author: JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Gregory JONES.
    No. 05-KA-840.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Desiree M. Valenti, Roger Jordan, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Arcenious F. Armond, Jr., Stacey E. Stringer, Gretna, Louisiana, for Defen-danVAppellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   JAMES L. CANNELLA, Judge.

|2The Defendant, Gregory Jones, appeals from his conviction on Count One, distribution of cocaine within 1000 feet of a religious building and on Count Two, distribution of cocaine, and his respective sentences of imprisonment as a fourth felony offender, to 30 years at hard labor, without benefit of probation or suspension of sentence, and 15 years at hard labor, without benefit of parole probation or suspension of sentence for the first two years, to run concurrently. For the reasons which follow, we affirm.

On January 8, 2004, the Jefferson Parish District Attorney filed a three count bill of information against the Defendant. In Counts One and Two, the State charged the Defendant with distribution of cocaine within one thousand feet of a religious building, a violation of La. R.S. 40:981.3. In Count Three, the State charged the Defendant with distribution of counterfeit cocaine, a violation of La. R.S. 40:971.1. The Defendant was arraigned on January 9, 2004, and pled not guilty to all charges.

|sOn April 13, 2004, the trial court heard and denied defense motions to suppress evidence and identification. The Defendant was tried by a 12 person jury on all three counts on July 20 and 21, 2004.

At trial, Agent Wallace Davis testified that he was assigned to the narcotics division of the Jefferson Parish Sheriffs Office (JPSO). During April and May of 2003, he was part of an undercover operation investigating complaints from the Marrero area that people were selling drugs on street corners. The investigation was focused on the 300 block of Robinson Street. Agent Eric Dufrene testified that the 300 block of Robinson is in a residential area known for crime and drug trafficking. He stated that he has made numerous drug related arrests there.

Staff Sergeant Paul Smith testified that he is currently on active duty in the United States military. Before being called to active duty, he was a narcotics agent with the JPSO. During the Robinson Street operation, he was assigned to work in plain clothes, attempting drug purchases in the targeted area. His vehicle was equipped with a hidden camera to record the drug transactions, and with an audio device to broadcast them to backup officers in the area.

Sergeant Smith testified that at 3:45 p.m. on April 3, 2003, he drove an unmarked car to the 300 block of Robinson Street, where three or four people were standing. He stopped his vehicle and asked the Defendant where he could get a “twenty.” The Defendant told him to drive around the block. Sergeant Smith did as the Defendant instructed, and returned to the place where the Defendant was standing. The Defendant approached Sergeant Smith’s vehicle and gave him a rock of crack cocaine. Sergeant Smith, in turn, gave the Defendant $20 in cash. |4Sergeant Smith then drove away from the scene. The officer testified that the block where the transaction took place is within 1,000 feet of St. Joseph Baptist Church.

Agent Dufrene testified that he listened to the transaction between Sergeant Smith and the Defendant over the radio monitor. Afterwards, Sergeant Smith gave him descriptions of the Defendant and his location. Agent Dufrene wrote down those descriptions. Agent Dufrene met with Sergeant Smith and took possession of State’s Exhibit 1, the crack cocaine Sergeant Smith had purchased from the Defendant, and State’s Exhibit 2, the videotape of the transaction. The videotape was played for the jury at trial.

A short time after the drug transaction took place, Agent Dufrene went to the scene. He found the Defendant in front of 314 Robinson Street, a short distance from where he sold the drugs. The officer stopped the Defendant and performed a field interview. He completed a field interview card, noting the Defendant’s name, date of birth, hair, eye color, and other personal information. He also took two photographs of the Defendant. Agent Du-frene performed a pat-down of the Defendant’s outer clothing for weapons. He did not recover any narcotics or money from the Defendant at that time.

Sergeant Smith testified that on April 7, 2003, Agent Dufrene showed him a photographic lineup at the sheriffs office. Sergeant Smith positively identified the Defendant as the person from whom he purchased crack cocaine on April 3, 2003. Sergeant Smith also identified the Defendant in court.

Sergeant Smith testified that he participated in another undercover purchase at 4:53 p.m. on May 6, 2003. On that day he again drove his unmarked car to the 300 block of Robinson Street. He saw the Defendant there, and asked him for a twenty. The Defendant told Sergeant Smith to drive around the block. Sergeant |fiSmith did so, and when he returned, the Defendant approached his vehicle and gave him $20 worth of crack cocaine. Sergeant Smith gave the Defendant $20 and then left the area. Sergeant Smith identified State’s Exhibit 37 as the rock of crack cocaine he purchased from the Defendant on May 6, 2003.

The May 6, 2003 transaction was videotaped, and the tape was shown to the jury at trial. (State’s Exhibit 38). Sergeant Smith identified the Defendant in court as the person who sold him crack cocaine on May 6, 2003.'

Agent Aaron Wilkie testified that he provided surveillance for the May 6, 2003 transaction. Following the purchase, Sergeant Smith radioed a description of the suspect and his location to Agent Wilkie. Seven minutes after the transaction was completed, Agent Wilkie went to the scene and stopped the Defendant for a field interview. The interview lasted five to ten minutes, and it took place at 314 Robinson Street. Agent Wilkie testified that that address is near St. Joseph Baptist Church. The officer checked the Defendant’s identification and took a Polaroid photograph of him. He performed a pat-down search for weapons, but did not find anything of evi-dentiary value on the Defendant’s person. In explaining why the Defendant had Sergeant Smith drive around the block before he would sell him narcotics, Agent Wilkie said that some dealers do not wish buyers to see where their “stash” of drugs is located. Those dealers routinely have potential buyers drive around the block in order to give them an opportunity to retrieve their drugs without being seen.

The parties stipulated that if the chemist, Thomas Angelica, was called as a witness, he would testify that the substance purchased by Sergeant Smith on April 3, 2003 and May 6, 2003 tested positive for cocaine.

| (Agent Dufrene testified that he used roller tape to measure the distance between where the drug transaction took place and the posted drug-free zone at St. Joseph Baptist Church. According to his measurements, the distance was 326 feet. Agent Dufrene obtained a warrant for the Defendant’s arrest. The Defendant was arrested in December, 2003, after the narcotics operation was completed.

The jury returned a verdict of guilty as charged on Count One. As to Count Two, the jury found the Defendant guilty of the lesser included offense of distribution of cocaine. The jury returned a verdict of not guilty as to Count Three.

On August 3, 2004, the trial court sentenced the Defendant to 15 years incarceration at hard labor on counts one and two. The court ordered that the sentences be served concurrently to each other, and consecutively to the sentence given in another case, number 02-4997. The court further directed that “the first two (2) years of sentence is to be served without benefit of parole, probation, or suspension of sentence” and imposed a $10,000 fine.

On August 3, 2004, the State filed a habitual offender bill of information, alleging the Defendant to be a fourth felony offender. On that day, the Defendant was advised of the State’s allegations, and entered a denial. On November 16, 2004, the State amended the habitual offender bill by changing the alleged third predicate offense from possession of cocaine to distribution of cocaine. The Defendant was advised of the amended allegations that day, and entered a denial. On January 7, 2005, the Defendant filed a “Motion for Leniency in Accordance with State v. Dorthey.”

|70n January 11, 2005 the trial court heard and granted the Defendant’s motion for leniency. The State objected. On that day, the trial judge advised the Defendant of his right to remain silent and his right to a habitual offender hearing. The Defendant waived those rights and entered an admission to the allegations in the habitual offender bill. As part of a sentencing agreement, the trial court vacated the Defendant’s original sentence on Count One, and imposed a sentence of 30 years at hard labor, without benefit of probation or suspension of sentence. The trial court further ordered that the sentence run concurrently with the sentence on Count Two, and consecutively to the sentence in case number 02-4997.

On February 10, 2005, the Defendant filed a timely motion for appeal and a motion to reconsider sentence. The trial court granted the appeal that day, and denied the motion to reconsider sentence on February 15, 2005.

We note initially that issues are raised in this appeal contesting the sufficiency of the evidence and alleging one or more trial errors. In such a case, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by us of the trial error issues as to that crime would be pure dicta since those issues are moot.

On the other hand, when the entirety of the evidence, both admissible and |sma,dmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, might be insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); State v. Hearold, 603 So.2d 731, 734 (La.1992).

