author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana in the Interest of T.P.M., T.T.M., T.C.M.
    No. 06-CA-530.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Sherry A. Watters, Attorney at Law, Department of Social Services Office of Community Services, New Orleans, Louisiana, for Plaintiff/Appellee.
    Eunice Slaton Charles, M. Elizabeth Toca, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|¡>The natural mother, E.M., and the natural father, R.L., appeal a judgment of the juvenile court terminating their parental rights to their three daughters, T.P.M., T.T.M., and T.C.M. For the reasons which follow, we affirm.

T.P.M. was born on January 8, 2002. T.T.M. and T.C.M., who are twins, were born on March 25, 2003. According to the State of Louisiana, Department of Social Services, Office of Community Services, (“the State”), the twins were admitted to Children’s Hospital on April 28, 2003 for malnutrition, severe dehydration and respiratory distress. After a protective order was obtained for the twins, R.L. allowed the oldest daughter, T.P.M., to go with the mother, E.M., after allegedly being informed that he was not to leave her with the mother. On May 20, 2003, T.P.M. was observed to have three large bumps on her head, and the parents could not explain what happened to her. The children were found to be “in need of |scare” and, by court order dated June 17, 2003, all three children were placed in the State’s custody. The children have been in foster care since that time.

The goal for this family was originally reunification and a case plan was ordered for the parents. However, on October 26, 2004, the State filed a Petition for Termination of Parental Rights on the grounds of abandonment and/or failure to substantially comply with the court-approved case plan. Trial began on March 22, 2005, at which both parents and Dr. Amy Abraham of the Tulane Infant Team testified. Trial reconvened on April 26, 2005 at which time the parties and the Court reviewed videotapes of the parents and the children that were taped by the Tulane Infant Team. On January 27, 2006, when the case came before the trial court again, all parties rested and the Court took the matter under advisement. On April 7, 2006, the trial judge issued a judgment decreeing that the parental rights of E.M. and R.L. relative to T.P.M., T.T.M., and T.C.M. are irrevocably terminated and dissolved, and that the children are free and eligible for adoption. It is from this judgment that E.M. and R.L. appeal.

DISCUSSION

The primary concern of the courts and the State in proceedings for involuntary termination of parental rights is to determine and insure the best interest of the child. State ex rel. A.T., 06-0501 (La.7/6/06), 936 So.2d 79, 82. In order to terminate a person’s parental rights, a court must find that the State has established at least one of the statutory grounds for termination set forth in LSA-Ch.C. art. 1015 by clear and convincing evidence. LSA-Ch.C. art. 1035; Id.

In the present case, the State filed a Petition for Termination of Parental Rights based on the grounds set forth in LSA-Ch.C. art. 1015(4)(b) and (5). Although only one ground must be proven, the trial court found that the State met its burden of proving both grounds by clear and convincing evidence.

|4On appeal, E.M. and R.L. argue that the trial court erred in finding that the State met its burden of proof that each parent abandoned the children, pursuant to LSA-Ch.C. art. 1015(4)(b). The ground for termination of parental rights under LSA-Ch.C. art. 1015(4)(b) is:

(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intent to permanently avoid parental responsibility by ...:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

R.L. asserts that his children were taken from him, so he did not “place them in the custody of a nonparent or the department.” However, the statute requires that the parent place the child in the custody of a nonparent or the department or leave the child in circumstances demonstrating an intent to permanently avoid parental responsibility. Failure to significantly contribute to the child’s care for six consecutive months is one of the methods by which a parent can demonstrate an intent to permanently avoid parental responsibility, pursuant to LSA-Ch.C. art. 1015(4)(b).

R.L. further contends that he never intended to avoid his parental responsibility to his children and that he did provide support for the children when he brought toys, snacks, candy, or gifts during his visits with them at the Infant Team Office. E.M. also contends that she assisted in supporting the children by bringing gifts or snacks to their visits. Both parents claim that they should not be penalized for failing to pay child support to the State because the State never assessed their child support obligations, as required by the case plan.

In her reasons for judgment, the trial judge found that neither parent made any significant contribution to the children’s support from June 2003, when the children were ordered into State custody, through October 2004, when the State |Rfiled the Petition for Termination of Parental Rights. She stated that she considered the gifts and snacks the parents sometimes brought to their visits, as well as the fact that the amount of child support was not set. However, she stated that “the statute only requires proof of a lack of significant contributions to the support of the children by a parent for any six-month period to justify termination of that parent’s rights.”

In State ex rel. M.L., 00-153 (La.App. 3 Cir. 5/3/00), 761 So.2d 103, the mother made only one monthly contribution to her children’s support and brought birthday cakes to the children. Based on these contributions, the Third Circuit affirmed the trial court’s finding that the State proved by clear and convincing evidence that the mother did not provide for the care and support of her children for at least six months.

See also, State in Interest of D.M.H. v. 27,807 (La.App. 2 Cir. 9/27/95), 661 So.2d 643, in which the natural parents made some limited payments to the State while their child was in foster care and the mother brought the child a few gifts, one article of clothing, and some fast food meals. The Second Circuit found that the gifts, food, and other items brought to the child were not sufficient as “reasonably necessary food and clothing” to constitute support.

At trial, R.L. admitted that he worked several jobs during the time his children were in foster care, but he did not pay any child support to the State, because “nobody never sent me a paper to my house” and “nobody never told me where to go at.” He further acknowledged that he was in court when child support was ordered as part of the case plan. He stated that he gave his income information, i.e. pay stubs, to the Infant Team, but not to the State.

E.M. testified that she gets $386 per month from social security disability. She admitted that she was supposed to bring a social security letter or mail it to |fishow how much she receives every month in order to determine child support, but she claims that she never had time to mail the letter.

Considering the jurisprudence, along with the testimony of E.M. and R.L., we agree with the trial judge that the State met its burden of proving that neither E.M. nor R.L. made significant contributions to the care and support of their children for at least six consecutive months. The children have been in foster care for over three years. We cannot reasonably conclude that occasional snacks or gifts constitute “significant contributions” to their care and support. Based on the evidence before us, we find no error in the trial court’s finding that the elements of LSA-Ch.C. art. 1015(4)(b) have been met as to each parent by clear and convincing evidence.

Although only one ground for termination of parental rights must be satisfied, the trial court found a second ground for termination under LSA-Ch.C. art. 1015(5) was also established by clear and convincing evidence. We agree.

The ground for termination set forth in LSA-Ch.C. art. 1015(5) is:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Reformation sufficient to prevent termination of parental rights requires that the parent demonstrate substantial change, such as significantly altering or modifying the behavior that resulted in the State’s removal of the child from the parent’s home. State in Interest of H.D., 98-0953 (La.App. 4 Cir. 11/4/98), 721 So.2d 1045, 1048; State in Interest of B.J., 95-1915 (La.App. 1 Cir. 4/4/96), 672 So.2d 342, 347, writ denied, 96-1036 (La.5/31/96), 674 So.2d 264. A reasonable | expectation of reformation or significant improvement in the near future exists if the parent has cooperated with State officials and has shown improvement, although all of the problems have not been eliminated. State in Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 450; State in Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1317 (La.1993).

The trial judge, found that both E.M. and R.L. failed to complete their court-approved case plan and that there is no reasonable expectation of improvement in either parent’s conduct in the near future. E.M. and R.L. both contend that the trial court erred in this finding. R.L. asserts that he substantially complied with his case plan and that it is impossible to determine if there is a reasonable expectation of improvement in his ability to parent his children without more time and attention given to provide him with effective services. He contends that the intervention of the Tulane Infant Team was inadequate and that they did not provide sufficient parenting instruction. E.M. contends that if she did not rehabilitate after a year of instruction with the Infant Team, it was because she did not receive proper instruction from them. She argues that she cooperated with the Infant Team, but they, did not address her parental problems.

In her reasons for judgment, the trial judge agreed that each parent cooperated with parts of their case plans, but she found that neither of them made the improvements necessary for the safe return of the children and there is no reasonable expectation that their conduct will change in the near future. The trial judge indicated that she based her decision on the evidence provided by the State and the parents’ own admissions, noting that both parents continue to depend on others. The.trial judge further indicated that even if she agreed with the parents’ argument that the Tulane Infant Team’s efforts to assist them with their parenting | ^skills were inadequate, she found that the Infant Team’s evaluations of the parents were adequate. She summarized the evaluation of the Infant Team as follows:

The Infant Team reports state that the parents are- not able to be safe and effective caregivers at this time nor in the foreseeable future. Even with continued intensive intervention, the parents remain unable to make the necessary progress toward being reunited with the children. The Infant Team reported that the children remain at high risk for maltreatment if returned to their biological parents now, or in the future. The Infant Team stated in the report that [E.M.] cannot provide for the safety of her children in a small, baby-proofed room with another adult present. On multiple occasions she failed to notice when her children were in dangerous situations, such as trying to touch electrical sockets or choking, and did not intervene even after it was called to her attention. The reports state that [R.L.] is also not capable of taking care of the children in the small room with another adult present. They also note that he has not been able to obtain stable, independent housing or consistent employment to provide for the needs of his growing family. He also has no specific plan as to how he will do this in the near future. The Infant Team reports show that these parents are not capable of caring for these three young children.

