author: BROWN, Chief Judge.

text:
    Donald BUDDIN, Claimant-Appellant v. CONAGRA POULTRY COMPANY, Defendant-Appellee.
    No. 42,535-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.

      Robert W. Hallaek, Baton Rouge, for Claimant/Appellant.
    Hayes, Harkey, Smith & Cascio, by John B. Saye, Monroe, for Defendant/Ap-pellee.
    Before BROWN, CARAWAY, and PEATROSS, JJ.
   BROWN, Chief Judge.

pin this workers’ compensation action, claimant, Donald Buddin, has appealed from the dismissal of his claim for medical benefits, penalties, and attorney fees, from defendant, ConAgra Poultry Company. Finding that the Workers’ Compensation Judge (“WCJ”) erred in concluding that claimant failed to establish that his back injury was caused by a work-related accident, we reverse that part of the WCJ’s judgment denying -Buddin’s benefits.

Facts and Procedural Background

In September 1995, after retiring from a career in the United States Air Force, claimant, Donald Buddin, went to work for ConAgra in Union Parish, Louisiana. Buddin worked as part of a team that maintained the large scales used by the company to weigh chickens.

During the course and scope of his employment, Buddin injured the rotator cuff in both of his shoulders. He is currently receiving temporary total disability benefits for these injuries, and his entitlement to compensation for the rotator cuff injuries is not at issue in this appeal. Buddin has also claimed that he sustained a herniated spinal disc as a result of a work-related accident. ConAgra denied that Buddin’s back injury was the result of an on-the-job incident, and the WCJ rendered judgment in favor of ConAgra, finding no causal connection between Buddin’s back injury and his employment.

As an airman with the Air Force and later as a retiree, Buddin has obtained medical treatment through military hospitals, and most recently at | ^Barksdale Air Force Base (“BAFB”) in Bossier City, Louisiana. The extensive medical records admitted into evidence, detailing Buddin’s medical history for decades, reveal that claimant had no significant complaints of back pain prior to March 20, 2002, apart from one incident in 1978 -that apparently resolved without further treatment.

Claimant’s Testimony

At trial, Buddin testified that he injured his back at work while pulling the. large scale used' for weighing chickens. He didn’t notify anyone in his crew or a supervisor that day because it was a Sunday. Buddin stated that he told his supervisor, Joey Gaspard, about the incident after he saw the doctor at BAFB. The medical report for a March 20, 2002, visit relates that Buddin injured his back dragging a 200-lb. scale. As a result of his accident, he missed two weeks from work. Buddin recalled that his supervisor advised him that the simplest way to handle it would be for him to put the missed time down as sick leave. No work documents were produced to contradict this testimony.

After the two weeks off, claimant returned to his regular job duties until around April 2003, which is when his shoulder problems began. After he had surgery on both shoulders, claimant attempted to return to work with restrictions, but was told not to come back in until he was 100%. Buddin stated that his back condition worsened during this time. He had tingling and numbness down his left leg, which did not begin until after the incident when he hurt himself dragging the scales.

| ¡¡The WCJ questioned claimant about his back pain and its origin. While Buddin was unable to give a specific date for when his back pain began, he was certain about two things: it occurred in 2002 and he went to BAFB for treatment. Buddin also testified that he took two weeks off after his accident, then returned to his previous assignment, which was scales maintenance. While his shoulder injuries occurred over a period of time, his back injury began after a specific incident, then was continuous after that accident. When it got worse, that’s when he told the doctor and had surgery.

Medical Evidence

On March 20, 2002, Buddin saw Dr. John Goddard at the BAFB hospital. The medical record shows that the then 56-year-old claimant presented with a complaint of constant sharp lower back pain and left hip pain. Buddin related to Dr. Goddard that he had injured his lower back and buttocks at work while dragging a 200 lb. scale. Claimant also told Dr. Goddard that the pain radiated into his left hip. Dr. Goddard prescribed Tylenol, Anaprox, Flexeril and Lortab, but imposed no work restrictions.

After consulting Dr. Goddard, Buddin sought further medical treatment, none of which, however, until he treated with Dr. Ramos in October of 2003, was related to his back injury.

On October 16, 2003, Buddin’s wife called Dr. Marilyn Uhr, who had been treating claimant for high blood pressure, diabetes and heart problems, and was referred to Dr. Marco Ramos, a neurosurgeon, for Buddin’s back pain and sciatica. An MRI revealed, among other things, a bulging disc at |4L5-S1 with a mild impingement of the right S-l nerve root. Buddin reported to Dr. Ramos that the pain had been “off and on” for about five years but almost constant for about two years. In a letter to Dr. Uhr, Dr. Ramos reported that:

The patient states that for the last two years or so he has been having almost constant low back pain radiated to the posterior aspect of both lower extremities. At times, this is worse in the.right than in the left. The symptoms are precipitated by driving and sitting.

Notably, Dr. Ramos did not ask Buddin if he had injured his back in a specific incident, and claimant did not volunteer this information. Dr. Ramos diagnosed Bud-din with a herniated nucleus pulposus at L5-S1 and with lumbrosacral radiculopa-thy, but was unable to determine the age of this condition.

On November 19, 2003, Dr. Ramos performed hemilaminectomy surgery on Bud-din’s back to correct the problem. During surgery, Dr. Ramos found that claimant’s condition was chronic, i.e., it had not developed over the past several months. Dr. Ramos believed that the condition was consistent with an injury as described by claimant because the condition had become chronic but the doctor did not say with certainty that the injury was a result of the March 2002 incident.

Buddin saw another neurosurgeon, Dr. Donald Smith, on August 16, 2004, for an evaluation of his claim — a “second opinion” visit. Claimant told Dr. Smith that he had suffered an accident at work but was not more specific about what he believed to be the cause of his injury. Dr. Smith reviewed Dr. Ramos’ operative notes and opined that Buddin’s back problem could be the result of a long period of repetitive small injuries or from a single episode of | ¿injury. Dr. Smith said that the limited history that he took from Buddin did not permit the doctor to relate claimant’s problem to an individual event.

The WCJ’s Opinion

After considering the above testimony and medical evidence, the WCJ took the matter under advisement and on August 24, 2006, issued her verbal reasons for judgment, in which she stated, in part:

Claimant was unable to determine the day of his accident. He speculated it occurred on a Sunday before a doctor’s visit. He speculated it occurred on March 17, 2002, or September or October 2Q02. He did not report an injury to Dr. Uhr nor to Dr. Ramos prior to the affidavit. He gave reports noting radiating pain for two years and on another occasion for five years....
Claimant failed to demonstrate an accident with a resulting herniated disc which led to a disability. Following the alleged accident, claimant continued to perform strenuous duties. Prior to March 17th, 2002, claimant experienced radiating pain. Claimant has no independent recollection of when he injured his back and he did not report the incident to his treating physicians. These factors cast serious doubt, upon claimant’s version of the incident and his request for workers’ compensation benefits must be denied.

Discussion

Applicable Legal Principles

In a workers’ compensation action, the claimant must establish a work-related accident by a preponderance of the evidence. Byrd v. Caddo Parish School Board, 39,793 (La.App.2d Cir.06/29/05), 907 So.2d 849; Millage v. Builder’s Lumber & Supply Co., 38,635 (La.App.2d Cir.07/02/04), 877 So.2d 1171, writ denied, 04-1885 (La.10/29/04), 885 So.2d 594. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more probable |fithan not. Byrd, supra; Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.04/07/04), 870 So.2d 515.

In order for the employee to recover, he must establish a causal link between the work-related accident and his injury. Albert v. Trans-Met, Inc., 38,261 (La.App.2d Cir.06/23/04), 877 So.2d 183; Qualls v. Stone Container Corporation, 29,794 (La.App.2d Cir.09/24/97), 699 So.2d 1137, writ denied, 97-2929 (La.02/06/98), 709 So.2d 736. The claimant does not necessarily have to establish the exact cause of his disability or injury, but he must demonstrate by a preponderance of the evidence that the accident had a causal connection with it. Buxton v. Sunland Construction, 34,995 (La.App.2d Cir.08/22/01), 793 So.2d 526; Nunn v. CBC Services, Inc., 32,491 (La.App.2d Cir.01/26/00), 750 So.2d 474.

The uncontradicted testimony of a workers’ compensation claimant alone may be sufficient to establish a claim if there is no other evidence which discredits or casts serious doubt on the claimant’s version of the . incident, and the claimant’s-testimony is corroborated by the testimony of fellow workers, spouses, and other close family members, friends, or the introduction of medical evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Newsome v. Atmos Energy, 41,413 (La. App.2d Cir.08/23/06), 938 So.2d 1098; Byrd, supra. The weight afforded a treating physician’s testimony is largely dependent upon the facts upon which his opinion is based. Id.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Id.; Murray v. Hollywood Casino, 38,539 (La.App.2d Cir.06/23/04), 877 So.2d 199. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Lewis, supra. However, the appellate court is not required by the manifest error standard to affirm the trier of fact’s refusal to accept as credible un-contradicted testimony where the record indicates no sound reason for its rejection and where the factual finding has been reached by overlooking applicable legal principles. Bruno, supra; Harris v. Casino Magic, 38,137 (La.App.2d Cir.01/28/04), 865 So.2d 301, writ denied, 04-0502 (La.04/08/04), 870 So.2d 275.

