text:
    Jonathan BRAVO, Luis Alcala, Jose Gallardo v. Benny James BORDEN, Louisiana Service Corporation, Severn Trent Environmental Services, Inc., and St. Paul Travelers Insurance Company.
    No. 07-CA-380.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Ivan A. Orihuela, Irvin & Orihuela, L.L.C., Kenner, Louisiana, for Plaintiff/Appellant.
    Brian C. Bossier, Christopher T. Grace, III, Erin H. Boyd, Blue Williams, L.L.P., Metairie, Louisiana, for Defendant/Appel-lee.
   Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.

MARION F. EDWARDS, Judge.

12Plaintiff/appellant, Luis Alcala (“Alca-la”), appeals a judgment of the Twenty-Fourth Judicial District Court dismissing his case with prejudice. We reverse and remand for the reasons to follow.

Alcala, along with co-plaintiffs/appellants, Jonathan Bravo (“Bravo”) and Luis Gallardo, filed suit against Benny James Borden (“Borden”), Borden’s employer, Severn Trent Environmental Services, Inc. (“Severn”), the owner of the Borden vehicle, Louisiana Service Corporation, and its insurer, St. Paul Traveler’s Insurance Company. The action commenced as a result of an automobile accident on October 28, 2003, in which Borden’s car struck the vehicle in which the plaintiffs were riding. The next pleading in this designated record is a Motion to Dismiss Claim of Luis Alcala and Motion to Strike and Alternatively Motion to Compel, filed on August 9, 2006. The motion alleged that Severn requested to take Alcala’s deposition and that, although Alcala’s attorney, Mr. Riguer Silva (“Mr. Silva”), had advised that his client was available on August 16, 2005, lacounsel contacted Severn’s attorney on August 15 and advised that his client was no longer available. No additional available dates were given to Severn prior to the arrival of Hurricane Katrina.

In November and December of 2005, Severn attempted, via correspondence and telephone, to contact Mr. Silva to obtain new dates for the deposition. Severn then unilaterally re-noticed the deposition and, once again, was informed by Mr. Silva that his client was unavailable on that date but would be available on February 20, 2006. On that date, although depositions of the other two plaintiffs were taken, Alcala did not appear. After once more attempting to re-set the deposition without response from Mr. Silva, Severn again re-noticed it for June 8, 2006, serving a subpoena on Alcala through Mr. Silva. On June 7, Mr. Silva cancelled the deposition. Attached to the motion are copies of correspondence between the two attorneys regarding the re-settings of the deposition.

On September 18, 2006, the trial court granted Severn’s Motion to Strike the testimony of Alcala, and reset the Motion to Dismiss the claim for October 2006. This Court denied writs on the judgment. At the October hearing, Mr. Ivan Orihuela (“Mr. Orihuela”) represented Alcala. (It is not clear if Mr. Orihuela was attorney of record at that time.) Nevertheless, he argued that Mr. Silva had previously been unable to locate his client and had not heard from him, as Alcala had been displaced by the hurricane. Further, counsel urged that Mr. Silva’s office had been destroyed, that his records had to be reconstructed, and, further, that Severn had not shown prejudice to the case since there were other witnesses, including his physicians, who had been deposed or were available to testify. Severn’s attorney argued that he had been at Mr. Silva’s office since the hurricane and that, at the February depositions, Mr. Silva was given Alcala’s cell phone |4number by Bravo. Mr. Silva was not present at the argument on the motion. The court granted the Motion to Dismiss.

According to LSA-C.C.P. art. 1471, if a party fails to obey an order to provide or permit discovery, the court in which the action is pending may make such orders in regard to the failure as are just, including (under paragraph (3)), dismissing the action or proceeding or any part thereof. Under C.C.P. art. 1473, if a party fails to appear before the officer who is to take his deposition, after being served with a proper notice, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (1), (2), and (3) of C.C.P. art. 1471.

Here, in the August 2006 Motion to Dismiss, Strike Testimony, and alternatively, Compel, Severn urged that a motion to compel a response to written discovery was granted on June 30, 2005. There is no argument or evidence that Alcala failed to obey that order. Nothing in any pleadings or argument before the district court discloses that a motion to compel Alcala to submit to a deposition was ever granted, even in the September 18 judgment. The judgment and minutes for that date verify that, while the motion to compel was before the court in September, the court only granted the Motion to Strike and continued the Motion to Dismiss, without determining the Motion to Compel.

The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion. Dismissal, however, is a draconian penalty which should be applied only in extreme circumstances. Dismissal is a sanction of last resort only to be imposed where a party has failed to comply with a court order of discovery | Kand only after an opportunity to be heard has been afforded the litigant. Dismissal and default are generally reserved for those cases in which the client, as well as the attorney, is at fault.

In Horton, the Louisiana Supreme Court adopted from the federal courts four factors to consider before taking the drastic action of dismissal. These factors are: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery. Generally, the courts have not affirmed dismissal or default where, in the absence of a court order, a party has not submitted to discovery. Nevertheless, we agree with the Fourth Circuit that the express language of LSA-C.C.P. art. 1473 does not require the deposition to be court ordered before its provisions are applicable. Whereas the sanctions under C.C.P. art. 1471 are not triggered until the discovery has been ordered by a court, the sanctions under C.C.P. art. 1473 do not require a court order.

Nevertheless, the restrictions on a trial court judge’s vast discretion in managing discovery matters apply equally to sanctions imposed for a party’s failure to comply with court ordered discovery and sanctions imposed for the failure of a properly served party to attend a properly noticed deposition. In Barber v. Ichaso, 2001-0213 (La.App. 4 Cir. 2/27/02), 811 So.2d 1128, this Court discussed the criteria for determining whether a | ntrial court has properly dismissed a party’s pleadings because the party did not attend a properly noticed deposition.
The following criteria were considered in the Barber case:
(1) whether the party’s failure to attend the deposition was due to the party’s, as opposed to his attorney’s, willfulness, bad faith, or fault;
(2) whether the party was aware at the time he failed to appear at his deposition that he could be sanctioned by the dismissal of his pleadings; and
(3) whether the record contains a court order requiring the party to appear at his deposition.

In the present matter, the above criteria have not been met. We are mindful that this is a designated record. Even so, we are unable to discern, even from the argument of counsel, that there is any evidence that Alcala was directly responsible for his repeated failure to appear. That salient fact, along with the lack of a court order requiring Alcala to appear and, along with a lack of proof to show that that he was aware that dismissal was a possible sanction, compels us to find that dismissal of his suit was an abuse of discretion. There was no evidence presented at the hearing concerning these factors, and we, thus, cannot determine whether the trial court’s dismissal of the suit was error.

Accordingly, the judgment of dismissal is vacated, and the matter is remanded for an evidentiary hearing on these factors.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . Jonathan Bravo, et al. v. Benny James Borden, et al, Writ No. 06-C-781 (La.App. 5 Cir. 11/28/06).

      . Hutchinson v. Westport Ins. Corp., 2004-1592 (La.11/8/04), 886 So.2d 438.

      . Id. (citing Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203).

        .Id.

      . Horton v. McCary, supra.

      . Id.; LeBlanc v.GMAC Fin. Serv., 97-0131 (La.App. 4 Cir. 5/28/97), 695 So.2d 1106.

      . LeBlanc, supra; Smith v. 4938 Prytania Inc., 04-0833 (La.App. 4 Cir. 1/26/05), 895 So.2d 65.

      . Smith v. 4938 Prytania Inc., supra.

      . Smith, 895 So.2d at 73 (citing Barber v. Ichaso, 2001-0213 (La.App. 4 Cir. 2/27/02), 811 So.2d 1128, writs denied, 2000-3503 (La.2/9/01), 785 So.2d 830).

      . See, Horton v. McCaty, supra.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Penny Strauss FALCON v. Shane Anthony FALCON.
    No. 07-CA-491.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Mitchell J. Hoffman, Jeffrey M. Hoffman, Lowe, Stein, Hoffman, Alweiss & Hauver, L.L.P., New Orleans, LA, for Defendant/Appellant.
    Ferdinand J. Kleppner, Law Offices of Ferdinand J. Kleppner, Ltd., Metairie, LA, for Plaintiff/Appellee.
   Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.

MARION F. EDWARDS, Judge.

12Pefendant/appeIIant, Shane Anthony Falcon (“Falcon”), appeals a judgment in favor of his former wife, plaintiff/appellee, Penny Strauss Falcon (“Mrs. Falcon”), in the amount of $150,000. For the foregoing reasons, we affirm.

On September 2, 2003, Mrs. Falcon filed a Petition for Damages in the Twenty-Fourth Judicial District Court against her former husband alleging numerous instances of violent behavior against her. The allegations included stalking, rape, and attempted murder. Mrs. Falcon sought damages for pain and anguish as well as loss of income. The couple had been granted a divorce in October 2002.

Falcon filed a pro se answer to the petition from Dixon Correctional Center, where he was incarcerated. Subsequently, Falcon executed a general Power of Attorney in favor of his sister, Lorenza Davis (“Ms. Davis”). Ms. Davis and Falcon filed an Amended Answer to the petition. On May 5, 2005, Falcon was ^convicted of solicitation to commit murder of his wife and later sentenced to seventeen years at hard labor. In December 2005, a Motion for Status Conference to Set Trial in the civil litigation was filed and served upon both Falcon and Ms. Davis. Ms. Davis was present at the status conference when the trial date was set for June 19.

