author: GASKINS, J. BROWN, Chief Judge,

text:
    Charles Thomas BECK, Jr., Plaintiff-Appellant, v. Jeff SCHRUM, Carol Newsom, and Louisiana Farm Bureau Casualty Insurance Company, Defendants-Appellees.
    No. 41,647-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      James M. Johnson, Baton Rouge, for Plaintiff-Appellant.
    Hubley, Marcotte, Rhodes & Hussey by Craig Marcotte, Shreveport, for Defendants-Appellees Louisiana Farm Bureau and Carol Newsom.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

hThe plaintiff, Charles Thomas Beck, Jr., appeals from a trial court ruling granting summary judgment in favor of Carol Newsom and Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”), finding no liability on their part arising from an incident in which the plaintiff was shot at the Newsom residence by Ms. Newsom’s boyfriend. For the following reasons, we affirm.

FACTS

Ms. Newsom owned a residence in Min-den and lived there with her 22-year-old son, Levi Newsom, and her adult boyfriend, Jeff Schrum. In 2004, Mr. Schrum acquired a muzzle-load black powder gun, which he sometimes displayed to visitors at the house. On November 6, 2004, Mr. Beck went to the residence to visit Levi. Ms. Newsom was at work. Mr. Schrum was present and took the gun out. Thinking that it was not loaded, he pointed the gun at Mr. Beck and fired the weapon. The gun was loaded, and Mr. Beck was severely injured.

PROCEDURAL HISTORY

Mr. Beck filed suit against Mr. Schrum, Ms. Newsom, and her homeowner’s insurer, Farm Bureau, claiming gross negligence on the part of Mr. Schrum and arguing that the accident was covered under Ms. Newsom’s homeowner’s policy.

On November 22, 2005, Farm Bureau filed a motion for summary judgment on behalf of the insurance company and Ms. Newsom, arguing that Mr. Schrum was not an insured as defined under the policy because he | ¿was neither a relative of Ms. Newsom nor was he under the age of 21 and under her care.

Farm Bureau also contended that Ms. Newsom was not at home at the time of the shooting and that she had no liability or fault in the incident. The insurance company argued that Ms. Newsom had no duty to Mr. Beck and that she did not breach any duty owed to him. Farm Bureau sought to have the plaintiffs claims against her dismissed.

Mr. Beck amended his petition to allege that Ms. Newsom knew or should have known, that Mr. Schrum played with the gun around the house, exposing persons at her home to injury.

At the hearing on the motion for summary judgment, Mr. Beck admitted that Mr. Schrum did not meet the definition of an insured under the terms of the policy. However, Mr. Beck argued that there was a disputed issue of material fact as to whether Ms. Newsom was negligent in allowing Mr. Schrum to have the gun at the residence when she knew that he frequently displayed it to visitors. He argued that Ms. Newsom is an insured under the policy and that she was negligent in allowing Mr. Schrum to keep the gun at the house.

The trial court rejected Mr. Beck’s argument, finding that Ms. Newsom could not control her adult boyfriend’s actions and had no liability for the shooting. The court dismissed the plaintiffs claims against Ms. Newsom and Farm Bureau. Mr. Beck appealed, arguing that the trial court erred in granting the motion for summary judgment.

ILLEGAL PRINCIPLES

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Hill v. Shelter Mutual Insurance Company, 2005-1783 (La.7/10/06), 935 So.2d 691. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Inferences drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Hill v. Shelter Mutual Insurance Company, supra.

DISCUSSION

Mr. Beck argues that Ms. Newsom was aware that Mr. Schrum used and “showed off’ the gun when visitors were at the residence. Mr. Beck asserts that she had an affirmative duty to stop Mr. Schrum from “interacting the gun” with visitors to her residence, she breached this duty, and her breach resulted in the plaintiff being seriously injured. The plaintiff also claims that there is a genuine issue of material fact as to the knowledge that Ms. Newsom had with respect to the gun being in her house. 1¿According to Mr. Beck, the trial court erred in granting summary judgment in favor of Farm Bureau and Ms. Newsom. These arguments are without merit.

In opposition to the motion for summary judgment, Mr. Beck submitted several affidavits and the deposition of Ms. Newsom. The first affidavit by Daniel Beck, brother of the plaintiff, simply states that he was present and observed Mr. Schrum shoot the plaintiff.

Ashley Norman executed an affidavit stating that on November 1, 2004, she was present in Ms. Newsom’s home along with Ms. Newsom, Levi, and several other individuals. Ms. Norman claimed that she observed the gun lying on the floor of Levi’s room. The plaintiff took the gun into a bedroom where Ms. Norman believed Ms. Newsom and Mr. Schrum were present. Ms. Norman stated that Ms. Newsom was aware that the gun was observable in her residence.

The plaintiff offered his own affidavit in opposition to the defendants’ motion for summary judgement. He claimed that on several occasions prior to the shooting, Mr. Schrum displayed the gun to visitors to the residence and sometimes “popped caps” with the gun inside and outside Ms. New-som’s residence. He claimed that Ms. Newsom was present on some occasions when this occurred. He also urged that it was not possible to tell by looking at the gun whether it was loaded.

Joey Paul Beck’s affidavit states that Ms. Newsom was present on some occasions when Mr. Schrum played with the gun while others were visiting the residence.

[BIn his opposition to the defendants’ motion for summary judgment, the plaintiff also attached Ms. Newsom’s deposition stating that Mr. Schrum lived with her for about two years, but they were not related by blood or marriage. She said that Mr. Schrum acquired the gun in May 2004, and that he sometimes displayed it to visitors. She did not view Mr. Schrum’s actions in handling the gun while visitors were present as a problem because he said it was not loaded and he did not shoot it in the house.

Ms. Newsom denied that the plaintiff found the gun on the floor of Levi’s room approximately one week before the shooting. She said that Levi took the gun from the residence on one occasion.

She stated that she never saw Mr. Schrum point the gun at visitors. According to Ms. Newsom, she did not feel that there was a danger sufficient to require Mr. Schrum to remove the gun from the house prior to the shooting.

At the time of the shooting, Ms. New-som was at work. She claimed that she did not have any contact with Mr. Schrum or Levi before she left for work around 8:00 a.m., and she learned of the shooting later that day when Levi called her at work.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762. Whether a legal duty is owed by one party to another depends on the facts and the circumstances of the case and the relationship of the parties. Haskins v. State Farm Fire & Casualty Company, 612 So.2d 990 (La.App. 2d Cir.1993).

Louisiana law is clear that no duty to protect against or control the actions of a third party exists unless a special relationship exists to give rise to such a duty. Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355. Courts traditionally have found such relationships to exist between parent and child; employer and employee; carrier and passenger; innkeeper and guest; shopkeeper and business visitor; restaurateur and patron, jailer and prisoner; and teacher and pupil. Haskins v. State Farm Fire & Casualty Company, supra.

In the present case, none of these special relationships exist. Mr. Schrum was an adult living in Ms. Newsom’s house. She had no duty to protect against or control his actions toward third parties.

Further, the affidavits and deposition fail to show that Ms. Newsom was negligent in failing to require that Mr. Schrum remove the gun from the house. Although Mr. Schrum displayed the gun to visitors, Ms. Newsom never observed him point the gun at visitors or behave in an unsafe manner with the gun. She believed that the gun was not loaded in the house. The |7cause-in-fact of the plaintiffs injury was not that Ms. Newsom allowed the gun to be in the house. The injury was caused by Mr. Schrum’s negligence in pointing a loaded weapon at the plaintiff and pulling the trigger. See and compare Craig v. Sepulvado, 1997-1076 (La.App. 3d Cir.2/18/98), 709 So.2d 229, writ denied, 1998-0729 (La.5/1/98), 718 So.2d 414. We also note that a loaded gun is a dangerous instrumentality and a duty of extraordinary care is placed on those in control of weapons. Brisco v. Fuller, supra. In this matter, the gun belonged to Mr. Schrum and was under his control. The duty of extraordinary care belonged to him, not to Ms. Newsom.