Analysis

Claimant first asserts that the WCJ erred in concluding that he did not have an accident on March 17, 2002, while working at ConAgra. We agree. In making this finding, the WCJ noted several times that Buddin was confused about the date of his accident and was unable to conclusively place the incident in either March or September/October 2002. While claimant was unable to testify with certainty as to the exact date of his accident, his medical records show that on March 20, 2002, Buddin reported to his treating physician, Dr. John Goddard, that the accident occurred the previous Sunday, which would have been March 17, 2002. The record plainly shows that claimant reported a work-related accident causing lower back and right leg pain to his treating physician on March 20, 2002. The WCJ erred in finding otherwise.

lsThe next assignment of error raised by claimant is that the WCJ erred in failing to find a causal connection between his accident and his herniated disc. As noted above, Buddin’s statements about how the accident occurred were corroborated by his first report of the incident, which occurred three days post-accident and was made to claimant’s treating physician, Dr. John Goddard. In reporting his symptoms, Buddin related to Dr. Goddard that since the accident, he had experienced sharp lower back pain and pain radiating into his left hip. Buddin testified that he reported his injury to his superiors at work and as directed by his supervisor, he took two weeks of sick leave before returning to work. This testimony was not contradicted. Work records were not presented. Thereafter, although he experienced constant back pain and discomfort, claimant did not seek further medical treatment for his back until he saw Dr. Ramos in October 2003. It was during this period that Buddin had surgery on both shoulders. His complaints at that time were identical to those he made to Dr. Goddard in March 2002: lower back pain and pain radiating down his hip and thigh. A review of the medical records introduced into evidence reveals that claimant had no similar complaints or symptomology prior to the March 17, 2002, incident at ConAgra except for the one bout of back pain approximately 10 years earlier.

Claimant’s burden was proof of a causal connection between his accident and his disc injury by a preponderance of the evidence. On this record, the WCJ was clearly wrong in failing to find that Bud-din’s back condition was causally connected to the March 17, 2002, accident. | flConAgra is therefore obligated to pay for all medical treatment associated with claimant’s disc injury.

However, we decline to award the penalties and attorney fees requested by claimant, finding that due to the time span between the injury and surgery ConAgra had some factual and medical information to controvert the claim. See La. R.S. 23:1201(E); Brown v. Guide Corporation, 42,141 (La.App.2d Cir.05/09/07), 956 So.2d 808; Thomas v. Casino Magic, 39,725 (La.App.2d Cir.05/11/05), 902 So.2d 1283. Likewise, the employer did not act in an arbitrary or capricious way or without probable cause in failing or refusing to pay claimant’s benefits. See La. R.S. 23:1201.2; Hubbard v. Allied Building Stores, Inc., 41,534 (La.App.2d Cir.11/03/06), 942 So.2d 639.

Conclusion

For the reasons set forth above, the judgment of the Workers’ Compensation Judge is REVERSED. We hereby RENDER judgment in favor of claimant, Donald Buddin, awarding him medical benefits for his disc injury. Claimant’s request for penalties and attorney fees is denied. Costs are assessed to defendant, ConAgra Poultry Company.

      . ConAgra now operates as Pilgrim's Pride Corporation but will be referred to throughout this opinion as ConAgra.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Barry Lacurtis RIDEOUT, Appellant.
    No. 42,689-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.

      Mark O. Foster, for Louisiana Appellate Project Appellant.
    Paul J. Carmouehe, District Attorney, William J. Edwards, John Ford McWil-liams, Jr., Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

LA jury convicted defendant of aggravated rape and molestation of a juvenile after the 13-year-old victim delivered a full-term baby, and the father’s identity was revealed. The defendant engaged in sexual intercourse with the victim four to five times, beginning when she was age 12. The trial court sentenced defendant to life imprisonment at hard labor without benefits for aggravated rape, ten years at hard labor for molestation of a juvenile, and ordered the sentences served concurrently. Defendant was also ordered to register as a sex offender. Defendant appeals. Finding no error, we affirm the convictions and the sentences.

Facts

The defendant, Barry Lacurtis Rideout, and his wife and children moved to Shreveport in 2003, to manage an apartment complex. Defendant presented himself as an assistant pastor affiliated with a nondenominational Seventh Day Adventist Church, and began teaching bible study classes in his office at the complex. The victim’s family moved here in December 2003, and they lived in another apartment complex. Her mother became acquainted with defendant at her place of employment and started attending the bible study with her two daughters. The victim, whose initials are RSM, was the younger daughter. RSM and her sister would hang around with defendant’s family and also began babysitting the younger children, including an infant and a toddler, at defendant’s apartment. RSM testified she talked to defendant because he was a pastor.

|Jn late June or the very beginning of July, both families drove separate vehicles to California so RSM’s mother could attend a retreat for cancer treatment. RSM’s family stayed in Fresno, and defendant took his family to his mother’s home in San Bernardino. While the mother was at the retreat, defendant took RSM and her sister to the beach for a family outing. The next time the girls went with the defendant and his children, they left California and defendant drove their mother’s car back home to Louisiana. The mother testified defendant did not have permission to take her daughters from California back home.

RSM’s mother did not return home until several weeks later. During this interval, the initial act of intercourse between the defendant and victim occurred. RSM testified that she and defendant engaged in sexual intercourse four or five times between July and December 2004. She described the first time in July as occurring in a parked car in Bossier City where her grandparents lived. Subsequently, one or two sexual acts occurred in either defendant’s vehicle and/or his Country Club apartment after she went back to school. Another intervening act apparently occurred after defendant moved into a new apartment at Summertree Apartments on September 9, 2004. The final occasion occurred in December 2004, in Shreveport, when RSM was 4½ months pregnant. During all of these times, defendant was 41 years old. RSM turned 13 on October 28, 2004.

As a result of her pregnancy, an infant daughter was delivered on June 29, 2005. The baby was considered “term,” and this indicated a pregnancy of between 38 and 44 weeks.

' | ..¡Defendant was ultimately arrested and DNA testing was performed on him and the child. The crime lab’s DNA analyst testified at trial concerning the DNA testing results which concluded that the relative probability of defendant’s paternity was .9999, and the likelihood of his paternity was 19.7 million times more likely than anyone else.

After a two-day jury trial, the defendant was convicted of aggravated rape and molestation of a juvenile. The trial court sentenced him to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the aggravated rape conviction, and ten years imprisonment at hard labor for the molestation conviction. Both sentences were ordered to be served concurrently, and defendant was further ordered to register as a sex offender. Defendant appeals his convictions and sentences.

Discussion

Defendant first combines two assignments of error, arguing that the jury was obliged to make a factual determination as to the parish in which the offending conduct occurred as an element of the crimes. He argues that (1) the evidence was insufficient to prove the victim was under age thirteen when the sexual acts occurred in Caddo Parish, and (2) the trial court should have instructed the jury to focus on the Caddo Parish incidents in determining not only when, but where the offenses occurred.

The defendant’s assertions raise the issue of venue. All criminal trials shall take place in the parish where the offense occurred. La.C.Cr.P. art. 611. Contrary to the suggestions of the defense argument, neither of the |4two crimes of conviction, aggravated rape and molestation of the juvenile, has an offense element concerning the place of the crime.

La.C.Cr.P. art. 615 provides:

Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

Under this article, if the defendant feels that he is being charged for an offense that occurred in another parish, or that the State cannot prove the venue of the alleged crime, he must raise the issue before trial by a motion to quash, and it must be decided by the court before trial. State v. Clark, 02-1463 (La.6/27/03), 851 So.2d 1055; State v. Gatch, 27,701 (La. App.2d Cir.2/28/96), 669 So.2d 676, unit denied, 96-0810 (La.9/20/96), 679 So.2d 429. The reduced burden of proof listed in Article 615 demonstrates that the venue of the crime is not an element of the crime. Accordingly, defendant’s failure to file a motion to quash waives any issue of venue.

One other aspect of defendant’s argument, which also misses the import of Article 615, is his claim that the state’s presentation of evidence of defendant’s additional sexual misconduct in Bossier Parish required a special venue instruction for the jury. The state raised in its pre-trial motion the defendant’s Bossier Parish sexual misconduct as allowable other crimes evidence. Again, if that same evidence of defendant’s Bossier Parish actions with the victim represented the only evidence of aggravated rape, making prosecution in Caddo Parish improper, the defendant was obliged to raise venue through the pretrial motion to quash. No special jury |sinstruction was therefore required because the substance of defendant’s arguments relate to venue.

