author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. William ANDERSON.
    No. 10-KA-779.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Douglas Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    William Anderson, Cottonport, LA, In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2The defendant, William Anderson, was convicted of two counts of sexual battery (counts one and two), one count of oral sexual battery (count three), and one count of molestation of a juvenile (count four), violations of LSA-R.S. 14:43.1, LSA-R.S. 14:43.3, and LSA-R.S. 14:81.2 respectively.

On March 23, 2010, the trial court ordered the defendant to serve ten years imprisonment on count one and count two. The court indicated that the sentence on count two would be served at hard labor, but did not indicate that the sentence on count one would be served at hard labor. As to counts three and four, the trial court ordered the defendant to serve fifteen years at hard labor on each count. The trial court ordered that all sentences were to be served without benefit of probation, parole, or suspension of sentence. The trial court additionally ordered that all sentences were to run consecutively as to each other and consecutively with the defendant’s seven-year sentence in 24th Judicial District Court case number 08-1207, division “M”.

Defendant appeals his conviction and sentence. In his appeal he contends that his convictions violate the principles of double jeopardy, that the trial court erred in denying his Motion to Quash, and that his sentence is illegal and excessive.

In addition, our review of the record also notes a potential double jeopardy issue. Accordingly, we ordered all parties to brief this issue. However, after Lcareful consideration we find that the principles of double jeopardy were not violated.

FACTS

Detective Jo Lynn Cummings of the Jefferson Parish Sheriffs Office testified that she had an occasion to participate in two separate investigations involving the defendant. One investigation involved allegations of a sexual nature made by S.A. The second investigation involved allegations by L.L.P.. Detective Cummings investigated S.A.’s allegations further and conducted a photographic lineup with L.L.P. L.L.P. positively identified the defendant. As a result of Detective Cummings’s findings, the defendant was placed under arrest and charged with two counts of sexual battery, one count of oral sexual battery, and one count of molestation of a juvenile against L.L.P.

L.L.P. testified that, at the time of trial, she was twenty-nine years old. She indicated that she could not recall at what age she met the defendant, but it was “for sure by second grade.” L.L.P. knew the defendant because the defendant was her grammar school bus driver until she graduated in the eighth grade. In the spring of 1995, when L.L.P. was fourteen, she began to have more regular interaction with the defendant. This occurred because the defendant was involved in providing music for Westbank Mardi Gras parades and L.L.P. was captain of her cheerleading team.

The defendant and L.L.P. began talking over the telephone regularly about music. After Mardi Gras ended, the phone conversations became more personal; the defendant began to ask about L.L.P.’s family. L.L.P. thought that talking to the defendant placed her “in the cool crowd.” Eventually, the relationship progressed: the defendant “would jiggle his keys if he was walking by my classroom. He | ¿would find excuses to come in and look at the AC vents or something in my different classes. He began leaving notes in my locker, ‘Hey, you look great today, smile,’ different things like that.” One day, the defendant “got real close” to L.L.P. and told her that he wanted to give her a kiss, paused, and then handed her a Hershey’s Kiss. At that point, L.L.P. “realized that I was special and that something was going on.”

In May of 1995, L.L.P.’s parents allowed her to accompany the defendant to a recording studio so she could play piano on a song the defendant wrote. At the studio, the defendant became emotional about the fact that L.L.P. would be graduating from grammar school shortly. The defendant did not bring L.L.P. directly home. Rather, the defendant took L.L.P. to his home off the Lafitte Larose Highway, ostensibly to show L.L.P. his “band room” and his waterbed. Shortly after arriving at the defendant’s home, L.L.P. spontaneously jumped onto the waterbed. The defendant then placed his hand on L.L.P.’s back in a way that made L.L.P. feel uncomfortable. L.L.P. got up from the waterbed and went into the hallway between the defendant’s living room and kitchen. The defendant followed L.L.P., told her that he had fallen in love with her, and kissed her. L.L.P. described the kiss as a “kiss like in the movies” and “an adult kiss.”

During the drive home the defendant told L.L.P. that they were going to be in “an adult relationship” that, if exposed, would result in his six-year-old daughter becoming homeless. L.L.P. thereafter began sneaking out of her house at night to spend time with the defendant after her parents had fallen asleep. L.L.P. and the defendant began watching R-rated movies together and fondling each other through clothing. L.L.P. testified that the movies gradually became more “X rated” and the “make-out sessions would increase little bit by little bit.” L.L.P. |sfurther explained that the kissing and fondling progressed from “rubbing me with my clothes on” to “shirt off’ to “no bra” to “just panties.”

L.L.P. testified that she began to have sex with defendant in the summer of 1995, when she was fourteen years old. L.L.P. testified that she and the defendant also engaged in oral sex on each other and that the defendant penetrated her digitally. L.L.P. indicated that her relationship with the defendant continued until just after she turned sixteen.

One night, after the defendant had picked up L.L.P., the defendant’s vehicle was stopped by a Jefferson Parish Sheriffs Office deputy on Manhattan Boulevard. After L.L.P. gave the officer her phone number, her parents were called. L.L.P. lied and told her parents that she was merely listening to a compact disc with the defendant.

L.L.P. admitted that she had not made a complaint to police until she learned about the defendant’s relationship with S.A. She testified that it “came to [her] attention that he was with another fourteen year old and frankly I felt responsible for her.”

D.L., L.L.P.’s father, confirmed that police contacted him one night and told him that they “had [L.L.P.] in [the defendant’s] car.” D.L. also confirmed L.L.P.’s testimony that the defendant visited L.L.P. in the hospital when she had her appendix removed.

R.P., L.L.P.’s husband, testified that L.L.P. told him that she had been sexually abused by a man named “Billy” when she was younger.

Evidence of defendant’s relationship with S.A. was also admitted at trial. D.A., S.A.’s mother, testified that she had previously lived next door to the defendant and his family. D.A. indicated that her late husband, who passed away on March 24, 2007, had been very close friends with the defendant. When her | ^father passed away, S.A. was 15 years old. According to D.A., after her husband passed away, she became concerned at the nature of the relationship the defendant had with S.A. D.A. testified that “events evolved to the point where [she] believed that it was appropriate to seek a protective order” against the defendant. D.A. also confirmed that the purpose of the protective order was to preclude defendant from having contact with S.A. or her brother.

On November 3, 2007, when S.A. was sixteen years old, D.A. looked into S.A.’s closet for the purpose of gathering clothes to assist her in packing for a trip to Washington, D.C. D.A. noticed that the closet was in disarray and began to straighten it out. When she grabbed a duffle bag on the floor of the closet, D.A. felt what she “knew instantly was a body.” At first, D.A. thought that her son might be playing a trick on her and D.A. told him to exit the closet. However, a man D.A. immediately recognized as the defendant then “jumped out of the closet with a bag over his head” and fled the residence through the back door. D.A. called the police. The defendant was apprehended shortly thereafter.

S.A. testified that, at the time of trial, she was eighteen years old and a freshman in college. S.A. indicated that she first met the defendant when she was 15 years old. S.A. described the defendant as her father’s “best friend” and noted that she was friends with the defendant’s children. In the months before her father died, S.A. and the defendant began talking frequently on the telephone. S.A. testified that on New Year’s Eve 2006 the defendant kissed her on the lips. She described the kiss as “more than a friendly kiss.” S.A. felt that she was doing something wrong, but also that she “wanted to do it anyway” and “liked where it was going.” According to S.A., the primary reason that she was in close contact with the defendant is because she was concerned for her father’s well-being during his illness and the defendant offered moral support to her. After her father passed |7away, the relationship between S.A. and the defendant changed. They began talking more and started meeting at a Belle Chasse Panda King parking lot to kiss. S.A. and the defendant were both afraid that they would get caught. S.A. described how she would enter the defendant’s car and engage in French kissing.

On the evening of November 2, 2007, S.A. let the defendant into her mother’s home. According to S.A., her mother was at church and was planning on attending a party afterwards. S.A. and the defendant did not have sex, however, they spent the evening sitting in the closet kissing, talking, and hugging.

The trial court then allowed an employee of the Jefferson Parish District Attorney’s Office to read into the record a prior statement that the defendant made while under oath. In that statement, the defendant indicated that he engaged in phone conversations with S.A., that he knew S.A.’s cell phone number, that he knew R.A. had obtained a restraining order against him, and that he met with S.A. in violation of the restraining order. The defendant acknowledged that R.A. had discovered him in S.A.’s closet. The defendant insisted that he only initiated contact with S.A. when she called him and he missed the call and that he violated the terms of the restraining order because he was a “good Samaritan ... concerned about [S.A.’s] stability.” He additionally admitted lying to his former wife when she caught him talking to S.A.