Therefore, we will first determine whether the entirety of the evidence was insufficient to support the Defendant’s convictions as argued in his second assigned error.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error the Defendant argues that the State failed to provide sufficient evidence to support his conviction for distribution of cocaine within 1,000 feet of a religious building (Count One),, as it did not adequately prove that the April 3, 2003 transaction took place within 1,000 feet of St. Joseph Baptist Church. The Defendant also argues that the State did not provide sufficient evidence to support his conviction for distribution of cocaine on May 6, 2003, (Count Two) because it failed to prove identity.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291 (per curiam). Here, the Defendant was convicted of distribution of cocaine within one thousand feet of a | areligious building, a violation of La. R.S. 40:981.3. In pertinent part the statute provides:

(A)(3)(a) Any person who violates a felony provision of R.S. 40:966 through R.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any religious building property, public housing authority property, or within one thousand feet of any such property, if the area is posted as a drug-free zone, shall, upon conviction, be punished in accordance with Subsection E of this Section.

Sergeant Smith, the undercover agent who purchased the cocaine from the Defendant, testified that the transactions took place in front of the residence at 314 Robinson Street. Sergeant Smith further testified that the 300 block of Robinson Street is a block or two from St. Joseph Baptist Church, and that the site is within 1,000 feet of the church.

Agent Dufrene acted as a surveillance officer for Sergeant.Smith during the April 3, 2003 sale. He testified that he did not witness the exchange between Sergeant Smith and the Defendant, but he listened to their verbal exchange from a remote location. Agent Dufrene said he was familiar with the 300 block of Robinson Street, as he had made numerous narcotics arrests there. Agent Dufrene testified that the block is within 1,000 feet of St. Joseph Baptist Church, a posted drug-free zone.

Agent Dufrene stopped the Defendant in front of 314 Robinson Street shortly after the April 3, 2003 sale. He conducted a field interview with the Defendant, and completed an interview card. Agent Du-frene identified State’s Exhibit 5 as a photograph of the spot where the transaction took place. The photograph also pictured St. Joseph Baptist Church. Agent Du-frene testified that he used roller tape to measure the distance from where the transaction occurred to the posted drug-free zone at the church. He measured the distance at 326 feet. Agent Dufrene identified State’s Exhibit 13 as a photograph of the roller tape he l1nused. The officer testified that he completed the measurement “within the next couple of days after the buy.” He measured the distance by himself.

The Defendant challenges Sergeant Smith’s and Agent Dufrene’s credibility regarding the distance between the site of the drug sale and the church. The Defendant further challenges the reliability of the method Agent Dufrene used to measure the distance.

Both Sergeant Smith and Agent Dufrene were at the scene of the sale and were able to assess the distance in person. While Agent Dufrene did not actually witness the drug transaction, Sergeant Smith informed him of its exact location. On cross-examination, Agent Dufrene testified that the sheriffs office maintained and issued the roller tape. The jury was free to accept or reject the officers’ testimony regarding distance and measurement. The jury also viewed photographs of the scene that pictured the church, and were thus able to judge the distance visually. It is not the function of the appellate courts to reweigh evidence or assess the credibility of witnesses. State v. Young, 04-1318, p. 5 (La.App. 5th Cir.4/26/05), 902 So.2d 461, 465.

This Court has previously rejected a similar argument in State v. Johnson, 03-903 (La.App. 5th Cir.12/9/03), 864 So.2d 645. In Johnson, the defendant argued that the State failed to prove the distance from the drug transaction to church property because the method used to measure the distance was faulty. The police officer testified that he measured the distance, 990 feet, by using a rolodex. The defendant alleged that the accuracy of the rolo-dex was unknown. This Court noted that the defendant did not attack the method of measurement at trial. We noted that the jury was free to accept or reject the officer’s testimony regarding distance, and that it had apparently found the officer’s testimony to be credible and believed the accuracy of his measurements. In rejecting the defense argument ^regarding the sufficiency of the evidence of the measurement, this Court found that the State proved that the drug violation occurred within 1,000 feet of a religious building.

As in Johnson, the Defendant herein did not challenge the validity of the measuring method at trial. The jury, in convicting the Defendant on Count One, found the testimony credible and that it established the distance of less than 1000 feet between the place where the drug transaction took place and the religious building. We find that the evidence was sufficient to support this jury finding.

The Defendant also complains that the State failed to prove that St. Joseph Baptist Church qualifies as a protected “drug free zone” under La. R.S. 40:981.3(A)(3)(b). That portion of the statute provides:

In order for the provisions of this Section to apply to religious buildings or to public housing authority property, the building must be posted as a drug-free zone as provided herein. The design and posting of the signs shall be at the discretion of the entity that owns or has authority over the religious building or public housing authority property. In order to post the area as a drug-free zone, the signs shall be located in a visible manner on or near each religious building or public housing authority property indicating that such area is a drug-free zone, that such zone extends for a distance of one thousand feet, and that a felony violation of the Uniform Controlled Dangerous Substances Law will subject the offender to severe penalties under law.

Contrary to the Defendant’s claim, Agent Dufrene testified that the church was posted as a drug-free zone. Moreover, the State produced a photograph (State’s Exhibit 12) which Agent Dufrene identified as a photograph of the “drug-free zone” sign posted on the church. A review of the photograph shows that the sign is posted on an outside wall, and that it contains the words:

DRUG
FREE
ZONE
HOT LINE 3NO-DRUG
(EXTENDS 1000 FEET FROM PROPERTY LINE)
11?VIOLATORS SUBJECT TO INCREASED
CRIMINAL PENALTIES R.S. 40:981.3(E)

It is further noted that the trial court, in its jury instructions, gave as one of the required elements of the offense a finding “that the area was posted as a drug-free zone.” Thus, the jurors were properly-instructed. They found the evidence was credible, and that it was sufficient to show that the religious building was posted with a sign in accordance with law. We likewise find that the evidence was sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime, beyond' a reasonable doubt, that is, that the Defendant distributed cocaine within 1000 feet of a religious building posted with a visible sign on the building indicating that it was a drug-free zone that extends for 1000 feet and that a felony violation of the Uniform Controlled Dangerous Substances Law will subject the offender, to severe penalties. We find no merit in the Defendant’s arguments pertaining to his conviction on Count One.

With respect to Count Two, the Defendant argues that the State failed to provide sufficient evidence to prove his identity as the person who sold cocaine to Sergeant Smith on May 6, 2003. La. R.S. 40:967 provides that it shall be unlawful for any person “knowingly or intentionally ... [t]o ... distribute, or dispense, ... a controlled dangerous substance ... classified in Schedule II[.]” Cocaine and its derivatives are listed in Schedule II. La. R.S. 40:964. The Defendant is guilty of distribution of cocaine when he transfers possession or control of cocaine to his intended recipients. State v. Housley, 04-347, p. 6 (La.App. 5th Cir.9/28/04), 884 So.2d 1204, 1207. Encompassed in proving the elements of an offense is the necessity of proving the defendant’s identity as the perpetrator. State v. Williams, 04-1016, p. 5 (La.App. 5th Cir.3/29/02), 901 So.2d 527, 530, writ denied, 05-1080 (La.12/9/05), 916 So.2d 1056.

Sergeant Smith positively identified the Defendant in a photographic lineup as the man who sold him crack cocaine on April 3, 2003. The State produced State’s Exhibit 2, the videotape of the April 3 transaction. The Defendant is visible on that videotape. The State also produced the videotape of the May 6, 2003 transaction. (State’s Exhibit 38). As the Defendant notes, the perpetrator’s face is not visible on that videotape. Sergeant Smith testified that during the May 6, 2003 transaction, the Defendant squatted next to the driver’s side door of his (Sergeant Smith’s) vehicle so that his face was not captured by the hidden camera. It was Sergeant Smith’s belief that the Defendant suspected he was a police officer, and that he wanted to ensure he would not be filmed during the transaction. Sergeant Smith testified that he was, nevertheless, certain that the Defendant was the person who sold him crack cocaine on May 6, 2003.

The videotape of the May 6, 2003 exchange shows that Sergeant Smith notified surveillance officers that he recognized the Defendant from prior transactions, but that he could not immediately recall the Defendant’s name. Still, Sergeant Smith testified that there was no doubt in his mind that the Defendant sold him cocaine on May 6, 2003.

