author: STEWART, J.

text:
    RICHLAND PARISH POLICE JURY, Plaintiff-Appellee v. L. Donald DEBNAM and Joyce Berry Debnam, Defendants-Appellants.
    No. 42,421-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 17, 2007.
    Rehearing Denied Nov. 29, 2007.

      Frederic C. Amman, III, Monroe, for Appellants.
    David P. Doughty, Rayville, for Appel-lee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

| TPonald and Joyce Debnam (“the Deb-nams”) appeal the trial court’s denial of their exception of no cause of action and exception of no right of action, reconven-tional demand, and the issuance of a permanent injunction against them prohibiting the construction of any obstructions hindering the servitude of the Richland Parish Police Jury (“Police Jury”) over the Debnam property and allowing the Police Jury to enter the Debnam property and remove any constructions burdening their servitude. Because we find that the trial court erred in its determination that the Police Jury demonstrated the requisite damage to pursue this action, we reverse the decision of the trial court in part, affirm in part, and render judgment as outlined herein.

FACTS

The Debnams own 120 acres situated on the north side of Ruff Road in Richland Parish. Ruff Road runs east and west and forms the south boundary of the property. Cypress Creek runs in a generally north-south direction across their property. The Debnams constructed a dam, earthen works, and other structures on Cypress Creek adjacent to Ruff Road in an attempt to improve drainage on their property.

On the north of the Debnams’ property, the Police Jury has a drainage project that connects Louisiana State Highway 183 on the east to Gum Bayou and Mercer Break on the west. This canal is designated as W-27 in the Richland Parish Drainage System. The canal carries water from east to west across the north portion of the Debnams’ property. The Police Jury placed a low water crossing in the W-27 canal which allegedly caused water |?to flood the Debnam property. As a result, the Debnams placed weirs with eight inch pipes beneath the weirs to stop the flow of Cypress Creek and to stop erosion.

The Police Jury claims that a 300-acre tract of land laying north and south of Ruff Road, including the defendants’ property, had been adversely affected by the defendants’ actions impeding the natural drain. Consequently, the Police Jury filed a petition claiming that it had a servitude of natural drain from Cypress Creek across the Debnams’ property from south to north from Ruff Road to the W-27 canal and that these constructions created an obstruction for drainage for Ruff Road and its drainage ditch. The Police Jury also claims the status of a dominant estate owner due to its ownership of Ruff Road. The Police Jury further contended that the local farmers would suffer serious and immediate damage from the obstructions of the natural flow of Cypress Creek and requested a temporary restraining order.

The Debnams filed a reconventional demand claiming that Cypress Creek runs naturally from north to south across their property and that the Police Jury did not have a natural servitude of drain. Moreover, the Debnams asserted the Police Jury obstructed the flow of the W-27 canal at the end of Nicole Road and caused damage to their property. They also filed exceptions of no right of action and no cause of action.

Following a trial on the merits on September 25, 2006, the trial court determined that the Police Jury had a servitude of drain flowing from south to north across the Debnam property. The Police Jury was granted a |spermanent injunction prohibiting the construction of any impediments to its servitude of drainage and was granted permission to enter the Debnam property and remove any obstructions that had already been constructed at the Deb-nams’ cost. This appeal ensued.

DISCUSSION

Standard of Review

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. Cole v. Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. StobaR, supra.

We make several observations concerning the trial court’s finding of facts regarding the flow of the water on the Debnams’ tract of land and the 300-acre area of dispute. First, the trial court found that the natural flow of the water was from south to north. This finding, while not completely | ¿incorrect, is somewhat narrow in its focus in that the maps and the flood of 1927 referred to in the record demonstrate that all of the water along Cypress Creek flowed from north to south. In fact, it is the parish constructed ditch (W-27) that constitutes the north boundary of the Debnams’ property and stops all water north of the ditch from flowing south from Cypress Creek and diverts it in a westerly flow across the property. This diversion of water by W-27 stops water from flowing south, and at some limited points causes water to flow northward. Nonetheless, the undisputed testimony reveals that the land south of W-27 gets saturated when Cypress Creek gets full and the southward flow of the water across W-27 occurs. Moreover, the maps in the record indicate that the natural convergence of Cypress Creek and Gum Bayou is south near Fountenbury Road as evidenced by the southward flow of the tributary patterns. Consequently, while the trial court was technically correct in its determination that there are areas where the flow of water is from south to north, the gravamen of evidence demonstrates that across the 300 acre tract of land at issue, the natural flow of water is from north to south.

The second issue we note with respect to the trial court’s ruling is its limited determination of the cause of impediments to the flow of water across the 300 acre tract of land. The Police Jury contends that the constructions on the Deb-nam property are the sole cause of the impediment to water flow on the land. It should be noted that the largest manmade impediment to the flow of water is not the dams constructed by the Debnams but Ruff Road which traverses the 300 acre tract in an east-west [¿fashion. Over half of this tract of land lies south of Ruff Road. The Police Jury’s expert, Mr. Tommy Burgess, testified that the southward flow of the water is also slowed by the two 36' culverts along Cypress Creek that slow and trap the flow of heavy rainwater. Mr. Burgess also cited the defendants’ newly constructed railroad tie structure along the Ruff Road ditch as a contributing factor to the slowing of the flow of water. Lastly, Mr. Burgess cited the flawed topography of certain portions of the 300 acre tract that hinder the flow of water.

Now that we have determined that there are other contributing factors to the slowing of the flow of the water, other than the dams constructed by the Debnams, we must examine the issue of who is actually damaged. The drainage area north of Ruff Road is primarily owned by the Deb-nams. They obviously are not alleging harm caused by their actions with the water standing on their land. Another small tract of remaining land north of Ruff Road is heavily wooded and contains a portion of Cypress Creek south of W-27. It is certainly reasonably that this tree-filled area is contributing to the backing up of water onto the Debnams’ land and surrounding lands and slowing its return to W-27. The trial court limited its determination to the cause of the slowing of the water to the constructions of the Debnams without taking into account the effect of this wooded area.

Exceptions of No Cause/ No Right of Action

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Hayes v. Gallagher Bassett Services, Inc., 41,579 (La.App. 2d Cir.12/13/06), 945 So.2d 911, writ denied, 2007-0085 (La.3/30/07), 953 So.2d 73. In Dejoie v. Medley, 41-974, 41,333 (La.App. 2d Cir.12/20/06), 945 So.2d 968, this court explained that the exception is triable on the face of the petition, each well-pled fact of which must be accepted as true. There is no requirement that the court accept as true any conclusions of law alleged in the petition. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931.

Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. Industrial Companies Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207. The purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Wallace v. Nathan, 96-119 (La.App. 5 Cir. 7/30/96), 678 So.2d 595. (Emphasis supplied). The exception of no right of action is peremptory and can be brought at any time, including on appeal. Lambert v. Donald G. Lambert Constr. Co., 370 So.2d 1254 (La.1979). Further, La. C.C.P. art. 927 provides that a peremptory exception of no right of action may be noticed by either the trial or appellate court of its own motion. “The function of the peremptory ex*-ception is to have the- plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. The exception of no right of action is directed to showing that a plaintiff has no legal, right or interest in enforcing the matter asserted, based upon the facts [7and evidence submitted. La. C.C.P. art. 927; Dufour v. Westlawn Cemeteries, Inc., 94-81 (La.App. 5 Cir. 6/28/94), 639 So.2d 843. The determination of whether a plaintiff has a right of action is a question of law. Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00); 808 So.2d 363, writ denied 01-2546 (La.12/7/01); 803 So.2d 971. Accordingly, we review exceptions of no right of action de_ novo. Mississippi Land Co. v. S & A Properties II, Inc., 2001-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200.

Unlike the exception of no cause of action, evidence is admissible on trial of an exception of no right of action in order to determine whether the plaintiff is legally invested with the right to stand in judgment. Guenard v. Key, 131 So.2d 108 (La.App. 2 Cir. 6/1/61). It is therefore proper to hear testimony on an exception of no right of action. Waterhouse v. Star Land Company, 139 La. 177, 71 So. 358 (1916). The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748.

The trial court denied the Debnams’ exceptions of no right and no cause of action. Although we choose not to reverse on the denial of the exceptions, but for reasons more fully explained hereafter, we find error in the trial court’s limited determination of the various causes and contributors to the dispute at issue. The southern portion of the 300 acre tract of land that comprises the battleground for the present drainage dispute involves up to six other landowners who are not parties to the instant suit.

