author: CHARLES R. JONES, Judge.

text:
    Nancy BARCIA and Angelo J. Barcia v. LOUISIANA MEDICAL MALPRACTICE INSURANCE COMPANY and Argimiro Lago, M.D.
    No. 2010-CA-1424.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 2011.
    Rehearing Denied June 22, 2011.

      Terrence J. Lestelle, Andrea S. Lestelle, Jeffery B. Struekhoff, Richard M. Mor-gain, Lestelle & Lestelle, APLC, Metairie, LA, Robert L. Salim, Natchitoches, LA, for Plaintiffs/Appellants.
    Harvey J. Godofsky, Batiza Godofsky Schroeder & Coles, Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

liThe plaintiffs/appellants, Nancy and Angelo Barcia (the Barcias), seek review of a district court judgment sustaining the peremptory exception of prescription filed by the defendants/appellees, Dr. Argimiro Lago, M.D., and the Louisiana Medical Malpractice Insurance Company (LMMIC). After our review of the record on appeal, we affirm.

The underlying facts giving rise to the instant suit stems from the March 29, 2005, death of the seventeen year-old son of the Barcias, Chad Barcia, who was a patient of pediatrician, and named appel-lee, Dr. Lago. Chad Barcia suddenly collapsed and expired while playing rugby at school.

Dr. Lago had last seen Chad Barcia as a patient on March 26, 2005. Mrs. Barcia was present with Chad during this office visit on the same date. The Barcias argue that Dr. Lago should not have prescribed to their son the ADD (attention deficit disorder) drug Adderall (a drug classified as an amphetamine) because it [2was “allegedly contraindicated” since, as they claimed, their son had a cardiac condition, despite the fact that Chad had been on a similar ADD drug for many years preceding March 2005.

The first action filed by the Barcias was a Products Liability claim against Shire Pharmaceuticals, the manufacturer of Ad-derall, in the U.S. District Court in New Orleans on March 21, 2006. The Barcias argued that the Products Liability claim was filed well within one year from the date of the death of Chad. About four and one-half (4½) months later, the Barcias filed a medical malpractice complaint with the Patient’s Compensation Fund (PCF), on August 9, 2006.

In response to the PCF complaint, Dr. Lago argued that the August 9, 2006, filing date was greater than one year from the March 29, 2005, date of the death of Chad Barcia and was also greater than one year from the date the Barcias knew or should have known of a relationship between the prescription of Adderall to Chad and his subsequent death.

On November 6, 2006, the U.S. District Court issued an order staying the federal litigation pending the completion of the review by the medical review panel stemming from August 9, 2006 PCF claim against Dr. Lago. The U.S. District Court specifically mandated in its Order of Stay that the Barcias had leave to reopen the stayed lawsuit “within 30 days of receipt of the medical review panel opinion.”

lsTo date, the Barcias have never sought to reopen the Federal case, as was specified in the U.S. District Court order. Thus, at this time, the federal Products Liability case may have been abandoned.

Thereafter, a Petition for Subpoena Power was filed in the 24th Judicial District Court (24th JDC), under docket number 636-577, by Dr. Lago on September 22, 2006. Dr. Lago then filed an exception of prescription, which was subsequently opposed by the Barcias. After a hearing on the exception on November 28, 2006, the 24th JDC denied the Exception of Prescription. A timely writ application was filed in the Louisiana Fifth Circuit Court of Appeal under docket number 2006-974. On February 28, 2007, the Fifth Circuit denied the writ application, noting “[w]e find relator has an adequate remedy on appeal. We, therefore, decline to exercise our supervisory jurisdiction.” Writing separately in a concurrence, Judge Daley noted:

I agree with the majority’s decision to deny this writ application. At this stage of the proceeding, the Barcias have only filed a petition with the Patient’s Compensation Fund and the type of damages sought by the Barcias is unclear. In Taylor vs. Giddens, 618 So.2d 834 (La.1993), the Supreme Court held that in a medical malpractice lawsuit, the prescriptive period for a wrongful death action is controlled by C.C. Art. 3492, while the prescriptive period for a survival action is controlled by LSA-R.S. 9:5628.

On August 10, 2009, the Medical Review Panel issued its findings and concluding that Dr. Lago did not deviate from the standard of care in his treatment of Chad Barcia. The Barcias then filed a lawsuit in the Civil District Court for the Parish of Orleans (CDC), on November 10, 2009. On May 18, 2010, Dr. Lago and LMMIC filed an exception of prescription to this lawsuit and a motion for summary judgment, therein arguing that the Barcias had not filed their lawsuit Lwithin the one-year prescriptive period, and as to the motion for summary judgment, that there were no genuine issues of material fact to preclude summary judgment. The Barcias filed oppositions to both the exception and the motion for summary judgment. The Bar-cias also attached an affidavit from a surgeon, Dr. William D. Zeichner, to their memorandum.

On July 7, 2010, the district court rendered judgment granting the exception of prescription and offered written reasons which elicited that the Barcias had waited too long, after having more than sufficient information to reasonably believe they may have had a cause of action against Dr. Lago, to file their PCF complaint in August 2006. The district court also found that the Barcias had retained counsel well within the one year period after the death of Chad, as evidenced by the timely filing of the claim in federal court against the drug manufacturer. The district court also noted that Mrs. Barcia was present with her son during the final office visits and was well aware that he was prescribed Adderall, even though he had complained of symptoms which she believed to be cardiac in nature. The district court further noted that Mrs. Barcia understood that Chad’s death was associated with the “effects of amphetamine.” The autopsy findings had concluded the same.

The Barcias filed a motion for new trial on July 23, 2010, arguing that “... it was Dr. Lago who prescribed the Adderall and that Chad died due to the Adderall....” They further argued that the doctrine of contra non valentón was misapplied by the district court in granting the exception of prescription. The Barcias also argued that since they received the medical records in February 2006, Land despite the personal first-hand knowledge of Mrs. Barcia in her affidavit of July 28, 2009, they argued that the medical records contained information proving their first reasonable knowledge of any cause of action they may have. The motion for new trial was denied by the district court on July 27, 2010. This timely appeal followed.

On appeal, the Barcias raise the following assignments of error:

1. At the hearing granting the exception of prescription, the district court erred by misconstruing or incorrectly applying the doctrine of contra non valentem;
2. The district court erred as to when the Barcias knew or should have known of the negligence of Dr. Lago;
3. The district court erred by not fixing a date prior to July, 2006 on which Mr. Salim and/or the plaintiffs knew or should have known of the negligence of Dr. Lago, nor finding a basis for such knowledge;
4. The district court erred in holding that the Barcias had actual or constructive knowledge of the alleged medical malpractice/negligence of Dr. Lago because the Barcias knew that Chad Barcia had taken Adderall that Dr. Lago prescribed;
5. The district court erred in holding that the Barcias had actual or constructive knowledge of the alleged medical malpractice/negligence of Dr. Lago on or before August 8, 2005 because the Barcias filed a Products Liability action against the manufacturer of Adderall on March 21, 2006;
6. The district court erred in rejecting or disregarding the affidavit and certified pleadings of - Mr. Salim; and
7. The district erred in rejecting or disregarding the judgment of the 24th JDC which denied exception of prescription of Dr. Lago.

DISCUSSION

This Court in Parker v. B & K Const Co., Inc., 2006-1465 (La.App. 4 Cir. 6/27/07), 962 So.2d 484, discussed the standard of appellate review for the grant of an exception of prescription by a district court:

| fi[i]n reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Davis v. Hibernia National Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61. When evidence is received on the trial of the peremptory exception, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard as articulated in Stobart v. State Through Dept. of Tramp. And Development, 617 So.2d 880 (La.1993).
Katz v. Allstate Ins. Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444.
Additionally, it is well-settled that “the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished.’ ” Katz, 917 So.2d at 445 (quoting Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214, and Louisiana Health Service v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1098).

Parker v. B & K Const. Co., Inc., 2006-1465, p. 2, 962 So.2d at 485. However, as noted by the Supreme Court, in Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261,

[t]o soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem non currit praescriptio, which means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992); see also, Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054 (La.1987); Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285, 287 (1970); R.O.M., Note, Gover v. Bridges: Prescriptionr-Applicability of Contra Non Valentem Doctrine to Medical Malpractice Actions, 61 Tul. L.Rev. 1541, 1541 n. 1 (1986-1987).

Id., 2004-0646, p. 11, 892 So.2d at 1268. The Court went on to state:

In Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054-55 (La.1987), we recognized the four instances where contra non valentem is applied to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. These categories thus allow “the courts to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” R.O.M., supra at 1545. Contra non valentem in medical malpractice suits is embodied in La. Rev.Stat. Ann. § 9:5628. White v. West Carroll Hospital, Inc., 613 So.2d 150, 155 (La.1992).

Id., 2004-0646, pp. 11-12, 892 So.2d at 1268-69. In addition, “... [t]he trial court is not required to accept the allegations of the petition as true for an exception of prescription.” Bowers v. Orleans Parish Sch. Bd., 95-2530, p. 7 (La.App. 4 Cir. 5/29/96), 694 So.2d 967, 972. (Emphasis in original).

