author: JAMES F. McKAY, III, Judge.

text:
    STATE of Louisiana v. Phillip TAYLOR.
    No. 2007-KA-0069.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2007.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Battle Bell, IV, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   JAMES F. McKAY, III, Judge.

It STATEMENT OF CASE

On February 8, 2006, the State of Louisiana charged Phillip Taylor with one count of simple possession of cocaine. At his arraignment on May 22, 2006, he pled not guilty. The court heard and denied his motions to suppress the evidence and statement on June 9, 2006. On June 22, 2006, a six-person jury found him guilty as charged. On September 15, 2006, the court sentenced him to serve three years at hard labor. Also on that date the court denied the defendant’s motion to reconsider sentence but granted his motion for appeal. The State has filed a multiple bill in this case, but the hearing has not yet been held.

FACTS

At trial, Officer Brandon Singleton testified that he and his partner were on patrol on the evening of January 8, 2006. At approximately 10:00 p.m. they were driving down Forshey Street toward Carroll-ton Avenue. As they neared the corner of Fern Street, they noticed the defendant Phillip Taylor riding a bicycle erratically down Fern Street, swerving back and forth. Officer Singleton testified that when the defendant got near the corner of Forshey, he rode his bicycle directly into a large, deep pothole and fell off the bike. Officer Singleton testified he got out of | Jus ear and walked over to the defendant to see if he needed help, and when he got near him he could smell the odor of alcohol emanating from the defendant. He stated that because the defendant’s speech was slurred and he could barely stand, he believed that he was intoxicated. Officer Singleton testified that his partner picked up the defendant’s bike, while he arrested the defendant for public intoxication. He advised the defendant of his rights and searched him incidental to his arrest. He seized a rock of what appeared to be crack cocaine from the left front pocket of the defendant’s jeans. The officers again advised the defendant of his rights and asked him if the crack was his. He admitted it was. The officers then took the defendant to Central Lockup and placed the evidence on the books at Central Property and Evidence.

The defendant denied having any cocaine that night. He testified that he was returning from a painting job to his house on Forshey when he saw the officers, who were talking with other people in the area. He testified that he dodged the hole on Fern Street, but the officers, who were in two cars, called him over and asked where he was going. He testified that he told them he was going to his house, and then they asked him why he was out of breath. He testified that he told them he had just come from a job, and they told him to get against their car. They then asked him if he had been drinking, an accusation he denied. He insisted that he did not drink, but they said he smelled like alcohol and that he was going to jail for public drunkenness. He testified that after one officer frisked him and found nothing, another officer told the first officer that he did not search the defendant well enough, and that officer then frisked him and then announced: “Oh, look what I got.” The defendant testified that the officer, however, never showed him any drugs. The defendant insisted that when the officers asked who the drugs were |sfor, he responded that they were not his. The defendant admitted he had prior convictions for simple robbery and burglary, and he denied using crack cocaine. After further questioning, he admitted having two convictions for possession of cocaine, but he insisted he pled guilty to both charges not because he was guilty but instead to be allowed to go home the day of the pleas.

ERRORS PATENT

A review of the record reveals no patent errors.

ASSIGNMENT OF ERROR

By his sole assignment of error, the defendant contends that the trial court erred by denying his motion to suppress the evidence. Specifically, he argues that the officers used his supposed intoxication as a pretext to arrest him, rather than issue him a citation. Without this arrest, the officers would not have searched him and found the cocaine. The officer’s testimony at the suppression hearing basically tracked that he gave at trial. It is clear that the officers seized the cocaine during a search incident to his arrest for public intoxication. See State v. Wilson, 467 So.2d 503 (La.1985); State v. Dowell, 2003-1143 (La.App. 4 Cir. 9/24/03), 857 So.2d 1098; State v. Fontenot, 2001-0178 (La.App. 4 Cir. 8/8/01), 795 So.2d 410. Thus, if the officers were justified in stopping and arresting the appellant for public intoxication, the search incident to his arrest was lawful.

In State v. Thompson, 2002-0333, pp. 5-6 (La.4/9/03), 842 So.2d 330, 335, the Court set forth the standard for determining whether an officer can lawfully detain a defendant:

Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of particular facts and circumstances to justify the infringement on | individual’s right to be free from governmental interference. State v. Varnell, 410 So.2d 1108 (1982); State v. Bickham, 404 So.2d 929 (La.1981); State v. Blanton, 400 So.2d 661 (La.1981); State v. Ault, 394 So.2d 1192 (La.1981).... In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, “the whole picture,” must be considered. State v. Belton, 441 So.2d 1195, 1198 (La.1983) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).)

By contrast: “Probable cause to arrest exists when the facts and circumstances known to the officer, and of which he has reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing the person to be arrested has committed an offense.” State v. Parker, 2006-0053, p. 2 (La.6/16/06), 931 So.2d 353, 355. See also Wilson; Dowell.

§ 54-405 of the New Orleans Municipal Code provides: “It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.” See State v. Cambrice, 2004-0827, 2004-0828 (La.App. 4 Cir. 9/8/04), 884 So.2d 628; State v. Smiley, 99-0065 (La.App. 4 Cir.3/3/99), 729 So.2d 743. In Cambrice, this court found that officers were justified in approaching the defendant who was sleeping on a bench in a public area to determine if he was actually asleep or if he needed medical assistance. Furthermore, this court found that because of the defendant’s condition (strongly smelling of alcohol and slurring his words), he was a danger to the public, and the officers were justified in arresting him for public intoxication.

Here, the officers saw the appellant riding toward them on his bicycle, weaving back and forth. They then saw him ride into a deep pothole and fall off the bike. The officers did not need either reasonable suspicion or probable cause to | ¡¡approach him merely to see if he was hurt. See State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179; State v. Handy, 2002-1025 (La.App. 4 Cir. 9/25/02), 828 So.2d 1207. Once Officer Singleton approached the appellant, he smelled the odor of alcohol emanating from him. In addition, the officer testified that the defendant could not stand and that he slurred his speech. Because he had already ridden into a pothole and fallen off his bicycle, the officers were justified in believing that the appellant was both intoxicated and a danger to himself. Thus, the officers had probable cause to arrest him for public intoxication.

The defendant argues, however, that the officers were not justified in arresting him because they should have merely issued him a citation for public drunkenness, rather than arresting him. At the suppression hearing, the officer testified that he could not write the defendant a traffic citation for drunk driving because he did not have any traffic citation books, so he wrote him a citation for public intoxication. The defendant insists that a citation would have been sufficient and that his arrest was merely a pretext to search him. In support, he cites State v. Harris, 05-0741 (La.App. 5 Cir. 8/26/05), 916 So.2d 284, where the court found that the arrest and search of a defendant for a littering violation was constitutionally unreasonable. Harris is distinguishable. As per La. C.Cr.P. art. 211, an officer may issue a summons rather than arrest a defendant for a misdemeanor under certain circumstances, including that the officer “has no reasonable ground to believe that the person will cause injury to himself or another.” La.C.Cr.P. art. 211 A(2). Here, the officers had already seen the appellant ride into the pothole and fall off his bicycle. The officers were justified in believing that the appellant could have been a danger to himself if they merely issued him a citation and let him leave. Indeed, in Cambrice, this court found that Rthe officers were justified in arresting the defendant who was found sleeping on a bench in a public area. Thus, the officers in this case were justified in arresting the appellant for public drunkenness.

The defendant also argues that the arrest was merely a pretext for the officers to search him. However, even if the officers’ subjective intentions were to stop and search the appellant, the fact that they had probable cause to believe he violated the ordinance against public intoxication supported the lawful arrest. See Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Cheatham, 2004-0095 (La.App. 4 Cir. 5/19/04), 876 So.2d 137.

In State v. Scull, 93-2360, p. 9 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245, this court stated: “The trial court is vested with great discretion when ruling on a motion to suppress.” See also State v. Jones, 2002-1931 (La.App. 4 Cir. 11/6/02), 832 So.2d 382; State v. Briley, 2001-0143 (La.App. 4 Cir. 10/3/01), 798 So.2d 1191. Here, there is nothing in the record before this court to conclude that the trial court abused its discretion by denying the motion to suppress the evidence. This claim has no merit.