At trial, Dr. Amy Abraham of the Tulane Infant Team testified that E.M. has made minimal progress in being able to safely parent her children. She stated that E.M. had good attendance at the visits and therapy, but she did not have good participation and was disengaged during the sessions. She opined that E.M. could not properly attend to her three daughters, even with a professional assisting her. She testified that R.L. missed many sessions, but he did not provide her with documentation that these absences were due to work, as requested. Dr. Abraham indicated that R.L. often seemed angry, irritable, and uncooperative in therapy. She further stated that she did not see improvement in his ability to safely supervise the children.

In State ex rel. J.M., 02-2089 (La.1/28/03), 837 So.2d 1247, the Louisiana Supreme Court considered a termination of parental rights case in which the mother worked very hard at complying with her case plan, but due to her “intellectual handicap” or “subaverage intelligence,” she continued to have [ 3difficulty maintaining basic standards for her children. Although the Court stated that she had a positive bond with her children and the children loved her, it found that the mother was simply incapable of managing the care of her children. Accordingly, the mother’s parental rights were terminated. The Court stated:

We recognize that a bond exists between the children and their mother.We also acknowledge that S.M. desires a continued relationship with her children. However, we cannot ignore the fact that S.M. has demonstrated an inability to care for all of her children. It is paramount that we place the children’s best interests above that of their mother’s [sic]. Children have the right to live in a safe, secure environment and to be reared by someone who is capable of caring for them. Despite her efforts, it is clear that S.M. is incapable of meeting the needs of all six of her children.

In the present case, despite the fact that both parents assert that they want a continued relationship with their children, they have not demonstrated that they have the ability to safely and consistently care for them. After thorough review and consideration of the record before us, as well as the applicable jurisprudence, we agree with the trial judge that E.M. and R.L. did not substantially comply with their case plans and there is no reasonable expectation of significant improvement in the near future. Accordingly, the trial judge did not err in finding that the State proved the ground for termination of parental rights set forth in LSA-Ch.C. art. 1015(5) by clear and convincing evidence.

In addition to establishing a statutory ground for termination, the trial judge must also find that termination is in the best interest of the child. State ex rel. S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223, 1233. E.M. and R.L. assert that it is not in the best interest of the children to terminate their parental rights. We disagree.

The children were extremely young when taken into State custody. They have remained in foster care since that time, over three years. The record reflects that E.M. and R.L. have made little progress and that there is no reasonable 1 ^expectation that they will significantly improve in the near future. The father, at age 21, has eight young children. He has shown unreliable behavior with the three children at issue here and has failed to maintain a stable home or to demonstrate that he can safely and consistently care for them. There is no evidence that this is likely to change. E.M. has had another child since these children were taken into custody and she has also failed to show that she can maintain a stable home or safely and consistently care for the children at issue in this case.

A child has an interest in the termination of rights that prevent adoption and inhibit the child’s establishment of secure, stable, and continuous family relationships. State in Interest of J.M., 30,302 (La.App. 2 Cir. 10/29/97), 702 So.2d 45, 50, writ denied, 97-2924 (La.2/6/98), 709 So.2d 736. In the present case, we agree with the trial judge that it is the children’s best interest that E.M. and R.L.’s parental rights relative to T.P.M., T.T.M., and T.C.M. be irrevocably terminated, and that these children are free to be adopted.

DECREE

For the reasons set forth above, we affirm the April 7, 2006 judgment of the trial court, irrevocably terminating and dissolving E.M. and R.L.’s parental rights relative to T.P.M., T.T.M., and T.C.M.

AFFIRMED.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, Jr., Chief Judge.

license: Public Domain

text:
    Kerry J. HYMEL v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 06-CA-497.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.
    Scott P. Shea, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.

      Stephen C. Resor, Michael M. Meunier, Sullivan, Stolier & Resor, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   EDWARD A. DUFRESNE, Jr., Chief Judge.

| aThis is an appeal by Kerry J. Hymel, claimant-appellant, from a summary judgment rendered by an Office of Workers’ Compensation judge disqualifying him from benefits on grounds of fraud. For the following reasons we vacate that judgment and remand the case for further proceedings.

The underlying facts are straightforward. Hymel was employed by Kaiser Aluminum Corporation as a general repairman in 1977, and since then had worked continuously for the company, except for 25 months in the 1999-2000 period when there was a strike at the plant. The accident at issue here occurred on August 28, 2003, while he was using a jack hammer. Apparently the bit jammed in the work and as Hymel was trying to extricate it he injured his right shoulder. He immediately reported the incident to his supervisor and went to the doctor later that day. It is not clear in the record what treatment, if any, he received. However, he continued to work his regular job until December 11, 2003, when the company doctor put him on restricted duty because of continuing problems with his | ^shoulder. He worked until March 5, 2004, and on March 8 surgery was performed by Dr. Nick Hatzis for a torn rotator cuff in his right shoulder. Two months later, on May 27, a second surgery was required to correct continuing problems.

Kaiser began paying workers’ compensation benefits at the time of the first surgery, and continued to do so until late 2004. Its reason for terminating weekly benefits was that Hymel had stopped seeing Dr. Hatzis in September of that year, and had begun to see Dr. Melvin Parnell, his regular physician. At about this time Dr. Hatzis had informed Kaiser that Hy-mel would be able to return to work in about six weeks. Although Kaiser did continue to pay Hymel’s medicals, it refused to authorize an MRI recommended by Dr. Parnell to investigate Hymel’s continued complaints of pain. Hymel filed the present claim with the Office of Workers’ Compensation in January of 2005.

On June 9, 2005, Hymel’s deposition was taken. On the basis of that deposition and earlier medical records of Hymel, Kaiser urged a motion for summary judgment to disqualify him on grounds of fraud. The matter was delayed by the recent hurricanes, but a hearing was finally held on the motion on March 13, 2006. Judgment granting the motion was signed on March 17, and this appeal followed.

The pertinent statute here is La. R.S. 23:1208, which provides that it is unlawful to willfully make false statements in order to obtain workers’ compensation benefits. The result of so acting is to forfeit all rights to such benefits.

In this case, the allegations are that Hymel willfully made false statements in his deposition testimony regarding prior injuries to his right shoulder. Prior medical records showed that he had occasionally been treated for strains to that shoulder between 1988 through 1995, and again in 2001. Reports concerning all of | ¿those injuries were in Kaiser’s records and well known to it because on these prior occasions Hymel had been placed on light or restricted duty for short periods of time while recovering. In addition, these injuries were all deemed to be non-work related and no compensation benefits were paid. Finally, a follow-up medical X-ray report also appearing in Kaiser’s files in regard to the 2001 right shoulder injury-states “no abnormalities of the bones, joints, or soft tissues,” and “impression: normal right shoulder.”

During the deposition, Hymel was asked if he been injured before the August 28, 2003 incident. He responded that because he did physical labor he had had problems with most of his joints over the years, but I “never had the problem I had until that date of August [28].” On the following page he was twice asked if he had ever sought treatment for his right shoulder, and answered “not that I remember” and “I don’t remember.” It is on the basis of these two answers that the judge determined that he had committed fraud to obtain benefits.

Appellate courts conduct a de novo review of summary judgments. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). Pursuant to La.Code Civ. Pro. Art. 966, a summary judgment should be granted only if the papers of record show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Id.

Our review of the record here discloses at least two areas of dispute. First, it is not clear that Hymel was willfully misrepresenting his prior medical records. His first response quoted above indicates to this court that he was distinguishing between what he considered past minor injuries to his joints and what he obviously considered a much more severe injury on August 28. In that context, his answers that he did not recall prior treatments to his shoulder might well have meant to him that he had not been treated before for such a severe injury as he suffered on 1 ¡August 28. Second, the medical report relating to the 2001 shoulder injury states that that shoulder was then normal. If that is the case, then Hymel’s prior injuries to that shoulder are irrelevant to the torn rotator cuff diagnosed and treated after the August 28, 2003, incident. We finally note that all of Hymel’s prior treatments were reported to Kaiser, none of them were deemed work related, and no compensation was ever paid for these problems. It is thus not a question of him hiding his medical conditions from his employer on some systematic long term basis. It is rather that he made two statements during a deposition concerning potentially irrelevant prior treatments which, while possibly intentional lies, could just as well be read as the result of a misunderstanding.

