author: BROWN, Chief Judge.

text:
    Jonathan Nicholas COOPER, Plaintiff-Appellee v. Tela Denise Dooly COOPER, Defendant-Appellant.
    No. 43,244-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2008.

      Klotz, Simmons, & Brainard, by B. Trey Morris, Cynthia L. Carroll, Shreveport, for Appellant.
    Kitchens, Benton, Kitchens, & Black, by Melanie F. McCullough, Minden, for Ap-pellee.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, Chief Judge.

| following-a hearing on a rule to suspend visitation rights until the mother could provide adequate housing and sleeping arrangements, the trial court ruled that “[T]his mother’s got no business having custody of these children at all. I’m going to terminate her visitation.” The trial court then limited visitation to a three-hour supervised period every other Saturday. The mother appeals. For the reasons set forth below, we reverse and remand.

Facts and Procedural Background

Jonathan Nicholas Cooper and Tela Denise Dooly Cooper (now Hammett) were married in June 2001. Of this union, two girls were born, the first on November 3, 2001, and the second on August 16, 2003. Within a year of the second child’s birth, Tela began having an affair with Joshua Hammett.

On January 30, 2006, Jonathan filed a petition for divorce in accordance with La. C.C. art. 103(2), alleging Tela’s acts of adultery. Tela answered and reconvened seeking custody and child support. Trial was set for March 28, 2006, and in the interim, the parties were to share custody of the children.

On March 28, 2006, pursuant to an agreement the trial court granted Jonathan’s petition for divorce under La. C.C. ari. 103(2) and awarded joint custody of the children, with Jonathan as the primary domiciliary parent. Tela was given physical custody of her daughters on alternating weekends. Although not in the judgment, the parties agreed to Tela’s custody on certain holidays and five weeks during the summer. Tela was also ordered |2to pay child support. A written “Consent Judgment” was signed on May 5, 2006.

Following the divorce Tela and Joshua Hammett married and now have an infant son. Joshua has two sons by a prior marriage who often stay with Joshua and Tela.

Each party swapped contempt rules with Jonathan seeking to accrue support arrearages and Tela complaining that she was denied visitation. Another consent judgment was rendered setting the amount of past due support and reducing Tela’s support obligation. On July 17, 2007, Jonathan filed the present rule for back due child support and to suspend Tela’s visitation rights based upon his belief that she was not providing adequate housing. Specifically, Jonathan alleged that Tela was living in a travel trailer that lacked sewerage or water. Jonathan requested that Tela’s visitation be suspended until such time that she could provide adequate housing and sleeping arrangements for the children.

The trial court held a hearing on Jonathan’s request for suspension of visitation on August 14, 2007. Jonathan, his sister, and Tela’s mother testified that when the children return from visiting with their mother, their breath smells bad, their hair is matted, and their clothes are dirty. We note that Tela and her mother are estranged and do not communicate with each other. Also, Tela’s mother had no recent contact with the children. Furthermore, Jonathan and his sister testified that on the weekend before this trial, Tela took the children to the lake, and they were severely | Ssunburned on their faces. Jonathan and his sister also testified that on another occasion the children returned from visiting Tela with multiple insect bites. Photographs of both the sunburns and insect bites were admitted into evidence.

The court also heard testimony from Robert Weltz, a private investigator hired by Jonathan. Weltz testified that he observed Tela on ten days between June 6, 2007, and the last week or two of July 2007. He did not relate particular dates or specific times of his observations and out of the ten days he observed, some were only drive-bys or spot checks. Weltz testified that he only witnessed the children and Tela at her actual home in Cotton Valley on one occasion, and he concluded that the house in Cotton Valley looked like it was not being lived in. He did see the children at a travel trailer at Tela’s husband’s wrecking service in Minden. Weltz further testified that he witnessed Tela leave the children unattended in her vehicle twice in one day. First, she stopped at the Cotton Valley Post Office and went inside to get mail then took it to the wrecking service’s office in Minden. Weltz stated that in Minden the children were left in the vehicle alone for three to eight minutes and that it appeared that the vehicle was not running, i.e., the air conditioner was not on. The detective did not know if the house or trailer had utilities.

Tela and her husband testified that the children were sunburned after a day on the lake, even though Tela had been applying sunscreen on them throughout the day; their home in Cotton Valley had adequate sleeping arrangements and air conditioning; and, they only stayed at the travel trailer ^occasionally when Joshua was on call at night. Tela and her husband also stated that the travel trailer had sewerage and water service.

After hearing the witnesses, the trial court rendered its judgment that all visitation previously afforded was terminated and visitation would take place at the D & D Farm Supply in Minden every other Saturday for a period of three hours under the supervision of Dan Dooly. It is from this judgment that Tela now appeals.

Discussion

Although the rule was filed by Jonathan to suspend visitation, the trial court, in effect, revoked the previous joint custody award. Implicitly, the father was given sole custody of the two children with the mother having limited and supervised visitation.

Because the trial court modified or revoked the stipulated joint custody judgment, the burden of proof on Jonathan was to show (1) a material change in circumstances since the original joint custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731; Hoskins v. Hoskins, 36,031 (La.App. 2d Cir.04/05/02), 814 So.2d 773.

The trial court is vested with vast discretion in matters of child custody and visitation and its determination will not be disturbed absent a clear showing of abuse. Gaskin v. Henry, 36,714 (La.App. 2d Cir.10/23/02), 830 So.2d 471. If the trial court’s factual findings are reasonable in light of the record reviewed in its entirety, an appellate court |Rmay not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Flanagan v. Flanagan, 36,852 (La.App. 2d Cir.03/05/03), 839 So.2d 1070.

The best interest of the child is the sole criterion for determining a noncustodial parent’s right to visitation. Hos-kins, supra. The trial court has the inherent power to determine a child’s best interest and to tailor custody orders, including visitation, in a manner that minimizes risk of harm to the child. Gaskin, supra.

The question of visitation is always open to change when the conditions warrant it. Gaskin, supra. When there have been restrictions placed on a noncustodial parent’s visitation rights, those restrictions should be lifted when it is shown to be in the child’s best interest. Id. The trial court’s order restricting visitation did not afford Tela any means to rectify the problems noted and restore her normal visitation (i.e. proof of completion of a parenting class and the provision of adequate housing).

Louisiana Civil Code art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interests of the child. The consideration of all Irrelevant factors under Article 134 should be followed in actions to change custody, as well as in those to fix custody initially. La. C.C. art. 134, comment (d).

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Pender v. Pender, 38,649 (La.App. 2d Cir.05/12/04), 890 So.2d 1; Flanagan, supra. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Hoskins, supra.

In the case sub judice, the trial court determined that “this mother’s got no business with having custody of these children at all.” The court’s determination was based upon the following: (1) the father testified that the children would return from their weekend visitations with bad breath, unkempt hair, using bad language, and wearing dirty clothes; (2) Weltz’s testimony that he observed Tela leave the children unattended m her vehicle twice for approximately three to eight minutes and that he did not actually |7see if she properly secured the children with a seatbelt or a child seat; (3) the court’s inability to determine where Tela was living and it appeared that Tela and the children would stay in a travel trailer at her husband’s wrecking service; (4) child protection services had investigated a complaint concerning Tela’s accommodations and the results of that investigation were still pending; and (5) the sunburn and insect bites that the children received while visiting Tela.

Tela contends, however, that the trial court’s ruling was manifestly erroneous, since the trial court failed to consider all relevant factors, as set forth in La. C.C. art. 134, when determining the best interest of the children and, further, because the judgment requiring supervised visitation is unlimited in duration.

The trial court’s ruling was based upon certain isolated incidents that arguably were not the best course of action on Tela’s part in attending to her daughters’ needs. Nevertheless, the children’s medical and dental needs are being met, and Tela is paying child support to help her ex-husband meet these and other needs. There was no evidence that when Tela had the children they always stayed in the trailer at the wrecking yard. The record instead shows that this occurred only occasionally, and they pretended it was a camping trip. Although Tela’s home needs to be better kept, it was not shown to be detrimental to the children’s well being. The evidence was specious at best and clearly did not show a material change in circumstance such as to warrant the revocation of joint custody nor would it support the severe restrictions of Tela’s visitation with the children. The trial court | serred in finding that Jonathan met his burden of proof for a change in joint custody or in limiting Tela as a noncustodial parent to supervised visitation with the children.

We reverse the trial court’s judgment and reinstate the original judgment giving Tela custody every other weekend. The original judgment awarded custody to Tela every other weekend but did not mention holidays or summer. The parties apparently agreed to this in a custody implementation plan which is not in the record. The trial court is ordered to specifically set forth these custodial times. We remand to the trial court for implementation in accordance with this opinion.

Conclusion

For the foregoing reasons, we reverse and remand for further proceedings in accordance with this judgment.

REVERSED AND REMANDED.

      . A custody implementation plan was referred to in the written judgment but was not attached to the judgment or foiind in the record.

      . The court left the supervisor to be chosen by the parties.

