author: COOKS, Judge.

text:
    Glenn M. HEBERT v. LOUISIANA LICENSED PROFESSIONAL VOCATIONAL REHABILITATION COUNSELORS and Sy Arceneaux.
    No. 2007-610.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 23, 2008.

      R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Glenn M. Hebert.

      David A. Hurlburt, Hurlburt, Privat & Monrose, Lafayette, LA, for Defendant/Appellee, Sy Arceneaux.
    Stephen W. Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for Defendants/Appellees, Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, BILLY H. EZELL, Judges.
   COOKS, Judge.

I ■! STATEMENT OF THE FACTS

Julius Jeansonne was injured while engaged in the course and scope of his employment. His employer hired Sy Ar-ceneaux to provide Mr. Jeansonne with vocational rehabilitation services. Mr. Jeansonne then hired Glenn M. Hebert, another vocational rehabilitation counsel- or, to assess the rehabilitation work which had been performed thus far by Mr. Arceneaux and to identify additional work opportunities. Mr. Hebert found the rehabilitation work performed by Mr. Arceneaux below acceptable standards and dubbed it “sham rehabilitation” as that term was used by this court in Maxie v. Brown Industries, 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La.10/6/98), 661 So.2d 469. Mr. Hebert communicated his assessment to Mr. Jeansonne in two separate letters.

Mr. Arceneaux “took offense to the opinions expressed by Mr. Hebert” concerning his work and sought redress for his grievance by bringing his complaint before the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners (the Board). Mr. Arceneaux appeared before the Board and testified with respect to his complaint against Mr. Hebert. The Board found Mr. Hebert violated § 1604, Canon 4(A)(7) which provides:

Licensed rehabilitation counselors will not discuss the competency of other rehabilitation counselors or agencies (including judgments made, methods used or quality of rehabilitation plans) in a disparaging way with their clients.

The Board issued an official reprimand to Mr. Hebert and required him to complete a pre-approved course of study in ethics. The Board directed that the course of study must be submitted for prior approval and must be completed within six [2months of the final decision of the Board. The Board warned Mr. Hebert that failure to complete the course of study would result in further sanctions.

Mr. Hebert then filed suit in district court for mandamus and damages against Mr. Arceneaux and the Board. The petition alleged Mr. Arceneaux and the Board “conspired through an abuse of process to obtain ethical action by way of an ethical complaint.” The petition sought damages for libel and a dismissal of the ethical complaint. The Board filed exceptions of improper venue, failure to exhaust administrative remedies, lack of subject matter jurisdiction, failure to state a cause of action and res judicata. Mr. Arceneaux filed a special motion to strike under La.Code Civ.P. art. 971.

On December 4, 2006, the trial court granted Mr. Arceneaux’s motion to strike under La.Code Civ.P. art. 971 and dismissed Mr. Hebert’s claim against him. The trial court also awarded $5,000 in attorney’s fees as mandated under the statute. The Board’s exceptions were set for hearing on January 29, 2007. Prior to the hearing, the trial court determined that venue in Lafayette Parish for a claim against the Board was only proper if Mr. Arceneaux was a defendant. Since Mr. Arceneaux was dismissed from the suit, the trial court signed a judgment dismissing “without prejudice” Mr. Hebert’s petition against the Board on the basis of improper venue. The other pending exceptions filed by the Board were not addressed. Mr. Hebert filed this appeal. For the reasons assigned below, we reverse the judgment of the trial court dismissing the Board and Mr. Arceneaux and remand for amendment of the pleadings and further proceedings consistent with this opinion.

Applicability of Motion to Strike under La.Code Civ.P. art. 971

Mr. Hebert filed suit against the Board and Mr. Arceneaux seeking damages for libel and “abuse of process.” We have examined Mr. Hebert’s petition and find he | Shas articulated, though inartfully, sufficient facts to allege the Board and Mr. Arceneaux acted in concert to infringe on his constitutional right. The facts as pled clearly evidences Mr. Hebert is claiming that the Defendants violated his right to freely communicate with Mr. Jeansonne without reprisal or public reprimand. In response, Mr. Arceneaux filed a Motion to Strike under La.Code Civ.P. art. 971 which provides, in relevant part:

(A)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(B) In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney’s fees and costs.
(F) As used in this Article, the following term shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech of the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

Mr. Arceneaux correctly asserts the intent of this statute is to encourage an open exchange of information and ideas and to insure that an individual’s right to speak out on a public issue will not be chilled by frivolous lawsuits. Lamz v. Wells, 05-1497 (La.App. 1 Cir. 6/9/06), 938 So.2d 792; Stern v. Doe, 01-914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98; Davis v. Benton, 03-851 (La.App. 1 Cir. 2/23/04), 874 So.2d 185. Mr. Arceneaux contends he was ethically bound to report any alleged violations of the Code of Ethics to the Board and Mr. Hebert’s lawsuit suppresses his right to speak out on a public issue. Mr. Arceneaux admits he “took offense to the opinions expressed by Mr. Hebert” regarding his work. He sought redress for his grievance by using the Board process to vindicate his personal grievance against Mr. Hebert.

Mr. Hebert alleges the Board and Mr. Arceneaux acted in concert to suppress his right to voice his opinion. The Constitution protects individuals from governmental interference with their First Amendment rights and creates a cause of action against those individuals acting “under color of any statute, ordinance, regulation, custom, or usage, of any State” to accomplish this end. See 42 U.S.C. § 1983. Private individuals are subject to liability in situations when the individual acts as a “willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). “A conspiracy between the private individual and state actors to achieve a common goal of depriving an individual of [constitutional] rights will suffice to establish that the private defendants acted under color of state law. Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435 (7 Cir.1986). Mr. Arceneaux does not deny he brought his complaint to the Board and was a willing participant along with the Board in the process which sanctioned Mr. Hebert for expressing his opinion regarding the work performed by Mr. Arceneaux. Mr. Arceneaux urges, however, he is immune from suit and is entitled to rely on La.Code Civ.P. art. 971 in seeking to strike Mr. Hebert’s petition.

First, we find Mr. Arceneaux’s reliance on La.Code Civ.P. art. 971 is misplaced. This statute was intended to remedy abuses in the legal system and to prevent individuals from using a judicial proceeding or administrative process to | ¡¡“chill the valid exercise of constitutional rights of freedom of speech.” We do not believe the legislature in enacting La.Code Civ.P. art. 971 intended to bar parties seeking redress for violations of their First Amendment rights by the State, and others acting in concert with the State, from filing legitimate civil rights suits. In addition, La.Code Civ.P. art. 971 is unavailable to strike a plaintiffs petition when there is a probability of success on the claim raised in the pleadings. Mr. Hebert’s complaint attacks the Board’s authority on the behest of Mr. Arceneaux and under “color of state law” to sanction him for commenting on the substandard quality of Mr. Arcen-eaux’s services. The Board insists that it acted in conformity with the authority granted to it by the State of Louisiana and the national standards applicable to vocational rehabilitation counselors.

