author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Timothy A. BRANNON.
    No. 07-431.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      David W. Burton, District Attorney, Richard F. Blankenship, Asst. District Attorney, DeRidder, LA, for Plaintiff/Appel-lee: State of Louisiana.
    Laura M. Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant: Timothy A. Brannon.
    Timothy A. Brannon, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

Lin this case, the defendant, Timothy A. Brannon, was found guilty of four counts of sexual battery, violations of La.R.S. 14:43.1, and eight counts of molestation of a juvenile, violations of La.R.S. 14:81.2. He was sentenced to seven years imprisonment at hard labor without the benefit of parole on each of the four convictions for sexual battery and twelve years imprisonment at hard labor on each of the convictions for molestation of a juvenile. All of the sentences were ordered to be served concurrently. Defendant has timely appealed claiming that the trial court committed reversible error by allowing an expert to testify that in her opinion, appellant was likely guilty of the offenses alleged, and that his sentence was excessive. He also asserted ten pro se assignments of error. For the following reasons, we affirm.

FACTS

Defendant was a school teacher at Pine-ville Elementary School in DeRidder, Louisiana. The record reflects that between November 2004 and April 2005, he committed acts of molestation of a juvenile and acts of sexual battery by touching several female students on their genitals, both over and under their clothing, and by forcing some of the victims to touch his penis, both over and under his clothing. The victims were between the ages of nine and eleven-years-old at the time of the occurrences. Defendant was in his early thirties.

ERROR PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find there is | gone possible error patent which we shall address, but find it does not require us to vacate the sentence.

We will consider whether the trial court committed error in sentencing Defendant the same day it denied his “Motion for New Trial, Motion for Judgment of Acquittal and Memorandum in Support Thereof.” Louisiana Code of Criminal Procedure Article 873 requires a delay of twenty-four hours after the denial of a motion for new trial unless the defendant expressly waives the delay or pleads guilty.

We have consistently held that an express waiver occurs when defense counsel responds affirmatively when the trial court asks if he is ready for sentencing. See State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-0578 (La.1/31/03), 836 So.2d 59; State v. Marcotte, 01-1586 (La.App. 3 Cir. 5/15/02), 817 So.2d 1245, writ denied, 02-1687 (La.2/7/03), 836 So.2d 96.

In the instant case, the trial court denied the Motion for New Trial and Judgment of Acquittal and proceeded immediately with sentencing. It did not question the parties as to whether they were ready to proceed with the sentencing, and it did not ask Defendant if he wanted to waive the twenty-four-hour delay provided for in Article 873. After denying the motion, the trial court stated in pertinent part: “The record should reflect that Mr. Brannon is present in Court with counsel, and we are ready to proceed.” The trial court then immediately imposed the sentence, and set forth the reasons for the sentences imposed. Therefore, Defendant did not expressly waive the delay in sentencing.

In the absence of an express waiver, we have found an implied waiver in certain circumstances. State v. Giles, 04-359, pp. 27-29 (La.App. 3 Cir. 10/6/04), 1, 884 So.2d 1233, writ denied, 04-2756 (La.3/11/05), 896 So.2d 62, was such as case where we found an implied waiver of the Article 873 delay. We noted:

Defense counsel voiced no objection when sentencing was taken up immediately after the denial of the motion for post verdict judgment of acquittal and the motion for new trial. After arguments were presented by the State, defense counsel argued in support of a lenient sentence, filing letters submitted on Defendant’s behalf and citing to the contents of one letter in particular. Defense counsel also referred to the sentencing range and the period of time already spent in jail by the Defendant. Although the entire sentence could be imposed without benefit of parole, probation or suspension of sentence, defense counsel argued that only the minimum (two years) should be imposed without these benefits.

Id. at 1251. We then wrote:

In State v. Taves, 02-709 (La.App. 3 Cir. 1/15/03), 846 So.2d 1, affirmed in part, reversed in part on other grounds, 03-0518 (La.12/3/03), 861 So.2d 144, this court found a waiver of the twenty-four-hour delay, noting that defense counsel failed to voice an objection even though he was clearly aware that the sentencing was scheduled to be taken up the same day the motion for new trial would be heard. Additionally, we noted that after the trial court denied the motion for new trial and told the defendant to come up for sentencing, defense counsel declared his intent to present evidence at the hearing. In addition to presenting evidence, defense counsel argued for a suspended sentence and stated he had reviewed the PSI and discussed it with the defendant. Finally, this court noted that defense counsel did not raise as error the trial court’s failure to delay sentencing and did not allege prejudice. Although this court found an implied waiver of the article 873 delay, we found the sentences imposed were excessive and remanded for resentencing. In response to the State’s application for review, the supreme court reversed this court’s finding of excessiveness and reinstated the sentences without any mention of the trial court’s failure to abide by the delay required by La.Code Crim.P. art. 873. (See also State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002), for a thorough discussion of the jurisprudence regarding express and implied waivers of the twenty-four-hour delay period required by La.Code Crim.P. art. 873.)
The present case is similar to Taves in that the record contains no colloquy between the trial court and the Defense regarding its readiness |4for sentencing. However, as in Taves, defense counsel presented arguments to the trial court in support of a lenient sentence and the trial court supported the sentence imposed with ample reasons. Unlike the defense counsel in Taves, the defense counsel in the present case did not present evidence at the sentencing hearing. Additionally, the record in the present case is not as clear as the record in Taves as to defense counsel’s knowledge that sentence would be imposed immediately after the disposition of his motion for new trial and motion for post-verdict judgment of acquittal. However, Defendant here makes no claim of prejudice because of the failure to abide by the delay. Considering these facts, we find Taves analogous and find an implied waiver occurred in the present case.

Id. at 1251-52.

We find the instant case similar to both Giles and Taves. The minute entry on September 28, 2006, indicates that after the verdict was rendered, the trial court ordered a Pre-Sentencing Investigation and set the sentencing hearing for November 9, 2006. Defendant filed the motion for new trial the day before the sentencing hearing was set, November 8, 2006. After denial of the motion for new trial and the trial court advising it was ready to proceed to sentencing, Defendant did not request a continuance of the sentencing, and he did not object to proceeding with the sentencing. Defendant presented no evidence at the sentencing hearing. While the trial court set forth its reasons for imposing sentencing, which was set forth in written reasons, Defendant interrupted and requested that it not read the next part of the written reasons because it was based upon evidence not proven at trial. Defendant then objected when the trial court continued. When the trial court concluded its reasons for imposing sentence, Defendant objected to the sentences. In his brief to this court, Defendant does not assign the trial court’s failure to delay sentencing as error nor does he allege any prejudice. On appeal, he simply states that the trial court sentenced him without any waivers of the sentencing delays and only challenges his |Bsentences as excessive.

As in Giles and Taves, the record contains no colloquy between the trial court and Defendant to determine his readiness for sentencing. Similarly, as in Giles, Defendant presented no evidence and makes no claim that he was prejudiced because he was not granted the statutory twenty-four hour delay. Accordingly, we find this case analogous to both Giles and Taves and find that an implied waiver occurred.

EXPERT WITNESS TESTIMONY

In his first assignment of error, Defendant argues that the trial court erred when it allowed the State’s expert witness to testify as to his guilt. He claims that the expert’s statements impermissibly bolstered the State’s case by advising the jury that there was a significant likelihood he acted in a sexually inappropriate manner with children, and that the expert told the jury to expect Defendant to falsely deny his guilt. Defendant further alleges that the trial court did not perform its gate-keeping function in compliance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993).

On the eve of trial, Defendant filed motion in limine. Among other claims, he challenged the scientific grounds upon which the State’s psychological expert, Dr. Maureen Brennan, was expected to testify that the “statistical probabilities that an individual possessing the same scores on the same testing instruments as the Defendant herein, would engage in acts in conformity with his ‘perceived’ predispositions.” At the hearing on the motion, when the subject of the scientific methodology came up, the trial court noted that Defendant did not file a motion for a Daubert hearing. The trial court then advised Defendant, “[w]e will deal with that Rat the time the experts are qualified and make a determination of whether or not it is junk science or not at that point, since nobody has filed a motion for a Daubert hearing.”