Accordingly, we affirm the appellant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Mary Josephine PARKER v. B & K CONSTRUCTION COMPANY, INC., Liberty Mutual Insurance Company, and Sewerage and Water Board of New Orleans.
    No. 2006-CA-1465.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2007.
    Judy A. Pace, New Orleans, LA, for Plaintiff/Appellant.
    D. Russell Holwadel, Johnston, Hoefer, Holwadel <& Eldridge, LLC, New Orleans, LA, and Harold D. Marchand, New Orleans, LA, for Sewerage & Water Board of New Orleans.
    John F. Deas, Law Offices of Marvin H. Olinde, Metairie, LA, for B & K Construction Co., Inc. and Liberty Mutual Insurance Company.
    Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

| Plaintiff-Appellant Mary Josephine Parker appeals the trial court’s grant of Defendants-Appellees’ Exception of Prescription. For the reasons that follow, we affirm.

FACTS

Mary Josephine Parker (hereafter “Ms. Parker”), Appellant, alleges that she sustained injuries after falling over a wire fence that was blocking the sidewalk of the 900 block of Melpomene Street in New Orleans on February 1, 2005. The sidewalk was adjacent to a construction site where repairs were being performed by B <& K Construction Company for the Sewerage and Water Board of New Orleans. On March 6, 2006, counsel for Ms. Parker filed suit. B & K Construction Company, Liberty Mutual Insurance Company, and the Sewerage and Water Board of New Orleans (hereafter collectively “Appellees”) subsequently filed exceptions of prescription, arguing that the petition was prescribed on its face because it had been filed more than one year after the alleged incident.

^PROCEDURAL HISTORY

After hearing on July 21, 2006, the trial court took the matter under advisement and ultimately granted the exceptions of prescription on July 25, 2006. This appeal followed.

STANDARD OF REVIEW

This Court, in Katz v. Allstate Ins. Co., set forth the appellate standard of review for a grant an of exception of prescription:

[i]n reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Davis v. Hibernia National Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61. When evidence is received on the trial of the peremptory exception, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard as articulated in Stobart v. State Through Dept. of Transp. And Development, 617 So.2d 880 (La.1993).

Katz v. Allstate Ins. Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444.

Additionally, it is well-settled that “the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes ‘against prescription and in favor of the claim that is said to be extinguished.’ ” Katz, 917 So.2d at 445 (quoting Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214, and Louisiana Health Service v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1098).

| .-¡DISCUSSION

Enacted after Hurricanes Katrina and Rita, La. R.S. 9:5824 served to suspend and/or extend prescriptive deadlines due to the catastrophic statewide effects on the judicial system. The statute provides, in pertinent part:

Notwithstanding the provisions of R.S. 9:5822 or 5823, a party who is domiciled within the parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or Vermilion, or whose cause of action arose within such parishes or whose attorney is domiciled within or has a law office within such parishes, may seek in any court of competent jurisdiction in this state a limited suspension and/or extension of prescription or peremption periods or other legal deadlines, beyond the termination dates provided in R.S. 9:5822 and 5823, by contradictory motion or declaratory judgment. The party seeking an additional suspension and/or extension, in accordance with the provisions of this Section, shall bear the burden of proving by a preponderance of the evidence that the motion was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. If the court grants the motion, the prescription or peremp-tive period or other legal deadline shall be suspended or extended for a period not to exceed thirty days from the date of the granting of the motion. This limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006.

La. R.S. 9:5824 B(l)(emphasis added). The failure to seek such relief, however, does not preclude a party from overcoming an exception of prescription; the statute further provides that “[t]he failure to file the motion [for extension or suspension of prescription or preemption periods] authorized in Paragraph (1) of this Subsection shall not preclude a party from using the basis of the motion as a defense to an exception of prescription.” La. R.S. 9:5824 B(2)(emphasis added). Accordingly, 14for a suspension or extension of prescription to apply, a party must have sought a suspension or extension prior to June 1, 2006, in the appropriate jurisdiction.

In Appellant’s sole assignment of error, it is argued that the trial court erred in finding that Appellant failed to meet the burden of proving that she was permitted an extension of prescription for filing her lawsuit to March 3, 2006. Appellant listed several reasons for not filing suit prior to March 3, 2006, including the following: that the instant case was originally handled by another attorney, Harold P. Ducloux, III, with whom counsel for Appellant shared an office; that Mr. Du-cloux evacuated after Hurricane Katrina and requested that counsel for Appellant manage all of his files, which exceeded two hundred in number, until he could return to New Orleans; that Mr. Ducloux’s files were not organized; that counsel for Appellant was not provided with a list of active cases or approaching deadlines, nor a list of which files were open and which were closed, nor a list of which files were civil matters and which were criminal matters; and finally, that counsel for Appellant had also evacuated and was thus unable to enter New Orleans to access the files for an extended period of time. Therefore, counsel for Appellant maintains that it was not possible to discover that the prescriptive deadline in this case was approaching, and that as a result of the above-mentioned factors, suit was filed at the earliest time practicable, on March 6, 2006.

Because Appellant’s petition is prescribed on its face, Appellant bears the burden of proving that the claim has not prescribed:

|s[w]hen an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. However, if prescription is evident on the face of the pleadings ... the burden shifts to the plaintiff to show the action has not prescribed.

Katz, 917 So.2d at 445 (citing Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992) and Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49).

Additionally, assuming arguendo that counsel for Appellant had actually filed a motion for extension or suspension of prescription as clearly mandated by La. R.S. 9:5824, Appellant would still have had to demonstrate, by a preponderance of the evidence, that the claim was filed at the earliest time practicable and that “but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met.” La. R.S. 9:5824. In this case, however, not only did Appellant fail to seek either a suspension or extension of prescription pursuant to 9:5824, but Appellant also failed to set forth any evidence in support of the argument that the claim was filed at the earliest time practicable.

Although we sympathize with Appellant’s plight, the petition is irrefutably prescribed on its face, and moreover, counsel for Appellant failed to seek the proper remedy under La. R.S. 9:5824. Even under the statute’s provision allowing counsel for Appellant to use the basis of an unfiled motion requesting a suspension or extension of legal deadlines as a defense to an exception of prescription, we find that counsel for Appellant did not establish that the suit would have been timely filed but for the effects of hurricanes Katrina and Rita. Rather, counsel for Appellant merely demonstrated that the disorder of Mr. Du-cloux’s files was the primary impediment to the timeliness of filing the lawsuit. We do not believe that such a situation was envisioned as a basis for extending prescriptive deadlines under La. R.S. 9:5824. Therefore, in this case, we find that the trial court was not | ^manifestly erroneous in its determination that Appellant failed to meet the burden of proving that her claims would have been timely filed but for the effects of the hurricanes. Appellant’s assignment of error therefore lacks merit.

For the foregoing reasons, the judgment of the trial court is hereby affirmed and amended to include Liberty Mutual in the judgment granting the exceptions of prescription.

AFFIRMED AS AMENDED.

      . The trial court’s judgment granted the exceptions of prescription in favor of B & K Construction Company and the Sewerage and Water Board of New Orleans; however, the judgment did not include a disposition as to the exception filed by Liberty Mutual Insurance Company. Because this appears to be a technical error, we amend the trial court's judgment to reflect a judgment in favor of Liberty Mutual Insurance Company for its exception of prescription.

      . The other relevant statutes, La. R.S. 9:5822 and 9:5823, provide no relief to Appellant in this case, as those statutes explicitly suspend prescription only for deadlines or prescriptive periods that would have occurred between August 26, 2005 and January 3, 2006. In this case, the prescriptive period lapsed in February 2006. Moreover, that legislation only suspended prescriptive deadlines through January 3, 2006, and because the lawsuit in this case was not filed until March 2006, La. R.S. 9:5822 and 9:5823 are thus inapplicable.

      . Pursuant to Louisiana Civil Code article 3492, delictual actions are subject to a libera-tive prescription of one year, which begins to run from the date that the alleged injury is sustained. La. Civ.Code art. 3492.

