author: JONES, Judge.

text:
    Beulah McLean ELDER, et al. v. ELDER & ELDER ENTERPRISES, LTD., et al.
    No. 2006-CA-0703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2007.
    Rehearing Denied Feb. 15, 2007.

      Kenneth 0. Privat, Law Office of Kenneth O. Privat, Homer Ed Barousse, Jr., Crowley, LA, for Plaintiff/Appellant.
    Ashley L. Belleau, Pierre V. Miller II, Patrick, Miller, Burnside & Belleau, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge ROLAND L. BELSOME).
   JONES, Judge.

| ,The Appellant, Mrs. Beulah Elder (hereinafter “Mrs. Elder”), seeks review of a district court judgment granting the Motion to Enforce Settlement and Execution of Settlement Documents of the Appellees, Elder & Elder Enterprises and S. Thomas Elder. We affirm the decision of the district court.

Statement of Facts

James H. Elder, Jr. and his older brother, S. Thomas Elder formed Elder & Elder Enterprises, Ltd., d/b/a Triple E to collectively manage property they inherited from their parents. Following the death of James H. Elder, Jr., Mrs. Beulah Elder — the widow of James H. Elder, Jr. and the Testamentary Executrix of the Succession of James H. Elder, Jr. — sued Elder & Elder Enterprises, Elder L.L.C., and S. Thomas Elder, the Appellees, on September 13, 2004. The lawsuit alleged that the Appellees committed corporate misdeeds, namely the mismanagement of the assets of the Elder & Elder Enterprises and Elder, LLC.

During the course of the on-going litigation, the Appellant, through one of her attorneys of record, broached the topic of settlement via correspondence with 1 ¡.Elder & Elder Enterprises and S. Thomas Elder (hereinafter collectively referred to as “EEE”). Further- settlement discussions ensued until EÉE provided Mrs. Elder with its final counter-offer in a letter dated July 28, 2005. Counsel for Mrs. Elder replied to EEE on August 1, 2005, advising that Mrs. Elder accepted the counteroffer proposed in the July 28, 2005 letter.

Settlement documents were forwarded to Mrs. Elder from EEE on August 22, 2005. Hurricane Katrina and its aftermath struck the greater New Orleans area soon thereafter. The parties did not communicate again until September 29, 2005, at which time EEE’s counsel followed up with Mrs. Elder’s counsel. It was at that time that EEE was informed that Mrs. Elder no longer desired to proceed with the settlement.

On November 23, 2005, EEE filed a Motion to Enforce Settlement against Mrs. Elder, who in turn filed a Dilatory Exception of Unauthorized Use of Summary Proceedings. A hearing was held on both the motion and the exception on February 17, 2006. The district court issued a Judgment on March 28, 2006, granting EEE’s Motion to Enforce Settlement and overruling Mrs. Elder’s Exception of Unauthorized Use of Summary Proceedings. The district court determined that the requisites of a compromise were met as the correspondence exchanged between the parties showed that all parties acquiesced to ■ the agreement. Mrs. Elder filed a timely appeal from the district court judgment on April 26, 2006.

| Issues/Assignments of Error

Mrs. Elder avers that the district court committed reversible error in finding that the correspondence exchanged between the appellant and appellees created a binding settlement over immovable property where appellant/client did not authorize her counsel in writing to accept a settlement.

Law and Discussion

Louisiana Civil Code article 3071 defines a compromise as follows:

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 be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding ...

A compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached. Walk Haydel & Associates, Inc. v. Coastal Power Production Co., 1998-0193, p. 3 (La.App. 4th Cir.9/30/98), 720 So.2d 372, 373 (citing Pat O’Brien’s Bar, Inc. v. Franco’s Cocktail Prods., Inc., 615 So.2d 429 (La.App. 4 Cir. 1993), writ denied, 617 So.2d 909 (La.1993)). Indeed, a compromise is a contract. Stern v. Williams, 365 So.2d 1128 (La.App. 4th Cir.1978), writ denied, 368 So.2d 143 (La.1979).

Contracts are formed by the consent of the parties established through offer and acceptance. La. Civ.Code art. 1927. Thus, “before a district court can find the existence of a valid written compromise agreement, it must find an offer and an acceptance.” McRae v. Ellis, 93-1579, (La.App. 4 Cir. 2/11/94), 632 So.2d 841, 843 (citing Felder v. Georgia Pacific Corp., 405 So.2d 521, 523-524 (La.1981)).

[¿The law requires the compromised settlement to be reduced to writing; however, “this Court has said ‘there is no sacrosanct form which must be followed’ and ‘it is not necessary that everything intended to be compromised be in one document.’ ” Walk Haydel & Associates, Inc., 1998-0193, p. 3, 720 So.2d at 374 (quoting Charbonnet v. Ochsner, 236 So.2d 86, 88 (La.App. 4 Cir. 1970), aff'd, 258 La. 507, 246 So.2d 844 (La.1971)).

In deciphering when separate instruments satisfy the writing requirement of La. C.C. art. 3071, the Supreme Court has reasoned that 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 Article 3071, has been perfected. Felder v. Georgia Pacific Corp., 405 So.2d 521, 523-524 (La.1981).

Compromises are favored in the law and the burden of proving the invalidity of such an agreement is on the party attacking it. Duet v. Lucky, 621 So.2d 168, 172 (La.App. 4 Cir.1993) (citing Ellison v. Michelli, 513 So.2d 336 (La.App. 4th Cir.1987)).

The issue that Mrs. Elder raises on appeal necessitates that we answer two questions. First, is there a specialized procedure for settling a dispute involving the transfer of immovable property? If there is, the second question that needs to be answered is whether said procedure was followed. Our opinion, under the facts of this case, is that there is no such specialized form.

Mrs. Elder asserts that a settlement involving immovable property must meet the same criteria as a sale of immovable property. EEE maintains that a valid settlement can be established based on correspondence alone.

| rJn support of her position, Mrs. Elder cites the Third Circuit case of Pace v. McManus, 463 So.2d 85 (La.App. 3rd Cir. 1985). In Pace, four persons-two couples — purchased a piece of property. One couple, the Paces, sued one of the parties, Mrs. McManus, for failing to pay her share of the semi-annual property payments. The Paces sought to be reimbursed for payments they made on Mrs. McManus’s behalf.

The attorneys for both parties exchanged correspondence throughout the duration of the lawsuit. Mrs. McManus later filed a Motion to Enforce Settlement wherein she argued that a settlement was reached based , on the correspondence exchanged between herself and Mr. Pace. She claimed that Mr. Pace had agreed to purchase her interest in the property for $7,000.00.

The Third Circuit explained that an agreement was not reached for two reasons. The first reason was that both Mr. and Mrs. Pace had to agree to the $7,000.00 offer, but only Mr. Pace consented to the offer. The second reason was that Mr. and Mrs. Pace did not give their attorneys written authority to execute a contract on their behalf.

Similarly, the Pace court’s reliance on the Fourth Circuit’s holding in Rebman v. Reed, 335 So.2d 37 (La.App. 4 Cir.1976), writ denied, 338 So.2d 699 (La.1976), further illustrates that the application of the requirement that attorneys must be given written authority to execute contracts involving the transfer of immovable property is based upon the facts of the case.

In Rebman, plaintiff William Rebman contracted with real estate agent1 Mrs. Gertrude Gardner to purchase a house from Mrs. Gardner’s client, C. Espy Reed. Mrs. Gardner — as an agent for Reed — • agreed to sell the subject property to | fiMr. Rebman. However, Reed repudiated Mrs. Gardner’s acceptance. Mr. Rebman and Mrs. Gardner’s corporation sued Reed for breach of a written contract to sell immovable property. This Court held that Mrs. Gardner did not have Reed’s written consent at the time that she contracted with Mr. Rebman, and Reed did not subsequently consent to the agreement.

The facts of both Pace and Reb-man reveal that the holdings in each case were fact intensive as both cases involved disputes that solely involved determining the status of immovable property that was directly at issue from the inception of the -lawsuit. The facts of the instant case, however, are clearly distinguishable.

In Pace, solely immovable property was at issue in that four couples had invested in a piece of land. The parties were purportedly attempting to reach a settlement to transfer the land at issue to the Paces, who were due reimbursement from Mrs. McManus. Yet, in the case at bar, Mrs. Elder — as the Executrix of her late husband’s estate — sued EEE alleging corporate misdeeds and requesting the liquidation of Elder & Elder Enterprises, LTD and Elder, LLC, under the direction of a receiver. A review of the record reveals that the assets of the corporation consisted of both movable and immovable property.