On June 5, 2006, pursuant to a motion by Mrs. Falcon, the trial court signed a Motion for Writ of Habeas Corpus Ad Testificandum directing the warden at Dixon Correctional Center (“Dixon”) to produce Falcon for trial. The motion stated that Falcon’s presence was necessary for cross-examination purposes. Counsel for Mrs. Falcon sent a letter by certified mail on June 6 to Falcon, informing him of the date of trial. When trial commenced, Falcon was not present. The court heard the testimony of Mrs. Falcon and rendered judgment in the amount of $150,000. Falcon, through counsel, filed a Motion for New Trial, which was denied. On appeal, Falcon first urges that the court erred in commencing the trial in his absence.

When an inmate is a party to civil judicial proceedings, the trial judge, in his discretion, may order the presence of the inmate in court pursuant to LSA-R.S. 15:706(D). Under R.S. 15:706(D), when a prisoner’s presence is required in court proceedings in a district court for a parish outside the judicial district in which he is incarcerated, the party requesting the prisoner’s presence shall apply to the court in which the proceeding is to be held for an order directing the transportation of the prisoner and the court shall order the sheriff of the parish in which the court proceeding is to be held to take custody of the prisoner in the parish in which he is incarcerated and to transport him to the parish in which the proceeding is to be held. It is not unusual for individuals who are incarcerated to be parties to civil litigation, either as plaintiff or defendant, and a writ of habeas corpus ad \ ¿testificandum is the means for such individuals to be present in court. Prisoners who are parties to litigation utilize this mechanism to obtain their presence and the presence of witnesses who are also incarcerated in court.

In the present case, Mrs. Falcon moved for a writ of habeas corpus ad testifican-dum, but directed it solely to the warden at Dixon rather than to the Sheriff in Jefferson Parish. There was no order or writ to the Jefferson Parish Sheriff directing that office to transport Falcon to Jefferson Parish. However, Falcon had notice both personally and through his mandate, Ms. Davis, of the upcoming trial, and, if he found it necessary to be present at trial, it was incumbent upon him to seek the proper relief to ensure his own appearance. There is no indication in the record that Falcon was es-topped or prevented in any way from applying for the necessary writ.

A prisoner has a right of access to state and federal civil courts.... However, this right does not necessarily include the right to be physically present at the trial of a civil suit.... Generally, prisoners who bring civil actions have no right to be personally present in court at any stage of the action.... Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights among which is the right of a prisoner to plead and manage his action in court personally.... A prisoner’s right to sue for civil damages does not involve a fundamental constitutional right, and, thus, access to the courts may be restricted if there is a rational basis for the restriction....

This assignment of error is without merit.

Falcon also complains that the court erred in failing to grant a new trial because he was not present at the original proceedings. For the reasons above, this assignment of error is also without merit.

| ^Finally, Falcon contends that the court erred in awarding Mrs. Falcon $150,000 based exclusively on her own testimony, and, further, that she did not establish a prima facie case.

In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. LSA-C.C. art. 2324.1. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms. When damages are insusceptible of precise measurement, much discretion is left to the trial court for the reasonable assessment of these damages. LSA-C.C. art. 1999. In reviewing an award of damages by the trial court, the appellate court is limited to a review for abuse of discretion. The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. A trial court’s determination as to whether testimony is credible or the plaintiff has met his/her burden of proof is a factual determination, and not to be disturbed unless clearly wrong or there is a showing of manifest error.

At trial, Mrs. Falcon testified that, during the course of her marriage, Falcon was verbally abusive and stalked her at work. On one occasion, he reached into her car window, yanked her ear and stole an earring, then stole her cell phone when she tried to call the police. He has repeatedly broken into her house and stolen her personal property. Falcon raped her and attempted to kill her on three separate | ^occasions. During the course of the criminal proceedings against her, he threatened her. She has had to go to a self-defense program several times. She still fears him, because he has already tried to get to her from jail, and she has purchased a gun to defend herself. She and her children have had counseling.

In the present ease, Mrs. Falcon suffered both physical and psychological abuse at the hands of her husband over a period of several years. She testified that she is still afraid of Falcon, and, under the particular circumstances, her fear does not appear to be unfounded. In the present ease, we find no manifest error in the determination by the trial court that Mrs. Falcon met her burden of proof and no abuse of discretion in the award of general damages.

For the foregoing reasons, the judgment is affirmed. Costs are taxed to Falcon.

AFFIRMED.

      . See, Ardoin v. Bourgeois, 2004-1663 (La.App. 3 Cir. 11/02/05), 916 So.2d 329.

      . Id.

      . Proctor v. Calahan, 95-210 (La.App. 3 Cir. 8/30/95), 663 So.2d 110, 112 (citations omitted).

      . Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802.

      . Arseneaux v. Gray Ins. Co., 06-266 (La.App. 5 Cir. 9/26/06), 943 So.2d 521.

      . Montrell v. State Farm Mut. Auto. Ins. Co., 2006-0054 (La.App. 4 Cir. 11/21/06), 946 So.2d 230, writ denied, 2006-2997 (La.2/16/07), 949 So.2d 414.


author: ' MARION F. EDWARDS, Judge.

text:
    John E. SPELLMAN v. DISCOUNT ZONE GAS STATION and John Doe, Employee and Insurance Company.
    No. 07-CA-496.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Stephen N. Elliott, William D. O’Regan, IV, Bernard, Cassisa, Elliott & Davis, Me-tairie, Louisiana, for Defendant/Appellee.
    John E. Spellman, St. Francisville, Louisiana, In Proper Person.
   Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.

' MARION F. EDWARDS, Judge.

12Plaintiff/appeIlant, John Spellman (“Spellman”), appeals a judgment of the Twenty-Fourth Judicial District Court granting an Exception of Vagueness in favor of defendant/appellee, Discount Zone Gas Station (“Discount Zone”). Spellman, in proper person, filed a Complaint for Damages against Discount Zone, “John Doe Employee” and “Insurance Company.” The petition alleged that, on March 23, 2006, he was advised in criminal district court that defendant had a surveillance video tape of him and that the tape was given to other people in the community without his consent. He further alleged that the photo “was shown all over this community by a person named Natalie Floyd, and this was witnessed by other people of that area in Metairie, Louisiana.” According to Spellman, this constituted a tort claim as a “Green Light invasion of his privacy and an infringement of his rights.” Spellman further urged that the defendants caused him |3to be arrested “based on the photo being produced where such photo does not show any crime being committed by plaintiff against defendant.”

Discount Zone filed Exceptions of Insufficiency of Service of Process and Vagueness. The exceptions were heard, and the trial court sustained the exception of insufficient service and granted Spellman thirty days to effect service. The exception of vagueness was taken under advisement and ultimately granted. Although Spell-man argues it was error to grant the exception of insufficient service, the motion for appeal was taken only from the second judgment dated February 22, 2007.

At the hearing, Spellman stated that Discount Zone had a tape of him using the telephone at the store, spliced it, and “gave it to people in the community” without his permission and “made [him] out to be a suspect” (apparently of a robbery). Other people were “looking to do [him] harm.” According to Spellman, Discount Zone slandered him.

In granting the exception, the court cited Jaubert v. Crowley Posh-Signal Inc., which discussed the ways the right to privacy might be invaded. The trial court found that, in the present matter, the petition was devoid of sufficient facts that would indicate a Jaubert violation: Referring to the photograph to which Spellman objected, the court discussed Jaubert and stated that an invasion of privacy does not occur when an individual makes a photograph which anyone is free to see. Ultimately, the court determined to dismiss the petition because grounds for the objection could not be removed by amendment.

A petition shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation. LSA-C.C.P. art. 891.

l/The purpose of the exception of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him generally to prepare his defense, as well as additionally by a formal pleading to identify the cause of action so as to bar its future relitigation after determination by the present suit. However, the defendant is not entitled through the exception of vagueness to require exactitude and detail of pleading beyond those necessary for these aims. An exception of vagueness will be denied if the petition fairly informs the defendant of the nature of the cause of action and includes sufficient particulars for the defendant to be able to prepare his or her defense.

The petition at issue here names or attempts to name several defendants. It states that a surveillance tape or photo was given to other people in the community without Spellman’s consent. A person not named as a defendant is stated to have shown the photo around the community. There are no facts alleged indicating that it was Discount Zone that distributed the likeness. At the hearing, Spellman stated that Discount Zone spliced a tape of him using the telephone at the store and gave it to people without his permission. As we appreciate it, Spellman is attempting to allege that he was intentionally falsely implicated as being a suspect in a robbery. In the context of an action for invasion of privacy, the petition makes a broad allegation that Spellman’s likeness was given to other people. It fails to advance material facts of the transaction or occurrence that is the subject matter of the litigation and does not include sufficient particulars for the defense. The petition is clearly subject to an exception of vagueness.

Is We further note that, in Louisiana, the right of privacy embraces four different interests: the appropriation of an individual’s name or likeness, for the use or benefit of the defendant; when the defendant unreasonably intrudes upon the plaintiffs physical solitude or seclusion; publicity which unreasonably places the plaintiff in a false light before the public; and unreasonable public disclosure of embarrassing private facts. In the present case, it is the third category at issue. In that regard, the Jaubert Court stated that, while the publicity need not be defamatory in nature, but only objectionable to a reasonable person under the circumstances, it must contain either falsity or fiction.

