment and public accommodations. La.Rev.Stat. 51:2232(11) defines “disability” using the same language as the federal statute commonly known as the Americans with Disabilities Act.

| (¡Thus, the Louisiana statutory framework allows a person to be classified as handicapped only if he/she is, in fact, handicapped or “regarded as” handicapped as statutorily defined. Clearly, if a person is not found to have a “known physical limitation,” then they are not owed a “reasonable accommodation.” La.Rev.Stat. 23:322(9). Concomitantly, an employer need not make accommodations for a physical limitation that does not exist and, likewise, an employee cannot prove discrimination or adverse action by a failure to accommodate a non-existent physical limitation. See La.Rev.Stat. 23:323. Thus, “the protections afforded by statutes prohibiting disability discrimination are not intended for those who may have only a slight or marginal impairment.” Beaumont v. Exxon Corp., 2002-2322, p. 10 (La.App. 4 Cir. 3/10/04), 868 So.2d 976, 982, writ denied, 2004-1174 (La.9/3/04), 882 So.2d 609. As previously noted by this court, the state anti-discrimination statutes require a case-by-case analysis to avoid an overly broad application to anyone who is less than a perfect physical specimen and “the protections afforded by the statutes are not intended for those who may have only a slight or marginal impairment.” Beaumont, supra.; see also, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (“merely having an impairment does not make one disabled” for purposes of the disability discrimination laws).

Discussion

On motion for summary judgment, Lockheed contends that they are entitled to summary judgment on the disability discrimination claim because there is no evidence that Ms. Scott was disabled under the law and, in any event, because Lockheed articulated a legitimate, non-discriminatory basis for her termination. In support, Lockheed submits Ms. Scott’s deposition ^testimony wherein she states that the only condition she considered a disability was a leg injury suffered in high school track which limited her only from running track or wearing a certain type of work shoe. Lockheed also submits numerous documents and affidavits to support the contention that Ms. Scott’s employment was terminated for insubordination, a violation of company policy.

Accordingly once Lockheed met its burden on summary judgment in pointing out the lack of factual support for an intrinsic element of the disability discrimination claim, ie., there is no evidence that Ms. Scott was disabled as defined by the pertinent statutes, the burden shifted to the plaintiffs to come forward with evidence (affidavits or discovery responses) demonstrating that they will be able to meet the burden of proof at trial to establish the essential elements of the disability discrimination claim. This the plaintiffs have failed to do. Rather, the plaintiffs argue only that the trial court judgment was erroneous because there is a question of fact as to “whether Ms. Scott was a direct threat to herself and others and whether she was regarded or perceived as being disabled.” The plaintiffs contend that because Ms. Scott was restricted from carrying a weapon, in the context of being a security guard she was perceived as disabled.

The plaintiffs also argue that the trial court erred because Lockheed sent Ms. Scott to Dr. Harminder Mallik of Tulane University in June 1998 for an assessment as to whether it was appropriate for Ms. Scott to carry a deadly weapon only after her treating physicians opined that she could return to work with no restrictions after undergoing stress and anger management treatment and that Dr. Mallik’s report (contrary to that of her treating | Sphysician’s) that “given Ms. Scott’s history of sudden outbursts of temper without any provocation there is a substantial risk associated with her having access to a loaded weapon” was based on biased and untrue statements made by Ms. Scott’s supervisors regarding her relationships with other employees. In support, the plaintiffs submit Ms. Scott’s medical reports indicating that her treating physicians did, in fact, clear her to return to work without restrictions.

The plaintiffs argument, while novel, is flawed. The threshold issue is whether Ms. Scott suffered from or was perceived to suffer from a statutorily defined disability. Clearly, carrying a weapon is not a statutorily defined major life activity under Louisiana law and, thus, the plaintiffs’ claim is not covered under the statutes relevant to a disability discrimination claim. To the extent that the plaintiffs seek to suggest that Lockheed manipulated the doctor’s report in order to support a restriction on Ms. Scott’s ability to carry a weapon and constructively terminate her from a higher paid position as an armed security guard, their argument relates to the pending retaliation claim. Because the plaintiff was not disabled under the relevant statutes, we pretermit a discussion of Lockheed’s articulated basis for terminating Ms. Scott’s employment.

Conclusion

After de novo review, we find that the defendants are entitled to summary judgment on the plaintiffs disability discrimination claim. The judgment of the trial court is affirmed.

AFFIRMED.

      . 42 U.S.C. 12101 states: "The term "disability" means, with respect to an individual-(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”


text:
    Wade SCHINDLER v. HARRAH’S LAS VEGAS, INC., d/b/a Harrah’s New Orleans Casino, Harrah’s New Orleans Management Co. and Harrah’s Operating Co., Inc.
    No. 2007-CA-0827.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.

      Joseph G. Albe, New Orleans, LA, for Plaintiff/Appellee.
    Robert H. Murphy, Jeffrey A. Raines, Murphy Rogers Sloss & Gambel, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

I,Defendants, Harrah’s Las Vegas, Inc. d/b/a Harrah’s New Orleans Casino, Har-rah’s New Orleans Management Co., and Harrah’s Operating Co., Inc., appeal the judgment of the trial court against them, which awarded Plaintiff, Wade Schindler (“Mr. Schindler”), $25,000 in damages for the aggravation of preexisting injuries.

Relevant Facts

On April 8, 2003, Mr. Schindler was sitting at a slot machine at Harrah’s Casino in New Orleans when the handle of a money cart being pushed by a Harrah’s employee brushed the back of his chair, pushing him against the slot machine, and allegedly causing him to aggravate preexisting injuries in his right wrist and left knee. At the time, Mr. Schindler did not believe he was injured and continued to play the slot machines. A few days later, Mr. Schindler called Harrah’s to officially report the incident. During this conversation, Mr. Schindler claimed that he had injured his wrist as a result of the accident; however, he made no claim that he had injured his knee.

At the time of the incident, Mr. Schindler was already receiving treatment from Dr. Terry Habig for a preexisting injury to his left knee that had resulted from |ga 2002 car accident. In fact, Mr. Schindler had undergone surgery on the knee just two months before the Harrah’s incident.

About two weeks after the Harrah’s incident, Mr. Schindler returned to Dr. Habig for a scheduled post-operative follow-up examination of his knee. During this visit, Mr. Schindler reported to Dr. Habig that he injured his right wrist at Harrah’s casino. Dr. Habig ordered X-rays of the ■wrist, which indicated that Mr. Schindler suffered from an old, preexisting, degenerative wrist condition and that the Harrah’s incident may have aggravated the condition. Dr. Habig diagnosed Mr. Schindler with a soft-tissue injury or sprain of the wrist. Mr. Schindler’s wrist injury was treated with anti-inflammatory medication and home therapy for three months until which time Mr. Schindler was discharged from Dr. Habig’s care.

