author: EZELL, Judge. GENOVESE, J.,

text:
    STATE In the Interest of J.P.A., N.J.A., and B.L.A.
    No. JAC 05-1160.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 2006.
    Leah Antoinette, Lafayette, LA, for Appellant, State of Louisiana, Department of Social Services.
    Chris Richard, Law Offices of Chris Richard, Lafayette, LA, for Appellee, M.J.A.
    Lauren DeJean Mouret, DeJean, Mour-et & Mouret, Opelousas, LA, for Appel-lees, J. A., N. A., B.A.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, BILLY HOWARD EZELL, JAMES DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

_|jln this matter, the State of Louisiana appeals the decision of the trial court denying its petition to terminate the parental rights of the mother, M.J.A., toward her three minor children, J.P.A, N.J.A., and B.L.A. For the following reasons, we reverse the decision of the trial court and render judgment terminating M.J.A.’s parental rights.

J.P.A. and N.J.A. are the illegitimate children of M.J.A. and J.A T. B.L.A. is the legitimate child of M.J.A. and F.A. However, all three children lived with M.J.A. and F.A. In March of 1999, the State, through the Office of Community Services investigated a claim that the minors J.P.A., N.J.A., and B.L.A. were without adequate food and shelter. The claims were validated and the family was placed on agency supervision. In September of 1999, OCS learned that Francis Thibodeaux, a known pedophile, was a friend of M.J.A.’s and was spending time around the children. At this time, OCS caseworkers warned M.J.A. to not allow Thibodeaux around the children. On February 9, 2000, the children were adjudicated children in need of care, but were not removed from the home. At that time, the trial court also ordered M.J.A. to disallow contact between Thibo-deaux and her children. The family was released from agency supervision in January 2001.

After a report that Francis Thibodeaux had molested N.J.A. on several occasions, J.P.A., N.J.A., and B.L.A. were removed from the custody of their parents on June 17, 2002. On July 24, 2002, the children were again adjudicated children in need of care. A case plan for reunification was established for the family and approved by the trial court. In December 2003, the permanent plan for the children was changed to adoption. In January of 2004, the State filed a petition to terminate the parental rights and to certify the children for adoption. The trial court terminated |athe parental rights of the fathers, but not as to M.J.A. From that decision, the State appeals, seeking the termination of M. J.A.’s parental rights as well.

As noted by the supreme court in State ex rel. SNW v. Mitchell, 01-2128, pp. 8-10 (La.11/28/01), 800 So.2d 809, 814-16 (alterations in original)(footnote omitted):

A well-settled principle is that the “the [sic] fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982). Reiterating this principle, the Supreme Court recently remarked that this liberty interest is “perhaps the oldest of the fundamental liberty interests.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000). A corollary principle is that in an involuntarily termination of parental rights proceeding, a court must delicately balance the natural parent’s fundamental right and the child’s right to a permanent home.
In 1997, Congress passed the Adoption and Safe Families Act (ASFA), 42 U.S.C. § 601, et seq. The ASFA tilts this delicate balance in the child’s favor and requires states, as a condition to continued receipt of certain federal funding, to enact parallel legislation. Simply stated, ASFA is intended to make four principal reforms; to wit:
[1] that the safety of children is paramount in custody decision making; [2] that foster care is temporary and that agency and judicial decision making must be expedited in order to optimize the child’s needs for a stable and permanent home; [3] that the state’s duty to make “reasonable efforts” to reunify a family is subordinate to legitimate concerns about the child’s health and safety; and [4] that states will be held accountable for their efforts to reduce the number of children who are stranded in the foster care system.
La. Ch.C. art. 601, Official Cmt. (b)(emphasis supplied).
Complying with the ASFA, the Louisiana Legislature amended several of the termination provisions including La. Ch.C. art. 601, which was amended to declare that “[t]he health, safety, and best interest of the child shall be the paramount concern in all proceedings under this Title.” See La. Ch.C. art. 601, Official Cmt. (c) (noting that “the child’s health and safety is the paramount concern in determining what is reasonable and consistent with the department’s plan for timely, permanent placement of a child.”). Under certain egregious circumstances (not present here), the state is entirely excused by La. Ch.C. art. 672.1 from making any reasonable efforts to reunify.
IsThat the balance is tilted in the child’s favor is further evidenced by La. Ch.C. art. 702 E, which provides:
Except as otherwise provided in La. Ch.C. art. 672.1 [which excuses the state in certain cases from exercising reasonable efforts], the court shall determine whether the department has made reasonable efforts to reunify the parent and child.... The child’s health and safety shall be the paramount concern in the court’s determination of the permanent plan.
And, La. Ch.C. art. 702 D(l) places the burden on the parent seeking to avoid termination when the child has been in foster care for over twelve months; particularly, it provides:
In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress towards achieving its goals and correcting the conditions requiring the child to be in care. (Emphasis supplied).
Consistent with this federally-prompted shift in policy, our recent decisions have recognized that “the primary concern of the courts and the state remains to secure the best interest for the child, including termination of parental rights if justifiable statutory grounds exist and are proven.” State in the Interest of S.M.W., C.D.W., C.N.W. and E.S.W., 00-3277 at p. 21 (La.2/21/01), 781 So.2d 1223, 1238.
Seven statutory grounds for involuntary termination of parental rights are set forth in La. Ch.C. art. 1015. Only one ground need be established; however, the trial judge must also find that termination is in the child’s best interest. La. Ch.C. arts. 1015,1039; State in the Interest of ML and PL, 95-0045 at p. 4 (La.9/5/95), 660 So.2d 830, 832. Given the draconian nature of an involuntary termination proceeding, the state is required to prove the statutory ground on which it relies by clear and convincing evidence. La. Ch.C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)(hold-ing clear and convincing to be minimum standard of proof in termination cases). A trial judge’s findings on factually-intense termination issues are governed by the manifest error standard of review. State in the Interest of S.M.W., 00-3277 at p. 14, 781 So.2d at 1233.

With that general policy background in mind, we turn to the specific facts of this case. Among the grounds alleged for termination of M.J.A.’s rights was La.Ch. Code art. 1015(5), which states:

LUnless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Louisiana Children’s Code Article 1036 states in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the
parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3)Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Based on the record before us, we find that the trial court committed manifest error by not terminating the parental rights of M.J.A., as the State has proven by clear |fiand convincing evidence that M.J.A. has not substantially complied with her case plan in the almost three years between the time her children were placed in foster care and the time of the trial. For the following reasons, we also find that there is no evidence of any reasonable expectation of improvement on M.J.A.’s part in the near future.

The court-approved case plan developed for M.J.A. remained essentially the same throughout these proceedings. The requirements were essentially that M.J.A. was to maintain adequate housing, maintain sufficient income, attend parenting classes, and complete psychological evaluations.

M.J.A. and her husband failed to maintain a stable home. They moved frequently and were even evicted due to non-payment of rent. Most of the time, one or more of the necessary utilities, such as electricity, water, or gas were shut off due to non-payment. The trial court even noted during the trial that M.J.A. and her husband were unable to sustain these needs without the costs associated with raising three children and openly wondered how they would do so should the children be returned.

The failure to meet this portion of the case plan is directly connected with their failure to meet another part of the plan, maintaining sufficient income. M.J.A. would sporadically cut lawns, sometimes making $20 a week. Her husband would make around $100 a week, but spent most of the money sustaining his crack cocaine addiction.

While M.J.A. did attend parenting classes, and apparently did quite well in the classes themselves, she failed to show any benefit from them when around her children during visits. Even after her best efforts in counseling and parenting assistance, and with the knowledge that her children might be taken from her, M.J.A. | Jailed to substantially improve her parenting skills. During visits with the children she threatened suicide, threatened physical violence toward caseworkers, and repeatedly told the children inappropriate things, such as OCS needed to let them come home so they could do as they pleased, or even that she didn’t care if the children came home. Dr. Eckholdt, the second psychologist to evaluate M.J.A., testified that her belligerent behavior towards caseworkers and the foster parents housing her children was sabotaging the children’s care. After visits, the children were often emotional wrecks, sometimes taking days to calm down, and often suffering from relapses of increased bladder or bowel accidents. It is clear from the record that M.J.A. failed to substantially comply with her case plan.

The trial court found there to be a reasonable expectation of significant improvement in the near future. Again, we disagree. The trial court notes in its reasons for judgment that the State had, at one point in 2001, decided to terminate supervision of the family. It goes on to state that the “only fact that is now different is that there was a sexual abuse scene by a third person who is no longer in contact with [N.J.A.].” We find the fact that Francis Thibodeaux is now incarcerated to be irrelevant to the matter at hand. It does not remedy the fact that he was allowed near the family in the first place. Nor do we look so dismissively upon the fact that N.J.A. was molested.

