author: LEON A. CANNIZZARO, Jr., Judge.

text:
    Brenda SINGLETON v. PAYNE SERVICE, INC. a/k/a Payne Synergies.
    No. 2006-CA-1385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.

      Brenda Singleton, Baton Rouge, LA, in proper person, 'Plaintiff/Appellant.
    Raymond S. Maher, Jr., Bastían & Associates, New Orleans, LA, for Defendant/Appellee, Payne Services, Inc., a/k/a Payne. Synergies, Inc.
    (Court composed of Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, Jr., Judge.

11 This case involves a workers’ compensation claim by Brenda Singleton against Payne Service, Inc., also known as Payne Synergies (“Payne”). Ms. Singleton alleged that she suffered injuries from inhaling chemical fumes while working at a temporary job for Payne at the Chalmette Refinery in St. Bernard Parish. Payne contested Ms. Singleton’s claim for workers’ compensation. After a trial, Ms. Singleton’s claim was denied. She is now appealing the decision of the workers’ compensation judge.

STATEMENT OF FACTS

Ms. Singleton’s Testimony

Ms. Singleton alleged that she suffered severe nosebleeds and other physical problems as a result of breathing benzene and hydrogen sulfide fumes at the Chalmette Refinery. She had worked at the refinery for approximately four days at a temporary job when the incident occurred.

Ms. Singleton represented herself at the trial. She testified that she was | ^working for Payne on a turnaround job. Ms. Singleton testified that she started the turnaround job on March 8, 2004. On March 10, according to Ms. Singleton’s testimony, she became “very ill” while she was working. She was vomiting and suffering from “excessive nosebleeds,” but she felt better that night. The next morning, which was March 11, Ms. Singleton went to work, but she began to experience the same symptoms that she had experienced the previous day.

When Ms. Singleton began feeling ill on March 11, she called her supervisor and asked him to come to the area of the refinery where she was on duty. Someone came immediately and relieved Ms. Singleton of her duties. She stated that she asked to see the medical personnel on the site. Two men arrived. She assumed that the men were going to take her to visit the medical personnel. Instead, according to Ms. Singleton’s testimony, the two men attempted to escort her off of the refinery premises.

Ms. Singleton, however, refused to be escorted off of the premises. She then saw some foremen who worked for Exxon Mobil, and she asked them to get her medical attention. The foremen did not respond, but Leah Payne, one of the Payne owners, sent two men with a scooter to get Ms. Singleton, but Ms. Payne then personally came in her car to get Ms. Singleton.

Ms. Singleton said, “I get into Ms. Payne’s car, and we driving [sic] and some van was following her with an African-American guy in the van saying very bad slurs.” Ms. Singleton said that instead of going west toward LaPlace, where |sMs. Payne said that she was taking Ms. Singleton to the doctor, Ms. Payne was driving east. When Ms. Singleton questioned Ms. Payne about this, Ms. Payne replied, “Just be patient and hold on.” Ms. Singleton continued her testimony as follows:

So, as we drove, we wind [sic] up way over in New Orleans East past Bullard. That was east. And instantly ... And I panicked. The guy in the van was still behind us.... I panicked; I didn’t un- ' derstand what was going on. I jumped out of her car.

Ms. Singleton then stated that she hitchhiked from Bullard Avenue to the Chal-mette office of her physician, Dr. Maynard Garrett. According to Ms. Singleton, when Dr. Garrett could not stop her nosebleed, he sent her to a hospital, Chalmette Medical Center. At the hospital “all kind of tests” were conducted, and Ms. Singleton said that she “was extensively bleeding and they couldn’t stop the bleeding.” Ms. Singleton further testified that at one point the bleeding stopped, and she went home. According to Ms. Singleton’s testimony, the medical center personnel believed that she had been exposed to a caustic chemical.

Ms. Singleton further testified that when she arrived at Chalmette Medical Center, she told the medical personnel that she believed that she had been exposed to some type of chemical. Ms. Singleton also stated that Dr. Garrett had immediately identified the cause of her illness. She said, “[T]hey did indeed examine me and saw that it was some kind of caustic inhalation that I had to cause this reaction.”

Ms. Singleton returned home after she was discharged from Chalmette Medical Center. That night the “bleeding started again.” She testified that she went to United Medical Center that night, where she was treated, and the bleeding stopped. Ms. Singleton testified that United Medical Center was the second 1 ¿hospital that she had visited that day. She said that she remained at United Medical Center for about two hours and then returned home after the bleeding was under control. Ms.. Singleton testified that after she got home, the bleeding resumed, and she then returned to Chalmette Medical Center. After being treated again at Chalmette Medical Center, she returned home. Ms. Singleton testified that she had been to two hospitals, Chalmette Medical Center and United Medical Center, on the same day, and she had been to one of them, Chalmette Medical Center, twice that day.

Ms. Singleton testified that the bleeding resumed the next day and that she returned to Dr. Garrett’s office a few days after her injury had occurred. ‘According to Ms. Singleton’s testimony, Dr. Garrett performed surgery that stopped the bleeding. She said that Dr. Garrett told her that “I was heavily exposed to-some kind of toxic chemical.”

The day after the surgery Ms. Singleton “started to have ... pains ... all in my body and stuff.” She said that she went to United Medical Center where she was treated. She further stated that she was told that “I need to go follow up on that treatment because they are more than sure that it could be related to my injury.” Ms. Singleton continued her treatment with a chiropractor, who “found findings similar stating that my injury was definitely related to the chemical injury.” The chiropractor treated Ms. Singleton for back pains.

Ms. Singleton also visited a “pulmonary specialist” at Touro Infirmary. When the specialist contacted Ms. Payne, according to Ms. Singleton’s testimony, Ms. Payne denied that Ms. Singleton’s respiratory illness was related to the injury that allegedly occurred at the Chalmette Refinery. ■Ms. Singleton underwent pulmonary testing, but Ms. Singleton testified that she had to quit seeing the ^pulmonary specialist, because she could not pay him and ■because Ms. Payne refused to authorize ■Payne to pay him.

After Ms. Singleton stopped seeing the pulmonary specialist, she returned to Dr. Garrett, who said, “Ms. Singleton, I still see ... a scar that stems from the chemical injury that is ulcerated.” He told her that she had an ulcerated scar that would take a long period of time to heal and that she would have to take antibiotics for the wound to heal. Ms. Singleton then testified that because Payne would not pay for her antibiotics, she did not have the money to buy them.

Deposition Testimony of Scott Andrew Goodwin

The deposition of Scott Andrew Goodwin was introduced into evidence at the trial. Mr. Goodwin testified that he was an employee of Exxon Mobil at the time that Ms. Singleton was allegedly exposed to caustic chemicals. He further testified that the Chalmette Refinery, a petroleum refinery, was owned jointly by Exxon Mobil and another party in a “joint cooperative.” Mr. Goodwin said that he worked in the safety field as a “field response group supervisor.” As such, he was responsible for emergency response programs. Additionally, Mr. Goodwin stated that he was involved with accidents that occurred at the refinery, including accidents involving persons working for subcontractors such as Payne.

Mr. Goodwin testified that subcontractors working at the refinery were required to have safety meetings. Mr. Goodwin said that he was familiar with Payne, and he described the type of work that Payne did at the Chalmette Refinery.

Mr. Goodwin further stated that if there were a chemical release of some type at the Chalmette Refinery, an alarm system would sound alarms, the area affected by the release would be evacuated, and then the appropriate personnel would check the area and determine what had happened. Written reports were | ^generated whenever there was a chemical release. If the alarm system indicated that there had been a chemical release, when, in fact, no chemical was released, the “negative” release would not be documented. If there were a possibility that benzene or hydrogen sulfide had been released, meters would be used to determine if the chemical were present. A report would be made only when a chemical was detected.

At the time that Ms. Singleton experienced her medical problems, she had been working on a turnaround at the refinery. Mr. Goodwin said that he was personally familiar with her case. He produced a medical response report that documented Ms. Singleton’s medical complaints. A paramedic employed by a third party medical contractor that provided safety technicians and paramedics for turnarounds at the Chalmette Refinery had prepared the report.