      . Appellant additionally set forth one "Issue Not Presented to the Trial Court,” maintaining that an issue existed regarding whether Appellant’s appeal was timely filed "when the Notice of Signing of Judgment was sent to Plaintiff's Counsel at an incorrect address and when the Judgment did not appear in the Court's record until fifteen days after it was signed.” Because Appellant's appeal was timely filed, we find it unnecessary to address this issue.


author: EDWIN A. LOMBARD, Judge.

text:
    Dat NGUYEN v. William R. GRAFTON, Deborah M. Grafton, Liberty Mutual Insurance Company, Jason F. Schilling, New Hampshire Indemnity Company and Allstate Insurance Company.
    No. 2007-CA-0046.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2007.
    Kevin O’Bryon, O’Bryon & Schnabel, PLC, New Orleans, LA, for Plaintiff/Appellant.
    James A. Stapp, Law Offices of Harold G. Toscano, New Orleans, LA, for Allstate Insurance Company.
    Kevin T. Phayer, Law Office of Marvin H. Olinde, Metairie, LA, William R. Grafton, Deborah M. Grafton and Liberty Mutual Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|2Plaintiff, Dat Nguyen (“Nguyen”), appeals the trial court’s judgment on the basis that the trial court’s general damage award is simply too low to compensate him for the injuries he sustained. We affirm the trial court’s judgment.

Relevant Facts

This case arises out of two separate automobile accidents that occurred on February 2 and February 9, 2004, respectively. The first accident was between Nguyen, who was insured by Allstate, and Defendant, William Grafton (“Grafton”), who was insured by Liberty Mutual. In this accident, Nguyen drove around stopped traffic and struck Grafton’s automobile broadside while Grafton was making a left turn. The second accident was between Nguyen and Jason Schilling (“Schilling”), who was insured by New Hampshire Indemnity Company. In this accident, Schilling sideswiped Nguyen’s automobile while they were both traveling in the same direction.

Following the accidents, Nguyen began physical therapy and medication for cervical, thoracic and lumber strains under the care of Dr. Stewart Altman. In September 2004, Nguyen began seeing Dr. Kenneth Adatto, who prescribed medication and home exercises. An MRI in September 2004 showed two disc | sprotrusions in Nguyen’s cervical spine. Nguyen’s doctors determined that he should manage his pain with medication. No surgery was recommended at that time. The records of both doctors were admitted into evidence without live testimony. Included in these records were reports of Dr. Altman’s treatment of Nguyen for a neck injury resulting from a 2001 automobile accident.

Trial Court

Prior to the September 13, 2006 trial, Nguyen settled his claim against Schilling and his insurer for $10,000. Nguyen filed into the record a stipulation that his remaining claims against Grafton, Liberty Mutual, and Místate did not exceed $50,000. Nguyen also stipulated that he had received $3,425 from Allstate under the Medical Payments Coverage in his own policy.

The matter came for trial on September 13, 2006. The trial court determined that Nguyen was 60% at fault for the first accident and 0% at fault for the second accident. The court determined that each accident contributed equally to Nguyen’s injuries and that the symptoms could have been related to Nguyen’s prior accident in 2001. The court also found that Nguyen did not meet his burden of proving that surgery would be necessary in the future. In regard to damages, the trial court found that Nguyen’s general damages resulting from both accidents amounted to $35,000 and his total special damages for medical expenses amounted to $8,819. Allstate and Liberty Mutual were ordered to pay their proportionate share of the damages, less credits for the monies previously paid by Shilling and Allstate for the second accident.

Nguyen filed a motion for devolutive appeal seeking review of the trial court’s general damages award. On appeal, Nguyen claims that an award of $35,000 for two herniated cervical discs is an abuse of discretion. According to pNguyen, $90,000 would be a more adequate award for general damages in this case. He does not challenge the trial court’s determination of fault or allocation of damages.

Standard of Review

The standard of review of damage awards is whether, after an articulated analysis of the facts, the court finds that the trial court abused its great discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). After an analysis of the facts and circumstances peculiar to the particular case and the particular plaintiff, an appellate court may conclude that the trial court’s award is inadequate or excessive. Id. at 1340. Only then may the appeal court resort to prior awards, and only for the purpose of determining the highest or lowest point that is reasonable within that discretion. Id.

Quantum Analysis

Employing the foregoing appellate standards, we conclude that the trial court did not abuse its discretion in awarding Nguyen $35,000 in general damages. Parenthetically, a consideration of comparative awards reveals similar results. For example, in Misewicz v. Gamso, 03-1052 (La.App. 4 Cir. 10/22/03), 860 So.2d 119, this Court awarded $49,942 in damages to a plaintiff diagnosed with a mild disc herniation for which he was treated conservatively. ($20,592 of the award was for lost wages). And, in Lindsey v. USAA Property and Cas. Ins. Co., 02-0797 (La.App. 4 Cir. 10/09/02), 830 So.2d 335, this Court awarded $25,000 in general damages to a plaintiff who suffered damage to two lumbar discs and testified at trial that he was still occasionally symptomatic and surgery was not recommended.

In Vasalle v. Wal-Mari Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 331, the La. Supreme Court reinstated a jury award of $25,000 in general damages for a right disc protrusion ant L5-S1 and some mild diffused disc bulging from L2-3 to L-4-5 to a plaintiff who had had two prior accidents in which her back was injured. Although the trial judge had increased the jury’s award to $250,000, the Supreme Court reinstated the jury’s award on the basis that the jury’s award indicated that it was possible that the jury found that the store accident was not the sole cause of plaintiffs back problems and medical expenses. Id., p. 17, 801 So.2d at 341.

In his appeal brief, Nguyen cites Messina v. Allstate Ins. Co., 572 So.2d 823 (La.App. 4 Cir.1990), wherein this court held that “$35,000 is the lowest amount which could have been awarded for ‘about as minimal a herniated disc as can be.’ ” 572 So.2d at 824.

After a review of decisions relating to injuries similar to Nguyen’s in this case, we find that the trial court’s general damage award is within the range of awards for similar injuries and the trial court did not abuse its discretion. Accordingly, we affirm the trial court’s judgment awarding general damages in the amount of $35,000 to Nguyen for injuries sustained in the accidents in question. Costs of this appeal are to be assessed to Appellant.

AFFIRMED.


author: DAVID S. GORBATY, Judge.

text:
    Jeffrey A. MECKSTROTH v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007-CA-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2007.

      Jeffrey A. Meckstroth, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Bernard L. Knobloch, Jr., Louisiana Department of Transportation and Development, Legal Section 47, Baton Rouge, LA, Lawrence E. Marino, Oats & Hudson, Lafayette, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   DAVID S. GORBATY, Judge.

| Jeffrey A. Meckstroth appeals a judgment maintaining an exception of no cause of action in favor of the Louisiana Department of Transportation and Development. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Jeffrey A. Meckstroth (Mr. Meckstroth) filed suit against the Louisiana Department of Transportation and Development (DOTD), seeking a writ of mandamus requiring DOTD to build a sound barrier between his home and the expanded Interstate 10 (I — 10). Mr. Meckstroth further sought a judgment declaring that such relief was appropriate.

In response, DOTD filed peremptory and declinatory exceptions arguing, among other things, that plaintiff could not file a mandamus action against DOTD because the building of sound barriers was a discretionary act, not a ministerial duty. The trial court maintained the exception of no cause of action, allowing Mr. Meckstroth twenty days to amend his petition.

li>Mr. Meckstroth filed a first amending petition again seeking a writ of mandamus. Additionally, Mr. Meckstroth prayed for damages, but made no specific allegations of fact to suggest a basis for damages. DOTD again filed exceptions. In his response memorandum, Mr. Meckstroth stated that he no longer wished to pursue a writ of mandamus; however, his argument remained that DOTD should have built sound barriers in front of his property, and that he was entitled to damages because it did not.

The trial court maintained DOTD’s exception and did not permit Mr. Meckstroth to amend his petition further. This appeal followed.