M.J.A. knew Thibodeaux was a pedophile, from others and by his own admission. In fact, the trial court in its reasons for judgment notes that it warned M.J.A. about Thibodeaux, and that she violated a court order by allowing him near the children. Still, she allowed Thibodeaux to not only stay overnight at her home routinely, but also to be alone with the children. Simply put, M.J.A.’s unbelievably poor judgment placed her children in inevitable danger. Furthermore, she has shown | ^little to no understanding or responsibility for her actions which led directly to N.J.A.’s molestation. Instead, her response was anger toward her own mother for reporting the molestation to the police, an action she blames for her children being removed from her home, and which she told case workers cost her her sole mode of transportation, namely Thibodeaux. And rather than feeling sympathy or empathy toward her daughter after the molestation, M.J.A. became angry with the child for going to her grandmother rather than her. According to the testimony of Dr. Eckholdt, this reaction only places N.J.A. at risk for further trauma.

M.J.A.’s continued relationship with a crack addict is further evidence of her extremely poor judgment. And, contrary to the views expressed by the trial court, there is nothing in the record whatsoever which indicates she can or would choose her children over her husband. Rather, the record shows her repeated decision to stay with him despite the environment his addiction has created for her children. This continued profoundly poor judgment indicates that there is no reason to believe she could protect her children from further harm. Furthermore, the record establishes that M.J.A. is only marginally capable of handling her own affairs due to her mental limitations. We find that she is incapable of handling the raising of the children along with her husband. Should she leave him as the trial court suggests, this would only compound her problems with housing and income, making it even harder for her to be able to raise the children.

Also in its reasons for judgment, the trial court notes that Dr. Buxton suggests reunification with long-term supervision. However, Dr. Buxton’s own testimony indicates that he interviewed the family only once, at the time the children were removed from the family home. He testified that once his evaluations were complete, he was no longer in the best position to determine what, if any, progress had been [¿made in line with the case plan. Rather, the record shows (and Dr. Buxton’s testimony supports) that the caseworkers who regularly saw M.J.A. and the children were in a much better position to determine the progress made with the case plan. These caseworkers clearly thought that little to no progress had been made towards reunification. Accordingly, we find that the trial court’s reliance on Dr. Buxton’s initial opinion as a reason not to terminate to be misplaced.

Finally, the trial court states that due to M.J.A.’s cognitive limitation, the timetables for reunification should be stretched. We find this to be error. Mental illness or deficiencies, standing alone, are insufficient grounds to warrant termination of the parent’s rights. See State ex rel. L.C.K. v. M.E.K., 35,416 (La.App. 2 Cir. 9/26/01), 799 So.2d 555. However, the mental deficiency related to parenting ability can lead to termination of parental rights. Id. In the case sub judice, Dr. Eckholdt expressed serious concern regarding M.J.A.’s ability to parent due to her mental disabilities. The stretching of the timetables to allow M.J.A. more time to prove her ability as a parent is indicative of the trial court’s decision to place her interests over those of her children. The timetables set up for termination are established for the benefit of the children, whose interests are paramount and must be maintained, even at the expense of the rights or desires of M. J.A. ■

The trial court below was clearly moved by M.J.A.’s love for her children. This fact is hard, if not impossible, to ignore. There is no doubt among any who testified in this case as to this love. However, the uncontradicted testimony is that, while she may love them deeply, she does not possess the ability or the judgment to maintain an appropriate, supportive environment for these children. That while she has the desire to be a parent to them, she does not possess the necessary ability. It is apparent from the trial court’s reasons for judgment that it placed M.J.A.’s love |9for her children over the best interests of the children themselves. While this is easy to do in light of her love for them, it is not the feelings or desires of the mother that we must consider. The best interests of the children alone is paramount. The record indicates that the best interests of these children lay in the termination of M.J.A.’s parental rights and the placement of these children for adoption. Accordingly, that is what we must, unfortunately, do.

The decision of the trial court is hereby reversed, and we render judgment, terminating the parental rights of M.J.A. All court costs on appeal are waived.

REVERSED AND RENDERED.

COOKS, J., concurs in the result.

GENOVESE, J., dissents and assigns written reasons.

PETERS, J., dissents for the reasons assigned by Judge GENOVESE.

GENOVESE, J.,

dissenting.

IN disagree with the majority opinion in this matter. I would affirm the trial court judgment dismissing the State’s petition to terminate the parental rights of the mother on the grounds of insufficient proof.

In this case, the majority “renders judgment terminating the parental rights of the mother, M.J.A.” This is a “fact-intensive” case. The undisputed facts and record reveal that the mother is mentally impaired, married to a cocaine-addicted husband, and trying to rear her three biracial children in a less than wholesome environment. The mother has limited mental capacity, limited resources, limited education, and is entirely dependent upon her drug-addicted husband for support.

The trial court found M.J.A. could be a mother to her children and that her parental rights should not be terminated at this time. The majority states that the mother has had her chance and has failed; therefore, her rights are to be terminated.

Unquestionably, this is a manifest error case and the State must prove by dear and convincing evidence that termination of parental rights is warranted. The trial court ruled that the State failed to prove its case. I agree. At the very least, there was no manifest error. The record indicates that the trial judge had handled this case for over four years. He, not the majority, had the opportunity to view the demeanor and judge the credibility of not only the mother but of all witnesses. The majority read the book, i.e., a “cold record.” The trial court judge saw the play. The law does not |2permit an appellate court to substitute its judgment for that of the trial court. Though this case may be viewed differently, there was no manifest error and the trial court was not clearly wrong. In my view, the trial court was in the best position to make this demeanor and credibility call.

Terminating parental rights is the most draconic remedy there is in a civil proceeding. It is tantamount to civil death. There is a viable alternative available which should be considered before implementing the ultimate civil sanction. That alternative would be to continue the children in foster care with State supervision and to allow the mother supervised visitation while she is given a six-month, plan-compliance period to cure the defects. If she were to fail, then her parental rights would be terminated. The trial court felt that with appropriate counseling and supervision by the State, a change of environment, and a little time, M.J.A. could be a viable mother to her children. The mother should be given that one last opportunity before this family unit is permanently dissolved.

For the reasons set forth above, I disagree with the majority’s decision to reverse the trial court and terminate the mother’s parental rights. I would affirm the trial court’s judgment in all respects.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Mary C. HAYES, et al., Plaintiff-Appellee v. STATE FARM INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 40,649-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 20, 2006.

      Seabaugh & Benson, LLC, by Alan Thomas Seabaugh, Jody Todd Benson, Shreveport, for Defendant-Appellant, State Farm Mutual Automobile Insurance Company.
    Bethard & Bethard, L.L.P., by Robert Edgerton Bethard, Coushatta, for Plaintiffs-Appellees, Mary C. Hayes and John W. Hayes.
    Tutt, Stroud & Bordelon, by: Thomas Anthony Bordelon, Shreveport, for Defendant-Appellee, State Farm Insurance Company.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

hAt issue are the trial court’s assessment of 50/50 fault to the two drivers and amount of damages awarded plaintiffs, Mary C. and John Wayne Hayes, for injuries resulting from an auto accident. The judgment of the trial court is amended and, as amended, affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On December 28, 2001, a car driven by Leora Johnson and insured by State Farm Mutual Automobile Insurance Company collided with a vehicle driven by Mary C. Hayes on U.S. Highway 371 in Coushatta. Both vehicles were southbound on the north/south running road.

On the east side of the highway, Piggly Wiggly Drive formed a T-intersection with Highway 371 (Ringgold Drive). Mrs. Hayes stopped at the stop sign where Pig-gly Wiggly Drive entered the highway and then proceeded to turn left onto Highway 371 to travel south. Mrs. Johnson entered Highway 371 from the west side, leaving the parking lot of Southmoor Insurance Company and also driving south. The impact was at Hayes’ passenger side front wheel, front fender and passenger door and at Johnson’s driver’s side front corner.

Mr. and Mrs. Hayes sued John W. Johnson, owner of the vehicle; Leora Johnson, driver; and State Farm Insurance Company for damages. State Farm Mutual Automobile Insurance Company and the Johnsons answered, denied liability and, alternatively, asserted that Mary Hayes’ negligence barred her recovery. In an amended petition, Mr. and Mrs. Hayes asserted that the Johnsons’ liability coverage was insufficient to 12cover the damages and named as a defendant the Hayes’ auto insurer, also State Farm, for uninsured coverage.

