text:
    Mary DAVIS v. Sze Tin WONG and Chinese King Restaurant, Inc.
    No. 05-CA-853.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Samuel J. Aceardo, Jr., Attorney at Law, LaPlace, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

LOn May 9, 2005, plaintiff, Mary Davis, filed suit against defendants, Sze Tin Wong and Chinese King Restaurant, Inc. (“Chinese King”), alleging that she sustained injuries during the course and scope of her employment with Chinese King. Plaintiff asserts that she was asked by her manager to clean the restaurant’s restroom that had a leaking toilet and, as she was cleaning the puddle of water, she slipped and fell, causing her to sustain injuries. Plaintiff contends that she attempted to file a claim for worker’s compensation, but she was informed that defendants did not have worker’s compensation insurance. Plaintiff then brought the instant suit against defendants in tort, alleging that her injuries were caused by defendants’ negligence.

On May 25, 2005, defendants filed exceptions of prescription, no cause of action, and vagueness. These exceptions came for hearing on June 23, 2005. On July 21, 2005, the trial judge signed a judgment denying defendants’ exceptions of |sno cause of action and prescription, and granting defendant’s exception of vagueness but allowing plaintiff 15 days to file an amended petition. Defendants seek to appeal the trial court’s denial of their exception of no cause of action.

Under LSA-C.C.P. art. 1841, a final judgment is a judgment that “determines the merits in whole or in part,” and an interlocutory judgment is one that “does not determine the merits but only preliminary matters in the course of the action.” See also LaPlace Sand Co. v. Troxler, 98-86 (La.App. 5 Cir. 5/27/98), 712 So.2d 1077. LSA-C.C.P. art. 1915 sets forth the instances when a final judgment may be rendered, even though it does not grant the successful party all of the relief sought or does not adjudicate all of the issues in the ease.

In the instant case, the judgment denying defendants’ exception of no cause of action does not determine the merits of the case in whole or in part, and is not a partial final judgment, as defined by LSA-C.C.P. art. 1915. The trial ■ court’s judgment denying defendants’ exception of no cause of action is an interlocutory judgment that is not appealable in the absence of irreparable injury. Irreparable injury has’not been shown or even alleged in this case.

Review of the interlocutory judgment denying defendants’ exception of no cause of action is properly taken under this court’s supervisory jurisdiction. However, this court does not convert appeals into writ applications. See Rubin v.Westport Ins. Corp., 02-643 (La.App. 5 Cir. 12/11/02), 833 So.2d 1245; and Meany v. Meany, 96-585 (La.App. 5 Cir. 11/26/96), 685 So.2d 356. Accordingly, we dismiss defendant’s appeal and remand this matter for further proceedings.

APPEAL DISMISSED.

      . The record contains a judgment dated July 8, 2005, denying defendants' exception of no cause of action and indicating that this exception was heard on June 9, 2005. However, the record does not contain a transcript from a hearing on June 9, 2005 and there is no minute entry indicating that a hearing was held on June 9, 2005. The record does contain a minute entry and a transcript of the June 23, 2005 hearing indicating that defendants’ exceptions were heard. Regardless, we find that this inconsistency is irrelevant to the matter before us, because the July 8, 2005 and July 21, 2005 judgments both reflect the same ruling on defendants' exception of no cause of action.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lamont GROSS.
    No. 05-KA-903.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Hon. Harry J. Morel, Jr., District Attorney, Twenty-Ninth Judicial District, Parish of St. Charles, Kim McElwee, Assistant District Attorney, Hahnville, Louisiana, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

Defendant, Lamont Gross, was indicted by a grand jury on January 16, 2003 and charged with armed robbery in violation of LSA-R.S. 14:64. He pled not guilty then later changed his plea to not guilty by reason of insanity. A sanity hearing was held and defendant was found competent to stand trial. Defendant then changed his plea back to not guilty.

Trial was held on October 21, 2004. A twelve-person jury was selected, but then defendant withdrew his not guilty plea and pled guilty as charged as part of a plea agreement. According to the plea agreement, defendant agreed to plead guilty and the State agreed not to file a multiple offender bill as long as defendant received at least a 50-year sentence. Defendant pled guilty and was then sentenced to 75 years without benefit of parole, probation, or suspension of sentence.

According to the facts established during the plea colloquy and the sentencing hearing, on December 18, 2002, defendant walked into the Rousel’s gift Land jewelry shop in Boutte armed with a 9mm semiautomatic handgun. He ordered the store patrons into a back room and held a gun to the store manager/owner. He robbed the store of a large amount of jewelry. The police were waiting outside and arrested the defendant as he walked out of the store. The police had been alerted to the robbery by a cell phone call from a store patron inside the store. The police recovered jewelry and the handgun from defendant upon his arrest.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant argues that his 75-year sentence for armed robbery is excessive. He admits he entered into a plea agreement and he agreed to a minimum 50-year sentence. Defendant asserts that he entered into a plea agreement to avoid a mandatory life sentence as a third felony offender had the State filed a multiple bill, which it intended to do. Defendant argues that his 75-year sentence is equal to a life sentence, which he pled guilty to avoid. By this appeal, defendant does not contend his plea was involuntary and does not seek to set aside his pleas.

Defendant contends the trial court overlooked some mitigating factors and did not give adequate weight to the mitigating factors it did consider. Defendant points out that he has had a drug problem since age 12, has an anti-social personality disorder, suffers from depression, no one was injured during the robbery, and he was remorseful. Defendant also argues that the trial court improperly relied on elements inherent in the offense of armed robbery as aggravating circumstances.

During the plea colloquy, it was made cleay that defendant was to receive a sentence of “at least” 50 years as part of the plea agreement and the State agreed not to multiple bill the defendant as a third felony offender. At the sentencing phearing, the trial court stated that it had considered the presentence investigation report, the report of Dr. Salcedo who was part of the sanity commission, and defendant’s statement made at the sentencing hearing. The trial court listed the aggravating circumstances as 1) defendant knowingly creating a risk of death or great bodily harm to more than one person, 2) his use of threats of actual violence evidenced by pointing a gun at the victim, 3) his use of a 9mm handgun which is a dangerous weapon, and 4) the fact that he had prior similar offenses consisting of a 1990 armed robbery, a 1994 bank robbery, and a 2003 simple escape. The trial court listed the mitigating factors it considered as 1) defendant’s methamphetamine problem, 2) his anti-social personality disorder diagnosed by Dr. Salcedo, 3) the fact that the victim was not injured, and 4) his expression of remorse. The trial court then imposed the 75 year sentence, noting the strongest factor in support of the sentence was the fact the present armed robbery was not the first time defendant had committed armed robbery.

According to LSA-R.S. 14:64, the sentencing range for armed robbery is 10 to 99 years at hard labor without the benefit of parole, probation, or suspension of sentence. As part of his plea agreement, defendant had agreed to a sentence of “at least” 50 years. Therefore, we find, considering defendant’s prior criminal history and the factors discussed by the trial court, defendant’s 75 year sentence is not excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or impose needless and purposeless pain and suffering.

|sIn reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice. The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Brown, 04-230 (La.App. 5 Cir. 7/27/04), 880 So.2d 899, 902. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

In State v. Roberts, 36,271 (La.App. 2 Cir. 8/14/02), 823 So.2d 1100, writ denied, 02-2758 (La.9/5/03), 852 So.2d 1022, the Second Circuit upheld the constitutionality of the defendant’s 75-year sentence for armed robbery. The defendant pled guilty to armed robbery after the State agreed not to charge defendant as a habitual offender. The defendant had a criminal history, including charges for armed robbery, burglaries, and theft. At the time of the subject offense, the defendant was on federal parole for burglary of a post office. The court found that defendant’s sentence was not constitutionally excessive and noted the defendant’s record indicated “a complete disdain for the requirements of a civilized society.”

In this case, defendant’s criminal history consisted of an armed robbery, a bank robbery, and simple escape. Defendant was on parole for a federal offense and was facing parole revocation. The trial court set forth various aggravating and mitigating factors it considered in imposing sentence and noted it gave greater weight to the fact that this was not the first armed robbery offense defendant had | ^committed. Defendant agreed to a sentence of at least 50 years pursuant to the plea agreement, in order to avoid being multiple billed as a triple offender and facing a mandatory life sentence. Therefore, considering defendant’s prior criminal history, we find the 75 year sentence is not constitutionally excessive.

Accordingly, defendant’s sentence of 75 years without the benefit of parole, probation, or suspension of sentence is affirmed.

