author: ROLAND L. BELSOME, Judge.

text:
    Margaret Gaffney LEAF v. Peter Albin LEAF.
    No. 2005-CA-0592.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 2006.

      Jane Ettinger Booth, Booth & Booth, APLC, Amite, LA, Stacey LaFleur-Spawn, New Orleans, LA, for Plaintiff/Appellant.
    Bennett Wolff, Hayley Harmon, Wolff & Wolff, Metairie, LA, for Defendant/Appel-lee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

h Margaret Gaffney Leaf (“Ms.Leaf”) appeals the trial court’s denial of her petition to permit relocation.

Appellant, Ms. Leaf, and Appellee, Peter Leaf, were married in Santa Fe, New Mexico, on May 20, 1997. They had one daughter, Pearlie Leaf (“Pearlie”), who was born November 13, 1998. Ms. Leaf filed for divorce on January 21, 2000. Ms. Leaf has been the primary caretaker of Pearlie since Pearlie’s birth. Peter Leaf has since re-married and lives with his wife and new baby daughter, Corrina.

On a visit to Maryland, in September of 2004, Ms. Leaf interviewed for a position at Salisbury Middle School. Soon after, she was given a verbal offer of a teaching position at Salisbury Middle School. Ms. Leaf then gave notice to her former spouse, Peter Leaf, regarding her intention to relocate to Salisbury, Maryland with Pearlie prior to filing her petition to relocate; Peter opposed the relocation. A hearing was held on November 16-18, and 23, 2004. Ms. Leafs request to relocate was subsequently denied by a judgment réndered January 7, 2005.

[;>An appellate court reviews a trial court’s determinations under the manifest error-clearly wrong standard. “A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’ ” Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); See Rosell v. ESCO, 549 So.2d 840 (La.1989). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the Louisiana Supreme Court reiterated the two-part test for the reversal of a fact finder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992). 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. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Supreme Court recently held that a “trial court’s determination in a relocation matter is entitled to great weight and will not be overturned an [sic] appeal absent a clear showing of abuse of discretion.” Curole v. Curole, 2002-1891, p. 4 (La.10/15/02); 828 So.2d 1094, 1096.

La. R.S. 9:355.13 sets forth the burden of proof in a relocation hearing, and provides:

| ,The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life, (emphasis added).

As the Supreme Court noted in Curóle, “our legislature made a policy determination that relocation is not to be automatically considered as being in the best interest of the child.” 2002-1891, p. 5 (La.10/15/02); 828 So.2d at 1097. Thus the legislature installed a two-part burden on those wishing to legally relocate a child. Ms. Leaf has shown good faith, but the parties disagreed on whether the move was in the best interest of the child.

La. R.S. 9:355.12 sets forth twelve factors the court must consider in reaching its decision on a proposed relocation. After thoroughly considering all twelve factors together with testimony of several witnesses, the trial court determined that relocation would not be in the best interest of Pearlie and denied Ms. Leafs motion.

Ms. Leaf contends that the trial court erred in determining that Ms. Leafs previous requests for supervised visitation amounted to her failure to promote her daughter’s relationship with the defendant. La. R.S. 9:355.12(A)(5) requires the trial court to consider “[wjhether there is an established pattern of conduct of the party seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.” She defends the many accusations she made against Peter Leaf as the legitimate concerns of a good mother, and she asserts that she was only following the recommendations of Eugenia Patru, a court-appointed custody evaluator. In the trial court’s reasons for judgment, Judge Cates wrote:

Mrs. Leaf testified extensively at trial and argued in memo that she has never thwarted or refused Mr. Leafs visitation. Instead, she [¿asserts that she has attempted to foster the father/daughter relationship.
Mr. Leaf was denied visitation with his daughter for a significant amount of time in 2000 and 2001. Mrs. Leaf asserts that some of these missed visits were the result of confusing Court Orders regarding supervision and that she has never been found to have violated any Court Order on visitation. The Court finds Mrs. Leafs testimony on this subject insincere and disingenuous.
Mrs. Leaf has advocated supervised visitation almost from the outset. Mrs. Leaf argues that it was the Judge who ordered the supervision and she was merely following that order. While it is true that supervision was ordered by the Court, those orders were made following allegations and/or insinuations by Margaret Leaf of abuse or impropriety on the part of Peter Leaf. Those allegations and/or insinuations made by Margaret Leaf, which were the basis for orders requiring supervised visitation, include:
a) Allegations by Margaret Leaf that she was stabbed with a fish filet knife by Peter Leaf at their home in front of two friends during a dinner party. Although Mrs. Leaf testified regarding the severity of the incident, she stated that immediately after the stabbing, she merely cleaned the wound and rejoined the dinner party, as if nothing had happened. Neither of the two friends/witnesses testified regarding the alleged stabbing, no one saw the wound, the police were not called, and Mrs. Leaf at no point attempted to get medical treatment for the wound. Mr. Leaf denies the entire incident. The Court finds Mrs. Leafs description of this unsubstantiated incident to be incredible.
b) Allegations by Margaret Leaf to Dr. [sic] Patru regarding possible criminal conduct, including some drug and narcotics sale and use by Peter Leaf. The Court also heard some vague allegations regarding pornography. None of these allegations and insinuations were supported by any facts.
c) Allegations by Margaret Leaf regarding alleged abuse .of Pearlie by her father. These include allegations that Peter Leaf failed to get appropriate medical attention for Pearlie after she fell and hit her head and allegations that while in Peter’s care, a dog hair become [sic] lodged in her urethra. It should be noted that both Mr. and Mrs. Leaf have dogs in their homes and that no one, other than Mrs. Leaf herself, saw the alleged dog hair. The Court finds Mrs. Leafs reports of those incidents to professionals were exaggerated and not supported by any independent evidence.
| .qd) Innuendos of sexual abuse, including Mrs. Leafs statements that her daughter reported that her “vulva” was hurt at her daddy’s house and that she and her daddy played “games” in the bathroom. There was not one scintilla of evidence of any sexual abuse presented, yet the statements made by Margaret Leaf to professionals would suggest otherwise.
The Court finds very significant that for several years, and as late as this year, Margaret Leaf has been advocating supervised visitation and has come up with one allegation after another to support her position. Yet, now that she wishes to relocate, she proposes extended unsupervised visitation, including seven weeks of summer visitation. Peter Leaf questioned, and this Court also questions, how Margaret’s requests for supervised visitation in the summer of 2004 can be reconciled with her proposal that if relocation is granted, Peter can be granted seven weeks of mnsupervised summer visitation. Mrs. Leafs sudden and complete reversal of position, in this Court’s opinion, evidences her motives and insincerity regarding the many allegations of impropriety on the part of Mr. Leaf. Mrs. Leaf has for years thwarted Peter Leafs visitation with her allegations and insinuations of impropriety and there is no reason for this Court to believe that she has suddenly changed and is now ready to foster a long distance relationship between Pearlie and her father.
This factor most significantly weighs against relocation.

The record contained undisputed evidence that Ms. Leaf deprived Peter Leaf of court-ordered supervision on multiple occasions. Although Ms. Leaf was not found to be in violation of any court order, it was not clear error for the trial court to find that this behavior thwarted Pearlie and Peter Leafs relationship.

The record also shows that for years Ms. Leaf vehemently opposed unsupervised visitation between Peter Leaf and Pearlie, which thwarted their relationship. The allegations were serious: Peter Leaf sexually molested Pearlie; Peter Leaf neglected Pearlie when she hurt herself; and Peter Leaf dabbled in alcohol, drugs, and pornography. The allegations against Peter Leaf by Ms. Leaf were extensive, serious, and ultimately unfounded — none of the allegations was ever supported or substantiated. Once she decided to seek relocation, weeks after a hearing in which Ms. Leaf aggressively opposed unsupervised visitation, Ms. Leaf | ¿proposed a custody schedule that would allow Peter Leaf seven continuous weeks of unsupervised visitation during the summers. The trial court found that Ms. Leafs rapid reversal of her position on unsupervised visitation made her previous allegations seem insincere and disingenuous. This was a reasonable interpretation of the circumstances, and it was not manifestly erroneous for the trial court to find that Ms. Leaf thwarted a relationship between Peter Leaf and Pearlie.