This unfortunate incident occurred solely as a result of the negligence of Mr. Schrum at a time when Ms. Newsom was not present. She simply bears no responsibility for the negligent actions of Mr. Schrum and there is no showing that she acted negligently regarding the gun. The trial court correctly granted summary judgment in favor of Ms. Newsom and Farm Bureau, dismissing the plaintiffs claims against them.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court granting summary judgment in favor of Carol New-som and Farm Bureau Casualty Insurance Company, and dismissing the claims of Charles Thomas |sBeck, Jr. against Ms. Newsom and Farm Bureau. Costs in this court are assessed to the plaintiff.

AFFIRMED.

BROWN, C.J., concurs in part and dissents in part.

BROWN, Chief Judge,

concurring in part and dissenting in part.

hi agree that Carol Newsom is not liable and was entitled to summary judgment. I disagree that the Farm Bureau policy did not provide coverage for the negligent acts of Jeff Schrum.

Carol and Jeff cohabited for several years. They had resided together at the house where this incident occurred for two years and prior to that at a house owned by Jeff Schrum on Yellow Pine Road. On the date of her deposition, Carol Newsom indicated that Jeff Schrum was in the Bayou Dorcheat Correctional Center.

The facts of this case are unique and different from the facts in the cases cited by the majority. These parties would have been covered by the Farm Bureau’s policy in a state where common law unions were recognized.

Questions of fact exist as to whether summary judgment was appropriate as to coverage.

See this author’s concurring and dissenting opinion in Crigler v. Crigler, 28,085, 28,107, 28,108-CW, (La.App.2d Cir.04/03/96), 671 So.2d 1199, 1205-1206, writs denied, 96-1092, 96-1148 (La.06/07/96), 674 So.2d 968.

      . The jurisprudence offers numerous examples in which a property owner owes no duty to a plaintiff shot on his property where there is no special relationship with the tortfeasor. See Brisco v. Fuller, 623 So.2d 196 (La.App. 2d Cir.1993), no duty owed by parent of adult child who shot someone with parent's gun; Smith v. Howard, 489 So.2d 1037 (La.App. 1st Cir.1986), housing authority had no duty to evict persons with violent propensities; Corley v. Delaney, 629 So.2d 1255 (La.App. 3d Cir.1993), writs denied, 1994-0481, 1994-0636 (La.4/22/94),637 So.2d 156, father-landowner was not liable where adult son accidently shot plaintiff on father’s property; Fontenot v. Bolfa, 549 So.2d 924 (La.App. 3d Cir.1989), homeowner was not liable where daughter's boyfriend shot someone at house while homeowner was away; Dore v. Cunningham, 376 So.2d 360 (La.App. 3d Cir.1979), landlord not liable for gunshot wound inflicted by guest of a tenant; Ozols v. Irving, 491 So.2d 719 (La.App. 4th Cir.1986), writ denied, 496 So.2d 348 (La.1986), homeowner was not liable where her nephew fired a gun from the window of her house and killed a neighbor while the homeowner was not at home.

      . See and compare Tolleson v. State Farm Fire and Casualty Co., 449 So.2d 105 (La.App. 1st Cir.1984), writ denied, 450 So.2d 968 (La.1984), in which the driver of a car was found to have no control and no responsibility for a gun transported in his car by a guest passenger.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Angela T. STEWART, Individually and on Behalf of her Minor Child, Tyler Stewart, Plaintiff-Appellant, v. Sue Miles BARNETT and State Farm Mutual Automobile Insurance Company, In Solido, Defendants-Appellees.
    No. 41,597-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.
    Rice & Kendig by William F. Kendig, Jr., for Appellant.
    Tutt, Stroud & McKay by Charles G. Tutt, Shreveport, for Appellees.

      Before CARAWAY, DREW and LOLLEY, JJ.
   LOLLEY, J.

|! Angela T. Stewart, individually and on behalf of her minor child, Tyler Stewart, appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, which assessed equal fault with the defendant, Sue Miles Barnett, in a motor vehicle accident. State Farm Mutual Automobile Insurance Company was Barnett’s insurer. For the following reasons, we amend the judgment, and affirm as amended.

Facts

On the afternoon of September 16, 2004, Stewart was traveling northbound on Henderson Avenue in Shreveport, Louisiana. Her child Tyler was in the car with her. After coming to a complete stop at the intersection of Henderson and E. 70th Street, she attempted to make a left westbound turn onto E. 70th. According to Stewart, she looked left to make sure she was clear to make the turn. There were some eastbound vehicles stopped short of the intersection that waved her on to cross. She also claims she looked right as well to make sure she was clear from that direction to make her turn, and after determining that there was no oncoming traffic, she attempted her turn.

While she was making her turn, Barnett, who was in the inside eastbound lane of E. 70th, crossed the double yellow lane marker and entered into the westbound lanes of E. 70th, traveling in the wrong direction in her own attempt to make a left turn. Barnett’s actions are not disputed. In making her illegal maneuver, Barnett and Stewart collided. Barnett was driving a Suburban and Stewart’s vehicle was totaled.

Stewart filed suit against Barnett and State Farm, seeking general and [2special damages. Barnett and State Farm conceded Barnett’s fault in the accident, but argued that Stewart’s left turn maneuver contributed greatly to the accident. They argued that a 50/50 split in liability would be appropriate considering the facts. The trial court, after hearing the testimony of both parties agreed, and assessed each party with 50% of the fault and entered judgment. This appeal by Stewart ensued.

DISCUSSION

On appeal, Stewart argues that she does not bear any fault for the collision with Barnett, and the trial court erred as a matter of law in finding comparative fault. Stewart maintains that Barnett acted in an unreasonable manner and her illegal driving maneuver was the proximate cause of the accident. Specifically, Stewart points to La. R.S. 32:76(A)(2) which prohibits passing within one hundred feet of an intersection. She also looks to La. R.S. 32:77(A) which further prohibits passing in areas marked with double yellow lane markers. Stewart acknowledges that she was making a left turn onto E. 70th Street and was charged with the duty to do so safely. However, Stewart argues that she did not breach her duty. She states that she looked both ways to ensure that no traffic was coming on E. 70th before she pulled into the intersection, and that absent Barnett’s violation of the law, the collision would not have occurred. Moreover, Stewart points out that she was entitled to assume that the other cars would obey the law and she was not required to anticipate Barnett’s unlawful and reckless actions.

In an action for injury or loss, the trier of fact shall determine the degree or percentage of fault of all persons found to have contributed to or |scaused that injury or loss. La. C.C. art. 2323. The trier of fact will compare the relative fault of the parties in the assessment of liability. Thomas v. Sisters of Charity of the Incarnate Word, 38,170 (La.App. 2d Cir.03/19/04), 870 So.2d 390, writ denied, 2004-1403 (La.09/24/04), 882 So.2d 1132, citing Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). In assessing comparative fault, Watson set forth the following factors that should be considered: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Thomas, supra. The trier of fact’s allocation of fault is a factual determination subject to the manifest error rule. Id.

As stated, the trial court assessed fault equally between Stewart and Barnett. We do give some weight to the trial court’s determination that Stewart was (1) conducting a dangerous activity, a left turn, and (2) she could have avoided the accident had she seen what she should have seen. However, the facts are clear that Stewart discharged her duty to make a safe left turn when she looked both ways to ensure that she was clear to make her turn. Observing that the traffic in both eastbound lanes was stopped, and that those drivers were allowing her to proceed, Stewart looked right to see if there was any westbound traffic. There being none, she moved into the intersection. Stewart acted reasonably in making her left turn.

Roberts v. Robicheaux, 2004-1405 (La.App. 3d Cir.03/02/05), 896 |4So.2d 1232, writ denied, 2005-0792 (La.05/13/05), 902 So.2d 1021 dealt with facts almost identical to the ones at hand. — -an accident occurred when one driver, attempting to make a left turn, collided with another driver passing in a “no turn” (or crossing a double yellow line) lane. The Roberts court stated that “[i]n judging whether a left turn can be made in safety, the motorist has the right to assume that a following motorist will observe all the duties imposed upon him by law and common sense. Thus, he may assume that the following motorist will proceed within the speed limit and will not cross over a yellow line in his traffic lane marking a “no-passing” zone and, moreover, will keep a proper lookout.” Id., citing Breland v. American Ins. Co., 163 So.2d 583 (La.App. 2nd Cir.1964), writ refused, 246 La. 379, 164 So.2d 362 (1964).