ANALYSIS

In his second counseled assignment of error, the defendant contends that he received an “illegal” sentence. More specifically, the defendant contends that he received an illegally excessive fifteen year sentence on the molestation of a juvenile conviction because the State failed to demonstrate that he had “control or supervision” over the juvenile. The defendant correctly notes that the maximum sentence for a molestation of a juvenile conviction that does not involve “control or ^supervision” over a juvenile is ten years and that the statute provides for an increased penalty when the molestation was committed by an offender who had control or supervision over the juvenile.

Although he alleges that his sentence is excessive, it appears that defendant is alleging that the evidence presented was, at best, sufficient to convict him of a charge of molestation that does not involve control or supervision, and not the charge of molestation of a juvenile when the offender has control or supervision over the juvenile. Essentially, defendant contends that the State failed to prove an element of the charged offense. See, e.g., State v. A.B.M., 2010-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021,1025-26 (treating defendant’s contention that State failed to prove that he had requisite “control or supervision” over a juvenile in a molestation of a juvenile case).

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.

The constitutional standard for testing the sufficiency of evidence requires that the evidence, direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt, |9in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The rule as to circumstantial evidence is that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

The elements of the crime of molestation of a juvenile when the offender has control or supervision over the juvenile are (1) whether the defendant committed a lewd or lascivious act upon the person or in the presence of the victim — and if he did, (2) whether the act was committed with the intention of arousing or gratifying his sexual desires or those of his victim; and (3) whether the act was committed by the use of (a) force, violence, duress, menace, psychological intimidation, or threat of great bodily harm, or (b) influence by virtue of a position of control or supervision over the victim.

|1(lIn this case, L.L.P. testified that she and the defendant engaged in digital penetration, oral sex, and penile/vaginal intercourse while they were alone in his home. The defendant asked for and received permission from D.P. to drive L.L.P. to the recording studio where he was recording music. The defendant drove L.L.P. to his home in Marrero. The defendant subsequently had L.L.P. cut her window screen for the purpose of picking her up in the middle of the night. The defendant provided L.L.P. with alcohol and pornography when he was the only adult present.

In addition, the defendant exercised a significant level of emotional control over L.L.P. The defendant was in a position of trust and authority relative to L.L.P. The defendant told L.L.P. that if she revealed the nature of their relationship to anyone, he would have to go to jail and his daughter would be homeless. Accordingly, we find that the State demonstrated that the defendant had “control or supervision” over L.L.P. Compare State v. Onstead, 03-1413 (La.App. 5 Cir. 5/26/04), 875 So.2d 908. Therefore the evidence was sufficient to support defendant’s conviction. This allegation of error is meritless.

In his third counseled assignment of error, the defendant contends that his sentences were excessive. In addition, in his second pro se assignment of error, the defendant contends that the trial court erred in sentencing him to consecutive sentences. Because we find error patent which warrants a vacation of defendant’s sentences and a remand for resentencing, see error patent discussion infra, we do not reach these issues raised. See by analogy State v. Colbert, 04-538, (La.App. 5 Cir. 11/30/04), 889 So.2d 1128, 1134.

In his first counseled assignment of error, the defendant contends that it “was error to deny the Motion to Quash as the prosecution was so untimely as to have denied appellant his right to a speedy trial and fundamental due process, in violation of La. Const. Art. I, § 16 and the Sixth Amendment to the Constitution of Inthe United States.” The defendant correctly notes that at the time that the offenses were committed, the bill of information was filed, LSA-C.Cr.P. art. 571.1 provided:

The time within which to institute prosecution of the following sex offenses: forcible rape (R.S. 14:42.1), sexual battery (R.S. 14:43.1), aggravated sexual battery (R.S. 14:43.2), oral sexual battery (R.S. 14:43.3), aggravated oral sexual battery (R.S. 14:43.4), carnal knowledge of a juvenile (R.S. 14:80), indecent behavior with juveniles (R.S. 14:81), molestation of a juvenile (R.S. 14:81.2), crime against nature (R.S. 14:89), or aggravated crime against nature (R.S. 14:89.1), which involves a victim under seventeen years of age, regardless of whether the crime involves force, serious physical injury, death, or is punishable by imprisonment at hard labor shall be ten years. This ten year period begins to run when the victim attains the age of seventeen.

The defendant is also correct in his assertion that 2005 La. Acts 186 § 1 altered LSA-C.Cr.P. art. 571.1, such that the codal article now reads:

Except as provided by Article 572 of this Chapter, the time within which to institute prosecution of the following sex offenses: sexual battery (R.S. 14:43.1), second degree sexual battery (R.S. 14:43.2), oral sexual battery (R.S. 14:43.3), felony carnal knowledge of a juvenile (R.S. 14:80), indecent behavior with juveniles (R.S. 14:81), molestation of a juvenile (R.S. 14:81.2), crime against nature (R.S. 14:89), aggravated crime against nature (R.S. 14:89.1), incest (R.S. 14:78), or aggravated incest (R.S. 14:78.1) which involves a victim under seventeen years of age, regardless of whether the crime involves force, serious physical injury, death, or is punishable by imprisonment at hard labor shall be thirty years. This thirty-year period begins to run when the victim attains the age of eighteen.

In State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962), abrogated on other grounds by State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01) 779 So.2d 735, the Louisiana Supreme Court rejected the defendant’s argument that the application of a time period for instituting prosecution, which was extended after the commission of the charged offense, violated the ex post facto provisions of the United States and Louisiana Constitutions. The factual situation presented in Feme is similar to that in the instant case. The defendant in Feme was charged with indecent behavior with juveniles occurring on March 26, 1960. At the time of that offense, the applicable prescriptive period was one year after the offense was made known. 112By Act 25 of 1960, effective July 27, 1960, the applicable prescriptive period was increased to two years. The defendant was subsequently charged by bill of information filed on December 15, 1961, more than one year after the offense was made known but less than two years after the offense was committed. In determining that Act 25 was not an ex post facto law, the Supreme Court made the following observations:

As we understand this case the substantial rights of the accused had never vested, for the time limitation or prescription of the offense which was in effect at the date of the alleged commission of the offense had not fully run when the amendment became effective.
* * *
[T]he State in criminal matters reserves the right to change the prescription or period of limitation of criminal offenses until it has accrued to the benefit of the accused. Until it has accrued, it can be said, the rights of the accused have not become vested and are subject to regulation or change.
But when a right of grace has been extended the State relinquishes the right to prosecute once the statute of limitations has run; until it does run, the State’s right to prosecute is retained and may be extended at the will of the State.
No substantial right of the accused is affected by such a change, nor has the situation been changed to the disadvantage of the accused, for the time during which he may be prosecuted, not having run, deals only with the procedure attached to his conviction or acquittal. The penalty of the offense has not been changed to the disadvantage of the accused, the rules of evidence have not been amended, nor has the definition of the crime affecting the facts been altered in any way. What has been altered is a procedural right, and no undue disadvantage to the accused results therefrom for he has acquired no advantage until the period of limitation has run.

Id. at 383-84.

In State v. Adkisson, 602 So.2d 718 (La. 1992), the Louisiana Supreme Court reaffirmed the Feme rule. Adkisson recognized that the legislature could amend LSA-C.Cr.P. art. 573 and extend the time limit within which the State could institute prosecution, but only as long as the amendment came into effect before |1sthe statute of limitations accrued. Id. at 719.

Here, the record indicates that L.L.P. was born on January 11,1981. She turned 17 on January 11, 1998. The State originally had ten years from January 11, 2008 to file charges against the defendant. However, before the ten year period expired, the legislature extended the applicable prescriptive period to thirty years after L.L.P. turned seventeen, or January 11, 2028. Thus, the institution of charges on May 1, 2009 was timely. Compare State v. Romero, 96-777 (La.App. 3 Cir. 3/5/97), 692 So.2d 609. There was no error in the denial of defendant’s motion to quash.

In his pro se assignment of error, the defendant contends that he was subjected to double jeopardy. More specifically, the defendant contends that “convictions for Sexual Battery, Oral Sexual Battery and Molestation of Juvenile arising from the set of facts, is unconstitutional because it violates fundamental due process by imposing multiple punishments for a single act.” This Court ordered the State and defense counsel to brief the issues.