Is As this area has not been subject to a comprehensive drainage program, the Police Jury’s cause of action is limited to its position as an owner of a dominant upstream estate. However, the Police Jury did not demonstrate that its ownership of Ruff Road, as a public road servitude or otherwise, was damaged by the Debnams’ actions. The Ruff Road ditches are doing what they have always done, hold water. In light of the fact that the trial court failed to take into account the indispensable parties-the adjoining landowners, who actually are the parties experiencing any alleged damage under the facts presented-and the other factors discussed above that have contributed to the slowing of the water, we find the trial court’s decision to be manifestly erroneous. On the record before us, the Police Jury has not shown that its road was damaged. Moreover, in a dispute involving all of the landowners of the 300 acre tract under the Civil Code principles for natural servi-tudes, La. C.C. art. 655 et seq., any relief may require contributions from the Deb-nams, the Police Jury, and the owner of the wooded tract lying along Cypress Creek northwest of the Debnams’ property. Therefore, we find that the trial court erred in its determination that the Police Jury sustained its burden of proof for damages, and we note the lack of indispensable parties concerning the alleged flood damages in the 300-acre area.

Police Power Servitude

The Police Jury also asserted that it is empowered to bring this action pursuant to La. R.S. 38:113 which states:

The various levee and drainage districts shall have control over all public drainage channels or outfall canals within the limits bof their districts which are selected by the district, and for a space of one hundred feet on both sides of the banks of such channels or outfall canals, and one hundred feet continuing outward from the mouth of such channels or outfall canals, whether the drainage channels or outfall canals have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels or outfall canals, and may adopt rules and regulations for preserving the efficiency of the drainage channels or outfall canals.

However, in Simmons v. Board of Commissioners of Bossier Levee District, 624 So.2d 935, 952 (La.App. 2d Cir.1993) we stated:

It has been held that the statute is not self operative, and that the servitude will be recognized only when the levee or drainage district proves three things: that the drainage channel was previously improved by the district or adopted without prior improvement as a necessary part of or extension to improved drainage channels; that the drainage channel is a public channel; and that the channel was selected by the district and recommended and approved by the Office of Public Works.

In other words, under this statute, the Police Jury does not have to allege that it is the dominant estate owner to bring a cause of action against a land owner. The W-27 ditch was dug by the Police Jury to aid the lands north of it and as such, is entitled to a public works servitude. However, the record does not demonstrate that the lands south of W-27 were ever improved by the state or water district. The Police Jury contends that these waters must drain back north against the natural flow of Cypress Creek. However, there is nothing in the record to demonstrate that the Police Jury, state, or any other public entity ever spent money to ensure and improve drainage along this area of Cypress Creek. To allow the trial court’s judgment to stand would essentially force the Debnams to initiate a public works project at their costs on their, property in the hope of improving the entire area’s | indrainage. We find that impermissible under the facts of this case. The Police Jury did not satisfy the requirements of the Simmons test.

In sum, we find that the trial court erred in singling out the Debnams as the sole cause of the drainage problems at issue, because the record demonstrates that there were multiple causes of equal weight contributing to the damage complained of by the Police Jury, including some actions of the Police Jury itself. Consequently, we reverse the judgment of the trial court and render judgment in favor of the Debnams.

Reconventional Demand

The Debnams filed a reconven-tional demand asking the trial court to order the Police Jury and adjoining property owners to place larger culverts at the locations of the 36-inch culverts between Ruff Road and Futch Road to stop the purported blockage of Nicole Road and the flooding of the land that is at issue. However, we must deny the Debnams’ recon-ventional demand for the same reason that we are reversing the trial court in that there are several contributing causes to the condition of the property that were not considered by the trial court and there are parties that have an interest in this matter that are not a part of the dispute. Thus, we affirm the judgment of the trial court as to its denial of the Debnams’ reconven-tional demand.

CONCLUSION

Based on the above and foregoing we reverse the trial court’s order allowing the Police Jury to enter the Debnam property and remove the obstructions built by the Debnams and its issuance of a permanent injunction prohibiting the Debnams from constructing any dams, dirt works, or other [^constructions on their land to constrict the flow of Cypress Creek. We affirm the trial court insofar as it denies the Debnams’ reconventional demand. Costs are assessed to the Police Jury.

AFFIRMED IN PART. REVERSED IN PART AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    Tina Lynn FOX, Plaintiff-Appellant v. Rex A. LAYTON, Defendant-Appellee.
    No. 42,491-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 17, 2007.

      Frank M. Ferrell, Shreveport, for Appellant.
    Hubley, Marcotte, Rhodes & Hussey, by Craig O. Marcotte, Shreveport, for Appel-lee.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

hThis personal injury action arose from an automobile accident that happened on July 2, 2004, in the eastbound lanes of 1-20 in the area where traffic enters from 1-49 and exits for Spring and Market Streets in Shreveport. The jury rendered a verdict in favor of Plaintiff, Tina Fox, assessing 20 percent of the fault to Defendant driver, Rex Layton, and 80 percent to a phantom driver of an 18-wheel truck. The verdict awarded Mrs. Fox special damages of $7,000. No general damages were awarded. A motion for new trial filed by Plaintiff was denied. A partial JNOV was granted, however, with the trial judge increasing the special damages award to $12,158.44 and awarding $10,000 in general damages. Plaintiff appeals the denial of the motion for new trial, the allocation of fault and the assessment of damages. For the reasons stated herein, we affirm.

FACTS

The record indicates that Mrs. Fox was driving eastbound on 1-20 when she was forced to make a sudden stop due to traffic stopping ahead of her. At the same time, the vehicle driven by Mr. Layton was traveling eastbound on 1-20 in the far right lane preparing to exit at Spring/Market when an 18-wheeler merging from 1 — 49 onto 1-20 moved from right to left into his lane of travel. Mr. Layton applied his brakes and maneuvered his vehicle to the left and hit the rear of Mrs. Fox’s vehicle. Both Mrs. Fox and the wife of Mr. Layton were transported together from the scene by ambulance. Mrs. Layton testified that, while on the way to the emergency room, the two ladies agreed that the 18-wheeler had caused Mr. Layton to rear-end Mrs. Fox’s vehicle. She further testified that Mrs. Fox told her that 12she had seen the blue cab of the 18-wheeler as it was merging. Mrs. Layton was observed (due to an elevation in blood pressure) and released. Mrs. Fox was treated and released.

Mrs. Fox subsequently sought treatment for neck, back and shoulder pain. The record reflects that she was treated by a chiropractor, an orthopedist and a neurologist over a period of approximately four months after the accident. She was diagnosed with “frozen shoulder,” a condition which results in limited range of motion in the affected shoulder. Following one of her chiropractic sessions, Mrs. Fox began experiencing paralysis and numbness in one side of her face. Ultimately, a diagnosis of Bell’s Palsy was made and she was treated with anti-viral medication, which resolved her condition. Mrs. Fox also received acupuncture treatment from an acupuncturist/large animal veterinarian. She testified that, after two acupuncture treatments, her injuries allegedly related to the accident were totally resolved.

Mrs. Fox filed suit for personal injuries allegedly sustained in the accident against Mr. Layton and his insurer and was represented at trial by Mr. Leslie Kelly. A jury trial was held August 8, 9, and 10, 2006. As previously stated, the 'jury rendered a verdict assessing 20 percent of the fault to Layton and 80 percent to a phantom driver (the driver of the 18-wheeler). The verdict awarded Mrs. Fox special damages of $7,000, with no general damages.

Mrs. Fox thereafter obtained new counsel', who filed motions for a new trial and JNOV. Her argument was based on the alleged ineffective |aassistance of her trial counsel. On December 20, 2006, the trial court denied the motion for new trial, but partially granted the JNOV to increase the special damages to $12,158.44, and awarding general damages of $10,000. The motion for JNOV as to allocation of fault was denied and she now appeals these rulings.

DISCUSSION

Denial of Motion for New Trial

Mrs. Fox first argues that it was reversible error for the trial judge to deny her motion for new trial in light of the alleged deficiencies of her trial counsel in his representation of her both pre-trial and at the trial. The applicable article in this case is La. C.C.P. art. 1973, which provides discretionary grounds for the trial court to grant a new trial, and states that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” The granting or denial of a motion for new trial is within the vast discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. La. C.C.P. art. 1973; Morehead v. Ford Motor Company, 29,399 (La.App. 2d Cir.5/21/97), 694 So.2d 650, writ denied, 97-1865 (La.11/7/97), 703 So.2d 1265. In deciding whether to grant a new trial, the trial court may evaluate the evidence without favoring any party, draw its own inferences and conclusions and assess the credibility of witnesses. Id.; May v. Jones, 28,106 (La.App. 2d Cir.5/8/96), 675 So.2d 275, writ denied, 96-1466 (La.9/27/96), 679 So.2d 1354.