The Defendant notes that Sergeant Smith told surveillance officers that the May 6, 2003 drug dealer was wearing a “tan shirt.” But, Sergeant Smith testified that the photograph of the Defendant taken by Agent Wilkie at the time of the field interview shows that the Defendant wore a gray shirt. When questioned about this discrepancy, Sergeant Smith responded that he had no doubt that the Defendant was the man who sold him crack cocaine on May 6, 2003. The jury clearly found Sergeant Smith’s identification credible. As previously noted, it is not the function |uof the appellate court to reassess the credibility of witnesses. We find that the officer’s unequivocal identification of the Defendant as the person who sold him cocaine on May 6, 2003 coupled with the other evidence, was sufficient evidence of the Defendant’s identification as the perpetrator of the offense. We find no merit in the Defendant’s arguments regarding the insufficiency of the evidence supporting his convictions.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error the Defendant argues that his trial counsel was ineffective. He argues that counsel’s omissions and errors, including failing to object to hearsay testimony by the State’s witnesses, resulted in an unfair trial that rendered the jury’s verdict unreliable.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution provide that a defendant is entitled to effective assistance of counsel. In order to show ineffective assistance of counsel, a defendant must demonstrate (1) that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. LaCaze, 99-0584, p. 20 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). In order to show prejudice, the defendant must show that, but for his counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. at 2068. There is no precise definition of reasonably effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of the case, and must Intake into consideration the attorney’s perspective at the time. State v. LaCaze, 99-0584 at p. 20, 824 So.2d at 1078-1079.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted, rather than on direct appeal. State v. Dabney, 05-53, p. 3 (La.App. 5th Cir.6/28/05), 908 So.2d 60, 62-63. But when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Deruise, 98-0541, p. 34 (La.4/3/01), 802 So.2d 1224, 1247, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). In this case, there is sufficient evidence in the record to allow for a ruling on the merits of the Defendant’s argument.

Agent Dufrene was the first witness called by the State. He testified that he was in communication with undercover agent Sergeant Smith during the April 3, 2003 drug purchase. Agent Dufrene testified, without defense objection, to what he heard Sergeant Smith say over the radio monitor during the transaction. Agent Dufrene also testified to Sergeant Smith’s descriptions of the Defendant’s appearance and the place where the transaction occurred. During Agent Dufrene’s testimony, the prosecutor had him identify State’s Exhibit 2, a videotape of the undercover transaction between the Defendant and Sergeant Smith on April 3, 2003. Agent Dufrene testified that he used the videotape and the field interview he did with the Defendant to compile a photographic lineup. The prosecutor played the videotape for the jury while Agent Dufrene described what was depicted on the tape. Defense counsel told the court he had no objection to the tape’s introduction, and he did not make any objections when the prosecutor questioned Agent Dufrene about the tape’s contents.

|1fiThe Defendant argues that Agent Dufrene’s testimony constituted inadmissible hearsay, since he testified to information that Sergeant Smith gave him over the radio monitor, and to actions of which he did not have firsthand knowledge. Hearsay is defined by La. C.E. art. 801(C) as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is generally inadmissible at trial. La. C.E. art. 802. But the admission of a hearsay statement is harmless error if the statement is merely cumulative or corroborative of other evidence. State v. Addison, 00-1730, p. 12 (La.App. 5th Cir.5/16/01), 788 So.2d 608, 616, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549.

In this instance, Agent Dufrene’s testimony regarding what Sergeant Smith told him, and his narration of the actions seen on the videotape, were cumulative of Sergeant Smith’s testimony. Moreover, since Sergeant Smith had firsthand knowledge of the incidents on the tape, he made the statements to which Agent Dufrene testified, and he testified at trial and was available for cross examination, any testimony by Agent Dufrene that might have been admitted without objection was harmless.

Thus, we do not find that defense counsel’s performance, in not objecting to Agent Dufrene’s testimony, fell below an objective standard of reasonableness under prevailing professional norms or that any omission he made resulted in prejudice so great as to undermine confidence in the outcome of the trial.

As his second ■ ineffectiveness claim, the Defendant argues that his trial counsel was ineffective in failing to object to the admission of the videotape of the April 3, 2003 drug transaction. The Defendant argues that the tape constituted inadmissible hearsay, since the prosecutor had Agent Dufrene identify it and describe its contents despite the fact that |17he did not witness the events depicted on the tape. The Defendant offers no legal support for his claim and we find none.

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to confront the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Jackson, 03-883, p. 17 (La.App. 5th Cir.4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118.

In this case, the video tape depicts a drug transaction and conversation between the Defendant and Sergeant Smith. Sergeant Smith was a witness at trial and available for cross-examination by the defense. As stated in Crawford v. Washington, 541 U.S. 36, 60-69, 124 S.Ct. 1354, 1369-1374, 158 L.Ed.2d 177 (2004), wherein the United States Supreme Court unequivocally reaffirmed its holding in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970):

[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements ... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354. (citations omitted). The Green court recognized that the primary purposes behind the Confrontation Clause were satisfied if the declarant appeared at trial, testified under oath, and was subject to cross-examination.

Thus, we find nothing ineffective in defense counsel’s failure to object to the admission of the videotape of the April 3, 2003 drug transaction.

As his third ineffectiveness claim, the Defendant points out that his trial counsel failed to object when the prosecutor asked leading questions of State witnesses Agent Wilkie and Sergeant Smith. The Defendant argues that “The failure of defense counsel to 1 ^object to the hearsay testimony and leading questions allowed the district attorney to introduce testimony that would otherwise have not been put before the jury and indeed allowed the district attorney to testify in this case.”

La. C.E. art. 611(C) provides, in part, “Generally, leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences.” Reversal of a conviction is not mandated unless the leading questions signify clear abuse calculated to prejudice the rights of the accused. State v. Quincy, 363 So.2d 647 (La.1978).

As to the prosecutor’s questioning of Sergeant Smith, the Defendant cites page 35 of the trial transcript (page 150 of the record). The Defendant does not point to the specific question or questions he believes were leading. The testimony on that page has to do with the April 15, 2003 transaction which pertains to Count Three. The Defendant was acquitted on that count. Thus, we find any issues regarding trial error as to that count moot.

The Defendant also cites the prosecutor’s questioning of Sergeant Smith on page 38 of the transcript (page 153 of the record). Again, the Defendant does not point to specific questions which he believes were objectionable. The cited page contains the following testimony regarding the videotape of the May 6, 2003 transaction pertaining to Count Two:

Q. Okay. What happened in that transaction in your window? Were you able to see the defendant in the video?
A. For a very slight second. When he came up to my window, he ducked down and went underneath my camera on the driver’s side to where you couldn’t even see him after that. It was just a quick second.
Q. When you say, “ducked down,” what do you mean by “ducked down”?
|1flA. He just like swooped down and he was just squatting right by my driver’s-side door.
Q. Did he stub his toe?
A. No.
Q. What was the deal?
A. Just probably not to get in the camera.
Q. Just in case?
A. Yes, sir.
Q. From what?
A. From a previous — from the previous deals.
Q. So, you made the block, you said?
A. Yes, sir.
Q. Came back and you did the deal?
A. Yes, sir.
Q. What did you get at that point?
A. Twenty dollars worth of crack.

Upon review, we find that most of the foregoing questions do not fall under the definition of a leading question. To the extent that some of the questions tended to suggest the answer and might be considered leading, we find that they did not signify clear abuse calculated to prejudice the rights of the accused. Rather, it appears that the questions were simply an attempt to have the witness elaborate on earlier testimony. As such, the questions were not objectionable and we find that defense counsel was not deficient in failing to object to them.

As to Agent Wilkie, the Defendant cites pages 8 and 13 of the transcript (pages 123 and 128 of the record). Once more, the Defendant does not give specifics as to what questions he believes were objectionable. It is possible that the line of questioning to |j>nwhich the Defendant first refers is the following testimony about a field interview Agent Wilkie conducted with the Defendant after the May 6, 2003 transaction:

Q. You were just around the corner?
A. Yes.
Q. You gave enough time for the undercover officer to leave the scene?
A. Yeah, we gave enough time for him to not only leave the scene, clear the area and then give the description.
Q. Now, when you did this field interview, what location is noted on that field interview card?
A. 314 Robinson.
Q. That’s where the field interview would have taken place?
A. Yes.
Q. And is that in close relationship to the St. Joseph Baptist Church?
A. Yes, it is.
Q. Right on the other side of the railroad tracks?
A. Right on the other side.

Like the questioning considered previously, we find that most of the questions were not leading. To the extent that they were, we find no evidence of clear abuse or that the questions were calculated to prejudice the Defendant. Considering all the evidence presented, we find that defense counsel’s failure to object to these marginally leading questions did not prejudice the Defendant and, thus, do not support a claim that his counsel was ineffective in this regard.