On the morning trial commenced, the State opposed Defendant’s motion in limine by arguing that in State v. Fanguy, 94-143 (La.App. 3 Cir. 10/5/94), 643 So.2d 860, writ denied, 94-2726 (La.4/21/95), 653 So.2d 563, under similar circumstances as the present case, this court held that a qualified expert could testify as to a defendant’s predisposition to commit the crime alleged. The State asserted that the expert in Fanguy was the associate of Dr. Brennan, and used the same battery of tests that Dr. Brennan used in the current case on which to base his opinions.

The role of an expert witness in criminal matters involving sexual abuse of children has been well defined:

The purpose of an expert witness in a criminal case is to provide the jurors with a basis of knowledge and background information on a subject. The jury as the ultimate fact finder should relate background knowledge received from the expert to the facts established by the evidence at trial, and make a determination of the defendant’s guilt. State v. Soler, 93-1042, p. 11 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1080, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055.
La. C.E. art. 702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. La. C.E. art. 704 provides:
Testimony in the form of an opinion or inference other-wise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

State v. Myles, 04-434, p. 10 (La.App. 5 Cir. 10/12/04), 887 So.2d 118, 125.

[7 At trial, Dr. Brennan, a clinical psychologist, was the first witness for the State to testify. She stated that she had conducted psychometric testing of Defendant. After she offered her qualifications, the State tendered her as an expert in the area of characteristics of victims of child sexual abuse, as well as their perpetrators, and of the testing of perpetrators of sexual abuse or possible perpetrators of sexual abuse. Following Defendant’s traversal examination, the trial court accepted Dr. Brennan “as an expert in the field of clinical psychology with special training and expertise in identifying the characteristics and the diagnosis of child sexual abuse victims and of perpetrators.” The trial court further clarified its ruling by saying, “That is what I said. I said, ‘Characteristics of and diagnosis of child sexual abuse and perpetrators.’ ” Defendant’s objection to Dr. Brennan’s testimony at this time was, “That subset of expertise predicting behavior patterns of those who perpetrate child abuse is not a relevant area in this context. And therefore, her expertise or qualifications are not relevant. Therefore, I object to her being qualified to that information from her to predict conduct, cannot predict conduct.”

The trial court then stated:

She is being offered to describe what testing data may have shown insofar as that and whether or not that conduct followed or was committed by any person, who is going to be a subject of this trial is for the jury to decide.
She is only going to talk about test results and how she as an expert is qualified to interpret those. I think it has been very clear from her testimony that she, with her license as a clinical psychologist is capable of administering the test, analyzing them, and making conclusions based upon them. That is the basis for her certification.

Defendant responded that his concern was that as an expert witness, Dr. Brennan not delve into character evidence.

[ ¡.Daubert Hearing

Defendant argues that it was reversible error to permit Dr. Brennan to testify to the Abel Sexual Interest Assessment test results which showed that there was an eighty-one percent chance that he acted out sexually with children and that he should be expected to falsely deny that fact. Defendant claims that the trial court erred in denying his Motion in Limine, and failed in its Daubert gatekeeping function by improperly permitting the jury to hear and consider Dr. Brennan’s testimony.

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La. C.E. Art. 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. 142, 119 S.Ct. 1167, 143 L.Ed.2d 238.

_Jc¡ State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55.

At the outset, we note that the trial court did not deny that portion of the motion in limine which pertained to the issue of the validity of the scientific basis for Dr. Brennan’s testimony. As noted above, the trial court left open the opportunity for Defendant to raise the issue at trial when Dr. Brennan began testifying.

During trial, Dr. Brennan’s testimony, Defendant objected to the fact that she had never interviewed the victims involved. However, we note that Defendant does not raise this objection on appeal and we cannot now review that as error. Defendant also objected at trial to the doctor’s testimony regarding some conclusions of the Rorschach test which was one of the tests she administered to him. Defendant asserted that there was no finding in Louisiana jurisprudence that the Rorschach test was admissible for the purpose of predicting conduct. The trial court responded that under Fanguy, “the witness has the right to express her opinion as to his psychological capacity, to respond in certain ways as a basis of objective testing after the foundation has been laid that the testing was done.” Again, Defendant does not raise this objection on appeal and we cannot consider this as an assignment of error.

We .further note that Defendant never objected at trial to testimony concerning the results imparted by the Abel Sexual Interest Assessment or to the scientific basis for the test, despite conducting a lengthy cross-examination of Dr. Brennan on that subject. His sole objections at trial were as discussed above. Accordingly, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.Code Crim.P. art. 841(4); State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166.

|inFinally, even though Defendant argues that the Abel Sexual Interest Assessment is scientifically invalid, in United States v. Robinson, 94 F.Supp 2d 751 (W.D.La.4/18/00), the United States District Court for the Western District of Louisiana specifically addressed that test and found the test satisfied all four factors of the Daubert analysis.

For these reasons, we find no error in the trial court’s failure to hold a Daubert hearing concerning the issue of the validity of the principles and methodology of the Abel Sexual Interest Assessment test prior to Dr. Brennan’s testimony. A trial couri/gatekeeper’s function is to focus solely on the principles or methodology and not the conclusions that are generated therefrom. See Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Since there was no motion for a Daubert hearing when Dr. Brennan testified, a Daubert hearing was never held and no objection was made to preserve the alleged error. Accordingly, we have no basis to find that the trial court abused its discretion by denying Defendant’s motion in limine to exclude Dr. Brennan’s testimony.

Louisiana Code of Evidence Article 704

Defendant next argues that Dr. Brennan’s statements impermissibly commented on Defendant’s guilt or innocence. Louisiana Code of Evidence Article 704 provides:

Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

InThe record shows that Dr. Brennan described the three tests she administrated to Defendant, the testing process, the purpose of the tests, and the results of the tests. The third test was the Abel Sexual Interest Assessment. While discussing this test, Doctor Brennan stated as follows:

Q. When you look — is one of the parts of the Abel Sexual Interest Assessment, deniability? That is you look to see if the person is a denier or not a denier?
A. One area is in terms of defensiveness. That came out with him being very, very defensive. There is a probability value of that — it is called a “probability value.” That is taken by comparing his individual’s responses to the entire test. Both the slides and the written test.
In comparing those to those things that appear in the response patterns of individuals who have acknowledged acting out previously with children versus those normals who have never acted out. So that little window there of things that are fairly unique.
And all this says is that they’re depending on how much similarity there is there. That there is a certain percentage probability that some point in their life they have acted out in a way that involves some sort of sexual interaction with a child.
Now, it doesn’t say whether that happened when they were 13 or 33, whether it was male or female, whether it was 2 years old or 16 years old. It just says that there is a certain probability just in terms — that say 20 percent of the people who have this much overlap have at some point in time acted out or 40 percent or 80 percent.
Q. And what was his?
A. His was in the 81 percent. Which says there is an 81 percent chance that anyone with that pattern has at some point in their life been sexually inappropriate with a child. Maybe as a teenager, maybe as an adult.

Dr. Brennan further testified that the “[Abel Sexual Interest Assessment] is simply saying that [Defendant’s] responses to this test have a significant overlap with individuals who have acted out at some point in the past and denied it.”

hy.The trial court relied on Fanguy, 643 So.2d 860, in determining that a qualified expert could testify as to an accused’s predisposition to commit the crime alleged. Fanguy was convicted of incest. The expert witness, a psychologist, testified that he administered a battery of objective tests on the accused and stated that, “he was able to form an opinion of the defendant’s behavioral profile which led to his final diagnostic impression of the defendant as a ‘pedophilia, sexual contact as a child, opposite sex, limited to incest of the non-exclusive type.’ ” Id. at 866. We held that “given the proper foundation, an expert witness might state whether a defendant has the psychological capacity to commit a particular crime.” Id. In Fanguy, we noted that the jury had been clearly informed by the doctor during trial examination that the tests can only be used “to compare to the test results of other individuals who have admitted to child sexual abuse, and the personality characteristics derived from this can be compared to the personality characteristics typically found in perpetrators of sexual abuse, but they cannot be used to determine guilt or innocence.” Id. Accordingly, this court determined the doctor did not give an opinion as to the accused’s guilt or innocence.

Defendant argues that the trial court erred in its reliance on Fanguy, because it is distinguishable from the present case. He claims that in Fanguy the accused directly admitted that his behavior with his daughter was grossly inappropriate, and therefore, it was clear that the doctor’s opinion that Fanguy was the type of person to engage in such grossly improper behavior was not improper. We disagree with Defendant’s interpretation of Fan-guy’s admission. Although Fanguy admitted activity with his daughter that was deemed by the doctor to be very | ^inappropriate, he denied he was a pedophile and guilty of the offense charged.

