author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Bennie BANNISTER.
    No. 11-KA-602.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, Shannon Swaim, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Appellant, Bennie Bannister.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAYOIS.
   SUSAN M. CHEHARDY, Judge.

laOn appeal, defendant challenges his conviction for attempted second degree murder and his multiple offender adjudication. Upon review, we affirm his underlying conviction and multiple offender adjudication but vacate defendant’s underlying and enhanced sentences.

Facts

At trial, Larry St. Amant testified that, on September 4, 2006, which was Labor Day that year, he was driving his sister’s champagne-colored Cadillac, traveling west on Jefferson Highway toward Ken-ner. He was driving in the far right-hand lane when a white vehicle pulled up on the left side of his vehicle and a person “started firing” a handgun at him.

Mr. St. Amant stated that, when the first bullet shattered the driver’s side window, he “leaned down towards the passenger seat and hit the gas” and continued to travel west on Jefferson Highway. The next thing that St. Amant remembered, he stopped the car, exited, and “started running” toward McDonald’s [ ^.Restaurant on the corner of Jefferson Highway and Causeway Boulevard. St. Amant entered the side door of the McDonald’s, ran through the restaurant, and exited by the back door.

Ms. Jayda Williams, the shift manager at McDonald’s on September 4, 2006, testified that, on the night in question, she saw a black man run into the restaurant from a side door then exit through the back door. After she “ducked down” behind the register at the front counter, she saw another black man, who was carrying a gun, enter the restaurant and state, ‘You can’t run for long.” The man with the gun did not raise his gun or threaten anybody just exited the restaurant and drove off in a white vehicle. Eventually, the victim returned to McDonald’s. Jefferson Parish Sheriffs deputies arrived shortly thereafter.

After EMS transported Mr. St. Amant to the emergency room, the attending physician determined that Mr. St. Amant had been shot in his hand and both of his elbows. St. Amant showed the scars from his injuries to the jury.

When Mr. St. Amant spoke with Deputy Lamar Hooks of the Jefferson Parish Sheriffs Office on the scene, he informed them that he could not describe the suspect’s vehicle and did not know who shot him. Deputy Hooks inspected the victim’s vehicle. He observed a significant amount of blood in the front seat area of the vehicle, including on the console, on the passenger’s seat and on the driver’s door handle. On the floor of the vehicle, Deputy Hooks observed glass fragments from the driver’s door window, which had been shattered. Deputy Hooks further testified that there was a bullet hole in the driver’s side door of the vehicle and a projectile was found in the “chrome moulding [sic]” area of the driver’s door. However, he did not find a weapon or casings in the vehicle. Deputy Hooks also ^searched near the intersection of Labarre and Jefferson Highway where the shooting began. However, he did not find any casings or bullets in that area.

St. Amant further testified that, when he spoke with Detective Dave Morales on September 6, 2006, he admitted that he knew the man that shot him. At that point, he identified the shooter as defendant herein, Bennie Bannister. St. Amant stated that he knew defendant because St. Amant has a child with the man’s niece, Danielle Bannister. Thereafter, Detective Morales obtained an arrest warrant for defendant for attempted murder.

At trial, Detective Morales testified that he received a call on September 19, 2006, from a man who identified himself as defendant who admitted that he “had shot Larry St. Amant on Jefferson Highway by McDonald’s.” Furthermore, he told Detective Morales that “he was going to go to California, get money for an attorney and then turn himself in.” However, defendant never turned himself in.

Robin Anderson, defendant’s best friend of 19 years, testified that in the month and a half leading up to the night of the incident, defendant indicated that he was afraid that St. Amant was following him and wanted to harm him. However, she never saw St. Amant following defendant. She testified that she believed defendant when he told her that he was in fear for his life because of St. Amant. Furthermore, defendant told her that he did not want to kill St. Amant, he just wanted St. Amant to leave his family alone.

At trial, Lieutenant Danny Jewell of the Jefferson Parish Sheriffs Office, Narcotics Division, testified that, on December 6, 2006, his team arrested defendant at the Beechgrove Apartments in Jefferson Parish. After Lt. Jewell read defendant his rights, defendant stated that he shot St. Amant because he believed St. Amant was stalking him “in order to do him harm.” He further testified that the | ^police recovered a 9 mm handgun from the apartment where defendant had been residing.