      . According to La. C.C. art. 134, the nonexclusive list of relevant factors to be considered by the trial court in determining the best interests of the child may include the following:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.


source: Caselaw Access Project

author:
JOAN BERNARD ARMSTRONG, Chief Judge.
      JONES, J.,

license: Public Domain

text:
    STATE of Louisiana v. Jimmy D. GAUTHIER, Jr.
    No. 2007-KA-0743.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2008.
    Rehearing Denied April 9, 2008.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Appellee.

      Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|, On June 24, 2003 the State filed a bill of information charging the defendant-appellant with one count of second degree battery, a violation of La. R.S. 14:34.1, and one count of intimidation of a witness, a violation of La. R.S. 14:129.1. Although the defendant originally entered a plea of not guilty, he changed that plea to a dual one of not guilty and not guilty by reason of insanity. He was found competent to stand trial after a hearing. He was subsequently found competent to represent himself.

Trial was conducted on January 13, 2005 before a six-person jury. At the conclusion of the trial the jury found the defendant guilty of the responsive verdict of simple battery, a violation of La. R.S. 14:34, as to the first count and guilty as charged on the second count. On April 4, 2005 following a sentencing hearing, the court sentenced the defendant on count one to six months in parish prison and on the second count to five years in the Department of Corrections, with or without hard labor. The court ordered that the sentences run concurrently. The defense filed a motion to reconsider sentence which was denied and a motion for appeal which was granted. The conviction was affirmed, and the sentence was amended Land affirmed as amended. State v. Gauthier, 2005-1365 (La.App. 4 Cir. 9/27/06), 941 So.2d 642.

On June 13, 2005 the State filed a multiple bill charging the defendant as a second offender. A hearing was set for August 26, 2005, but ⅛ was continued on motion for the State. Hurricane Katrina’s devastation resulted in the inability of the court to hear the matter as scheduled in September. On February 3, 2006 a set sheet resulted in the hearing being scheduled for April 28, 2006. The defendant was not brought to court for the next two hearing dates, and after being released from custody, did not appear for a status hearing on September 12, 2006. An alias capias for his arrest was issued.

Hearings set for December 15, 2006, January 11, 2007, and January 17, 2007 did not go • forward, although the defendant had been returned to custody. The defendant finally appeared on February 2, 2007, at which time the defense was granted a continuance. The minute entry for February 2, 2007, reflects that the court set a lunacy hearing for February 15, 2007. The lunacy hearing was then reset several times, until the minute entry of March 13, 2007 fixes March 29, 2007, as the date for both the multiple bill hearing and the lunacy hearing. However, the minute entry of March 29, 2007, notes the continuance of the multiple hearing to April 2, 2007, but no mention is made of the lunacy hearing. On April 2, 2007, the defendant appeared. The court denied the defendant’s motion to quash the multiple bill, heard testimony, and then found that the defendant was a second offender. The court vacated the original sentence and resentenced him to serve seven and one-half years at hard labor. The court denied the defendant’s oral motion to reconsider sentence. The court granted the motion for an appeal. But there is no reference to the defendant’s competency or to a lunacy hearing.

| sThe facts of this case were set forth at length in this Court’s appeal opinion rendered in conjunction with the appeal of the defendants’ conviction:

Tracy Bouvier, the victim in this case, testified that Mr. Gauthier had been her “boyfriend” for twelve years and that he was the father of her children. She then testified regarding the incident that led to the charges against Mr. Gauthier. She said that she had awakened Mr. Gauthier so that he could get ready to go to work. When she woke him, he started accusing her of being unfaithful to him. When she denied that she had been unfaithful, Mr. Gauthier started “punching” her. She explained that the more she denied being unfaithful, the more Mr. Gauthier hit her. He hit her intermittently for about two hours. Ms. Bouvier stated that Mr. Gauthier hit her with his closed fist on both of her arms, both of her legs, and on her back. Only when Mr. Gauthier realized that he was late for work did he stop hitting Ms. Bouvier and leave to go to his place of employment.
Ms. Bouvier said that she did not call the police immediately after she was beaten, because she was scared. When she was being beaten and “got kind of loud at one point,” Mr. Gauthier told her “to shutup [sic] and be quiet because if the neighbors would have came [sic] to the door, if they would have called the police, then by the time they would have came [sic] in there would have been nothing left of me.” Ms. Bouvier also testified that “[n]umerous times he told [me] if I ever went to the police, or if I ever tried to leave him, that he would kill me.”
Ms. Bouvier then said that she reported the beating to the police the next day because of her son’s reaction when he saw one of the bruises on her arm. Her young son was very upset and said, “That’s it. We are going to call the police.” Ms. Bouvier and her children then traveled to the police station by bus, and she reported the beating.
Although Ms. Bouvier had difficulty walking after the beating, that problem resolved itself, but the pain in her left arm persisted. She testified that approximately ten days after the beating, it was still painful for her to move her left arm. Additionally, her arm had lumps on it, and she could not pick up anything. Therefore, she sought medical treatment at that time.
|4Ms. Bouvier also said that she had received approximately sixty letters from Mr. Gauthier that he sent to her while he was incarcerated. Most of the letters were sent during the first month that Mr. Gauthier was in jail. At trial Ms. Bouvier identified the letters and read a number of excerpts from them. In the letters, Mr. Gauthier both threatened her and professed his love for her.
New Orleans Police Department Detective Dira Godchaux, an officer trained to handle domestic abuse cases, also testified at the trial. She said that she met with Ms. Bouvier after she arrived at the police station to report the beating. Detective Godchaux stated that Ms. Bouvier was crying, that she appeared to be afraid, and that she had extensive bruising on her arms, her upper thigh, and her back. Also, the bruised areas were swollen. It appeared that Ms. Bouvier’s muscles were sore, because Ms. Bouvier had difficulty walking. Detective Godchaux also testified that Ms. Bouvier stated to her that Mr. Gauthier had said that he would kill Ms. Bouvier if she reported the beating to the police. Additionally, Ms. Bouvier reported that there had been prior incidents of domestic violence but that she had not reported them to the police.
Although Ms. Bouvier never told Detective Godchaux that Mr. Gauthier was armed with a weapon while he was beating Ms. Bouvier, the detective had him arrested for aggravated battery. Detective Godchaux also testified that when he was taken to the police station, Mr. Gauthier acted in an uncontrollable manner. He struck his head against the wall, and he was screaming obscenities. Dr. Raphael Salcedo, a member of the sanity and competency commissions that examined Mr. Gauthier, was called as a witness by Mr. Gauthier. Dr. Salcedo was qualified as an expert in forensic psychology. He testified that he and Dr. Richard Richoux had examined Mr. Gauthier twice and that on the basis of those examinations, they had diagnosed him with “impulse control disorder not otherwise specified” and with “mixed personality disorder with antisocial and grandiose features.”
IsWhen Dr. Salcedo was asked whether Mr. Gauthier suffered from bipolar disorder, he said that Mr. Gauthier did not have bipolar disorder. Dr. Salcedo further testified that Mr. Gauthier “knows right from wrong now and I find no evidence that at the time of the alleged offense, or really at anytime in his life, has he suffered from a mental disorder of such severity so as to cripple him psychologically to such a degree that he would not be able to tell right from wrong.” Dr. Salcedo further said that neither the impulse control disorder nor the personality disorder from which Mr. Gauthier suffered would cause him to be unable to distinguish right from wrong. Finally, although Mr. Gauthier’s medial records indicated that bipolar disorder had at one time been considered as a
possible diagnosis for Mr. Gauthier’s problems, Dr. Salcedo and Dr. Richoux did not diagnose Mr. Gauthier with any type of psychotic mental illness.

Gauthier, pp. 2-5, 941 So.2d at 645-46.

ERRORS PATENT

The only error patent found in the review during the original appeal pertained to the defendant’s sentence and was corrected by this Court in its opinion. Furthermore, the original sentence was vacated by the trial court when the defendant was adjudicated and sentenced as a multiple offender. A potential error patent appears in proceedings subsequent to the original trial and sentencing, apparently in connection with the defendant’s multiple bill hearing. Minute entries in the record reflect that on February 2, 2007, with the defendant present, the court ordered a lunacy hearing for February 15, 2007. While competency determinations were made prior to trial, there is no indication in the minute entries which followed, or the transcript of the April 2, 2007 proceeding, that a post-trial competency hearing ever took place or that a separate competency determination was ever made in connection with the multiple billing of the defendant. Also, Rthere are no reports from physicians in the record which indicate the results of any post-sentencing examination.

The minute entry of March 16, 2007 states that “clerk will inform the clerks office which event is scheduled for 3-29-07” with a notation below it that both a lunacy hearing and a multiple bill hearing were set for March 29, 2007. The March 29, 2007 minute entry stated that both the defendant and his counsel appeared that date “for multiple bill hearing” which was then continued on the defense motion. That March 29, 2007 minute entry makes no reference to the lunacy hearing referred to in previous minute entries. At the next setting, April 2, 2007, the multiple offender proceeding occurred, but no further reference is made to anything related to the defendant’s mental capacity.