Mr. Schindler returned to Dr. Habig eighteen months later again complaining of wrist pain. At this time, Dr. Habig referred him to Dr. Claude Williams. Mr. Schindler reported to Dr. Williams that he had injured his wrist at Harrah’s casino but did not mention that he had injured his left knee as a result of the incident. Although Mr. Schindler did not disclose any preexisting wrist problems to Dr. Williams, his medical records indicated that he first began complaining of right wrist pain after a 2000 auto accident. Dr. Williams ultimately diagnosed Mr. Schindler with a degenerative condition, known as Keinbock’s disease, of the right wrist.

Trial Court

Mr. Schindler filed suit against the Defendants alleging that the incident caused the exacerbation of his preexisting wrist condition. Trial began on January 23, 2007. At trial, Mr. Schindler claimed that after the Harrah’s incident, he | ^developed a clicking in his left knee. Mr. Schindler also testified at trial that he was considering undergoing surgery on his wrist.

Drs. Habig and Williams were called to testify on Mr. Schindler’s behalf. Both doctors testified that the Harrah’s incident only temporarily aggravated Mr. Schindler’s wrist symptoms. Dr. Williams specifically testified that any aggravation caused by the Harrrah’s incident did not alter the natural progression of Keinbock’s disease, which had been progressing for several years before the Harrah’s incident and was likely at stage II of IV at the time of the incident. According to Dr. Williams, by the time he began treating Mr. Schindler in March 2005, the disease had progressed to stage III, which is characterized by fragmentation of the lunate bone. In Dr. Williams’ opinion, Mr. Schindler’s disease would have progressed to stage III and would have eventually required surgery even without the Harrah’s incident. Dr. Habig’s testimony corroborated that of Dr. Williams. Both doctors testified that Mr. Schindler suffered only a three month wrist sprain and aggravation of his Keinbock’s disease. Additionally, Dr. Habig testified that, in his opinion, Mr. Schindler’s knee symptoms were not related to the Harrah’s incident.

At the end of Mr. Schindler’s case, defendants made an article 1672 motion for involuntary dismissal of Harrah’s Las Vegas, Inc., and Harrah’s Operating Co., on the basis that the casino was operated only by Harrah’s New Orleans Management Company on the day of the incident and that these defendants could not be cast in judgment. The trial court granted the involuntary dismissal. Nevertheless, on March 12, 2007, the trial court rendered judgment against all three defendants in the amount of $25,000, plus medical specials, expert and witness fees and costs, determining that “defendants’ employees were clearly | negligent in failing to control the money cart, which struck plaintiffs chair.” Mr. Schindler subsequently filed a motion to amend the trial court’s judgment or for a new trial seeking an award for judicial interest. The trial court granted the motion and amended the judgment accordingly. This appeal followed.

Assignments of Error

On appeal, defendants assign two errors to the trial court. First, that the court erred in rendering judgment against all three defendants when the court had previously dismissed Harrah’s Las Vegas d/b/a Harrah’s New Orleans Casino and Harrah’s Operating Company. Additionally, defendants argue that the trial court abused its discretion in awarding general damages in the amount of $25,000 for a three month soft tissue injury.

Discussion

As a preliminary matter, we find that the trial court erred in casting Har-rah’s Operating Company and Harrah’s Las Vegas, Inc. in judgment after it had already granted defendants’ motion for involuntary dismissal dismissing Mr. Schindler’s claims against these two entities. Therefore, the defendants’ assertion that the judgment should have been against only Harrah’s New Orleans Management Company is correct and we will amend the judgment accordingly.

We now turn to Defendants’ second assignment of error — that the general damages award of $25,000 to Mr. Schindler is excessive under the circumstances. In the present case, the trial court found that although Mr. Schindler had injured his right wrist in a previous accident and suffered from a preexisting degenerative wrist condition, he aggravated the condition as a result of the Harrah’s incident and this aggravation lasted for approximately three months. The court also found that although Mr. Schindler had injured his left knee in a previous accident, which had | .¡required surgery, he complained of an additional clicking in his knee after the Harrah’s incident. Based upon the aggravation of his preexisting injuries, the court awarded Mr. Schindler $25,000 in general damages.

The standard of review of damage awards is whether, after an articulated analysis of the facts, the court finds that the trial court abused its great discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce an award. Broyard v. Rainer, 03-0123, p. 11 (La.App. 4 Cir. 6/18/03), 850 So.2d 793, 801. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Id., p. 12.

In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court. Theriot, at 1340. The primary considerations in the assessment of damages are the severity and duration of the injured party’s pain and suffering. LeBlanc v. Stevenson, 00-0157, p. 6 (La.10/17/2000), 770 So.2d 766, 772.

Considering the fact that the injuries caused by the Harrah’s incident were relatively minor, an award of $25,000 is shockingly high, especially when the trial court acknowledged, in its reasons for judgment, that Drs. Habig and Williams, Mr. Schindler’s treating physicians, testified that the Harrah’s incident only aggravated Mr. Schindler’s preexisting wrist symptoms for a three month period. Moreover, the record indicates that Mr. Schindler did not report any knee injury or aggravation caused by the Harrah’s incident to anyone at Harrah’s and did not |f;make such a claim until trial. Although Mr. Schindler did complain of a clicking and popping in his knee and additional swelling of the knee after the accident, Dr. Habig attributed these symptoms to the natural healing process of the knee after surgery. Dr. Habig testified that, in his opinion, the alleged aggravation of Mr. Schindler’s preexisting knee injury was not related to the Harrah’s incident.

It is a well-settled principle that a tortfeasor takes his victim as he finds him and when a defendant’s tortuous conduct aggravates a preexisting condition, the defendant must compensate the victim for the full extent of the aggravation. Lasha v. Olin Corp., 625 So.2d 1002, 1005, 1006 (La.1993). The plaintiff, however, is required to establish a causal link between the tortious conduct and the aggravation of his preexisting condition. The test to determine if that burden has been met is whether the plaintiff proved through medical testimony that it is more likely than not that the subsequent injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603 and 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759; Maldonado v. Louisiana Superdome Com’n, 95-2490, p. 11 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, 1093, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448. This issue is factual and is subject to the manifest error standard of review. Maranto, supra.

Mr. Schindler provided no medical testimony to show that that the alleged clicking and/or popping symptoms in his knee were caused by the Harrah’s incident. We find, therefore, that Mr. Schindler did not meet his burden of proving, through medical testimony, that his additional knee symptoms were attributable to the Harrah’s incident as opposed to his recent knee surgery. Although the trial court did not distinguish which part of the award, if any, was |7attributable to Mr. Schindler’s knee injuries, any compensation for the alleged aggravation to his knee would have been awarded in error.