This case is consistent with Curóle, where the Supreme Court upheld the trial court’s denial of relocation finding that the relocating parent “gently encourages” each transition to become an ordeal. 2002-1891, p. 8 (La.10/15/02); 828 So.2d at 1099. Here, multiple unsubstantiated allegations of abuse more than gently encouraged ordeals — they discouraged the formation and growth of a relationship between Pearlie and Peter Leaf.

In her next assignment of error, Ms. Leaf argues that the trial court abused its discretion when it found that Pearlie and Ms. Leafs quality of life would not be enhanced by relocation. In making its determination on a proposed relocation, La. R.S. 9:355.12(6) asks the trial court to consider, “[wjhether the relocation of the child will enhance the general quality of life for both the custodial parent seeking relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.” Ms. Leaf also points our attention to La. R.S. 9:355.13, which provides that in determining whether a proposed relocation is in a child’s best interest, the trial court “shall consider the benefits which the child will derive either directly, or indirectly from an enhancement in the relocating parent’s quality of life.”

The trial court considered the benefits of relocation to the child. Pearlie would be able to enroll in a great school in Maryland. Her mother would receive a 17raise. They would be able to live with Mr. Greiner, Ms. Leafs fiance, who also has a good-job in the area. Ms. Leafs quality of life would probably increase.

However, Pearlie is enrolled in a great school in New Orleans, Lusher Elementary. Ms. Leafs increase in salary would be offset by Pearlie’s increase in tuition costs, from minimal expenses (Lusher Elementary is a public school) to around $6,000.00 per year. And most significantly, Pearlie would be across the country from her father, step-mom and baby sister with whom she enjoys a good relationship. Ultimately, if relocation is denied, Pearlie will have the opportunity to have frequent and continuous contact with two loving families in the New Orleans Metropolitan area. Ms. Leaf has a master’s degree in education and would be employable in the New Orleans area. We cannot say that it was manifest error for the trial court to find that Pearlie’s life would not be enhanced by relocation.

Next, Ms. Leaf contends that the trial court committed manifest error when it found that the feasibility of preserving a good relationship upon relocation between the defendant and his child is remote. La. R.S. 9:355.12(3) orders the trial court to consider “[t]he feasibility of preserving a good relationship between the nonrelocat-ing parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.”

In his reasons for judgment, Judge Cates explained:

The Court finds that the feasibility of preserving a good relationship between Pearlie and Peter, considering the logistics and financial circumstances of the parties, is remote. None of the parties herein is financially secure to the point where frequent and regular travel from Maryland to New Orleans would be insured. Peter Leaf is a self-employed carpenter and testified that he made about $12,000 last year. He is the only source of support for his family, at this time. Margaret Leaf testified that she would experience a $7,000 raise upon relocating to Salisbury and would have a good chance of frequent financial advancement. Conversely, the Salisbury School, which costs over $9,000 per year, will significantly add to expenses. Mrs. [RLeafs testimony regarding scholarships was speculative. The Court also recognizes that air travel for a child and adult to and from New Orleans and Salisbury on a regular basis would be a significant financial burden that the Court is not convinced the parties could bear.
The distance between New Orleans and Salisbury, combined with the financial circumstances of the parties, suggests that the feasibility of preserving a good relationship between Peter and Pearlie is improbable.

The record supports the trial court’s determination that none of the parties is financially well off. Peter is a carpenter, and Ms. Leaf is a schoolteacher. Also, as Pearlie becomes more involved in school and extra-curricular activities, her freedom and ability to travel will be limited. Frequent air travel would be both a financial and logistical burden on both parties; therefore, we believe that the trial court’s determination was not manifestly erroneous.

In her final assignment of error, Ms. Leaf contends that the trial court committed manifest error when it found that Peter Leafs ownership of his own business is sufficient to determine relocation would not be feasible. La. R.S. 9:355.12(10) demands that the trial court also examine “the feasibility of a relocation by the objecting parent.” In its reasons for judgment, the trial court explained why relocation was not feasible for Peter Leaf.

Peter Leaf is just now, after several years, beginning to develop his business here in New Orleans, which relies heavily on personal contacts. He has none of those contacts in Maryland. He is the sole support for his family, at this time. The Court does not find that it is feasible for Peter to relocate with his family to Maryland.

Mr. Leaf is a carpenter and contractor who has developed his business and started a new family in New Orleans. Whether this court would have made the same determination as the trial court is not the issue. In light of the evidence presented at trial, it was not manifestly erroneous for the trial court to find it was infeasible for Peter Leaf to move to Maryland.

| sCONCLUSION

The trial court examined the twelve factors set forth in La. R.S. 9:355.12, and looking at the totality of the factors, he found that relocation would not be in the best interest of Pearlie Leaf. Ms. Leaf only challenges his determination on four of those factors, and we find that those determinations were not clearly erroneous. Ms. Leaf failed to meet her burden at trial to justify relocation. Therefore, the trial court’s denial of Ms. Leafs request for relocation is affirmed.

AFFIRMED.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Bashan STANTON.
    No. 2005-KA-0812.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 2006.
    Eddie J. Jordan, Jr., District Attorney, Yolanda J. King, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Appellant, Bashan Stanton.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

_JjThe defendant, Bashan Stanton, was convicted in Orleans Parish of one count of attempted armed robbery and of one count of attempted manslaughter. He was sentenced to forty-five years on the attempted armed robbery conviction without the benefit of parole, probation, or suspension of sentence and to twenty years on the attempted manslaughter conviction. Both sentences were ordered to be served concurrently with each other and with a fifteen-year sentence that Mr. Stanton received in connection with three armed robberies that he committed in Jefferson Parish. Mr. Stanton then filed and the trial court denied a motion to reconsider the sentences. Mr. Stanton is now before this Court appealing his sentences in connection with the convictions in Orleans Parish claiming that they were excessive.

STATEMENT OF THE CASE

Mr. Stanton, Damien A. Roberts, and Dwayne Hines were each charged by a bill of information with one count of attempted armed robbery in violation of La. R.S. 14:27(64). Mr. Stanton was also charged in the same bill of information with an additional count of attempted second degree murder in violation of La. R.S. | ¡,14:27(30.1). These charges arose out of activities that occurred on December 27, 2002.

At his arraignment Mr. Stanton pled not guilty to the charges against him. At a hearing on a motion to suppress statements made by Mr. Roberts and Mr. Hines, they each testified regarding the crimes with which they were charged and denied any involvement in them. After their testimony was taken, the State nolle prosequied the charges against them. Mr. Stanton was subsequently tried before a jury and found guilty of attempted armed robbery and attempted manslaughter. Prior to sentencing, the trial court judge ordered the State of Louisiana Division of Probation and Parole to conduct a pre-sentence investigation of Mr. Stanton. After a pre-sentence report was completed, the trial court judge sentenced Mr. Stanton and noted that he had been convicted of crimes of violence.

STATEMENT OF FACT

At Mr. Stanton’s trial, Louis Lee testified that he owned the One Stop Tire Shop, a tire repair business located at 7532 Chef Menteur Highway in New Orleans. He and one of his employees, Harry Hil-lard, were working in the parking lot in front of the store when a bluish green Dodge Stratus automobile backed into the lot. Mr. Lee testified that the two individuals who were passengers in the car, Mr. Roberts and Mr. Hines, exited the vehicle and walked across the street. The driver of the car, who was later identified as Mr. Stanton, got out of the car and approached Mr. Lee. Mr. Stanton told Mr. Lee that his “old lady” had driven over a curb and caused a tire to go flat. He said that he needed to have the tire repaired. Mr. Stanton, who wore a pair of gloves when he exited the car, agreed to purchase a tire recommended by Mr. Lee. Mr. Lee testified that the purchase price for the tire was $25.00. One of Mr. Lee’s employees replaced the damaged tire while Mr. 13Lee chatted with Mr. Stanton. After the tire had been replaced, Mr. Stanton paid Mr. Lee.