AFFIRMED.


author: SUSAN M. CHEHARDY, Judge. DALEY, J.,

text:
    Joseph ALMERICO v. Peter DALE and the City of Harahan, Louisiana.
    No. 05-CA-749.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Brandon J. Venegas, Attorney at Law, Metairie, Counsel for Plaintiff/Appellant, Joseph Almerico.

      Lynn E. Williams, Jr., Attorney at Law, Metairie, Counsel for Defendant/Appellee, Chief Peter Dale, Individually.
    Thomas P. Anzelmo, Kyle P. Kirsch, Andre J. Lagarde, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & Daniel, Attorneys at Law, Metairie, Counsel for Defendants/Appellees, the City of Harahan and Chief Peter Dale in his Official Capacity.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

1 aThis is a lawsuit by an employee of the Harahan Police Department for intentional infliction of emotional distress and abuse of process. The plaintiff appeals a judgment that dismissed his claims on exceptions of no cause of action. We affirm.

In June 2004 Joseph Almerico filed suit against Peter Dale, individually and in his capacity as Chief of Police of the City of Harahan, and the City of Harahan, Louisiana. The original petition alleges that Al-merico is a captain in the Harahan Police Department, with the title of Operations Commander. He was first employed by the Harahan Police Department as a reserve officer, then was hired in 1992 in the classified civil service position of Police Officer, progressing by the required civil service examinations successively through the positions of Sergeant, Lieutenant, and then Captain, all classified positions within the Police Department.

It alleges further that after defendant Peter Dale (“Dale”) was elected to the position of Chief of Police of the City of Harahan in November 2002, Dale made it clear to Almerico and others that he did not want Almerico to remain as an employee of the Police Department. The petition states that Dale treated Almerico with disrespect and that Dale told others he wanted to get the former police chiefs “people” out of the Police Department.

|sThe petition alleges that on April 15, 2004, while Almerico was at a funeral home making arrangements for his father’s funeral, Dale called him and instructed him to come into the office. When Almerico complied, Dale informed him that he was being placed on administrative leave. Approximately two months later, Dale terminated Almerico from his employment for alleged violations of civil service rules.

Almerico initiated an appeal pursuant to the civil service rules. The Harahan Municipal Fire and Police Civil Service Board (“Board”) subsequently found unanimously that Dale’s action was not taken in good faith for cause. The Board ordered that Almerico be immediately reinstated and that he be paid his regular salary retroactive to the date of his wrongful termination.

The petition asserts that Dale either knew or should have known that Almerico had not committed the alleged violations, and that the investigation and predetermination hearings were essentially shams, conducted in bad faith for the sole purpose of terminating Almerico.

Further, it alleges, the day after Almeri-co was reinstated to his employment,

Dale took him to lunch and asked him if plaintiff intended to sue Dale. Dale told plaintiff that if the lunch went well, he would make plaintiff Operations Commander, but that if the lunch did not go well, he was going to create a position to have plaintiff guard the maintenance shed, or would have him sit on the desk.

Thereafter, the petition alleges, Dale made Almerico Operations Commander, but the position has been little more than a title: “Dale has undertaken to undermine plaintiffs authority, impose unrealistic deadlines, and generally make plaintiff uncomfortable, all in an effort to retaliate against plaintiff and/or to make him leave his employment.”

|4The petition alleges that Dale’s actions constituted malicious prosecution, abuse of process, intentional and/or negligent infliction of emotional distress, and slander. Almerico seeks recovery for unnecessary attorney fees incurred and damages for “extreme emotional distress and anguish, embarrassment, humiliation, loss of enjoyment of life, insecurity, anxiety, and damage to reputation” suffered as a result of Dale’s actions.

The defendants brought exceptions of no cause of action. The trial court granted the exceptions as to the claims for malicious prosecution and negligent infliction of emotional distress. The court converted the exceptions of no cause of action as to intentional infliction of emotional distress, defamation, and abuse of process to exceptions of vagueness, and ordered the plaintiff to amend his petition.

Almerico filed a Supplemental And Amending Petition that added Paragraphs '20a, 20b, 20c, and 20d. In it he states, “Each of the following incidents describes an act or acts of deliberate and intentional infliction of emotional distress” upon plaintiff by Dale, acting individually and/or in his official capacity as Chief of Police of the City of Harahan.”

Subparagraph A elaborates on the incident in which Dale called Almerico away from planning his father’s funeral. Almer-ico “had previously expressed to Dale that he was very close to his father, and Dale had told plaintiff that his father was also sick, and that they (Dale and his father) were also very close.” Dale had granted him emergency leave for April 15, the day on which he was to plan his father’s funeral, yet on that day Dale’s secretary left a message on Almerico’s cell phone telling him Chief Dale needed to see him immediately to discuss something important.

When Almerico went to see Dale, Dale stated that he was being placed on administrative leave,' effective immediately.

| sDale gave no specific reasons as to the basis of this decision or the nature of the investigation or charges against plaintiff. .. .Further, although other employees had been investigated for various offenses during Dale’s administration, plaintiff was the only employee as of • that time to be placed on administrative leave during the investigation of him.

Subparagraph B alleges that Almerico endured extreme stress and anxiety for approximately six weeks because he did not know why he had been placed on administrative leave. Further, “Dale’s failure to provide plaintiff with even the most basic description of the nature or purpose of the investigation against him was deliberate and willful, done with the specific intent of inflicting emotional distress and anxiety upon plaintiff.”

Subparagraph C asserts thát despite Al-merico’s reinstatement by the Board,

Dale,.. continues to this day to deliberately, willfully and intentionally inflict emotional distress upon plaintiff. The acts described herein may appear less significant when viewed as independent, isolated incidents; however, plaintiff submits that the acts must be considered as part of a course and pattern of conduct which, when taken as a whole, unequivocally support plaintiffs allegations of intentional infliction of emotional distress.

The Supplemental and Amending Petition then lists six sub-subparagraphs that relate the following:

Despite having the position of “Operations Commander,” Almerico was required to share a small office, including the desk and computer, with another officer for almost five months after being returned to duty. Dale failed to provide him with a dress uniform, such as was provided to the other captains in the Harahan Police Department, and Dale’s response to his repeated requests was “I’ll look into it,” but nothing was done.

Further, almost two months elapsed from the time of Almerieo’s return until he received his police car back. Ultimately he was required to go on his own to the | fiperson to whom the ear had been reassigned and ask him to give it back. Dale also failed to act on Almerico’s repeated requests for reimbursement for equipment Almerico had added to his police car at his own expense prior to his being placed on administrative leave.

In addition, after Almerico was reinstated Dale never returned his commission to him, which Almerico had been required to turn in when he was placed on administrative leave. (The commission is a two-piece card with the officer’s photograph, setting forth his blood type, his date of birth, and his name.) Dale told Almerico the commission was missing, but no report was made nor internal investigation invoked to determine what happened to it.

Finally, after Almerico was reinstated, Dale informed him he would be required to fill in for the nighttime supervisor, Lt. Chris Fanguy, when that officer was off. The nighttime supervisor is required to work from 5:00 p.m. to 1:00 a.m. Almerico alleges that Dale created the position of nighttime supervisor “with the specific intention of inflicting emotional distress upon him by creating a method by which he could require plaintiff to work nights, knowing that plaintiff was awaiting the birth of his first child, and further by punishing Fanguy who Dale knows will corroborate many of plaintiffs allegations.”

‘ Paragraph 20b alleges that Dale’s intention to inflict emotional distress upon Al-merico was motivated by Dale’s desire to engage in the prohibited act of ridding his office of Civil Service protected employees who played significant roles in the administration of the prior Police Chief. Paragraph 20b also alleges that Dale made comments relating to Almerico’s having a campaign sign on his lawn, and that Dale asked the fire chief whether he could fire an employee for having lied on his employment application. It states the only allegation pursued at the Civil 17Service hearing was whether plaintiff had lied on his employment application to be a reserve officer with the Harahan Police Department more than ten years earlier.

Paragraph 20c asserts that the entire investigation and resulting wrongful discharge constituted an abuse of process by Dale, acting individually and in his official capacity. Specifically, it alleges that Dale promised another person a “Peter Dale commission” in exchange for a statement that Almerico had engaged in prohibited campaigning for the former police chief. It states that the person did not receive the promised commission and he subsequently denied he had knowledge of Almerico doing anything prohibited. Further, although Dale subpoenaed that person to testify at the Civil Service hearing, Dale released him from the subpoena immediately prior to the hearing, “resulting in Dale’s complete abandon of his claim of prohibited political activity by plaintiff.”

