author: LEON A. CANNIZZARO, JR., Judge.

text:
    Esther BLANKENSHIP v. OCHSNER CLINIC FOUNDATION, Dr. Dennis Kay, Dr. Timothy Dozier, and Dr. Edwin N. Beckman.
    No. 2006-CA-0242.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 2006.

      Karen Wiedemann, Wiedemann & Wied-emann, New Orleans, LA, for Plaintiff/Appellant, Esther Blankenship.
    Don S. McKinney, John L. Fontenot, Jr., Adams and Reese, L.L.P., New Orleans, LA, for Defendants/Appellees, Ochs-ner Clinic Foundation, Dennis Kay, M.D. and Edwin Beckman, M.D.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

It The plaintiff, Esther Blankenship, sued Ochsner Clinic Foundation, Dennis Kay, M.D., Timothy Dozier, M.D., and Edwin N. Beckman, M.D. for -medical malpractice. The trial court granted a summary judgment in favor of the defendants, and Ms. Blankenship is appealing that judgment.

FACTS AND PROCEDURAL HISTORY

At the end of 1999, Ms. Blankenship visited her primary care physician at Ochs-ner Clinic. He ordered an MRI of her spine, which showed a suspicious lesion on a lumbar vertebra. A bone imaging study of her full body was done, and the results also indicated a problem with the vertebra. Ms. Blankenship’s primary care physician suggested that she undergo a biopsy of the lesion affecting the vertebra.

Ms. Blankenship underwent the biopsy after her consent for the procedure was obtained. Dr. Kay, Dr. Dozier, and Dr. Beckman performed the biopsy. The | ¡.biopsy was completed, and a tissue specimen was obtained for further examination. Some bleeding was noted at the time of the biopsy.

Because the bleeding continued, a CAT scan was performed to locate the source of the bleeding. The CAT scan revealed that Ms. Blankenship’s bleeding resulted from the biopsy procedure. Ms. Blankenship was admitted to the intensive care unit at Ochsner Foundation Hospital and was hospitalized for seven days.

During her hospitalization, Ms. Blankenship received blood transfusions as a result of her blood loss. Ultimately, a consultation with a vascular surgeon was requested, and after interventional procedures were performed to stop the bleeding, Ms. Blankenship had no further signs of bleeding.

Ms. Blankenship filed a claim under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. The medical review panel found no negligence on the part of the clinic or the physicians involved in Ms. Blankenship’s care. After the panel’s report was issued, Ms. Blankenship filed suit against the defendants alleging that the physicians who performed the lumbar biopsy were negligent in severing one of her arteries. She further alleged that as a result of the negligence, she suffered “permanent and functional disability of her whole body which has diminished her ability to perform many of her daily personal, household, and leisure activities.”

Almost two years after Ms. Blankenship filed her petition, the defendants filed a motion for summary judgment on the grounds that Ms. Blankenship could |3not meet her burden of proof in her malpractice suit, because she did not have an expert witness to testify that the bleeding she suffered after the biopsy was caused by the defendants’ negligence. The trial court granted the motion for summary judgment and dismissed her case with prejudice. Ms. Blankenship moved for a new trial, which was denied. Ms. Blankenship is now appealing the decision granting summary judgment in favor of the defendants.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of 14material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

Assignment of Error

Ms. Blankenship has raised a single assignment of error. She contends that the trial court relied solely on the report of the medical review panel without any supporting affidavits to sustain the defendants’ motion for summary judgment.

The Defendants’ Burden of Proof

In the instant case the defendants filed the motion for summary judgment. Therefore, under La. C.C.P. art. 966, they had the initial burden of proof. They were required to present a prima facie case that there were no genuine issues of material fact. In support of their position, they submitted to the trial court the report of the medical review panel stating that “[t]he evidence does not support the conclusion that the defendants failed to meet the applicable standard of care as charged in the complaint.”

Ms. Blankenship challenged the defendants’ evidence by arguing that it was not in the form of a deposition or an affidavit and, therefore, could not be used as evidence in support of a motion for summary judgment. Thus, according to Ms. Blankenship’s argument, the defendants ... failed to produce the prima facie case that was required for the defendants to meet their burden of proof under La. C.C.P. art. 966.

In Williams v. Memorial Medical Center, 03-1806 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, this Court held that “[i]n a medical malpractice case, the medical review panel’s opinion is admissible as expert evidence on a motion for summary judgment.” This Court concluded that the findings of a medical review panel, “whose members are physicians actively working in their fields of expertise, |fiare based on the experts’ personal knowledge as gained through experience and may be considered in evaluating a summary judgment.” Id., quoting Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134, 1137. This Court also cited La. R.S. 40:1299.47(H) as a basis for admitting a medical review panel’s report as expert evidence to support a motion for summary judgment. That statute provides that the “report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant. ...”

We find that the medical review panel report, which stated that there was no negligence on the part of the defendants, was sufficient to present a prima facie case that they were not liable for Ms. Blankenship’s injuries. Therefore, the burden of proof shifted to Ms. Blankenship after the defendants presented their evidence.

Ms. Blankenship’s Burden of Proof

The plaintiffs burden of proof in a medical malpractice act is statutorily established. Pursuant to La. R.S. 9:2794(A)(l)-(3), a plaintiff in a malpractice action against a physician must prove:

(l)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
| fi(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

To avoid having the motion for summary judgment granted in favor of the defendants, Ms. Blankenship was required to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial. Nevertheless, she claimed that it was not necessary for her to present evidence from a medical expert to support the allegations in her petition. The defendants argued otherwise, contending that expert medical evidence was required.

In Broussard v. Andersson, 05-0006 (La.App. 4 Cir. 11/03/05), 921 So.2d 128, 132, this Court stated that “[t]o determine whether a physician possesses the requisite degree of knowledge or skill or whether he exercised reasonable care or diligence, the court is guided by expert witnesses who are members of the medical profession.... ” This Court also sated that “[t]he jurisprudence has recognized that an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.” Id., citing Williams v. Metro Home Health Care Agency, Inc., 02-0534 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228.

There are, however, some situations where the jurisprudence has recognized that expert testimony is not required to meet the plaintiffs burden of proof in a medical malpractice case. Pfiffner v. Correa, 94-0924, 94-0963, and 94-0992 (La.10/17/94), 643 So.2d 1228, 1230. In the Pfiffner case the Louisiana Supreme Court explained that a plaintiff in a medical malpractice case could prevail regarding the appropriate standard of care if a layperson can infer negligence from the facts presented at trial. Id. The Supreme Court itemized the situations in which a plaintiff need not present an expert medical witness in a malpractice case. |7The Supreme Court stated that “[ejxpert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.” Id. at 1233.

In Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991), the Louisiana Supreme Court found that “Louisiana jurisprudence has held that expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions to determine whether the defendant doctor possessed the requisite degree of skill and knowledge, or failed to exercise reasonable care and diligence.” This Court in Pierre-Ancar v. Browne-McHardy Clinic, 00-2409, 00-2410 (La.App. 4 Cir. 11/16/02), 807 So.2d 344, 348, stated that with a few exceptions, such as those described in the Pfiffner case, “because of the complex medical and factual issues involved in medical malpractice cases, a plaintiff will likely fail to sustain his or her burden of proving his or her claim under La. R.S. 9:2794 without medical experts.”

In Johnson v. State of Louisiana/University Hospital, 01-1972 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 371, this Court found that opinions of expert witnesses who are members of the medical profession and who are qualified to testify are generally necessary to determine whether or not a defendant in a medical malpractice action possessed the requisite degree of knowledge or skill or failed to exercise reasonable care and diligence in treating a plaintiff. Additionally, this Court stated in connection with a motion for summary judgment that “in the absence of counter-affidavits, it must be assumed that there is no dispute with regard to facts set forth in defendant’s affidavits and other documents submitted to support the motion.” Id.

|sIn the instant case, however, the alleged malpractice was not the type of malpractice that was described in the Pfiffner case from which a layperson could infer negligence without the benefit of expert testimony. Therefore, the instant case is not the type of medical malpractice case in which the plaintiff need not present expert medical evidence.

The Doctrine of Res Ipsa Loquitur

Ms. Blankenship also argues on appeal that she was entitled to rely on the doctrine of res ipsa loquitur to demonstrate that the defendants were negligent. Therefore, she contends that it was not necessary for her to present expert medical evidence in connection with the motion for summary judgment to dispute the evidence submitted by the defendants.

In Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 667 n. 11 (La.1989) (on reh’g), the Louisiana Supreme Court discussed the applicability of the doctrine of res ipsa loquitur in medical malpractice cases. The Supreme Court stated:

In medical malpractice actions based on res ipsa loquitur the plaintiff generally must use expert testimony to establish that the plaintiffs injury is a type which ordinarily would not occur in the absence of negligence. Lay jurors with common knowledge and ordinary experience cannot be expected to infer from the circumstances surrounding an injury incurred during medical procedures whether the health care provider failed to use reasonable care and whether this failure was a cause of the injury.

Thus, even in a malpractice case where the doctrine of res ipsa loquitur is applicable, the plaintiff is still required to present expert testimony to establish the standard of care that should have been used by the provider of medical services. The only exception to this requirement occurs when the injury is the result of an |gobviously careless act of the type described in the Pfiffrí&'r case from which a layman could infer negligence without the need for an expert witness.

Decision

Based on the foregoing discussion, we find that Ms. Blankenship was required to present medical evidence from an expert witness. To prevail on the motion for summary judgment, Ms. Blankenship was required to establish (1) the standard of care applicable to the defendants, (2) that the defendants breached that standard of care, and (3) that her injuries were caused by the defendants’ negligence in breaching the standard of care. La. R.S. 9:2794 A. Without evidence from an expert medical witness, Ms. Blankenship was not able to counter the report of the medical review panel finding that the defendants did not breach the applicable standard of care in their treatment of Ms. Blankenship. Because Ms. Blankenship did not produce factual support sufficient to establish that she would be able to satisfy her evidentia-ry burden of proof at trial, under La. C.C.P. art. 966(C)(2), there was no genuine issue of material fact. Therefore, she could not prevail against the defendants on the motion for summary judgment.

CONCLUSION

The trial court judgment is correct. Therefore, the judgment is affirmed.

AFFIRMED.

      . The facts are taken from the briefs and memoranda in this case. Although the facts are not in evidence, the parties appear to agree on the basic facts.

      . MRI, an acronym for magnetic resonance imaging, refers to a technique used to create images of organs of the body and other living tissue.

      .A lumbar vertebra is one of the bony segments in that part of the spinal column that is located in the lower back.

      . CAT scan, an acronym for computerized axial tomography scan, is an x-ray procedure that combines many x-ray images with the aid of a computer to generate cross-sectional views and three-dimensional images of the internal organs and structures of the body.


source: Caselaw Access Project

license: Public Domain

text:
    Roy Lee CHANEY v. HOME DEPOT, USA, INC., and Billy Rosen.
    No. 2005-CA-1484.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 2006.

      Gregory A. Dupuy, Clarence 0. Dupuy, Jr., Dupuy & Dupuy, Metairie, LA, for Plaintiff/Appellant, Roy Lee Chaney.
    Cornelius R. Heusel, Shelley M. Sullivan, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Defendant/Appellee, Home Depot U.S.A., Inc.
   LEON A. CANNIZZARO, JR., Judge.

hThe plaintiff, Roy Lee Chaney, filed suit against Home Depot U.S.A., Inc., alleging discrimination based on race in violation of the Louisiana Employment Discrimination Law, La. R.S. 23:301 et seq. Summary judgment was granted in favor of Home Depot and against Mr. Chaney. Mr. Chaney is now appealing that judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Background

Mr. Chaney began working for a Home Depot store in New Orleans as a seasonal employee in November 1996. He worked during the Christmas season selling Christmas trees, and he was paid at the rate of $7.25 an hour until he was laid off after the Christmas season. He subsequently returned to work as a full-time, permanent employee at the same Home Depot store in the gardening department in February 1997. Billy Rosen was the store manager at the Home Depot store while Mr. Chaney worked there.

| ?Mr. Chaney filed suit against Home Depot and Mr. Rosen alleging that Home Depot and Mr. Rosen discriminated against him because of his race, which was African American. Mr. Rosen was Caucasian.

Discriminatory Action

Mr. Chaney alleged that he was subjected to numerous acts of racial discrimination. The alleged discriminatory actions are summarized below.

The Oil Bottle Incident

Mr. Chaney was hit on the head with a bottle of oil that was thrown at him by a co-worker, who was not African American. The assistant manager on duty at the time told Mr. Chaney that being hit with a bottle of oil should not hurt a big “dude” like Mr. Chaney. When Mr. Chaney told the assistant manager that he did not feel well and wanted to go to the hospital, the assistant manager told Mr. Chaney he could go to the hospital but did not offer to call an ambulance or to have Mr. Chaney driven to the hospital. Mr. Chaney drove himself to the hospital where he was treated.

Mr. Chaney contended that the assistant manager’s actions discriminated against him based on his race, because when a Caucasian employee suffered from a leg cramp at a company picnic, an ambulance was called to transport that employee to a hospital for treatment. Mr. Chaney further contended that he suffered racial discrimination, because he was required to take two drug tests because of the incident involving the oil bottle, but the employee who hit him with the bottle was not required to take any drug tests in connection with the incident and was not disciplined for throwing the bottle.

| ^Racial Slurs and Epithets

Mr. Chaney alleged that he was subjected to the most vile, vulgar, and offensive racial epithets, comments, stereotyping, and jokes. He alleged that being continually belittled based on his race created a hostile working environment that ultimately resulted in his constructive discharge from his job.

Santa Claus Incident

Mr. Chaney alleged that when he played the part of Santa Claus for the Home Depot store, Mr. Rosen insisted that there was no time for Santa to hold the Caucasian children who visited Santa although the African American children who visited Santa were allowed to sit on his lap. Mr. Chaney also alleged that while he was playing the part of Santa Claus, Mr. Rosen tried to cause him to fall for the purpose of humiliating him in front of the children.

“Shit Award”

Mr. Chaney alleged, and Mr. Rosen confirmed in his deposition, that at a meeting of the Home Depot store employees a “shit award” was given to the gardening department where Mr. Chaney worked, because that department had performed poorly. The “award” was a toilet seat, and Mr. Chaney alleged that he was singled out to wear this “award” around his neck because of his race and that he was greatly humiliated by this. Mr. Chaney also alleged that he was subjected to degrading and disparaging comments about African Americans being “lazy” when his department won the “shit award.” According to the deposition testimony of Mr. Rosen, the “shit award” was only given once, and was then discontinued.

| ¿Unequal Pay

Mr. Chaney alleged that he trained a Caucasian worker in the gardening department at Home Depot whose pay rate was $9.00 per hour, whereas Mr. Chaney’s pay rate was $7.25 per hour at the time. Mr. Chaney alleged that the wage disparity was a result of racial discrimination.

Mr. Chaney also alleged that seasonal workers were paid at a lower pay rate than permanent workers at Home Depot. Mr. Chaney, however, continued to be paid at the same rate that he was paid as a seasonal employee after he became a permanent employee and did not receive a raise until he had been a permanent employee for almost a year. Additionally, Mr. Chaney alleged that Caucasian employees were evaluated on a regular basis for the purpose of determining whether they should be given raises. Mr. Chaney, however, received only one evaluation and one raise during his term of employment.

Investigation of Discriminatory Actions

Mr. Chaney alleged that the racist conduct to which he was subjected began when he was first employed as a seasonal employee and continued until he left the employment of Home Depot in July 1998. He did not, however, report the racist conduct until March 1998, when a human resources director, who was African American, was walking through the store one day. He then told the human resources director about the vulgar racist jokes and racial slurs to which he had been subjected at his job. Sometime in May of 1998, Mr. Chaney spoke to Tammy Esskew, a Home Depot employment practices manager, about the hostile working conditions. At approximately the same time that Mr. Chaney had spoken to Ms. Esskew about his situation, she received an anonymous letter from a Rnumber of Home Depot employees complaining about Mr. Rosen’s treatment of African American employees.

After receiving Mr. Chaney’s complaints and the anonymous letter, Ms. Esskew conducted an investigation of the employees’ complaints at the Home Depot store. As part of her investigation, Ms. Esskew interviewed store employees, including Mr. Chaney. When Ms. Esskew talked with Mr. Chaney, she told him that she would be investigating Mr. Rosen’s conduct. Ms. Esskew also apologized for Mr. Rosen’s behavior. After the investigation was concluded, Mr. Rosen’s employment at Home Depot was terminated. The date of termination was July 1,1998.

On June 24,1998, Mr. Chaney submitted a letter of resignation to Home Depot, and he gave two weeks’ notice of his departure. On July 7, 1998, he left his position at Home Depot.