On the other hand, we do find the medical evidence was sufficient to establish that Mr. Schindler suffered a three-month aggravation of his preexisting wrist condition. This court previously held that an award of $2,500 per month for general damages for soft tissue injuries while plaintiff is actively treating is a reasonable award. Dolmo v. Williams, 99-0169 (La.App. 4 Cir. 9/29/99), 753 So.2d 844, 848. Therefore, we find that the highest reasonable award for the three month aggravation of Mr. Schindler’s preexisting wrist condition is $7,500. An award of $25,000 was an abuse of the trial court’s vast discretion. Accordingly, we amend the trial court’s judgment to reflect a general damage award of $7,500 for the three month aggravation of Mr. Schindler’s preexisting wrist injury.

For the foregoing reasons, we amend the judgment in favor of Mr. Schindler to award general damages in the amount of $7,500 and against Harrah’s New Orleans Management Company.

JUDGMENT AMENDED.


text:
    STATE of Louisiana in the Interest of the Minor Child, L.D.
    No. 2007-CA-1039.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2008.

      Eric A. Bopp, Edward S. Bopp-A Law Corporation, Mandeville, LA, for Jody and Darlene Domingo.
    Sherry Watters, Bureau of General Counsel, DSS/OCS, New Orleans, LA, for the State of Louisiana, Department of Social Services, Office of Community Services.
    Tracy Ann Petruccelli, Petruccelli Law Office, LLC, Covington, LA, for L.D.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

| ¶ This appeal arises from the termination of the parental rights of Jody and Darlene Domingo. Jody and Darlene Domingo appealed asserting that their child was not taken from them while under supervision by the Office of Community Services, as required by the statute. We find that Louisiana requires the consideration of several factors, which include whether the Office of Community Services was supervising the family and the best interest of the child. Accordingly, we find that the trial court did not err and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

L.D., born on February 22, 2002, was first taken into custody by the Department of Social Services/Office of Community Services (“DSS/OCS”) on July 31, 2002, at the age of five months. L.D. lived with her maternal aunt, Diane King (“Mrs. King”), until February 18, 2004. Jody and Darlene Domingo (“the Domingos”) lost custody of L.D. due to drug and alcohol addiction, which interfered with their ability to take care of L.D. DSS/OCS returned L.D. to the Domingos on February 18, 2004, with supervision continuing for the first six months.

On March 24, 2005, DSS/OCS received a call informing them that Mr. |2Domingo had allegedly tested positive for marijuana at work; that Mrs. Domingo’s older daughter, who smoked marijuana a great deal, was living with them; and that an accused rapist was babysitting L.D. On April 19, 2005, L.D. was taken into DSS/ OCS custody due to concerns regarding drug and alcohol addiction. L.D. was placed in the care of Mrs. King, where she remains.

During L.D.’s second DSS/OCS custodial period, the Domingos visited with L.D. at a DSS/OCS office. On several occasions it is alleged that the Domingos brought a pit bull puppy, beer, and a friend, whom L.D. never met to OCS office for visitation. The Domingos were told to correct this behavior, as all instances violated DSS/ OCS protocol.

DSS/OCS’s case plan instituted after L.D. was placed into custody the second time consisted of reunification and adoption. The case plan did not provide for the Domingos to undergo drug screening, substance abuse treatment, or parenting classes paid for by DSS/OCS because DSS/ OCS provided every service available during the first custodial period. The Domin-gos participated in educational programs regarding the cessation of drug/alcohol use and parenting during the second custodial period. Additionally, the Domingos tested positive for drugs.

An instanter order was filed following L.D.’s removal on April 19, 2005, which was followed by a petition to have par-entis) declared in need of care and/or supervision and minor child in need of care and/or supervision with or without foster care. Almost a year and a half later, DSS/OCS filed for the termination of parental rights pursuant to La. Ch. C. art. 1015(3) and (5). The trial court granted the termination of parental rights finding clear and convincing proof that parental rights and obligations are “totally and irrevocably terminated and dissolved lapursuant to La. Ch. C. art. 1015(3)(j)” and in the best interest of the child, pursuant to La. Ch. C. art. 1037. This suspen-sive appeal followed.

STANDARD OF REVIEW

Appellate courts review a trial court’s determination to terminate parental rights using the manifest error/clearly wrong standard. State ex reí. S.M.W., C.D.W., C.N.W., and E.S.W., 00-CJ-3277 (La.2/21/01), 781 So.2d 1223, 1233. Therefore, if the trial court’s determination is a reasonable conclusion from weighing the credibility of conflicting testimony, we must affirm. Id.

TERMINATION OF PARENTAL RIGHTS

The Domingos contend that the trial court erred in terminating their parental rights to L.D. because DSS/OCS concluded their supervision prior to the March telephone call or April, when L.D. was taken into DSS/OCS custody again.

Law

The Louisiana Children’s Code article 1015 provides that the grounds for terminating parental rights under § 3 and § 5 are:

(3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(a) Murder.
(b) Unjustified intentional killing.
(c) Aggravated incest.
(d) Rape.
(e) Sodomy.
(f) Torture.
(g) Starvation.
(h) A felony that has resulted in serious bodily injury.
(i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.
|4(j) Abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
(k) The parent’s parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful.
(l) Sexual abuse, which shall include, but is not limited to acts which are prohibited by R.S. 14: 43.1, 43.2, 80, 81, 81.1, 81.2, 89 and 89.1.
(5) Unless sooner • permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home. (Emphasis added).

The elements required by La. Ch. C. art. 1015 must be proven by clear and convincing evidence. La. Ch. C. art. 1035. While the elements of La. Ch. C. art. 1015 are required, the “evidence must allow the conclusion that termination is in the best interest of the child.” State, ex rel. E.N., M.N., and K.Q., 00-0239, pp. 5-6 (La.App. 4 Cir. 8/2/00), 774 So.2d 194, 197. This Court has held that the family need not necessarily be under supervision of DSS/ OCS if termination is in the best interest of the child and the evidence documents that the parents will unlikely change their behavior. Id. at p. 11, 774 So.2d at 200.

Testimony

Cynthia Lucas (“Ms. Lucas”), formerly an investigator with DSS/OCS and now a foster care manager, testified regarding the telephone calls received concerning the Domingos’ behavior. Ms. Lucas stated that someone telephoned |fiDSS/OCS on March 24, 2005, informing the agency that Mr. Domingo allegedly tested positive for marijuana at work and was fired. The caller also stated that Mrs. Domingo’s older daughter was living in the household and smoking a great deal of marijuana. Further, the caller said that an alleged rapist was babysitting L.D. However, Ms. Lucas testified that DSS/OCS did not take L.D. into custody in March.

