author: AMY, Judge. COOKS, J.,

text:
    STATE of Louisiana v. David Wayne LEDAY.
    No. 05-1641.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Michael Harson, District Attorney, Cynthia K Simon, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Richard Allen Spears, New Iberia, LA, for Defendant/Appellant, David Wayne Le-day.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

| pursuant to a plea agreement, the defendant entered a guilty plea to a charge of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The trial court subsequently sentenced the defendant to twelve and one-half years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court ordered the sentence to run concurrently with any other sentences that the defendant was serving. The defendant appeals his conviction, asserting that the trial court erred in denying his motion to suppress. For the following reasons, we affirm the denial of the motion to suppress. We vacate the defendant’s sentence and remand with instructions.

Factual and Procedural Background

Officer Kane Marceaux of the Lafayette Police Department testified that he was assigned to the Metro-Narcotics unit on January 30, 2003 when he received an anonymous telephone tip that led to the investigation and arrest at issue. According to Officer Marceaux, the caller identified an address and stated that “there was a black Dodge truck parked on the lot. There was a black male there, maybe selling narcotics, something along those lines.” Officer Marceaux testified that the caller may have identified the individual as David Leday, the defendant.

Officer Marceaux further testified that he was familiar with the address given as one associated with crack cocaine sales. He estimated that he had “probably arrested over 100 people at that location alone[,]” and that the department had made “well over 500 or 600 narcotics arrests [] at that location.” Officer Mar-ceaux also knew the owner of the address given and that the owner had executed a no trespass letter. After arriving at the location, Officer Marceaux observed the vehicle | ^described by the caller. He also observed the defendant standing outside of the vehicle, and asked him about the ownership of the vehicle. The defendant indicated that he was the owner.

Officer Marceaux testified that he asked the defendant for his identification and then conducted a warrants check. Officer Marceaux was advised that defendant was wanted in Baton Rouge for a parole violation. The defendant was placed under arrest on the warrant. According to Officer Marceaux, he advised the defendant of his Miranda rights and handcuffed him. The defendant was not placed in the police unit, but remained outside of his vehicle. The defendant refused Officer Marceaux’s request to search the vehicle. At that time, Officer Mareeaux called for a canine unit. The dog was used to conduct an open air sniff around the vehicle, but, according to Officer Mareeaux, the dog did not alert to the presence of narcotics. While the State asserts in brief that the police report indicates that the dog alerted to the passenger side door, the record contains no such proof.

Officer Mareeaux then proceeded to search the vehicle and found two 12-gauge shotgun shells. When questioned about the shells, the defendant indicated that they belonged to an uncle or cousins, and had fallen on the ground outside his residence. He stated that he put them in his vehicle to keep them from being damaged. Upon further questioning, the defendant stated that he had several hunting weapons and a .357 magnum revolver belonging to the uncle and cousins located at his house. Officer Mareeaux testified that the defendant stated that the weapons were not his, and that the officers could remove them from the house.

| ^Officer Mareeaux sent Agent Trampus Gaspard and another agent to the house located at the address provided by the defendant. The home was occupied at that time by Katina Arvie, the defendant’s one-time girlfriend. Officer Mareeaux explained that he joined the other officers at the home. According to Officer Mareeaux, Ms. Arvie stated that she had no knowledge of the weapons, signed a consent form to search the house, and advised the officers that they could remove the weapons. The State questioned Officer Mar-ceaux as to the weapons removed from the home, asking whether the following had been removed: “A .22 caliber riñe, a .12 gauge Mossberg shotgun, another .22 caliber rifle, a .410 shotgun, a .12 gauge Remington shotgun, another .12 gauge Moss-berg, and a 357 Magnum.” He responded: “That sounds about right.” Ammunition was also discovered.

The bill of information indicates that, on March 26, 2003, the defendant was charged with six counts of possession of a firearm by a convicted felon, violations of La.R.S. 14:95.1. The defendant filed motions seeking to suppress evidence, questioning the reasonableness of the officers’ initial questioning of the defendant and whether consent was provided for the search of the residence. The trial court denied the motions to suppress after an April 11, 2005 hearing.

Pursuant to a plea agreement, the defendant entered a plea of guilty to count one of the indictment. Counts two through six were dismissed. The defendant also reserved his right to appeal the ruling on the motion to suppress. The trial court sentenced the defendant to twelve and one-half years at hard labor, without benefit of parole, probation or suspension of sentence. The defendant was given credit for |4time served on the present charge or on any other charge since January 30, 2003. Furthermore, the trial court ordered that the sentence be served concurrently with any other sentence being served.

The defendant filed an application for a writ of review with this court. The court granted the writ, holding that an appeal was the appropriate vehicle to seek review following a guilty plea and the reservation of the right to appeal in accordance with State v. Crosby, 338 So.2d 584 (La.1976). State v. Leday, an unpublished writ bearing docket number 05-769 (La.App. 3 Cir. 7/11/05). The court further held that it considered Relator’s timely filed notice of intent as a timely filed motion for appeal. The court remanded the case to the trial court for proceedings consistent with a timely filed motion for appeal.

The defendant now appeals, arguing in his sole assignment of error that: “The trial court failed to suppress both the initial detention of David Leday and the search of his vehicle.”

Discussion

Errors Patent

Having reviewed this appeal for errors patent on the face of the record as is required by La.Code Crim.P. art. 920, we find one error requiring correction.