Defendant further argues that the ruling of Fanguy was not supported by the cases this court cited as applicable, State v. Dawson, 392 So.2d 445 (La.1980) and State v. Mallett, 357 So.2d 1105 (La.1978), cert denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979). In Dawson, 392 So.2d 445, the defendant wanted to elicit testimony from an expert witness that the accused did not have the capacity to obtain sexual gratification through the use of force or violence. The supreme court noted: “Given the proper foundation, an expert witness might state whether a defendant has the psychological capacity to commit a particular crime. State v. Mallett, 357 So.2d 1105 (La.1978). However, the State would then be entitled to cross-examine about the facts upon which the opinion was based.” Id. at 447.

In Mallett, 357 So.2d at 1110, the supreme court found that “insufficient foundation was laid on which to base the witness’ opinion as to defendant’s capacity to commit the offense of contributing to the delinquency of a juvenile.” Accordingly, in Mallett, the trial court did not err when it refused to permit the expert witness to testify.

In the present case, Doctor Brennan testified as follows:

Q. —when you took the results of every one of these aspect, both the self-reported and the objective parts of the Abel Sexual Interest Assessment, that’s how they came up with that 81 percent?
A. And I should emphasize, “They.” All of this data is sent from my computer to a computer in Atlanta. It’s scored statistically and sent back to me. So I don’t do any of that manipulation of data myself.
Q. So it’s actually an objective test where they have gone and said, okay, we can give you the results. We know the way tens of thousands of actual molesters have responded to these questions; and in contrast, we know how thousands of non-molesters have responded; and | uthen they can look at—
A. And statistically look at the similarity is what they are doing.
Q. And that is how they came up with the 81 percent probability?
A. Right.
Q. Now, that is not to say, that there is an 81 percent probability that he molested the children in this case?
A. Doesn’t have anything to do with this case.
Q. It is simply saying that his mental land — or his—
A. It is simply saying that his responses to this test have a significant overlap with individuals who have acted out at some point in the past and denied it.

Accordingly, we hold that Dr. Brennan’s comments based on the objective testing were not an expression of her opinion about Defendant’s guilt or innocence.

Further, Dr. Brennan’s testimony was offset by that of the testimony of Defendant’s expert witness, Dr. Marvin Douglass, a certified marriage and family therapist. Dr. Douglass testified that he conducted several sessions with Defendant and administered personality tests to him. He said his findings concerning Defendant were not consistent with any pedophilia or deviant sexual behavior.

Finally, the expert’s testimony paled when considered in the light of the State’s other witnesses. The jury heard the testimony of eight victims who each described incidences of Defendant inappropriately touching them or forcing them to touch him, as well the testimony from two witnesses who either saw Defendant inappropriately touch a child (excluding the witness who misidentified Defendant), or saw Defendant in a very suggestive situation with a child. Finally, the jury heard 1 ^testimony regarding Defendant’s use of a school computer to access child pornography, and was shown a sample of the images he viewed. The evidence against Defendant was overwhelming and the verdict was not singularly attributable to the testimony of Dr. Brennan. There is no merit to this assignment of error.

EXCESSIVE SENTENCE

Defendant next asserts that his sentences, which amount to twelve years of imprisonment, are excessive in light of the fact that the sentences are near maximum sentences imposed on a first-time felony offender. Defendant argues that the offenses of which he was convicted “were not one of the more extreme examples one could find of the charged offense.”

In State v. Fontenot, 06-226, pp. 7-5 (La.App. 3 Cir. 7/12/06), 934 So.2d 935, 940-41 (alteration in original), we stated that the analysis for excessive sentence claims is well-settled and wrote:

To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, vnit denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Jjfi-'' •

Further, in State v. Whatley, 03-1275, p. 6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 959, this court stated, “The fifth circuit, in [State v.] Lisotta, [98-648 (La. App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied, 99-433 (La.6/25/99), 745 So.2d 1183] stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion: 1. The nature of the crime, 2. The nature and background of the offender, and 3. The sentence imposed for similar crimes by the same court and other courts.”

Defendant was convicted of sexual battery and molestation of a juvenile. Louisiana Revised Statutes 14:43.1(0, sexual battery, provides for a range of imprisonment of not more than ten years. Defendant was sentenced to seven years at hard labor without the benefit of parole on four convictions, to be served concurrently. Pursuant to La.R.S. 14:81.2(0, molestation of a juvenile, the range of imprisonment is not less than one year and not more than fifteen years. Defendant was sentenced to twelve years at hard labor on the eight convictions, to be served concurrently, and concurrent with the seven year sentences.

At the sentencing hearing, the trial court noted for the record that it had considered the “numerous letters, comments, and testimony at trial of your friends, which were favorable to you, as well as your age and positive affects that some of your activities have had in the community.” The trial court further noted that Defendant was a first-time felony offender. The trial court, however, took notice that the victims in this case had been Defendant’s students, and as their teacher, he betrayed their trust, their parents’ trust, and his fellow teachers’ trust. The trial court opined that sexual abuse of children under this circumstance had serious and far-reaching effects. It stated that since the convictions, there was evidence that Defendant had sent letters to the witnesses and the jurors who rendered the guilty |17verdicts attempting to convince them of his innocence and that he had taken no responsibility for his actions. The trial court stated that it believed twelve years imprisonment was necessary to protect the public and that anything less depreciated the seriousness of the offenses.

For guidance in our decision we look to other similar cases. In State v. Elzie, 37,920 (La.App. 2 Cir. 1/28/04), 865 So.2d 248, unit denied, 04-2289 (La.2/4/05), 893 So.2d 83, the second circuit did not find a twelve and one-half year sentence excessive. The sentence was imposed on one count of molestation of a juvenile, where the abuser was a minister and used his religious position to seduce his minor daughter. In State v. Hilton, 99-1239 (La. App. 1 Cir. 3/31/00), 764 So.2d 1027, writ denied, 00-0958 (La.3/9/01), 786 So.2d 113, the defendant was convicted of attempted molestation of a juvenile whom he had supervision and control over. He was sentenced to seven and one-half years imprisonment. Hilton was a first-time felony offender, but he had committed the offenses over a long period of time.

We cannot say that the sentences imposed by the trial court were such that they would shock our sentence of justice, particularly when considering that Defendant held a position of authority over the victims. Moreover, his activity of sexual abuse extended over a period of time and involved several victims. We find that the trial court did not abuse its considerable discretion when it sentenced Defendant. Consequently, this assignment of error lacks merit.

PRO-SE ASSIGNMENTS OF ERROR

As we pointed out at the beginning of our opinion, Defendant filed ten pro se assignments of error. Like so many other pro se briefs, Defendant has failed |1sto comply with the Louisiana Uniform Rules of Courts of Appeal. Initially we note Uniform Rules — Courts of Appeal, Rule 2-12.4, which provides in pertinent part:

The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon the issues presented for review, and argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.
The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the is not made.
All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.

By not adhering to the Rules of Court, Defendant makes it difficult if not impossible to review his assignments of error, but in the interest of justice we shall do the best we can to consider each of his assignments. First, we point out that the record in this case consists of almost four thousand pages, fifteen volumes, plus supplemental records and exhibits. In none of his ten assignments of error does Defendant refer to page numbers in the record where the alleged error was committed, or where any other material regarding the error may be contained. In many of his assignments of error he does not name the witness or juror whose testimony or position is being challenged. Likewise, in many of the assignments he does not indicate if there had been an objection to the alleged error in the trial court so as to preserve the issue on appeal. In the few cases he asserts there were objections, he |19does not state if it was his objection to his defense counsel, or defense counsel’s objection to the trial court, what were the grounds for the objection, and the result or ruling by the trial court. Moreover, in many of the assignments of error, Defendant asserts the alleged error and then only states his conclusions without a discussion of the facts and how he was prejudiced by the error. See State v. Surratt, 05-1406 (La.App. 3 Cir. 6/7/06), 932 So.2d 736, writ denied, 06-2100 (La.6/1/07), 957 So.2d 165; Costales v. Turner Indus., 05-36 (La.App. 5 Cir. 5/31/05), 905 So.2d 410, writ denied, 05-1707 (La. 1/9/06), 918 So.2d 1056; State v. Boswell, 96-801 (La.App. 3 Cir. 2/12/97), 689 So.2d 627.