During the course of ongoing litigation, Mrs. Elder, through her counsel of record, attempted to settle this matter. The settlement that was reached included the transfer of immovable property to Mrs. Elder to resolve the corporate dispute. The settlement satisfied the requirements of Louisiana Civil Code article 3071 in that both parties worked together to reach an agreement to resolve a dispute that was in Mitigation. Additionally, the July 28, 2005 correspondence signed by EEE’s attorney and the August 1, 2005 letter signed by Mrs. Elder’s counsel signify that the terms of this agreement were reduced to writing. Thus, a binding contract was formed. Mrs. Elder’s consent was not vitiated by bad faith, error or fraud. Borchardt v. Carline, 92-1332 (La.App. 4 Cir. 4/15/93), 617 So.2d 970, 973.

Requiring attorneys to secure the express and written consent of their clients as buyers and/or sellers in all settlements that include the transfer of immovable property is too onerous of a requirement in cases where the nature of the dispute itself does not involve immovable property. Such a requirement would only serve to impede settlements and thereby weaken our jurisprudential practice of encouraging judicial settlement of on-going litigation.

Decree

For the reasons stated herein, the judgment of the district court granting Elder & Elder Enterprises and S. Thomas Elder’s Motion to Enforce Settlement and Execution of Settlement Documents is affirmed.

AFFIRMED.

      . The lawsuit was initially' filed in the Fifteenth (15th) Judicial District Court in the Parish of Acadia, but was subsequently transferred to the Civil District Court for the Parish of Orleans. Elder, LLC was eventually dismissed from this matter on an Exception of No Right of Action.

      . A detailed settlement proposal was included in Mrs. Elder's May 5, 2005 correspondence to EEE. ’

      . In EEE’s July 28, 2005, letter to Mrs. Elder, EEE responded to her inquiry of whether EEE was willing to sell her .88 acres. EEE responded by advising Mrs. Elder that the immovable property was indeed for sale, subject to EEE board approval. The purchase price was $45,000.00 for the .88 acres. It is unclear from Mrs. Elder’s acceptance letter whether she was also agreeing to purchase this acreage.

      .November 8, 2006 Per Curiam of the Civil District Court, Orleans Parish, Division J, Nadine M. Ramsey, J.

      . Counsel for EEE provided Mr. Barousse with a list of the assets of Elder and Elder, LTD in a letter dated July 19, 2005.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    BELL FENCE & GALVANIZING CO., INC./CENTRAL FENCE, Plaintiff-Appellant v. Brad BOND d/b/a Bond Fence Company, Defendant-Appellee.
    No. 41,820-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Randal B. Tannehill, Pineville, for D. Beau Sylvester, Appellant.
    Larry Arbour, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   GASKINS, J.

hThe plaintiff, Bell Fence & Galvanizing Co., Inc./Central Fence (“Bell Fence”), seeks reversal of the trial court’s judgment granting the peremptory exception of prescription filed by the defendant, Brad Bond. For the following reasons, the trial court judgment is affirmed.

FACTS

Bell Fence is a supplier of fencing materials. Brad Bond operated a fence building business and bought supplies from Bell Fence. On May 23, 2005, Bell Fence filed a suit on open account alleging that Mr. Bond was indebted to it for the outstanding sum of $11,272.71.

In answering the petition, Mr. Bond admitted he did have an open charge account with the plaintiff until 2001, but claimed he had paid in full all of those charges. Mr. Bond further stated that he had not had an open account with the plaintiff since 2001, but instead paying cash for all purchases since then. Mr. Bond pleaded the affirmative defenses of payment and prescription.

On January 6, 2006, Mr. Bond filed a peremptory exception of prescription which was heard on January 11, 2006.. At the hearing, Mr. Bond submitted into evidence a copy of Bell Pence’s customer activity report on his account reflecting all activity on the account between January 1, 1999, and December 31, 2003. The report was purportedly admitted to show that the only items for which a balance was currently due were purchased no later than August of 2001.

The account reflects Mr. Bond’s purchasing activity between May and August of 2001 totaling $10,651.23, which Bell Fence claims is still | ^outstanding. The report also reflects that from late 2001 until December 2003, Mr. Bond continued to purchase materials from Bell Fence totaling $140,174.07. Each purchase is identified by a specific invoice number and the individual items purchased under that invoice. In the “Balance Due” column of the report, none of these post-August 2001 invoices reflect any unpaid balance. Toward the end of the report, 39 Receipt on Account (ROA) payments are listed, dating from December 7, 2001 to December 8, 2003. Each payment listed identifies the invoice number or numbers to which the payment was credited. A review of those invoice numbers indicates that each payment was for items invoiced anywhere from a week to two years before the payment was made. The last page of the report lists a balance due of $10,651.23, the amount accrued including and prior to August 2001.

Mr. Bond testified that he operated his fence contracting business between 1999 and 2004. During this time, he purchased items from Bell Fence. The company allowed him to purchase the materials on a credit basis. However, Mr. Bond was informed that due to the large outstanding balance on his account, he would no longer be extended credit. Any materials he obtained from that time forward were paid for at the time of purchase. He confirmed that he continued to do business with Bell Fence until he quit the fence contracting business in 2004.

Bell Fence presented the testimony of Clint Randolph Clinton, a regional sales manager for the company between 1999 and 2004. Mr. Clinton confirmed Mr. Bond’s testimony that the company initially | sextended credit to Mr. Bond by allowing him to make purchases on open account. While Mr. Clinton could not testify as to exactly when the company stopped extending credit to Mr. Bond, he thought that it was either in 2001 or 2002. While Mr. Clinton stated that exceptions were sometimes made to extend credit to non-charging customers, he had no specific recollection of it being done on Mr. Bond’s account. Mr. Clinton also testified that Mr. Bond acknowledged to him on numerous occasions that he owed Bell Fence some money, but that Mr. Bond disputed the amount. Mr. Clinton could not recall the dates of these acknowledgments, but was confident that Mr. Bond had done so as late as 2003.

Mr. Bond took the stand on rebuttal and refuted that he had ever acknowledged owing any debt to Bell Fence.

At the conclusion of the hearing, the trial court- granted the exception of prescription based on its finding that the open account was terminated in 2001 when Mr. Bond was required to pay for all materials at the time of purchase. The trial judge signed a judgment to that effect in open court.

Bell Fence filed a motion for new trial arguing that the judgment was contrary to the law and the evidence. The plaintiff contended that charges were made on the account in 2004 as reflected on the accounts receivable report previously filed into the record as a supplement to the original petition. The plaintiff argued that Mr. Clinton was not aware that, as late as 2004, employees allowed Mr. Bond to receive merchandise and pay later. At the hearing on the motion, the plaintiff proffered the affidavit of the president of Bell Fence to show that Mr. Bond was allowed to charge on his 1¿account after 2001. The plaintiff argued that this evidence was not known to Mr. Clinton and was not discovered until after trial. The trial court denied the motion for new trial on the basis that this evidence, if accurate, was available to the plaintiff at the time of the hearing on the exception. Bell Fence appealed.

DISCUSSION

The plaintiff argues that the trial court erred in concluding that an open account ceased to exist in 2001, because the customer activity report shows that Mr. Bond was extended credit less than three years prior to the filing of the suit on open account. This argument is without merit.

La. C.C. art. 3494 provides for a three-year liberative prescriptive period for an action on an open account. Prescription of the balance due on an open account begins to run from the date of the last credit entry on account. Ritchie Grocer Co. v. Dean, 182 La. 518, 162 So. 62 (1935); Frierson Co., Inc. v. Murray, 190 So. 132 (La.App. 2d Cir.1939). However, a debtor on an open account may impute his payments to specific items on that account. Freiberg v. Rembert, 213 So.2d 104 (La. App. 1st Cir.1968); Electrical Supply Co. v. Eugene Freeman, Inc., 178 La. 741, 152 So. 510 (1934). Such imputed payments do not interrupt the tolling of prescription on the balance of the account. LeBoeuf v. Riera, 176 So.2d 216 (La.App. 4th Cir. 1965). In other words, when payment is made for specific invoices, whether as a result of the extension of credit or not, that payment does not serve to interrupt prescription on the balance of the account. See also Dear v. Mabile, 93-1188 (La.App. 1st Cir. 5/20/94), 637 5So.2d 745; Farlee Drug Center, Inc. v. Belle Meade Pharmacy, Inc., 464 So.2d 802, 805 (La.App. 5th Cir.1985); and Fleet Tire and Service v. Schwegmann Brothers Giant Super Markets, Inc., 408 So.2d 54 (La.App. 4th Cir. 1981).