Moreover, RSM testified the defendant molested her in Shreveport while he was moving into the Summertree apartment. Defendant leased the Summertree apartment on September 9, 2004. The evidence adduced at trial clearly showed that the baby was born on June 29, 2005. The gestational period of between 266 days and 308 days meant that conception occurred between August 25, 2004 and October 6, 2004, in advance of RSM’s thirteenth birthday on October 28, 2004. Therefore, it is clear that defendant’s sexual misconduct with the victim occurred in Caddo Parish before she turned 13.

Accordingly, the assignments of error concerning venue and the sufficiency of the evidence of the venue of the crime are without merit.

Defendant’s final assignment argues that the aggravated rape statute, La. R.S. 14:42 as it existed in 2003 was defective and unconstitutionally vague, resulting in an illegal sentence being imposed on the defendant in violation of his constitutional rights.

Prior to its 2003 amendment, La. R.S. 14:42(A) defined aggravated rape as follows:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
*****
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

Ijn 2003, the legislature through Act No. 795, effective August 15, 2003, changed the age of the victim, providing that aggravated rape occurs “[W]hen the victim is under the age of thirteen years.” Previously in 1997 the penalty provisions of the aggravated rape statute, La. R.S. 14:42(D), were amended and re-enacted to add the death penalty for rape of a child under 12 years of age. Acts 1997, No. 898. Act 795 of 2003 did not adjust this death penalty provision for the rape of a child under 13. Therefore, at the time of the instant offense, the penalties for aggravated rape provided as follows:

D.(l) Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
(2) However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.

In 2006, the state legislature amended La. R.S. 14:42(D)(2) by Acts 2006, No. 178, effective August 15, 2006, “to change the penalty provisions of the crime relative to the age of the victim to conform to the definition of the crime.” Therefore, the penalty provision under subpart (D) was amended, as follows:

17P. (2) However, if the victim was under the age of thirteen years, as provided by Paragraph (A)(4) of this Section:

A statute is presumed to be valid and its constitutionality should be upheld whenever possible. State v. Thomas, 04-559 (La.1/19/05), 891 So.2d 1233; State v. Griffin, 495 So.2d 1306 (La.1986). Louisiana criminal statutes must be “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3. Constitutional challenges may be based upon vagueness. State v. Walker, 26,026 (La.App.2d Cir.5/4/94), 637 So.2d 583, writ denied 94-1369 (La.9/30/94), 642 So.2d 868; State v. Gamberella, 633 So.2d 595 (La.App. 1st Cir.1993), writ denied 94-0200 (La.6/24/94), 640 So.2d 1341. Failure of a sentencing portion of the statute does not invalidate the entire statute. State v. Drew, 360 So.2d 500 (La.1978).

Defendant argues that in 2004 upon the commission of his crime, there was no clear punishment for aggravated rape of a child between 12 and 13 years of age. We disagree. To the extent that Act 795 of 2003 failed to amend the death penalty provision of La. R.S. 14:42(D)(2) to make applicable its effect for the rape of a child between those ages, the general sentencing provision of Section (D)(1) of the statute applied. In all cases where the district attorney was not otherwise provided the option to seek the death penalty, the life sentence of Section (D)(1) was clearly applied to all aggravated rapes following the statutory amendment in 2003.

This assignment of error is without merit.

| s Conclusion

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

AFFIRMED.


author: STEWART, J.

text:
    Marvin GARRETT, et al., Plaintiffs-Appellants v. CITY OF MINDEN, Defendant-Appellee.
    No. 42,664-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.

      Ronald J. Miciotto, Shreveport, for Appellants.
    L. Charles Minifield, for Appellee.
    Before STEWART, GASKINS and CARAWAY, J J.
   STEWART, J.

11 Current and former employees of the City of Minden’s police department appeal the trial court’s dismissal by summary judgment of their claims for back pay and other pay adjustments stemming from the transfer of two city employees to positions with the fire department. Finding that there is no genuine issue of material fact and that the City is entitled to judgment as a matter of law, we affirm.

FACTS

The plaintiffs, current and former employees of the City of Minden’s police and fire departments, filed suit for back pay and other pay adjustments. Their claims stem from the City’s transfer of two employees, Brent Hunt and Gary Moreland, to the fire department and the inclusion of longevity pay earned by the two men while employed by the City in calculating their starting salaries as firemen. Neither Hunt nor Moreland was ever employed by the police department. Nevertheless, the police plaintiffs assert that because the City maintained an equal pay scale for employees of the police and fire departments, the starting salaries of Hunt and Moreland as firemen were greater than the starting salaries under the pay scale and thus a violation of Louisiana’s civil service law.

After answering the plaintiffs’ petitions, the City filed a motion for a partial summary judgment with regard to the claims of the police department plaintiffs, who are as follows: Marvin Garrett, Dedrick Anderson, Keith Banta, Ricky Bridges, Wayne Chandler, Richard Cooper, Tuffy Dubois, Shane Griffith, Shawn Grooms, Julie Harmon, Debbie Haynes, Mike Hughes, Mark Keough, Keith King, Jr., Tony Matteson, Sam Mims, KirkJ^Morgan, Tim Morris, Ron Payton, Murphy Robertson, Willie Shed, Spencer Tippen, John Tucker, Scott Tucker, Dan Weaver, Doug Weaver, Charlie Young, Seth Young, George Salsberry, Jr., Freddie Jenkins, and Mildred Johnson. The City asserted that neither Hunt nor Moreland ever worked for the Minden Police Department, that the pay for the fire and police departments are governed by different statutes with different requirements, and that the City’s police pay met statutory and city law requirements and was not affected by the transfer of Hunt and Moreland to the fire department.

Asserting that an issue of fact remains as to whether the police and fire departments are subject to identical pay scales and entitled to compensation for pay variances created by the transfer of Hunt and Moreland to the fire department, the police department plaintiffs opposed the City’s motion. They argued that including longevity pay in the starting salaries for the two transferees gave them higher starting salaries than that being paid to employees of higher ranks and thus violated the City’s equal pay scale and the principle of equal pay for equal duty set forth in La. R.S. 33:1969.

In granting the City’s motion for summary judgment and dismissing the police department plaintiffs’ claims, the trial court concluded that the plaintiffs pointed to no statutory authority requiring the two departments to be treated equally and did not show that the transfer of Hunt and Moreland to the fire department had an adverse effect on the required minimum pay of police officers. Plaintiffs have appealed the trial court’s judgment.

| .DISCUSSION

The summary judgment procedure is favored and shall be construed so as to accomplish the just, speedy, and inexpensive determination of every action, except those disallowed by law. La. C.C.P. art. 966(A)(2). Summary judgments are subject to de novo review on appeal. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law, then summary judgment shall be granted. La. C.C.P. art. 966(B); Patton v. Strogen, 39,829 (La.App.2d Cir.8/17/05), 908 So.2d 1282, unit denied, 2005-2397 (La.3/17/06), 925 So.2d 548.

No genuine issue of material fact is in dispute. Rather, a question of law is presented by the issue of whether the City’s police department employees are entitled to back pay or pay adjustments due to the inclusion of Hunt’s and Moreland’s previously earned longevity pay in calculating their starting salaries with the fire department.

Although the plaintiffs maintain that the City uses identical pay scales for the fire and police departments, they did not cite any law mandating equal pay between the police and fire departments. Both parties offered certified copies of minutes from a meeting of the Minden City Council on October 3, 1977, at which the council adopted a personnel package that provided for longevity pay for full-time City employees, excluding the fire department. Also submitted by both parties were certified minutes from a RMinden City Council meeting on January 4, 1999, at which the council revised the City’s Compensation Plan Policy to clarify that the civil service employees of the police and fire departments would continue to be paid in accordance with the Louisiana Revised Statutes. Neither the personnel package from 1977, nor the compensation plan from 1999, includes provisions mandating parity of pay between the fire and police departments. We note that Moreland and Hunt transferred to the fire department prior to adoption of the 1999 revised Compensation Plan Policy, which prohibits the transfer of longevity pay to other positions.

The legislature has plenary power over the minimum wage to be paid firemen and policemen. La. Const, art. 6, § 14(A)(2)(e); Bryant v. City of Baton Rouge, 615 So.2d 884 (La.App. 1st Cir.1992), units denied, 616 So.2d 708 (La.1998). The minimum monthly salary to be paid firefighters in municipalities having a population of twelve thousand or over is set forth in La. R.S. 33:1992. The basic minimum monthly salary for a fireman is $400, and minimum salaries for the various ranks are designated by specific percentages above the basic fireman pay. Longevity pay for fire department employees is also provided for those with three years of continuous service. La. R.S. 33:1992(B). However, the minimum monthly salaries for employees of police departments in municipalities with populations of not less than twelve thousand people are set forth in La. R.S. 33:2212. The minimum monthly salary of a full-time police department employee is $300, and each superior rank is paid an increasing dollar amount. Neither statute provides for nor requires parity of payment between the two departments.

| ¡Moreover, the plaintiffs’ reliance on La. R.S. 33:1969 as requiring equal pay between the two departments is misplaced. La. R.S. 33:1969 provides that “[e]qual recognition and compensation shall be received for equal performance of duty and responsibility.” However, this mandate is found in Subpart A of Part II of Title 33 and applies only to paid fire departments operated by municipalities with populations of thirteen thousand or more and to “firemen paid by any parish or fire protection district.” La. R.S. 33:1961; La Grange v. Fire Protection Dist. No. 4 of St. Tammany Parish, 2003-0240 (La.App. 1st Cir.11/7/03), 868 So.2d 40. The parity provision has no application to police department employees.