DISCUSSION:

The peremptory exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy. La. Code Civ. Proc. art. 927 A(4); Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, 131. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. Proc. art. 931. The court reviews the petition and accepts all 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 entitled to the relief sought. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235-36 (La.1993); Kuebler v. Martin, 578 So.2d 113 (La.1991); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). Because Louisiana is a fact-pleading 1 ¡jurisdiction, mere legal conclusions, unsupported by facts, are not sufficient to set forth a cause of action. State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 01-0458 (La.App. 3 Cir. 6/20/01), 790 So.2d 673, 678. The reviewing court should conduct a de novo review because the exception raises a question of law and the trial court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; Wright v. Louisiana Power & Light, 06-1181, p. 8 (La.3/9/07), 951 So.2d 1058, 1069

In his amended petition, Mr. Meckstroth states that he (his home) was identified by DOTD as a receiver of sufficient noise to warrant a sound barrier; that such a barrier would be reasonable to build; but, that because the area which included Mr. Meckstroth’s home was of low population density, building a sound barrier would not be reasonable. He alleges that DOTD’s conclusion conflicted with its statutory directive to not separately consider areas where a change of density occurred.

Our review of the amended petition reveals that, although Mr. Meckstroth removed the specific language requesting that a writ of mandamus be issued, the “new” allegations of his amended petition are still requesting that DOTD be ordered to build a sound barrier.

DOTD argued in its exception of no cause of action, citing the applicable federal law, that the regulations only require DOTD to consider noise impacts, and what abatement may be appropriate. There is no statutory requirement that sound barriers be built.

LMandamus is therefore not an appropriate remedy. Louisiana Code of Civil Procedure art. 3863 provides that “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law....” Also see Davis v. Carter, 96-1706 (La.App. 4 Cir. 7/26/96), 677 So.2d 1147, 1151. However, a mandamus may not issue to compel performance of an act that contains any element of discretion, however slight. City of Baton Rouge v. Douglas, 04-1448, p. 1 (La.App. 1 Cir. 12/29/05), 923 So.2d 166, 169. Mandamus is an extraordinary remedy that is to be used sparingly by the courts to compel something that is clearly provided by law, and only where it is the sole available remedy or where the delay occasioned by the use of any other remedy would cause an injustice. Id.

Mr. Meckstroth also prays for damages in his amended petition. However, he alleges no facts to support a cause of action for damages. Mr. Meckstroth states in his brief, “the tort present here is a negligent determination that sound barriers were not warranted.” He further states that this negligent determination caused a diminution in value to his home. The problem with these statements is that they were never contained in a petition before the trial court.

The trial court is only allowed to consider what is contained within the four corners of the petition, and to decide if the petition states a claim upon which relief may be granted. La. Code Civ. Proc. art. 927 A(4). The original and amended | apetitions in this case do not contain any allegations of fact upon which relief may be based.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


author: PEATROSS, J.

text:
    Lawson WILHITE, Sr., Individually and O/B/O Geraldine Wilhite, (Deceased); Lawson Wilhite, Jr.; Hazelwilhite Moore; Nellie Wilhite Brown; Savanna Wilhite Walker; Diane Wilhite Turner; Larry Wilhite; Mary Wilhite Moffett; and The Estate of Connie Wilhite and B.J.W. (Minor Child of Connie Wilhite), Plaintiffs-Appellants v. David THOMPSON, M.D.; Dan LeFleur, M.D.; Medical Protective Company; Kwabena Owasu, M.D., Emcare, Inc.; and Lexington Insurance, Defendants-Appellees.
    No. 42,395-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.

      Susan E. Hamm, A.P.L.C., Stephen A. Jefferson, Monroe, for Appellants.
    Noah, Smith & Johnson, L.L.P. by Elmer G. Noah, II, Monroe, for Appellees.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| T This appeal arises from the death of Geraldine Wilhite on January 30, 2001, due to severe infection. Her heirs including her husband, Lawson Wilhite, Sr., and her estate (“Plaintiffs”) sued David Thompson, M.D. and Dan LeFleur, M.D. (“Defendants”) claiming that their treatment of Mrs. Wilhite constituted medical malpractice. The jury found in favor of Defendants and, accordingly, the trial court dismissed the action. Plaintiffs appeal. For the reasons stated herein, we affirm.

FACTS

After working Sunday night on January 21, 2001, Mrs. Wilhite started complaining of pain in her left knee. On Tuesday, her family took her to the emergency room (“ER”) at Richardson Medical Center (“RMC”) where Jay Mashburn, M.D., an ER physician, saw her. Dr. Mashburn treated her knee with a steroid injection and instructed her to see her regular doctor the following day.

Since Dr. David Thompson was Mrs. Wilhite’s regular doctor, she went to his clinic in the late afternoon on Wednesday, January 24, 2001. Mrs. Wilhite was a long-time patient and former employee of the clinic, and since Dr. Thompson was not seeing patients that day, she was seen by his partner, Dr. LeFleur. The exact nature of Mrs. Wilhite’s symptoms are disputed. Plaintiffs assert that she was dia-phoretic (sweaty) and in so much pain she could not walk. Her left knee was swollen, red and hot and her right wrist was swollen and Plaintiffs contend she presented as a very sick person. Defendants assert that Mrs. Wilhite’s joints were tender, warm and 12swollen, and that she presented symptoms of an episode of gout. They maintain that she did not look generally sick.

Dr. LeFleur aspirated the joints attempting to draw fluid from the joints, otherwise called a knee tap. He noted that the joints were dry. He then injected her knee and wrist with steroids. Dr. LeFleur then arranged for a home health nurse to draw a blood sample the next day and to continue follow-up care for 60 days. Partial results from the blood work were faxed to the clinic on Thursday, January 25, with the remainder faxed the next morning. Dr. LeFleur reviewed all the test results on Friday, January 26, and, according to him, the test results confirmed his suspicion of gouty arthritis. Plaintiffs argue, however, that the “left shift” in the white blood cell count and the levels of other indicators present in the blood work results revealed that Mrs. Wil-hite was a very sick person and were consistent with her having an infection which Dr. LeFleur failed to treat.

The home nurses visited Mrs. Wilhite in her home Thursday, Friday and Saturday. At each visit, she lay in bed the entire time and was unable to walk. Her vital signs were normal and she was afebrile, without a fever. According to one of the nurses, Mrs. Wilhite did not appear to be in a life-threatening condition.

Saturday evening, January, 27, 2001, Mrs. Wilhite began to exhibit an altered mental status. An ambulance took her to RMC in Rayville where she was evaluated by Kwabena Owusu, M.D., the E.R. physician on duty. One of the RMC nurses called Dr. Thompson concerning Mrs. Wil-hite, because he was the “on call” physician for that weekend. Mrs. Wilhite was | ¡¡admitted to RMC under the care of Dr. Thompson. Based on the information given to him by the hospital staff and nurses, Dr. Thompson suspected she was having a stroke and ordered a CT scan. He did not go to the hospital to see her, but, instead, went to his office to consult her medical chart. Shortly after 11:30 p.m., the radiologist advised Dr. Thompson that the CT scan was normal.

At the family’s request, Mrs. Wilhite was transferred by ambulance to North Monroe Hospital where she could receive a higher level of acute care. The family also requested that she be transferred to the care of Dr. Richard Smith, an internal medicine specialist. Dr. Alyce Adams, on call for Dr. Smith, accepted Mrs. Wilhite as a patient at 12:40 a.m. Sunday morning. In addition, Mrs. Wilhite was seen by Dr. Jeanette Lopez, a neurologist. Dr. Lopez initiated a work-up for infection, known as a “septic work-up.” As soon as the samples were collected, Dr. Lopez started Mrs. Wilhite on intravenous antibiotics to cover a spectrum of possible sources of the infection. She diagnosed Mrs. Wilhite with sepsis or bacteria in the blood, secondary to an infected knee joint capsule. The blood and knee cultures grew out of the same bacteria, streptococcus pneumonia.

Mrs. Wilhite arrested Sunday morning. She was placed on life support and transferred to the Intensive Care Unit (“ICU”). On Tuesday, January 30, 2001, the family decided to discontinue life support and she was pronounced dead shortly after life support was discontinued.

Mrs. Wilhite’s family and estate sued Dr. LeFleur and Dr. Thompson for medical malpractice. In particular, they fault Dr. LeFleur for not ^properly considering an infection as part of his differential diagnosis when Mrs. Wilhite visited him on Wednesday, January 24, 2001. They argue that given her presentation, as they allege it to be, and considering the results of the lab work that Dr. LeFleur received on Friday, failing to treat her for a potential infection fell below the standard of care for a family practice physician. Plaintiffs fault Dr. Thompson for not coming to the hospital when Mrs. Wilhite arrived at the hospital on Saturday. They maintain that by failing to do so, Dr. Thompson missed a critical opportunity to diagnose and treat the infection and, instead, proceeded under the false belief that Mrs. Wilhite was suffering from a stroke.