The next line of questioning to which the Defendant refers had to do with Agent Wilkie’s experience in dealing with drug dealers. The prosecutor first laid a foundation by establishing that Agent Wilkie had participated in more than 500 drug operations. In response to the prosecutor’s questions, Agent Wilkie described how the typical street |¾1 dealer stores and handles drugs. We find that the questioning on this point was intended to develop and elaborate on Agent Wilkie’s testimony, a purpose permissible under La. C.E. art. 611(C). Therefore, we find no deficiency in defense counsel’s failure to object to this line of questioning by the State. Moreover, the Defendant does not allege any prejudice suffered by this line of questioning and we find none.

As his fourth ineffectiveness claim, the Defendant complains that during voir dire, defense counsel referred to the Defendant facing a possible life sentence if convicted. Defense counsel (Mr. Owen) made the following statement before prospective jurors during voir dire:

MR. OWEN:
.There’s a lot of talk about drug laws in this country today. Some people think they are too severe; some people think they are too lenient. Do you believe that the present drug laws in America today where somebody who gets convicted for a piece of crack can get life imprisonment, up to sixty years, is too lenient—

The prosecutor objected, stating “That’s not the penalty for possession of crack or distribution of crack. I object to it as even approaching the penalty of crack cocaine.”

After voir dire resumed, defense counsel said, “.Do you think it’s too severe if someone is put away for life for, say, a drug charge, and they get fifty years or life....” The prosecutor again objected to the statement as improper voir dire. The trial judge admonished the jury that their job was to decide whether or not to convict, convict of a lesser offense, or acquit; that sentencing was the judge’s function. Voir dire then continued.

The Defendant argues on appeal that his attorney’s comments implied he was guilty, and thereby prejudiced the jury.. We find no merit in this argument.

We find nothing in the question that referenced this Defendant’s guilt. To the contrary, the question appears to be a strategic attempt by defense counsel to discover a | ^particular prospective juror’s feelings about drug offenders, that is, whether they should or should not be severely punished. We find nothing in this question that evidences ineffectiveness on the part of defense counsel.

Based on the allegations made on appeal and our review of the entire record, we find that the Defendant has not shown that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms or that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome of the trial. On the contrary, the Defendant’s trial counsel was able to win an acquittal as to one charge, and a lesser verdict on another, despite the fact that the State produced considerable evidence against the Defendant. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment, the Defendant argues that his habitual offender sentence of thirty years at hard labor is constitutionally excessive.

The sentencing range to which the Defendant was exposed upon conviction for Count One is partly governed by La. R.S. 40:983.1(E), which provides:

(1) Whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.
(2) A sentence imposed for a violation of the provisions of this Section shall not be subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for a violation of a felony provision of R.S. 40:966 through 970 is not subject to parole, probation, or suspension of sentence.

The penalty provision for distribution of cocaine is La. R.S. 40:967(B)(4)(b):

Distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without | ^benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

Employing both of the foregoing statutes, the Defendant’s sentencing range for Count One was two to 45 years’ imprisonment at hard labor, without benefit of parole, probation or suspension of sentence for the first two years. The Defendant was also subject to a mandatory fine.

However, the State thereafter filed a habitual offender bill of information against the Defendant alleging that he was a fourth felony offender. Of the three predicate offenses alleged in the habitual offender bill, two were for distribution of cocaine, and one was for possession of cocaine. Since the Defendant’s fourth felony and two of his prior felonies were violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, the Defendant was subject to the enhancement provisions of La. R.S. 15:529.1(A)(l)(e)(ii). That subpart provides for a mandatory life sentence, without benefit of parole, probation, or suspension of sentence. As to the fine mandated by La. R.S. 40:981.3, the Louisiana Supreme Court has held that the Habitual Offender Law does not authorize the imposition of a fine, but only provides for enhancement of the term of imprisonment. State v. Dickerson, 584 So.2d 1140 (La.1991) (per curiam); State v. Williams, 04-1016, p. 11 (La.App. 5th Cir.3/29/05), 901 So.2d 527, 533, writ denied, 05-1080 (La.12/9/05), 916 So.2d 1056.

The Defendant moved the trial court to depart from the mandatory sentence under the provisions of State v. Dorthey, 623 So.2d 1276 (La.1993). The court granted the motion. As evidenced by the waiver of rights form, the Defendant then admitted to the allegations in the habitual offender bill of information in exchange for a 30 year imprisonment at hard labor sentence without benefit of probation or suspension of sentence.

| ^Defendant argues that despite the reduction of his sentence from life to 30 years the sentence is still excessive. He bases this argument on the fact that he was only 40 years old at the time of the offense, the amount of cocaine sold was very small, and he is an addict in need of treatment rather than incarceration for an extended period of time. We find the Defendant’s argument that his sentence is excessive lacks merit.

It is first noted that the Defendant received his sentence as part of a plea agreement. La.C.Cr.P. art. 881.2(A) provides that, “[t]he Defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Since the imposed sentence is the product of a plea agreement, the Defendant is now precluded from raising a claim of excessiveness on appeal. State v. Stewart, 03-976, p. 9 (La.App. 5th Cir.12/30/03), 862 So.2d 1271, 1277.

Furthermore, appellate counsel requested that the habitual offender proceedings and sentencing not be transcribed. Absent the transcripts of those proceedings, there is nothing for this Court to review. Based on what is before us, we see nothing to indicate that the 30 year sentence imposed on the Defendant as a fourth felony offender is constitutionally excessive.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990) and we have found no errors that require corrective action.

Accordingly, for the reasons stated above, we affirm the Defendant’s convictions for distribution of cocaine within 1000 feet of a religious building and distribution of cocaine, and his respective sentences, enhanced as a habitual offender, to 30 years imprisonment at hard labor without benefit of probation or suspension of sentence, and 15 years imprisonment at hard labor with the first two [aRto be served without benefit of parole, probation or suspension of sentence, to be served concurrently.

CONVICTIONS AND SENTENCES AFFIRMED.

      . While the record contains a written motion to suppress evidence, it does not contain a motion to suppress identification.

      . Paul Smith is not the officer's actual name. Undercover narcotics agents generally use false names while working undercover as protection from retaliation.

      .Sergeant Smith explained that a "twenty” is a street term for $20 worth of crack cocaine.

      . The testimony regarding the April 15, 2003 undercover purchasé alleged in Count Three of the bill of information is not discussed here, since the Defendant was acquitted of that charge.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Allene Sumrall PACKARD and Kenneth C. Packard v. Bruce RAZZA, M.C., Paracelsus Elmwood Medical Center, Inc. d/b/a Elmwood Medical Center and Elmwood Care, Inc. d/b/a Elmwood Medical Center.
    No. 05-CA-863.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Roy F. Amedee, Jr., Kenneth Michael Wright, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Thomas E. Loehn, Charles K. Chauvin, Attorneys at Law, Kenner, LA, For Defendant/Appellee.

      Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

| pThis is an appeal by plaintiffs, Aliene Sumráll Packard and Kenneth C. Packard, from a trial court judgment that granted a defense motion for summary judgment and dismissed plaintiffs’ medical malpractice claim against defendant, Dr. Bruce Razza. For reasons that follow, we affirm.

The judgment presented for our review arises from a medical malpractice claim made against Dr. Razza and Elmwood Medical Center as a result of a spinal fusion performed by Dr. Razza in 1991. The petition for medical malpractice alleges that Dr. Razza deviated from the standard of care by failing to inform Aliene Sumrall Packard that the Luque spinal fixation plate system utilizing pedicle screws implanted during the operation was not approved for use by the Federal Drug Administration (FDA). In the petition plaintiffs allege that the spinal fixation devise was defective, and that breaches of the standard of care included two unsuccessful lumbar surgeries, ultimately necessitating an additional surgery to remove the devise. It is also alleged that permanent and disabling injuries resulted from the breach of the standard of care.

lain a supplemental and amending petition, Mrs. Packard alleged that Dr. David Baron performed an operation in March of 1999 to remove the Luque pedicle screw devise that was implanted in her spine by Dr. Razza. As a result of that surgery she contracted an infection which required her to be hospitalized on several occasions.

Defendants filed an exception of prescription asserting the complaint requesting a review by a medical review panel in accordance with La. R.S. 9:5628 was untimely filed as to the 1991 surgery. That exception was denied by the trial court. This Court reviewed that decision under the grant of supervisory jurisdiction and granted the application, reversing the trial court and granting the exception of prescription as to the claims of malpractice made concerning the 1991 surgery. That ruling was overturned by the Louisiana Supreme Court and the ruling of the trial court was reinstated.

Dr. Razza filed a motion for summary judgment. After consideration, the trial court granted the motion. It is that ruling that forms the basis for this appeal.