Lieutenant Robert Broadhead (“Lt. Broadhead”), the shift commander at the Arabi Station of the St. Bernard Sheriffs Department, observed the Domingos acting “extremely intoxicated” on April 19, 2005. Lt. Broadhead testified that the Domingos had taken Ativan, Lortab, and Soma. He stated that when the officers were about the leave the Domingos’ residence, they found another child never mentioned by the Domingos. The Domin-gos forgot that a friend’s child was in the residence. Lt. Broadhead testified that the Domingos did not become more coherent as the night progressed. Further, he stated that the officers had difficulty getting information from the Domingos about a relative that could pick up L.D. because of their intoxicated state. Lastly, Lt. Broadhead testified that he was “more than sure what” he “saw that day was levels of intoxication.”

Marsha Roome (“Ms.Roome”), a former case manager for DSS/OCS, testified as to the details of the Domingos’ first supervisory period with DSS/OCS. Ms. Roome stated that the Domingos were under official supervision until August 2004. She testified that as of April 27, 2005, the case plan goal was adoption. However, she stated that the Domingos were allowed two visits a month with L.D.

Dr. Amy Dickson (“Dr. Dickson”), an expert in clinical psychology, testified that the Domingos did not acknowledge substance abuse problems. She stated that at least one drug test was diluted. Dr. Dickson testified that L.D. was “drastically | ^different with her aunt” and that L.D. wanted to remain with Mrs. King. Further, Dr. Dickson testified that it was not in L.D.’s best interest to be reunited with her biological parents.

Monique Stiegler (“Ms. Stiegler”), an expert in licensed clinical social work, met with L.D. three times. Ms. Stiegler testified that L.D. had “anger issues and bad self concept” as a result of living with the Domingos. She stated that L.D. should remain with Mrs. King and any disruption of that would be “detrimental” to L.D.

Tina Loze (“Ms. Loze”), the Domingos’ former neighbor, testified regarding the Domingos’ actions that made them appear intoxicated. She stated that she observed the Domingos using drugs. Ms. Loze observed L.D. outside alone, left in the car alone, home alone, and walking in a diaper on a daily basis.

Debra Warner (“Ms. Warner”), one of L.D.’s other aunts, testified that Mrs. Domingo had substance abuse problems since she was a teenager. Ms. Warner stated that since L.D.’s return to Mrs. King, L.D. is affectionate and social again.

Raul Machuca (“Mr. Machuca”), a counselor educator with Family Services of Greater New Orleans, who is nationally certified with a specialty in community counseling, testified that he began seeing the Domingos in 2005 for parenting classes. He stated that the Domingos attended several sessions, but they were scheduled to complete the program after Hurricane Katrina. After Hurricane Katrina, the Domingos re-enrolled in parenting classes with a referral from DSS/OCS. Mr. Machuca testified that a substance abuse program began in May 2006, in which the Domingos participated. However, he stated that the Domingos never acknowledged that they had a “substance abuse problem.” The Domingos finished twenty four sessions. Mr. Machuca testified that Mr. Domingo was asked |7to submit to a drug test every week because of a positive drug test. Mrs. Domingo tested positive for drugs prior to L.D.’s Christmas pageant. Further, he stated that the Domingos tested positive for drugs after the completion of the program and while they were in relapse prevention. Lastly, Mr. Machuca testified that some tests were allegedly false positives.

Serina Walker (“Ms. Walker”), a foster care worker with DSS/OCS assigned to L.D. after Ms. Roome, testified that the case plan developed into a concurrent plan of adoption and reunification. Ms. Walker stated that the Domingos’ requirement to pay child support was communicated orally and in writing. Ms. Walker never received child support from the Domingos. Lastly, Ms. Walker told the Domingos that they were not prohibited from attending family functions.

Sylvia Gray (“Ms. Gray”), the ease manager for L.D., supervised the Domingos’ visits with L.D. The Domingos had two visits a month with L.D. that lasted one hour each. Ms. Gray testified that Mrs. King did not stay for the visits. Ms. Gray stated that the Domingos brought a visitor, whom L.D. did not know, a pit bull puppy, and wanted to bring a cat to their visitations. However, they were told that this was not allowed. Ms. Gray testified that Mrs. Domingo said she would never attend an alcoholics or narcotics anonymous meeting. Further, Ms. Gray stated that Mrs. Domingo told L.D. to tell everyone that she wanted to live with her parents. Mrs. Domingo also told L.D. that the fact that she told L.D. what to say was a secret. Ms. Gray instructed Mrs. Domingo to tell L.D. that kids do not keep secrets, but she did not. Ms. Gray stated that adoption is better for L.D. Paula Bennett (“Ms. Bennet”), Ms. Gray’s supervisor, told the Domingos not to bring friends to the visitations and that alcohol was not allowed as the Domingos’ friend was allegedly drinking alcohol.

|sMrs. King testified that her sister, Mrs. Domingo, had a substance abuse problem when they were kids. She paid for inpatient rehabilitation, but Mrs. Domingo did not complete the program. Mrs. King stated that Mrs. Domingo began outpatient treatment when L.D. was taken away the first time. She testified that L.D. called her “mommy,” but that it was not her goal to adopt L.D. Mrs. King stated that she overheard the Domingos discussing how to cheat drug tests. Lastly, Mrs. King testified that Mrs. Domingo’s first son died of an overdose, while Mrs. Domingo’s first daughter continues to have substance abuse problems.

Mr. Domingo testified that he has a substance abuse problem. He stated that he began taking prescription medication after an accident. Mr. Domingo testified that he did not have a conversation with Mrs. Domingo about cheating drug tests. He stated that he remains in a substance abuse program and that he completed a program with St. Bernard Mental Health. Mr. Domingo testified that he did not pay child support for L.D., but he received the case plan stating that he should pay.

The Louisiana Children’s Code provides that parental rights may be terminated when a child has previously been determined “in need of care,” is presently abused or neglected, and the child is “under department supervision.” If a year, or less if permitted by the court, has passed since the child was taken into custody and the parents have not substantially complied with the case plan, parental rights may be terminated if there is “no reasonable expectation of significant improvement.” In addition to the above provisions, courts must also consider the best interest of the child. While the Domingos contest that they were not under DSS/ OCS supervision when L.D. was taken the second time, State, ex rel. E.N., M.N., and K.Q. held that supervision was unnecessary if termination was in the best interest of the child and the parents were unlikely to change.

l3 The record reflects that the Domingos continued to test positive for drugs after the first time L.D. was in DSS/OCS custody and they received every treatment provided by DSS/OCS. The Domingos also tested positive for drugs after L.D. was taken into custody the second time and failed to pay child support. The testimony does not document an appreciable decrease in the Domingos’ substance abuse. This evidence does not demonstrate a likelihood that the Domingos will change their behavior. Additionally, the experts and DSS/OCS testimony demonstrated their belief that L.D.’s best interest is served by terminating the Domingos’ parental rights and allowing Mrs. King to pursue adoption.