The record clearly reflects that the balance due sought by the plaintiff is for charges made no later than August 31, 2001. Suit was filed on May 23, 2005, more than three years later. Since the record evidences no general payments on the account, but only payments specifically credited to particular invoices, there was no interruption of prescription as to the charges made through August 2001. Further, the defendant testified that he did not acknowledge the debt and the trial court apparently found his testimony to be credible. There is no showing that the trial court was manifestly erroneous or clearly wrong in this finding. Accordingly, we find no error in the trial court’s granting of the exception of prescription.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Brad Bond’s peremptory exception of prescription and dismissing the claims of Bell Fence is hereby affirmed. The costs of this appeal are assessed to Bell Fence.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Appellee v. Edward Lamar JONES, Appellant.
    Nos. 41,628-KA, 41,629-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Laura M. Pavy, for Appellant.
    J. Schuyler Marvin, District Attorney, Edward C. Jacobs, Charles A. Smith, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, Judge.

hThe defendant, Edward L. Jones, was originally charged with second degree murder, a violation of LSA-R.S. 14:30.1, and obstruction of justice, a violation of LSA-R.S. 14:130.1. Pursuant to a plea agreement, defendant pled guilty to the reduced charge of manslaughter, a violation of LSA-R.S. 14:31, and obstruction of justice. The district court imposed the maximum sentence of 40 years at hard labor for the manslaughter conviction and a sentence of five years at hard labor for the obstruction of justice conviction. The sentences were to be served consecutively. Defendant’s timely motion to reconsider sentence was denied. Defendant appeals his sentences as excessive. For the following reasons, we affirm.

DISCUSSION

The record shows that the defendant and the victim, Vernon Dutch, knew each other and had been involved in a dispute concerning a debt which the victim allegedly owed to the defendant. On November 12, 2001, defendant entered the victim’s apartment armed with a handgun and shot the victim once in the head. The victim died as a result of the gunshot wound. The defendant was eventually arrested and the handgun used in the crime was found in his apartment. While the defendant initially denied any knowledge or involvement with the crime, he later confessed to the shooting. As a result of the plea agreement, the defendant pled guilty to the charges of manslaughter and obstruction of justice, with a ten-year sentencing cap on the obstruction of justice conviction. There was no sentencing agreement with respect to the manslaughter conviction.

The defendant contends the district court’s imposition of the [^maximum sentence for his manslaughter conviction is excessive. He argues that the goals of punishment would be accomplished with a less severe sentence considering his background and the circumstances of the case.

In reviewing claims alleging the exces-siveness of a sentence, an appellate court applies a two-pronged test. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines' of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of Article 894.1, not a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57, 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered’ are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a | spurposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, supra.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through.a plea bargain, the district court has wide discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345. Whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years. LSA-R.S. 14:31.

Prior to imposing sentence in this case, the district court reviewed a pre-sentence investigation report, the defendant’s sentencing memorandum and a letter submitted to the court by the victim’s mother. The court stated that defendant was a second felony offender with a “fairly extensive” criminal record, which included convictions for possession of cocaine, theft by taking, forgery and violation of probation in the state of Georgia. The court noted that the defendant had been previously diagnosed with paranoid Uschizophrenia, had suffered from mental and emotional problems from the age of ten and had admitted to chronic use of illegal drugs, specifically cocaine. However, the court found there was no excuse for the defendant’s act of taking a human life. The court further noted that the victim’s mother had incurred significant financial expenses related to her son’s funeral and had asked the court to impose the most severe penalty allowed by the law.

Despite the defendant’s history of mental illness and chronic drug abuse, the defendant’s statements during his psychological evaluations indicated that at the time of the offense, defendant intentionally armed himself with a handgun and waited for an opportunity to threaten the victim without others present. Thus, the offense of manslaughter did not adequately describe defendant’s conduct in shooting the victim to death and the imposition of the maximum sentence was within the court’s discretion.

The defendant also contends that the district court erred in imposing consecutive sentences. It is within a trial judge’s discretion to order sentences to run consecutively rather than concurrently. State v. Dagenhart, 39,874 (La.App.2d Cir.8/17/05), 908 So.2d 1237. Concurrent sentences arising out of a single course of conduct are not mandatory and consecutive sentences under those circumstances are not necessarily excessive. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Dagenhart, supra.

As this court has noted previously, the jurisprudence has moved away from requiring remand under certain circumstances involving the imposition of consecutive sentences when the trial court has not specifically stated | ¿reasons therefor. State v. Hampton, supra. The cases cited in Hampton conclude that the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. In this case, the court could reasonably have considered the gravity or dangerousness of the offense and the harm done to the victim’s family in ordering the sentences to run consecutively with each other.

After reviewing the record, we conclude that the district court provided adequate reasons for the imposition of these consecutive sentences, which are within the sentencing range for the offenses of conviction. The defendant is a second felony offender with an extensive criminal history, who has previously absconded from probation supervision. The sentences imposed are justified by the record, and are neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say that the sentences are constitutionally excessive. The assignment of error lacks merit.

Defendant’s final assignment of error is a request for this court to review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. . State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556. Our review of this record revealed no error patent.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences |fiare affirmed.

AFFIRMED.


text:
    Charles WILLIAMS, Plaintiff-Appellant v. EXIDE TECHNOLOGIES, formerly d/b/a GNB Technologies, Defendant-Appellee.
    No. 36,354-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      James E. Franklin, Jr., Shreveport, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by J. Martin Lattier, Shreveport, for Ap-pellee.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

I Tin this worker’s compensation case, the claimant, Charles Williams, appeals from a judgment denying him benefits. We affirm.

FACTS

Beginning in 1995, the claimant was employed as a battery plant assembly worker by GNB Technologies, now Exide Technologies, Inc. According to the claimant, he was injured at work on Friday, June 16, 2000, while pushing lead pegs in a melting pot. He testified that he continued to work the shift but experienced “tightness” in his back. He thought that he mentioned his back hurting to his supervisor, Charles Sharbono, but he was not sure. Also, he was not sure if he mentioned his back pain to his brother, Fred Williams, who worked the same graveyard shift from midnight to 8 a.m. When he tried to get up to go to work on Sunday night, he stated that he was unable to get out of bed due to back pain. He called in to his employer and went to see Dr. David Hudson, a family practitioner.

Dr. Hudson saw the claimant on June 19, 2000. His records show that the claimant was complaining “of pain in the lumbar region over the last day or two without recent history of trauma. He- does admit to intermittent pain in the left and right lower back on occasion.” Dr. Hudson testified that he did not ask the claimant if he was injured at work because the history indicated that he did not recall a specific injury. A subsequent MRI showed disc herniation or bulging at two levels, as well as loss of hydration or degenerative changes.

On July 25, 2000, the claimant saw Dr. David Cavanaugh, a neurosurgeon. His notes recount the following history from the claimant: |2“He states that about six weeks ago, without any particular precipitating event, he had increased low back pain. He woke up with it.” A series of epidural steroid injections provided minimal relief. In Dr. Cavanaugh’s opinion, surgery would not be beneficial. Dr. Ca-vanaugh referred the claimant back to Dr. Hudson, who then sent him to a pain management specialist, Dr. Sudar Tanga.

Dr. Tanga saw the claimant in January 2001. His notes recite the following history from the claimant: “The patient complains of this pain since 6/16/00. He says that he noticed a burning pain in the back and he continued to work, went home, and the next day he woke up and he could not get out of bed.... He thinks the pain is secondary related to his work when he was turning around and doing repeated manual activities.” Dr. Tanga advised the claimant to see Dr. Pierce Nunley.

Dr. Nunley, an orthopedic specialist, saw the claimant in May 2001. According to his notes, “The patient states that on June 16, 2000 while working at Exide Technologies, he was utilizing ... a fork lift to lift some lead pegs and place them on a shelf. When he was pushing them onto the shelf, he felt a ‘pull in his back.’ Since this incident, he has been unable to work.”

