author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Garry ZEIGLER, Sr., Appellant.
    No. 41,617-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    Garry Zeigler, Sr., Pro se.
    Jerry L. Jones, District Attorney, Rob-, ert N. Anderson, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

I,The defendant, Garry Zeigler, Sr., was convicted of distribution of cocaine. After remand from this court, defendant was sentenced as a third felony offender to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendant now appeals the sentence. For the reasons that follow, we vacate the defendant’s sentence and remand for re-sentencing in accordance with the instructions provided herein.

FACTS

A jury convicted Zeigler of distribution of cocaine, and the facts of the case are set out in this court’s previous opinion, wherein it affirmed the conviction. See State v. Zeigler, 40,673 (La.App.2d Cir.01/25/06), 920 So.2d 949. The state filed a multiple bill alleging that defendant should be sentenced as a fourth felony offender based upon the following prior felony convictions: (1) two counts of simple burglary on June 22, 1977, in Docket No. 37,702; (2) distribution of cocaine, a Schedule II CDS, on January 16, 1992, in Docket No. 91F0877; and, (3) possession of cocaine, a Schedule II CDS, on January 26, 2000, in Docket No. 98F1617. The trial court refused to consider the 1977 conviction for simple burglary two counts on the ground that it could not insure defendant’s due process rights had been protected in the absence of a transcript of the guilty plea colloquy. In accordance with La. R.S. 15:529.1(A)(l)(b)(i), the trial court sentenced defendant as a third felony offender to 25 years at hard labor, with credit for time served, without benefit of parole, probation or suspension of sentence.

The state argued on appeal that the trial court erred in refusing to consider the 1977 simple burglary convictions and in sentencing the | ^defendant as a fourth felony offender to life imprisonment. This court deemed the issue to be moot because it found that the trial court committed an error patent when it did not sentence defendant under La. R.S. 15:529.1(A)(l)(b)(ii), which states the following:

If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of the commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. (Emphasis added.)

State v. Zeigler, 920 So.2d at 957. This court found that defendant should have been sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence under La. R.S. 15:529.1(A)(1)(b)(ii) on the basis of the present conviction for distribution of cocaine and two prior felony convictions that were for violations of the Uniform Controlled Dangerous Substances Law and punishable by 10 years or more of imprisonment. State v. Zeigler, 920 So.2d at 957-958. In so doing, this court noted that defendant’s two prior felony convictions were the 1991 conviction for distribution of cocaine and a conviction for possession of cocaine with intent to distribute committed on October 15, 1998. State v. Zeigler, supra. Both distribution of cocaine and possession of cocaine with the intent to distribute are offenses under the Uniform Controlled Dangerous Substances Law that are punishable by 10 years or more of imprisonment. La. R.S. 40:967(B)(4)(b). Thus, this court remanded the |3case to the trial court to re-sentence defendant to life imprisonment without benefit of parole, probation, or suspension of sentence in accordance with La. R.S. 15:529.1(A)(l)(b)(ii). The trial court subsequently sentenced defendant pursuant to this court’s opinion.

DISCUSSION

Excessive Sentence

The defendant now argues that his sentence of life imprisonment without benefit of parole, probation, or suspension of sentence under La. R.S. 15:529.1(A)(l)(b)(ii) is illegal because not all three convictions under the Uniform Controlled Dangerous Substances Law were for offenses punishable by 10 years or more of imprisonment. Specifically, defendant alleges that he did not plead guilty to possession of cocaine with intent to distribute in 2000. Although he was originally charged with the offense of possession of cocaine with the intent to distribute, defendant alleges that he actually pled guilty to the lesser included offense of possession of cocaine. Under La. R.S. 40:967(C)(2), possession of cocaine, as a Schedule II controlled dangerous substance, is punishable by no more than 5 years imprisonment with or without hard labor. Defendant claims that the trial court’s original sentence of 25 years at hard labor without benefit of probation or suspension of sentence under La. R.S. 15:529.1(A)(l)(b)(i) should be reinstated.

The habitual offender bill of information filed by the state indicates that defendant was convicted of possession of cocaine on January 26, 2000, in Docket# 98F1617. It does not indicate that the defendant was convicted |4of possession of cocaine with intent to distribute. The pre-sentence investigation report indicates that defendant was originally charged with possession of cocaine with intent to distribute, but that defendant actually pleaded guilty to possession of cocaine and was sentenced to 5 years. In the original sentencing hearing, the trial court noted that defendant had been charged with possession of cocaine with intent to distribute, but that defendant pleaded guilty to simple possession of cocaine. The court minutes from Ouachita Parish Docket No. 98F-1617 indicate that the defendant pled guilty to possession of cocaine. A document from the Louisiana Department of Public Safety and Corrections indicates that the defendant was convicted of possession of cocaine. Also, Zeigler’s rap sheet indicates that he was charged with possession of cocaine with intent to distribute, but that he pled guilty to the lesser offense of possession of cocaine. Thus, it appears that he was convicted of possession of cocaine instead of possession of cocaine with intent to distribute. Because possession of cocaine is not an offense punishable by imprisonment for ten years or more, the sentence under La. R.S. 15:529.1(A)(l)(b)(ii) is inappropriate in this case because not all three of defendant’s offenses under the Uniform Controlled Dangerous Substances Law were punishable by imprisonment of ten years or more.

Therefore, this assignment has merit.

Habitual Offender Sentencing

Because the defendant should not have been sentenced to life imprisonment without benefit of parole, probation, or suspension of | ¡¡sentence as a third felony offender under La. R.S. 15:529.1(A)(l)(b)(ii), this court must now consider the state’s original argument that the trial court erred in refusing to consider defendant’s 1977 conviction for simple burglary two counts and sentence him as a fourth felony offender.

After the defendant’s conviction for distribution of cocaine, the state filed a bill of information charging him as a fourth felony offender based upon the following three prior felony convictions: (1) a 1977 conviction for simple burglary two counts, (2) a 1991 conviction for distribution of cocaine, and (3) a 1998 conviction for possession of cocaine. In his answer, defendant alleged two reasons why the 1977 conviction for simple burglary two counts should not be used against him for habitual offender sentencing: (1) that more than ten years had elapsed between the expiration of the maximum sentence for his 1977 conviction and the date of the subsequent offense and (2) that he was not properly advised of his Boykin rights when he pleaded guilty. The trial court conducted a hearing on the habitual offender bill, wherein the defendant maintained his objection to the use of the 1977 conviction because the Boykin was inadequate. The state presented the following evidence to prove the 1977 conviction for simple burglary two counts: (1) a certified copy of the bill of information charging defendant with four counts of simple burglary; (2) certified copy of the minutes for June 2, 1977, indicating that defendant was pleading guilty to two counts of simple burglary; (3) certified copy of the minutes for June 22, 1977, where the trial court sentenced the defendant to 30 months for each |ficount of simple burglary; and, (4) booking fingerprints from when defendant was arrested for the four counts of simple burglary.

The defense stipulated to the authenticity of all of the above-listed documents, except for the identification of the fingerprints thereon as belonging to the defendant. The state was unable to produce a transcript of the guilty plea colloquy for the 1977 conviction. At the hearing, the state’s evidence also included testimony of Deputy Renee Shaw of the Ouachita Parish Sheriffs Office, who was qualified as an expert in fingerprint analysis comparison of ink prints to ink prints. Shaw compared the defendant’s September 9, 2003, booking fingerprints to the booking fingerprints from defendant’s arrest for the 1977 convictions, and she determined that all of the fingerprints were made by the same person. The trial court took the matter under advisement and ordered both parties to submit briefs.

On February 23, 2005, the trial court found the defendant to be a third felony habitual offender under La. R.S. 15:529.1(A)(l)(b)(i) and refused to consider the 1977 conviction for simple burglary for the following reasons:

The Court has deeply pondered this matter and finds that the following ruling is the most soundly based ruling in law and achieves justice. And this ruling relates to the question that the Court reserved and that is which among the three (3) prior convictions can be used for purpose of applying the habitual offender statute under the bill filed and sentencing Mr. Zeigler. And what the Court finds is this, the Supreme Court of our state has in many cases talked about the role of the Judge in criminal cases as it relates to due process. In one case, I believe, it was In Re: Lemoine, a judicial discipline case. The Court said that the highest duty of the Judge is to ensure that the due process rights of the defendant are preserved. And I believe that to be true. Accordingly, the Court finds the following: that while the minutes in case number 37,702 do not 17as the law was understood at that time have any defect as it relates to the question of compliance with Boykin, the absence of any colloquy to show this Court what was actually said back and forth between the parties causes the Court concern. Now, barely a week passes that this Court does not read into the record corrections to the minutes. Unfortunately, it has had to read in corrections to the minute of its own Court and not just from other courts. And in fact, did so just this week, corrections to the minutes. And unfortunately in one case during the twelve (12) years that this Court has been on the bench got turned around because the minutes said one thing but the colloquy showed something different. And the colloquy showed that this Court has failed to tell a person who was sentenced of his right to a jury trial, simply told him of his right to a trial. Mistakes happen. And before this Court is going to sentence somebody to life in prison, it is going to have to be very sure that no mistake happened. I can’t be sure without a colloquy in that case and I therefore will not use it in connection with this sentencing.