We shall address the pro se assignments of error in the order they were presented and, where possible, address the issues.

Pro-se Assignment of Error Number 1:

Defendant asserts that the trial court erred when “in allowing a state witness to be credible, notwithstanding the fact, that said witness identified another person who was different from appellant be tried?” He claims that the trial court permitted the jury to believe that a minor witness was credible in identifying him, that the minor witness was coached, and not allowed to rely on her own independent recollection. Defendant contends in his pro se brief that the trial court allowed “a corroborating witness who testified in a heated and high profile court trial wherein the witness was unable to identity the Appellant; over the objection of Appellant the court allowed the jury to receive damaging testimony while clearly knowing all the time this witness erroneously identified someone other than the alleged Appellant.” Defendant does not name the witness, whether the witness was a victim or not, or cite 120to the page number in the record where the alleged misidentifícation took place.

There was a reference in Defendant’s appellate counsel’s brief to a witness, Andrew Williams, who testified that when he was fifteen, he saw Defendant and a girl underneath the gym bleachers and Defendant was touching her “butt.” When asked to provide an in-court identification of Defendant, the witness pointed to the wrong person. Subsequently, the trial court ordered the testimony stricken and instructed the jury to disregard the testimony because of the misidentifícation.

We can only presume that this is the witness Defendant is referring to, noting, however, that he refers to the witness as “her.” Defendant argues in his brief that “[ojbviously a witness who testifies concerning graphic sexual related matters would not, all of a sudden, forget the identity of the perpetrator. Thus, a witness must be legally competent to testify.” There is no indication that any of the victims, who were all females, misidentified Defendant. Finally, the trial court struck the testimony of the witness who misidentified Defendant from the record and admonished the jury to disregard the testimony.

Even when presented in the best light to Defendant, there is no merit to this assignment of error.

Pro-se Assignment of Error Number 2:

Defendant asserts in this assignment of error that the trial court committed error “in not finding that a potential juror should have been excluded during the jury selection process after learning that said potential juror had a daughter-in-law working for the court thus creating a question of impartiality? Did the trial court commit manifest error in not dismissing a juror who continued to fall | ¾1 asleep during crucial testimony in the trial and not replacing him with an alternate.”

Once again this assignment cannot be reviewed due to Defendant’s failure to comply with Rule 2.12-4. He does not name the persons involved or the page numbers indicating in the record where the alleged error took place. He does not state whether there was an objection to the “potential juror,” and if so, where in the record the objection was made. It is not clear from Defendant’s assertion whether the “potential juror” even became a member of the seated jury. The allegation of undue influence is not argued.

Defendant further asserts that during the trial proceedings, a juror named Du-plechain continued to fall asleep during crucial testimony. In State v. Cass, 356 So.2d 396, 398 (La.1978), the supreme court stated:

Consistent with State v. Buggage, [351 So.2d 95 (La.1977) ] and State v. Rounsavall, [337 So.2d 190 (La.1976) ] and applying C.Cr. P. Art. 789, we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had Defendant and the State been afforded an opportunity to explore on the record the Juror’s inability to perform on this account, we would be presented with a substantially different question for review.

See also State v. Tennors, 05-538 (La.App. 3 Cir. 2/15/06), 923 So.2d 823.

For reasons set forth above, we are unable to review this claim because Defendant points to nothing in the record which could allow this court to determine the merits of this allegation. Accordingly, this assignment lacks merit.

Pro-se Assignments of Error Number 3 and 4:

In these two assignments of error, Defendant asserts the trial court erred | a2in not allowing him to introduce exculpatory evidence that a mistrial was granted in federal court on charges of possession of child pornography involving him and the same alleged victims; and refusing to allow him to cross examine and question the truthfulness and character of two of the alleged victims, who he claims made prior inconsistent statements in the federal court proceedings. Defendant asserts that the fact of the mistrial is exculpatory evidence.

Again, Defendant does not name the witnesses or point to the location of the statements or show the inconsistencies in their testimonies during the current trial. Moreover, it does not appear from the record that Defendant ever formally requested to be allowed to use the testimony from the Federal case to impeach the witnesses or that the trial court actually denied a request as such.

In “Defendant’s Motion in Limine” he states that he was tried in Federal Court, Western District of Louisiana, Lake Charles Division, on possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The trial resulted in a mistrial. In the motion, Defendant asserted that the State intended to use the same evidence of child pornography that was used in the Federal court as “other crimes evidence,” to show a lustful disposition pursuant to La.Code Evid. art. 412.2. He argued that the State should not be permitted to do so. The trial court ruled that the evidence concerning the child pornography was admissible in the current trial. As far as we can tell, Defendant did not appear to object to this ruling.

The trial court also determined that the fact that a mistrial occurred in federal court was not relevant and that information would not go. to the jury in the instant case unless it became necessary. The trial court ruled that it would deal with Lathat issue if either side tried to impeach a witness with the prior recorded testimony from the federal trial.

Defendant does not argue in his pro se brief how the fact of the mistrial constituted exculpatory evidence unless he is referring to the alleged inconsistent statements. However, nothing in either the State’s brief or Defendant’s appellant counsel’s brief indicates whether the issue of inconsistent testimony came before the trial court. As noted, Defendant does not name the witnesses, note objections, if any, or cite to any page numbers where said inconsistencies occurred.

Defendant also claims that the trial court erred by refusing to allow taped interviews of witnesses that would have shown that the witnesses made prior inconsistent statements and committed perjury. This allegation suffers from the same deficiencies as the other allegations above. Therefore, because Defendant has failed to comply with Uniform Rule 2-12.4, we are unable to address these assignments of error, and they are not considered.

Pro-se Assignment of Error Number 5:

In this assignment of error, Defendant contends that the trial court also erred in its failure to properly instruct the jury that any sidebar discussions between counsel for the State and Defendant should not be considered in the jury’s deliberations. Defendant asserts that the trial court permitted inappropriate behavior by the State which resulted in him being denied a fair trial. He argues that whenever there was a sidebar, the prosecuting attorney was permitted to speak loud enough that the jury could hear the discussion, and thereby “tainted the jury's partiality.”

latOnce again, there is no way to address this allegation. The trial record index indicates there were more than one hundred sidebars throughout the trial. There is no way to determine from the record the volume of the prosecutor’s voice, or the effect of any overheard remarks on the jury. Defendant does not indicate there was ever an objection made, nor does he specify which sidebar contained inappropriate, loudly made remarks, or in what way the remarks influenced the jury against him. This assignment of error is considered abandoned for failure to comply with Uniform Rule 2-12.4.

Pro-se Assignment of Error Number 6:

In this assignment of error, Defendant claims the trial court committed error “by delaying the defense’s motion to exclude all computer evidence until the State’s witness had testified of various child pornography crimes only after said damaging testimony was heard by the jury is when the trial court ruled that such evidence of an illegal search and seizure was inadmissible?” He further claims that the trial court also committed error “in allowing the computer generated pictures to be viewed by the jury; notwithstanding the fact that, this evidence was subsequently ruled by the court to be inadmissible because the search and seizure was illegal to obtain said computer pictures?” As to the first part of this assignment, Defendant asserts the trial court erred when it denied his “pretrial motion to exclude the testimony involving computer generated crimes of pornography; however, upon completion of the pretrial motion the State District Court inappropriately failed to determine whether or not the probative value of computer expert testimony outweighed the prejudiced effect to a jury panel.”

| ¾⅞ further argues:

While testifying in court, the State witness Carla Smith engaged in numerous, illegal opinionated comments, more particularly this witness suggested to the jury that it was her opinion that the names of the websites on the computer conclusively contained child pornography (although it was never proven what these sites were); nevertheless, the expert for the defense testified that a method called “caching ” creates access to various pornography sites without users consent or effort to engage.
After testimony from Carla Smith, testimony that was clearly damaging and inadmissible, the trial judge determined that the testimony was inadmissible only after the jury had heard this prejudicial testimony, therefore causing the jury to form a guilty opinion toward the Appellant.