Louisiana Revised Statutes 14:95.1(B), the penalty provision for possession of a firearm by a convicted felon, indicates that the sentence requires the imposition | sof a mandatory fine of not less than $1,000.00 nor more than $5,000.00. However, the trial court failed to impose a fine. Pursuant to La.Code Crim.P. art. 882, this court has the authority to correct an illegally lenient sentence. This correction may be made despite the failure of either party to raise the issue. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Accordingly, we vacate the defendant’s sentence and remand the matter for resentencing. See State v. Phillips, 04-827 (La.App. 3 Cir. 11/10/04), 887 So.2d 670 (wherein a panel of this court found that the trial court’s failure to include a mandatory fine in the defendant’s sentence required that the sentence be vacated and the matter remanded for resentencing).

We further note that the illegal sentence was part of the defendant’s plea agreement. On the defendant’s “Plea of Guilty” form, the following is written under the “Plea Agreement” section:

12½ years HL w/o benefit of parole, probation or suspension of sentence with credit for time served on this or any other charge since 1-30-03. The sentence shall run concurrently with any other sentence....

During the guilty plea colloquy, the trial court informed the defendant of the potential penalty for possession of a firearm by a convicted felon, including the fine, and the defendant stated that he understood the penalty. The trial court then proceeded, however, with questioning the defendant about the guilty plea form, which the defendant stated he voluntarily signed. The trial court later stated that the sentence that it was going to impose was “an agreed sentence.” Finally, the trial court sentenced the defendant as follows:

In return for your plea, the State is recommending and I am sentencing you to 12 — ½ years of hard labor, without benefit of parole, probation, or suspension of sentence.
|fiYou will receive credit for any time you have served on this or any other charge since January 30th of 2003. And this sentence will run concurrent with any other sentence that you are serving.
You are also to forfeit any item seized at the time of arrest.

In considering the defendant’s plea, which included the illegal sentence, we are mindful of the supreme court’s admonishment that “appellate courtfe] should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in dispositions of the cases favorable to the defendant.” State v. Campbell, 01-329, p. 1 (La.11/2/01), 799 So.2d 1136. (Citation omitted). But see State v. Jefferson, 02-1038 (La.1/10/03), 838 So.2d 724 (wherein the supreme court vacated a guilty plea when the defendant agreed to an illegally lenient sentence).

In keeping with Campbell, 799 So.2d 1136, we do not vacate the defendant’s guilty plea, but reserve to him the right to maintain his guilty plea in light of the mandatory fine or to withdraw his guilty plea prior to resentencing on remand. See State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, unit denied, O3-3358 (La.4/2/04), 869 So.2d 874.

Motion to Suppress

The defendant assigns as error the trial court’s denial of his motion to suppress. He argues that the officers had no right to approach him, and had no right to search his vehicle.

^Reasonable Suspicion to Approach

The defendant first argues that the police officers did not have the reasonable suspicion necessary to approach the vehicle. He cites State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268 and State v. Boson, 99-1984 (La.App. 4 Cir. 1/17/01), 778 So.2d 687, writ denied, 01-0430 (La.9/13/02), 824 So.2d 1192, arguing that they indicate that an anonymous tip is insufficient to create reasonable suspicion “to conduct the stop of an automobile.”

In State v. Sims, 02-2208, pp. 4-5 (La.6/27/03), 851 So.2d 1039, 1043, the Louisiana Supreme Court explained as follows with regard to an investigatory stop:

While an arrest requires officers to have probable cause to believe that a suspect has committed a crime, see U.S. Const, amend. IV and La. Const, art. I, § 5, an investigatory stop requires a lesser standard of “reasonable suspicion.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Louisiana, the investigatory “Terry ” stop is codified in La.Code Crim. Proc. art. 215.1(A): “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” Like an arrest, an investigatory stop entails a complete restriction of movement, although for a shorter period of time. State v. Bailey, 410 So.2d 1123, 1125 (La.1982).
In making a brief investigatory stop, the police “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Specifically, our courts have interpreted article 215.1 to require that an officer point to specific and artic-ulable facts to justify an investigatory stop. State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049.

At the hearing on the motion to suppress, the trial court identified the officers’ approach and questioning of the defendant as an investigatory or “Terry ” stop and denied the motion to suppress. In reviewing a ruling on a motion to suppress, an appellate court considers the totality of the evidence presented at the suppression | shearing. State v. Thomas, 02-471 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137, mi denied, 02-2920 (La.4/21/03), 841 So.2d 789. Furthermore, unless the trial court’s ruling is not supported by the evidence or it is clearly an abuse of discretion, it is not to be overturned by the appellate court. Id.

After review of the record, we find no abuse of discretion in the trial court’s ruling with regard to the initial stop. Officer Marceaux testified that he received an anonymous tip regarding the presence of a man standing outside of a truck. Officer Marceaux explained that the caller felt that the man was possibly selling narcotics. Furthermore, Officer Marceaux was familiar with the address, having made numerous drug-related arrests at or near the location. He also knew that the owner of the location permitted trespass enforcement. Consistent with the anonymous call, Officer Marceaux found the defendant located next to the black truck upon his arrival at the scene. Finally, we note that the officers’ approach was minimally intrusive. According to Officer Marceaux, he approached the defendant and asked for his identification and inquired whether he owned the truck. Based on the defendant’s response, a warrants check was conducted. There is no indication that the defendant was subjected to a frisk prior to the return of the information regarding the outstanding warrant.

Further, we note that the eases advanced by the defendant are distinguishable from the present case. In Robertson, 721 So.2d 1268, officers received an anonymous tip that an individual named Will, who drove a Pontiac Grand Am, green in color with dark tinted windows, was selling narcotics at a certain location. The officers arrived at the location and observed the described vehicle pull away and drive to another location. When the driver of the vehicle exited, the officers approached and asked |flhis name. The driver identified himself as William Robertson, and was advised by the officers that he was under investigation for narcotics. At that point, a canine unit was called and the dog alerted to the odor of narcotics coming from the vehicle. The officers then searched the vehicle and found illegal narcotics.