In accordance with La. R.S. 15:529.1 A(l)(b)(i), the trial court sentenced defendant to serve 25 years imprisonment at hard labor without benefit of probation or suspension of sentence.

The state argues that it met its burden for using the 1977 conviction to enhance defendant’s sentence by proving the existence of the guilty plea and that the defendant was represented by counsel. The state argues that once the burden shifted to the defendant to produce some affirmative evidence showing infringement of his rights or a procedural irregularity in the taking of the plea, defendant failed to produce any such proof. (Emphasis added) The state compares the instant situation to that in State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977; and State v. O’Neal, 34,814 (La.App.2d Cir.10/12/01), 795 So.2d 1292. The state requests that this court correct the trial court’s ruling and adjudicate the defendant to be a fourth felony habitual offender. Conversely, the | ¿¡defendant submits that the trial court’s well-reasoned decision was within its sound discretion and should not be disturbed.

In State v. Shelton, 621 So.2d 769, 779-780 (La.1993), the Louisiana Supreme Court explained the process of proving prior felony convictions in habitual offender proceedings under La. R.S. 15:529.1:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. (Footnotes omitted.)

The Louisiana Supreme Court found that it was appropriate to shift the burden to the defendant after the state makes the initial showing that the defendant made the guilty plea with the representation of counsel because there is a “presumption of regularity that attaches to final judgments.” State v. Shelton, 621 So.2d at 778, citing Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 524, 121 L.Ed.2d 391 (1992).

In State v. O’Neal, 795 So.2d at 1296, this court found that the state met its burden of proof under Shelton, supra, when it presented a certified |flcopy of a minute entry showing that the defendant was represented by counsel at the time of his guilty plea. The defendant alleged that there were defects in the taking of the plea, but presented no evidence to prove such an infringement or irregularity. State v. O’Neal, supra. In that case, the defendant relied upon this court’s holding in State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993), wherein it found that the court minutes were not satisfactory to satisfy the state’s burden of proving the prior offense due to it not showing an adequate waiver of the Boykin rights:

Where, however, as in this case, a prior conviction resulted from a guilty plea, the state must present a record made contemporaneously with the acceptance of that plea showing that defendant effectively waived his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State v. Baker, 471 So.2d 945 (La.App. 2d Cir.1985); State v. Collins, 546 So.2d 1246 (La.App. 1st Cir.1989), writ denied, 558 So.2d 599 (La.1990). Although the prosecution here introduced certified copies of court minutes from both of the previous proceedings, those documents reveal only that “the court informed the defendant of his constitutional rights as per Boykin v. Alabama.” This statement, standing alone, does not sufficiently demonstrate an explanation and waiver of defendant’s constitutional rights. Accordingly, the presented minute entries do not suffice to meet the state’s burden of proof. Cf. State v. Jones, 516 So.2d 396 (La.App. 5th Cir.1987).

State v. O’Neal, supra, citing State v. Jeffers, 623 So.2d at 889.

This court went on to note that, on rehearing, it distinguished the holding in State v. Jeffers from the supreme court’s holding in State v. Shelton based upon the specific circumstances of that case:

The state, in its application for rehearing, submits that our ruling is incorrect under the recent supreme court decision, State v. Shelton, 621 So.2d 769 (La.1993). We disagree.
It is true that Shelton broadly altered the previous burden-of-proof scheme in habitual offender adjudications. | inUnder that decision, the state will initially need only show the existence of the prior guilty plea and that counsel represented the defendant in that earlier proceeding. Thereafter, the defendant must produce some affirmative evidence of rights infringement or some procedural irregularity. Only when this is accomplished will the state be required to establish the constitutionality of the previous conviction.
Nevertheless, at the very inception of Jeffer’s multiple offender hearing, the state voluntarily agreed to present the Boykin transcripts, without any demand or contention by the defense. Under these circumstances, the prosecution assumed the responsibility of offering admissible evidence, and Shelton’s revised allocation of burdens does not control, even presupposing without deciding ret-roactivity.

State v. O’Neal, 795 So.2d at 1296-1297, citing State v. Jeffers, 623 So.2d at 891. Thus, in State v. O’Neal, this court distinguished its former opinion in State v. Jef-fers from the Louisiana Supreme Court’s holding in Shelton, supra, based upon the specific facts of that case. This court went on to find that the state met its burden under Shelton, supra, when it presented the certified copies of court minutes showing that the defendant was represented by counsel at the time of the guilty plea. State v. O’Neal, 795 So.2d at 1297. This court also found that this shifted the burden to the defendant to present affirmative evidence of his rights being infringed or an irregularity in the proceeding; because he was unable to present such evidence, this court found that it was appropriate for the trial court to use those convictions to enhance defendant’s sentence under the habitual felony offender law. State v. O’Neal, supra.

This court recently reviewed a case factually similar to the present case in State v. Houston, 40,642 (La.App.2d Cir.03/10/06), 925 So.2d 690, 707, wherein the defendant argued that the state failed to meet its |1Tburden of proof under Shelton, supra, because the court minutes did not list the specific rights to which the appellant had been advised. The state had presented bills of information, from which a fingerprint expert confirmed that it contained the defendant’s fingerprints, and the state presented certified copies of the minute entries showing that the defendant was represented by counsel when he pleaded guilty. State v. Houston, 925 So.2d at 708. Because the defendant presented no evidence showing any infringement on his rights or procedural irregularity in the proceedings, this court found that the burden to prove the constitutionality of the pleas did not shift back to the state. State v. Houston, supra. Therefore, this court found that the state met its burden of proof under Shelton, supra, so that defendant could be sentenced as a habitual offender. State v. Houston, supra.

The certified court minutes from defendant’s guilty plea in his 1977 conviction for two counts of simple burglary indicated that defendant was represented by counsel and that the trial court conducted a Boy-kin colloquy:

Defendant present, represented by appointed counsel, Hon. Charles R. Blay-lock. Defendant requested that his formerly entered not guilty pleas to Counts II & IV be withdrawn and pled guilty as charged, the State agreeing that at the time of sentencing on Counts II & IV that Counts I & III would be dismissed and also agreed that the State would file no other charges against the defendant that at this time the State has knowledge of. Defendant was sworn and informed and interrogated by the Court, and he stated under oath that he also had conferred with counsel and was satisfied with representation; understood the charges; understood his right to confrontation and against self-incrimination; understood his right to trial by jury and waived same; understood his right to appeal had he maintained his not guilty plea and gone to trial and had been found guilty and waived same; realized that he was not obliged to plead guilty and that his plea was not influenced by any promises, persuasion or coercion on the part of others; knew the maximum penalty he faced and realized 112that the Court and no other person would determine his sentence (see record of interrogation). Defendant was further advised of his right to make bail if the sentence was five (5) years or less, — and advised if the sentence was more than five (5) years, no bail allowed and advised that the Court would not permit him to make bail. Defendant stated that he understood. The Court found the plea to be intelligently and voluntarily entered and accepted same and remanded defendant for sentencing

These court minutes clearly show that defendant was represented by counsel when he pleaded guilty to two counts of simple burglary in 1977. Therefore, the state met its burden of proof under Shelton, supra, and the burden shifted to the defendant to present affirmative evidence of an infringement of his rights or an irregularity in the proceedings.

Contrary to the trial court’s ruling, the state did not bear the burden of proving the constitutionality of defendant’s guilty plea because the defendant had not presented any evidence of an infringement or irregularity. As this court found in State v. Stewart, 27,049 (La.App.2d Cir.05/10/95), 656 So.2d 677, 682, the state’s inability to present a transcript of the Boykin hearing is not evidence of an infringement or irregularity. To hold otherwise would contravene “the Shelton court’s design for preserving the presumption of regularity in final judgments.” State v. Stewart, supra. Therefore, in light of the defendant’s failure to present any evidence of an infringement of his rights or irregularity in the proceedings, the state’s presentation of certified court minutes showing that defendant was represented by counsel when he pleaded guilty to two counts of simple burglary in 1977 was sufficient to meet its burden under Shelton, supra. | 1sThus, the trial court erred when it refused to sentence defendant as a fourth felony offender.