La.C.Cr.P. art. 642 provides that a defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the court has determined that he has the mental capacity to proceed. Here, the record does not indicate the court’s determination regarding the defendant’s capacity to proceed prior to the multiple bill, although there was a competency hearing prior to trial and the court determined he was competent. Subsequently, the defendant was found competent to represent himself at trial. Furthermore, a review of the April 2, 2007 transcript shows that no mention was made of the defendant’s competency, and there was no objection by defense counsel as to any failure to find him competent to proceed with the multiple offender proceeding. Appellate counsel does not raise the issue 17in an assignment of error, nor does she make any argument regarding the omission. Thus, the defendant has not shown any prejudice.

This Court found no error in the trial court’s findings of competence. Gauthier, p. 11, 941 So.2d at 649. Additionally, this Court stated that:

The face of the record in this case confirms that the trial court judge was correct in determining that Mr. Gauthier was sufficiently articulate and intelligent to knowingly and voluntarily waive his right to counsel. For example, the record contains copies of letters that he wrote that demonstrate that he was quite literate, and the record contains handwritten notes of relevant and considered questions that he wanted to ask the witnesses at his trial.

Id., p. 16, 941 So.2d at 652.

The record is devoid of any indication that the defendant’s condition deteriorated post-trial, and there is no evidence that the defense moved for a lunacy hearing. Thus, the instant case is distinguishable from State v. Lott, 27,849 (La.App. 2 Cir. 4/3/96), 671 So.2d 1182. In Lott, the appellate court remanded to the trial court based on a finding that the trial court erred in failing to hear the defendant’s sanity motion prior to sentencing. On remand, the two doctors who were appointed to examine the defendant filed reports which the trial court considered in affirming the defendant’s sentence, but the trial court held no hearing. The appellate court remanded with an order to hold a contradictory hearing at which the defendant could present evidence. Pursuant to that hearing the defendant was again found to be competent. The defendant then appealed that ^determination of competency, which determination was affirmed. In doing so the appellate court noted that:

Because Louisiana law presumes sanity, the defendant faces the burden of establishing, his incapacity. State v. Brooks, [541 So.2d 801 (La.1989)] supra; State v. Narcisse, [426 So.2d 118 (La.1983)] supra; State v. Bennett, 345 So.2d 1129 (La.1977); State v. Tyler, 607 So.2d 910 (La.App. 2d Cir.1992), writ denied.

Lott, supra, p. 5, 671 So.2d at 1186.

Unlike Lott, as noted previously, this Court has already affirmed findings of the defendant’s competency in the instant case and there is nothing in the record to indicate that there is any reason to believe that the defendant’s competency had deteriorated prior to his multiple billing.

As the Supreme Court stated in State ex rel. Seals v. State, 00-2738, p. 5 (La.10/15/02), 831 So.2d 828, 832:

[W]e note the longstanding precept that a defendant does not have an absolute right to the appointment of a sanity commission simply upon request. State v. Volson, 352 So.2d 1293 (La.1977). A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant’s mental capacity to proceed. Id.; La.Code Crim. Proc. art. 643.

In Seals, the Supreme Court held that the trial court erred in proceeding to trial without making an assessment of 'the defendant’s mental capacity to proceed after ordering a competency evaluation. Prior to trial, the attorney for the defendant in Seals filed a motion to appoint a psychiatrist to determine whether the defendant was competent to stand trial and to determine his sanity at the time of the offense. The trial judge signed the order appointing the psychiatrist, but the defendant was never examined and the court made no determination as to the defendant’s competency.

|flThus, the facts in Lott are very different from those in the instant case, where the- trial court’s determinations as to the defendant’s competency at the time of the offense and his competency to represent himself at trial have already been affirmed by this Court on appeal and there is no evidence of any deterioration in the competence of the defendant between the time of the trial and the multiple billing; and there is no motion in the record challenging the defendant’s competency at the time of the multiple billing.

We find the instant case to be most similar to that of State v. Payne, 586 So.2d 652, 653-654 (La.App. 5 Cir.1991):

Payne was first brought to trial on September 11, 1989. After the jury was selected defense counsel moved for the appointment of a sanity commission, as the defendant was exhibiting bizarre behavior. On September 13, 1989, after hearing testimony of the psychiatrists, the court concluded that Payne was legally insane and unable to assist in his own defense. The judge committed him to East Louisiana State Hospital for treatment and evaluation and declared a mistrial. After a second sanity hearing on April 5, 1990,, the court found the defendant to be sane and mentally competent to stand trial and assist in his own defense. A jury trial was held on September 10, 11 and 12, 1990, resulting in Payne’s conviction of simple burglary, LSA-R.S. 14:62.
Counsel for the appellant alleges that the defendant was incompetent during the sentencing hearing, which took place on December 12,1990.
In State v. Bickham, 404 So.2d 929, 934 (La.1981), the Louisiana Supreme Court stated:
Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant lacks the capacity to understand the proceedings against him or to assist in his defense. C.Cr.P. Art.
641. The defendant bears the burden of establishing that he lacks the capacity to understand the object, nature and consequences of the proceedings against him and that he is unable, in a rational as well as factual manner, to consult with Imcounsel in a meaningful way. State v. Hamilton, 373 So.2d 179 (La.1979).
The issue of present insanity or mental incapacity to proceed may be raised at any stage of the proceedings, even after conviction, as a reason why sentence should not be passed. State v. Clark, 367 So.2d 311 (La.1979); see also State v. Franks, 391 So.2d 1133 (La.1980), cert. den., Franks v. Louisiana, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981). The court must order a mental examination when there are reasonable grounds to doubt defendant’s mental capacity to proceed. LSA-C.Cr.P. art. 642. The trial judge’s determination is entitled to great weight on appeal and will not be set aside absent a clear abuse of discretion. State v. Bickham, supra. The same judge presided over Payne’s first and second trials as well as the sentencing. He was fully aware of Payne’s previous condition and the behavior which occasioned his appointing the original sanity commission. The transcript reveals that the defendant responded appropriately to questioning until the matter of his previous convictions was broached. At that point he became evasive, replying to each question that he did not remember. Defendant’s counsel did not refer to competency until the judge asked her whether she had reviewed the PSI report with her client and whether he understood. She then said:
Your Honor, Mr. Payne in my attempts to explain to him the procedures has looked away, like he’s doing now, he’s looking to see who is coming in. He’s looking at me now. But I’m really — In an abundance of caution I’m going to flat out say — I mean even though the doctors say what they said, I have had considerable difficulty in getting through to Mr. Payne and make him understand what is going on and to get him to even look at the exhibits that the District Attorney gave me to show him. And just to plain old, to cover my rear, I don’t think he understands what is going on.
Defense counsel did not move either orally or in writing for a sanity hearing. As the court pointed out in State v. Bickham, supra, there is a presumption of capacity to proceed. In order to overcome the presumption counsel must present evidence, which was not done in this case. The trial judge apparently observed nothing to suggest that the defendant’s condition had deteriorated during the three months between the Intrial and the sentencing hearing. Our review of the record has not disclosed an abuse of discretion by the trial court in this instance. [Emphasis added.]

In the instant case as in Payne there had already been competency determinations, no evidence in the record of any change in competency, no motion by or on behalf of the defendant challenging competency at the time of the multiple billing, and the same trial judge presided over all of the foregoing.

Therefore, we find no patent error regarding the competency of the defendant at the time of his multiple billing.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the trial court erred when it denied the motion to quash insofar as it was based upon the State’s alleged failure to proceed with the multiple offender hearing in a timely fashion. The defendant in his brief expressly does not aver that a motion to quash could be based on the failure to timely file the bill. The defendant bases his entire argument on the State’s alleged failure to be prepared to go forward with the multiple bill hearing as soon as it filed the multiple bill, which was on June 13, 2005. The defendant argues that the State was dilatory because it did not set the multiple bill hearing sooner than August 26, 2005, and was remiss then as it was unprepared and received a continuance. The defendant notes that he was originally charged in 2003, and further, that the State was aware of his prior conviction years before it filed the multiple bill. Moreover, the multiple bill was not filed until more than two months from his original sentencing had elapsed.

The State in its brief argues that the defendant was on notice at the original sentencing that it would file a multiple bill. The April 4, 2005 minute entry states 11 ¡.that a motion to quash the multiple bill was filed, and the court deferred ruling. The State argues that the delay thereafter did not prejudice the defendant as he was aware of the pending bill. Moreover, the State argues, all the. delays post-August 26, 2005 were a result of Hurricane Katrina and the ensuing flooding which caused a total disruption of the criminal court system.