In these circumstances we find that there are material facts in dispute as to whether Hymel made willful false statements in order to obtain workers’ compensation benefits. That being so, the summary judgment entered in this matter must be vacated and the case remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Robert DUBLAN v. Barbara Cramer DUBLAN.
    No. 06-CA-296.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Brenda Braud Birner, Birner & Birner, LaPlace, Louisiana, for Plaintiff/Appellant.
    Maria M. Chaisson, Chaisson & Chais-son, Destrehan, Louisiana, for Defen-dani/Appellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

lain this appeal, Robert Dublan, the plaintiff and former husband of defendant, Barbara Dublan, seeks review of a trial court judgment on traversal in the community property settlement, which denied some of his claims for reimbursement from the community.

The parties, Robert and Barbara Dub-lan, were divorced on April 18, 2005 after almost forty years of marriage. The judgment of divorce terminated the community of acquets and gains on September 3, 1994. During the marriage, Mrs. Dublan managed the couple’s finances through two joint checking accounts, and a joint money market account (Starr account) established at the bank where Mrs. Dublan was employed. In the course of the marriage both parties received inheritances, life insurance proceeds and gifts that were deposited into the Starr 13account. In February of 2001, Mr. Dublan deposited insurance proceeds in the amounts of $37,619.15, $2,075.20, $19,045.76, and $3,571.08. In March of 2001, Mr. Dublan deposited $92,500.00 in .funds received from the sale of a home. In August of 2001, Mr. Dublan made two deposits of cash received by inheritance totaling $14,504.00. A final cash deposit in August of 2004 in the amount of $110,600.00 brings deposits of separate property made into the Starr account by Mr. Dublan to $279,915.19.

Mrs. Dublan made four deposits of separate property in the form of insurance proceeds, totaling $62,311.19, into the Starr account in February of 2001.

Although it is not contained in this designated record, the parties acknowledge that a prior judgment of the trial court held that the deposits in the Starr account were indiscriminately commingled and, therefore, are community funds.

Both parties filed Sworn Descriptive Lists and Mr. Dublin filed a traversal. At the hearing on the traversal, the parties jointly introduced a spread sheet of all funds inherited by each. They stipulated that all the funds were separate property as listed by each, with the exception of the first two items on Mr. Dublan’s list, $10,000.00 in an American Express Annuity account held since 1989, and $45,000.00 deposited into the couple’s checking account in the mid 1990’s. Mr. Dublan’s total of separate property, including the two disputed items, amounted to $335,915.19. He sought one-half reimbursement for that entire amount. Mrs. Dublan’s total deposits of separate property amounted to $62,311.00.

At the hearing counsel stated that Mrs. Dublan asserts no reimbursement is due either party. However, she stipulated that if Mr. Dublan is entitled to reimbursement, than Mrs. Dublan also seeks reimbursement. After the hearing the | ¿trial court found that the two disputed items were gifts to Mr. Dublan and that he is entitled to reimbursement. The court denied Mr. Dublan’s claim for reimbursement of the remaining separate property amounts co-mingled into the Starr Account. It is from that judgment that Mr. Dublan appeals.

At the hearing, Mrs. Dublan testified that she was the financial manager of the marriage. The couple had two joint checking accounts, and the Starr account. It was Mrs. Dublan’s responsibility to pay the bills. She testified that in the mid-1990’s, Mr. Dublin’s parents gave him a check for $45,000.00 to pay off the couple’s credit card debt. Further, Mrs. Dublan testified that one year as a Christmas gift, Mr. Dublan’s parents gave the couple a check for $10,000.00 with which an American Express Annuity was purchased. All of the parties’ inheritances and life insurance proceeds were deposited into the Starr account, along with community funds. As previously noted, the funds in that account have already been designated by the court as community funds. As the couple needed money, funds would be transferred into the joint checking account and then used to pay community debts, give gifts to the couple’s children and grandchildren, buy vehicles, household items, and take trips.

Mr. Dublan confirmed his wife’s testimony that she was the financial manager for the family and wrote most of the checks. He stated that he was not aware that Mrs. Dublan transferred money from the Starr account to a joint checldng account. However, he did testify that the checks written from the joint checking account were to pay normal community expenses including house notes, utilities, furniture, food, gifts and vacations.

Mr. Dublan stated that the Starr account consisted of deposits of his separate funds, his wife’s separate funds, and certain community funds. Mr. Dublan | ¡^acknowledged that the funds in the Starr account have been declared to be community funds by a prior judgment of the trial court. In support of his testimony, Mr. Dublan entered the bank records from the various accounts into the record.

Mr. Dublan testified that jewelry and trips purchased for Monique Granier were for the benefit of the community. However, Mr. Dublan did not identify his relationship with Ms. Granier or how these expenditures were beneficial to the community. Mr. Dublan testified that he went to the couple’s camp on weekends, often with Ms. Granier, while Mrs. Dublan went to gambling casinos.

Mr. Dublan’s father testified that he gave his son a Christmas gift of $10,000.00 one year. The gift was for his son only and was not a joint gift to both Mr. and Mrs. Dublan. He further testified that he gave his son a $45,000.00 check to pay off credit card debt.

The parties have stipulated that the $279,915.19 in question was Mr. Dublan’s separate property that was deposited into the Starr account. It is also stipulated that $62,311.00 deposited into the same account was Mrs. Dublan’s separate property. There is no dispute that the Starr account is community property. Further, Mrs. Dublan does not take issue with the trial court’s finding that two items on Mr. Dublan’s separate property list were gifts. Therefore, the only issue for our review is whether the trial court properly denied Mr. Dublan’s claim for reimbursement of separate funds, other than the $10,000.00 American Express Annuity and the $45,000.00 gift from his parents used to pay community credit card debt.

It is clear from the reasons for judgment that the trial court did not find that either Mr. or Mrs. Dublan proved by a preponderance of the evidence that they are | (¡entitled to any claim for reimbursement other that the two items granted for Mr. Dublan.

We are reminded that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. Sherrod v. Sherrod, 97-907 (La.App. 5 Cir. 3/25/98), 709 So.2d 352; writ denied, 98-1121 (La.6/5/98), 720 So.2d 687. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99. We shall not disturb a finding of fact made by a trial court absent manifest error or a clearly erroneous finding. Sherrod, supra.

La. C.C. art. 2365 provides that:
If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.
Nevertheless, if. the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, and education of children of either spouse in keeping with the economic condition of the community, the spouse is entitled to reimbursement from the o spouse regardless of the value of that spouse’s share of the community.

The burden of proof is on the party claiming reimbursement to show that separate funds existed and that those funds were used for the benefit of the community. Rogers v. Rogers, 94-541 (La.App. 5 Cir. 12/9/94), 649 So.2d 7.

In the matter before us, separate funds from both parties, as well as community funds, were clearly co-mingled into the Starr account. Money was withdrawn occasionally to pay community debts or make purchases.

17According to the summary of funds deposited into the Starr account, the account was opened with $20,000.00 of community funds. Between February of 2001 and April of 2004 Mr. Dublan deposited $279,915.19 of his separate funds into the account. Mrs. Dublan deposited $62,311.00 of her separate funds into the account in February of 2001. The couple also deposited another $72,050.01 in community funds, and earned $10,740.35 in community interest from February of 2001 and April of 2004. While it is true that funds were often withdrawn from the Starr account and deposited into the joint checking account for the purposes of paying community debts or making purchases to benefit the community, we cannot tell whether the funds withdrawn were the separate property of Mr. Dublan, Mrs. Dublan, or community funds.

Further, Mr. Dublan does not itemize any particular community expense for which he is seeking re-imbursement. Rather, he simply claims one-half reimbursement for everything he put into the Starr account. La.C.C. art. 2340 creates a presumption in favor of the community. Thus, the burden was on Mr. Dublin to provide proof, rebutting the presumption in favor of the community and establishing that his separate funds were used for the acquisition of community assets. We find that, on the record before us, Mr. Dublin failed to rebut that presumption and to show that he is entitled to re-imbursement from the community. Rogers v. Rogers, supra., 649 So.2d at 9.

Given the facts presented at trial, we find no abuse of discretion in the trial court’s decision to deny the remaining claims for reimbursement to Mr. Dublan.

AFFIRMED.

      . Subsequently, the trial court rendered an amended judgment certifying the ruling as final for purposes of appeal.


author: GREG G. GUIDRY, Judge.

text:
    UNION PLANTERS BANK, NATIONAL ASSOCIATION v. MONTAGNET PROPERTIES # 6, L.L.C. & Oliver S. Montagnet, Jr.
    No. 06-CA-500.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Richard F. Zimmerman, Jr., David S. Rubin, Attorneys at Law, Baton Rouge, Louisiana, for Plaintiff/Appellee.
    Robert J. Homes, Jr., Attorney at Law, Gulfport, Mississippi, Patricia G. Breckenridge, Metairie, LA, Jules A. Carville, Laplace, LA, for Defendants/Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

laThe Defendants, Oliver S. Montagnet, Jr. and Montagnet Properties # 6, appeal a judgment in a suit by the Plaintiff, Union Planters Bank, National Association, to collect a debt. For the following reasons, the appeal is dismissed.