14Mrs. Fox asserts that her trial counsel was woefully deficient in the following nonexclusive respects: (1) failing to file any pre-trial documents; (2) conducting no discovery; (3) failing to satisfy any of the requirements on the scheduling order; (4) failing to tender any pre-trial inserts and (5) only tendering one proposed jury instruction. In addition, she notes that trial counsel failed to prepare exhibits for the jury, an opening or closing statement and called only her chiropractor to testify. Mr. Kelly neither deposed nor called to testify other key witnesses in the case. Mrs. Fox, her husband and her chiropractor were the only witnesses called on her behalf.

On the other hand, counsel for Defendants argued to the trial court that Mrs. Fox had had her day in court and any redress for the alleged ineffective assistance of counsel was available via malpractice action rather than conducting a new trial. The trial court agreed and we find no abuse of discretion in the trial court’s determination in this regard. In the case sub judice, after hearing the evidence and reviewing all of the medical records, which were introduced without objection, the trial court determined that adjusting the damage awards through a partial grant of the motion for JNOV was most appropriate and, as discussed below, we find no error in this conclusion.

Partial GrantIDenial of JNOV

Under La. C.C.P. art. 1811, a JNOV is appropriate when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court finds that reasonable people could not arrive at a contrary verdict. A motion for JNOV should be granted only when the evidence [Rpoints so strongly in favor of the moving party that reasonable people could not have reached a different conclusion. If there is evidence opposed to the motion for JNOV of such quality and weight that reasonable and fair-minded people, in the exercise of impartial judgment, might reach different conclusions, the motion should be denied. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Scott v. Hospital Service District No. 1 of Parish of St. Charles, 496 So.2d 270 (La.1986).

In considering a motion for JNOV, the trial court should not evaluate the credibility of witnesses, nor substitute its own reasonable inferences of fact for the jury’s as long as reasonable inferences can be made to support the jury’s verdict. All reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Public Service, Inc., supra; Brantley v. General Motors Corporation, 573. So.2d 1288 (La.App. 2d Cir.1991), writ denied, 577 So.2d 17 (La.1991).

A JNOV is a procedurally correct device for raising or lowering an unreasonable damage award. La. C.C.P. art. 1811; Lilly v. Allstate Insurance Company, 577 So.2d 80 (La.App. 1st Cir.1990), writ denied, 578 So.2d 914 (La.1991). When a trial court has determined that a JNOV is warranted because reasonable men could not differ on the fact that the award was either abusively high or abusively low, it must determine what is the proper amount of damages to be awarded. In making this determination, the trial court is not constrained as are the appellate courts to raising (or lowering) the award to the lowest (or highest) point reasonably within the discretion afforded that court. Rather, the trial court should render a de | fi'novo award of damages based on its independent assessment of damages. Anderson v. New Orleans Public Service, Inc., supra. Medical expenses are a proper item of damages. Thames v. Zerangue, 411 So.2d 17 (La.1982). A jury is in error for failure to award the full amount of medical expenses proven by the victim. Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2d Cir.1993).

In the present case, the trial court provided thorough reasons supporting its de novo assessment of special damages, including an item by item summary of each expense it found to be causally related to the accident. The trial court raised the amount of special damages from $7,000, which was the least amount of specials suggested by - defense counsel, but which was not supported by any specific calculation, to a precise amount of $12,158.44, which is well-supported by the medical records. The trial court refused to award special damages for the Bell’s Palsy allegedly suffered by Mrs. Fox, as it found absolutely no causal relation to the accident. These conclusions are overwhelmingly supported by the record and are not manifestly erroneous or clearly wrong.

Regarding general damages, we note that, in most cases, it is error of law to award special damages for medical expenses and nothing for personal injury, pain and suffering; JNOV is the suitable means of correcting this error. Sumrall v. Sumrall, supra.

General damages are those which may not be fixed with pecuniary exactitude. Odom v. Claiborne Electric Co-op., Inc., 623 So.2d 217 (La.App. 2d Cir.1993), unit denied, 629 So.2d 1171 (La.1993). A trier of fact 17has great discretion in fixing general damages. A trial court’s award of general damages should not be overturned by a reviewing court absent an abuse of discretion. Coffin v. Board of Supervisors of Louisiana State University, 620 So.2d 1354 (La.App. 2d Cir.1993).

General damages involve mental or physical pain or suffering, inconvenience, loss of intellectual gratification or physical enjoyment or other losses of life or lifestyle which cannot be definitively measured in monetary terms. Odom v. Claiborne Electric Co-op, Inc., supra. When damages are insusceptible of precise measurement, much discretion is left to the trial court for the reasonable assessment of these damages. La. C.C. art. 1999; Spurrell v. Ivey, 25,359 (La.App. 2d Cir.1/25/94), 630 So.2d 1378. An appellate court should rarely disturb an award for general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Our review of the record leads this court to agree with Defendants that the trial court generously awarded the sum of $10,000 in general damages, despite the jury’s apparent conclusion that Mrs. Fox was not a credible witness and despite the inconsistencies plainly revealed between her trial and deposition testimony. This award is neither manifestly erroneous nor clearly wrong and we will not disturb it on appeal.

In addition, we find no error in the trial court’s refusal to disturb the jury’s allocation of fault of 20 per cent to Mr. Layton and 80 per cent to the phantom driver of the 18-wheeler. The jury credited Mrs. Layton’s testimony regarding how the accident occurred, to the effect that the truck jRmoved across the white line into Mr. Layton’s lane of travel, leaving Mr. Layton with no choice but to brake and move quickly to the left to avoid colliding with the truck. There is nothing in this record to suggest that this finding was unreasonable, nor is there overwhelming evidence to the contrary. The trial court’s denial of the JNOV as to allocation of fault will not be disturbed.

CONCLUSION

For the reasons stated herein, the judgment of the trial court denying Plaintiffs motion for new trial is affirmed. The partial grant of JNOV and attendant awards of special damages in the amount of $12,158.44 and general damages in the amount of $10,000 are affirmed. The denial of JNOV as to allocation of fault is affirmed. Costs of appeal are assessed to Plaintiff, Tina Fox.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Bertie HICKS, Appellant.
    No. 42,427-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      David M. Newell, Homer, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, C. Sherburne Sentell, III, Assistant District Attorneys for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, J J.
   WILLIAMS, J.

IjThe defendant, Bertie Hicks, was charged by bill of information with manslaughter, a violation of LSA-R.S. 14:31. In exchange for the state’s waiver of the minimum statutory sentence, the defendant pled guilty to manslaughter. The district court sentenced defendant to serve 40 years at hard labor without benefit of probation or suspension of sentence and denied his motion to reconsider sentence. Defendant appeals his conviction and sentence. For the following reasons, defendant’s conviction is affirmed, his sentence is amended and affirmed as amended.

FACTS

According to the facts of the pre-sen-tence investigation report prepared in this case, on November 14, 2005, the defendant was home alone with his seven-week-old daughter, Elizabeth Hicks. During the morning, defendant called his wife, Crystal Hicks, at work requesting that she come home because of an emergency. While en route to her home she was stopped by a police officer. Mrs. Hicks informed the officer that there was an emergency at her home, and he followed her there. Once they arrived at the house, the defendant told Mrs. Hicks that the baby was not breathing correctly.

The defendant reported that he had been giving the child a bath when water went in her nose and that she was having trouble breathing as a result. Both Mrs. Hicks and the officer observed the child lying on a couch and her breathing appeared fine. The officer left, and Mrs. Hicks waited another 20 to 30 minutes before returning to work. Mrs. Hicks later recalled that when she first arrived, the child seemed cold and pale, but by the time she left the | ¡¡baby’s appearance had returned to normal. However, approximately ten minutes after Mrs. Hicks returned to work the defendant called again saying the child was not breathing normally, and his mother was on the way to pick them up. As she drove home the second time, Mrs. Hicks saw an ambulance and followed it to the hospital.

Detectives investigating the matter as a potential child abuse case interviewed the emergency room treating physician regarding the child’s condition. A CT scan showed some areas of bleeding around the child’s brain. The doctor reported that the condition is commonly associated with shaken baby syndrome. The child was transferred to Schumpert Medical Center in critical condition. On November 16, 2005, baby Elizabeth was declared brain dead.

The defendant was interviewed and informed the detectives that he had vigorously shaken the child on two occasions the day she was taken to the hospital. Additionally, the defendant informed the detectives that he struck the child’s head against the bathtub when lifting her out of the water. The defendant stated that after his wife returned to work that day he went outside, leaving the baby unattended in the house for approximately 15 minutes. He stated that when he checked on the baby she was not moving and was having difficulty breathing, so he called his mother. Defendant said he did not initially seek medical treatment for the child because he was under the influence of drugs and believed the doctors would detect that fact. Both the defendant and his wife tested positive for marijuana.