Both parties in the briefs acknowledge and discuss an opinion rendered by the Louisiana Supreme Court in which the court, overruling prior jurisprudence, held that a multiple offender sentencing could occur after the defendant had been discharged from the original sentence. In that case, State v. Muhammed, 03-2991, pp. 14-15 (La.5/24/04), 875 So.2d 45, 54-55, the court stated:

Although the statute does not prescribe a time within which the bill must be filed, this court has made a determination that the district attorney must file the habitual offender bill “within a reasonable time.” ... The determination of whether the hearing is held within a reasonable time hinges on the facts and circumstances of the specific case. See Toney, [State v. Toney, 02-0992 (La.4/9/03), 842 So.2d 1083] 02-0992 at 5, 842 So.2d at 1086.
As a general matter, the Supreme Court has set forth four factors for courts to consider in determining whether .a defendants right to a speedy trial has been violated. Those factors are the length of the delay, the reasons for the delay, the accused’s assertion of his right to speedy trial, and the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). This court adopted the Barker factors in State v. Reaves, 376 So.2d 136 (La.1979). While these factors are neither definitive nor dispositive in the context of a habitual. offender proceeding, they are instructive.
We acknowledge that the Sixth Amendment, by analogy, may superimpose a limitation; however, a case by case evaluation is warranted to determine whether the proceeding has been promptly concluded. See State ex rel. Williams v. Henderson, 289 So.2d at 77. Similarly, relevant speedy trial considerations may be used to assist 113the court in a determination of whether any delays are unexplained or extraordinarily long. Abusive or vindictive delay should not be tolerated. The longer the State delays filing and is responsible for postponing completion of the habitual offender proceeding, the more likely it is that the delay will be charged against the State.

The defendant in his brief seeks to distinguish Muhammed because in that case the first multiple bill hearing was conducted within four months of the original sentencing. The delays thereafter were caused by successive appeals involving the multiple offender adjudications and sentences. Similarly, he distinguishes State v. Dauzart, 07-15 (La.App. 5 Cir. 5/15/07), 960 So.2d 1079, in which there were multiple appeals and reversals. He argues that the eight-month delay in this case between the conviction and the first setting of the multiple bill hearing was inexcusable and solely attributable to the failure of the State to prepare.

Although the defendant in his brief specifically does not contend that the multiple bill was untimely filed, his argument is largely focused on the delays that occurred between trial and the first setting of the hearing. However, as noted by the State in its brief, at the trial court level defendant’s counsel argued that the delays that occurred after August 2005 were the basis for the motion to quash. Because the entire time period is involved in the question of the timeliness of the hearing, both aspects of case will be discussed.

The first delay post-Hurricane Katrina was approximately six months in duration; on February 6, 2006 a minute entry was generated which stated that sentencing was set for April 28, 2006. Counsel argued to the trial court that there was no indication that it was the State who set the matter for April 28, 2006, and |14that the State had lost track of the case. Thereafter, according to the defense counsel, there had “been some delays, some attributable to the State, some not, based on the fact that Mr. Gauthier was in custody and they were having trouble having him here.” Defense counsel argued that the overall delays of two years from the original sentencing was prejudicial, particularly because the defendant had been released on parole in October 2005, although he was arrested on a new charge which was later refused. Defense counsel stated that the defendant had been placed back on parole the week before.

The assistant district attorney responded to the defense counsel’s argument by citing to Muhammed and noting that the defendant had been placed on notice of the multiple bill within two months of his sentencing. The prosecutor also stated that it had been very difficult to procure the defendant’s presence in court, and that she and her associate had “repeatedly sent out writs” in attempts to do so. The trial court acknowledged that it had been very difficult to procure the defendant’s attendance, and it had personally been involved. The court stated that the multiple bill was “quite timely” filed, and that viewing the timeline overall, the State had not been remiss. The court further acknowledged the problems associated with scheduling cases after Hurricane Katrina; the court stated that “this case was set relatively quickly in terms of trying to get it back on track....”. The court pointed out that, because the defendant was still on parole, he had not finished his sentence. The court therefore denied the motion to quash.

We find no abuse of the trial court’s discretion. The defendant was originally sentenced to five years and was aware at the time he was sentenced to that term that the State would pursue a multiple bill enhancement. The problems caused by Hurricane Katrina resulted in a delay of approximately eighteen months | ^before the multiple offender proceedings were concluded. While the State was responsible for the one continuance that occurred prior to the hurricane, there is only one continuance after the hurricane, on December 15, 2006, which was attributable directly to the State. On February 2, 2007, the defense moved for a continuance, which was granted; notably the defendant was actually present in court that day. It was on the same date that the court ordered a lunacy hearing, which by law caused a stop to the proceedings. Finally, when the defendant was next in court on March 29, 2007, the defense moved for and was granted another continuance. The record indicates that, on every other setting following the hurricane, the defendant was not present in court. While the usual reason the defendant was not present was because he was not transported from a prison facility, he also did not appear after he was released from jail. According to the August 14, 2006 entry, the court ordered that notice be sent to his home address for next hearing and that notice be sent to his parole officer. The defendant did not appear at the next hearing, and alias capias was issued for his arrest.

There is nothing in the record to indicate that the State vindictively delayed filing the multiple bill or that the delays in holding the hearing were attributable to the State. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant argues that he was denied the right to a jury trial at the multiple offender hearing. There is no constitutional right to a jury trial in multiple billing proceedings. State v. Smith, 05-0375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Therefore, there is no merit to this assignment of error.

| ^ASSIGNMENT OF ERROR NUMBER 3

In his third and final assignment of error, the defendant argues that his sentence is excessive. He contends more specifically that his original sentence of five years, which was the maximum for the offense of intimidation of a witness, a violation of La. R.S 14:129.1, was sufficient and should not have been increased. The trial court imposed a term of seven and one-half years on the defendant following his adjudication as a second offender. The maximum the court could have imposed was ten years and the minimum was two and one-half years. La. R.S. 14:129.1; La. R.S. 15:529.1.

In State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to — excessive ■■■ punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973; State v. Batiste, 06-0875 (La.App. 4 Cir. 11712/20/06), 947 So.2d 810; State v. Landry, 03-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

In Batiste, at p. 18, 947 So.2d at 820, this Court further explained:

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, supra; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813: The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

In his brief, the defendant complains that the trial court, when it imposed the original sentence, failed to give any specific reasons for the maximum sentence, stating only that it had reviewed the pre-sentence investigation report and was relying on the La. C.Cr.P. art. 894.1 factors. He argues, therefore, that the court’s statements at the resentencing that it was “already on record that the [sic] the sentencing hearing with my 894.1 and PSI recitation of sentencing factors” and “all those things don’t need to be reiterated,” resulted in an inadequate compliance with _[i5La.C.Cr.P. art. 894.1. Notably, in the original appeal, the defendant made a similar argument regarding his original sentence. This Court rejected it noting that there had been testimony at the sentencing hearing at which both the victim and the defendant testified and that the pre-sentence investigation report reflected his “prior encounters with the criminal justice system,” Gauthier, p. 23, 941 So.2d at 655.

In discussing whether the record adequately provided sufficient facts to support the maximum sentence, the Court noted that the victim’s “testimony revealed an ongoing fear of retaliation from Mr. Gau-thier,” including her belief that he would “wait a while after his release to harm her, ‘because he knows that if anything was [sic] to happen to me right away that they’ll automatically know that it was him.’” Id., 941 So.2d at 655-56. The Court then reviewed the defendant’s own testimony at the hearing, during which he alluded to a thirty-six month contempt sentence for repeated violations of a restraining order. This Court noted that he had suggested that there were no prior incidents of domestic abuse, that the victim was somehow to blame for his attack on her, and that her actions in pursuing the prosecution were based on vindictiveness and not her fear of him. This Court concluded that his testimony made it clear that he was completely unable to comprehend the magnitude of his offense’s impact on the victim. Gauthier, p. 28-24, 941 So.2d at 656. The Court also reviewed the trial court’s stated reasons for sentence, which included the court’s finding that there was an element of potential harm and actual threats; thus there was an undue risk that the defendant would commit another crime if released on probation. The trial court had also stated that it had determined that any sentence below the maximum would “certainly deprecate the seriousness of the offense.” Id. Therefore, after considering the court’s findings, the criminal history set forth in the presen-tence |¶ (¡investigation report, and the testimony at the sentencing hearing, this Court concluded that defendant’s five-year sentence was not excessive.

The defendant is correct that, at the resentencing pursuant to the multiple offender adjudication, the trial court referenced its prior reasons for sentencing. However, prior to imposing the sentence, the court asked if the State had a new rap sheet, to which the prosecutor responded affirmatively. The court called defense counsel up to the bench, and a short unrecorded conference ensued. The inference is that the parties and the court reviewed the rap sheet as immediately thereafter the court imposed sentence. Before the court had even finished doing so, the defense counsel objected to the sentence and orally moved to reconsider on the grounds that his client had only the one prior conviction, for attempted possession of cocaine, for which he received probation. After denying the motion, the court gave its reasons, noting that it did not need to restate those reasons given at the first sentencing proceeding. However, the court added one additional factor to its prior reasons. The court recognized that, since his release on parole from the Department of Corrections, the defendant had been arrested for domestic battery, which charge was refused. Considering that the instant case arose from a domestic abuse situation and that the defendant had been convicted in this case of the responsive charge of simple battery, in addition to the felony charge of intimidation of a witness, the court was certainly justified in enhancing the defendant’s multiple offender sentence upon learning he had been arrested for the same type of crime. This is even more justified when the defendant’s testimony from the original sentencing, in which he revealed a total lack of empathy for the | govictim and understanding of the nature of the crimes associated with domestic abuse. The prior incarceration and parole had not completely dissuaded the defendant from his behavior.