In reviewing the record in this case, we find that the Appellants’ Motion for New Trial was untimely. Notice of the January 6, 2006 judgment was mailed on January 6, 2006. The delay for filing a motion for new trial is seven days, exclusive of holidays, commencing on the day after the notice of the judgment is mailed. La. C.C.P. art.1974. Here, the delays expired on January 18, 2006. The Motion for New Trial was filed on January 19, 2006. Because the Motion for New Trial was not filed timely, the devolutive appeal is untimely. The notice of appeal had to be filed within “60 days from the expiration of the delay for applying for a new trial ..., as provided by Article 1974...., if no application has been filed 1 ¿timely.” La. C.C.P. art.2087. The Motion for Devolu-tive Appeal in this case was filed on May 1, 2006.

Furthermore, even if the appeal was timely, the judgment is not a final, appeal-able judgment. The record reflects that the parties agreed that the Consent Judgment issue was not before the court in the July 22, 2006 hearing. The trial judge stated in the later judgment that he “will” sign the Consent Judgment, but he did not do so. Thus, the issue is still pending in the trial court. Because it is still pending, the Defendants can file an answer pursuant to La.C.C.P. art. 2593 prior to the hearing.

Accordingly, the appeal from the judgment dated January 6, 2006 is hereby dismissed. Costs of the appeal are to be paid by the Appellants.

APPEAL DISMISSED.


author: Judge LEON A. CANNIZZARO, JR.

text:
    PELLITTIERI’S BAYOU HOMES, INC. v. Kimberly SHERBECK and Christopher P. Montz.
    No. 2005-CA-1286.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 29, 2006.

      Michael C. Ginart, Jr., Law Offices of Tonry & Ginart, Chalmette, LA, for Plaintiff/Appellee, Pellittieri’s Bayou Homes, Inc.
    Salvador J. Randazzo, Slidell, LA, for Defendants/Appellants, Kimberly Sher-beck Montz and Christopher P. Montz.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO, JR.).
   Judge LEON A. CANNIZZARO, JR.

|! This case involves an appeal from a judgment deciding a dispute between a contractor, Pellittieri’s Bayous Homes, Inc. (“Bayou Homes”), and Christopher P. Montz and his wife, Kimberly, in connection with the construction of the Montzes’ residence in Mereaúx, Louisiana. The Montzes are appealing the trial court judgment and the amended trial court judgment pursuant to which Bayou Homes was awarded $15,978.33 plus costs and legal interest. Bayou Homes answered the appeal and is asserting that it was entitled to additional funds that were due under the construction contract between the Montzes and Bayou Homes.

FACTS AND PROCEDURAL HISTORY

The Montzes entered into a building contract with Bayou Homes for the construction of their home for a price “not to exceed bid price of $184895 [sic].” Attached to the contract was a list of allowances for various aspects of the construction. The contract provided that “[a]ny cost overruns in excess of allowances will be the sole responsibility of the client,” and the list stated with respect to certain items that any extras would be paid by or charged to the owner.

|2The contract also contained a provision regarding dispute resolution that read as follows:

Any dispute between owner and contractor with respect to any matter or anything relating to this contract shall be referred to [sic] for final determination to Reed Consulting Engineers within 7 days of completion of contract or acceptance of house. His findings shall be the sole method for dispute resolution. If he is unwilling or unable to serve, another mutual expert will be named acceptable by [sic] both parties.

The original plans for the construction of the Montzes’ home were stamped by Thomas Reed, an engineer with Reed Consulting Engineers, with the date June 29, 2001, and they were approved by St. Bernard Parish in July of 2001. The plans were modified, however, and the revised plans were stamped by Mr. Reed on August 27, 2001, and a building permit was subsequently issued.

The contract included a payment schedule under which payments would be made to Bayou Homes as the various stages of construction were completed. The Montzes made payments during the construction period in the total amount of $166,405.51, which equaled all of the scheduled payments required to be made less the ten percent to be retained until the final inspection of the construction had been completed. Before the construction was finished, however, a dispute arose between the Montzes and Bayou Homes. Because of the dispute, Bayou Homes did not complete the construction, and the Montzes hired another contractor to finish it.

Additionally, it was agreed between the Montzes and Bayou Homes that to enable them to save on the cost of constructing their home, the Montzes would be responsible for certain items that they could do themselves such as painting the | ¡¡walls, installing the flooring, installing the soffits, and cleaning up the construction site. The Montzes were to be given credit against the contract price for the labor that they performed and the materials that they purchased to the extent that these items were included in the contract price.

Because Bayou Homes claimed that it had not been paid all that it was owed under the ' construction contract, it filed suit to enforce a lien for labor and materials in the amount of $21,409.31 plus interest, costs, and attorney’s fees. The $21,409.31 represented amounts allegedly owed by the Montzes for extra materials that were used and extra labor that was performed as a result of changes to the construction of the house that were made at the Montzes’ request after the contract was executed. These changes included a breezeway connecting the garage to the house and the addition of two feet across the rear of the house. Additionally, a circular driveway was constructed in front of the house. Bayou Homes claimed that the driveway was not covered by the original plans for the house, whereas the Montzes claimed that it was on the original plans and that, therefore, the cost should be included in the contract price.

There were also disputes over a number of other additions and changes to the house. The Montzes claimed that some of these changes were part of the contract and were included in the contract price. They also contended that they were entitled to the unused contract allowances for some of the items on the allowance list attached to the contract and that the unused allowances should be credited against the amounts allegedly owed by the Montzes to Bayou Homes. Finally, the Montzes asserted that certain aspects of the construction did not meet the standards for good workmanship.

|4In response to the suit by Bayou Homes, the Montzes filed a reconventional demand against Bayou Homes and its owner, Emile J. Pellittieri. The reconven-tional demand asserted that a number - of items required to be completed by Bayou Homes under the contract were not and that the Montzes were entitled to damages for the alleged breach of contract by Bayou Homes. Additionally, the Montzes claimed in the reconventional demand that they were owed for unused allowances and for the repair of allegedly substandard construction by Bayou Homes.

After a trial, the trial court judge awarded $15,978.33 plus interest and costs to Bayou Homes. The trial court also awarded expert witness fees in the amount of $850 to Bayou Homes in connection with the testimony of Mr. Reed, the construction engineer who testified at the trial. The Montzes are appealing the award to Bayou Homes, and Bayou Homes has answered the appeal claiming that it is entitled to additional damages and that the trial court judge improperly calculated the damages that were awarded to it.

STANDARD OF REVIEW

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court stated that it is well settled that an appellate court may set aside a factual finding of a trial court or a jury only where the finding was based on a “manifest error” or was “clearly wrong”. Id. at 844. Further, where there is conflict in the testimony, a trial court’s or a jury’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury. Id. Additionally, where there are two permissible views of the 15evidence, the trial court’s or jury’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

If a trial court or a jury has based findings of fact on a determination regarding the credibility of the witnesses, the manifest error or clearly wrong standard of review requires even greater deference to the findings of the trier of fact. Id. This is because only the finder of fact can be aware of the variations in the demeanor and tone of voice of the witnesses that bear so heavily on the listener’s understanding of and belief in what is said. Id.

In LeBlanc v. Stevenson, 00-0157, p. 3 (La.10/17/00), 770 So.2d 766, 770, the Louisiana Supreme Court held that a trial court’s factual finding may not be reversed unless (1) the record reflects that a reasonable factual basis for the findings does not exist, or (2) the record establishes that the findings are clearly wrong or manifestly erroneous. Id. Where a decision of a court is based on an erroneous application of law rather than a valid exercise of discretion, the trial court’s decision is not entitled to deference from the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

DISCUSSION

The Montzes have raised eight assignments of error. Bayou Homes has answered the appeal contending that the trial court failed to award it all of the damages to which it was entitled.

Assignments of Error

Assignment of Error No. 1: The trial court erred by failing to place the burden of proof on Pellittieri as to the amounts claimed as “extras.

In this assignment of error, the Montzes contend that Bayou Homes failed to carry its burden of proof in showing what extra work was done and what the price Lfor the work and materials was. The extras were (1) the construction of a breezeway that connected the house to the garage, (2) two feet added to the rear of the house, (3) two arched windows, recessed lighting cans, and a cathedral ceiling, and (4) the relocation of an air conditioner from its location in the attic to another part of the attic. The respective costs of these extras were $5,425.00, 2,353.00, $1,270.00, and $2,502.00 for a total amount of $ 11,550.00. The Montzes also argue that $700.00 was charged for the replacement of the air conditioner but that the air conditioner was never replaced.

La. Civil Code art. 2763 sets forth the law regarding the effect of making changes in the original plans for the construction of a building. It states:

When an architect or other workman has undertaken the building of a house by the job, according to a plot agreed on between him and the owner of the ground, he can not claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the owner.

La. Civil Code art. 2764 further provides:

An exception is made to the above provision, in a case where the alteration or increase is so great, that it can not be supposed to have been made without the knowledge of the owner, and also where the alteration or increase was necessary and has not been foreseen.