Further, this court takes notice of the trial court’s stated hesitation to sentence defendant to life imprisonment as a fourth felony offender without a transcript of the plea colloquy. Although La. R.S. 15:529.1(A)(l)(c)(ii) removes the sentencing discretion from the trial court when the defendant is a fourth felony offender under certain circumstances, those circumstances do not apply to the defendant in this case:

(ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time' of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Defendant’s present conviction for distribution of cocaine, and his 1992 conviction for distribution of cocaine are both convictions under the Uniform Controlled Dangerous Substances Law which are punishable by more than ten years. La. R.S. 40:967(B)(4)(b). Defendant’s conviction for possession of cocaine is not punishable by more than ten years and, therefore, does not qualify defendant for a life sentence under this subsection of La. R.S. 15:529.1. Defendant’s conviction for simple burglary two counts does not qualify defendant for a life sentence under this subsection because at the time defendant committed the offense, the maximum penalty for simple burglary was nine years at hard labor. In Acts |u1977, No. 133, § 1, the sentence for simple burglary was amended to “with or without hard labor, for not more than twelve years.” However, that amendment was not effective until September 9, 1977, and the bill of information indicates that defendant committed his offenses of simple burglary in March 1977. Therefore, the trial court should impose sentence on defendant as a fourth offender in accordance with La. R.S. 15:529.1(A)(l)(c)(i), which states that the defendant “shall be sentenced to imprisonment for the fourth or subsequent felony for a determined term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.” Applying this formula to the prescribed sentence for distribution of cocaine under La. R.S. 40:967(B) (4) (b), the sentencing range for defendant as a fourth felony offender is 30 years to life at hard labor, without benefit of probation or suspension of sentence.

ERROR PATENT

Our error patent review of the record reveals that the trial court failed to advise defendant at sentencing that he has two years from the time of his conviction and sentence to seek post-conviction relief as required by La. C. Cr. P. art. 930.8. Although the trial court did inform defendant at the time |1Kof his first sentencing hearing, La. C. Cr. P. art. 930.8 requires the trial court inform defendant of this at sentencing. The statute contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for re-sentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/07/94), 647 So.2d 427. Because the case is being remanded for a new sentence, this issue is moot. Even so, we now advise defendant by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 or 922. Otherwise, no errors patent were revealed.

CONCLUSION

For the foregoing reasons, we vacate the defendant’s sentence and remand this matter for re-sentencing in accordance with this court’s order.

VACATED AND REMANDED.

      . The sentencing provisions of La. R.S. 40:967(B)(4)(b) state that only the first two years of defendant's sentence must be served without benefit of parole, probation, or suspension of sentence. According to La. R.S. 15:529.1(G), all sentences imposed under this provision must be imposed without benefit of probation or suspension of sentence. Although La. R.S.15:574.4(A)(1) states that sentence must be imposed on fourth felony offenders without the benefit of parole, the Louisiana Supreme Court has consistently held that when a defendant is sentenced under a statute that contains no prohibition of parole, the district court must sentence the defendant to a term that does not include such a prohibition because parole eligibility under La. R.S. 15:574.4 is to be determined by the Department of Corrections. State ex rel. Porter v. State, 2004-2080 (La. 11/28/05), 916 So.2d 123; State v. Hotard, 2004-1092 (La. 10/15/04), 885 So.2d 533, 533-534; St. Amant v. 19th Judicial District Court, 94-0567 (La.09/03/96), 678 So.2d 536.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    CITY OF MINDEN, Plaintiff-Appellant, v. Carolyn Sale Warren McDANIEL and Graceland Gardens, Defendants-Appellees. City of Minden, Plaintiff-Appellant, v. Timothy Lee Kennedy, Kelly Bays Kennedy and Graceland Gardens, Defendants-Appellees. City of Minden, Plaintiff-Appellant, v. The Jeannine Sale Miller Living Trust, Dr. Mark D. Miller and Graceland Gardens, Defendants-Appellees.
    Nos. 41,370-CA to 41,372-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.
    Rehearing Denied Jan. 18, 2007.

      Herschel E. Richard, Jr., Lee H. Ayres, Shreveport, for Appellant.
    Louis C. Minifield, Tomas Arceneaux, Scott R. Wolf, Shreveport, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

hThe City of Minden (“the City”) seeks reversal of the district court’s ruling granting summary judgment in favor of the defendant landowners, dismissing the City’s expropriation actions with prejudice. The district court concluded that the City was required to obtain the consent or concurrence of the Webster Parish . Police Jury prior to expropriating the private property situated outside of the City’s municipal limits. For the reasons that follow, the judgment of the district court is hereby reversed and this matter is remanded for further proceedings.

FACTS

The City initiated a program to improve and expand its airport by relocating the terminal, airfield hangars, other buildings and parking area. To implement the expansion project, the City sought to expropriate property which was adjacent to the airport, but outside of the City’s corporate limits.

On December 9, 2005, the City filed three separate petitions of expropriation. The defendants named in the petitions are the owners of the subject property: Carolyn Sale Warren McDaniel, Timothy and Kelly Kennedy, Dr. Mark D. Miller, The Jeannine Sale Miller Living Trust and Graceland Gardens (hereinafter referred to collectively as “the landowners”).

The landowners filed motions for summary judgment, contending the City lacked the sovereign authority to expropriate property located outside the City’s corporate limits. The landowners argued that by failing to obtain the consent of the Webster Parish Police Jury pursuant to LSA-R.S. | ¡>33:4621, the City failed to prove an essential element of its case. In its opposition to the motion, the City contended it was not required to obtain the police jury’s consent pursuant to LSA-R.S. 2:131 and 133.

The district court granted summary judgment in favor of the landowners and dismissed the City’s expropriation actions with prejudice. The City now appeals.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suite v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

The mover has the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover must only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The failure of the non-moving party to produce evidence of a material factual dispute mandates the | ¡¡granting of the motion. LSA-C.C.P. art. 966(C)(2).

In this ease, there are no issues of material fact in dispute. The City conceded that the property is located outside of its geographical limits, and the consent or concurrence of the police jury to expropriate the property was not obtained. The landowners contend that the City lacked the authority to expropriate the property at issue because the City failed to “obtain the requisite consent of the Webster Parish Police Jury as required under LSA-R.S. 33:4621.” Thus, the sole issue presented for our review is whether obtaining the consent or concurrence of the Webster Parish Police Jury was an essential element of the City’s expropriation action.

The general expropriation statute, LSA-R.S. 33:4621, provides:

Municipalities and parishes may expropriate and otherwise acquire any private property, within or without their limits, for any of the purposes for which they are organized, and for any works that they are authorized to own or operate, or which they are authorized to lease or donate to the United States. This Part shall not be construed to confer authority upon a parish or municipality to expropriate property in any other parish without the consent of the police jury of the parish in which the property is situated.

The Louisiana Legislature has granted cities, towns and other political subdivisions specific expropriation powers with regard to airports and landing fields. LSA-R.S. 2:131 provides, in pertinent part:

A. “Political subdivision” as used in this Part means any parish of this state....
B. Cities, towns and other political subdivisions may separately or jointly, acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate, and police, airports and landing fields for the use of aircraft, either within or without the geographical limits of such municipalities, and other | ¿political subdivisions, and may use for such purposes any available property that is owned or controlled by such political subdivisions; but no political subdivision shall exercise the authority hereby conferred outside of its geographical limits except in an adjoining political subdivision or in any adjoining political subdivision adjacent to said adjoining political subdivision and this only jointly with those political subdivisions.[]

The interpretation of a statute starts with the language of the statute itself. Louisiana Municipal Assoc, v. State, 2004-0227 (La.1/19/05), 893 So.2d 809. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9.

A statute must be “applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature had in enacting it.” Louisiana Municipal Assoc., 893 So.2d at 837, quoting Sultana Corp. v. Jewelers Mut. Ins. Co., 2003-0360 (La.12/3/03), 860 So.2d 1112, 1116. In addition, “courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” Louisiana Municipal Assoc., 893 So.2d at 837, quoting Hollingsworth v. City of Minden, 2001-2658 (La.6/21/02), 828 So.2d 514, 517.

| sPursuant to the laws of statutory construction, laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art. 13. The legislature is presumed to have acted with deliberation and to have enacted a statute in light of the preceding statutes involving the same subject matter. Louisiana Municipal Assoc., supra; Detillier v. Kenner Regional Med. Ctr., 2003-3259 (La.7/6/04), 877 So.2d 100.

Giving effect to LSA-R.S. 33:4621 and LSA-R.S. 2:131, et seq., as we are bound to do, and interpreting each statute in reference to the other, we conclude that the trial court erred in finding that the City was required to obtain the approval of the police jury prior to expropriating property located within the same parish, but beyond the City’s corporate limits.