Authority of the Board

The Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners was created under the Department of Health and Hospitals. La. R.S. 37:3441-3452. The legislature determined “that activities of those persons who render service to the public in the rehabilitation counseling area and use the title ‘licensed professional vocational rehabilitation counselor’ should be regulated for the protection of public health, safety, and welfare.” La.R.S. 37:3442. The primary obligation of the vocational rehabilitation counselor is to assist the client “through the counseling relationship, to define vocational goals, and to plan actions reflecting his or their interests, abilities, aptitudes, and needs.” La.R.S. 37:3443(3)(a). The profession is statutorily tied to the workers’ compensation scheme. The work of the vocational rehabilitation counselor serves an essential public function and is 1 ¿‘designed to address and to alleviate certain social problems” by maximizing medical recovery and assisting an injured worker in obtaining suitable and fulfilling work. Maxie, 657 So.2d at 448.

The legislature authorized the Board to promulgate rules and regulations, including a code of ethics, in keeping with the stated goals defined in the Act.

Louisiana Revised Statutes 37:3445, provides, in relevant part:

D. The board shall adopt such rules, regulations, and examination procedures as it may deem necessary to effect the provisions of this Chapter. The board shall adopt the Code of Ethics of the National Association for Rehabilitation Professionals in the Private Sector, including any revisions or additions deemed appropriate or necessary by the board.

The Board was also given the power to discipline for violations of the regulations. Louisiana Revised Statutes 37:3449 provides, in relevant part:

A. The board by affirmative vote of at least four of its five members, shall withhold, deny, revoke, or suspend any license issued or applied for in accordance with the provisions of this Chapter or otherwise discipline a licensed professional vocational rehabilitation counselor upon proof that the applicant or licensed professional vocational rehabilitation counselor:
(2) Has violated the code of ethics adopted by the board.

Pursuant to its legislative authority, the Board adopted the Code of Professional Ethics for Licensed Rehabilitation Counselors, which are intended to further the “primary obligation of licensed rehabilitation counselors ... to their clients (defined in the Code as individuals with disabilities who are receiving services from licensed ^rehabilitation counselors).” See Code of Ethics, General Provision § 1600(B). The subject of this dispute is found in § 1604, Canon 4(A)(7), which provides:

Licensed rehabilitation counselors will not discuss the competency of other rehabilitation counselors or agencies (including judgments made, methods used or quality of rehabilitation plans) in a disparaging way with their clients.

This canon prohibits a vocational rehabilitation counselor from discussing “in a disparaging way” the “judgments made, methods used or quality of rehabilitation plans” of another counselor. An unfavorable opinion regarding the competency of another vocational rehabilitation counselor cannot be communicated to the injured employee. “Discussion” of favorable opinions are not subject to discipline, only unfavorable opinions. In this case, Mr. Hebert was consulted for a second opinion regarding the services rendered by Mr. Arceneaux. In two separate letters sent to Mr. Jeansonne, Mr. Hebert opined the services provided by Mr. Arceneaux fell below acceptable standards. He was disciplined for his opinion.

It is undisputed the Board has authority to govern the profession of vocational rehabilitation counselors. There is no question the states have an “interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975). However, “even when the Legislature has properly delegated to an agency certain administrative or ministerial authority, the regulations promulgated by the agency may not exceed the authorization delegated by the Legislature ” or violate constitutional provisions. State v. Alfonso, 99-1546, p. 8, (La.11/23/99), 753 So.2d 156, 162. (emphasis in original). An agency is “not free to pursue any and all ends, but can assert authority only over those ends which are connected to the task delegated by the legislative body.” Id.; Realty Mart, Inc. v. Louisiana Bd. of Tax Appeals, 336 So.2d 52 (La.App. 1 Cir.1976).

A regulation promulgated by a licensing Board which restricts a professional’s right to communicate may infringe upon the right to free speech guaranteed by the United States and this State’s Constitutions. Such regulation, therefore, is subject to strict judicial scrutiny. Under a strict scrutiny analysis, the State has the burden of proving the restriction on speech is narrowly tailored to serve a compelling state interest. Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981); State v. Expunged Record, 03-1940 (La.7/2/04), 881 So.2d 104; Brown v. State, 96-2204 (La.10/15/96), 680 So.2d 1179. For a provision to be narrowly tailored the State must demonstrate it does not “unnecessarily circumscrib[e] protected expression.” Brown v. Hartlage, 456 U.S. 45, 54, 102 S.Ct. 1523, 1529, 71 L.Ed.2d 732 (1982). The courts have, on numerous occasions, found the right of the professional to First Amendment protection trumps the interest asserted by Boards for imposing a restriction on speech. In the area of commercial speech, the United States Supreme Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), invalidated as unconstitutional a regulation which prohibited pharmacists from advertising the price of drugs recognizing a [ ^paramount societal interest in the “fullest possible dissemination of commercial information.” Gregory v. Louisiana Bd. of Chiropractic Examiners, 608 So.2d 987 (La.1992) invalidated a Board regulation which banned the solicitation of clients by mail. The Louisiana Supreme Court held a “limited restriction more reasonably fits the state’s legitimate interest [to protect the public from overreaching health care providers], whereas the statute’s complete ban on direct mail solicitation targeted at accident victims [was] too extensive to be deemed a reasonable ‘fit.’ ” Id. at 993. See also Speaks v. Kruse, 445 F.3d 396 (5 Cir.2006). In Brown, 680 So.2d 1179, the Louisiana Supreme Court found a statute unconstitutional which prohibited contributions from members of the gaming board, board employees or casino operators to a candidate. While noting gambling is strictly regulated, the supreme court, nevertheless, found “the State may not ban commercial speech simply because the State may constitutionally prohibit [gambling]” and further held “[t]he First Amendment clearly prohibits suppression of information.” Id. at 1183. (citations omitted).

Particularly repugnant to the First Amendment are regulations which target content-based speech. “As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of ideas or views expressed are content-based.” Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) “[T]he First Amendment, subject only to narrow and well-understood exceptions, does not contenance governmental control over the content of messages expressed by private individuals.... Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Id. at 641-642, 114 S.Ct. 2445.

In Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the Supreme Court found unconstitutional a provision barring candidates for judicial office from expressing their views on the disputed legal or political issues. The prohibition, known as the announce clause, was based on the American Bar Association Model Code of Judicial Conduct and adopted by the Minnesota Supreme Court. Incumbent judges and candidates for judicial positions were subject to its prohibition. A violation of the rule could result in disciplinary action against the attorney or incumbent judge. The Court found no compelling interest in restricting a candidate’s right to freely express his views regarding issues of concern to the voters.

In Virginia State Board of Pharmacy, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, the Court recognized the protections afforded under the First Amendment apply to the receiver as well as the speaker of the information. It is the communication itself which is protected by the Constitution. The Court stated:

Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both. This is clear from the decided cases ... [T]he Court upheld the First Amendment rights of citizens to receive political publications sent from abroad.... [W]e acknowledged that this Court has referred a First Amendment right to “receive information and ideas.” and that freedom of speech “ ‘necessarily protects the right to receive,’ ”

Id. at 757, 96 S.Ct. 1817. (citations omitted).