The report reflected that Ms. Singleton had complained of smelling benzene. The paramedic who examined Ms. Singleton found nothing wrong with her. The emergency medical report prepared by the paramedic indicated that Ms. Singleton complained that she had been smelling benzene fumes, that she had vomited the previous night, and that she had suffered from nausea. The report also stated that Ms. Singleton was complaining of vomiting and diarrhea as well as chills. The report further said that at the time she was examined, Ms. Singleton had not been feeling well as a result of her being “25 ft from H2S [hydrogen sulfide].” The report finally stated that Ms. Singleton wanted to see a company doctor and that she refused to sign the emergency medical report.

At his deposition, Mr. Goodwin also identified a report prepared by Shane Goodman, who was the safety representative for Payne during the turnaround at the Chalmette Refinery. The report by Mr. Goodman documented that on the day 17of Ms. Singleton’s alleged injury, he received a call from Payne, because an employee felt ill. The employee, Ms. Singleton, was complaining of “flu like symptoms.” Mr. Goodman’s impression was that Ms. Singleton had “the flu or a stomach viris [sic].” Thus, Mr. Goodman explained to Ms. Singleton that there was no doctor at the refinery who could treat her for the flu or for stomach problems. According to Mr. Goodman’s report, Ms. Singleton refused to leave the refinery without seeing medical personnel. Therefore, she was taken to the paramedic for an examination.

Mr. Goodwin testified that in response to Ms. Singleton’s complaints, “[w]e talked to her, found out where they thought she was working, went out and gas tested the area and didn’t find anything of a release at that point.” Mr. Goodwin’s testimony indicated that the investigation was done the day after Ms. Singleton complained of being ill. The investigation showed no evidence of benzene or hydrogen sulfide contamination. Mr. Goodwin also stated that he did not know of any person who complained of problems regarding a chemical release at the time that Ms. Singleton became ill.

Finally, Mr. Goodwin ■ testified that Payne sent a letter to the Occupational Safety and Health Administration of the United States Department of Labor (“OSHA”) in response to a complaint that had been filed by Ms. Singleton in connection with her alleged exposure to harmful chemicals. Although Mr. Goodwin stated that Exxon had no letters in its file responding to OSHA, the record in the instant case included a letter from OSHA that was introduced into evidence by Ms. Singleton. The letter was written to Ms. Singleton, and the letter said that Payne had advised OSHA that the incident involving Ms. Singleton had |sbeen investigated and that “OSHA feels the case can be closed on the grounds that the hazardous conditions have been corrected (or no longer exist).”

Medical Records

Copies of a number of medical records were introduced into evidence at the trial. The record contained a statement of conditions of admission and treatment, a triage assessment report, an emergency department physician record, the emergency department nursing record, aiid emergency room discharge instructions, all from Chal-mette Medical Center. All of the records were dated March 11, 2004.

One part of the records from Chalmette Medical Center indicated that the final diagnosis was “nose bleed.” The records also reflected that Ms. Singleton had a diagnosis of “(1) epistaxis by history’ (2) H2S inhalation by history (3) anemia.” The triage assessment indicated that the patient’s chief complaint in the patient’s own words was “[n]ose [breeding” and that Ms. Singleton stated that her “nose started bleeding yesterday [March 10, 2004] but stopped.” The assessment then stated that “[breeding started again today, more heavily.” The assessment showed that Ms. Singleton was treated by Dr. Garrett about an hour prior to her arrival at Chalmette Medical Center and that he referred her to the emergency room. Finally, the triage assessment reported that Ms. Singleton stated that she was exposed to “Benzene and H2S x 3 days.”

Also included in the medical records that were introduced into evidence was an emergency department chart from Bywa-ter Hospital of New Orleans. The chart states that Ms. Singleton was admitted to the hospital on March 12, 2004, | acomplaining of a frontal headache and nosebleeds occurring over the past two days.

There were three documents that were typed on Dr. Garrett’s letterhead that were included in the medical evidence contained in the record. One of the documents was the operative report for a procedure that Dr. Garrett performed on Ms. Singleton. A second document was a letter to a referring physician, a Dr. Barnes. A third document was a letter to Dr. Ronald Wyche.

Dr. Garrett’s operative report, which was dated March 16, 2004, reflects that he conducted a fiberoptic examination of Ms. Singleton’s nose. The procedure was described in detail. The examination revealed that Ms. Singleton’s right nasal passage was almost completely blocked by her deviated septum. The operative report also stated:

Patient complaining of severe epistaxis. Patient also complains of inhaling toxic chemical i.e. hydrogen sulfide gas at work and dates nasal pain and bleeding to this etiology. Fiberoptic survey of the nose was carried out to confirm and evaluate this finding.

The letter to Dr. Barnes reported that “Brenda Singleton states she has been having severe nosebleeds since inhaling a caustic substance at her employment.” The date of Ms. Singleton’s visit to Dr. Garrett was noted as March 16, 2004, which was also the date of the letter. The letter confirmed that “Brenda Singleton was seen by Dr. Barnes who suspected epistaxis and patient was referred to our office.” The letter described Dr. Garrett’s examination of Ms. Singleton, including a fiberoptic examination of Ms. Singleton’s nose that revealed that she |inwas suffering from ulceration on the left side of her nasal septum. Dr. Garrett also determined from an x-ray examination that Ms. Singleton had a deviated septum.

The letter to Dr. Wyche related to an office visit to Dr. Garrett on March 28, 2005, which was more than a year after the alleged incident at the Chalmette Refinery. The letter to Dr. Wyche thanked him for requesting a consultation with Dr. Garrett regarding Ms. Singleton. Dr. Garrett’s letter stated that his examination in March 2004 was “compatible with chemical burn to the internal structures of the nose.” The letter also said that “[e]xamination recently revealed ulceration hemorrhage of both sides of her nasal septum.” Dr. Garrett stated in his letter that the condition “was compatible with reinfection of preexisting scar.” The condition was treated with antibiotics and ointments. Finally, the letter stated that Ms. Singleton’s diagnosis was “[t]raumatic injury of internal nasal structures compatible with partially healed thermal or chemical injury.”

' In addition to the records from Dr. Garrett and from the hospitals that Ms. Singleton visited, there were also documents in the record showing that Ms. Singleton had visited both a chiropractor and a physician regarding back pain and breathing problems. According to the records regarding Ms. Singleton’s back pain and breathing problems, she attributed these problems to her alleged exposure to caustic chemicals while she was working for Payne at the Chalmette Refinery. Additionally, a letter written by Timothy J. Kern, a chiropractor, on TeamCare Medical Centers letterhead stated that “[i]n all medical probability, the patient’s signs and symptoms are causally related to the accident of March 12, 2004.” Dr. Kern’s letter was dated September 23, 2004.

_LyDISCUSSION

Standard of Review

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556, the Louisiana Supreme Court stated that “[factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” The Supreme Court further stated that “[i]n applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Id. If there are two permissible views of the evidence in a workers’ compensation case, the factfinder’s choice between the two views can never be manifestly wrong. Id. Therefore, if the factual findings are reasonable in light of the record reviewed in its entirety, the appellate court cannot reverse the case, even if the appellate court would have weighed the evidence differently had the appellate court been the trier of fact. Id.

The standard of review does not depend on the type of evidence presented in the case. The same standard of review applies whether the evidence before the trier of fact consists solely of written reports, records, and depositions or whether there is live testimony from which the trial court judge could observe the demeanor of the witnesses. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 709-10.

Assignment of Error

Rule 2-12.4 of the Louisiana Uniform Rules — Court of Appeal requires an appellant’s brief to comply with certain requirements. The brief must include, among other things, “a concise statement of the case, the action of the trial court lather eon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case ... giving accurate citations of the pages of the record and the authorities cited.... ” Rule 2-12.4 further provides that “[a]ll specifications or assignments of error must be briefed.” If they are not briefed, “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed.”

In the instant case, Ms. Singleton has.filed a pro se brief, which does not comport with the requirements of Rule 2-12.4, and it is unclear to us what her specific assignments of error are. It is clear, however, that she does not think that the judgment of the workers’ compensation judge was correct. Because Ms. Singleton is representing herself, we will examine the record using the applicable standard of review to determine whether the judgment of the workers’ compensation judge was reasonable in light of the record in its entirety.

Ms. Singleton, as the plaintiff in the instant case, had the burden of proof. To win her case, she was required to show by a preponderance of the evidence that she was injured and that the injury was caused by an exposure to a harmful chemical while she was working for Payne.

The workers’ compensation judge found that Ms. Singleton did not meet her burden of proof. We have examined the record in the instant case in its entirety, and we cannot conclude that the decision of the workers’ compensation judge was manifestly wrong or clearly erroneous.