The State and defense counsel entered into two stipulations regarding the handgun. They stipulated that Louise Waltzer is an expert in firearms identification who determined that the projectile found in the victim’s vehicle was fired from the 9 mm handgun recovered in the defendant’s Bee-chgrove apartment. The State and defense counsel further stipulated that Sarah Corgan, who is an expert in the field of forensic DNA analysis, would have testified that DNA obtained from the slide of the 9 mm semi-automatic handgun was consistent with the DNA profile of the defendant.

Procedural History

On February 1, 2007, a Jefferson Parish Grand Jury indicted defendant, Bennie Bannister, in a true bill of information, on one count of attempted second degree murder, in violation of La. R.S. 14:27:30.1, for the attempted homicide of Larry St. Amant. At his arraignment, defendant entered a plea of not guilty.

On February 9, 2011, defendant proceeded to trial for the attempted second degree murder of Larry St. Amant. After a three-day trial, a twelve-person jury found defendant guilty as charged. On February 23, 2011, the trial court sentenced defendant to 25 years in the Department of Corrections. At that time, the State filed a bill of information alleging that defendant was a second felony offender and defendant denied those allegations.

|fiOn April 27, 2011, after a hearing, the trial court found that the State presented sufficient proof that defendant was a second felony offender and adjudicated defendant as such. On May 11, 2011, the trial court sentenced defendant to 35 years imprisonment in the Department of Corrections. This timely appeal follows.

On appeal, defendant rafees four assignments of error: first, the evidence was insufficient to support the verdict in that it failed to prove beyond a reasonable doubt that the shooting of St. Amant was done with the specific intent to kill and not done in self-defense; second, the State failed to prove that the ten-year cleansing period had not run; third, the trial court imposed an excessive sentence; and finally, it was error to sentence appellant immediately following the denial of the Motion for New Trial without “honoring the 24-hour[sic] delay required by La.C.Cr.P. Art. 873.[sic]”

Law and Analysis

In his first assignment of error, defendant argues that the evidence was insufficient to support the verdict beyond a reasonable doubt for two reasons: first, the State failed to prove his specific intent to kill St. Amant and, second, the State failed to refute his claim of self-defense.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

17Pefendant was convicted of attempted second degree murder in violation of La. R.S. 14:27 and 14:30.1. Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Any person who, having a specific intent to commit a crime, does ... an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended. La. R.S. 14:27. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).

Regarding defendant’s first claim, to prove attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. State v. Hebert, 05-1004, p. 9 (La.App. 5 Cir. 4/25/06), 930 So.2d 1039, 1046. Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but second degree attempted murder requires a specific intent to kill. Id., 05-1004 at 9, 930 So.2d at 1046-17.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118, p. 48 (La.4/11/00), 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869, p. 6 (La.App. 5 Cir. 4/11/07), 958 So.2d 24, 27. Specific intent to kill may also be inferred from the extent and severity of the victim’s injuries. State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-411 (La.10/10/03), 855 So.2d 327.

First and foremost, defendant admits to firing a handgun at the victim while both men were driving down a heavily-travelled highway in Jefferson Parish. The evidence also reflects that the projectile found lodged in the chrome molding of the ^victim’s driver’s side door was fired from a handgun which was handled by defendant and found in defendant’s dwelling. Finally, defendant’s specific intent to kill the victim can be inferred from the fact that the defendant deliberately pointed a gun at the victim and fired it. Hoffman, supra; Batiste, supra. Based on the foregoing, we find the evidence when viewed in the light most favorable to the prosecution was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant had the specific intent to kill the victim.

Regarding defendant’s second claim, defendant argues that his actions were justified because they were committed in self-defense. Specifically, he asserts that he was “stalked by St. Amant who brandished a weapon at him as he peaceably drove down the highway.” He further argues that he was fearful for his life and fired in self-defense, “causing St. Amant very minimal injury.”

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19 A. When self-defense or the defense of another is claimed by the defendant in a non-homicide case, the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense or in defense of others. State v. Steele, 01-1414 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 547, writ denied, 02-2992 (La.9/19/03), 853 So.2d 632.

In this case, the evidence presented at trial does not reveal that the victim was committing a forcible offense against defendant or another to justify the force used by the defendant against the victim. First, St. Amant testified that he did not |9possess a gun or weapon in his vehicle before or during this incident. Second, the evidence obtained by Deputy Hooks, who did not find a weapon in the victim’s vehicle or on the victim’s person on the night of the incident, corroborates that statement. Third, there were no bullet holes in the defendant’s vehicle and none of the windows were blown out, which supports the victim’s statement that he did not fire on the defendant during the incident. As such, viewed in the light most favorable to the prosecution, a rational trier of fact could find that defendant failed to prove by a preponderance of evidence that he acted in self-defense. We find that this assignment of error lacks merit.