In the course of the litigation, Dr. LeFl-eur and Dr. Thompson were unable to produce Mrs. Wilhite’s medical chart. According to Dr. Thompson, he brought the chart to his office manager and requested that she secure the file after he was aware of the filing of the malpractice complaint. At some point thereafter the file was lost or misplaced. Plaintiffs requested that the trial court apply the adverse presumption of spoliation to what the medical chart would have revealed. The trial court denied their request and instead advised the jury: “Where a party failed to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to his cause.” Even considering this charge, the jury unanimously concluded that both Dr. LeFleur and Dr. Thompson met the standard of care expected of them. As previously stated, the trial court dismissed the case pursuant to the jury verdict. The trial court denied Plaintiffs’ Motion for Judgment ^Notwithstanding the Verdict and their motion for new trial. Plaintiffs appeal.

DISCUSSION

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

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

Spoliation

Plaintiffs argue that the trial court manifestly erred by not applying an adverse presumption to Mrs. Wilhite’s missing medical chart. They argue that, under the adverse presumption, the trial court should have found that Mrs. Wilhite presented at the clinic to Dr. LeFleur as a very sick person and that this description would have been supported by her chart.

A presumption may arise in the theory of spoliation of evidence when it is an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Lewis v. Albertson’s Inc., 41,234 (La.App.2d Cir.6/28/06), 935 So.2d 771, writ denied, 06-1943 (La.11/9/06), 941 So.2d 42; Holloway v. Midland Risk Insurance Co., 36,262 (La.App.2d Cir.10/30/02), 832 So.2d 1004, unit denied, 02-3247 (La.3/28/03), 840 So.2d 571. Generally, a litigant’s failure to produce evidence that is available to him raises a presumption that the evidence would have been detrimental to his case. This adverse presumption, however, is not applicable when the 17failure to produce the evidence is adequately explained. Holloway, supra. Even when the presumption applies, it is not necessarily fatal, but is one factor to weigh in adjudicating the case. Salone v. Jefferson Parish Dept. of Water, 94-212 (La.App. 5th Cir.10/12/94), 645 So.2d 747.

This court has recognized a negligence theory for a spoliation claim, but with limitations. Lewis, supra; Carter v. Exide Corp., 27,358 (La.App.2d Cir.9/29/95), 661 So.2d 698. The duty to preserve evidence is enforceable if it arose from “a statute, a contract, a special relationship between the parties, or an affirmative agreement or undertaking to preserve the evidence.” Lewis, supra; Carter, supra. In Louisiana, a physician must preserve the medical records of Ms patient for six years after the last date of treatment. La. R.S. 40:1299.96(A)(3).

We find that the trial court was not clearly wrong in refusing to apply the adverse presumption. Whether under an intentional or negligence theory of spoliation, the presumption does not apply if the failure to produce the record is adequately explained. Holloway, supra. To employ the presumption otherwise would be to treat the failure to produce evidence under the terms of strict liability, such that the mere failure to produce evidence, regardless of the reason, would trigger the adverse presumption. This is not the standard. See, e.g., Lawrence v. City of Shreveport, 41,825 (La.App.2d Cir.1/31/07), 948 So.2d 1179, writ denied, 07-0441 (La.4/20/07), 954 So.2d 166; Gladney v. Milam, 39,982 (La.App.2d Cir.9/21/05), 911 So.2d 366.

|sDr. Thompson testified that he last saw the chart when he handed it to his office manager after receiving notice of the malpractice claim. He instructed her to secure the chart. Both Defendants testified that, in 2001, their clinic had thousands of records. Dr. Thompson also testified that he instructed his staff to search the office for the missing chart without success.

If believed, this testimony depicts the good faith efforts made by Defendants to make the chart available to Plaintiffs during this litigation. The trial court instructed the jury that, if the failure to produce evidence was not reasonably explained, they were to apply a presumption that the evidence would be unfavorable. From its verdict, the jury indicated that it believed Dr. Thompson’s testimony and found his explanation to be reasonable. We cannot say such findings were manifestly erroneous. While we view any failure to produce evidence with great suspicion, we find that, on this record, the failure to produce the chart was adequately explained and, therefore, the presumption does not apply.

In addition, the factfinder is not required to abide by the adverse presumption to the exclusion of other evidence. Dr. LeFleur testified that Mrs. Wilhite presented with swelling, warmth and redness in her knee and wrist, but without fever and she did not otherwise present as a generally sick person. This description, which Plaintiffs dispute, is corroborated by the home healthcare nurses. Tonya Kcln-ney Nielsen, R.N., testified that, when she visited Mrs. Wilhite on Thursday morning, her vital signs were normal and that nothing in Mrs. Wilhite’s symptoms caught her particular attention. She described Mrs. Wilhite as being in fair condition.

l9Sherry Peevy McMurray, L.P.N., testified that, when she visited Mrs. Wilhite as a home nurse on Saturday morning, her vital signs were normal although her heart rate was a little high and her respirations were also high, but neither was concerning to her. Ms. McMurray further testified that she was extremely surprised when she later learned of Mrs. Wilhite’s death and, at first, assumed it was not related to any medical condition.

The jury and the trial court are entitled to consider the entire testimony and evidence presented at trial. The corroborating evidence supports Dr. LeFluer’s description of Mrs. Wilhite. This assignment of error is, therefore, without merit.

Expert Testimony

Plaintiffs next maintain that the trial court improperly limited their expert in infectious disease, Irving Posalski, M.D., to Mrs. Wilhite’s chances of survival. In particular, they argue that Dr. Posalski should have been allowed to testify to Mrs. Wilhite’s chances of survival if she had been given antibiotics at certain points in time. By agreement of Plaintiffs’ counsel, Dr. Posalski was restricted to testifying on the issue of causation and was instructed not to comment on standard of care for a family practice physician.

We disagree that Dr. Posalski was restricted from testifying as to the chances of survival if antibiotics had been given. On redirect, he was asked without objection:

Q. Dr. Posalski, if Geraldine Wilhite had been treated with antibiotics on the Wednesday, the days after that, would she have survived?
|10A. I believe she would have survived.

This question clearly covers limitation on testimony of which Plaintiffs now complain. We find that this assignment of error is, therefore, without merit.

Use of Model Knee

During his testimony, Dr. LeFl-eur was allowed to use a model of a knee to explain how he performed the knee tap on Mrs. Wilhite. Plaintiffs dispute whether Dr. LeFleur properly performed the knee tap. Plaintiffs argue that the trial court erred in allowing Dr. LeFleur to use the knee model because Defendants had not identified it prior to trial. They argue that to allow its use late in the trial after their experts had testified and had left town is reversible error. They further contend that they should be able to rely on pretrial discovery to determine what evidence would be used at trial.

The lower court is given broad discretion to determine whether or not to modify a pretrial order. Vernon v. Wade Correctional Institute, 26,053 (La.App.2d Cir.8/19/94), 642 So.2d 684; Ware v. Medical Protective Insurance Co., 621 So.2d 54 (La.App. 2d Cir.1993), writ denied, 629 So.2d 354 (La.1993); Tassin v. Cigna Insurance Co., 583 So.2d 1222 (La.App. 3d Cir.1991). This discretion is controlled by the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pretrial rulings or agreements and structured the preparation and presentation of their cases accordingly. Ware, supra; Wells v. Gillette, 620 So.2d 301 (La.App. 4th Cir.1993), writ denied, 629 So.2d 396 (La.1993); Naylor v. Louisiana Department of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982), writs denied, 427 So.2d 439 (La.1983), 429 So.2d 127 (La.1983), and 429 So.2d 134 (La.1983). Absent an abuse of discretion, the decision of the trier of fact will be upheld. Ware, supra.