Further, in White, of significance to the Court was the collateral effect the announce clause had on the electorate by “placing] most subjects of interest to the voters off limits” and allowing] the State to “conduct elections under conditions of state-imposed voter ignorance.” Id. at 787, 788, 122 S.Ct. 2528.

The canon at issue is aimed at content-based speech. It does not prohibit all speech, only “disparaging” speech relating to the “competency of other rehabilitation counselors (including judgments made, methods used or quality of rehabilitation Inplans).” All “discussion” which “disparages” another counselor in whatever context-social setting, lawsuit, office, telephone conversation-is strictly prohibited. Mr. Arceneaux argues the canon is restricted only to communications to the injured worker and this restriction somehow saves the canon from a constitutional challenge. Mr. Arceneaux contends:

[T]here is nothing in the underlying court’s decision, the Board’s decision, or anywhere else, that precludes one vocational rehabilitation counselor from discussing another in a case before this Court or any other. The proscription of the ethical canon is limited. Presumably, those who adopted that canon had a specific purpose in mind. Perhaps it was to avoid presenting an injured worker with confusion. Perhaps it was to prevent any disruption of getting an injured employee back to work. Regardless of its purpose, it is restrictive and it is limited.

First, we find no such limitation on the face of the statute. Use of the terms “their client” in the canon can reasonably be interpreted to include a client of Mr. Hebert; and, second, interpreting the canon to restrict information to the injured worker only would allow everyone to receive the information regarding the competency of the vocational rehabilitation counselor except the client who is receiving the substandard service. Like the announce clause, in White, the canon places the subject which is of most interest to the client, namely the quality of services provided to him, off-limits. It is inconceivable that a vocational rehabilitation counselor, who is hired to render an opinion, cannot discuss the subject upon which he was called to opine. Enforcement of this provision will deprive the injured worker of essential facts relevant to his full recovery; and will deprive Mr. Hebert of his free speech right to express his opinion regarding a matter he is uniquely qualified to speak upon.

We acknowledge the Board has an interest in promoting camaraderie among professional counselors. The Code of Ethics, General Provision § 1600(C) states the canons serve as “general standards of an aspirational and inspirational nature that reflect the fundamental caring and respect which professionals share. They are | ^maxims designed to serve as models of exemplary professional conduct.” Mr. Ar-ceneaux in a letter to the Board expressed his “concern [ ] about the growing acrimony within the profession, especially in the workers’ compensation arena.” However, as applied in this case, the Board’s regulation silences all vocational rehabilitation counselors from rendering professional opinions regarding the quality of services rendered to injured workers. The regulation in operation infringes upon workers’ rights to essential information concerning their health and welfare, shields abuses in the health care system from public scrutiny and “sets [the] First Amendment jurisprudence on its head.” White, 536 U.S. at 781, 122 S.Ct. 2528. Moreover, the role that vocational rehabilitation counselors play in the workers’ compensation scheme make it all the more imperative that they be allowed to freely express their professional opinion without fear of repercussion or derision. The Board’s responsibility is to advance the profession not to impede the communication of relevant information to those for whom the system is meant to benefit. Although, the Canons are designed to achieve the highest ideals in the profession, we can find no compelling State interest which cannot be achieved by less onerous means. The right to freely express a professional opinion must take precedence over any potentially offensive statements regarding the work of other colleagues. Further, the right of the injured worker to receive information regarding the services provided to him overrides any ideals sought to be achieved by the Board. In Page v. Page, 98-1625, p. 6 (La.App. 1 Cir. 9/24/99), 762 So.2d 18, 22, the first circuit noted: “Throughout the rehabilitation process, close communication should be maintained with the client/injured worker who is, after all, the beneficiary of the services. The culminating part of the evaluation process is an information session during which the counselor reviews the fruits of his research in order that there be a mutual understanding of the means and purpose of the | ^rehabilitation process. Furthermore, a communication session provides for the opportunity to ascertain the accuracy of the counselor’s research as well as recent changes that may affect the process.”

The Board’s application of its ethical canon interferes with the “primary obligation of licensed rehabilitation counselors ... to their clients,” is not in keeping with the goals and responsibilities mandated under the La.R.S. 37:3441 et seq. and strikes at the very foundation of one of the essential goals under the workers’ compensation laws, i.e., securing meaningful rehabilitation services for injured workers so that they may return to the work force. See Code of Ethics, General Provision § 1600(B). By imposing sanctions under this canon, the Board not only impedes the free flow of information but imposes a code of silence among professional counselors to the detriment of injured employees. The Board’s sweeping ban which covers all “speech” which the Board may define as “disparaging” is not narrowly tailored to avoid “unnecessarily circumscribing protected expression.” It also does not serve a compelling state interest, “as strict scrutiny requires.” White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694. As noted, the “aspirational” interest underpinning the adoption of the ban on Mr. Hebert’s speech is not sufficiently compelling to override the State’s overaching interest in protecting the free speech of Mr. Hebert and the right of injured workers to essential health information.

We are satisfied, in addition to abuse of process, Mr. Hebert’s petition contains facts sufficient to show he may be successful in asserting a claim against Mr. Arcen-eaux and the Board for violating his First Amendment right. Louisiana Code of Civil Procedure Article 971 does not demand dismissal of complaints seeking redress for constitutional violations. However, Mr. Hebert’s petition, as presently drafted, does not specify the nature of his claims with particularity. In the interest of | ^justice, we remand to allow Mr. Hebert to amend his pleadings to particularize the claims and facts demonstrating a constitutional deprivation under color of state law. Board of Examiners of Certified Shorthand Reporters v. Neyrey, 542 So.2d 56 (La.App. 4 Cir.), writ denied, 548 So.2d 1231 (La.1989); 42 U.S.C. § 1983.

Exception of Improper Venue

The trial court dismissed the Board on an exception of venue, finding since Mr. Arceneaux was dismissed, suit against the Board was only proper in East Baton Rouge Parish. The parties agreed if Mr. Arceneaux was a party to the suit, venue in Lafayette Parish was proper. Because we find dismissal of Mr. Arceneaux under La.Code Civ.P. art. 971 was improper, venue in Lafayette Parish is proper as to the Board. We reverse the judgment of the trial court dismissing the Board on an exception of venue.

DECREE

Based on the foregoing review of the record, we reverse the judgment of the trial court dismissing Glenn M. Hebert’s claims against Sy Arceneaux under La. Code Civ.P. art. 971. We reverse the judgment of the trial court dismissing the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners on an exception of venue. We remand to allow Mr. Hebert to amend his pleadings to particularize the claims and facts demonstrating a constitutional deprivation under color of state law and for further proceedings consistent with this opinion. All costs of this appeal are assessed against Mr. Arceneaux and the Board.

REVERSED.

      . The Code of Professional Ethics for Licensed Rehabilitation Counselors is found in the Louisiana Administrative Code, Title 46, Part LXXXVI, Chapter 16.

      . The workers' compensation statute provides an injured worker is entitled to prompt rehabilitation services by a licensed professional vocational rehabilitation counselor. La.R.S. 23:1226(A).