The plain language of LSA-R.S. 2:131 does not require a city or town to obtain the consent of a parish’s governing body. Paragraph A of the statute defines “political subdivision” as “any parish....” Paragraph B authorizes “cities, towns and other political subdivisions” to construct/expand/acquire airports and landing fields, “either within or without the geographical limits of such municipalities .... ” However, the remainder of Paragraph B limits this authority, providing, “[B]ut no political subdivision shall exercise the authority hereby conferred outside of its geographical limits except in an adjoining political subdivision or in any adjoining political subdivision adjacent to said adjoining political subdivision and this only jointly with those political subdivisions.” (Emphasis added).

If the definition of “political subdivision” contained in Paragraph A | fiwas used as a substitution for the phrase contained in the limiting language of Paragraph B, the language would read, “[B]ut no [parish] shall exercise the authority hereby conferred outside of its geographical limits except in an adjoining [parish] or in any adjoining [parish] adjacent to said adjoining [parish] and this only jointly with those [parishes].” The terms “cities” and “towns,” although specified in the authorizing language of Paragraph B, were conspicuously omitted in the limiting language in the latter part of the paragraph.

Thus, we do not find that the legislature’s definition of the term “political subdivision” in Paragraph A and its use of the same term in Paragraph B was meant to limit the authority conferred upon cities and towns. Along with the general reference to “political subdivision” contained in the limitation of authority of Paragraph B, the legislature could have easily chosen to include the terms “cities” or “towns,” but it did not. From the legislature’s perceived need to make such a specific reference to “political subdivision,” it is reasonable to conclude that “cities” and “towns” are not automatically included in the limitation of authority contained within the statute.

Additionally, LSA-R.S. 33:4621 clearly provides that “municipalities and parishes may expropriate ... any private property, within or without their limits.... ” The statute contains a limitation which provides, “This Part shall not be construed to confer authority upon a parish or municipality to expropriate property in any other parish without the consent of the police jury of the parish in which the property is situated.” (Emphasis added). 17However, the plain language of 33:4621 does not prohibit a municipality from expropriating property in the same parish in which both the municipality and the property are situated. The phrase “any other parish” undoubtedly refers to a parish other than the one in which the municipality is situated. Had the legislature intended that a municipality be prohibited from expropriating property within the same parish, it follows that the legislature could have included such a limitation in the statute. It did not do so. It is not within our province to make the law, but rather to interpret and apply the law as written. See LSA-Const. Art. 2, §§ 1 and 2; LSA-Const. Art. 3 § 1; LSA-Const. Art. 5, § 1; LSA-C.C. arts. 1 and 2; Word of Life Christian Center v. West, 2004-1484 (La.4/17/06), 936 So.2d 1226.

For these reasons, we reverse the trial court’s judgment granting summary judgment in favor of the landowners, and we remand this matter for further proceedings. In light of this conclusion, we pre-termit any consideration of the issue raised in the City’s remaining assignment of error with regard to the trial court’s dismissal of the expropriation actions with prejudice, rather than without prejudice.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of the landowners and we remand this matter for further proceedings. Costs of this appeal are assessed to the appellees.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, MOORE and SEXTON, JJ.

Rehearing denied.

      . Graceland Gardens, an unincorporated cemetery, appears through its managing official, The Jeannine Sale Miller Living Trust.

      . LSA-R.S. 2:133 provides:
      Private property needed by a city, town, or other political subdivision for an airport or landing field or for the expansion of an airport or landing field or for extension of runways may be acquired by grant, purchase, lease, or other means, if such political subdivision is able to agree with the owners of said properly on the terms of such acquisition, and otherwise by expropriation.


author: PER CURIAM.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. David HICKS, Defendant-Appellant.
    No. 41,906-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      David Hicks, for Appellant, Pro Se.
    Sherlyn Shumpert, Assistant City Prosecutor, for Appellee.
    Before WILLIAMS, CARAWAY and SEXTON (Pro Tempore), JJ.
   PER CURIAM.

| ¶ This court’s error patent review reveals a jurisdictional error that requires we assign this appeal for summary disposition without oral argument under URCA 2-11.3. The record is silent and insufficient to support defendant’s knowing and intelligent waiver of his right to a jury trial.

Following an incident and altercation involving the defendant’s dogs, the defendant was cited for no rabies vaccinations (Shreveport City Code Sec. 14-161), dogs running loose (Shreveport City Code Sec. 14:142), simple battery of an officer (La. R.S. 14:34.2) and interference with a public officer (Shreveport City Code Sec. 50-160). After a bench trial in Shreveport Municipal Court wherein the defendant was unrepresented by counsel, the defendant was found guilty on all four charges. For battery of an officer, the defendant was sentenced to serve 25 days in jail, all but 15 days suspended, and fined $500.00 plus court costs. For interference with a public officer, he was fined $250.50 or to serve 25 days in jail plus court costs of $83.50. For each of the animal code convictions (dogs running loose and no vaccinations), the defendant was sentenced to pay a fine of $50.00 or to serve two days in jail on each count. All sentences were ordered to run consecutively. This appeal followed.

The defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury. La. C. Cr. P. art. 912.1(B)(1). Article 1, § 17 of the Louisiana Constitution stipulates that crimes for which the punishment may be confinement for more than six months must be tried by a jury except when, in noncapital cases, the defendant knowingly and |2intelligently waives his right to a jury trial. See also La. C. Cr. P. arts. 780 and 782. A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of $1,000.00 or imprisonment for more than six months, shall be tried by a jury of six jurors. La. C. Cr. P. art. 779(A). In those instances when more than one misdemeanor offense is charged by separate bills of information, but are consolidated for trial, the aggregate possible punishments are determinative of whether the defendant is entitled to a jury trial. State v. Hornung, 620 So.2d 816, 817 (La.1993); State v. Vu, 02-1243 (La. App. 5th Cir.4/8/03), 846 So.2d 67.

In the instant case, the charges were all instituted by separate charging instruments and were consolidated for trial. Hence, this case is appealable because the aggregate of the possible jail time for battery of an officer, a violation of La. R.S. 14:34.2(B)(1), and interference with a public officer, a violation of Shreveport City Code Sec. 50-160, is more than six months, thereby requiring trial by a jury of six persons. La. C. Cr. P. arts. 779(A) and 912.1(B)(1); State v. Hornung, supra; State v. Vu, supra.

A defendant’s knowing and intelligent waiver of his right to a jury trial must be sufficiently demonstrated by the record. State v. Muller, 351 So.2d 143 (La.1977); State v. McCarroll, 337 So.2d 475 (La.1976). See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Every reasonable presumption must be indulged against the waiver of the fundamental right to a trial by jury. State v. McCarroll, supra. A waiver of a right to jury trial must be expressed and will never be presumed lafrom a silent record. State v. Wilson, 437 So.2d 272 (La.1983); State v. McCar-roll, supra. On appeal, the record must show some manifestation of an effective waiver. State v. Muller, supra. See State v. Mandigo, 29913 (La.App.2d Cir.10/31/97), 702 So.2d 351.

This court notes and the defendant argues that the record is silent and insufficient to support defendant’s knowing and intelligent waiver of his right to a jury trial. Pursuant to this court’s order, the prosecutor’s response provided no evidence to support the finding of a valid waiver, but acknowledging that the trial court “may” have erred. Considering the foregoing, the defendant’s convictions and sentences are hereby vacated by summary disposition without oral argument as per URCA 2-11.3. This matter is remanded for further proceedings.


author: GASKINS, J.

text:
    Randall MUNRO, Plaintiff-Appellant, v. Glen J. CARSTENSEN, and Patti L. Carstensen, Defendants-Appellees.
    No. 41,714-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      Ross E. Shacklette, Bossier City, for Appellant.
    Alan Stegall, for Appellees.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

_JjThe plaintiff, Randall Munro, appeals from a trial court judgment awarding him recovery for materials he purchased and used to improve a building belonging to the defendants, Glen J. Carstensen and Patti L. Carstensen. The plaintiff argues that the trial court erred in failing to make an award for his labor on the building and contends that the award for materials and expenses did not fully compensate him. The plaintiff also claims that the trial court erred in granting the defendants an offset for rent for a period of time during which the plaintiff had exclusive use of the building. For the following reasons, we affirm the trial court judgment.

FACTS

In November 2002, Mr. Munro and Mr. Carstensen met at a local casino where they both worked. Both men enjoyed woodworking and they explored the possibility of going into business together. Mr. Carstensen owned a vacant building on Fairfield Avenue in Shreveport that he offered to house the business. Mr. Munro had woodworking equipment that he agreed to furnish. ■ The two began cleaning out the building and making improvements. The plaintiff contends that he did almost all the physical labor, as well as paying for materials to improve the building.

The relationship between the parties began to sour, and Mr. Munro demanded reimbursement for his labor and materials. At some point in 2003, Mr. Munro began to use the building exclusively to work on cars. In June 2003, Mr. Carstensen directed Mr. Munro to vacate the building when he was through with his cars. Mr. Munro moved out of the building the second or third week of July.