The claimant’s brother testified that the claimant told both him and their supervisor, Mr. Sharbono, about having back pain on June 16, 2000. However, Mr. Sharbono testified that he did not recall the claimant or his brother mentioning the claimant having back pain or injuring his back during that shift. Russell Jorgensen, a union representative at the plant, |stestified about advising the claimant to have the proper forms filled out. The claimant testified that the plant nurse, Vicki Tingler Dust, told him that since he did not report the accident promptly, he did not have a workers’ compensation claim. Ms. Dust denied this. She testified that the claimant first came to see her on July 17, 2000, and told her that he hurt his back at work. However, upon questioning, he was unable to recall an injury. She testified that he never told her that he injured his back at work on June 16, 2000, while lifting pieces of lead. She testified that plant employees such as the claimant were instructed as to the proper procedure for reporting work-related injuries. In fact, the claimant had filled out an injury report in 1999 for an elbow injury.

Rhonda Engh, a human resources assistant at the plant, testified that she handled the short-term disability benefits claim for the claimant. The claimant filled out and signed an application form in which he marked that the claim arose from illness, not accident. A form from Dr. Hudson’s office filled out in conjunction with the application for short-term disability benefits also indicated that the claim was due to illness, not injury. The claim was initially denied by the insurer pursuant to the policy’s work-related injury exclusion because the claimant’s neurosurgeon indicated his condition seemed to be work-related. Ms. Dust submitted a memo in which she recounted the claimant’s inability to relate his back problem to a specific work-related injury. Thereafter, the insurer approved the claim for short-term disability benefits.

|4In September 2000, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation. Trial was held in October 2001. By judgment signed February 1, 2002, the workers’ compensation judge (WCJ) ruled in favor of the employer due to the claimant’s failure to prove by a preponderance of the evidence that he sustained a work-related accident and resulting back injury on June 16, 2000, while in the course and scope of his employment.

The claimant appealed. Due to the Chapter 11 bankruptcy proceedings of the employer, the case was stayed. The stay in this court was lifted in September 2006.

LAW

The plaintiff-worker in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992).

In determining whether the worker has discharged his burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. Bruno v. Harbert International Inc., supra. A claimant’s testimony alone may be sufficient to establish an accident provided that (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International Inc., supra; Sheppard v. Isle of Capri, 40,048 (La.App.2d Cir.8/17/05), 909 So.2d 699. In determining | ¿whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends’ testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Blair v. Wal-Mart Stores, Inc., 2001-2211 (La.App. 4th Cir.5/15/02), 818 So.2d 1042, citing 13 H. Alston Johnson III, Workers’ Compensation Law and Practice (La. Civil Law Treatise), § 253 (3d ed.1994); 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 8:1 (2d ed.2002). This court has used these factors. Sheppard v. Isle of Capri, supra; Brock v. Frymasters, 41,561 (La.App.2d Cir.11/1/06), 942 So.2d 613.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State, Through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Through Dept, of Transp. & Dev., supra. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transp. & Dev., supra; Seal v. Gaylord Container Corporation, 97-0688 (La.12/02/97), 704 So.2d 1161; Gilliam v. Manhattan/Whitaker Construction Company, 30,566 (La.App.2d Cir.5/13/98), 714 So.2d 101, writ not considered, 1998-1845 (La.9/4/98), 723 So.2d 429; Brock v. Frymasters, 6supra. Reasonable evaluations of credibility and inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, Through Dept. of Transp. & Dev., supra; Gilliam v. Manhattan/Whitaker Construction Company, supra. The workers’ compensation judge’s factual findings are subject to the manifest error rule. Rosson v. Rust Constructors, Inc., 32,789 (La.App.2d Cir.3/1/00), 754 So.2d 324, writ denied, 2000-0914 (La.5/26/00), 762 So.2d 1105. It is well-accepted that credibility calls are the function of the trial court. Bruno v. Harbert International Inc., supra.

DISCUSSION

The claimant and his wife testified that he told Dr. Hudson and Dr. Cava-naugh that he injured his back at work; they were unable to explain why the notes of both doctors specified that no history of a recent trauma was given. The claimant also admitted that he checked illness, not accident, on the short-term disability form he signed on July 26, 2000; however, he asserted that Dr. Hudson’s office instructed him to do so. There is also conflict in the testimony as to whether the claimant reported his alleged injury to his supervisor as required by company policy. The claimant was unsure as to whether he told his brother or the supervisor. His brother testified that the claimant told him and the supervisor. However, the supervisor did not recall being informed of any injury by the claimant or his brother. The evidence demonstrated that the employer had a prescribed procedure for reporting work-related injuries and that the claimant was aware of that procedure and had complied with it in the past. The testimony |7of the employer’s witnesses indicated that the claimant failed to follow the procedure to report his alleged back injury.

In the instant case, the claimant’s testimony was contradicted. The WCJ was required to make credibility calls to resolve the conflicts in the testimony presented at trial by the various witnesses. The WCJ could reasonably have found the testimony of the employer’s witnesses, the failure of the claimant to properly report his alleged work-related injury and the history given by the claimant indicating no particular event contradicted and/or cast suspicion on the testimony of the claimant and his witnesses. Under the circumstances of this case, we are unable to find that the WCJ was manifestly erroneous or clearly wrong in her decision that the claimant failed to prove by a preponderance of the evidence that he sustained a work-related injury.

CONCLUSION

The judgment of the WCJ dismissing the claims of Charles Williams is affirmed. Costs are assessed against the appellant.

AFFIRMED.


author: MOORE, J.

text:
    Richard J. HEATH, Plaintiff-Appellant v. Carliss McCarthy, Sr., Rhal J. Martin and Weyerhaeuser Co., Defendant-Appellees.
    No. 41,853-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Stephen Everett, Attorney at Law, LLC, by Stephen E. Everett, Alexandria, for Appellant.
    Corkern & Crews, L.L.C., by Steven D. Crews, for Defendant-Appellees Carliss McCarthy, Sr., Rhal J. Martin, & Weyer-haeuser.
    The Waltman Law Firm, L.L.C., by Lee B. Waltman, for Defendant-Appellee Wey-erhaeuser.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

It Richard J. Heath appeals a judgment of involuntary dismissal that rejected his claims for declaratory judgment and general damages arising out of his ouster from a hunting club. The defendants have answered, seeking damages for frivolous appeal. We affirm.

Factual and Procedural Background

Crazy Cajun Hunting Club consists mainly of men from the Houma-Thibodaux area who like coming to central Louisiana to hunt deer. For a number of years, the club obtained annual hunting permits from Weyerhaeuser Company covering 667 acres (“the Crazy Cajun lease”) of the latter’s forestry land in Winn Parish.

The plaintiff, Richard Heath, is a resident of Rapides Parish. His wife’s family formerly owned, and his two children now actually own, a 22-acre tract (“the Sherman tract”) adjoining the Crazy Cajun lease. He testified that he uses the Sherman tract for hunting and to plant a garden, and that a private road accessing it traverses 75-100 feet over the Crazy Cajun lease. In June 2003, he paid Crazy Cajun’s $273 dues and joined the club, wanting access to the larger hunting area. He testified that in lieu of the 20-hour “duty time” assessed on club members, he allowed the club free use of his bush hog and disk on the food plots. Before the hunting season began, Heath put up two deer stands on the Crazy Cajun lease, close to the Sherman tract.

Unfortunately, friction arose between Heath and the other members of Crazy Cajun. Heath complained that the club posted the private road leading to the Sherman tract, making it difficult for him to reach his garden. |aHe also felt the club mistreated him by rebating $100 of dues to every other member but him. He testified that the club never published a financial statement, and he asked the club president, Carliss McCarthy Sr., to change the club’s bank account to require two signatures to write any check.

Heath testified he was totally shocked when he received a letter dated November 3, 2003, advising that he had been expelled from the club by a unanimous vote of the other members; he professed to be unaware that any meeting was scheduled for that day, or that terminating anybody was ever under consideration. Disregarding the letter, he went to his deer stand on November 29. However, McCarthy and Deputy Perry of the Winn Parish Sheriffs Office came and advised him he was trespassing. Heath offered no resistance, and spent four or five hours in jail until he could post bail. He claimed that this experience was humiliating and aggravated a preexisting psychiatric condition.

Heath filed this suit in January 2004. He named as defendants McCarthy, Rhal Martin (the club member who certified memberships), and Weyerhaeuser. He demanded a declaratory judgment that his termination from Crazy Cajun was null and without effect, together with general damages for his worsened mental state. He stipulated that his damages would not exceed $50,000, thus consenting to a bench trial.