Paragraph 20c asserts further,

Dale, whose sole other allegation against plaintiff was that he had lied on his employment application more than ten years earlier, failed to investigate or follow up on plaintiffs documented and stated explanation given in the pre-ter-mination hearing, for the alleged ‘lie,’ which failure constituted a deliberate abuse of the process initiated to investigate plaintiff.

Finally, Paragraph 20d alleges that as a result of Dale’s “continuous harassment and humiliation of the plaintiff,” Almerieo has developed a psychological disorder with symptoms of depression and anxiety so severe as to require medical treatment, medication, and an extended leave of absence from his employment, which also made it difficult for him to assist in preparation and development of the lawsuit, and in relating to and enjoying his time with his family and friends.

Almerieo abandoned the slander claim made in the original petition by failing to amend the petition in that respect.

|sThe defendants filed exceptions of no cause of action to the petition as supplemented and amended. The trial court granted the exceptions on the causes for intentional infliction of emotional distress and abuse of process, dismissing the plaintiffs claims.

In oral reasons for judgment, the trial court stated:

[TJhere is no question that Chief Dale’s conduct might be viewed by a reasonable human being as being callous, maybe even steamily [sic] callous. However, intentional infliction of emotional distress requires much, much more. Therefore, pursuant to White, Nicholas, and Singleton,... I am granting the exception of no cause of action. The allegations of the pleading accepted as true do not rise to the requirements of those cases.
With regard to the abuse of process claim, likewise I am granting the exception of no cause of action, because if I accept the pleading as true, and I accept the bribe business as true, there was no impact. The witness didn’t testify, and the choice of process is not abuse of process, therefore the exception is granted.

On appeal, Almerieo asserts the trial court erred in granting the exceptions of no cause of action because “the District Court accepted' defendant’s version of plaintiffs pleading rather than giving weight to plaintiffs presentation of the facts.” His arguments are directed solely to the claims for intentional infliction of emotional distress and abuse of process.

STANDARD OF REVIEW

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La.C.C.P. art. 931. The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is | ^whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id.

We examine the petitions here in light of that rule.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991).

Thus, in order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.

Id.

“The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” White, 585 So.2d at 1209. Thus, there is no liability for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. “Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort....” Id.

The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests ....
On the other hand, conduct which may otherwise be extreme and outrageous, may be privileged under the | mrircumstances.... Thus, disciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily actionable. Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time.

White, 585 So.2d at 1210.

The key is that “the distress suffered must be such that no reasonable person could be expected to endure it. Liability arises only where the mental suffering or anguish is extreme.” Id.

Liability can arise only where the actor desires to inflict severe emotional distress or where he knows that such distress is certain or substantially certain to result from his conduct. The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry, or the like. [Citations and footnote omitted.]

White, 585 So.2d at 1210.

Louisiana’s jurisprudence has limited the cause of action for intentional infliction of emotional distress in a workplace setting to cases which involve a pattern of deliberate, repeated harassment over a period of time. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017, 1026. The distress suffered by the employee must be more than a reasonable person could be expected to endure. Nicholas, 765 So.2d at 1027. Moreover, the employer’s conduct must be intended or calculated to cause severe emotional distress, not just some lesser degree of fright, humiliation, embarrassment or worry. Id.

Almerico argues that the district court is required to accept his pleadings as true and to resolve reasonable doubt of the sufficiency of his pleadings to maintain the action and afford him the opportunity to present evidence at trial. He contends he has alleged sufficient facts to maintain his claim of intentional infliction of | n emotional distress and, given the opportunity to present evidence under his pleadings, he can prove this claim.

The defendants assert that the dismissal of the plaintiffs claims should be affirmed because the plaintiff cannot establish three essential elements of an intentional infliction of emotional distress claim: (1) extreme and outrageous conduct; (2) that Chief Dale knew or should have known that a seasoned police officer would suffer severe emotional distress from his actions; and (3) that the plaintiff suffered severe emotional distress as a result of the alleged actions.

Reviewing the allegations here in light of the jurisprudence — not only White and Nicholas, but also the cases from the circuit courts of appeal — we find no error in the trial court’s determination that the allegations in the petitions here do not rise to the level required to state a cause of action for intentional infliction of emotional distress.

ABUSE OF PROCESS

Almerieo argues the trial court erred in finding he failed to state a cause of action for abuse of process. The trial court reasoned that although Dale allegedly bribed a witness to testify falsely at the civil service hearing, the plaintiff sustained no damage because the witness never testified.

Almerieo contends, however, that for a law enforcement officer and civil service employee, “process” is not merely the civil service hearing in which an officer may appeal a disciplinary action (including termination); it also includes the investigative process mandated with minimum standards under the Police Officer’s Bill of Rights and the pre-determination hearing mandated by U.S. Supreme Court. In addition, he argues, it includes general requirements of civil service rules, in particular of La.R.S. 33:2561, that disciplinary action be taken in good faith and with cause.

h alienee, Almerieo argues, his allegations that “the investigation and pre-deter-mination hearings were essentially shams, conducted in bad faith for the sole purpose of terminating plaintiff,” and that “Dale twisted and forced and directed the entire procedure” by offering a potential witness a “Peter Dale commission” in exchange for a statement that the plaintiff had engaged in political campaigning, state a cause of action for abuse of process.

Almerieo contends it is immaterial that the witness’ testimony was not used in the civil service hearing, because it was used against him “in the process.” He argues there was abuse of process in that “no investigator ever took a statement from plaintiff or ever contacted him for questioning.”

The defendants assert the dismissal of the claim for abuse of process should be upheld because the allegations confirm the proper process for terminating an employee was followed. They contend that if the process is “employed for the purpose for which it was designed, that is, to redress of a legal wrong, the person who utilizes the legal process has committed no tort even though he may [have] had a vicious or vindictive motive.”

The elements of an abuse of process claim are an ulterior purpose and a willful act in the use of process not proper in regular conduct of proceeding. Costello v. Hardy, 02-1156, pp. 6-7 (La.App. 5 Cir. 3/25/03), 844 So.2d 212, 216. Abuse involves misuse of process already legally issued whereby a party attempts to obtain some result not proper under law. Id.

The “Police Officer’s Bill of Rights” statute, La.R.S. 40:2531, sets out minimum standards to apply whenever a law enforcement officer is under investigation with a view to possible disciplinary action, demotion, or dismissal. That statute cannot be cited, however, as basis for an abuse of process claim.

|1sIn reviewing Louisiana cases on abuse of process, we find none in which the “process” part of the cause of action has been considered to be anything other than legal process, or court process. In particular, we find no cases in which “process” refers to' a civil service disciplinary matter that has not come within purview of a court proceeding. Rather, as stated in a seminal discussion of abuse of process by the First Circuit Court of Appeal,

[A]buse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attempted to be secured. [Emphasis added.]

Succession of Cutrer v. Curtis, 341 So.2d 1209, 1214 (La.App. 1 Cir.1976), writ denied, 343 So.2d 201 (La.1977).

Accordingly, the trial court was correct in finding that the petitions failed to state a cause of action for abuse of process.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.

DALEY, J. concurs with reasons.

DALEY, J.,

Concurring.

|J concur and write separately to make clear that this case is being dismissed because a no cause of action review is based on the pleadings and not the allegations asserted in plaintiffs briefs. Plaintiff alleges in his briefs that Chief Dale procured false testimony through a bribe, which caused or contributed to his emotional trauma resulting in his permanent disability. These facts, if properly plead, would, in my opinion, constitute a cause of action for intentional infliction of emotional harm.

I affirm the dismissal of this case on the Exception of No Cause of Action because the pleadings do not allege what appellant’s briefs assert. Paragraph 20c.A. of the Supplemental and Amending Petition alleges, that a Mark Wollfarth was promised a commission in exchange for a statement, which he later denied understanding. This factual assertion does not constitute an allegation of procurement of false testimony through a bribe; therefore, I concur with the majority’s position in this case.

      . We see no reason to order Almerico to amend his petition, for we do not believe the grounds for the exception can be removed by amendment. See La.C.C.P. art. 934. He already amended the petition once, in response to the granting of the exception of vagueness.


author: EZELL, Judge.

text:
    Theresa C. WEEKS v. BYRD MEDICAL CLINIC, INC., et al.
    No. CA 05-1310.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Frederick Bernard Alexius, Jeremy C. Cedars, Provosty, Sadler, deLaunay, Fior-enza & Sobel, Alexandria, LA, for Defen-danVAppellee: National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital.