The trial court did not impose a maximum sentence after adjudicating the defendant a second offender. Considering the entire record, the court’s decision to increase the term of years above the term given at the original sentencing does not appear to be an abuse of the court’s discretion. This assignment of error lacks merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

JONES, J., dissents with reasons.

JONES, J.,

dissenting.

fThe majority affirms the sentence imposed by the district court after the district court found the defendant to be a multiple offender. The majority affirms, notwithstanding that there clearly was a motion filed on behalf of the defendant, questioning his ability to proceed.

At the multiple offender hearing, the motion was outstanding, yet the district court proceeded without a resolution of the motion. The motion was not withdrawn by the defendant, nor was the defendant examined by competent medical personnel to determine whether he could proceed. However, counsel for the defendant and the court ignored the motion as if it did not exist.

The actions of counsel, at first blush, clearly appear to offer evidence of ineffective assistance of counsel. And, while this dereliction by defense counsel is not new in Orleans Parish, the persistent tolerance by the district court of ineffective counsel is also a continuance of a pattern long experienced in Orleans Parish.

However, it is the most unfortunate conduct of the majority herein which is most disturbing. Because, for now, the new rule of the majority is that a district court is free to ignore a properly filed motion challenging a defendant’s competence to proceed. The suggestion by the majority is that it is okay to simply exchange a wink and nod between the trial judge and counsel — all to the prejudice | aof the defendant. And, now this behavior may be construed as a waiver by the defendant, or even harmless error.

Thus, for these reasons, I Dissent.

      . Mr. Gauthier was charged in the bill of information with second degree battery, however.

      . Also, the defendant entered a dual plea of not guilty and not guilty by reason of insanity. His sole witness at trial was Dr. Raphael Salcedo, one of the members of the sanity commission. Dr. Salcedo testified that the diagnosis made by the members of the commission was that the defendant suffered from “impulse disorder not otherwise specified. And then mixed personality disorder with antisocial and grandiose features.” He further stated that neither of those conditions "impaired his ability to understand the proceedings against him or his ability to assist his attorney in preparing his defense.” Id.

      . The defendant's trial was held on January 13, 2005, and thus it was actually less than eight months to the first scheduled hearing date of August 26, 2005.

      . There was no mention of the name of the victim.


author:
PATRICIA RIVET MURRAY, Judge. JONES, J.,
      TOBIAS, J., CANNIZZARO, J.,

text:
    Saledad Tranchant, wife of/and Charles TRANCHANT v. STATE of Louisiana, Louisiana State University Health Sciences Center d/b/a Medical Center of Louisiana at New Orleans—University Campus; Thomas B. Ferguson, M.D.; Watts Webb, M.D. and Christy Zolfoghary, M.D.
    No. 2007-CA-1273.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2008.
    Rehearing Denied April 16, 2008.

      Mark R. Wolfe, Wolfe, Begoun & Pick, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    James D. “Buddy” Caldwell, Attorney General, Paul B. Deal, Susan H. Lafaye, Assistant Attorneys General, Louisiana Department of Justice, Litigation Division, New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET . MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR.).
   PATRICIA RIVET MURRAY, Judge.

hln this medical malpractice suit, Sale-dad and Charles Tranchant appeal the judgment dismissing their claim for failure to timely request service of process upon the defendants within ninety days of filing the petition as required by La. R.S. 13:5107 D. For the reasons that follow, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On August 3, 2006, Mr. Tranchant filed a petition for damages asserting a medical malpractice claim against the following five defendants: the State of Louisiana; Louisiana State University Health Sciences Center d/b/a Medical Center of Louisiana at New Orleans — University Campus (“LSUHSC”); Thomas B. Ferguson, M.D.; Watts Webb, M.D.; and Christy Zolfo-ghary, M.D. In the petition, Mr. Tran-chant requested to “hold service at this time on all defendants.” Exactly ninety days after ’filing suit, on November 2, 2006, Mr. Tranchant’s |2counsel mailed a letter and a check to the clerk of court requesting service on all the defendants. On November 8, 2006, the clerk’s office received the request for service of the petition.

On January 29, 2007, the defendants filed a declinatory exception of insufficiency of service of process. In the exception, the defendants asserted that the request for service was untimely and cited La. R.S. 13:5107 and/or La. C.C.P. art. 1201(C) as authority for dismissal of the action.

On March 22, 2007, the trial court rendered a judgment in the defendants’ favor dismissing the suit without prejudice. The trial court found that more than ninety days elapsed between the date the suit was filed and the date on which service was requested. In so finding, the court deemed the date on which the clerk’s office received and filed the request for service to be the date on which service was requested. Although the court noted that there was no bad faith or intent to deceive on Mr. Tranchant’s part, it found that dismissal without prejudice was mandatory under La. R.S. 13:5107 D and/or La. C.C.P. art. 1201(C).

Mr. Tranchant then filed a motion for new trial. The trial court held a hearing on the motion on May 10, 2007. In a judgment dated June 21, 2007, the trial court denied the motion. The trial court also issued written reasons for judgment. Although the court acknowledged that it believed Mr. Tranchant’s counsel mailed the request for service on the ninetieth day, it found that “simply ^placing a request in the mail, ninety days after suit was filed does not constitute a timely request for service as contemplated by LSA-R.S. 13:5107.... [T]he statute contemplates that if the request for service is submitted by mail, it must actually be received by the Clerk by day ninety.”

DISCUSSION

The standard of review of a trial court’s judgment dismissing an action for failure to request service timely is manifest error. Johnson v. Brown, 03-0679, p. 2 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 322. Because the defendants in this case are the state, a state hospital, and state employees, the relevant statutory provision applicable to this case is La. R.S. 13:5107 D, which provides:

(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served'..
(3) When the state, a state agency, or a political subdivision, or any' officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defeh-dants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee Rthereof; however, the effect of interruption of prescription as to other persons shall continue.

La. R.S. 13:5107 D. Section 13:5107 D(2) refers to La. C.C.P. art 1672(C), which provides:

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), upon contradictory motion of that person or any party or upon the court’s own motion, 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.

The statutory mandate set forth in La. R.S. 13:5107 D that service must be requested within the ninety-day period is subject to only two exceptions: (i) when a defendant expressly waives service by “any written waiver,” La. R.S. 13:5107 D(l); and (ii) when “good cause is shown why service could not be requested,” La. C.C.P. art. 1672(C). Given the significance of proper citation, the requirements of La. R.S. 13:5107 D and the good cause exception in La. C.C.P. art. 1672(C) are strictly construed. See Johnson, 03-0679 at p. 10, 851 So.2d at 326.

Mr. Tranchant does not contend that there was an express waiver; rather, he contends that he complied with the plain and unambiguous language of La. R.S. 13:5107 D(l) by timely mailing a request for service within the ninety day period. He contends that this statute does not require the request be received. Alternatively, he contends that the good cause exception in La. C.C.P. art. 1672(C) applies.

The initial issue, which we find disposi-tive, is whether Mr. Tranchant’s counsel’s letter dated and mailed on the ninetieth day complied with the requirement of La. R.S. 13:5107 D(l) that service be requested within ninety days of filing suit. Stated otherwise, the issue is whether, as the defendants contend and |Bthe trial court held, a request for service must be received by the ninetieth day in order to constitute a valid service request under La. R.S. 13:5107 D(l).

A similar issue was addressed in Rollins v. City of Zachary, 00-0160 (La.App. 1 Cir. 2/16/01), 808 So.2d 439. Construing La. R.S. 13:5107 D as imposing a receipt requirement, the court reasoned as follows:

Revised Statute 13:5107. D does not provide any specific method for how service should be requested, nor does it provide when a “request” is deemed to be made. However, we find that merely attesting that a request was placed in the regular U.S. Mail is not sufficient to establish that a timely “request for service” was made. Instead, we find that a valid and effective “request,” asking the Clerk of Court to perfect service, also requires the receipt of the request by the Clerk of Court’s office. We note that LSA-C.C.P. art. 253 provides, in part, “All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered, to the clerk of the court for such purpose.”

Rollins, 00-0160 at p. 5, 808 So.2d at 443 (emphasis in original).

The holding in Rollins that receipt of the request is required is premised on the principles governing the filing of documents with the court, which are codified in La. C.C.P. art. 253. • Relying on these principles governing the filing of pleadings, the court in Rollins reasoned that it was the plaintiffs choice to send the request for service by ordinary mail and that “it is incumbent on a party sending a request by ordinary mail to ensure or verify that the Clerk of Court received the ^request.” Rollins, 00-0160 at p. 6, 808 So.2d at 444. However, reliance on the principles governing the filing of pleadings to determine whether a request for service has been timely made is misplaced. Nothing in La. R.S. 13:5107 D requires that a request for service be “filed with the court.” Wilborn v. Vermillion Parish Police Jury, 04-1074 (La.7/2/04), 877 So.2d 985 (emphasis in the original). As the Louisiana Supreme Court found in Wilbom, the requirements of the fax-filing statute, La. R.S. 13:850, did not apply to a request for service under La. R.S. 13:5107 D because the latter statute does not require that the request for service be filed. For the same reason, we find that the general requirements for filing of pleadings with the court codified in La. C.C.P. art. 253, including the requirement of receipt, do not apply to a request for service under La. R.S. 13:5107 D. We thus find, as Mr. Tranchant contends, that it was legal error for the trial court to impose a receipt requirement.