In his second assignment of error, defendant argues that his multiple offender adjudication should be vacated because the State failed to prove that ten years had not lapsed between his relevant convictions. Defendant argues that the State failed to prove the date of defendant’s “discharge from supervision” on the 1996 predicate felony, which means that the State was unable to prove that ten years had not lapsed between his convictions.

In order for a defendant to be adjudicated as a habitual offender, the State is required to prove the existence of a prior felony conviction and that defendant is the same person who was convicted of the prior felony. See State v. Nguyen, 04-321, p. 19 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, 912, writ denied, 05-0220 (La.4/29/05), 901 So.2d 1064. At the multiple bill hearing, Aischa Prudhomme, a latent print examiner for the Jefferson Parish Sheriffs Office, established, through comparison, that the fingerprints taken from defendant in court on the date of the hearing matched prints taken in conjunction with defendant’s conviction for possession with intent to distribute cocaine. Thus, the State established defendant’s identity as the person who committed the prior felony. Nguyen, supra.

JjThe State bears the burden of proving that the predicate convictions fall within the “cleansing period” delineated in La. R.S. 15:529.1(0). State v. Hollins, 99-278, p. 21 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 685, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587. This ten-year “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311, 314 (La.1977); State v. Thomas, 04-1341, p. 15 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 906, writ denied, 05-2002 (La.2/17/06), 924 So.2d 1013.

At the habitual offender hearing, the State produced a certified copy of defendant’s conviction in Twenty-Fourth Judicial District Court case number 96-2122, which reflected that defendant entered a guilty plea to the predicate offense on July 9, 1996. The trial court sentenced defendant to five years imprisonment, which was suspended, and defendant was placed on active probation for three years.

The State also introduced a certified copy of an October 1, 1998 minute entry indicating that defendant appeared before the Court on that date for probation revocation hearing in the same case. On October 1, 1998, the trial court held defendant in contempt of court and sentenced defendant to 30 days in parish prison.

The State also introduced a certified copy of “Verification of First Offender Pardon,” stating that, effective August 1, 1999, defendant was fully pardoned for the offense in case no. 96-2122. Finally, the State introduced a certified copy of the bill of information for the underlying offense of attempted second degree murder, which indicated that the offense was committed on September 4, 2006.

|T1At the hearing, defense counsel objected to the introduction of certified copies of defendant’s predicate conviction on the basis that Ms. Prudhomme is not a custodian of records and cannot authenticate the documents. Defense counsel asserted that there was “not sufficient documentation provided by the State nor sufficient testimony adduced through [the] hearing to affirmatively prove that the cleansing period did not run in this matter.”

On appeal, defendant contends that the State failed to prove the date of defendant’s “discharge from supervision.” We disagree.

La. R.S. 15:572(D) provides, in pertinent part:

On the day that an individual completes his sentence, the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred. This copy shall be filed in the record of the proceedings in which the conviction was obtained.

State v. Lemoine, 05-265 (La.App. 5 Cir. 11/29/05), 919 So.2d 727, 728, writ denied, 05-2564 (La.9/15/06), 936 So.2d 1254.

Here, the State presented a certified copy of the defendant’s first-offender pardon for the predicate offense, which was issued on August 1, 1999. Because the statute mandates that the Department of Corrections issue the certificate of pardon on the day an individual completes his sentence, it is proof of the date of discharge from state supervision. Id. Further, the State presented evidence that the underlying offense was committed on September 4, 2006, which is within ten years of the discharge date of August 1, 1999. Accordingly, the trial court did not err in finding that the State proved that defendant was a second-felony offender. This assignment lacks merit.

Iisln his third assignment of error, defendant argues that the trial court imposed an excessive sentence. Defendant argues that his sentence is excessive given that (1) he only has one prior felony conviction for simple possession of cocaine from 1996; (2) the circumstances of the offense are not likely to recur; and (3) the victim was not entirely blameless and only suffered minimal injury.

In the present case, defendant did not file a motion to reconsider sentence in the trial court. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. La.C.Cr.P. art. 881.1; State v. Ragas, 07-3, p. 10 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 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 court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry, 08-151, p. 17 (LaApp. 135 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767.

In considering the trial court’s sentencing discretion, the reviewing court should consider 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. Id. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Berry, supra. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Warmack, 07-811 at 8, 978 So.2d at 109.