      Gary M. Cooper, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant: Theresa C. Weeks.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| Theresa Weeks appeals the granting of summary judgment in favor of National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital. Ms. Weeks’ mother fell and broke her hip while a patient at Byrd Hospital. In granting the motion for summary judgment, the trial court ruled that Ms. Weeks presented no evidence that the procedures and policies developed by Byrd Hospital did not meet the required standard of care.

FACTS

Ms. Weeks’ mother, Goldia Neystel, was transferred from Many Hospital to the senior care unit at Byrd Hospital on February 25, 1997, due to psychotic and schizophrenia problems. On intake, it was noted that she was a high risk for falls. This risk was increased by the fact that the great toe on her left foot had been amputated. Ms. Neystel was listed as a patient requiring specialist precautions II. This type of patient required that the nursing staff observe and make contact with the patient at least every fifteen minutes.

In the early morning hours of March 18, 1997, Ms. Neystel fell while attempting to get out of bed to use her bedside commode. As a result of the fall, she fractured her right hip. The next day, she was transferred to a hospital in Baton Rouge at the request of her daughter. Ms. Neystel died on March 21,1997.

Ms. Weeks filed suit against Byrd Hospital and other parties. She alleged that Byrd Hospital was negligent in its care of Ms. Neystel and that it breached the appropriate standard of care owed to her.

On March 25, 2004, Byrd Hospital filed a motion for summary judgment which was heard on July 12, 2004. Judgment was signed on February 9, 2005, granting summary judgment in favor of Byrd Hospital and dismissing Ms. Weeks’ claim | ¡¡.against it. Ms. Weeks appeals.

SUMMARY JUDGMENT

Ms. Weeks appeals the summary judgment dismissal of Byrd Hospital, arguing that there is evidence in the record which indicates that the employees were negligent in their care of Ms. Neystel by failing to follow policies and procedures. She relies on the deposition testimony of Dr. Frank Covington, Ms. Neystel’s treating psychiatrist.

Grants of summary judgment are reviewed by the appellate courts de novo, using the same criteria that the trial court used in determining whether summary judgment was appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article 966(C)(2) provides that the mover bears the initial burden of proof. If the mover meets the initial burden, the burden then shifts to the plaintiff to establish that she will be able to satisfy the evidentiary burden at trial. Champagne, 893 So.2d 773. If the plaintiff fails to meet this burden, there is no genuine issue and the mover is entitled to summary judgment. Id.

A genuine issue of material fact exists where reasonable persons, after considering the evidence, could disagree. P. Charles Calaban, APLC v. Scottsdale Ins. Co., 05-98 (La.App. 3 Cir. 6/1/05), 903 So.2d 1251 (quoting Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La.4/12/05), 907 So.2d 37, 48). “ ‘A fact is ‘material’ if it is one that would matter at trial on the merits.’ ” Id. at 1260.

In written reasons for judgment the trial court ruled that “[pjlaintiff ... presented no evidence that the procedures and policies developed by Byrd Hospital |sdid not meet the required standard of care.” The court further stated that:

The only evidence of a deviation from the standard of care was the hearsay statement of Goldia Neystel that nurses failed to respond timely to her signal for assistance. The hospital records do not corroborate this statement. No evidence was presented which would indicate the statement would be admitted under an exception to the hearsay rules.

Byrd Hospital claims that the record establishes that it complied with the orders of Dr. Covington that Ms. Neystel be checked every fifteen minutes. It argues that Ms. Weeks has not produced any medical evidence that it deviated from the standard of care and that a deviation caused the injuries or death of Ms. Neys-tel.

On the other hand, Ms. Weeks argues that she does not need any expert testimony to establish the standard of care required of Byrd Hospital, as recognized by the trial court. She claims that Dr. Cov-ington’s deposition, taken on July 23, 2003, over six years after Ms. Neystel’s fall, establishes a breach of the standard of care required of Byrd Hospital. Ms. Weeks relies on Dr. Covington’s deposition testimony that Ms. Neystel told him, on the morning after her fall, that she had attempted to call the staff on several occasions to help her. She could not wait, so she got up and fell at the bedside. Ms. Weeks also relies on his statement that a nurse had told him that a nurse from the unit had been pulled to another floor during the night. Dr. Covington did not identify any specific nurse that made this statement and was not sure of the number of nurses that would work the night shift.

We agree that there are cases of obvious negligence in which medical malpractice plaintiffs need not introduce expert testimony to satisfy their burden of proof. Thomas v. Southwest Louisiana Hosp. Ass’n., 02-645 (La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-476 (La.4/25/03), 842 So.2d 401 (citing Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228). These cases include amputation of the wrong limb, leaving medical equipment inside the 14patient, or dropping knives or acid on the patient. Id. “The mere fact that an injury occurs or an accident happens raises no presumption or inference of negligence on the part of the hospital.” Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003, 1008 (La.1992)(quoting Galloway v. Baton Rouge Gen. Hosp., 583 So.2d 1169, 1173 (La.App. 1 Cir.1991)). However, the supreme court further noted that “ ‘[i]t is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control’.” Galloway, 602 So.2d at 1008 (quoting Hunt v. Bogalusa Community Med. Ctr., 303 So.2d 745, 747 (La.1974))(alteration in original).

Byrd Hospital argues that this testimony relied on by Ms. Weeks to establish a breach of the standard of care is inadmissible hearsay testimony that would not be admissible at trial. It claims that this does not create a genuine issue of material fact. We agree.

It is clear that both statements of Dr. Covington relied upon by Ms. Weeks are hearsay testimony pursuant to La. Code Evid. art. 801. Ms. Weeks argues that the statement made by her mother to Dr. Covington is admissible as a statement for the purpose of medical treatment and diagnosis pursuant to La.Code Evid. art. 803(4). Comments to Exeeption(4)(b) provide that this subsection “has been interpreted to limit the scope of this exception to the kind of statements that are usually relied upon by physicians in their diagnosis and treatment of patients.” It further provides that “statements as to the cause of a condition not reasonably pertinent to diagnosis or treatment of it are not within the ambit of this exception.” Ms. Neys-tel’s statements to Dr. Covington as to how she fell have nothing to do with the diagnosis or treatment of her condition and are therefore inadmissible.

|fiWe have thoroughly reviewed the record and evidence in the case and agree with the trial court that there is no evidence that Byrd Hospital breached any standard of care owed to Ms. Neystel. Records indicate that she was cheeked on every fifteen minutes. Evidence did establish that the call button was answered when Ms. Neystel used it on previous occasions. The nursing home records even indicate she was encouraged to use the call button.

For these reasons, we affirm the summary judgment rendered in favor of National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital. Costs of this appeal are assessed to Theresa Weeks.

AFFIRMED.


author: COOKS, Judge.

text:
    Michael A. CASTILLE v. The OLD EVANGELINE DOWNS, L.L.C.
    No. 05-1251.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Allan L. Durand, Lafayette, LA, for Plaintiffi’Appellee, Michael Castille.
    Henry C. Perret, Jr., John W. Kolwe, Perret Doise, Lafayette, LA, for Defendant/Appellant, The Old Evangeline Downs, L.L.C.
    Harry T. Lemmon, New Orleans, LA, for Defendant/Appellant, The Old Evangeline Downs, L.L.C.
    David F. Waguespack, Lemle & Kelle-her, L.L.P., New Orleans, LA, for Amicus Curiae, Churchill Downs Louisiana Horse-racing Company, L.L.C.
    C. James Gelpi, David McFadden, Dan Zimmerman, Gelpi & Associates, New Orleans, LA, for Amicus Curiae, Louisiana Horseman’s Benevolent and Protective Association 1993, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

11 This case involves a plan by the Old Evangeline Downs, L.L.C. (hereafter Evangeline Downs) to offer both off track betting and video poker at its facility in Henderson, Louisiana (located in St. Martin Parish). The trial court issued an injunction preventing Evangeline Downs from offering video poker at its Henderson facility. For the following reasons, we reverse the trial court’s judgment, and dismiss the Plaintiffs petition.