As relates to an action in medical malpractice, the prescriptive period is set forth in La. R.S. 9:5628(A), which provides:

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

Ferrara v. Starmed Staffing, LP, 2010-0589, p. 2 (La.App. 4 Cir. 10/6/10), 50 So.3d 861, 864. (Emphasis added).

While the Barcias have raised seven (7) assignments of error in the instant matter, several of the assignments, particularly assignments one (1) through five (5), are duplicative because they concern the issue of whether the Barcias had actual or constructive “knowledge” sufficient to be aware of their cause of action.

We have determined that the following timeline is relevant:

March 29, 2005: Chad Barcia dies from a heart attack;
August 28, 2005: Mandatory civil evacuation for Hurricane Katrina;
August 29, 2005: Hurricane Katrina strikes;
September 17, 2005 Residents allowed to return to certain areas;
September 20, 2005 Mandatory civil evacuation for Hurricane Rita;
September 23, 2005 Hurricane Rita strikes;
September 29, 2005 Certain zip codes allowed to return to the city;
January 2006: Dr. Lago provides “incomplete” medical records to Mr. Salim, counsel for the Barcias;
January 28, 2006: Dr. Lago writes a letter acknowledging incompleteness of the records he had sent;
February 14, 2006: Dr. Lago provides medical records to the Barcias;
March 21, 2006: The Barcias file a Products Liability claim in federal court against the manufacturer of Adder all;
| g July 2006: The attorney for the Barcias, Mr. Salim, obtains and reviews additional pages of medical records, particularly the visits of February 14th of 2005 and March 14th of 2005, from Dr. Lago;
August 9, 2006: The Barcias file a complaint with the PCF;
August 10, 2009: The Medical Review Panel issues its findings that Dr. Lago did not act below the standard of care;
November 9, 2009: The Barcias file their petition for damages in CDC;
May 18, 2010: Dr. Lago and the LMMIC filed an exception of prescription to the lawsuit and a motion for summary judgment;
July 7, 2010: The district court grants the exceptions of prescription and motion for summary judgment of Dr. Lago and the LLMIC;
July 23,1010: The Barcias file a motion for new trial;
July 27, 2010: The motion for new trial of the Barcias is denied by the CDC.

We now turn our attention to the relevant testimony as to the parties and other persons involved in this matter.

Mrs. Barcia

In her affidavit dated July 28, 2009, Mrs. Barcia stated that she was solely responsible for taking her son, Chad, to his medical appointments for treatment of depression and weight management. Chad began his treatment with Dr. Lago sometime in 2003, after his original doctor retired. She also stated that she | inaccompanied Chad to all of his appointments, including the appointments immediately preceding his death on February 14th and March 14th of 2005. She indicated that on February 14, 2005, Dr. Lago restarted Chad on Concerta for his ADD, noting that Chad had stopped taking the Concerta for about one year prior to that date.

She indicated that a week after Chad restarted the Concerta, he expressed that he had a severe headache, experienced tightness in his chest, and that his heart felt that it would “pound out of his chest.” She stated that she asked Chad if he wanted to go to the Emergency Room, but after a few minutes, he said that he did not want to go. At that time, she instructed Chad not to take the Concerta. The following morning, she called Dr. Lago and scheduled an appointment. However, the appointment had to be rescheduled to March 14, 2005.

At the following appointment, Mrs. Bar-cia told Dr. Lago that she had instructed Chad not to take the Concerta, and she also reported the symptoms Chad experienced. She stated that Dr. Lago opined that Chad probably had a reaction to the Concerta and that he was going to put him on Adderall, in place of the Concerta. At this same visit, Mrs. Barcia indicated that Dr. Lago advised Chad that his blood pressure was slightly elevated and asked Chad if he was nervous.

Mrs. Barcia indicated that she knew with certainty that Chad took the Adderall on March 21st, 22nd, and 23rd of 2005. She further stated that while she knew Chad took the Adderall on school days, she was sure that he continued to take the medication while he was out of school during the Easter Break. She also indicated that on the date of Chad’s death, she and her husband were in Costa Rica.

111 Dr. Lago

Dr. Lago was deposed on December 3, 2008. He testified that he became Chad’s treating physician in 2000, after another doctor in the practice retired. He stated that the medical records reflecting his treatment of Chad started in March of 2000. He also testified that he did not personally prepare the request for medical records requested by Mrs. Barcia. He also could not recall when the request for the records was made other than that it was in 2006.

Mr. Robert L. Salim

Mr. Salim is an attorney for the Barcias. He signed an affidavit, dated November 21, 2006, and admitted therein that he “obtained and subsequently reviewed the medical records for Chad Barcia” from Dr. Lago’s office in July of 2006.

Mr. Andrea S. Lestelle

Mr. Lestelle is also an attorney for the Barcias. He appeared in court for the proceedings on November 28, 2006, at the 24th JDC, wherein the district court denied the exception of prescription of Dr. Lago. In addition, Mr. Lestelle and Mr. Salim are listed as counsel of record on the Petition for Damages filed in the CDC on November 9, 2009.

In the instant matter, the Barcias argue that the “discovery doctrine,” or rather the fourth criteria of the doctrine of contra non valentem — suspends prescription until the plaintiff “should have discovered” the potential action against a specific defendant. The Barcias argue that while the district court correctly found that the doctrine of contra non valentem applies to wrongful death claims, it misconstrued or incorrectly applied the doctrine to the instant case. They argue that it is a settled matter of law that Louisiana courts recognize four situations in 112which prescription does not run against a plaintiff under the doctrine of contra non valentem.

In support of their argument that the prescriptive period in the instant matter was suspended, the Barcias point to Footnote 10 of In re: Medical Review Panel of Moses, 00-2643, p. 8 (La.5/25/01), 788 So.2d 1173, 1179, for their argument that pursuant to the “discovery doctrine,” codified in La. R.S. 9:5628:

Contra non valentem is a judicially created exception to prescription based on the civil doctrine of contra non valentem agere nulla currit praescriptio, which means prescription does not run against a party who is unable to act. Crier v. Whitecloud, 496 So.2d 305, 307 n. 4 (La.1986)(on reh’g). Four categories of contra non valentem have been recognized. The first two categories are rarely invoked. In re Medical Review Panel Proceeding of Vaidyanathan, 98-0289 (La.App. 4th Cir.9/23/98), 719 So.2d 604, writ denied, 98-2674 (La.12/18/98), 732 So.2d 1238. As noted, the fourth category is equivalent to the discovery doctrine. Under the discovery doctrine, “prescription does not begin to accrue until the plaintiff should have discovered that he had a reasonable basis for pursuing a claim against a specific defendant.” Frank L. Maraist <& Thomas C. Galligan, Jr., Louisiana Tort Law § l(M(c) at 224 (1996). The fourth category is embodied in Section 5628, which both codifies the discovery rule and legislatively overrules it to the extent it applies to medical malpractice actions filed more than three years from the date of the act, omission or neglect.

Id., 2000-2643, p. 8 (La.5/25/01), 788 So.2d 1173, 1178, n. 10.

They argue that the key aspects of La. R.S. 9:5628(A) are the clauses: “or within one year from the date of discovery of the alleged act, omission, or neglect,” and “in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.” The Barcias argue 11sthat these two clauses allow a prescriptive period of one year from the date of discovery and a peremptive period of three years from the date of the alleged act, omission, or neglect, and that, therefore, contra non va-lentem is applicable generally under Louisiana law as well as specifically applicable to Medical Malpractice actions filed under the Louisiana Medical Malpractice Act.

The Barcias argue that the medical records were either “withheld or lost” by Dr. Lago until February 2006, the month before the anniversary of Chad’s death. Further, the Barcias also argue that at the hearing on the exception, the district court erred in applying a “could have known” standard as opposed to a “should have known” standard as reflected in the transcript of the proceedings that records the oral basis for the Court’s ruling:

The lawyer could have found the information sooner. I just don’t think that’s contra non valentem. Contra non va-lentem is you had no way of knowing] what happened]. That didn’t happen here.

The Barcias also point out that during the hearing on the exception, the district court asked whether the Barcias’ attorney, Mr. Salim, “could have” reviewed the medical records of Chad Barcia “sooner than July 6, 2006.” They argue that the district court erred in posing the question of whether Mr. Salim could “wait ten years to look at records” before prescription begins to accrue. The Barcias argue that the proper determination for prescription is whether the plaintiff knew or should have known through the exercise of due diligence caused by medical malpractice.

Dr. Lago and the LMMIC argue that the district court correctly applied the law of prescription as it applies to wrongful death and medical malpractice actions. | uThey argue that the Barcias knew “of all material facts to excite attention and curiosity so as to be placed on constructive notice of a cause of action.” Dr. Lago and the LMMIC also argue that in a wrongful death case it is the date of death that triggers the running of prescription, and they further contend that the date of knowledge of any medical error is inconsequential. They argue that the Barcias had sufficient information to become aware of a possible cause of action, and that, therefore, the prescriptive clock had run. They further argue that regardless of the argument of the Barcias, “the correct law,” as argued by Dr. Lago and the LMMIC, is that “prescription runs from the date of death in wrongful death,” cases regardless of the date of discovery.