In a similar case, a claim for parity of compensation among Police Communications Officers (“PCO’s”), Emergency Medical Services Communications Officers (“EMSCO’s”), and Fire Communications Officers (“FCO’s”) was brought against the City of Baton Rouge and East Baton Rouge Parish in Bryant, supra. Although the trial court granted the PCO’s and EM-SCO’s claims to be paid equally to the FCO’s, the decision was reversed on appeal. The first circuit examined the provisions of La. Const, art. 10 that establish the municipal fire and police civil service system and provisions governing that system to determine if parity of pay between similar positions in the different departments was required. The court noted that La. Const, art. 10, § 10 empowered State and City Civil Service Commissions to adopt uniform pay plans. However, the court found “no similar constitutional, statutory, or jurisprudential parity of pay requirement in the Municipal Fire and Police Civil Service System” and concluded that |Rthe trial court erred as a matter of law in concluding that the pay plans for the different departments were deficient and illegal and in ordering that pay for the PCO’s and EMSCO’s be brought up to the level of that for the FCO’s.

The same conclusion as in Bryant, supra, is reached here. There is simply no authority to support the police plaintiffs’ claim. They are not entitled to parity of payment with fire department employees under any applicable law. Therefore, the payment of fire department employees has no effect on the payment system for the police department. The City is entitled to judgment on the claims of the police department plaintiffs as a matter of law. Summary judgment was properly granted.

CONCLUSION

For the reasons stated, the trial court’s judgment dismissing the claims of the police department plaintiffs listed herein is affirmed. Costs are assessed to appellants.

AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Willie Bill HICKERSON, Appellant.
    No. 42,639-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.

      Louisiana Appellate Project by William Jarred Franklin, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

|, Willie Bill Hickerson pled guilty to attempted aggravated rape upon the dismissal of other serious charges. After the trial court reviewed a presentence report, it imposed the maximum sentence of 50 years at hard labor. Hickerson appeals his sentence.

Between the dates of April 1 and June 24, 2005, the defendant committed aggravated rape upon his seven-year-old granddaughter, C.L., by having sexual intercourse with the child. At the time of the offense, the victim was seven years old, and the defendant was 39. The defendant was originally charged with two counts of aggravated rape and one count of aggravated incest. In exchange for his guilty plea to attempted aggravated rape, the remaining charges of aggravated rape and aggravated incest were dismissed.

The defendant argues that:

• the trial court sentenced him as if the originally charged crime of aggravated rape had occurred and had been committed upon multiple victims;
• none of his prior felony convictions were for violent or sexual crimes; and
• he was not such an egregious offender as to deserve such a harsh sentence.
The state responds that:
•the facts of this case and the defendant’s criminal history support the 50-year sentence;
•the trial court had the benefit of a presentence investigation report; and _J¿the defendant received considerable benefit from the related dismissals.

Our law on the review of sentences is well settled.

Before imposing sentence, the trial court carefully reviewed the sentencing guidelines as found in La. C. Cr. P. art. 894.1. In particular, the trial court examined the defendant’s criminal record as outlined in the presentence investigation report and statements from the victim’s family. The trial court noted that the defendant had a significant criminal history which included convictions for simple burglary, theft, and illegal possession of stolen things. Moreover, there were presently two outstanding warrants for the defendant’s arrest in Tan-gipahoa Parish issued on February 27, 1996, as a result of his failure to appear in court for sentencing for two felony convictions. Further, the victim’s mother expressed her desire that the | .-¡defendant should never have the opportunity to be released into society to cause any harm to other children.

The defendant’s sentence is not overly severe given the circumstances of the case and the defendant’s background. The defendant’s sexual abuse of his young granddaughter who was entrusted to his care has caused the child to suffer great emotional upset, according to the PSI. The victim is presently attending counseling at the Gingerbread House in Shreveport and will require counseling for an extended period of time. This predator had exposure to the death penalty as originally charged. The plea agreement has already given him more benefit than deserved.

In light of the fact that the record does not contain any mitigation in support of a lesser sentence and because the defendant poses such a significant threat to society, particularly young children, the 50-year sentence does not shock the conscience of the court or appear to be a needless imposition of pain and suffering.

On this record, we find no constitutional error. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

Error Patent

La. C. Cr. P. art. 930.8 provides that, at the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief. The record in this case indicates that the trial court incorrectly informed the defendant that he had “two years to file for post-conviction relief.” This code article does not bestow an enforceable right on |4a defendant. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. The defendant is now advised by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if 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.

In addition, the trial court neglected to indicate that the 50-year hard labor sentence is to be served without benefit of parole, probation, or suspension of sentence, which we now clarify.

DECREE

The defendant’s conviction is AFFIRMED. His sentence is amended to include that it is to be served without benefits, and is, as amended, AFFIRMED.

      . The initials of the victims are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. 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 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 art. 894.1, not 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 art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.
      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 purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; 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. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; 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. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.


author: SULLIVAN, Judge.

text:
    Charles HARRISON v. Dr. Andrew MINARDI, et al.
    No. 07-514.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Dean J. Guidry, Attorney at Law, Lafayette, Louisiana, for Plaintiff/Appellant, Charles Harrison.
    Marc W. Judice, Judice & Adley, Lafayette, Louisiana, for Defendant/Appellee, Dr. Andrew Minardi.
    Chuck R. West, West & Vidrine, Ville Platte, Louisiana, for Defendant/Appellee, Rapides Healthcare System, L.L.C.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

L Charles Harrison appeals the dismissal of his claims against Dr. Andrew Minardi for his failure to post a cash or surety bond as provided in La.R.S. 40:1299.47(I)(2)(c). For the following reasons, we affirm.

Facts

On December 19, 2006, Mr. Harrison filed this medical malpractice suit against Dr. Minardi and Rapides Healthcare System, L.L.C. d/b/a/ Savoy Medical Center (Savoy Medical Center) for damages he allegedly suffered as a result of medical treatment rendered by Defendants. In his Answer, Dr. Minardi sought to enforce the requirement of La.R.S. 40:1299.47(I)(2)(c) that the plaintiff in a medical malpractice suit post a cash or surety bond in the amount of all costs of the medical review panel when the medical review panel’s opinion was unanimous in favor of the defendant healthcare provider. Shortly thereafter, Dr. Minardi filed a Rule to Show Cause, requesting that the trial court order Mr. Harrison to comply with this provision.

A hearing on the Rule to Show Cause was held on February 16, 2007. During the hearing, counsel for Mr. Harrison made the trial court aware that he had alleged in the petition that Mr. Harrison was indigent and unable to post cash or a surety bond as required by La.R.S. 40:1299.47(I)(2)(c). The trial court observed that until Mr. Harrison complied with the requirements of La.Code Civ.P. art. 5183 and provided affidavits concerning his income and assets, his request to proceed informa pawperis was not before the court. Counsel for Mr. Harrison acknowledged that he did not have the documentation needed for the trial court to grant Mr. Harrison pauper status and that the trial court did not have a choice but to grant Dr. Minardi’s request that he post a cash or surety bond. The trial court granted Mr. Harrison thirty hdays, or until March 19, to post a cash or surety bond and stated that Mr. Harrison’s failure to comply with the order would result in dismissal of his claims against Dr. Minardi.

Mr. Harrison’s counsel questioned whether he could get a hearing on Mr. Harrison’s status as a pauper, if the required affidavits were filed within that thirty days, acknowledging, “I don’t get a hearing within thirty days then I am beyond ... that time in which I should have posted a surety bond, so I have to make an application before then to hear the issue.” The trial court observed that it could not prejudge the issue but stated that it would be inclined to consider a stay of its order requiring a cash or surety bond if the affidavits were filed and a stay was requested before March 19. On February 28, the trial court signed a Judgment on Motion to Enforce Provisions of .La.R.S. 40:1299.47(D(2)(c) which conformed with his oral ruling.

On March 22, Mr. Harrison filed a motion, requesting that the trial court “reconsider and rescind its previous order denying pauper status and compelling” him to post cash or a surety bond. The motion also requested an immediate emergency hearing to address an appeal of the February 28 order “if rescission of it is not granted.” The motion included an order allowing Mr. Harrison to proceed without paying costs in advance. The motion did not include an order rescinding the prior order requiring him to post a bond or an order setting a hearing on his request. Affidavits executed by Mr. Harrison and another person attesting to Mr. Harrison’s inability to pay court costs were attached to the motion. The affidavits are dated | aMarch 15. On March 26, the trial court crossed out the order to allow Mr. Harrison to proceed as a pauper, wrote “[m]otion denied as untimely” under it, and signed the modified order. ■ That same day, the trial court signed an Order of Dismissal, dismissing Dr. Minardi without prejudice.