FACTS AND PROCEDURAL HISTORY

In 1997, the Louisiana legislature authorized any racetrack licensed by the Louisiana Racing Commission to operate off track pari-mutual betting facilities (hereafter OTBs). OTBs offer wagering on various horse racing facilities located throughout the country. The voters in St. Martin Parish approved OTBs in 1989. In 1990, the Louisiana legislature authorized video poker operations at OTBs. From 1993 to 1995, Evangeline Downs operated an OTB in St. Martin Parish located in Stephensville. Both off track betting and video poker were offered at the Stephens-ville OTB.

In 1996, La. Const, art. 12, § 6 was amended to add paragraphs (C)(1)(a) and (b), which provides as follows:

(C) Gaming, Gambling, or Wagering Referendum Elections. (l)(a) No law authorizing a new form of gaming, gambling, or wagering not specifically authorized by law prior to the effective date of this Paragraph shall be effective nor shall such gaming, gambling, or wagering be licensed or permitted to be conducted in a parish unless a referendum election in a proposition to allow such gaming, gambling, or wagering is held in the parish and the proposition is approved by a majority of those voting thereon.
(b) No form of gaming, gambling, or wagering authorized by law on the effective date hereof shall be licensed or permitted to be conducted in a parish in which it was not heretofore being conducted, except licensed charitable gaming which may be conducted in any parish provided it is conducted in compliance with the law, pursuant to state license or permit unless a referendum election on a proposition to allow such | ¡¡.gaming, gambling, or wagering is held in the parish and the proposition is approved by a majority of those voting thereon.

That same year the legislature enacted La.R.S. 18:1300.21, which required an election to be held in every parish at the time of the 1996 congressional elections to determine whether to prohibit or to allow video poker gambling. On their ballots, voters in St. Martin Parish were presented with the following choice:

LOCAL OPTION ELECTION: Within St. Martin Parish: Shall the operation of video draw poker devices be permitted? YES () NO ().

St. Martin Parish voters approved the operation of video poker gaming in the parish.

On November 5, 2004, the Louisiana Racing Commission granted Evangeline Downs a license to' operate an OTB in Henderson. Evangeline Downs planned on offering both off track betting and video poker wagering. Plaintiff, who was the owner of a nearby truck stop which conducted video poker gaming, filed suit against Evangeline Downs, seeking preliminary and permanent injunctions to prevent Evangeline Downs from offering video poker gaming at its Henderson facility. Plaintiff, in his petition, argued the election in 1989 which approved OTB’s did not authorize combining off track betting with any other form of gambling. Plaintiff urged what Evangeline Downs seeks to do is, in effect, open a “mini-casino” in St. Martin Parish that incorporates multiple forms of gaming, including more extensive gambling than was being conducted in St. Martin Parish at the time of the 1996 amendment to the Louisiana Constitution. Plaintiff argued the amendment to La. Const, art. 12, § 6, which added subsections (l)(a) and (b), requires a referendum election in St. Martin Parish before Evangeline Downs can offer video poker at its Henderson OTB.

Evangeline Downs argued La. Const, art. 12, § 6(C)(1)(a) only requires a referendum when there is a “new form of gam-, ing, gambling, or wagering not |sspecifically authorized by law prior to the effective date of this paragraph.” Since both off track betting and video poker were legislatively authorized prior to the 1996 amendment, this provision is not applicable. As to La. Const, art. 12, § 6(C)(1)(b), it only required a referendum for a previously authorized “form of gaming, gambling or wagering in a parish in which it was not heretofore being conducted.” Because both off track betting and video poker were conducted in St. Martin Parish prior to the 1996 amendment, Evangeline Downs argues this section is also inapplicable.

The trial court found the language “heretofore being conducted” was ambiguous. It felt that phrase could mean that the “gambling or wagering had never before been conducted in that parish” or that the “gambling or wagering was not being conducted in that parish at the time of the vote.” The trial court also stated it believed the 1996 amendment was intended to be restrictive and not expansive of gambling. The trial court then set forth the following reasons for its decision:

So I think that the ambiguity of the statute leads to the interpretation that I have and in the Constitution that, since it was — since wagering or gambling by off-track betting and video poker machines in the same facility were not being conducted at the time of the vote, that under the constitutional article they were not or had not been or should not be considered as having been there at that time, because they were not being conducted at the time of the election.
So the next question becomes: Does St. Martin Parish now have to have an election in which the people in St. Martin Parish would have to approve a combination of off-track wagering or betting and video poker in the same establishment?
Also, because of the type of establishment in this instance, would a referendum be necessary in St. Martin Parish, because it would increase the amount of prizes available and the number of machines available in a facility which had both off-track betting and video poker machines?
My conclusion is that this has not been approved in St. Martin Parish and that it is an expansion of a wagering or gambling in St. Martin Parish, which has not been approved by referendum and was not preexisting the constitutional amendment, as I have interpreted it. And therefore, a referendum would be necessary for the defendants in this case to open their facility.
For those reasons, I’m going to grant the preliminary injunction and grant the relief for permanent injunction today, at the cost of |4defendants.

Evangeline Downs appealed the trial court’s judgment, asserting the following assignments of error:

1. The trial court misinterpreted La. Const, art 12, § 6 to require a referendum to approve off track betting and video poker gaming “in a single facility” when both forms of gaming had been authorized by the Legislature and thereafter approved in separate referendum elections by the voters of the parish.
2. The trial court erred in admitting affidavits of legislators stating post-enactment opinions as evidence of legislative intent.
3. The trial court erred in considering and misinterpreting the amount of prizes available to video poker patrons at OTBs, as opposed to truck stops and restaurants.

ANALYSIS

Evangeline Downs argues the trial court misinterpreted the amendment in question by imposing a requirement for a referendum to approve multiple forms of gaming in a single facility, even though both forms of gaming have been approved in separate referenda.

Nothing in La. Const, art. 12, § 6(C)(1)(a) and (b) references the type of facility where the gaming occurs. The phrase “form of gaming” found in the amendment refers to the games themselves and does not address whether more than one form of gaming may be operated in a single facility. The trial court focused on the facility where the gaming took place rather than the “form of gaming,” which is the focus of the amendment. Louisiana Constitution Article 12, § 6(C)(1)(a) prohibits a “new form of gaming” that may be enacted by the Legislature subsequent to the effective date of that amendment, unless approved by a referendum election. We find the referendum requirement in this section is inapplicable, because neither off track betting nor video poker is a new form of gaming in St. Martin Parish as defined in the section. Likewise, the type of facility where gaming occurs is not a “form of Ifjgaming.” Louisiana Constitution Article 12, § 6(C)(1) plainly does not require a referendum on the facility or the location of the forms of gaming, but simply requires voter approval of the form of gaming.

Louisiana Constitution Article 12, § 6(C)(1)(b) prohibits previously authorized forms of gaming in a parish in which it “was not heretofore being conducted” unless a referendum election is first held. The trial court held the language “heretofore being conducted” was ambiguous. Evangeline Downs acknowledges those “words are not a model of clarity.” When language is susceptible of different meanings, a court should give it the meaning that best conforms with the purpose of the law. La.Civ.Code art. 10. A court should also evaluate the context in which the words occur and the text of the law as a whole. La.Civ.Code. Art. 12.

Plaintiff is correct in stating that the general purpose of La. Const, art. 12, § 6(C) was to prevent the overall expansion of gaming without a vote of the people. However, the 1996 amendment plainly addresses only expansion of new forms of gaming and the expansion of previously authorized forms of gaming into new areas. The committee minutes indicate representative Stephen Windhorst, the author of the amendment, told the committee his bill “would also prevent existing forms of gambling from expanding into other areas without a vote of the people.” (Emphasis added.) This reference to “expanding into other areas[,]” clearly indicates the bill’s intent was to prevent the introduction of any forms of gaming previously approved by the legislature into “other areas” where that particular form of gaming had not been introduced. As stated previously, video poker had been conducted for years both prior to and after the amendment in St. Martin Parish.

We must presume that the legislature chose the phrase “was not heretofore being conducted” for a specific reason. All words in a statute must be given their |¿intended, effect. In essence, the Plaintiffs interpretation, and the trial court’s subsequent ruling, read the word heretofore out of the amendment. Their interpretation would hold that La. Const, art. 12, § 6(C)(1)(b) would prohibit any form of gaming “not being conducted” at the time of the effective date of the amendment. This interpretation violates basic statutory construction by giving no meaning to the word “heretofore.” As Evangeline Downs argues, if the legislature had intended that the form of gaming had to be conducted at the time of the amendment, the Legislature would have chosen not to include heretofore in the wording of the amendment.