A case which is most on point is Borel v. Young, 2007-0419 (La.11/27/07), 989 So.2d 42. In Borel, the family of a deceased patient filed a medical malpractice complaint with the PCF against the medical center at which the decedent was treated and against the physicians who provided treatment. Id., p. 2, 989 So.2d at 45. After the medical panel convened, it concluded there was no deviation from the standard of care by the facility, nor the physicians. Id. However, two years later, the family of the decedent filed a separate malpractice lawsuit in the district court against the medical center, but neglected to name the treating physicians and their insurers. Id., p. 3, 989 So.2d at 45. The family attempted to amend their original petition to add the treating physicians and their insurer as defendants; however, the motion to amend was denied by the district court. Id. Shortly thereafter, the family filed a separate lawsuit for medical malpractice against the treating physicians and their insurers, arguing that the 11Rdoctors were jointly, severally and in solido liable with the medical facility for the negligent treatment of the decedent. Id. In response to this second lawsuit, one of the physicians and an insurer filed an exception of prescription. The family opposed the exception and argued that the filing of suit against joint tortfeasors, interrupted prescription as to all other joint tortfeasors. Id.

The lawsuits were later consolidated. Id., p. 3, 989 So.2d at 46. At the hearing on the exception of prescription filed by a physician and an insurer, the district court concluded that the action was perempted and granted the exception of prescription. Id., pp. 3-4, 989 So.2d at 46. The family appealed. Id., p. 5, 989 So.2d at 46. The Third Circuit Court of Appeal affirmed. Id. The family of the decedent filed writs of certiorari to the Supreme Court. The Supreme Court affirmed the district court and Third Circuit on the grounds that the three-year time period for filing a medical malpractice action was peremptive. Id., p. 13, 989 So.2d at 51. In particular, the Court wrote:

... [T]he statute provides that suit must be brought within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of same. With respect to the latter, the claim shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. Clearly, the statute sets forth more than one period — the basic one year prescriptive period for delictual actions, coupled with the “discovery” exception of our jurisprudential doctrine of contra non valentem, and a separate and independent three-year time period for filing “at the latest.” The issue in this case is whether the three-year provision is interpreted as prescriptive or peremptive. If the provision is peremptive, plaintiffs’ claim against Dr. Young, filed more than three years after the alleged act of malpractice, has been extinguished, and plaintiffs’ suit must be dismissed. If the provision is prescriptive, it is potentially susceptible to interruption based on the general codal provisions of La. Civ.Code art. 2324(C).
In Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986), this Court held that La.Rev.Stat. § 9:5628 was in both its features a prescription statute interpreting for the first time 1975 La. Acts. No. 808, which enacted this provision. Within a year of the Hebert decision, the Legislature amended and reenacted La. Rev.Stat. § 9:5628 by passing 1987 La. Acts. No. 915. The most substantial amendments to the provisions relevant to this opinion changed the language as to the three-year period from; — “provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect” — to read;— “however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.” Based on our research, this Court has never addressed the effect of the amendments and the reenactment. In this case, the court of appeal relied on Hebert without noting the change in the law.
... [biased on these well established presumptions, we now examine and interpret the amended and reenacted provisions of La.Rev.Stat. § 9:5628.
Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. Civ.Code art. 3458. Thus, peremption is a period of time, fixed by law, within which a right must be exercised or be forever lost. Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900). Consequently, peremption may not be renounced, interrupted, or suspended. La. Civ.Code art. 3461. It may, however, be pleaded or supplied by the court on its own motion at any time prior to final judgment. La. Civ.Code art. 3460. Peremption differs from prescription in several respects. While liberative prescription merely prevents the enforcement of a right by action, it does not terminate the natural obligation; per-emption, however, destroys or extinguishes the right itself. Ourso, 02-1978 at p. 4, 842 So.2d at 349; Hebert, 486 So.2d at 723; Pounds v. Schori, 377 So.2d 1195, 1198 (La.1979). Public policy requires that rights to which peremp-tive periods attach are extinguished after passage of a specific period of time, and accordingly, nothing may interfere with the running of a peremptive period. Ourso, 02-1978 at p. 4, 842 So.2d at 349; Hebert, 486 So.2d at 723; Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, 1298. The peremptive period may not be interrupted or suspended or renounced, and exceptions such as contra non valentem are not applicable. Ourso, 02-1978 at p. 4, 842 So.2d at 349; Hebert, 486 So.2d at 723; Reeder, 701 So.2d at 1298. On the other hand, as an inchoate right, prescription may be renounced, interrupted, or suspended, and contra non valentem applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Ourso, 02-1978 at p. 4, 842 So.2d at 349; Hebert, 486 So.2d at 723; Reeder, 701 So.2d at 1298. It is not always easy to determine whether a period of time fixed by law is peremptive or prescriptive, and the determination must be made in each case in light of the purpose of the rule in question and in light of whether the intent behind the rule is to bar an action or to limit the duration of a right. La. Civ.Code art. 3458, Comment (c). Thus, the pertinent question in this case becomes whether the Legislature intended the three-year provision to be prescriptive or peremptive.
⅝ * ⅜ ⅜ * *
We turn now to the issue of whether La.Rev.Stat. § 9:5628 is peremptive and, therefore not susceptible of suspension, interruption, or renunciation for any reason, or prescriptive. We do so ever mindful of the jurisprudence of this Court holding that peremption is a matter to be determined by legislative intent and public policy. We begin with a search for legislative intent.
What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. State v. Williams, 00-1725, p. 13 (La.11/28/01), 800 So.2d 790, 800; La.Rev.Stat. § 24:177(B)(1). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature, nor shall the letter of the law be disregarded under the pretext of pursuing its spirit. La. Civ.Code art. 9; La.Rev. Stat. § 1:4; La.Code Civ. Proc. art. 5052. The plain meaning of the legislation should be conclusive. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989); State v. Benoit, 01-2712, p. 3 (La.5/14/02), 817 So.2d 11, 13. Considering the plain, explicit language of the statute, the obvious purpose behind the statute, and the readily apparent public policy, which mitigates against suspension, interruption, or renunciation of the time limit and in favor of certainty in terminating causes of action, we find La.Rev.Stat. § 9:5628 establishes a peremptive time period.

Borel v. Young, 2007-0419, pp. 6-13 (La.11/27/07), 989 So.2d 42, 48-51.

Shortly thereafter, however, the Supreme Court granted rehearing to the family of the decedent solely to address whether the amendment and reenactment of La. R.S. 9:5628 by 1987, Act. No. 915 § 1, created a substantive change in the statute by transforming the three-year time limitation from a prescriptive period to one of preemption. Id., p. 1, 989 So.2d at 53. In its analysis of Borel on rehearing, the Supreme Court extensively discussed the prescriptive and peremptive periods for claims brought under the Medical Malpractice Act relating to La. R.S. 9:5628, as follows:

As we explained in our original opinion, it is not always easy to determine whether a particular time limitation is prescriptive or peremptive, and the civil code gives no guidance on how to make such a determination. Borel, at 47-48. As a result, “this court has resorted to an exploration of the legislative intent and public policy underlying a particular time limitation, for it is primarily whether the legislature intended a particular time period to be prescriptive or per-emptive that is the deciding factor in such a case.” State, Division of Administration v. McInnis Brothers Construction, 97-0742, p. 4 (La.10/21/97), 701 So.2d 937, 940. Typically, courts look to the language of the statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption or renunciation of that time limit to determine whether a time limitation is prescriptive or peremptive. State Board of Ethics v. Ourso, 02-1978, p. 5 (La.4/9/03), 842 So.2d 846, 849. An examination of each of these factors in the present case reveals that 1987 La. Acts No. 915, § 1, amending and |19re-enact-ing LSA-R.S. 9:5628, does not evidence a legislative intent to change the result of Hebert and make the statute’s three-year period peremptive.
Because what the legislature says in the text of a statute is considered the best evidence of legislative intent, State v. Williams, 00-1725, p. 13 (La.11/28/01), 800 So.2d 790, 800, we begin with an examination of the language of LSA-R.S. 9:5628. Clearly, there is no language in LSA-R.S. 9:5628, as amended and reenacted by 1987 La. Acts. No. 915, § 1, which indicates the legislature’s intent that the three-year time period is peremptive. While we have held that it is not necessary for the legislature to state in a statute that it is peremptive in order for this court to hold that it is in fact peremptive, State Board of Ethics v. Ourso, 02-1978 at 5, 842 So.2d at 349, in some cases where this court has found a time period to be peremptive, specific language in the statute clearly indicated the legislature’s intent in that regard. See, e.g., Reeder v. North, 97-0239, p. 9 (La. 10/21/97), 701 So.2d 1291, 1297 (“The legal malpractice statute of limitations ... La. R.S. 9:5605 expressly states that the period is ‘peremptive’ and ‘in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.’ ”). When the legislature wishes to enact a peremptive period, it certainly knows how to make that intention manifest.