In Boson, 778 So.2d 687, two officers were advised by their superior to go to a location to check on complaints of illegal narcotics activity, and to look for a white Ford LTD and two males who were supposed to be selling illegal narcotics. When the officers arrived at the specified location, they observed two males enter a vehicle fitting the description they had been given. The officers approached the vehicle and ordered the occupants out, and patted them down for weapons. One officer felt a bulge and ordered the individual being patted to remove everything from his pocket. The individual was observed trying to discard a bag containing crack cocaine.

In both Robertson and Boson, the court found insufficient justification for an investigatory stop that led to an arrest. In the instant case, however, the defendant was not initially arrested for illegal activity related to the search of the vehicle or the later search of the house. Rather, the defendant was asked only if he knew who owned the vehicle and to identify himself. It was the return of the outstanding warrant, based upon minimally intrusive questioning, that led to the defendant’s arrest. Without question, the outstanding warrant supplied the basis for the defendant’s subsequent arrest.

Based upon the record’s support of the trial court’s ruling, we find no abuse of discretion in denying the defendant’s motion to suppress with regard to the initial stop of the defendant.

^Search of the Vehicle

The defendant also argues that the officers had no right to conduct a warrant-less search of the vehicle. But for the search, he contends, there would have been no search of the house where the evidence was discovered.

In State v. Carter, 95-703 (La.App. 3 Cir. 9/12/95), 663 So.2d 152, a panel of this court referenced United States Supreme Court jurisprudence and reiterated that a warrantless search is per se unreasonable except in a few established exceptions. The type of search purportedly at issue in this case, ie., the search incident to arrest is one of those exceptions. Id., citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The court explained as follows with regard to the search incident to arrest:

The search incident to arrest is limited to the area within the arrestee’s immediate control. State v. Bradford, 298 So.2d 781 (La.1974). Pursuant to New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and State v. Drott, 412 So.2d 984 (La.1982), a search incident to arrest extends to the arres-tee’s automobile. It is permissible to search the interior of an automobile after arresting its occupants when they remain in proximity to the vehicle. State v. Drott, 412 So.2d 984 (La.1982); State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Bradford, 298 So.2d 781 (La.1974); State v. King, 322 So.2d 205 (La.1975); State v. Wilkens, 364 So.2d 934 (La.1978).

Carter, 663 So.2d at 154. See also New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (wherein the United States Supreme Court held that, following a lawful custodial arrest of the occupant of an automobile, a police officer may search both the passenger compartment and any containers found therein.)

Here, the officers approached the defendant while he was standing outside of the vehicle, which he identified as his own. The officers subsequently arrested the defendant. Therefore, the search incident to arrest exception permitted the officers | nto search the area that was within the defendant’s immediate control. As noted above, this area extends to the passenger compartment of the defendant’s vehicle.

Furthermore, it is of no moment that the defendant was adjacent to his vehicle rather than inside of his vehicle at point of contact with the police officers. In Thornton v. U.S., 541 U.S. 615, 124 S.Ct. 2127, 2131, 158 L.Ed.2d 905 (2004), the United States Supreme Court considered a case in which the police officer made contact with the defendant only after he left his vehicle and explained that: “In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.” The Court further explained that:

A custodial arrest is fluid and “[t]he danger to the police officer flows from the fact of arrest, and its attendant proximity, stress, and uncertainty,” [United States v. Robinson, 414 U.S. 218, n. 5, 94 S.Ct. 467, n. 5, 38 L.Ed.2d 427 (1973) ] (emphasis added). See Washington v. Chrisman, 455 U.S. 1, 7, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer”). The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.

Id.

Neither does the fact that the defendant was handcuffed at the time of the search render the search illegal. Rather, we note that the defendant was not only handcuffed at the time of the search at issue in Thornton, but had been secured in the back of the patrol car.

For these reasons, we conclude that the record supports the trial court’s denial of the motion to suppress insofar as it relates to the search of the vehicle. Furthermore, we note that the record supports the trial court’s observation that Ms. |i¡>Arvie consented to the subsequent search of the house where the guns were located. Ms. Arvie acknowledged her signature on the consent form at the hearing. The form was entered into evidence. While Ms. Ar-vie suggested that the investigating officers threatened her in order to obtain her consent, the trial court was free to reject this testimony. In fact, the trial court referenced credibility in denying the motion to suppress.

The defendant’s assignment lacks merit.

DECREE

For the foregoing reasons, the denial of the motion to suppress is affirmed. The defendant’s sentence is vacated and the case is remanded for resentencing. The defendant’s right to withdraw his guilty plea is reserved.

DENIAL OF MOTION TO SUPPRESS AFFIRMED. SENTENCE VACATED. REMANDED WITH INSTRUCTIONS.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

hi respectfully disagree with that portion of the majority opinion vacating the sentence of the defendant based on an errors patent review of the record. In this case, both the guilty plea form and the sentence imposed by the trial court made no mention of the fine imposed by La.R.S. 14:95.1(B). The Louisiana Supreme Court has directed appellate courts to “refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in dispositions of the cases favorable to the defendant.” State v. Campbell, 01-0329 (La.11/2/01), 799 So.2d 1136, 1137. Although the majority opinion cites Campbell, it vacates the defendant’s guilty plea, based on an errors patent review, and remands for resentencing. The defendant is then faced with a Hobson’s choice of either maintaining his plea in light of the mandatory fine (which fine upon resen-tencing will be imposed by the court) or withdrawing his guilty plea and proceeding to trial. This result, the majority professes, is “[i]n keeping with Campbell.” By vacating the guilty plea, and remanding for resentencing, the majority opinion circumvents the mandate of the Campbell decision. I respectfully disagree with this portion of the majority opinion.