Even though the defendant did not raise a double jeopardy violation in the court below, “[djouble jeopardy can be raised at any time, but only once.” LSA-C.Cr.P. art. 594; see also State v. Gordon, 00-1013, (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 149-50, writs denied, 02-0362 (La.12/19/02), 833 So.2d 336, 02-0209 (La.2/14/03), 836 So.2d 134 (holding that the defendant could raise double jeopardy on appeal when he did not raise the issue in the trial court). While the defendant failed to file a motion to quash, this is the first time he has raised the issue. Thus, the assignment of error is properly before this Court on appeal.

_J^The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. LSA-C.Cr.P. art. 591 provides:

No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.

“Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act.” State v. Jackson, 96-661 (La. App. 5 Cir.4/9/97), 694 So.2d 440, 448, writ denied, 97-1050 (La.10/13/97), 703 So.2d 609, writ denied, 97-1255 (La.10/13/97), 703 So.2d 612. “Louisiana has not adopted a ‘same transaction’ test which would prohibit, on double jeopardy grounds, prosecutions for different crimes committed during one sequential, continuing course of conduct.” Id.

In Jackson, supra, this Court explained the two tests used by the Louisiana courts when examining double jeopardy violations as follows:

The “distinct fact” test, commonly referred to as the Blockburger test, is taken from the United States Supreme Court’s holding in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In State v. Knowles, 392 So.2d 651, 654 (La.1980), the Louisiana Supreme Court outlined the Block-burger criteria for examining violations of double jeopardy:
... the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not ...

Id. at 448

The second test is the “same evidence” test. In State v. Steele, 387 So.2d 1175 (La.1980), the Louisiana Supreme Court explained that test as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only | iaone. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial ...
The “same evidence” test is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.

It is well settled that an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Redfearn, 44,709 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, writ denied, 09-2206 (La.4/9/10), 31 So.2d 381. This legal maxim is well illustrated in State v. Jenkins, 45,873 (La.App. 2 Cir. 1/26/11), 57 So.3d 405. In that case, the defendant was charged with forcible rape and molestation of a juvenile under the age of 13.

The defendant eventually pleaded guilty; the pertinent statement of facts as recited by the State reads as follows:

The State would ... present evidence that upon [the defendant’s cousin’s] return [to her home] with her husband [the defendant] appeared sweaty and apprehensive and that the parents immediately went to the girl’s room and that’s when they talked to juvenile with the initials of W.J. ... and she stated that [the defendant] had bit her on her neck and had put himself in her pee-pee and boo-boo, and upon the father hearing this he left the bedroom and Mr. Jenkins took off running out of the house and through the woods.
The State would present evidence which would show that the juvenile ... did present evidence which was collected for DNA and subsequently sent and examined by DNA and a profile obtained from the epithelia fraction of the anal swab was consistent with being a mixture of DNA from at least two individuals. And also a swab of the bite mark on the juvenile’s neck was taken and it was consistent with a mixture from at least two individuals.

Id. at 407.

On appeal, the defendant contended that the forcible rape guilty plea precluded the molestation conviction because the only evidence submitted to support the forcible rape conviction was the same evidence that supported the molestation conviction. The Second Circuit disagreed, reasoning:

11fiFrom a review of the indictment in this case, we find that Jenkins has failed to show a double jeopardy violation. The charging instrument includes one count of aggravated rape and one count of molestation of a juvenile, two separate offenses under Louisiana law which require different proof. The language of the charging instrument, on its face, raises no double jeopardy concerns and would have permitted the state to prosecute two separate and distinct offenses during the same criminal episode or transaction. Likewise, the guilty plea colloquy is sufficient to establish that two separate criminal acts of anal and vaginal intercourse occurred. Thus, a facial review of the record fails to establish a double jeopardy violation.

Id. at 410.

Similarly, in this case, the bill of information charged the defendant with two counts of sexual battery, one count of oral sexual battery, and one count of molestation of a juvenile. All of these offenses are separate offenses that require separate and different proof. At trial, the State established through testimony that the defendant fondled L.L.P. on numerous occasions, both with her clothes on and off. This is sufficient to prove two counts of sexual battery. Testimony further established that the relationship progressed to where the defendant was also performing oral sex on L.L.P. and vice versa, which is sufficient to prove oral sexual battery. Testimony further established that the relationship progressed to where the defendant and L.L.P. were also having intercourse, which is sufficient to prove molestation of a juvenile. L.L.P. testified that all of these offenses occurred up until the time her relationship with the defendant ended more than a year later. The record is more than sufficient to show that the defendant committed separate and distinct offenses of sexual battery, oral sexual battery, and molestation of a juvenile against L.L.P. Accordingly, the defendant has not shown a double jeopardy violation and that this assignment of error has no merit.

|17We reviewed the record errors patent, according to 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), and find that the trial court failed to observe the 24-hour delay between denial of the defendant’s motion for new trial and sentencing, as required by LSA-C.Cr.P. art. 873. The record does not indicate that the defendant waived the delay. Generally, when a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the case remanded for re-sentencing, unless defendant does not challenge his sentence nor show prejudice as a result of the failure to waive the twenty-four-hour delay. State v. Jones, 07-271 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143, 1149; State v. Stone, 05-82 (La.App. 5 Cir. 5/31/05), 904 So.2d 810, 816.

In this case, the defendant is challenging the allegedly excessive and the consecutive nature of his sentences. This Court has consistently held that when the defendant challenges the penalty imposed and the imposed sentence is not mandatory, the failure to observe the 24-hour delay mandated by LSA-C.Cr.P. art. 873 cannot be considered harmless error. See, e.g., State v. Young, 04-1318 (La.App. 5 Cir. 4/26/05), 902 So.2d 461, 470, writ denied, 2008-0938 (La.11/21/08), 996 So.2d 1105. In this instance, the defendant’s sentence was not mandatory, and he is challenging his sentences on appeal. Under these circumstances, this Court generally vacates the defendant’s sentence and remands the case for re-sentencing. Id. Accordingly, we vacate the defendant’s sentences and remand this matter for re-sentencing.

CONCLUSION

For the above discussed reasons, the defendant’s convictions are affirmed. His sentences are vacated and this matter is remanded for resentencing.

Convictions Affirmed; Sentences Vacated; Remanded

      . In accordance with LSA-R.S. 46:1844(W), the victims in this matter are referenced by their initials.

      . Victim herein.

      . LSA-R.S.14:81.2 provides, in pertinent part:
      A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.
      B. Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than ten years, or both; the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
      C.Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.

      . 1993 La. Acts 592 § 1, effective June 15, 1993, deleted all sex offenses from LSA-C.Cr.P. art. 573 and created LSA-C.Cr.P. art. 571.1, which, as aforementioned, currently establishes the time limitation for sex offenses involving minors.

      . Touching through clothing is sufficient to complete the touching element of sexual battery. State v. Simpkins, 44,197, 44,198 (La. App. 2 Cir. 5/13/09), 12 So.3d 1021, rehearing denied, writ denied, 2009-1229 (La.2/5/10), 27 So.3d 296, writ denied, 2009-1539 (La.3/5/10), 28 So.3d 1004.


source: Caselaw Access Project

author: CLARENCE E. MCMANUS, Judge. '

license: Public Domain

text:
    SUCCESSION OF William L. BARATTINI.
    No. 11-CA-752.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      David L. Neeb, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Henry W. Kinney, III, Michael L. De-shazo, Rebecca S. Miller, Kinney, Ellin-ghausen, Richard & Deshazo, Attorneys at Law, New Orleans, LA, for Plaintiff/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. MCMANUS, Judge. '

|2The appeal arises from the decision of the trial court granting Patrice Barattini’s petition to annul probated testament executed on November 9, 2006) and ordering that the testament of decedent William Barattini, executed in 1997, be probated. For the reasons that follow, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

William Barattini died on July 13, 2010. At the time of his death, he had been married once, to Marilyn Charvannes Bar-attini (who predeceased him). One daughter was born as a result of that union, Patrice Barattini. Decedent had also been involved in a long term relationship, lasting until his death, with June Clesi. Of that relationship one son was born, Michael Barattini.

On August 5, 2010, Michael Barattini filed a Petition for Probate of Statutory Testament, seeking to probate a testament signed on November 9, 2006. In the will, the decedent left his entire estate to his son, Michael, and nothing to his daughter, Patrice Barattini. The trial court signed judgment probating the will on August 10, 2010.