Id., 2007-0419, p. 12, 989 So.2d at 59. The Court further noted:

In our original opinion, we relied almost exclusively on the legislature’s use of the word “shall” in the statute as indicative of its intent to create a per-emptive period. Borel, at 50. However, if, as originally opined, the substitution of the word “shall” for “must” indicates a legislative intent to change the law and create a peremptive period, then we would be compelled to conclude that not only the three-year period, but also the one-year period, is peremptive, because the statute clearly states that “[n]o action ... shall be brought unless filed within one year.” LSA-R.S. 9:5628 (emphasis added). Such an interpretation of LSA-R.S. 9:5628, would produce an irreconcilable conflict between the statute and the provisions of the Medical Malpractice Act, a result clearly not intended by the legislature.
The laws of statutory construction require that laws on the same subject matter be interpreted in preference to each other. LSA-C.C. art. 13; Louisiana Municipal Association v. State, 04-0227, p. 36 (La.1/19/05), 893 So.2d 809, 837. Where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. Id.; Hollingsworth v. City of Minden, 01-2658, p. 4 (La.6/21/02), 828 So.2d 514, 517.
Louisiana Revised Statutes 9:5628 cannot be examined alone, but must be interpreted in conjunction with the provisions of the Medical Malpractice Act, codified in LSA-R.S. 40:1299.41, et seq. As we explained in LeBreton, the Medical Malpractice Act prohibits the filing of a medical malpractice claim against a qualified health care provider prior to presenting the complaint to a medical review panel. The legislature, in enacting this legislation, took special cognizance of the-need to fully protect plaintiffs from the detrimental effect of liberative prescription; the legislature provides for suspension of the time within which suit must be filed during the pendency of the review process and for ninety days following notification to the claimant or his or her attorney of the panel opinion. LeBreton, 97-2221 at 10, 714 So.2d at 1230-1231; LSA-R.S. 40:1299.47(A)(2)(a) and (c). Indeed, the Medical Malpractice Act is replete with provisions respecting the operation and effect of this suspension. Suspension, as we have explained, applies only to prescription; a peremptive period, by definition, is not subject to interruption, suspension or renunciation. LSA-C.C. art. 3461; Hebert, 486 So.2d at 723. To suggest that the language of LSA-R.S. 9:5628 and, in particular, the use of the word “shall,” indicates an intent to establish a peremptive period would be to render the provisions of the Medical Malpractice Act relative to suspension meaningless, a result we cannot condone. Hollingsworth, 01-2658 at 5, 828 So.2d at 517 (“[C]ourts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.”).

Id., 2007-0419, pp. 13-16, 989 So.2d at 60-62. (Emphasis in original). Additionally, the Court noted that:

[a]s to the public policy concerns which underlie the enactment of LSA-R.S. 9:5628, and mitigate for or against suspension, interruption, or renunciation of its 121time limits, Hebert explains that the statute is a prescription statute with a qualification, that is, the contra non valentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission, or neglect, and that:
[t]his legislative limitation to a maximum of three years on the application of the discovery rule for a tort action involving medical malpractice-the discovery rule is an embodiment of contra non valentem — was purportedly a response to the problem of sharp increases in medical malpractice insurance rates.... It was believed that lengthy periods for filing suit brought about by the discovery rule (a mechanism by which the statute of limitations commenced running only upon discovery of an injury rather than upon perpetration of the tort) had contributed to the increasing number of malpractice claims and that, if the number of suits brought were restricted, insurance risks would be reduced and rates would decline. [Citations omitted.]
Hebert, 486 So.2d at 722 n. 9. The public interest in controlling insurance costs to ensure the availability of health care is not thwarted or undermined by creating a hybrid prescriptive statute which expressly limits application of the discovery rule in an action for medical malpractice to a maximum of three years in lieu of creating a strict peremp-tive period requiring that an action be commenced within three years or forever lost. Clearly, the legislature intended that some type of suspension would operate, as it made a provision for such in the Medical Malpractice Act itself, recognizing the need to fully protect plaintiffs who would otherwise suffer the detrimental effect of liberative prescription during the panel review process that is required before an action can be filed.

Id., 2007-0419, p. 18-19, 989 So.2d at 63. After a lengthy discussion of public policy considerations and the Medical Malpractice Act, the Court concluded that:

... [w]e find that 1987 Acts No. 915, § 1 did not change the character of the three-year limitation period in LSA-R.S. 9:5628 from a prescriptive period to one of |2aperemption. We therefore reaffirm our holding in Hebert that both the one-year and three-year periods set forth in LSA-R.S. 9:5628 are prescriptive, with the qualification that the contra non va-lentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission, or neglect.

Id., 2007-0419, pp. 28-29 (La.11/27/07), 989 So.2d at 69.

In the matter sub judice, Chad Barcia died on March 29, 2005, but the Barcias did not file a complaint with the PCF until August 9, 2006. The PCF claim was clearly filed more than one year after the one-year prescriptive period enumerated for a Medical Malpractice claim pursuant to La. R.S. 9:5628. The claim was also untimely filed to support either a survival action and/or wrongful death action, per La. C.C. articles 2315.1 and 2315.2.

As for the argument of the Barcias that contra non valentem suspended the prescriptive period, we find this argument is without merit. “[C]ontra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.” Ferguson v. Sugar, 2005-0921, p. 11 (La.App. 4 Cir. 6/25/08), 988 So.2d 816, 825 (La.Ct.App.2008) writ denied, 2008-2179 La. 12/12/08, 996 So.2d 1118 (citing Reeder v. North, 97-0239, p. 12 (La.10/21/97), 701 So.2d 1291, 1298, (citing Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986))). Thus, in order to have contra non valentem apply, the Barcias had to prove that there was good cause which prevented them from timely filing their complaint with the PCF. However, our review of the record does not reflect that there was any such good cause. The argument that Dr. Lago provided medical records when they were requested, but that two dates were missing, but were later sent to the | ^Barcias is not such good cause. Thus, the one-year prescriptive period applies in all possible arguments raised by the Barcias.

While it may have been possible to request the medical records sooner, the Bar-cias have not illustrated that Dr. Lago was responsible through some duplicitous intent, for their failure to timely request Chad Barcia’s medical records. The Bar-cias further have not illustrated that upon receipt of the medical records that they, or Mr. Salim, exercised due diligence in timely filing a complaint with the PCF after review of said medical records, especially given the strict time limitations imposed by prescription and peremption. Per his own affidavit, Mr. Salim indicated that he did not review the records until July of 2006. Thus, we find that the district court did not err in finding that the prescriptive period of one year had run by the time the PCF claim was filed in August 2006. The Barcias first five assignments of error have no merit.

In their sixth assignment of error, the Barcias argue that the district court erred in rejecting or disregarding the affidavit and certified pleadings of their counsel, Mr. Salim. Our review of the record indicates that the affidavit is a part of the record. Nevertheless, while the Barcias have raised this alleged rejection or disregard of the affidavit by the district as an assignment of error, they have failed to brief this issue. Thus, pursuant to the Uniform Rules, Court of Appeal, Rule 2-124, we pretermit discussion of an assignment of error which has not been briefed.

In their seventh and final assignment of error, the Barcias argue that the district court erred in rejecting or disregarding the judgment of the 24th JDC which | ^denied the exception of prescription of Dr. Lago. The record reflects that a Petition for Subpoena Power was filed in the 24th JDC under docket number 636-577 by the Barcias. In turn, Dr. Lago filed an exception of prescription. After a hearing on the exception on November 28, 2006, the 24th JDC denied the exception of prescription. A timely writ application was filed by Dr. Lago in the Louisiana Fifth Circuit Court of Appeal under docket number 2006-C-974. On February 28, 2007, the Fifth Circuit denied the writ application noting “[w]e find relator has an adequate remedy on appeal. We, therefore, decline to exercise our supervisory jurisdiction.”

While the Barcias argue that the prior denial of an exception of prescription in the 24th JDC has the effect of res judica-ta, this argument is without merit. The denial of the exception by the 24th JDC did not preclude the CDC from revisiting the exception following the filing of the lawsuit in that court. Further, the Fifth Circuit denied the writ application of Dr. Lago on the basis that there was an adequate remedy on appeal and, as noted in the concurrence, the case was not ripe for review since it was still in the panel phase and the actual claims/damages were not yet clearly set forth. Therefore, we find that this assignment of error does not have merit.

DECREE

The judgment of the district court granting the exception of prescription of Dr. Lago and the Louisiana Medical Malpractice Insurance Company, is affirmed.

AFFIRMED

      . Adderall is a brand-name oral medication composed of an amphetamine and dex-troamphetamine combination, which belongs to the group of medicines called central nervous system (CNS) stimulants. It is used to treat attention-deficit hyperactivity disorder (ADHD), and narcolepsy (uncontrollable desire for sleep or sudden attacks of deep sleep). Adderall increases attention and decreases restlessness in patients who are overactive, cannot concentrate for very long or are easily distracted, and have unstable emotions. It is also used as part of a total treatment program that also includes social, educational, and psychological treatment. The product is available in the following two dosage forms: IR (Instant Release) and XR (Extended Release).

      . Dr. Zeichner opined that Dr. Lago deviated from the standard of care.

      . The four categories are discussed above, pages 6-7 in Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261.

      . The Barcias cite Campo v. Correa, 2001-2707, p. 12 (La.6/21/02); 828 So.2d 502, 511 (citing Griffin v. Kinberger, 507 So.2d 821 (La.1987)).