Un August 2003, Mr. Munro filed the present suit against Mr. Carstensen and his wife, Patti Carstensen, seeking $11,250.00 for labor and materials connected with improving the building. He claimed that he worked 660 hours on the building and sought $15.00 per hour for his labor. The plaintiff asserted that Mr. Car-stensen agreed to pay $1,500 for the materials within 90 days, but failed to do so.

In January 2004, the defendants filed an answer and reconventional demand, claiming that Mr. Munro had exclusive use of the building for 45 days to store personal items and equipment, as well as to work on cars. The defendants sought rent for the time Mr. Munro had the exclusive use of the building. They also asked for an offset if the court found that they were indebted to Mr. Munro.

After a bench trial, the court signed a judgment granting the plaintiff $881.64 in reimbursement for materials. The court found that the parties disagreed about almost every issue in this matter. According to the court, there was no meeting of the minds between the parties regarding their business agreement. There was no partnership or joint venture, no agreement about splitting profits, and no agreement as to whether Mr. Munro was to be reimbursed for materials and expenses. The court stated that the issues before it for decision were: (1) what compensation, if any, was due to the plaintiff, and (2) the defendants’ entitlement to an offset.

Because there was no contract between the parties, the trial court applied La. C.C. art. 2298 on unjust enrichment to find that the defendants received benefits from the plaintiffs work and purchase of materials for thejjbuilding. The court allowed recovery for the materials that the plaintiff could prove he purchased. The court denied recovery for those items that the plaintiff could not document.

The court found that the plaintiffs claim that he worked more than 600 hours on the building was exaggerated and unsubstantiated. The court also found unreasonable the plaintiffs assertion that he should be paid $15.00 per hour for his work. The court noted that the plaintiff failed to retain any time records to document the amount of labor he expended on the building. The court stated that it could not calculate an amount for the plaintiffs labor. The court further found that the defendants failed to establish the rental value of the building. According to the court, the plaintiffs labor on the building was offset by the time he had the exclusive use of the building. Therefore, the plaintiff was not given a monetary award for his labor and the defendants were not given an award for their claim for rent.

The plaintiff appealed the trial court judgment. On appeal, the plaintiff asserts that the trial court erred in failing to make an award for his labor. The plaintiff argues that the trial court erred in awarding an offset for rent when there was no evidence regarding the rental value of the property. The plaintiff claims that the trial court erred in failing to fully reimburse him for expenses and materials connected with the building.

LABOR

The plaintiff argues that the trial court erred in failing to make an award for his labor on the defendants’ building. The plaintiff essentially |4argues that the trial court was wrong in failing to accept his testimony regarding the number of hours he worked on the building and the hourly value of his work. He argues that his testimony is corroborated somewhat by the defendants. He claims that Mr. Car-stensen and his sons testified that the plaintiff was frequently present at the building, working on it. This argument is without merit.

At trial, the plaintiff explained that when the parties decided to go into business together, they agreed that Mr. Car-stensen would furnish the building and Mr. Munro would furnish the equipment. A good deal of work was necessary to prepare the building for use as a business. The plaintiff testified that he did an extensive amount of work on the defendants’ building. He dismantled a galvanized metal wall in the building and removed old ceiling tiles, rotted wood, a meat scale and a water heater and other pieces of old equipment. The plaintiff stated that he hauled away four trailer-loads of debris. The plaintiff claimed that he had done some renovation work in the past and charged $15.00 per hour for his time.

The plaintiffs claim that he worked almost exclusively on the building was disputed by the defendants. Mr. Carstensen testified that he and Mr. Munro agreed to go into the woodworking business together and that Mr. Munro had the equipment, labor, and money for materials, while Mr. Carstensen furnished the building. He claimed their agreement was to equally split the profits from the business. Mr. Carstensen testified that he and his two sons helped with a lot of the work on the building. This testimony was corroborated by Mr. Carstensen’s sons. Mr. Car-stensen stated |fithat he agreed to let Mr. Munro use the building because of the labor and materials he furnished. He testified that he never agreed to pay the plaintiff for labor and materials.

The plaintiff had the burden of proving his entitlement to payment for labor. The trial court found that he failed to prove his claim. This was a finding of fact based upon the evidence and testimony presented at trial. Such findings are subject to the manifest error standard of review recently reiterated by the Louisiana Supreme Court in Cosby v. Holcomb Trucking, Inc., 2005-0470 (La.9/6/06), 942 So.2d 471:

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. [Citations omitted.]

The record supports the trial court’s finding that the parties had no meeting of the minds regarding their business dealings and never agreed for the plaintiff to be paid for his labor. Further, the plaintiff failed to establish the number of hours he worked on the building. Mr. Munro claimed that he | f,recorded his time “in his paperwork.” However, at trial he did not introduce any records to corroborate his claims regarding the number of hours worked.

The plaintiffs own testimony shows that there was no agreement that he receive payment for his labor. Mr. Munro testified that, “I volunteered my time to help him get this building in good enough shape to start a business.” In his brief, the plaintiff stated that he “agreed to help clear the building and make some labor and monetary donation to getting the building ready (clearing it out, fixing the roof, etc.) for occupancy, but the responsibility for the building was totally Carsten-sen’s.”

The trial court evaluated the evidence and testimony presented and made credibility determinations. The court’s decision rejecting the plaintiffs claim for monetary payment for his labor was not manifestly erroneous or clearly wrong.

OFFSET

The plaintiff contends that the trial court erred in awarding an offset for his labor and the defendants’ claim for rent on the building. This argument is without merit.

Although the plaintiff did not prove the number of hours worked, and the defendants offered no proof of the value of rent for the building for the 45 days that the plaintiff had the exclusive use of it, the court allowed an offset for the two claims. The court’s decision was based on the finding that the parties had no meeting of the minds and therefore no agreement. In arriving at this decision, the court applied the principle of unjust enrichment set forth in La. C.C. art. 2298:

|7A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

The root principle of unjust enrichment is that the plaintiff suffers an economic detriment for which he should not be responsible, while the defendant receives an economic benefit for which he has not paid. Coastal Environmental Specialists, Inc. v. Chem-Lig International, Inc., 2000-1936 (La.App. 1st Cir.11/9/01), 818 So.2d 12.

A person is enriched when his assets increase, without adequate compensation, or his liabilities diminish. Conversely, one is impoverished when assets are diminished, a “justified expectation of gain” is prevented, or liabilities increased. Gulfstream Services, Inc. v. Hot Energy Services, Inc., 2004-1223 (La.App. 1st Cir.3/24/05), 907 So.2d 96, writ denied, 2005-1064 (La.6/17/05), 904 So.2d 706.

The five requirements for establishing a claim for unjust enrichment are: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) there must be no other 1 ^remedy at law available to the plaintiff. Finova Capital Corporation v. IT Corporation, 33,994 (La.App.2d Cir.12/15/00), 774 So.2d 1129.

The record shows that there was an enrichment and an impoverishment, a connection between the two, and an absence of justification or cause for the enrichment and impoverishment. Further, because the court found that there was no meeting of the minds and therefore no agreement between the parties, there was no other remedy at law available to the plaintiff. Accordingly, the trial court was not manifestly erroneous or clearly wrong in applying unjust enrichment to this case or in allowing an offset between the plaintiffs claim for labor and the defendants’ claim for rent.

MATERIALS

The plaintiff claims that the trial court failed to fully reimburse him for all materials and expenses connected with the building. He contends that the trial court erred in failing to award him recovery for $34.00 paid to a welding company, $80.00 paid to an individual who helped him work on the building, and $20.00 to another person who helped with taking debris to the dump. The plaintiff had no receipts for these expenditures, but claimed that they were not disputed by the defendants. The plaintiff also claims that the trial court erred in failing to reimburse him for $218.69 in electric bills he paid for the building. This argument is without merit.

19At trial the plaintiff asserted that he paid for all the materials, with the exception of $100.00 that Mr. Carstensen paid for the lock for the front door. He claimed that he purchased and installed metal to secure the windows, plywood, and new front doors. He also paid for an electrician to do necessary work to turn on the electricity. Mr. Munro had the electricity account put in his name and paid the bills. At one point, the plaintiff had the only key to the building and had the exclusive use of it to work on his cars.

The plaintiff testified that Mr. Carstensen said that he would reimburse him for his materials and asked for 90 days to pay, but he failed to do so. Mr. Munro contended that Mr. Carstensen refused to put their agreement regarding reimbursement in writing. One week after the doors were installed, Mr. Munro contends that Mr. Carstensen told him that he could not pay and offered to sell him the building for $38,500.00. The defendants had purchased the building for $8,500.00 several years earlier.