Unknowable except to one’s self is the hidden, private line between one’s public displays and one’s private self. The tort of false light invasion of privacy affronts that private self by publicizing a public display in a manner which is both unreasonable and false. If the publicity is an accurate portrayal of the public display, if the publicity is not unreasonable and false, then plaintiff has no actionable privacy interest, even if the publicity has caused embarrassment, offense, or damage.

In Louisiana jurisprudence, the right to privacy has been variously defined as “the right to be let alone” and “the right to an ‘inviolate personality.’ ” A violation of the right to privacy constitutes a breach of duty, or fault. Where no such right to privacy exists, however, a person’s conduct may be the cause of another person’s embarrassment, discomfiture, or monetary loss, but it will not constitute a “legal cause,” because no duty has been breached. A defendant’s duty is to avoid unreasonable invasions of plaintiffs “inviolate personality.” There is no duty to avoid reasonable, accurate publicity because it embarrasses and offends. | (¡“Fault” flows from conduct which is unreasonable and contains falsity or fiction. Spellman’s petition alleges neither falsity nor fiction.

While the dilatory exception of vagueness addresses the detailed sufficiency of the petition, the peremptory exception of no cause of action tests the legal sufficiency of the pleadings detailed in the petition. To the extent that Spellman may have attempted to allege a “false light” invasion of privacy, we note ex proprio motu that the petition also fails to state a cause of action. The facts alleged do not disclose in what false light Spellman may have been placed or unreasonable conduct on the part of Discount Zone. Although Spellman avers that the “defendants” caused him to be arrested, he does not indicate reason, circumstances and result of his appearance in criminal court. However, we note that Spellman’s address during these proceedings is at a Louisiana correctional center.

From the petition, we cannot discern conduct on the part of Discount Zone that constituted an actionable invasion of privacy-

For the foregoing reasons, the judgment dismissing Spellman’s cause of action is affirmed.

AFFIRMED.

      . 375 So.2d 1386 (La.1979).

      . See, AAA Delivery, Inc. v. Airborne Freight Corp., 94-346 (La.App. 5 Cir. 11/16/94), 646 So.2d 1113, writ denied, 94-3073 (La.2/9/95), 649 So.2d 423; Smart v. Gold, Weems, Bruser, Sues & Rundell, 2006-1414 (La.App. 3 Cir. 4/4/07), 955 So.2d 263, writ denied, 2007-0854 (La.6/22/07) 959 So.2d 497.

      . Id.

      . Smart v. Gold, supra.

      . Jaubert v. Crowley Post-Signal Inc., supra.

      . Easter Seal Soc’y For Crippled Children and Adults of La., Inc. v. Playboy Enterprises, Inc., 530 So.2d 643, 647 (La.App. 4 Cir.1988), writ denied, 532 So.2d 1390 (La.1988).

      . Id.

      . Id.

      . Id.


text:
    OMEGA CENTER FOR PAIN MANAGEMENT, L.L.C. v. OMEGA INSTITUTE OF HEALTH, INC., Omega Hospital, L.L.C. and Joseph H. Bellina, M.D.
    No. 07-CA-558.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Kyle Schonekas, Joelle Evans, Al J. Robert, Jr., Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellant.
    Jacqueline G. Griffith, Charles 0. Taylor, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, LLP, Metairie, Louisiana, for Defendants/Appel-lees.
    Leopold Z. Sher, James M. Garner, Debra J. Fischman, Sher Garner Cahill Richter, Klein & Hilbert, L.L.C., New Orleans, Louisiana, for Defendant/Appellee.
   Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.

MARION F. EDWARDS, Judge.

| gPlaintiff/appellant, Omega Center for Pain Management, L.L.C. (“Omega Center”), appeals a judgment in favor of defendants/appellees, Dr. Joseph H. Beilina (“Dr. Beilina”), Omega Institute of Health Inc. (“Omega Institute”), and Omega Hospital, L.L.C. (“Omega Hospital”), granting their Exceptions of Prescription and dismissing the case with prejudice. We affirm and remand.

Omega Center filed suit in April 2005 against Dr. Beilina, Omega Institute and Omega Hospital. In the petition, Omega Center alleged that anesthesiologist Dr. Paul Hubbell (“Dr. Hubbell”) and Dr. Bei-lina, through the Omega Institute, formed the Omega Center in 1998, each with a 50/50 ownership interest. Paragraph 11 stated: “Dr. Hubbell and Dr. Beilina agreed to share in procedural revenues generated from Omega Center for Pain.” The next allegation is that Company Management Systems (“CMS”), a billing company owned by Dr. | ?,Beilina, actually performed all billing and collecting for Omega Center and Dr. Hubbell, but eventually, another company, Southern Pain and Anesthesia Consultants, L.L.C., took over billing in January 2001. The petition averred that CMS continued to double bill for anesthesia services, but notwithstanding, Omega Center has not received payment for anesthesia patients since April or May 2001. Dr. Beilina instructed CMS and other employees to divert funds due to Omega Center to other entities, including Omega Institute or Omega Hospital. Dr. Hubbell, on behalf of Omega Center, refilled patients’ pain medication pumps during the years at issue, but, pursuant to Dr. Beilina’s instructions, the money was taken by Omega Institute or Omega Hospital.

Omega Center had a line of credit primarily for the acquisition of pain management equipment. During the time in question, Dr. Hubbell delivered anesthesia and pain clinic services at a separate company, Surgi-Net in Lafayette. Equipment was ordered for Surgi-Net under Omega Center’s account, as Omega Center was attempting to obtain a billing contract with Surgi-Net. Equipment for Omega was also ordered and paid from Omega Center’s line of credit. However, Omega Institute or Omega Hospital billed and collected for the equipment at Dr. Beilina’s instructions.

Omega Center alleged as causes of action a breach of fiduciary duty, a breach of contract, and a bad faith breach of contract against all defendants.

Numerous pleadings were filed by Omega Hospital, Omega Institute, and Dr. Bei-lina, including Exceptions of Prescription, No Cause of Action, Vagueness, Lack of Procedural Capacity, and Want of Amicable Demand. Following a hearing on the exceptions, the court granted the Exception of Prescription, dismissed the action with prejudice, and found the remaining exceptions were moot. Omega Center appeals.

|4On appeal, Omega Center urges the trial court erred by incorrectly characterizing the asserted claims as tortious in nature; by failing to require the defendants to present proof that prescription had not accrued because it is not evident that the claims are prescribed on the face of the pleadings; and, alternatively, that the court erred in not allowing it to amend its petition before dismissing the claim with prejudice. Omega Center avers that the period of ten years for a personal action under LSA-C.C. art. 3499 is the applicable prescriptive period for the claims in the petition.

On the trial of a peremptory exception of prescription pleaded prior to trial on the merits, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. However, for purposes of this peremptory exception we need not accept as true conclusions of law. In the present case, no evidence was introduced at the trial.

The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings. In the present case, Omega Center alleged the particulars cited above in its petition, and then concluded with “counts” of breach of fiduciary duty, breach of contract, and bad faith breach of | ¡^contract against all defendants. On review, the facts asserted to have occurred do not support most of those conclusions of law.

None of the facts pleaded disclose the existence of contracts between Omega Center and any of the defendants. The only contracts that can be identified in the petition are a lease between Dr. Hubbell (who is not a party) and Omega Institute, an agreement between Dr. Hubbell and Dr. Beilina to share revenues, and, possibly, a billing contract between CMS (also not a party), and Omega Center. The conclusion of law stated in the petition, that thére was a breach of contract and/or a bad faith breach of contract, cannot be supported by any of the underlying facts pleaded.

Omega Center correctly avers that a ten-year prescriptive period is applicable to a breach of fiduciary duty. Some breaches of a fiduciary are classified as ex delicto, while others are ex contractu. The distinction is that ex contractu breaches arise from the breach of a special obligation between the parties and ex delicto breaches from the violation of a general duty. Generally, whether a fiduciary duty exists, and the extent of that duty, depends upon the facts and circumstances of the case and the relationship of the parties. As a basic proposition, for a fiduciary duty to exist, there must be a fiduciary relationship between the parties. The defining characteristic of a fiduciary relationship, therefore, is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor.

| (¡LSA-R.S. 12:1320 specifies that the liability of members, managers, employees or agents of a limited liability corporation (“LLC”) is determined solely and exclusively under the provisions of Louisiana LLC law. A member or manager of an LLC company shall be deemed to stand in a fiduciary relationship to the company and its members and shall discharge his duties in good faith, with the diligence, care, judgment, and skill which an ordinary prudent person in a like position would exercise under similar circumstances. LSA-R.S. 12:1314(A)(1). In determining whether a member of a member-managed LLC or a manager-managed LLC has breached a fiduciary duty to the LLC and its members, at minimum, a gross negligence standard and the business judgment rule is employed. LSA-R.S. 12:1314(B). Gross negligence is defined as “a reckless disregard of or a carelessness amounting to indifference to the best interests of the limited liability company or the members thereof.” LSA-R.S. 12:1314(0.

Although the petition asserts that Drs. Hubbell and Beilina formed Omega Center, it also states that Omega Center was owned by Dr. Hubbell and Omega Institute. Omega Institute, thus, stands in the position of a fiduciary with Omega Center. As between those parties, the facts pleaded in the petition do not support an underlying claim of a breach of fiduciary duty, although there are several claims that Dr. Beilina acted through Omega Institute to the detriment of the plaintiff.