The defendants answered that Heath had repeatedly violated club rules and had never been denied access to the Sherman tract. Further, it was Heath who called the meeting on November 3, 2003, for the purpose of evicting McCarthy and another member, but Heath failed to attend the | smeeting he himself called; the members in attendance unanimously voted to terminate Heath, and notified him of this by letter.

Trial Evidence

Because the issue on appeal is the propriety of the involuntary dismissal, we will relate the trial evidence in the sequence it was presented.

Heath first called McCarthy as an adverse witness. McCarthy testified that Heath had violated several of the club’s bylaws, including failure to pay guest fees, failure to mark his location on the hunting board, using foul language around other members’ wives and children, and drinking in his deer stand. He maintained that Heath did in fact receive the $100 dues rebate, and although the club “posted” the private road, they never blocked Heath from using it. Most offensively, Heath got into an argument and used profanity, threatening to “whip” several club members and burn down their stands. Finally, McCarthy admitted that the notice of meeting did not state that expelling members would be on the agenda, but Heath “knew about” the meeting.

Deputy Perry then testified that he took Heath to jail on November 29, 2003, but that Heath had received a verbal warning to vacate five days earlier.

Heath then took the stand, testifying largely as outlined above. He admitted he had never marked the hunting board because no pen was provided; he never paid guest fees because he was unsure how much these were; he “probably” used foul language in front of women and children, and he “probably” called the other members “dumb coonasses,” but he denied Uthat he ever threatened anybody. He admitted drinking in his deer stand, but not when he was hunting, just reading a newspaper. He denied that he tried to get Weyerhaeuser to expel any members, but admitted inquiring about this only to learn that the lessor would not interfere in club operations. He felt the real reason for the rift was that he had recently fired McCarthy from his cable company and taken away his company truck.

Finally, Heath’s brother and wife testified about his mental distress. After calling these five witnesses, Heath rested his case.

The defendants then moved for “directed verdict.” The district court denied the motion but stated, “If during the presentation of the evidence by the defense I find that there is not a preponderance of the evidence, the court will reconsider that at the time.” Heath did not object.

The defendants first called Payton Weeks, the production forester and hunting club contact at Weyerhaeuser. He testified that in 2003, Heath phoned to ask how he might get a club member removed; Weeks replied that Weyerhaeuser was only the lessor and did not get involved in the clubs’ internal affairs, but normally clubs worked by a democratic process. Heath also confided to Weeks that he wanted to get rid of some Crazy Cajun members and take control of the lease. A few days later, McCarthy and three other Crazy Cajun members came to Weeks’s office and asked him the same question, but Weeks again refused to intervene.

IfiThe defendants’ next (and final) witness was Glynn Prosperie, Crazy Cajun’s de facto secretary. He admitted that his wife had accidentally driven through the food plot, but Heath totally overreacted: he lost his temper, used abusive language to her, threatened to “whip my ass,” and told him his camp might burn. Heath then came to the camp demanding that he (Prosperie) kick out two members. He told Prosperie to call a meeting for that purpose, but advised that he (Heath) would not be there, because he would be at Weyerhaeuser getting the club evicted. When the members gathered, nobody wanted to expel McCarthy and the other member (referred to only as “Popeye”), but they decided Heath had been an irritant to the club and unanimously voted him out. Prosperie typed up the minutes and letter advising Heath of his ouster.

After this witness, the defendants reurged their motion for involuntary dismissal; Heath did not object. The court asked Prosperie several questions about the hunting camp, the club’s rules and how the club normally called its meetings. Counsel briefly cross-examined Prosperie, after which the court granted the involuntary dismissal. This appeal followed.

Discussion: Involuntary Dismissal

By one assignment of error, Heath urges the district court erred in granting the involuntary dismissal. He contends that under C.C.P. art. 1672 B, the court may grant the motion “at the close of the plaintiffs case, or at the close of all evidence, but not at points in between.” Gagliano v. Amax Metals Recovery Inc., 96-1751 (La.App. 4 Cir. 5/7/97), 693 So.2d 6889, writ denied, 97-1738 (La.10/13/97), 703 So.2d 619. Specifically, he argues that by granting the motion after hearing only two of the defendants’ 24 listed witnesses, the court breached its duty to hear all the evidence, including any rebuttal. He concludes that he showed by a preponderance that the defendants were guilty of “blatant violation” of his rights, and the defense evidence did nothing to weaken this.

The defendants, McCarthy, Martin and Weyerhaeuser, concede the statement of law in Gagliano but argue that the case further holds, “A party’s failure to object to a procedural irregularity is generally recognized to constitute such a waiver.” Because Heath did not object to the court’s action, he cannot now complain about it. They further contend that on the conflicting evidence presented, the court was completely correct to And that Crazy Cajun acted reasonably in revoking Heath’s membership. The court will not interfere in the internal affairs of a private association unless the action was “capricious, arbitrary, or unjustly discriminatory.” Jones v. NCAA, 96-2205 (La.9/12/96), 679 So.2d 381, 112 Ed. L. Rep. 1112.

Weyerhaeuser, by separate brief, also urges that Heath’s failure to object waived any complaint about the timeliness of the involuntary dismissal.

Involuntary dismissal is regulated by La. C.C.P. art. 1672 B, which provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then |7determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

This article clearly indicates that the plaintiff must have completed the presentation of his evidence prior to the granting of an involuntary dismissal. Taylor v. Tommie’s Gaming, 2004-2254 (La.5/24/05), 902 So.2d 380. The jurisprudence generally holds that the motion for involuntary dismissal may be made at the close of the plaintiffs case or at the close of all the evidence, but not at points in between. Gagliano v. Amax Metals Recovery, supra; Melady v. Wendy’s of New Orleans, 95-913 (La.App. 5 Cir. 4/16/96), 673 So.2d 1094.

The trial court has much discretion in deciding whether to grant a motion for involuntary dismissal, but must weigh and evaluate all evidence in order to make that decision. Taylor v. Tommie’s Gaming, supra. Ultimately, the court is required to weigh and evaluate all the evidence presented to .that point and grant the dismissal if the plaintiff has failed to establish his claim by a preponderance of the evidence. Thompson Packers Inc. v. Downey, 2001-2550 (La.App. 1 Cir. 11/8/02), 835 So.2d 774.

In Tommie’s Gaming, the supreme court found that the WCJ granted the motion for involuntary dismissal before the plaintiff had called all his witnesses or rested his case; the court found this premature and reversed the involuntary dismissal.

In Gould v. Gould, 28,996 (La.App. 2 Cir. 1/24/97), 687 So.2d 685, the plaintiff allowed a defense witness to testify out of order, during the plaintiffs case in chief. After the plaintiff rested his case, the defendant | ¿moved for involuntary dismissal, which the court granted. On appeal, Mr. Gould contended that the court must evaluate the motion “on the plaintiffs evidence, undiluted by the defendant’s evidence.” We rejected this argument, as there was “no showing that additional evidence from [the defendant] would have altered the district court’s ruling.” Id. at p. 4, 687 So.2d at 688. The supreme court later cited these. circumstances as sufficient to sustain the judgment in Gould v. Gould and to distinguish the case from Taylor v. Tommie’s Gaming, supra at p. 7,902 So.2d at 384.

In light of these considerations, we find no error in the district court’s grant of involuntary dismissal. Heath had completed the presentation of his case in chief, as required by Art. 1672 B. He did not timely object when the defendants reiterated their motion before they had presented their entire case, as is normally required to correct a trial error. Gagliano v. Amax Metals Recovery, supra. Finally, he has not shown how the presentation of additional defense evidence would in any way contribute to his own case in chief. Gould v. Gould, supra.

Ultimately, the district court had to decide whether, based on all the evidence presented, Heath had proved his case by a preponderance of the evidence. In order to nullify the club’s decision to expel him, Heath had to prove that this action was capricious, arbitrary, or unjustly discriminatory. Jones v. NCAA, supra. Heath candidly admitted breaking several of Crazy Cajun’s hunting club rules, offering excuses which even on the impassive record sounded petty and insincere. While he felt that other members ambushed him and ejected him from the club without any notice, McCarthy |9and Pros-perie testified that it was Heath who initiated the move to eject members and seize control of the Crazy Cajun lease, and actually called the meeting which he failed to attend; Weyerhaeuser’s club contact, Weeks, corroborated much of this. On this conflicting testimony, the district court was not plainly wrong to find that Heath failed to prove, by a preponderance of the evidence, that Crazy Cajun’s decision to expel him was capricious, arbitrary or unjustly discriminatory. Jones v. NCAA, supra. This assignment of error lacks merit.