In considering the facts of this case and the applicable factors set forth in Watson, we must conclude that the trial court was manifestly erroneous in finding Stewart equally at fault with Barnett, but for whose illegal actions, this accident would never have occurred. In considering the record before us, we place great emphasis on the testimony of the investigating officer, Corporal Harry Brown of the Shreveport Police Department. At the trial of the matter, Corp. Brown testified that he was the investigating officer at the scene of the accident, and he also prepared the accident report that was entered into evidence at the trial. Corporal Brown opined that the contributing cause of the accident was Barnett’s illegal maneuver — crossing the double yellow line into the oncoming lanes of traffic in her attempt to make a left turn. Notably, the accident report shows that | sBarnett was issued a citation for disregarding traffic control, whereas Stewart was not issued a citation. Furthermore, on his report, Corp. Brown noted that the primary factor for the accident was Barnett’s violation.

Considering the actions of both drivers, it is impossible to conclude that they were equally at fault and we must place more fault on Barnett’s causing the accident versus Stewart’s mere failure to avoid it. The duty to follow statutorily imposed rules and common sense make Barnett’s negligence far greater than Stewart’s. Therefore, we must adjust the allocation of fault to an amount which would be within the trial court’s reasonable discretion. See Clement v. Frey, 1995-1119 (La.01/16/96), 666 So.2d 607. We amend the trial court’s judgment and assess Barnett with 85% of the fault and Stewart with 15%.

ConClusion

For the foregoing reasons, the judgment of the trial court is amended, and, as amended, affirmed. Costs of this appeal are assessed to Sue Miles Barnett and State Farm Mutual Automobile Insurance Company.

AS AMENDED, AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Jacqueline BAKER, Appellant.
    No. 41,325-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Louisiana Appellate Project by James Edward Beal, for Appellant.
    Jerry L. Jones, District Attorney, Madeline M. Slaughter-Young, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

|!Jacqueline Baker was prosecuted on three counts of cruelty to the infirm, pursuant to La. R-S-M^R. The jury trial produced these results:

1. On count one, involving the victim Harlen Martin, Ms. Baker was convicted of the responsive misdemeanor charge of negligent injury;

2. On count two, involving the victim Robert Frostenson, Ms. Baker was convicted as charged; and

3. On count three, involving the alleged victim Melvin Fowler, Ms. Baker was acquitted.

She was sentenced to two years at hard labor on each of the two counts of conviction, suspended, to be served concurrently, subject to three years of probation. The defendant now appeals her conviction and sentence. We reverse the misdemeanor conviction on count one. We affirm the felony conviction and sentence on count two, as well as the attendant probationary term and conditions, instructing the trial court to allow community service work in lieu of payment of court costs, if the defendant is unable to pay.

FACTS

The defendant was employed as a certified nursing aide (“CNA”) by the Northeast Louisiana War Veteran’s Home from June 7, 2002, to April 15, 2004. The home:

• is an institution owned by the Louisiana Department of Veteran’s Affairs;

| is a licensed nursing facility specifically for war veterans who have served at least 90 days during a time of declared war;

• serves as both an assisted living facility and nursing home for veterans; and

• served as the residence of all three alleged victims during different time frames between 2000 and 2005.

At the time of trial, all victims were deceased.

On December 9, 2002, the defendant exited a patient’s room and reported that the patient tried to fight her, almost hitting her in the face. The patient, Melvin Fowler, was a non-ambulatory patient on the Alzheimer’s unit of the home. Erica White, a licensed practical nurse working the unit, entered Fowler’s room and found him upset, alleging that Baker had struck him. White noticed injuries to the victim’s face (bruised) and arm (scratched). In a written statement explaining the incident, the defendant stated she was attempting to check Fowler’s diaper tape when he swung his arm trying to hit her. At that point, the defendant claimed she moved backwards, and in doing so, she accidentally pushed the bedside table into the victim’s bed, causing these injuries.

The home conducted an internal investigation into the incident but the abuse allegations could not be substantiated. Pending the investigation, the defendant was suspended for three days with pay and thereafter was given a letter of counseling issued by the home’s director. The letter:

• ordered Baker to complete several courses relating to patient care;

• was not made part of the defendant’s permanent personnel file;

Is* permanently relieved her of all assignments to the home’s Alzheimer’s unit; and

• extended her employment probationary status (normally one year) by three months.

The home did not inform the police regarding the incident, but contact was made by Fowler’s daughter, resulting in an investigation by Detective Tracy Heath of the Monroe Police Department, who interviewed Fowler, with mixed results, due to Fowler’s inability to understand much of the questioning and his difficulty in speaking. As a part of her investigation, Detective Heath interviewed members of the home staff, and the defendant herself, who gave a recorded statement denying abusing Fowler, claiming an accident consistent with the written statement she had previously provided to the home.

Detective Heath testified:

• she conducted an informal and unsuccessful experiment in Mr. Fowler’s room trying to verify whether the injuries could have occurred as stated by the defendant; and

• she referred the results of her investigation to the District Attorney’s Office.

Later during the defendant’s employment, two patients were observed with previously unreported injuries on February 22, 2004. Separate incident reports were produced detailing the injuries to Martin and Frostenson, the victims in counts one and two, respectively.

Regina Reeves, a registered nurse employed by the home, testified that:

• she worked the 7:00 a.m.-7:00 p.m. shift on February 22, 2004;

14* Mrs. Harlen Martin asked her to examine a rash on Mr. Martin’s chest, whereupon she discovered a swollen bruised lump on his head;

• she wrote an incident report detailing the victim’s injury;

• she contacted Martin’s doctor and was advised to arrange his transport to the hospital emergency room;

• she completed an incident report detailing the matter; and

• she noted that Martin was not verbal and could not be interviewed during the home’s investigation.

As Reeves was completing paperwork for the transport of Martin, Nurse Catherine Davis requested that she check on Frostenson’s hand. Due to her inability to respond to the situation immediately, Ms. Reeves asked Nurse Vicki Ellis (who was working the next shift) to check the injury.

During the same shift when nurse Reeves made her observations, Catherine Davis, another nurse at the home:

• observed victim Frostenson’s left hand to be swollen and bluish; and

• was told by Frostenson that he had hit his hand while being transferred from his bed to his wheelchair by the CNAs.

It was not until March 30, 2004, that CNA Sherbra Schiele reported the defendant’s apparent abuse of Martin and Fros-tenson. According to Schiele, she was a new hire assigned to work with the defendant for orientation. Defendant acquainted Schiele with the workplace and took her on rounds to the patients’ rooms, on either Schiele’s first or second day on the job.

Schiele testified that she and the defendant entered Frostenson’s room sometime during the early morning on February 22, 2004, at which time Schiele observed the defendant rousing Frostenson from his sleep. Schiele |sfurther testified that Frostenson was upset about being roused and argued with the defendant after he was placed in his wheelchair “kind of hard.” At some point during the argument, Frostenson had his hand in the defendant’s face and called her a “black b* * *h.” In response to this comment, the defendant grabbed Frostenson’s hand and bent his fingers backwards. Schiele recalled that Frostenson told the defendant to stop, at which point the defendant released the hand. Schiele stated that she discussed the incident with Nurse Erica White later that day but made no further reports at that time.

Approximately 20 minutes after the incident with Frostenson, the defendant and Schiele entered Martin’s room. According to Schiele, the defendant checked Martin’s diaper, but made an attempt not to wake him. While the defendant and Schiele were in the room, Martin awoke and began to tremble. The defendant and Schiele pulled Martin up in the bed using a draw sheet. As Martin (a man of small stature) was being pulled up in the bed, the defendant “pulled him up real fast” and Martin’s head was bumped on the headboard of the bed. Schiele testified that the defendant’s actions appeared to be a mistake, “because it could ... that could easily happen, you know, when we’re pulling somebody up it happens a lot.”