Several Louisiana opinions of the Attorney General have interpreted the phrase “was not heretofore being conducted” to mean on or before October 15, 1996 (the effective date of the amendment). Attorney General Opinion No. 05-34 stated “a parish where off-track wagering has not been conducted on or before October 15, 1996, must comply with the effective date of La. Const, art. 12, § 6(C)(1)(b).” Attorney General Opinion No. 02-323 stated “[w]here off-track wagering has not been conducted in a parish on or before October 15, 1996, a local referendum election must be called in order to allow such wagering in that parish[.]” These Attorney General’s opinions clearly support Evangeline Downs’ interpretation that the use by the legislature of “was not heretofore being conducted” meant that if a particular form of gaming had been legally conducted in the past, that form of gaming could be conducted after the amendment without a referendum.

Further, a court should interpret laws on the same subject matter in reference to one another and should interpret laws by adopting a construction of the provision in question that harmonizes and reconciles it with other laws. See Louisiana Municipal Ass’n v. State of Louisiana, 04-227 (La.1/19/05), 893 So.2d 809; Barrilleaux v. NPC, Inc., 98-728 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672. In reaching its decision, it appears the trial court ignored several Louisiana laws which govern the operation of video poker gaming at OTBs in parishes across the state. Louisiana Revised Statutes 27:306(A)(3) illustrates the intention of the legislature to allow video poker in OTBs. It provides in pertinent part “[a] person owning a Louisiana State Racing Commission licensed pari-mutuel wagering facility or an offtrack wagering facility may be granted a license for the placement of video draw poker devices in his facility if all other requirements of this Chapter are met.”

Louisiana Revised Statutes 27:301 specifically defines racetracks and their OTBs as “licensed establishments,” thereby authorizing those establishments to offer video poker gaming at their facilities, provided all licensing requirements are met. Clearly, this allows for both video poker and offtrack betting in the same facility. Finally, La.R.S. 27:352 states that it is the “public policy of this state” that the “[a]u-thorization of certain specified gaming activities, ... will revitalize and rehabilitate [pari-mutuel wagering facilities] within strategically located geographic areas of the state, and will further result in overall economic development and additional revenues to the state and parishes where those facilities are located.” Video poker devices at OTBs are one additional way of generating further revenues to increase purses that are paid to horse owners. See La. R.S. 27:318.

The Plaintiffs interpretation of La. Const, art. 12, § 6(C)(1) would clearly not be in harmony with the above cited statutes. Louisiana law has consistently supported and acknowledged the vital importance to the horseracing industry of allowing racetracks and OTBs to conduct video poker gaming.

The trial court committed reversible error by applying La. Const, art. 12, § 6(C)(1) to facilities where gaming is conducted rather than applying the provision to Is forms of gaming. The legislature has expressly authorized the operation of video poker at OTBs. The voters in St. Martin Parish have approved both offtrack betting and video poker. Therefore, all constitutional requirements have been met, and a referendum is not required for Evangline Downs to conduct video poker gaming at its Henderson OTB. The trial court’s judgment is reversed, the injunction is dissolved, and the Plaintiffs petition is dismissed.

Having found merit in Evangeline Downs’ first assignment of error, we need not address their remaining assignments.

DECREE

The judgment of the trial court granting Plaintiffs injunction against Evangeline Downs is reversed, and Plaintiffs petition is dismissed. All costs of this appeal are assessed against Plaintiff-Appellee.

REVERSED.


author: GENOVESE, Judge.

text:
    SELECT MOTOR COMPANY, INC. v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 05-1277.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    Lolita M. Whitmore, Mike Barron, Baton Rouge, Louisiana, for Defendant/Appellant, State of Louisiana, Department of Public Safety & Corrections.
    Eugene A. Ledet, Jr., Alexandria, Louisiana, for Plaintiff/Appellee, Select Motor Company, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

I,This is an appeal from a district court judgment granting a writ of mandamus in favor of Select Motor Company, Inc. ordering the State of Louisiana, Department of Public Safety and Corrections, through its Office of Motor Vehicles, to issue a motor vehicle title. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On December 30, 2003, Plaintiff/Appel-lee, Select Motor Company, Inc. (Select Motors), sold a 1972 Chevrolet Chevelle motor vehicle bearing vehicle identification number (VIN) 1D37U2R511577 to Nicholas E. Thomas (Thomas). A registration certificate for the vehicle was then issued by the Defendant/Appellant, State of Louisiana, Department of Public Safety and Corrections, through its Office of Motor Vehicles (OMV), to Thomas on March 11, 2004. Sometime and somehow thereafter, Thomas lost the vehicle to Gene’s Used Parts and Wrecker Service (Gene’s). On May 5, 2004, Gene’s submitted an “Affidavit of Physical Inspection for Vehicle Identity Verification” to OMV; however, the VIN was incorrectly identified as being 10 37U2R511577, instead of ID 37U2R511577. Notwithstanding the incorrect VIN, on May 11, 2005, OMV issued a “Permit to Sell” with the incorrect VIN to Gene’s. On July 20, 2004, Select Motors re-purchased the vehicle from Gene’s. During this transaction, Select Motors noticed the incorrect VIN and submitted another “Affidavit of Physical Inspection for Vehicle Identity Verification” to the OMV on July 27, 2004, with the correct VIN. On August 4, 2004, the OMV issued both a “Registration Certificate” and a “Certificate of Title” to Select Motors reflecting the correct VIN. Select Motors then sold the vehicle to Thera H. Hearod (Hearod) on August 16, 2004.

The conflict which forms the basis of this litigation arose when Select Motors | ¡.applied for a title in the name of Hearod. OMV refused to issue a new title, citing the previously incorrect VIN submitted by Gene’s.

On February 17, 2005, Select Motors filed a petition for writ of mandamus against the Defendant, requesting that its OMV be ordered to issue a title to Hearod. In its mandamus petition, Select Motors alleged that it followed the proper legal procedure in correcting the incorrect VIN, but OMV refused to issue a title and register the vehicle in the name of Hearod.

A hearing on the rule to show cause (mandamus proceeding) was held on March 21, 2005, wherein the Defendant, despite notice, failed to appear. After considering the evidence and exhibits introduced by Select Motors, the trial court granted the writ of mandamus and ordered the Defendant, through its OMV, to “issue title of the 1972 Chevrolet Chevelle, VIN 1D37U2R511577 to its owner, Thera H. Hearod.” Judgment was signed on March 25, 2005. On July 7, 2005, the trial court signed a judgment denying OMV’s motion for new trial. OMV, thereafter, filed the instant suspensive appeal.

ASSIGNMENTS OF ERROR

OMV asserts the following assignments of error:

1. The trial court erred in dismissing OMV’s motion for a new trial .
2. The trial court erred in ordering OMV to register the vehicle in the name of Hearod.

ISSUES

OMV presents the following issues for our review:

1. Whether the trial court’s judgment was contrary to law under La.Code Civ.P. art. 1704(A).
[a2. Whether the writ of mandamus was improper.

DISCUSSION

Louisiana Code of Civil Procedure Article 1704(A)

The Defendant contends that Select Motors failed to comply with the service requirements of La.Code Civ.P. art. 1704(A), which provides:

Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of default against the state or any of its departments, offices, boards, commissions, agencies, or instru-mentalities, a certified copy of the minute entry constituting the judgment entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel to the attorney general by registered or certified mail, or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general. If the minute entry and the petition are served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails. In addition the return receipt shall be attached to the affidavit which was filed in the record.

The Defendant argues that “nothing has been mailed and/or served upon the Louisiana Attorney General’s Office regarding the court’s judgment” as required by La. Code Civ.P. art. 1704(A). The Defendant admits in its brief the receipt of a certified letter from Select Motors on March 29, 2005, along with a notice and certificate of signing of the judgment; however, the letter was sent to the Louisiana Department of Public Safety and Corrections, not the Attorney General.

The record reflects that service of the mandamus proceeding was effectuated upon the Department of Public Safety and Corrections, Office of Motor Vehicles, on March 3, 2005, through its Assistant Secretary, Kay Hodges, at 7979 Independence Boulevard, Baton Rouge, Louisiana. Counsel for the Defendant, however, did not attend the March 21, 2005 rule to show cause. The trial court then granted Select |4Motors’ request for a writ of mandamus after verifying service upon the Defendant and considering the evidence presented.