Although the defendant was eventually arrested for first degree 13murder, he was charged with and pled guilty to manslaughter. Thereafter, the district court imposed the maximum sentence of 40 years at hard labor without benefits. Defendant’s motion to reconsider sentence was denied.

DISCUSSION

The defendant contends the district court’s imposition of the maximum sentence for his manslaughter conviction is excessive. Defendant argues that the court failed to properly consider the circumstances of the case, including the state’s willingness to waive the mandatory minimum sentence and defendant’s background.

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 LSA-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 Article 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 Article 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284; write denied, 04-0834 (La.3/11/05), 896 So.2d 57, 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are defendant’s |4personaI history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and 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, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

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. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. This is particularly true in cases where the offense involves violence upon a victim. State v. Black, 28,100 (La.App. 2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, the sentence imposed should not be set aside as excessive. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7. 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, 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).

Prior to imposing sentence in this case, the district court reviewed a pre-sentence investigation (PSI) report and heard an impact statement from a family member of the victim and a statement from defendant’s mother. The court stated its belief that although this was a “very tough case,” there was not any crime greater than taking the life of a helpless child and the harshest penalty was required. While not specifically stated during the sentencing hearing, the record shows that the district court was aware of the appropriate considerations necessary to tailor the sentence to this defendant, including his family history, his lack of prior criminal record, and his drug usage.

Additionally, the PSI report refers to allegations made by the victim’s maternal relatives that the defendant had physically abused the victim prior to her death. The allegations of abuse were also raised by the state during the argument on the motion to reconsider sentence. Even though any alleged previous abuse was not charged as criminal activity, the court could properly consider these allegations in determining the appropriate sentence for this defendant. State v. Jones, 31,569 (La.App. 2d Cir.12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App. 2d Cir.10/29/97), 702 So.2d 40.

Considering the Article 894.1 sentencing guidelines, the record lüsupports a finding that aggravating factors were present, since defendant’s conduct manifested deliberate cruelty to the child victim and defendant knew or should have known that the victim was particularly vulnerable.and incapable of resistance due to extreme youth.

In his appellate brief, the defendant argues that because others were present at the scene, they were in control of the situation and he should be relieved of “primary liability” for the baby’s death. While the defendant alleges there were others whose actions could have intervened to prevent the death of the child, defendant refuses to acknowledge that he neither sought proper medical treatment for the child nor disclosed to his wife and the police officer that he had severely shaken the baby. The defendant’s act of lying to those who initially attempted to ascertain the nature of the child’s problems precluded the option of seeking medical attention at an earlier time. Only later did defendant admit his actions under extensive questioning by detectives.

• After reviewing the record, we conclude that there is an adequate factual basis for the sentence imposed. The defendant, by his own admission, violently shook his baby daughter and failed to disclose the true nature of her injuries, thereby delaying treatment. The defendant’s selfish and duplicitous conduct indicates that he intentionally inflicted the physical injury which caused the death of the young child. The maximum sentence imposed is neither grossly disproportionate to the seriousness of the offense committed nor shocking to the sense of justice. Thus, there is no showing that the district court abused its discretion in sentencing this defendant. 17Consequently, we cannot say that the sentence is constitutionally excessive. The assignment of error lacks merit.

Guilty Plea

The defendant contends his guilty plea was not knowing and voluntary. Defendant argues that he incorrectly believed that he had been charged with murder, that the charge would be reduced to manslaughter in exchange for his guilty plea and that he would receive a sentence of less than 10 years. The defendant further argues that he did not understand the charge to which he was pleading because the district court failed to inform him of the elements of the crime of manslaughter.

A valid guilty plea must be a free and voluntary choice by the defendant. A guilty plea will not be considered free and voluntary unless, at the very least,- defendant was advised of his constitutional rights against self-incrimination, to a trial by jury and to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). An express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Keener, 41,246 (La.App. 2d Cir.8/23/06), 939 So.2d 510; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992).

In addition, LSA-C.Cr.P. art. 556.1 provides that prior to accepting a guilty plea, the court must personally inform defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. The test for the validity of a guilty plea does not depend upon whether or not the district court specifically informed lathe accused of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. State v. Forrest, 04-43 (La.App. 5th Cir.5/26/04), 876 So.2d 187. Violations of Article 556.1 that do not rise to the level of Boykin violations are subject to the harmless error analysis. State v. Ford, 02-1394, 02-1642 (La.App. 4th Cir.4/16/03), 846 So.2d 98, writ denied, 03-1401 (La.11/26/03), 860 So.2d 1132.

At the guilty plea hearing in the present case, after ascertaining that the defendant was able to read, write, and understand the English language, the district court advised defendant of his right to a jury trial, the right to confront witnesses, the right to remain silent, the right to bring witnesses by the compulsory process, and the right to appeal. Defendant stated that he understood the proceedings and wished to give up those rights. The court also informed defendant of the minimum and maximum penalties of the offense to which he was pleading guilty. In addition, the district court specifically advised the defendant that the state’s willingness to waive the mandatory minimum sentence would not be the determining factor in deciding the sentence and that the court could impose a 40-year sentence.

Although the district court did not specifically inform the defendant of every element of the offense of manslaughter, the court noted that defendant’s situation was governed by LSA-R.S. 14:31(B), which provides that if the victim of manslaughter was killed as a result of receiving a battery and was under the age of ten years, the offender shall be imprisoned without benefit of probation or suspension of sentence for not less than ten|9years. Notably, the defendant, who was represented by counsel at the time of his plea, failed to complain that he did not understand the charge against him. Thus, defendant has not established that he was unaware of the essential nature of the offense to which he was pleading. The record demonstrates that defendant was adequately advised of his constitutional rights and that his guilty plea was free and voluntary.

The defendant also alleges that his plea was improperly induced because he was erroneously informed that he was facing a murder charge. During the guilty plea hearing, the district court stated that defendant was “charged with murder. That’s been reduced by the district attorney to manslaughter, which carries a penalty of up to 40 years at hard labor.” Although the minutes of court indicate that initially there was a “tentative” charge of first degree murder in November 2005, the bill of information ultimately filed on April 17, 2006, charged defendant with manslaughter.

Contrary to defendant’s contention, the district court’s reference to a murder charge does not appear to have influenced his decision to plead guilty to manslaughter. The record indicates that defendant was present in court for arraignment on the charge of manslaughter. Additionally, the defendant had already decided to enter a plea of guilty to manslaughter prior to the court’s mention of a murder charge at the hearing. Thus, defendant has not shown that absent the court’s reference to a murder charge he likely would not have pled guilty. The assignment of error lacks merit.

Assistance of Counsel

The defendant contends he did not receive effective assistance of |incounsel. Defendant argues that his attorney was negligent in convincing him to enter a plea of guilty without obtaining the state’s agreement to a definite sentence and by advising the defendant that he would receive a sentence of less than ten years and avoid the risk of the death penalty.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court, where a full evidentiary hearing may be conducted under LSA-C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2d Cir.6/21/00), 764 So.2d 1164. The right of a defendant in a criminal proceeding to effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires defendant to establish that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the proceeding would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.4/5/95), 653 So.2d 174, unit denied, 95-1398 (La.11/3/95), 662 So.2d 9.

The constitutional standard for effectiveness of counsel claims is the |nsame in guilty plea cases as in cases which have gone to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Wry, supra. In Hill v. Lockhart, supra, the requirement of prejudice was interpreted to mean, in the guilty plea context, that but for counsel’s unprofessional or erroneous advice, the defendant would have pled not guilty and elected to go to trial. State v. Wry, supra.

In the present case, defendant argues that at the plea hearing his attorney convinced him to plead guilty by making representations that the defendant would receive a sentence of less than ten years at hard labor. While such representations do not appear in the record, we note that the state indicated its willingness to waive the mandatory minimum sentence in exchange for defendant’s guilty plea. Additionally, the defendant alleges that his counsel should not have recommended a guilty plea without obtaining an agreed sentencing cap.

Defendant’s claims of ineffective assistance of counsel have never been argued to any court and at this point are mere assertions. The record is insufficient for this court to review the issue of ineffective assistance. The defendant’s remedy is post-conviction relief wherein the quality of the attorney’s performance can be fully developed and explored in an evidentiary hearing. Thus, the assignment of error is not properly before this court and we will defer the claim of ineffective assistance of counsel to post-conviction relief. State v. McGhee, 554 So.2d 145 (La.App. 2d Cir. 1989).