In the instant case the Montzes are not contending that Bayou Homes did not make the changes included in the extras or that they did not request or approve of them. Instead, they are claiming that Bayou Homes was not entitled to compensation for the work and materials used to construct the extras, because it did not prove the cost of the materials by introducing into evidence invoices that segregated the cost of the materials used to construct the extras from the aggregate 17cost of all the materials used in constructing the Montzes’ home. They are further claiming that some of the extras were not, in fact, extra, because they were contemplated by the original plans.

The Montzes contend that the trial court judge committed legal error by “taking the plaintiffs word.” Because Bayou Homes did not present separate invoices for the materials used in connection with the extras, the Montzes argue that Bayou Homes failed to prove that it was entitled to the cost of the materials used to construct the extras. Bayou Homes, however, asserts that it purchased all of the materials for the construction of the Montzes’ home at one time. Thus, the invoices included not only the materials used for the construction of the house as originally shown on the plans but also the materials used for the extras.

Mr. Pellittieri testified that he used a “material list” to allocate the materials between those that were used for items on the original plans and those that were used to construct the extras. Therefore, the use of the materials could be tracked, and their cost could be allocated on its internal ledger between the construction pursuant to the original plans and the construction of the extras.

In support of their argument that the only way that Bayou Homes could have proven the cost of the materials for the extras was by introducing into evidence separate invoices that segregated the cost of the materials for the original construction from the cost of the materials for the extras, the Montzes cite Roberts v. Rolene Corporation, 415 So.2d 546 (La.App. 1st Cir.1982). In that case, the First Circuit Court of Appeal stated:

Defendant presented invoices attempting to prove its expenses for the extras. However, it was never able to separate the primary costs incurred under its obligation to build the house, pool, etc., from the alleged extras. The invoices merely showed the total amount expended |sfor various items and did not satisfactorily separate the primary work from the extra work.
We find that defendant did not sustain its burden of proving the authorization or expense of the alleged extras....

415 So.2d at 549.

We find that the Roberts case is distinguishable from the instant case, however, because the use of separate invoices is not the only way that the allocation of the cost of materials can be proven. In the instant case, documents were introduced into evidence from which the costs of the materials used for the extras could be calculated, and there was testimony from Mr. Pelletti-eri to explain how the cost of the materials and the labor for the extras was determined. Therefore, the trial court judge was not clearly wrong or manifestly erroneous in finding that Bayou Homes was entitled to recover the amounts awarded for the extras. This assignment of error is without merit.

With respect to the $700 charge in connection with the air conditioner, a stipulation that the Montzes did not owe this amount to Bayou Homes was entered at the trial. Therefore, this issue is moot. Assignment of Error No. 2: The trial judge erred in awarding the contractor $1,106.00 concerning the allowance for bricks.

The contract provided as follows with respect to the bricks:

BRICKS
$6600 not to exceed this amount including sand, mortor [sic] and lentals [sic]. ⅝ Any higher priced bricks will be charged to the purchaser pending approval of contractor ($230. per 1,000)

Mr. Pellittieri testified that the brick “allowance” was not technically an allowance, because the words “not to exceed” meant that no matter what Bayou 19Homes had to pay for the bricks for the house and no matter how many bricks were used, the amount that the Montzes would have to pay for the bricks, mortar, and lentils would be $6,6000.00. This price was, however, based on bricks that cost $230.00 per thousand bricks. Because the bricks selected by the Montzes cost $309.00 per thousand bricks, the Montzes were required under the terms of the contract to pay, in addition to the $6,6000.00, the difference between $309 and $230 for each thousand bricks used in the construction of their house.

The trial judge was not clearly wrong or manifestly erroneous in awarding Bayou Homes the additional amount for the bricks. This assignment of error is without merit.

Assignment of Error No. 3: The trial judge erred in failing to credit the owners for the cost of the concrete for the home’s circular driveway and by referring to Thomas Reed as an expert appointed by both parties to resolve differences and in awarding Mr. Reed expert ivitness fees.

Assignment of Error No. f: The trial judge committed manifest error in failing to award the homeowners reimbursement for the cost of the circular driveway.

We will consider these two assignments of error together, because they both relate to the circular driveway that was constructed in front of the Montzes’ house. The initial issue that must be resolved is whether the trial court judge was clearly wrong or manifestly erroneous in finding that the circular driveway was added to the plans after the contract had been bid and executed.

The Montzes contend that the circular driveway was shown on the original plans and that, therefore, it was not an extra but was, instead, included in the original contract. We have reviewed the original plans and the revised plans and find that the circular driveway was not drawn on the original plans with drafting Imtools. It was drawn freehand. Because the circular driveway was not drawn using drafting tools on the original plans, the trial court judge concluded that the driveway was added to the original plans after they were prepared by the draftsman. Therefore, the judge determined that the circular driveway was not a part of the original plans and was, thus, an extra that was subsequently incorporated into the revised plans.

There was also testimony at the trial from Mr. Pellittieri and Mr. Reed from which the trial court judge could have determined that the circular driveway was an extra, and Mr. Reed’s expert report also supported the trial judge’s finding. Finally, the amount of the allowance for the concrete in the contract supports the conclusion that the circular driveway was an extra. There is no merit to these assignments of error with respect to the finding that the circular driveway was an extra.

With respect to the trial court’s reliance on Mr. Reed’s testimony, the judge, as the trier of fact in this case, had the authority to accept or reject the testimony of any of the witnesses at the trial, whether or not they were expert witnesses. Mr. Reed testified as an expert in construction engineering and as a fact witness regarding the original and the revised plans that he approved. We find no error in the trial court judge’s reliance on Mr. Reed’s testimony.

The Montzes further contend, however, that it was error for the trial court judge to assess the expert witness fees charged by Mr. Reed against them. La. C.C.P. art. 1920 provides that “[ujnless the judgment provides otherwise, costs shall be paid by the party cast [in judgment].” Article 1920 further provides that “[e]x-cept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” Additionally, InLa. R.S. 13:3666(A) provides that a witness called to testify as to an opinion founded on a professional examination and to state the results of the examination “shall receive additional compensation, to be fixed by the court, with reference to the time employed and the degree of learning or skill required.” Further, La. R.S. 13:3666(B) provided that “[t]he court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment. ...”

Mr. Reed testified regarding the facts in connection with the plans he approved, and he also testified as an expert in construction engineering. His factual testimony, however, does not negate his right to expert witness fees. See Green v. Jefferson Truck Service, 274 So.2d 396 (LaApp. 4th Cir.1973). Thus, we find that the trial court judge did not err in taxing Mr. Reed’s expert witness fees to the Montzes. This aspect of the third and fourth assignments of error is without merit.

Assignment of Error No. 5: The trial court erred in failing to award all amounts proved by the appellants due for Bayou Homes’ failure to complete the job according tó the contract and the plans and specifications.

The trial court judge considered all of the testimony regarding the disputed items for which the Montzes claimed a credit and for which Bayou Homes claimed that it was owed additional amounts by the Montzes. We find that the trial court judge allocated these items in a manner that could be justified by the testimony and the documentary evidence presented at the trial. Therefore, the trial court judge did not commit manifest error, and he was not clearly wrong. Thus, applying the applicable standard of review to the trial court findings, we are required to affirm them. This assignment of error is without merit.

1 Assignment of Error No. 6: The contractor failed to construct the house in accordance with the contract, and the trial judge erred in failing to find the contractor in breach of the contract.

The Montzes stated in their brief that there were a number of items that were not built according to the plans or that were not constructed in a workmanlike manner. The trial court made factual determinations regarding all of the disputed items and regarding whether the home was constructed in a workmanlike manner. There was ample testimony upon which the trial court judge could base his findings regarding the disputed items. Further, not only did Mr. Reed testify that the house was constructed in a workmanlike manner, even the Montzes’ expert witness testified that most of the construction was of a workmanlike quality.

The Montzes, however, testified that there were a number of items that were not of such quality. The testimony, however, demonstrated that much of the construction that was not of workmanlike quality involved those aspects of the construction for which the Montzes’ were responsible. Many of the items about which the Montzes complained were things that should have been done in a workmanlike manner by the painter, and the Montzes assumed responsibility for that aspect of the construction.

The trial court’s findings were based on the testimony and other evidence in this case. There was a reasonable basis upon which these findings were made, and the findings are not clearly wrong or manifestly erroneous. Therefore, this assignment of error is without merit.

1 Assignment of Error No. 7: The trial court erred in failing to award the homeowners the amount due on all allowances specified in the contract.

The Montzes mention in their brief several specific items for which they claim that they should have been credited with unused allowances under the contract. The trial court judge made a factual determination regarding the items for which the Montzes were entitled to a credit. They were entitled to a credit for items that were designated “allowances” if Bayou Homes paid less than the amount of the allowances for the items. Other items were designated as “not to exceed” items or fixed price items. In the case of these items, if the contractor paid more than the fixed amount, the contractor suffered the loss, and if the contractor paid less than the fixed price, the contractor benefited from the savings. In the case of the fixed price items, the Montzes were not entitled to a refund. The trial court judge made a determination based on the testimony and other evidence presented at the trial regarding what credits under the allowances the Montzes should have been given.