Defendant fails to properly cite the record and with each assignment of error it get increasingly difficult for us to divine the essence of his claims. A review of Defendant’s motion in limine and Carla Smith’s testimony at trial indicates Defendant is incorrect regarding the trial court’s ruling and on what occurred during Smith’s testimony.

Calling to mind Defendant’s motion in limine, we note that he stated that the State was intending to introduce other crimes evidence, which consisted of a package of images depicting children in sexual situations retrieved from the hard drive of a school computer which had been checked out by him. In the motion, Defendant argued that the images were more prejudicial than probative and as such were inadmissible pursuant to La.Code Evid. art. 403. Article 403 provides that “[ajlthough relevant, evidence may be excluded 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.”

|2r;Nowhere in the motion, or at the hearing held on the motion, did Defendant object to the testimony of any of the State’s witnesses who testified regarding the school’s computer. Furthermore, following arguments regarding the prejudicial effect of the “other crimes” evidence as opposed to their probative value, the trial court specifically found that the probative value outweighed the prejudicial effect and found the evidence to be admissible.

As we have noted, Defendant does not state which remarks Smith made that were “numerous, illegal opinionated comments,” nor cites any page numbers. However, we reviewed her testimony. Smith, a computer forensic technician, worked for the Beauregard Parish Sheriffs Office. She examined the laptop computer which had been assigned to Defendant by the school. She testified that in the computer’s “favorites,” a location where websites could be stored for easy access, she found sites that were “consistent with child pornography sites.” Defendant objected to the characterization and, stated that the witness was not qualified to make that determination, moved for a mistrial. The trial court denied the motion for a mistrial, but sustained the objection and admonished the jury that “[sjhe is not permitted to state a conclusion about what she saw, only what she saw.”

The State then asked the names of the websites in the “favorites.” Defendant again objected, stating that names can be deceptively provocative. At this point, the trial court sent the jurors out of the courtroom. After a lengthy argument, the trial court sustained Defendant’s objections, ruling that the witness can only testify as to the images “she removed from the computer, identify the dates that they were entered onto the computer, let these be exhibits for identification only.”

| ¡^Finally, Defendant further alleged that the witness “testified that a method called ‘caching ’ creates access to various pornography sites,” thereby “causing the jury to form a guilty opinion toward the Appellant.” The actual testimony, solicited by Defendant, was as follows:

Q. As part of Internet Explorer, is there an internet history that simply saves the last sites that you went to?
A. Yes. It’s called, “caching”; and it actually saves it to your computer.
Q. And so you can look where you went the last few times?
A. Exactly.

Defendant never made an objection, either pre-trial or during trial, to the State’s witnesses who testified concerning the computer. The trial court did not rule that her testimony was inadmissible after the jury heard the testimony, and the witness did not state that “caching” created access to pornography sites. Accordingly, there is no merit to this claim.

The second part of this assignment of error, the search and issue, appears to relate to the complaint given in assignment of error number eight which concerns allegedly illegally obtained evidence and that issue will be discussed in that assignment. Pro-se Assignment of Error Number 7:

For his seventh assignment of error, Defendant argues that the trial court erred in not declaring a mistrial on its own motion “after learning that the state had violated appellant’s discovery request by not providing said appellant with computer pictures at the time it was being introduced in court.” Defendant apparently argues that the State did not produce these pictures pursuant to his discovery request, and thej^court should have taken it upon itself to declare a mistrial.

Once again, there is no merit to this argument. There were two sets of computer images submitted into evidence during the trial. State’s exhibit 22 was submitted during Smith’s testimony. This exhibit was the “other crimes” evidence, the admissibility of which was litigated during the hearing on Defendant’s motion in limine. The two pictures that were introduced during rebuttal testimony were taken from the “other crimes” package already admitted into evidence. Defendant did not object the first time these images were introduced at trial, but objected to the two images being introduced during the State’s rebuttal. However, the trial court found the images to be relevant for the purpose for which they were introduced. There were never any objections made at trial because the images had not been produced during discovery.

Finally, Defendant argues that “the State further breached its affirmative duty” in failing to disclose its intention to use an important witness, Libby Cline. At trial, when the State called Cline, Defendant questioned whether the witness’s name had been provided in discovery. The State replied that she had been disclosed, that she had been called at the beginning of trial, sworn in with the rest of the witnesses, and sequestered. After a brief summary of the witness’s testimony, the trial court inquired whether Defendant had any objections. Defense counsel stated: “Well, let me so inform the Court that depending on what she says, I may have to ask the Court for a short recess.” Defendant did not further object to the witness as an undisclosed witness.

| ¡¡.¡Accordingly, there is no merit to this assignment of error.

Pro se Assignment of Error Number 8:

Defendant asserts in this assignment of error that the trial court erred when it permitted evidence taken from a computer seized from a shed behind his house to be introduced at trial. Defendant argues that the search warrant application did not specifically describe any other location other than his house and the school where he was employed in which to search for evidence.

The affidavit for the search warrant specified only Defendant’s residence and the school where he was employed as areas to be searched. Sometime prior to trial, Defendant filed a “Motion to Suppress” wherein he asserted the claim of illegally obtained evidence. In the motion, he asserted that he did not give consent to search a shed behind his house where a computer was subsequently found. The State’s memorandum in response to Defendant’s motion argued that he gave consent for the search of the shed. A hearing on Defendant’s motion was held. However, the transcript of the hearing contains only his testimony denying that he gave the officers permission to search his shed, which resulted in the discovery of a computer, and we cannot find any indication in the record before this court that there was a ruling made by the trial court concerning whether the evidence was illegally obtained or not.

Nonetheless, it does not appear from the record that there was any evidence submitted at trial that was obtained from the computer seized from Defendant’s shed. Defendant does not state in brief what evidence he is specifically referring to or where the submission of that evidence occurred during trial. All exhibits and testimony submitted by the State at trial that concerned evidence [ 3nobtained from a computer was obtained from the school’s laptop computer, which had been checked out by Defendant for his use. Accordingly, Defendant does not show that any illegally obtained evidence was submitted at trial.

There is no merit to this assignment of error.

Pro Se Assignment of Error Number 9:

In this assignment of error, Defendant asserts that the trial court erred “in refusing to allow defense expert witness Dr. Richard Austin to provide his expert opinion; notwithstanding the fact that, Dr. Richard Austin had been qualified by the district court to be an expert in the field of sex related crimes? Whether the trial court commited [sic] error in its failure to allow appellant to introduce Dr. Richard Austin’s written report with regards to his findings, conclusions, and expert opinion?”

There is no merit to this assignment. A review of Dr. Austin’s testimony indicates that he was permitted to give an expert opinion, and at no time was there an offer to introduce his written report into evidence. Dr. Austin, a forensic clinical psychologist, testified regarding the interview techniques for children who report sexual abuse, and questioned whether the interviewers’ techniques in the current case were suggestive. He testified that he interviewed and tested Defendant and determined that his personality was not consistent with that of a child molester. At one point, the trial court refused to allow the doctor to comment specifically on the “implausibility” of one of the victim’s report of sexual abuse. However, as we have noted, La.Code Evid.- art. 704 prohibits an expert witness from expressing an opinion as to the guilt or innocence of the accused. Therefore, the trial court did not err in that instance when it sustained the State’s objection to the doctor’s comment.

| sí This assignment of error lacks merit. Pro Se Assignment of Error Number 10:

Defendant argues that his sentences, which total twelve years of imprisonment, are excessive. We have discussed this issue earlier in this opinion and determined that Defendant’s sentences are not excessive under the circumstances of this case.

CONCLUSION

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . It appears that State’s exhibit 22 was misidentified as State’s exhibit 21 in the record.


source: Caselaw Access Project

author: AMY, Judge. COOKS, J.,

license: Public Domain

text:
    Bobby JOHNSON, et al. v. Jerome ESCUDE, et al.
    No. 07-801.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Jeffery F. Speer, J. Louis Gibbens, III, Jason E. Fontenot, Doueet-Speer & Gib-bens, Lafayette, LA, for Defendants/Appellants Jerome Escude and Vickie Es-cude.
    Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for Appellee State of Louisiana.
    Randal Lee Menard Lafayette, LA for Plaintiffs/Appellees Bobby Johnson and Becky Johnson.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

|-i The defendants appeal the denial of their re-urged exception of prescription and the judgment of the trial court ordering them to pay $29,880.00 in restitution to the plaintiffs. For the following reasons, we affirm.