Error Patent

hgUpon review of the record, we note that the district court sentenced de- . fendant to “forty years at hard labor without benefit of probation, suspension of sentence or probation.” However, the minutes of court indicate that defendant was denied parole eligibility. Although the sentencing provisions of LSA-R.S. 14:31(B) do not prohibit parole, we note that defendant was convicted of manslaughter, which is a crime of violence as defined in LSA-R.S. 14:2(B)(13). Pursuant to LSA-R.S. 15:574.4(B), a person convicted of a crime of violence shall serve at least 85% of the sentence imposed before being eligible for parole. Thus, the sentence will be amended to reflect that defendant is required to serve 85% of his sentence prior to eligibility for parole.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. Defendant’s sentence is hereby amended to reflect that he is required to serve 85% of his sentence prior to eligibility for parole.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.


text:
    Kurt COATES, Plaintiff-Appellant v. HILL WHOLESALE DISTRIBUTING COMPANY, Defendant-Appellee.
    No. 42,584-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.
    Rehearing Denied Nov. 29, 2007.

      Gauthier, Houghtaling, & Williams, by James M. Williams, Brian J. Houghtaling, Metairie, for Appellant.
    McMichael, Medlin, D’Anna & Wedge-worth, L.L.C., by James C. McMichael, Jr., Shreveport, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

|! Plaintiff, Kurt Coates, appeals the judgment of the trial court in favor of the defendant, Hill Wholesale Distributing Co. (“HWD”), rejecting plaintiffs demand for damages for the defendant’s alleged breach of an employment contract. For the reasons more fully explained herein, we reverse the judgment of the trial court and render judgment in favor of Kurt Coates and against HWD in the amount of $44,123.02.

FACTS

Kurt Coates was hired in May of 2003 by Hill Wholesale Distributing Co. (“HWD”), a countertop and flooring wholesaler based in Shreveport, Louisiana. Coates was hired to work as a floor covering sales representative out of the company’s Baton Rouge office at an annual salary of $50,000. Although Coates’ salary was guaranteed for one year, he was terminated by HWD on October 31, 2003, less than six months after he began. Coates filed suit against HWD for breach of the employment contract seeking payment of the unpaid portion of his guaranteed one-year salary and penalties and attorneys’ fees under La. R.S. 23:631. HWD answered the petition asserting that Coates was fired for good cause, thus relieving it from the salary obligation in the employment contract.

Trial was held on October 31, 2006, during which the court heard testimony from the plaintiff and from HWD’s president, Allan Hill. The parties by stipulation also submitted various exhibits into evidence including, but not limited to, the depositions of two HWD employees, Coates’ personnel file, his call/sales reports and the documents reflecting his engagement and termination.

| .EVIDENCE ADDUCED AT TRIAL

The terms of Coates’ employment were set forth in a letter from Coates to Allan Hill dated May 13, 2003, and a reply e-mail from Hill to Coates on May 16, 2003. The letter from Coates set forth the following conditions of employment:

1.) an annual salary of $50,000 guaranteed for at least one year;

2.) a company vehicle, together with necessary maintenance expenses and a Fu-elman gas card;

3.) a cell phone;

4.) expense reimbursement, (meals, hotel, etc.);

5.) health insurance coverage with a limited ■ monthly employee contribution of $200.00;

6.) cost of Cobra coverage to cover lag time between health insurance provided by old employment and new health insurance;

7.) bonus commission based on percentage of profit;

8.) description of territory to be covered;

9.) one week of paid vacation after six months and two weeks after the first year of employment;

10.) HWD would provide a list of job duties, customer lists, and types of customers to be called on; and,

11.) HWD would provide a list of products and any sales quota Coates was expected to meet.

| .The letter included Coates’ request for a one-year guarantee on the salary by explaining that as a new venture for HWD, it could take more than a year to get the project off the ground.

Allan Hill’s May 16 reply indicates that the parties were in agreement on everything except the following:

1.) bonuses were to be paid only if the money was available and if HWD was operating at a profit;

2.) joining trade groups at company expense could only be done with prior company approval, and;

3.) two weeks’ paid vacation would be granted after the first year of employment, prior to which Coates could use sick leave.

At trial, Allan Hill testified that he had hired Coates in an effort to open up a new product line in- south Louisiana and that the two documents referenced above reflected the employment agreement between Coates and HWD. Although Hill admitted that Coates was never provided a sales quota or a list of customers that he was to call on, he described Coates’ sales performance during his time at HWD as poor. Mr. Hill identified a document which was provided to and signed by Coates on October 20, 2006, setting forth Coates’ duties regarding his employment. The document provided in pertinent part:

• Call reports from previous week & Itinerary for CURRENT week to be faxed to Shreveport office by 9:00 a.m. on Mondays (318-868-5827)
• If need be, appointments can be scheduled during the previous week via cell phone while travelling (sic) & office time so that Mondays can be productive with actual sales calls.
14* Go through the local phone books to get your appointments lined out. Also use the AIA listing Roy from Azvock faxed us.
• 8 to 12 physical sales calls per day required (except on office day)

Mr. Hill testified that he had directed Coates’ immediate supervisor, Susan Hill, to draft the document and provide it to Coates. Hill further admitted that the October 20, document was the first time Coates had been informed in writing about the need to file call reports and itineraries. However, Hill alleged that Coates had previously been informed verbally on many occasions.

Mr. Hill also identified a “Separation Notice” completed by him indicating that on October 31, 2003, he had orally informed Coates that he was terminated for failure to turn in call reports and itineraries for two weeks. However, when confronted with documentary evidence to the contrary, Mr. Hill conceded that Coates had faxed a report to the office on October 20, 2003, reflecting his activities of the previous week.

Susan Hill, a sales manager with HWD, testified in her deposition that Coates was hired to be a sales representative responsible for calling on floor covering dealers and architects to try and provide sales of the products marketed by HWD. Coates answered to both her and Allan Hill. She testified that Coates was very lethargic, that his sales performance was disappointing, and that he failed to turn in his call reports as required. She testified that she spoke to him on several occasions beginning about three months into Coates’ employment and finally drafted the above-referenced [ r,October 20, 2003, document listing Coates’ duties for him to acknowledge through his signature.

Ms. Hill testified that while she had never documented any of the warnings she had communicated to Coates about his failure to comply with the call report requirements, but that he had been warned on several occasions prior to being provided the written form delineating his obligations. She also testified that on one occasion she had observed Coates drive his company vehicle after drinking alcohol at a work function. However, she did not recall addressing the matter with Coates as a violation of company policy. As far as she was concerned, the only reason for Coates’ termination was his failure to turn in call reports as required of him.

Wanda Wallace, another HWD employee, was also deposed. She testified that she was the manager of the Baton Rouge office during Coates’ employment but that her duties did not include supervising Coates or any other sales representative. However, as manager she was aware that Susan Hill and Allan Hill were less than satisfied with Coates’ performance and his failure to turn in timely call reports and itineraries. She testified that she had seen faxes come in to Mr. Coates warning him about the necessity of filing his call reports and itineraries and that Susan Hill had met with Coates’ personally to discuss the issue. She stated that all employees were told that if they did not file their call reports, they could be terminated.

In his trial testimony, Coates stated that he took the job because he thought it presented an opportunity for advancement, but he insisted on one year’s guaranteed salary because he felt that as a start up venture it could | stake some time to become profitable. He testified that despite his requests, he was never provided the sales quotas or account lists referred to in the contract between the parties. He would not say that he believed his performance to be poor, but instead claimed that any lack of success was due to HWD’s failure to abide by its obligations under the employment contract. Contrary to the testimony of Allan and Susan Hill, he also testified that he filed his call reports about once a week and denied that he had ever drunk alcohol in a company vehicle. He further stated that did not drink alcohol because he was on various medications which prevented him from doing so.

At the close of the evidence, the trial court found that the plaintiff had been terminated for cause and, therefore, was not entitled to the relief prayed for. A judgment to that effect was signed on November 21, 2006. The instant appeal followed.

DISCUSSION

Wrongful Termination

La. C.C. art. 2749 states:

If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

An employer’s discharge of an employee hired under a fixed term contract without cause results in the employee’s entitlement to compensation for all wages or salary that he would have received but for the breach. Andrepont v. Lake Charles Harbor and Terminal Dist., 602 So.2d 704 (La.1992); Carlson v. Ewing, 219 La. 961, 54 So.2d 414 (1951). There is no dispute in the present case that Coates was hired for a fixed term of one year and that he was discharged well before that fixed term expired.

The determination of cause or “serious ground for complaint” is a subject to manifest error review on appeal. Absent an abuse of discretion or manifest error, a reviewing court cannot disturb the factual findings of a trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989). 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. Rosell, supra; Charrier v. Primm, 40,038 (La.App. 2d Cir.08/19/05), 909 So.2d 1033.