Frivolous Appeal

By answer to appeal, the defendants seek damages for frivolous appeal under La. C.C.P. art. 2164. Specifically, they urge that Heath misread Gagliano, supra, and took an appeal that was completely untenable because of his failure to object to the action at trial.

Heath responds that Gagliano is the only case holding that the wrongful grant of involuntary dismissal can be waived, and that in fact he had no meaningful opportunity to object before the district court granted the motion.

Damages for frivolous appeal are authorized by Art. 2164, but are awarded only when “it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of law he advocates even though the court is of the opinion that such view is not meritorious.” Hampton v. Greenfield, 92-2770 (La.5/24/93), 618 So.2d 859; Black v. Lofland Co., 37,862 (La.App. 2 Cir. 2/26/04), 869 So.2d 264, writ denied, 2004-0787 (La.6/4/04), 876 So.2d 94.

|10The defendants have made no showing that Heath took this appeal solely for delay; aside from the imposition of court costs, there is no money judgment or mandatory injunction that has been delayed by the pursuit of the appeal. Moreover, Heath has astutely shown that Gagliano, supra, the case upon which the defendants principally relied, is the only statement in the jurisprudence holding that the untimely grant of involuntary dismissal may be waived for failure to object. He was certainly entitled to argue that the instant case was factually inapposite. The request for damages for frivolous appeal is denied.

Conclusion

For the reasons expressed, we affirm the judgment that dismissed Richard Heath’s claims. The request for damages for frivolous appeal is denied. Appellate costs are to be paid by the appellant, Richard Heath.

AFFIRMED; REQUEST FOR DAMAGES FOR FRIVOLOUS APPEAL DENIED.

      . The directed verdict is available only in a jury trial setting. La. C.C.P. art. 1810. The equivalent device in a bench trial is the motion for involuntary dismissal. La. C.C.P. 1672 B. The mislabeled motion is treated as one for involuntary dismissal. Derbigny v. Derbigny, 34,672 (La.App. 2 Cir. 4/6/01), 785 So.2d 989.


author: WILLIAMS, J.

text:
    Jeff COLEMAN, Jr., Plaintiff-Appellee v. Larry G. TOWNSEND, et al, Defendant-Appellee-Appellant. Mary Coleman, et al, Plaintiff-Appellee v. Larry G. Townsend, et al, Defendant-Appellee-Appellant. Jeff Coleman and Nell Thompson, Plaintiff-Appellee v. Larry G. Townsend, et al, Defendant-Appellee-Appellant.
    Nos. 41,839-CA, 42,031-CA, 42,032-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 22, 2007.

      Tracy L. Oakley, for Appellants, Jeff Coleman, Sr. and Safeway Insurance Company of Louisiana.
    Anthony J. Bruscato, Monroe, for Appel-lees, Leonard McDaniel, Anthony Bright, Lafayette McDaniel, Leon McDaniel, Jeremiah McDaniel, Kunta McDaniel, Jeff Coleman, Jr., Mary Coleman.
    Sir Clyde Lain, II, Monroe, for Appel-lees, Jeff Coleman, Sr. and Joyce Nell Thompson.
    Cyd S. Page, Monroe, for Appellees, Gary G. Osborne, Jr., Larry G. Townsend and Continental Insurance Company.
    Keith M. Borne, Lafayette, for Appellee, Safeway Insurance Company.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

| ¶ Jeff Coleman, Sr. (“Coleman Sr.”) and his automobile insurer, Safeway Insurance Company of Louisiana (“Safeway”) appeal a judgment of the trial court finding Coleman Sr. was solely at fault for causing an automobile collision at an intersection during a funeral procession. For the following reasons, we affirm the trial court’s judgment.

FACTS

On August 25, 2001, plaintiffs were operators/passengers of various vehicles participating in a funeral procession. Coleman Sr. was the owner/operator of a 1991 Isuzu pickup truck and Joyce Thompson was his guest passenger. Jeff Coleman, Jr. (“Coleman Jr.”) was the driver of an uninsured 1986 Isuzu Trooper and his wife, Mary Coleman, and Leonard McDaniel were guest passengers. Defendant, Larry Townsend, was the owner/operator of a 1993 Chevrolet Cavalier and was not a participant in the funeral procession.

The funeral procession was traveling southbound on U.S. Highway 165 (“Hwy.165”). Coleman Sr. was traveling in the right outside lane, and the vehicle being operated by Coleman Jr. was directly behind him. Townsend was stopped at a red light at the intersection of Hwy. 165 and Louisiana Highway 15. When Townsend’s light turned green, he continued to wait as the funeral procession continued. According to Townsend, he observed a “gap” in the procession, so he entered the intersection and collided with Coleman Sr.’s vehicle. The vehicle being driven by Coleman Jr. also collided with Coleman Sr.’s vehicle.

12Three consolidated lawsuits were filed in Monroe City Court seeking damages for injuries sustained in the accident. Coleman Jr. filed a suit, naming Townsend and his insurer, Continental Insurance Company (“Continental”), as defendants. Mary Coleman and the heirs of Leonard McDaniel filed a suit against Townsend, Continental, Coleman Sr. and Safeway. Coleman Sr. filed suit, naming as defendants his own insurer, Safeway, Townsend and Continental.

Following a bench trial, the trial court ruled that Coleman Sr. was solely at fault for causing the accident. Citing Monroe City Code, § 33-35(5) the court stated:

Mr. Coleman Sr.’s failure to yield or stop, prior to navigating through the busy U.S. Highway 165 and [Louisiana] Highway 15 intersection, was the sole cause of the collision.
Although Mr. Coleman Sr. was in a funeral procession, he yet had a duty to yield and/or stop prior to entering the intersection.

The court dismissed all the plaintiffs’ claims against Townsend and his insurer. However, the ruling did not address the issue of damages. Ms. Coleman appealed, and this court dismissed the appeal, concluding that the judgment was not a final judgment for the purposes of an immediate appeal. The matter was remanded for further proceedings. Coleman v. Townsend, 39,023 (La.App.2d Cir.10/27/04), 886 So.2d 643.

| oQn remand, the trial court issued a judgment reaffirming that Coleman Sr. was the sole cause of the accident and awarded damages to Ms. Coleman, Ms. Thompson and the McDaniel heirs. Coleman Sr. and Safeway appealed, and this court dismissed the appeal, finding that the judgment appealed from was not a valid judgment because the judge who signed the judgment was not the trial judge. Coleman v. Townsend, 40,246 (La.App.2d Cir.6/27/05) (unpublished). Subsequently, the trial judge signed the judgment in this matter, and the instant appeal followed.

DISCUSSION

Coleman Sr. contends the trial court erred in finding that he was solely at fault in causing the collision. According to Coleman Sr., Townsend negligently entered the intersection after seeing the funeral procession in progress, and Coleman Jr. was negligent in failing to stop or yield at the intersection.

In an ordinary tort action, the determination and apportionment of fault is a factual issue. Harrison v. Richardson, 35,512 (La.App.2d Cir.1/23/02), 806 So.2d 954; Jones v. Allstate Ins. Co., 33,279 (La.App.2d Cir.5/15/00), 759 So.2d 327. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Duncan v. Kansas City Southern Ry. Co., 2000-0066 (La.10/30/00), 773 So.2d 670, cert. dismissed, Duncan ex rel. Duncan v. Kansas City Southern Ry. Co., 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Therefore, an ^appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous. Id.; Stobart v. State, Dept. Of Transp. & Dev., 617 So.2d 880 (La.1993).

Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Night and Day Partners, Ltd. v. Great American Real Food Fast, Inc., 37,927 (La.App.2d Cir.3/17/04), 876 So.2d 850. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart, supra; Housley v. Cerise, 579 So.2d 973 (La.1991). For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong, but whether the fact-finder’s conclusions were reasonable. Stobart, supra.