Factual and Procedural Background

The parties stipulated to the following facts. On March 14, 1997, Jeremiah Es-cude (Jeremiah), the minor son of Jerome and Vickie Escude (the defendants), burglarized and set fire to the mobile home of Bobby and Becky Johnson (the plaintiffs). Jeremiah subsequently pled guilty to burglary and arson, for which he was ordered to pay restitution to the plaintiffs in the amount of $49,300.00. Prior to his October 4, 1999 death, Jeremiah made monthly payments which totaled $19,420.00, although a portion of those payments were made by his parents. Payments ceased after his death. Consequently, the plaintiffs instituted this suit against the defendants, seeking to collect the balance due.

The defendants filed an exception of prescription, arguing that the suit against them was not timely filed. This exception was denied on February 9, 2001; the defendants did not appeal. At the trial held on November 13, 2006, the defendants re-urged their exception of prescription. The trial court commented:

I was informed that I made a ruling with regards to prescription earlier. I don’t know how far that issue went and I don’t know if it was attacked in the same way in which it is asking me to attack it — and “attack” is the wrong word. But to handle it. But certainly, I think that whether or not the plaintiffs have a right or cause of action against the parents of a juvenile involved in this case is — nobody argues that. I think the action of the child renders the parents of that child responsible for their acts. The issue, though, becomes whether or not the payments, vis-a-vis the criminal restitution, stopped the prescription from running on the civil side of the obligation of those parents. And I know that [defense counsel] wants to make an argument that the obligation is personal rather than one that can attach to the parents, I think.
bin any event, the issue that I have to decide, and you guys will have to brief, is whether or not the civil action has prescribed or not and whether or not there’s a contra non valentem argument with regards to those payments. And one of the things we were talking while y’all were talking is whether or not, [plaintiffs counsel], if in fact the young man was still alive and had failed to make those payments, would you be able to enforce that and having not filed a civil action against him[?] And I think your argument again would be contra non valentem that he was paying those. But I don’t know the answer to those. I haven’t looked at it. It’s a very complicated issue and one we’re going to have to go to the law books and find out whether or not that civil action is still available.

The plaintiffs filed an exception of res judicata, arguing that “[i]n the instant ease the parties, the cause and the demand are the same. The exception of prescription was denied by Judgment dated February 05, 2001. That decision was not appealed. That Decision is final. That Decision is Res Judicata.”

The trial court found that the issue of prescription was res judicata. As such, it ordered the defendants to pay restitution to the plaintiffs in the amount of $29,880.00. It is from this ruling that the defendants appeal, asserting the following assignments of error:

1. The trial court erred in denying defendants’ peremptory exception of prescription and granting plaintiffs’ peremptory exception of res judica-ta, thereby creating a reversible error of law.
2. The trial court erred in assessing Jerome Escude and Vickie Escude with liability to pay the debts of Jerome Escude following the restitution order of October 22,1997.

Prescription & Restitution

The defendants challenge the denial of their exception of prescription. Citing Bellard v. Seale Guest House, 04-376, p. 4 (La.App. 3 Cir. 10/6/04), 884 So.2d 1252, 1256, the defendants assert that they should have been allowed to re-urge their exception insofar as a “judgment denying an exception of prescription is an Uinterlocutory judgment.” They, therefore, argue that because this was not a final judgment, the issue of prescription is not res judicata.

Louisiana Revised Statutes 13:4231 provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

In its reasons for judgment, the trial court explained:

This Court has previously denied Defendants’ Peremptory Exception of Prescription on February 5, 2001, and hereby finds that the issue of prescription is res judicata. For res judicata to apply there must be, (1) an identity of the parties, (2) an identity of “cause,” and (3) an identity of the thing demanded. Thurston v. Thurston, 31,895, 740 So.2d 268 (La.App. 2 Cir. 8/20/1999). All three requirements are met in this case. The decision rendered by this Court with regards to prescription is a valid and final judgment and is conclusive between the parties herein.

After reviewing the record, we find that the trial court erred in not allowing the defendants to re-urge their exception of prescription. In Bellard, 884 So.2d 1252, the workers’ compensation judge allowed the defendant to re-urge a previously denied exception of prescription. The plaintiff appealed, arguing that the denial was res judicata. This court held:

A judgment denying an exception of prescription is an interlocutory judgment. La.Code Civ.P. arts. 927 and 1841; Bellard v. Biddle, 02-241 (La.App. 3 Cir. 12/30/02), 834 So.2d 1238, writ denied, 03-0286 (La.4/4/03), 840 So.2d 1217. It does not determine the merits l4of the case and is therefore not a final judgment. La.Code Civ.P. art. 1841. In order for the doctrine of res judicata to apply there must be a final judgment. Accordingly, the trial court did not err in finding its earlier ruling denying the exception of prescription ... was not res judicata.

Pursuant to Bellard, the trial court’s denial of the defendants’ exception of prescription was an interlocutory judgment insofar as it did not determine the merits of the case. As there was no final judgment, the trial court erred in finding that the previous denial of the exception of prescription was res judicata. However, because the peremptory exception of prescription is contained in the record and may be pled at any time, including on appeal, we will consider whether the suit against the defendants was timely filed and whether they were proper party defendants. See, e.g., Kilbourne v. Hosea, 19 So.2d 279 (La.App. 1 Cir.1944) (wherein the first circuit held that because all of the evidence relating to the plea of acquisitive prescription was contained in the record, it would consider the plea of prescription and render judgment on appeal).

The record indicates that Jeremiah pled guilty to burglary and arson. Pursuant to La.Code Crim.P. art. 895.1, Jeremiah was given a suspended sentence conditioned on payment of restitution to the plaintiffs in the amount of $49,300.00. Louisiana Code of Criminal Procedure Article 895.1 provides in pertinent part:

|SA. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain.... The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.
(2)(a) The order to pay restitution ... as provided in this Article, is deemed a civil money judgment in favor of the person to whom restitution ... is owed, if the defendant is informed of his right to have a judicial determination of the amount and is provided with a hearing, waived a hearing, or stipulated to the amount of the restitution ... ordered. In addition to proceedings had by the court which orders the restitution ... the judgment may be enforced in the same manner as a money judgment in a civil case. Likewise, the judgment may be filed as a lien as provided by law for judgment creditors.

Prior to his death on October 4, 1999, Jeremiah, with the help of his parents, paid the plaintiffs $19,420.00. Because no payments were made after that time, the plaintiffs filed suit against Jeremiah’s parents, seeking the remaining amounts due. Citing La.Civ.Code art. 3492, the defendants argued that this suit was untimely because it was instituted more than one year after the plaintiffs suffered damages to their mobile home.

We find no merit in the defendants’ argument. Louisiana Code of Criminal Procedure Article 895.1 clearly states that the order to pay restitution is treated as a civil money judgment. Pursuant to La. Civ.Code art. 3501, a “money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing if no appeal has been taken, or, if an appeal has been taken, it is prescribed by the lapse of ten years from the time the judgment becomes final.” According to Ifithe briefs submitted to this court, restitution was ordered on October 22, 1997. There is no indication that this judgment was appealed. Thus, any action by the plaintiffs to enforce the money judgment had to have been filed within ten years from the signing of the judgment. The instant litigation was filed on May 5, 2000, well within the prescriptive period.

Our attention now turns to whether the trial court erred in ordering the defendants to pay the plaintiffs the remaining amount of restitution owed. In making this determination, the trial court explained:

Defendants argue that the obligation to pay restitution was a strictly personal obligation enforceable solely against Jeremiah, and that the obligation ceased upon Jeremiah’s death. Due to the language cited in [La.Code Crim.P. art. 895.1], this Court disagrees with this argument.
According to [La.Code Crim.P.] art. 895.1 A(2)(a), Jeremiah’s obligation to pay restitution is deemed to be a civil money judgment enforceable in the same manner as a money judgment in a civil case. Thus, because Jeremiah was a minor at the time he was ordered to pay restitution, his parents are liable for the remainder of the payments in ac-eord[ance] with Civil Code art. 2318, just as if a civil judgment had been awarded against their minor son.

It is undisputed that at the time of the offenses and at the time he was ordered to pay restitution, Jeremiah was a minor. Louisiana Civil Code Article 2318 provides:

The father and the mother and, after the decease of either, the surviving parent, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.