On August 18, 2010, Patrice filed a Petition to Probate Notarial Testament and Opposition to Probating Previously Filed Testament, in which she opposed Michael Barattini’s petition for probate of the November 9, 2006 testament, and in which she petitioned to probate the decedent’s will executed April 24, 1997. In the R1997 testament, the decedent forgave Michael debts owed, and left his estate to Patrice Barattini. Upon discovering that a judgment probating the 2006 will had already been rendered, on October 4, 2010, Patrice filed a supplemental petition in which she sought to annul the judgment probating the 2006 testament, contending that the testament was an absolute nullity.

A trial on the merits was held and the trial' court found that William Barattini lacked the capacity to execute a last will and testament on November 9, 2006. The trial court vacated its ruling of August 10, 2010 (which had probated that testament), and ordered that the Last Will and Testament of William L. Barattini dated April 24, 1997, be filed, registered and executed according to law.

After the denial of his motion for new trial, Michael Barattini filed this appeal. In this appeal, Michael Barattini. alleges that the trial court erred in finding that plaintiff met her burden of proof with clear and convincing evidence. He further contends that the trial court erred in not applying the jurisprudential presumption of an “uncalled witnesse” against the plaintiff.

The following evidence was adduced at the hearing.

The decedent lived with June Clesi, mother of Michael, the last 15 years of his life, including all of 2006 and up until the time he died in 2012. In 2005, the decedent was diagnosed with Alzheimer’s disease. According to Clesi, during the fall of 2006, the decedent was still in good physical and mental condition, and his condition did not deteriorate until 2008. Her testimony that the decedent was in good physical condition was contradicted by the medical records of East Jefferson Hospital, where he had been admitted on more than one occasion during that year.

Decedent was checked into the hospital by June Clesi on October 30, 2006,10 days before the will in question was executed. The medical records indicated that he was obtunded and in an almost comatose condition. He returned home |4from the hospital at 8:30 on the evening of November 9, 2006, the day the will was signed. He was transported home by. ambulance and his medical discharge papers state his condition as encephalopathy (delirium). They also noted that he had been diagnosed with Alzheimer’s disease.

Clesi testified that on November 9th, the decedent told her he wanted to change his will, and he called the notary himself. According to Clesi, the decedent was upset with his daughter Patrice because she had sold property in Bush, Louisiana several years earlier. When the will was executed, Clesi’s two daughters, who considered decedent akin, to a step-father, acted as witnesses. In addition to the notary, Lyn Fruchnicht, Michael Barattini was also present. Clesi testified that decedent’s mental capabilities were good and that she saw decedent sign the will himself with a pen. She stated that the notary arrived at around 7:00 p.m. Clesi did not remember that decedent was brought home in an ambulance around 8:30 that night.

Lyn Fruchnicht was the notary who executed the will. She stated that she prepared the will at the decedent’s request, who had contacted her by telephone. Fru-chnicht stated that on either November 8 or November 9, William Barattini contacted her in order to have the will signed. She stated that she went to the house around 7 p.m. that evening. Clesi, her two daughters and Michael Barattini were there. At the time Fruchnicht arrived, the decedent was lying in bed; however he got up and sat on the side of the bed to sign the will. She further testified that she did not know he had been diagnosed with Alzheimer’s about 1 and ½ years earlier, and that she believed he had the mental capacity to make the will. She too did not remember him arriving at the house by ambulance at around 8:30. On cross-examination, Fruchnicht admitted to a guilty plea in a federal HUD fraud charge.

|sNicole Lawler, Clesi’s daughter, testified that she witnessed the signing of the will, which occurred around 8 p.m. She testified that from October 25th to November 9th, decedent was in good health. She observed this when she visited the decedent, at Clesi’s house during that time period.

Michael Barattini, Clesi’s and decedents’ son and the beneficiary of the will at issue, testified that the decedent called him to come over because he was making a new will. He testified that the decedent signed the will around 7 or 8 p.m., and that when he signed the will he was ambulatory. Michael Barattini did not remember that his mother had brought decedent to the hospital 10 days earlier in a lethargic condition, nor did he remember decedent being brought home in an ambulance at 8:30 on the night the will was signed.

Sandra Gomez was decedent’s caretaker in 2007, sometime after the will was signed. She testified that when she sat with the decedent, he recognized her, he ate by himself, and he was forgetful, but not overly so. She stated that he read the newspaper and would discuss current events with her, and that he had not lost interest in the real estate business.

Mary Ann Sherry, a board certified document examiner, examined decedent’s current will, his previous wills and some East Jefferson Hospital releases he signed earlier in 2006. In her opinion, the signature on the November 9, 2006 will was not the same as the other signatures, known to be William Barattini’s signatures, which she examined.

Patrice Barattini testified that her relationship with her father had not changed after she had sold the piece of property several years earlier. According to both her testimony and hospital records, Patrice Barattini was the person involved with hospital personnel concerning her father’s care in treating his Alzheimer’s disease.

IfiAlso at the trial, testimony was elicited that Patrice Barattini obtained the decedent’s power of attorney after the date the will in question was written. Patrice Bar-attini admitted that Clesi signed the power of attorney in decedent’s name, and that she witnessed it. Her objective was to protect her father’s house (which had been damaged by Katrina) and his entitlement to Road Home money.

Dr. Ted Bloch was qualified as an expert in geriatric psychiatry. He testified that he reviewed the records of decedent’s Alzheimer’s diagnosis and the records of East Jefferson Hospital relative to decedent, including those of his ten day stay at the time of the writing of the will. He opined that decedent would not have had the capacity to execute a will on November 9. The records indicated that he was discharged on November 9th with a diagnosis of encephalopathy, which means he was almost comatose, and in a delirious condition. The decedent had a history of Alzheimer’s and possible Parkinson’s; however a neurological assessment could not be done at that time because of stupor. His hospital records contained notations that he was disoriented throughout his hospital stay, that he had delirium on top of dementia, and that he was forgetful. Dr. Blont testified that decedent had an abnormal EEG, which is consistent with patients that had Alzheimer’s disease and delirium. Dr. Blont further testified that Alzheimer’s disease is a progressive disease that does not get better, and that dementia causes someone to lose their capacity to make rational decisions, which he classified as executive function. When asked whether he was 100% certain, based on the information gleaned from decedent’s medical records and discharge papers, that William Barattini could not have had the capacity to execute a will on November 9, 2006, Dr. Bloch replied, “I am.”

^CAPACITY AND BURDEN OF PROOF

Capacity to donate mortis causa must exist at the time the testator executes the testament. LSA-C.C. art. 1471. To have capacity to make a donation inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making. LSA-C.C. art. 1477. In determining testamentary capacity, the question is whether the testator understood the nature of the disposition and appreciated its effects. In re Succession of Hollis, 43,315 (La.App. 2 Cir. 6/18/08), 987 So.2d 387, writ denied, 08-1632 (La.10/24/08), 992 So.2d 1035.

“A party is presumed to have testamentary capacity, and the opponent bears the burden of defeating this presumption by putting forth clear and convincing evidence to the contrary.” In re Succession of Sandifer, 05-860 (La.App. 3 Cir. 3/1/06), 923 So.2d 862. In order to prove a matter by clear and convincing evidence, the party must demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. In re Succession of Hollis, supra.

The issue of capacity is factual in nature[J In re Succession of Furlow, 44,-473 (La.App. 2 Cir. 8/12/09), 17 So.3d 475. The court may consider medical evidence, other expert testimony and lay witness testimony. As such, there is no “litmus paper” test to apply in the evaluation of mental capacity. Id.

Because “[t]he determination of testamentary capacity is a factual question, the findings of the trial judge are not to be disturbed on appeal unless manifestly erroneous.” Succession of Wiggins, 08-63 (La.App. 3 Cir. 6/4/08), 984 So.2d 948, unit denied 08-1355 (La.9/26/08), 992 So.2d 989. Issues of credibility are within the domain of the trier of fact. When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of preview demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Dufresne v. Dufresne, 08-215 (La.App. 5 Cir. 9/16/08), 992 So.2d 579.

In this ease, the witnesses to the will testified that decedent had capacity to execute the will at the time it was signed. They stated that he was in good physical condition and that he knew what he was doing. However, medical records of East Jefferson Hospital on that same day indicated that the decedent was delirious and almost comatose. An expert in geriatric psychiatry testified that given the medical condition of decedent as evidenced by medical records of that date on which the will was allegedly executed, the decedent would not have had capacity to execute a will.