After the incident with Martin, Schiele testified that she did not wish to work with defendant anymore and asked if they could split their work on subsequent days. Schiele noted that she was bothered by the events but did not report it to anyone until prompted to do so by Erica White. After Schiele’s reports of abuse were made on March 30, 2004, internal | (¡investigations were conducted by the home, and the Monroe Police Department was contacted. Monroe police conducted an investigation, and after giving her statement, the defendant was arrested and initially charged with two counts of cruelty to the infirm (victims Martin and Frostenson). Thereafter, the state amended the charges to reflect three felony counts of cruelty to the infirm, adding the incident with victim Fowler.

After a trial on the merits of the case, the defendant was found guilty of the responsive verdict of negligent injury as to count one (Martin), guilty as charged as to count two (Frostenson), and not guilty as to count three (Fowler). The defendant was illegally sentenced to two years on count one, and the same sentence on count two. Both sentences were suspended and the defendant was placed on three years’ active probation with a special condition that she attend anger management classes. The defendant was also ordered to pay court costs with 30 days in the parish jail in default of payment of the costs. It is from this conviction and sentence that the defendant now appeals.

RELEVANT LAW

The law on sufficiency is well settled.

|7La. R.S. 14:93.3, Cruelty to the in-firmed, provides in part:

A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.
B. “Caregiver” is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.
C. For the purposes of this Section, an aged person is any individual sixty years of age or older.

In this instance, to convict the defendant of cruelty to the infirm, the state had to prove that the victim was a person at least 60 years old and that the defendant’s intentional or criminally negligent treatment of the victim 1 Rcaused unjustifiable pain or suffering to the aged person. In viewing the evidence in the light most favorable to the state, the state has clearly met its burden as to count two of the bill of information.

TESTIMONY OF EMPLOYEES OF THE HOME

During the presentation of its case, the state called employees of the home to testify regarding the incidents of abuse (Fros-tenson and Martin). The only eyewitness to the incidents, Schiele testified that:

• she witnessed the defendant cause injury to both Martin and Frostenson;

• she told Nurse Erica White about the incidents on the day they occurred, but she did not immediately make any other reports;

• she felt the defendant was “doing them wrong. Doing patients wrong”;

• after talking with White and several other employees of the home, Schiele reported the incidents to the nursing supervisor, Vicki Ellis;

• she gave a written statement about the incidents on March 30, 2004;

• despite the fact that she did not make an immediate report, she had a hard time sleeping and the incidents were always on her mind;

• she talked to the defendant at work, but did not express any feelings to the defendant about the matter; and

• she found it difficult to report the incidents to the CNA supervisor, Patricia Coleman, because she thought the defendant and Coleman were good friends, an observation she made on her first night of work.

Nurse Erica White testified that:

• she discussed the defendant’s actions with Schiele on a few occasions;

• she advised Schiele to report the incidents to the nursing supervisor but did not report the information herself;

19» she generally considered the defendant as calm and very nice with the patients, but in light of the Fowler incident, she found Schiele’s comments believable. Pamela Handy testified that:

• she is a licensed practical nurse;

• she supervised the CNAs working at the home during the time period that the defendant was employed;

• on the day Frostenson was injured, Handy heard an argument between the defendant and Frostenson sometime during the early morning hours (4:30-5:00 a.m.);

• nonetheless, she did not enter the room; and

• after learning of Frostenson’s injury during a telephone conversation, Handy later recounted the details of the argument to Ellis and Coleman.

Vicki Ellis, a nursing supervisor, testified that on February 22, 2004, she examined Frostenson’s hand at the request of Reeves. When asked how his hand had been injured, Frostenson said that he hit his hand on the bed when the CNAs were getting him out of bed. He later told Ellis that the CNA wearing the dress had been in his room at the time of the injury. The defendant was the only employee wearing a dress on that shift. According to Ellis, the victim appeared uncomfortable discussing the incident when the defendant was in the room.

ISSUES

I. Sufficiency as to Count One (Victim Martin)

The defendant argues that the state’s star witness testified that the injury to Martin was accidental and that there was no testimony in the record to indicate that the injury to Martin’s head was intentional or criminally negligent. In the state’s view, overwhelming evidence supports Imthe convictions for cruelty to the infirm in each of the three counts, and the jury’s sympathy for the defendant led to the conviction on the responsive verdict.

Viewing the evidence in a light most favorable to the prosecution, we find the negligent injuring verdict rendered by the jury in count one is not supported by the record. La. R.S. 14:39, a responsive verdict to cruelty to the infirm, states in part, negligent injuring is the inflicting of any injury upon the person of another by criminal negligence. Defined by La. R.S. 14:12, criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

Ordinary negligence does not equate to criminal negligence; thus, the state is required to show more than mere deviation from the standard of ordinary care to prove criminal negligence. State v. Beason, 26,725 (La.App.2d Cir.4/7/95), 653 So.2d 1274, writ denied, 95-1388 (La.10/27/95), 661 So.2d 1359; State v. Wilcoxon, 26,126 (La.App.2d Cir.6/22/94), 639 So.2d 385, writ denied, 94-1961 (La.12/16/94), 648 So.2d 386.

The testimony and evidence presented by the state fails to present sufficient evidence, when viewed in the light most favorable to the prosecution, to prove that the defendant acted with such a disregard for Martin’s welfare that it amounted to a gross deviation from the standard of care that should have been applied in this situation.

| n Essentially, the only evidence was from Schiele, who testified she thought Martin’s head was accidentally bumped against the headboard. Prior to the following exchange, Schiele stated Martin’s body began shaking and the defendant scolded him to stop.

Q. Okay. And when y’all pulled him up where was his head in the bed when y’all got him pulled up?
A. We got him pulled up touching the head of the bed, the wooden part of the bed, the head of the bed.
Q. Did the top of his head hit the wooden part?
A. Yes, ma’am.
Q. Okay. And how did that happen?
A. Ms. Baker she was you know, like pulled him up real fast and I’m like okay, you know, and that’s when his head hit the head of the bed.
Q. Okay, so because he was pulled up fast his head made contact with the top of the bed?
A. Yes, ma’am.
Q. Could you see that it did anything to the top of his head?
A. No, ma’am.
Q. Okay, did she say anything to him at that point?
A. No, ma’am. She didn’t say anything.
Q. Did he say anything?
A. He didn’t say anything. I don’t even think he could talk.
Q. Okay. Did he cry out or make any kind of noises?
A. No, he didn’t say nothing.
. Q. Okay, so, when she told him I wish you’d stop that shaking did she say it to him more than once?
112A. No, she just said it once.
Q. All right. And did she say it to him ... use the tone that she used. Describe or tell the ladies and gentlemen of the jury exactly what tone she used?
A. I wish you would stop that shaking.
Q. Okay. And ... All right. I’d like to show you what I’m going to mark for identification purposes as State’s exhibit 27 and after his head came into contact with the top of the bed did you examine his head to see if there was any damage to the head?
A. I didn’t see any damage to his head. I did look at his head. At the time I didn’t see anything that, you know, had happened to his head.
Q. Okay. So, after this incident where he was made to come into contact with the top of the bed did you tell anybody about that incident?
A. No, ma’am. Because I thought it was just like a mistake, you know.
Q. You thought it was a mistake?
A. Yes, ma’am.
Q. And why do you think it was a mistake?
A. Because it could ... that could easily happen, you know, when we’re pulling somebody up it happens a lot.
Q. Okay. You said she pulled him up quickly?
A. Yes, ma’am.
Q. Okay. So, you’re on one side and she’s on the other side and y’all are pulling him up with a draw sheet?
A. Yes, ma’am.
Q. Okay. And when she pulled him up quickly did you go with her?
A. Ma’am?
11SQ. Who was leading?
A. She was. But I ... it’s like I had to follower (sic) her or he would have been left in the middle of the bed.
Q. Okay. Was he a big man, a little bitty man?
A. He was a little small man.
Q. Little man. So, were you surprised that his body moved so easily?
A. Yes, ma’am.