The trial court noted in its reasons for judgment that the plaintiffs receipts regarding materials purchased for the building were extremely disorganized. The trial court chose to award the plaintiff recovery for those expenditures he could establish by receipts and rejected his undocumented claims. We find that the trial court’s credibility determination in this regard was not manifestly erroneous or clearly wrong.

The trial court’s reasons for judgment do not address the electric bills for the building. The record shows that the plaintiff chose to place the electric utility account solely in his name. Further, it appears that these bills were incurred during the time that the plaintiff had the exclusive use of the |inbuilding and was using it solely for his own benefit. The trial court did not err in failing to include recovery for the electric bills in its judgment.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment. Costs in this court are assessed to the plaintiff.

AFFIRMED.

      . At trial, the defendants objected to the use of the theory of unjust enrichment, arguing that it was an expansion of the pleadings. They mention this objection in their brief, stating, "While Appellees do not claim the District Court was clearly wrong in finding that the evidence in this matter could support the theory of unjust enrichment, Appellees do contest Munro's pursuit of recovery under this theory as it was not pled.” They have not appealed or answered the appeal. Therefore, the issue is not properly before this court on appeal.


author: SEXTON, J.

text:
    Monique Boissiere DEJOIE, Plaintiff-Appellant, v. The Honorable Lloyd J. MEDLEY, Jr., et al., Defendants-Appellees.
    Nos. 41,635-CA, 41,333-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      Moore, Walters, Thompson, Thomas, Pa-pillion & Cullens by Charles R. Moore, David Abboud Thomas, Baton Rouge, for Appellant.
    Charles C. Foti, Attorney General, for Appellees.
    Hymel, Davis & Peterson, L.L.C. by L.J. Hymel, Michael Reese Davis, Tim P. Hartdegen, Special Assistant Attorneys General, Maria Nan Alessandra, for Appel-lee, Lloyd Joseph Medley, Jr.
    Before WILLIAMS, CARAWAY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

11 This appeal arises out of a discrimination suit filed by Plaintiff, Monique Boissi-ere Dejoie, in connection with her termination as a minute clerk in the office of Judge Lloyd J. Medley, Jr., Orleans Parish District Court Judge. In her original and amended petitions, Plaintiff sued Judge Medley, the Judicial Expense Fund for the Civil District Court for the Parish of Orleans (“JEF”), the State of Louisiana through the Civil District Court for the Parish of Orleans (“State through the CDC”), the judges of the Civil District Court of the Parish of Orleans and the First and Second City Courts of the City of New Orleans, sitting en banc (“Judges en banc ”), and the seventeen individual judges of that court (“individual Judges”).

Plaintiff appeals the trial court’s grant of an exception of lack of procedural capacity against State through the CDC and Judges en banc and the grant of an exception of prescription against the individual judges and Judges en banc. The trial court denied an exception of lack of procedural capacity of the JEF.

Plaintiff filed writ applications seeking review of the granting of the above exceptions. This court converted Plaintiffs three writ applications into appeals and consolidated them into this appeal. The JEF filed a writ application on the denial of its exception. This court referred consideration of that writ to this appeal.

| PFor reasons stated herein, we reverse the granting of the exception of lack of procedural capacity of the State through the CDC. We reverse the denial of the exception of lack of procedural capacity of the JEF. We affirm the granting of the exception of lack of procedural capacity to the Judges en banc, and, on our own motion, hold that, with respect to the individual judges, Plaintiff failed to state a cause of action.

FACTS

Plaintiff filed suit alleging gender and pregnancy discrimination under the Louisiana Employment Discrimination Law (LEDL), La. R.S. 23:301, et seq. Plaintiff started work as a minute clerk in October 1995 for Judge Niles Hellmers and two years later went to work as minute clerk for Judge Medley. Plaintiff became pregnant in January 2003 while still working for Judge Medley. That summer she experienced complications from the pregnancy and was informed that she would have to have her gallbladder removed after the delivery of her child. Since her employer’s sixty days of maternity leave would not be enough to recover from both the birth and the subsequent surgery, Plaintiff made a formal request for additional leave time.

Plaintiff delivered on September 28, 2003, and, while on maternity leave, learned that her request for additional leave time had been denied by the judges of the CDC “sitting en banc.” Plaintiff, thus, returned to work on January 4, 2004, after exhausting her maternity leave. After arriving back to work, Judge Medley terminated her on that date citing “restructuring” as the treason. Plaintiff alleges that, prior to her pregnancy, she had heard Judge Medley remark on more than one occasion on the diminished capacities of female employees after they become mothers.

On August 28, 2004, Plaintiff filed a petition seeking damages for the alleged violation of LEDL by Judge Medley, the JEF and the State through the CDC. The JEF and the State through the CDC each filed a dilatory exception of lack of procedural capacity to be sued. On December 28, 2004, Plaintiff amended her petition to add as defendants all the judges of the Civil District Court for the Parish of Orleans, individually and “sitting en banc.” The Judges en banc filed an exception of lack of procedural capacity to be sued and the individual judges filed a joint peremptory exception of prescription. Two individual judges, Judge Irons and Judge Cates, filed exceptions of no cause of action. The other individual judges also jointly filed an exception of no cause of action, Judge Medley filed a motion for summary judgment.

All exceptions were heard by the trial court at a single hearing; and, after hearing arguments, the trial court overruled the exception of lack of procedural capacity filed by the JEF and granted those filed by the Judges of the CDC and the State through the CDC. The court also granted the exception of prescription filed by the Judges of the CDC. Four separate judgments were signed by the trial court. In addition, Judge Medley’s motion for summary judgment was granted. Plaintiff did not appeal this judgment and, thus, Judge Medley is not a party to this appeal.

14Plaintiff filed three writs seeking reversal of the trial court’s granting of three Defendants’ exceptions. This court converted those writs into appeals and consolidated them into this appeal. This court referred consideration of the writ filed on behalf of the JEF for denial of its exception of lack of procedural capacity to this appeal. We now consider the proper disposition of all four Defendants.

DISCUSSION

Lack of procedural capacity is a dilatory exception which tests a party’s legal capacity to bring an action or to have one brought against it. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App.2d Cir.5/28/04), 877 So.2d 1003, writ not considered, 04-2136 (La.11/15/04) 887 So.2d 466; Palowsky v. Premier Bancorp, Inc., 597 So.2d 543 (La.App. 1st Cir.1992). An entity must qualify as a juridical person to have the capacity to be sued. Dugas v. City of Breaux Bridge Police Dep’t., 99-1320 (La.App.3d Cir.2/2/00), 757 So.2d 741, writ denied, 00-0671 (La.4/20/00), 760 So.2d 1159. “A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership.” La. C.C. art. 24. In Roberts v. Sewerage and Water Board of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, the supreme court has adopted a functional approach for determining whether a political subdivision is a separate and distinct juridical person.

The important determination with respect to the juridical status or legal capacity of an entity is not its creator, nor its size, shape, or label. Rather the determination that must be made in each particular case is whether the entity can appropriately be regarded as an additional and separate government unit for the particular purpose at issue. In the absence of positive law to the contrary, La local government unit may be deemed to be a juridical person separate and distinct from other government entities, when the organic law grants it the legal capacity to function independently and not just as the agency or division of another governmental entity.

Id. The court emphasized that “such a determination will depend on an analysis of specifically what the entity is legally empowered to do.” Id. The Revision Comments to La. C.C. art. 24 further provide that “[t]he capacity of a juridical person is governed by the provisions in its charter, governing legislation and customs.” Therefore, in determining whether Defendants are juridical persons and, thus, have procedural capacity, we look to the manner in which they function and the authority that created them (their organic law).

We first address whether the Judges en banc are a juridical person. We hold that they are not. The Judges en banc has no single point of creation. Instead, they are referenced only as a designation for when all judges are present to decide a given matter. See, e.g., La. R.S. 13:1147 (listing matters over which the Judges of the Civil District Courts may sit en banc); Uniform Rules of La. Dist. Courts, Rule 1.0, 1.3 and 4.1 (including several examples of decisions requiring the judges to approve en banc). The statute creating the JEF gives the Judges en banc authority to control it. La. R.S. 13:1312. We read this reference as merely designating the group within the court that has power to make decisions about the JEF and not as créating a distinct juridical entity. Decision-making bodies within a branch of government are not necessarily independent juridical persons. City Council of the City of Lafayette v. Bowen, 94-584 (La.App. 3d Cir 1/2/94), 649 So.2d 611, writ denied, 94-2940 (La.1/27/95), 650 So.2d 244. Holding that the Judges en banc are not a juridical person and have no procedural capacity, we, therefore, affirm the trial court’s granting of the Judges en banc’s exception of lack of procedural capacity.