Based on the evidence presented, we cannot find manifest error in the findings of the trial court. While it is true that every witness that was present at the execution of the will testified to decedent’s capacity, it is apparent that the trial court found their testimonies not to be credible. While each witness stated that the decedent was alert and aware, each witness also stated that they did not recall the decedent being transported from the hospital, after a 10 day stay, in a delirious and almost comatose condition and approximately 1 hour after they stated that the will had been signed. Accordingly, we see no reason to disturb the trial court’s finding that the decedent did not have the capacity to execute the will of November 9, 2006, and in finding that will to be null. “UNCALLED WITNESS” RULE

In this allegation of error, Michael Barattini alleges that Patrice Barattini failed to call the decedent’s treating physician, and therefore he is entitled to the presumption that his testimony would be adverse to the plaintiffs case.

|3In Nunnery v. City of Kenner, 08-1298 (La.App. 5 Cir. 5/12/09), 17 So.3d 411, we said:

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebutta-ble and is tempered by the fact that a party need only put on enough evidence to prove the case. Driscoll v. Stucker, 04-0589 (La.1/19/05), 893 So.2d 32, 47. The adverse presumption is referred to as the “uncalled witness” rule and applies when a party has the power to produce witnesses who would elucidate the transaction or occurrence and fails to call those witnesses. Id.

The adverse presumption is inapplicable when the witness is equally available to both parties. Dixon v. Travelers Ins. Co., 02-1364 (La.App. 4 Cir. 4/2/03), 842 So.2d 478, writ denied, 03-1482 (La.9/26/03), 854 So.2d 366.

In this case, Michael Barattini alleges that the decedent’s treating physician was known to Patrice Barattini and that her failure to call this physician should result in the adverse presumption that he would have testified that the decedent had capacity on November 9, 2006. However, the treating physician was equally available to Michael Barattini, and therefore the “uncalled witness” rule is inapplicable. We find this allegation of error to be without merit.

For the above discussed reasons, the trial court’s ruling of November 3, 2010, which vacated the Order of August 10, 2010 (probating the will of November 9, 2006) and ordered the Last Will and Testament of William L. Barattini, dated April 24, 1997, be filed, registered and executed according to law, is affirmed. All costs are assessed to appellant.

AFFIRMED


author: WALTER J. ROTHSCHILD, Judge.

text:
    W.P. and E.P. Individually and on Behalf of their minor son, H.P. v. UNIVERSAL HEALTH SERVICES FOUNDATION d/b/a River Oaks Child and Adolescent Hospital.
    No. 11-CA-801.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Tracey R. Bryan, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    David A. Bowling, Susannah C. McKinney, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| gPlaintiffs, W.P. and E.P., individually and on behalf of their minor child, H.P., filed the instant petition for damages against River Oaks Child and Adolescent Hospital alleging that River Oaks was negligent in failing to prevent a sexual assault to H.P. which occurred while H.P. was a patient at the hospital. River Oaks responded with a dilatory exception of prematurity on the basis that the claims were governed by the Louisiana Medical Malpractice Act and must be reviewed by a medical review panel prior to commencement of litigation. Plaintiffs opposed this exception, and the matter was heard by the trial court oh March 31, 2011. On April 11, 2011, the trial court rendered judgment granting defendant’s exception and dismissing plaintiffs’ petition without prejudice. The trial court orally assigned the following reasons for judgment:

River Oaks is a mental facility that takes care of adolescents. In the allegations of the petition it is quite clear to this Court that the assessment of patients, the room assignment, particularly in this regard, the handling of any complaints, all of that falls clearly, in this Court’s mind, under the Medical Malpractice Act.

| sPlaintiffs now appeal from this ruling on the basis of several assignments of error. Plaintiffs contend on appeal that the trial court erred in finding this case is governed by the provisions of the Louisiana Medical Malpractice Act. Plaintiffs allege that the allegations in the petition sound in general negligence law rather than in medical malpractice, as the claims asserted are not related to the provision of medical care.

Defendant contend that the claims fall within the purview of the LMMA because they implicate professional medical decision-making by the hospital and its staff regarding the admission, monitoring and supervision of psychiatric patients.

The Louisiana Medical Malpractice Act (LMMA)

La. R.S. 40:1299.41, et seq., sets forth the limitations of liability for “qualified health care providers” and provides a procedural framework for the litigation of medical malpractice claims. See generally, Delcambre v. Blood Systems, Inc., 04-561, p. 5 (La.1/19/05), 893 So.2d 23, 27. The LMMA’s procedural requirements and limitations of liability apply only to medical malpractice claims. Delcambre, supra, citing Coleman v. Deno, 01-1517, pp. 15-16 (La.1/25/02), 813 So.2d 303, 315. All other tort liability by a qualified health care provider is subject to the general law of torts. Id. We note that, because the provisions of the LMMA are in derogation of the rights of tort victims, the act is strictly construed. Blevins v. Hamilton Med. Ctr., Inc., 07-127, p. 5 (La.6/29/07), 959 So.2d 440, 444; see also, LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, p. 6 (La.9/5/07), 966 So.2d 519, 523.

One of the primary features of the LMMA is that, when a plaintiff asserts a claim meeting the statutory requirements, unless the parties agree to waive the requirement, the plaintiff must submit his complaint to a medical review panel and |4may not file suit in any court until the medical review panel has rendered its expert opinion on the merits of the complaint. La. R.S. 40:1299.47; Delcambre, supra, 893 So.2d at 27. Thus, if the plaintiff fails to submit the claim to a medical review panel before the institution of suit, the appropriate procedural remedy is a timely filed exception of prematurity. Blevins, supra, 959 So.2d at 444.

At the hearing on an exception of prematurity, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La.C.C.P. art. 930. “The burden of proving prematurity is on the exceptor ... who must show that it is entitled to a medical review panel because the allegations fall within the [LMMA].” Blevins, 959 So.2d at 444.

“Malpractice,” as defined by the LMMA at the time this cause of action arose, is:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.R.S. 40:1299.41(A)(13) (emphasis added).

The LMMA defines a “patient” as “a natural person, including a donor of human blood or blood components and a nursing home resident who receives or should have received health care from a licensed health care provider, under contract, expressed or implied.” La.R.S. 40:1299.41(A)(15). Further, “health care” is defined as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a [ ¡¡patient during the patient’s medical care, treatment, or confinement, ...” La.R.S. 40:1299.41(A)(9). See, Atkinson v. Lammico Ins. Co., 11-13, p. 4 (La.App. 3 Cir. 5/4/11), 63 So.3d 1176, 1179-80; writ denied, 11-1156 (La.9/16/11), 69 So.3d 1151.

In determining whether certain conduct by a qualified health care provider constitutes “malpractice” as defined under the LMMA the Louisiana Supreme Court has utilized the following factors:

[1] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill,
[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and
[3] whether the pertinent act or omission involved assessment of the patient’s condition.
[4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
[5] whether the injury would have occurred if the patient had not sought treatment, and
[6] whether the tort alleged was intentional.
Coleman v. Deno, supra, 813 So.2d at 315-316.

The issue of whether a claim sounds in medical malpractice involves a question of law, so we conduct a de novo review. Hernandez v. Diversified Healthcare-Abbeville, LLC, 09-546, pp. 1-2 (La. App. 3 Cir. 11/4/09), 24 So.3d 284, 285, writ denied, 09-2629 (La.2/12/10), 27 So.3d 849.

The allegations of plaintiffs’ petition

In their petition, plaintiffs allege that H.P. was admitted to the psychiatric unit of River Oaks Hospital on July 18, 2009 and remained there until July 31, 2009. Plaintiffs allege that H.P. was sexually assaulted by another patient on two occasions while in the hospital, and that H.P. reported the assault to a nurse who stated she did not believe him. Plaintiffs further allege:

IfiAt the time of the sexual assault upon H.P., he was a patient in the custody and charge of River Oaks Child and Adolescent Hospital. As such, the defendant had a duty to protect him as a patient within their care and custody, from other patients. Defendant is further guilty of negligently training and supervising its staff and employees at River Oaks Child and Adolescent Hospital, and failure to follow hospital policies with regard to supervision of minors and/or psychiatric patients.

The specific acts of negligence set forth in the petition are as follows:

a) Failing to maintain proper security;
b) Failure to keep a constant watch on minor patients unable to care for themselves;
c) Placing H.P. in a room with another psychiatric patient, “Charles,” thereby allowing the sexual assault/sodomy to occur;
d) Failing to take measures to insure H.P.’s safe care while in the custody and control of the Defendant, River Oaks Child and Adolescent Hospital;
e) Failing to assist H.P. after it was known that he had been sexually assaulted;
f) Failing to provide protection from a second sexual assault by “Charles”;
g) Failing to provide adequate monitoring and other devices necessary to insure the safety of minor patients;
h) All other acts of negligence, the specific nature of which are unknown to plaintiffs but which are particularly within the knowledge of the defendant, its agents and employees.