      . The Maxie case recognized under the workers’ compensation scheme the employer is responsible for selecting and compensating the vocational rehabilitation counselor. La. R.S. 23:1226(B)(3)(a). This fact ofttimes creates what Maxie defined as “an irreconcilable conflict” between the employer's interest in terminating benefits and the injured worker’s interest in obtaining suitable and productive work. However, the Act and the Code of Ethics make it abundantly clear that the rehabilitation counselor’s primary obligation is to the injured employee, not the employer. A vocational rehabilitation counselor is not shielded from liability under the workers' compensation statute for negligence, as are the employers who hired them. See Brown v. Adair, 02-2028 (La.4/9/03), 846 So.2d 687, which held the immunity provisions of the workers' compensation act did not bar suit for malpractice against a vocational rehabilitation counselor.

      . This provision is modeled on the Code of Ethics for the National Association for Rehabilitation Professionals in the Private Sector, Section B8, which provides, in relevant part:
      (a) Forensic Rehabilitation Experts/Consultants will not discuss in a disparaging way the competency of other professionals or agencies. Differences in opinions, findings, methods, or plan development should be made based on work product, not on the individual or agency.
      (b) When evaluating or commenting upon the professional work product or qualifications of another expert or party to a legal proceedings, Forensic Rehabilitation Experts/Consultants represent their professional disagreements with reference to a fair and accurate evaluation of the data, disagreements with reference to a fair and accurate evaluation of the data, theories, standards, and opinions of the other expert or party.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    John Lee DAVIS, et ux. v. KANSAS CITY SOUTHERN RAILWAY COMPANY.
    No. 07-1546.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 23, 2008.
    Arthur R. Carmondy, Jr., Shreveport, LA, for Defendant/Appellant, Kansas City Railway Company.
    Shelly D. Dick, Forrester & Dick, Baton Rouge, LA, for Defendant/Appellant, Kansas City Railway Co.
    Dorwan G. Vizzier, Alexandria, LA, for Plaintiffs/Appellees, John Lee Davis, et ux.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

On December 11, 2007, this court issued a rule for the defendant-appellant, Kansas City Southern Railway Company (hereinafter “KCS”), to show cause, by brief only, why the instant appeal should not be dismissed as having been taken from a non-appealable, interlocutory ruling. For the reasons assigned below, we dismiss the appeal.

The instant case is a suit for personal injuries. KCS filed a Motion for Abandonment on December 22, 2006. On January 3, 2007, the suit was dismissed by the trial court for want of prosecution. Plaintiffs subsequently filed a Motion to Set Aside Order of Dismissal for Abandonment which the trial court granted orally on February 26, 2007. KCS filed a notice of intent to apply for writ of review on February 28, 2007. Judgment was signed on March 14, 2007, and notice of the signing of the judgment was mailed on March 15, 2007. Despite initially filing a notice of intent to seek supervisory review, KCS filed a Petition for Appeal on April 16, 2007. The record in the instant appeal was lodged December 10, 2007.

The judgment appealed, which granted plaintiffs’ Motion to Set Aside Order of Dismissal for Abandonment, does not decide the merits of this case and is interlocutory. La.Code Civ.P. art. 1841. Therefore, we hereby dismiss the instant appeal at KCS’s cost. KCS is hereby permitted to file a proper application for writs in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from date of issuance of this opinion. KCS is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.


author: DREW, J.

text:
    Cletis THOMPSON, Plaintiff-Appellant, v. NELON’S FAST FOODS, INC., Holland Foods, Inc., Valley Forge Insurance Company and Tina McGlothen, Defendants-Appellees.
    No. 42,825-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 2008.

      The Young Firm by Timothy Justin Young, Robert J. Young, Jr., Robin Richmond Klibert, Jason C. MacFetters, New Orleans, for Appellant.
    Mayer, Smith & Roberts, L.L.P. by David Finley Butterfield, Shreveport, for Appellees.
    Before WILLIAMS, STEWART and DREW, JJ.
   DREW, J.

17 Cletis Thompson filed suit alleging that she was injured when a wooden restaurant chair collapsed under her while she was eating lunch. The incident occurred on July 18, 2004, at a Kentucky Fried Chicken (“KFC”) restaurant in Minden. Thompson named as defendants Nelon’s Fast Foods, Inc; Holland Foods, Inc., a KFC franchisee and a subsidiary of Nel-on’s; Valley Forge Insurance Company; and Tina McGlothen, who was the assistant manager of the restaurant.

Filing a motion for summary judgment, the defendants contended that there was no evidence that there was improper maintenance of the chair or that they knew or should have known that the chair was going to collapse. The trial court granted the motion and dismissed the suit. Thompson has appealed.

DISCUSSION

A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

The law governing Thompson’s negligence claim is set forth in La. C.C. art. 2317.1, which provides:

|2The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In order to recover under this article, Thompson was required to establish that the chair was in the defendants’ custody, that the chair contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the defendants knew or should have known of the defect. See Birdsong v. Hirsch Memorial Coliseum, 42,316 (La.App.2d Cir.8/22/07), 963 So.2d 1095.

As this court has noted, since the enactment of La. C.C. art. 2317.1 in 1996:

[T]he concept of “strict liability” for defective things has been eviscerated and has been replaced with a burden of proof identical to that used in negligence claims requiring that the owner or custodian of the defective thing have actual or constructive knowledge of the defect. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant’s garde. Hagood v. Brakefield, 35,570 (La.App.2d Cir.1/23/02), 805 So.2d 1230, writ denied, 02-0557 (La.4/26/02), 815 So.2d 90.

Johnson v. Entergy Corp., 36,323, pp. 4-5 (La.App.2d Cir.9/20/02), 827 So.2d 1234, 1237-8.

Thompson argues on appeal that the trial court erred in granting the motion for summary judgment because a genuine issue of material fact exists regarding defendants’ knowledge of a defect in the chair. Thompson concedes that defendants did not have actual knowledge of the defect, | sleaving the issue of whether defendants had constructive knowledge of the defect.

The chair that collapsed was not available for examination after suit was filed. It was kept in McGlothen’s office for several months, moved to a supply room, and then eventually discarded. A photocopy of a chair identical to the chair at issue was attached to McGlothen’s affidavit. However, the unavailability of the chair is of no significance as we assume for purposes of our review of this judgment that the chair was defective and focus on the element of knowledge of the defect. See Lewis v. Albertson’s Inc., 41,234 (La.App.2d Cir.6/28/06), 935 So.2d 771, writ denied, 2006-1943 (La.11/9/06), 941 So.2d 42, where the accidental disposal of a collapsed lawn chair by defendant was not an obstacle to granting a motion for summary judgment on a product liability claim when the issue was whether defendant had knowledge of an alleged defect in the chair.

Thompson testified at her deposition that after the incident, she heard an employee say that it looked like a screw had come loose in the front part of the chair. Her husband testified that the wood chair was in three parts after the incident, and he saw broken wood. When asked during her deposition to describe the broken chair, McGlothen stated: “A connective piece from the back of the chair had broken off into the front piece of the chair.” McGlothen did not think the chair had broken into pieces, rather only that the connector piece had broken. She did not find any screws, nails, or other materials on the ground after the incident.