In Lafayette Parish School Board v. Cormier ex rel. Cormier, 05-05, p. 7 (La.App. 3 Cir. 4/5/05), 901 So.2d 1197, 1202, writ denied, 05-1482 (La.12/16/05), 917 So.2d 1112 (quoting Turner v. Bucher, 308 So.2d 270, 277 (La.1975)), this court stated:

|7We conclude that although a child of tender years may be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resides is legally at fault and, therefore, liable for the damage occasioned by the child’s act. This legal fault is determined without regard to whether the parent could or could not have prevented the act of the child, i.e., without regard to the parent’s negligence. It is legally imposed strict liability. This liability may be escaped when a parent shows the harm was caused by the fault of the victim, by the fault of a third person, or by a fortuitous event.

Here, the defendants are liable for the damage occasioned by the intentional act of their minor child, Jeremiah. La.Civ. Code art. 2318. The record indicates that Jeremiah reached the age of majority after he began making restitution payments. However, the defendants’ liability is not affected. See Lovett v. South Cent. Bell Tel. Co., 308 So.2d 801 (La.App. 4 Cir. 1975). Therefore, given the circumstances, we find that the trial court did not err in ordering that the defendants pay $29,880.00 in restitution to the plaintiffs.

Accordingly, this assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the defendants, Jerome and Vickie Escude.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

PICKETT, J., concurs in the result.

COOKS, J.,

dissents.

1,1 agree with the majority that res judi-cata does not prevent the defendants from re-urging the exception of prescription in this case. However, the majority’s decision to enforce the delinquency order, providing for restitution to the victims, against the parents of Jerome Escude, a minor at the time of the offense, is “flat out” wrong. Here, the victim allegedly sustained property loss totaling $49,300 which the minor was ordered to pay in restitution as a condition of probation at the time of sentencing in 1997. The majority relies on Louisiana Criminal Code Article 895.1 and notes this provision requires as a condition of probation that the court enter an order directing payment of restitution in cases where the victim suffered any loss of property. The majority makes a critical legal error at this stage of the review. This case involves a MINOR not an ADULT. The Louisiana Criminal Code is only applicable in juvenile proceedings when the Louisiana Children’s Code is silent on the matter in question. The Louisiana Children Code specifically speaks on the very issue which serves as the basis for plaintiffs’ claim, i.e. restitution by juveniles. Louisiana Children’s Code article 897(B)(2)(c) does provide that the child may be ordered to pay restitution. However, unlike La.Code Crim. P. art. 895.1, the Children’s Code does not provide that the order for restitution shall be deemed a civil judgment and may be enforced in the same manner as a money judgment in a civil case. See La.Code Crim.P. art. 895.1(A)(2)(a). Further, it does not provide that the order is automatically | ^enforceable against the parents. In fact, the only mention of the parents is found in La.Ch. C. art. 897(B)(2)(g) which provides the parents may be directed by the court to pay the “supervision fee” up to $100 per month and even this obligation is dependent on their ability to pay. See also La.Ch. C. art. 901.1(B).

This is not the first time this court has been called to consider whether a delinquency order directing a juvenile to pay restitution may be imposed against the parents. In State in the Interest of J. F., 03-321 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282, 1288, we reversed an order finding “the trial court erred in ordering J.F.’s parents to pay restitution to the bank.” In State in the Interest of D.M.G., 579 So.2d 525, 528 (La.App. 4 Cir., 1991), our colleagues on the Fourth Circuit declined to enforce an order directing the mother of a juvenile to pay restitution finding that she “was not a formal party to [the] proceedings and she [could] not be held financially responsible.” In State in the Interest of R.L.K. 95-1277 (La.App. 1 Cir.12/19/95), 666 So.2d 427, 432-33, the First Circuit Court of Appeal held if restitution is ordered as a special condition of probation pursuant to the juvenile code only the minor may be ordered to pay the amount and only, “after first considering whether or not the victim otherwise has been compensated for the loss and considering the child’s ability to pay any amount ordered.” Our jurisprudence clearly holds that a delinquency judgment ordering a minor to pay restitution cannot be enforced as a civil money judgment against the parents.

The plaintiffs in this case did not file an ordinary civil suit against the parents as provided by Civil Code Articles 237 and 2318 within the prescriptive period provided and thus their cause of action has expired.

      .In their brief, the plaintiffs contend that “[i]n the event that this [h]onorable [c]ourt finds that the trial [c]ourt erred in holding that its previous denial of Defendants [p]re-scription [a]rgument was [r]es [jludicata, then Plaintiff argues the doctrine of the law of the case.’ ” However, we note that the trial court did not consider the law of the case doctrine. Furthermore, in Babineaux v. Pernie-Bailey Drilling, Co., 261 La. 1080, 262 So.2d 328, 332-33 (1972), the supreme court held that, "[t]he law of the case cannot supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions.”

      . Louisiana Code of Civil Procedure Article 928 provides in pertinent part: "The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.”

      . Louisiana Civil Code Article 3492 provides in pertinent part: "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”


text:
    May YEN, et al. v. AVOYELLES PARISH POLICE JURY, et al.
    No. 2007-225.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Rehearing Denied Jan. 2, 2008.
    See also 858 So.2d 786.
    Richard J. Guidry, Jeffrey A. Mitchell, The Cochran Firm New Orleans, New Orleans, LA, for Plaintiff/Respondents, May Yen, Lenard Moten, Lentrell Moten, Chantell Moten, Elijah Yen, Lainee Yen.
    Charles C. Foti, Jr., Attorney General, Baton Rouge, LA, for Defendant/Applicant, State of LA., thru LSU Medical Ctr. Health Care Serv. Div.
    Robert L. Bussey, Mary Lauve Doggett, Bussey & Lauve, Alexandria, LA, for Defendant/Applicant, State of LA., thru LSU Medical Ctr. Health Care Serv. Div., Huey P. Long Medical Center.
    John Albert Ellis, LA. Dept, of Justice, AAG, Alexandria, LA, for Defendant/Respondent, State of La., Dept of Public Safety & Corrections, Avoyelles Correctional Center.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

hln this writ application, the defendant, the State of Louisiana, through the LSU Medical Care Services Division d/b/a Huey P. Long Medical Center (Hospital), seeks supervisory writs from the trial court’s judgment denying its peremptory exception of prescription. For the foregoing reasons, the writ is granted, made peremptory, and judgment of the trial court is reversed.

FACTS

Lenard Robinson, an inmate at the Avo-yelles Correctional Center in Avoyelles Parish, suffered a sickle cell anemia crisis on December 27, 2001. He was transported to the Huey P. Long Medical Center in Pineville, Louisiana, where he died on December 28, 2001. On December 22, 2002, the plaintiffs, May Yen and Chantell Mo-ten, individually and on behalf of their children as Robinson’s heirs, requested that a medical review panel be convened against the Huey P. Long Medical Center, the treating physicians, the State through the Department of Health and Hospitals, and the Board of Supervisors of Louisiana State University Agricultural and Mechanical College. On December 26, 2002, they filed suit against Avoyelles Correctional Center, Avoyelles Parish Police Jury, and the State of Louisiana, through the Department of Public Safety and Corrections, alleging negligence in the care and treatment of Robinson while incarcerated.

On September 16, 2004, the Hospital filed a Motion to Strike Medical Review Panel, and/or Exception of No Cause of Action, or No Right of Action, Lack of Subject Matter Jurisdiction and Prematurity and/or Motion for Summary Judgment. Following a hearing, the trial court granted the motion and the exceptions. ’ A | ¿judgment dismissing the panel was rendered on January 10, 2005. Thereafter, on March 9, 2005, the plaintiffs amended their petition to add the medical defendants to their suit, alleging they were jointly liable with the original defendants for the damages sought. In response, the State, through the LSU Medical Center Health Care Services Division, d/b/a Huey P. Long Medical Center, filed an exception of prescription alleging that pursuant to La. R.S. 9:5628, the plaintiffs’ claims against it had prescribed and should be dismissed with prejudice. Following a hearing, the trial court denied the exception finding that prescription against the Hospital was interrupted by the timely filing of the suit against the non-medical defendants in the district court, pursuant to Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986). Subsequently, the State applied for a supervisory writ to this court, which was granted.