In the instant case, the trial court expressly stated that it did not doubt that Mr. Tranchant’s counsel mailed the request for service on the ninetieth day after |7suit was filed. Once the trial court found that the request for service had been timely mailed, it was an error of law for the court to conclude that Mr. Tran-chant’s request was untimely under La. R.S. 13:5107 D and to dismiss the action under La. C.C. art. 1472(C). Considering the harsh consequence of a dismissal of a suit against state defendants for failure to timely request service under La. R.S. 13:5107 D coupled with the policy favoring maintaining actions, we reverse the trial court’s judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

JONES, J., Concurs in Part and Dissents in Part with Reasons.

TOBIAS, J., concurs.

CANNIZZARO, J., dissents and assigns reasons.

JONES, J.,

concurring in part and dissenting in part.

11While I agree with the majority that the district court commits legal error by holding that the statutes at issue requires both the request for service of process and the receipt of that request, I cannot agree that the judgment must be reversed.

The district court finds of record that counsel for the petitioner timely requested service of process by mail. However, there is absolutely NOTHING of record to support that finding of fact. And, while counsel represents that he timely requested service, the record is devoid of any evidence thereof. Thus, for this reason, I would affirm the judgment of the district court, and respectfully dissent.

TOBIAS, J.,

Concurring.

|A respectfully concur.

The issue before this court is not really one of manifest error but rather one of law. Issues of law are decided de novo by this court.

I do not find the dissent of Judge Can-nizzaro wrong per se for Wilborn v. Vermillion Parish Police Jury, 04-1074 (La.7/2/04), 877 So.2d 985, can legitimately be read to state that the request for service must not only be made within 90 days but must also be received within that 90 days. That is, in Wilbom, the plaintiff facsimile transmitted his request for service on the ninetieth day and the facsimile transmittal was actually received by the clerk of court on that ninetieth day. No requirement exists that the request for service be filed into the court record; even an oral request if established by a party would be an adequate request. La. R.S. 13:5107 has no requirement that the request for service be received on that ninetieth day. But one can reasonably interpret the statutory requirement to mean transmitted and received by the clerk by the ninetieth day.

The record reflects a copy of the letter request for service dated 2 November 2006 which is attached to the appellants brief to the trial court. As a pure matter of | ¡Jaw, it is not properly a part of the record on appeal because it is not a pleading as defined by La. C.C.P. art. 852 and is not attested to by affidavit. In this respect one can agree with the dissent of Judge Jones. Nevertheless, counsel for the ap-pellees at oral argument in this court did not dispute that counsel for the appellants requested service by the letter of 2 November 2006, although counsel did not concede emphatically that the letter was mailed on 2 November 2006. The trial court affirmatively stated and believed that counsel for the appellants mailed his request for service on the date of the letter.

That service may have been effected upon the appellees improperly (appellants did not request or obtain service of process upon the proper agents for service of the appellees) is not presently before the court and thus Johnson v. University Medical Center in Lafayette, 07-1683 (La.11/21/07), 968 So.2d 724, is presently not an issue for us to decide

But if Myles v. Turner, 612 So.2d 32 (La.1993), is valid law, then one can reasonably conclude that the result we reach herein is also a reasonable conclusion. (Other jurisprudential examples exist.)

Although neither party raises the constitutional issue, I note that La. Const. Art. X, Section 12, provides in pertinent part:

(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.

Beginning with Segura v. Louisiana Architects Selection Bd., 362 So.2d 498 (La. 1978), and followed by a long line of cases, the courts have made it clear that the state and its political subdivisions cannot be placed in a better position than other persons in matters involving torts and contracts. La. R.S. 13:5107 places the state and its employees in an advantageous position in litigation matters, including | smedical malpractice. Our decision today levels that playing field somewhat to conform to the constitutional mandate.

I leave the matter to the Supreme Court of Louisiana to determine whether they read the law to require that the request and receipt of the request for service must be by the ninetieth day.

CANNIZZARO, J.,

Dissenting.

Li respectfully dissent from the majority’s reversal of the trial court judgment dismissing without prejudice the medical malpractice suit instituted by the plaintiffs, Saledad and Charles Tranchant.

It is undisputed, pursuant to La. R.S. 13:5107(D), a request for service of citation can be made with the authority appointed to effectuate service of process (i.e., clerk of court, sheriffs office) by filing the request in person or via facsimile (La. R.S. 13:850) within the ninety-day statutory delay. However, as correctly noted by the majority, La. R.S. 13:5107(D) does not mandate that the request for service be formally filed within the delay. In drafting La. R.S. 13:5107(D), the Louisiana Legislature clearly anticipated the request for service could be made in a manner other than in writing. As evidence, while the statute expressly provides the waiver of the service requirements be written, it does not require such with respect to the provision of notice. Accordingly, notice of service of citation may be made pursuant to a telephone call. In any event, whether the request for service is made through formal filing in person, facsimile filing, or by telephone, in each instance, |2the authority appointed to effectuate service must receive notice within the ninety-day delay for compliance under La. R.S. 13:5107(D).

With this observation, in order for the application of La. R.S. 13:5107(D) to prevent potential abuse or fraudulent practice, it is reasonable to conclude that the clerk of court or sheriffs office executing service would have to receive actual notice within the ninety-day requirement. Blacks Law Dictionary, 8th Edition (1999) defines “actual notice” as “... notice expressly and actually given, and brought home to the party directly ... [Emphasis added.].” In the instant matter, while all parties concede counsel for the plaintiffs transmitted the request via the postal service within the ninety-day period, the clerk did not. actually receive notice of the request within the specified delay. If the mere act of mailing the notice within the ninety-day period would in and of itself constitute compliance under La. R.S. 13:5107(D), the Legislature would have expressly provided for such. See e.g., Supreme Court Rule VII, Sec. 9; Courts of Appeal Rule 2-13.

This position does not contravene the Louisiana Supreme Court’s ruling in Wilborn v. Vermillion Parish Police Jury, 04-1074 (La.7/2/04), 877 So.2d 985. In Wilbom, the trial court concluded the plaintiffs’ notice of service of their citation was satisfied under La. R.S. 13:5107(D), although they did not fully comply with the facsimile filing requirements set forth in La. R.S. 13:850. Based on the fáilure to comply with the facsimile filing requirements, the court of appeal reversed the trial court’s ruling and dismissed the plaintiffs’ action. The Supreme Court reversed the appellate court and reinstated the lower court ruling finding the notice of citation to be compliant with La. R.S. 13:5107(D), regardless of whether the plaintiffs satisfied the requirements of La. R.S. 13:850. The trial court and Supreme Court were cognizant that, unlike in the instant case, the clerk of court received actual notice of the request of service within the ninety-day period. Thus, I find misplaced the majority’s reliance on Wil-bom for the proposition that, like the filing requirement, receipt of the notice within the ninety-day delay is not statutorily mandated for service of a citation under La. R.S. 13:5107(D).

As such, I can not say the trial court erred in dismissing the plaintiffs’ action.

      . For ease of reference, we refer to the plaintiffs, Mr. and Mrs. Tranchant, simply as “Mr. Tranchant.”

      . The underlying malpractice claim stems from the coronary bypass surgery Mr. Tran-chant underwent at LSUHSC on June 17, 2004. The medical review panel proceeding in this matter was dismissed on June 9, 2006. There is no dispute regarding the timeliness of the filing of the petition.

      . The ninetieth day was actually Wednesday, November 1, 2006. However, pursuant to La. R.S. 1:55, November 1, All Saints’ Day, is a legal holiday. For this reason, the ninetieth day for purposes of determining the timeliness of the request for service was Thursday, November 2, 2006.

      .The proper procedural device for objecting to late service is a motion for involuntary dismissal under La. C.C.P. art. 1672(C), not a declinatory exception. Filson v. Windsor Court Hotel, 04-2893, p. 4 (La.6/29/05), 907 So.2d 723, 727.

      . The hospital and individual doctors also asserted in the exception that service was requested as to them on a non-agent' — an attorney who was not their agent for service of process. Given the trial court’s ruling that service was not timely requested, this issue was not reached.

      . As the defendants point out, the proper procedural device was really a motion to reconsider, not a motion for new trial.

      . The court noted that imposing a receipt requirement "is necessary to prevent possible fraud by back dating a letter to a date within the ninety day term, when the letter does not reach the Clerk of Court until after the ninety day term.”

      .La. R.S. 13:5107 D is similar to La. C.C.P. art. 1201, a general law requiring service upon a defendant. However, La. R.S. 13:5107 D is a special law that applies to the state and state agencies; this special law thus controls in this case over the general law, La. C.C.P. art. 1201. See Cali v. Cory, 04-1227 (La.App. 4 Cir. 11/03/04), 886 So.2d 648, writ denied, 04-3155 (La.02/25/05), 894 So.2d 1153.