In the present case, defendant was originally sentenced to 25 years imprisonment for his conviction of attempted second degree murder. Thereafter, at the multiple bill hearing, defendant was adjudicated a second felony offender based on his underlying conviction of attempted second degree murder, La. R.S. 14:27(D)(l)(a) and La. R.S. 14:30.1(B), and his predicate conviction of possession with intent to distribute cocaine. As a second felony offender, defendant faced a habitual offender sentencing range between 25 and 100 years under La. R.S. 15:529.1(A)(1). Therefore, defendant’s sentence of 35 years is a low-range sentence.

^J^Similarly situated defendants who have been convicted of attempted second degree murder and sentenced as second felony offenders have received greater sentences. See, State v. Snyder, 97-226 (La.App. 5 Cir. 9/30/97), 700 So.2d 1082, 1090 (50 years at hard labor for second felony offender not constitutionally excessive where offender, who was on parole, was convicted of attempted second degree murder for firing three shots at the victim in a drug-related incident); State v. Tyler, 01-1038 (La.App. 5 Cir. 3/26/02), 815 So.2d 205 (60 years at hard labor for second felony offender not constitutionally excessive for defendant convicted of attempted second degree murder for stabbing his girlfriend’s daughter and his girlfriend seven times).

Here, defendant, while driving on a major thoroughfare in Jefferson Parish, fired a gun into the victim’s vehicle, wounding the victim in the hand and both of his elbows. Defendant, while still armed, also pursued the victim on foot into a crowded fast-food restaurant. Both of these actions show a disregard for the victim as well as the public in general. Considering the jurisprudence and the circumstances of the present case, we find no abuse of the trial court’s discretion in defendant’s 35-year sentence. This assignment lacks merit also.

Finally, in his fourth assignment of error, defendant argues that it was error to sentence appellant immediately following the denial of the Motion for New Trial without “honoring the 24 hour[sic] delay required by La.C.Cr.Pro. Art. 873.” We agree. See, State v. Jones, 07-271, p. 10 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143, 1149. This error will be addressed in the discussion on errors patent, infra.

|1ñAs is our routine procedure, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. First, neither defendant’s underlying sentence nor his enhanced sentence was imposed without restriction of parole, probation, or suspension of sentence as required by La. R.S. 14:30.1 and La. R.S. 15:529.1(G). No correction is mandated, however, since, under La. R.S. 15:301.1, statutory restrictions on probation, parole, or suspension of sentence are self-activating.

Next, we note that, after denying defendant’s motion for new trial, the trial court failed to observe the statutorily-mandated delay under La.C.Cr.P. art. 873 before sentencing defendant on the underlying attempted second degree murder conviction. This error requires vacating the underlying sentence and remanding for resentencing.

Further, the trial court imposed the enhanced sentence without vacating defendant’s original sentence as required by La. R.S. 15:529.1(D)(3). Where the original sentence on the underlying offense has not been vacated at the time of defendant’s sentencing as a multiple offender, the original sentence remains in effect and the subsequent sentence as a multiple offender is null and void. State v. Boss, 03-133, pp. 6-7 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 79, writ denied, 03-1968 (La.5/14/04), 872 So.2d 508.

Accordingly, because there was error at sentencing on both the underlying offense and multiple offender adjudication, we vacate the underlying sentence and the multiple offender sentence and remand the matter for resentencing on the underlying conviction and multiple offender adjudieation. See Boss, supra, and State v. Young, 08-387, p. 2 (La.App. 5 Cir. 9/16/08), 996 So.2d 302, 304 n. 1, writ denied, 09-0631 (La.1/8/10), 24 So.3d 863. In all other respects, defendant’s conviction and multiple offender adjudication are affirmed.

| ^AFFIRMED; SENTENCES VACATED AND MATTER REMANDED FOR RESENTENCING

      .Although Mr. St. Amant could not remember how or where he stopped his vehicle, an eyewitness who was standing in front of the bar next to McDonald’s on Jefferson Highway told police that he saw a vehicle “locking up the brakes” and trying to make a U-turn on Jefferson. As the bystander watched, the vehicle ran over a yield sign on the neutral ground then, after turning, collided with another vehicle traveling east on Jefferson Highway towards the parish line. The bystander did not see where the vehicle actually stopped.

      . Two separate witnesses testified that they saw a white vehicle pull into the parking area of McDonald's. A black male with a gun exited that vehicle and entered McDonald’s.

      . At trial, the State introduced photographs and played the restaurant's surveillance tapes of the incident.