The trial court allowed the model knee to be used because it would be helpful to the jury to understand the working of the knee and how the needle was placed into the knee when Dr. LeFleur performed the knee tap. Plaintiffs’ counsel responded that, had he known that Defendants were going to use this demonstration, he would have had his expert do the same kind of demonstration. The failure of the Plaintiffs to demonstrate the testimony of their experts to the jury does not prevent the trial court from allowing Defendants from doing so. Such a modification to the pretrial order is within the trial court’s discretion. Allowing Defendants to use the model knee allowed the jury to have a better understanding of the one procedure critical to the case. Plaintiffs were allowed to vigorously cross Dr. LeFleur using the model knee and did not suffer any substantial injustice. This assignment of error is, therefore, without merit.

Dismissal, Motion for JNOV, Motion for New Trial

As their final three assignments of error, Plaintiffs challenge the trial court’s dismissal of the action pursuant to the jury verdict, its denial of Plaintiffs’ motion for JNOV and its denial of their motion for new trial. Plaintiffs base their arguments in all three of these assignment of error on the adverse presumption to which they assert they are entitled based on the missing chart. As discussed above, the adverse presumption does not apply in this case. As also discussed above, the totality of the evidence supports the jury’s verdict. Both sides presented several experts, including Dr. hgThompson and Dr. LeFleur. The jury chose to accept Defendants’ view of the evidence; and based on our review of the entire record, we cannot say that it manifestly erred in doing so. We find, therefore, that these assignments of error are without merit.

CONCLUSION

For the reasons stated above, the judgment of the trial court is affirmed. Costs of appeal are assessed to Plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, PEATROSS and MOORE, JJ.

Rehearing denied.


author: CARAWAY, J.

text:
    Johnny OSBORNE, Alverne Osborne Barnes and Linda Osborne Woods, Plaintiffs-Appellees, v. Donna Osborne McKENZIE, Defendant-Appellant.
    No. 42,359-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.
    Culpepper & Carroll by Bobby L. Cul-pepper, Jonesboro, for Appellant.
    John C. Blake, Jonesboro, for Appellees.
    Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

| plaintiffs sued their sister seeking to annul an act of donation to her of an interest in their family property, which she allegedly altered. After service under the long-arm statute was avoided, the trial court appointed a local attorney to accept service for the defendant who lived in California. After an answer was filed by the court-appointed attorney, the defendant made direct contact with the court raising in proper person the exception of prescription. Thereafter, the pre-trial conference and trial occurred without the participation of the defendant or the attorney. The claim of prescription was rejected, and the trial court ruled that the disputed inter vivos donation was rescinded and ordered cancelled from the conveyance records. Defendant appeals claiming the judgment is a nullity due to the lack of notice of trial. Finding merit in this claim, we reverse.

Facts

The three plaintiffs brought this action against their sister, Donna Osborne McKenzie (“McKenzie”), to rescind an act of donation of immovable property and to declare the same a nullity. In March 1998, two of the plaintiffs, Johnny Osborne (“Osborne”) and Alverne Osborne Barnes (“Barnes”), received by donation from their father an undivided one-half interest in the property. Thereafter, in June 1998, Barnes and Osborne, intending to convey one-fourth of the interest received from their father to McKenzie, agreed to donate that interest to her. The execution of this ^conveyance, which is the subject of this dispute, was attempted through two acts of donation, the second apparently to correct the first.

The first act of donation was prepared for Osborne and Barnes to act as donors of “an undivided one-fourth (¾) interest in and to their undivided one-half (½),” which amounted to “an undivided 7.125 acres” of the 57-acre tract. Nevertheless, only Barnes appeared and signed the donation as an authentic act on June 24. An original of the June 24 act was delivered to McKenzie, but never recorded in Jackson Parish.

Since Osborne did not execute the first act of donation, a question was apparently raised regarding the donation, and a second act of donation was executed by Osborne and Barnes on June 28, 1998 (hereinafter the “Disputed Donation”). At trial, plaintiffs produced two different versions of this three-page document. One version is identical with the June 24 donation executed by Barnes. Nevertheless, a second version, which was actually recorded by McKenzie on November 13, 1998, lists on pages 1 and 2 that an undivided ½ of ½ or a “14.25 acres interest” was donated. The unrecorded version produced by plaintiffs from their records lists on pages 1 and 2 that an undivided ⅛ of ½, or a “7.125 acres interest” was conveyed. Both versions have the identical third page of the instrument (one, the original and the other a copy of the original), containing the actual signatures of the parties, witnesses and notary. From these two versions of the Disputed Donation, plaintiffs alleged that McKenzie changed the first two pages of the actual instrument, increasing the amount of the fractional interest conveyed by the Disputed Donation before its recor-dation.

1 s-After their discovery of the alleged alteration of the Disputed Donation in 2006, plaintiffs filed this action on April 19, 2006. Five weeks after filing the petition, plaintiffs moved for court-appointed counsel for McKenzie under La. C.C.P. art. 5091 because they alleged McKenzie was avoiding long-arm service by mail at her Victorville, California address. The attorney appointed to represent McKenzie answered with a general denial the next week.

McKenzie wrote the clerk of court on July 24, 2006, requesting “a continuance dealing with docket no. 30398,” and “assistance in getting an attorney to represent me.” The letter disclosed that she learned of the suit three weeks earlier, on July 7, 2006, and made no mention of her court-appointed attorney. The same California address used in plaintiffs’ petition was typed beneath her signature on the letter.

A pre-trial conference with the trial court and plaintiffs’ counsel occurred on August 25, 2006. Neither the court-appointed attorney nor McKenzie appeared. The record indicates that the trial judge contacted McKenzie by phone, but that she did not participate in the conference. The signature of plaintiffs’ counsel appears under the following statement on the pretrial order filed in the record on August 28:

We hereby certify that we have personally conferred via telephone at a conference pursuant to Sections 4 and 5 of Rule 22 of the Civil Rules of the Second Judicial District Court for the purpose of preparing this pretrial order, and, that we shall promptly attend the pretrial conference as scheduled by the Court.

|4A corresponding blank for “Donna Osborne McKenzie, Pro Se” to make the certification is unsigned. The order signed by the trial court fixed the trial for November 9, 2006.

After the pre-trial conference, McKenzie faxed a letter dated August 31, 2006, to the trial court’s chambers asserting that she could not travel to Louisiana and could not afford an attorney. There was no clear statement in the letter, however, acknowledging any notice of the November 9 trial setting. The closing paragraph contained allegations of the running of a three-year “statute of limitations,” and McKenzie’s request for dismissal of the suit. The record indicates other correspondence may have been directed by McKenzie to the trial court and/or clerk of court, but it was not included in the appellate record.

On November 9, 2006, the case was tried without the attendance of either the court-appointed attorney or McKenzie. The attorney McKenzie hired to prepare the June donations, three deputy clerks who witnessed the Disputed Donation, and the three plaintiffs testified at trial. In the course of the proceeding, the trial court acknowledged McKenzie’s claim of prescription and denied her relief for that defense. After receiving evidence and testimony, the trial court ruled in favor of plaintiffs annulling the Disputed Donation, both the recorded and unrecorded versions. Regarding notice of the proceedings to McKenzie, the trial court made the following observations:

... She did have notice of the pre-trial conference, notified my office the day before the pre-trial conference through my secretary, ..., that she didn’t intend to be available for the phone call the morning of the pre-trial conference.... So both | fjpf us made an effort to contact Ms. McKenzie.... Subsequent to the pre-trial conference, Ms. McKenzie contacted my office requesting additional information, etc. The Court wrote her a letter from my office indicating to her she had an opportunity to participate in the pre-trial conference, she chose not to do so for whatever reason that she chose, that this trial would be going on,

Discussion

I.

McKenzie first argues the trial court erred in denying her exception of prescription. She claims that plaintiffs’ cause of action was prescribed no later than three years from November 1998, when the allegedly fraudulent donation was recorded. She asserts the application of La. C.C. art. 2041.

Article 2041 provides the applicable prescriptive period for the revocatory action. The action as defined in La. C.C. art. 2036 concerns a creditor’s right to annul an act of the obligor/debtor, which acts to cause or increase the obligor’s insolvency. The debtor/creditor relationship does not apply to this action by donors to annul their donation to McKenzie.