The workers’ compensation judge heard the live testimony of Ms. Singleton and was able to observe her demeanor and to assess her credibility. There was also sufficient evidence in the record from which the workers’ compensation judge |13could have reasonably concluded that Ms. Singleton’s version of the facts was not as plausible as the version of the facts presented by Payne.

Ms. Singleton’s testimony emphasized that she was suffering from a severe nosebleed at the time of the alleged incident. There is nothing, however, in the report of the on-site examination of Ms. Singleton by a paramedic employed by an independent company to indicate that Ms. Singleton was suffering from a nosebleed. Additionally, the medical records of Chalmette Medical Center and from Dr. Garrett do not refer to Ms. Singleton actually bleeding from the nose at the time she was being examined. They refer to her statements that she was suffering from severe nosebleeds.

What is clear from the medical records is that Ms. Singleton did have an ulcerated nasal septum and that the cause of the ulceration was the inhalation of a caustic chemical. The ulceration, no doubt, caused Ms. Singleton to have nose bleeds. What is not clear, however, is the source of the caustic chemical. The record is devoid of any evidence, other than the statements of Ms. Singleton, that there was a release of toxic fumes in the area where Ms. Singleton was working at the Chalmette Refinery. Also, the medical conclusion that Ms. Singleton’s problems were the result of exposure to hydrogen sulfide or benzene was based upon the medical history that Ms. Singleton gave. She told the medical personnel that she had been exposed to those chemicals, although at the trial, she testified that she did not know the names of the chemicals to which she had been exposed. She had heard the names hydrogen sulfide and benzene in her safety training classes.

Our review of the record demonstrates that Ms. Singleton was unable to prove by a preponderance of the evidence that she was exposed to chemicals at the | uChalmette Refinery. The Exxon Mobil employee who was responsible for safety at the site testified in a deposition that appropriate tests were conducted after Ms. Singleton complained of being exposed to hazardous chemical fumes and that there was no evidence that any such fumes had been present at the site where Ms. Singleton had been working.

It was Ms. Singleton’s responsibility to present evidence to show that the chemicals were present, and she presented no evidence other than a letter from OSHA stating that an investigation by that agency indicated that any problem with caustic fumes had been corrected at the time of the OSHA investigation. The investigation by OSHA did not prove that there had been a release of fumes, however. It only proved that there was no problem at the time of the investigation.

Ms. Singleton also relies on the factual findings by the administrative law judge who determined that she was not disqualified for unemployment compensation benefits. The unemployment compensation proceeding was a completely different proceeding from the workers’ compensation proceeding, however. The findings of fact in the unemployment compensation proceeding do find that “[biased on the evidence and testimony presented, the claimant suffered nosebleed, headaches, and vomiting after being exposed to chemicals at work.” The decision of the administration law judge, however, states that “[t]he employer was not represented” at the hearing. Thus, the conclusions of the administrative law judge were based solely on Ms. Singleton’s testimony. Additionally, the decision of the unemployment compensation administrative law judge is not binding on the workers’ compensation judge.

|1BOur review of the record in this case shows that the findings by the workers’ compensation judge were reasonable in light of the record in its entirely. Therefore, we cannot substitute another judgment for that of the judge.

DECREE

The judgment of the workers’ compensation judge was neither manifestly erroneous nor clearly wrong. The judgment is hereby affirmed.

AFFIRMED.

      . In his deposition, which was introduced into evidence, Scott Andrew Goodwin, a field safety supervisor involved in investigating the alleged incident, testified regarding turnaround jobs. He said that ''[a] turnaround is when we do maintenance on a particular part of the refinery.” He. further testified that "[w]e actually take the unit down, don’t put any more feed in the unit, solate it from the rest of the refinery and then go into the pieces of equipment on that unit to do maintenance. ...”

      . Exxon Mobil was a co-owner of the Chal-mette Refinery.

      . The handwriting on many of the medical records was illegible, so a complete review of the records was not possible.

      . Epistaxis is the medical term for nosebleed.

      . The nasal septum is the wall that separates the right and left nostrils from each other. A deviated septum occurs when the nasal septum is not evenly centered between the two nostrils.

      . Dr. Garrett’s letterhead indicates that he is a specialist in otolaryngology, the medical specialty concerned with the treatment of conditions affecting the ear, nose, and throat.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jeremiah THOMAS.
    No. 2006-KA-1294.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2007.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Graham L. Bosworth, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

| STATEMENT OF CASE

The appellant was charged on April 27, 2005, with one count of possession of cocaine. He entered a not guilty plea on May 3, 2005, and on July 22, 2005, the district court denied the motion to suppress the evidence. However, it found no probable cause, and a release was issued. Following a bench trial on August 10, 2005, the appellant was found guilty of attempted possession of cocaine. He was sentenced on August 18, 2005, to serve two years at hard labor. The sentence is to run concurrently with any other sentence the appellant may be serving, and he was recommended for participation in the Impact Program. His motion for appeal was granted. The district court denied the motions to reconsider sentence, to quash the multiple bill of information and for a new trial.

STATEMENT OF FACT

On April 6, 2005, New Orleans Police Department Officers Robert Harr and Stephen Rodrigue were driving a marked police vehicle down Sixth Street. When the officers turned onto Dryades Street, they observed the appellant and his brother [¡.walking towards them. The brother attempted to conceal himself behind a vehicle on the street; he was observed discarding a handgun behind the front passenger tire. At that point, the officers exited the vehicle. Officer Harr proceeded to the sidewalk where the appellant was standing watching his brother. Officer Rodrique approached the brother.

When the appellant looked up from observing his brother, he saw Officer Harr. He then discarded from his left hand a bag of approximately thirty pieces of crack cocaine. The appellant and his brother were detained. Officer Harr retrieved the handgun and cocaine. A stipulation was made that the substance recovered tested positive for cocaine.

ERRORS PATENT

A review of the record reveals that there are no errors patent.

ASSIGNMENT OF ERROR

In his sole assignment of error, the appellant contends that the sentence the trial court imposed is excessive.

In State v. Smith, 2001-2574, p. 6-7 (La.1/14/03), 839 So.2d 1, 4, the Court set forth the standard for evaluating a claim of excessive sentence:

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

See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973; State v. Landry, 2003-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

An appellate court reviewing a claim of an excessive sentence must determine whether the trial court adequately complied with the statutory sentencing guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. Landry; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, this Court noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” Landry, 2003-1671, at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

|4Here, the appellant contends that the two-year sentence that the district court imposed is excessive because it is near the thirty-month maximum sentence allowed by La. R.S. 40:979(967), and the offense was nonviolent.

Although the district court did not enumerate or even refer to any of the sentencing factors listed in La.C.Cr.P. art. 894.1, the record appears to support the sentence imposed.

The appellant discarded a bag containing approximately thirty pieces of crack cocaine and was accompanied at the time by his brother, who was armed. Further, he has not indicated any mitigating factors that the district court might have considered in support of a lesser sentence.

CONCLUSION

For the above and forgoing reasons we affirm the appellant’s conviction and sentence.

AFFIRMED.

      . The appellant waived the sentencing delay.

        . Compare an unpublished opinion of this court in which the defendant received the maximum sentence of thirty months on his conviction for attempted possession of cocaine. State v. Jermaine Robinson, unpub., 96-1197 (La.App. 4 Cir. 12/18/96), 686 So.2d 186. In Robinson only trace amounts of cocaine were found in two baggies in the garbage can of the defendant’s home; however, he possessed the tools of a drug distributor, some cash, and a loaded handgun.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Vincent T. ALLEN.
    No. 2006-KA-1434.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2007.

      Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Vincent T. Allen.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for The State of Louisiana/ Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, JR., Judge.

hThe defendant, Vincent T. Allen, was charged by bill of information with manslaughter, a violation of La. R.S. 14:31, for the killing of Llewellyn Howard. Following a trial, a twelve-person jury found him guilty as charged. The trial court judge sentenced the defendant to forty years at hard labor. The defendant appealed.