]4Beth Ponder, an administrative employee for Nelon’s Fast Foods, stated in her affidavit that in August of 1990, Holland ordered 54 chairs from KFC for use at the Minden restaurant. Ponder also stated that a search of Nelon’s and Holland’s records from before the accident did not show repairs to any of the chairs in any of the KFC restaurants operated by them, or that any chairs at any of the restaurants had to be removed from service. McGlothen, who began working for KFC in 1980 and has been an assistant manager since 1991, stated in her affidavit that she had no recollection of having to remove any of the restaurant’s chairs from service, or any chair there needing any repairs, prior to the incident. McGlothen also stated that there were no other instances of chairs collapsing at the restaurant.

Thompson testified that she placed her order and then sat in the chair. She remained at the table while her husband got their drinks and picked up their order. When Thompson pulled the chair out to sit on it, nothing about the chair suggested that it was defective. She stated that there was no way for a restaurant employee to know the chair was not capable of supporting a customer’s weight. The chair made a creaking noise as she sat on it, but she did not think the creaking noise indicated that the chair could not support her, and there was no forewarning that the chair was going to break.

McGlothen explained that the restaurant had a verbal policy for inspecting the dining area furniture. The employees moved the chairs and tables as they cleaned the dining area, and they were instructed to report any problems with the furniture. In addition, the managers were required to inspect the furniture. Each Friday, a detailed cleaning of the dining area |swas performed, and during this process, the chairs were placed upside-down on the tables. The employees were told that if they found something wrong with a chair when performing the detailed cleaning, they were to alert the manager. No employees brought problems with the chairs to her attention before the incident.

Much has been made by Thompson that many of the KFC employees were teenagers making minimum wage. However, it would require little more than the knowledge possessed by the average person to be able to discern an apparent defect in a chair, an object used by most people in this country on any given day. KFC’s verbal inspection policy relative to the dining area equipment was reasonable. When she sat on the chair, Thompson herself noted no defect in it. The chair later gave way, but this record does not support plaintiffs contention that defendants knew or should have known of its structural problem.

CONCLUSION

We find no error in the granting of defendants’ motion for summary judgment. At appellant’s costs, the judgment is AFFIRMED.

      . In Lewis, the plaintiff amended her petition io assert a claim of spoliation of evidence.


author: PEATROSS, J. GASKINS, J.,

text:
    ENTERGY LOUISIANA, INC., Plaintiff-Appellee, v. Paul R. JAMES, d/b/a Tupaw Manor Apartments, Defendant-Appellant.
    No. 42,826-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 2008.

      Hallack Law Firm by William H. Hal-lack, Jr., West Monroe, for Appellant.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson, LLC by Michael L. Dubos, Monroe, for Appellee.
    Cyd Sheree Page, Lafayette, for West Tree Service, Third Party Defendant-in-Reconvention/Appellee.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

|Tin this action for damages against En-tergy Louisiana, Inc. (“Entergy”) for alleged wrongful trimming of vegetation around a distribution line, Plaintiff-in-Re-convention, Paul R. James, d/b/a Tupaw Manor Apartments, appeals a judgment in favor of Entergy and dismissing his claim. For the reasons stated herein, we affirm.

FACTS and PROCEDURAL BACKGROUND

In 1991, Highway 143 (Whites Ferry Road) which is located next to Tupaw Manor Apartments in West Monroe, Louisiana, was widened. Entergy’s distribution lines ran along Alexander Road and Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. In 1994, Mr. James purchased Tu-paw Manor Apartments, bearing municipal address of 111 Alexander Road. The distribution lines at issue are contained within what Mr. James characterizes as a “green zone” that buffers the apartment complex from the highway traffic adding to the aesthetic value of the complex.

In 2004, Entergy renewed its contract with West Tree Service (“West”) to trim vegetation encroaching on electrical distribution lines. West was to perform this work in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, Superior Forestry, Inc., sprayed the area with herbicide. During September 2004, and specifically on September 27, 2004, West cleared vegetation that had been sprayed and performed additional [¿trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected; however, during the last few months of 2004, at Entergy’s direction, West crews made several additional attempts to trim vegetation on the property of Mr. James. On September 28, 2004, Mr. James executed Entergy’s Tree Trimming Refusal form. Also during this time, Entergy sent two certified letters to Mr. James attempting to secure his consent to allow it to perform the necessary trimming of the overgrown vegetation around the lines in' order for Entergy to provide safe and continuous electricity to the area. Unable to obtain consent from Mr. James, Entergy filed a petition in January 2005 asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Ultimately, the trimming was completed in January 2005.

Mr. James filed an answer and recon-ventional demand in February 2005 seeking damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees. He claimed that Entergy cut trees far in excess of the allowed or agreed upon width of trimming. Mr. James sought property damage to fencing, a dumpster pad and lost rentals from apartments, along with physical pain and mental anguish as a result of an alleged encounter between himself and West’s workers. Mr. James further argued that Entergy’s intentional and egregious acts were in bad faith, thereby entitling him to treble damages and attorney fees. Entergy filed a third party demand ^against its contractor, West, with which it had contracted to do the actual trimming work.

Significantly, later in February 2005 and prior to trial, the parties entered into a stipulated Declaratory Judgment and Preliminary Injunction in which they agreed that:

B. Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within ten feet (10') of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Distribution Vegetation Management Line Clearance Specifications attached hereto as Exhibit “A.”
C. Pursuant to the St. Julien Doctrine , so long as Entergy and /or its contractors comply with the vegetation maintenance standards stated on Exhibit “A”, Paul R. James, d/b/a Tupaw Manor Apartments, (“Defendant”) has no legal right to prohibit or interfere with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines and utility poles located throughout Ouachita | ¿parish, Louisiana, including but not limited to Alexander Road and Louisiana Highway 143 (White’s Ferry Road).

The Clearance Specifications provide in paragraph 1.0.2 that “all trees at a minimum shall be trimmed back to the previous trim point (amount of clearance obtained during the last trim) or as per table below, whichever is greater.” The table provides that slow growth trees in rural settings be trimmed to 10 feet and fast growth trees in rural settings be trimmed to 15 feet. Paragraph 1.0.5 provides that an exception to paragraph 1.0.2 will be made where “there is a customer refusal where procedures outlined in the [Clearance Specifications] have been followed” ... “such exeeption[ ], however, shall not result in unsafe conditions or jeopardize reliability.”