      . Unifonn Rules, Court of Appeal, Rule 2-12.4, provides in pertinent part, "All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Allen E. COTTON.
    No. 10-KA-409.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| gDefendant, Allen E. Cotton, appeals his 10-year sentence for manslaughter, arguing that it was excessive. For the following reasons, we affirm defendant’s sentence, finding that it is not unconstitutionally excessive. We also remand for correction of an error patent.

PROCEDURAL BACKGROUND AND FACTS

On January 14, 2005, the Jefferson Parish District Attorney filed a bill of information charging defendant, Allen E. Cotton, with manslaughter in violation of LSA-R.S. 14:31. Defendant pled not guilty to this charge on January 18, 2005. After a five-day trial, on July 27, 2007, a unanimous 12-person jury found defendant guilty as charged. On September 5, 2007, the trial court sentenced defendant to ten years imprisonment at hard labor. Defendant was granted an out-of-time appeal on July 7, 2009.

On November 19, 2004, between 5:00 and 5:30 a.m., Officer Brian McDessey of the Gretna Police Department responded to a disturbance call | sconcerning two males fighting in the parking lot of the Oasis Motel on the Westbank Expressway in Jefferson Parish. When Officer McDes-sey arrived at the scene, another officer was giving medical attention to one of the males involved in the fight, Warren Johnson, who was lying in the parking lot across from Room 18 of the motel. Although Mr. Johnson, the victim, was transported to the hospital, he died from a lethal stab wound to the left side of his neck.

People who were outside of the motel after the incident directed Officer McDes-sey to Room 28 of the motel where the other male involved in the fight had retreated after the fight. Officer McDessey and another officer went towards the room at the same time that a male, the other person involved in the fight, exited the room with his hands up, stating that his actions were done in self-defense. This male, later identified as defendant, was brought to the backseat of a patrol unit and eventually transported to the police station. Officer McDessey described the defendant’s demeanor at the scene as very calm and said that he was not nervous or crying.

Photographs and a video were taken of the crime scene. There was blood in the parking lot and inside of Room 28. A knife blade was found in a corner inside of Room 28. Bloody socks or towels were found in a trash can underneath a stairwell at the motel. It appeared that someone had taken a shower to clean blood off in the bathroom of Room 28. There was a suitcase on the bed in the room as well. A small notebook was found in the suitcase.

Several persons who had witnessed the struggle in the parking lot of the motel were interviewed. Some of the witnesses also testified at trial.

Tasleem Adiniji was staying in Room 33 at the Oasis Motel at the time of the incident. On the morning of November 19, 2004, he was in his room praying when he was interrupted by “commotion” he heard outside. He went outside on |4the balcony and observed two naked people fighting in the parking lot. One person was stooping over the other person, who was lying on the ground. Mr. Adiniji told the person on top to leave the other one alone, and the person on top said the other person was beating him and was drunk. According to Mr. Adiniji, the person on top then left.

Kim Dorsey was staying in Room 41 at the Oasis Motel on the date in question when she heard a man yelling for help and that he was being killed. She went outside and saw a man falling to the ground and another man swinging his hand. She testified that the men were in the parking lot naked, with one only wearing socks. She ran back into her room and called the front desk and asked the clerk to call the police. She returned to the balcony and noticed the men were still there. She testified that she could not see what was in hand of the man who was swinging his hand, but described him as stabbing the other man with something. She testified that the victim was on the ground and was gasping for air. She claimed to hear gurgling sounds. She screamed for the man on top to stop and said the police were coming, but he continued. She also testified that she heard the man on top say “Bitch; [sic] you’re going to leave me. You’re going to leave me.” She saw the man on top kick the victim in his face. She said she did not see the victim kick or punch the other man or threaten to kill him. She then saw the man who was on top take his socks off on the way to the stairs and then go up to his room. She watched the room until the police came.

Joette Kanter was employed by the Oasis Motel as a desk clerk when she received a call from Room 41 around 5:15 or 5:30 a.m. on the date of the incident. After Ms. Dorsey told her about the confrontation in the parking lot, Ms. Kanter called for help and then went outside. She saw two people fighting in the parking |slot around Rooms 17 and 19 and one was screaming for help, saying that the other was trying to kill him. She testified that she did not receive any calls for help from Room 28. She explained that even if the deposit on the phone in Room 28 was used, room occupants could still contact the office and call 911 for help. The motel had surveillance equipment. She gave the surveillance tape to the police. The jury viewed the surveillance video during the trial.

Alfred Disler of the Gretna Police Department arrived at the motel and interviewed Freddie Bonds, who was staying in Room 17 of the motel. He transported Mr. Bonds to the station and recorded his statement. Mr. Bonds was unavailable for trial, but the jury heard his recorded statement. According to his statement, Mr. Bonds was standing outside the door of Room 17 at about 5:15 a.m. on the date in question when he heard two men coming down the stairs. The naked men went to the parking lot where one of the men fell and the other started kicking him and beating him in the back of his head. He believed the victim was gasping for air, gagging, or throwing up while he was coming down the stairs and it continued when he was in the parking lot. The victim was trying to say something, but Mr. Bonds did not understand him. He said the one doing the beating was wearing socks.

Merrilue Mataya arrived to work on the Friday morning of the homicide at the Oasis Motel. The police questioned her about any contact she had with the man staying in Room 28. She testified that on the Saturday afternoon before the incident, the man had approached her and asked her to program his TV in Room 28 to a sports channel. She said she asked him if anyone would be in the room when she went to do it and he told her no, that his boyfriend would be back later.

Detective Donald McCoy of the Gretna Police Department advised defendant of his rights and asked if he had injuries, to which he replied that he did Rnot. According to Detective McCoy, defendant had scratches to his right hand, left shoulder, and left neck area. Defendant was not bleeding and his skin had not been broken. Defendant claimed that he was slapped across his head a few times and kneed in the chest, but Detective McCoy did not observe injuries that would have been consistent with this.

Defendant gave a taped statement on the day of the incident. The jury heard a recording of this statement. In this statement, defendant said he met the victim, Stacy, on the “Party Line” and had been talking on the telephone to her for a little over a month. He explained that Stacy was supposed to be a girl and they had talked the day before and were finally going to meet. She came to the motel room sometime before midnight, but Stacy was really a man. Defendant said that he explained that he thought Stacy was a girl and he did not “get down like that.” He said Stacy then said he had a gun and a knife in his bag and that they would do the things they had talked about doing. He showed defendant the knife about 45 minutes to an hour after he arrived. Defendant said that the victim also threatened him that if he ran, someone was downstairs in his BMW.

Defendant testified that the victim told him to take off his clothes. Both men took their clothes off and then defendant performed oral sex on the victim. Defendant said that when the victim tried having anal sex with him he pushed the knife out of the victim’s hand and retrieved it. He said the victim was hitting him and he stabbed him with the knife. Defendant said the fight started in the room, but continued outside. He said he noticed while he was on the stairs that the blade of the knife had fallen off. He said he then went back to the room and tried to use the phone, but “you got to put money on it to use the phone.” He went to the shower to wash the blood off of him and put some pants on. He was then going to |7call the police but the police were already there. Defendant denied ever having a relationship with a male before. He concluded his statement by saying he was wrong for what he did but that it was done in self-defense because he felt his life was threatened.

Detective McCoy testified that phone records were obtained and showed the victim called the motel three times on November 18th. Detective McCoy explained that defendant denied that he knew the victim was a male. However, the “little black notebook” from inside the suitcase located in the room contained the victim’s cell phone number with the name “Warren” written above it. Further, Detective McCoy explained that defendant told him that the victim had arrived around midnight and that defendant was in the room with the victim for about five hours. Detective McCoy explained that defendant did-not barricade himself in the bathroom and had an opportunity to leave and went outside at one point but did not run or yell.

Detective Richard Russ of the Gretna Police Department was present when Detective McCoy filled out the rights of ar-restee form with defendant and advised him of his Miranda rights. Detective Russ testified that defendant never showed emotion or seemed sad when describing the incident. He also seemed calm when he was transported to the hospital for the rape examination.

Warren Carmouche, the decedent’s father, testified that he did not know his son to carry a knife, but knew he worked for the sheriffs department and had a gun. He stated that he did not know his son’s sexual orientation, but suspected he may not have been heterosexual. He also stated that his son did not have a criminal history.

1 sDr. Susan M. Garcia, an expert in the field of forensic pathology, determined that the decedent was a victim of a homicide and explained that the stab wound, which was five to six inches of maximum penetration, resulted in injury to vessels in the back of his throat and caused him to bleed into his lungs. She described the bleeding as continuous and gradual and explained that the decedent would still have been capable of movement. The victim also had a nonlethal stab wound on his lip and a small, superficial puncture wound on his right chest area. Dr. Garcia also noted that the victim did not have any defensive wounds and did not have drugs or alcohol in his system when he died.