Mr. Stanton then returned to his ear. After Mr. Stanton had returned to the car, he left the car again and approached Mr. Lee. As he approached Mr. Lee this time, Mr. Stanton was holding a small pistol that Mr. Lee thought was a “small six shot pistol.” Mr. Stanton pointed the gun at Mr. Lee and demanded that Mr. Lee give him the money that Mr. Lee had in his pocket. Mr. Lee initially told Mr. Stanton to “put that thing down.” At that point Mr. Stanton pulled the trigger of the gun twice, but both times the gun made a clicking sound and misfired. Mr. Lee testified that “[i]f the bullets would have been any good, I wouldn’t be here today.”

After the gun misfired, Mr. Lee realized that Mr. Stanton was serious about robbing him, and Mr. Lee took the money out of his pants pocket. When Mr. Lee reached to hand the money to Mr. Stanton, he dropped it on the ground in front of Mr. Stanton. Without retrieving the money, Mr. Stanton turned and ran, leaving his car at the scene. Mr. Lee chased Mr. Stanton. While he was fleeing, Mr. Stanton fired several shots at Mr. Lee but none hit him. The gun that was used to fire the shots was never recovered, but the police later found at the scene the gloves that Mr. Stanton had been wearing.

Mr. Hillard also testified at the trial. Mr. Hillard’s version of the incident involving Mr. Lee and Mr. Stanton was essentially the same as Mr. Lee’s version. Mr. Hillard testified that he heard Mr. Stanton’s gun “click” twice and fire shots four times. His testimony and Mr. Lee’s testimony differed on the amount that was charged for the new tire by a few dollars, and their testimony was not exactly the same regarding where Mr. Roberts and Mr. Hines initially exited the vehicle driven by Mr. Stanton. Both Mr. Lee and Mr. Hillard testified that they had | independently identified Mr. Stanton in a photographic line-up as the person who tried to rob and shoot Mr. Lee. Both men also identified Mr. Stanton in court. Mr. Hillard further testified that Mr. Stanton did not attempt to rob or shoot him, because Mr. Stanton was concentrating on robbing Mr. Lee. Finally, both Mr. Lee and Mr. Hillard identified in court the gloves that Mr. Stanton had been wearing.

New Orleans Police Department Detective Walter Gifford testified at the trial that he had investigated the crimes perpetrated by Mr. Stanton. Although Mr. Roberts and Mr. Hines had been apprehended by another officer shortly after Mr. Stanton fled the crime scene, Detective Gifford testified that Mr. Stanton had not been apprehended. Mr. Hines and Mr. Roberts, however, had identified Mr. Stanton as the person who tried to rob Mr. Lee, and they had given Detective Gifford Mr. Stanton’s address. Detective Gifford prepared a photographic line-up for Mr. Lee and Mr. Hillard to view, and they both independently identified Mr. Stanton as the man who shot at Mr. Lee and tried to rob him. Detective Gifford then obtained a warrant for Mr. Stanton’s arrest and a warrant to search his home. Although the search warrant was executed, the weapon used by Mr. Stanton was never located. Finally, Detective Gifford testified that Mr. Stanton ultimately surrendered to the police.

ERRORS PATENT

Mr. Stanton has requested this Court to review the record in this case for any patent errors and to take any necessary corrective action in connection with any such errors that are found. After a careful review of the record, we have determined that there are no errors patent.

1 ^ASSIGNMENTS OF ERROR

Mr. Stanton’s counsel has raised one assignment of error in this case. Additionally, Mr. Stanton has raised three pro se assignments of error.

Assignment of Error: The trial court imposed an excessive sentence.

Mr. Stanton contends that the sentences imposed upon him for his two convictions are excessive. He urges this Court to vacate his sentences and remand this case for re-sentencing. Mr. Stanton argues that because the sentences are at or near the maximum sentences that could have been imposed for his crimes, the sentences are excessive under the circumstances of his case.

The United States Constitution prohibits “cruel and unusual punishment.” U.S. Const, amend. VIII. The Louisiana Constitution expressly provides that “[n]o law shall subject any person ... to cruel, excessive, or unusual punishment.” La. Const, art. I, § 20.

In State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977, the Louisiana Supreme Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The Supreme Court further stated that the court is permitted to determine both whether the statutory range of sentences and the sentence of a particular offender is excessive, even if that offender’s sentence were within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Louisiana Supreme Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

| fi[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.

384 So.2d at 358 (citations omitted).

In State v. Soco, 441 So.2d 719 (La.1983), the Supreme Court also stated that “[mjaximum sentences provided by the statutes are reserved for the ‘worst kind of offender’.” Id. at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). The Supreme Court further stated:

In order for there to be proper review of the sentence to determine its constitutionality, La. Const, art. 1, § 20, that is, whether the defendant is the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by La. C.Cr.P. 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence.

Id.

The Supreme Court has also stated that “[i]f the judge records the factors affecting his sentencing decision, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than the needless infliction of pain and suffering.” State v. Pike, 426 So.2d 1329, 1335 (La.1983). Additionally, the Supreme Court has held that “the trial court judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1 [La. C.Cr.P. art. 894.1, which sets forth sentencing guidelines], the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

|7In the instant case the trial court judge ordered a pre-sentence investigation, which revealed that Mr. Stanton had an extensive criminal record as a juvenile and that he also had an adult record when, at the age of nineteen, he committed the crimes of which he was convicted in this case. He had also pled guilty to three additional armed robberies in a neighboring parish as part of what the trial court judge referred to as a “crime spree.” Additionally, the trial court judge noted that the report of the pre-sentence investigation stated that Mr. Stanton “seems to show no regard for others.” Based on Mr. Stanton’s prior criminal history and on his disregard for human life, the report recommended that Mr. Stanton be given the maximum sentence.

At the sentencing hearing the trial court judge stated that Mr. Stanton pointed a weapon directly at Mr. Lee and that the only reason that Mr. Lee was not killed was that the gun misfired. The judge said that had the gun not misfired, Mr. Lee and anyone else who might have been in the line of fire could have been killed or injured in the robbery that Mr. Stanton committed “in broad daylight.” The judge also noted that the pre-sentence investigation report disclosed that Mr. Lee had stated that Mr. Stanton “showed no feelings for a person’s life and showed no sympathy.”

The trial court judge told Mr. Stanton at the sentencing hearing that “[t]he Court feels that under Article 894.1 of the sentencing guidelines of this court that certainly, there is an undue risk during any period of a suspended sentence or probation, you would commit another crime.” She also advised Mr. Stanton that he needed correctional treatment in a custodial environment and should be committed to an institution. The judge further stated that any lesser sentence than lathe one she was going to impose “would certainly deprecate the seriousness of this offense.”

The judge also considered the aggravating circumstances listed in La.C.Cr.P. art. 894.1(B), which sets forth the sentencing guidelines for criminal defendants, and she found that there were several such circumstances present in the instant case. First, the judge noted that in committing his crimes, Mr. Stanton used threats of or actual violence, caused his victim to be in danger, and caused his victim to feel that his life was being threatened by both Mr. Stanton’s words and his actions. See La. C.Cr.P. art. 894.1(B)(6). Second, Mr. Stanton had used a dangerous weapon. See La.C.Cr.P. art. 894.1(B)(10). Third, Mr. Stanton had foreseeably endangered human life by discharging a firearm. See La.C.Cr.P. art. 894.1(B)(18). The trial court judge also stated that she had found no mitigating circumstances that were applicable in Mr. Stanton’s case and noted that even the car he was driving at the time of the crime was stolen.

Considering the record and the reasons that the trial court judge gave for the sentence that she imposed, we find that the sentence was in no way excessive. Mr. Stanton committed very serious crimes without regard for human life, and he already had an extensive criminal record when he committed these crimes. The trial court judge carefully considered the sentences she imposed, and they comport with applicable law. Mr. Stanton’s assignment is without any merit.

Pro Se Assignment of Error No. 1: The trial judge considered prior juvenile adjudications in determining what sentence to impose in violation of Apprendi v. New Jersey and State v. Brown.

Mr. Stanton argues that the trial court judge improperly considered his juvenile adjudications in determining his sentence. He claims that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and State v. Brown, 2003-2788 (La.7/6/04), 879 So.2d 1276, prohibit a trial court judge from considering a defendant’s juvenile record when imposing a sentence.