According to Mr. James, Entergy could only (A) trim to an indefinite width under the St. Julien Doctrine of La. R.S. 19:14, see footnote 1, supra, depending on the extent to which it had actually claimed and used a right-of-way in the past or (B) ten feet under the Clearance Specifications. Mr. James alleged, inter alia, that Enter-gy exceeded this allowable width of trimming around the distribution line, thereby causing damage to the aesthetic value of the “green zone” around the apartment complex. As previously stated, Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contends requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James was written in accordance with paragraph 1.0.5 of the Clearance Specifications noting that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Is At trial, Entergy called three witnesses, Don Adcock, Don Newell and Paul LeMoine. Each witness agreed that the trimming exceeded 15 feet, but provided detailed testimony regarding the existence of a prior trim point. Arthur Summit, foreman for West, also testified that all trimming was done inside the prior trim point. In addition, Dr. John Adams, who testified as an expert for Entergy, determined that there was a prior trim line and that all cutting was done within that prior trim point. Dr. Adams further testified that the physical evidence he observed during his inspection of the property supported the existence of the prior trim point, including the numerous resprouts and the break line between the small trees and larger trees. Casey Keeling, the West employee who actually performed much of the trimming on the James property, testified that most of the vegetation removed was resprouting tangled with vines.

Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property. This testimony was contradicted by West employees. Mr. James also testified that, on one particular date, a West trimming crew was on site attempting to trim trees on his property. Mr. James stated that a West worker began to cut a branch with a chainsaw directly above his head causing debris to fall on him. The record indicates that Mr. James stood under the work being performed and had some falling sawdust land on him, at which time he alluded to a potential personal injury claim against the workers. Mr. James also alleged that a worker drove a truck within an inch of him, almost striking him.

| fiAfter hearing the evidence and in its reasons for judgment, the trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming. The court found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. This appeal ensued.

DISCUSSION

On appeal, Mr. James asserts 11 assignments of error, framing the issues as follows (verbatim):

1. Did the Trial Court err in dismissing Paul R. James’ cause of action under the St. Julien Statute?
2. Did the Trial Court err in failing to hold that the burden of proof of the required facts for the existence and extent of servitude under LSA R.S. 19:14 (St. Julien Statute) was on Entergy Louisiana, Inc.?
3. Did the Trial Court err in dismissing Paul R. James’ cause of action under the Distribution Vegetation Management Line Clearance Specifications?
4. Did the Trial Court err in its determination that there was a prior trim point established by or on behalf of Entergy Louisiana, Inc.?
5. Did the Trial Court err in dismissing Paul R. James’ cause of action under LSA-R.S. 3:4278.1 (Tree Piracy)?
6. Did the Trial court Err in dismissing Paul R. James’ cause of action under General Tort Principles?
7. Did the Trial court err in dismissing Paul R. James’ cause of action for assaulfibattery under General Tort Principles?
|78. Did the Trial Court err in dismissing Paul R. James’ cause of action for trespass under General Tort Principles?
9.Did the Trial Court err in sustaining the objection that resulted in the refusal to admit into evidence photographs of the vegetation maintenance practices of Entergy Louisiana, Inc., along its distribution line as evidence of Entergy Louisiana, Inc.’s habit or practice of compliance with the Distribution Vegetation Management Line Clearance Specifications?
10. Did the Trial Court err in sustaining the objection that resulted in the refusal to admit into evidence John May’s testimony in confirmation of the correctness of Paul James’ calculation of damages resulting from diminution in value of his apartment complex?
11. Did the Trial Court err in failing to apply the adverse presumption rule for the non-testifying witnesses that Entergy Louisiana, Inc., could have called?

The first four issues/assignments of error essentially involve a central query of whether Entergy had the right to trim vegetation around the distribution lines on the property of Mr. James and, if so, to what width around the lines was Entergy allowed to trim. We will address the remaining issues in turn.

Vegetation Trimming

On the specific facts of this case, we conclude that the stipulated declaratory judgment signed by the parties prior to trial controls the allowable trimming width of the vegetation around the distribution lines on the property at issue owned by Mr. James. Recall that, in this stipulated declaratory judgment, the parties agreed that the trimming width would be 10 feet from the poles or according to Entergy’s Clearance Specifications. The Clearance Specifications, as previously stated, provide widths of |s10 feet for slow growing foliage, 15 feet for fast growing foliage or trimming to a prior trim point, whichever is greater. Mr. James signed this judgment and no appeal was taken therefrom.

In light of this stipulated judgment, we find that the trial court correctly found the issue to be whether or not Entergy complied with its Clearance Specifications. This is a factual determination. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App.2d Cir.5/28/04), 877 So.2d 1003, writ not considered, 04-2136 (La.11/15/04), 887 So.2d 466. We detect no abuse of discretion here. As previously mentioned, Entergy produced several qualified witnesses, thoroughly outlined by the trial judge in his reasons for judgment, who found strong evidence of resprouts and prior trim points. Dr. Adams testified that there was a previous trim point and that all of the cutting was done within that trim point. The trial court’s factual conclusions regarding specific tree removal and stump versus resprouting removal are all well supported by the testimony and we find no abuse of discretion in those conclusions.

In summary, we note that the Clearance Specifications may, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property; however, under the specific facts of this case, Mr. James is bound by the stipulated declaratory judgment and we find no clear error in |3the trial court’s factual determination that Entergy’s trimming fell within the guidelines set forth therein.

In light of our conclusion, we pretermit any further discussion of the St. Julien doctrine or separate cause of action under the tree piracy statute, La. R.S. 3:4278.1, as urged in issue/assignment of error number five.

Assault/Battery or General Tort Liability

Regarding Mr. James’ allegations of damages resulting from alleged encounters with West employees, argued in issues/assignments of error numbers six and seven, we note that the trial judge was in the best position to hear and weigh the testimony of the witnesses regarding those alleged incidents. Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). We cannot say that the trial court abused its discretion in finding that Mr. James failed to carry his burden of proof that he was injured physically or suffered mental anguish from such alleged incidents. We will not disturb these findings on appeal. Likewise, we find no error in the trial court’s failure to award damages for trespass.

Furthermore, in light of our holding herein, we pretermit any discussion of issue/assignment of error number nine concerning the trial court’s refusal to admit certain photographs into evidence. Likewise, the propriety of the calculation of damages argued in issue number ten is moot under our ruling herein.

ImFinally, Mr. James’ argument in issue/assignment of error number eleven regarding application of the adverse presumption for non-testifying witnesses on behalf of Entergy is abandoned for failure to brief. URCA 2-12.4.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Entergy Louisiana, Inc. is affirmed at the cost of Paul R. James, d/b/a Tupaw Manor Apartments.

AFFIRMED.

GASKINS, J., concurs with written reasons.

GASKINS, J.,

concurring.

Iil respectfully concur with the majority’s opinion.

In this case, Mr. James stipulated that Entergy was entitled to trim up to the prior trim point. Mr. James’ position was that the most current trimming was in excess of the prior trim point. Evidence was presented by Entergy that this contested area had previously been trimmed. The trial court found the testimony to be credible, and found in favor of Entergy.

The opinion hints, but does not flatly state, that Entergy does not have a right to trim to the prior trim point, when it is in excess of the 10-15 foot guidelines, and the landowner protests. Certainly, special circumstances could arise that might allow trimming beyond the 10-15 foot guidelines, over the landowner protestations. However, just because Entergy, on a prior occasion, trimmed beyond this 10-15 foot point, does not give Entergy the unfettered right to always trim in excess of these guidelines.