Likewise, we hold that the JEF is not a juridical person. The JEF was created by La. R.S. 13:1812. That statute does not address the procedural status of the JEF. It merely establishes it as a fund and addresses for what purpose the money from the fund can be used. The statute creates the JEF as a fund for the payment of court expenses that is controlled by the Judges “sitting en banc.” To paraphrase the statute, it is simply a fund which can be used for purposes connected with the administration or function of the court that is controlled by a majority vote of the judges collectively, i.e., en banc. Nothing in the statute indicates that the JEF is a juridical person. See Bellow v. Charbon-net, 1999 WL 203740 (E.D.La.1999).

Further, we reject the notion that conducting various matters in the name of the JEF confers juridical personality. While the comments to article 24 offer that custom also governs whether a person can be a juridical person, custom may not abrogate legislation. La. C.C. art. 3. The JEF is an account for receiving and dispensing court funds. It does not have procedural capacity. We, therefore, reverse the trial court’s ruling in that regard and dismiss the JEF.

Next, we conclude that the State through the CDC has procedural capacity. While Defendants focus on whether the CDC itself is a juridical person, they fail to appreciate that the State is the named defendant in the |7suit. The State is an entity that can be sued. See La. Const, art. 12, § 10 (waiver of State’s sovereign immunity). The judiciary, while a separate branch of state government, is, obviously, an agency of the state. La. Const. Art. 5, § 1, et. seq. The state and its agencies are particularly included in the Louisiana Employment Discrimination Law. La. R.S. 23:302(2). See generally, La. R.S. 39:1538 (providing for claims against the state, but expressly not affecting judicial immunity); La. R.S. 49:258 (defining state agency broadly including “other entity of the state”). Thus, the trial court erred in granting the State through the CDC’s exception of lack of procedural capacity, and we reverse that ruling.

Finally, we hold, on our own motion, that Plaintiff failed to assert a cause of action against the individual judges. La. C.C.P. art. 926(B). An exception of no cause of action tests whether the law provides a remedy against the defendant under the factual allegation of the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211. The exception is triable on the face of the petition and each well-pleaded fact in the petition must be accepted as true. Id. This court, however, is not required to accept conclusions of law contained in the petition. Holmgard v. First National Bank of Commerce, 96-0853 (La. App. 4th Cir.1/15/97), 687 So.2d 583. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. An exception of no cause of action should be granted when it | ^appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. Badeaux, supra. The plaintiff must be afforded every reasonable interpretation of the language of the petition in favor of maintaining its sufficiency. Id.

Plaintiff sues under the LEDL for sex and pregnancy discrimination. The LEDL prohibits discriminatory practices by an employer against an employee based on either sex or pregnancy. La. R.S. 23:382 and 342. The LEDL defines an employer as:

“Employer” means a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. (Emphasis added.)

La. R.S. 23:302(2). This statutory definition given by the LEDL controls over the general test for employers based on a right of control. Duplessis v. Warren Petroleum, Inc., 95-1794 (La.App. 4th Cir.3/27/96), 672 So.2d 1019. Whether a defendant meets the statutory definition of employer is a legal question and we do not have to accept Plaintiffs assertion in her petition that all Defendants were her employers. See Holmgard, supra. For the individual judges, therefore, to be considered as Plaintiffs employer under the LEDL, they each, individually, must receive services from Plaintiff and give compensation to Plaintiff.

The seventeen individually named judges do not meet the statutory definition of employer in relation to Plaintiff. The statute governing the | sappointment of the minute clerks establishes that a minute clerk does not render services for any individual judge except for her supervising judge. Each judge appoints one minute clerk “for his own section of [the Civil District] court.” La. R.S. 13:1136(F). (Emphasis added.) She did not confer services upon each judge, nor was her compensation paid by the individual judges. While a judge may appoint such personnel as needed for the functioning of the court, they are paid out of the monies of the JEF. La. R.S. 13:1312(C). Our finding is limited to the seventeen judges named and does not extend to any other entity or Defendant in this suit. We, therefore, hold that Plaintiff asserted no cause of action upon which she can recover against the seventeen individual judges. The seventeen individual judges are dismissed accordingly. In light of this holding, we do not need to consider the individual judges’ joint exception of prescription granted by the trial court.

CONCLUSION

For the foregoing reasons, we hold that the Judges en banc and the Judicial Expense Fund do not have procedural capacity. We affirm the trial court’s granting of the exception of lack of procedural capacity of the Judges en banc and reverse its denial of the Judicial Expense Fund’s exception of lack of procedural capacity, thereby dismissing the Judicial Expense Fund and the Judges en banc. We hold that the State through the CDC has procedural capacity; and, therefore, the trial court erred in granting | inits exception, and that ruling is reversed. In addition, on our own motion, we supply and sustain an exception of no cause of action against the judges individually, dismissing them from the suit. Costs hereof are assessed against Defendant, State of Louisiana, in the amount of $537.55, pursuant to La. R.S. 13:5112.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . The petition, names: Chief Judge Carolyn W. Gill-Jefferson, Judge Michael G. Bagneris, Judge Sidney H. Cates, Judge Herbert A Cade, Judge Robin M. Giarrusso, Judge Piper G. Griffin, Judge Ethel Simms Julien, Judge Madeleine M. Landrieu, Judge Rosemary Le-det, Judge Yada T. Magee, Judge Nadine M. Ramsey, Judge Kern A. Reese, Judge Paulette R. Irons, Judge Mary K. Norman, Judge Charles A. Imbornone, Judge Angelique Reed and Judge Sonja Spears.

      . Each judge appoints his own minute clerk who is sworn as a deputy clerk and paid as determined by the court en banc. La. R.S. 13:1211.

      . As stated above, two of the individually named judges filed an exception of no cause of action based on not being sworn in as judges until after the termination of Plaintiff. The remaining individual judges jointly filed an exception of no cause of action based on not meeting the statutory definition of "employer.” The trial court did not rule on this exception because it granted the individual judges' exception of prescription.

      . Recall that Judge Medley was dismissed on summary judgment which is not before this court on appeal. We express no opinion as to whether Judge Medley meets the statutory definition of employer in this case.


text:
    LOUISIANA PATIENTS COMPENSATION FUND OVERSIGHT BOARD, Plaintiff-Appellee v. William T. EDWARDS, as Legal Guardian of Alexander Lashley, Defendants-Appellants.
    No. 41,594-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.
    See also 891 So.2d 85.

      Roedel, Parsons, Koch, Blanche, Balhoff & McCollister by Larry M. Roedel David A. Woolridge, Jr., Carlton Jones, III, Baton Rouge, for Appellant.
    James A. Rountree, Monroe, for Appel-lees.
    Before STEWART, DREW and SEXTON (Pro Tempore), JJ.
   STEWART, J.

| William T. Edwards appeals a judgment denying his request for additional compensation from the Patient’s Compensation Fund (“PCF”) to pay for nursing services provided to his grandson, Alexander Lashley, by Leading Homecare, Inc. The trial court found that the reimbursement rate for nursing services was established by regulation of the Patient’s Compensation Fund Oversight Board (“PCFOB”). We agree and affirm the trial court’s judgment.

FACTS

Edwards filed a rule to show cause against the PCF, alleging that it had not paid the full amount due Leading Home-care for nursing care provided to Lashley. In response, PCF raised a number of exceptions and a motion to strike, none of which were ruled upon by the trial court prior to its judgment on the rule. PCF asserted that the amount it pays for nursing care is limited by the reimbursement rates as provided in LAC 37:III.1917(A).

The minutes show that a proceeding regarding the rule took place on November 21, 2005. The parties declined to have the proceeding recorded; thus, there is no transcript. The minutes state that the parties dispensed with the presentation of witnesses and entered an agreement as to what the testimony of Edwards and another witness would have been. The court noted that the matter was to be brought before the Oversight Board at its meeting in December so that the parties could perhaps reach an agreement. In the absence of an agreement, the parties were to submit one-page briefs as to PCF’s reimbursement rates and the nursing care provider’s charges for Lthe court to review in making its ruling. The parties did not come to an agreement.

A transcript of court proceedings on February 24, 2006, includes the trial court’s ruling that the reimbursement schedule would be followed. The parties considered this an issue of law. Upon rendition of the judgment denying Edwards’ rule for additional reimbursement, this appeal by Edwards followed.

DISCUSSION

The issue presented by Edwards on appeal is as follows:

Can PCF establish by rule in 2001 a ceiling on its reimbursement for medical services provided to a malpractice victim in the face of La. R.S. 40:1299.43, and if so can it apply the rule to a malpractice victim whose entitlement to future medical care preceded the adoption of the rule?