It is clear from the record that plaintiff, Aliene Packard, has had chronic spinal problems since she injured her neck and back in an automobile accident in 1985. At that time, she underwent cervical fusion, which was unsuccessful. In 1989, Mrs. Packard re-injured her neck and back in a second automobile accident. In November of 1990, Mrs. Packard consulted Dr. Razza. In April of 1991, when conservative treatment failed, Dr. Razza performed a bone graft fusion from the L4 to the sacrum using Luque plates and pedicle screws to anchor the bone graft. About one week later, Dr. Razza performed a second surgery on the cervical area of the spine to revise the earlier C4-5 fusion done after the 1985 automobile accident.

| ¿Unfortunately, Mrs. Packard was involved in a third automobile accident in February of 1992. Mrs. Packard continued to treat with Dr. Razza and, in March of 1993, she underwent surgery to remove and re-implant the Luque plates and pedi-cle screws. In 1995, when she saw a television show discussing the use of Luque plates and learned that they were not yet approved by the FDA, Mrs. Packard filed suit this action Dr. Razza.

Mrs. Packard subsequently moved to Colorado and in March of 1999 elected to have the Luque plates and screws removed during a surgery to repair a torn rotator cuff. As a result of that surgery, Mrs. Packard contracted an infection and filed suit in Colorado against the treating physician and the hospital.

Before the surgery to implant the devise to stabilize the spinal fusion in 1991, Mrs. Packard signed at least two consent forms which are contained in the record. Some of the information contained in those consent forms reads as follows;

I am fully aware of the unstable condition of my spine and I hereby authorized Dr. Razza_To perform a spinal fusion utilizing an internal fixation device, specifically LSF Luque Plates, pedicle screws, hooks, for the fixation and stabilization of the spine.
Dr. Razza has discussed with me the items of information that are briefly summarized below:
(a) The nature and purpose of the proposed procedure(s).
(b) The risks and possible complications of the proposed procedure(s), including the risk that such treatment may not accomplish the desired objective(s).
(c) The possible or likely consequences of the proposed procedure including the fact that at some future time the internal fixation device or devices named above may have to be removed surgically.
(d) All feasible alternative treatments .
4. I have had sufficient opportunity to discuss my condition and treatment with the doctor and his associates, and all of my questions have been answered to my satisfaction. I believe that I have adequate knowledge upon which to base an informed consent to the proposed treatment.

| .Additionally, the form fully explained the use of metallic surgical implants and the specific risks, including infection.

The record also contains a 1991 “Consent for Medical Procedure and Acknowledgment of Receipt of Information” signed by Mrs. Packard. That form contains the following acknowledgement, “I hereby state that I have read and understand this consent, all questions about the procedure or procedures have been answered in a satisfactory manner.... ”

The record contains the deposition of Dr. Razza, who explained the two surgeries in 1991 and 1993 were necessary to stabilize Mrs. Packard’s spine. He stated that the majority of the decompression was done in the first surgery with use of the pedicle screws. The second surgery, necessary to relieve pain after the second automobile accident, added to that decompression. At the time of the second surgery, the plate and screws were removed and inspected before re-implantation. He explained the sterilization process used during that process.

Dr. Razza further testified that he has a format in the explanation of this surgery with his patients. He recalled discussing with Mrs. Packard the option of using the plate and screws. They discussed the options of using the device or not using it. His explained to Mrs. Packard that this is an elective internal fixation device, not specifically approved by the FDA, but it can be used in bone. In Dr. Razza’ opinion, it was the device that would more likely than not give her the best possible chance at a good surgical outcome. This plate and screw is used by many physicians who do spinal surgery. He also testified that he gave Mrs. Packard the option of fusing without instrumentation.- Before the surgery, Dr. Razza got specific consent to use the device.

Mrs. Packard also testified by deposition. She recalled the discussion before the fusion surgery and stated that Dr. Razza explained that he would not know | fiwhat needed to be done until the actual surgery. She denied that Dr. Razza discussed the fact that he was going to put hardware into her back to promote the fusion. Her testimony is that she was never given the choice not to have the device implanted into her back during the first surgery in 1991. In 1993 she was told that the device may be removed if the fusion was complete. Although by the second surgery Mrs. Packard knew the screws were implanted, she did not know they were not approved by the FDA; as such, she did not insist they be removed at that time. However, she confirmed that she has never been told that the hardware was improperly placed.

Subsequent to the 1993 surgery, Mrs. Packard learned the pedicle screws were not approved by the FDA and could break off in her back. She moved to Colorado and in 1995 consulted Dr. David Baron because of back pain. Dr. Baron suggested a steroid block, but Mrs. Packard opted not have that procedure. She had no procedures again until 1999 when she elected to have the plate and screws removed from her back. At the time of surgery, she was given the option of getting a morphine implant or removing the metal plates. She decided to have the device removed at the same time she had surgery to repair a torn rotator cuff.

Mrs. Packard contracted an infection as a result of that surgery that persisted for two years and required two further surgeries as well as extended hospital stays. It caused depression and impaired her lifestyle considerably. She stated that she filed suit in Colorado,- as well as this suit against Dr. Razza. She confirmed that she is also part of a class action against the manufacturers of the pedicle screw.

Mrs. Packard testified that she has never been told that the use of the pedicle screws is a breach of the standard of care. However, she maintains that she would not have had them implanted had she been aware that they were not approved by the FDA.

|7Pr. Wheaton Williams, an expert in infectious disease medicine, testified that he treated Mrs. Packard in Colorado in March of 2001. He was called in to treat her in the emergency room of the Park-view Hospital in Pueblo Colorado. Mrs. Packard had undergone surgery on March 16, 2001 and was suffering from a post operative lumbar wound, infection. According to Dr. Williams’ testimony, Mrs. Packard had been suffering from back pain for years. However, he stated that the infection arose following the removal of hardware from her back in March of 1999. In his deposition, Dr. Williams stated that “she gave a history of, in essence, chronic recurring infection over that two-year period of time.” Dr. Williams opined that Mrs. Packard had a “vertebral osteomyeli-tis”, or bone. infection over the two years following the March, 1999 surgery to remove the spinal hardware. Although Dr. Williams said that the risk of infection increases with the use of an implant, he stated he was not qualified to offer an opinion of the standard of care for an orthopedic surgeon.

It is undisputed that Mrs. Packard signed the consent forms, and that the printed forms used did not disclose that the pedicle screws used to fuse her spine were not yet approved by the FDA. Whether Dr. Razza verbally informed Mrs. Packard of that fact in the conference about the surgery options and risks is disputed. The issue before us is whether that fact is a “material fact” precluding summary judgment..

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. 966(B). Appellate courts review summary judgment de novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was | ^appropriate. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385, 387. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La.C.C.P. 966(A)(2).

Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804. Facts are material when their existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

Our consideration of the law on informed consent to medical procedures begins with La. R.S. 40:1299.40. That statute provides in pertinent part;

A (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was' induced by misrepresentation of material facts.
B Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.

Additionally, in a lack of informed consent case, the plaintiff must also prove that there was a causal relationship between the doctor’s failure and the damages claimed by the patient. Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447, citing LaCaze v. Collier, 434 So.2d 1039 (La.1983), concurring opinion, 437 So.2d 869 (La.1983). Otherwise, the doctor’s conduct, however wrongful, is legally inconsequential. Id. As explained in Lugenbuhl, 701 So.2d at 454;

There are two aspects to the proof of causation in a lack of informed consent case. First, the plaintiff must prove, as in any other tort action, that the defendant’s breach of duty was a cause-in-fact of the claimed damages or, viewed conversely, that the defendant’s proper performance of his or her duty would have prevented the damages. Second, the plaintiff must further prove that a reasonable patient in the plaintiffs position would not have consented to the treatment or procedure, had the material information and risks been disclosed.

(citations omitted)

In the matter before us, the written, signed consent forms are explicit in that the Luque plates and pedicle screws will be used, and the risks of that procedure are set forth in the form. Further, the injury sustained by Mrs. Packard did not result from the implantation of the device.

Mrs. Packard developed an infection six years later when she elected to have the device removed during an unrelated surgery. The doctor who performed the surgery was not the defendant. Further, the surgery was elective. There is no indication that the device failed in any way, or that the implantation of the device is a breach of the standard of care. Therefore, we find the only fact at issue, whether Mrs. Packard was informed that the device used to stabilize her back was not yet approved by the FDA, is not a material fact sufficient to preclude the grant of a summary judgment in favor of Dr. Razza.

The judgment of the trial court is affirmed.

AFFIRMED.

      . 97-C-900 (La.App. 5 Cir. 9/30/97).