      . In that same bill, defendant was also indicted on one count of second degree murder, in violation of La. R.S. 14:30.1, for the homicide of Alvin Clark, Jr., to which he pled not guilty at arraignment. On February 7, 2011, the trial judge severed the two counts for trial. On May 11, 2011, the State dismissed the second degree murder charge against defendant.

      . Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452, p. 7 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109 n. 3, writ denied, 07-0152 (La.9/28/07), 964 So.2d 351.

      .Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 947 So.2d at 109 n. 3.

      . Discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation or good time credit, or it could take place later because of parole revocation. State v. Humphrey, 96-838, p. 13 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La. 11/7/97), 703 So.2d 35.

      . According to La.C.Cr.P. art. 881.1(E), the “[fjailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

      . La. R.S. 14:27(D) states: "Whoever attempts to commit any crime shall be punished as follows: (l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.”

      . La. R.S. 14:30.1(B) states: "Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

      . La. R.S. 15:529.1(A)(1) states, "If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” In the present case, "not less than one-half the longest term” is 25 years and "not more than twice the longest term” is 100 years.

      .La.C.Cr.P. art. 873 reads, in pertinent part: "If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Darwin BUSTILLO.
    No. 11-KA-775.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Michael Smith, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appel-lee, State of Louisiana.
    Gregory C. Bachaud, Attorney at Law, Gretna, LA, for Appellant, Darwin Bustil-lo.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

[ ¡.Defendant, Darwin Bustillo, appeals the trial court’s denial of his motion to set aside his misdemeanor convictions. Because this ruling is not reviewable under our appellate jurisdiction, we dismiss this appeal.

In this case, defendant pled guilty to two misdemeanor counts on May 3, 2007. After defendant waived sentencing delays, the trial court deferred imposition of sentence on either count pursuant to La. C.Cr.P. art 894, and placed defendant on inactive probation for one year.

On March 3, 2011, defendant filed a motion to set aside his convictions. On March 24, 2011, after a hearing, the trial judge denied defendant’s motion. On appeal, defendant seeks review of that ruling.

In criminal matters, the appellate jurisdiction of this Court extends to judgments in those cases that are triable by a jury. La. Const, of 1974, art. V, § 10; La. C.Cr.P. art. 912.1(B)(1). “In all other cases not otherwise provided by law, the defendant has the right of judicial review by application to the court of appeal for a writ of review.” La.C.Cr.P. art. 912.1(C)(1). This matter falls into the category of “other cases not otherwise provided by law.”

Is Accordingly, we dismiss the present appeal. State v. Suthon, 99-661 (La.App. 5 Cir. 10/29/99), 746 So.2d 240, 242. We reserve, however, Mr. Bustillo’s right to file a proper application for supervisory writs, in compliance with U.R.C.A. 4-3, within thirty days from the date of this decision. Further, we hereby construe the motion for appeal as a notice of intent to seek a supervisory writ so Mr. Bustillo is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.

APPEAL DISMISSED.


author: PETERS, J. PETERS, J.

text:
    Nadine EWING v. Frederick M. HILBURN, II.
    No. 11-1243.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Opinion on Rehearing April 25, 2012.

      Eugene A. Ledet, Jr., Dalrymple & Le-det LLC, Alexandria, LA, for Plaintiff/Appellant, Nadine Ewing.
    Kim Purdy Thomas, Patrick F. Cole, Mayer, Smith & Roberts, L.L.P., Shreveport, LA, for Defendants/Appellees, Frederick M. Hilburn, II, DDS and Continental Casualty Company.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PETERS, J.

|, Nadine Ewing appeals from the workers’ compensation judge’s (WCJ’s) denial of her request for penalties and attorney fees based on her employer’s refusal to approve her treatment by the orthopedic surgeon of her choice. For the following reasons, we reverse the WCJ judgment, render judgment in Mrs. Ewing’s favor, and remand this matter for further proceedings.

DISCUSSION OF THE RECORD

Mrs. Ewing claims to have suffered an injury to her left knee on Tuesday, March 9, 2010, while working in the autoclave chamber of her employer, Dr. Frederick M. Hilburn, II, DDS. She was moving sterile instruments from the non-sterile side of the chamber to the sterile side. With a tray of instruments in her hands, she twisted to one side, which caused a dislocation of the patella of her left knee. Mrs. Ewing stated that she bent down and pushed the patella back into place with her hand, and thereafter, she related the incident to two other employees, Alayna McKinney and Michelle Trahan. She completed the workday and worked the next day. On Thursday of that week, Mrs. Ewing and her daughter traveled to San Antonio, Texas, to watch her son compete in an R.O.T.C. competition. During the trip, she began experiencing soreness in her left knee. Mrs. Ewing returned to work on Tuesday, March 16.