We find that based on the record, there was a reasonable basis for the trial court’s determinations and findings of fact. Additionally, the trial court judge acknowledged in his reasons for judgment that any ambiguities in the contract were to be decided in favor of the Montzes, because Bayou Homes had drafted the contract. See La. Civil Code art. 2056, which states that “[a] contract executed in a- standard form of one party must be interpreted, in case of doubt, in favor of the other party.” We find that this assignment of error is without merit.

Assignment of Error No. 8: The trial court erred in taking notice of the contract price of the house representing a cost of less that $60.00 per square foot and in concluding that the contractor anticipated a profit of less than $19,⅛3⅛-00.

|uWe need not determine whether the trial court erred in taking note of the price per square foot and the anticipated profit under the contract, because if the trial court erred, any error in this respect was harmless. This assignment of error is without merit.

Answer to the Appeal

Bayou Homes and Mr. Pellittieri answered the appeal and asserted that the trial court erred in awarding the Montzes a credit in the amount of $700.00 for the gutters that were installed on their house. One of the documents entered into evidence at the trial set forth the material, size, and shape of the gutters and downspouts and indicated that the downspouts would be connected to the “dry-well.” The document also contained the distance that was to be allocated between downspouts. In the same section of the document that described the gutters and downspouts, the following notation appeared: “N/A per plans.” The Montzes contended at the trial that the cost of the gutters and downspouts was included in the contract price. Therefore, the Montzes argued that because Bayou Homes did not install the gutters and downspouts, they are entitled to a credit for , $700.00, the amount they paid for the installation of the gutters and downspouts. Bayou Homes and Mr. Pel-littieri argued that the notation “N/A per plans” meant that gutters and downspouts were not included in the contract price for building the house.

A trier of fact might find that the detailed information regarding the gutters and downspouts was included to designate the specifications for the gutters and downspouts should the Montzes decide to add them to the house even though the contract did not include those items. Alternatively, the designation of the specifications could be construed to mean that the gutters and downspouts were included in the contract price. Thus, there is at least some ambiguity in the 11fimeaning of the provision relating to gutters and downspouts. Therefore, the trial court judge construed the provision against Bayou Homes in accordance with La. Civil Code art. 2056, cited above.

We do not find that the trial court’s decision to credit the Montzes with $700.00 as reimbursement for the cost of the gutters and downspouts that they installed was error. The contractual provision regarding the gutters was ambiguous. Thus, the trial court construed it in favor of the Montzes, because the contract was executed using a standard form of contract. The trail court’s award of $700.00 for the price of the gutters and downspouts was correct.

CONCLUSION

We find no error in the trial court judgment. Therefore, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . In fact, Mr. Pellittieri testified that Bayou Homes paid approximately $7,000 for the bricks, sand, and mortar.

      . Although this assignment of error raises the legal issue of breach of contract, the issue of breach of contract was not briefed by the Montzes. Therefore, we will address the claims that were addressed in connection with this assignment of error.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Houston BELL.
    No. 2005-KA-0808.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 2006.

      Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    C. Gary Wainwright, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

On December 13, 2002, Houston Bell was charged with one count of vehicular homicide. At his arraignment on January 8, 2003, he pled not guilty. On February 18 the court denied his motions to suppress the evidence and statement. The State subsequently filed a motion in limine to prohibit reference to correspondence written by a State’s witness, and the court granted this motion on September 19, 2003. The court called the matter for trial on March 18, 2004. Prior to the start of trial, the court took victim impact testimony, and then Bell filed a motion in limine to prohibit the State from using the statutory presumption of intoxication, as well as a motion in limine to invoke his physician/patient privilege. The court denied both motions, and Bell then entered a plea of guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s rulings. The court ordered a presentence investigation. On October 7, 2004 the court sentenced Bell to serve seven years at hard labor without benefit of parole, probation, or suspension of sentence. Bell objected at that time, and on October 15, 2004 he filed a motion to reconsider sentence, a motion to withdraw his guilty plea, and a motion for appeal. On January 14, 2005 the court denied the | ¿first two motions but granted the third. On April 18, 2005 the court granted a motion to reconsider sentence, to which the State made no objection. The court modified Bell’s sentence to order that his seven-year sentence at hard labor be served without the benefit of parole for only the first two years.

FACTS

Because this case did not go to trial and the transcript of the suppression hearing is unavailable due to Hurricane Katrina, the facts have been gleaned from the police report and the transcripts of other hearings contained in the record.

At approximately 11:30 a.m. on October 11, 2002, Houston Bell was driving on the I — 10 Service Road in eastern New Orleans near Bullard Avenue. Bell’s car crossed the center line and collided with a car being driven by John Bunch, who worked at a nearby car dealership. Within an hour Bunch was taken to the hospital, where he died of internal injuries, including a ventricular tear. Officers responding to the scene found Bell staggering. He failed field sobriety tests. After being advised of his rights, Bell admitted that he had worked overnight prior to the accident and that he had spent time drinking in a bar after getting off work at 8:00 a.m. He also admitted he had taken Lortab, a narcotic, prior to the accident. The officers took him to a hospital where a blood sample was drawn and then transported him to Central Lockup.

1 DISCUSSION

A. Errors Patent

A review of the record reveals one patent error. The transcript of sentencing shows that the trial court did not impose the fine of not less than $2,000 nor more than $15,000 as mandated by La. R.S. 14:32.1. Thus, we remand the case for imposition of the fine. See State v. Williams, 2003-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, writ den. State ex rel. Williams v. State, 2004-3093 (La.11/28/05), 916 So.2d 133; State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577; State v. Brown, 2003-2155 (La.App. 4 Cir. 4/14/04), 895 So.2d 542.

There are no other patent errors.

B. Assignments of Error

I.

By his first assignment of error, the appellant contends that the trial court erred by denying his motion in limine to prevent the State from using the statutory presumption of intoxication as set forth in La. R.S. 14:32.1 to prove its case.

At the time of the offense La. R.S. 14:32.1 provided in pertinent part:

A. Vehicular homicide is the killing oí a human being ... caused directly by an offender engaged in the operation of ... any motor vehicle ... whether or not the offender had the intent to cause death of great bodily harm, whenever any of the following conditions exists:
* * *
(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

LAppellant’s blood alcohol content was 0.21 percent according to the report of the crime laboratory.

The operator of a motor vehicle on a public road is deemed to consent to a chemical test of his blood, breath, urine, or other bodily fluid to determine the presence and content of alcohol or any controlled dangerous substance where the person is arrested for being under the influence and driving or being in actual physical control of the vehicle. La. R.S. 32:661. The results of such chemical tests may be used as a presumption of intoxication provided the Department of Public Safety has approved the testing methods used in the chemical analysis of a suspect’s blood, breath, urine, or other bodily substance. La. R.S. 32:662, La. R.S. 32:663.

Courts have long held that to utilize the statutory presumption of intoxication as set forth in La. R.S. 32:662, the State must show that the Department of Public Safety has established regulations for the chemical testing of bodily fluids that guarantees that the results of testing will be accurate and that in the particular case the applicable regulations were followed. State v. Barker, 629 So.2d 1119 (La.1993); State v. Graham, 360 So.2d 853 (La.1978); State v. Rowell, 517 So.2d 799 (La.1988); State v. Fairleigh, 490 So.2d 490 (La.App. 4 Cir.1986). In Rowell and in State v. Fairbanks, 531 So.2d 1145 (La.App. 4 Cir.1988), the courts found that the State could not use the statutory presumption because the regulations promulgated by the Department of Public Safety did not guarantee that the results of testing would be accurate. In Graham and in Fairleigh,' the State failed to show that it had followed the regulations. In State v. St. Amant, 504 So.2d 1094 (La.App. 5 Cir.1987), the court found that the State failed to present evidence as to both the regulations promulgated by the Department of RPublic Safety and as to the tester’s adherence to these regulations. The Court found the State was not entitled to utilize the presumption in State v. Gregory, 403 So.2d 1225 (La.1981) because the State did not show that those who performed the maintenance checks on the equipment used in the test were certified by the Department of Public Safety.

We have found only one case where an appellate court upheld the State’s use of the presumption of intoxication, even though the State did not show complete technical compliance with the regulations. State v. Wells, 559 So.2d 531 (La.App. 2 Cir.1990). There the defendant sought to reverse his conviction based upon the State’s use of the statutory presumption because the person who conducted the test had an outdated title. The appellate court rejected this argument, noting that this discrepancy was an “inconsequential departure” from the regulations in that the technician possessed all of the qualifications required by the regulations.