Later, on cross examination, Schiele testified:

Q. ... Okay. Now, with regards to Mr. Martin. Okay Mr. Harlen Martin you said that you saw him bump his head when the sheet was pulled down, is that your testimony?
A. No, pulled up.
Q. Pulled up. Okay. And you said that from what you could see there was no intentional behavior on the part of Ms. Baker that it was just simply in the state that it could have happened, is that your testimony?
A. Yes, sir. That could have happened to anybody.
Q. Okay. Could have happened to you?
A. Yeah, it could have happened to me.
Q. Could have happened to me?
A. Uh, huh.
Q. Could have happened to anybody?
A. Uh, huh.

Nurse Regina Reeves testified that the hospital staff has training in how to move patients using the procedure employed by the defendant and Schiele at the time Martin’s head was bumped.

114While the facts may establish that the defendant was careless and perhaps even negligent in moving a small-framed man so quickly, there is nothing in the record to show that the defendant’s actions amounted to a complete or blatant change from the customary or agreed-on course of action required in this situation. The eyewitness stated she believed it was an accident and that it could have happened to anyone. Schiele testified that she examined the victim’s head immediately and saw no apparent injury at the time of the incident. Based on this testimony from the only eyewitness, the state has failed to present sufficient evidence by which a reasonable jury could find the defendant guilty of the responsive verdict of negligent injury. The essential element of criminal negligence is not supported by the record, and we vacate this conviction.

II. Sufficiency as to Count Two (Victim Frostenson)

The defendant argues that despite the eyewitness testimony, Frostenson reported that he injured his hand while being lifted out of his bed. The state counters that its eyewitness was credible and apparently believed by the jury.

The state adequately proved all requisite elements by which to sustain the verdict of guilty as charged. The evidence reflects that the defendant was in contact with the victim on the day the injury was discovered, that the victim was over the age of 60, and that the defendant’s action had caused unjustified pain and suffering.

Schiele’s testimony was unequivocal that she actually saw the defendant bend back the hand of the victim, Frostenson, thus causing him |1sunjustified pain, suffering, and injury. Despite the fact that the jury was presented with an alternate explanation for the victim’s injury, the jury nonetheless chose to believe the testimony of Schiele regarding the issue. The jury apparently chose to discount the defendant’s advancement of a possible motive (recent argument) for the witness making her report of the injuries some four weeks later. Finding no internal contradiction or irreconcilable conflict with physical evidence, Schiele’s testimony, apparently believed by the jury, is sufficient support by which to sustain the conviction relative to Martin.

III. Empaneling of the Petit Jury

The defendant argues that the trial court failed to swear the entire jury panel together as a group and thus failed to comply with La. C. Cr. P. art. 790. The record supports this claim. The defendant further argues that because of this mistake, the defendant’s conviction should be vacated and the matter remanded for a new trial. We disagree. No contemporaneous objection was made and therefore defendant waived any right to raise this issue on appeal. The trial court must be given an opportunity to correct any errors at the time the glitch occurs.

In this instance, the verdict is sufficiently supported by the evidence presented at trial, and the failure to swear the entire jury panel surely did not contribute to that verdict. Further, the failure does not affect substantial rights of this defendant as would be required to reverse this jury’s verdict.

hfilV. Excessive Sentence as to Count One

The defendant was convicted on this count of the responsive verdict of negligent injury, under La. R.S.14:39. She correctly argues that the trial court imposed an excessive sentence. Since we have acquitted her of the charge, this point is moot.

V. Error Patent: Failure to Advise of Post-Conviction Relief Delays

During the defendant’s sentencing hearing, the trial court did not advise the defendant of the time period within which to apply for post-conviction relief. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. Accordingly, we hereby advise her that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

DECREE

We vacate the conviction and enter a judgment of acquittal on count one. We affirm the conviction, sentence, and probationary conditions on count two. We direct the trial court to allow the defendant to perform community service work to defray the court costs assessment, should the 117trial court find that she is indigent and therefore unable to pay the assessment.

COUNT I. CONVICTION REVERSED AND VACATED. JUDGMENT OF ACQUITTAL ENTERED.

COUNT II. AFFIRMED WITH INSTRUCTIONS ON COURT COSTS ASSESSMENT.

      . The statute, R.S. 14:93.3, designates the offense as "cruelty to the infirmed,” an obvious typographical error for "infirm.” State v. Walker, 37,493 (La.App. 2 Cir. 8/20/03), 853 So.2d 746, fn. 1, writ recalled, 2003-2871 (La.7/2/04), 877 So.2d 99; Hal Odom Jr., "How Write You Are,” 12 The Bar Review 15 (October 2003).

      . The letter was kept by her supervisor in a separate file.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La. 10/17/97), 701 So.2d 1333.
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La. 11/14/03), 858 So.2d 422.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La. 11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.


author: WILLIAMS, Judge.

text:
    Phyllis Smith ALLEN, Plaintiff-Respondent, v. Dr. Ronzee McIntyre BRIDGES, Defendant, Louisiana Patients Compensation Fund, Defendant-Applicant.
    No. 41,169-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Walter F. Clawson, Shreveport, for Defendant-Applicant.
    Samuel L. Jenkins, Jr., for Plaintiff-Respondent.
    Robert G. Pugh, Jr., Baton Rouge, for Defendant.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, Judge.

h The defendant, Louisiana Patient’s Compensation Fund (“PCF”), appeals a judgment granting in part the motion in limine filed by the plaintiff, Phyllis Allen, to exclude the testimony of certain witnesses. The supreme court granted the PCF’s writ application and remanded the matter to this court for briefing, argument and opinion. For the following reasons, we affirm, deny the writ and remand.

FACTS

In 2000, Phyllis Allen was diagnosed with cancer of the left and right breasts. Following a mastectomy of each breast, Allen was evaluated by Dr. R. McIntyre Bridges, who performed reconstructive surgery of Allen’s breasts. On February 23, 2001, Allen was admitted for a surgical procedure by Dr. Bridges described as a capsulectomy, debridement of wound and cleaning of the right breast reconstruction. During the cleansing of the implant with ethyl alcohol, a machine used to cauterize wounds sparked, producing a flame which ignited the ethyl alcohol and burned Allen. The wound was treated and the implant was replaced.

In September 2003, a Medical Review Panel issued a unanimous opinion that Dr. Bridges had breached the applicable standard of care and that his conduct caused damages to Allen. Subsequently, the plaintiff, Phyllis Allen, filed a petition for damages against the defendant, Dr. Bridges. Plaintiff filed a motion for summary judgment on the basis of the MRP opinion and an affidavit of a panel member. In April 2004, the district court rendered judgment granting plaintiffs motion for summary judgment “insofar as establishing the defendant’s liability for failing to meet the |2medical standard of care” during the February 2001 procedure. All other available defenses were reserved to defendant.

Thereafter, plaintiff agreed to a settlement with Dr. Bridges and his insurer in the amount of $85,000. In September 2004, plaintiff filed a petition for authority to settle the medical malpractice claim. The court rendered judgment recognizing the settlement, with a full reservation of plaintiffs rights against the PCF. In November 2004, the PCF filed its objections and answer to the petition to settle the medical malpractice claim.

In September 2005, plaintiff filed a motion in limine to prohibit the PCF from offering any evidence at trial to show that Dr. Bridges did not breach the standard of care, based upon the district court’s April 2004 summary judgment. On October 24, 2005, the court rendered judgment granting the motion in limine, prohibiting the PCF from “offering testimony from any witness in any manner that Dr. Bridges did not breach the standard of care, since this issue has already been decided by the court.” Although the PCF filed a notice of intent to seek supervisory review, the record does not reflect that such an application was filed.