Following trial on the merits, the trial judge issued oral reasons for judgment and concluded that the Johnson vehicle entered the road at an angle while she was looking back to the north checking for southbound traffic. Concerning the Hayes vehicle, the trial judge stated that Mrs. Hayes could very well have been across the lane when she got hit and that he did not think she had completed her left turn and was traveling south down the highway. Stating he was very familiar with the location of the wreck, the trial judge found that both parties were completely honest about their versions of entering the road. Since each driver was at fault in some way, the trial court apportioned the fault at 50% each.

In the judgment signed June 6, 2005, the trial court set the following damages:

Special Damages $13,014.79
General Damages $24,000.00
Future Pain and Suffering $ 5,000.00
Future Medical Expenses $ 5,000.00
Loss of Consortium $ 2,500.00

The trial judge gave State Farm a $5,000.00 credit for a medical payment on the Hayes policy and assessed costs against the defendants.

The Johnsons and State Farm appealed, complaining that the trial court erred in assessing liability at 50% each. • The defendants objected to quantum, arguing that some medical treatment was not attributable to the accident; the. general damages were excessive, and future medicals and pain 13and suffering were not proven at trial. The plaintiffs answered the appeal, -requesting that the 50% fault assessed against Mrs. Hayes be reduced to 0% and the costs of the appeal be charged to the defendants.

DISCUSSION

In Bryant v. Newman, 39,437 (La.App.2d Cir.4/20/05), 900 So.2d 343, 348, this court cited the standard set out in Rosell v. ESCO, 549 So.2d 840, 844-845, (La. 1989), which is appropriate in this dispute:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and 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. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest error- — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder 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. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its J^deeision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

0Citations and footnotes omitted.)

Liability

While another trier of fact may have allocated the liability differently, our review of this record reveals that the trial court’s 50/50 apportionment of fault to both drivers is reasonable and should not be disturbed on appeal. The defense contention was that Mrs. Hayes essentially pulled into the path of the Johnson vehicle, while Mrs. Hayes’ position was that Mrs. Johnson had not entered the highway when she began her own left turn and that Mrs. Johnson was looking north while entering the southbound lane. The record shows that both drivers should have been more observant.

Mrs. Hayes testified she looked right, left, and back to the right to determine the road was clear before she turned left onto Highway 371. She did not see the Johnson vehicle prior to the collision which stopped the Hayes vehicle. According to Mrs. Hayes, the two drivers discussed the accident and neither knew what happened.

The investigating officer stated that both Mrs. Johnson and her passenger stated they did not know what happened and that the Johnson vehicle entered the road at an angle from the parking lot on the west side of the road.

Mrs. Johnson testified she was driving her father-in-law’s car accompanied by Stacy Bolyer and her two sick children whom the women had taken to the doctor. They had stopped at the cell phone business in [sSouthmoor Insurance to speak with Mr. Bolyer. Mrs. Johnson stated that she entered the road and “out of the corner of my eye I[saw] a car, and before I knew it I hit it.” She said she slammed on her brakes.

Given the testimony, the evidence, and the court’s familiarity with the accident scene, the trial court was reasonable in concluding that the accident happened when Mrs. Hayes was in the midst of her left turn and Mrs. Johnson was looking back to the north checking for southbound traffic as she pulled southbound onto the road. Both ladies failed to keep a proper lookout and to see the other vehicle. Neither manifest error nor clear wrong occurred in assessing the two drivers with 50% of the fault each.

Quantum

In Robinson v. Tolbert, 40,488 (La.App. 2d Cir.1/20/06), 920 So.2d 346, this court noted that the trier of fact has great discretion when assessing damages. Before an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. The correct procedure for determining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact; likewise, to determine if an award is inadequate, the evidence must be viewed in the light most favorable to the defendant. In a personal injury case, the defendant takes her victim as she finds her and is responsible for all natural and probable consequences of her tortious | r,conduct. When the defendant’s conduct aggravates a preexisting condition, she must compensate the victim for the full extent of the aggravation. Robinson, supra.

Remarkably, Mrs. Hayes was in a total of three auto accidents near the time of this accident. On August 10, 2001, Mr. Hayes was driving Mrs. Hayes home to Shreveport when he blacked out and their vehicle struck a pole. Mrs. Hayes sustained significant injuries which she described as primarily to her right side and to both breasts, one of which required subsequent surgery. Mrs. Hayes sought treatment for her back, right shoulder, and right hip. Mr. Hayes stated that his wife’s injuries were caused by the seatbelt.

In this accident on December 28, 2001, Mrs. Hayes stated she injured a different area in the middle of her back, her left shoulder and neck; in addition, she had headaches and an injured left middle finger which is stiff, swollen, and unable to close into a fist. Mrs. Hayes testified she received injections in her shoulder for pain and wore a back brace when she had to stand for longer than approximately fifteen minutes. She also required a neck roll pillow and a cushion for riding in the car. In her view, the December accident stirred up and worsened the injuries sustained in the August 2001 accident. The injury to her finger totally changed her left hand, which continued to stiffen and worsen after the December 2001 wreck. At trial Mrs. Hayes showed to the trial court her left shoulder area which she stated had weakened -and dropped with muscle deterioration.

|7The third vehicular accident in April 2003 aggravated her previous injuries. Mrs. Hayes testified that her ongoing visits to Dr. Hernandez and to Dr. Swart were related to the December 2001 accident and not to the subsequent April 2003 collision in which she was rear-ended.

The Hayes family and friends described to the court how Mrs. Hayes’ injuries had adversely affected their lives. Following this December 2001 accident, Mrs. Hayes was very reluctant to drive and became a nervous driver who appeared to have road rage, since the middle finger of her left hand did not bend. She was unable to continue assisting her husband with clerical work, bookkeeping, and deliveries in his work. While Mrs. Hayes formerly was a very active house cleaner and gardener, Mr. Hayes now has to perform those duties. Because she did not feel well or sleep well, the couple’s sex life suffered.

A family friend, Linda Clark, testified Mrs. Hayes appeared to be recovering from the August 2001 accident when the December 2001 wreck occurred. Due to neck and shoulder pain in this accident, Mrs. Hayes was unable to continue walking for exercise and to do heavy housework, such as mopping, vacuuming, washing walls, and cleaning bathrooms, which Mrs. Hayes had done prior to the December 2001 accident. Pat Bice stated that Mrs. Hayes was beginning to get out and do things following the August 2001 wreck but the December 2001 wreck was a “setback.” She had more pain in her left side and her finger and was unable to walk or do housework, plus she was unable to and less interested in socializing after the accident.

[sThe Hayeses’ daughter stated that her mother can no longer wear shoes with heels and is very stiff if she sits for long. Before her injury, her mother had been an immaculate housekeeper. Her parents’ home is now “a wreck,” according to their daughter, who said that their social and church activities, such as helping with funerals, have decreased since her mother does not feel well on many occasions.

Dr. Robert C. Hernandez saw Mrs. Hayes in the emergency room after her first accident in August 2001 in which the Hayes vehicle struck the telephone pole at 60 mph. Her primary complaints in August were musculoskeletal injuries of her spine, back, and breast, which later required surgery to remove necrotic tissue.

The doctor acknowledged on cross-examination that the December 2001 collision was low speed and low impact but with torsion because she was hit from the side. In his view, her August injuries were improving at the time of the December wreck in which she sustained a markedly swollen finger which he thought was a major joint injury. In addition, her shoulder complaints showed major aggravation after the second accident in December 2001. Dr. Hernandez treated the shoulder pain and inflammation with periodic shots into the joint, which gave Mrs. Hayes some short term relief. According to the doctor, the episodes of inflammation and pain in her left shoulder could last for years and could be easier to reinjure.

Her recovery from the December 2001 accident at the time of the doctor’s deposition was at 80% function of the left shoulder and 50-60% flexion in the middle left finger. While the potential for a 100% recovery in | flthe left shoulder was present, the doctor explained that Mrs. Hayes was limited in therapy by the pain. Dr. Hernandez explained that Mrs. Hayes did not lack motivation to get over her injury but that the physical therapy was very painful and the shoulder is the weakest joint in the body. She was physically, not emotionally, limited in therapy by the pain.

Dr. Gary H. Swart, chiropractor, began treating Mrs. Hayes in November 2001 for injuries she sustained in the August 2001 accident including neck and shoulder pain, upper back and right lower back pain, along with headaches. She was having moderate to severe shoulder pain, which Dr. Swart stated was more right than left side. His treatment consisted of manipulation, electrical stimulation, and ultrasound. Initial twice-weekly visits were decreased to once a week in mid-November. Dr. Swart described her as improving, having reached 60% of her pre-accident status by November 15 and on December 22, 60% — 70% of pre-accident status.