FACTS

Cedric Howard, the victim’s younger brother, testified that at the time of the killing he and Llewellyn were residing in the family home at 2114 Tricou Street. On the night of February 21, 2003, Cedric went to sleep at approximately 11:00 p.m., but Llewellyn was not in the residence at that time. At approximately 2:30 or 3:00 a.m., the doorbell rang, awakening Cedric. When Cedric answered the bell, the defendant, who lived in the 2000 block of Tricou Street, was standing at the door. He told Cedric that he and Llewellyn had gotten loaded at the Howard residence several hours earlier and he had forgotten his wallet. According to Cedric, the defendant was acting crazy, saying: “I want my F-ing wallet. I want my F-ing wallet.” Cedric telephoned his other brother, El-ston, and handed the 12phone to the defendant, who spoke to Elston for perhaps thirty seconds. When Cedric got the phone back, Elston advised him to just lock the iron door gate. Cedric then went to Llewellyn’s room and told Llewellyn that the defendant was outside saying that Llewellyn had his wallet. Llewellyn got dressed, and he and Cedric went outside. Llewellyn and the defendant searched the defendant’s car, which was in the How-ards’ driveway. A female was in the back seat of the car.

Cedric said Llewellyn and the defendant then entered the car and drove to the 2000 block of Tricou Street, where they pulled into the defendant’s driveway. Llewellyn and the defendant walked into the street, where the defendant began punching Llewellyn in the head, causing him to fall to the ground several times. Cedric said the defendant was yelling: “I want my F-ing wallet. There going to be a death wish tonight. I want my F-ing wallet.” The female who had been in the car had stepped out. Cedric said he went inside and called 911. When the police arrived, Llewellyn and the defendant were still in the 2000 block of Tricou Street. Cedric testified that the police stayed approximately thirty seconds. After the police left, the defendant and Llewellyn came walking back towards the Howard residence. Cedric said the defendant continued to punch Llewellyn in the head and rant about wanting his wallet, stating at one point, again: “There going to be a death wish tonight.” Cedric heard the defendant say at another point: “I’ll do 30 years. I want my f-ing wallet.” Again, the defendant hit Llewellyn, causing him to fall. The defendant then stood over Llewellyn, choked him and banged his head on the pavement. Cedric said he went inside, and when he came back out the two men had walked back to the 2000 block of Tricou Street. The fighting stopped, and the defendant, Llewellyn and the female got into the defendant’s car and drove off. Elston Howard arrived, and he and Cedric drove off in the same direction | ?,looking for the defendant’s car. They drove around for about ten minutes, but could not find it so they returned to the Howard residence. Cedric estimated that he stayed at his home for approximately one hour and forty-five minutes before leaving for his girlfriend’s home in Metairie. While enroute, he received a phone call from his neighbor informing him of Llewellyn’s death. Cedric testified that he gave the defendant’s name to police, and later identified the defendant in a photo lineup.

Elston Howard testified, corroborating Cedric’s testimony.

Herbert Rubin, the Howards’ next door neighbor, testified that he was awake in the early morning hours of February 22, 2003, because he had to take his wife to the hospital. He testified that he knew both the defendant and Llewellyn and had seen the fight between them. He said the defendant punched Llewellyn in the face several times, causing him to fall, but Llewellyn did not react. Mr. Rubin also heard the defendant say, “Give me my wallet, Dog or we going go down in a funny style.” Mr. Rubin also observed the defendant, who was then in a little white car, back out of the driveway and drive across the street to another driveway. Shortly thereafter, Mr. Rubin saw Llewellyn and the defendant coming down the street again, fighting. Again, Llewellyn fell to the ground and did nothing to defend himself. Mr. Rubin also saw a female in the street who was urging the defendant to leave. When the fighting stopped, Mr. Rubin heard the defendant say, “Why you didn’t tell me this before?” The defendant and Llewellyn then walked away together, got into the defendant’s vehicle, along with the woman, and left.

Mr. Rubin further testified that he left to go to the hospital with his wife, and returned home at 5:00 or 6:00 a.m., to find an ambulance and fire trucks on the scene. Llewellyn Howard had been taken to the hospital by that time. Later that 14day, the police presented a photo lineup to(him, in which he identified the defendant as the person he saw beating Llewellyn and whom Llewellyn drove off with shortly before he was killed. Mr. Rubin acknowledged on cross examination that after the fight ended he had observed Llewellyn walk unaided to the defendant’s car and get into the passenger seat.

Dr. Richard Tracy, a pathologist, identified a report of the autopsy he had performed on the body of Llewellyn Howard. The victim had a total of five stab wounds in his chest and abdomen, with one severing a large blood vessel being fatal. The victim also had a laceration to the back of the scalp. A knife blade had penetrated and lodged in one of the victim’s shoulder blades. The victim had fresh abrasion marks around the face and forehead, on the back of both hands, around the left shin, and along the back of the torso. The victim also had a black eye, which Dr. Tracy calculated to be a day or two old, based strictly on the color of the bruising. The victim,had a broken jaw and a cut lip, but without any mark,of impact indicating how that came about. Dr. Tracy speculated that the jaw had been broken postmortem. According to Dr. Tracy, the victim appeared “wasted,” suggesting a chronic disease or habitual excessive drinking. The toxicology report reflected that the victim’s blood alcohol level was .30, which Dr. Tracy said was to the stage of very drunk — staggering, slurred speech, double vision and sometimes unconsciousness. Cocaine was detected in the victim’s urine. Dr. Tracy said that the victim was pronounced dead at 6:07 a.m. He confirmed that he had seen no defensive knife wounds on the victim and given the victim’s level of intoxication, he believed that the victim could have been lying out somewhere and not even realized he was being stabbed.

|BNew Orleans Police Department Sergeant Joseph Narcisse, custodian of records for the police Communications Division, identified State Exhibit 1 as a recording of a 911 call to police that originated at 3:17 a.m. from 2114 Tricou Street. He identified a recording of a second call made at 3:26 a.m. from the same address; a third call made at 3:41 a.m. from 2137 Tricou Street; a fourth call made at 3:43 a.m.; and a fifth call made at 5:07 a.m. He also identified radio chatter that reflected that Unit 514 arrived on the' :scene. Although Sgt. Narcisse never testified as to what date the 911 calls were made, the defendant did not dispute that these calls were made on the morning Llewellyn Howard was killed.

New Orleans Police Officer Rose Houston identified her trip sheet for February 21, 2003, covering the time period 7 p.m. to 7 a.m. on February 22. Her trip sheet reflected that she was first called to 2114 Tricou Street at 3:15 a.m. on a “fight” or 103-F call. Officer Houston testified that when she pulled up she observed people standing about, including at least two males and one female. There was no fight ongoing at the time she arrived. She asked one of the males what was going on, and he replied, “Everything all right.” The officer marked the call as “necessary action taken” and left the scene at 3:20 a.m. Officer Houston was called to 2114 Tricou Street a second time, arriving at 3:50 a.m. The two males were no longer on the scene, so she marked the call as “no complainant on arrival” and drove off. Several blocks farther down on Tricou Street, Officer Houston saw Ms. Troy Harvey, the female who was at the scene on the first call. She picked her up and drove around the Lower Ninth Ward in the police unit looking for the car in which the two males had driven away. Unable to locate the | ¿vehicle, Officer Houston dropped Ms. Harvey off at a bus stop. Shortly thereafter, Officer Houston received a call at 5:30 a.m. of a homicide on Tricou Street.

New Orleans Police Department Sergeant Lawrence Green testified that he was the lead detective on a homicide that occurred on February 22, 2003, in front of 2041 Tricou Street. After Cedric Howard and Mr. Rubin gave him the defendant’s name, Sgt. Green presented a photo lineup to them; both men identified the defendant’s photo. Sgt. Green later located and talked to Ms. Harvey regarding Llewellyn’s death.

Sgt. Green further testified that the defendant, during an interview at police headquarters, told him that he and Llewellyn had fought about the defendant’s wallet, but that he had found it, and had taken and dropped off Llewellyn back at home. The defendant told Sgt. Green that his white’car, which he had purchased one day before Llewellyn was killed, had been stolen on the date he was arrested, which was three or four days after the killing. The defendant said he had gone to a corner store and left his keys in the ignition, and the vehicle was stolen. The defendant told the sergeant that the clothes he was wearing on the night/morning of the killing— except for the jacket, which was in his car when it was stolen — were the same ones he was wearing at the time of the interview. He turned them over to the police. Sgt. Green said the clothes were tested for blood evidence, but none was found. Sgt. Green testified that a witness reported that the defendant had been wearing dark-colored pants, and that the pants he was wearing at the time of his arrest were not dark-colored.