LSA-C.C.P. art. 934 has been liberally applied in cases involving prescription. Although it is not necessary to allow time to amend if the plaintiff cannot point out grounds sufficient to overcome the exception, opportunity to amend should be allowed unless it can be determined in advance of the amendment that new allegations would have no effect on the prescription issue. Given the 17complexity of the relationship between the parties, particularly the defendants, we cannot determine at this stage that new allegations could have no effect on prescription. Therefore, although dismissal as to Omega Hospital and Omega Institute was proper, Omega Center should have been allowed the opportunity to amend its petition if possible.

For the foregoing reasons, the judgment sustaining the Exception of Prescription is affirmed. We hold that Omega Center is entitled to amend its petition, if possible, prior to a dismissal with prejudice.

AFFIRMED; REMANDED.

      . Waguespack v. Judge, 04-137 (La.App. 5 Cir. 6/29/04), 877 So.2d 1090.

      . Cichirillo v. Avondale Indus., Inc., 2004-2894 (La.11/29/05), 917 So.2d 424; Waguespack, supra.

      . See e.g., Williams v. Red Barn Chemicals, Inc., 188 So.2d 78 (La.App. 1 Cir.1966).

      . Starns v. Emmons, 538 So.2d 275, 277 (La.1989); Fishbein v. State ex rel. La. State Univ. Health Sciences Center, 2004-2482 (La.4/12/05), 898 So.2d 1260.

      . Novelaire Technologies, L.L.C. v. Harrison, 06-94 (La.App. 5 Cir. 7/25/06), 939 So.2d 437; Young v. Adolph, 02-67 (La.App. 5 Cir. 5/15/02), 821 So.2d 101.

      . Id.

      . Scheffler v. Adams and Reese, LLP, 2006-1774 (La.2/22/07), 950 So.2d 641.

      . Id.

      . Whitnell v. Menville, 540 So.2d 304, 309 (La.1989); Chapital v. Guaranty Sav. & Homestead Ass'n, 96-0244 (La.App. 4 Cir. 10/2/96), 681 So.2d 1307, writ denied, 96-2639 (La.12/13/96), 692 So.2d 1068.

      . Id.


author: THOMAS F. DALEY, Judge.

text:
    SUCCESSION OF Richard J. BRAZAN, Sr.
    No. 07-CA-566.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiff/Appellant.
    Daniel A. Cavell, Annette M. Fontana, Morvant & Cavell, APLC, Thibodaux, LA, for Defendant/Appellee.
   Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

THOMAS F. DALEY, Judge.

| ?The appellant, Paul Brazan, has appealed two district court judgments denying his motion to remove the executrix of this succession, setting the executrix’s fee and attorney’s fees for the succession, and denying his motion to have his attorney’s fees paid from the succession. For the reasons that follow, we affirm.

FACTS:

Richard Brazan, Sr. died testate on July 19, 2002. A Petition to Appoint an Executor and Institute a Search for a Will was filed on October 1, 2002. A Will dated February 23, 1999 was produced. The probate of this Will was contested and on January 27, 2003, the Will was declared to be invalid. Thereafter, the Will of November 26, 1990 was probated. The 1990 Will appointed Donna Marie Brazan Gau-threaux (hereinafter referred to as Donna) as executrix of the estate. Following the dismissal of the opposition to probate the 1990 Will, Donna was appointed executrix on August 14, 2003. Donna filed a Detailed Descriptive List |sof the decedent’s property. The property consisted of miscellaneous furniture, fixtures and appliances, cash, and a note from a corporation; said property totaled $93,162.15. On October 3, 2003, appellant, Paul Brazan (hereinafter Paul), filed a Motion to Disqualify Donna and appoint himself or another sibling, Richard Brazan, Jr. (hereinafter (Richard, Jr.)) as executor. Although the designated appellate record does not contain a ruling on this motion, the minute entry of August 16, 2005 appears to indicate that appellant withdrew this motion.

While the succession was pending, another suit was being processed in district court. This suit, entitled Brazan v. Bra-zan, bearing District Court No. 28,451, involved among other issues, the sale of stock owned by the decedent, Richard Bra-zan, Sr., prior to his death. The decedent owned 20% of the stock in a corporation known as Vacherie Maintenance and Management, Inc. (hereinafter, VMM). Six of decedent’s seven children owned 1/6 of the remaining 80% of the stock, including Donna, who had been appointed as the decedent’s curator. Paul did not own any stock in VMM. The trial court granted Donna’s petition to sell decedent’s 20% of stock to VMM for $100,000.00. Richard, Jr. and Paul filed suit against their five siblings claiming this sale of stock was null and void. Richard, Jr. later withdrew his objection to the sale. Paul alleged that the sale should be declared void because the curator benefited from this sale in that her holding in VMM stock increased from the sale. Paul further alleged that the sale was not in the decedent’s best interest because the stock was worth significantly more than $100,000.00. The trial court denied Paul’s Motion for Partial Summary Judgment on this issue. Paul’s writ to this Court was granted and this Court found that because both the curator and the interdict owned an interest in VMM, the sale could be authorized under C.C.P. art. 4566 B as long as all requirements of the article were met. On October 12, 2004, finding the petition to sell the stock did not Lspecify that the stock would be sold to a corporation in which the curator held an interest and there was no independent appraisal of the stock and no showing of good cause why an appraisal was not necessary, this Court voided the sale and remanded this matter to the trial court.

An appraisal of the stock was carried out and on July 25, 2006, Donna filed a Supplemental and Amending Descriptive List. This list included the decedent’s interest in the VMM stock valued at $316,400.00 and cash of $100,241.89. On that same date, Donna also filed a Tableau of Distribution listing attorney’s fees of $14,435.00 and a succession representative’s fee of $10,416.05.

On August 15, 2006, Paul filed an Opposition to the Tableau of Distribution, a Motion to Compel Discovery, and a claim for attorney’s fees. In this motion, Paul argued that a substantial portion of the attorney’s fees listed in the tableau were incurred during the time Attorney Cavell represented the five heirs who were in favor of the stock sale. Paul further argued that he was entitled to attorney’s fees for successfully declaring the sale of the stock a nullity.

In response to this motion, Donna and Cavell submitted detailed billing records from Cavell listing the date, work performed, i.e. call from client, attended hearing, dictating letter, etc., and amount of time spent on the work. Donna stated that the court had witnessed the actions of Cavell throughout the proceedings and numerous court appearances, which would indicate the fees charged were reasonable for the work performed. Donna argued that the succession representative’s fee of $10,416.05 was due under C.C.P. art. 3351. With regard to Paul’s claim for attorney’s fees, Donna contends Paul has requested attorney fees in the action to annul the sale of stock and his request for fees is not properly made in this suit.

IsOn October 12, 2006, Paul filed a motion requesting that Donna be removed as executrix and Cavell be disqualified as attorney for the succession. In this motion, Paul argues that Cavell should be disqualified because he participated in the “breaches of fiduciary duty and mismanagement” committed by Donna. He contends that because of these alleged breaches of fiduciary duty Donna should be denied her fee as executrix and Cavell should be denied his attorney’s fees. He again urged his own attorney’s fees be paid from the succession. Paul claims Donna breached her fiduciary duty by participating in the stock sale as curator and not providing information as to how the value of the stock was derived. Finally, Paul argued that it was due to the efforts of his attorney that the value of the estate was increased by annulling the sale of the stock and therefore, his attorney’s fees should be paid from the succession.

A hearing on this matter was held on October 16, 2006. In the hearing, Paul argued it is not possible to tell from the bills submitted by Cavell whether he was billing for work done as the succession attorney or work performed as representing the other heirs in Brazan v. Brazan. Cavell stated that all of the fees were for work on the succession and that he was called into court numerous times to be sure the succession was not being adversely affected by other actions that were going on. With regards to the disqualification, Cavell pointed out that the only thing remaining to close the succession is the Judgment of Possession and that no purpose would be served by disqualifying Donna or himself. The trial court then made a finding that Cavell’s fees were reasonable and awarded $14,435.00 in attorney fees and that the succession representative fee was authorized by statute.

On October 27, 2006, the court held a hearing as to whether the attorney fees incurred by Paul to annul the sale should be paid by the succession. The court | firuled that the succession is not the proper avenue'to have Paul’s attorney’s fees paid on the annulment of the stock sale.

REMOVAL AND FEE OF EXECUTRIX:

A party seeking removal of a succession representative must prove by convincing evidence that the representative breached her fiduciary duty to the succession under LSA-C.C.P. art. 3191 or the existence of one of the grounds for removal enumerated in LSA-C.C.P. art. 3182. Those grounds include disqualification, incapability of discharging the duties of office, mismanagement of the estate or failure to perform any duty imposed by law or court order. LSA-C.C.P. art. 3182.

The trial court only has the power to remove a representative once this showing is made. Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965). Thereafter, - the trial court is not required to remove the representative, but is vested with discretion to determine whether removal is appropriate under the facts of the particular case. Succession of Krushevski, 528 So.2d 743 (La.App. 4th Cir.1988). Absent an abuse of discretion, the trial court’s decision regarding removal of the representative will not be disturbed on appeal. In re Succession of LaFleur, 99-1100, (La.App. 3rd Cir.12/8/99), 752 So.2d 237 writ denied, 2000-0446 (La.3/31/00), 759 So.2d 74.