On March 30, Mr. Harrison filed a Motion for New Trial and/or Motion and Order for Suspensive Appeal. The trial court denied the Motion for New Trial, noting that “[n]o reason exists for a new trial,” but granted the Motion for Suspen-sive Appeal. Pauper status was granted for purposes of the appeal only.

On appeal, Mr. Harrison assigns three errors: 1) La.R.S. 40:1299.47(I)(2)(e) is unconstitutional, 2) the trial court erred in failing to address his request to proceed as a pauper before it signed the Order of Dismissal, and 3) the trial court erred in denying his Motion for New Trial.

Discussion

Unconstitutionality of La.R.S. 40.1299.47(I)(2)(c)

The unconstitutionality of a statute is not properly before an appellate court unless it was specifically pled in the trial court, and the grounds for the claim were particularized. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-450 (La.4/27/07), 956 So.2d 578. Mr. Harrison did not contest the constitutionality of La.R.S. 40:1299.47(I)(2)(c) in the trial court. Therefore, this assignment of error is not properly before this court.

Dismissal of Dr. Minardi

Mr. Harrison contends that the trial court erred in failing to consider his status as a pauper before it signed the Order of Dismissal and in denying his motion for new trial. He urges that upon receipt of his affidavits, La.Code Civ.P. art. 5183 required |4the trial court to immediately reconsider his request to proceed as a pauper, even though his affidavits were submitted after the March 19 deadline to post a cash or a surety bond.

The Code of Civil Procedure provides a procedure for one who cannot afford to pay court costs to prosecute litigation without paying court costs in advance. La.Code Civ.P. arts. 5181-5188. This is a privilege, not a right, and one seeking to take advantage of this privilege must apply for permission to do so and must submit specific documentation. La.Code Civ.P. art. 5183. The request to exercise this privilege can be made in the applicant’s first pleading or later in an ex parte motion. Id. The grant of this privilege is within the trial court’s discretion, and denial of the privilege can be reversed only if the trial court abused its discretion. Hollins v. Moore, 220 So.2d 103 (La.App. 3 Cir.1969); Hollier v. Broussard, 220 So.2d 175 (La.App. 3 Cir.1969).

The Judgment on Motion to Enforce Provisions of La.R.S. 40:1299.47(I)(2)(c) allowed Mr. Harrison until March 19 to post a cash or surety bond in the amount of $3,062.03 and further ordered that “if plaintiff fails to post ... a cash or surety bond ... on or before [March 19], this Court will sign an Order Dismissing Dr. Minardi with full prejudice from the case sub judiee.”

Mr. Harrison missed the March 19 deadline and complains that the trial court erred in not considering his request because Article 5183 does not limit the time within which a litigant can seek permission to proceed as a pauper. This argument ignores the trial court’s authority to establish a deadline to post a bond and is without merit.

In Pearson v. Fontaine, 583 So.2d 493 (La.1991), the supreme court recognized a trial court’s authority to limit the time within which a litigant can file the documentation required to proceed as a pauper. The court issued a four-line order which does not recite the facts on which the writ application was premised, but one can glean from the order that the trial court set a deadline for the payment of costs and that the applicant wanted to qualify as a pauper to avoid payment of the costs. The supreme court ordered the trial court to allow the applicant fifteen days to comply with the requirements of Article 5183 and stayed the trial court’s deadline for the payment of costs until the applicant’s pauper request was considered. If the applicant failed to file an application to proceed in forma pauperis within the fifteen-day period, the stay order would automatically dissolve which would result in the litigant having to pay the costs. See also King v. Aetna Life & Casualty, 552 So.2d 73 (La.App. 3 Cir.1989), writ denied, 556 So.2d 1264 (La.1990), where this court held that the trial court did not err when it disallowed the plaintiffs request for a jury trial after she failed to post a jury bond as ordered and failed to timely seek reinstatement of permission to proceed as a pauper.

The trial court set a deadline by which Mr. Harrison had to post a bond. Mr. Harrison did not post a bond and did not seek permission to proceed as pauper by the March 19 deadline, although his counsel notarized the affidavits required by Article 5183 on March 15. Accordingly, we find no error with the trial court’s dismissal of Dr. Minardi.

Mr. Harrison sued Dr. Minardi and Savoy Medical Center. The trial court’s March 19 deadline was set in response to Dr. Minardi’s request to enforce the provisions of La.R.S. 40:1299.47(I)(2)(c). On March 22, Savoy Medical Center filed |fia Rule to Show Cause why Mr. Harrison should not be ordered to post the bond required by La.R.S. 40:1299.47(1)(2)(c). Mr. Harrison requested permission to proceed as a pauper in his petition, and when he submitted the affidavits required by La.Code Civ.P. art. 5183, his application for pauper status was complete. The completion of the application was untimely with regard to Dr. Minardi’s motion for the bond. However, because the completion preceded action by the trial court on Savoy Medical Center’s motion for the bond, the trial court should have considered it in connection with that motion.

Denial of New Trial

Mr. Harrison next asserts that the trial court erred when it denied his motion for new trial because his motion was timely filed. The trial court denied the motion for new trial finding “[n]o reason exists for a new trial,” not because it was untimely. Mr. Harrison apparently misread the trial court’s Order which denied the motion; the order states in part: “Consequently, plaintiffs filings were untimely and suit was dismissed. No reason exists for a new trial.” The filings referenced are Mr. Harrison’s pauper affidavits, not the Order dismissing Dr. Minardi. Therefore, Mr. Harrison’s arguments on this assignment of error are irrelevant; however, in the interest of justice, we will review the correctness of the trial court’s denial of a new trial with regard to its dismissal of Dr. Minardi.

Louisiana Code of Civil Procedure Article 1972 sets forth peremptory grounds for granting a motion for new trial. Our review of the facts establishes that none of these grounds exist here. Pursuant to Article 1972, a new trial must be granted when the judgment is contrary to the law and evidence, new evidence was discovered after the trial, and when the jury was bribed or has behaved improperly. The second and |7third grounds are completely inapplicable to the facts of this case and need not be addressed. As to the first ground, we have previously concluded that the trial court’s refusal to consider Mr. Harrison’s application to proceed as a pauper after its March 19 deadline to post a cash or surety bond was not error with regard to Dr. Minardi. For the same reasons, we find that refusal was not contrary to the law and the evidence; therefore, no peremptory ground for a new trial exists.

Louisiana Code of Civil Procedure Article 1973 allows a trial court to grant a new trial “if there is good ground therefor.” Hence, we are presented with the question of whether Mr. Harrison’s attorney’s failure to file the affidavits required by La. Code Civ.P. art. 5183 and request an order allowing Mr. Harrison to proceed as a pauper by the March 19 deadline is a good ground for granting a new trial.

In Gauthier v. Gauthier, 04-198 (La.App. 3 Cir. 11/10/04), 886 So.2d 681, writ denied, 04-3019 (La.2/18/05), 896 So.2d 15, this court held that an attorney’s failure to act is not a valid ground for a new trial. The appellant in Gauthier complained that the trial court erred in refusing to allow him to file his community property partition detailed descriptive list after the deadline to do so had expired. This court found no error, observing that the trial court had already granted the appellant an extension of the statutory deadline, that the new deadline was missed by a significant amount of time, and that no good reason for the delay was provided. This court specifically determined that the trial court did not abuse its discretion in declining to consider the untimely list and rejected the appellant’s argument that because his attorney’s negligence would result in a miscarriage of justice, he should be granted a new trial.

Counsel for Mr. Harrison notarized the pauper affidavits on March 15 but did nothing more until after the March 19 deadline. He did not seek an extension of the ^deadline and does not assert that he has a valid reason for not complying with the deadline. We find no error with the trial court’s denial of the motion for new trial.

Disposition

The dismissal of Dr. Andrew Minardi is affirmed. The matter is remanded for further proceedings consistent with this opinion.

AFFIRMED.