Sgt. Green testified that the defendant had a wallet on his person when he was booked into Orleans Parish Prison. A Louisiana driver’s license found inside, issued in the year 2000, listed the defendant’s address as 2041 Tricou Street. Sgt. 17Green confirmed that he examined the defendant for any signs of possible injury he might have incurred as the result of an altercation with the victim, such as any cuts, but found none. As to the delay between the time Llewellyn was seen leaving with the defendant and Ms. Harvey in the defendant’s car and the discovery of his body, Sgt. Green testified, “I believe it was under an hour.”

Ms. Harvey testified that one night in February 2003, while waiting for a bus, the defendant offered her a ride. She later saw the defendant and another man get into a fight over a wallet, but never saw the defendant with a weapon. Ms. Harvey said she left the scene along with the defendant and the other man, in the defendant’s car, but that the defendant dropped her off at a bus stop at St. Claude and Delery Streets. Ms. Harvey confirmed that when the three of them got into the car there was no ongoing fight between the defendant and the other man.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the defendant questions the sufficiency of the evidence. Specifically, he argues that the circumstantial evidence was insufficient to meet the State’s burden of proving that he was the person who killed Llewellyn Howard.

This court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, |sany rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the'evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be ^proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Ragas, 98-0011, pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

With regard to circumstantial evidence and a reasonable hypothesis of innocence, the reviewing court does not determine whether another possible hypothesis has been suggested by the defendant that could explain the events in an exculpatory fashion. Rather, it evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984).

| nManslaughter is defined by La. R.S. 14:31(A) as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.

If the evidence in the instant case is sufficient to establish that the defendant killed Llewellyn Howard, then the evidence is sufficient to support his conviction for manslaughter. The only disputed issue is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the defendant was the person who killed Llewellyn Howard.

The defendant argues that the State failed to exclude the reasonable hypothesis of innocence that someone other than he killed the victim.

The evidence establishes that the defendant and Llewellyn Howard were “getting loaded” in the Howard home, either on the night of February 21, 2003, or in the early morning of the next day, hours before the victim was killed. The defendant left the Howard residence, but returned at approximately 2:30 or 3:00 a.m. on the morning of February 22, 2003. He rang the doorbell, and, in a rage, ranted to Cedric Howard that he wanted his “F-ing wallet.” Llewellyn Howard | inawakened, went outside with the defendant, got into the defendant’s car with him, and drove to the 2000 block of Tricou Street. When they exited the vehicle, the defendant began beating Llewellyn. The evidence is undisputed that the defendant repeatedly beat Llewellyn, while Llewellyn did little to defend himself. As he beat Llewellyn the defendant was yelling that he wanted his wallet. Cedric Howard also heard the defendant yell, “There going to be a death wish tonight.”

Cedric Howard called the police, but by the time an officer arrived the defendant had temporarily ceased beating Llewellyn. Someone, either Llewellyn or the defendant, told the officer that everything was okay, and the officer left. That was at 3:20 a.m. Then the defendant and Llewellyn started walking back from the 2000 block of Tricou Street toward the Howard home. The defendant started beating Llewellyn again, yelling that he wanted his wallet. Cedric Howard heard the defendant again say, “There going to be a death wish tonight” and “I’ll do 30 years.” The .fighting stopped, and Mr. Rubin heard the defendant say, “Why you didn’t tell me this before?” Then the defendant, Llewellyn Howard, and Ms. Harvey entered the defendant’s vehicle and drove away. Ms. Harvey was soon dropped off at a bus stop. Meanwhile, the police had been called again, but by the time Officer Houston arrived back on the scene at 3:50 a.m., the trio had driven off. Cedric Howard, who had gone inside of his residence, came out and discovered the defendant and Llewellyn had left. He and his other brother, Elston, left to drive around looking for the defendant and Llewellyn for approximately ten to fifteen minutes. Officer Houston picked up Ms. Harvey at the bus stop where the defendant and Llewellyn had dropped her off, and they drove around the area looking for the defendant and Llewellyn. Neither the Howard brothers nor Officer Houston found them. A 911 call was made to police at 5:07 a.m., reporting what 11T apparently turned out to be Llewellyn’s body. Officer Houston got a dispatch some twenty minutes later, at 5:30 a.m., alerting her of the homicide.

The defendant turned himself in four days after the stabbing death of Llewellyn, after hearing that he was wanted. The defendant was arrested for killing Llewellyn, and admitted to Sgt. Lawrence Oreen that he had fought with Llewellyn about his wallet. However, the defendant said he had found his wallet, and had dropped Llewellyn off back at the Howard residence that morning. The defendant also told Sgt. Green that his car had been stolen the day he turned himself in and, at the time, he had been living in it for three or four days. There was no evidence that the victim had been stabbed or killed in a vehicle, or anywhere else other than at the location where his body was discovered.

The police seized the clothes the defendant was wearing at the time of his arrest, which the defendant said were the same ones he had worn on the night/morning of the fight with Llewellyn. No traces of blood were found on them. One witness said the defendant had been wearing dark pants, and the pants the defendant was wearing at the time he turned himself in were, as described by Sgt. Green, “regular” in color. Although the defendant had no signs of being injured by a knife, Sgt. Green testified there was no evidence that the perpetrator had been injured while stabbing the victim to death.

In State v. Brown, 2002-1922 (La.5/20/02), 846 So.2d 715, the defendant was convicted of manslaughter after a bench trial. The court of appeal reversed on sufficiency grounds. The Louisiana Supreme Court reversed. The evidence was somewhat disputed as to who the victim had last been seen alive with on the night | i;>and early morning hours of April 5 and 6, 1999, because of the different times given by various witnesses. However, many of the witnesses had been intoxicated. The victim’s body was discovered at approximately 11 a.m. on April 7, 1999, on a wooded trail used as a shortcut to some housing projects. The Supreme Court found the evidence sufficient to support the conviction because the defendant had acknowledged being with the victim in close proximity to where her body was found, around the time she was last seen alive; an eyewitness observed the defendant in that area forcibly restraining the crying victim, who was begging to be released from his grasp; and the defendant admitted to striking the victim with his open hand when he caught her trying to steal his money, again, around the time she was last seen alive.

In the instant case, the defendant had beaten and threatened to kill Llewellyn Howard minutes before he was last seen alive in the company of the defendant. The defendant was in a rage, and probably intoxicated, as he said himself that he and Llewellyn had been getting “loaded” earlier in the evening. Any rational trier of fact could have found that the defendant twice threatened to kill Llewellyn, based on the defendant’s comment, made in a rage while beating Llewellyn, that: “There going to be a death wish tonight.” At some point after making the first “death wish” comment, the defendant stopped beating Llewellyn. However, he subsequently started pummeling him again, and again uttered the “death wish” comment.

The defendant’s driver’s license, issued in the year 2000, listed 2041 Tricou Street as his address, a block from the Howard residence. The defendant lived out of his car after Llewellyn was killed. Any rational trier of fact could have inferred that the defendant was fleeing from police by living out of his car. Flight is a 113circumstance from which guilt may be inferred. State v. Plaisance, 2000-1858, p. 16 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1186. However, flight alone cannot be sufficient to prove guilt. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989.

That seemingly the fighting had been resolved, and the defendant apparently pacified, by the time he and Llewellyn drove off together does not preclude the fact that he flew into another rage and, instead of beating Llewellyn this time, stabbed him to death. The exculpatory thought suggested by the defendant is that he would not have killed Llewellyn in front of his home, where he earlier had beaten and threatened to kill him. However, that suggests a rational defendant and a thoughtfully planned homicide. The evidence establishes that the defendant was not acting rationally and thoughtfully that night.

The defendant notes that Llewellyn Howard had a black eye that Dr. Tracy said was one or two days old, which, the defendant suggests, indicated that Llewellyn had “other enemies.” The defendant also notes that Llewellyn had cocaine in his system and probably was a habitual alcohol abuser. Thus, the defendant suggests, Llewellyn was “actively involved in the street life.” This is purely speculative, as opposed to the known facts that the defendant, in a rage, had beaten and threatened to kill Llewellyn within approximately one and one-half hours before he was stabbed to death, and that Llewellyn was last seen alive with the defendant in that same time frame.

Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant stabbed Llewellyn Howard to death, and that all of the essential elements of the offense of manslaughter were proven beyond a reasonable doubt.

114There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the defendant argues that his maximum sentence of forty years at hard labor is constitutionally excessive.

La. Const, art. I, § 20 explicitly prohibits excessive sentences; State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Athough a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2984 at p. 10, 65,6 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally .excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7. (La.3/4/98), 709 So.2d 672, 677. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979.