ISSUES

In its writ application, the State raises three assignments of error. It argues that the trial court erred in finding that the general codal provisions pertaining to the running and interruption of prescription applied in this matter rather than the specific prescriptive provisions found in La. R.S. 9:5628, the Malpractice Liability for State Services Act, and pertinent jurisprudence.

MEDICAL MALPRACTICE

The prescriptive statute pertaining to medical malpractice actions is found in La. R.S. 9:5628(A). It provides in part:

No action for damages for injury or death against any physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act, omission, or neglect ...; however, Leven as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

This statute has been described as a tripartite prescription provision:

A straightforward reading of this statute clearly demonstrates the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission, or neglect to bring such claims.

Carter v. Haygood, 04-0646, p. 10 (La.1/19/05), 892 So.2d 1261, 1268 (citation omitted).

Pursuant to the Malpractice Liability for State Services Act, La.R.S. 40:1299.39.1 provides that any medical malpractice claim against the state, its agencies, or any other qualified person must initially be reviewed by a state medical review panel. Once a request for a review panel has been filed, prescription against the state health care provider and all joint or solidary obli-gors is suspended. La.R.S. 40:1299.39.1(A)(2)(a). This suspension continues until either ninety days after the plaintiff receives notification of the issuance of an opinion by the panel or ninety days after he/she is notified that the defendant does not qualify as a state health care provider. Id.

The only exception to the requirement that a party’s claim must first go before a review panel is when the party is a prisoner. Louisiana Revised Statute 40:1299.39.1(A)(l)(a) provides that “[a]ll malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims wherein the patients are prisoners ... shall be reviewed by a state medical review panel established as provided in this Section.” In a prior holding, we held that these same plaintiffs were ^exempted from submitting their claim to a medical review panel prior to filing a lawsuit in the district court. Yen v. Avoyelles Parish Police Jury, 03-603 (La.11/5/03), 858 So.2d 786.

The issue of whether the general codal provisions dealing with the running and interruption of prescription apply in medical malpractice actions has been addressed by the supreme court. In LeBreton v. Rabito, 97-2221 (La.7/9/98), 714 So.2d 1226, the supreme court overruled the holding in Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), which simultaneously applied the principles of interruption and suspension to prescription in a medical malpractice suit. In Hernandez, this court held that prescription was suspended as soon as the plaintiff filed a request for a medical review panel, and that it remained suspended until ninety days after his notification of the review panel’s opinion. However, once the ninety day period had run, we applied the interruption principles to hold that the one-year prescriptive period began to run anew. As the plaintiffs suit was filed within one year of the end of the ninety day period, we held that the suit was timely.

In overruling Hernandez, the supreme court, in LeBreton, held that applying the general codal provisions relating to interruption of prescription in medical malpractice matters would effectively write out those provisions contained in the medical malpractice act. As the Act provides for the suspension of prescription once a review panel is requested, the court held that applying both the codal provisions and the relevant suspension provisions would synergistieally benefit a plaintiff who:

|s[I]mproperIy files a premature medical malpractice suit without first filing the claim with the board for a medical review panel, and whose suit is subsequently dismissed without prejudice, gains an additional year of prescription in addition to the suspended time provided by the Medical Malpractice Act, within which to file the suit anew.

Id. at 1230. The court went on to hold, “Simply stated, the filing of a medical malpractice claim with a medical review panel triggered the suspension of prescription specially provided by the Medical Malpractice Act, rather than the interruption of the liberative prescription period generally provided in the Civil Code.” Id.

In the recent case of Borel v. Young, 06-352, 06-353 (La.App. 3 Cir. 12/29/06), 947 So.2d 824, the plaintiffs timely filed a claim with the Patient Compensation Fund, against two doctors and a hospital after the death of a patient. After the medical review panel found that the doctors did not breach the standard of care, the plaintiffs timely instituted suit against the hospital. More than two years later, the plaintiffs learned that the hospital intended to present evidence that one of the doctors breached the standard of care in treating the patient. The plaintiffs attempted to add that doctor as a defendant to their suit. When this failed, they filed a separate suit against the doctor. The doctor then filed a peremptory exception of prescription, which was granted.

On appeal, the plaintiffs alleged that their suit against the hospital interrupted prescription against the doctor as he was a joint tortfeasor with the hospital. They further argued that LeBreton did not apply in this instance as it dealt with the effect of a premature suit filed in the trial court, whereas the suit against the | (¡hospital was timely filed. In finding Le-Breton controlling, we held:

We find LeBreton clearly overruled the prior jurisprudence which applied the general provisions on interruption of prescription to a medical malpractice case and held the more specific provision found in the MMA controls the time in which suit must be filed against health care providers covered by the Act.

Id. at 830.

Thus, we held that in malpractice actions, the general rules of interruption of prescription were trumped by the specific provisions contained in the Medical Malpractice Act. Despite the timely filing of suit against the hospital, we held that prescription against the doctor and insurer was suspended during the pendency of the medical malpractice review panel until ninety days following the rendition of its opinion. The filing of the suit against the hospital did not act to interrupt prescription against the doctor and its insurer. Id.

In Bush v. National Health Care of Leesville, 05-2477 (La.10/17/06), 939 So.2d 1216, the supreme court held that its decision in LeBreton retroactively applied to bar the plaintiffs’ medical malpractice claim against a doctor who delayed in transferring their son to a larger hospital. As a result of that delay, their son lost a testicle. As pointed out by the fourth circuit in Mitchell v. Rehabilitation Institute of New Orleans, Inc., 06-0910, pp. 9-10 (La.App. 4 Cir. 2/14/07), 953 So.2d 75, 80:

Although the retroactive application of LeBreton is not at issue in this case, the facts in Bush are on point with the facts herein. Furthermore, it is clear from the decision in Bush that even if a medical malpractice plaintiff initially filed a timely suit in a court of competent jurisdiction against a defendant not qualified under the medical malpractice act, alleging solidary liability between that defendant and a defendant healthcare provider covered by the act, the specific statutory provision providing for the suspension of prescription found in the medical malpractice act is to be applied alone and not with the more general Civil Code article which addresses interruption of prescription.

17Although LeBreton and Borel can be distinguished from the facts before us in several ways, we are compelled to apply those holdings to the matter before us. LeBreton and its progeny all dealt with medical malpractice pertaining to private health care providers. However, we hold that it is controlling in determining the prescriptive issue pursuant to the Malpractice Liability for State Services Act. See Metro. Dev. Ctr. v. Liner, 04-654 (La.App. 4 Cir. 12/8/04), 891 So.2d 62. Furthermore, the decedent in this matter was a prisoner. As we stated previously, we held that the plaintiffs were not required to bring their claims before a medical review panel prior to instituting suit in district court. Nevertheless, this . matter sounds in medical malpractice, thus, we hold that LeBreton requires us to apply the suspension provisions found in La.R.S. 40:1299.89.1 to this matter.

Applying the precepts of LeBreton to this matter, we find that the trial court erred in finding that the timely filed suit against the non-medical defendants interrupted the running of prescription against the State. Robinson died on December 28, 2001. The plaintiffs timely filed a request for medical review panel on December 22, 2002. At that time, prescription against the State was suspended pursuant to La. R.S. 40:1299.39.1. After the plaintiffs’ claim was dismissed on January 10, 2005, prescription began running the next day, commencing from the time it was suspended, thus, the plaintiffs had only six days left in which to file suit against the State in district court. Since the codal provisions pertaining to the interruption of prescription do not apply in this instance, the plaintiffs’ suit against the non-medical defendants did not act to interrupt prescription against the State. Accordingly, we are constrained to find that the plaintiffs’ claim against the State has prescribed.

| .CONCLUSION

For the foregoing reasons, the writ is granted and made peremptory. Accordingly, the judgment of the trial court is reversed and the claims of May Yen and Chantell Moten, individually and on behalf of their children as the heirs of Robinson, against the State of Louisiana, through the LSU Medical Care Services Division d/b/a Huey P. Long Medical Center, are dismissed with prejudice. The costs of this matter are assessed to the plaintiffs-respondents.

WRIT GRANTED AND MADE PEREMPTORY; REVERSED.

      . We note that the supreme court granted writs in this matter and that an opinion is forthcoming. Borel v. Young, 07-0419 (La.5/4/07), 956 So.2d 617.