Paul’s argument relative to the removal of Donna as succession representative centers around this Court’s annulment of the sale of the decedent’s stock. Paul contends the sale was annulled because it was fraudulent in that it benefited Donna and was not in the decedent’s best interest. However, this Court clearly stated the sale was annulled for failure to follow the requirements of C.C.P. art. 4566 B. Thus, the sale was annulled because of legal error. There was no 17finding of fraud or mismanagement. Clearly, the sale of the stock occurred before decedent died, thus Donna’s actions in the sale of the stock was not an act as administrator of the estate. Whether or not the sale of the stock was mismanagement was a factual determination within the discretion of the trial court.

Further, we find that removing the executrix and the succession attorney, Cavell, at this point in the proceedings would serve no useful purpose as this succession is in its final stages. The estate has been administered and all that remains is the final placing and possession and payment of executrix fees and attorney’s fees. Replacing the executrix at this juncture would only extend the administration, cause unnecessary delay, and possibly result in unnecessary costs.

Accordingly, we find the trial court did not abuse its discretion in denying Paul’s motion to remove Donna and Cavell.

Code of Civil Procedure article 3351 unequivocally states that the executor “shall be allowed” compensation in the amount of 2½ percent of the gross estate, or a greater amount if warranted, unless the testament or agreement by the parties provides for a lesser fee. The legislature has also provided that reduction of the executor fee below 2½ percent, on the basis that the estate is also paying attorney fees, is allowed only in the limited circumstance where “the succession representative serves as an attorney for the succession or for the succession representative.” Art. 3351.1

While the Will appointed Donna executrix of the estate, it did not provide for an amount of compensation. Therefore, according to C.C.P. art. 3351, Donna is entitled compensation in the amount of 2½ percent of the gross estate unless there is a showing of mismanagement or that she was also serving as attorney. Having previously determined there was no error in the trial judge’s refusal to 18remove Donna as executrix, we find the trial court did not err in allowing Donna the statutory 2½ percent executrix fee.

ATTORNEY’S FEES OWED TO CA-VELL:

It has long been recognized in Louisiana law that an executor of a succession may obtain an attorney to aid in the carrying out of the executor’s duties and to defend the succession against adverse claims made against it. Succession of Jenkins, 481 So.2d 607, (La.1986). Courts have also recognized that the costs of such legal representation may be charged to the succession. Atkins v. Roberts, 561 So.2d 837, (La.App. 2 Cir.1990). The courts have made the distinction, however, that where the legal representation is primarily for the personal benefit of the executor and not the estate, such fees may not be paid from the property of the succession. Succession of Haydel, 606 So.2d 42, (La.App. 4 Cir., 1992). Whether or not an attorney’s work was for the benefit of the succession estate is a question of fact that cannot be set aside absent manifest error. Id.

The itemized bills submitted by Cavell begin on August 14, 2002, which is itemized as “call from client.” The first pleading in the designated appellate record was filed October 1, 2002 by Cavell. This pleading asks that an executor be appointed. The bills continue until June 8, 2006. These itemized bills are over thirty pages long. At the hearing on Paul’s motion opposing the attorney’s fees, Paul argued the majority of these fees were incurred in annulling the sale of the decedent’s stock. Cavell responded that he first became involved in the case when he asked for the appointment of an executor. He explained that over the course of this proceeding he was called into court many times to be sure the succession was not being adversely affected by some of the proceedings in other actions. The court found the attorney fees itemized and charged by Cavell to be reasonable. | (¡Having reviewed the record in this matter, we find no abuse of discretion in the trial court’s finding that the fees were reasonable and ordering the fees to be paid out of the succession.

ATTORNEY FEES INCURRED BY PAUL:

On appeal, Paul argues that because the work by his attorney increased the value of the estate, the trial court erred in failing to award attorney fees he incurred in having the sale of the decedent’s stock annulled. As stated previously in this opinion, Paul has instituted another suit against his siblings and the annulment of the stock sale was accomplished in that suit. During the argument on this motion, Paul’s attorney acknowledged that he could seek to have his attorney’s fees paid in the other suit and that he had filed a motion to that effect.

In a succession proceeding, an attorney representing particular heirs or claimants has no claim against the estate for his services, even though such services benefited the other heirs. Succession of Meier, 204 So.2d 793, (La.App. 4 Cir., 1967). Fees incurred by an heir attempting to hold the executor of the estate to the standard of care owed by the executor to the succession are not to be paid out of the succession. Succession of Demarest, 418 So.2d 1368, (La.App. 4 Cir.1982), writ denied, 422 So.2d 158 (La.1982).

Accordingly, we find no error in the trial court’s determination that the attorney fees incurred in annulling the sale should not be paid by the succession.

CONCLUSION:

For the foregoing reasons, the judgments of the trial court are affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.


author: SUSAN M. CHEHARDY, Judge.

text:
    Melissa F. GUILLORY v. Jimmy Lou Guidry HEBERT, et al.
    No. 07-CA-614.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      E. Jeffrey Perilloux, Attorney at Law, LaPlace, LA, for Plaintiff/Appellee, Melissa F. Guillory.
    Michael K. Heltz, Attorney at Law, Gramercy, LA, for Defendants/Appellants, Jimmy Lou, Guidry Hebert, Chad M. Mi-lioto, Heather Milioto Gilberti, and Ryan F. Milioto.
   Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.

SUSAN M. CHEHARDY, Judge.

| pThis is a redhibition suit over sale of a house. The defendants, the sellers, appeal a judgment that found the plaintiff entitled to a twenty-five percent reduction in the purchase price. The plaintiff, the buyer, answered the appeal, raising the trial court’s failure to award damages and attorney’s fees. We dismiss the appeal as premature due to the district court’s failure to rule on a motion for new trial.

On February 24, 2003, Melissa F. Guil-lory filed a petition against Jimmy Lou Guidry Hebert, Chad M. Milioto, Heather Milioto Gilberti, and Ryan J. Milioto. According to the petition and its attachments, the defendants sold Guillory the property at 161 Belle Grove Drive, La-Place, St. John the Baptist Parish, for the price of $168,500.00 on August 9, 2002. Prior to the sale, defendant Hebert completed a Property Disclosure (Addendum) form, which purported to disclose all conditions that existed in/on the property. The plaintiff asserted she relied heavily on the disclosure form in deciding to purchase the property.

The plaintiff alleged that Hebert “specifically failed to disclose the property’s propensity for flooding and misled plaintiff by significantly downplaying flood problems and leading plaintiff to believe that there was only one (1) isolated flood issue in May, 1995.” The plaintiff asserted that on | aSeptember 25, 2002 (less than two months after she purchased the property), the residence was flooded by rain and tidal surge associated with Tropical Storm Isi-dore, which caused severe damage to the property. One week later, on October 2, 2002, the property around the home flooded due to Hurricane Lili, although water did not enter the home.

The plaintiff alleged the defendants provided inaccurate, false and misleading information by failing to disclose the prior history of flooding, and by failing to advise the plaintiff she would need to sandbag the home to prevent water from entering the home. The plaintiff stated she would not have purchased the property had she known of the flood risk. She sought rescission of the sale, return of the purchase price, and damages for aggravation, mental anguish, and inconvenience. She also sought expenses, as well as attorney’s fees, court costs, and interest.

The case was tried on July 26, 2005, and taken under advisement. On January 20, 2006, the court rendered judgment in favor of the defendants, dismissing the plaintiffs claims on the basis that the incidents of actual flooding to the property were the result of “extraordinary flooding”; that extraordinary flooding is not a redhibitory defect; and that the plaintiff, as a reasonably prudent buyer, knew or should have known of the probability of flooding.

The plaintiff filed a Motion for New Trial, which the court granted. On December 4, 2006, the court rendered a new judgment in favor of the plaintiff and against the defendants, finding a redhibi-tory defect in the sale of the property from defendants to plaintiff, in that defendants failed to disclose other incidents of flooding on the property beyond the tropical storm/hurricane events. However, the court awarded a reduction of the purchase price rather than rescission of the sale.

|4On December 14, 2006 the defendants filed a motion for new trial, on the basis that the judgment was clearly contrary to the law and the evidence. On January 12, 2007, there was a hearing on the motion for new trial, but we find no ruling on the motion in the record. Rather, instead of arguing the new trial motion, defense counsel advised the court he was filing a motion for suspensive appeal on behalf of his clients.

La.C.C.P. art. 2123(C) states, “An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.”

The trial court’s denial of a motion for new trial during the pendency of an appeal cures the defect of prematurity. Sullivan v. Franicevich, 2004-0321, p. 2 (La.App. 4 Cir. 3/9/05), 899 So.2d 602, writ denied, 2005-0880 (La.5/20/05), 902 So.2d 1051, and 2005-0920 (La.5/20/05), 902 So.2d 1055.

Here, however, the record does not indicate, either by transcript, by minute entry, or by written judgment, that the defendant’s motion for new trial has ever been disposed of. Hence, this appeal is premature. See Prieur v. Lambert, 508 So.2d 863, 864 (La.App. 5 Cir.1987).

Accordingly, the appeal is dismissed. The case is remanded for further proceedings as appropriate.

APPEAL DISMISSED; CASE REMANDED.


text:
    STATE of Louisiana v. Leroy A. DAVIS.
    No. 07-KA-544.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
   Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

THOMAS F. DALEY, Judge.