      . Mr. Harrison avers that his Motion Reurg-ing Motion Filed with Original Petition to Grant Petitioner Pauper Status Pursuant to La.C.C.P. art. 5181 et seq. was filed by facsimile on March 21; however, there is no documentation in the record which establishes that the Motion was filed before March 22. Whether the motion was filed March 21 or March 22 has no bearing on the merits of Mr. Harrison’s claims.


author: GENOVESE, Judge.

text:
    Elizabeth HIGGINBOTHAM, and Cynthia Marie Kuhlmann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann v. The RAPIDES FOUNDATION d/b/a Rapides Regional Medical Center, Joseph Wiltz and ABC Insurance Company.
    No. 07-538.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Leonard M. Berins, Gerald Wasserman, Bach & Wasserman, Metairie, LA, for Plaintiffs/Appellants, Elizabeth Higginbotham and Cynthia Marie Kuhl-man, individually and on behalf of her minor son, Dustin Alexander Kuhlman.
    Randall M. Seeser, Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees, Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical Center and Health Care Indemnity, Inc.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiffs, Elizabeth Higginbotham and Cynthia Marie Kuhlmann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann, appeal the trial court’s dismissal of them claims against Defendants, Rapides Healthcare System, L.L.C., doing business as Rapides Regional Medical Center (Rapides), and its liability insurer, Health Care Indemnity, Inc. (Health Care), pursuant to summary judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 19, 2001, Plaintiff, Elizabeth Higginbotham (Ms. Higginbotham), went to Rapides to visit her daughter, Cynthia Kuhlmann (Mrs. Kuhlmann), who was in the hospital following childbirth. Upon arrival, Ms. Higginbotham parked her vehicle at the corner of Fifth Street and Scott Street in Alexandria, Louisiana. After the visit, Ms. Higginbotham left the hospital accompanied by her two-year-old grandson, Dustin Kuhlmann. While in the process of loading her grandson into the back seat of her automobile, Ms. Higginbotham was mugged by Defendant, Joseph Wiltz (Wiltz). According to Ms. Higginbotham, Wiltz approached her from behind as she was leaning into her back seat, forcefully wrestled her grandson’s duffle bag from her, and ran away with the bag. Shortly thereafter, Wiltz was apprehended and arrested by the Alexandria city police.

On April 26, 2002, Plaintiffs filed suit against Rapides, its liability insurer, Health Care, arid Wiltz. Plaintiffs’ petition alleges: (1) that the attack aggravated Ms. Higginbotham’s “previously repaired spinal injury at the C6-7 level and [caused] a new injury at C4-5 and C5-6” which ultimately had to be treated through surgery; (2) that Dustin Kuhlmann suffered mental anguish and emotional distress as a result of [¿witnessing the attack on his grandmother; and (3) that Mrs. Kuhl-mann, who “was informed of the incident immediately after it occurred and while she was still a maternity patient[,]” suffered “shock and emotional trauma caused [to] her as a result of witnessing the mental anguish of both her mother and son” which “exacerbated the mental and physical stress normally attendant with the birthing process.” Plaintiffs asserted that Rapides was negligent in failing to safeguard Ms. Higginbotham and her grandson from known criminal activity around its premises and that Health Care was liable for Rapides’s negligence in accordance with its liability insurance policy insuring Rapides against such a claim.

On September 8, 2006, Rapides filed a motion for summary judgment asserting that it did not own, maintain, patrol, or secure either Fifth Street or- Scott Street, the city streets where the mugging occurred. Rapides further asserted that it did not owe a legal duty to protect Plaintiffs against a random and unforeseen ‘'criminal incident by an unknown third party occurring on a public or city street. In support of its motion for summary judgment, Rapides attached as exhibits: (1) excerpts of the deposition of Ms. Higginbotham; (2) the affidavit of Kevin Johnson, Rapides’s Director of Engineering and Construction Services; (3) excerpts of the deposition of Brian Jones, a hospital security supervisor; and (4) excerpts of the deposition of George Sanders, a hospital security officer.

A hearing on Rapides’s motion for summary judgment was originally set for October 23, 2006. However, Plaintiffs sought and were granted a continuance; the hearing was reset for December 18, 2006. Plaintiffs served their memorandum in opposition and opposing exhibits upon Rap-ides on Friday, December 15, 2006, less than three days before the scheduled hearing on Monday, December 18, 2006. IsRapides objected to and moved to strike Plaintiffs’ untimely served and filed opposition and opposing exhibits. On December 18, 2006, prior to the hearing on Rap-ides’s motion for summary judgment, Plaintiffs requested a second continuance in an effort to timely file an opposition; however, the trial court denied Plaintiffs’ request. Instead, Rapides’s motion to strike was granted, and Plaintiffs were barred from fifing an opposition and arguing on the basis that their opposition was untimely.

On January 5, 2007, the trial court issued written reasons for judgment concluding that Rapides owed no legal duty to Plaintiffs in this matter. On the same day, the trial court signed the judgment granting Rapides’s motion for summary judgment, thereby dismissing Plaintiffs’ action, with prejudice, against Rapides. Plaintiffs’ motion for devolutive appeal was granted by the trial court on February 8, 2007.

On February 2, 2007, Health Care filed a motion for summary judgment asserting that it was also entitled to a dismissal of Plaintiffs’ action, with prejudice, as a result of its insured, Rapides, being previously relieved of any liability in this matter. In support of its motion for summary judgment, Health Care attached as exhibits: (1) Plaintiffs’ first supplemental and amending petition; (2) its answer to Plaintiffs’ first supplemental and amending petition; (3) the trial court’s written reasons for judgment dated January 5, 2007; and (4) the trial court’s judgment signed on January 5, 2007.

In their opposition to Health Care’s motion, Plaintiffs argued:

[Pjending the outcome of the appeal of the [sjummary [jjudgment granted in favor of the hospital, it would be unfair and unjust to dismiss Health Care ... on the grounds that the trial court has already dismissed its insured. Until the appeal process is complete, there can be no final | ¿determination as to whether or not this [cjourt was correct in granting [Rapides’s] [m]otion for [s]ummary [j]udgment, and it would be inappropriate to base the dismissal of [Rapides’s] insured on the basis of a [j]udgment upon which the Appellate Court has yet to rule.

Plaintiffs also offered as opposing exhibits: (1) the deposition of Ms. Higginbotham; (2) the deposition of Brian Jones; (3) the deposition of George Sanders; (4) the deposition of Nolan French; and (5) eleven reports from the Alexandria Police Department.

A hearing was held on Health Care’s motion for summary judgment on March 26, 2007. On March 30, 2007, the -trial court issued written reasons for judgment wherein it concluded that Health Care could not be liable for claims against Rap-ides when Rapides had been relieved of liability in the case. On April 30, 2007, the trial court granted Plaintiffs’ motion for devolutive appeal.

ASSIGNMENTS OF ERROR

Plaintiffs assert, in both of their appeals-before this court, that:

1. The trial court erred in striking and not considering Plaintiffs’ memorandum in opposition and opposition exhibits to the Defendant’s motion for summary judgment.
2. The trial court erred in excluding the police reports from evidence as inadmissible hearsay.
3. The trial court erred in not [sic] finding that there were no material issues as to fact and that, as a matter of law, a' summary judgment should be granted in favor of [Defendant.
4. The trial court erred in granting summary judgment in favor of Health Care unless and until such judgment was rendered final on appeal.

’ [.STANDARD OF REVIEW

This court “must review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Sens. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638 (citing Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773). Accordingly, we must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of showing that there are no genuine issues of material fact is borne by the mover. La.Code Civ.P. art. 966(C)(2). To satisfy this burden, the mover must present supportive evidence that the motion should be granted. Once the mover establishes a prima fa-cie showing, the burden of production shifts to the nonmoving party to present evidence of the existence of issues of material fact which preclude summary judgment. An adverse party may not rest on the pleadings but must set forth, by affidavit or -otherwise, specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967.

Colson v. Johnson, 01-967, pp. 1-2 (La.App. 3 Cir. 12/12/01), 801 So.2d 648, 650, writ denied, 02-103 (La.3/22/02), 811 So.2d 939 (quoting Mercury Cellular Tel. Co. v. Calcasieu Parish of La., 00-318, p. 4 (La.App. 3 Cir. 12/13/00), 773 So.2d 914, 917, writ denied, 01-126 (La.3/16/01), 787 So.2d 314).

DISCUSSION

Timeliness of Opposition

In their first two assignments of error,- Plaintiffs argue that the trial court erred in striking their memorandum in opposition arid opposing exhibits to Rap-ides’s | ^motion for summary judgment. We disagree. Rapides filed its motion for summary judgment on September 8, 2006. The trial court originally set this matter for hearing on October 23, 2006. Pursuant to Plaintiffs’ request on October 17, 2006, the trial court granted a continuance and reset the hearing for Monday, December 18, 2006. Not until Friday, December 15, 2006, did Plaintiffs serve Rapides with a copy of their memorandum in opposition and opposing exhibits. At the December 18, 2006 hearing, Rapides objected to and moved to strike Plaintiffs’ opposition and opposing exhibits on the basis that it was filed only three days prior to the hearing on the summary judgment, not the eight days required by La.Code Civ.P. art. 966(B). Plaintiffs requested another continuance. The trial court granted Rap-ides’s motion to strike Plaintiffs’ opposition and denied Plaintiffs’ motion for continuance.

Louisiana Code of Civil Procedure Article 966(B) (emphasis added) provides, in pertinent part:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing:. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall he served pursuant to Article ISIS at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary. . .