      . With regard to the "no trespass letter,” Officer Marceaux explained that: “A homeowner or a business owner can sign a letter. And, basically, if anyone's found on the property, you can arrest them. It's posted.” The letter is kept on file at the police department.

      . Ms. Arvie testified that the defendant was no longer living at the house and would only visit occasionally. She explained that they had "got into a bad argument, and we had kind of just split up.” As stated above, however, the defendant identified the address as his residence to the officers.

      . La.R.S. 14:95.1(B) provides: "Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.”

      . In Jefferson, however, the question of the defendant’s illegally lenient sentence and underlying plea was presented to the court by the parties. See State v. Jefferson, 01-1139 (La.App. 5 Cir. 3/13/02), 815 So.2d 120. The errors were not discovered on error patent review alone.


source: Caselaw Access Project

author: PICKETT, Judge. SAUNDERS, J.,

license: Public Domain

text:
    Patricia K. McNEELY v. SAFE HAVEN ENTERPRISES, INC.
    No. 05-1609.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.

      Stanley Stephen Spring II, Spring, Spring & Associates, Baton Rouge, LA, for Defendant-Appellant, Safe Haven Enterprises, Inc., John and Alta Baker.
    Milo Addison Nickel, Jr., The Nickel Law Firm, LLC, Lake Charles, LA, for Defendant-Appellee, MB Industries, LLC.
    Patricia K. McNeely, In Proper Person, Morse, LA.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe defendant, Safe Haven Enterprises, Inc., (Safe Haven) appeals an order of the trial court holding John and Alta Baker in contempt of court for failing to attend a deposition.

STATEMENT OF THE CASE

Patricia McNeely filed suit against Safe Haven on October 25, 2004. On April 18, 2005, Safe Haven filed a reconventional demand against McNeely, and named several other parties as defendants-in-recon-vention. This appeal arises from the discovery phase of the litigation.

On June 8, 2005, M.B. Industries, LLC, (MBI) one of the defendants named by Safe Haven, filed a Notice of Deposition of John and Anita [sic] Baker, with the depositions scheduled for June 10, 2005. The Bakers are the principals of Safe Haven Enterprises, Inc, a Louisiana corporation. The notice was served on the Bakers’ attorney, who at all times also represented Safe Haven, by a private process server on June 9, 2005. The Bakers were in Florida, and filed a Motion to Quash the depositions, which the trial court denied. The attorney for the Bakers made the opposing attorneys aware that his clients would not appear. Nevertheless, the attorneys who scheduled the depositions did appear at the appointed place at the appointed time and conducted a proces verbal.

McNeely and MBI filed Motions for Contempt. After a hearing on July 26, 2005, the trial court found both John and Alta Baker in contempt of court and fined them each $250.00. He signed an order to that effect on July 29, 2005. Safe Haven sought a rehearing, which the trial court denied. Safe Haven then filed the instant appeal.

lain response to the appeal, MBI has filed a motion to dismiss the appeal. They argue that the issues in this appeal have been reviewed by this court in applications for supervisory writs and that Safe Haven lacks standing to appeal the order finding John and Alta Baker in contempt. Them motion was referred to the merits. The Bakers filed a Motion to File a Supplemental Brief, arguing that the appeal of the orders requiring them to pay attorneys fees should be heard in this appeal. That, too, was referred to the merits.

MOTION TO DISMISS THE APPEAL

The Notice of Deposition which was the impetus of this appeal was directed to John and Alta Baker. The trial court held the Bakers in contempt of court at a hearing held June 26, 2005. The trial court signed an order holding the Bakers in contempt on July 29, 2005. The Bakers paid the fine imposed by the court. The appeal of the contempt citation was filed by Safe Haven, and Safe Haven was granted a devolutive appeal. The original brief to this court was filed by Safe Haven. Safe Haven, which as a corporation is a separate juridical person under La.Civ. Code art. 24, was not the party held in contempt of court and lacks standing to appeal the order holding the Bakers in contempt. The Bakers, not Safe Haven, have the right to an appeal.

In a brief filed by the Bakers in response to the Motion to Dismiss the Appeal, they state, “In point of fact, the only Appellant Brief of record herein was filed by John Baker and Alta Baker[.]” They also argue that this appeal was filed by the Bakers, and not Safe Haven, so the motion to dismiss must fail. The record before us includes only one motion seeking an appeal, filed by Safe Haven, and one order logranting an appeal, to Safe Haven. As Safe Haven lacks standing to appeal the judgment of contempt, the appeal is dismissed.

APPEAL DISMISSED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissenting.

DISSENT

hi respectfully dissent. While the majority concludes that the appeal should be dismissed, I believe that Safe Haven does have standing and the merits of the appeal should be addressed. The Bakers were to be deposed in their role as corporate representatives. This is evidenced by the fact that the corporation, not the Bakers, was the subject of the motion for contempt. Furthermore, not only was Safe Haven the party named on the motion, but it was the defendant in rule at the hearing on the motion. An appeal is the right of a party to have a judgment revised, modified, set aside, or reversed. La. Code Civ.P. art. 2082. [Emphasis added]. Safe Haven, not the Bakers individually, is party to the litigation and was the defendant in rule at the hearing of the motion which sought that it be held in contempt. Furthermore, the above definition does not limit a party’s right to appeal to judgments in which they are cast. Id. The Bakers are not parties to the litigation, nor were they named individually in the motion for contempt suggesting that the trial court abused its discretion by holding them, not the corporation, in contempt.