      . The St. Julian doctrine is derived from La. R.S. 19:14, which provides, in pertinent part, as follows:
      § 14. Possession of property; removal of facilities; objection; waiver
      A. In any case where the state or its political corporation or subdivision has actually, in good faith believing it had authority to do so, taken possession of privately owned immovable property of another, and constructed facilities upon, under, or over such property with the consent or acquiescence of the owner of the property, such owner shall be deemed to have waived his right to contest the necessity for the taking and to receive just compensation prior to the taking, but he shall be entitled to bring an action for such compensation, to be determined in accordance with the provisions of R.S. 19:9, for the taking of his property or interest therein, the just compensation to be determined as of the time of the taking of the property, or right or interest therein, and such action shall proceed as if the state, its political corporation, or subdivision had filed a petition for expropriation as provided for in R.S. 19:2.1.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Jennifer C. PARKER, a/k/a Jennifer Smith, Appellant.
    No. 42,947-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2008.

      John R. Joyce, New Orleans, Jefferson B. Joyce, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Rosalind D. Jones, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   PEATROSS, J.

_JjAfter a jury trial, Defendant, Jennifer Parker, a/k/a Jennifer Smith, was found guilty of negligent homicide arising from a motor vehicle accident which caused the death of her passenger, Rhonda Waters. The trial court sentenced Defendant to five years of imprisonment at hard labor. After the first two and one-half years of the sentence have been served, the remaining two and one-half years would be suspended, with Defendant being placed on supervised probation for five years upon her release. A fíne of $3,500 was also imposed. Numerous special conditions were attached to Defendant’s probation. Defendant now appeals the sentence imposed as excessive. For the following reasons, Defendant’s sentence is affirmed.

FACTS

On April 13, 2003, Defendant and the victim were riding in a Corvette driven by Defendant. Defendant and the victim were long time friends. In her statement to police after the accident, Defendant stated that she was driving and had stopped at a red light. According to Defendant, when the light turned green, a green pickup truck moved into her lane, and she swerved to avoid the impact. As a result, the car struck a utility pole before flipping over. Defendant also stated that she and the victim had been drinking during the day prior to the crash. Beer bottles were found at the crash scene, both inside of and near the Corvette. Defendant refused a voluntary blood test; and, pursuant to applicable statutes, Defendant’s blood was drawn as part of the investigation. The blood drawn from Defendant contained 0.10g% of ethyl alcohol.

li>Two witnesses who were near the scene of the accident informed the investigating officer that they were traveling on a motorcycle alongside the car driven by Defendant when they stopped at a red light. When the light turned green, the Corvette took off at a fast rate of speed traveling westbound. The witnesses turned northbound, and a couple of seconds later heard a vehicle crash. The witnesses turned around to see the Corvette upside down pointing east. Defendant and the victim were trapped in the vehicle. The witnesses called 9-1-1 and, along with other passersby, righted the flipped vehicle. The witnesses did not recall seeing a pickup truck near the Corvette as they were traveling, but did, after the accident, see an unknown male standing next to a pick-up truck parked on the side of the roadway. After Defendant was assisted from the vehicle, she was able to speak and identified herself and the victim to the witnesses; the unconscious victim was not removed from the vehicle. One witness noted that, at the time the vehicle was righted, it appeared that the victim’s neck was broken. The victim, who was not wearing a seatbelt, was transported to a local hospital and died as a result of the injuries sustained in the accident.

Defendant was charged with vehicular homicide and, after a jury trial, was convicted of the responsive offense of negligent homicide. A pre-sentence investigation was ordered; and, thereafter, Defendant was sentenced. A timely motion to reconsider sentence was denied by the trial court and the instant appeal followed.

UDISCUSSION

Defendant seeks review of the sentence imposed and argues that the maximum sentence and near maximum fine imposed by the trial court is excessive and that a lesser sentence and/or probated sentence would have been appropriate in this case. Defendant contends that the imposed sentence is nothing more than a needless and purposeless imposition of pain and suffering. The defense also contends that the trial court failed to properly consider the mitigating factors of the case. In particular, it argues that the sentence is excessive considering that Defendant has no prior criminal record, that Defendant’s blood alcohol level at the time of the offense was only at the legal limit and that a prolonged imprisonment would create a hardship for Defendant’s family. The State counters that the sentence imposed is not excessive.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long, as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full | ¿compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State.v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. The trial court is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of a manifest abuse of that discretion. , State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not |Rdetermine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The record clearly shows that the trial court considered the appropriate factors in determining Defendant’s sentences. In an on-the-record review of the pre-sentence investigation, the trial court reviewed the facts of the offense and Defendant’s background, including her family ties and the fact that she is a wife with three children, one of whom is autistic. Due to her care for her autistic daughter, the trial judge noted that Defendant is not employed outside of her home. It was also stated that Defendant had no other felony convictions, but did have one arrest after the instant offense for domestic battery. The charge was later dismissed. The trial court acknowledged that it considered the numerous letters and testimony received regarding the case. While not specifically stating all individual factors, the trial court noted that it considered all relevant aggravating and mitigating factors. The trial court was not required to give any factor a specific weight, as argued by Defendant. The record shows that the trial court was cognizant of and considered the appropriate factors in determining Defendant’s sentence. The trial court noted varying testimony and comments from both the family and friends of the victim, as well as the family and friends of Defendant. The record supports the contention that the sentencing court reviewed the appropriate factors.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writs denied, 06-2768 (La.6/22/07), 959 So.2d 494 and 06-2781 (La.6/22/07), 959 So.2d 494; State v. Brisco, 33,179 (La.App.2d Cir.4/5/00), 756 So.2d 644, writ denied, 00-1478 (La.5/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541.

A trial court is not required to render a suspended sentence or probation on a first (or qualifying second) felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Bradford, supra; State v. Woodman, 28,-004 (La.App.2d Cir.1/24/96), 666 So.2d 1255, writ denied, 96-0489 (La.5/3/96), 672 So.2d 696. See also State v. Flores, 27,736 (La.App.2d Cir.2/28/96), 669 So.2d 646.

Defendant received a substantial benefit by the jury’s returning a responsive verdict in the case. Defendant’s potential sentencing exposure, | therefore, was reduced as a result. Despite Defendant’s contentions, we do not find constitutional error in imposition of the maximum sentence. Considering Defendant and the facts of this case, this sentence is appropriate to the circumstances of this case. Defendant, while a close friend of the victim, caused the death of the victim through her actions of drinking and driving. While Defendant was sentenced to the maximum sentence for the offense, half of the term of imprisonment was suspended; thus, Defendant’s actual incarceration would only amount to one-half of the maximum sentence.

The sentence imposed in this instance is lawful and is neither grossly disproportionate to the severity of the offenses of conviction, nor shocking to our sense of justice. Despite all the remorse and outpouring of support for a more lenient sentence in this case, a life was lost in what appears to be an alcohol-related incident. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

CONCLUSION

For the reasons discussed above, the sentence of Defendant, Jennifer C. Parker, a/k/a Jennifer Smith, is affirmed.

AFFIRMED.