      . 97-CC-2723 (La. 1/30/98), 709 So.2d 688.


text:
    Nolan Clarence FRANZ v. John B. LEDOUX, The Republic Fire and Casualty Company, The French Riviera Spa, Inc., The ABC Insurance Company, and State Farm Insurance Company.
    No. 05-CA-822.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      Charles Raymond, Taggart, Morton, Ogden, Staub, Rougelot & O’Brien, L.L.C., Jerry B. Jordan, Jordan Law Firm, New Orleans, Louisiana, for Plaintiff/Appellant, Nolan Franz.
    Kelly Cambre Bogart, Jaime M. Cam-bre, David M. Cambre, Duplass, Zwain, Bourgeois & Morton, Metairie, Louisiana, for Defendant/Appellee, The French Riviera Spa, Inc.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

li>The plaintiff appeals the dismissal of his suit on an exception of prescription. We affirm.

On August 7,1999 Nolan Franz fell from a piece of equipment at an exercise facility owned and operated by French Riviera Spa, Inc. in Metairie, Jefferson Parish. The equipment allegedly had been improperly modified by French Riviera Spa, Inc. (hereafter “French Riviera”). He fell approximately four feet, landing on a step-stool and bruising his right buttock.

At the time Franz had a pre-existing back injury from a July 1998 work-related accident, which was the subject of a pending worker’s compensation claim. Franz did not feel that the spa fall had caused any significant aggravation to his pre-ex-isting herniated discs. However, he reported the fall at the spa to his treating physician, Dr. Donald Dietze.

On September 10, 1999 — a little over a month after the fall at French Riviera— Franz was involved in a traffic accident in Orleans Parish, in which his vehicle was rear-ended by a vehicle driven by John Ledoux, an Orleans Parish domiciliary. A few days later Franz began to experience significant pain in his lower back and neck, which led him to believe he had aggravated his pre-existing |aback injuries in the vehicular accident. Franz was unsure, however, which accident was the true cause of the pain.

He reported the traffic accident to Dr. Dietze, who ordered MRI tests of his lumbar and cervical spine. When compared to the MRIs taken following his 1998 work-related accident, the MRIs revealed new damage to Franz’s lower back, as well as damage to his neck.

On August 1, 2000, Franz filed suit in Orleans Parish against French Riviera Spa, John Ledoux, their insurers, and his own uninsured motorist insurer, alleging the defendants were liable “individually, jointly, severally and in solido ” for aggravation of his pre-existing back injuries. The plaintiff relied on his belief that French Riviera and Ledoux were joint or solidary obligors, making Orleans Parish a viable venue in which to sue French Riviera, a Jefferson Parish domiciliary.

On the same date, August 1, 2000, Franz requested service on the French Riviera Spa through its registered agent in Jefferson Parish.

Because the suit had been filed in Orleans Parish, the Civil District Court clerk had to forward the suit papers to the Jefferson Parish sheriff for service on French Riviera. The Jefferson Parish sheriff did not receive the papers until August 11, 2000 — -four days past the August 7 anniversary of the plaintiffs fall at the spa. The Jefferson Parish sheriffs office served the papers on French Riviera on the same day, August 11, 2000.

LLater that month Franz settled his worker’s compensation claim. The defendants in the auto accident claim filed an exception of improper cumulation and mis-joinder of actions, asserting that the claim against French Riviera was improperly cu-mulated with the auto accident claims because there was no community of interest, because the claims arose out of different facts and did not present the same factual and legal issues. Further, the exceptors asserted the suit against French Riviera was in an improper venue.

French Riviera Spa then filed a declina-tory exception of venue, relying on La. C.C.P. arts. 42, 74 and 463. French Riviera argued that Jefferson Parish was the only proper venue for suit against it, because it is a domestic corporation with its registered office located in Jefferson Parish and because Jefferson Parish is where the plaintiff sustained the damages he alleges were caused by French Riviera. Further, French Riviera asserted that cu-mulation of the action against it with the action against Ledoux was improper because Jefferson Parish was the only proper venue for suit against French Riviera. French Riviera sought to have the case dismissed or transferred to Jefferson Parish, pursuant to La.C.C.P. art. 121.

The plaintiff opposed the exception of venue on the ground that the damage caused to his back by both accidents was “indivisible” — that is, it could not be determined which accident caused what percentage of the damage, so that the defendants were solidarily liable for his injuries. The plaintiff argued that joinder |¡¡was proper under La.C.C.P. art. 641 because all the parties were “necessary for just adjudication,” i.e., to determine proportionate liability for his injuries.

The Orleans district court continued the exception without date pending discovery, on the ground the defendants may be soli-darily bound because the court was unable to discern whether the damages the plaintiff suffered were separate and distinct.

The motor vehicle defendants eventually dismissed their exception of improper cu-mulation and misjoinder. Discovery proceeded in the case, with French Riviera’s exception to venue still undecided.

In June 2003, the plaintiffs treating physician, Dr. Dietz, contradicted his prior written opinions on the issue of causation and testified that it was more likely that the aggravation of the plaintiffs pre-exist-ing back injury had occurred due to his fall at the spa rather than in the auto accident.

The Orleans Parish district court granted French Riviera’s exception to venue and ordered that the case be transferred to Jefferson Parish. The plaintiff filed a motion for rehearing, which the trial court denied. In a written ruling the court stated:

[T]his court finds that the injuries had to occur in the same accident in order for the defendants to be joint-tortfea-sors. This is regardless of the fact that the injuries sustained may overlap. The court finds in this matter that there was one accident that created and [sic] injury, and another which aggravated a preexisting condition. The court further finds that there exist two separate accidents, and therefore there should be two separate causes of action.

Franz v. Ledoux, No. 2000-11722 (La.Civ.Dist.Ct.10/20/03) (unpublished ruling).

The court issued a judgment in which it stated that the application for rehearing of the venue exception was denied and the exception was granted. The [¡¡judgment ordered that the case be transferred to the 24th Judicial District Court for the Parish of Jefferson “without prejudice.”

Shortly thereafter the plaintiff executed a settlement of his claims against the motor vehicle accident defendants. His claims against those defendants were dismissed with a reservation of rights against all other parties.

The plaintiff filed a writ application to the Fourth Circuit Court of Appeal, which granted a writ of review, but on review affirmed the trial court’s ruling. In a mul-ti-page ruling on the writ application, the Fourth Circuit found as follows:

[TJhere is no ease of association between the fall at the French Riviera Spa and the automobile accident occurring approximately one month later.... [T]he duty of care that the French Riviera Spa should have exercised in order to prevent relator’s alleged fall did not include the risk of negligence by an automobile driver one month later.
* * *
The fact that it may be difficult at trial for the fact finder to separate injuries attributable to the two alleged accidents does not create solidarity between the two alleged tortfeasors. The fact that the second tortfeasor may be liable for aggravating the pre-existing injuries caused by the first tortfeasor does not create solidarity between the two alleged tortfeasors. Even assuming that all of the facts are exactly as the relator contends them to be, as a matter of law no solidarity exists between the two alleged tortfeasors.

Franz v. Ledoux, 03-2080, pp. 5-6 (La.App. 4 Cir. 2/4/04), 869 So.2d 137, 140-141.

As a result, the suit against French Riviera was transferred to the Jefferson Parish district court.

French Riviera filed an exception of prescription in the Jefferson court, stating that because this matter was originally filed in an improper venue and French Riviera was not served within one year of the date of the incident, the claims were prescribed under La.C.C. art. 3462.

|7The Jefferson court granted the exception of prescription, stating in written reasons within the judgment:

This Court finds that prescription commenced on August 7, 1999, the date plaintiff fell at the facility. At that time, plaintiff was aware that he sustained some type of damage due to the fall.
This Court will not relitigate an issue already determined by the Orleans Parish Civil District Court and the Fourth Circuit Court of Appeal. This Court finds that the Fourth Circuit ruling constitutes the law of the case and will not be relitigated.
La. Civil Code Art. 3462 clearly states that when all [sic] action is not filed in the correct venue, interruption only occurs to those defendants who are served within the prescriptive period. French Rivera [sic] was not served until August 11, 2000, clearly past the one year prescriptive period. Therefore, this Court finds plaintiffs claim against French Rivera [sic] are [sic] prescribed and are dismissed with prejudice.

Franz v. Ledoux, No. 605-645 (La. 24th Jud. Dist.Ct., 3/9/05) (unpublished ruling).