In the Apprendi case, the United States Supreme Court specifically rejected that position. The Supreme Court stated that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63 (emphasis added). In the instant case what the trial court considered was the fact of a prior conviction, which is expressly permitted by Apprendi Additionally, we note that Apprendi requires a jury, rather than a judge, to determine whether a particular fact was present in connection with a defendant’s criminal conduct, if the finding of that fact could increase the penalty for a crime beyond the statutory maximum. In the instant case, Mr. Stanton did not receive a penalty that exceeded the statutory maximum. Therefore, the Apprendi case in not applicable to Mr. Stanton’s situation.

We also note that Brown, supra, upon which Mr. Stanton relies, is similarly inapplicable in the instant situation. In the Broum case, the defendant was adjudicated a habitual offender under La. R.S. 15:529.1, the Louisiana Habitual Offender Law. The issue before the Louisiana Supreme Court was whether a prior non-jury juvenile adjudication could be used as a predicate offense under the habitual offender statute. In the instant case, Mr. Stanton was not charged as a habitual offender. Therefore, the Brown case is not applicable.

There is nothing in the law that prohibits a trial court judge from considering the fact that a convicted felon had a criminal record as a juvenile in determining what sentence to impose. Based on the discussion above, we find that Mr. Stanton’s first pro se assignment of error is without merit.

|10Pro Se Assignment of Error No. 2: The trial judge used elements not presented to a jury during sentencing in violation of Apprendi v. New Jersey.

In this assignment of error, Mr. Stanton is claiming that the trial court judge improperly used facts regarding juvenile adjudications in considering what sentence to impose without presenting the facts to a jury. Unless the trial court imposes a sentence that exceeds the maximum sentence for the crime for which a defendant was convicted, the trial court judge is expressly permitted to consider prior convictions in sentencing even though they might be juvenile adjudications. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. This assignment of error is without merit.

Pro Se Assignment of Error No. 3: Mr. Stanton was denied effective assistance of counsel.

Mr. Stanton alleges that his trial counsel was ineffective in eleven specific ways, some of which involve factual issues that may require an evidentiary hearing. With respect to raising on appeal a claim of ineffective assistance of counsel, the Louisiana Supreme Court stated in State v. Prudholm, 446 So.2d 729 (La.1984), that a “defendant’s remedy is through post conviction relief in the trial court where the quality of the attorney’s assistance can be fully developed and explored.” Id. at 737. Mr. Stanton has the right to raise the issue of ineffectiveness of counsel post conviction.

CONCLUSION

We find that there was no error committed by the trial court in this case. Mr. Stanton’s conviction and sentence are hereby affirmed.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    Gus RICO v. SEWERAGE AND WATER BOARD OF NEW ORLEANS, Patterson Insurance Company, and Frank Varona Frank Varona v. Sewerage and Water Board of New Orleans Gus Rico v. Sewerage and Water Board of New Orleans, Patterson Insurance Company and Frank Varona Gus Rico v. Sewerage and Water Board of New Orleans, et al.
    Nos. 2004-CA-2006, 2005-CA-0173, 2005-CA-0183, 2005-CA-0414.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 2006.

      Jim S. Hall, Jim S. Hall & Associates, LLC, Metairie, LA, for Gus Rico.
    Sherry S. Landry, City Attorney, John E. Smith, Deputy City Attorney, Desiree C. Calvin, Assistant City Attorney, Heather M. Valliant, Assistant City Attorney, New Orleans, LA, for City of New Orleans.
    John D. Lambert, Jr., Special Counsel, Jacob Taranto, III, Deputy Special Counsel, Mary-Elizabeth Paltron, Attorney IV Sewerage & Water Board of New Orleans, New Orleans, LA, for The Sewerage and Water Board of New Orleans.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

_JjJn this action for damages, the plaintiff, Gus Rico, claims that the Sewerage and Water Board and the City of New Orleans are liable for damages sustained as a result of an accident allegedly cause by a manhole cover located at the 1500 block of Carondolet. After a bench trial, the trial court found the defendants liable and apportioned each fifty percent fault. The defendants lodged separate appeals asserting the trial court was manifestly erroneous in its finding of fact as to how the accident occurred; the trial court was manifestly erroneous assessing 50% liability to the City of New Orleans; in failing to apportion fault to the driver, Frank Varo-na; and in finding liability on the part of the Sewerage and Water Board of New Orleans; and in awarding only $150,000 in general damages; For the reasons assigned below, we affirm.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

On October 24, 2995, at approximately 4:00 a.m., a United Cab Company taxicab, driven by Frank Varona (“Mr. Varona”) allegedly hit a manhole cover at the 1500 block of Carondolet Street, New Orleans, Louisiana, causing the taxicab |ato come to a complete stop and resulted in Gus Rico (“Mr. Rico”), a front seat passenger, being thrown forward into the dashboard and windshield. Immediately following the accident, Mr. Varona called the United Cab Company and requested that an accident investigator come to the scene and that the taxicab company call the New Orleans Police Department (“N.O.P.D.”). The taxicab company’s insurance investigator/road-man, Mark Adolph (“Mr. Adolph”), arrived at the scene shortly after the accident to perform an inspection for the taxicab’s insurer. However, prior to the N.O.P.D.’s arrival at the scene of the accident, Mr. Rico complained of pain and was taken to Touro Emergency Room by Mr. Varona.

As a result of the accident and injuries sustained, Mr. Rico filed suit against the Sewerage and Water Board of New Orleans (“Sewerage and Water Board”), the City of New Orleans, Mr. Varona, and Patterson Insurance Company alleging that they were liable for the injuries he sustained as a result of the accident while a passenger in the taxicab owned by United Cab. Mr. Varona also filed suit as a result of the injuries he sustained from the accident, alleging that the Sewerage and Water Board and the City of New Orleans were liable for the injuries he sustained and damages arising out of the accident.

On June 28, 2000, Mr. Rico dismissed his claims against Mr. Varona and Patterson Insurance Company and a trial on the merits proceeded regarding the claims of Mr. Rico. On July 7, 2004, a Consent Judgment was signed, finding judgment in favor of plaintiff, Frank Varona in the amount of $8,000.00, to be paid solely by the Sewerage and Water Board. Following a three-day trial on the merits, the trial court issued judgment from the bench in favor of Mr. Rico, assessing fifty percent (“50%”) liability to each of the public entities, the City of New Orleans and the Sewerage and Water Board. The trial court awarded Mr. | oRico general damages in the amount of $150,000, medical specials of $2,655.49, and prescription expenses of $6,826.18, together with judicial interest and court costs. It is from this judgment that all parties, Mr. Rico, the City of New Orleans and the Sewerage and Water Board separately appeal.

On appeal, both appellees, the Sewerage and Water Board and the City of New Orleans, assert that the trial court erred in finding that the taxicab struck the manhole in question or that there was a condition, either of the street or the manhole at the location alleged, which caused any damage to Mr. Varona’s taxicab. The Sewerage and Water Board further asserts that the trial court erred in finding any liability on the part of the Sewerage and Water Board. Conversely, the City of New Orleans asserts that the trial court erred in assessing it 50% of liability to the City of New Orleans, when the evidence shows that the Sewerage and Water Board was responsible for the manhole cover. The City further avers that Mr. Varona should have been assessed some fault as a result of the accident. Mr. Rico’s appeal asserts that the trial court’s judgment insofar as ttle quantum for general damages was not reasonable and was too low.

STANDARD OF REVIEW

When findings of fact are based upon determinations regarding the credibility of witnesses, the manifest error standard demands that great deference be afforded 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 v. ESCO, 549 So.2d 840, 844 (La.1989). It is clear from the transcript in the present case that credibility was made | ¿an issue at trial, and the trial court had an opportunity to consider the demeanor of the witnesses.

Appellate review of the trial court’s findings of fact requires us to determine if the trial court was manifestly erroneous. Stobart v. State Through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993).