Considering the testimony regarding substance abuse, the conflicting testimony regarding treatment and classes, the experts’ opinions about L.D.’s welfare and condition, and this Court’s holding in State, ex rel. E.N., M.N., and K.Q., we do not find that the trial court was manifestly erroneous in terminating the Domingos’ parental rights.

DECREE

For the above mentioned reasons, we find that the trial court did not err by terminating the parental rights of the Do-mingos.

AFFIRMED.

      . This Court utilizes the initials "L.D.” to protect the identity of the juvenile.


author: JOHN D. SAUNDERS, Judge.

text:
    Mark PELTIER, et al. v. MANUEL BUILDERS, LLC.
    No. CA 2007-941.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.

      Edward Paul Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for Plaintiffs/Appellees Mark Peltier Chris Peltier.
    Sera Hearn Russell, III, Attorney at Law, Lafayette, LA, for DefendanVAppel-lant Manuel Builders, LLC.
    Paul Joseph McMahon, III, Attorney at Law, Lafayette, LA, for Defendant/Appellant Manuel Builders, LLC.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   JOHN D. SAUNDERS, Judge.

11 This is a case where the parties disagreed as to whether a valid transaction or compromise had been reached between them. The plaintiffs are homeowners who entered into a building contract with the defendant, a home builder. After completion of the home, the plaintiffs filed suit alleging that the home was defectively built. The defendant filed an Exception of Prematurity pursuant to an arbitration clause in the construction contract. Prior to a scheduled arbitration hearing, both parties agreed to continue the arbitration hearing without date. After receiving no communication from the home builder’s attorney for a period of time, the plaintiffs filed a Motion to Enforce Settlement that was granted by the trial court. Defendant appealed.

We find that the record does not contain sufficient evidence to grant the plaintiffs’ Motion to Enforce Settlement. The record has no written transaction or compromise and no recitation of any transaction or compromise in open court. As such, we reverse the trial court’s judgment granting plaintiffs’ motion and assess plaintiffs with all costs of this appeal.

FACTS AND PROCEDURAL HISTORY:

Plaintiffs, Mark and Chris Peltier (hereinafter “the Peltiers”), contracted with Manuel Builders, LLC (hereinafter “Manuel”) to build a home. On December 22, 2004, the Peltiers filed suit against Manuel alleging defective construction of the home. Manuel filed an Exception of Prematurity due to an arbitration clause contained in the construction contract entered into by the Peltiers and Manuel. Both parties agreed to have the exception hearing continued and proceed with arbitration.

During the process of arbitration, settlement negotiations between the parties took place. Counsel for Manuel, Mr. Paul J. McMahon, III, wrote a letter dated November 28, 2006, to counsel for the Pel-tiers, Edward P. Landry, stating that his | gdient is willing to purchase the house back to settle the case, and, if the Peltiers were so inclined, to please advise as to the sales price. Manuel’s counsel then wrote a letter dated November 29, 2006, informing the American Arbitration Association that the parties were on the verge of resolving the dispute and, therefore, both parties were requesting that the arbitration hearing presently set for December 4-5, 2006, be continued. Thereafter, counsel for the Peltiers sent various letters to Manuel, through its attorney, indicating that a settlement had been agreed upon and that the settlement would be that Manuel would purchase the house back for the appraised value of $218,500.00.

After communications on the settlement halted, the Peltiers filed a Motion to Enforce Settlement in the Parish of Iberia. No opposition was filed to the motion, nor did Manuel or its attorney make any appearance to oppose the motion. The trial court granted the Peltiers’s motion. Manuel suspensively appealed alleging that the evidence was insufficient to grant the Pel-tiers’s motion as the alleged transaction or compromise was not written, nor was it recited in Open Court as required by La. Civ.Code art. 3071.

ASSIGNMENT OF ERROR:

Manuel contends that the trial court committed a reversible error when it granted the Peltiers’s Motion to Enforce Settlement when it ruled that the letters exchanged between counsel, one containing an offer to begin settlement negotiations and the other containing an appraisal estimate, was sufficient to create a settlement agreement. We agree.

Louisiana Civil Code Article 3071 of the Louisiana Civil Code of 1870, applicable to the case at bar, provides as follows:

13A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must either be reduced into uniting or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form. (Emphasis added.)

The clear and explicit language of the article is that a transaction or compromise must either: (l)be reduced to writing or (2) be recited in Open Court. Here, the record contains evidence of neither. Our Louisiana Supreme Court, in Felder v. Georgia Pacific Corp., 405 So.2d 521, 523 (La.1981), held that even though La.Civ. Code art. 3071 does not provide for the consequences of failing to reduce a compromise into writing, “a compromise which is not reduced to writing is unenforceable.” Bourgeois v. Franklin, 389 So.2d 358 (La.1980); Jasmin v. Gafney, Inc., 357 So.2d 539 (La.1978).

Since Felder, La.Civ.Code art. 3071 has been amended to add the possibility that a compromise be enforceable if its contents were recited in Open Court and are capable of being transcribed from the record of the proceeding. After reviewing the record, we find no such recitation in Open Court as neither Manuel, nor its counsel, appeared at the proceeding.

|4The Peltiers contend that the letters exchanged between the parties respective counsel, when read in light of the other letters included in the record, show that a transaction or compromise was reached. The Peltiers attempt to bolster their argument on language that appears in Felder, 405 So.2d at 524, that is as follows: “Where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La.C.C. art. 3071 has been perfected.” The Peltiers’s reliance on this language is misguided.

In Felder, 405 So.2d at 523-24, our supreme court stated:

[T]he requirement that the agreement be in writing and signed by both parties does not necessarily mean that the agreement must be contained in one document. It would suffice that there be a written offer signed by the offerer and a written acceptance signed by the acceptor, even if the offer and the acceptance are contained in separate writings.

After reviewing the record, we find no such written offer or acceptance signed by Manuel. The language cited by the Pel-tiers refers to a situation where, for example, a plaintiff offers, via a signed document, to settle a case for a certain sum and a defendant, in a different signed document, accepts the plaintiffs offer to settle that case for that certain sum. Here, the first letter referenced by the Peltiers consists of a letter from Manuel’s attorney indicating that Manuel is agreeable to purchasing the house back from the Peltiers. The November 28, 2006, letter, in pertinent part, states, “[a]s we discussed, my client [Manuel] is amiable to purchasing the house back from the Peltiers. If the Peltiers are so inclined please advise us as to the sales price of the same.” There is no language that can reasonably be interpreted to indicate that Manuel offered to purchase the house back for any particular sales price. This language can only reasonably be interpreted as an invitation for an offer to be made |Bby the Peltiers, not as an offer by Manuel.