When Dr. Swart next saw Mrs. Hayes on January 10, 2002, she reported the December 28 auto accident. Her symptoms were severe neck, shoulder and upper back pain with stiffness, with the right a bit more than the left. She seemed to have more shoulder and spine complaints. The doctor opined that her injuries were more severe in the second accident. In addition to the treatments already being administered, Dr. Swart added massage therapy for the injured areas. Her pain worsened in February when she started developing considerable pain in her left shoulder. By her May 2, 2002, visit, Dr. Swart noted that she had actual shoulder capsule pain, which hnhe attributed to the seat belt. He opined that type of injury could manifest itself long after an accident.

Dr. Swart saw her less frequently over the summer of 2002 since pain from her breast surgery made it difficult for her to receive chiropractic treatment. By September 9, she reported increased left shoulder pain and loss of strength in her left arm, with pain in her neck and lower back. Her shoulder had improved on a September 12 visit because she had a recent cortisone shot into that joint. On October 3, she showed some improvement; her shoulder was approximately the same but she had fewer headaches. On October 24, her shoulder was still very sore. In November, she showed improvement for three or four days after treatment after which the stiffness returned. In December, she was in “pretty bad shape,” and in January, she was better since she had recently gotten a shot in her shoulder.

She was in another accident April 1, 2003, in which a driver struck her car from the rear. New symptoms were the onset of mid-back pain and breast pain. Dr. Swart stated she had not resolved all her complaints from the December 28, 2001, accident when the April 2003 accident increased her pain, which was both related to that last accident and worsened her preexisting injuries. Dr. Swart stated that after the second accident in December 2001 (at issue here), her shoulder complaints were in the forefront. Muscle spasms and trigger points were objective findings by the chiropractor after all three accidents.

On being asked when she could have completed treatment for the second accident (before the third accident), Dr. Swart gave a “rough estimate” l^that she probably would have reached maximum medical improvement within four to five months, but she would never reach her pre-acci-dent health status. The chiropractor stated that her pain associated with the second accident was moderate to severe and that pain never reached the mild stage.

When viewed in the light most favorable to Mrs. Hayes, the general damages awarded, while generous, were reasonable based on the these facts and the particular circumstances of this victim who bears 50% of the fault in this collision.

The treating doctors agreed that she sustained substantial injuries in the December 2001 collision which worsened the initial injuries from which both doctors agreed she was recovering. While she had some shoulder problems in the past and with the first accident, the medical testimony was that she sustained significant injury to the left shoulder, which was problematic following the December 2001 wreck. Dr. Hernandez described her finger injury as “major.” Lay testimony clearly established that Mrs. Hayes suffered an appreciable reduction in the quality of all aspects of her life due to the injuries sustained when her vehicle was struck by Mrs. Johnson’s vehicle in December 2001. Our review of the testimony and the medical records placed into evidence do not reveal that the trial court committed manifest error or was clearly wrong in setting the general damages.

Asserting that the trial court erred in awarding all of Mrs. Hayes’ requested medical expenses ($13,014.79) following the December 2001 accident, the defendants contended that portions of that medical treatment were related to pre-existing conditions and the April 2003 accident. Our | ^examination of the medical bills submitted by the plaintiffs reveals that a reduction of a portion of the award for the period following the April 1, 2003, accident is appropriate. Dr. Swart detailed specific injuries from the third wreck, including new mid-back pain and new right breast pain and increased right'suboccipital (base of skull) pain. Dr. Swart increased her visits after the third accident and attributed her increase in pain following the April 1, 2003, rear-end collision to both the December 2001 and the third accidents. Because Mrs. Hayes suffered unique injuries in each of the three collisions along with the documented aggravations of preexisting injuries, we find that the trial court erred in awarding the entire amount of Mrs. Hayes’ medical expenses for the second accident. Therefore, we amend the award for medical expenses to reduce it by a third to $8,676.53.

The defense argued that Mrs. Hayes failed to prove she was entitled to recover for future medical expenses. In Hanks v. Seale, 2004-1485 (La.6/17/05), 904 So.2d 662, the supreme court explained that when the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses because the record does not provide the exact value of the necessary expenses. In that situation, the court must be able to determine from evidence of past medical expenses and other evidence what is the minimum amount upon which reasonable minds could not disagree will be required. Hanks, supra.

Both doctors agreed that Mrs. Hayes would not be likely to fully recover from her December 2001 injuries. Dr. Hernandez stated that it might be possible for her to go from an 80% recovery to a 100% recovery after six | ^months with a professional shoulder physical therapist that was “pretty expensive. There are only a few people that do really good shoulder work, in this area.” Because plaintiffs did not establish that the future physical therapy or any other medical treatment was both necessary and inevitable, we conclude that the trial court erred in awarding $5,000.00 for future medical expenses.

We reject the defendants’ complaint about the trial court’s award for Mrs. Hayes’ future pain and suffering. The testimony of both Dr. Hernandez and Dr. Swart was consistent that Mrs. Hayes was not likely to ever recover 100% from the injuries sustained in the December 2001 accident. While Dr. Swart gave a “rough estimate” that Mrs. Hayes could reach maximum medical improvement in four to five months (after the April 2003 wreck, had it not occurred), he was clear that she would not recover completely. Dr. Hernandez stated at his deposition that her pain and symptoms could last for years. Dr. Swart’s chiropractic treatments gave Mrs. Hayes some temporary relief, and Dr. Hernandez’s shots into her shoulder provided pain relief for longer periods. The trial court was not unreasonable in finding that she was entitled to be awarded $5,000.00 for her future pain and suffering.

DECREE

Based upon our review of this record, we find that the trial court erred in awarding the plaintiffs $5,000.00 for future medical expenses and in awarding the entire requested amount of the medical expenses. Therefore, the judgment of the trial court is amended to delete the $5,000.00 award for future medical expenses and to reduce by one third the special damages for 114medical expenses from $13,014.79 to $8,676.53. In all other respects, the judgment of the trial court is affirmed with the plaintiffs and the defendants paying the costs of the appeal.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The loss of consortium award to Mr. Hayes was not at issue in this appeal.


author: MARION F. EDWARDS, Judge.

text:
    Marcel TAYLOR v. Patrick J. BRANDNER, Individually, and as Trustee of the Patrick J. Brandner Trust, Jed D’Arensbourg, Peter J. Fennel, Individually, and as Trustee of the Peter J. and Ruth’s K. Fennel Trust R-501, Barbara Lawler, T-Fab, Inc. and Ruth’s Chris Steak House Franchise, Inc.
    No. 05-CA-970.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Rehearing Denied May 18, 2006.

      Edward R. Kohnke, IV, Joseph N. Mole, Ann Marie LeBlanc, Frilot, Partridge, Kohnke, & Clements, L.C., New Orleans, Louisiana, Patrick J. Fanning, Attorney at Law, Gretna, Louisiana, Donald J. Campbell, Campbell & Williams, Las Vegas, Nevada, for Plaintiff/Appellee-Second Appellant.
    Robert A. Vosbein, Mark R. Beebe, Elizabeth A. Roussel, Adams and Reese LLP, New Orleans, Louisiana, Steven W. Copley, Ernest E. Svenson, Phillip J. Antis, Jr., Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P., New Orleans, Louisiana, Thomas E. O’Keefe, Heathrow, Florida, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| sPlaintiff/appelIee, Marcel Taylor, a resident of Las Vegas, brought the instant action seeking declaratory and injunctive relief against defendants, shareholders of T-Fab, Inc., a Nevada corporation, of which Taylor is both director and president, and Ruth’s Chris Steak House Franchise, Inc., a Louisiana corporation. Defendants appeal from a trial court ruling that determined Taylor to be the sole franchisee in two separate contracts executed between Taylor and Ruth’s. Chris Steak House Franchise, Inc., which were also signed by Taylor in his capacity as a representative of T-Fab. Taylor appeals from a trial court judgment that granted a Motion to Strike Affidavit in favor of Ruth’s Chris Steak House Franchise, Inc. For the following reasons the judgment of the trial court is affirmed.