      . In Rollins, a personal injury suit was filed on May 4, 1999, against the tortfeasor, the tortfeasor’s insurer, and the City of Zachary. The plaintiff requested that service on the defendants be held. On July 29, 1999 (within the ninety day period), the plaintiff mailed a request for service along with a forma pau-peris application to the clerk’s office. Three days later, the attorney for the tortfeasor and his insurer contacted plaintiff's counsel and requested an extension of time to plead. This led the plaintiff to believe that service had been perfected. However, in August 1999, the tortfeasor and his insurer filed a motion for involuntary dismissal for failure to timely request service under La. C.C.P. art. 1201 C. Plaintiff’s counsel then learned that the July 29th letter requesting service had never been received by the clerk’s office and thus hand delivered a request for service. When the City was served/it responded with a motion to dismiss for failure to timely request service under La. R.S. 13:5107 D. Although the plaintiff did not oppose the motion to dismiss filed by the tortfeasor and his insurer, he opposed the City's motion. In support, the plaintiff introduced an affidavit of his counsel's law clerk who attested that he placed the July 29th -letter requesting service in the United States mail within the ninety day period. Finding that the term “request” as used in La. R.S. 13:5107 D contemplated more than depositing a letter in the mail directed to the clerk of court, the trial court granted the City’s motion. Agreeing with the trial court, the court of appeal affirmed.

      . The Rollins court noted there were three steps the plaintiff could have taken to ensure a valid and effective request was made: (1) sent the request by certified mail-return receipt requested; (2) hand delivered the request; or (3) placed a telephone call to the clerk of court’s office before the expiration of the ninety day period to verify receipt of the request. Rollins, 00-0160 at p. 6, 808 So.2d at 443.

      . La. R.S. 13:850 provides in pertinent part as follows:
      A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and, a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
      B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
      (1) The original signed document.
      (2) The applicable filing fee, if any.
      (3) A transmission fee of five dollars.
      C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect.

      .The actual envelope in which the request for service was mailed is not in the record. The evidence supporting the trial court’s factual finding that the letter was mailed on the ninetieth day consists of the date of the letter coupled with Mr. Tranchant’s counsel’s assertions in pleadings, which he signed as an officer of the court, that he mailed the letter on that same date. Although six calendar days elapsed between the date counsel asserts that he mailed the request and the date it was received, these events occurred slightly over a year post-Hurricane Katrina, and the mail was not yet back to normal. We also note that the date that counsel asserts he mailed the letter requesting service — November 2, 2006 — was a Thursday; November 4th and 5th were a Saturday and Sunday (the weekend); and November 7th was Election Day. The letter requesting service and payment for same were received on November 8th. Given these particular circumstances, we cannot say the trial court's factual determination that the request for service was mailed on November 2nd was manifestly erroneous.

      . The harsh consequence of dismissing an action against state defendants is that La. R.S.13:5107 D(3) provides that prescription is not interrupted as to the state defendants when a suit is dismissed for failure to timely request service.

      . Counsel for the State has filed a supplemental brief raising an issue regarding the adequacy of service and citing in support Johnson v. University Medical Center in Lafayette, 07-1683 (La. 11/21/07), 968 So.2d 724. The trial court did not reach this issue. Therefore, the issue is not before us.

      . Supreme Court Rule VII, Sec. 9 provides; Briefs sent through the mail shall be deemed timely filed if mailed on or before the due date. If the brief is received by mail on the first legal day following the expiration of the delay, there shall be a rebuttable presumption that it was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof. For the purpose of this rule, the term "by mail” applies only to the United States Postal Service.

      . Courts of Appeal Rule 2-13 provides:
      All papers to be filed in a Court of Appeal shall be filed with the clerk. Filing may be accomplished by delivery or by mail addressed to the clerk. The filing of such papers shall be deemed timely when the papers are mailed on or before the due date. If the papers are received by mail on the first legal day following the expiration of the delay, there shall be a rebuttable presumption that they were timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or cancellation stamp or by official receipt or certificate from the United States Postal Service or bonafide commercial mail services, such as Federal Express or United Parcel Service, made at the time of mailing which indicates the date thereof. Any other dated stamp, such as a private commercial mail meter stamp, shall not be used to establish timeliness.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Antwaine WILLIAMS, Sr., Appellant.
    No. 42,969-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

L Defendant Antwaine Williams, Sr. was charged by bill of information with distribution of Schedule II controlled dangerous substance, cocaine, a violation of La. R.S. 40:967(A). The trial court imposed a sentence of 10 years of imprisonment at hard labor, two without benefit of probation, parole or suspension of sentence. The defendant now appeals, claiming that his sentence is excessive. Finding no reversible error, we affirm the trial court’s decision.

FACTS

On September 13, 2006, the defendant sold two off-white rocks to a confidential informant for $40.00 as part of an undercover drug buy conducted by the Webster Parish Sheriffs Department. This transaction was captured on audio and video. Crime lab tests later determined the rocks to be cocaine.

The state charged the defendant with the offense of Distribution Of Schedule II controlled dangerous substance, namely cocaine, contrary to La. R.S. 40:967(A). As part of a plea bargain agreement, the state agreed to a sentencing cap of 15 years and not to charge the defendant as a habitual offender. The defendant pled guilty as charged as per the plea bargain agreement.

After reviewing the pre-sentence investigation report, the trial court sentenced the defendant to 10 years of imprisonment at hard labor, the first two of which were imposed without the benefit of probation, parole or suspension of sentence. The defendant filed a motion to reconsider the ^sentence, which was subsequently denied by the trial court. The defendant now appeals.

DISCUSSION

In his assignment of error, the defendant contends that a 10-year sentence, two without benefit of probation, parole, or suspension of sentence, is excessive in this case.

The 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. La. C. Cr. P. art. 881.2(A)(2). Jurisprudence similarly provides that where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Bailey, 40,098 (La.App.2d Cir.10/26/05), 914 So.2d 116, writ denied, 2006-0462 (La.9/22/06), 937 So.2d 377; State v. Smith, 39,719 (La.App.2d Cir.5/11/05), 903 So.2d 598. See also State v. Burford, 39,801 (La.App.2d Cir.6/29/05), 907 So.2d 873.

The sentence imposed can neither be considered grossly disproportionate to the severity of the offense nor shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123. In the present case, the sentence is only one-third of what would have been the defendant’s |smaximum sentence exposure under the statute had the state not agreed to the sentencing cap.

The trial court in the present case considered the defendant’s personal history, his criminal background and the circumstances of the case in determining the proper sentence under the plea agreement. The terms and conditions of the plea agreement were clearly set forth in the record at the time the plea was entered. The trial court properly advised the defendant of the minimum and maximum sentences that he could receive, the sentencing range under his plea agreement, and his constitutional rights. The defendant, who was represented by counsel, clearly expressed his understanding and voluntarily entered his plea pursuant to the plea agreement. His sentence of ten years is within the terms of the plea agreement and is not appealable.

If we were to examine the sentence for constitutional excessiveness, no error would be found. The defendant, a third felony offender with an extensive criminal history, obtained a substantial benefit from his plea bargain, which included that he would not be charged as a habitual offender. The sentence imposed is lawful and well below the 15-year sentencing cap.

Therefore, the defendant’s argument is without merit.

CONCLUSION

For the reasons set forth above, the conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    Linda RICHARDSON, Plaintiff-Appellee v. Sonia AMOS and Direct General Insurance Company, Defendant-Appellant.
    No. 42,948-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Gregory S. Moore, for Appellant.
    James R. Pierre, Monroe, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   WILLIAMS, J.

| t Plaintiff, Linda Richardson, filed a lawsuit against defendants, Sonia Amos and Direct General Insurance Company, seeking damages for injuries she sustained in an automobile accident. Following a bench trial, the trial court entered judgment in favor of the plaintiff. The court later amended its judgment and awarded plaintiff general damages in the amount of $12,250 plus special damages and costs. For the reasons set forth herein, we reverse the trial court’s judgment and remand for a new trial.

FACTS

This case arises out of an automobile accident involving three vehicles which occurred on U.S. Highway 165 in Monroe, Louisiana on January 14, 2006. A vehicle driven by defendant, Sonia Amos (“Amos”), collided with the rear of a vehicle driven by Angela Turner (“Turner”). In turn, Turner’s vehicle collided with the rear of plaintiffs vehicle.

On April 10, 2006, plaintiff filed suit against Amos and her automobile insurer, Direct General Insurance Company (“Direct General”), for damages arising out of the accident. Direct General responded, denying liability and alleging that plaintiff was at fault because her vehicle had stalled and had come “to a complete stop blocking the northbound lane of travel ... causing the accident at issue.” A bench trial was held on January 22, 2007.

During the trial, plaintiff testified that her vehicle was in motion when it was struck from behind. She stated that her vehicle became | inoperable following the accident. Plaintiff also testified that she had no physical ailments prior to the accident, but after the accident, she was unable to perform tasks involving lifting, bending and stooping. Consequently, she could no longer perform many of the duties required of her occupation as a housekeeper.