THE SEWERAGE AND WATER BOARD AND THE CITY OF NEW ORLEANS’ ASSIGNMENT OF ERROR

CAUSE OF THE ACCIDENT

The Sewerage and Water Board and the City of New Orleans aver that the trial court erred in finding that Mr. Varo-na’s taxicab struck the manhole in question, or that any condition existed which was responsible for the damage caused to Mr. Varona’s taxicab.

In its written Reasons for Judgment, the trial court provided that one of the defenses asserted in the instant case was with regard to the cause of the accident involving the taxicab. In light of the testimony offered by the defendants to substantiate their claim that the accident did not occur as plaintiffs suggested, the trial Court specifically found this contention to be without merit. The trial court adjudged that “based upon the testimony of Mr. Varona taken with the investigation of both Mr. Adolph and Sergeant Mathews, as well as the timing of those investigations, the Court accepts this version of how the accident transpired as true.” The trial court further provided “[t]he Court notes that the defendants, through their expert, Ms. Pritchard, attempted to refute these facts; however for the reasons stated above, as well as the fact that Ms. Pritchard did not have the benefit of timeliness and other evidence as was pointed out at trial in reaching her conclusions, the court rejects her testimony as not credible.”

|sMr. Adolph arrived at the scene shortly after the accident to perform an inspection for the United Cab Company’s insurer. At the trial on the merits, he testified that he took photographs of what he observed, inspected the undercarriage of the vehicle with a flashlight, made drawings of the scene, and prepared an accident report. Mr. Adolph also testified that within an hour or so of the accident, he determined that the accident occurred when the undercarriage of the cab struck a protruding manhole cover. He further testified that he observed the fresh damage to both the manhole cover and the undercarriage of the taxicab, consistent with the description of the accident as reported by Mr. Varona.

The following day, Sergeant Avery, with the N.O.P.D., investigated the accident, which occurred in the 1500 block of Caron-dolet. Sergeant Avery testified that he examined the taxicab and the manhole cover at issue, and found that there was damage to both which was consistent with the description given by Mr. Varona regarding the accident. Sergeant Avery further testified that he was of the opinion that the manhole cover, which was protruding upward into the street, struck the undercarriage of the taxicab resulting in the accident involving Mr. Rico and Mr. Varona. Consistent with Mr. Adolph’s testimony, Sergeant Avery testified that he observed what appeared to be fresh scrapes and fresh damage to the taxicab’s undercarriage consistent with Mr. Varona’s version of how the accident occurred.

The trial court accepted Robert Lipp (“Mr. Lipp”) and Mary Ann Pritchard (Ms. Pritchard”) as experts. Plaintiffs expert, Mr. Lipp, an engineering professor at the University of New Orleans and qualified by the trial court as an accident reconstruction expert, testified that he observed the scene of the accident and noticed that the areas surrounding the manhole cover were depressed, some 1 ^directions more than others. He further testified that the manhole cover was flushed to the street on one side and the casing of the manhole cover was exposed on other sides. As it relates to the taxicab that was driven by Mr. Varona on the night of the accident, Mr. Lipp testified that he observed a large rip and damage to the undercarriage of the vehicle and that the steel was torn by the impact. He further opined that the damage he observed to the vehicle was consistent with hitting the side of the manhole cover that was investigated at the 1500 block of Carondolet Street and that the accident was a result of an existing combination of elements, the depression in the street and the raised manhole cover.

Defendant’s expert, Ms. Pritchard, mechanical engineer and admitted by the trial court as an accident reconstruction, testified that in preparation for the trial on the merits, she reviewed various memoranda forwarded by the Sewerage and Water Board, pictures and drawings of the scene of the accident, Mr. Lipp’s deposition, report, and photographs and John Huer-kamb’s (“Mr. Huerkamb”), the Chief of Operation for the Sewerage and Water Board, deposition. She further testified that, like Mr. Lipp, she too visited the scene of the accident, however her visit occurred on the day of the trial on the merits; moreover, Ms. Pritchard’s testified that she did not inspect the vehicle herself, but only reviewed photographs of the damage to the vehicle and the photographs she reviewed only reflected the damage sustained to the vehicle’s undercarriage and the manhole cover. Ms. Pritchard was asked whether the documents she reviewed provided her with sufficient information to render an opinion, she testified that she would have preferred to have a copy of the Accident Report, as completed by the police officer and Mr. Rico’s medical records or a report from his treating physician although she did not think it would have changed her opinion. Ms. Pritchard also testified that |7she did not review Mr. Adolph’s accident report, picture or diagrams, which was the first report, pictures and diagram taken immediately following the accident. She further testified that in her opinion, the manhole cover could not have caused the straight area damage to the undercarriage of Mr. Varona's vehicle, because review of the damage captured in the submitted photographs would have to be caused by a sharp metal object that was straight.

In discounting the testimony of Ms. Pritchard, the trial court determined that Ms. Pritchard did not have all of the facts surrounding the case before the court. The trial court further opined, “she [Ms. Pritchard] did not have what I believe would have been important for her to help make a decision and render an opinion.” In its Reasons for Judgment, the trial court made credibility determinations, acknowledging that it accepted Mr. Lipp and Ms. Pritchard as experts in this case; however, the trial court found more credible evidence was available to the Court regarding how the accident occurred. In its reasons for judgment, the trial court opined that the testimony of Mr. Adolph and Sergeant Avery were credible and therefore accepted.

Accordingly, we cannot say that the trial court’s credibility determinations were manifestly erroneous. Applying the Rosell standard, we must defer to the trial court in accepting the testimony of Mr. Adolph and Sergeant Avery as to their testimony in support of the cause of the accident involving Mr. Rico and Mr. Varona.

THE SEWERAGE AND WATER BOARD AND THE CITY OF NEW ORLEANS’ ASSIGNMENT OF ERROR

ASSESSMENT OF FAULT

¡/(The Sewerage and Water Board further asserts that the trial court erred in finding any liability on the part of the Sewerage and Water Board. Conversely, the City of New Orleans asserts that the trial court erred in assessing 50% liability to the City of New Orleans, when the evidence shows that the Sewerage and Water Board was responsible for the manhole cover. The City further avers that Mr. Varona should have been assessed some fault as a result of the accident. The trial court’s assessment of fault and review of the allocation of percentages will not be disturbed on appeal absent a finding of manifest error. Toston v. Pardon, 03-1747 (La.04/23/04), 874 So.2d 791, 803.

Both defendants denied liability to the plaintiffs, contending that they had no notice of the condition of the street/manhole cover at issue and further aver even assuming, arguendo, that there was notice of the condition, there was no hazardous condition for which they were responsible which caused the accident and/or the plaintiffs’ injuries and/or damages. The record evidences several correspondences regarding complaints and work performed on the subsidence issue, and that both the Sewerage and Water Board and the City of New Orleans knew, had notice of an existing hazardous condition involving the 1500 block of Carondolet. As evidenced by the testimony of Mr. Huerkamb, the Chief of Operations for the Sewerage and Water Board and William Sewell (“Mr. Sewell”), a representative with the City Department of Streets, both defendants confirmed knowledge of the complaints and the problem which gave rise to the accident; however, each representative testified that they both believed that the other party was responsible for the area around the manhole cover.

Mr. Huerkamb testified that although the Sewerage and Water Board owns and controls that manhole cover, the responsibility for the condition of the street | fllocated around the manhole cover rests with the City of New Orleans; conversely Mr. Sewell testified that although the City is generally responsible for the streets, the Sewerage and Water Board is responsible for a six to eight foot diameter around a manhole cover, beginning at the center of the cover.

The trial court opined that based upon the testimony of the two representatives, it was clear that both defendants knew about the problem with subsidence around the manhole cover and that they were further aware that this subsidence caused the manhole cover to protrude into the roadway. Accordingly, we find no abuse of discretion in the trial court’s judgment. The trial court further opined that

“the testimony and evidence is such that this Court finds that the Sewerage and Water Board AND the City of New Orleans both had an obligation to correct the hazards in question and that their failure to do [sic] such, despite having knowledge of the existence of these hazards, created an unreasonable risk of harm thus [sic] making them equally liable to the plaintiff for his damages.”