LSA-R.S. 32:232 provides, in pertinent part:

Whenever traffic is controlled by traffic-control signals exhibiting different colored lights, or colored lighted arrows, successively one at a time or in combination, only the colors green, red and yellow shall be used, except for special pedestrian signals carrying a word legend, and said lights shall indicate and apply to drivers of vehicles and pedestrians as follows:
(3) Steady RED indication:
(a) Vehicular traffic facing a steady circular red signal alone shall stop at a clearly marked stop line, or if none, then before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain standing until an indication to proceed is shown....

| sThe mere fact that a driver is a participant in a funeral procession does not relieve him of the obligation of obeying the traffic signal, unless it is shown by the pleadings and the evidence that a local ordinance gave him this right. Boles v. Fireman’s Fund American Ins. Co., 250 So.2d 529 (La.App. 2d Cir.1971).

Monroe City Code, § 33-35 provides, in pertinent part:

The following shall apply to all funeral processions in and through the city:
* * *
(5) When properly escorted by a police officer and when directed so to do by such police officer, a funeral procession (including every vehicle therein maintaining proper illumination and interval) shall proceed through stop signs and red or yellow traffic lights, provided that every operator of a vehicle in such procession shall proceed with caution into or across any intersection where such vehicle would not have right-of-way if not in a funeral procession.

In the instant case, Coleman Sr. testified that he was driving his vehicle during the funeral procession on the day in question. He stated that the procession was led by a police officer, followed by the hearse and family car. Coleman Sr. estimated that he was approximately seven to eight vehicles behind the police officer, and approximately 20 vehicles were involved in the procession. According to Coleman Sr., the police officer leading the procession stopped at the intersection, allowed two or three cars to proceed and went back to the front of the procession. Coleman Sr. admitted that he disregarded the traffic signal at the intersection, stating:

|fiI didn’t pay any attention to the light because I was in a funeral. I never really looked because I always know funerals go through a light. Because the police was leading it and the rest of them were going over and I did, too. According to Townsend’s testimony, he

had stopped at the red light at the intersection when he observed the beginning of a funeral procession. When the light turned green, he remained stationary because the procession had not ended. He stated that he noticed a “gap” in the traffic and believed the procession had come to an end. He described the “gap” as “an extended length of space between the last vehicle and the next vehicle” which was approximately three car lengths. Townsend further stated that he believed Coleman Sr. was coming to a stop because he was traveling at a slow rate of speed. He testified that he did not believe the Coleman Sr. vehicle was part of the procession, so he proceeded through the intersection.

It is undisputed that Coleman Sr. entered into the intersection against a red light. By his own admission, he disregarded the traffic signal because he was involved in a funeral procession. Thus, it is clear that Coleman Sr. violated LSA-R.S. 32:232 by failing to “stop ... before entering the intersection, and ... remain standing until an indication to proceed [was] shown.... ” Additionally, Coleman Sr. failed to proceed with caution into or across the intersection where his vehicle would not have had the right-of-way if it had not been in a funeral procession, as mandated by § 33-35(5) of the Monroe City Code. For these reasons, we find the trial court’s determination that Coleman Sr. was solely at fault was reasonable and will not be disturbed by this court.

IvCONCLUSION

For the reasons set forth above, the trial court’s judgment is hereby affirmed at appellant’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.

Rehearing denied.

      . The Isuzu Trooper was owned by Coleman Jr.’s mother, Beulah Mae Coleman, who was separated from Coleman Sr.

      . Sometime after the accident, Mr. McDaniel died of unrelated causes. The lawsuit was filed on his behalf by his heirs, Anthony Bright, Lafayette McDaniel, individually and on behalf of her minor siblings, Leon McDaniel and Jeremiah McDaniel, and Leonard McDaniel and Kunta McDaniel.

      .The court determined that Coleman Jr.'s claim was barred under the "no-pay-no-play” law because his vehicle was uninsured. Coleman Jr. did not appeal that determination.


author: LOLLEY, J.

text:
    Essie Viola JACKSON, Plaintiff-Appellant, v. WARE YOUTH CENTER, Defendant-Appellee.
    No. 41,830-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Essie Viola Jackson, Pro Se.
    Hudson, Potts & Bernstein by Jan P. Christiansen, Monroe, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| t This appeal arises from the Office of Workers’ Compensation, Parish of Caddo, State of Louisiana, which granted summary judgment in favor of the employer after plaintiff, Essie Jackson, sought compensation for disability alleging an occupational disease. For the following reasons, we affirm.

FACTS

Plaintiff, Essie Jackson, worked for Defendant, Ware Youth Center, as a security officer from approximately September 2000 through May 2002. In June 2005, she filed a disputed claim for compensation asserting that over a period of time she had become permanently and totally disabled as a result of exposure to fumes, as well as aggravation and stress. Ware Youth Center filed a motion for summary judgment arguing that Jackson’s claims for benefits had prescribed, there was no showing of a worker’s compensation accident, and Jackson’s description of her problems did not meet the definition of a worker’s compensation occupational disease. Jackson responded with an opposition and included certain records, the most relevant being an August 2005 letter from Dr. Wyehe Coleman, Jr., that stated in part:

This is to document that Ms. Jackson was hospitalized at CHRISTUS Cous-hatta Health Care Center from 5-23-02 until 5-28-02 with pneumonia. Patient has a subsequent diagnosis of intrastitial fibrosis. Ms. Jackson states that at the time of admission in 2002 she had been subjected to severe cold at work. The extreme cold at work could have worsened her pneumonia symptoms during that period of time.

At the hearing on the motion for summary judgment, Ware Youth Center argued that Jackson’s claim had prescribed, Jackson’s getting |apneumonia from cold air conditioning did not meet the definition of an accident, and Jackson’s complaint did not meet the definition of an occupational disease. Although the workers’ compensation judge (“WCJ”) noted testimony is not allowed on a motion for summary judgment, the WCJ allowed Jackson to state that she waited until.2005 to file her claim because she did not learn that her problems, including intrastitial fibrosis, might have been work-related until May 2005. At the conclusion of the hearing the WCJ granted the motion for summary judgment, stating in pertinent part:

In this case the claimant has contended she was diagnosed with intrastitial fibrosis and/or pneumonia. She also had noted for the record that, she worked as a security officer. The court cannot find that pneumonia and/or intrastitial fibrosis is due to causes and conditions characteristic of or peculiar to being a security officer.
Jackson appeals that judgment.

LAW AND DISCUSSION

A motion for summary judgment should 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. C.C.P. art. 966(B). The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim, thereby shifting to the plaintiff the burden of presenting evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966(B)(2). Appellate review of the | agrant of summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.04/14/04), 870 So.2d 1002.

In' the instant case, Ware Youth Center successfully shifted the burden to Jackson by pointing out the prescriptive period and that Jackson had not described either an accident or an occupational disease under the Workers’ Compensation Act. After a careful review of the record, we agree that Jackson’s alleged medical problems cannot be characterized as an “accident.”

Under the provisions of La. R.S. 23:1021.1, an “accident” means: -

An unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. (Emphasis added.)

Furthermore, to carry her burden Jackson had to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proving an occupational disease at trial. The provisions of La. R.S. 23:1031.1(B) state that:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation,, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or peri-vascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section. (Emphasis added.)

As previously noted, the WCJ could not find that pneumonia and intrasti-tial fibrosis were due to causes and conditions characteristic of or Upeculiar to Jackson’s employment with the Ware Youth Center. Thus, the WCJ essentially found that the medical problems asserted by Jackson did not meet the definition of an occupational disease as set forth above. Under our de novo review, we find no error in the trial court’s ruling.

We note in particular that Dr. Coleman’s August 2005 letter only points out that Jackson had pneumonia in May 2002, speculates that extreme cold at work could have worsened her pneumonia symptoms during that period of time, and lastly that Jackson subsequently had a diagnosis of intrastitial fibrosis. These statements establish neither a genuine issue of material fact with respect to a work-related accident, nor a genuine issue of material fact with respect to an occupational disease. Accordingly, we conclude both that Jackson failed to produce the necessary factual support to show that she would be able to satisfy her evidentiary burden of proof at trial and there is no genuine issue of material fact in this case.

CONCLUSION

For the foregoing reasons, the judgment is affirmed at Essie Jackson’s costs.

AFFIRMED.


text:
    Juanita GREEN and Matthew Green, Individually and as Husband and Wife, Plaintiffs-Appellants v. Carl RICE and Bill Kendig d/b/a Rice and Kendig, Defendants-Appellees.
    No. 41,818-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 22, 2007.