In a second motion in limine, the plaintiff attempted to prohibit the PCF from offering expert testimony on the issues of liability, causation or damages from Linda Dessommes, CLNC, Joyce Miller, RN, Dr. Bryan Barrilleaux or Dr. Barron O’Neal. The motion stated that the court had issued a scheduling order requiring the parties to identify all experts and deliver a copy of their reports no later than 70 days before trial, which was scheduled for December 5, 2005. Plaintiff alleged that the PCF had failed |3to provide expert reports for the above-named witnesses within the required deadline.

After a hearing on the motion in limine, the district court’s judgment granted the motion in part, excluding the testimony of Drs. Barrilleaux and O’Neal. However, the court denied the motion as to Des-sommes and Miller and required the PCF to provide plaintiff with the experts’ reports by December 5, 2005. The PCF filed a writ application with this court, which denied the writ upon the showing made. Allen v. Bridges, 41,169 (La.App.2d Cir.2/16/06). The supreme court granted the PCF’s application for writ of supervisory review and remanded the matter to this court for briefing, argument and opinion. Allen v. Bridges, 06-0659 (La.4/28/06), 927 So.2d 273.

DISCUSSION

The PCF contends the district court erred in granting the plaintiffs motion in limine, thereby prohibiting the PCF from introducing the testimony of certain experts. The PCF argues that under the express language of the Medical Malpractice Act, plaintiffs settlement with Dr. Bridges in an amount less than $100,000 does not preclude the PCF from contesting the health care provider’s liability.

Pursuant to the Louisiana Medical Malpractice Act (“MMA”), LSA-R.S. 40:1299.41 et seq., the liability of a single qualified health care provider is limited to $100,000 for the injury or death of any one person. LSA-R.S. 40:1299.42(B)(2). The act provides that damages in excess of $100,000, but which do not exceed $500,000, shall be paid by the PCF. LSA-R.S. 40:1299.42(B)(3). In approving a settlement or determining the Ramount, if any, to be paid by the PCF, the court is required to consider the liability of the health care provider as admitted and established when the provider or its insurer has paid $100,000. LSA-R.S. 40:1299.44(C)(5). A settlement for the health care provider’s maximum liability of $100,000 triggers the PCF’s liability for excess damages and precludes the PCF from contesting the health care provider’s liability. LSA-R.S. 40:1299.42(B)(3); Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879. However, a settlement of less than the full $100,000 does not trigger the PCF’s statutory liability for excess damages and is insufficient to preclude the PCF from contesting the health care provider’s liability. Russo, supra; Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4th Cir.9/17/97), 699 So.2d 1117.

In its brief, the PCF contends that the testimony of all of its experts should be admitted into evidence, pointing out that plaintiffs settlement of her malpractice claim for less than $100,000 did not preclude the PCF from contesting Dr. Bridges’ liability. However, the record indicates that the limitations on the PCF’s presentation of expert testimony are primarily the result of its own conduct.

Although the PCF was an intervenor in the present action at the time of the October 2005 hearing on the plaintiffs motion in limine, the PCF’s attorney did not appear at the hearing and did not request a continuance. In addition, after the district court granted plaintiffs motion to exclude any testimony that Dr. Bridges had not breached the applicable standard of care, the PCF failed to apply for a supervisory writ of review of that ruling, | ^Consequently, the October 24, 2005 judgment is not before this court for review and the PCF is prohibited from presenting expert testimony on the issue of the health care provider’s breach of the standard of care.

Nevertheless, in light of the above-cited statutory provisions, the PCF is not precluded from contesting the issue of whether Dr. Bridges’ negligence was a cause of plaintiffs injuries. Contrary to plaintiffs argument in her brief that the April 2004 summary judgment established the physician’s liability for her injuries, the summary judgment addresses the issue of “liability” only as to Dr. Bridges’ failure “to meet the medical standard of care” during the February 2001 procedure. The judgment expressly reserves all other defenses available to the health care provider and does not address causation or the amount of damages. Thus, pursuant to the MMA, the plaintiff must still establish that Dr. Bridges’ act of malpractice, his breach of the standard of care, was a cause of her injuries and prove the extent of those damages in her action against the PCF.

Even though the PCF is not precluded from contesting causation, the PCF is not entitled to present the testimony of specific experts in violation of the district court’s scheduling order in this case. LSA-C.C.P. art. 1551 gives a court wide discretion to provide for implementation of a pretrial scheduling order and to ensure that the items of the pretrial order are enforced. The theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case. Absent an abuse of discretion, the trier of fact’s decision in implementing and enforcing a pretrial scheduling order will be upheld. Robinson v. Apria Healthcare, Inc., 38,438 (La.App.2d Cir.5/27/04), 874 So.2d 418.

In the present case, the scheduling order provided that the PCF shall “identify all expert witnesses and deliver to all counsel a report prepared by each expert, ... no later than SEVENTY (70) DAYS BEFORE TRIAL. A witness whose report is not timely provided will not be allowed to testify as an expert at trial over objection absent a showing of good cause.”

The plaintiffs October 2005 motion in limine sought to exclude the expert testimony of Drs. Barrilleaux and O’Neal and nurses Dessommes and Miller on the grounds that the PCF failed to timely deliver their expert reports 70 days before the December 5, 2005 trial date in compliance with the scheduling order. At the hearing on the motion in limine, after a bench conference with the attorneys, the district court reset the trial date and granted plaintiffs motion in part. The court rendered judgment excluding the testimony of Drs. Barrilleaux and O’Neal, apparently as a sanction for violation of the scheduling order, and denying the motion as to the nurses. This November 2005 judgment is the subject of the supreme court’s remand and is the judgment properly before this court for review.

The PCF does not dispute that the expert reports were not provided to plaintiff and has not shown any reason why it was unable to timely deliver the reports as required by the pretrial scheduling order. Consequently, we cannot say the district court abused its discretion in excluding the testimony of Drs. Barrilleaux and O’Neal from evidence. Accordingly, we will affirm the November 2005 judgment (signed January 3, 2006) granting the motion in limine in part, deny the PCF’s writ application and remand for further |7proceedings.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting in part the plaintiffs motion in limine is affirmed and the writ is hereby denied. This matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to the appellant, Louisiana Patient’s Compensation Fund.

AFFIRMED; WRIT DENIED AND REMANDED.


author: CARAWAY, J.

text:
    MURCO, INC., A Division of Wesco Distribution, Inc., Plaintiff-Appellant, v. STREETER SERVICE ELECTRIC, INC., and Steven D. Streeter, Defendant-Appellee.
    No. 41,599-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Downer, Hammond & Wilhite, L.L.C. by Kevin W. Hammond, Shreveport, for Appellant.
    Steven D. Streeter, In Proper Person.
    Before GASKINS, CARAWAY and DREW, JJ.
   CARAWAY, J.

_JjA wholesale supplier sued an electrical contractor for payment on an open account. The dispute involves materials delivered to Grambling State University for work completed on a water treatment plant project. The defendant was performing electrical work at the university at that time. The trial court found inadequate proof of an oral invoice sale and ruled in favor of defendant, dismissing the suit. For the following reasons, we affirm the trial court’s ruling.

Facts

In late 2000, defendant, Streeter Service Electric, Inc., whose owner is defendant, Steven D. Streeter (collectively “Street-er”), was awarded a contract for electrical improvements at Grambling State University (“Grambling”). The contract was not specifically identified and reviewed at trial, but Streeter estimated that the labor portion of the $75,694 contract totaled approximately $10,000. The balance consisted of the cost of materials such as ejectors, buckets, chlorine pumps, fixtures, heat pumps, panels, breakers, wiring and cable obtained from assorted wholesalers.

Plaintiff, Murco, Inc., a Division of Wes-co Distribution, Inc. (“Murco”), claims in this action that it supplied Streeter with $34,024.56 worth of electrical buckets and starters described in general terms on its invoice dated July 19, 2002, and shipped to Grambling. Murco’s invoice was never satisfied. Streeter’s answer to Murco’s petition contained the following statement of defense:

Defendants further answer that this debt is owed by Grambling State University, the purchaser and the recipient of the ^materials sued for. Defendants herein had no purchase, agreement nor contract with plaintiff, because, long before the time of the shipping and use of the materials, plaintiff had cut off, terminated and forever closed out defendants’ open account with plaintiff. Because defendants herein had no account with the plaintiff; the materials sued on were ordered not by defendants herein, but by employees and officials of Gram-bling State University. Plaintiffs demand letter, attached to the petition, is addressed also to Grambling State University.