The next document that the Pel-tiers contend can be interpreted to indicate a transaction or compromise is a letter from Manuel’s attorney to an arbitrator wherein it, in pertinent part, states:

This correspondence is to advise you that the parties are on the verge of resolving this matter and thereby are both requesting that the arbitration hearing presently set for December 4 - 5, 2006 be continued, without date, in order to allow the settlement to be consummated. (Emphasis added.)

First, the plain language of the letter is that the parties are “on the verge” of settling the matter, not that they have settled the matter. Second, this letter is not addressed to the Peltiers. Accordingly, to find that this letter constitutes a signed offer or acceptance of settlement from Manuel to the Peltiers would be unreasonable.

The Peltiers claim that two other documents show a transaction or compromise. They point to a letter from their attorney to Manuel’s attorney and a letter from the arbitrator to their and Manuel’s attorney. While these letters may be construed as evidence that a settlement was reached, the article and jurisprudence clearly require that either Manuel or his representative sign a written offer or acceptance. Neither letter contains a written offer or acceptance on Manuel’s behalf.

The Peltiers also argue that because Manuel filed no opposition to their Motion to Enforce Settlement, despite being notified of its existence, and also because counsel for Manuel failed to respond to repeated communication attempts, the trial court correctly granted the motion. This argument lacks merit. Neither Manuel nor its counsel are under any legal obligation to appear to oppose the motion; nor was Manuel apparently aware of the attempts made by counsel for the Peltiers to contact Manuel’s counsel. The lack of an opposition to a motion does not guarantee its Ifisuccess. The party that brings a motion still has the burden of proving that the motion has merit. Here, the Peltiers failed to do so.

CONCLUSION:

We find that the trial court committed reversible error when it ruled that the letters exchanged between counsel for the Peltiers and Manuel, along with other letters included in the record, were sufficient to create an enforceable settlement between the parties. The record does not contain the evidence necessary to prove that a valid transaction or compromise had been reached between Manuel and the Pel-tiers. As such, the judgment granted to the Peltiers by the trial court is reversed. All costs associated with this appeal are to be paid by the Peltiers.

REVERSED.

      . The editor's notes from the Louisiana Civil Code (2008) state the following: "Book III, Title XVII of the Louisiana Civil Code of 1870, 'Of Transaction or Compromise,’ consisting of Articles 3071 through 3083 was revised, amended and reenacted by Acts 2007, No. 138, effective August 15, 2007, to consist of Articles 3071 through 3083.” In that revision, Louisiana Civil Code of 1870 Article 3071, at issue here, was revised into La.Civ. Code arts. 3071 and 3072. Although this change was made, Revision Comments (a) under both articles state that the intent of the Legislature was not to change the law. Revision Comment (a) under La.Civ.Code Art. 3072 also states that it "preserves the requirement of Article 3071 of the Louisiana Civil Code of 1870 that a compromise must be reduced to writing.”


text:
    STATE of Louisiana v. Donald CLARK.
    No. KA 2007-766.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.

      John F. DeRosier, David L. Kimball, Carla S. Sigler, Charles, LA, for Appellee State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant Donald Clark.
    Donald Clark, Lake Charles, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   JOHN D. SAUNDERS, Judge.

LJn State v. Clark, 04-901 (La.App. 3 Cir. 12/8/04), 889 So.2d 471, this court reversed the Defendant’s conviction for forcible rape, found the evidence supported a conviction of the lesser included responsive offense of simple rape, and remanded the matter for resentencing.

On remand, the Defendant was sentenced to serve fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence. In State v. Clark, 05-647 (La.App. 3 Cir. 12/30/05), 918 So.2d 552, this court found the sentence was excessive and remanded the matter for resentencing, noting that any sentence in excess of five years, under the facts of the case, was excessive.

On June 28, 2006, the Defendant was sentenced to serve five years at hard labor, without benefit of probation, parole, or suspension of sentence. The sentence was ordered to run consecutively with the sentence the Defendant was serving for contempt of court. The Defendant filed a Motion and Order to Reconsider Sentence on July 6, 2006, and September 14, 2006. The motions were denied on October 30, 2006.

A Motion and Order for Appeal was filed on December 4, 2006. The Defendant is now before this court asserting one assignment of error. Therein, the Defendant contends his sentence is excessive. We find this assignment of error lacks merit.

FACTS:

In this court’s original opinion, the following facts were set forth:

The Defendant, a thirty-one year old single father and National Guardsman, was accused by C.T. of the crime of rape. From the outset, the Defendant admitted to engaging in a sexual encounter with C.T. on May 6, 2001, but he maintains the act was consensual. In fact, both the Defendant and C.T., along with the other witnesses, agree as to much of what transpired on the evening of May 5 and the morning of May 6, 2001.
| a At the time of the incident at issue, C.T., twenty-six, was a resident of Austin, Texas, where she lived with her husband and two young children. She traveled to Lake Charles that weekend with her son to attend the wedding of two friends, Christina and Reginald Ewing. After the wedding reception, C.T., along with the bride and groom and many other wedding guests, went to the Ewings’ house to continue the festivities. At one point, Reginald left to pick up his cousin, the Defendant, so he could join everyone at the Ewings’ house. C.T. and the Defendant met for the first time that evening.
Later that night, C.T. and three other women decided to go out to a few bars, including The Keg and The Doll House. The group consisted of the Defendant’s sister, Michelle Clark; Meredith Shrimp, who had traveled with C.T. from Austin; and Candace Cole. The Defendant and his cousin, Derrick Mal-brew, went along with the four women. Both the Defendant and C.T. testified that the group danced together and were very friendly. C.T. could not deny that she might have held hands with the Defendant and may have sat on his lap. While at The Doll House, C.T. and the Defendant left for a while; she testified they left to visit a bar called Crystal’s, and he testified they left to have a brief sexual encounter in his sister’s car.
The group then returned to the Ewing house where C.T. and Candace Cole planned to spend the night. Michelle Clark dropped the others off and left. Cole proceeded to go to bed. Meredith Shrimp called a friend who came over with some marijuana, which he shared with Shrimp and C.T. C.T. also admitted to taking a muscle relaxer given to her by another guest. Derrick Malbrew visited with them while they smoked the marijuana. The Defendant disappeared for a while, then left with Malbrew in the early morning hours. Cole later told C.T. he had come into the room where she was sleeping, got into bed with her, and rubbed his penis on her. He left when she told him to go. The Defendant admitted lying down with Cole but denied the sexual advance. He testified that he asked to follow her into her room when he saw the drugs in the living room.
C.T. testified that after Shrimp left with her friend, she locked the house and prepared for bed. She changed from a skirt, shirt, and thong into boxer shorts and a tee shirt to sleep in. She testified that after sleeping for a while she was awakened by the sound of the Defendant coming into her room. He took off his clothes, got in bed with her, and proceeded to have sex with her. She testified that she was “frozen” and did not fight him off, scream to Cole for help, or try to get away. Rather, she pleaded with him to stop and was overpowered by him, a two hundred pound man. She stated that he pinned her down, but he did not threaten her and was not violent with her. She acknowledged she had no bruises or other physical injuries from the incident. The Defendant agreed that he returned to the Ewing house that morning, but he testified the sexual act was consensual and C.T. never asked him to stop. Both agreed the Defendant then cleaned himself up with a towel lying on the Ufloor, kissed C.T. on the forehead, and asked her if he would see her later at a barbecue for the Ewings. He then left.
C.T. returned to her home in Austin that day and informed her husband that she had been raped. The following morning, the couple drove to Lake Charles and reported the rape to the police.