^Defendant, Leroy A. Davis, appeals his conviction of two counts of armed robbery, violations of LSA-R.S. 14:64. On appeal he argues that the trial court failed to provide him with a neutral and impartial translator, thus requiring a mistrial, and that the sentence imposed by the trial court was illegal and unduly excessive. In a pro se supplemental brief, defendant also argues that the evidence was insufficient to sustain the conviction of armed robbery of Jessica Ponthieux. We affirm.

PERTINENT PROCEDURAL HISTORY

On October 10, 2005, the Jefferson Parish District Attorney’s Office filed a Bill of Information charging the defendant, Leroy A. Davis, and Amanda I. Allemand in count one with armed robbery, a violation of LSA-R.S. 14:64. In count two, Davis, Allemand, and Katie M. Dematteo were charged with armed robbery, a violation of LSA-R.S. 14:64.

| ¡¡After a three-day trial, Leroy A. Davis was found guilty as charged on both counts. The trial court sentenced the defendant, Leroy Davis, on count one to 40 years at hard labor, and on count two to 20 years at hard labor. Both sentences were to be served consecutively and without benefit of parole, probation, or suspension of sentence. On the same day, the State filed 'a multiple offender bill alleging the defendant to be a fourth felony offender. After the hearing on the multiple offender bill, the trial court found the defendant to be a fourth felony offender. Subsequently, the trial court vacated the defendant’s sentence originally imposed on count one, and sentenced the defendant to 99 years at hard labor without benefit of probation or suspension of sentence to run concurrently with his original sentence in count two.

FACTS

Count one:

Jessica Lynn Ponthieux, the victim of the first robbery, testified that she knew both Leroy Dayis and Amanda Allemand prior to being robbed by them, and that they had done drugs together on several occasions.

On the night of July 12, 2005, Jessica Ponthieux gave Amanda Allemand a ride home. While she was at a stop sign, the defendant, Leroy Davis, jumped into the back seat of Jessica Ponthieux’s car. Immediately after Leroy Davis jumped in the car, Amanda Allemand grabbed Jessica’s purse and the two fought over it. While Jessica was fighting with Amanda Alle-mand, defendant, Leroy Davis, reached around from the back seat and cut her on the neck.

14Jessica Ponthieux called her boyfriend, David Suddith, during the incident. The defendant, Leroy Dávis, and Amanda Alle-mand ran away after Leroy Davis cut Jessica Ponthieux. Amanda Allemand took Jessica’s purse containing $50.00 and her prescription pain medication.

Jessica Ponthieux had no doubt that it was Leroy Davis who jumped in her car, robbed her, and cut her. Later, she identified Leroy Davis and Amanda Allemand in photographic lineups. Jessica was positive of the identifications. Jessica identified Amanda Allemand in court as the person who fought with her and took her purse.

David Suddith testified that, in July of 2005, he and Jessica Ponthieux were living together. Suddith testified that, on July 12, 2005, a woman named Amanda came to the residence he shared with Jessica Pon-thieux and requested a ride home. When Jessica called him from the car, Suddith could hear a scuffle. Five or six minutes later, Jessica Ponthieux drove back to Sud-dith and her residence and screamed, “They cut me. Call 9-1-1”. Suddith called 911.

Deputy Steven Sadowski of the Jefferson Parish Sheriffs Office’s responded. He interviewed Jessica Ponthieux. He observed that she was extremely upset and emotional, and that she had blood on her clothing and a cut on her neck. Jessica Ponthieux gave Deputy Sadowski the nickname of “Easy” for one of the perpetrators and “Amanda” as the possible first name of the other perpetrator.

According to Deputy Sadowski, she described “Easy” as a black male. Amanda was described as a white female with fever blisters or “something” around her lips.

|BCount two:

The victim, Maximo Murillo (the cab driver), testified that he started driving his taxicab at 4:00 a.m. on the morning of July 25, 2005. Later that morning, two women on Williams Boulevard waived him down, got in, and asked to be taken to a location on David Drive. He informed the two women that the apartments there were empty, but they still wanted to be taken there.

After they arrived at the apartments, he saw a green 4-Runner Toyota vehicle, which was behind him, pull across the street in front of him. Then he heard someone shout for the two women to search him and take everything from him. One of the two women took his bracelet. The other woman took everything out of his pockets. During this time the defendant, Leroy Davis, who was outside the cab driver’s vehicle, shouted at him through the driver’s side window telling him to let the women take everything. When he resisted Leroy Davis hit him with an automatic pistol in the chest. Then Leroy Davis opened the cab driver’s shirt with his other hand and tore off his chain.

Murillo, the cab driver, testified that the defendant, Leroy Davis, told the two women to get out of his cab, and then Leroy Davis drove away with the two women inside his vehicle. Murillo followed them for one block to get the vehicle’s license plate number. When Leroy Davis stuck his pistol out of the window, he took it as a warning and left.

Murillo reported the incident to the police later that morning with the help of his son, Jamie, since he did not speak English well enough to report the incident himself. Murillo gave the police a description of the robbers and location where he was robbed. The police apprehended individuals matching the description of the ^robbers two hours later. Murillo was called to the scene where he identified both women and the defendant, Leroy Davis. Murillo had no doubt in his identifications of the two women or the defendant. He also identified the defendant, Leroy Davis, in court as the man who hit him and robbed him at gunpoint.

Deputy Gary Soileau of the Jefferson Parish Sheriffs Office testified that he interviewed Murillo about the armed robbery complaint. Murillo’s son, Jamie Murillo, accompanied him to translate. Murillo told Deputy Soileau that the armed robbery occurred on the street right behind the electrical plant and close to Skate Country. Murillo told him that the vehicle used in the armed robbery was a green Toyota 4-Runner with a temporary license plate on the back window. In addition, Murillo described the perpetrators.

As part of his investigation, Deputy Soi-leau checked the location where the armed robbery occurred, but he did not find any evidence. He found a vehicle matching the description given to him by Murillo on Montgomery, four streets over from Eisenhower. Deputy Soileau identified the suspect vehicle by the temporary license tag on the back window. He notified Detective Keith Lacasio, who told him to keep the vehicle under observation until he arrived. When Leroy Davis, Amanda Allemand, and Katie DeMatteo exited a residence and approached the vehicle, Deputy Soileau detained them. He also contacted Murillo to see if he could come to the scene to make an identification.

When Murillo arrived, he identified the defendant, Leroy Davis, and the two women as the individuals who had robbed him. The defendant, Leroy Davis was |7wearing Murillo’s chain. A pocketknife and the key to the Toyota truck were found on Leroy Davis in the search incident to arrest. Deputy Soileau identified the defendant, Leroy Davis, in court as the man he apprehended in connection with the armed robbery, and that Murillo subsequently identified.

Detective Lacasio testified he was briefed and given a description of the armed robbery that occurred on July 25, 2005. He realized that it was similar to another case that occurred two weeks before. The specific description and age of the suspects matched the earlier armed robbery. In addition, he knew an “Amanda” who had a prior conviction. After the arresting officer informed Detective Laca-sio that Leroy Davis, the defendant, and Amanda Allemand were taken into custody, he thought they could be the same individuals involved in the July 12, 2005 armed robbery of Jessica Ponthieux.

Later on the same afternoon, Detective Lacasio obtained an audiotaped statement from Jessica Ponthieux, the victim of the July 12, 2005 armed robbery. Detective Lacasio’ showed Jessica Ponthieux two photographic lineups, one with the defendant, Leroy Davis, and the other with Amanda Allemand. Jessica Ponthieux positively identified the defendant; Leroy Davis, and Amanda Allemand from the photographic lineups.

On the afternoon of July 25, 2005, Detective Lacasio also obtained an audio-taped statement from Leroy Davis in which he admitted to having met Jessica Ponthieux with Amanda Allemand two or three weeks earlier and going to her house on a couple of occasions, but denied any involvement in Jessica Ponthieux’s robbery.

Amanda Allemand testified that she had known Leroy Davis for three months by July 25, 2005. He was her boyfriend, and they did drugs together. Her version of events differed from Murillo’s. She testified that on the morning of July | s25, 2005, at approximately 2:00 a.m., she and the defendant, Leroy Davis, were driving around in a green 4-Runner trying to sell drugs. They were able to use the vehicle on the weekends, as part of a “rock rental.

Amanda Allemand testified that she had not met Katie DeMatteo before seeing her that morning in the 500 block of Eisenhower Street. She denied flagging down a cab on Williams Boulevard to bring them to the 500 block of Eisenhower. However, Amanda Allemand did see a cab in the 500 block of Eisenhower at 4:30 a.m. that morning. When they stopped behind the cab, the cab driver (Murillo) got out, came over to their vehicle, and spoke to them. She testified that Leroy Davis tried to sell crack cocaine to the cab driver, Murillo.

Amanda Allemand testified that she never saw either the defendant, Leroy Davis or Katie DeMatteo with any money or a wallet. She denied that Leroy Davis pointed a gun or hit the cab driver in the chest with a gun. She also did not see Leroy Davis take anything from the cab driver.

Amanda Allemand testified that she did not take anything from the cab driver. During the 30 minutes that she and the defendant, Leroy Davis, spent on Eisenhower with the cab driver, she and Leroy Davis sold Katie DeMatteo some drugs. Amanda Allemand did not see Leroy Davis stick a gun out of the window when they drove away. When Amanda Allemand, Leroy Davis, and Katie DeMatteo left Eisenhower, they went to the Little Farms area in order for Leroy Davis to “score” drugs. They all used drugs in the vehicle, and then they went to Montgomery Street. An hour later, when she, Leroy Davis, and Katie DeMatteo were leaving the house located at 701 Montgomery, the police arrested them.