Legal Arguments and Analysis

By this appeal, plaintiffs argue that the negligent conduct referred to in the petition was not committed within the context of the administration of medical services and was not treatment related in any way. In support of this argument, plaintiffs contend that the trial court erred in its application of the Coleman factors to the facts of the present case. Plaintiffs rely heavily on two Louisiana cases which apply the Coleman factors and conclude that similar injuries inflicted in a medical facility fall outside the scope of the LMMA.

|7In Riley v. Maison Orleans II, Inc., 01-498 (La.App. 4 Cir. 9/25/02), 829 So.2d 479, 496, writs denied, 02-2653 (La.12/19/02), 833 So.2d 348 and 02-2646 (La.12/19/02), 833 So.2d 345, a nursing home was held liable based on negligent supervision of staff for an attack by one resident on another under general tort principles. However, there was no discussion in that decision of medical malpractice principles, nor is there any indication that defendants asserted applicability of the LMMA. Rather, the incident pre-dated the 2001 amendment to the LMMA which added the phrase “in the training or supervision of health care providers” to the definition of malpractice. This case is therefore not relevant to the issues raised by this appeal.

Plaintiffs also rely on Leonard v. State, Dept. of Health & Hospitals-Ruston Developmental Ctr., 42,893 (La.App. 2 Cir. 1/30/08), 975 So.2d 662, 665, writ denied, 08-805 (La.6/6/08), 983 So.2d 920, wherein a young man died after gaining unauthorized access to the facility’s medicine cabinet. However, we find this case to be distinguishable from the instant situation: the defendant was in a group home rather than a psychiatric medical facility such as River Oaks and, unlike the present case, the young man in Leonard was not seeking medical treatment at the time of the incident. We therefore fail to find this case controlling in the instant case.

After review of the allegations of plaintiffs’ petition in the present case, as well as applicable statutory authority and all pertinent jurisprudence, we find that the record supports River Oaks’ contention that plaintiffs’ claims fall within the scope of the LMMA. We distinguish the jurisprudence cited by plaintiffs from the facts of the present case, and we reach the conclusion that the allegations as set 18forth by plaintiffs must be presented to a medical review panel prior to instituting the present litigation.

In the present case, plaintiffs have alleged that the hospital was negligent in placing H.P. in a room with another psychiatric patient. These allegations of the petition raise the unique situation of placing a minor patient in a room with another patient with special medical needs. As such, the allegations relate to the particular medical assessment and condition of each of the patients, and are therefore related to the treatment of the patients within the meaning of the medical malpractice act. Further, the assessment of patients as the basis for making room assignments will certainly require expert evidence bearing on the nature of the patients’ diagnoses and will require an examination of the hospital staffs exercise of professional judgment in making these assignments. Whether the hospital exercised appropriate care in assigning the minor H.P. to a room with another patient being treated in the psychiatric hospital is beyond the common experience of a layman. We find that a determination of a breach of the appropriate standard of care for assessment of psychiatric patients and making room assignments based on this assessment falls within the scope of the malpractice act.

The allegations of the petition also raise the issue of alleged misconduct by the hospital staff in failing to provide appropriate supervision and monitoring of the minor child, H.P., while he was an in-patient at the psychiatric medical facility. The level of observation of a minor psychiatric patient required by a hospital staff is necessarily treatment-related and will require expert testimony regarding the exercise of professional judgment in this regard. The ordinary layman does not know the type of monitoring required in an adolescent psychiatric hospital, and expert testimony will likely be required.

| (¡Plaintiffs also contend that the hospital staff was negligent in failing to assist H.P. after learning he had been assaulted. This allegation raises questions regarding the exercise of medical judgment by the hospital staff and whether the staff properly evaluated H.P.’s complaints of abuse and took necessary steps to prevent a second incident. Expert testimony will likely be required for the fact-finder to determine whether the staffs actions were adequate in light of the physical and mental characteristics of the two patients who were confined in a psychiatric hospital at the time of the occurrences.

Both the clear provisions of the LMMA as well as an application of the factors set forth by the Supreme Court in Coleman lead us to a determination that the cause of action asserted in the present case is one sounding in medical malpractice rather than in general tort law. The allegations within the plaintiffs’ petition involve issues of medical judgment which are treatment related and are not within the common knowledge and experience of laymen. Accordingly, the trial court correctly determined that plaintiffs are required to present the matter to a medical review panel prior to filing this suit in the district court.

Plaintiffs also contend by this appeal that the trial court erred in failing to address the argument that defendant’s actions should be considered negligence per se pursuant to the provisions of La. Children’s Code article 1409(T), which provides that an institution which confines a minor child “shall prohibit the mistreatment, neglect, or abuse of any minor child in any way.” Plaintiffs contend that although this statute does not create an independent cause of action against the hospital, it should be considered as a method of establishing general negligence theories of duty and breach of duty which arises outside of the scope of medical malpractice.

| mHowever, the applicability of the provisions of the Children’s Code is limited to juvenile court proceedings. La. Ch.C. art. 103. Accordingly, such provisions are inapplicable in the present case. Rather, plaintiffs must pursue these claims of general negligence within the framework of statutory authority for litigation of claims against qualified health care providers, i.e., within the scope of the medical malpractice act.

In their final argument on appeal, plaintiffs argue that the trial court failed to address the extensive Louisiana jurisprudence which holds that sexual abuse committed in health care facilities falls outside the scope of the LMMA for such acts do not occur through the provision of medical care. We have examined each of the cases cited by plaintiffs and fail to find this line of cases applicable to the facts of the present case.

In Jure v. Raviolla, 612 So.2d 225, 228 (La.App. 4th Cir.1992), writ denied, 614 So.2d 1257 (La.1993), the Court found that plaintiffs claims fell outside the definition of malpractice as the sexual contact alleged by the plaintiff was a result of an intentional act by a health care professional. There are no allegations of an intentional act in the present case. In Reaux v. Our Lady of Lourdes Hospital, 492 So.2d 233 (La.App. 3 Cir.1986), writ denied, 496 So.2d 333 (La.1986), the Court held that a claim against a hospital following a patient’s rape by an outside intruder fell outside the scope of the malpractice act. In that case, the plaintiffs alleged that the rape was a result of a lack of monitoring and security in the hospital, and there were no allegations which could be found to be treatment related.

Unlike the claim asserted in Reaux, the plaintiffs in the present case have claimed that the patient was a minor who was an in-patient in a psychiatric Inhospital, and that the hospital staff failed to properly assess and monitor the situation to prevent the incident in this case. The allegations of the petition assert facts which relate to the medical treatment of the patient, and a determination of whether a duty was breached by defendant will require expert testimony due to the nature of this particular case involving a minor patient in a psychiatric hospital. We find that the current state of the malpractice statute requires such a claim to be brought before a medical review panel, and we find the cases cited by plaintiffs to be inapposite.

Further, in a recent decision from this Court, we affirmed a lower court ruling granting River Oaks’ exception of prematurity. Buford v. Williams, et al., 11-568 (La.App. 5 Cir. 2/14/12), 88 So.3d 540. In that case, plaintiff alleged that while a patient at River Oaks Hospital, she was raped by an employee of the hospital. This Court held that plaintiffs claims of the hospital staffs negligent supervision of the employee and negligence both in failing to keep plaintiff safe and in making plaintiffs room assignment are within the definition of malpractice. We find this decision to be persuasive in our resolution of the present case.

Although plaintiffs contend that the trial court’s ruling conflicts with prior jurisprudence regarding cases involving sexual abuse, we fail to find legal support for such an argument. Rather, we find that the trial court correctly determined that the claims as asserted in plaintiffs’ petition are governed by the Louisiana Medical 112Malpractice Act. We conclude therefore that the trial court correctly granted defendant’s exception of prematurity, and the trial court’s judgment is hereby affirmed.