Clark, 889 So.2d at 472-73.

Evidence presented also revealed the following:

Between approximately 10:00 p.m. on May 5, 2001 and 4:00 a.m. on May 6, 2001, C.T. consumed alcohol, smoked marijuana, and took what she thought was a muscle relaxer. Tammy Cane, a witness for the defense, testified that she saw C.T. at The Doll House and she seemed to be intoxicated. When asked if he could see the effects of the marijuana and pill taken by C.T., Derrick Mal-brew testified that at 3:00 a.m., she appeared tired and could barely keep her eyes open. Blood tests performed on C.T. at the hospital on May 7 showed the presence of marijuana and another drug, benzodiazepine.

Id. at 474.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by us for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR:

In his only assignment of error, the Defendant contends the sentence imposed constitutes an excessive sentence under the facts and circumstances of this case and considering his personal history.

The Defendant asserts the trial court did not discuss any of the testimony at sentencing, any information which came out at the first and second sentencing hearings, and the pre-sentence investigation report. Additionally, the trial court did not indicate what aggravating and mitigating circumstances it considered. Furthermore, the Defendant alleges his sentence is excessive based on the facts of the case.

pin his Motion to Reconsider Sentence, the Defendant merely alleged his sentence was excessive. The defense failed to argue that the trial court did not discuss any of the testimony at sentencing, any information which came out at the first and second sentencing hearings, and the pre-sentence investigation report or that the trial court failed to consider any mitigating and aggravating factors.

“Failure to ... include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E).

Accordingly, the Defendant waived all claims regarding these allegations. Therefore, we will only address the Defendant’s claim that his sentence is excessive.

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

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

In this court’s most recent ruling in this matter, Clark, 918 So.2d 552, we cited State v. Sergon, 449 So.2d 193 (La.App. 3 Cir.1984). In Sergon, the defendant pled guilty to simple rape of a mental patient at Pinecrest State Hospital. The trial court determined the victim did not understand the nature of the offense because of her mental condition and the defendant, a twenty-nine-year-old member of the Louisiana | ¡National Guard, knew of the victim’s incapacity. This court held the defendant’s sentence of five years at hard labor was not excessive. After citing Ser-gon, this court then stated the following: “We direct the sentencing court’s attention to the fact that a sentence of five years or less is appropriate in this case. See La. Code Crim.P. art. 881.4(A).” Clark, 918 So.2d at 556.

In brief, the Defendant argues that his case is different from Sergon because the victim in his case was voluntarily intoxicated and the defendant in Sergon took advantage of a victim made vulnerable by the vagaries of nature. We disagree.

Sergon is analogous to the case at bar because both the defendant in Sergon and the Defendant in the case at bar committed a similar crime on two individuals who were in a vulnerable state. Moreover, the Defendant was sentenced in conformity with the sentencing recommendation in this court’s prior opinion. Therefore, we find the Defendant’s sentence is not excessive. Accordingly, this assignment of error lacks merit.

DECREE:

The Defendant’s sentence is affirmed.

AFFIRMED.


text:
    T.S.L., born C. v. G.L.
    No. CW 2007-01552.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.
    Catherine Louise Stagg, Lake Charles, for T.S.L.
    Kathleen Kay, Lake Charles, for G.L.
   |;WRIT GRANTED AND MADE PEREMPTORY. We find that the trial court abused its discretion in denying relator’s motion to disqualify counsel. A lawyer is responsible for the conduct of their nonlawyer employees, and the lawyer “having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” La.Rules Prof.Conduct Rule 5.3. Without informed, written consent, a lawyer is prohibited from representing a person in the same or substantially related matter in which a firm with which the lawyer was previously associated represented a client with materially adverse interests from the person or “about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.” La. Rules Prof. Conduct Rule 1.9(b). Here, a paralegal employed by the attorney for respondent had prior access to relator’s privileged information while working for relator’s former counsel. Therefore, because respondent’s | gcounsel is responsible for the conduct of her employees and because her paralegal has a direct conflict of interest in this case, this conflict disqualifies her from representing respondent. Therefore, we reverse, set aside, and vacate the trial court’s ruling. We remand this matter to the trial court for further action in accordance with this ruling.


author: GREG G. GUIDRY, Judge.

text:
    BAYOU FLEET PARTNERSHIP v. PHILLIP FAMILY, LLC.
    No. 07-CA-581.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 2008.
    Rehearing Denied March 3, 2008.

      Anthony J. Staines, Stephen E. Matte-sky, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    David L. Colvin, Daniel J. Newchurch, Travis J. Causey, Jr., Attorneys at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

12The Defendant, Phillip Family, LLC, appeals a summary judgment in favor of the Plaintiff, Bayou Fleet Partnership in a real estate contract dispute. We reverse the judgment and remand.

In December 1999, the parties entered into a contract entitled Lease Agreement regarding property along Highway 90 in Boutte, Louisiana. The agreement contains a provision referring to an option to purchase. The Defendant paid the Plaintiff a lump sum in the amount of $100,000 at the time the document was executed. The monthly payments were $4,500 per month for sixty months commencing March 1, 2000, and ending February 31, 2005. Part of the monthly payment was set aside toward the purchase of the property. Under the contract, the remaining balance would be amortized pursuant to a “Schedule of Purchase Option Dates and Amounts.”

|3In 2004, the Defendant informed the Plaintiff that it intended to fulfill the contract. The Defendant perceived the contract as a bond for deed sale. The Plaintiff considered the contract a lease purchase agreement. It responded with a letter referring to the contract as a lease with an option to purchase.