Katie DeMatteo testified that she was walking on Airline Drive, under the influence of drugs and alcohol, when Murillo drove his cab next to her. She got 19into the cab, and they drove to Eisenhower Street, where he paid her for fellatio. According to Katie DeMatteo, Murillo spoke English well enough to get his point across. She testified that while performing oral sex, she took his wallet, but later discarded it on the ground after looking through it. She denied taking anything from it.

Katie DeMatteo testified that, apparently missing his wallet, Murillo pulled his cab next to her again and asked about his wallet, but she denied having it. Murillo got out of his cab, and started to approach her, which intimidated her. When another vehicle stopped behind Murillo’s cab, at approximately 4:30 a.m., she waved to get the occupants’ attention. Leroy Davis and Amanda Allemand were in the car. After Leroy Davis and the cab driver talked, she told the defendant that she knew the location of the cab driver’s wallet. They drove to apartments on Eisenhower, and the cab driver followed. Katie DeMatteo retrieved the wallet and gave it to Leroy Davis. Then Leroy Davis gave it to Amanda Alle-mand, and then Leroy Davis went to speak with the cab driver.

Katie DeMatteo believed that everything in the cab driver’s wallet was returned to him, but she was not sure. She said that the cab driver offered Leroy Davis a reward for the return of his wallet. Leroy Davis returned from the cab holding a chain. Katie DeMatteo did not know if Leroy Davis took the chain from Murillo, the cab driver, or if Murillo gave it to him.

Katie DeMatteo bought drugs for Leroy Davis, Amanda Allemand, and herself. She testified that they drove around for approximately two and a-half hours getting high from using drugs. Eventually, they stopped at a house on Montgomery Street where they smoked crack cocaine. When they were leaving, the police confronted them.

| ^ASSIGNMENT OF ERROR NUMBER ONE

First, defendant argues that the trial court failed to provide him with a neutral and impartial translator, thus requiring a mistrial. Defense counsel failed to make a contemporaneous objection in order to preserve this alleged trial court error for appellate review.

On September 13, 2006, the second day of trial, the prosecutor called the cab driver to testify. The prosecutor informed the court that there would be an interpreter. The court ordered that the interpreter be sworn in. Defense counsel stipulated that the interpreter, Blanca Mejia, was a court-approved, certified interpreter for English/Spanish and Spanish/English. Thereafter, the interpreter was sworn into service.

The cab driver completed his testimony on the second day of trial. On the third day of trial, defense counsel raised for the first time an objection to the State hiring an interpreter to translate the cab driver’s testimony. Defense counsel moved for a mistrial after arguing that there could “appear some impropriety in that since [sic] the interpreter was employed by the District Attorney’s [sic], whether or not her translations or interpretations could in any way been [sic] colored to favor the State or the case of the State.”

The prosecutor responded that the District Attorney’s office contacted the interpreter through an agency, and that it was paying the agency. The prosecutor contended that there was no rule that required the Court to appoint an interpreter unless there was a pretrial objection or the Public Defender’s Office needed an interpreter and could not afford one. In addition, the prosecutor argued that defense counsel was aware before the cab driver testified that the State was paying for the interpreter because he was complaining to defense counsel about how long Inthey would have to wait for her to interpret the testimony. The prosecutor also argued that the defense counsel had an opportunity to examine the interpreter when she was offered as an expert and certified witness in translations.

The trial judge denied the Motion for Mistrial, noting that defense counsel could have examined the witness before she translated for he cab driver, in order to determine who was paying for her services. Instead, defense counsel accepted the interpreter as a certified interpreter.

Defendant, however, alleges that it is not clear he knew of the payment arrangement. The defendant argues that the trial court erred in not granting his Motion for Mistrial. Defense counsel objected after discovering that he was misled in his belief that the translators, both at the suppression hearing and at trial, were court appointed. The defendant contends that because the State paid for the translators they were not absolutely disinterested, unprejudiced, and unbiased, citing State v. Nguyen and State v. Lazarone. In addition, the defendant claims that the court erred in not determining whether the cab driver needed the services of an interpreter, citing State v. Lopes.

The State argues that its employment relationship with the interpreter does not create the presumption of prejudice. The State notes that the interpreter took an oath and was neither a witness nor a party in the case. The interpreter also translated exclusively for the State. The defendant did not receive assistance from the interpreter. Also, there is no evidence in the record suggesting that the interpreter translated statements in error.

11?A mistrial is a drastic remedy. LSA-C.Cr.P. art. 775 provides the grounds for non-mandatory mistrials. Except when mandatory pursuant to LSA-C.Cr.P. art. 770, a mistrial is warranted only when trial error results in substantial prejudice to defendant depriving him of a reasonable expectation of a fair trial. Id. The determination of whether a mistrial should be granted is within the sound discretion of the trial court. Id. The denial of a Motion for Mistrial will not be disturbed absent an abuse of that discretion. Id.

An interpreter should be a neutral and detached individual whose abilities are screened by the court. When raising a claim of bias, the defendant must make an allegation that the interpreter in the case mistranslated a portion of the testimony or was incompetent. Thereafter, the opposing party bears the burden of proving that the interpreter was biased. Id.

In State v. Lai, supra, an interpreter was brought in by the State for the purposes of translating the State’s witnesses’ testimony. The defendant did not request assistance from the interpreter. In addition, the interpreter was not a party or a witness, and was sworn by the court. The defendant did not assign any specific prejudice arising out of the interpreter’s translations, and there was nothing in the record to suggest that any of the testimony at trial was improperly translated. This Court found no abuse of discretion in the trial court’s decision denying the Motion for Mistrial, noting that the record did not reveal that any prejudice had been sustained by the defendant as a result of the interpreter being paid by the State. Therefore, his substantial rights were not prejudiced. State v. Lai, 902 So.2d at 559.

In State v. Lazarone, supra, the Louisiana Supreme Court reversed the defendant’s conviction because the interpreter appointed by the trial court was also a witness for the prosecution who had contributed to a fund for the prosecution of the defendant. The court found that, in that case, the interpreter could not be “absolutely disinterested, unprejudiced, and unbiased.” State v. Lazarone, 57 So. at 534.

In the present case, as in State v. Lai, supra, the defendant has not claimed any specific prejudice arising out of the interpreter’s translations. Rather, the defendant alleges that there could “appear some impropriety” as to whether the translations or interpretations were colored to favor the State’s case because the interpreter was employed by the State. There is also nothing in the record to suggest that any of the testimony at trial was improperly translated. The defendant did not request any assistance from the interpreter. The interpreter also was not a party or a witness, and was sworn by the court. Defendant has not made any specific allegations of any prejudice to defendant as a result of the interpreter being paid by the State. Accordingly, we find this Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second Assignment of Error, the defendant argues that his habitual offender sentence of 99 years at hard labor without benefit of probation or suspension of sentence on count one is excessive. The defendant claims that the trial court did not consider the mitigating factors pursuant to LSA-C.Cr.P. art. 894.1 and LSA-R.S. 15:529.1 in imposing his habitual offender sentence. Specifically, the defendant alleges that the trial court failed to tailor a sentence to him based on the crimes he committed.

| uThe State argues that the defendant’s sentence is not excessive nor does it violate the law. The State alleges that in this case the defendant received the mandatory minimum sentence of 99 years without benefits. Since he received the mandatory minimum, the trial court was not required to provide reasons. In addition, the State notes that the defendant has not presented any evidence to support his claim that his sentence is excessive.

The defendant’s failure to file a Motion to Reconsider Sentence limits review of his sentence to an examination only for constitutional excessiveness. State v. Crawford, 05-494, p. 4 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 669.

A trial court is afforded great discretion in determining sentences. “The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” LSA-C.Cr.P. art. 881.4(D). In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. Since it is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional, a court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. The burden is on the defendant to rebut the presumption of constitutionality by showing:

_Jj¿[h]e is exceptional, which in this context means that because of unusual ehv cumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the ease.

Downward departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. If a downward departure is warranted, the sentencing court must impose the longest sentence that is not constitutionally excessive, with specific reasons as to why this sentence is not constitutionally excessive.

The defendant in this case was convicted of two counts of armed robbery, in violation of LSA-R.S. 14:64. The sentencing exposure for each armed robbery conviction is “imprison[ment] at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” LSA-R.S. 14:64. After his multiple bill hearing, the defendant was found to be a fourth felony offender. Based on his fourth felony multiple offender status, the defendant’s sentencing exposure for imprisonment was 99 years to life without benefit of probation or suspension of sentence. LSA-R.S. 15:529.1(A)(2)(c)(i) and (G). The defendant received a habitual offender sentence of 99 years on count one without benefit of probation or suspension of sentence. Therefore, the defendant received a mandatory minimum sentence.

In State v. Stevenson, the defendant was sentenced to life imprisonment after being found a fourth felony offender following the armed robbery conviction. His predicate convictions were for possession of cocaine with intent to distribute and two convictions for possession of cocaine. The court upheld the hadefendant’s ¾⅜ sen_ tence, finding that the defendant failed to show exceptional circumstances to justify a downward departure from the mandatory 99 year to life sentence he received.