AFFIRMED

      . Plaintiffs also cite to Alphonso v. Charity Hosp. of Louisiana at New Orleans, 413 So.2d 982 (La.App. 4 Cir. 1982) writ denied, 415 So.2d 952 (La. 1982), a case involving the amount of damages awarded to a patient raped while in Charity Hospital. However, there is no discussion in that case of applicability of the malpractice statute, and we fail to find the case to be helpful in our present analysis.


author: JUDE G. GRAVOIS, Judge.

text:
    Honey Elisabeth ESTAPA v. Andreas LORENZ.
    No. 11-CA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Attorneys at Law, New Orleans, LA, for Plaintiff'Appellee.
    Andreas Lorenz, Germany, Defendant/Appellant, In Proper Person.
    Panel composed of FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON, Judges.
   JUDE G. GRAVOIS, Judge.

^Defendant, Andreas Lorenz, appearing in proper person, has appealed the trial court’s award of child support in favor of plaintiff, Honey Elisabeth Estapa. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties are the parents of a minor child who was born on April 28, 2008 in Texas. The mother, Honey Elisabeth Es-tapa (“Honey”), is an American citizen, while the father, Andreas Lorenz (“Andre-as”), is a German citizen. Andreas was present for the child’s birth, but returned to Germany a few days later. He has visited with the child in the United States several times.

In 2010, Honey filed a petition for sole custody. Following a hearing, the parties were awarded joint custody. On February 16, 2011, Honey filed a rule to set child support. Andreas filed an objection to the rule explaining that as a German citizen, he works and lives under an economic scheme different from that of the United States. Citing his higher cost of living and different tax structure, he argued that a straight application of the Louisiana child support guidelines to his | ^situation would be inequitable. Based on the system utilized in Germany, which awards child support based on net income, Andreas stated that his child support obligation would be $528 per month. He requested credit for the extraordinary travel costs he incurs when visiting the child in the United States. He also requested that an accommodation be made for the fluctuation of the value of the Euro against the Dollar.

A hearing was held before the district judge on May 9, 2011. Both parties appeared and were represented by counsel at the hearing.

At the hearing, the parties stipulated that Andreas’ monthly income was $6,300 and that Honey’s monthly income was $2,087. Honey testified that she is a social worker and became self-employed in 2010. She sees approximately 13-15 patients per week and hopes that this number will increase to 18-20 patients per week. She went into private practice to have flexible work hours. She testified that the child is currently covered by Medicaid, but asked that Andreas be ordered to pay a share of private medical insurance for the child in the event the child becomes ineligible for Medicaid.

Andreas testified that he asked for a deviation from the child support guidelines based on the higher living costs in Germany. He explained that using the Louisiana system, his gross income is turned into Dollars, but this does not take into account that he pays his expenses in Euros. He testified that the tax rate in Germany is higher than in the United States, and in calculating child support, the German system takes into account this higher tax rate. Andreas stated that after paying all of the taxes he is required to pay, his net monthly income is $3,349. He testified that he spends $4,000-$5,000 per year to travel to the United States to see his child.

|4On cross-examination, Andreas testified that he came to the United States five times during 2010. One time he came to take a licensing exam in Los Angeles. Following the exam, he came to Louisiana to visit with the child, but was refused visitation. The last time he came to the United States, he was here for two weeks and visited with the child for five or six days. He admitted that on another occasion, he came to Las Vegas to get married, but did not attempt to visit with the child. Andreas also admitted that he owns a new home with his wife in which they have approximately 120,000 Euros (estimated at trial to be $178,000) in equity, and that he “put down” approximately 10,000 Euros (estimated at trial to be $15,000) for his wedding.

At the conclusion of the hearing, the trial court denied Andreas’ request for a deviation from the child support guidelines. The court stated that it was unaware of any precedent which would allow a decrease in child support based upon the taxes a parent is required to pay in another country. The court denied a reduction in child support based on travel expenses, noting that when Andreas traveled to Las Vegas to get married, he made no effort to visit with the child. The court set the child support at $1,209 per month.

ASSIGNMENTS OF ERROR

Although Andreas was represented by counsel in the trial court proceedings, he has appealed and filed his brief in proper person. On appeal, he first repeats his arguments regarding his perceived inequity in applying the Louisiana child support guidelines to him since he is a German citizen who works in Germany. He further argues that based on a publication by the “Hague Conference on Private International Law,” the cost involved in transportation to have contact with the child should be considered in assessing child support.

| -JJVALYSIS

Guidelines for the determination of child support are set forth in La. R.S. 9:315, et seq. The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A). The guidelines are mandatory and provide limits and structure to the trial court’s discretion in setting the amount of support. James v. James, 34,567 (La.App.2d Cir.4/6/01), 785 So.2d 193.

There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is proper and in the child’s best interest. La. R.S. 9:315.1(A); Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290, 295. However, the trial court may deviate from the guidelines if it finds that application of the guidelines would not be in the child’s best interest or would be inequitable to the parties. Id. Because the amount of child support determined by the use of the guidelines is presumptively correct, the party urging a deviation from this amount bears the burden of proving by a preponderance of the evidence that a deviation is warranted. Id. at 297. In other words, the party advocating a deviation bears the burden of proving the guidelines amount is not in the best interest of the child or would be inequitable to the parties. Id.

In La. R.S. 9:315(A), the Louisiana Legislature set forth the basic principles of the Louisiana child support guidelines, to-wit:

The premise of these guidelines as well as the provisions of the Civil Code is that child support is a continuous obligation of both parents, children are entitled to share in the current income of both parents, and children should not be the economic victims of divorce or out-of-wedlock birth. The economic data underlying these guidelines, which adopt the Income Shares Model, and the guideline calculations attempt to simulate the percentage of parental net income that is spent on children in intact families incorporating a consideration of the expenses of the parties, such as federal and state taxes and FICA taxes. While the legislature acknowledges that the expenditures of two-household divorced, separated, or non-formed families are ^different from intact family households, it is very important that the children of this state not be forced to live in poverty because of family disruption and that they be afforded the same opportunities available to children in intact families, consisting of parents with similar financial means to those of their own parents.

While we are sympathetic to Andreas’ plight, his first argument fails to recognize that the child is living in the state of Louisiana and is subject to the protections of the laws of this state. Apparently in an attempt to argue that a deviation from the guidelines would be in the best interest of the child, Andreas states that he has had to decrease the number of visits he can make with the child in the United States because of the child support obligation imposed on him. However, in declining to deviate from the child support guidelines, the trial court noted that on at least one occasion, Andreas traveled to the United States and made no effort to visit with the child. Further, the record reflects that shortly before the hearing, Andreas had spent a significant amount of funds on a new house and on a wedding. Thus, not only does the record support the inference that a deviation from the guidelines is not warranted for the best interest of the child, the record also supports the inference that application of the guidelines to Andreas is not inequitable. Accordingly, Andreas failed to carry his burden of proving that awarding the amount of child support as determined by use of the guidelines in this particular case is not in the best interest of the child or would be inequitable to the parties. The decision of whether to deviate from the guidelines lies within the sound discretion of the trial judge and this decision will not be overturned absent an abuse of that discretion. Greene v. Greene, 93-789 (La.App. 3 Cir. 3/2/94) 634 So.2d 1286, 1290-91. We do not find that the trial judge abused her discretion and, therefore, decline to modify the child support award in this case.

Also, in his brief, Andreas writes of instances in which his requests to the trial court for the child to visit with him in Germany were denied. Documents ^purporting to show that these requests were denied are attached to his brief. For the following reasons, we find that Andre-as’ arguments relative to these alleged denial Orders are not properly before this Court.

Andreas filed his motion for appeal on June 19, 2011. The motion does not cite to a specific judgment; rather it just states that “the record herein shows error to his prejudice and that he is entitled to an appeal.... ” The judgment setting child support is dated May 19, 2011. Thus, it is apparent that Andreas is appealing the judgment setting child support. Further, the Orders attached to Andreas’ brief are dated in September 2011, well after he filed his motion for appeal. Moreover, an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Dawson v. Cintas Corp., 97-2275 (La.App. 1 Cir. 6/29/98), 715 So.2d 165. Thus, we will not address Andreas’ arguments relative to these denied requests.