On appeal the plaintiff makes the following assignments:

1. The trial court erred in assuming that the Fourth Circuit’s ruling precluded any consideration of proper venue for the purpose of deciding the exception of prescription;
2. The trial court erred by failing to understand that the basis for transferring the case to Jefferson was La.C.C.P. art. 121, and that the transfer was made without prejudice to the plaintiff; and
3. The trial court erred in failing to understand that the facts and law in this case justified a suspension, if not an interruption, of prescription.

The plaintiff argues that the delay in service is'not attributable to him, but rather to. the delay by public officials in exercise of their official duties — that is, by the Orleans Parish civil sheriffs office in transmitting the papers to the Jefferson Parish sheriffs office for service. In addition, the plaintiff asserts that a litigant waives the right to file an exception of prescription based on a lack of service of ^process within the prescriptive period under La.C.C. art. 3462 by first objecting to venue without simultaneously raising the potential prescription issue.

He also argues that the one-year prescription of La.C.C. art. 3492 does not begin to run until the injured party knows of the actual injury sued on and the specific causation of that injury, constructively or otherwise. He contends that at the time the suit was filed, venue was not improper because it was not known whether both or only one of the two accidents caused the aggravation of the pre-existing injuries.

We find no merit to these arguments.

La.C.C. art. 3492 provides that tort claims are subject to a prescriptive period of one year, which commences on the date the damage or injury is sustained. It is spurious for the plaintiff to argue that prescription did not start running on the date of the fall at French Riviera. Even if he did not know specifically that the fall aggravated his pre-existing injury, he was aware on that day that he had sustained some type of damage in the incident.

Prescription is interrupted with the filing of suit in a court of competent jurisdiction and venue. La.C.C. art. 3462. If the action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. Id. (Emphasis added.)

The exception of prescription may be pleaded at any time prior to submission of the case for decision. La.C.C.P. art. 928. Prescription, having tolled, is not interrupted by the transfer of the case. Riley v. Louisiana I-Gaming, 98-1106 (La.App. 5 Cir. 3/10/99), 732 So.2d 541, 544, writ denied, 99-997 (La.5/28/99), 743 So.2d 674. Once the prescriptive period has passed and the ^defendant has been neither sued in a court of competent jurisdiction and venue, nor served, prescription has run. Id.

Prescription runs against all persons unless an exception is established by the legislature. La.C.C. art. 3467. Prescription statutes are strictly construed against prescription and in favor of the obligations sought to be extinguished by them. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211.

This case is governed by La.C.C. art. 3462. It is distinguishable from cases falling under La.C.C.P. art. 1201. La.C.C.P. art. 1201 requires a plaintiff to request service of his lawsuit within 90 days of commencement of the action. If not, then the proceedings are null. There is a “good cause” exception, however, to La.C.C.P. art. 1201’s 90-day service request requirement.

Conversely, there are no statutory exceptions to the rule of La.C.C. art. 3462. Further, the language of Article 3462 differs significantly from the wording of Article 1201. Article 1201 merely requires that the plaintiff request service of his lawsuit within 90 days. In contrast, Arti-ele 3462 requires that the defendant be served within the prescriptive period.

The directive of La.C.C. art. 3467 — that prescription runs against all persons unless exception is established by legislation. — compels our conclusion that the delay in service in this case means that prescription accrued in favor of the defendant, French Riviera Spa, Inc.

Finally, contrary to the plaintiffs arguments, the question of venue, decided by the Civil District Court and upheld on review by the Fourth Circuit, is now law of the case. There is no compelling reason for this Court to overlook the prior ruling to revisit that issue. See, Shaffer v. Stewart Const. Co., Inc., 03-971, p. 71 (La.App. 5 Cir. 1/13/04), 865 So.2d 213, 218, writ denied, 04-420 (La.4/2/04), 869 So.2d 886.

For the foregoing reasons, the judgment is affirmed. The plaintiff is cast for costs of this appeal.

AFFIRMED.

      . La.C.C.P. art. 73 provides that an action against joint or solidary obligors may be brought in a parish of proper venue, “'under Article 42 only,” as to any obligor who is made a defendant. "If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.” La.C.C.P. art. 73(B).

      . La.R.S. 13:3471(2) provides:
      In an action or proceeding brought in a parish other than that of the domicile of a defendant, citation and all other legal process may be served on this defendant in the parish where the action or proceeding was brought, if the defendant can be served therein. Otherwise, the process may be sent by the clerk of the court from which it issued to any parish where the defendant may be found, and service may be made by the sheriff or a constable of the latter parish.

      . "[A]n action against: ... [a] domestic corporation ... shall be brought in the parish where its registered office is located.” La. C.C.P. art. 42(2).

      . "An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.” La.C.C.P. art. 74.

      . "Two or more parties may be joined in the same suit ... if: (1) There is a community of interest between the parties joined; (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and (3) All of the actions cu-mulated are mutually consistent and employ the same form of procedure.” La.C.C.P. art. 463(2).

      . "When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue.” La.C.C.P. art. 121.

      . "A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), ... unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.” La. C.C.P. art. 1672(C). (Emphasis added.)


author: CLARENCE E. McMANUS, Judge.

text:
    Lloyd W. BLANKE, Jr., and Gertrude Blanke v. Ramona DUFFY and Sheriff Harry Lee.
    No. 05-CA-829.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.

      J. Courtney Wilson, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

^Plaintiffs, Lloyd Blanke, Jr. and his wife Gertrude Blanke, filed suit against defendant Ramona Duffy and Sheriff Harry Lee, alleging that Ms. Duffy had Mr. Blanke wrongfully arrested and seeking damages for abuse of process. Ms. Duffy reconvened, seeking a temporary restraining order and damages for harassment. Pursuant to a motion for summary judgment, Sheriff Harry Lee was dismissed from this suit.

Although not present in the record before us, it appears that Ms. Duffy filed an exception of failure to state a cause of action. The minute entry of May 5, 2005 states that this exception was heard and granted, and that the trial on defendant’s reconventional demand was continued. The judgment on this exception is also not present in the record; however the record does contain the reasons for judgment, signed by the trial court on May 12, 2005.

Plaintiffs have appealed from the reasons for judgment issued on May 12, 2005. We dismiss this appeal and remand this matter for further consideration.

The record before us contains only the reasons for judgment, and not the judgment itself. Reasons for judgment are not part of the official judgment which lathe trial judge signs or from which appeals are taken. Parish of St. Charles v. Young, 99-411 (La.App. 5 Cir. 12/15/99), 750 So.2d 276.

We also note that a reading of the reasons in this case shows that they cannot be construed as the judgment. A valid judgment must be precise, definite and certain. Jenkins v. Recovery Technology Investors, 02-1788 (La.App. 1 Cir. 6/27/03), 858 So.2d 598. Furthermore, a final appealable judgment must contain de-cretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Id. In this case, the reasons for judgment state that “Therefore, judgment must be rendered in favor of the defendant.” The language does not set forth the relief that is granted or denied. Accordingly, there is no final judgment in the record from which this appeal was taken.

We also note that the alleged judgment would not be final for purposes of immediate appeal. According to the minute entry the exception was heard, but the trial of defendant’s reconventional demand Was not heard, and was continued.

Article 1915 of the Louisiana Code of Civil Procedure provides in pertinent part that:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

|4The alleged judgment in this case does not adjudicate all the claims of all the parties because there has been no consideration of the reconventional demands filed by Ms. Duffy. Further, there is no designation that the judgment be considered final for purposes of immediate appeal, nor did he make a determination that there is no just reason for delay. There is no final judgment from which an appeal may be taken. Brown & Root v. Matherne, 04-206 (La.App. 5 Cir. 7/27/04), 880 So.2d 77; Eiswirth v. Anthony L. Golemi Contractor, Inc., 02-1060 (La.App. 5 Cir. 1/28/03), 839 So.2d 346.

For the above discussed reasons, this appeal is dismissed. This matter is remanded for further proceedings.

APPEAL DISMISSED, CASE REMANDED.


text:
    Vincent CARACCI and Frank J. Caracci v. COBBLESTONE VILLAGE CONDOMINIUM ASSOCIATION; Hanover Insurance Company; Anthony Scandialato; Shelly Stephens and XYZ Insurance Company.
    No. 05-CA-784.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    See also 877 So.2d 1000.

      Leonard L. Levenson, Christian W. Helmke, New Orleans, Louisiana, for Plaintiff/Appellant.
    Sidney J. Angelle, Ryan G. Davis, Lob-man, Carnahan, Batt, Angelle & Nader, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   JAMES L. CANNELLA, Judge.

|gThe Plaintiffs, Frank Caracci and Vincent Caracci, appeal from a summary judgment in a property owners’ condominium dispute which dismissed their suit against individual condominium officers, Anthony Scandialato (Scandialato), Louis A. Heyd, Jr. (Heyd), and Daniel A. Cali, Sr. (Cali) (Defendants). We affirm. .