The parties posed this issue before the trial court as a question of law and presented no evidence, other than the parties’ agreement as to certain testimony. The minute entry regarding this agreement does not specify the stipulated testimony. Edwards argues that Lashley is a victim of medical malpractice whose entitlement to future medical care predated the 2001 rule setting a reimbursement schedule for nursing care fees. Edwards implicitly argues that application of the fee schedule deprives Lashley of reasonable future medical care to which he is entitled.

At the outset, we note that the PCFOB is responsible for the “management, administration, operation, and defense” of the PCF. La. R.S. 40:1299.44(D)(2)(a). The PCFOB has exclusive jurisdiction over future medical care and related care claims by medical malpractice victims. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, rehearing denied, 93-1142 (La.3/25/94), 636 So.2d 247; Louisiana Patient’s Compensation Fund Oversight Board v. Edwards, 39,149 (La.App.2d Cir.12/15/04), 891 So.2d 85. Included in the PCFOB’s exclusive jurisdiction is the authority to receive, evaluate, pay, settle, and reject claims. Id. The PCFOB’s authority over the Fund along with its exclusive jurisdiction over claims for future medical care and related services would reasonably include the authority to set rates for services.

The rules governing the administration and payment of future medical and related benefits for medical malpractice victims are set forth in Chapter 19 of Title 37 of the Louisiana Administrative Code (“LAC”). The obligation to provide future medical care and related services is explained in LAC 37:111:1905, which limits the amount to be paid as follows:

C. Pursuant to the Act, the board has been, expressly and/or implicitly, vested with the responsibility and authority for the management, administration, operation, and defense of the fund and, as a prudent administrator, it must insure that all future medical care costs and related benefits are reasonable and commensurate with the usual and customary costs of such care in the patient’s community. ■ Therefore, the amount paid by the fund for future medical care and related benefits shall be the lesser of the amount billed for said care or benefit or the maximum amount allowed under the reimbursement schedule. (Emphasis added.)

LAC 37:111:1903 defines the following pertinent terms:

Future Medical Care and Related Benefits: All reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services. The fund’s obligation to provide these benefits or to reimburse the claimant for those benefits is limited to the lesser of the amount billed therefor or the maximum amount under the reimbursement schedule.
14Reimbursement Schedule: The most recent reimbursement schedules promulgated by the Department of Labor, Office of Workers’ Compensation pursuant to R.S. 23:1034.2.

Moreover, LAC 37:III:1917(A) and (B)(1) pertaining to nursing and sitter care provides that the PCF will fund such care “at the lesser of the billed amount or the maximum amount allowed under the reimbursement schedule.” Under LAC 40:1.3511(0, the maximum reimbursement for nursing care is $44 per hour for a registered nurse, $31 per hour for a licensed practical nurse, and $11 per hour for a certified nursing assistant. The reimbursement schedule was adopted in 2001, years prior to when Leading Home-care began providing services to Lashley in July 2005.

Edwards relies on two cases in support of his argument that the reimbursement schedule should not be applied to Lash-ley’s nursing care. The first is Bartee v. Children’s Clinic of Southwest Louisiana, 2005-583 (La.App. 3d Cir.8/17/05), 910 So.2d 470, writ denied, 2005-2465 (La.3/24/06), 925 So.2d 1230. The plaintiff, Pamela Bartee, requested reimbursement for medical expenses and custodial care from the PCF on four occasions and received no response. She then filed a rule to show cause in district court to compel payment. The PCF filed an exception of lack of subject matter jurisdiction on the grounds that the PCFOB has exclusive jurisdiction and that Bartee failed to follow the administrative appeals requirements. The trial court denied the exception and the appellate court denied the PCF’s writ. The third circuit explained that once a malpractice plaintiff obtains a judgment awarding future medical care, claims for payment of medical expenses and related benefits must first be ^submitted to the PCF, which has thirty days to respond to the request. If the PCF fails to respond or if the response leads to dispute between it and the claimant, the dispute may be brought before the district court with continuing jurisdiction as provided in La. R.S. 40:1299.43(E)(1). This same procedure was recognized by this court in Louisiana Patient’s Compensation Fund Oversight Board v. Edwards, supra.

The appellate court in Bartee explained that La. R.S. 40:1299.44 dealing with the PCFOB’s authority was not meant to supersede provisions dealing exclusively with the plaintiffs rights and the procedures for making executory judgments awarding future medical care. We agree. However, nothing in Bartee or in La. R.S. 40:1299.43 addressing future medical care and related benefits prohibits the PCFOB from implementing a schedule for reimbursement of expenses.

Edwards also refers us to LaMark v. NME Hospitals, Inc., 2003-1036 (La.App. 4th Cir.3/10/04), 870 So.2d 367, in which the plaintiff, Helen LaMark, was a victim of medical malpractice entitled to lifelong care. For seventeen years, the PCF had paid all her expenses. However, upon implementation of the reimbursement schedule in February 2002, the amount paid for Mrs. LaMark’s skilled nursing care was reduced from $38 per hour to $31 per hour, and Mr. LaMark paid the difference. The plaintiff filed in the district court a “Motion to Compel Payment of Medical Expenses and to Reverse Rate Reductions.” The district court granted the motion, and the PCFOB appealed. The issue was whether the PCF could reduce payments for future medical expenses that had been made for | f,seventeen years pursuant to a judgment rendered in 1986. The appellate court concluded that application of the reimbursement rates to Mrs. LaMark divested her of vested rights to future medical care as provided in her judgment. Its reasoning was that application of the rates modified the 1986 judgment which ordered the PCF to pay “all future medical expenses as and when incurred by Helen LaMark....” The court also reasoned that the law in effect at the time of the medical malpractice injury is controlling, so the PCF could not retroactively limit the amount it paid for Mrs. LaMark’s future medical expenses.

While LaMark appears analogous to the present matter, the PCF asserts that application of the new reimbursement schedule adversely impacted Mrs. LaMark’s longtime provider of nursing care. The LaMark opinion does not make this clear, as it indicates only that the rate schedule affected payments that had been made for seventeen years since the judgment. However, it is clear in the present matter that Leading Homeeare did not begin providing services to Lashley until well after the reimbursement schedule had been adopted and made a matter of public record. Thus, application of the reimbursement schedule did not adversely impact the provider by arbitrarily lowering the payment rate after it had already been providing services for years at a higher pay rate. Leading Homeeare and Edwards presumably had notice of the applicable rate at the time Leading Homeeare became the provider. The LaMark decision was also based on the specific language of the malpractice judgment, which |7required payment of all future medical expenses as and when incurred. Lash-ley’s judgment is not in the record.

We are not persuaded that LaMark, supra, precludes application of the reimbursement schedule to services provided by Leading Homeeare to Lashley. There is no showing on this record that application of the reimbursement schedule divests Lashley of his right to future medical care. The exact measure of expenses for future medical care is not known at the time a judgment awarding future medical care is rendered. Over time, expenses may increase or decrease as the recipient’s condition changes. An increase in reimbursement rates may be sought. See Maraist v. Alton Ochsner Medical Foundation, 2002-2677 (La.App. 1st Cir.5/26/04), 879 So.2d 815; Manning v. United Medical Corp. of New Orleans, 2004-0810 (La.App. 4th Cir. 3/2/05), 897 So.2d 867, writ denied, 97-0936 (La.5/16/97), 693 So.2d 801. As provided in La. R.S. 40:1299.43(B) and the LAC provisions cited previously, future medical care and related benefits are defined in terms of “all reasonable” care. The reasonableness issue has not been litigated, and we cannot say on this record that application of the reimbursement rates deprives Lashley of reasonable nursing care.

We also note that the issue of retroactive application was addressed in Kelty v. Brumfield, 96-0869 (La.App. 4th Cir. 3/12/97), writ denied 97-0918 (La.5/16/97), 693 So.2d 800, wherein the parents of a medical malpractice victim sought a rate increase for the care they provided their child. The PCFOB argued that it was limited to a rate of $6 per hour as established by a rule adopted in December 1993. Because the administrative rule had no | ¿retroactive effect under La. R.S. 49:954(B) and the parents had filed for custodial care reimbursement ten years prior to enactment of the rule, the court found the $6 rate inapplicable to the Keltys. Here, while Lashley has been receiving future medical care for years, Leading Homeeare did not begin providing services to him until years after adoption of the reimbursement rate schedule. Application of the reimbursement schedule is not retroactive as to care provided by Leading Homeeare.

In summary, we find that the PCFOB was authorized to establish the rule adopting a reimbursement schedule for medical services and that the rule can be applied to the nursing care services provided by Leading Homeeare.

CONCLUSION

For the reasons stated, the trial court’s judgment is affirmed with costs assessed against the appellant.

AFFIRMED.

      . La. R.S. 49:954(B) states in relevant part, "Each rule hereafter adopted shall be effective upon its publication in the Louisiana Register, said publication to be subsequent to the act of adoption....”