The trial court concluded that HWD had good cause for terminating Coates. The evidence adduced from Allan Hill, Susan Hill, and Wanda Wallace indicated that HWD was considerably disappointed with Coates’ sales performance. However, it is also clear that HWD did not provide adequate support to Coates in light of his poor sales. The record indicates that Coates was never provided a sales quota or a list of call leads to make. Moreover, there was never a written description of his job responsibilities until October 20, 2003, eleven days before he was terminated.

Even if we were to assume Coates had been sluggish in his compliance with the company’s policy requiring sales representatives to submit their weekly itineraries and call reports to management, eleven days is hardly a fair time frame for HWD to adequately evaluate complicity with their mandate or his ability to turn around poor sales. Nonetheless, we do | snot suggest that Coates was a model employee, but that it appears that the primary consideration in terminating his guaranteed contract was in fact his poor sales. By signing a contract with a guaranteed salary for a year both parties had to contemplate the possibility that sales may fail to meet projections in the short term. As such, poor sales alone cannot serve as the basis for termination of this employment contract.

It appears that HWD was grasping for issues to complain about concerning Coates’ performance as a pretense for terminating his employment. For instance, Mr. Hill indicated that while the separation notice did not mention violation of the company alcohol policy as a reason for termination, he had received a report that Coates had been observed drinking beer while in a company vehicle. Moreover, Mr. Hill admitted that he had no knowledge of, and Coates’ personnel file does not reflect, whether an Employee Warning Notice had ever been completed in regard to any discipline of Coates as was required by HWD’s employee manual. So, while it appears that HWD’s major complaint was Coates’ purported failure to compliance with its documentation requirements for sales, it chose not to comply with its own documentary rules with respect to his employment with them.

Viewed in light of Coates’ alleged poor sales performance, and HWD’s lack of support and compliance with its own documentary requirements, we find their termination of Coates for his purported failure to file reports was pretense for termination because of poor sales. Coates’ failure to consistently file reports may have deprived his employer of the 19ability to determine whether the lack of sales was due to lack of effort or the difficulty which is implicit with any new business venture. However, HWD’s termination of his employment contract after only eleven days’ written notice of reporting requirements and before even half of the contract term had expired does not comport with fair dealing and is contrary to the law.

Moreover, HWD’s actions following its termination of Coates further underscore our conclusion that his firing was pretextual. Most significantly, Coates’ employment file shows that a week after his termination, on November 7, 2003, HWD made a request for a “preemployment” background check on Coates. It seems strange that an employer would perform a “preemployment” check on an employee it had fired a week earlier unless it was looking for information that would buttress an adverse employment decision made toward that employee. Despite HWD’s claims to the contrary, we find no support for their contention that they fired Coates for cause. As such, we find that the trial court’s decision was an abuse of discretion and we reverse and order HWD to pay Coates the balance of the monies owed under his contract.

La. R.S. 23:631 et seq

La. R.S. 23:631 governs the payment of wages after the discharge of an employee. It reads in pertinent part:

(l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular |inpayday or no later than fifteen days following the date of discharge, whichever occurs first.

Coates and HWD entered into an employment contract for a term of one year for $50,000. Under La. R.S. 23:631, Coates should have received compensation on or before November 15, 2003. Thus, he should have been paid $29,166.67 representing the remainder due under the contract.

Under the employment contract Coates was required to contribute $200.00 a month to his employer to cover his health insurance costs. Following his termination, Coates has paid $908.05 per month to HWD to continue his health coverage. Mr. Coates alleges in brief that the amount he would pay will increase to $1,035.00 per month “upon information and belief;” however, we find no support for this increase in the record. Since Coates was employed five months, we will calculate the damages over the seven months remaining on his contract with HWD using the difference in the $200.00 a month he was to pay under the contract and the $908.35 a month he actually paid in health care insurance costs for the term of the contract. Thus, we award $4,956.35 in health insurance costs as a result of the breach of his employment contract.

La.R.S. 23:632 provides for reasonable attorneys fees in the prosecution of a suit for wrongful termination. Mr. Coates asked for $15,347.49 representing one third of the amounts he alleged he was to recover under this breach of contract. However, we find that an award of $10,000 is appropriate under the facts of this case.

[^CONCLUSION

For the reasons set forth above, the judgment of the trial court in favor of Hill Wholesale Distributing Co., is hereby reversed and we render judgment in favor of Kurt Coates and against HWD in the amount of $44,123.02. Costs of this appeal are assessed to HWD.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.


text:
    Heidi Finley HARPER and Heath Finley, Plaintiffs-Appellants v. Dr. Roger SMITH and Dr. Russell Cummings, Defendant-Appellees.
    No. 42,586-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.
    Rehearing Denied Nov. 29, 2007.

      Sedric E. Banks, Monroe, for Appellants.
    Crawford & Joyce by Brian E. Crawford, Monroe, for Appellees, Dr. Roger Smith & Louisiana Medical Mutual Insurance.
    Before WILLIAMS, PEATROSS & DREW, JJ.
   PEATROSS, J.

11 Plaintiffs, Heidi Finley Harper and Heath Finley, filed this medical malpractice action following the death of their father, Reverend Glynn “Fobi” Finley. After the second trial of this matter, a jury agreed with the medical review panel that Defendant, Dr. Roger Smith, did not breach the standard of care following his treatment of Rev. Finley at Franklin Medical Center (“FMC”), in Winnsboro, Louisiana, on the dates of April 29-30, 2001. Ms. Harper and Mr. Finley are the sole surviving children of Rev. Finley. The trial court denied Plaintiffs’ motion for JNOV and/or new trial and Plaintiffs now appeal. For the reasons stated herein, we affirm.

FACTS

Rev. Finley presented at Dr. Smith’s office on Friday, April 27, 2001, complaining of severe abdominal pain. Dr. Smith diagnosed partial small bowel obstruction and noted suspicion for adhesions due to Rev. Finley’s history of past abdominal surgery. The record reflects that Dr. Smith advised Rev. Finley that he should be hospitalized, but that Rev. Finley did not want to go to the hospital. Dr. Smith thought that the “kink” in the bowel might correct itself, so he sent Rev. Finley home with narcotic pain medication and ordered bowel rest. He further told Rev. Finley to go to FMC emergency room if the pain worsened. During this visit, Rev. Finley | ¡>also advised Dr. Smith that, if surgery was required, he preferred going to LSU Shreveport where he was familiar with the surgeons. Rev. Finley did not have medical insurance, but was on Medicaid and had previously received surgical treatment at LSU Shreveport.

. Sunday afternoon at 5:30, Rev. Finley presented at FMC emergency room complaining of severe and worsened abdominal pain. Ms. Harper signed the requisite documents assuming the role of responsible party for her father’s medical care. Dr. Smith was not at the hospital, but was on call for the weekend. He consulted with the emergency room physician by telephone and the diagnosis of small bowel obstruction with suspicion of adhesions was confirmed. At 8:00 p.m., Dr. Smith ordered that Rev. Finley be admitted to ICU where he would receive constant nurse supervision. During the night, nurses called Dr. Smith four times with status reports and requests for additional pain medication. At '7:20 Monday morning, Rev. Finley’s condition was further deteriorated, with severe pain and hallucinations from the pain medication. At 7:45 a.m., Dr. Smith arrived at the hospital, examined Rev. Finley and immediately determined that he needed emergency surgery. Dr. Smith testified that, at this point, the standard practice would be to call in a surgeon to evaluate the patient. Dr. Smith was not a surgeon; therefore, following Rev. Finley’s request, he began making arrangements around 8:00 a.m., for a transfer to LSU Shreveport for surgical consultation.

Ms. Harper signed the transfer documents as Rev. Finley’s responsible party. Dr. Smith testified that he believed, at that point, that |3Rev. Finley would be examined by a surgeon at LSU Shreveport by 10:00 a.m. Dr. Smith further testified that he believed that Rev. Finley was at high risk for bowel strangulation or infarction, but that he would remain stable until he arrived at LSU Shreveport. Thinking that the transfer was á “done deal,” Dr. Smith returned to his office to see patients.

Significantly, however, a transfer to LSU Shreveport cannot be made until a hospital bed is assigned to the patient by LSU Shreveport. Indeed, an ambulance request cannot be.made until such assignment has been made. A short while later, after the signed documents had been submitted to LSU Shreveport requesting a transfer, a nurse calling LSU to check the status of the transfer was informed that LSU Shreveport had apparently lost the paperwork on Rev. Finley and that there was no longer a bed available for him. Dr. Smith testified that he had never had an instance where a patient was accepted for transfer and that acceptance was subsequently reversed. He testified that he believed he was “being stonewalled” regarding his attempt to get Rev. Finley a bed at LSU Shreveport. Ultimately, this apparent administrative failure on the part of LSU Shreveport removed that facility as a viable option for Rev. Finley; and, therefore, Dr. Smith began exploring other options, including specifically a transfer to E.A. Conway Medical Center — LSU Monroe.