Three defense witnesses testified. Erin Maurice testified that she met defendant on the internet and had sexual relations with him, including at the Oasis Motel in his room on the Tuesday evening before the incident. Defendant’s friend, Jason Mims, testified that he never knew defendant to have homosexual tendencies. Mr. Mims said that the defendant talked to a female named Stacy on the phone a couple of times. Defendant’s friend, Allen Sonnier, Jr., also testified that he never knew defendant to have homosexual tendencies. He testified that Stacy called for defendant all the time and he had talked to her but had never met her.

ASSIGNMENT OF ERROR

In his only assignment of error, defendant argues that although the trial court stated that it knew defendant was a first time offender and had acted under provocation, his ten-year sentence was imposed without the trial judge fully taking into account the mitigating circumstances of the case. He argues that the sentence is too harsh for the act of self-defense that resulted in an accidental killing in which defendant demonstrated great remorse.

|c|The State responds that the trial court took into consideration the facts of the case and defendant’s background before sentencing defendant to one-fourth of the maximum penalty for manslaughter. The State further contends that other cases have displayed that such a sentence is not unconstitutionally excessive. It concludes that because defendant has failed to show an abuse of discretion by the trial judge, there is no merit to this claim and the sentence should be affirmed.

The trial court listened to victim impact statements and then heard defendant’s apology to both his family and the victim’s family. The trial court considered that this incident involved an act of violence and the use of a dangerous weapon, and recognized that defendant acted under provocation and before this incident had led a law-abiding life. Defendant received a sentence of ten years at hard labor. The punishment for manslaughter is imprisonment at hard labor for not more than forty years. LSA-R.S. 14:81(B).

The record reflects that defendant did not file a motion to reconsider his sentence pursuant to LSA-C.Cr.P. art. 881.1, nor did he object to his sentence at the time his sentence was imposed. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional ex-cessiveness only. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108; See also LSA-C.Cr.P. art. 881.1.

In his brief, defendant makes reference to LSA-C.Cr.P. art. 894.1 and argues that the trial judge failed to consider mitigating factors in his case. As noted above, defendant did not make or file a motion to reconsider his sentence, nor did he object to his sentence at the time of sentencing. As such, to the extent that defendant argues that the judge failed to articulate his reasons for sentencing | ]0pursuant to LSA-C.Cr.P. art. 894.1, defendant is precluded from raising such an issue on appeal. See State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, 99; State v. Ridgley, 08-675, p. 20 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301. In any event, this Court has held that where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. Declouet, supra at 100.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655. A sentence is considered excessive, even when it is within the applicable statutory range, if it imposes needless and purposeless pain and suffering or is grossly disproportionate to the offense. Warmack, 07-311 at 7, 973 So.2d at 109. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. Pearson, 07-332 at 15, 975 So.2d at 655-56. The trial judge is afforded wide discretion in determining a sentence. Id. at 15, 975 So.2d at 656.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. The relevant issue on appeal is whether the trial court abused its sentencing discretion, and not whether another sentence might have been more appropriate. Pearson, 07-332 at 15-16, 975 So.2d at 656.

In State v. Batiste, 07-482 (La.App. 3 Cir. 10/31/07), 969 So.2d 704, the Third Circuit found the defendant’s 20-year sentence for his manslaughter |n conviction was not excessive despite his being a first time offender and his argument in the trial court that he acted under strong provocation. In Batiste, where the defendant had been charged with second degree murder but convicted of manslaughter, the court noted the victim had been taunting the defendant and had been picking at the defendant to fight him the entire evening leading up to the incident.

In State v. Brice, 00-2178 (La.App. 1 Cir. 5/11/01), 808 So.2d 615, writ denied, 01-1610 (La.4/26/02), 813 So.2d 1099, the First Circuit found the defendant’s ten-year sentence was not unconstitutionally excessive. The defendant was a first time offender who testified that she was in fear of her life at the time of the offense because the victim was threatening to rape her. The trial court did not believe her, but believed it was a crime of passion. The First Circuit found that the sentence was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.

Based on the foregoing, we find that defendant’s ten-year sentence does not shock our sense of justice. Even if defendant had no criminal record, the nature of the crime shows that such a sentence is not excessive after considering the circumstances of this case. Defendant used a knife to inflict a stab wound to the victim’s neck that was deep enough to injure vessels in the back of his throat. The blade of the knife broke, and a struggle with the bleeding victim continued out of the room, down the stairs, and into the parking lot, where the victim was heard pleading for help. The evidence does not suggest that defendant sought help for the victim, but instead left the victim to drown in his own blood while defendant cleaned himself off. Accordingly, we find that the trial court did not abuse its discretion in imposing a ten-year sentence in this case, and therefore this assignment of error is without merit.

.ERRORS PATENT REVIEW

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether the defendant makes such a request.

According to the transcript, after sentencing defendant for his manslaughter conviction, the trial court noted that manslaughter was a crime of violence and that the sentence was not subject to diminution for good behavior pursuant to LSA-R.S. 15:571.3. However, the commitment does not reflect this.

Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand and instruct the trial court to correct the commitment to reflect this. We also direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONCLUSION

For the reasons assigned above, defendant’s sentence is affirmed. The matter is remanded to the trial court for correction of the commitment and other relief consistent with this opinion as described above.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Dorsey had charges pending against her at the time of the incident. She testified that she was not offered any incentive for her statement in this case.

      . Officer McDessey testified that defendant said nothing about the victim trying to rape him.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . It was also stipulated that the decedent’s mother told the police that her son never informed her about his personal life.

      . The 2010 legislative amendments to this statute do not apply to this case.


author: AMY, Judge.

text:
    STATE of Louisiana v. Ronald J. OURSO.
    No. 10-1126.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      John F. DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Lafayette, LA, for Defendant/Appellant, Ronald J. Ourso.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

| ,As part of a plea agreement, the defendant pleaded guilty to distribution of cocaine, distribution of hydrocodone, distribution of alprazolam, and distribution of a legend drug. The defendant was sentenced to twenty years on each count, to run concurrently and to run concurrently with his sentence in another case. The defendant appeals his sentences. On appeal, defense counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we affirm the defendant’s convictions. We affirm his sentence for the distribution of cocaine conviction, vacate his sentences on the other convictions and remand for resentenc-ing. We deny defense counsel’s motion to withdraw.

Factual and Procedural Background

After the Calcasieu Parish Combined Anti-Drug Team conducted a “buy/bust” type operation, the defendant was arrested and charged with distribution of cocaine, a violation of La.R.S. 40:967(A); distribution of hydrocodone, a violation of La.R.S. 40:968(A); distribution of alprazolam, a violation of La.R.S. 40:969(A); and distribution of a legend drug (carisoprodol), a violation of La.R.S. 40:1238.1. The defendant subsequently withdrew his plea of not guilty and entered a plea of guilty to those charges and the charges in a separate case. As part of the plea agreement, the State dropped other pending charges of illegal use of currency and sexual battery and agreed not to charge the defendant as a habitual offender.

The defendant was subsequently sentenced to twenty years at hard labor on each of the four counts, to run concurrently and to run concurrently with his other charges. The defendant filed a motion to reconsider sentence, which was denied by the trial court without a hearing.

I ¡/The defendant appeals, asserting as error that his sentence is unconstitutionally excessive. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, in this matter.

Discussion

Errors Patent

Pursuant- to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an error patent concerning three of the defendant’s four sentences.

The underlying offenses in this case occurred on January 11 and January 24, 2008. The defendant was convicted of distribution of hydrocodone, a Schedule III controlled substance, in violation of La. R.S. 40:968(A); distribution of alprazolam, a schedule IV controlled substance, in violation of La.R.S. 40:969(A); and distribution of carisoprodol, a legend drug, in violation of La. R.S. 40:1238.1.

La.R.S. 40:968(B) provides that “[a]ny person who violates Subsection A with respect to any controlled dangerous substance classified in Schedule III shall be sentenced to a term of imprisonment at hard labor for not more than ten years; and, in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.”

Further, La.R.S. 40:969(B)(2) provides that any person who violates La.R.S. 40:969(A) with respect to “[a]ny other controlled dangerous substance classified in Schedule IV, ... shall be sentenced to a term of imprisonment at hard labor for not more than ten years; and in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.”

Finally, La.R.S. 40:1238.1(0 provides that “[a]ny person who violates the provisions of this Section shall be imprisoned, with or without hard labor, for not | ¡¡more than five years and may be sentenced to pay a fine of not more than five thousand dollars.”

The trial court sentenced the defendant to twenty years at hard labor on each of those three convictions, well beyond the maximum term of imprisonment for any of those counts. Therefore, as evidenced by the above provisions, the defendant’s sentences with regard to those convictions are illegal. Louisiana Code of Criminal Procedure Article 882 permits an appellate court to correct an illegal sentence on review. Accordingly, we vacate the defendant’s sentences for his distribution of hydroco-done, distribution of alprazolam, and distribution of carisoprodol convictions.

However, if the correction of the sentence requires the exercise of sentencing discretion on the part of the trial court, the case must be remanded back to the trial court for resentencing. State v. Ramsdell, 09-1510 (La.App. 3 Cir. 10/6/10), 47 So.3d 78; State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. As correction of the defendant’s illegal sentences will require the exercise of sentencing discretion by the trial court, we remand to the trial court for resentencing on the convictions for distribution of hy-drocodone, distribution of alprazolam, and distribution of carisoprodol.