In reviewing an excessive sentence claim, an appellate court must determine whether the trial judge has adequately complied with statutory guidelines in La. C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too |1ssevere in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762.

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence,' the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

La. R.S. 14:31(B) provides that whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. In the instant case the defendant received the maximum sentence, forty years. The court did make the sentence run concurrent with a thirty-year sentence the defendant was serving after pleading guilty to forcible rape, second-degree kidnapping and aggravated crime against nature — as requested by the defendant in a letter he wrote to the trial court.

In sentencing the defendant the trial court stated that it had taken into account the sentencing guidelines articulated in La. C.Cr.P. art. 894.1, and had balanced the aggravating circumstances of the case against any mitigating circumstances that would apply. The court referred to the presentence investigation report prepared on the defendant. The court noted the defendant’s -1990 plea of. guilty to the aforementioned charges of forcible rape and second degree kidnapping — charges that had been reduced from aggravated rape and | ^aggravated kidnapping — and aggravated crime against nature. The court-noted that thirty years of the sentence meted out for that conviction was suspended, but that the defendant’s probation had been revoked in that case after his conviction for the instant offense, and the thirty-year sentence at hard labor made executory. The court also noted a 1997 felony theft conviction, with a five-year sentence. The court noted the circumstances of the instant case, and stated that, considering the defendant’s violent criminal history, any lesser sentence than the maximum would deprecate the seriousness of the instant offense.

The presentence investigation report prepared on the defendant, who was thirty-nine years of age at the time of the June 2006 sentencing, shows a history of arrests dating back to November 1983. Of the arrests — aside from the ones mentioned above — five were for battery, one for aggravated battery, one for armed robbery, two for aggravated assault, one for carrying a concealed weapon that had an obliterated serial number, one for aggravated burglary, two for simple burglary, three for theft, one for possession of stolen things, one for theft by shoplifting, two for disturbing the peace, and one each for resisting an officer and pandering. Of all these offenses, the defendant was convicted of only one — theft by shoplifting in 1985. However, a trial court “is entitled to consider the defendant’s entire criminal history in determining the appropriate sentence to be imposed.” State v. Ballett, 98-2568, p. 25 (La.App. 4 Cir. 3/15/00), 756 So.2d 587, 602.

The defendant had served approximately four and one-half years in prison — on the convictions for forcible rape, second-degree kidnapping and aggravated crime against nature.

The defendant cites a number of cases involving sentences meted out for manslaughter that were less than the maximum of forty years. However, the 117defendant fails to cite any facts in these prior cases where the defendant had a prior conviction for a serious violent felony offense, as he does in the instant case, and thus the instant case is distinguishable from all of those on that issue alone. The defendant also had numerous prior arrests, as previously noted.

This court has previously affirmed maximum forty-year sentences for manslaughter. See State v. Bell, 2002-2349 (La.App. 4 Cir.App. 8/6/03), 854 So.2d 429; State v. Jones, 2001-0630 (La.App. 4 Cir. 3/20/02), 814 So.2d 623; State v. Williams, 99-2355 (La.App. 4 Cir. 12/13/00), 776 So.2d 604.

In addition, as noted, the defendant’s forty-year sentence for manslaughter is to run concurrently with the thirty-year sentence the defendant must serve for his conviction for forcible rape, second-degree kidnapping and aggravated crime against nature, after his probation was revoked. The trial court was not required to run these sentences concurrently. See La. C.Cr.P. art. 883.

Considering the foregoing, it cannot be said that the maximum sentence meted out to the defendant makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. Thus, we conclude the trial court judge did not abuse her sentencing discretion.

There is no merit to this assignment of error.

DECREE

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

AFFIRMED.

      . A trip sheet is a log kept by a police officer that documents the calls received from the police dispatcher during the course of his or her shift, the response time to each call, and any action taken by the officer.

      . State v. Brown, 2001-3564 (La.App. 2 Cir. 6/12/02); 825 8o.2d 596.


text:
    TOO EASY ENTERTAINMENT, LLC v. SEVEN ARTS PICTURES, INC., Asylum Productions UK Limited, and Peter Hoffman.
    No. 2006-CA-0015.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2007.
    James M. Garner, Timothy B. Francis, Joshua S. Force, Christopher C. Cho-cheles, Sher Garner Cahill Richter Klein McAlister & Hilbert, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellee.
    Michael P. Arata, Eugene J. Radcliff, Montgomery Barnett Brown Read Hammond & Mintz, L.L.P., New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   ON REHEARING GRANTED

JAMES F. McKAY III, Judge.

We granted a rehearing in order to reconsider our earlier opinion in this matter.

In our earlier opinion, we granted the outstanding motions to supplement the record and found that the motion to strike the defendants’ assignments of error was moot because the two appeals had been consolidated. We affirmed the portion of the trial court’s judgment as it pertains to the motion for protective order and sanctions awarded. We also reversed the trial court’s granting of summary judgment and remanded the matter for further proceedings not inconsistent with our ruling.

On rehearing, we affirm our earlier opinion.

AFFIRMED ON REHEARING.


author: SAUNDERS, Judge.

text:
    Eugene John TERRY v. Wilma Jane TERRY, Born Jones.
    No. CA 06-1406.
    Court of Appeal of Louisiana, Third Circuit.
    March 28, 2007.

      Kathleen Kay, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Eugene John Terry.

      Anne Elizabeth Watson, Dupre & Watson, L.L.C., Opelousas, LA, for Defendant/Appellant, Wilma Jane Terry, Born Jones.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

11 This is a domestic ease where a wife brought an action for final periodic support against her husband. The trial court found that the wife failed to carry her burden of proof that she was free from fault and that the husband’s fault is irrelevant in the proceedings.

The wife appealed these findings and we are requested to reverse the trial court’s decision that she did not carry her burden of proof, reverse that her husband’s fault is irrelevant to the proceedings, and render that she is entitled to final periodic support.

We reverse the trial court’s finding that the wife did not carry her burden of proof that she was free from fault. We affirm the trial court’s finding that the husband’s fault is irrelevant' in these proceedings. We remand this case for a determination by the trial court of the wife’s need and the husband’s ability to pay. Reversed, affirmed and remanded.

FACTS AND PROCEDURAL HISTORY:

Ms. Wilma Terry (hereinafter “Wilma”) was married to Mr. Eugene Terry (hereinafter “Eugene”) on April 2, 1987, in Jennings, Louisiana. Eugene worked ás a serviceman for Entergy for the duration of the marriage. Just after the marriage began, Wilma was in an automobile accident after which she suffered migraine headaches of such a nature and degree that she could not work and relied on Eugene to care for her through administering shots and pain medication daily.

Wilma’s medical condition remained the same until October 2000. At that time she went through a sinus surgery that cured her of her condition. Once she no longer suffered from- the migraine headaches, Wilma began to work for Southside 12Development Corporation (hereinafter “Southside”), a nonprofit company co-founded by Eugene.

The parties both testified that they had a wonderful marriage until around November of 2003. At that time, Eugene had begun to suspect that Wilma was having an affair with her coworker, Pastor Carl Fontenot (hereinafter “Pastor Fontenot”). Eugene’s suspicions were based upon talk in the community, a lack of intimacy and communication between he and Wilma, and long working hours that Wilma and Pastor Fontenot spent together. These working hours included business trips they took together with other people that worked at Southside.

■ Eugene expressed his concerns to Wilma and confronted both she and Pastor Fontenot. At a meeting of the three, called by Eugene to discuss his concerns, both denied that any affair was taking place. Wilma offered Eugene the option to accompany her and Pastor Fontenot to any business trips they took, but on all but one occasion, Eugene declined.

Eugene continually claimed that Wilma was having an affair with Pastor Fontenot. On one business trip to New Orleans, where Wilma did not invite Eugene to attend, Wilma lied to Eugene about where she was staying. When testifying regarding this lie, Wilma stated that she had taken the trip alone to get away from Eugene’s constant accusations that she was having an affair.