Dr. Gregory Mayfield, a chiropractor, testified with regard to the extent of plaintiffs injuries. He stated that plaintiff came to his clinic on February 14, 2006, stating that she had been involved in a motor vehicle accident. At that time, plaintiff complained of headaches and pain in her neck, mid-back and lower back. Dr. Mayfield treated plaintiff for her symptoms until April 17, 2006.

Richard Darrell, a property damage appraiser for Direct Adjusting Company, testified that he inspected plaintiffs vehicle on February 1, 2006. By that time, the vehicle had been towed to a salvage yard located in Jackson, Mississippi. Darrell testified that he observed no “recent” collision damage on plaintiffs vehicle. Darrell stated that he observed a “small dent ... about the size of a quarter under the left taillight.” He also noticed that paint on the rear of the vehicle was “flaking” and “peeling” and the right taillight was broken. He stated the damage to plaintiffs vehicle contained rust, an indication that the damage “had been on there for quite a while.”

Defendants attempted to call Turner to testify with regard to the accident. Plaintiffs counsel objected, arguing that because defendants did not respond to interrogatories, plaintiff was not aware that Turner would be called to testify. The court sustained plaintiffs objection, but stated that it |swouId allow defendants to offer Turner’s testimony under an offer of proof. The judge then left the courtroom and allowed the attorneys to take Turner’s testimony.

On May 4, 2007, the trial court rendered judgment in favor of plaintiff, finding that Amos was solely at fault in causing the accident. The court specifically rejected defendants’ contention that plaintiffs vehicle had stalled and was stationary at the time of the accident. The court concluded that defendants were liable to plaintiff “for all personal and property damages sustained as a result thereof.” However, no damages were awarded in the original judgment. Apparently, on its own motion, the court rendered an amended judgment and awarded plaintiff general damages in the amount of $12,250 and “all special damages incurred as a result of this accident.”

DISCUSSION

Exclusion of Testimony

Defendants contend the trial court erred in excluding Angela Turner’s testimony as a sanction for its failure to answer plaintiffs interrogatories. Defendants argue that Turner’s proposed testimony was not a “surprise” to plaintiff and that plaintiff should have filed a motion to compel discovery, rather than, waiting until the day of trial to object to the defense’s failure to answer interrogatories.

LSA-C.C.P. art. 1473 provides that if a party fails to answer interrogatories, the court in which the action is pending may, on motion, make such orders with regard to the failure as are just, and may impose 14certain sanctions authorized under LSA-C.C.P. art. 1471, including prohibiting a party from introducing designated matters into evidence. Varnell v. Louisiana Tech University, 28,266 (La. App. 2d Cir.4/3/96), 671 So.2d 1238; Harris v. Burch, 561 So.2d 931 (La.App. 2d Cir.1990). Whether or not to allow the testimony of witnesses who were not identified in response to interrogatories is within the discretion of the trial court and its decision will be reversed only if an abuse of discretion is discovered on appeal. Id.; Buxton v. Evans, 478 So.2d 736 (La.App. 3d Cir.1985).

Whether a sanction is substantially justified will depend on the circumstances of each individual case. Varnell, supra; Fuge v. Uiterwyk, 576 So.2d 557 (La.App. 4th Cir.1991), writ denied, 578 So.2d 937 (La.1991). The trial court’s discretionary authority to disallow testimony at trial, based on -a party’s failure to answer interrogatories, should be exercised only when the ends of justice dictate exclusion of the witness. Varnell, supra; Morrison v. J.A. Jones Construction Co., Inc., 537 So.2d 360 (La.App. 4th Cir.1988). Among the factors to be considered in imposing sanctions for a party’s failure to comply with a discovery request are the prejudice to the other party and the wilfulness of the noncomplying party. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199; Varnell, supra.

In Vamell, supra, the defendant sought to call five witnesses to testify at trial. The plaintiffs objected to the witnesses’ testimony on the grounds that the defendant did not provide the names and addresses of these witnesses until six days before the trial. The trial court sustained the [¿plaintiffs objection. This court reversed, stating:

[T]he plaintiffs had an opportunity to learn the nature of each witness’ testimony prior to trial and to prepare for cross examination^] Thus, there is no indication that the plaintiffs would have been unduly prejudiced by allowing those witnesses to testify.
After reviewing the record, we do not find evidence that defendants’ belated response to interrogatories was wilful.... After propounding interrogatories, the plaintiffs did not further contact defendants regarding witness information and did not fíle a motion to compel discovery.
The record does not reflect that the trial court considered the prejudicial effect of each witness to the plaintiffs’ [case] before excluding the testimony of all defense witnesses. Nor does it appear that the trial court considered whether the defendants’ delayed response to interrogatories was wilful or negligent. The trial court’s discretionary authority to disallow testimony at trial should be exercised only when the ends of justice dictate exclusion of the witness. Here, there is evidence that the plaintiffs were able to learn the nature of the excluded witnesses’ testimony prior to trial. The plaintiffs did not find it necessary to file a motion for an order to compel discovery. Moreover, the trial court’s sanction effectively prevented the defendants from presenting their case.

Id. at 1241-42.

Initially, we note that, unlike the plaintiffs in Vamell, supra, plaintiff in the instant case neither deposed Turner nor recorded her statement. Moreover, there is no indication that defendants informed plaintiff by letter |fithat Turner was a potential witness. Nevertheless, we reject the argument that plaintiff was “surprised” that defendants would call Turner as a witness. Plaintiff was aware that Turner was the driver of the third vehicle involved in the accident. It is clear from the allegations contained in plaintiffs petition for damages that Amos struck Turner’s vehicle and Turner, in turn, struck plaintiffs vehicle. Plaintiff was in no way denied the opportunity to obtain a statement or depose Turner prior to trial.

Additionally, there is no indication that defendants’ failure to respond to plaintiffs interrogatories was wilful or negligent. The record does not reflect that plaintiff made any attempt to contact defendants to obtain a list of potential witnesses. Plaintiff merely propounded interrogatories without any further contact with defendants with regard to witness information. With a little effort, plaintiff could have learned the nature of Turner’s proposed testimony prior to trial.

We also note that plaintiff did not file a motion to compel discovery. Plaintiffs’ failure to file a motion to compel is another factor which is weighed in evaluating the reasonableness of the trial court’s imposition of discovery sanctions. Varnell, supra, citing Wall v. Alleman, 488 So.2d 1180 (La.App. 2d Cir.1986). In Vamell, supra, this court stated, “Here, the plaintiffs were aware that their interrogatories had not been answered, a [^circumstance which makes plaintiffs’ failure to move for an order compelling discovery all the more puzzling.” Id. at 1241.

Moreover, this record does not demonstrate that the trial court considered any prejudicial effect of Turner’s testimony to plaintiffs case before it excluded Turner as a witness. Likewise, there was no inquiry by the court with regard to whether defendants’ failure to respond to interrogatories was wilful or negligent. In granting plaintiffs motion to exclude Turner’s testimony, the trial court stated:

[A]s it relates to the Court’s ruling about the testimony of Ms. Turner, the court finds that there were Interrogatories that were propounded and specifically requesting the names of persons who are going to present evidence how each testify at the trial [sic]. The court finds that it was done back in April along with the Petition that was filed and that information was not provided or presented. When I speak of witnesses, I am talking to persons who were not going to be parties to the suit. More specifically, Ms. Linda Richardson and Ms. Sonia Amos and the testimony of Ms. Turner will not be allowed at that trial on today.

As we stated in Vamell, supra, the trial court’s discretionary authority to disallow testimony at trial should be exercised only when, the ends of justice dictate exclusion of the witness. Under the facts of this case, we find that the ends of justice did not dictate the exclusion of Turner’s testimony. The trial court’s sanction of excluding the testimony of one of the drivers involved in the accident, in effect, prevented defendants from presenting their case. We find that the trial court abused its discretion in excluding the witness’ testimony. Accordingly, we reverse the trial court’s ruling and remand this case for a new trial. Because we remand for a new trial, we decline to address the appellant’s remaining assignments of error.

^CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed and this case is remanded for a new trial. The costs of this appeal are assessed one-half to defendants,. Sonia Amos and Direct General, and one-half to plaintiff, Linda Richardson.

REVERSED AND REMANDED.

      . Officer D.A. Emfimger of the Monroe Police Department responded to the accident. He was subpoenaed to testify at trial but did not appear. Amos did not appear, so the matter proceeded to trial with Direct General as the sole defendant present.

      . It was shown that the plaintiffs had taken the recorded statement of one of the witnesses and had deposed and subpoenaed another witness prior to trial. It was also shown that the plaintiffs had received a report from another witness and had been informed by letter of the existence of the other potential witness.

      . Direct General was served with the requests for discovery when it was served with the pleadings. However, according to statements made by defense counsel, the discovery requests were apparently not forwarded to him by his client when it forwarded a copy of the petition for damages.

      . It is interesting to note that plaintiff did not initially answer requests for discovery propounded by defendants. It was only after defendants filed a motion to compel discovery that plaintiff answered defendants' discovery requests.