Procedural History

Mr. Chaney filed the instant suit against Home Depot and Mr. Rosen in April 1999. Home Depot sought to remove the case to federal court, but the federal court judge remanded the case to state court. In September 2004, Mr. Chaney filed a motion to set the case for trial. Four months later, in January 2005, Home Depot filed a motion for summary judgment, which was granted. Mr. Chaney is now appealing that decision.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary | ¿judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 231.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

Assignments of Error

Mr. Chaney raised thirteen assignments of error in his brief, but they were not individually briefed. Although Rule 2-12.4 of the Uniform Rules — Courts of Appeal provides that “[a]ll specifications of error must be briefed,” and that “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed,” we will nevertheless consider whether the trial court erred in granting Home Depot’s motion for summary judgment.

Applicable Law

La. R.S. 23:332(A) provides as follows:

|7A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s race, color, religion, sex, or national origin.

Because this statute is similar in scope to the federal anti-discrimination prohibitions in Title VII of the Civil Rights Act of 1964, “Louisiana courts have routinely looked to the federal jurisprudence for guidance in determining whether a claim has been asserted” under La. R.S. 23:332(A). Plummer v. Marriott Corp., 94-2025 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 848. Additionally, hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. National R.R Passenger Corp. v. Morgan, 536 U.S. 101, 116 n. 10, 122 S.Ct. 2061, 2074 n. 10, 153 L.Ed.2d 106 (2002). Therefore, sexual harassment cases are instructive in deciding racial harassment cases.

Hostile Work Environment

To prevail in a hostile environment racial harassment action against an employer, the plaintiff must prove five elements;

(1) the employee belonged to a protected group;
(2) the employee was subjected to unwelcome harassment;
(3) the harassment was based on the race of the employee;
(4) the harassment affected a term, condition, or privilege of employment; and
(5) the employer knew or should have known of the harassment and failed to take proper remedial action. Brooks v. Southern Univ. and Agric. and Mech. Coll., 03-0231 (La.App. 4 Cir. 7/14/04), 877 So.2d 1194, 1220, unit denied, 04-2246 (La.11/19/04), 888 So.2d 208. At issue in the instant case is the fourth element that the plaintiff is required to prove.

Element of Proof

The fourth element that Mr. Chaney was required to prove, that a term, condition, or privilege of employment was affected, has been described as a “tangible employment action” in a number of cases involving hostile work environments. A “tangible employment action” constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998). Mr. Chaney has alleged that he suffered a “tangible employment action” in the form of a “constructive discharge” from his job as a result of the actions of the store manager at Home Depot.

|sIn Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the United States Supreme Court discussed an employer’s liability for a hostile work environment caused by a supervisory employee, such as the Home Depot store manager. The U.S. Supreme Court stated:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

524 U.S. at 777-78, 118 S.Ct. at 2278 (citation omitted). The Faragher case also holds that “[n]o affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” 524 U.S. at 808, 118 S.Ct. at 2293.

In the instant case Mr. Chaney’s employment ended from what he has alleged was a “constructive discharge.” Thus, we are presented with the issue of whether a “constructive discharge” constitutes a “tangible employment action” that would preclude Home Depot from using the affirmative defense set forth in the Faragher case. If a “constructive discharge” is a “tangible employment action,” Home Depot could be held strictly liable for Mr. Rosen’s behavior toward Mr. Chaney, if Mr. Chaney proved that he was subjected to a hostile work environment such that he was, in fact, constructively discharged from his job at Home Depot. If a “constructive discharge” is not a “tangible employment action,” Home Depot is |inentitled to defend against Mr. Chaney’s claims by using the affirmative defense described in the Faragher case. The U.S. Supreme Court, however, did not directly address in the Faragher case the issue of whether a “constructive discharge” was a “tangible employment action” that would deprive the employer of the affirmative defense made available to an employer whose supervisory employee had created a hostile work environment.

In Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), the United States Supreme Court set forth the requirements for proving that a “constructive discharge” has occurred in a hostile environment case. The plaintiff must first establish that discriminatory conduct in the workplace was so pervasive that it created a work environment that was abusive to the employee. Additionally, the plaintiff must show that the abusive working environment became so intolerable that the plaintiffs resignation qualified as a fitting response to the workplace environment. 542 U.S. at 133-34, 124 S.Ct. at 2347.

The Suders case specifically held that an employer may, however, defend against a claim of “constructive discharge” by showing “both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of ... harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.” 542 U.S. at 184, 124 S.Ct. at 2347. The affirmative defense, however, is not available to an employer “if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.” Id.

Inin the instant case, there is no evidence in the record of “employer-sanctioned adverse activity.” Mr. Chaney resigned from his job. He was not terminated, demoted, or transferred, and his pay was not reduced. Therefore, we find that Home Depot was entitled to assert the affirmative defense set forth in the Faragher and Suders cases in connection with its motion for summary judgment.

In the Faragher case, the U.S. Supreme Court discussed the employer’s burden of proof in connection with the affirmative defense as follows:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.

524 U.S. at 778, 118 S.Ct. at 2279.

In the instant case the evidence in the record shows that Home Depot maintained a toll free telephone number to allow employees to make anonymous telephone calls to discuss work related problems. Notice of the number was provided in the employees’ break room at the store where Mr. Chaney worked. Additionally, there was an employment practices manager, whom Mr. Chaney knew was available at the Home Depot store where he worked, to receive complaints of workplace harassment. Mr. Chaney admitted in his deposition that he had used the toll free line to report a theft incident involving an employee, but the first time he reported the allegedly harassing actions of Mr. Ro-sen was in March 1998, four months prior to his resignation. The evidence reflects that the | ^complaint that was finally lodged against Mr. Rosen was immediately investigated by Home Depot, and Mr. Ro-sen was promptly terminated when the investigation was finished.

Based on the evidence in the record in connection with the motion for summary judgment, we find that the first element of the affirmative defense available to Home Depot, that Home Depot exercised reasonable care to prevent and correct harassing behavior promptly, was satisfactorily met. Similarly, we find that the second element of the affirmative defense, that Mr. Chaney unreasonably failed to take advantage of the preventive and corrective opportunities provided by Home Depot, was also met. Because Home Depot has demonstrated that it has a valid affirmative defense to Mr. Chaney’s harassment action, and because Mr. Chaney has produced no countervailing evidence that would create a material issue of fact with respect to the affirmative defense, we conclude that Mr. Chaney has not met his burden of proof regarding the fourth element that must be proven in a hostile work environment claim.

Burden of Proof

Based on the foregoing discussion, we find that Mr. Chaney has not met his burden of proof in connection with his allegations that he was subjected to a hostile working environment. Summary judgment was properly granted in favor of Home Depot on that part of his claim that was based on the alleged harassment that resulted in a hostile working environment.

Discrimination Claims

In addition to his claim that he was subjected to a hostile working environment, Mr. Chaney also alleged that he was subject to racial discrimination in violation of the Louisiana Employment Discrimination Law. Mr. Chaney |1P,alleged that he was (1) paid less than a Caucasian employee that he trained, (2) denied promotions, because he was evaluated only once to determine whether he was entitled to a raise, although Caucasian employees were regularly evaluated semiannually for that purpose, (3) required to drive himself to the hospital when he was injured, whereas a Caucasian employee who had been hurt was taken to the hospital by ambulance, and (4) subjected to drug testing when another employee, who was not African American but who hit him with an oil can, was not subjected to drug testing.

In the Plummer case, discussed above, this Court set forth facts that a plaintiff must prove by a preponderance of the evidence to establish a ‘prima facie case of racial discrimination. This Court stated:

654 So.2d at 848. In the instant case, the fourth element could be replaced by other factors that demonstrate racial animus.

La. C.C.P. art. 966 provides that the burden of proof in a motion for summary judgment is with the party seeking the summary judgment. That article further provides, however, that if the party seeking the summary judgment will not bear the burden of proof at the trial, the party seeking the summary judgment is not required to negate all of the essential elements of the other party’s claim or defense. Rather, the party seeking the summary judgment must only demonstrate to the court that there is an absence of factual support for one or more elements that the adverse party must prove. Id.

1 uBased on the record before us, we find that Mr. Chaney has not demonstrated that he can prove at trial the elements required for a claim of racial discrimination. Although Mr. Chaney may or may not have been subjected to racial discrimination, he has not shown that he can establish the necessary elements to prove his claim.