      . One of the conditions of Defendant’s probation, which continues for five years post-release, requires that Defendant
      shall report to jail and be incarcerated at Thanksgiving, Christmas, and the anniver-saiy date of the death of [the victim], April 13, each year of her probation. She shall report on the eve of those days, no later than 6:00 pm on the evening prior, and remain incarcerated to be released at 6:00 am the day after those days.
      While we find this condition to be unorthodox and harsh on Defendant's children, when viewed in light of the possible length of actual incarceration she could have received-five years-we cannot say that the sentence, including the conditions, is excessive.


text:
    STATE of Louisiana, Appellee, v. Kendrick HARRIS, Appellant.
    Nos. 43,037-KA, 43,038-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2008.

      Louisiana Appellate Project by Edward K. Bauman, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

L Defendant, Kendrick Harris, pleaded guilty to possession of cocaine with intent to distribute and distribution of cocaine. For each offense, the trial court sentenced Defendant to ten years at hard labor, with the first two years to be served without benefit of parole, probation or suspension of sentence, and ordered that the sentences be served concurrently. Defendant now seeks review of his sentences. For the reasons stated herein, we affirm.

FACTS

In Docket No. 43,037-KA, the State charged Defendant with one count of possession of cocaine with intent to distribute, and in Docket No. 43,038-KA, the State charged Defendant with three counts of distribution of cocaine. As the result of a plea agreement, Defendant pleaded guilty to one count of possession of cocaine with intent to distribute and one count of distribution of cocaine in exchange for the State’s dismissal of the remaining two counts of distribution of cocaine and agreement not to charge Defendant as a habitual offender. The State agreed that the sentences would be determined by the trial court and recommended that the sentences be imposed concurrently. In regard to the factual basis, the State alleged that the offense of possession of cocaine with intent to distribute was based upon a police officer finding a plastic bag with cocaine in Defendant’s crotch on January 6, 2006. In regard to the distribution of cocaine offense, the State alleged that Defendant distributed cocaine to a confidential informant on August 7, 2006, and that this transaction was recorded on videotape.

1 aAfter accepting Defendant’s guilty plea to both offenses, the trial court ordered a pre-sentence investigation report. ■ At the subsequent sentencing hearing, the trial court sentenced Defendant to ten years at hard labor for each offense, the first two years of which to be served without benefit of parole, probation or suspension of sentence, and ordered that the sentences be served concurrently.

DISCUSSION

Defendant argues that concurrent ten-year sentences are constitutionally excessive because they are grossly disproportionate to the offenses committed and because he is a drug addict in need of rehabilitation that could be best provided in a non-custodial environment. Defendant further argues that the trial court did not adequately consider the mitigating circumstances in this case, such as the following: his age; lack of prior convictions for violent offenses; the fact that he did not inflict physical or psychological harm on anyone during the commission of these offenses; the fact that he has a drug problem; and that ten of the aggravating circumstances listed in La. C. Cr. P. art. 894.1 do not apply to him. The State argues that the sentences imposed are not excessive because Defendant received the benefit of a substantial reduction of sentence exposure through this plea agreement.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. |3art 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentences imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), |4754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. Further, a substantial advantage obtained by means of a plea bargain, such as a reduction of charge where the evidence shows that the defendant was guilty of a more serious offense, is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176; State v. Jackson, 27,056 (La.App.2d Cir.6/21/95), 658 So.2d 722.

The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular ease and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539. The trial court is given wide discretion to impose sentence within the statutory limits and the sentence imposed within such limits should not be set aside in the absence of a manifest abuse of its discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, citing State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Hardy, 39,-233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, supra.

Before imposing sentence, the trial court asked Defendant if there was anything that he wanted to say, and Defendant declined. The trial court |finoted that Defendant had stated in the pre-sentence investigation that he needed help, and the trial court stated that “I think that has become apparent as you have progressively failed to- abide by the laws (sic) as it relates to controlled dangerous substances.” The trial court specifically noted that it had considered the contents of the pre-sentence investigation report and the sentencing considerations of La. C. Cr. P. art. 894.1. The trial court noted Defendant’s age of 25 as being relatively young, that this was his third felony offense and that Defendant was not eligible for probation. The trial court specifically noted that the serious nature of the offenses requires a serious sentence. In light of these aggravating factors, the trial court found that Defendant posed an undue risk of committing another crime if allowed probation or a suspended sentence, that he was in need of correctional treatment or a custodial environment and that a lesser sentence would deprecate the seriousness of his crimes. Thus, a review of the record indicates that the trial court was cognizant of the sentencing considerations of' La. C. Cr. P. art. 894.1.

Pursuant to La. R.S. 40:967(B)(4)(b), the sentencing range for both distribution of cocaine and possession of cocaine with intent to distribute is imprisonment at hard labor for not less than 2 years nor more than 30 years, 2 years of which to be served without benefit of parole, probation or suspension of sentence, and a discretionary fine of not more than $50,000. The concurrent sentences of 10 years fall within the lower to middle range of the possible sentencing spectrum for a single offense; thus, Defendant received a substantial reduction in sentencing exposure when the trial court ^imposed the sentences concurrently. In addition, Defendant received an even more substantial reduction in sentence exposure when the State agreed not to charge Defendant as a third habitual offender, in which case he would have faced a minimum sentence of 20 years and a maximum sentence of 60 years. La. R.S. 15:529.1(A)(l)(b)(i) & La. R.S. 40:967(B)(4)(b). The concurrent 10-year sentences in the case sub judice are not grossly disproportionate to the seriousness of the offenses committed, nor do they constitute needless infliction of pain and suffering because Defendant was given a substantial reduction in sentencing exposure through this plea agreement. The record clearly indicates that the trial court adequately considered the mitigating circumstances and that it articulated a sufficient factual basis for the sentences imposed. Thus, the trial court did not abuse its discretion, and the sentences are not constitutionally excessive.

ERROR PATENT REVIEW

Our error patent review reveals that the minutes do not accurately reflect the sentencing transcript in regard to the length of Defendant’s sentences that are to be served without benefit of parole, probation or suspension of sentence. The transcript reflects that the trial court imposed Defendant’s sentences in accordance with La. R.S. 40:967(B)(4)(b) when it noted that the first two years of the sentences were to be imposed without benefit of parole, probation or suspension of sentence. The minutes incorrectly state that the entirety of each sentence is to be served without benefit of parole, probation or suspension of sentence. The trial court is |7ordered to direct the Webster Parish Clerk of Court to amend the minutes so that they accurately reflect the sentencing transcript.

In addition, to clarify the time limitations period for filing an application for post-conviction relief, Defendant is advised by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 and 922. Article 930.8 contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for re-sentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/7/94), 647 So.2d 427.

Defendant also alleges that the trial court erred by failing to give Defendant credit for time served as required by La. C. Cr. P. 880. The sentencing transcript, however, reflects that such credit was given when the trial court stated, “[y]ou’ll be given credit for time served and the calculation of that time is up to the Department of Corrections.”

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Kendrick Harris, are affirmed.

AFFIRMED.