Ms. Harper testified that she spoke with Dr. Smith at his office at 10:20 a.m. to ask the reason for the delay with the transfer of her father. Also in the meantime, Plaintiffs learned from a friend who was a nurse on duty at FMC that there was a surgeon on call at FMC, Dr. Russell LCummings. Until the noon hour, Rev. Finley remained in stable condition and Dr. Smith, therefore, chose to attempt a transfer to LSU Monroe in light of Rev. Finley’s desire to be treated in the LSU system. At 12:15 p.m., however, Rev. Finley experienced an episode of unconsciousness while trying to stand by the bedside. His respirations increased and pulse slowed. While no resuscitative measures were performed, a Code Blue was called to get immediate assistance with the patient, who was then helped into bed and monitored closely. Dr. Smith arrived at ICU to find Rev. Finley in a worsened condition and desperately in need of emergency surgery. The medical records indicate that blood gases were drawn on Rev. Finley at 12:28 p.m. and the results were printed at 12:27 p.m. showing that Rev. Finley’s bowel had infarcted and gangrene was present. At this point, Dr. Smith testified that he knew that Rev. Finley would not survive without immediate surgical intervention.

As previously stated, Dr. Smith at this point had not contacted Dr. Cummings for consultation because Rev. Finley had been stable for transfer. By the time the blood gas results were obtained, Dr. Cummings had already returned to Columbia and was no longer immediately available for surgery. Dr. Smith testified that he did, however, telephone Dr. Cummings for assistance in “pulling some strings” to get Rev. Finley accepted in Monroe quickly. At 3:00 p.m., a transfer to LSU Monroe was made and Rev. Finley was loaded into the ambulance. At this time, his blood pressure was 100/60 and his pulse rate was 168. The medical testimony was consistent that this condition was not ideal for a transfer of |Rthe patient. The paperwork that was completed and signed by Ms. Harper that morning at 8:00 authorizing transfer to LSU Shreveport was altered to reflect Monroe instead of Shreveport.

As previously stated, Dr. Cummings was the surgeon on call at FMC during Rev. Finley’s hospitalization. There is no dispute that Dr. Cummings was qualified to perform the surgery that Rev. Finley needed. There is also no dispute that FMC did not have a full-time surgery team and that most of the surgery performed at FMC is elective. In order to have an unscheduled surgery at FMC, however, such as emergency surgery, the surgical team must be located and assembled. On the morning of April 30, the record indicates that Dr. Cummings was performing surgery in Columbia, Louisiana, between the hours of 7:00 and 9:00 a.m. He arrived at FMC between 9:00 and 10:00 a.m. and performed a scheduled surgery until approximately 11:00 a.m. He then left the hospital, had lunch and returned to his office in Columbia, Louisiana, to see patients. '

During this brief time (10:00-11:00), had Dr. Smith believed it to be necessary, Dr. Cummings would have been available or accessible to perform the surgery on Rev. Finley. Dr. Smith testified, however, that, during this time, Rev. Finley was stable enough to transfer to LSU Shreveport, as was his desire, and he believed that the transfer was “a go.” According to Dr. Smith’s testimony, by the time he was made aware that there would be no transfer to Shreveport and Rev. Finley’s' condition had become critical, Dr. Cummings had returned to Columbia. For this reason, Dr. Smith telephoned Dr. Cummings for assistance with the transfer rather |fithan for a surgical consultation. Dr. Cummings testified that he recalled telling Dr. Smith that it would take as long for him to get a surgery team assembled and back to FMC as it would to get Rev. Finley to Monroe. Dr. Smith proceeded with the transfer to LSU Monroe.

Rev. Finley arrived in Monroe after the 50-minute transport; but, less than" half an hour from arrival, he passed away. Efforts to revive him in the Monroe emergency room were unsuccessful. This suit followed and, after a- second trial, an emotional jury found that Dr. Smith did not breach the standard of care in his treatment of Rev. Finley. This appeal ensued.

DISCUSSION

The manifest error standard applies to our review of medical malpractice cases. Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594 (La.10/17/06), 942 So.2d 509. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In order to reverse a fact finder’s determination, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it |7would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra. Although the standard of review is high, it does not require this court to abdicate its responsibility to review the trial court’s findings, nor does it require this court to affirm a jury’s verdict that is manifestly erroneous. Gordon v. Willis Knighton Medical Center, 27,044 (La.App.2d Cir.6/21/95), 661 So.2d 991, units denied, 95-2776 and 95-2783 (La.1/26/96), 666 So.2d 679. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

In their assignment of error, Plaintiffs enumerate nine aspects in which they argue Dr. Smith’s treatment of their father fell below the standard of care. Succinctly stated, Plaintiffs argue that Dr. Smith knew on Friday that Rev. Finley had a bowel obstruction and admitted that, as of Monday morning, he knew that Rev. Finley was at a very “high risk” of bowel strangulation and needed emergency surgery. As Rev. Finley’s condition deteriorated, Dr. Smith continued to effectuate a transfer rather than consulting the surgeon on call at FMC, who, according to Plaintiffs, was present at the hospital and competent to perform the surgery. Plaintiffs | ¡¡maintain that they requested that Dr. Smith call in Dr. Cummings after their nurse/friend told them that Dr. Cummings was on call, but Dr. Smith failed to do so. Plaintiffs submit that Dr. Smith transferred an unstable, critically ill patient rather than calling in the surgeon on call at FMC. Plaintiffs’ arguments are laced with references to the fact that Rev. Finley had no insurance and was a “self-pay” patient. They assert that Dr. Smith made comments to the effect that “doctors don’t work for free.” It is clear that Plaintiffs believe that Dr. Smith denied their father the surgery that would have saved his life because of his assumed inability to pay for medical treatment.

Dr. Smith maintains that this is not a case motivated by financial concerns. He acknowledges the tragedy of the circumstances that befell Rev. Finley and accepts responsibility for all decisions made during Rev. Finley’s final illness. Dr. Smith advises the court, however, to focus only on the medical expert testimony presented at trial, which supports the conclusion that Dr. Smith’s treatment of Rev. Finley’s abdominal symptoms was well within the standard of care for an internist. He suggests that this is a case involving medical judgment and that his judgment to transfer Rev. Finley to a facility with a higher level of surgical care was within the standard of care. Dr. Smith points out that FMC is not a high level medical center and only performs low-risk type surgeries as a rule. Dr. Smith highlights the testimony of Dr. Keith Mansel, Plaintiffs’ expert, who did not criticize Dr. Smith’s treatment plan. Dr. Mansel challenged Dr. Smith’s judgment only insofar as he failed to consult Dr. Cummings on Monday | ¡¡morning when he determined that a surgical consult was necessary. In this respect, Dr. Smith argues that it is inaccurate that Dr. Cummings was present at FMC and available for a consult the entire Monday morning. As previously noted, Dr. Smith submits that Dr. Cummings was in surgery in Columbia from 7:00-9:00 a.m. and arrived at FMC at approximately 10:00 a.m. Thus, no surgical consult was available during the early morning hours. In addition, Dr. Smith emphasizes that it was Rev. Finley’s directive that surgery be performed at LSU Shreveport.

Dr. Smith further emphasizes that it was an unprecedented event for LSU Shreveport to accept the transfer of a patient and then subsequently change that decision, stating that a bed could not be assigned. Dr. Smith asserts that he found out about this subsequent denial of the transfer at 11:00 a.m., not 9:00 a.m. as suggested by Plaintiffs. He argues that, at the point LSU turned the transfer down, he had thought the transfer was a “done deal” and had dictated his discharge summary. This unprecedented change of authorization changed matters significantly and Dr. Smith then started investigating a transfer to LSU Monroe. When the transfer to Monroe was authorized, he determined that Rev. Finley was stable enough to make the transfer. Since LSU Monroe was, like Shreveport, a higher level surgical facility, he used his medical judgment to send Rev. Finley there for surgery.

Dr. Smith maintains that Plaintiffs are viewing this case entirely in hindsight and their nine points under their assignment of error are unsupported by the record. He submits that he made a sound medical judgment that was within the standard of care, especially in light of the fact |inthat there was not a surgical team ready and available in the early morning hours at FMC, that the patient had expressed the desire for surgery to be done at LSU and that the surgical facility at LSU is better equipped to handle this high risk surgery than FMC. We agree.