Consent to a contract may be vitiated by error, fraud, or duress. La. C.C. art. 1948. The remedies for contracts in which consent is vitiated by error affecting the cause of the contract include rescission or reformation of the contract to reflect the true intent of the parties in the case of bilateral error. La. C.C. art. 1949 and Comments (d) and (e). When a donation inter vivos is declared null because of fraud or duress, it is not necessary that the entire act of donation be nullified. If any provision contained in it is not the product of such means, that provision shall be given effect, unless it is otherwise invalid. La. C.C. art. 1480.

IsCleariy, there was fraud or error in this case surrounding the two versions of the Disputed Donation. The prescriptive period concerning the claimed vitiated consent of the donors is addressed by La. C.C. art.2032 which provides in pertinent part:

Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.

Accordingly, with this action having been instituted within five years of plaintiffs’ discovery of the problem with the Disputed Donation, the trial court’s ruling rejecting the plea of prescription is affirmed.

II.

McKenzie argues that the trial court erred by allowing the case to proceed to trial without written notice given to either herself or her court-appointed counsel as required under La. C.C.P. art. 1571. She claims that the absence of evidence of such notice in the record nullifies the judgment. We agree.

Adequate notice is one of the most basic elements of procedural due process. Withers v. Withers, 41,072 (La.App.2d Cir.8/23/06), 938 So.2d 1063, writ denied, 06-2349 (La.12/8/06), 943 So.2d 1087. Article 1571 of the Code of Civil Procedure provides, in pertinent part, as follows:

A. (1) The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
(a) Require adequate notice of trial to all parties ...
*• ⅝ * * *
B. A party who appears in proper person before the court shall advise the court of his current address and any change of address during the pendency of the proceedings. The address and change of address shall be entered in the record of the proceedings. The failure of a party to provide such information 17does not affect the validity of any judgment rendered if notice of trial or other matters was sent to the party’s last known address of record.

(Emphasis added.)

Louisiana District Court Rules (2007), Rule 9.14 provides that the method of setting a date for trial shall be determined by each district court as set forth in Appendix 8. The Second Judicial District Court’s rules require the scheduling of all cases for pre-trial conference by written request before a trial on the merits will be held. The pre-trial procedure further dictates that a copy of such written request “shall be sent to all counsel of record” and “contain the names and addresses of all counsel or other parties to be notified.” Thereafter, the procedural rule describes the trial court’s responsibility:

3. In the order in which valid, properly certified requests have been received, the judge shall cause to be scheduled the pre-trial conference and give reasonable notice to counsel for all parties. If a litigant is not represented, notice shall be given to such party, and, in such event, any pre-trial order may be ex parte.

After such conference, it is the duty of plaintiffs counsel to prepare and submit a proposed pre-trial order. La. Dist. Ct. R. 9.14, App. 8.

The attorney appointed in proceedings under the Louisiana Long Arm Statute pursuant to La. R.S. 13:3204(B) and La. C.C.P. art. 5091 has the following duties imposed by La. C.C.P. art. 5095:

The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof.
| ^Except in an executory proceeding, the attorney may except to the petition, shall file an answer in time to prevent a default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant.

Rule 9.13 governs the continuing duty of an enrolled attorney to a client, an adverse party and the court concerning withdrawal as counsel of record by motion:

(a) The withdrawing attorney who does not have written consent from the client must make a good faith attempt to notify the client in writing of the withdrawal and status of the case on the court’s docket. The attorney must deliver or mail this notice to the client before filing any motion to withdraw.

La. Dist. Ct. R. 9.13.

The due process principle of notice of trial to the unrepresented litigant, now expressed in La. C.C.P. art. 1571(B), has been enforced in the jurisprudence. State, Dep’t of Social Services, Office of Family Support in Interest of James v. Passant, 95-911 (La.App. 3d Cir.12/6/95), 664 So.2d 790; Jones v. United States Fidelity, 596 So.2d 834 (La.App. 4th Cir.1992); Century Bank in New Orleans v. Doley, 527 So.2d 437 (La.App. 4th Cir.1988); Hayes v. Panola-Harrison Elec. Coop., 564 So.2d 738 (La.App. 2d Cir.1990). The courts have treated judgments rendered with a lack of notice of trial as nullities under La. C.C.P. art.2004, and such nullity may be noticed on direct appeal of the judgment without the need for a separate action of nullity.

|flFollowing McKenzie’s answer to the suit, filed by her court-appointed attorney, there is no other pleading filed by that attorney or by McKenzie in proper person. McKenzie’s faxed letter of August 31 was viewed by the trial court as an exception of prescription. No. clear evidence that the court-appointed counsel ever communicated directly with McKenzie appears in the record, and no motion to withdraw as counsel was ever filed.

The next action in the proceedings was for the pre-trial conference and order. The local rules required plaintiffs’ counsel to institute the process with a written request setting forth the proposed pre-trial statements. There is no such written request in the record with a certificate of service by counsel showing notice of the process to either the court-appointed attorney or McKenzie. The trial court’s later comments quoted above indicate that McKenzie received notice of the pre-trial conference through written correspondence from the court.

Despite there being no evidence of communication' between McKenzie and her court-appointed attorney, and no formal withdrawal of counsel, McKenzie was treated by plaintiffs’ counsel and the trial court as an unrepresented litigant after receipt of her letters in July and August, 2006. Her July 24 letter lists her Victor-ville, California address which was the same address used by plaintiffs in their initial attempts of long-arm service. Assuming her pro se status, the clear requirement of La. C.C.P. art 1571(B) was for written notice of the November 9, 2006 trial to be mailed to [)nher at the Victor-ville, California address. The plaintiffs were required to confirm that such notice was given by the clerk of court, and the record should indicate same. In the absence of such notice, due process and the above jurisprudence require that the judgment resulting from the November trial be nullified.

Conclusion

While we affirm the trial court’s ruling on prescription, the judgment rendered against McKenzie is reversed and the case remanded. Costs of appeal are assessed to appellees.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The initial donation describes Clifford Osborne as the widower of Rosie West Osborne and covers a one-half interest presumably belonging to the former community of acquets and gains.

      . The court-appointed attorney filed evidence of local publication requesting information concerning McKenzie.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Michael L. TRIPLET, Appellant.
    No. 42,357-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.

      Bobby L. Culpepper, Jonesboro, for Appellant.
    Walter E. May, Jr., District Attorney, Douglas L. Stokes, Jr., Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

| defendant, Michael L. Triplet, was charged with possession of methamphetamine, a Schedule II controlled dangerous substance, a violation of La. R.S. 40:967(C). He pled guilty as charged but reserved his right to appeal 'a denial of his motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Finding no error, we affirm defendant’s conviction and sentence.

Facts

Just before midnight on May 15, 2004, defendant, Michael L. Triplet, was stopped by a Jonesboro police officer. Following a search of his pickup truck, he was arrested and then charged by bill of information with one count of possession of methamphetamine, a Schedule II CDS. On May 26, 2005, defendant filed a motion to suppress “all the evidence” in the case on the basis that it was obtained as a result of an illegal search of his vehicle. The motion to suppress initially came for hearing on August 9, 2005, and the state presented the testimony of Jon Thomas, the arresting officer from the Jonesboro Police Department.

During cross-examination, Officer Thomas indicated that there was a video of the stop which would show defendant’s consent to the vehicle search as well as the sequence of events that occurred during the stop and defendant’s subsequent arrest. At defense counsel’s request, the court recessed the hearing to give the state an opportunity to produce the recording. On December 7, 2005, the matter was taken under advisement to give the court a chance to review the video of the incident and a transcript of the hearing on the motion to suppress.

|aThe trial court denied defendant’s motion to suppress on February 1, 2006. Thereafter, defendant entered a Crosby plea to the possession charge. Defendant was given a two-year suspended hard labor sentence and was placed on two years supervised probation. He was also ordered to pay all costs, a $500 fine, $500 to the drug enforcement fund of the Jones-boro Police Department, $500 to the witness subpoena fund, and a probation supervision fee of $55 per month.

The recording of the stop is approximately 29 minutes long and begins as Officer Thomas’s patrol car is following defendant’s truck, which pulls off the road at what appears to be a gas station or convenience store and concludes with the arrival of a tow truck.