At the trial, Steve Streeter appeared in proper person and testified. Brad Camp, the manager of Murco’s Monroe branch, testified. The trial court’s written reasons found that Murco did not satisfy its burden of proving that Streeter contracted for an open account under La. R.S. 9:2781 and rendered judgment in defendants’ favor. Murco appeals.

Discussion

This dispute centers on an oral contract of sale. Civil Code Article 1846 provides for proof of unwritten contracts and states the following:

If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.

The plaintiff himself may serve as the one credible witness to establish the existence of the oral contract. Smith v. Dishman & Bennett Speciality Co., 35,682 (La.App.2d Cir.1/23/02), 805 So.2d 1220. The other corroborating circumstances need only be general in nature; independent proof of every detail of the agreement is not required. Id. But, the other corroboration must come from a source other than the plaintiff. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 1460, 1466 (La.4/12/05), 907 So.2d 37. The party that sues on an open account has the burden of laproving the contract. Mattix Cabinet Works, Inc. v. Witt, 625 So.2d 527 (La.App. 5th Cir.1993).

The thing, the price, and the consent of the parties are requirements for the perfection of a sale. La. C.C. art. 2439. The seller is bound to deliver the thing sold. La. C.C. art. 2475. Delivery of a movable takes place by handing it over to the buyer. La. C.C. art. 2477. Delivery must be made at the place agreed upon by the parties or intended by them. La. C.C. art. 2484.

A court of appeal may not set aside a finding of fact in the absence of manifest error or unless it is clearly wrong. Touchard v. Slemco Elec. Foundation, 99-3577 (La.10/17/00), 769 So.2d 1200; Smith v. Dishman & Bennett Specialty Co., supra. Where there is a conflict in the testimony, the trier of fact’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). When two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the entire record. Fuhrmann v. Allstate Ins. Co., 36,287 (La.App.2d Cir.8/14/02), 823 So.2d 1135.

The only written document introduced at trial was an invoice prepared by Murco identifying certain equipment, including buckets and starters, with a total price of $34,024.56. The invoice states that the equipment was “shipped direct to univ.” and the shipping address was listed |4as “Steve Streeter, c/o Grambling Univ-er.” Streeter’s signature is not on the invoice, and though it shows that the goods were handled for shipping by a third party, no documentation was produced of a delivery receipt for the equipment from either Streeter or Grambling or their representatives.

In his testimony, Steve Streeter admitted that he purchased some other equipment from Murco and used it for the Grambling job. He insisted that he received that equipment directly from Mur-co’s branch and paid for it himself. He also claimed to have documentation of other materials purchased from different suppliers utilized in obtaining equipment for the Grambling job. He further admitted that a representative of Murco, Mark Joiner, was present at Grambling and involved in the installation process. Murco’s only witness, Brad Camp, who was not directly involved in the Grambling job or with negotiating the disputed Murco invoice, testified that Joiner had worked with Streeter to identify the exact materials required for the Grambling job and helped Streeter using certain devices. Maintaining his denial of responsibility for the invoiced materials or knowledge of their use in completing the job, Streeter concluded his testimony as follows:

Mark [Joiner] pulled the buckets off of the job two different times and sent them back. Each time I’d get a phone call from Lawrence Page [of Grambling] and saying the buckets are back on the job. I’d go back over there and reinstall them. I never once ordered them, I never once told anybody that I was gonna pay for them and we had a closed account by that document right there a year and a half before I was even charged for them. Only thing I can figure out, they made a mistake somewhere in their billing. And they thought since I was on the job that I should pay for it.

This evidence shows both parties at odds over the basic formation of the sale concerning the thing, the price and their consent. A key item for [ scorroborating this claimed oral agreement would be evidence of fulfillment of Murco’s delivery obligation. Yet, Murco produced no delivery receipt acknowledged by Streeter, and the equipment was allegedly delivered to Grambling’s campus, not Streeter. Likewise, Murco produced no direct evidence that the buckets and starters described on its invoice were incorporated into the Grambling project as part of the work performed by Streeter.

A similar supplier's claim on an open account was denied by the appellate court in Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir.1973), reversing the trial court’s ruling which credited the seller’s oral representation of the sale over the alleged purchaser’s. In reversing the ruling and rejecting the plaintiffs claim, the court said:

In view of Champion’s denial, Tubesales’ failure to produce the delivery receipts (which it indicated were available) or to explain the non-production reduces the evidence on the contested issues to unsigned invoices typed on Tubesales’ letterhead and to the word of one witness against that of the other.

Id. at 459. Although the authority of Civil Code Article 1846, supra (former Article 2277), was not cited, the Fourth Circuit’s conclusion was that, although corroborating evidence other than the oral claim of plaintiff was available, it was not produced. Thus, the existence and breach of the oral agreement was not established.

In the present ease, we are left with the word of one party against that of the other with no other corroboration of the plaintiffs claim. The trial court was entitled to accept Streeter as a credible witness; adequate proof of Ifithe oral contract under Article 1846 was lacking; and the plaintiffs claim for payment on the open account was therefore properly rejected.

Accordingly, the ruling of the trial court is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.


author: GASKINS, J.

text:
    Jerry W. REYNOLDS and Peggy Reynolds, Plaintiffs-Appellees, v. U.S. AGENCIES CASUALTY INSURANCE COMPANY, Allstate Insurance Company and Jarrod D. Jacob, Defendants-Appellants.
    No. 41,598-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.
    Hudson, Potts & Bernstein, by Mark J. Neal, Monroe, Donald H. Ziegler, for Defendant-Appellants, U.S. Agencies and Jarrod D. Jacob.
    G. Larry Arbour, for Defendant-Appel-lee, Allstate Insurance Company.
    Travis M. Holley, for Plaintiffs-Appel-lees, Jerry W. and Peggy Reynolds.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

_j_¡This matter involves insurance ranking between USAgencies Casualty Insurance Company, Inc. (USAgencies), and Allstate Insurance Company (Allstate). The insurance companies each filed motions for summary judgment. USAgencies appeals from a trial court ruling which rejected its motion for summary judgment and granted summary judgment in favor of Allstate, finding that USAgencies’ policy provided primary coverage. For the following reasons, we affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Jarrod D. Jacob owned a truck which was insured by USAgencies. On June 30, 2005, he was involved in an accident and his truck was not safe to drive. He borrowed a 1995 pickup truck from his grandmother. This truck was insured by Allstate. Mr. Jacob did not live with his grandmother and is not an insured under her policy.

The next day, on July 1, 2005, while driving his grandmother’s truck, Mr. Jacob rear-ended a vehicle driven by the plaintiff, Jerry W. Reynolds. Mr. Reynolds filed suit claiming injuries and property damage. His wife, Peggy Reynolds, asserted a claim for loss of consortium.

Allstate answered the plaintiffs’ petition, claiming that Mr. Jacob borrowed the truck from his grandmother until his vehicle was repaired. Therefore, the truck was a “temporary substitute” motor vehicle under La. R.S. 22:681, and Mr. Jacob’s insurer, USAgencies, was the primary insurer |afor the damages sustained by the plaintiffs. USAgencies also answered the plaintiffs’ claim, asserting that, under the terms of its insurance policy, coverage for the borrowed vehicle was secondary to the Allstate policy.

Allstate filed a motion for summary judgment, based on its argument that La. R.S. 22:681 requires that USAgencies provide primary coverage for a “temporary substitute” motor vehicle such as the one borrowed from Mr. Jacob’s grandmother. The parties stipulated that the accident was caused solely through the fault of Mr. Jaeob and that the total value of the judgment did not exceed his policy limits with USAgencies. Therefore, Allstate asserted that it was not required to provide any coverage for this accident and should be dismissed from the suit.