The record in this case presents an extremely unfortunate situation in which the medical system failed a patient. While administrative failures certainly contributed to Rev. Finley’s demise, we cannot say that the finder of fact was manifestly erroneous in finding that Dr. Smith’s treatment of Rev. Finley fell within the standard of care for an internist. This record contains a reasonable basis for reaching this conclusion. Dr. Smith assented to Rev. Finley’s wishes not to be hospitalized on Friday afternoon. The medical testimony reflects that it was entirely appropriate for Dr. Smith to consult with the emergency room physician on admittance Sunday afternoon and to follow Rev. Finley’s condition overnight by telephone. Dr. Smith immediately began the transfer process following his examination of Rev. Finley early Monday morning. The medical testimony supports that Rev. Finley, although needing emergency surgery, was stable at that point. Dr. Smith testified that he was made aware that the transfer to LSU Shreveport was not going to happen at 11:00 a.m. By this time, Dr. Cummings, who had been at FMC shortly before that, was returning to his office in Columbia. In line with Rev. Finley’s request to be treated at LSU, Dr. Smith decided to attempt a transfer to LSU Monroe. The record supports the conclusion that it was not until Rev. Finley coded and his blood gases were drawn that Dr. Smith knew that the bowel had infarcted and hi gangrene was present. Dr. Smith testified that this was the point that he considered Rev. Finley’s condition to be life threatening. At this time, there was no surgeon or surgical team available at FMC. Dr. Smith contacted Dr. Cummings in Columbia for assistance in expediting the transfer to Monroe. The transfer was effectuated; however, tragically, Rev. Finley did not survive long enough to have the surgery.

Dr. Ron Morgan, a physician who was on the medical review panel, explained the panel’s opinion and that one must view the medical decisions made by Dr. Smith regarding Rev. Finley in a forward-looking fashion as a physician not knowing what will ultimately transpire as a consequence of his decisions. According to Dr. Morgan’s testimony, when viewed from this perspective, as opposed to hindsight, the medical judgments and decisions made by Dr. Smith were appropriate and within the standard of care. With great attention and deliberation, the jury agreed and we hold that this record provides a reasonable basis for that conclusion.

CONCLUSION

For the foregoing reasons, the judgment in favor of Dr. Roger Smith is affirmed. Costs of appeal are assessed to Plaintiffs, Heidi Finley Harper and Heath Finley.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, PEATROSS & DREW, JJ.

Rehearing denied.

      . The case first went to trial in March 2004 and the jury was unable to reach a decision. The second trial was held in October 2004 and, after heated deliberations, the jury found in favor of Dr. Smith.

      . Dr. Russell Cummings, the surgeon on call at FMC during Rev. Finley’s treatment, was also named as & defendant and was dismissed on a motion for summary judgment. FMC was later added as á defendant, but was dismissed on an exception of prescription. Those rulings were not appealed.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Terrance D. HAMILTON, Appellant.
    No. 42,592-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.
    Laura M. Pavy, Louisiana Appellate Project, for Appellant.
    Don Burkett, District Attorney, Michael E. Daniel, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and DREW, JJ.
   BROWN, C.J.

|! Defendant, Terrance Hamilton, originally charged with attempted second degree murder, a violation of La R.S. 14:30.1, 14:27, pled guilty to second degree battery, a violation of La. R.S. 14:34.1. Defendant was sentenced to five years imprisonment at hard labor with credit for time served. Defendant has appealed his sentence as excessive. Finding no error, however, we affirm.

Discussion

On April 15, 2006, defendant and Maria Remedies, the mother of his child, drove to Shreveport to buy drugs. After failing to locate their regular drug dealer, the two decided to head back to DeSoto Parish. While in the car on their way back, defendant got angry with Ms. Remedies and began beating her with his fists.

Ms. Remedies unhooked the bungie cord tying the door shut and tried to exit the car, but defendant prevented her from doing so. At some point, Ms. Remedies fell out of the vehicle into a ditch. In her initial statement to police, Ms. Remedies claimed that defendant “shoved her out of the car.” At the sentencing hearing, however, both defendant and Ms. Remedies stated that the door simply swung open and she “fell out.” Ms. Remedies stated that defendant then forced her back into the car. The victim stated that she tried to get away again but defendant grabbed her by the hair and dragged her back into the car, stating that he was going to kill her when they got home.

Shortly thereafter, the car engine died and defendant got out to check under the hood. Once the car restarted, Ms. Remedies drove off with|2defendant on the hood of the car. She drove to defendant’s parents’ home, blowing the horn and yelling for help. In her initial statement, the victim stated that while she was knocking on the door, defendant came up from behind and struck her with a piece of firewood. Thereafter, according to both defendant and Ms. Remedies, defendant punched and kicked her, causing her lung to collapse. The beatings stopped only after defendant’s father physically restrained him.

Ms. Remedies was hospitalized for three days due to her injuries. The officer who initially interviewed Ms. Remedies at the hospital noted that the victim appeared to be suffering “great physical pain,” and had bruises on her face, neck and arms. Ms. Remedies told the officer that she believed that defendant was “really going to kill her.”

Defendant was arrested and charged with attempted second degree murder. At his arraignment, he pled not guilty. On September 6, 2006, Maria Remedies signed an affidavit requesting that the state drop all charges; the prosecution, however, refused to do so. On October 25, 2006, defendant agreed to plead guilty to an amended charge of second degree battery. There was no agreed-upon sentence. The trial court ordered a PSI report and advised defendant that the maximum sentence he could receive on the amended charge was five years imprisonment.

| oOn December 7, 2006, after reviewing the PSI, the victim’s impact statement, and the testimony of Ms. Remedies, the trial court sentenced defendant to five years imprisonment at hard labor with credit for time served, with the sentence to run consecutively with any other sentence defendant might be serving.

Discussion

Defendant’s sole assignment of error is that his maximum sentence of five years at hard labor is excessive.

A trial court has broad sentencing discretion. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939; State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667. Where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim, the imposition of the maximum sentence for the pled offense is within the trial court’s broad discretion. State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430.

|4In the instant case, the record shows that the trial court considered the PSI and took cognizance of the relevant statutory factors in sentencing defendant. The PSI revealed that defendant has an adult criminal record. In 2000, defendant was charged with aggravated rape, but allowed to plead guilty to a reduced charge of carnal knowledge of a juvenile. In 2004, defendant pled guilty to simple battery (domestic violence). The PSI also revealed that defendant had bench warrants for simple battery issued in November 2003 and March 2006. Only two months before the instant offense, defendant was charged with two counts of aggravated second degree battery, although these charges were later dismissed at the request of the victims. The trial court also considered the victim impact statement, as well as defendant’s age (24 years old) and personal history.

La. R.S. 14:34.1 provides that whoever commits the crime of second degree battery “shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.” Although five years is the maximum term of imprisonment under La. R.S. 14:34.1, it is only ⅜ of the statutory minimum sentence for attempted second degree murder, the offense with which defendant was originally charged. See La. R.S. 14:27(D)(l)(a).

Based upon the facts of this case, defendant’s criminal history and the likelihood that defendant would commit further crimes of violence against Ms. Remedies or others in the future, the trial judge stated that “if I could’ve imposed more than a five-year sentence I would have.” The sentence imposed is neither shocking nor grossly disproportionate to the seriousness |sof the offense given defendant’s background. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . Ms. Remedies later recanted this statement, saying at that time that defendant "threw” the firewood at her.

      . During the guilty plea colloquy, defendant denied that the "car incident” occurred, but admitted that he “hit [Maria Remedies] in the ribs” and "collapsed her lung.”

      . Defendant has also asked this court to review the record for errors patent, an unnecessary request since such a review is made automatically in criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.05/07/97), 694 So.2d 556. Our review of the record reveals one error patent. Defendant's motion for appeal, filed on March 5, 2007, was untimely according to La. C. Cr. P. art. 914. The order granting the out-of-time appeal was signed ex parte, but the state has not objected to this action. Under State v. Counterman, 475 So.2d 336 (La.1985), the trial court should have treated the motion as an application for post-conviction relief and given the state an opportunity to respond. Because the state does not object, and in the interests of judicial economy, we will entertain the appeal, noting that defendant would be entitled to reinstatement of his appellate rights pursuant to State v. Counterman, supra. State v. Allen, 40,972 (La.App.2d Cir.05/17/06), 930 So.2d 1122, 1126, fn. 1; State v. Graham, 35,184 (La.App.2d Cir. 10/31/01), 799 So.2d 645, 649, fn. 1, writ denied, 02-0059 (La. 11/08/02), 828 So.2d 1114.