While I certainly agree with the majority that the Bakers have standing to appeal the judgment on their own behalf, I do not believe that Safe Haven is [^precluded from appealing this judgment. Louisiana is a civilian jurisdiction and I see no codal prohibitions to Safe Haven’s appeal from this judgment. It may have been preferable for the Baker’s to appeal in their own right, but I think the interests of justice and judicial efficiency are best served by addressing the merits of the appeal at this time.


author: SULLIVAN, Judge.

text:
    Julaine C. LeBLANC and Ovey LeBlanc v. STATE FARM INSURANCE COMPANY, et al.
    No. 05-1086.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.
    J. Clemille Simon, Barry L. Domingue, Simon Law Offices, Lafayette, Louisiana, for Plaintiffs/Appellants, Ovey LeBlanc, Julaine C. LeBlanc.
    Michael G. Daiy, Attorney at Law, Lafayette, Louisiana, William E. Wright, Jr., Deutsch, Kerrigan & Stiles, LLP, New Orleans, Louisiana, William H. Parker, III, Allen & Gooch, Lafayettte, Louisiana, for Intervenors/Appellees, Andre F. Toce, Toce & Daiy, L.L.C., Andre F. Toce & Associates.
    Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, Louisiana, for Intervenors/Appellees, Andre F. Toce, Andre F. Toce & Associates, Toce & Daiy, L.L.C., Transcontinental Insurance Company.
    Julius W. Grubbs, Jr., Haik, Minvielle & Grubbs, New Iberia, Louisiana, for Defen-danVAppellee, State of Louisiana through the Department of Transportation and Development.
    Dennis R. Stevens, Gibbens & Stevens, New Iberia, Louisiana, for Defendants/Ap-pellees, Timothy Edler, Rebecca Edler, The Travelers Insurance Company.
    Stacy Skolfield Lee, Attorney at Law, Lafayette, Louisiana, for Defendant/Appel-lee, Allstate Insurance Company.

      Kristen Broussard Menard, Voorhies & Labbe, Lafayette, Louisiana, for Defendant/Appellee, Transcontinental Insurance Company.
    Shane E. Romero, Attorney at Law, New Iberia, Louisiana, for Defendani/Ap-pellee, Iberia Parish Government.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

| iPIaintiffs appeal the grant of summary judgment in favor of their former attorney for the payment of attorney fees and expenses from settlement funds deposited in the registry of the court. For the following reasons, we affirm.

Facts

Julaine LeBlanc, and her husband, Ovey LeBlanc, retained André Toce and Toce & Daiy, L.L.C. (Toce) to represent them in connection with claims for damages they sustained as a result of injuries Mrs. Le-Blanc suffered in an automobile accident which occurred on July 30, 1997. On March 24, 2003, Mrs. LeBlanc and Toce attended a mediation conference where the matter was settled for $395,000.00. Prior settlements in the amount of $25,829.00 resulted in a total recovery of $420,829.00 for Plaintiffs.

After the mediation conference, Plaintiffs contested the validity of the settlement, claiming it was invalid because Toce threatened, coerced, and intimidated Mrs. LeBlanc into accepting the settlement. They also asserted that Toce committed malpractice and engaged in other tortious behavior during his representation of them. Defendants involved in the mediated settlement filed a motion to enforce the settlement. At the hearing on Defendants’ motion, Plaintiffs argued the mediation settlement form did not satisfy the requirements of a transaction and compromise as provided in La.Civ.Code art. 3071; they did not introduce any other evidence to establish their claims of threats, coercion, and intimidation. The trial court found the settlement valid and ordered Plaintiffs to execute settlement documents. This court affirmed the trial court’s judgment. See LeBlanc v. State Farm Ins. Co., 03-1522 (La.App. 3 Cir. 5/26/04), 878 So.2d 715, writ not considered, 04-1642 (La.10/8/04), 883 So.2d 1023.

| ¡.Following Plaintiffs’ dismissal of him, Toce intervened in this litigation to collect attorney fees and expenses associated with his representation of Plaintiffs. Plaintiffs answered the intervention and reconvened against Toce, alleging he “committed numerous acts of negligence, malpractice and misconduct” which caused them damage. On August 30, 2004, Toce filed a motion for partial summary judgment in which he sought dismissal of that portion of Plaintffs’ reconventional demand which alleges he committed malpractice in the handling of their claims against the underlying defendants. In opposition to the motion for summary judgment, Plaintiffs again asserted that the settlement was invalid and also asserted that Toce guaranteed Mrs. LeBlanc she would recover $1 million in damages. The trial court concluded that Plaintiffs’ failure to present evidence at the hearing on the motion to enforce the settlement regarding their claims of threats, coercion, and intimidation es-topped them from proceeding with their claims that Toce caused them damage by forcing them to settle their case. Plaintiffs filed a writ application with this court which was denied. See LeBlanc v. State Farm Ins. Co., an unpublished writ bearing docket number CW05-231 (La.App. 3 Cir. 3/24/05).

Toce then filed a Motion for Summary Judgment and to Disburse Attorney’s Fees and Expenses, seeking payment of attorney fees and expenses from the settlement funds deposited in the registry of the court as provided in the judgment enforcing the settlement. The trial court granted judgment in favor of Toce and against Plaintiffs for attorney fees as per Plaintiffs’ contract together with judicial interest, expenses incurred by Toce in representing Plaintiffs together with judicial interest, borrowed funds guaranteed by Toce for payment of expenses incurred in connection with Plaintiffs’ claims together with contractual interest, and all costs of UToce’s intervention. All of these amounts were ordered to be paid by the Clerk of Court from the settlement funds deposited into the registry of the court; the remaining funds were ordered to be paid to Ju-laine LeBlanc. The trial court designated the judgment a final judgment, finding no just reason to delay the matter.