Appellant argues that the trial court should have suppressed the test results in this case because his blood sample was not tested until fourteen days after it was drawn. He argues that since the sample was not timely tested it could not be used to support the presumption. To make this argument he relies on 55 La. ADC Pt. I, § 555, which sets forth the certified techniques to be used by the analyst. Appellant points out that § 555G(3) provides:

The blood sample taken for analysis may be maintained at room temperature and delivered to the designated collection site of each enforcement agency within 24 hours of the end of the collecting officer’s shift. It shall be transported then to the laboratory utilized for analysis at the earliest opportunity after collection, not to exceed seven days.

UThe State counters appellant’s argument asserting he misinterprets § 555(G)(3) to mean that a blood sample must be tested within seven days. The State reads the regulation to means only that the sample be transported within seven days.

Our task, then is to divine whether “not to exceed seven days” modifies “transported” or “for analysis.”

Statutes that authorize the imposition of a penalty are to be strictly construed, [citation omitted] the meaning of a law must first be sought in the language employed. If that is plain, it is the duty of the courts to enforce the law as written. [citation omitted] Thus, interpretation of any statute begins with the language of the statute itself, [citation omitted] Words of a law must be given their generally prevailing meaning, [citation omitted]. When the wording of a revised statute is clear and unambiguous, “the letter of it shall not be disregarded under the pretext of pursuing its spirit.” [citation omitted]. Rather, the law must be applied as written, and no further interpretation can be made in search of the intent of the legislature, [citations omitted].
However, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, [citation omitted]. Principles of judicial interpretation of statutes are designed to ascertain and enforce the intent of the legislature in enacting the statute. The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law. [citation omitted] The legislative history of a statute and related legislation can provide a particularly helpful guide in ascertaining the intent of a statute, [citation omitted]
The statutory and jurisprudential rules for statutory construction and interpretation apply equally well to ordinances, rules and regulations, [citation omitted] An interpretation used by the state administrative agency may be persuasive, [citation omitted]
CAO v. Stalder, 2004-0650, pp. 4-5, (La.App. 1 Cir. 5/6/05), 915 So.2d 851, 855.

|7We find this regulation ambiguous because as written it plausibly may be read as suggested by each side to this controversy. If one reads the words “to the laboratory utilized for analysis” as a unit, then the State’s position seems well founded. On the other hand, it is equally possible to read the sentence such that the words “for analysis at the earliest opportunity after collection, not to exceed seven days” as the operative grammatical unit. In this circumstance, the defendant has the better argument. We find it impossible in this instance to enforce the regulation as written.

Thus, we turn to an examination of the context in which the words are used and the text of the law as a whole to see if we can resolve this dilemma. A review of the driving while intoxicated, vehicular homicide and implied consent statutes, as well as the regulations adopted pursuant to them, reveals a dearth of information regarding whether time is of the essence in conducting a blood alcohol analysis on a sample drawn from a suspect. The regulation in § 555(G)(1) does require the approved test-kit to contain a preservative to insure the stability of the sample. But for how long? The next subsection, § 555(G)(2), provides that following testing the evidence will be stored at room temperature for one year. But why? Certainly the sample might be needed at the trial of the accused. Is the sample preserved so that the defendant can have his own test performed on it? Perhaps this is the reason, but if that is the case, why would La. R.S. 32:664(B) provide the accused an opportunity to have a qualified person of his own choice administer tests in addition to and contemporaneously with those performed at the instance of a law enforcement officer?

We are unable to discern from the words of this regulation and the context in which they are used whether the rule maker, the Louisiana State Police, intended |sfor the transportation of the sample to the lab to occur within seven days of its having been drawn or whether it intended for the actual analysis to occur within that seven day period.

Thus, we are left to see if there is an administrative interpretation by the State Police which may be of some value in resolving this quandary. In this regard we have discovered the internet web site of the Louisiana State Police Crime Laboratory. See: www.lsp.org/crimelab.html# blood. In the section pertaining to blood alcohol testing there is a list of sixteen “Guidelines for Proper Submittal of Blood Alcohol Specimens.” The thirteenth guideline states: “Samples must be submitted to the laboratory within seven days following the shift on which the sample was taken.” None of the other guidelines addresses a time frame when the sample that is submitted must be analyzed. The use of the word “submitted” in the guideline clearly indicates to us that all that is required is delivery to the laboratory within seven days. The testing may occur at a later time.

This assignment has no merit.

II.

By his second assignment of error, the appellant contends that the trial court erred by granting the State’s motion in limine to prohibit the defense from introducing for impeachment purposes letters written by Off. Tafaro to two women prisoners unrelated to this case. At the hearing on this motion, the State noted that the defense planned to introduce three letters to attack Off. Tafaro’s credibility by showing his bias or corruption. The State noted that it intended to call Off. Tafaro as an expert, not a fact witness, and the letters, mostly of a prurient nature, would not show Off. Tafaro’s bias or corruption as an expert, and they would be much more highly prejudicial than probative. Defense counsel countered that he | aintended to introduce these letters to attack Off. Tafaro’s credibility and to show his “corruption” in that Off. Tafaro admitted in the letters that he was writing them while at work, and counsel noted that “corruption” included a person who was attending to personal matters instead of working during working hours. The court countered that it had sent personal e-mails during working hours, and it did not find that these letters were relevant to the quality of Off. Tafaro’s work. The court noted that the “spicy” nature of the letters would make them more appealing to the defense, but this fact would not show “that his test results are inaccurate to the jury, unless you can prove that test results in this case suffered because his attentions were drawn to the letter writing as opposed to the scientific analysis, which I venture to say you cannot.” The court noted that it would allow defense counsel to ask what Off. Tafaro was doing during the time he analyzed the blood sample. The court also noted that the main person to whom the letters were written, Robin Bunley, was convicted in his court and had a history of writing wild letters to various people, including the court itself. The court noted that it was denying the State’s motion in part to allow the defense to cross examine Off. Tafaro on his qualifications and the competency of his chemical analysis in this case, but the defense was not allowed to use what the parties termed the “Bunley letters” to impeach the officer. The court stated: “I’m not here to decide if [Tafaro’s] guilty of corruption based on these spicy letters you call Penthouse forum ... this Penthouse forum stuff, as far as I’m concerned, is an unadjudicated immoral act. The defense noted its objection and requested that the “Bunley letters” be sealed and placed in the record.

The appellant now argues that the trial court erred by granting the State’s motion in limine because he needed them to counter the State’s attempts to |inestablish the reliability of Off. Tafaro’s test results by showing that the officer was engaged in writing the letters instead of doing his work. He also argues that these letters speak of deficiencies in the crime lab where Off. Tafaro worked which the defense could have used to impeach his test results. Interestingly, the defendant did not make the latter argument at the hearing, and there is no indication in the transcript that these letters contained any reference to the working conditions at the lab during the particular time that Off. Tafaro was testing the appellant’s blood. Although the court agreed to seal the “Bun-ley letters” and place them in the record, they are not in the record before us. The appellant argues that the trial court’s ruling impinged upon his right of confrontation.

In State v. Huckabay, 2000-1082, pp. 25-26 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1108, this court discussed a defendant’s right to confront his accusers:

An accused is entitled to confront and cross examine the witnesses against him. La. Const. art. 1, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full confrontation and cross examination of the State’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-202. The trial court has the discretionary power to control the extent of the examination of witnesses as long as the court does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473; State v. Robinson, 99-2236, p. 6 (La.App. 4 Cir. 11/29/00), 772 So.2d 966, 971. It has been held that evidentiary rules may not supercede the fundamental right to present a defense. Id. However, evidence may be excluded if it is irrelevant. See State v. Casey, 99-0023, pp. 18-19 (La.1/26/00), 775 So.2d 1022, 1037. Further, confrontation errors are subject to the harmless error analysis so the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable Into the error. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817.

La. C.E. art. 607 provides for the introduction of evidence for impeachment purposes:

A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
B. Time for attacking and supporting credibility. The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a witness may not be supported unless it has been attacked. However, a party may question any witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.
C. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice, [emphasis added]

However, as noted in C.E. art. 608 B: “Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.” As per La. C.E. art. 401, evidence is relevant if it has “any tendency to make the existence of litany fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The portion of La. C.E. art. 607 italicized above reiterates the relevancy test of La. C.E. art. 403, which provides that even if evidence is relevant, the court my exclude it if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” As noted in State v. Hall, 2002-1098, p. 8 (La.App. 4 Cir. 3/19/03), 843 So.2d 488, 496, writ den. 2003-1117 (La.11/28/05), 916 So.2d 128.:

A trial court’s ruling as to relevancy will not be disturbed absent a clear abuse of discretion. State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004; State v. Badon, 95-0452 (La.App. 4 Cir. 11/16/95), 664 So.2d 1291. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. See State v. Lambert, 98-0730 (La.App. 4 Cir. 11/17/99), 749 So.2d 739; State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814.

In State v. Jefferson, 2004-1960 (La. App. 4 Cir. 12/21/05), 922 So.2d 577, the defendant sought to question a witness, a police officer, about an unrelated misdemeanor charge against him in another parish in order to impeach his credibility. The trial court refused to allow this questioning, and on appeal this court affirmed, finding that the possible relevance of this line of questioning was substantially outweighed by the potential prejudice, confusion of issues, or misleading of the jury that would be caused by the introduction of this evidence.