Uniform Rules of the District Courts Rule 9.9 (emphasis added) further provides, in pertinent part:

(b) A party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum must be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets, a shorter time.
|7(d) Parties who fail to comply with paragraphs (a) and (b) of this rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of untimeliness.

Finally, the Louisiana Supreme Court has declared:

The time limitation established by [La.Code Civ.P. art.] 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. See American Bank & Trust Company v. International Development Corporation, Inc., 506 So.2d 1234, 1235-36 (La.App. 1 Cir. 1987).

Buggage v. Volks Constructors, 06-175, p. 1 (La.5/5/06), 928 So.2d 536, 536.

It is clear in this case that Plaintiffs filed their opposition to Rapides’s motion for summary judgment three days prior to a hearing on the matter and that the hearing had already been continued once at the request of Plaintiffs. Thus, the filing was clearly not timely under either La.Code CivJP. art. 966(B) or Uniform Rules of the District Courts Rule 9.9. Given the facts, the law, and Plaintiffs’ lack of due diligence, we find no abuse of discretion by the trial court in excluding Plaintiffs’ opposition.

Duty

The trial court ruled that Rapides did not owe a duty to the Plaintiffs. In its written reasons for judgment, the trial court declared:

The [cjourt was not presented with any evidence suggesting that it was foreseeable that such an incident would occur in the time, place, and manner in which this incident occurred. The [c]ourt finds that Rapides owed no legal duty to protect Ms. Higginbotham from the unforeseeable, intentional act of a third person. “A business’s duty to take reasonable care for the safety of its patrons does not extend to unforeseeable or unanticipated criminal acts of independent third persons.” Vail v. Masker, 01-1443, p. 3 (La.App. 4 Cir. 3/6/02)[,] 812 So.2d 807, 809.

|RPlaintiffs assert that the trial court erred in finding that Rapides owed no duty to protect Ms. Higginbotham and her grandson from this mugging. The supreme court in Davis v. Witt, 02-3102, pp. 10-11 (La.7/2/03), 851 So.2d 1119, 1127, discussed the method by which a court must determine whether liability exists:

The standard negligence analysis we employ in determining whether to impose liability under [La.Civ.Code] art. 2315 is the duty/risk' analysis, which consists of the following four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing -about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318, 321-22.
Under a duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. As such, in order for liability to attach under a duty/ risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). See Roberts v. Benoit, 605 So.2d 1032 (La.1991), on rehearing, 605 So.2d 1050, 1051 (La.1991).

The question of whether a duty exists is a question of law. Bonds v. Abbeville Gen. Hosp., 00-1462 (La.App. 3 Cir. 4/4/01), 782 So.2d 1188. Similarly, the question of whether a particular risk is included within the scope of a particular duty is a legal issue to be resolved by the court. Id.

Using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, we must determine whether Rapides owed a duty to protect Ms. Higginbotham from a criminal attack by third parties under the facts of this case. •

| ¡¡Business owners have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. Id., (citing Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762). The supreme court has established a balancing test to determine foreseeability, stating:

The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.

Id., 782 So.2d at 1192 (quoting Posecai, 752 So.2d at 768).

The deposition testimony of Ms. Higginbotham indicates that the incident occurred in the city street, on the corner of Fifth Street and Scott Street. Although Plaintiffs contend that Rapides’s owed a duty to protect Ms. Higginbotham due to foreseeable criminal activity, Ms. Higginbotham testified that she was unaware of any other attacks on or near Rapides’s property. It is noteworthy that Ms. Higginbotham had been employed at a gift shop within the hospital from March 2001 until April 2001, just four months prior to her August 19, 2001 mugging and was, therefore, familiar with the hospital and its environs.

In his deposition, Brian Jones, a hospital security advisor, swore that he was unaware of any criminal incidents or offenses against persons such as robbery, theft, assault, battery, or rape, occurring on the hospital property for one year prior to Ms. Higginbotham’s mugging. He also testified that he patrolled near the general area of Ms. Higginbotham’s mugging approximately fifteen to twenty minutes before the 1 inincident, and he did not see any suspicious criminal activity on his routine security patrol.

In his affidavit, Kevin Johnson, Director of Engineering and Construction Services, swore that Rapides did not own, maintain, secure, or patrol the public or city streets known as Fifth Street and Scott Street in Alexandria. Likewise, George Sanders, a hospital security officer, testified in his deposition that Rapides did not patrol or secure the city streets.

Considering the evidence properly presented before this court, we find no legal basis on which to conclude that Rapides could have reasonably foreseen the attack on Ms. Higginbotham. The record does not support a finding that Rapides owed a duty to Ms. Higginbotham to protect her from this sort of attack under the factual circumstances of this case. Therefore, we find no legal error in the trial court’s ruling that in this scenario, Rapides had no legal duty to provide protection to Ms. Higginbotham from random and unforeseen criminal activity by an unknown third party occurring on a public street.

Finally, we also find no legal error in the trial court’s decision to grant Health Care’s motion for summary judgment. Health Care’s motion for summary judgment was solely related to its liability as the insurer of the hospital. Said summary judgment was not directed to the rehashing of the issue of liability which had been previously addressed in the prior motion for summary judgment. Plaintiffs’ introduction of affidavits, depositions, and inadmissible police reports are impertinent and immaterial to the issue of the insurer’s liability when the insured has been relieved of liability. As accurately articulated by the trial court, “a liability insurer Incannot be liable for claims against its insured when the insured itself is relieved of liability. Foster v. Hampton, 352 So.2d 197[ ] (La.1977).”

DECREE

For the foregoing reasons, the summary judgments of the trial court are affirmed. Costs of these appeals are assessed against Plaintiffs/Appellants, Elizabeth Higginbotham and Cynthia Marie Kuhl-mann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann.

AFFIRMED.

      . This judgment is on appeal under docket number 07-538.

      .This judgment is on appeal under docket number 07-692. Docket numbers 07-538 and 07-692 have been consolidated for purposes of this appeal.

      . These assignments of error are raised in 07-538.

      . This assignment of error is raised in 07-692.


text:
    Elizabeth HIGGINBOTHAM, and Cynthia Marie Kuhlmann, Individually and on Behalf of her Minor Son, Dustin Alexander Kuhlmann v. The RAPIDES FOUNDATION d/b/a Rapides Regional Medical Center, Joseph Wiltz and ABC Insurance Company.
    No. 07-692.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Leonard M. Berins, Gerald Wasserman, Bach & Wasserman, Metairie, Louisiana, for Plaintiffs/Appellants, Elizabeth Higginbotham and Cynthia Marie Kuhl-man, individually and on behalf of her minor son, Dustin Alexander Kuhlman.
    Randall M. Seeser, Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, Louisiana, for Defendants/Ap-pellees, Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical Center and Health Care Indemnity, Inc.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

For the reasons assigned in the companion and consolidated case of Elizabeth Higginbotham, et al. v. Rapides Healthcare System, L.L.C., et al., 07-538 (La.App. 3 Cir.10/31/07), 968 So.2d 1226, 2007 WL 3170996, the judgment of the trial court granting the summary judgment of Health Care Indemnity, Inc. is affirmed. Costs of this appeal are assessed against Plaintiffs/Appellants, Elizabeth Higginbotham and Cynthia Marie Kuhl-mann, individually and on behalf of her minor son, Dustin Alexander Kuhlmann.

AFFIRMED.


text:
    Thomas C. WILLIAMS v. Joyce B. WILLIAMS.
    No. 07-541.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Malcolm X. Larvadain, Edward Larva-dain, Jr. & Associates, Alexandria, Louisiana, for Plaintiff/Appellant, Thomas C. Williams.
    Eugene P. Cicardo, Jr., Attorney at Law, Alexandria, Louisiana, for Defendant/Appellee, Joyce Williams.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

| j Thomas C. Williams appeals that portion of a November 29, 2006 Judgment of Partition which ordered him to pay his former wife, Joyce B. Williams, reimbursement in the amount of $7,000.00. For the following reasons, we affirm.

FACTS

Thomas Williams and Joyce Williams were married on May 16, 1987. Two children were born of the marriage. Thomas Williams filed a Petition for Divorce on February 3, 1997. Joyce Williams answered the petition and filed a reconven-tional demand seeking, among other things, use and occupancy of the family residence. Pursuant to a stipulated judgment, Joyce Williams was awarded the use and occupancy of the family residence and its contents. She was ordered to pay the monthly mortgage payments on the residence pending partition of the community. A Judgment of Divorce was rendered on April 7,1998.

On November 17, 2003, Joyce Williams filed a Petition for Judicial Partition of Community Property. An order was signed on November 24 directing Thomas Williams to file a detailed descriptive list of all the community property assets and liabilities within 45 days.