On July 1, 1989, Marcel Taylor (hereinafter referred to as “Taylor”), after ongoing negotiations with Ruth’s Chris Steak House Franchise, Inc. (hereinafter referred to as “RCSH”), executed an option to open a Ruth’s Chris restaurant franchise on Paradise Road in Las Vegas, Nevada. In order to raise capital for the venture, Taylor assembled a group of investors into a Nevada corporation named T-Fab, Inc. (hereinafter referred to as “T-Fab”). Current shareholders of T-Fab, in 14addition to Taylor, are Patrick J. Brand-ner, individually and as Trustee of the Patrick J. Brandner Trust; Jed D’Arens-bourg; Peter J. Fennel, individually and as Trustee of the Peter J. and Ruth K. Fennel Trust R-501; and Barbara Lawler (hereinafter referred to as the “T-Fab Investors”). In the July 1, 1989 agreement, Taylor signed individually and in his capacity as president of T-Fab. The agreement, in relevant part, provided:

THIS AGREEMENT is made on this 1st day of July, 1989, between RUTH’S CHRIS STEAK HOUSE FRANCHISE, INC., a Louisiana Corporation, with its principal office located at 711 North Broad Street, New Orleans, Louisiana 70119, (the “Franchisor”), and T-FAB, INC., a Nevada corporation organized under the laws of the State of Nevada, with its principal office located at 3900 Paradise Road, Las Vegas, Nevada 89101 and W. MARCEL TAYLOR (the “Franchisee”) [.]

(Emphasis added.)

On November 23, 1993, a second franchise agreement was executed between the parties for another Las Vegas location on Flamingo Road. Once again, the language in the agreement provided:

THIS AGREEMENT is made on this 23rd day of November, 1993, between RUTH’S CHRIS STEAK HOUSE FRANCHISE, INC., a Louisiana Corporation, with its .principal office located at 711 North Broad Street, New Orleans, Louisiana 70119, (the “Franchisor”), and T-FAB, INC., a Nevada corporation organized under the laws of the State of Nevada, with its principal office located at 3900 Paradise Road, Las Vegas, Nevada 89109[sic] and W. MARCEL TAYLOR (the “Franchisee”).

(Emphasis added). Both agreements provided that any disputes arising under the contract would be governed by Louisiana law.

After relations between Taylor and the T-Fab investors apparently began to grow contentious over time, on December 28, 2004, Taylor brought the instant action in the Twenty-Fourth Judicial District Court for the Parish of Jefferson in order to have a determination made as to the identity of the “franchisee” in the two | .¡separate contracts at issue. Taylor further sought in-junctive relief against the T-Fab investors, prohibiting them from “engaging in any activity in violation of Marcel Taylor’s exclusive rights under the Franchise Agreements.”

Thereafter, both Taylor and T-Fab filed cross Motions For Summary Judgment, with each seeking to be declared “franchisee” under the contracts with RCSH. Following a hearing on May 27, 2005, the trial court granted Taylor’s Motion for Summary Judgment, denied T-Fab’s cross Motion for Summary Judgment, and further granted a Motion to Strike Affidavit filed on behalf of RCSH.

T-Fab has filed the present appeal contesting th'e trial court’s summary judgment in favor of Taylor. Taylor has filed an appeal contesting the judgment that granted a Motion to Strike Affidavit in favor of Ruth’s Chris Steak House Franchise, Inc.

LAW AND ARGUMENT

On appeal, T-Fab asserts that the trial court erred in allowing extrinsic evidence about the intent of the parties to the contracts at issue and in finding that Taylor was the sole franchisee under the two agreements.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider | (¡whether the^summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

In Kappa Loyal, L.L.C. v. Plaisance Dragline & Dredging Co., Inc., this Court summed up the law on interpretation of contracts:

We are obligated to give legal effect to contracts according to the true intent of the parties. LSA-C.C. art. 2045. The true intent of the parties to a contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. LSA-C.C. art. 2046. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. In such cases, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. LSA-C.C. art. 1848. Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. LSA-C.C. art. 2053. Whether a contract is ambiguous or not is a question of law. Where factual findings are pertinent to the interpretation 17of a contract, those factual findings are not to be disturbed unless manifest error is shown.

(Footnote with citations omitted.)

Furthermore, “In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.” LSA-C.C. art. 2056.

In the present case, the language of the contracts at issue, in relevant part, stated:

THIS AGREEMENT is made ... between RUTH’S CHRIS STEAK HOUSE FRANCHISE, INC., a Louisiana Corporation, with its principal office located at 711 North Broad Street, New Orleans, Louisiana 70119, (the “Franchisor”), and T-FAB, INC., a Nevada corporation organized under the laws of the State of Nevada, with its principal office located at 3900 Paradise Road, Las Vegas, Nevada 89109[sie] and W. MARCEL TAYLOR (the “Franchisee”) [.]

(Emphasis added.)

In its Reasons For Judgment, the trial court, in relevant part, stated:

Both restaurants have been very successfully run by Mr. Taylor through T-Fab, Inc. since them inception. Suddenly, two of the shareholders of T-Fab have attempted to wrestle control of the restaurants from Taylor which has precipitated the initiation of the instant case.
The sole issue decided by this Court is the identity of the franchisee under the Franchise Agreements. Counsel for all parties have agreed that the Franchise Agreements are clear and unambiguous. It is the opinion of this Court that the language in the two agreements clearly designate Marcel Taylor as the sole Franchisee.
In examining the wording of the agreements, the word “Franchisee” is written in the singular and appears in parenthesis only after Taylor’s name. Had it been the intention of the parties to the agreement to have more than one franchisee, the word | ¿would have been written in the plural or the word franchisee would have been written behind both names. Accordingly, it is the determination of this Court that the intent of the parties to the Franchise Agreements was that Marcel Taylor was to be the sole franchisee.

T-Fab first asserts that, although the trial court stated in its Reasons For Judgment it found that the language of the Franchise Agreements is unambiguous, it erred in allowing its ruling “to be influenced by extrinsic evidence and its beliefs about the subjective intent of the parties to the agreements.” Specifically, T-Fab points to two sections of the judgment wherein the trial court stated that T-Fab was attempting to “wrestle control” of the restaurants from Taylor and that “the intent of the parties to the Franchise Agreement was that Marcel Taylor was to be the sole franchisee.”

As noted by the First Circuit in the case of Davis v. Farm Fresh Food Supplier :

Written reasons for judgment are considered to be interlocutory rulings and do not carry the finality of a judgment. Prior to final judgment, a trial court may, at its discretion, change the substance or the result of interlocutory rulings. If a disparity exists between the judgment and the written reasons for judgment, the final judgment is definitive. Sanford v. Sanford, 468 So.2d 844, 845 (La.App. 1st Cir.1985); Carner v. Carner, 97-0128, p. 5 (La.App. 3rd Cir.6/18/97), 698 So.2d 34, 36.

In the present case, the trial court wrote in the Judgment itself:

After considering the arguments of counsel and the applicable law, it is the opinion of this Court that there should be judgment in favor of plaintiff, Marcel Taylor. The Court agrees with all counsel that the Franchise Agreements are clear and unambiguous, and that a reading of the contracts as written leads to no absurd consequences. Thus, this Court finds that Marcel Taylor is the sole franchisee under the agreements ....

lflTo the extent that the trial court, in its Reasons For Judgment, may have tracked the language of the pleadings of the parties, or phrased its finding of fact regarding the identity of the franchisee under the contract to be the “intent” of the parties, its reasons for granting summary judgment are consistent in both the Judgment and the Reasons For Judgment. Specifically, the trial court found the unambiguous language of the contract led to the conclusion that Marcel Taylor was the sole franchisee under the agreement. In our review of both the Judgment and the Reasons For Judgment, we find no merit in defendant’s argument that the trial court made its ruling based on extrinsic factors.

T-Fab next assigns as error the trial court’s interpretation of the contract at issue, which held that Taylor was the sole franchisee.

This Court has previously noted that when appellate review is not premised on any factual findings made by the trial court but is based upon an independent review and examination of the contract on its face, the manifest error rule is inapplicable. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect.

Based upon our independent review of the contracts at issue, we first find, as the parties contend, that the language of the franchise agreements is unambiguous and, therefore, does not require us to consider extrinsic evidence in support of the parties’ intent. The true intent of the parties to a contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. We further affirm the trial court in finding that the two franchise contracts, on their faces, clearly designate Taylor as the sole franchisee under the agreements.

|inBecause of this holding, we will pre-termit discussion of Taylor’s sole assignment of error.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear its own cost on appeal.

AFFIRMED.

      . Bua v. Dressel, 96-79 (La.App. 5 Cir. 5/28/96), 675 So.2d 1191, writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348 (citing Reynolds v. Select Prop., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180).

      . Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5 Cir. 4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305.

      . 03-124 (La.App. 5 Cir. 6/19/03), 848 So.2d 765, 769, writ denied, 2003-2348 (La. 12/12/03), 860 So.2d 1154.

      . 2002-1401 (La.App. 1 Cir. 3/28/03), 844 So.2d 352, 354.

      . T.L. James & Co., Inc. v. Sam's Truck Serv., Inc., 03-1470 (La.App. 5 Cir.5/26/04), 875 So.2d 977.