It is evidenced in the record that the City of New Orleans owned Carondolet Street, which includes the 1500 block thereof. La. C.C. art. 2317.1, provides in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

In accordance with La. C.C. art. 2317.1, because the City of New Orleans does not refute ownership of the street in question, the City of New Orleans is responsible to the damages caused by Carondolet Street, specifically because they possessed the 11flrequisite knowledge of an existing hazardous condition, which would result in damages.

We find, as did the trial court, that the Sewerage and Water Board owned or had custody of the manhole that is subject to the instant action and also became aware of the hazard that existed, as evidenced by the record. La. C.C. art. 2317 provides in pertinent part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

Accordingly, despite their knowledge that a hazard existed on the 1500 block of Carondolet, the Sewerage and Water Board failed to take measures to warn the public. We do not find that the trial court was erroneous in assessing liability to the Sewerage and Water Board.

MR. RICO’S ASSIGNMENT OF ERROR

GENERAL DAMAGES

Mr. Rico’s appeal asserts that the trial court’s judgment for general damages was not reasonable and was too low. Throughout our review of the damages, we are mindful that factual findings of a trial court are subject to the manifest error standard of review on appeal. Stobart v. State Through DOTD, 617 So.2d 880, 882 (La.1993). The standard for appellate court review of a trial court’s award of general damages was discussed by the Louisiana Supreme Court in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). The Court stated:

The discretion vested in the trier of fact is “great”, and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff launder the particular circumstances that the appellate court should increase or reduce the award.

See also Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

A general damage award may not be disturbed without a showing that the district court abused its discretion. Coco v. Winston Ind,., Inc., 341 So.2d 332, 335 (La.1976). Only after making a finding that the record supports that the lower court abused its vast discretion can the appellate court disturb the award. Coco, 341 So.2d at 335. The discretion afforded the trier of fact to assess special damages is more limited than the discretion to assess general damages. Some special damages, such as medical and related expenses, are easily measured and accordingly, a plaintiff pleading a special damage must produce some evidence by which that loss can be reasonably measured. Eddy v. Litton, 586 So.2d 670, 675 (La.App. 2nd Cir.1991). See also, Kelty v. Brumfield, 96-0869 (La.App. 4 Cir. 3/12/97), 691 So.2d 242.

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is clear abuse of the much discretion of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). The trial court found that Mr. Rico was unlikely to proceed to surgery given the length of time that has lapsed since the recommendation of surgery and the trial date. Accordingly, the trial court, in its Reasons for Judgment, opined that, in light of its observation, this was treated as a case involving “a herniated disc with continued ongoing pain, for which surgery has been recommended, [sic] though not accepted.”

A trier of fact has much discretion in the assessment of general damages. La.C.C. art. 2324.1. Before a Court of Appeal can disturb an award made by a h ¿trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Morton v. Ray and Eckerd Drugs, 611 So.2d 841, 844 (La.App. 4th Cir.1992), citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The record evidences that Mr. Rico complained of back pain and was diagnosed as suffering from a herniated disc in his neck. To support his claim that the trial court abused its discretion in its award for general damages, Mr. Rico cites this Court’s decision in Koepp v. Sealand Service, Inc., 93-2568 (La.App. 4 Cir. 11/17/94), 645 So.2d 1269, in which we held that the trial court did not abuse its case discretion in awarding $400,000 in general damages to crew member of vessel who suffered injuries as a result of a shipping accident.

The plaintiff in Koepp, is distinguished from the plaintiff in the case sub judice. The plaintiffs physician in Koepp determined that the seaman was permanently unable to work in the future and therefore was prohibited from returning to gainful employment. The physician in Koepp also imposed numerous restrictions on the seaman, which necessitated drastic change in the type of activities in which the seamen could participate in and accordingly, the plaintiff was entitled to recover loss of future earnings.

Mr. Rico also cites this Court’s decision in Alonzo v. Silverman & Marks Plumbing Company, 93-1403 (La.App. 4 Cir. 07/14/93), 640 So.2d 876, in which we held that the trial court did not abuse its discretion in awarding $360,000 in general damages to the twenty-seven year old plaintiff who sustained two herniated discs in his lumbar spine, aggravation of two or possibly three discs in neck, who was out of work for eight months, permanently restricted from manual labor, from bending or lifting and other activities which he engaged in prior to the automobile accident. Although we do find that, following the accident, Mr. Rico complained |1sof back pain and was diagnosed as suffering from a herniated disc in his neck, which requires surgery, the present case is distinguished from the cases cited by Mr. Rico, insofar as the record is absent a showing that Mr. Rico’s physician imposed numerous restrictions on Mr. Rico’s activities; that his injuries necessitated a drastic change in the type of activities that Mr. Rico may not participate in; or that Mr. Rico’s injuries resulted from multiple herniated or aggravated discs located in the lumbar spine, neck, a loss of employment opportunities and necessitated a change in profession.

Comparable cases in which the plaintiffs have sustained injuries analogous to those of Mr. Rico have awarded general damages vary generally between $100,000 to $250,000. In Morton, 611 So.2d 841, this court found that the trial court’s award of $350,000 was excessive so as to constitute an abuse of discretion and decreased the award to an amount that “is the maximum which would not constitute such abuse. Therefore, we reduce the general damage award to $250,000.” Morton, 611 So.2d at 845. The plaintiff in Morton, a store security guard, was negligently injured when a store employee grabbed him from behind and pulled him backward, causing aggravation of Mr. Morton’s pre-existing ruptured disc and disc herniation for which his physicians previously discussed the possibility of disc fusion. However, as a result of the injury he sustained as a security guard, Mr. Morton’s pre-existing back problems became symptomatic and Mr. Morton underwent a partial laminectomy at L4 and L5, removal of disc material at L5, and a fusion of L4 to the sacrum. The trial court awarded Mr. Morton $350,000 in general damages and on appeal, this Court found the amount excessive and that the trial court abused its discretion. Accordingly, this Court | udecreased the award to $250,000, an amount that would be the maximum amount which would not constitute such an abuse.

In Davis v. Sewerage and Water Board, 555 So.2d 664 (La.App. 4th Cir.1989), four people were injured in an automobile accident when the automobile entered into a hole that had been dug in a street to make sewer repairs. In Davis, one of the plaintiffs, Anthony Alexander, suffered from a laceration of the lower lip, broken incisor, ruptured lumbar disc, herniated disc, underwent partial disk removal, was faced with the possibility of future surgery, was ordered by surgeons not work or lift and was hospitalized. As a result of the accident and injuries, the trial court awarded $100,000 for general damages to Alexander. On appeal, this court held that the awards of general damages were not an abuse of discretion, despite the passengers’ claim that the damages were too low.

In the present ease, Dr. John D. Olson testified that Mr. Rico suffered from high blood pressure, obesity, hypertension, and vascular disease, which precluded surgical intervention. The trial court, in awarding Mr. Rico general damages, adjudged that Mr. Rico elected not to undergo surgery as of the date of trial and found that, after considering the potential complications due to his pre-existing health, it was not unreasonable that he elected to forego surgery. Absent a finding that the trial court abused its vast discretion, we cannot say that the trial court was manifestly erroneous in its judgment awarding Mr. Rico general damages in the amount of $150,000.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . On April 27, 2005, this Court issued an order that the pending appeals 2005-0183, lodged by the Sewerage and Water Board; 2005-0173, lodged by the Sewerage and Water Board; and 2005-0414, lodged by Mr. Rico, be consolidated with the pending appeal 2004-2006, lodged by the City of New Orleans.


author: EDWIN A. LOMBARD, Judge.

text:
    William A. SPRINGER, et al. v. LOUISIANA BOARD OF REGISTRATION, et al.
    No. 2005-CA-0878.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2006.

      Richard A. Arias, Hammond, LA, for Plaintiff/Appellant.
    H. Michael Bush, Julie D. Livaudais, D. Scott Landry, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr.,' Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe plaintiffs/appellants, William Springer and Building Inspection Services, Inc. (BISI), appeal from the judgment of March 7, 2005, wherein the trial court sustained the defendant’s exceptions of no cause of action, no right of action, and prescription.