Joyce Williams filed a sworn detailed descriptive list on June 14, 2006. Mr. Williams was served with that pleading on June 21, 2006. He did not file a motion to traverse, nor did he file his own sworn detailed descriptive list. On August 22, 2006, Joyce Williams motioned the trial court to deem her detailed descriptive list a judicial determination of the community of assets and liabilities between her and her ex-husband. Following a hearing, judgment was rendered on | ¡^September 25, 2006 declaring the sworn detailed descriptive list filed by Joyce Williams a judicial determination of the community formerly existing between the parties.

Joyce Williams then filed a motion to set the matter for trial. On November 20, 2006, trial was held as to the allotment of community property. The trial court ruled in open court that Joyce Williams would be awarded the former matrimonial home along with the household goods contained therein, together with all rights to her retirement with the State of Louisiana. In addition, judgment was rendered in favor of Joyce Williams and against Thomas Williams in the amount of $7,000.00, together with legal interest. A written judgment of partition was rendered on November 29, 2006. Thomas Williams filed a motion for appeal on December 27, 2006.

LAW AND DISCUSSION

Louisiana Civil Code Article 2365 provides in relevant part:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.

A former spouse is entitled to reimbursement for mortgage payments made on the community residence after a legal separation or divorce. Romero v. Romero, 457 So.2d 317 (La.App. 3 Cir.1984).

The burden of proof is on the party seeking reimbursement to show that separate funds existed and that those funds were used to satisfy a community obligation. Salsbury v. Salsbury, 27,062 (La.App. 2 Cir. 6/21/95), 658 So.2d 734.

|sIn his sole assignment of error, Thomas Williams asserts that the trial court was clearly wrong in awarding Joyce Williams a reimbursement claim in the amount of $7,000.00. More specifically, he claims that Joyce Williams did not meet her burden of proof with regard to her reimbursement claim because she failed to produce written documentation establishing the amount that she paid to satisfy the mortgage payments and because she failed to specifically state that she used her separate funds to pay the mortgage.

Joyce Williams counters that the trial court was correct in using the Judicial Determination of the Assets and Liabilities formerly existing between the parties in determining the amount of her reimbursement claim. In addition, Joyce Williams requests that this court amend the judgment of partition to correct, what she refers to as, a clerical error and change the amount of the judgment rendered against Thomas Williams from $7,000.00 to $7,300.00, the amount that the trial court stated that it was awarding in the transcript of the November 20, 2006 partition trial.

Louisiana law provides a procedure for a former spouse to have their sworn detailed descriptive list deemed a judicial determination of the community assets and liabilities if the other spouse fails to file their own detailed descriptive list. La.R.S. 9:2801(A). At the contradictory hearing requested by Joyce Williams, Thomas | ¿Williams presented the trial court with a document entitled “Community Assets— Items of Property and Location.” Therein, Thomas Williams sought an explanation as to the amount of maintenance that Joyce Williams claimed she had expended on the family residence as well as the amount of reimbursement that she claimed was due. Although the document was not sworn and it had not been filed into the record, the trial court allowed the document to be admitted as an exhibit. Nonetheless, the trial court cautioned Thomas Williams that he was at a disadvantage because of his lack of representation and explained that he would be stuck with what happened if he failed to file pleadings within the prescribed time frame. At the close of the hearing, the trial court orally ruled that Joyce Williams’s sworn detailed descriptive list was being judicially recognized as the community of assets and liabilities; it noted, however, that Thomas Williams would be able to offer some input as to how the items on the list would be divided at trial on the merits.

Both Thomas and Joyce Williams were represented by counsel at the November 20, 2006 partition trial. When asked by the trial court if he was interested in the house and assuming the mortgage, Thomas Williams answered in the negative. He testified that he had not made any mortgage payments since 1997. As stated previously, the parties were divorced by judgment dated April 7,1998.

| ^According to the detailed descriptive list filed by Joyce Williams and deemed a judicial determination of the community, she had made mortgage payments to Midland Mortgage Company since April 8, 1998. She had also expended $1,682.62 on maintenance and upkeep of the residence since the date of her divorce. Joyce Williams stated affirmatively on the record that she had made all of the payments on the mortgage since 1998. Upon cross-examination by counsel for Thomas Williams, Joyce Williams testified that she was having repair work done on the house. She was not questioned about her claim for reimbursement or how she arrived at any of the amounts listed on her detailed descriptive list. Before setting the amount of reimbursement due, the trial court specifically asked Thomas Williams if there was anything that he cared to add to the discussion. He again replied in the negative. The trial court then set the amount of reimbursement due at $7,300.00, with costs to be split.

The cases cited by Thomas Williams are not dispositive of the issue before us today because none involved a situation where the detailed descriptive list of one former spouse had been deemed a judicial determination of the community of assets and liabilities. See Salsbury, 658 So.2d 734; Rogers v. Rogers, 94-541 (La.App. 5 Cir. 12/9/94), 649 So.2d 7; McElwee v. McElwee, 93-1010 (La.App. 1 Cir. 8/17/94), 649 So.2d 975; and Romero, 457 So.2d 317.

On the other hand, in the cases cited by Joyce Williams, the trial court in both instances had deemed the detailed descriptive list filed by one of the former spouses to be a judicial determination of the community of assets and liabilities after the other spouse had failed to timely file their own detailed descriptive list. See Gauthier v. Gauthier, 04-198 (La.App. 3 Cir. 11/10/04), 886 So.2d 681 and Charles v. Charles, 05-129 (La.App. 1 Cir. 2/10/06), 923 So.2d 786.

In Gauthier, 886 So.2d at 688, this court held:

[Ojnce the court had adopted Ms. Gau-thier’s list as the judicial determination of the community property, Mr. Gauthier could not traverse that list. La.R.S. 9:2801. Thus, the trial court did not abuse its discretion in concluding that the evidence was sufficient to support the judgment, since Ms. Gauthier’s list represented the entire body of evidence the initial trial court could consider.

Similarly in Charles, 923 So.2d at 788, the first circuit stated:

Because the trial court had deemed at the April 6, 2004 hearing that Mildred’s sworn detailed descriptive list constituted a judicial determination of the community assets and liabilities, at the trial on the merits, the only issues before the trial court were the valuation of the 2000 Silverado truck and the patio cover, the distribution of these assets, the distribution of the Bank One and Hibernia Bank loans, any resulting equalizing payment that may have been due subsequent to the partition, see La. R.S. 9:2801 A(4), and Mildred’s claim for reimbursement.

Despite the fact that the trial court had previously deemed the detailed descriptive list filed by Joyce Williams a judicial determination of the community, Thomas Williams was free to challenge the reimbursement claim of his former wife at the November 20, 2006 partition trial. He produced no countervailing evidence at the trial to dispute Joyce Williams’s claim that she had paid all the mortgage payments due on the family residence, along with all maintenance and upkeep, since the date of the divorce. Likewise, his attorney did not cross-examine Joyce Williams regarding the source of the funds that she used to pay the aforementioned community debts.

17Joyce Williams’s burden of proof regarding her claim for reimbursement at the partition trial was satisfied by her having utilized the procedural vehicle of having her detailed descriptive list deemed a judicial determination of the community. Louisiana Revised Statutes 9:2801 affords the trial court broad discretion in resolving community property disputes. Crais v. Crais, 98-1477 (La.App. 4 Cir. 1/13/99), 737 So.2d 785, writ denied, 99-763 (La.5/14/99), 741 So.2d 668. Moreover, the judgment of a trial court is presumed correct, absent any record evidence indicating to the contrary. Steinhoff v. Steinhoff, 03-24 (La.App. 3 Cir. 4/30/03), 843 So.2d 1290. In view of the fact that Thomas Williams failed to file a scintilla of competent evidence into the record after his former wife petitioned the trial court to judicially partition the community, we cannot say that the trial court was manifestly erroneous or clearly wrong in concluding that the evidence was sufficient to support an award of $7,000.00 in favor of Joyce Williams on her claim for reimbursement.

Finally, because Joyce Williams did not answer this appeal or file an appeal .herself, we are unable to increase the judgment to reflect the amount that the trial court obviously intended to award her in reimbursement. La.Code Civ.P. art. 2133; Smith v. Municipality of Ferriday, 05-755 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, writ denied, 06-934 (La.9/29/06), 937 So.2d 860.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Thomas Williams is cast with all costs of this appeal.

AFFIRMED.

      . The order is silent as to what year it was signed, but there is a stamp at the bottom of the order indicating that it was filed and recorded on December 1, 2003.

      . Thomas Williams filed a motion to devolu-tively appeal the September 25, 2006 judgment on November 8, 2006, which the trial court granted. That appeal was dismissed, upon motion of Thomas Williams, by order dated February 26, 2007.

      . Louisiana Revised Statutes 9:2801 provides in pertinent part:
      (A) When the spouses are unable.to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either, spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
      (l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.

      . While we are cognizant that the following quote is located in the portion of the opinion discussing whether the trial court should have granted Mr. Gauthier’s motion for new trial, thus explaining the "abuse of discretion” standard referred to by the court, we nonetheless find the language relevant to the issue presented in this appeal.