      . LSA-C.C. art. 2046.


author: WALTER J. ROTHSCHILD, Judge. CANNELLA, J.,

text:
    WILLOW, INCORPORATED v. The JEFFERSON PARISH COUNCIL and the Parish of Jefferson.
    No. 05-CA-754.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Rehearing Denied May 18, 2006.

      Kyle Schonekas, Thomas M. McEachin, Attorneys at Law, New Orleans, LA, Pro-vino Mosca, Attorney at Law, Harahan, LA, for Plaintiff/Appellee.
    Daniel A. Ranson, Michael D. Peytavin, Glenn D. Price, Jr., Attorneys at Law, Gretna, LA, Gretna, LA, for Defendant/Appellant.
    David Loeb, Daniel E. Zelenka, II, Denise M. Pilie, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

[¡¡Defendants, the Jefferson Parish Council (“Council”) and the Parish of Jefferson, appeal from a trial court judgment reversing the Council’s decision to deny Willow, Inc.’s resubdivision application for the proposed development of a certain tract of land in the Woodland West Subdivision in Harvey, Louisiana. For the reasons which follow, we reverse, finding that the Council’s decision to deny Willow’s resubdivision request was not arbitrary or capricious.

FACTS AND PROCEDURAL HISTORY

In May 2002, Willow, Inc., a real estate development company, purchased approximately 61 acres of land from the Woodland West Country Club, Inc. This property had formerly comprised the Woodland West golf course. In November 2003, Willow sought to develop a portion of this land into a neighborhood of residential homes and filed a resubdivision application with the Jefferson Parish Planning Department for approval.

^Willow’s subdivision plan initially came before the Jefferson Parish Planning Advisory Board (“PAB”) at its January 8, 2004 meeting, and the issue was deferred to January 15, 2004. At the January 15, 2004 meeting, residents of the Woodland West subdivision expressed concerns with the proposed resubdivision of the golf course property and the PAB deferred the matter to February 12, 2004. Willow submitted a revised resubdivision plan, but at the February 12, 2004 meeting, the Planning Department advised that the revised plan did not comply with the neighborhood norm requirements and there were still drainage issues. The matter was deferred until the March 11, 2004 meeting and then to the April 8, 2004 meeting. Willow submitted a third resubdivision plan, but at the April 8, 2004 meeting, the Planning Department advised that this plan did not meet the neighborhood norm requirements and that drainage was still an issue, so the matter was deferred to the May 13, 2004 meeting.

On April 16, 2004, Willow submitted its fourth resubdivision plan. At the May 13, 2004 hearing, it was discussed that details of the drainage plan and other issues still needed to be worked out, so the matter was deferred until the June 10, 2004 meeting. On May 4, 2004, Willow submitted its fifth resubdivision plan. At the June 10, 2004 hearing, the Planning Department recommended approval of Willow’s plan. However, after several issues were raised by the PAB, the matter was deferred to August 12, 2004. The matter was deferred to August 19, 2004, and then again to September 9, 2004. At the September 9, 2004 meeting, the PAB voted to recommend approval of Willow’s resubdivision application if several stipulations were met.

After numerous deferrals, revisions, and discussions regarding the proposed resub-division of this tract of land, the matter came before the Jefferson Parish Council on November 17, 2004. At this meeting, the Council heard arguments ^regarding Willow’s resubdivision request, which was assigned Summary No. 21431. At the hearing, the Director of the Planning Department, Edwin Durabb, indicated that the Department of Public Works and the Director of Engineering had approved the plans, and that the Planning Department recommended approval of the proposed subdivision with four stipulations. Michael Bracey of the PAB advised the Council that the PAB recommended approval of the proposed subdivision if the four stipulations set forth by the Planning Department and two additional stipulations were met. The Council also heard from several residents regarding many concerns that they had about the proposed resubdivision. After a lengthy discussion on the many issues involved in this matter, the Council denied the ordinance containing Willow’s resubdivision application, summary no. 21431. Summary no. 21459, which concerned Willow’s request for a waiver of stormwater detention requirements, was cancelled and removed from the Council meeting’s agenda due to the Council’s decision to deny Willow’s resubdivision application.

On November 24, 2004, Willow filed a Petition for Writ of Certiorari, Writ of Mandamus, and Damages, against the JefT ferson Parish Council and the Parish of Jefferson, asserting that the Council’s denial of its application for resubdivision was arbitrary, capricious, and unreasonable. They further argued that the Council’s refusal to approve its resubdivision application deprived Willow of its constitutional right to use its land and constituted a compensable taking of property under the Louisiana and United States Constitutions. In its petition, Willow requested reversal of the Council’s denial of its resubdivision application and a writ of mandamus ordering defendants to approve its application. Alternatively, Willow sought a judgment ordering defendants to pay just compensation to Willow for the taking of its land. The Home Builders Association for Greater New Orleans]£(“HBA”) filed a Petition for Intervention, asserting that there would be a significant reduction in economic activity and a direct and negative impact on the members of HBA if the denial of Willow’s application is not reversed.

On December 28, 2004, the Council and Jefferson Parish filed Dilatory and Peremptory Exceptions of Improper Cumulation of Actions, Unauthorized Use of Summary Proceedings, No Cause of Action for Mandamus, No Cause of Action for Damages, and Prematurity. These exceptions came for hearing on January 26, 2005, and the trial court rendered a judgment denying the exceptions on February 16, 2005. In this judgment, the trial court further ordered that “the Court will limit its review to the documents contained in the public records of Jefferson Parish in its determination of whether or not defendants acted arbitrarily or capriciously in denying Willow’s resubdivision application.” The" Council and Jefferson Parish filed a writ application seeking review of the trial court’s judgment, but this Court denied writs.

On March 30, 2005, Willow’s Petition for Writ of Mandamus and Writ of Certiorari came before the trial court for hearing. Based on the trial court’s prior ruling that it would limit the evidence to “the public records of Jefferson Parish,” the parties submitted the case on 20 exhibits submitted by Willow and 78 exhibits submitted by the Council and Jefferson Parish. The trial court allowed the Council and Jefferson Parish to proffer the testimony of witnesses by deposition.

On April 6, 2005, the trial court rendered a judgment, ordering that a writ of mandamus be issued directing the Council to approve Willow’s resubdivision application as submitted, including Summary No. 21459, which was the request for waiver of stormwater detention requirements. The trial court further ordered that if “the appellate courts should reverse this Court’s ruling that Willow is entitled to a writ of mandamus, that a writ of certiorari be issued reversing the Jefferson Parish ^Council’s denial of Willow’s resubdivision application.” In its reasons for judgment, the trial court found that the Council’s decision to deny Willow’s application was arbitrary, capricious, unreasonable, and an abuse of discretion in its exercise of its police powers.” The Council and Jefferson Parish appeal the trial court’s April 6, 2005 judgment.

DISCUSSION

On appeal, the Council and Jefferson Parish argue that the trial court erred in ruling that the Council’s decision to deny Willow’s application for resubdivision was arbitrary, capricious, and unreasonable. The Council and Jefferson Parish contend that the Council’s decision to deny Willow’s resubdivision application was based on concerns for the safety and welfare of the public and that Willow did not meet its burden of proving that the Council’s decision was arbitrary and capricious. We agree.

Land use is subject to the police power of various governing bodies, and the courts will not interfere with the decisions of these bodies unless it is clear that their action is without any relation to the public health, safety, or general welfare. Bourbon Country Estates, Inc. v. St. James Parish, 92-582, 92-583 (La.App. 5 Cir. 12/16/92), 611 So.2d 180, 182, writ denied, 93-152 (La.3/12/93), 613 So.2d 997. In reviewing a land use decision, the issue is whether the governing body’s decision is arbitrary and capricious. Palermo Land Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482, 492 (La.1990). The plaintiff bears the burden of proof to establish that the governing authority has acted arbitrarily. Bourbon Country Estates, Inc. v. St. James Parish, supra. To determine if the governing authority’s decision regarding a resubdivision request is valid, the trial court must ask whether the decision bears so little relationship to public safety, health, or general welfare as to render it arbitrary and capricious. | ¡¡Cerruti v. Parish of Jefferson, 94-608 (La.App. 5 Cir. 1/18/95), 650 So.2d 315, 317.

At the November 17, 2004 Council meeting, Edwin Durabb, who is the Director of the Planning Department for Jefferson Parish, indicated that the Planning Department recommended approval of the proposed subdivision, if four stipulations were met. Michael Bracey of the PAB informed the Council that the PAB would recommend approval of the plans if the stipulations set forth by Mr. Durabb were met, as well as two additional stipulations. The Council also heard from the vice-president of the HBA and a representative of Willow in support of Willow’s resubdivision plan. The Council heard opposition to the proposed resubdivision by neighboring residents who were concerned with numerous issues, including traffic, drainage, and flood insurance.