Plaintiffs appeal assigning one error: Toce failed to demonstrate the absence of any issue of material fact and failed to controvert their opposition to the motion for summary judgment.

Issue for Review

Does termination of an attorney’s services for cause añer he settled his client’s claims affect his rights to payment of attorney fees and expenses according to his contract with the client when the client has asserted claims of malpractice against him?

Motion for 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 of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his | ¿initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05); 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

Discussion

Plaintiffs claim the trial court granted Toce “extraordinary relief’ and erroneously held that he was “entitled to a full contingency fee for representing [them], despite the fact that [he] was terminated for cause for numerous acts of misconduct, sexual advances, inappropriate behavior and malpractice, including failing to obtain a guaranteed result.” Plaintiffs seek to reduce the amount Toce recovers from the settlement funds based on his alleged malpractice. They argue that, because Toce was discharged for cause, he is not entitled to full payment of his attorney fees. Toce argues that, because he was discharged after a settlement was reached, he is entitled to the fee provided in his contract with the LeBlancs.

We have not found any case on point. Attorney fee disputes usually arise when one attorney is discharged during the course of the litigation and another attorney is hired to replace the first attorney. Once the litigation is resolved, the amount of | ^compensation due each attorney is decided. See O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697, where the supreme court outlined the procedure for determining the fee an attorney discharged for cause is entitled to receive. Here, the case was settled before Plaintiffs discharged Toce.

Plaintiffs contend that Toce coerced Mrs. LeBlanc into settling her claims, that Mr. LeBlanc did not settle his claims, and that Toce committed other acts of malpractice. They did not present evidence in opposition to Defendants’ enforcement of the settlement, and the settlement has been enforced. See LeBlanc, 878 So.2d 715. We find no basis for withholding Toce’s attorney fees and expenses.

Plaintiffs cite Broadscape.com, Inc. v. Walker, 03-904 (La.App. 4 Cir. 2/25/04), 866 So.2d 1085, unit denied, 04-940 (La.6/18/04), 876 So.2d 806, and Brand v. New England Insurance Co., 534 So.2d 13 (La.App. 4 Cir.1988), in support of their position. In both of these cases, the plaintiffs instituted malpractice claims against their former attorneys because their attorneys’ negligence compromised the validity and/or value of their claims, resulting in reduced recoveries. The plaintiffs pursued their malpractice claims after settling the underlying litigation.

Plaintiffs here also seek to pursue malpractice claims against their former attorney after their claims against the underlying defendants were settled as in Broadscape.com and Brand. However, the issue here is whether the former attorney is entitled to receive a fee and his expenses out of the settlement funds he negotiated on Plaintiffs’ behalf or whether Plaintiffs can prevent disbursement of the settlement proceeds on the basis of their malpractice claims. Broadscape.com and Brand do not address this issue and, therefore, do not support Plaintiffs’ position.

| [^Plaintiffs want the settlement proceeds to remain available to satisfy any amounts they may recover for any remaining claims they have against Toce. However, these claims are not “liquidated and presently due,” La.Civ.Code art. 1893; therefore, they cannot serve as a basis for preventing disbursement of the settlement proceeds. We have found no other basis for not disbursing the settlement proceeds. No genuine issue of material fact with regard to Toce’s entitlement to attorney fees and recovery of expenses from the settlement proceeds has been shown to exist.

Disposition

The judgment of the trial court is affirmed. All costs of this motion for summary judgment are assessed to Plaintiffs.

AFFIRMED.

      . In its judgment on Toce's previous motion for summary judgment, the trial court held that “the LeBlancs are estopped from contending that Toce caused them damage by settling their case” because Mrs. LeBlanc did not "provide any evidence whatsoever as to how she was threatened or coerced by Toce into settling her claim.” Not all of Plaintiffs' allegations are that Toce damaged them by settling their case; those remaining claims are not at issue here.


author: DECUIR, Judge. THIBODEAUX, Chief Judge, DECUIR, J.,

text:
    Dewitt WILLIAMS v. A-JAX LUMBER COMPANY.
    No. 05-935.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2006.
    John D. Saunders, J., dissented for the reasons assigned by Thibodeaux, C.J.
    Michael G. Sullivan, J., dissented in part for the reasons assigned by Decuir, J.

      M. Blake Monrose, Hurlburt, Privat & Monrose, Lafayette, LA, for Defendant/Appellant, A-Jax Lumber Company.
    George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appel-lee, Dewitt Williams.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS, OSWALD A. DECUIR, JAMES T. GENOVESE and MICHAEL G. SULLIVAN, Judges.
   DECUIR, Judge.

Lin this workers’ compensation suit resulting from a knee injury, both the employee and the insurer appeal the judgment of the workers’ compensation judge. The insurer, Capital City Insurance Company, appeals the award of supplemental earnings benefits in favor of the employee, Dewitt Williams, as well as the award of penalties, attorney fees, and vocational rehabilitation services, and the denial of its claim for forfeiture of benefits. Williams appeals the denial of his claim for compensation for a late-developing back injury, questions the award of a credit for future medical expenses which may arise from the knee injury, and requests an increase in the award of penalties and attorney fees. He also disputes the assessment of court costs and certain evidentiary rulings made by the workers’ compensation judge.

FACTS

Williams was employed as a millwright for A-Jax Lumber on September 20, 1999, when he fell in the lumber yard and injured his knee. He was diagnosed with a tear in the medial meniscus which was repaired via arthroscopic surgery in February of 2000. Although the surgery was without complication, Williams complained of a difficult recovery, ongoing pain and popping in his knee and, eventually, commencing in February of 2001, back pain. He continued to use a cane or crutches for many months after surgery.