Relevant Facts and Procedural History

On November 16, 1992, the plaintiffs filed an action against the Louisiana Professional Engineering and Land Surveying Board (“the Board”) seeking to appeal a disciplinary decision by the Board against Springer and BISI for purporting to be a civil engineer for structural opinions in a home inspection report. On January 15, 1993, the Board filed its answer. The following year, on October 4, 1994, the Board moved to dismiss the action and Springer filed an opposition to the motion on October 10,1994. Three years later, on June 30, 1998, Springer filed a pleading entitled “Motion to Assign Motion for Summary Judgment for Trial.” No further pleadings were filed in prosecution or defense of 12the case until October 6, 2003, when Springer filed an “Ex Parte Motion to Dismiss Pursuant to La. [Code Civ. Proc. art.] 561,” contending that the action should be deemed abandoned because no action had been taken in the prosecution or defense of the case since August 1998. The district court granted the motion on October 9, 2003, dismissing the action.

On March 11, 2004, Springer filed the instant action seeking to have the judgment of October 9, 2003, declared a nullity, arguing that the dismissal was obtained through the “ill practice” of his attorney without his permission. In response, the Board filed exceptions of insufficiency of service of process, no cause of action, and prescription. The district court sustained the Board’s exception of no cause of action and granted Springer 30 days to amend his petition. In his amended petition, Springer reiterated that his attorney’s ill practices led to the judgment of October 9, 2003, and alleged that settlement discussions between his attorney and the Board’s attorney induced his former counsel to believe that an agreement had been reached which constituted ill practices on the part of the Board. The Board again filed exception of no cause of action, prescription, and no right of action. The district court sustained the exceptions on March 7, 2005, dismissing the action with prejudice.

On appeal, Springer raises three assignments of error: (1) the trial court erred when it found there was no contract between Springer/BISI and the Board; (2) the trial court erred when it found there was no breach of contract between liiSpringer/BISI and the Board; and (3) the trial court erred when it granted the Board’s exceptions of no cause of action, prescription, and no right of action.

Discussion

La.Code Civ. Proc. art. 561 provides in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(8) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs • service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall filed a certificate pursuant to Article 1913(D).
(4) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.
* * * *
C. An appeal is abandoned when the parties fail to take any step in its Prosecution or disposition for the period provided in the rules of the appellate court.

La.Code Civ. Proc. art. 561.

“Article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and is effective without court order.” Clark v. State Farm Mutual Automobile Insurance Co., 00-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784. Once abandonment occurs, no action by the plaintiff or inaction by the defendant can revive the abandoned action. Clark, 785 So.2d at 789 (citations omitted).

In this case, inaction by the parties for the legislatively ordained three-year period (which ended on or about June 30, 2001) and the subsequent acknowledgement of the abandonment by plaintiffs ex parte motion to dismiss irrefutably demonstrates that the original case was abandoned. Abandonment does not constitute fraud or ill practices and, accordingly, La. Code of Civ. Proc. art.2004, is inapplicable and cannot serve to revive the original action. See Fineran v. O’Connor, 410 So.2d 273, 275-276 (La.App. 4th Cir.1982) (rejecting conduct of petitioner’s own attorney as basis for nullity action); see also Johnson v. Welsh, 334 So.2d 395, 397 (La.1976) (rejecting inaction of defendant’s attorney as a basis for setting aside judgment of default). Likewise, settlement discussions do not constitute a step for purposes of interrupting abandonment. Clark, 785 So.2d at 790; see also Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983) (ongoing discussions legally are insufficient to stop abandonment of lawsuit). Because Springer’s original lawsuit was clearly abandoned and could not be revived by the instant nullity action there is no merit in Springer’s argument that the district court erred in sustaining the defendant’s exception of no cause of action.

Pursuant to La. Civ.Code art. 3463, an interruption of prescription resulting from the fifing of a lawsuit is considered never to have occurred if the plaintiff abandons, voluntarily dismisses or fails to prosecute the lawsuit. The prescriptive | ¡^period for administrative appeals is thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, thirty days after the decision thereon. La. Rev.Stat. Ann. § 49:964(B). As such, Springer’s underlying claim against the Board is clearly prescribed. Accordingly, there is no merit to his argument that the trial court erred in sustaining the Board’s exception of prescription.

Conclusion

Because the exceptions of no cause of action and prescription were properly sustained by the district court, we need not consider the plaintiffs’ other assignments of error. Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiffs.

AFFIRMED.

      . The lawsuit was entitled “'William A. Springer and Building Inspection Services, Inc v. Louisiana Board of Registration for Professional Engineers and Land Surveyors,” No. 92-19619, Division "1”, Civil District Court for the Parish of Orleans.

      . Three requirements are imposed upon a plaintiff pursuant to Article 561. First, plaintiffs must take some "step” towards prosecution of their lawsuit. In this context, a "step” is defined as taking formal action before the court, which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party Clark, 785 So.2d at 784.

      . La.Code Civ. Proc. art.2004 provides that a "final judgment obtained by fraud or ill practices may be annulled” by an action brought within one year of the discovery of fraud or ill practice by the plaintiff.


text:
    STATE of Louisiana v. Trudie M. WALKER.
    No. 2005-KA-0876.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2006.

      Michael D. Clement, Indigent Defender Board, Belle Chase, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| T Defendant/relator, Trudie Walker, filed this appeal seeking review of a misdemeanor conviction for driving while intoxicated (“DWI”), a violation of La.Rev.Stat. 14:98. Because there is no right of appeal from a misdemeanor conviction, see La.Code Crim. Proc. art. 912.1(B), we convert her appeal to an application for supervisory writ. See La.Code Crim. Proc. art. 912.1(C).

In the early morning hours of August 26, 2004, the defendant was stopped for speeding by a deputy sheriff of the Plaque-mines Parish Sheriffs Office. She was charged with operating a vehicle while intoxicated, speeding, failure to stop at a red light, and driving with a suspended license. The defendant pleaded not guilty to all counts and the ease was submitted to the trial court on the basis of the police report and videotape taken at the scene. After taking the matter under advisement, the trial judge found the defendant guilty as charged on all counts. The defendant was sentenced to sixty days in parish prison on the DWI count, suspended, and placed on two years probation. In addition, the court imposed a fine of $750.00, and 1 ^ordered that the sentence be served consecutively with an earlier DWI sentence (the subject of 2005-KA-0875).

The defendant, now before this court on application for supervisory writ, challenges her DWI conviction, arguing that the State presented insufficient evidence to show she was intoxicated because the videotape introduced at trial negates any finding that she was intoxicated at the time the officers stopped her.

In reviewing a defendant’s claim of insufficiency of evidence to justify the conviction, this court views the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Porretto, 468 So.2d 1142 (La.1985). La.Rev.Stat. 14:98(A)(1) defines the crime of operating a vehicle while intoxicated as “the operating of any motor vehicle ... when: (1) The operator is under the influence of alcoholic beverages....” In order to support a conviction under this statute, the State must prove that (1) the defendant was operating a vehicle, and (2) the defendant was under the influence of alcoholic beverages. State v. Fontenot, 408 So.2d 919 (La.1982). It is not necessary, however, for the State to present evidence of scientific testing or even field testing in order to prove that a defendant was intoxicated. State v. Loisel, 2001-2018, p. 5 (La.App. 4 Cir. 3/6/02), 812 So.2d 822, 825.

A review of the record in this case indicates that no testimony was taken at trial; the State merely presented the police report and the videotape of the incident made by a state police trooper who responded to the deputy ^sheriff’s call for assistance. The police report indicates that the deputy stopped the defendant after observing her disregard a stoplight and then clocking her speed at 72 m.p.h. in a 45 m.p.h. zone on Highway 23. The deputy noticed a very strong odor of alcohol and somewhat slurred speech. After being advised of her rights, the defendant admitted to drinking four beers prior to driving to a local bar. After refusing to undergo any field sobriety tests, the defendant was arrested, taken to the Belle Chasse Lockup where she refused to take a breathalyzer test, and booked with speeding, DWI, disregarding a red light, and driving with a suspended license.