We have thoroughly reviewed the record and exhibits in this case, and we find that the Council’s decision was not arbitrary and capricious. We note that the proposed ordinance submitted by Willow does not set forth all of the stipulations required for recommendation of approval by both the Planning Department and the PAB. Further, we note that there are issues regarding the safety of overlapping utility and drainage servitudes, which could create a potential hazard to individuals involved in the maintenance of the drainage system as well as utility workers. Willow’s failure to address the safety issues involved with the overlapping servi-tudes is a legitimate reason for the Council to have denied the resubdivision application, based on concern for the safety and welfare of the public.

Willow argues that the Council based its decision on the complaints of “vocal residents.” The Council is not restricted to technical considerations in making land use decisions, and it may consider other factors affecting the area. Cerruti v. Parish of Jefferson, supra at 318. Although legitimate concerns of 19neighboring residents is a factor that the Council may consider, the record supports the Council’s position that it did not rely solely on the objections of neighboring residents, as there were objective issues and concerns in this case.

We agree with Willow and the HBA that the Council cannot deny a request for resubdivision and deprive a landowner of the use of his property without any valid reason related to the public safety, health, and welfare. We further note that it would have been prudent for the Council to set forth its reasons for denying Willow’s application. However, in this case, our independent review of the record reveals that legitimate safety concerns remain. Therefore, the Council cannot be compelled to approve Willow’s resubdivision request at this time. We do not believe that this ruling constitutes a “taking” of Willow’s property, because Willow’s resubdivision request can be amended and resubmitted, and the Council must approve the request if legitimate public safety and welfare concerns are resolved.

When the propriety of the Council’s decision is debatable, it should be upheld. After reviewing the evidence and the law applicable to this case, we conclude that the Council was not arbitrary and capricious when it denied Willow’s resubdivision application, because the Council’s actions could reasonably have been based on legitimate considerations related to public safety, health, and welfare. Accordingly, we find that the trial court erred in reversing the Council’s decision to deny Willow’s re-subdivision application and we vacate the writ of mandamus.

Considering our ruling reversing the trial court’s judgment and reinstating the Council’s decision, we pretermit discussion and resolution of the remaining assignments of error and issues set forth in this appeal.

DECREE

|10For the foregoing reasons, we reverse the trial court judgment and vacate the writ of mandamus.

REVERSED; WRIT OF MANDAMUS VACATED.

CANNELLA, J., concurs with reasons.

CANNELLA, J.,

Concurring.

LI concur in the result reached by the majority. The decision of the Council to deny Willow’s resubdivision application cannot be arbitrary and capricious as it appears here where no reasons were given for the action. However, since our own review of the record reveals legitimate safety concerns remaining at the time the application was considered, I concur in the result. If Willow had satisfied the PAJB stipulations, the Council’s denial without reasons might be viewed differently.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Terry C. ROCHE.
    No. 05-KA-237.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Rehearing Denied May 17, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Martin A. Belanger, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for PlaintiflyAppellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

| ^Defendant, Terry Roche, appeals his conviction of possession of cocaine, a violation of LSA-R.S. 40:967(C). On appeal, he assigns the following errors:

1. The district court committed manifest error when it denied Roche’s Motion to Suppress because the record overwhelmingly supports the fact that the arresting officer only stopped, detained and arrested Roche because he knew Roche had been arrested before for drug charges — not because Roche was drinking from an open container.
2. The district court’s ruling, which denied Roche’s Motion to Suppress, violated Roche’s privacy rights because Roche was arrested for committing a minor misdemeanor infraction.

After thorough consideration of the evidence and applicable law, we affirm.

PROCEDURAL HISTORY

On March 10, 2004, the Jefferson Parish District Attorney filed a Bill of Information that charged Roche with possession of heroin in violation of LSA-R.S. 40:966(C) (count one) and possession of cocaine in violation of LSA-R.S. 40:967(C) (count two) on February 10, 2004. On the following day, defendant Lpled not guilty to these charges. On August 25, 2004, the trial court denied defendant’s Motion to Suppress Evidence. Thereafter, on September 28, 2004, the Bill of Information was amended, and count one, possession of heroin, was nolle prossed. As such, only count two, possession of cocaine, in Case No. 04-1684, is the subject of this appeal.

Defendant waived his right to a jury trial. After a bench trial on September 28, 2004, defendant was convicted of possession of cocaine. Simultaneously, defendant was also found guilty on a drug paraphernalia charge.

In his brief, defendant requests that this Court reverse his conviction and sentence for possession of cocaine and possession of drug paraphernalia. However, this appeal concerns only Case No. 04-1684, possession of cocaine. Possession of drug paraphernalia was separately charged in another Bill of Information. Defendant also argues in his brief that he should be permitted to withdraw his guilty plea to the instant charges in light of his Fourth Amendment violation. However, the possession of cocaine conviction, Case No. 04-1684, which is the subject of this appeal, resulted after a bench trial and not a guilty plea.

On November 18, 2004, defendant was sentenced on the possession of cocaine charge, under the proper case number of 04-1684, to imprisonment for 40 months with the Department of Corrections.

The State filed a multiple offender Bill of Information on November 18, 2004, alleging defendant was a third felony offender and seeking to enhance his conviction in Case No. 04-1684, possession of cocaine. Defendant had previously | ¿been convicted and sentenced for distribution of cocaine and possession of cocaine. On this same day, defendant admitted that he was a third felony offender as alleged, and the trial court accepted the admission. The trial judge found defendant to be a third felony offender, vacated defendant’s original 40-month sentence and imposed the negotiated 40-month sentence with the Department of Corrections without benefit of probation or suspension of sentence.

On November 18, 2004, defendant filed a Motion for Appeal. On March 28, 2005, defense counsel filed an Anders brief and a Motion and Order to Withdraw as Counsel of Record. This Court issued an Order on January 4, 2006, which denied defense counsel’s motion and ordered defense counsel to submit a brief addressing the ruling of the trial court’s denial of defendant’s Motion to Suppress. The order removed the case from the January 9, 2006 docket and required that it be placed on the next available docket. Defense counsel filed a brief on defendant’s behalf on January 23, 2006.

FACTS

According to Officer Jerry Broome, a Gretna patrol officer, on February 10, 2004 at approximately 1:00 a.m., he observed four subjects standing in the front of 908 Cook Street, located in a high crime area, consuming alcohol out of beer cans. The officer knew defendant lived there because he had arrested him there several months before for possession of heroin. Officer Broome testified that he stopped and placed the four subjects under arrest for having open containers and handcuffed them for his safety, since he was outnumbered. The officer testified Rthat he conducted a “pat-down” of defendant and located in his jean pocket a spoon, which had been burned on its bottom and contained a white residue, and a piece of cardboard with a white powdery substance on it in a small plastic bag. The residue on the spoon and cardboard were tested and both tested positive for illegal drugs.

Defendant was charged with having an open container in violation of Gretna Ordinance 16-124, and possession of heroin, cocaine, and paraphernalia. At the time of the field test, the officer thought he was using a heroin test on the spoon and a cocaine test on the cardboard, but the lab results revealed he was using two cocaine tests. Forensic scientist, Andrea Travis, testified at trial that the white powder on the spoon and the piece of cardboard both tested positive for cocaine.

At trial, Deborah McGinnis, one of the female subjects who was arrested, testified that they were not outside drinking that night, and the officer removed the spoon and cardboard from the house. Defendant also testified that he was not drinking beer with three other people when he was on the sidewalk in front of his house and the officer stopped and called him over. Defendant testified that he was arrested after being told there was a probation attachment issued for him. According to defendant, the officer searched him, found nothing, and then put him in the officer’s car. He testified that the officer did not find the spoon and cardboard in his pocket. On rebuttal, Officer Broome denied going into the residence and again testified that the evidence was found on defendant’s person.

ASSIGNMENTS OF ERROR NUMBER ONE AND TWO

Defendant challenges the legitimacy of his arrest, arguing that the officer used his minor infraction as a pretext to searching him and later arresting him for drug possession. Defendant argues he was stopped because of the officer’s [r,previous run-in with him and that the officer did not have probable cause to detain and arrest him for possession of illegal drugs. Further, defendant argues that his privacy rights were violated by the officer when he was purposefully detained, searched, and arrested for committing a minor offense of drinking from an open alcoholic beverage container while standing in front of his residence. As such, defendant argues that the objects seized from his person, including the test results from those objects, should have been suppressed since they were illegally obtained by the officer who violated his rights against unreasonable searches and seizures.