The workers’ compensation judge found Williams’ doctors noted no objective symptoms and could not explain his ongoing complaints. Both doctors recommended a functional capacity evaluation. Williams was not released by the doctors to return to his full job duties, was not given a light duty assignment by his now defunct employer, and was never offered vocational rehabilitation services by the insurer. Based on these facts and the court’s review of the medical records in evidence, the 12workers’ compensation judge found Williams met his burden of proof regarding his knee injury and awarded supplementary earnings benefits as well as vocational rehabilitation services. Also awarded was a $2,000.00 penalty for the failure to provide rehabilitation services timely. The court denied benefits for Williams’ back condition, noting there was no medical evidence to support a correlation between the back complaints and the knee injury. Additionally, the court described Williams as lacking in credibility, but found he did not willfully misrepresent his complaints for the purpose of receiving benefits in violation of La.R.S. 23:1208. Therefore, the insurer’s claim for fraud and forfeiture of benefits was denied.

DISCUSSION

In Coleman v. Ascension Enterprise, Inc., 03-1425 (La.App. 3 Cir. 4/14/04), 870 So.2d 1159, 1162, this court discussed the standard of review in a workers’ compensation case:

A workers’ compensation judge’s decision that a claimant has met his burden of proof is a factual determination. As such, this determination will not be overturned on review absent manifest error. An appellate court will set aside a factual finding by a hearing officer only if the record shows there was no reasonable basis for the finding and that the finding was clearly wrong. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706; Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). In order to reverse factual findings of a workers’ compensation judge, an appellate court must determine that a reasonable factual basis does not exist in the record to support the finding and that the record establishes the finding is clearly wrong or manifestly erroneous. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124.

We have reviewed the testimony and medical evidence in the record and have examined the factual findings of the workers’ compensation judge. The conclusion that Williams is entitled to supplemental earnings benefits is supported by the medical history, longstanding complaints of pain, and the absence of a medical release to return to full duty at work. The finding that Williams is in need of rehabilitation |3services is likewise well supported. The court was satisfied that Williams offered sufficient proof of his disability which prevented him from returning to his former job; however, the court was not convinced by the medical evidence that Williams’ back pain was related to his knee injury and denied both indemnity and medical benefits for that condition. The court further found no evidence of fraud on the part of the claimant. We find no manifest error in these conclusions.

Also subject to the manifest error standard of review is the award of attorney fees. The workers’ compensation judge awarded $4,000.00 for the work performed by the claimant’s attorneys. This amount is reasonable and is supported by the record. However, we find no basis in the record to award penalties to Williams for the failure to reimburse certain travel and medication expenses, and we find no manifest error in the evidentiary rulings complained of by Williams.

We turn now to Williams’ assignment of error regarding the credit given to the insurer for future medical expenses. The workers’ compensation judge determined that the medical expenses paid for the diagnosis and treatment of Williams’ back problem were not owed. Therefore, the insurer was awarded a credit for all expenses paid after March 16, 2001, “against any and all future medical expenses reasonably and medically necessary for plaintiffs knee injury.” In oral reasons for judgment, the court commented, “I think it’s really doubtful that Mr. Williams will ever require any further care for his knee.” Interestingly, in this appeal, Williams disputes the propriety of the credit, while the insurer does not complain that the credit, in effect, will never be realized.

Regardless of the effect of the credit, we find error in the award. While La.R.S. 28:1206 allows reimbursement of overpaid compensation benefits, we cannot say that the medical expenses paid by the insurer for the diagnosis and treatment of Williams’ |4back condition were necessarily overpaid benefits. The benefits were not paid by mistake or as the result of fraud or oversight; rather, the diagnosis and cause of the condition were still in question. Second, payments were made directly to the medical providers and were not subject to the direction of the claimant, although he certainly received the benefit of the payments. Finally, we find no legal precedent supporting an award of a credit for improperly paid medical expenses, and we hesitate to establish a right of reimbursement which may ultimately serve to penalize workers who need an intensive variety of medical tests to diagnose a difficult or obscure condition. The award of a credit for overpaid medical expenses, therefore, is reversed.

Regarding the legal question of whether Williams was properly awarded a $2,000.00 penalty for the insurer’s failure to timely provide rehabilitation services, we note that the law governing penalty awards is that which was in effect at the time the alleged statutory violation occurred. See Maynard v. Grey Wolf Drilling, 04-431 (La.App. 3 Cir. 10/20/04), 885 So.2d 1277. In this case, Williams filed a claim for services in May of 2003. The applicable law at the time precluded an assessment of penalties for the failure to provide rehabilitation. Chelette v. Riverwood Int’l USA, Inc., 03-1483 (La.10/17/03), 858 So.2d 412. Accordingly, the $2,000.00 penalty awarded to Williams must be reversed.

The next issue is the assessment of court costs at the trial court level. Costs were assessed to Williams, less a $30.00 charge cast to the insurer. While the assessment of court costs is generally an exercise of the lower court’s discretion, in this instance, a majority of the court finds manifest error in the ruling below. The court finds that because Williams prevailed on the primary issues of supplemental earnings benefits and vocational rehabilitation services, costs should have been | ^assessed against the insurer, regardless of the several questions litigated at trial which Williams lost. Accordingly, we reverse the assessment of costs and assign all costs incurred at the trial level and in this appeal to the insurer.