Officer Thomas, who was in a K-9 cruiser, testified that on May 16, 2004, he observed defendant driving a small red Ford pickup truck with another man, subsequently identified as Stephen Brinkley, in the passenger seat. While behind the truck at a red light, Officer Thomas noticed that neither individual was wearing a seat belt. He pulled the vehicle over and asked defendant to get out of the truck. Defendant did as the officer requested and walked to the back of the truck.

Defendant did not protest Officer Thomas’s statement that he had pulled him over for a seat belt violation. Officer Thomas asked defendant for his driver’s license, registration and proof of insurance, and defendant walked to the passenger’s side of the truck to look for the documents. Officer Thomas walked to the driver’s side window and provided some light for defendant with his flashlight, as the interior light in the truck did not ^appear to be working. The passenger continued to sit in the truck at this time.

Defendant took what documents he found inside the cab and walked to the front of the truck. Officer Thomas followed, and the two men talked. At this time another police vehicle pulled up beside defendant’s truck on the passenger’s side. This cruiser was driven by Brent Barnett, a sheriffs deputy.

Defendant had not found his proof of insurance, so he looked again inside the cab on both the passenger’s and driver’s side. Officer Thomas asked defendant to step to the rear of the truck and then told defendant that they were K-9 units and were looking for narcotics. Officer Thomas asked defendant if he had any illegal drugs, and he responded in the negative.

At this point the following exchange occurred. Officer Thomas said, “Do you mind if I pat you down?” Defendant agreed to a pat down search. Officer Thomas then said, “Do you mind stepping over here (to the side of Deputy Barnett’s cruiser),” and “Do you mind emptying your pockets for me?” Defendant’s response is unclear; however, he walked over to the sheriffs vehicle and began to empty his pockets.

Officer Thomas asked defendant some questions and, in particular, whether he had any alcohol in the truck. Defendant denied having alcohol. At this time, Deputy Barnett walked around the back of defendant’s vehicle and looked in the bed truck. Next to the back of the cab was an ice chest. Deputy Barnett opened and closed the ice chest. Simultaneously with Deputy Barnett’s action, Officer Thomas asked defendant, “Do you mind if|4I take a quick look in your vehicle?” and defendant said, “Go on ahead.” Officer Thomas asked, “Sir?” and defendant again responded, “Go right ahead.”

Officer Thomas ordered the passenger out of the truck and found two opened cans of Natural Light beer in the passenger side floorboard. Officer Thomas poured the contents of the beer cans onto the ground. Thereafter, Officer Thomas found what he suspected to be a marijuana cigarette in a pack of Marlboro cigarettes on the passenger side of the vehicle and a partially smoked marijuana cigarette in the ashtray. At this time, a pat-down search of the passenger was done and the passenger was handcuffed.

Deputy Barnett searched a green bag lying in the bed of the truck and found a tin box containing suspected methamphetamine, rolling papers, a snort tube, a razor blade, and other drug paraphernalia. Deputy Barnett also found two bags of marijuana inside a shoe in a Wal-Mart bag. Defendant admitted to ownership of both the shoe and the green bag. At that point defendant was placed under arrest.

Discussion

Defendant contends that the warrantless search of his truck was invalid for two reasons: first, because there was no probable cause justifying the traffic stop; second, even if there was probable cause, the search was not conducted either incident to an arrest or with the free and voluntary consent of defendant.

1BTraffic Stop

La. R.S. 32:295.1(F) provides:

Probable cause for violation of this Section [wearing of seat belts] shall be based upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Section. A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section. (Emphasis added).

At the suppression hearing, Officer Thomas testified that he stopped defendant because neither he nor his passenger was wearing a seat belt. La. R.S. 32:295.1 requires seat belt use by occupants of vehicles and a driver’s failure to wear a seat belt constitutes reasonable cause for a stop. See State v. Jackson, 04-728 (La.App. 5th Cir.12/14/04), 892 So.2d 71, writ denied, 05-548 (La.01/09/06), 918 So.2d 1033; State v. Landry, 01-0784 (La.App. 4th Cir.12/12/01), 804 So.2d 791.

Defendant contends that the time of night would have prevented Officer Thomas from seeing that defendant was not wearing a seat belt. However, Officer Thomas testified that he was able to observe that defendant and his passenger were not wearing their seat belts when the officer pulled up behind defendant’s truck at a red light. We note from the video that when defendant got out of his truck, he does not appear to make a motion of releasing the seat belt. Further, when the officer informed defendant that he was stopped because neither he nor his passenger was wearing seat belts, he did not protest.

As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Waters, 00-0356 (La.03/12/01), 780 So.2d 1053; State v. Barnard, 37,032 (La.App.2d Cir.05/14/03), 847 So.2d 99. The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Whren v. U.S., supra. This objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Barnard, supra.

We find no error in the trial court’s conclusion that Officer Thomas had a clear and unobstructed view of the front seat occupants and was able to see that neither was wearing a seat belt. Further, the alleged true intent of Officer Thomas is not to be considered. See Whren v. U.S., supra.

Consent

Defendant also argues that he did not freely and voluntarily consent to the officers’ search of his truck since the search was already ongoing before his consent was given. Defendant’s contention that the search was ongoing when he was asked for consent presumably arises out of Deputy Barnett’s quick look inside an ice chest in the truck bed as Officer Thomas asked defendant for consent to search the truck. There is no indication that defendant was aware that Deputy Barnett peeked into the ice chest or that this action coerced defendant’s consent. We note that nothing was found in the ice chest.

A warrantless search conducted pursuant to a valid consent is permitted by both the United States and Louisiana Constitutions. State v. Strange, 04-273 (La.05/14/04), 876 So.2d 39; State v. Raheem, 464 So.2d 293 (La.1985); State v. Williams, 38,379 (La.App.2d Cir.11/25/03), 858 So.2d 878, writ denied, 03-3535 (La.03/12/04), 869 So.2d 807, on subsequent appeal, 39,660 (La.App.2d Cir.04/06/05), 900 So.2d 259; State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082. Oral consent to a search is valid. Id. Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Bodley, 394 So.2d 584 (La.1981); State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985), writ denied, 486 So.2d 748 (La.1986), cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986).

Once voluntary consent is given, it continues until it is revoked or withdrawn. As held by the Supreme Court in Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), when officers rely upon consent to justify a warrantless search, they have no more authority than they have been given by the consent. However, law enforcement officials are not required to separately request permission to search individual containers within a vehicle for which they have received consent to search. Id.

Under these circumstances, we agree with the trial court’s finding that consent was voluntarily given. In this case, Officer Thomas testified at the suppression hearing that defendant consented to a search of his truck. The video recording of the stop confirms this testimony. Defense counsel did not elicit or offer testimony to refute or contradict the officer’s statement that defendant consented to the search.

This assignment of error is without merit.

| s Conclusion

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

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.


text:
    In the Matter of the PETITION OF THE MISSISSIPPI BAR TO TRANSFER AN ATTORNEY TO DISABILITY INACTIVE STATUS.
    No. 2005-BD-00810-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2005.
   ORDER

¶ 1. This matter came before the Court on the Petition of the Mississippi Bar to Transfer an Attorney to Disability Inactive Status. The Court finds that Attorney Doe is no longer capable of practicing law and that Attorney Doe has voluntarily agreed to a transfer to disability inactive status pursuant to Rules 17-24 of the Mississippi Rules of Discipline.

¶ 2. IT IS THEREFORE ORDERED that the Petition of the Mississippi Bar to Transfer an Attorney to Disability Inactive Status is granted and that the license of Attorney Doe to practice law is hereby transferred to disability inactive status pursuant to Rules 17-24 of the Mississippi Rules of Discipline.

¶ 3. IT IS FURTHER ORDERED that Attorney Doe is not permitted to practice law while on disability inactive status as set forth in Rule 24 of the Mississippi Rules of Discipline. Attorney Doe may apply for reinstatement pursuant to Rule 25, and any such application for reinstatement is conditioned upon satisfactory compliance for five years with the recovery contract into which he has entered with the Mississippi Lawyers and Judges Assistance Program and to any additional requirements which MLJAP may impose.

¶ 4. SO ORDERED.

/s/James W. Smith, Jr. JAMES W. SMITH, JR., CHIEF JUSTICE

FOR THE COURT

DIAZ, J., NOT PARTICIPATING.