On Wednesday, March 17, 2010, Dr. Hil-burn noticed that Mrs. Ewing was limping on her left leg and inquired as to the cause. She told him about the incident the previous Tuesday, but stated that she did not think it would amount to anything. However, her knee continued to worsen until she sought medical treatment at Citizens Rural Clinic in Columbia, Louisiana. The nurse practitioner at Citizens Rural Clinic recommended that she undergo an MRI of her knee and initiated a referral to an orthopedic surgeon at E.A. Conway Medical Center in 12Monroe, Louisiana. In addition to treatment at Citizens Rural Clinic and E.A. Conway Medical Center, Mrs. Ewing also sought medical care at the Huey P. Long Health Medical Center in Pineville, Louisiana.

On her April 8, 2010 visit to Citizens Rural Clinic, the nurse practitioner placed Mrs. Ewing on light-duty work status. However, when her situation did not improve, on April 19, 2010, the nurse practitioner placed her on a no-work status and instructed her to use crutches. Thereafter, Dr. James P. Taylor at Huey P. Long Health Medical Center began seeing Mrs. Ewing. He continued her on the no-work status for two weeks at a time. After the June 9, 2010 examination, Dr. Taylor extended her no-work status indefinitely pending a follow up with him after she underwent an MRI of her knee.

Mrs. Ewing did not return to work with Dr. Hilburn after April 19, 2010, but did express her desire for compensation benefits. On April 21, 2010, she gave a recorded statement to Gayle Timbs, a claim specialist with CNA, the claims administrator for Continental Casualty Company (Continental Casualty), Dr. Hilburn’s insurer. On May 3, 2010, Mrs. Ewing received a letter from Ms. Timbs, which read in pertinent part as follows:

I have completed the investigation of the claim for your left knee. It has been found that this injury did not arise out of and in the course and scope of the employment, therefore, Workers’ Compensation benefits are being denied.

The letter did not explain the scope of the investigation or the specific reason the insurer was denying the claim.

On June 2, 2010, counsel for Mrs. Ewing informed Ms. Timbs that he was representing Mrs. Ewing in her workers’ compensation matter and that he was | ^seeking approval for her to see Dr. Christopher M. Rich, an Alexandria, Louisiana orthopedic surgeon, as soon as possible. Apparently, based on the results of its investigation, Continental Casualty refused to authorize Dr. Rich’s examination and evaluation. On June 16, 2010, Mrs. Ewing filed a disputed claim asserting a number of claims, including the failure to authorize a medical evaluation and treatment by Dr. Rich.

Mrs. Ewing sought and received an expedited hearing pursuant to La.R.S. 23:1121, to resolve the medical authorization. At the conclusion of the August 16, 2010 expedited hearing, the WCJ recognized Mrs. Ewing’s right to see Dr. Rich, but delayed judgment on the issue of penalties and attorney fees. The parties then submitted these issues to the WCJ on briefs and on the transcript of the August 16, 2010 hearing. On June 2, 2011, the WCJ rendered oral reasons rejecting Mrs. Ewing’s request for penalties and attorney fees.

On June 21, 2011, the WCJ signed a judgment on this issue, and this appeal followed that judgment. In her appeal, Mrs. Ewing raises one assignment of error in asserting that the WCJ factually and legally erred in denying her claim for penalties and attorney fees.

OPINION

Just as in tort cases, a WCJ’s factual findings are reviewed on appeal pursuant to the manifest error — clearly wrong standard. Poissenot v. St. Bernard Parish Sheriff's Office, 09-2793 (La.1/9/11), 56 So.3d 170. However, whether the WCJ utilized the appropriate standard in denying penalties and attorney fees to Mrs. Ewing, based on the denial by Dr. Hilburn and Continental Casualty of her request to see the orthopedic surgeon of her choice, is a question of law.