The State responds that the record establishes that the trial court’s decision to deny the Motion to Suppress evidence was proper. It argues that defendant was lawfully stopped when the officer observed the open container municipal violation, citing Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) and LSA-C.Cr.P. art. 213. The State further argues that the evidence was lawfully seized when the officer conducted a pat-down search for officer safety and that Louisiana courts have upheld protective pat-downs associated with a municipal stop. The State contends that the evidence did not result from a search incident to arrest.

Although defense counsel has separated this argument into two Assignments of Error, this Court treats both assignments together.

At the August 25, 2004 suppression hearing, Officer Broome stated that at first his intent was not to arrest defendant, but to issue him a summons for having the open container; however, he later agreed that when he got out of his car his intent was to arrest all four persons. Although Officer Broome stated that if defendant would have had nothing on his person, he would have been issued a summons, he claimed the reason he was under arrest was because of the open container. Officer Broome admitted that he could have given defendant a |7summons. At trial, Officer Broome testified that when he approached the subjects he “advised all four subjects they were under arrest and placed them in handcuffs.” All were transported to the jail, where the two females were later released and issued summonses for the violation of the ordinance. The other male was arrested on a paraphernalia charge and on outstanding attachments.

Officer Broome was the only witness to testify at the Motion to Suppress hearing. Officer Broome’s trial testimony was essentially consistent with his testimony from the suppression hearing, except, in addition, at trial Officer Broome clarified that he waited for assisting units before conducting a search on the subjects.

At the Motion to Suppress hearing, defendant argued that the arrest was a pretext and that-the selective matter of arrest was offensive to the Fourth Amendment.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Warrant-less searches and seizures are unreasonable per se unless justified by one of the exceptions to the warrant requirement. The State bears the burden of proving the admissibility of evidence that is seized without a warrant. Trial courts have great discretion when ruling on a Motion to Suppress. As such, the ruling of a trial court on a Motion to Suppress will not be disturbed absent an abuse of that discretion. In determining whether a Motion to Suppress ruling was correct, the court is not limited to the evidence |sadduced at the hearing on the motion, but may consider all pertinent evidence given at the trial of the case.

We find that Officer Broome did in fact arrest all four persons. He testified that it was his intent to arrest and that he in fact arrested defendant and his companions. In this instance, handcuffing is evidence of arrest beyond detention for an investigatory stop.

According to the City of Gretna, Louisiana, Code of Ordinances, Section 66-82 (Public consumption of alcoholic beverages prohibited), which was formerly designated as Section 16-124, provides, in pertinent part:

(a) On streets, etc. No drink with an alcoholic content may be consumed on the streets, sidewalks or neutral grounds of the city.

LSA-C.Cr.P. art. 213(1) authorizes a peace officer to arrest a person without a warrant when the person has committed a misdemeanor offense in the officer’s presence and if the arrest is made immediately or on close pursuit.

LSA-C.Cr.P. art. 211 provides in pertinent part:

A. When it is lawful for a peace officer to arrest a person without a warrant for a misdemeanor, or for a felony charge of theft or illegal possession of stolen things when the thing of value is one hundred dollars or more but less than five hundred dollars, he may give a written summons instead of making an arrest if all of the following exist:
(1)The officer has reasonable grounds to believe that the person will appear upon summons;
(2) The officer has no reasonable grounds to believe that the person will cause injury to himself or another or damage to property or will continue in the same or a similar offense unless immediately arrested and booked;
(3) There is no necessity to book the person to comply with routine identification procedures.

| ciDefendant argues that LSA-R.S. 32:300, the statute for the most severe infraction for open containers, strictly prohibits the accused from being taken into custody for violating the open alcoholic beverage container statute. However, LSA-R.S. 32:300 is inapplicable to the present case because this statute involves the possession of alcoholic beverages in motor vehicles. Further, the officer did not rely on the State statute in the present case.

The State relies on Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). In that case, the United States Supreme Court held that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Id. at 354, 121 S.Ct. 1536. “In doing so, that Court removed the need to balance the interests and circumstances involved in a particular situation upon finding probable cause for the arrest.”

It is not clear whether the Louisiana Supreme Court has adopted Atwater, though it has tacitly followed it. In the recently decided State v. Sherman, the Louisiana Supreme Court cited with approval U.S v. Pratt, 355 F.3d 1119 (8th Cir.2004), which relied on Atwater, to hold that the warrantless search of defendant fell within the well established exception for a search -incidental to arrest even though the defendant was not arrested for the offense for which probable cause existed.

Defendant relies on State v. Harris, 05-741 (La.App. 5 Cir. 8/26/05), 916 So.2d 284, in which this Court held that an officer’s exercise of the discretion to arrest for a minor misdemeanor offense had to be reasonable, rather than arbitrary, and thus, in addition to probable cause to arrest, there must be circumstances requiring immediate arrest for an offense that the State customarily required only a |insummons. Harris is distinguishable, however, because LSA-C.Cr.P. art. 211.3 applies specifically to the offense of littering, and states that the peace officer shall issue a written citation or summons to the offender. Thus, under the particular facts of that case, the officer exceeded his authority by arresting Harris, rather than issuing him a summons, for littering.

The defendant cites State v. Hoye, 94-0445 (La.App. 4 Cir. 4/14/94), 635 So.2d 1289 for the proposition that “people have a constitutional right to stand [in front of their own home] with a beer can and not be subjected to police intrusion.” However, Hoye is distinguishable because the Gretna and New Orleans “open container” ordinances differ in important ways. In New Orleans, the municipal ordinance creates a violation dependent on the type of container one drinks from; alcohol is not a relevant factor. The Gretna ordinance clearly prohibits the consumption of alcoholic beverages in public, regardless of the type of container. And the court in Hoye did not include in the opinion other relevant facts such as the time of day the arrest was made, nor whether the area was high crime.

Accordingly, we find that Officer Broome had probable cause to arrest defendant for violation of Gretna’s ordinance prohibiting public consumption of alcohol. The evidence sought to be suppressed was seized pursuant to a search following a lawful arrest. The Motion to Suppress was properly denied.

ERROR PATENT DISCUSSION

Defendant was not properly advised regarding the time period in which to file for post conviction relief as per LSA-C.Cr.P. art. 930.8; the commitment and transcript are inconsistent. After defendant admitted that he was a third felony Inoffender at the multiple bill proceedings, the trial judge stated that defendant had two years from the date this conviction became final to seek post conviction relief. After sentencing defendant as a multiple offender, the trial judge stated that defendant’s Application for Post Conviction Relief must be filed within two years after his sentence becomes final. The commitment properly states that the prescriptive period runs from the time defendant’s conviction and sentence become final. This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisal incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (Emphasis added). Accordingly, we. remand with instructions for defendant to be properly-advised of the time limitations in LSA-C.Cr.P. art. 930.8.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . It is noted that defendant was tried under Case No. 04-0529 for the possession of cocaine charge instead of the proper Case No. 04-1684. Further, the drug paraphernalia charge was tried under Case No. 04 — 0530 instead of the proper Case No. 04-1685. It is noted that actual Case No. 04-0529 involved one count of possession of heroin and one count of possession of cocaine. It appears that the count for possession of heroin was mistakenly nolle prossed on the wrong Bill of Information for 04-0529, but was reinstitut-ed. Case No. 04-0530 involved a drug paraphernalia charge.

      . It is noted that at the Motion to Suppress hearing, the State said that the motion involved Case No. 04-1684.

      . The transcript reflects that this sentence was to run concurrently with the six-month sentence for possession of drag paraphernalia in Case No. 04-1685, also imposed that day.

      . Defendant states in his brief that he admitted to being a third felony offender and cited cocaine and heroin possession, as well as possession of drug paraphernalia. It is unclear whether defendant admitted these are the predicate felonies of the multiple bill or whether these convictions were enhanced by the trial judge. Regardless, it appears that defendant is mistaken. The predicate felony convictions included a conviction for possession of cocaine and one for distribution of cocaine and only the possession of cocaine conviction in Case No. 04-1684 was enhanced by the trial court.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585.

      . Id.

      . State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, 335-336 (citations omitted).

      . LSA-C.Cr.P. art. 703(D); State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574.

      . State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005)

      . Id. at 1179

      . State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859 (citation omitted).

      . "Summons” is defined by LSA-C.Cr.P. art. 208 as "an order in writing, issued and signed by a magistrate or a peace officer in the name of the state, stating the offense charged and the name of the alleged offender, and commanding him to appear before the court designated in the summons at the time and place stated in the summons.”

      . 05-0779 (La.4/4/06), 931 So.2d 286, 2006 WL 860652.

      . This Court recognizes that Hoye was actually in violation of the New Orleans open container ordinance because he was drinking out of a metal can, which is clearly prohibited.

      . LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).