Mr. Chaney made allegations that he was the victim of discrimination, but the only evidence, other than his own allegations, that he presented to show that he could prove his allegations by a preponderance of the evidence at trial was an affidavit of a Caucasian employee, who was trained by Mr. Chaney. Although the employee stated in his affidavit that Mr. Chaney trained him and that he made $9.00 an hour at the time he was trained, the affidavit is insufficient to demonstrate that Mr. Chaney can meet his burden of proof at trial.

There is nothing in the affidavit regarding the work experience, education, or prior training that the Caucasian employee had, the job duties that he was required to perform at Home Depot, or whether the duties were comparable to those Mr. Chaney was expected to perform. The affidavit, without more, is insufficient to create a material issue of fact regarding whether Mr. Chaney was subject to discriminatory wage practices. When Mr. Chaney filed his motion to set his case for trial, he certified that the case was ready for trial, which would mean that discovery was complete. Thus, Mr. Chaney would not be offering additional evidence at trial to support his allegations. Additionally, as we stated in the Plummer case, “[m]ere conclusory statements or personal beliefs by an employee that he was discriminated against are not sufficient to prove his employer discriminated against him.” 654 So.2d at 849. Therefore, we are constrained to find, as was the trial court judge, that Mr. Chaney will not be able to prove his case 11sat trial and that summary judgment on the issue of discriminatory treatment was properly granted in favor of Home Depot.

CONCLUSION

After conducting a de novo review of the record in this case, we find no error in the trial court judgment. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

      . Mr. Chaney also sued Billy Rosen, the former manager at the Home Depot store where he worked, but that aspect of the case is not before us. Mr. Chaney alleged that the manager intentionally inflicted emotional distress on him.

      . The federal law provides in relevant part at 42 U.S.C. § 2000e-2(a):
      It shall be an unlawful employment practice for an employer—
      (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
      (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.


author: CLARENCE E. McMANUS, Judge.

text:
    Marie FUSELIER and George Fuselier v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, the State of Louisiana, Department of Transportation and Development and St. John the Baptist Parish.
    No. 06-CA-118.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 29, 2006.

      Peter S. Koeppel, Laurence E. Best, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Richard L. Edrington, Attorney at Law, Laplace, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and JAMES C. GULOTTA, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

12Plaintiffs, Marie Fuselier et al, appeal from a decision of the trial court granting exceptions of prescription filed by St. John the Baptist Parish. For the reasons that follow, we affirm the decision of the trial court.

On or about October 28, 2003, Marie Fuselier was driving her truck when she was hit by an oncoming train owned by Kansas City Southern Railway Company (“the Railway”). Suit was originally filed against the Railway only, in the United States District Court. While that federal suit was pending, the plaintiffs filed the instant suit in the 40th Judicial District for the Parish of St. John the Baptist on March 8, 2005. Named as defendants were the Railway, the State of Louisiana through the Department of Transportation and Development, and St. John the Baptist Parish (the Parish). On April 14, 2005, plaintiffs voluntarily dismissed the lawsuit in federal court.

Thereafter, the Parish filed an exception of prescription, alleging that the instant suit was filed more than one year after the accident at issue and was therefore barred by liberative prescription. The trial court rendered judgment granting the exception of prescription, and plaintiffs appealed.

“Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run form the day injury or damage is sustained ...” LSA-C.C. art. 3492. This suit was filed in March of 2005, almost eighteen months |sfrom the alleged date of injury in October of 2003. Therefore, on the face of the petition, this suit has prescribed.

Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. LSA-C.C. art. 2324(C). Plaintiffs argue that the timely filing of their federal lawsuit, naming only the Railway as a defendant, interrupted the running of prescription against the Parish, as a joint tortfeasor.

The Parish disagrees, citing LSA-C.C. art. 3462, which provides that “Prescription is interrupted when the ... obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” The Parish contends that the United States District Court is not a court of competent jurisdiction and venue. The plaintiff is a citizen of the State of Louisiana and St. John the Baptist Parish is a political entity of the State of Louisiana. Thus, there is no diversity of citizenship. Also, the petition does not allege any violation of either the United States Constitution or a federal statute. Furthermore, LSA-R.S. 13:5104 mandates that a governmental entity is to be sued in the parish of the occurrence or where the entity is located. Therefore, argues the Parish, the federal suit was filed in an incompetent court and failed to interrupt prescription.

The issue before us is whether the filing of suit against one joint tortfeasor interrupts prescription against another joint tortfeasor, pursuant to C.C. art. 2324(C), where jurisdiction and venue are improper as to the other joint tortfeasor. This court has considered this issue and found that prescription is not interrupted. In Bell v. Kreider, 03-300, (La.App. 5 Cir. 9/16/03), 858 So.2d 58, writ denied, 03-2875 (La.1/9/04), 862 So.2d 986, plaintiffs were involved in a car accident on the Greater New Orleans Expressway, commonly known as the Causeway. |4Plaintiffs filed suit in both the 24th Judicial District Court and Civil District Court for the Parish of Orleans against several defendants. More than one year after the accident in question, the plaintiffs amended the petition to add as defendants the Greater New Orleans Expressway Commission and one of its employee police officers (GNOEC). Plaintiffs also filed a second suit in the 24th Judicial District Court. Defendants filed an exception of prescription, contending that they were never served within this first year of the accident, that prescription was never interrupted by the filing of suit in Civil District Court, and that all claims brought in the 24th Judicial District Court had prescribed.

On appeal, this Court found C.C. art. 3462 controls:

To the extent that the unique circumstances of this case expose a conflict between La. Civil Code Articles 2324(C) and 3462, we hold that Article 3462 ultimately controls. “Where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail.” Guitreau v. Kuchar-chuk, M.D., 99-2570 (La.5/16/00), 763 So.2d 575, 579. Of the two provisions, the language of La. Civil Code Article 3462 directly addresses the issue of prescription with respect to suits filed in the wrong venue.
To hold otherwise would allow the continuation of a lawsuit against defendants who were never properly notified as to the claims alleged against them until almost four years after the alleged date of injury. (And, as previously discussed, it was the plaintiffs’ own failure to use reasonable diligence that directly led to this four-year delay.) “A fundamental purpose of prescriptive statutes is to protect a defendant from stale claims and from the loss or non-preservation of relevant proof.” Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 (La.1990). The risk of prejudice to Officer Brock and the GNOEC in confronting claims well over a year old is exactly what the laws on prescription are designed to protect against.

At page 64-65.

In this case, St. John the Baptist was not a party in the suit filed in federal court, and was not sued in the 40th Judicial District Court until after the prescriptive period had run. Accordingly, its exception of ^prescription was well founded and the trial court did not err in dismissing plaintiffs’ claims against it.

Plaintiffs cite the case of Bradley v. Mike Rougee Corporation, 95-967, (La.App. 5 Cir. 6/25/96), 676 So.2d 1111, writ denied 96-1915 (La.11/1/96), 681 So.2d 1262, for its argument that prescription was interrupted by the federal court suit. We have reviewed that case and find it distinguishable from the instant proceedings in several respects.

For the foregoing, the judgment of the trial court is affirmed. All costs are to be borne by appellants.

AFFIRMED.

      . On August 2, 2005 Kansas City Southern Railway Company was dismissed from the suit.

      . The suit filed in the 24th JDC was dismissed as abandoned (and therefore did not serve to interrupt prescription, LSA-C.C. art. 3463).


author: JAMES C. GULOTTA, Judge, Pro Tempore.

text:
    STATE of Louisiana v. Salvador MOURRA.
    No. 06-KA-133.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 29, 2006.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, Louisiana, for Plaintifl/Appellee.
    Provino C. Mosca, Attorney at Law, Harahan, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and JAMES C. GULOTTA, Judge, Pro Tempore.
   JAMES C. GULOTTA, Judge, Pro Tempore.

|/The Defendant, Salvador Mourra, appeals from his guilty plea to attempted possession of a firearm by a convicted felon and his sentence to imprisonment at hard labor for five years. We affirm.

On July 22, 2005, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. The Defendant was arraigned on July 25, 2005 and pled not guilty. On January 20, 2006, the trial court denied the Defendant’s motion to quash the bill of information.

On that same date, the state amended the bill of information reducing the charge to attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and 14:95.1. Because the Defendant pled guilty, there are no facts in |3the record other than those found in the probable cause affidavit and the bill of information. The affidavit indicates that on May 6, 2005, probation and parole conducted a residence check of the Defendant. A random drug test was administered and he tested positive for cocaine. A search of the residence revealed sixteen firearms and body armor. Defendant was arrested after the officer determined that he was a convicted felon. The bill of information states that, on May 6, 2005, the Defendant was found in possession of a firearm, having been previously convicted of the crime of aggravated flight from an officer, an enumerated crime of violence in La. R.S. 14:2(13)(oo).