In State v. Johnson, supra, the defendant was found guilty of two counts of armed robbery. After a multiple offender hearing, the defendant was found to be a third-felony offender. His original sentence on one count was vacated and he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, the defendant claimed the trial court erred in failing to follow the sentencing guidelines of LSA-C.Cr.P. art. 894.1 and in imposing a constitutionally excessive sentence. This Court found that compliance with sentencing guidelines was not required because the defendant’s sentence was statutorily prescribed under the Habitual Offender Law. In addition, this Court found that the record was devoid of any basis for consideration of a downward departure from the mandatory sentence imposed by the trial court.

In the present ease, as in State v. Johnson, supra, the defendant’s argument that the trial court failed to consider mitigating factors under LSA-C.Cr.P. art. 894.1 in imposing his 99-year sentence is misplaced. Since his sentence imposed is statutorily prescribed under the Habitual Offender Law, the judge was not required to articulate mitigating factors. In addition, as in State v. Stevenson and State v. Johnson, supra, on appeal, the defendant has made no showing of exceptional circumstances that would justify a downward departure from the mandatory 99-year sentence. There was no evidence presented at the time of sentencing and no argument was made at sentencing regarding the need for a downward departure from the required minimum sentence.

JyPRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his Pro Se Assignment of Error, the defendant argues that the State failed to prove an essential element of the crime of armed robbery, i.e., that he was armed with a dangerous weapon, beyond a reasonable doubt. The defendant claims that Ponthieux never saw him enter her vehicle with a weapon. In addition, Ponthieux never saw a weapon in his hand “when he reached around her shoulders.” The defendant claims that Jessica Ponthieux only thought that he might have used a piece of glass that she later found in her vehicle.

The defendant notes that, according to Detective Sadowski, Jessica Ponthieux did not know how she was cut. In addition, the defendant notes that Detective Sadow-ski testified that he did not find a knife or “something,” i.e., a piece of glass, in her vehicle after the robbery. The crime lab personnel also did not find the piece of glass. Detective Sadowski further did not find any blood in the vehicle.

Pursuant to Jackson v. Virginia, the constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

“Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” LSA-R.S. 14:64. A “ ‘[d]angerous weapon’ includes any ... instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” LSA-R.S. 11S14:2. This term is not limited to those instrumentalities, which are inherently dangerous. A determination of the “dangerousness” of an object is based on the manner in which it is used and is a question of fact for the jury. Id.

Louisiana courts previously have found many and varied objects to be dangerous weapons for purposes of LSA-R.S. 14:64. These objects have included an ink pen; a liquor bottle hidden in a pocket; a metal sign post; a hammer; and a toy gun. Id. When an inherently harmless instrumentality has been used to commit an armed robbery, the jury must find “ ‘that there was an actual likely danger of serious bodily harm to anyone present in the highly charged atmosphere of the scene of a robbery, taking into consideration the great possibility of violence in the interaction between the offender and the victim thereby put in fear of his life.’ ” The introduction of the weapon at trial is not necessary in an armed robbery prosecution where the State’s witnesses can establish, through their observations at the crime scene, all the elements of the charge beyond a reasonable doubt, including the existence and use of a dangerous weapon.

No weapon need ever be seen by the victim, or witnesses, or recovered by the police for the trier of fact to be justified in finding that defendant was armed with a dangerous weapon. When there is no direct evidence establishing that the defendant was armed with a dangerous weapon, in order to convict, the circumstantial evidence must exclude every reasonable hypothesis of innocence, assuming every fact to be proved that the evidence tends to prove. LSA-R.S. 15:438.

|19In State v. Cotton, supra, this Court held that the evidence was sufficient to support an armed robbery conviction, even though the prosecution did not produce the dangerous weapon used in the robbery at trial. The victim testified that the defendant approached him and pressed a hard, sharp object to his side. The victim thought the defendant had a knife and, therefore, complied by looking straight ahead as he was directed. The defendant then reached into the victim’s pocket, took his money, and fled. This Court found that the State submitted sufficient evidence to support the armed robbery conviction, even though the victim did not see a dangerous weapon.

In the present case, as in State v. Cotton, the State did not present a weapon at trial. Jessica Ponthieux testified that she fought with Allemand to get her purse back until she saw blood dripping down in front of her. When Jessica Ponthieux realized that the defendant had cut her on the neck, she let go of her purse. Jessica Ponthieux thought that Leroy Davis may have cut her with the clear piece of glass with blood on it that she later found on the floor in back of her vehicle.

In addition, David Suddith testified that he could hear the scuffle over the telephone when Jessica Ponthieux was being beaten and robbed. Five or six minutes later when Jessica Ponthieux drove back to their residence, she hysterically screamed that they had cut her. Suddith testified that he saw “blood coming down her neck. She was holding it, and it [sic] was blood coming over her hand.” Further, Detective Steven Sadowski testified that when he interviewed Jessica Pon-thieux he observed that she had blood on her clothing. He opined that the laceration on her neck occurred in a traumatic event.

As in State v. Cotton, supra, the State submitted sufficient evidence to support the armed robbery conviction, even though the victim did not see a dangerous weapon. The circumstantial evidence presented by the State’s witnesses |gnwas sufficient to justify the jury’s finding that defendant was armed with a dangerous weapon.

ERROR PATENT DISCUSSION

A review of the record indicates that the trial judge failed to advise the defendant of the appropriate prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. The matter is remanded to the trial court for the court to inform defendant of the appropriate prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and by filing written proof that the defendant received the notice in the record.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The defendant’s original Motion for Appeal was premature when it was filed after his conviction and imposition of the original sentence but before the multiple offender adjudication and sentence. However, the defendant's subsequent resentencing after his multiple adjudication cured this procedural defect. See State v. Williams, 03-571 (La.App. 5 Cir. 11/12/03), 862 So.2d 108, 119-20, writ denied, 04-0051 (La.5/21/04), 874 So.2d 171. In addition, the defendant filed a Motion for Appeal after his multiple offender sentence was imposed.

      . Murillo's license, airport permit, credit cards, and Social Security card, as well as twenty dollars and his 14-karat gold chain with a “Jesus” pendant were taken. The chain was recovered when the robbers were apprehended. The prosecutor noted during the trial that Murillo was wearing the same chain.

      . After Katie DeMatteo and Amanda Alle-mand were brought in the courtroom, Murillo identified them as the two women who were with the defendant.

      . Jamie Murillo, Murillo’s son, testified that his father was in shock when he saw him after the armed robbery. His father's shirt had been ripped off, and his chest looked red and injured where he was hit. He saw the defendant wearing his father’s chain when he accompanied his father to make the identification.

      . A “rock rental” apparently is the use or rental of a vehicle in exchange for drags.

      . Ms. Mejia stated that she was also certified in the Federal court system.

      . 02-410 (La.App. 3 Cir. 10/2/02), 827 So.2d 1248.

      . 130 La. 1, 57 So. 532 (La.1912).

      . 01-1383 (La.12/7/01), 805 So.2d 124.

      . State v. Lai, 04-1053 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, 558, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175.

      . State v. Tamez, 506 So.2d at 533.

      . State v. Nguyen, 827 So.2d at 1252.

      . State v. Jefferson, 03-820 (La.App. 5 Cir. 1/27/04), 866 So.2d 931, 942, writ denied, 04-0727 (La.9/24/04), 882 So.2d 1166.

      . State v. Gross, 05-903 (La.App. 5 Cir. 3/28/06), 927 So.2d 583, 585, writ denied, 06-1465 (La.2/16/07), 949 So.2d 408.

      . State v. Johnson, 01-842 (La.App. 5 Cir. 2/13/02), 812 So.2d 106, 117, writ denied, 02-1037 (La.3/21/03), 840 So.2d 532.

      . State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676.

      . State v. Johnson, 709 So.2d at 676, quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

      . State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 132.

      . State v. Johnson, 01-0842 (La.App. 5 Cir. 2/13/02), 812 So.2d 106, 118, writ denied, 02-1037 (La.3/21/03), 840 So.2d 532.

      . 02-769 (La.App. 5 Cir. 1/28/03), 839 So.2d 340, writ denied, 03-833 (La.10/31/03), 857 So.2d 472.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Johnson, 04-614, p. 3 (La.App. 5 Cir. 11/16/04), 890 So.2d 19, 23, writ denied, 05-0243 (La.12/9/05), 916 So.2d 1048.

      . Johnson, 04-614 at p. 6, 890 So.2d at 23

      . State v. Cotton, 94-384, p. 2 (La.App. 5 Cir. 11/16/94), 646 So.2d 1144, 1146.

      . Johnson, 04-614 at p. 6, 890 So.2d at 23, citing State ex rel. Richey v. Butler, 572 So.2d 1043, 1044 (La.1991) (quoting State v. Bonier, 367 So.2d 824, 826-27 (La.1979)).

      . Cotton, 94-384 at pp. 2-3, 646 So.2d at 1146.

      . State v. Page, 02-689, p. 16 (La.App. 5 Cir. 1/28/03), 837 So.2d 165, 176, wit denied, 03-0951 (La.11/7/03), 857 So.2d 517.

      . State v. Ellis, 95-1005, p. 4 (La.App. 5 Cir. 3/26/96), 672 So.2d 1007, 1009.

      . The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Simmons, 03-20 (La.App. 5 Cir.4/29/03), 845 So.2d 1249, 1263.

      . Id.