The parties physically separated on June 24, 2004, after Wilma left the family home. Wilma testified that Eugene had threatened to kill her if she did not leave the home. Wilma’s testimony was corroborated by various witnesses’ testimony that this event took place. Eugene filed a Petition for Divorce on July 24, 2004. A Judgment of Divorce was rendered on March 22, 2005.

lsOn May 17, 2005, Wilma filed a rule for final periodic spousal support. Following trial held on three different days, .a judgment denying final periodic spousal support was issued in the ease. The trial court found that Wilma did not carry her burden of proof that she was free from fault in the destruction of the marriage. The trial court reached this decision based on a finding that Wilma did not do enough to alleviate Eugene’s suspicions that she and Pastor Fontenot were having an affair. In its reasons for ruling, the trial court stated that Wilma could have rearranged her or Pastor Fontenot’s work schedule or arranged for them to not travel on business trips together. The trial court also determined that Eugene’s fault was irrelevant to the proceedings.

Wilma appealed this judgment alleging three assignment of errors. Wilma alleges that the trial court erred in finding that she did not carry her burden of proof that she was free from fault in the destruction of the marriage, that the trial court erred in failing to determine that Eugene’s fault was the sole cause of the breakup of the marriage, and that the trial court should have awarded Wilma final periodic support of $2,500 per month.

We reverse the trial court’s finding that Wilma did not carry her burden of proof that she was free from fault in the destruction of the marriage. We affirm- the trial court’s finding that Eugene’s fault is irrelevant in the proceedings. We remand the case to the trial court to determine Wilma’s need and Eugene’s ability to pay so as to determine what final periodic support, if any, is warranted in this case.

Reversed, affirmed and remanded.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in finding that -Wilma was at fault in the break up of the marriage by not taking steps to alleviate Eugene’s suspicions that she was |4having an adulterous affair and thereby denying her claim for final periodic spousal support?
2. Did the trial court err in failing to determine whether the break up of the marriage was due, solely to Eugene’s actions in accusing Wilma of adultery and threatening to kill her?
3. Did the trial court err in failing to award Wilma final periodic support in the amount of $2,500 per month, retroactive to May 17, 2005, when Wilma filed for final periodic spousal support?

ASSIGNMENT OF ERROR # 1:

Wilma argues that the trial court erred in denying her claim for final periodic spousal support. Wilma contends that this denial was in error because it was based on an erroneous finding that she was at fault in the breakup of the marriage by not taking steps to alleviate Eugene’s suspicions that she was having an adulterous affair. We agree.

It is well settled that a trial court’s factual findings regarding fault in the area of domestic relations are given great deference on review. If the trial court’s findings are reasonable, i.e. not manifestly erroneous or clearly wrong, then they will not be disturbed. Coleman v. Coleman, 541 So.2d 1003 (La.App. 3 Cir.1989).

Louisiana Civil Code Article 111, in pertinent part, states, “[T]he court .... may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage.[... ]” (emphasis added). The burden of proof regarding freedom from fault is on the party that is seeking support. Fault, in a permanent support context, is synonymous with conduct that would entitled a spouse to a separation of divorce under former La.Civ.Code arts. 138 and 139. Harrington v. Montet, 93-984 (La.App. 3 Cir. 3/2/94), 634 So.2d 1302.

Prior to its repeal, former Article 138 provided the grounds for separation of bed and board. Those grounds included the following: (1) adultery, (2) conviction 15of a felony if sentenced to death or imprisonment at hard labor, (3) habitual intemperance, excesses, cruel treatment or outrages of one of the spouses toward the other, if these intemperances make living together unsupportable, (4) public defamation, (5) an attempt on the other spouse’s life, (6) abandonment, (7) one spouse fleeing from justice when charged with a felony that one can prove the fleeing spouse was indeed guilty of committing, (8) intentional non-support of a spouse of the other spouse that is in destitute or necessitous circumstances, (9) when the spouses have lived separate and apart for six months with no reconciliation, and (10) when the spouses have lived separate and apart for six months and one spouse signs an affidavit indicating that the spouses have irreconcilable differences as to render their living together unsupportable and impossible.

Prior to repeal, former Article 139 provided grounds for immediate divorce. Those grounds included adultery and the other spouse’s conviction of a felony for which sentence given was death or imprisonment at hard labor.

Jurisprudence has broadened fault to include other activity that can be construed as fault for the purpose of denying periodic spousal support. For a spouse to be free from fault, that spouse must not have had any misconduct of a serious nature that is an independent, contributory or proximate cause of the failure of the marriage. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).

The trial court found that Wilma failed to carry her burden of proof that she was free from fault in the breakup of her marriage with Eugene. The trial court based this finding on its belief that Eugene had reasonable, growing suspicions regarding Wilma’s relationship with Pastor Fontenot. These suspicions led to Eugene’s lack of trust of Wilma and the eventual destruction of their marriage.

| fiThe trial court found that Wilma could have rearranged the work schedules of Pastor Fontenot and herself. Further, the trial court stated that Wilma could have made other arrangements regarding business trips that she, Pastor Fontenot, and others took. Because the trial court made these findings, it ruled that Wilma could have done more to alleviate Eugene’s suspicions. Therefore, the trial court found that she had some fault in the eventual divorce and denied her request for final periodic spousal support. We disagree.

There is no evidence in the record that Wilma had the power to rearrange either her or Pastor Fontenot’s work schedule. Further, there is no evidence that Wilma could decide who went on business trips for Southside. The only evidence in the record regarding business trips was testimony from both Wilma and Pastor Fonte-not that their attendance on these business trips was mandatory as part of their employment.

There is, however, evidence in the record that Wilma took some steps to attempt to alleviate Eugene’s suspicions. All testimony in the record indicates that Wilma vehemently denied ever having an affair with Pastor Fontenot. Also, at the request of Eugene, Pastor Fontenot met with Eugene and Wilma to discuss his suspicions. Both Wilma and Pastor Fon-tenot denied any affair had ever transpired between them. Further, the testimony of Wilma and Eugene indicated that Wilma had invited Eugene to attend the work related trips and there is at least one occasion where Eugene actually did attend a business trip with Wilma to Puerto Rico.

Moreover, there is no evidence that Eugene ever took steps to alleviate his concerns. If Eugene was concerned about any potential affair, he could have attended those trips that Wilma invited him to attend, but he choose not to do so. Further, 17Eugene is a man with the financial means to hire a private investigator to ascertain if there was an affair between Pastor Fontenot and Wilma, but again, he chose not to do so.

Eugene argues that there is enough evidence in the record to indicate that Wilma did something to promote Eugene’s suspicions and thereby preclude her from recovering final periodic spousal support. This evidence consists of a lie Wilma told Eugene about where she was staying when she took a trip to New Orleans. However, there is no evidence that Pastor Fontenot, nor anyone else, was on this trip with Wilma, nor is there any evidence that Wilma was not alone on this trip. In her testimony, Wilma stated that she lied to Eugene in order to relieve herself of his constant badgering regarding his suspicions.

The trial court did not comment on this situation in its reasons for ruling and focused more on Wilma’s lack of rearrangement of schedules and business trips in finding that Wilma was not free from fault. We find that Eugene’s argument that this isolated incident is enough to constitute fault is without merit. One lie told to a spouse that is not proven to lead to any faults listed in repealed Articles 138 and 139 and does not rise to a level of misconduct so serious in nature that it is an independent, contributory, or proximate cause of the failure of the marriage is not substantial enough evidence to find that Wilma is at fault in the case at bar.

Further, we find that the trial court’s ruling that Wilma could have done more to alleviate Eugene’s suspicions based on its findings is not supported by the record. Eugene has not argued, nor is there any evidence that Wilma committed any of the listed activities in repealed Articles 138 and 139. Moreover, there is also no indication that Wilma did any actions that would rise to a level of misconduct so | aserious in nature that it is an independent, contributory or proximate cause of the failure of the marriage as stated in Kendrick.

Therefore, we reverse the trial court’s judgment that Wilma failed to carry her burden of proof. We find that Wilma proved that she was free from fault and find that she is not precluded from receiving final periodic spousal support as a result of any misconduct presented in the record.

ASSIGNMENT OF ERROR # 2:

Wilma contends that the trial court erred in failing to determine whether the break up of the marriage was due solely to Eugene’s actions in accusing Wilma of adultery and threatening to kill her. We disagree.

For a spouse to be free from fault, that spouse must not have had any misconduct of a serious nature that is an independent, contributory or proximate cause of the failure of the marriage. Kendrick, 106 So.2d 707. (Emphasis added). When one spouse is seeking permanent periodic support, a determination of whether the other spouse’s fault contributed to the destruction of the marriage is irrelevant. Carr v. Carr, 33,167 (La.App. 2 Cir. 4/5/00), 756 So.2d 639.