After the bill of information was amended to the reduced charge, the Defendant withdrew his plea of not guilty and pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s denial of the motion to quash. The trial court subsequently sentenced the Defendant to imprisonment at hard labor for five years to run concurrently with an earlier probation revocation.

ASSIGNMENT OF ERROR NUMBER ONE

In Defendant’s sole assignment of error, he argues the trial judge erred in denying his motion to quash the bill of information. Mourra contends the State should not have charged him with a violation of La. R.S. 14:95.1, because his commission of the underlying felony, aggravated flight from an officer. La. R.S. 14:2(13) in 1999, was not classified as a crime of violence. The Defendant argues that the 2003 amendment to La. R.S. 14:2(13) making the crime of aggravated flight from an officer a crime of violence should not apply to him now because it constitutes retroactive application that violates his ex post facto rights.

The State responds that there is no ex post facto violation in this case, citing State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, and State v. Girod, 04-854 (La.App. 5th Cir.12/28/04), 892 So.2d 646, writ denied, 2005-0597 (La.6/3/05), 903 So.2d 455 in support of its position. The State argues that the amendment to La. R.S. 14:2(13) is not being applied retroactively in this case. The amendment was effective before the Defendant committed the acts that subjected him to the instant charge. The crime defined by La. R.S. 14:95.1, at the time the Defendant committed the offense, included the act of possessing a firearm by a person who had been convicted of aggravated flight from an officer. Moreover, the amendment to La. R.S. 14:2(13) did not redefine the crime or increase the penalty of La. R.S. 14:108.1(0, aggravated flight from an officer.

In the instant case, the Defendant was charged with violating La. R.S. 14:95.1 which provided, at the time the offense was committed, May 6, 2005, that, “[i]t is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(13) which is a felony ... or any crime defined as an attempt to commit one of the above-enumerated offenses ... to possess a firearm or carry a concealed weapon.” On May 6, 2005, La. R.S. 14:2(13), defining and enumerating “crimes of violence,” listed “Aggravated flight from an officer.”

Historically, when paragraph 13 was added to La. R.S. 14:2 in 1992, defining the term “crime of violence” and delineating certain offenses as crimes of violence, aggravated flight from an officer was not included. La. Acts 1992, No. 1015, § 1. The crime of aggravated flight from an officer was included in that list of violent crimes in 2003 when La. R.S. 14:2(13) was amended by La. Acts 2003, No. 637, § 1, effective August 15, 2003. The Defendant committed the offense of aggravated flight from an officer prior to the amendment but pled guilty to it after the amendment. More importantly, when the Defendant committed the instant offense of possessing a firearm by a convicted felon, the crime of aggravated flight |Rfrom an officer for which the Defendant had been previously convicted was an enumerated crime of violence.

Art. I, § 10 of the United States Constitution and La. Const, art. I, § 23 prohibit ex post facto application of the criminal law by the state. State v. Everett, 00-2998 (La.5/14/02), 816. So.2d 1272, 1280. The U.S. Supreme Court recently commented on the Ex Post Facto Clause in Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), as follows:

The Clause provides simply that “no State shall ... pass any ... ex post facto Law.” Art. I,- § 10, cl. 1. The most well-known and oft-repeated explanation of the scope of the Clauses’s protection was given by Justice Chase, who long ago identified, in dictum, four types of laws to which the Clause extends:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it.was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder v. Bull, 3 Dallas [U.S.] 386, 390, [1 L.Ed. 648] (1798) (seriatim opinion of Chase, J.)

See also: California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Collins v. Youngblood, 497 U.S. 37, 41 — 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).

In State v. Everett, 00-2998 (La.5/14/02) 816 So.2d 1272, the Court stated that the focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams, 00-1725 (La.11/29/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). In analyzing the ex post facto implications of the Habitual Offender Law in Everett, the Court noted that “the relevant ‘offense’ is the current crime, not the predicate crime.” State v. Rolen, 95-0347, p. 3 (La.9/15/95), 662 So.2d 446, 448 (quoting United States, v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994)). Further, the Louisiana Supreme Court recently, in State v. Sugasti 01-3407 (La.6/21/02), 820 So.2d 518, reiterated that it has consistently been held that the law in effect at the time of the commission of the offense is determinative' of the penalty which the convicted accused must suffer. State v. Wright, .384 So.2d 399, 401 (La.1980).

While the Defendant is correct that, when he committed the offense of aggravated flight from' an officer, the offense was not defined as a crime of violence, his argument overlooks the fact that the applicable law is that in effect at the time of the commission of the current offense and not the predicate crime. State v. Rolen, supra. The 2003 amendment to La. R.S. 14:2(13), delineated the offense of aggravated flight from an officer as a crime of violence. In doing so, the Legislature brought the offense within the -criminal prescription set out in La. R.S. 14:95.1, making it unlawful for persons convicted of certain felonies, including aggravated flight from an officer, to possess a firearm. We note that criminal conduct was not redefined and the penalty by which the crime was punishable was not increased. Moreover, at the time of the offense, the amendment was effective and the conduct defined as criminal was clear.

In cases similar to the instant one, both the Supreme Court, in State v. Everett, supra, and this Court, in State v. Girod, supra, applied the same reasoning in finding no ex post facto violations where the changes in the statutes were effective before the defendants committed their latest offenses.

|7In Everett, the Court considered the ex post facto implications of an amendment to the Habitual Offender Law, La. R.S. 15:529.1. In 1995, the Habitual Offender statute was amended to increase the five year applicability period, for abating the collateral consequences of prior convictions for any future violations of the statute, to ten years. In finding no ex post facto violation, the Court noted:

•The 1995 amendment did not redefine criminal conduct or increase the punishment after defendant committed the underlying offense, .the only relevant crime for purposes of ex post facto analysis. At the time defendant committed the underlying offense on September 5, 1998, he had been placed on notice by the State that the period of applicability of the Habitual Offender Law had changed and that he could no longer rely on the former five-year period of applicability to abate the collateral consequences of his prior convictions for any future violations of the statute. -We therefore conclude’the 1995 amendment to La. R.S. 15:529.1(C) is applicable to defendant’s multiple offender adjudication in 1999.

Similarly, in Girod, this Court found no ex post facto violations where the crime of simple robbery had been redefined as a crime of violence after the defendant had been convicted of the offense but before he committed a subsequent offense, allowing the imposition of án enhanced penalty for one previously convicted of a crime of violence. This Court found that the 1992 amendment that added La. R.S. 14:2(13) did not change the definition of the crime or increase the punishment for defendant in any way. Girod, 892 So.2d at 653.

In his reply brief, the Defendant attempts to distinguish Girod, arguing that the present case, unlike Girod, involved a defective boykinization which only became evident after the Defendant’s arrest on the instant charge. The Defendant points out that the instant case, unlike Girod,, involved a violation of La.C.Cr.P. art. 890.1, because the Defendant was not informed, at the time of sentencing, that | «his offense was a crime of violence. Therefore, he argues that Girod is not applicable here, and the conviction should not be used against him now as a crime of violence. We disagree.

We find the reasoning in Girod persuasive. As in Everett and Girod, we find no ex post facto violation in this case. The 2003 amendment to La. R.S. 14:2(13) did not change the definition or penalty for aggravated flight from an officer. The amendment did, in effect, broaden the scope of La. R.S. 14:95.1 by including aggravated flight from an officer as a crime of violence, making it illegal for one convicted of that offense to possess a firearm. Nonetheless, for purposes of applying La. R.S. 14:95.1, the critical date is the date of the commission of the offense by the Defendant. When the Defendant was found to be in possession of a firearm, La. R.S. 14:95.1 had been amended, was effective and included persons convicted of aggravated flight from an officer. Promulgation of a law is deemed adequate notice. State ex rel. Counterman v. Whitley, 611 So.2d 661, 666 (La.App. 1st Cir.1992). Although the Defendant in the instant case claims that, when he pled guilty in 2005 to aggravated flight from an officer, he did not know that he was pleading guilty to a crime that had since been included as a crime of violence, ignorance of a criminal statute is not a defense to criminal prosecution. La. R.S. 14:17; State v. Neal, 500 So.2d 374, 379 (La.1987). Thus, since the Defendant committed the crime of possession of a firearm by a convicted felon in 2005, after the effective date of the 2003 amendment to La. R.S. 14:2(13), he was on notice of the criminal consequences of his actions.

| ^Accordingly, we find no error in the trial court ruling denying the Defendant’s motion to quash.