Anders Brief Analysis

The defendant’s appellate counsel, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal.

The procedure following the submittal of an Anders brief is well-settled. The fourth circuit explained the Anders analysis in State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990):

|4When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under [La. Code Crim.P.] art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Benjamin, 573 So.2d 528, we have thoroughly reviewed the record, including pleadings, minute entries, the charging instrument, and the transcripts. The defendant was provided an opportunity to file his own brief, but did not do so.

A review of the record reveals that the defendant was present and represented by counsel at all crucial stages of the proceedings. Further, the defendant entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The entry of a guilty plea waived any pre-plea non-jurisdictional defects. See State v. Washington, 10-413 (La.App. 3 Cir. 11/3/10), 50 So.3d 274, citing State v. Crosby, 338 So.2d 584 (La.1976). With regard to his sentence for distribution of cocaine, the defendant received a legal sentence. We find that an argument for excessive sentence on this conviction would be frivolous and futile.

Further, we have noted the illegality of three of the four sentences. Although the issue of the illegality of those sentences could have been raised by the defendant lfion appeal, it was observed and corrected by this court as an error patent. See State v. Walker, 08-563 (La.App. 5 Cir. 1/13/09), 8 So.3d 17. Our review of the record has not revealed any other issues which would support an assignment of error on appeal.

However, we have vacated the defendant’s sentences for the counts of distribution of hydrocodone, distribution of al-prazolam, and distribution of carisoprodol and remanded for resentencing. In light of the remaining proceedings, appellate counsel’s motion to withdraw is denied. State v. Brister, 02-486 (La.App. 3 Cir. 10/30/02), 829 So.2d 1128.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions and his sentence for distribution of cocaine. We vacate the defendant’s sentences for distribution of hydrocodone, distribution of alprazolam, and distribution of carisoprodol, and remand to the trial court for resentencing. Appellate counsel’s motion to withdraw is denied.

CONVICTIONS AFFIRMED. SENTENCE FOR DISTRIBUTION OF COCAINE AFFIRMED. SENTENCES FOR DISTRIBUTION OF HYDROCO-DONE, DISTRIBUTION OF AL-PRAZOLAM, AND DISTRIBUTION OF CARISOPRODOL VACATED AND REMANDED FOR RESENTENCING. MOTION TO WITHDRAW DENIED.

      . The defendant’s conviction and sentence in Calcasieu Parish Docket No. 6902-07 are on appeal in State v. Ourso, 10-1133 (La.App. 3 Cir. 6/01/11), 67 So.3d 684.


text:
    STATE of Louisiana v. Ronald Joseph OURSO.
    No. 10-1133.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    John F. DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Lafayette, LA, for Defendant/Appellant, Ronald Joseph Ourso.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

I,As part of a plea agreement, the defendant pleaded guilty to possession of cocaine with intent to distribute and possession of methylenedioxymethamphetamine (MDMA) with intent to distribute. The defendant was sentenced to twenty years on each count. The trial court ordered the sentences to run concurrently and to run concurrently with the defendant’s sentence in another case. The defendant appeals his sentences. On appeal, defense counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we affirm his convictions. We affirm his sentence for the possession of cocaine with intent to distribute conviction, and vacate his sentence for the possession of MDMA with intent to distribute conviction and remand for resentencing. We deny defense counsel’s motion to withdraw.

Factual and Procedural Background

After using an informant to perform a “buy,” the Calcasieu Parish Combined Anti-Drug Team obtained and executed a search warrant at the defendant’s residence. Based on the results of the search, the defendant was arrested and charged with possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A)(1); possession of MDMA with intent to distribute, a violation of La.R.S. 40:966(A)(1); and illegal use of currency, a violation of La.R.S. 40:1049.

The defendant’s motion to suppress the evidence obtained as a result of the warrant was denied. He subsequently withdrew his plea of not guilty and entered a plea of guilty to the charges of possession of cocaine with intent to distribute and possession of MDMA with intent to distribute. At the same time, the defendant entered a plea of guilty to the charges in a separate case. As part of the plea |2agreement, the State dropped the instant charge of illegal use of currency, other pending charges of sexual battery, and agreed not to charge the defendant as a habitual offender.

The defendant was subsequently sentenced to twenty years at hard labor on both counts, to run concurrently and to run concurrently with his other charges. The defendant filed a motion to reconsider sentence, which was denied by the trial court without a hearing.

The defendant appeals, asserting as error that his sentence is unconstitutionally excessive. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in this matter.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an error patent concerning the defendant’s sentence for possession of MDMA with intent to distribute.

The underlying offenses in this case occurred on February 24, 2006. One of the charges upon which the defendant was convicted is possession of MDMA, a schedule I controlled substance, with intent to distribute in violation of La.R.S. 40:966(A)(1). At the time of the offense, La.R.S. 40:966(B)(1) provided that any person who violates subsection (A) with respect to a non-narcotic drug “shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years, at least five years of which shall be served without \ ¿benefit of parole, probation, or suspension of sentence, and pay a fine of not more than fifty thousand dollars.” (Emphasis added.)

However, when the trial court sentenced the defendant to twenty years at hard labor on this count, it did not specify how many years were to be served without the benefit of parole, probation, or suspension of sentence. While La.R.S. 15:301.1 typically obviates the need to correct the sentence, where the statute gives the trial court discretion as to the number of years imposed to be served without benefits, the reviewing court should vacate the illegally lenient sentence and remand for resen-tencing. Thus, we vacate the defendant’s sentence for his conviction of possession of MDMA with intent to distribute and remand for resentencing. State v. Mayeux, 06-944 (La.App. 3 Cir. 1/10/07), 949 So.2d 520.

Accordingly, we vacate the defendant’s sentence for his conviction of possession of MDMA with intent to distribute and remand to the trial court for resentencing on that count.

Anders Brief Analysis

The defendant’s appellate counsel, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal.

The procedure following the submittal of an Anders brief is well-settled. The fourth circuit explained the Anders analysis in State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990):

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own |4behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under [La. Code Crim.P.] art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Benjamin, 573 So.2d 528, we have thoroughly reviewed the record, including pleadings, minute entries, the charging instrument, and the transcripts. The defendant was provided an opportunity to file his own brief, but did not do so.

A review of the record reveals that the defendant was present and represented by counsel at all crucial stages of the proceedings. Further, the defendant entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The entry of a guilty plea waived any pre-plea non-jurisdictional defects. See State v. Washington, 10-413 (La.App. 3 Cir. 11/3/10), 50 So.3d 274, citing State v. Crosby, 338 So.2d 584 (La.1976). With regard to his sentence for possession of cocaine with intent to distribute, the defendant received a legal sentence, and we find that an argument for excessive sentence on this conviction would be frivolous and futile.

We have noted the illegality of the defendant’s possession of MDMA with intent to distribute sentence. Our review of the record has not revealed any other issues which would support an assignment of error on appeal.

However, because we have vacated the defendant’s possession of MDMA with intent to distribute sentence and remanded for resentencing, further proceedings | ¡¡remain in this matter. Therefore, appellate counsel’s motion to withdraw is denied. State v. Brister, 02-486 (La.App. 3 Cir. 10/30/02), 829 So.2d 1128.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions and his sentence for possession of cocaine with intent to distribute. We vacate the defendant’s sentence for possession of MDMA with intent to distribute, and remand to the trial court for resentencing. Appellate counsel’s motion to withdraw is denied.

CONVICTIONS AFFIRMED. SENTENCE FOR POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AFFIRMED. SENTENCE FOR POSSESSION OF METHYLENEDIOX-YMETHAMPHETAMINE (MDMA) WITH INTENT TO DISTRIBUTE VACATED AND REMANDED FOR RE-SENTENCING. MOTION TO WITHDRAW DENIED.

      . The defendant’s conviction and sentence in Calcasieu Parish Docket No. 18423-08, are on appeal in State v. Ourso, 10-1126 (La.App. 3 Cir. 6/1/11), 67 So.3d 680.


author: SAUNDERS, Judge.

text:
    Janet LeBLANC v. EXCEL AUTO PARTS.
    No. 11-58.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      G. Frederick Seemann, Attorney at Law, Lafayette, LA, for Plaintiff Appellee, Janet LeBlanc.
    William Allen Repaske, Landry & Watkins, New Iberia, LA, for Defendant Appellant, Excel Auto Parts.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

hln this case, the workers compensation insurer CNA Insurance stipulated that it had failed to adhere to the mandatory notice provisions of La. R.S. 23:1201 when, unbeknownst to the Claimant, it converted her longtime disability benefits from Temporary Total Disability (TTD) benefits to Supplemental Earnings Benefits (SEB). Thereafter, it suspended the SEB. The insurer assigns as error the workers compensation judge’s award of attorney fees and court costs. For the following reasons, we affirm.