Finally, a majority of this court finds merit to the employee’s request for attorney fees for work done pursuant to this appeal. Taking into consideration the particular circumstances of this case, the lower court’s $4,000.00 award of attorney fees, and recent awards by this court, we find the highest reasonable award for work done pursuant to this appeal is $2,500.00. See Sullivan v. PHI, 05-933 (La.App. 3 Cir. 2/1/06), 922 So.2d 725; Lebert v. McNeese State Univ., 05-856 (La.App. 3 Cir. 2/1/06), 2006 WL 233440, 932 So.2d 678; Halker v. Am. Sheet Metal, 04-1407 (La.App. 3 Cir. 3/16/05), 898 So.2d 629 In accordance with that finding, the majority awards $2,500.00 to Williams. The author of this opinion, however, disagrees and dissents from the foregoing award.

DECREE

For the above and foregoing reasons, the $2,000.00 penalty awarded to Dewitt Williams and the credit for future medical expenses awarded in favor of the insurer are hereby reversed, as is the assessment of costs at the trial level. In all other respects, the judgment of the workers’ compensation judge is affirmed. Attorney fees in the amount of $2,500.00 are awarded to Dewitt Williams for work performed in this appeal, and costs of this appeal are assessed to Capital City Insurance Company.

AFFIRMED IN PART AND REVERSED IN PART.

THIBODEAUX, C.J., and DECUIR, J., dissent in part and assign reasons.

SAUNDERS, J., dissents in part for the reasons assigned by Chief Judge Thibodeaux.

SULLIVAN, J., dissents in part for the reasons assigned by Judge Decuir.

THIBODEAUX, Chief Judge,

dissenting in part.

hi dissent from the denial of the plaintiffs claim for compensation for the back injury. The record as a whole supports the plaintiffs claim that the knee injury aggravated or activated his low back injury. In my view, the record is clear that the plaintiff did not have a disabling back pain before the knee injury. According to Dr Katz, the treating orthopedist, and Dr. Drerup, the neurosurgeon, the back injury could reasonably result from an altered gait. There is nothing in the record which reasonably refutes these expert medical opinions.

Further, I dissent from the refusal to award penalties for the failure to commence prompt vocational rehabilitation. The majority cites Chelette v. Riverwood Int’l USA Inc., 03-1483 (La.10/17/03), 858 So.2d 412 for the proposition that the applicable law at the time precluded an assessment of penalties for the failure to provide rehabilitation. Chelette does not stand for that principle. Chelette granted certiorari on one issue only. That issue was whether the third circuit erred in granting a penalty award under La.R.S. 23:1201(F) when the employer had reduced SEB as contrasted with failing to make timely payment of benefits. That was the sole issue addressed by Chelette. Vocational rehabilitation is a benefit. Chelette opined that the | ¿failure to commence payment of benefits authorizes the payment of penalties and attorney fees under Section 1201(F). The majority apparently is relying on the dictum in Chelette which said that “the sanction of penalties and attorney fees imposed by LSA-R.S. 23:1201 is not directed at the vocational rehabilitation obligation of LSA-R.S. 23:1226.” However, Chelette had nothing to do with this issue. The writ granted in Chelette dealt with whether a penalty was owed for the reduction of SEB versus the failure to make timely payment of benefits. Chelette cited the dissent in Fontenot v. Reddell Vidrine Water District, 02-439 (La.1/14/03), 836 So.2d 14 in support of its failure to award penalties. That was simply and plainly wrong.

Finally, I would award a penalty for the failure to award mileage reimbursement for 730 miles. The defendants paid $.28 cents per mile when $.30 cents per mile was owed. Moreover, a $2,000.00 penalty each for the failure to reimburse two of three medication prescriptions from Dr. Katz for $574.38 should have been ordered. Even if the back injury had been resolved or was unrelated to this accident, the same medications would have been prescribed by Dr. Katz for the plaintiffs knee injury.

For the foregoing reasons, I respectfully dissent in part.

DECUIR, J.,

dissenting.

| ¶ While I authored the majority opinion, I write separately to express my disagreement with a majority of this five-judge panel on two issues. First, I find no error in the workers’ compensation court’s assessment of court costs at the trial level, and I dissent from the majority’s reversal of that assessment. This case involved primarily the employee’s back injury. The question of whether his back condition was caused by his work-related injury, and was thus compensable, was resolved against him. Therefore, I do not view the assessment against him as an abuse of discretion. “A trial court is afforded great discretion in its assessment of court costs, and can be reversed by an appellate court only on a showing of abuse of that discretion. Westley v. Allstate Ins. Co., 05-100, p. 15 (La.App. 5th Cir.5/31/05), 905 So.2d 1127, 1137.” Lee v. Constar, Inc., 05-633 (La.App. 5 Cir. 2/14/06), 921 So.2d 1240, 1254. The record shows no abuse of the workers’ compensation judge’s great discretion, and I disagree with the majority’s ruling on this issue.

Second, I dissent from the majority’s decision to award attorney fees for work performed in this appeal. Both the employee and the insurer filed appeals in this matter. Williams assigned seven alleged errors for our review, while the insurer assigned five alleged errors. Williams vehemently argued for a finding of causation regarding his back condition, a position which a majority of this court has found to |abe without merit. On other issues, Williams won some and lost some. This court has previously denied attorney fees for work performed on appeal when the requesting party fails to obtain relief on his own issues raised on appeal:

Considering Ms. Shell’s request for an increase of attorney fees for work done on appeal, we acknowledge that Ms. Shell successfully defended her right to compensation in the amount awarded by the trial judge. However, because she filed her own appeal on other issues, and was ultimately unsuccessful in that regard, Ms. Shell is not entitled to an increased award of attorney fees for work performed on appeal.

Shell v. Wal-Mart Stores, Inc., 00-0997, p. 10 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, 1161. Accordingly, I dissent from the award made by the majority in this case.

Furthermore, I find the amount awarded to be an abuse of this court’s discretion and respectfully dissent.