Further, in his brief, Andreas quotes from the “Hague Conference” and other publications regarding international child visitation and the importance of children maintaining relationships with both parents. At the end of the hearing, the trial court stated in dicta that unless the mother agrees to allow the child to visit the father in Germany, he will not order it. The trial court emphasized, however, the importance of the child and his father communicating on a frequent basis and included in the judgment that Andreas “shall have communication with [the child] through Skype at least twice per week.” In his brief, Andreas requests that this Court order visitation of the child in Germany over the summer and either over the Christmas or Easter holidays. Since An-dreas has not made this specific request in the trial court and the trial court has not made a ruling on such a request, this Court has no ruling to review. ¡¿CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . Andreas appeared telephonically at the hearing.


author: ROBERTA. CHAISSON, Judge.

text:
    Betty MILES v. SUZANNE’S CAFE’ AND CATERING, INC. d/b/a Two J’s and their Insurer, XYZ Insurance Company.
    No. 11-CA-907.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Marion D. Floyd, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    Dennis J. Phayer, Peter M. Gahagan, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

12This is an appeal by Betty Miles, plaintiff-appellant, from a judgment dismissing her claims against Suzanne’s Café & Catering, Inc. d/b/a Two J’s, and Canal Indemnity Company, defendants-appellees, on grounds of abandonment. For the following reasons, the judgment is reversed and the matter remanded to the parish court.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. Plaintiff contends that she was injured as a result of a slip and fall from a foreign substance on the floor of Two J’s premises. Plaintiff filed suit on October 25, 2005, and service was requested on Suzanne’s Café & Catering, Inc. d/b/a/ Two J’s, through its agent for service of process, Suzanne R. Curóle. The record does not reflect that there is a return of service. The next document of record is a defense Motion to Dismiss for failure to prosecute the claim, filed over six years later on March 17, 2011. That motion was granted by judgment dated March 18, 2011. Upon notification of the judgment, plaintiff moved to set aside the dismissal on April 5, 2011, and a hearing was set for May 17, 2011. At that hearing, plaintiff introduced correspondence between |sthe parties which she claimed constituted timely steps in the prosecution of the claim which precluded dismissal for abandonment. The trial court determined that this correspondence did not meet the statutory requirements of steps in the prosecution of the claim, and denied the motion for a new trial. This appeal followed.

LAW AND ANALYSIS

Article 561 of the Louisiana Code of Civil Procedure is the controlling statutory law. The statute provides in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years
(3) This provision shall be operative without a formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The jurisprudence has uniformly held that Louisiana Code of Civil Procedure Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010 (La.5/15/01), 785 So.2d 779.

In James v. Formosa Plastics Corporation of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335, 338, the court explained that:

Article 561 requires three things: 1) that a party take some “step” in the prosecution or defense of the action; 2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and 3) that it be taken within three years of the last step taken by either party, (citations omitted).

14Where a party alleges that there was either formal discovery or the taking of a deposition which is not of record, or some other action which is alleged to have been a “step,” the court must receive extrinsic evidence of these non-record activities. Clark, supra at 789.

In the present case, the record pri- or to defendants’ Motion to Dismiss consisted only of the petition. Defendants acknowledge in brief that plaintiffs counsel requested re-service of the petition on Suzanne R. Curóle on August 31, 2007, although this request does not appear in the appellate record. There was no action taken on the record from August 31, 2007, when the service request was made, until March 17, 2011, the date defendants filed their Motion to Dismiss, a period of over three and one-half years. Therefore, plaintiff must show through extrinsic evidence that a step in the prosecution of this matter was taken prior to August 31, 2010, that would serve to interrupt the tolling of the three year abandonment period.

Plaintiff introduced correspondence between the parties beginning in October 2004, and continuing through March 29, 2011, which consisted of the following:

1. Five letters from Peter Spangen-.berg, the insurance adjuster, to plaintiffs counsel dated between October 22, 2004, and June 3, 2005.
2. A letter dated September 12, 2009, from plaintiffs counsel to Mr. Span-genberg requesting medical payments in the amount of $3,302.00.
3. A letter dated November 13, 2009, from Mr. Spangenberg to plaintiffs counsel asking for a copy of the suit and any other filings, and advising that the matter would have to be reviewed to determine whether there was any “legal basis for paying a claim that is this old.”
|⅞4. A letter dated November 18, 2009, from defense counsel to plaintiffs counsel asking for medical records, and confirming other understandings between counsel.
5. A letter dated January 5, 2010, from Mr. Spangenberg to plaintiffs counsel in which he asks if plaintiff is looking to settle the claim for the $3,302.00 in medical expenses, and stating that if plaintiff would sign a full release, “our client will consider settlement.”
6. A letter dated March 16, 2010, from Plaintiffs counsel to Mr. Spangen-berg offering to settle for $10,000.00.
7. A letter dated March 31, 2010, from Mr. Spangenberg to plaintiffs counsel offering to settle for $5,000.00, but denying liability.
8. A letter dated April 30, 2010, from plaintiffs counsel to Mr. Spangen-berg seeking accident reports at defendants’ place of business for the three years prior to the alleged accident, and stating that plaintiff was ready to schedule depositions.
9. A letter dated March 29, 2011, from defendants’ counsel to plaintiffs counsel informing him that the case had been dismissed.

Considering the record and extrinsic correspondence, there is no question that no action whatsoever was taken in the case between August 31, 2007, the date of the re-request for service, and plaintiff counsel’s letter of September 12, 2009. Of the correspondence referenced above, the letters in Item Number 1 are all pre-suit letters which are irrelevant here. The letters in Item Numbers 2, 3, 5, 6 and 7 are clearly settlement discussions. In Clark, the court stated that “ ‘Extrajudicial efforts,’ such as informal settlement negotiations between the parties, have uniformly been held to be insufficient to constitute a step for purposes of interrupting abandonment.” (Supra at 790). See also Tasch, Inc. v. Horizon Group, 2008-0635 (La.App. 4 Cir. 1/7/09), 3 So.3d 562. In Clark, the issue was whether an unconditional tender of the undisputed portion of an insurance claim constituted a step in the prosecution of the action. In answering in the affirmative, the court explained that because the unconditional tender was made to avoid the potential imposition of penalties and attorney fees pursuant to La. R.S. 22:658, | ^defendant was invoking legal protection against negative consequences, rather than merely informally discussing the possibility of settlement. Here, there was no unconditional tender, but only informal discussions about possible settlement, and thus these discussions did not interrupt abandonment.

The further question is whether the remaining two letters, Item Numbers 4 and 8, constituted steps in the prosecution of the action. Item Number 8 is an informal request for documents related to prior incidents at the restaurant and a suggestion that depositions would be scheduled in the future. In Jackson v. Moock, 2008-1111 (La.App. 1 Cir. 12/23/08), 4 So.3d 840, the court rejected the assertion that informal discussions and correspondence about scheduling depositions were sufficient to constitute steps in the prosecution of an action. We similarly hold that an informal request for documents from the defendant and a vague suggestion about scheduling future depositions do not constitute formal discovery, and are therefore not steps in the prosecution of the action for purposes of La. C.C.P. art. 561.

The text of the first paragraph of the letter in Item Number 4 is as follows:

“This is to confirm our advices that we have been retained to represent Canal Insurance Company in the above referenced matter. In addition, this will confirm your agreement to grant us an extension of time within which to file responsive pleadings on behalf of Canal Insurance Company. Finally, this will confirm your agreement to refrain from taking any actions adverse to the interests of any party without first allowing us the opportunity to protect their interests.”

In oral argument, defense counsel characterizes this letter, written by prior defense. counsel, as a “knee-jerk reaction” once defense counsel learned that a suit had been filed. However, this letter was written two months after plaintiff counsel’s September 12, 2009, letter to defendants’ adjuster. Regardless of whether this letter was the result of careful deliberation by defense counsel or a “knee-jerk reaction”, it clearly establishes that there was an agreement between |7counsel that plaintiff would take no action adverse to the interests of any party without first allowing them the opportunity to protect their interests. Plaintiffs counsel was agreeing not to default the defendants, and therefore was specifically agreeing not to take a step in the prosecution of the suit. It would be inequitable to allow defendants to obtain the protection of this agreement, yet disallow plaintiff to invoke the agreement as a basis for avoiding dismissal on abandonment. This result is consistent with the policy considerations underlying abandonment that require any doubt be construed in favor of maintaining a plaintiffs action. Clark, supra at 793.

CONCLUSION

We find that the agreement between counsel, evidenced in writing by defense counsel’s November 18, 2009, letter, served to interrupt the tolling of the three year abandonment period, and that the abandonment period began to run anew on that date. Consequently, the new three year abandonment period had not tolled on March 17, 2011, the date on which defendants filed their Motion to Dismiss. It was error for the trial court to deny plaintiffs Motion to Set Aside Judgment and not reinstate plaintiffs suit once extrinsic evidence was introduced of a step in the prosecution of this matter. We therefore reverse the decision of the trial court and remand the matter for further proceedings.

JUDGMENT REVERSED AND REMANDED

      . All of these letters are dated prior to the filing of the suit on October 25, 2005.