ERROR PATENT DISCUSSION

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

Accordingly, for the reasons set out above, we affirm the Defendant’s conviction for possession of a firearm by a convicted felon and his sentence to five years imprisonment at hard labor.

CONVICTION AND SENTENCE AFFIRMED.

      . Defendant’s underlying conviction was for aggravated flight from an officer in violation of La. R.S. 14:108.1 C in case number 99-4227 of the 24th Judicial District Court. The record indicates that the Defendant committed the underlying offense of aggravated flight from an officer on June 6, 1999 but, because he relocated, did not plead guilty to the offense until March 4, 2005. At the time this offense was committed it was not designated as a crime of violence. See infra.

      . As was noted previously, the Defendant pled guilty to attempted possession of a firearm by a convicted felon.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . As stated infra, it is well settled that the law in effect at the time of the commission of the offense is determinative of the proscribed conduct and the penalty which the convicted accused must suffer. In this case, when Defendant committed the offense of aggravated flight from an officer (1999) it was not defined as a crime of violence and to have designated it as such at sentencing (2005) might well be an ex post facto violation that Defendant complains of herein. However, we note that even if the trial court had failed to comply with the requirement of La.C.Cr.P. art. 890.1, as argued by Defendant, this would have been harmless and would have no effect on the instant case. State v. Allen, 99-2898 (La.6/16/00), 762 So.2d 615; State v. Pickney, 97-1591 (La.App. 3rd Cir.5/27/98), 714 So.2d 854, writs denied, 98-1857 (La.11/13/98), 730 So.2d 457.

      . We note that the trial judge failed to specify that the sentence was to be served without benefit of parole, probation, or suspension of sentence as required by La. R.S. 14:95.1 and La. R.S. 14:27, but under La. R.S. 15:301.1 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to contain these restrictions without corrective action. Further, we note that the decision on whether a sentence arising from a probation revocation should run concurrently or consecutively with a sentence arising from a later offense lies with the judge revoking the probation. State v. Hotard, 04-1092 (La.10/15/04), 885 So.2d 533.


author: PEATROSS, J.

text:
    Deandrea JONES, individually and on Behalf of Her Minor Children, Renee Jones, Tommora Jones and Kadezah Jones, Plaintiff-Appellee v. Kevin W. LAWRENCE and Safeway Insurance Company of Louisiana, Defendants-Appellants.
    No. 41,486-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Tracy L. Oakley, for Appellant.
    Anthony J. Bruscato, Monroe, for Appel-lee.
    Before WILLIAMS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant Safeway Insurance Company of Louisiana (“Safeway”) appeals the trial court’s findings of fact and its allocation of fault to Defendant Kevin W. Lawrence. Mr. Lawrence was driving Safeway’s insured vehicle when it collided with the vehicle in which the children of Plaintiff, Deandrea Jones, were riding. Plaintiff, individually and on behalf of her minor children, sought recovery for injuries sustained by her children in the accident. After a bench trial, the trial court allocated 100 percent of the fault to Mr. Lawrence; and, on a motion for new trial filed by Safeway, the trial court cast only Safeway in judgment. For the following reasons, the judgment of the trial court is amended and, as amended, is affirmed.

FACTS

Plaintiff, individually and on behalf of her minor children, sued for injuries sustained in an automobile accident that occurred on March 15, 2003. The accident was between a vehicle driven by Mr. Lawrence, owned by Linsey .D. Howard and insured by Safeway, and a vehicle owned and operated by Cedric L. Toney. Plaintiffs children were passengers in Mr. To-ney’s vehicle. Plaintiff settled a separate suit against Mr. Toney before trial.

The facts surrounding how the accident occurred are in dispute. According to Plaintiffs version of events, both vehicles were traveling north on Highway 15, a two-lane, undivided highway. Prior to the accident, Mr. Lawrence passed Mr. Toney on the right side shoulder. At some point later, Mr. Lawrence stopped his vehicle, straddling the center line with his Lleft turn signal on. He was stopped with a road to his left and a private drive to his right. Mr. Toney stopped behind Mr Lawrence, then attempted to pass him on the right, resulting in driving, at least partially, on the paved shoulder. As Mr. Toney was passing; Mr. Lawrence moved to the right, striking Mr. Toney’s vehicle and sending it into, a telephone pole, snapping it. The investigating state trooper, Phil Zalewski, issued Mr. Toney a ticket for careless operation, which Mr. Toney paid without contesting.

The testimony further suggests that Mr. Lawrence was intoxicated to some extent. He failed three of the six sobriety tests, but he did not receive a citation. According to the testimony of Trooper Zalewski, failing four sobriety tests is the prerequisite for issuing a citation for driving while intoxicated. One witness testified that, after the accident, Mr. Lawrence moved beer from the passenger compartment into the trunk of the vehicle. Mr. Toney testified that a beer can fell out of Mr. Lawrence’s vehicle after the accident.

Safeway provided a defense in the suit and alleged that Mr. Toney was speeding, did not stop and swerved to the right only to avoid Mr. Lawrence’s vehicle which was properly turning right. Safeway was unable to locate either Mr. Lawrence or his passenger, Dustin Sharp, to testify. The trial court left the record open for new evidence for 30 days should Safeway locate either witness. The time expired without any additional evidence being introduced.

| ¡¡Plaintiff also called Trooper Zalewski. He did not independently remember many details from the accident, but read his summary in his accident report of the drivers’ statements:

Driver of vehicle # [2](sie) [Mr. Lawrence] stated that he was attempting a right turn when vehicle # 1 [Mr. Toney] came around him and struck them. Driver of vehicle # 2 stated that he had his turn signal on. Driver of vehicle # 1 stated that vehicle # 2 was at a complete stop in the middle of LA Highway 15 with no turn signal on. Driver # 1 also state (sic) that in order not to uh ... to not colliding (sic) with the rear of vehicle # 2, he attempted to go around him on the shoulder of the road.

In addition to the statement, Trooper Za-lewski testified that Mr. Toney told him he was going 40 miles per hour. The posted speed limit is 35 miles per hour. Further, Trooper Zalewski put the point of impact at the fog line, the white line separating the driving lanes from the shoulder. -Additionally, Trooper Zalewski testified that the damage to Mr. Toney’s vehicle was on the front driver’s side, while the damage to Mr. Lawrence’s vehicle was to the front passenger side. Safeway relies heavily on Trooper Zalewski’s testimony to support its version of the accident.

The trial court ultimately found for the Plaintiff and against Mr. Lawrence and Safeway. In its reasons for judgment, the trial court found that Mr. Lawrence stopped and signaled for a left turn, that Mr. Toney stopped behind Mr Lawrence and then attempted to pass on the right when the Lawrence vehicle struck or was struck by the Toney vehicle. The trial court found Mr. Lawrence’s action “to be quite bizarre” and stated that “the record is void of any evidence that would indicate why Mr. Lawrence would abruptly change the course of his vehicle.” Based on such a finding and the absence of evidence showing an alternative cause, an ^extraordinary traffic situation or emergency, the trial court concluded that Mr. Lawrence’s negligence was the sole case of the accident.

The trial judge assigned 100 percent fault to Mr. Lawrence and entered judgment against Mr. Lawrence and Safeway. In its original judgment, the trial court awarded Deandrea Jones, for and on behalf of Tomorra Jones, Renee Jones and Kadezah Jones, the amounts of $12,671.66 for Tomorra, $7,163.14 for Renee and $5,818.99 for Kadezah. The award total was $25,653.79. The limits of the Safeway policy were $10,000 per person, and $20,000 per accident. Upon Safeway’s motion for new trial, the trial judge revised the judgment casting only Safeway, as Plaintiff did not serve Mr. Lawrence. The trial court also reduced Plaintiffs award to within Safeway’s policy limits as follows: Deandrea Jones on behalf of Tomorra Jones damages of $9,800; Deandrea Jones on behalf of Renee Jones damages of $5,600; and Deandrea Jones on behalf of Kadezah Jones damages of $4,600, totaling $20,000. The judgment also cast Safeway with judicial interest and costs. From this judgment, Safeway appeals.

DISCUSSION

As previously stated, Safeway appeals the trial court’s factual findings and its allocation of fault. Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. An appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). An allocation of fault is a factual determination subject to the | Smanifest error rule. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Cook v. Kendrick, 41,061 (La.App.2d Cir.5/19/06), 931 So.2d 420.

'Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

We hold that the trial court’s allocation of 100 percent fault to Mr. Lawrence and no fault to Mr. Toney was manifest error. First, our review of the record supports the trial court’s factual finding regarding the negligence of Mr. Lawrence. The record supports the trial court’s finding that Mr. Toney stopped before proceeding to pass Mr. Lawrence on the right using the shoulder. At trial, Mr. Toney and his passengers, Zargiethia Renee Jones and Tommora Jones, gave their eye witness accounts of the accident.

|fiMs. Renee Jones testified that she was one of six passengers in Mr. Toney’s vehicle driving down Highway 15. She was seated behind the driver. She testified that Mr. Toney’s vehicle came up on another vehicle, Mr. Lawrence’s vehicle, as it moved across the center line, then stopped with its left turn signal on. According to Renee, Mr. Toney stopped behind Mr. Lawrence before proceeding to move to the right of Mr. Lawrence when that vehicle moved right into them.

Mr. Toney testified that, as he approached the Lawrence vehicle, it was already stopped across the center line. Mr. Toney described Mr. Lawrence. as “just standing in the road, like half, half way in my side and half way on the other side.” He further described the lead vehicle as tilted or at an angle to the left, but did not see any turn signals. Mr. Toney testified that he stopped behind the vehicle, then decided to proceed around Mr. Lawrence on the right, which included driving on the shoulder of the road at a speed of 25-30 miles an hour. As he was driving on the right, Mr. Toney testified that Mr. Lawrence came back to the right, hitting him hard and sending him into a pole and breaking it. Mr. Toney admitted paying the ticket he was issued.

Tommora Jones, a passenger in Mr. To-ney’s vehicle, testified to the events of the accident. She testified that she saw Mr. Lawrence’s vehicle stopped in the middle of the street with the left signal blinking as her vehicle approached. She described Mr. Toney as stopping, then going around the other vehicle, including driving on the shoulder. She then 17testified that the other vehicle came over the right and struck Mr. Toney’s vehicle. She described the impact as a hard hit, sending Mr. Toney’s vehicle into the pole. She further testified that Mr. Toney braked before hitting the pole.

As the investigating officer of the accident, Trooper Zalewski testified to the process and findings of his investigation, though at several points he testified he could not remember. Through Trooper Zalewski, Plaintiff introduced photographs of the location of the accident taken after the cars were removed and the telephone pole replaced. The photographs and Trooper Zalewksi’s testimony established that the highway generally had a wide improved shoulder, roughly wide enough to accommodate a vehicle. Trooper Za-lewski testified that, based on his information, he determined that the point of impact was at the fog line.

Trooper Zalewski also testified as to his findings regarding the movements of the cars. His description of the accident was that vehicle # 2 (Mr. Lawrence) attempted a right turn into a private drive when vehicle # 1 (Mr. Toney) passed vehicle # 2 on the shoulder striking the front right of vehicle # 2. He also testified that Mr. To-ney told him that he was going 40 miles per hour at the time of the accident and that he had to swerve on to the shoulder to avoid rear-ending Mr. Lawrence. On redirect, Plaintiff had Trooper Zalewski read into the record the above-quoted portion of his accident report.

Safeway challenges the credibility of the witnesses on several bases. The record does not support Safeway’s credibility arguments. Further, as ^stated above, we must give great deference to the trial court on matters of credibility. Rosell, supra. We will not disturb the trial court’s credibility determinations regarding Mr. Lawrence’s negligence.

Safeway also challenges the court’s allocation of fault, arguing that, even based on undisputed facts, all liability and fault lie with Mr. Toney. Despite the reasonableness of the finding that Mr. Lawrence was at fault, we conclude that the trial court erred in not assessing some fault for this accident to Mr. Toney because of his improper passing. For the reasons set forth below, we allocate 20 percent fault to Mr. Toney and 80 percent fault to Mr. Lawrence.

The trial court found, and Plaintiff does not dispute, that Mr. Toney passed Mr. Lawrence on the right driving, at least partially, on the shoulder. Passing on the right is prohibited, with exceptions. R.S. 82:74 provides, in part:

A. The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:
(1) When the vehicle overtaken is making or about to make a left turn; ...
B. The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main traveled portion of the highway. (Emphasis added.)

Defendant argues under a theory of negligence per se that this prohibition requires a finding of negligence on Mr. Toney. We agree. For a violation of a statute to be actionable under negligence per se, the conduct must be both the cause in fact and the legal cause of the injury. Hood v. Sartor, 38,874 (La.App.2d Cir.9/22/04), 882 So.2d 700. A party satisfies cause in fact if he shows that, “but for” the alleged negligent act, the injury would not have occurred. Id. Legal cause requires that the alleged negligent act have a substantial relationship to the harm incurred. Id.

Mr. Toney violated the statute by passing on the right when the move could not be completed safely and by driving off the pavement. The violation meets both the cause in fact and legal cause requirements. The accident would not have occurred “but for” Mr. Toney attempting to pass Mr. Lawrence on the shoulder. Moreover, Mr. Toney passing on the right has a substantial relationship to the accident. The violation of R.S. 32:74 was not a strained or tangential cause of the accident. Attempting to pass Mr. Lawrence on the shoulder directly and substantially resulted in this accident. The trial court was clearly wrong to find Mr. Toney to be without fault.

Given Mr. Lawrence’s “unexplained and bizarre” behavior, the trial court was not manifestly erroneous in finding Mr. Lawrence negligent. As explained above, Mr. Toney should bear his portion of fault for this accident. In re-allocating fault, this court must consider the nature of the conduct of each party at fault and the causal relationship between the conduct and the injury. Watson, supra. The factors the court considers are: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating |incircumstances which might require the actor to proceed in haste, without proper thought. Id.

In the case sub judice, Mr. Toney was inattentive and likely impatient. In contrast, Mr. Lawrence’s conduct shows a blatant disregard for the safety of others by driving erratically. The evidence further suggests he had some level of impairment from alcohol, a risk he also disregarded. Mr. Lawrence created a significant risk by indicating a left turn by his movements and then suddenly switching directions without first establishing a safe path. Mr. Toney created only a slight risk when be decided to pass on the shoulder when the shoulder was wide enough for his vehicle and he reasonably believed Mr. Lawrence’s vehicle was making a left turn. We find limited utility in Mr. Toney’s passing Mr. Lawrence for no other reason than impatience and hurry. Equally, Safeway showed no utility that Mr. Lawrence motioned for a left turn and then suddenly made a right turn. Further, both drivers had the same capacities and neither party showed any extenuating circumstances to excuse the conduct. After considering the factors, as stated. above, we allocate 20 percent of fault to Mr. Toney with the remaining 80 percent allocated to Mr. Lawrence.

Our allocation is consistent with previous cases of this nature. In McCullin v. U.S. Agencies Casualty Insurance Co., 34,661 (La.App.2d Cir.5/9/01), 786 So.2d 269, the plaintiffs vehicle drifted into the left lane of a two-lane highway with its left turn signal on. The defendant accelerated to pass her on the right when the plaintiffs vehicle came back over to the right. The defendant hit the plaintiffs vehicle in the rear. The accident |, 1 occurred in the driving lane. Both cars were going 55 miles per hour when the accident occurred. This court upheld apportioning only 10 percent of fault to the plaintiff, in the lead vehicle, and 90 percent to the defendant, in the passing vehicle. In McCullin, both vehicles were still traveling at the high rate of speed making the attempted pass by the defendant much riskier. Further, the continuing speed limited the utility of the maneuver because the plaintiff was still in motion to turn and the defendant only had to wait for the lead vehicle to complete the turn. In the case sub judice, Mr. Lawrence was stopped in the midst of a left turn without explanation; Mr. Toney did not have any indication that with patience Mr. Lawrence would complete his turn and Mr. Toney could continue on his way.

Mr. Toney, however, could have exercised more patience to be completely free of fault. In Jones v. Tidwell, 139 So.2d 57 (La.App. 2d Cir.1962), an apparently left-turning vehicle suddenly moved right striking a vehicle passing on the right shoulder. This court attributed no fault to the passing vehicle. In contrast to McCul-lin, supra, the leading vehicle was stopped for several minutes before the sudden move right. More importantly, the passing vehicle had stopped for one to two minutes before attempting to pass. This court observed that:

Ordinarily, as following vehicle should not, however, attempt to pass on the right of another car, but, when that ear is standing stationary, it cannot be said that the driver of a car which must pass must wait until the driver of the stationary car sees fit to move it.