14As pointed out in Nelson v. Windmill Nursery of Louisiana, L.L.C., 04-1941, pp. 3-4 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, 712, writ denied, 05-2294 (La.3/10/06), 925 So.2d 516:

LSA R.S. 23:1121 A provides that an injured employee shall submit to examination by a physician provided and paid for by the employer as soon after the accident as demanded. LSA-R.S. 23:1121 B(l) provides that the employer shall have the right to select one treating physician in any field or specialty. An employer’s refusal to authorize reasonable and necessary medical treatment for an injured employee may justify an award of penalties and attorney fees. LSA-R.S. 23:1201 F. See also Authement v. Shappert Engineering, 02-1631, p. 8 (La.2/25/03), 840 So.2d 1181, 1186, where the court concluded in a similar contest that failure to authorize medical treatment equates to failure to provide benefits and shall result in the assessment of penalties and reasonable attorney fees under LSA-R.S. 23:1201 F.

The first circuit went on to hold that the employer’s obligation to authorize reasonable and necessary medical treatment for an injured employee does not rise or fall based on proof of causation. Id. In summarizing the issue before it, the first circuit stated the following:

Based upon the clear language of the statute, .a penalty and attorney fee can be imposed for this failure to authorize treatment except where the claim is reasonably controverted. LSA-R.S. 23:1201 F(2); Authement, 02-1631 at p. 8, 840 So.2d at 1186. Windmill alleges that the penalties were awarded before it had the opportunity to controvert the claim. We disagree.
In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, the Louisiana Supreme Court discussed the meaning of reasonably controverting a claim. The court stated that generally, “in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Id. 98-1063 at p. 9, 721 So.2d at 890. It further discussed the issue as follows:
Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused |fito pay all or part of the benefits allegedly owed. This definition is in accord with that presently used by the lower courts to determine whether penalties and attorney fees are owed. Id.

Id. at 713.

The first circuit described the issue before it to not be whether a compensable injury had occurred, but whether the employer and/or its insurer had a legal basis for not allowing the claimant to procure medical attention. Id. Thus, the first circuit recognized that the award of a penalty and attorney fees will only be excused in situations where the employer has reasonably controverted the employee’s claim, regardless of the ultimate causation outcome. Likewise, the ultimate issue before us here is not whether Mrs. Ewing suffered a com-pensable injury, but, rather, whether Dr. Hilburn and Continental Casualty had any legal basis for refusing to allow her to procure medical treatment following her alleged knee injury. However, before we can reach that issue, we must first evaluate the burden of proof imposed on Mrs. Ewing by the WCJ.

The burden of proof rests with Dr. Hilburn and Continental Casualty to establish that they reasonably controverted Mrs. Ewing’s request to see Dr. Rich. Moore v. Transmissions, Inc., 41,472 (La.App. 2 Cir. 9/27/06), 940 So.2d 694. Although the WCJ initially correctly stated that penalties and attorney fees would not lie in instances where the employee’s claim was reasonably controverted or where the nonpayment resulted from conditions beyond the employer’s control, it placed the burden of proof on Mrs. Ewing and applied the wrong standard in rendering judgment.

In his oral reasons for judgment, the WCJ stated, in pertinent part, that “the Court finds that since the burden is on Ms. Ewing to demonstrate that the actions of the employer and the insurer were unreasonable or arbitrary and capricious, that | fishe failed in meeting that burden of proof and her claims for penalties and attorney’s fees are denied.” (Emphasis added.) Having concluded that the WCJ committed legal error in denying Mrs. Ewing’s claims, we must conduct a de novo review of the record. Moreno v. Landaverde Constr. LLC, 10-471 (La.App. 5 Cir. 12/14/10), 53 So.3d 687.

In conducting a de novo review, we conclude that Dr. Hilburn and his insurer did not reasonably controvert Mrs. Ewing’s request for medical care with Dr. Rich. The evidence establishes that Dr. Hilburn did not become aware of Mrs. Ewing’s claimed March 9, 2010 injury until Wednesday, March 17, 2010, when he observed her limping at work. When questioned by Dr. Hilburn, Mrs. Ewing immediately related the incident in the autoclave chamber as well as the specific mechanics of the injury itself. Additionally, Mrs. Ewing informed him that there were no witnesses to the accident, but that she had related the fact of the accident and injury to her two coworkers. Mrs. Ewing informed her employer that she did not believe the injury was severe, and she continued working.

Although the record is not entirely clear when it occurred, sometime after his conversation with Mrs. Ewing, Dr. Hilburn questioned the two coworkers concerning what Mrs. Ewing may have related to them regarding the accident. Both coworkers informed the doctor that they did not recall any conversation concerning Mrs. Ewing’s alleged accident on March 9, 2010. He then properly turned this matter over to his workers’ compensation insurer, Continental Casualty.