In the case before us,' Eugene has not alleged any fault by Wilma that makes Eugene’s fault or lack thereof relevant. Any determination made by the trial court into whether Eugene was solely at fault, or at fault in any fashion would have been unnecessary and superfluous. As such, we find no merit in the assertion that the trial court should have determined whether Eugene was solely at fault for the breakup of the marriage. The trial court’s finding that Eugene’s fault is irrelevant is affirmed.

^ASSIGNMENT OF ERROR # 3:

Wilma argues that the trial court erred in failing to award her final periodic support in the amount of $2,500 per month, retroactive to May 17, 2005, when Wilma filed for final periodic spousal support. We find that the trial court, with further proceedings on remand, would be better suited to make this determination.

Louisiana Civil Code Article 111, in pertinent part, states, “[T]he court ... may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. [...]” (emphasis added).

Louisiana Code of Civil Procedure Article 2164 states in pertinent part, “[t]he appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” An appellate court will generally not adjudicate issues not ruled upon by the trial court, but when the appellate court has all of the facts and testimony and is able to pronounce with certainty on the case, that appellate court should render such judgment on appeal as the trial court should have rendered at trial. Kilboume v. Hosea, 19 So.2d 279 (La.App. 1 Cir.1944). However, when an appellate court finds that the interests of justice dictate that further evidence is required for the proper adjudication of the case, then the appellate court should remand the case to the trial court. Polizzi v. Thibodeaux, 35 So.2d 660 (La.App.Orleans 1948).

Because the trial court found that Wilma was not free from fault, it did not make any determination as to Wilma’s need, or of Eugene’s ability to pay support. Because there are no factual findings regarding these issues we either have to make a de novo review of the record or remand the case to the trial court for proceedings not inconsistent with this opinion. We find that there is not enough evidence in the Imrecord for us to make an accurate determination of Wilma’s need or Eugene’s ability to pay.

There is evidence in the record that Wilma could be entitled to a significant settlement once the community property is divided between the couple. Wilma’s potential portion of Eugene’s savings plan he had through Entergy (valued at $184,256.70 as of September 30, 2005) is a factor in making a determination as to her need and is also a factors as to Eugene’s ability to pay. While we know from Wilma’s testimony that Eugene began putting money into the savings plan at Entergy mainly when he was married to Wilma, we cannot determine how much, if any, of the money Wilma would be entitled to receive if the plan is indeed community property, another issue we cannot determine from the record.

Further, we cannot determine from the record the status of the family residence. While we know from testimony that Eugene purchased the home prior to marrying Wilma, we do not know if the home was fully paid for prior to the marriage or if the home’s equity was increased during the marriage. If it is the latter, Wilma may be entitled to receive half of that equity.

Therefore, we find that the record is incomplete regarding Wilma’s need and Eugene’s ability to pay and that further evidence is required for the proper adjudication of the case. As such, we remand this case to the trial court for further proceedings not inconsistent with this opinion.

^CONCLUSION:

Wilma raised three assignments of error. We reverse the trial court’s determination that Wilma was unable to carry her burden that she was free from fault. We affirm the trial court’s finding that Eugene’s fault is irrelevant in this case. We remand this case to the trial court for a determination of Wilma’s need and Eugene’s ability to pay. The costs of this appeal are assessed to Eugene.

REVERSED, AFFIRMED, AND REMANDED.

      . There can be an exception to this general statement such as when one spouse is attempting to prove freedom from fault when that spouse is being accused of abandopment as noted in footnote 1 of Gitschlag v. Gitschlag, 593 So.2d 1331, 1335 (La.App. 1 Cir.1991). Eugene has not argued that Wilma was at fault for abandonment.


author: DAVID S. GORBATY, Judge.

text:
    Kathleen TRANT and Charles A. Trant, Sr. v. UNITED FIRE & CASUALTY INSURANCE COMPANY, Lafayette Insurance Company, Oakridge Park, Inc. d/b/a The Quarter House, The Quarter House Owners Association And Paul Dorsey.
    No. 200.6-CA-1494.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2007.
    Rehearing Denied April 25, 2007.

      David W. Bernberg, Henna Ghafoor, New Orleans, LA, for Plaintiff/Appellee.
    Raymond A. Pelleteri, Jr., Pelleteri, Wiedorn & Cooper, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO Jr.).
   DAVID S. GORBATY, Judge.

bin this appeal, defendants contend that the jury erred in finding the Quarter House Condominium Association (“Quarter House”) negligent, and in failing to exclude from evidence Quarter House’s offer to pay plaintiffs medical bills. For the reasons set forth below, we reverse.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Trant filed suit for injuries sustained by Mr. Trant on March 22, 1998 while in the Quarter House Condominium building. Mr. Trant was walking past a fire door in the lobby when the door was suddenly opened, knocking him down. The man who opened the door has not been identified.

Plaintiffs filed suit alleging negligence against Quarter House and its insurer, United Fire & Casualty Company (“United Fire”). After a jury trial, judgment was rendered in favor of plaintiffs. Quarter House was found to be 90% at fault in causing Mr. Trant’s injuries, and the unknown third party was assigned 10% of the fault. Mrs. Trant was awarded $15,000.00 for loss of consortium. Mr. Trant was awarded $20,000.00 for past pain and suffering, $20,000.00 for past medical expenses, $20,000.00 for future pain and suffering, and $40,000.00 for future medical expenses. Defendants subsequently filed this appeal.

| ^DISCUSSION

In their first assignment of error, defendants assert that there is no evidence to support a conclusion that Quarter House was negligent in causing the accident, or that the door was an unreasonably dangerous defect.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). In Mart v. Hill, 505 So.2d 1120 (La.1987), the Louisiana Supreme Court posited a two-part test for the reversal of a factfinder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. at 1127 (quoting Arceneaux v. Domingue, 365 So.2d at 1333 (La.1978)).

This test dictates that the appellate court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding. Id. The appellate court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

Louisiana Civil Code article 2317.1 provides in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Plaintiffs bear the burden of proof at trial, and cannot prevail by merely showing that an accident occurred on the defendant’s premises. Plaintiffs offered |sno evidence that the fire door, or any other part of the premises, was in any way defective or unreasonably dangerous. To the contrary, the testimony that was presented at trial established that the premises was safe, well-maintained, and in compliance with applicable standards.

The testimony of Paul Dorsey, the developer of the Quarter House project, established that there was no construction defect involving the fire door, much less an unreasonably dangerous defect. Mr. Dorsey testified that he was not aware of any other accidents involving the door. The door, which is in the lobby next to the elevators, is a fire door that leads to escape stairs. Dorsey testified that, when plans were made to develop the building into its present state, he hired an architect and a contractor, and submitted the plans and received approval from the City Planning Commission, the Historic District Landmark Commission, and the Louisiana State Fire Marshall. The property was designed according to the Code and according to what the Department of Safety and Permits would allow.

Vincent Saladino, the chief operating engineer for Quarter House, confirmed that there had never been an accident similar to Mr. Trant’s involving the fire door in the eleven years he had been employed there. He also stated that he had no personal knowledge or evidence that any “near misses” had occurred.

Saladino testified that, on the lobby side of the fire door, there is a glowing exit sign near the door that marks the door and its location. He further testified that, for as long as he could remember, the stairwell side of the door had a sign on it that said, “Open door very slowly.” In response to the suggestion that some kind of restriction could be made on the ability of the door to open, Saladino stated, “[F]ire marshals are very strict about those doors being free, clear, and easily opened.”

| ¿For a defect to create an unreasonable risk of harm, for purposes of premises liability under Louisiana law, the defect must be of such a nature as to constitute a dangerous condition that would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Ports v. Circle K. Stores, Inc., W.D.La.2005, 395 F.Supp.2d 442. There was nothing inherently dangerous about the fire door. It served a necessary purpose, and in fact a required one, as a means of egress in case of a fire. The fact that the door might be opened did not create a dangerous condition that would be expected to cause injury. Rather, it was an essential and expected part of its function. Plaintiffs presented no evidence at trial of any negligence by Quarter House, and no evidence whatsoever of an unreasonably dangerous defect in the fire door. Plaintiffs failed to carry their burden of proof. As such, we hold that the jury’s findings are manifestly erroneous, and that there is no reasonable factual basis for its conclusions. This assignment of error has merit.

In light of this ruling, the remaining assignment of error is moot, and we need not address it.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed.

REVERSED.