In February 2005, the Defendant sent a monthly payment. It was returned un-negotiated on March 4, 2005. On March 9, 2005, the Plaintiff attempted to negotiate a new agreement through which a right and/or servitude to fleet its vessels along 465 feet of river frontage of the property would be granted in addition to the purchase of the property at issue. The Defendant did not accept the proposed agreement, but instead arranged for a real estate closing during which it was prepared to pay the balance of the sale price. The Plaintiff did not appear.

On April 22, 2005, the Plaintiff filed a petition for declaratory judgment asking the court to declare that the lease agreement expired at the end of the lease term, and that the option to purchase the property was not exercised by the Defendant within the term. It further requested an order for the Defendant to cease activities on the land, and to immediately vacate the property. Subsequently, the Plaintiff filed a motion for summary judgment, which the trial judge granted on December 5, 2006.

On appeal, the Defendant asserts that the agreement was a bond for deed contract, and that the trial judge erred in granting a summary judgment as there are material issues in dispute remaining on that issue.

The standard for review of a ruling on a summary judgment is de novo. Suire v. Lafayette City-Parish Consol. Government, 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48; Alwell v. Meadowcrest Hosp., Inc., 971 So.2d 411, 414 (La.App. 5 Cir. 10/30/07). Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on |4file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B; Suire, 04-1459 at p. 11, 907 So.2d at 48; Alwell, 971 So.2d at 414. A genuine issue exists where reasonable persons, after considering the evidence, could disagree. Suire, 04-1459 at p. 11, 907 So.2d at 48; Alwell, 971 So.2d at 414. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Suire, 04-1459 at p. 11, 907 So.2d at 48; Ahvell, 971 So.2d at 414. A fact is “material” if it is one that would matter at trial on the merits. Suire, 04-1459 at p. 11, 907 So.2d at 48; Alwell, 971 So.2d at 414. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Suire, 04-1459 at p. 11, 907 So.2d at 48; Alwell, 971 So.2d at 414.

A bond for deed is a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer. La. R.S. 9:2941. A conditional sale, such as a bond for deed contract, is an obligation to pay the full price of the purchase. In a lease with an option to purchase, the potential buyer has the option to give additional consideration in order to purchase the leased item at the end of the contract term. Bamma Leasing Co., Inc. v. Secretary of Dept. of Revenue and Taxation, 93-881, pp. 4-5 (La.App. 5 Cir.9/14/94), 646 So.2d 917, 920; Hewitt v. Safeway Insurance Company of Louisiana, 01-0115, pp. 5-6 (La.App. 3 Cir. 6/6/01), 787 So.2d 1182, 1186. See also: Byrd v. Cooper, 166 La. 402, 404-405,117 So. 441, 442 (1928).

The label placed on the transaction is not determinative. A contract may be treated as a bond for deed where the legal requirements for a bond for deed are 1 Kmet, regardless of the characterization given the transaction by the parties to the agreement. Thus, a “lease-purchase agreement” whereby the “lessee” made monthly payments on real estate to the “lessor” for twenty-five years with all payments credited to the sale price until the final sale was consummated was treated as a bond for deed in Berthelot v. The Le Investment, L.L.C., 02-2054 (La.App. 4 Cir.1/21/04), 866 So.2d 877. There, the agreement contained language that stated a specific point in time when the final sale of the property would take place. See also: Upton v. Whitehead, 41,131 (La.App. 2 Cir. 6/28/06), 935 So.2d 746 (oral agreement to transfer title upon completion of payments held bond for deed).

An option is a binding offer for a stipulated time which, when accepted, ripens into an agreement to sell which may be specifically enforced by either party. Bankston v. Bankston’s Estate, 401 So.2d 436, 437 (La.App. 1 Cir.1981), writ den., 406 So.2d 627 (La.1981); Drachenberg v. Parish of Jefferson, 563 So.2d 523, 525 (La.App. 5 Cir.1990). The phrase “exercise the option” means acceptance of the offer. Bankston, 401 So.2d at 437; Drachenberg, 563 So.2d at 525.

In H.J. Bergeron, Inc. v. Parker, 06-1855, p. 3 (La.App. 1 Cir. 6/8/07), 964 So.2d 1075, 1076, the First Circuit found the agreement to be a bond for deed contract because it provided a description of real property, a purchase price in installments and an agreement to deliver title after the payment of the “Sale Price.” In addition, the last paragraph of the document specifically referred to the parties as BUYER and SELLER. The court noted that similar documents have been held to be “Bond for Deed” contracts.

In Tabor v. Wolinski, 1999-1732, p. 2 (La.App. 1 Cir. 9/22/00), 767 So.2d 972, the contract was found to be a bond for deed because the defendants were | fiobligated to make all of the payments listed in the agreement, including payment of the consideration.

The Defendant contends that the agreement is ambiguous and a contract of adhesion, requiring this Court to determine the intent of the parties, a factual issue. This was not a contract of adhesion. The parties are sophisticated business enterprises who executed a contract particular to their agreement. Nevertheless, we find it is ambiguous.

In interpreting a contract, the courts determine the common intent of the parties. La.C.C. art. 2045. But, when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La.C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. ■ La. C.C. art. 2050.

The amortization schedule here contains a fixed purchase price, and contains a declining balance. The parties clearly did not view the document in the same way. That they are confused as to the nature of the contract can be expected considering the amortization schedule, which can be construed as either listing the declining payments for a bond for deed sale, or as listing the balances that would be owed if the option to purchase was exercised on particular dates. Furthermore, the purpose of the $100,000 payment is unclear and subject to various interpretations. Consequently, we find that the trial judge erred in granting the motion for summary judgment, as there are material issues of fact in dispute as to | .¡whether the parties intended the agreement to be a bond for deed sale or an option to purchase. See: La.C.C.P. art. 966 B.

ATTORNEYS’ FEES

The Plaintiff was denied attorney’s fees at a hearing following the summary judgment. In brief, the Plaintiff requests this Court to reverse that finding and render an award. According to the record, the Plaintiff failed to file an appeal or answer to the appeal from that judgment. Without a formal appeal or answer to the appeal, the issue is not properly before the Court.

Accordingly, the summary judgment is hereby reversed and the case is remanded for further proceedings.

JUDGMENT REVERSED, CASE REMANDED.

      . In Aguillard v. Auction Management Corp., 04-2804, p. 9 (La.6/29/05), 908 So.2d 1, 8-9, the Louisiana Supreme Court defined a contract of adhesion as: "... a standard contract usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms....
      Nevertheless, not every standard form is a contract of adhesion. Aguillard, 04-2804 at p. 11, 908 So.2d at 10.