      Law Offices of Jack M. Bailey, Jr., by Jack M. Bailey, Jr., Shreveport, for Appellants.
    Mayer, Smith and Roberts, by David F. Butterfield, Shreveport, for Appellees.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

| plaintiffs, Juanita and Matthew Green, appeal a judgment from the Twenty-Sixth Judicial District Court, Parish of Webster, State of Louisiana, which granted defendants’ motion for summary judgment in a legal malpractice suit. For the following reasons, we affirm.

FACTS

On December 31,1999, while on her way to church service, Juanita Green tripped and fell in a pothole located in a parking lot next to the church. On May 22, 2000, the Greens retained the firm of Rice and Kendig as counsel for damages sustained from the trip and fall incident. On November 8, 2000, Rice and Kendig filed suit naming various defendants on behalf of the Greens. In April 2001 Rice and Kendig were discharged as counsel. The Greens subsequently retained other counsel in June 2002. In September 2002 one of the defendants, namely the church, filed a motion for summary judgment on the grounds that the pothole in question was located in a public alleyway owned by the City of Minden. The motion was granted in November 2002. The other defendants also filed motions for summary judgment alleging the same reasons as the church and all were dismissed in December 2005. The Greens did not appeal any of the summary judgments in the underlying case.

On November 7, 2003, the Greens filed suit against Carl Rice and Bill Kendig for failing to timely sue whom they believed was the correct defendant, the City of Minden, and the damages associated with the underlying case. Specifically, the Greens alleged legal negligence, legal malpractice, civil fraud, breach of contract, and breach of warranty for a |2specific result. Rice and Kendig filed a motion for summary judgment on the grounds that (1) the plaintiffs had lost no opportunities, because they could have timely amended their petition to add a claim against the city as a joint tortfeasor; and, in the alternative (2) the plaintiffs had no viable claim against the City of Minden. On January 24, 2006, the trial court granted the motion for summary judgment in favor of Rice and Kendig finding that the Greens could have timely amended their petition to include the City of Minden as a joint tortfea-sor. This appeal ensued.

LAW AND DISCUSSION

To establish a prima facie case in a legal malpractice claim, the plaintiff must prove that negligence on the part of his - former attorney caused the loss of opportunity resulting in the inference of causation and damages from that lost opportunity. However, once negligence has been proven, the former attorney can overcome the prima facie case if he can prove that the former client could not have succeeded on the original claim. Jenkins v. St. Paul Fire & Marine Insurance Co., 422 So.2d 1109 (La.1982).

A motion for summary judgment should 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. C.C.P. art. 966(B). Appellate review of the grant of summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.04/14/04), 870 So.2d 1002.

According to Jenkins, supra, the Greens have the burden of establishing that Rice and Kendig caused them to lose an opportunity to ^assert a claim against the City of Minden. After our de novo review of the record, we find that the Greens failed to establish a prima facie case. Here, the original defendants’ assertion that the pothole was located in a “public alleyway,” thereby implicating the City of Minden, did not occur until after Rice and Kendig withdrew as counsel. There was an ample amount of time for the Greens through their new counsel to amend their original petition to include the City of Minden as a joint tortfeasor before the case had come to a final judgment. See Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980). In short, La. C.C. art. 2324(C) clearly states that interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

The Greens assert that the other defendants named in the original lawsuit cannot be characterized as joint tortfeasors in light of the defendants’ dismissals on summary judgment. The Greens solely rely on hindsight to make this determination. We note that there was no opposition to the remaining defendants’ motions for summary judgment. Therefore, we cannot conclude that the defendants’ dismissals were based on the merits of their claim. We find the Greens’ argument unpersuasive.

The Greens failed to show that but for Rice and Kendig’s actions they would have had an opportunity to recover. As pointed out previously, the church filed a motion for summary judgment implicating the city over a year after the Greens discharged Rice and Kendig. The Greens had three months from the time they retained new counsel and over two years before the remaining defendants were dismissed to include the City of Minden. We Lcannot find that Rice and Kendig were the reason for the Greens’ lost opportunity to recover from a potential defendant.

We pretermit our discussion on whether the Greens could have succeeded on the original claim as the burden never successfully shifted to Rice and Kendig.

CONCLUSION

For the foregoing reasons, we affirm the motion for summary judgment in favor of Carl Rice and Bill Kendig. Costs of this appeal are assessed against Matthew and Juanita Green.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, MOORE and LOLLEY, JJ.

Rehearing denied.


text:
    STATE of Louisiana, Appellee, v. Katrina ROBINSON, Appellant.
    Nos. 40,983-KA, 40,984-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Peggy Sullivan, Louisiana Appellate Project, Jack W. Slaid, Indigent Defender Board, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

h The defendant, Katrina Robinson, entered a guilty plea to second degree battery and was ordered to serve three years at hard labor. She also entered a guilty plea to aggravated second degree battery and was ordered to serve 10 years at hard labor, with the sentences to be served consecutively. Noting constitutional error in the guilty pleas, we originally vacated the convictions, set aside the sentences, and remanded for further proceedings. State v. Robinson, 40,983 (La.App.2d Cir.5/17/06), 930 So.2d 345. The Louisiana Supreme. Court reversed our decision and remanded the matter back to this court for consideration of the defendant’s assignments of error which were pretermitted on the original appeal. State v. Robinson, 2006-1406 (La.12/8/06), 943 So.2d 371. We now affirm the defendant’s convictions and sentences.

FACTS

On December 5, 2004, the defendant engaged in an altercation in which she cut her sister, Felicia Robinson, with a knife. The defendant was charged with aggravated battery. On March 11, 2005, the defendant shot her boyfriend, Laverto Shine. She was charged with attempted second degree murder.

On June 13, 2005, the defendant entered guilty pleas to reduced charges in both matters. Pursuant to a plea agreement, the defendant was allowed to plead guilty to second degree battery in the altercation with her sister and aggravated second degree battery in the shooting of her boyfriend. The court then imposed the sentences set forth above.. Timely filed motions | ato reconsider the sentences were denied by the trial court. The defendant argues that the trial court erred in imposing excessive sentences.

LEGAL PRINCIPLES

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

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

DISCUSSION

The defendant argues that she was only 22 years old at the time of these offenses. She claims that both offenses were committed in self-defense. She also asserts that she is a first felony offender. She contends that the combined sentences equaling 13 years are excessive and that she has a young child who will grow up without a mother. The defendant points out that she thought that the charges regarding her sister had been dropped, although she pled guilty to second degree battery.

The trial court considered the defendant’s age, family history and educational background in imposing sentence. The trial court noted that the altercation involving the defendant’s sister occurred when the defendant’s child spilled some milk and the sister slapped the child. The confrontation between the defendant and her sister escalated. The sister was not seriously injured, and she stated that she was not sure if she was cut by the knife or by a doorframe.

Regarding the incident in which the defendant shot her boyfriend, the court stated that the defendant claimed she was being abused by her |4boyfriend and she shot him in self-defense. He was shot in the leg and the face. The court noted that the investigation contradicted the defendant’s statement that she shot the man in self-defense. According to the court, she had a gun in her purse and fired at the boyfriend as he fled from her. She reloaded and pursued him, eventually shooting him in the face. The court noted that both offenses to which the defendant pled guilty were violent crimes.

The court stated that the defendant’s criminal history included a conviction for failure to return a leased movable. The court noted that the defendant has a pending charge of aggravated battery arising from an incident in which she allegedly cut another woman on the face with a knife.

Due to the nature of the offenses, the defendant’s criminal history, and the current pending charge, the court found that the defendant would continue to commit violent crimes. The court then imposed the sentences set forth above.

The record shows that the trial court adequately articulated the reasons for the sentences imposed. Further, based upon this record and particularly in light of the defendant’s demonstrated violent nature, the sentences imposed were not constitutionally excessive. The sentences do not shock the sense of justice and were tailored to the offender and the offenses. Also, the defendant received the benefit of a favorable plea bargain agreement. We find that the sentences imposed were not excessive and are affirmed.

| .ERROR PATENT

We note as error patent that the trial court failed to adequately inform the defendant of the time delays for applying for post-conviction relief. The trial court simply said, “Two years to seek post conviction relief.” The trial court did not inform the defendant that she had two years from the date the convictions and sentences become final in which to seek post-conviction relief.

The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. The trial court should have advised the defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. The defendant is hereby notified in this opinion of the appropriate delay.

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Katrina Robinson.

AFFIRMED.