Frank Caracci owns a condominium unit in Cobblestone Village. Vincent Caracci is his tenant. In September of 2001, the unit sustained water and mold damage, allegedly from defects in the common areas. The Plaintiffs notified the officers of the Cobblestone Village Condominium Association (Association) of the problem. On November 1, 2001, the Association, acting through its Board of Directors (Board), notified the condominium’s insurer, Massachusetts Bay Insurance Company (Massachusetts) of the problems. Subsequently, the insurer hired Quick & Associates, Inc. (Quick) to survey the damage and to issue a report with recommendations.

[sOn May 7, 2002, the Plaintiffs sued the Association, Hanover Insurance Company, Board members, Scandialato and Shelly Stephens, and XYZ insurance company. The petition was later amended to include Massachusetts (the correct insurer and Hanover’s wholly owned and affiliated company), and Board members, Heyd, Cali, Sharon Lemoine (Lemoine), Marie Davis (Davis), and Richard Shephard (She-phard). Quick’s report was not completed and submitted to Massachusetts until one year later, September 20, 2002. Shortly after, on October 28, 2002, Massachusetts issued a check to the Association for $67,916.35 to cover the cost of the repairs. The Association then contracted with American Remediation & Restoration (American) to perform the repairs for $72,429.34. The contract, executed in January of 2003, contains an indemnification clause in which the Association agrees to indemnify American for any claims related to the work.

On February 2, 2005, Scandialato, Heyd and Cali filed for summary judgment under La.R.S. 9:2792.7, the immunity statute for unpaid directors, officers or trustees of a homeowners association. A hearing was held in March of 2005. On May 5, 2005, the trial judge granted the motion dismissing movers from the suit.

On appeal, the Plaintiffs assert that the trial judge erred in granting the motion for summary judgment because there is a disputed issue of material fact regarding whether the individual Defendants are immune under La.R.S. 9:2792.7 by acting in good faith, and without wanton or reckless disregard for the Plaintiffs, and whether they breached their fiduciary duty to the Plaintiffs.

|4The Plaintiffs assert that Scandialato’s, Heyd’s and Cali’s conduct were in bad faith and wanton and reckless, precluding immunity under the statute for damages sustained by the Plaintiffs. The Plaintiffs assert that it is undisputed that Quick did not issue its report for one year, which allowed the mold to grow, causing the damage to become so extensive that the unit became uninhabitable. They argue that Scandialato, Heyd and Cali should have taken action sooner to remediate the mold problem in their unit and were in bad faith and breached their fiduciary duty to the Plaintiffs by failing to consider the defects in Quick’s recommendations that were discovered by their expert and that was provided to them for their review prior to retaining American. They argue that they had a non-delegable duty to investigate the claims of the Plaintiffs’ expert regarding the Quick recommendations in order to guard the interest of the Association members before contracting with American.

The Plaintiffs further argue that Scan-dialato, Heyd and Cali were in bad faith by acting outside the scope of their authority when they violated their own resolution of August 19, 2002 that required unit owner consent before accepting the insurance proceeds for the mold damage. Further, the Plaintiffs contend that they violated the Condominium Declaration and ByLaws and acted outside their authority by granting indemnification to American for claims arising from the contract. The Plaintiffs further contend that they breached their fiduciary duties by filing the injunction against the Plaintiffs.

Scandialato, Heyd and Cali respond that there are no material issues of disputed fact. They contend that the Plaintiffs did not plead willful/wanton misconduct in their petitions, that the allegations in opposition to the motion are legal conclusions, and that the legal standard under R.S. 9:2792.7 is willful and wanton conduct, not bad faith. They assert that the Condominium Declaration and |sBy-Laws allow the Association to enter into contracts for the benefit of the condominium, which implicitly includes the right to indemnify the contractor since the indemnity agreement does not affect the Plaintiffs’ right to sue American. They assert that the Condominium Declaration provides that insurance proceeds are to be paid first to repair damages, with .any excess to be held in trust for the owners.

Scandialato, Heyd and Cali contend that they acted in the best interest of all unit owners. Within two months from the notice of the damage, they notified Massachusetts, which funded Quick as soon as practical to evaluate the problem. The delay in Quick’s report was not their fault because they had no control over the evaluator. Furthermore, as soon as they received the insurance proceeds they hired American to repair the damages. They note that they were forced to file the injunction, further delaying the repairs because the Plaintiffs refused American access to their unit, despite the Condominium Documents that authorize the Association the right to make repairs to the common areas and to enter any unit to make emergency repairs. Thus, the additional delay in attending to the Plaintiffs’ unit was caused by the Plaintiffs own refusal to allow American entry to remediate the mold damage.

La.R.S. 9:2792.7 provides in part:

A. A person who serves as a director, officer, or trustee of a homeowners association and who is not compensated for such services on a salary basis shall not be individually liable for any act or omission resulting in damage or injury, arising out of the exercise of his judgment in the formation and implementation of policy while acting as a director, officer, or trustee of that association, or arising out of the management of the affairs of that association, provided he was acting in good faith and within the scope of his official Junctions and duties, unless such damage or injury was caused by his willful or wanton misconduct.
|fiB. For purposes of this Section, “homeowners association” means any of the following:
(1) A condominium association as defined in the Louisiana Condominium Act, R.S. 9:1121.101 et seq.[ Emphasis added.]

The Condominium Declaration (Declaration) grants to the Association, which is comprised of all unit owners, “all of the powers necessary” to govern, manage, maintain, repair, administer and regulate” the property. Condominium Declaration, Article IV, paragraph 2. It authorizes the Association to make any necessary repairs to the common elements, and to enter individual units to perform emergency repairs. Id. It also requires insurance proceeds received for property damage to be paid to the Association, which shall pay for repairs first and to hold any excess in trust. Condominium Declaration, Article VII, paragraph 2. The Board of Directors acts for the Association.

The Resolution referred to by the Plaintiffs was not placed into evidence. However, Scandialato, Heyd and Cali did not address this issue, and we will presume that the quoted language in the Plaintiffs’ pleadings is accurate. In that resolution, the Board agreed to obtain the “claimants” approval before accepting insurance proceeds.

La.C.C.P. art. 966 B, provides in pertinent part that the summary judgment sought “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” A motion for summary judgment is reviewed by appellate courts de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750; Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218, p. 5 (La.App. 5th Cir.10/6/05), 912 So.2d 715, 717. The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La.C.C.P. art. 966 A(2); Kinchen, 05-218 at p. 5, 912 So.2d at 717.

The burden of proof is on the movant. Kinchen, 05-218 at p. 5, 912 So.2d at 717. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Kinchen, 05-218 at p. 5, 912 So.2d at 717-718. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2); Kinchen, 05-218 at p. 5, 912 So.2d at 718. After the motion for summary judgment has been properly supported by the movant, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Kinchen, 05-218 at p. 5, 912 So.2d at 718.

In this case, Scandialato, Heyd and Cali can only be held liable under R.S. 9:2792.7 if their management of the mold problem was in bad faith and constituted willful and wanton misconduct. Although these may be factual determinations based on their conduct, which might ordinarily preclude summary judgment in a negligence case, we find that the evidence submitted in this case shows that their conduct in this case does not rise to the level of bad faith and willful and wanton misconduct required for liability under R.S. 9:2792.7. While the Association may be hable for its negligence, a greater degree of fault is necessary to hold the unpaid individual Board members liable for their actions on behalf of the Association. |sThus, we find that the trial judge did not err in granting the Defendants’ motion summary judgment.

Accordingly, the judgment is hereby affirmed. Costs of the appeal are to be paid by Plaintiffs.

AFFIRMED.

      . Stephens, Lemoine, Davis, and Shephard were never served and are no longer parties in the case.

      . In July of 2003, the Association filed a re-conventional demand, requesting an injunction against the Plaintiffs for refusing to allow American into the unit to make the repairs. The injunction was granted. On appeal, this Court affirmed. The Louisiana Supreme Court denied supervisory writs. See: Caracci v. Cobblestone Village Condominium Ass’n, 03-1487 (La.App. 5th Cir.5/26/04), 877 So.2d 1000; writ denied, Caracci v. Cobblestone Village Condominium Ass'n, 04-2290 (La.11/19/04), 888 So.2d 207.

      . The other Defendants remain in the suit.