Likewise, in State v. Washington, 99-1111 (La.App. 4 Cir. 3/21/01), 788 So.2d 477, the defendant sought to introduce a newspaper article profiling one of the officers involved in the case who purportedly told the reporter that he “jacked” suspects all the time. The trial court granted the State’s motion in limine to | ^prohibit the introduction of this newspaper article. On appeal of the defendant’s subsequent conviction, this court affirmed the trial court’s ruling, finding that the court did not err by granting the State’s motion in limine.

Here, even though the letters themselves are no longer available, the description of their contents given at the hearing on the State’s motion in limine shows that their prejudicial effects would far outweigh any probative value they would have. The fact that Off. Tafaro had written letters to female prisoners containing sfexually-ex-plicit stories would have no bearing on whether he accurately analyzed the appellant’s blood sample. The appellant now argues that the letters would show that the reason Off. Tafaro was unable to analyze the appellant’s blood sample until fourteen days had passed was because he was too busy engaged in writing letters to female prisoners. The defense did not make this argument at the hearing. He also argues that the letters contained Off. Tafaro’s complaints about the “deficiencies” of the crime lab, its equipment, and its reagents, which would have cast doubt on his ability to properly analyze the blood sample. Again, however, the appellant did not make this argument at the hearing, and there is no indication in the description of these letters that the letters contained a detailed examination of the deficiencies of the crime lab. The main focus of the hearing on the State’s motion was the prurient nature of the letters, which the trial court likened to unadjudicated immoral acts, which are not admissible as per La. C.E. art. 608 to impeach a witness’' character. Given the avowed purpose of the introduction of the letters as set forth at the hearing on the State’s motion in limine to prohibit the use of these letters, the trial court did not abuse its discretion by finding that the letters’ marginal probative .value would be | ^substantially outweighed by the prejudice or misdirection that would result from their admission.

This assignment of error has no merit.

III.

By his final claim, the appellant contends that the trial court erred by denying his motion in limine wherein he asserted his physician/patient privilege concerning the blood sample taken from him. A physician took two blood samples from the appellant at the hospital after the accident, and the appellant maintains that the sample given to the police cannot be used for prosecutorial purposes because it was taken in furtherance of medical treatment. As noted above, the appellant filed this motion in limine just prior to pleading guilty reserving his rights under Crosby. Although there is no indication that there was any discussion of the matter or that the court ruled on it, the appellant states in his brief that the court denied the motion.

In support of his claim, the appellant cites State v. McElroy, 553 So.2d 456 (La.1989), where the Court held that a blood sample taken by a doctor at a hospital in a DWI case was covered by the physician/patient privilege. However, subsequent to McElroy, the legislature enacted La. C.E. art. 510 C(2)(d), which provides:

C. (1) General rule of privilege in criminal proceedings. In a criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself, his representative, and his physician or psychotherapist, and their representatives.
(2) Exceptions. There is no privilege under this Article in a criminal case as to a communication:
I ⅜ # ⅜ _Ui
(d) When the communication is a record of the results of a test for blood alcohol level or drugs taken from a patient who is under arrest, or who was subsequently arrested for an offense related to the test.

See State v. Marullo, 2005-1921 (La.3/10/06), 923 So.2d 638. In addition, La. R.S. 32:666 mandates that a blood sample be taken from a defendant in any ease involving operating a vehicle while intoxicated where a fatality has occurred.

Here, the victim was killed in the accident. As per La. R.S. 32:666 the officers were mandated to obtain a blood sample from the appellant, and as per La. C.E. art. 510 this sample is not covered by the physician/patient privilege. This claim has no merit.

Accordingly, for the reasons stated above we affirm appellant’s conviction on his guilty plea and remand the case for imposition of the mandatory fine.

AFFIRMED AND REMANDED.

      . Although the motion in limine referred to the statutory presumption as 0.10 percent, the appellant acknowledges that the pertinent blood-alcohol limit was 0.08 percent. The appellant argues that this discrepancy has no effect on the merits of his argument.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Hampton ROBINSON.
    No. 06-KA-464.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2006.
    Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

| ¡^Defendant, Hampton Robinson, appeals his convictions and sentences for one count of armed robbery and one count of attempted armed robbery. Defendant was found guilty as charged by a twelve person jury. On appeal, Robinson argues two Assignments of Error. First, he argues that the trial court erred in failing to grant the defense’s Motion for a New Trial because there was insufficient evidence to support the conviction as to the identity of the perpetrator. Second, he argues that the trial court erred in failing to grant the defense’s Motion to Reconsider the Sentence as excessive.

For the reasons that follow, we vacate the sentences, and remand for a ruling on defendant’s pro se Motion for New Trial, which the trial court failed to rule upon. We reserve defendant’s right to appeal his convictions and sentences in the event of an adverse ruling on the Motion for New Trial.

The record shows that on April 18, 2005, defense counsel filed a Motion for New Trial, arguing that the evidence was insufficient for the jury to conclude beyond a reasonable doubt that he was guilty, and that the interests of justice Lwould be properly served if he were granted a new trial. On April 21, 2005, defendant filed a pro se Motion for New Trial arguing that he did not receive effective assistance of counsel because his attorney failed to file a Motion to Suppress Identification. Defendant also argued in that motion that the evidence was insufficient to support a charge for armed robbery because “there was nothing of value submitted or any dangerous weapon as required by that statute.”

Although the trial judge denied defense counsel’s Motion for New Trial, he did not rule on defendant’s pro se Motion for New Trial. In its brief, the State notes that the allegations made in defendant’s pro se motion were not argued or apparently considered by the trial court. The record supports the State’s contention.

LSA-C.Cr.P. art. 853 provides that a Motion for a New Trial must be filed and disposed of before sentencing. The trial court erred in failing to rule on defendant’s timely-filed Motion for New Trial.

Accordingly, we vacate defendant’s sentences, and remand for a hearing and disposition on defendant’s pro se Motion for New Trial, reserving to defendant his right to appeal his conviction and sentence in the event of an unfavorable ruling. See State v. Christian, 05-635 (La.App. 5 Cir. 2/3/06), 924 So.2d 266, 267.

Defendant argues that the trial court erred by enhancing his sentence five years under LSA-R.S. 14:64.3. He points out that the State did not charge him with a violation of that statute in the Bill of Information, nor did it provide written notice of its intent to seek enhancement of the sentence under that statute. Though we hereby vacate the defendant’s sentences and remand for the trial court to rule 14on the pro se Motion for New Trial, we include the following in the event the trial court rules adversely to the defendant and resentences him.

The State admits that there was no mention of the firearms enhancement statute in the Bill of Information, and that the record does not show that the State provided notice to the defense of the enhancement.

In State v. Walker, 01-51 (La.App. 5 Cir. 5/30/01), 789 So.2d 86, writ denied, 2001-1922 (La.5/10/02), 815 So.2d 834, this Court found no procedural due process violation in the trial court’s imposition of two five-year enhancements under this statute for defendant’s conviction of two counts of armed robbery. This court noted that the Bill of Information clearly alleged that the offenses had been committed with a gun, and the State had filed written notice to defendant prior to trial that it intended to utilize the provisions of LSA-R.S. 14:64.3.

The instant case can be distinguished from Walker in that the State here failed to file notice that it intended to utilize the sentencing provisions of LSA-R.S. 14:64.3; it appears that the trial court invoked those provisions on its own.

In the instant case, the trial judge erred in enhancing defendant’s sentence under LSA-R.S. 14:64.3 when the State did not file written notice that it intended to seek enhancement of the sentence under LSA-R.S. 14:64.3 or charge the defendant with a violation of that statute in the Bill of Information.

| ^Accordingly, defendant’s sentences are vacated, and the matter remanded for proceedings consistent with this opinion.

SENTENCES VACATED; REMANDED.

      . Defendant did not raise this issue on appeal.

      . In State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 2005-2382 (La.3/31/06), 925 So.2d 1257, this Court found that there were sentencing problems that could be corrected on resentencing, if defendant's Motions for Post Verdict Judgment of Acquittal and New Trial were denied.

      . See also State v. Wilson, 2005-1486 (La.2/17/06), 921 So.2d 103 (per curiam), wherein the Supreme Court agreed with the State that it followed the requisite procedure for invoking the firearms enhancement provisions of LSA-C.Cr.P. art. 893.3 when it filed a written notice of its intent pursuant to LSA-C.Cr.P. art. 893.1(A).

      . See State v. Jackson, 480 So.2d 263 (La.1985), wherein the Supreme Court stated that the statutory provisions "shall serve" (R.S. 14:95.2) and "shall impose” (art. 893.1) were neither self-operative nor imperative absent the district attorney’s charging defendant with the use of a firearm or timely moving for enhancement of the sentence.