Id. The following driver, however, must still exercise great care. Nesbit v. Travelers Ins. Co., 218 So.2d 396 (La.App. 2d Cir.1969). The record is|iasilent as to how long Mr. Toney stopped before attempting the pass. Without the kind of lengthy delay of one or two minutes present in Jones, we cannot say Mr. Toney exercised the kind of great care required.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended allocating 20 percent fault to Mr. Toney and 80 percent fault to Mr. Lawrence. As previously stated, the initial judgment, totaling $25,653.79 was reduced to Safeway’s policy limit of $20,000. Since 80 percent of that original award exceeds the $20,000 policy limit, the judgment, as reduced on the motion for new trial, is affirmed. Costs of appeal are assessed equally to both parties.

JUDGMENT AMENDED, AND, AS AMENDED, AFFIRMED.

      . In addition, Kadezah Jones, also a passenger, testified only to her injuries from the accident. She did not see the accident occur as she could not see over the dashboard. Deandrea Jones also testified regarding the injuries of Tomorra.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Andre HARVEY, Appellant.
    No. 41,315-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney John M. Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

_JjThe defendant, Andre Harvey, entered a plea of guilty to simple escape. He was sentenced to two years at hard labor, to be served consecutively to any other sentence. On appeal, the defendant argues that he was not specifically advised of his right to trial by jury and did not waive that right. He requests that the plea be vacated because it was not the product of a fully informed, voluntary decision. For the following reasons, we find the plea to be constitutionally defective. We vacate and set aside the conviction and sentence and remand to the trial court for further proceedings.

FACTS

The defendant was charged with intentionally escaping from the lawful custody of the Webster Parish Sheriffs Department while at Springhill Junior High School on June 7, 2005. On December 14, 2005, the defendant pled guilty to simple escape with an agreed minimum sentence of two years at hard labor.

During the plea colloquy, the trial court informed the defendant that he had the “right to continue your not guilty plea and have a trial,” that his “attorney would cross-examine anyone who accused you of this crime,” that he had the “right to remain silent” and that he had “the right to summons witnesses and the Court would subpoena whatever evidence you needed in order for you to present a defense.” The trial court also informed the defendant that, if convicted, he would have the right to an appeal. The defendant then indicated that he wished to plead guilty to the charges.

IgThe defendant now appeals, noting that the trial court failed to inform him of his right to trial by jury. Therefore, he claims that he could not have voluntarily waived the right to trial by jury and asks that the plea be vacated.

DISCUSSION

The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Feaster, 33,879 (La.App.2d Cir.11/1/00), 779 So.2d 761; State v. Robinson, 40,983 (La.App.2d Cir.5/17/06), 930 So.2d 345. In order for a guilty plea to be valid, it is necessary for the accused to make a knowing and intelligent waiver of three constitutionally guaranteed fundamental rights. Those rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984); State v. Jones, 28,929 (La.App.2d Cir.4/2/97), 691 So.2d 858.

A guilty plea will not be considered free and voluntary unless, at the very least, the court advises the defendant of the triad of rights as annunciated in Boy-kin, supra, and Louisiana jurisprudence. An express and knowing waiver of those rights must appear on the record; an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992).

The trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980); State v. Morrison, supra.

13This court has recently held in several cases that the failure to inform a defendant of the constitutionally guaranteed right to trial by jury requires that the conviction and sentence be vacated and the matter remanded for further proceedings. State v. Robinson, supra, and State v. Disotell, 40,989 (La.App.2d Cir.5/17/06), 930 So.2d 359. For the reasons assigned in State v. Robinson, supra, and State v. Disotell, supra, the present case requires the same result.

The minutes of the guilty plea show that the defendant was advised of his right to a trial by jury; however, this fact is not borne out by the transcript of the proceedings. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). The advice of the right to trial by jury is absent from the guilty plea in this case.

The state cites State v. Battle, 552 So.2d 503 (La.App. 2d Cir.1989), writ denied, 559 So.2d 136 (La.1990), wherein this court upheld a guilty plea when the defendant was not specifically informed of his right to trial by jury. However, in that case, the defendant pled guilty on the day the jury trial was to begin. He was informed twice that a jury was present and that the state was ready to proceed to a jury trial if he did not plead guilty. State v. Battle, supra, is factually distinguishable from the present case.

| ¿CONCLUSION

For the reasons stated above, the guilty plea and sentence in this matter are vacated and the matter is remanded to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED AND SET ASIDE; REMANDED.

        . See and compare State v. Jones, 41,018 (La.App.2d Cir.6/28/06), 935 So.2d 323, in which the defendant, on appeal, specifically waived the claim of the invalidity of the plea.

      . The minutes indicate that, at arraignment, the defendant was notified as to the method of trial. However, no transcript was submitted to show the defendant was advised he had a right to trial by jury.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Melody G. HASTY, Appellant.
    No. 41,264-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Louisiana Appellate Project, by Edward K. Bauman, for Appellant.
    Paul J. Carmouche, District Attorney, William J. Edwards, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

|! Melody Hasty pled guilty as charged to top-grade felony theft, La. R.S. 14:67, with the agreement that based on the presen-tence investigation report (“PSI”), the state would decide whether to charge her as a multiple offender. The state did not multiple-bill her, and the district court sentenced her to eight years at hard labor. She now appeals, urging only that the sentence is excessive. We affirm.

Between December 2000 and November 2003, Ms. Hasty was employed as a clerk for the Town of Greenwood in Caddo Parish. Her job duties included receiving moneys collected by the town and depositing them in the town’s bank account. Although routine audits did not immediately detect any irregularities, various town officials suspected that funds were missing. After a belated investigation by the Office of the Legislative Auditor, Ms. Hasty confessed to taking over $100,000 in traffic fines. She maintained that she took the money chiefly to cover medical expenses and her husband’s credit card bills, but admitted that she had also made down payments of $14,000 on a farm, $5,000 on a 2002 Jeep, and $5,000 on a Dodge one-ton truck, and bought eight quarter horses at $500 each. The state believed the total amount of misappropriation was over $130,000.

The state charged Ms. Hasty with “felony theft over $1,000.” The top grade of theft is actually for “a value of five hundred dollars or more.” La. R.S. 14:67 B(l). However, the $1,000 stated in the bill of information is obviously greater than the $500 threshold in the statute, so we perceive no error. State v. Jordan, 00-1508 (La.App. 5 Cir. 11/27/01), 802 So.2d 933.

lain accordance with the plea agreement, the court ordered a PSI which showed that Ms. Hasty had a 1991 conviction in Texas for burglary of a habitation (simple burglary), for which she had received a deferred sentence and five years’ probation. At the sentencing hearing, the court admitted several letters from friends and associates who attested to Ms. Hasty’s good character, as well as a letter from Ms. Hasty herself, apologizing for her conduct and offering to repay the town if she were spared incarceration. The current mayor, Dr. Ernest Lampkins, testified that Ms. Hasty’s actions had a “devastating impact on the town of Greenwood’s financial stability in all areas of its fiscal responsibility.” As noted, the court sentenced Ms. Hasty to eight years at hard labor and denied a motion to reconsider.

The appellate review of sentences for excessiveness is two-pronged. First, the record must show that the trial court considered the criteria of La. C. Cr. P. art. 894.1. The sentencing court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130. In brief, Ms. Hasty has not alleged that the court misstated or omitted any important factual matters. Our review shows substantial compliance with Art. 894.1.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 1,623 So.2d 1276; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no measurable contribution to acceptable penal objectives. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

Ms. Hasty used her position of trust to facilitate the theft of over $130,000, a large sum for any municipality but a dangerous financial blow for a town like Greenwood. Although she proposed restitution in her letter, as of sentencing she had not tendered any. In addition, her prior deferral of sentence and probation in Texas had failed to deter the instant offense. On the other hand, the court noted that Ms. Hasty’s prior offense was 13 years earlier, when she was only 18 years old, and that she had cooperated with authorities.

For top-grade theft, Ms. Hasty faced a sentence of 10 years with or without hard labor, a fine of up to $3,000, or both. La. R.S. 14:67 B(l). The sentence of eight years is near the maximum but does not appear disproportionate to the magnitude and circumstances of the offense. State v. Lee, 37,143 (La.App. 2 Cir. 5/14/03), 847 So.2d 83. The assigned error lacks merit.

We have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For these reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.