USAgencies filed its own motion for summary judgment, arguing that the term “temporary substitute” motor vehicle is not defined in its policy. Therefore, the company claimed that La. R.S. 22:681 is not applicable to this case. USAgencies asserted that its policy provides only excess coverage for “non-owned” vehicles, which would include the truck Mr. Jacob borrowed from his grandmother.

|3The USAgencies policy defines a “non-owned” auto as:

any auto, other than your insured auto, which is not owned by or furnished or available for regular use by you, a family member, or an additionally listed driver.

The policy further provides:

For coverage we provide under this Part for your insured auto, if there is other applicable liability insurance, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. For any coverage we provide under this Part for a non-owned auto, such coverage shall be excess over any other collectible insurance with the exception of an auto which is a rental private passenger automobile rented by you, which for the limited purpose of this paragraph shall be treated the same as your insured auto to the extent required by law. However, if other automobile insurance coverage is purchased for such rental private passenger vehicle, our coverage shall be excess over such collectible coverage. [Emphasis supplied.]

At a hearing on the motions, the trial court granted summary judgment in favor of Allstate, denied the motion filed by US-Agencies, and certified the matter as a final judgment. USAgencies appealed.

LEGAL PRINCIPLES

Resolution of the issues raised in this matter requires an interpretation of La. R.S. 22:681. An interpretation of a statute is a question of law that may be decided by a motion for summary judgment. State Farm Mutual Automobile Insurance Company v. U.S. Agencies, L.L.C., 2005-0728 (La.App. 1st Cir.3/24/06), 934 So.2d 745, writ denied, 2006-0933 (La.6/16/06), 929 So.2d 1288.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

DISCUSSION

USAgencies argues that the trial court committed legal error by granting summary judgment in favor of Allstate. According to the company, because it chose not to include “temporary substitute” vehicle as a defined term in its policy, and because it chose to extend only excess coverage to “non-owned” vehicles, La. R.S. 22:681 has no application to this matter.

This same issue involving USAgencies was recently considered by the first circuit in State Farm Mutual Automobile Insurance Company v. US Agencies, L.L.C., supra. The court explored the principles of statutory interpretation:

Legislation is the solemn expression of the legislative will; therefore, the interpretation of a statute primarily involves the search for the legislature’s intent. LSA-C.C. art. 2; Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners, 04-1674 (La.2/4/05), 894 So.2d 325, 330. The interpretation of a statute begins with the language of the | Bstatute itself. Denham Springs, 894 So.2d at 330. Louisiana Civil Code article 9 instructs that when a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written. LSA-C.C. art. 9; Denham Springs, 894 So.2d at 330.
However, when the language of a statute is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Safeway Insurance Co. of Louisiana v. State Farm Mutual Automobile Insurance Co., 36,853 (La.App. 2 Cir. 3/5/03), 839 So.2d 1022, 1025. When a statute is ambiguous or when its literal construction produces an absurd or unreasonable result, the letter must give way to the spirit of the law and the statute construed to produce a reasonable result. Fontenot v. Chevron U.S.A. Inc., 95-1425 (La.7/2/96), 676 So.2d 557, 562.

State Farm Mutual Automobile Insurance Company v. U.S. Agencies, L.L.C., 934 So.2d at 747-748.

The first circuit concluded that the provisions of La. R.S. 22:681, mandating that USAgencies provide primary coverage for “temporary substitute” vehicles, are clearly mandatory. To allow the statute to apply only if an insurer chose to define “temporary substitute” vehicle would lead to an absurd result. The first circuit stated that a statute must be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention of the legislative history in enacting it.

The court determined that, according to the legislative history of the statute, the legislature intended to require the extension of all insurance coverage an individual possesses on his own vehicle to the use of a rental ^vehicle or a “temporary substitute” vehicle. The court noted that it was not the intention of the legislature to allow an insured to opt out of the mandate of the statute by failing to define “temporary substitute” vehicle.

USAgencies argued, as it does in the present case, that it complied with the statute because “temporary substitute” vehicle was included in the definition of a “non-owned” vehicle. Under the parties’ freedom to contract, the company argued that it extended only excess coverage to “non-owned” vehicles. The first circuit rejected that argument, finding that the conflicting language of the USAgencies policy must yield to the statutory law of La. R.S. 22:681.

The concurring opinion in State Farm Mutual Automobile Insurance Company v. U.S. Agencies, L.L.C., supra, noted that the decision changes the long-standing practice in the insurance industry and provides that where the driver of a “temporary substitute” vehicle is at fault in an accident, the primary liability insurer of the vehicle owner is now secondary.

We find that the reasoning of the first circuit in State Farm Mutual Automobile Insurance Company v. U.S. Agencies, L.L.C., supra, is sound and “is on all fours” with the issues raised in the present case. USAgencies is bound by the provisions of La. R.S. 22:681 to provide primary coverage where its insured is at fault in causing an accident while driving a “temporary substitute” vehicle. The trial court properly granted summary judgment in favor of Allstate and rejected the motion by USAgencies.

|7C0NCLUSI0N

For the reasons stated above, we affirm the trial court decision granting summary judgment in favor of Allstate Insurance Company, dismissing it from the present case. We also affirm the trial court’s action in denying the motion for summary judgment filed on behalf of USAgencies. All costs in this court are assessed to USAgencies.

AFFIRMED.

      . La. R.S. 22:681 provides:

        Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source. [Emphasis supplied.]
      This provision was originally enacted as La. R.S. 22:1406(F). It was redesignated as La. R.S. 22:681 by Acts 2003, No. 456, § 3.

      . In Safeway Insurance Company of Louisiana v. State Farm Mutual Automobile Insurance Company, supra, this court found that the statute requires that all of the insured's insurance, liability, comprehensive, and collision, shall be primary on "temporary substitute” vehicles.

      . In State Farm Mutual Automobile Insurance Company v. U.S. Agencies, L.L.C., supra, the first circuit noted that USAgencies defined “temporary substitute” vehicle in its policy until March 2002. Revisions to the policy then deleted the definition.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Marvin W. THOMPSON, Appellant.
    No. 41,416-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.
    G. Paul Marx, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, Rosalind D. Jones, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   BROWN, Chief Judge.

1 defendant, Marvin W. Thompson, was charged by bill of information with possession of cocaine, a violation of La. R.S. 40:967. On the day of trial, defendant pled guilty to the charged offense. The district court imposed a sentence of three years at hard labor and denied a timely filed motion for reconsideration of sentence.

Defendant’s appellate counsel filed a Benjamin brief and motion with this court stating that he had conscientiously and thoroughly reviewed the trial court record and found no non-frivolous issues to raise on appeal, nor had he found any trial court ruling which would arguably support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). In addition to summarizing the procedural history and the facts of the case, the court-appointed attorney’s brief provided a detailed, reviewable assessment of whether the appeal was worth pursuing. See State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

In accordance with the above jurisprudence, appellate defense counsel also notified defendant of his right to file a pro se brief and sought to withdraw from the case. This court held the motion to withdraw in abeyance and advised defendant of his right to file an appellate brief within 30 days of this court’s June 8, 2006, order deferring a ruling on counsel’s motion to withdraw. As of this date, defendant has not responded to the notice.

| ?We have examined all of the pleadings filed in the district court, together with the court proceedings, the bill of information and all transcripts contained in the record. Defendant was properly charged by bill of information. Defendant was present in court and represented by counsel at all important states of the proceedings.

Even if we were to review defendant’s sentence, we note that the statutory range for possession of cocaine is imprisonment with or without hard labor for not more than five years with discretionary imposition of a fine of not more than $5,000. La. R.S. 40:967(C). In sentencing defendant to three years at hard labor, the district court gave extensive reasons for the sentence imposed. We find no abuse of the sentencing court’s discretion nor do we find the mid-range hard labor sentence to shock the sense of justice or constitute a purposeless and needless infliction of pain and suffering.

Our independent review has disclosed no non-frivolous issues and no rulings which arguably support an appeal. Having also examined the record for errors patent, we found none. Appellate defense counsel’s motion to withdraw is granted and defendant’s conviction and sentence are AFFIRMED.