FACTS

The following facts were stipulated on September 14, 2010, before the workers compensation judge. Claimant, Janet Le-Blanc, had been receiving TTD benefits from June 1999 until September 30, 2009, when the workers compensation insurer, without notice, converted her benefits to SEB then terminated them. Until that time, her benefits had never been identified as SEB and for the entire period her benefits were paid on the weekly schedule used for TTD benefits. According to defendant’s brief, “There was no medical examination by the insurer within a reasonable time of the stopping of the payments that caused the payments to be stopped.” As a result of the insurer’s actions, Ms. LeBlanc did not receive benefits for the thirty-nine (39) months running from October 2009 through June 2010, even after the insurer stipulated on the record that they would be paid, but Ms. LeBlanc’s weekly TTD benefits were restored for the period of July 1, 2010 through August 25, 2010.

Notification Requirement

When the wording of a statute is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La.R.S. 1:4.

|2The notification requirements imposed upon an insurer who seeks to suspend a claimant’s benefits are clear, “[u]pon ... modification or suspension of payment for any cause, the employer or insurer shall immediately send a notice to the office, in the manner prescribed by the rules of the director, that payment of compensation has begun or has been suspended, as the case may be.” La.R.S. 23:1201(H) (emphasis added).

The word “shall” is mandatory. La. R.S. 1:3. Given La.R.S. 23:1201’s clear and unambiguous expression of legislative intent, like the workers compensation judge, we conclude that the insurer, at a minimum, was remiss in its failure to issue a notice of the purported conversion of Ms. LeBlanc’s TTD benefits to SEB.

Attorney Fees

Defendant nevertheless questions whether Insurer’s failure to issue this required notification should have given rise to the attorney fees awarded by the workers compensation judge on this basis. Defendant maintains that because its action constituted a discontinuance of benefits rather than a nonpayment of benefits, the workers compensation judge erred in assessing it with penalties and attorney fees.

The authority it cites, La.R.S. 23:1201(I)(emphasis added), provides:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

This court, in Rivers v. Bo Ezemack Hauling Contractor, Inc., 09-991, p. 5 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, 1095-96, writ denied, 10-807 (La.6/4/10), 38 So.3d 309, stated the following:

|3“The determination of whether an employer should be cast with penalties and attorney fees is a question of fact which should not be reversed absent manifest error.” Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, 196, writ denied, 05-278 (La.4/1/05), 897 So.2d 611 (citing Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10-26/01), 799 So.2d 1144). Arbitrary and capricious behavior has been defined as “ ‘willful and unreasonable action, without consideration and regard for the facts and circumstances presented.’ ” Reed v. State Farm Mut. Auto. Ins. Co., 03-107 (La.10/21/03), 857 So.2d 1012, 1021, fn. 8 (citing J.E. Merit Constructors, Inc. v. Hickman, 00-943 (La.1/17/01), 776 So.2d 435).

In the end, we conclude that the facts of this case warrant the imposition of penalties and attorney fees. While the workers compensation judge concluded that the absence of notice alone warranted the imposition of penalties and fees, the workers compensation judge also stated in her reasons for ruling “that the discontinuance was arbitrary, capricious and without probable cause.”

An insurer is required to make a reasonable effort to ascertain an employee’s exact medical condition before benefits are terminated. If, subsequent to an initial optimistic report, an insurer receives medical information indicating continuing disability, the insurer may not blindly rely upon the earlier report to avoid penalties for arbitrary nonpayment or discontinuance of benefits without probable cause. Johnson v. Ins. Co. of N. America, 454 So.2d 1113 (La.1984); Clark v. Town of Basile, 01-1203 (La.App. 3 Cir. 3/27/02), 812 So.2d 879, writ denied, 02-1204 (La.6/21/02), 819 So.2d 332.

In this case, with the exception of records from 2006 that the workers compensation judge found less than compelling, there was no such medical opinion to trigger the Insurer’s action. In fact, as noted in treating physician Dr. Daniel Hodges’ deposition taken for trial purposes May 18, 2010, in light of Ms. LeBlanc’s l4two neck surgeries and ongoing carpal tunnel syndrome, she still required Lortab for pain, Xanax for anxiety, and Ambien prescription for sleep. While recommending vocational “retraining” (not provided by the insurer) in case she would one day return to work, Ms. LeBlanc’s long-time treating physician Dr. Hodges, believed there was a “less than five percent probability” that an individual like Ms. LeBlanc who had been disabled for so long would ever be able to return to the workforce and that, even if she could, she would never be able to work the sort of predictable schedule an employer would have to insist upon. As the workers compensation judge noted, it is not a given that an individual who might one day be able to return to work with good days and bad days is no longer temporarily totally disabled.

The Insurer cites Iberia Med. Ctr. v. Ward, 09-2705 (La.11/30/10), 53 So.3d 421, in support of its defense against penalties and attorney fees, but in Iberia Med. Ctr., defendant did not discontinue Claimant’s benefits until after the treating physician supplemented his findings in the wake of surveillance videotape demonstrating that Claimant was no longer disabled and did not rely upon stale medical records to do so. Because in Iberia Med. Ctr. the insurer had reasonable grounds to discontinue benefits, the Louisiana Supreme Court reversed the workers compensation judge’s award of penalties and attorney fees that had been affirmed by this Court.

Quantum

Finally, Defendant contests the $4,500 awarded for Claimant’s attorney fees. We do find this award to be neither unreasonable and do not find it to be clearly wrong. The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers compensation action is essentially a question]^ fact subject to the manifest error or clearly wrong standard of appellate review. Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181; LeJeune v. Bell Tower Corp., 09-1222 (La.App. 3 Cir. 4/7/10), 34 So.3d 464.

However, while we affirm the attorney fees, we are unable to increase the award to reflect the additional time incurred defending against the insurer’s unsuccessful appeal since Claimant neither appealed the workers compensation judge’s award nor answered defendant’s appeal. Anderson v. Best Western Suites Hotels, 09-78 (La.App. 3 Cir. 6/3/09), 11 So.3d 692. Cf. Frith v. Riverwood, Inc., 04-1086 (La.1/19/05), 892 So.2d 7, citing Hickman v. Allstate Timber Co., 94-1275 (La.App 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.6/23/95), 656 So.2d 1017.

In light of the foregoing, the judgment appealed from is affirmed, with costs assessed to appellant.

AFFIRMED.


author: EZELL, Judge.

text:
    Amilcor A.J. GOTREAUX v. DAIRY QUEEN, INC., et al.
    No. CA 11-28.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.
    Andrew Holleman Meyers, Timothy Wayne Meyers, Breaud & Meyers, Lafayette, LA, for Defendants/Appellees, De-quincy Restaurants, Inc., Pam Brown.
    Amilcor A.J. Gotreaux, In Proper Person, Jennings, LA, Plaintiff/Appellant.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

|!Amilcor Gotreaux appeals the decision of the trial court granting summary judgment in favor of Pam Brown and DeQuin-cy Restaurants, Inc.(DRI). For the following reasons, we affirm the decision of the trial court.

Ms. Brown and her sister are the owners and operators of DRI, which runs a Dairy Queen restaurant in DeQuincy. Mr. Gotreaux was hired to demolish the restaurant building after it sustained damage during Hurricane Rita in 2005. He admits he was fully compensated for his demolition work. In addition to that work, Mr. Gotreaux was offered a chance to bid on building a new budding for DRI. As part of the bid process, he was presented with a booklet describing what was expected in a bid. Noted in the booklet was that bid submitters would be required to sign a contract and begin construction within seven days of acceptance of a bid and to be able to provide a list of construction materials, their costs, and subcontractors within ten days of bid acceptance. Bids were to be lump sum bids, including costs of materials and subcontractors. Mr. Gotreaux submitted a bid of $500,000, which was accepted in July of 2006. He failed to provide the lists of materials and subcontractors in a timely fashion, which eventually gave light to the fact that his bid violated the bid submission requirements, as his bid did not include those costs. DRI later accepted a separate bid of $720,000 to rebuild the restaurant from another builder.

Mr. Gotreaux filed the current suit seeking to enforce the bid acceptance as a valid contract. The trial court granted summary judgment in favor of DRI, dismissing Mr. Gotreaux’s claims. From that decision, Mr. Gotreaux appeals.

Mr. Gotreaux asserts no assignment of error on appeal. However, in the interests of justice, we will read his brief as claiming that the trial court erred inj^granting DRI’s motion for summary judgment.

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.
A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. Proc. art. 966(A)(2).

La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353-54.

From the record before this court, we can find no genuine issue of material fact. Mr. Gotreaux never formalized any contract with DRI. In fact, his bid was so faulty that there could never have been any true meeting of the minds between the parties. Moreover, it seems from the record that Mr. Gotreaux never even read the bid booklet, as it clearly pointed out that the bid did “not obligate the Owner ... in any way” and that the “Owner assumes no obligation to enter into a contract for the work.” A separate, formal contract would be required seven days after any bid was accepted. Mr. Gotreaux did not submit a lump sum bid as required, did not talk to subcontractors about the job, let alone submit the required list of subcontractors, did not submit a materials list, nor did he begin construction within seven days as set forth in the bid book. Simply put, Mr. Gotreaux seeks to enforce the bid agreement as a contract to build the restaurant, even though he failed to meet any of the criteria it contained and would have breached any such contract several times over, had one | ^actually been formed. The trial court committed no error, as DRI was clearly entitled to summary judgment in this matter.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of this appeal are assessed against Mr. Go-treaux.

AFFIRMED.