The videotape of the incident first briefly shows the defendant standing next to her car. The defendant is not visible during the initial contact between the state trooper and sheriffs deputy, but her voice can be heard and it is slow and somewhat slurred. The defendant was subsequently moved to the front of the patrol car where the camera was pointed. The defendant does not appear to be swaying as she walks into the camera’s range but she does admit that she consumed three or four beers within the preceding few hours. The defendant, placed in the patrol car after refusing to take field sobriety tests, attempted to exit the vehicle while the trooper was securing her car and can be heard complaining that the patrol car is hot and accusing the state trooper of being “mean.” During the drive to the Belle Chasse Lockup the video camera was pointed towards the defendant but partially blocked by various objects. The image is not clear but it does appear that the defendant was swaying in her seat during the ride. Once at the lockup, the state trooper removed the defendant from the patrol car and then asked another officer to take her upstairs. As the officer escorted the defendant out of camera range, the state trooper advised him to hold onto her arm because it looked like she was going to fall. The tape then ended.

| ¿Thus, the videotape does not discredit the information in the police report concerning the defendant’s state of intoxication. Although the videotape does not show the defendant swaying as she walked, her speech does appear to be somewhat slurred and she is heard complaining that it was hot in the patrol car, even though the air conditioning was running. In addition, the state trooper warned the officer escorting the defendant up the stairs at the lockup to hold onto her arm because it appeared she was going to fall down. This evidence bolsters the evidence in the police report that the defendant was swaying, smelled of alcohol, and had slurred speech. Accordingly, viewing the evidence in the light most favorable to the prosecution, the trial court could have found that the State proved that the defendant was intoxicated while operating, her car. The defendant’s claim is without merit. Accordingly, we deny her application for supervisory writ.

APPEAL CONVERTED TO WRIT; WRIT DENIED.

      . On May 10, 2005, the trial judge erroneously granted the defendant’s motion for appeal.

      . The court sentenced the relator to thirty days in parish prison or a payment of a $100 fine on the speeding count, to ten days in parish prison or payment of a $25.00 fine on the failure to stop at a red light count, and ninety days in parish prison or payment of a $500.00 fine on the suspended license count.


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

text:
    STATE of Louisiana v. Tara B. ROBINSON.
    No. 2005-KA-0813.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2006.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Tara Robinson.
    Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court Composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, Jr., Judge.

| .STATEMENT OF THE CASE

Tara B. Robinson, the defendant in this case, was convicted of two counts of armed robbery in violation of La. R.S. 14:64. He was sentenced to forty-nine years for each of the armed robbery convictions. The sentences were to run concurrently and were both to be served at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court judge also noted that a crime of violence was included in the charges of which Mr. Robinson had been convicted.

After Mr. Robinson was convicted and sentenced on the two counts of armed robbery the State filed a multiple offender bill of information charging Mr. Robinson with being a second felony offender under the Habitual Offender Law, La. 15:529.1. The bill of information reflected that Mr. Robinson had been found guilty of armed robbery and had previously pled guilty to sexual battery. At the hearing on the multiple offender bill of information, Mr. Robinson pled guilty to Lthe charge of being a second felony offender. The trial court judge accepted Mr. Robinson’s guilty plea, vacated his prior sentence, and re-sentenced him to forty-nine and one half years at hard labor without the benefit of probation, parole, or suspension of sentence.

The minute entry for the guilty plea on the multiple offender bill of information states that the trial court vacated Mr. Robinson’s original sentence on one of the two armed robbery convictions and re-sentenced him only on that conviction. The minute entry also reflects that the newly imposed sentence was to run concurrently with the sentence on the other armed robbery conviction. The transcript of the sentencing hearing, however, does not expressly state that only one of the sentences for armed robbery was enhanced.

Mr. Robinson is now appealing his sentence, which he contends was improper. He asserts that the trial court judge improperly enhanced both of his sentences for his two armed robbery convictions.

DISCUSSION

Mr. Robinson’s sole assignment of error is that the trial court erred by finding him to be a multiple offender with respect to both, rather than only one, of his convictions for armed robbery. Mr. Robinson argues that it was error for the trial court judge to accept his guilty plea to being a multiple offender on both of his armed robbery convictions. The minute entry in the record indicates that Mr. Robinson pled guilty to being a multiple offender as to only one of the convictions for armed robbery, and the multiple offender bill of information refers only to |s“armed robbery”, not multiple counts of armed robbery. The transcript of the hearing at which Mr. Robinson pled guilty to the charge in the multiple offender bill of information does not, however, specifically state that Mr. Robinson is being sentenced as a multiple offender with respect to only one of his armed robbery convictions.

When there is a discrepancy between a minute entry and a transcript, the transcript prevails. See, e.g., State v. Jones, 2003-3542, p. 11 (La.10/19/04), 884 So.2d 582, 589; State v. Lynch, 441 So.2d 732, 734 (La.1983). In the instant case, the relevant portion of the transcript of the multiple offender bill adjudication reads as follows:

THE COURT:
At this time the Court believes the defendant has been properly advised of his rights at this multiple bill hearing, that he is freely and voluntarily entering this guilty plea to the multiple bill, that he understands the nature and the consequences. He is satisfied with counsel and counsel’s advice on this matter. And, therefore, the Court accepts the guilty plea as to the multiple offender plea.
MR. MOORE:
Waive delays, your Honor.
THE COURT:
Imposition of sentence under revised statute 15:529.1, Court is sentencing you to forty-nine and a half years in the Department of Corrections. That sentence is without benefit of probation, parole or suspension of sentence.
Noting'for the record, again, this is a crime of violence. This is an at hard labor sentence with victim notification rights being preserved in the record.
[4Vacating the sentence previously imposed. Sentence imposed previously on January 12, 2005, is vacated with the new sentence being imposed.

In State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La.1991), the Louisiana Supreme Court stated:

[P]olicy considerations support the continued viability of the rule precluding habitual offender enhancement of more than one conviction obtained the same date arising out of a single criminal act or episode.... Multiple convictions obtained the same day for offenses arising out of one criminal episode should be considered as one conviction for purposes of applying the habitual offender law in sentencing.

Therefore, Mr. Robinson is correct that only one of his armed robbery convictions can be enhanced under the Habitual Offender Law.

The transcript of the multiple offender bill adjudication clearly states that “the sentence previously imposed” was vacated. This is a clear indication that only one, not both of the previously imposed sentences, was vacated. Therefore, it is clear, but not expressly stated, that only one of the armed robbery convictions was being enhanced. Additionally, if both convictions were being enhanced, the trial court judge would have imposed two forty-nine and a half year sentences. The imposition of only one such sentence also demonstrates that only one of the armed robbery convictions was enhanced under the Habitual Offender Law.

We find that Mr. Robinson’s sentence on count two of his two armed robbery convictions remains unaffected by his adjudication as a habitual offender, and his sentence on that conviction of forty-nine years at hard labor without the benefit of probation, parole, or suspension of sentence remains unaffected by his multiple felony offender adjudication. We also find that his adjudication as a [¡¡second felony offender in connection with the count one armed robbery conviction and the vacating of his forty-nine year sentence on that particular armed robbery conviction was proper. Finally, the trial court’s re-sentencing Mr. Robinson to forty-nine and one-half years on the enhanced armed robbery conviction, such sentence to be served at hard labor without the benefit of probation, parole, or suspension of sentence, was also proper.

DECREE

Mr. Robinson’s sentence of forty-nine years at hard labor without the benefit of probation, parole, or suspension of sentence is hereby affirmed with respect to his conviction on count two of armed robbery. Mr. Robinson’s sentence of forty-nine and one-half years at hard labor without the benefit of probation, parole, or suspension of sentence on his conviction as a second felony offender under the Habitual Offender Law with respect to the conviction on count one of armed robbery is hereby affirmed. Both sentences are to run concurrently, and both sentences are imposed in connection with the provisions of law relative to crimes of violence.

SENTENCES CLARIFIED AND AFFIRMED.

      . Mr. Robinson was also found guilty of two counts of simple robbery, but those convictions are not the subject of his appeal.

      . Because there is nothing in the record to indicate otherwise, we find that the trial court judge enhanced Mr. Robinson's sentence with regard to count one and did not enhance the sentence as to count two.