Contrary to the Defendant’s assertion of insufficiency of service and non-compliance with La.Code Civ.P. art. 1704(A), this court notes that this action is a mandamus proceeding, not an ordinary proceeding. Louisiana Code of Civil Procedure Article 1704(A) is found in Book II of the Louisiana Code of Civil Procedure under the heading of “Ordinary Proceedings.” A mandamus proceeding is a special proceeding found in Book VII of the Louisiana Code of Civil Procedure, which authorizes the use of summary proceedings set forth in Book V under the heading of “Summary and Executory Proceedings.” Because a mandamus action is a summary proceeding, and not an ordinary proceeding, La. Code Civ.P. art. 1704(A), applicable to default judgments in an ordinary proceeding, is inapplicable in the case sub judice. Select Motors did not seek the confirmation of a default judgment against the State, or any of its departments. Select Motors sought a writ of mandamus to compel the performance of a ministerial duty required by law pursuant to La.Code Civ.P. art. 3862. We find Defendant’s argument of insufficiency of service of process and noncompliance with La.Code Civ.P. art. 1704(A) to be without merit.

| ¡Mandamus Cause of Action Compelling OMV to Issue Title

The Defendant contends that the trial court erred in ordering OMV to register the vehicle in the name Hearod. OMV asserts Select Motors’ petition for writ of mandamus is improper as follows:

(1) Since the initial ‘Permit to Sell’ issued was based on an incorrect [VIN], the Permit to Sell was and is an absolute nullity. Pursuant to La. R.S. 32:1720 the actual owner of the vehicle must receive notification. That notification did not occur and thus the owner’s due process rights have been violated.
(2) The permit holder, Gene’s Used Parts and Wrecker Services [sic] had no legal right to sell or transfer the 1972 Chevelle vehicle. Therefore, Select motors never had a true ownership interest so they also had no legal right to sell or transfer the vehicle.
(3) Pursuant to [La.Code Civ.P. art.] 3862, mandamus is improper as relief via ordinaria was and is available. No ministerial duty existed to register the improperly obtained vehicle.

With reference to the Defendant’s assertions in (1) and (2) above, it is noteworthy that the Defendant, not the Plaintiff, issued the incorrect “Permit to Sell.” After noticing the error, it is the Plaintiff who attempted to correct it. Now the Defendant wants to stop the Plaintiff from correcting Defendant’s mistake. When this matter went awry, the Plaintiff was the owner of the vehicle with the correct registration. After the vehicle was sold, and a registration error occurred, the Plaintiff re-acquired the vehicle. When he noticed the error, the Plaintiff took the necessary steps to correct it prior to selling it to Hearod. Now that the Defendant is aware of the prior error, though corrected by the Plaintiff, it wants to deny issuance of a new and correct title to Hearod. The matter is now moot. The prior title discrepancy has been corrected. There has been no proof by any of the parties hereto of any prejudice or harm done. The Plaintiff is entitled to proceed with its sale of the vehicle to Hearod with a valid title from the Defendant.

^Finally, Select Motors asserts that the issuance of a writ of mandamus was proper according to La.Code Civ.P. art. 3862 because the delay involved in obtaining ordinary relief would cause injustice. Specifically, Select Motors asserts that due to the Defendant’s refusal to perform its ministerial duty, Hearod has filed suit against Select Motors for her inability to acquire a title to the vehicle she purchased from Select Motors. We agree. We find no merit in the arguments presented by the Defendant, and no error on the part of the trial court in issuing the writ of mandamus directing the Defendant to issue a title to Hearod.

DECREE

The judgment of the trial court is affirmed. We assess all costs of these proceedings against the Defendant/Appellant, State of Louisiana, Department of Public Safety and Corrections, in accordance with La.R.S. 13:5112 in the amount of $713.88.

AFFIRMED.

      . Although OMV assigns as error the trial court’s denial of its motion for a new trial, this issue was not briefed. Accordingly, pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4, we consider this assignment of error abandoned.

      . Louisiana Code of Civil Procedure Article 3862 provides:
      A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.


text:
    Devonia EVANS, et al. v. CITY OF NATCHITOCHES.
    No. 05-1278.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiffs/Appel-lees, Devonia Evans, et al.
    Ronald E. Corkern, Corkern & Crews, L.L.C., Natchitoches, LA, for Defendant/Appellant, City of Natchitoches.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

hOn May 16, 1997, Telethia Evans, who was eleven years old on that date, was walking home from school with her mother, Devonia Evans, when her foot fell into a manhole located on property owned by the City of Natchitoches. Her left leg fell into the partially open manhole and was trapped by the weight of the heavy manhole cover. Telethia sustained a serious injury to her left leg and knee. Suit was filed against the City of Natchitoches, contending its fault led to the injuries sustained by Telethia.

Devonia Evans testified she was walking home with Telethia when two school buses were approaching from opposite directions. They were forced to step off the street and onto the shoulder of the road. Devonia stated she was walking in front of Telethia, and almost immediately after stepping onto the grassy shoulder, she heard Telet-hia scream. When she turned around she saw Telethia with her leg down in the manhole. When she could not move the heavy cover, she screamed for help. Roy Mitchell, who was working in a nearby yard, came over and was able to lift the manhole cover enough to get Telethia’s leg out. Devonia called the power plant and told them her daughter hurt herself falling through a partially open manhole cover. She gave them her name, address, and location of the manhole cover. The next day she went and took pictures of the manhole, which had not been replaced. A few days later she called the City again and talked to a Mr. Williams about the incident and the manhole.

At trial, Roy Mitchell, testified he saw Telethia, her mother, and others walking away from the school on the day in question. He was doing yard work, when he heard Devonia Evans scream. He immediately ran and helped to free Telethia’s leg from the manhole cover. He testified Telethia was unable to walk. Mr. Mitchell stated | {.that approximately one week to two weeks prior to the incident, while sitting on his porch with Bill Williams, he saw two city employees working on the manhole. He also stated he frequently saw city employees bushhogging the area around the manhole, and could hear noises when the mower struck the manhole cover. Plaintiffs presented photographs showing that the manhole cover was marked up and scratched, which Mr. Mitchell believed may have been caused by the bushhog-ging.

Clyde LaCaze, who was superintendent of the City’s water and sewer department at the time of the accident, testified regarding the procedure employed by the City for recording and acting on complaints. He stated complaints were made to the power plant, where either a secretary or the operator at the control room fills out the complaint form. He stated if there had been an accident report filed he would have seen it, but he saw no report about an accident at the manhole in question. Mr. LaCaze further stated there were no reports about any problems or work being done at this particular manhole location. He testified it was not until approximately one year later that he became aware there had been an accident, when he was called by City personnel about the accident.

Brian Wimberly, who served as an assistant operator at the power plant, and at the time of trial was the interim utility director, testified he designed and put into effect the program for cataloging reports that came into the control room. In contrast to Mr. LaCaze’s testimony, Mr. Wim-berly stated that the secretaries do not fill out forms. He testified all complaints are supposed to be transferred to the control room operator. Mr. Wimberly felt it was highly unlikely that a trouble report would get lost, but acknowledged if the call came in and was put into the wrong category, it would not have been found.

The trial court rendered judgment in favor of plaintiffs finding the City liable |sfor the injuries sustained by Telethia. The trial court noted the discrepancies in the various witnesses’ testimony, and specifically stated it relied on Mr. Mitchell’s unbiased and detailed testimony that City workers in the days or weeks prior to the accident worked on the manhole in question. The trial court also found that neither Devonia nor Telethia Evans were at fault in the occurrence of the accident. Devonia acted reasonably in instructing her daughter to walk onto the grassy shoulder of the road to avoid the oncoming buses. Telethia testified she did not see the manhole because she was paying attention to the oncoming buses. The trial court gave the following reasons for its award of damages:

The Court finds that Telethia Evans sustained a serious and painful injury to her knee and leg when her leg fell in the manhole on May 16, 1997. She was only eleven years old when she was hurt. Telethia was not suffering from any injury prior to the accident, nor was she in any pain prior to the accident. The accident occurred; she sustained an injury and thereafter had serous problems with her knee and leg. She ultimately had to have surgery on her knee on November 14, 2000, over three years after the initial injury. She continues to have problems with her knee swelling and giving way or locking from time to time. The Court viewed her knee and leg and noted that they are disfigured as well. In addition, the early signs of arthritis have already appeared. In November 2000, Dr. Ferrell had to perform surgery on Telethia to repair a torn ACL which he testified was related to the original injury. Dr. Ferrell testified that Telethia has developed early arthritis as a result of her injury, which more likely than not, will get progressively worse. The doctor has found that Telet-hia has a 20% permanent partial impairment of the knee as a result of her leg injury.
As a result of the injury, Telethia has been in three casts, four or five braces and has had to use crutches for extended periods. Telethia has been dealing with this injury since 1997, from the time she was eleven years old and in the fourth grade. Aside from the significant pain for a youngster (she often classified her pain level at the doctor’s office at “10”), she has virtually missed out on the active things that children do when they are growing up. Her medical records indicate warnings against participating in sports activities over extended periods. She has missed out on the opportunity to try things out and to develop interests in physical activities and sports. There were periods during which she has had to stay home.
The injury has affected Telethia both physically and emotionally. At trial she appeared depressed and withdrawn. Her mother testified to her unhappiness in school as a result of other children teasing her and because of her inability to do many things. She began having trouble in |4schooI and fell into problems with other students. In addition to the normal problems of growing up, she was saddled with persistent pain and immobility and was estranged from normal kids. The accident occurred right after she was chosen as cheerleader and destroyed her ambition of being a cheerleader, every little girl’s dream. She was unable to join her friends on the trip to Six Flags. She was unable to continue on the dance line. Telethia lost her youth. If she had been an adult when this happened, one might be able to say she could go on to do the things she was missing out on later. However, Telethia cannot go back and be a fifth or sixth grader, or go back and enjoy her junior high or high school. The period in children’s lives is when they would be exposed to new experiences, when they would “test the water” and perhaps find out that basketball or soccer or dancing are wonderful and choose to make that a part of their lives. For Telethia, that cannot be replaced. She has now had to face the prognosis of the doctors, that she will have to learn to live with her medical condition, pain, and the concomitant limitations, since, according to the doctor, it will never get any better and will surely get worse. The Court finds that her injuries and pain were caused by the accident, and that her medical treatment was necessitated by the accident.
For the above and foregoing reasons, the Court awards medical expenses to plaintiff in the amount of $24,822.58 and general damages as follows:
(1) $150,000.00 for past physical and emotional pain, suffering and other losses; and
(2) $100,000.00 for future pain, suffering and other losses.

The City appealed the trial court’s judgment, arguing the trial court “erred in finding that the City was negligent in failing to inspect, repair, warn, or cover the manhole in question; Devonia and/or Tel-ethia Evans were negligent in failing to observe an obvious hazard and avoid it; admissible medical evidence demonstrated that injuries alleged by plaintiff-appellee were unrelated to the accident in question, and the damage award was excessive.” Plaintiffs answered the appeal and argue the City’s appeal is frivolous and entitles them to damages pursuant to La.Code Civ.P. art. 2164.

ANALYSIS

Initially, the City contends the trial court manifestly erred in finding it was liable to plaintiff and that Telethia and/or her mother were not guilty of some comparative fault in failing to avoid an obvious hazard. The trial court gave ^extensive, well-written reasons for judgment on the issue of liability, which appears in the record as follows:

While there were discrepancies in all of the witnesses’ testimonies, some of which must surely be due to the extensive passage of time, the Court finds that the only truly unbiased witness who testified at trial was Mr. Mitchell. He testified plausibly and in great detail about the occurrences at issue. His testimony concerning the accident itself is consistent with the testimony of Telethia and her [mother.] The court believes he saw a City sewage maintenance truck at the manhole in question, prior to the accident and that the men failed to properly close the manhole, thus creating a dangerous condition through their negligence.
The report system used by the City, while well planned by Mr. Wimberly was clearly not well followed or implemented, as indicated by the contradictory testimony of Mr. LaCaze. LaCaze’s testimony concerning how and when records were kept was inconsistent with that described by Mr. Wimberly, who designed the reporting system. Consequently the existence of records, or not, provides the court with little or no information, and is consequently of no help to the Court in reaching a decision.
However, both men did testify that if a problem is reported, and the workers respond and find no problem, there may be no record. Consequently, it is clearly possible, and more likely than not, that a sewage complaint was made (prior to the accident), the City responded, the men opened the manhole and went down to do work, found nothing “to fix,” therefore “did no work” and consequently there was no report.
There is no evidence that anybody other than City employees opened that manhole. Mr. Mitchell, who worked in the garden next to the manhole daily, did not see anyone else opening the manhole. Mr. Wimberly’s testimony in this regard, was mere speculation and the information must not have been significant to him or others as it appears to have never even been mentioned during the eight-year period that this matter has been pending.
The Court finds the City liable for the injuries sustained by Telethia Evans. The Court finds further that Devonia Evans acted reasonably when she stepped onto the grassy shoulder of the road to avoid the school buses and instructed her daughter to do so as well. In addition, Devonia may well have already passed the manhole when she and Telethia left the roadway (Devonia was ahead of Telethia), and may not have even been in a position to be able to see the manhole at all. Devonia acted as a responsible parent, seeing to the safety of her child. She should have been able to rely on the safety of the grassy shoulder of the road. Therefore, the Court finds no negligence on the part of Devo-nia Evans.

Factual findings of the trial court will not be disturbed in the absence of manifest error. An appellate court’s reversal of a trial court’s factual finding 1 ^necessitates a determination that the record does not support the existence of a reasonable factual basis for the finding, such that it is clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Our review of the record finds a reasonable factual basis existed for the trial court’s liability determinations, and, as such, it cannot be manifestly erroneous.

The City also contended the injuries suffered by Telethia were unrelated to her fall into the manhole. Specifically, the City argues Telethia’s Osgood-Slaters Disease was unrelated to the fall. We disagree. The trial court noted both Dr. Rambach and Dr. Ferrell were of the opinion that the Osgood-Slaters Disease was related to Telethia’s trauma/injury, and became symptomatic due to the fall. This was a reasonable interpretation of the medical evidence by the trial court, and we will not disturb it on review.

The City also argued certain medical records generated by Dr. Rambach’s office were improperly excluded at trial. The excluded evidence consisted of notations made by a nurse that questioned whether the Osgood-Slater’s Disease was related to the fall. Although stating nurse’s notes which record treatment or care given by the nurse would ordinarily be a part of the medical record for purposes of La.R.S. 13:3714, the trial court found the notes in question did not concern treatment the nurse had given the patient and, therefore, were not medical records for purposes of R.S. 13:3714. The trial court also stated:

In addition the reliability of the statements) or questioned document(s), (in this case, pages 111 and 199) is seriously called into question by other trial testimony and evidence. Other evidence and testimony contradict the notations found on- pages 111 and 199. Both doctors appear to have been of the opinion that the Osgood-Slaters Disease was related to the child’s injury/trauma. Consequently, the weight given to the questioned documents, should they be admitted, would be extraordinarily low.
17Considering the above, in the present case, the probative value of the questioned documents is substantially outweighed by the danger of unfair prejudice, consequently, the questioned documents should not be admitted.

We do not find the trial court abused its discretion in determining the probative value of the nurse’s notations was outweighed by the danger of unfair prejudice. Further, we find the trial court decided the case based on the medical evidence in toto, and the record supports her conclusion that the trauma suffered by Telethia caused her injuries.

Lastly, the City argues the damages awarded by the trial court were excessive. The trial court offered extensive reasons for its awards, which were set forth above. Prior to the accident, Telet-hia was not suffering from any pain or injury. As a result of the accident, she eventually had surgery to repair a torn ACL. Telethia suffers from early arthritis, which the doctors believed would only get progressively worse. She has a twenty percent permanent, partial impairment of the knee, which is also disfigured. The trial court voiced great concern over the devastating effects Telethia’s injuries had on her childhood, and concluded that because of the injuries she suffered “Telethia lost her -youth.” We find no abuse of discretion in the trial court’s damage awards.

The plaintiffs argue they are entitled to damages for a frivolous appeal under La. Code Civ.P. art. 2164. Damages for a frivolous appeal will not be awarded unless it appears that the appeal was taken solely for the purpose of delay, that serious legal questions are not raised, or that the attorney does not seriously believe in the position he advocates. Robinson v. Thornton, 96-1329 (La.App. 3 Cir. 10/29/97), 705 So.2d 745, writ denied, 97-2963 (La.2/6/98), 709 So.2d 739. We do not find the City’s appeal was taken solely for the purpose of delay or that counsel did not seriously believe in the position advocated. Therefore, we deny damages for frivolous appeal.

IsDECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of this appeal are assessed to the City of Natchitoches.

AFFIRMED.