The investigation performed by CNA, Continental Casualty’s claims administrator, appears to be nothing more than the taking of Mrs. Ewing’s statement wherein she repeated the particulars of the accident and provided Ms. |7Timbs with information concerning her medical care at Citizens Rural Clinic. There is no evidence in that record to indicate that Ms. Timbs did anything toward acquiring medical information on Mrs. Ewing. Had she done so, she would have discovered that the accident history Mrs. Ewing provided Dr. Hilburn was basically the same as that provided to the medical care givers, and that no medical provider suggested that the related accident was inconsistent with her complaints. Instead, Continental Casualty seems to have based its decision to deny benefits solely on the fact that Mrs. Ewing traveled to San Antonio, Texas, the weekend after the accident. Although causation is not the issue, they jumped to the conclusion that causation did not exist and based their refusal on what little information they possessed to deny her request.

Considering the record before us, we find that no legal basis existed for Dr. Hilburn and Continental Casualty to refuse Mrs. Ewing’s request to see Dr. Rich. Accordingly, we find that Dr. Hilburn and Continental Casualty failed to reasonably controvert Mrs. Ewing’s request to see Dr. Rich. Thus, we reverse the WCJ’s judgment denying her request for penalties and attorney fees and render judgment assessing Dr. Hilburn and Continental Casualty with $2,000.00 in penalties and $5,000.00 in attorney fees based on their failure to authorize Mrs. Ewing’s treatment with Dr. Rich, as provided by La. R.S. 23:1121(B).

^DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’ compensation judge denying the request of Nadine Ewing for penalties and attorney fees based on the failure of Dr. Frederick M. Hilburn, II and Continental Casualty Company to authorize her to see Dr. Christopher M. Rich for medical evaluation and treatment. We render judgment in favor of Nadine Ewing and against Dr. Frederick M. Hilburn, II and Continental Casualty Company, awarding Nadine Ewing $2,000.00 in statutory penalties and $5,000.00 in attorney fees. We assess all costs of this appeal to Frederick M. Hil-burn, II, DDS and Continental Casualty Company and remand this matter to the workers’ compensation court for further proceedings.

REVERSED, RENDERED, AND REMANDED.

ON REHEARING

PETERS, J.

| We granted a rehearing in this matter for the limited purpose of addressing whether Mrs. Ewing is entitled to penalties and attorney fees as a result of Dr. Hilburn and Continental Casualty Company’s untimely payment of indemnity and medical benefits resulting from her work-related accident. We failed to address the second issue of her assignment of error in our original opinion.

Mrs. Ewing asserted one assignment of error on appeal:

The workers’ compensation judge was manifestly erroneous and committed legal error in denying attorney fees and penalties regarding late payment of indemnity benefits and medical benefits, and claimant’s right to an initial examination by an orthopaedic surgeon of her choosing.

However, she broke her assignment of error into two issues. The argument at issue in this rehearing is the second of Mrs. Ewing’s arguments: “Was the evidence submitted at trial sufficient to reasonably controvert Nadine Ewing’s right to medical and indemnity benefits?”

After reviewing the record, we find no merit in Mrs. Ewing’s argument on appeal. Mrs. Ewing failed to introduce any medical records obtained subsequent to the August 16, 2010 expedited hearing. Thus, while there is reference to a surgery performed by Dr. Rich and extensive physical therapy thereafter, there is no evidence of these events. This is because, despite having listed Dr. Rich’s records and the physical therapy records as potential exhibits, Mrs. Ewing failed to file these into the record when she submitted this issue to the WCJ on briefs. Additionally, although Mrs. Ewing drops a footnote on page three of her appellate brief that Dr. Hilburn and Continental Casualty Company began paying indemnity benefits soon after the August 16, 2010 hearing, there is nothing in the record to establish this as fact or to evaluate whether this payment was timely or arbitrary and capricious.

|?Based on the foregoing, we find that Mrs. Ewing failed to prove that she is entitled to penalties and attorney fees based on Dr. Hilburn and Continental Casualty Company’s failure to timely pay her indemnity and medical benefits. Accordingly, the judgment of workers’ compensation judge denying Mrs. Ewing penalties and attorney fees for the late payment of indemnity and medical benefits is affirmed.

REHEARING GRANTED; AFFIRMED.

      . Both E.A. Conway Medical Center and Huey P. Long Health Medical Center are part of the LSU Health Care Services Division. Mrs. Ewing sought care at these public facilities because she could not afford medical care otherwise.

      . Mrs. Ewing even provided Ms. Timbs with the telephone number of Citizens Rural Clinic during her recorded interview.

      . Although Mrs. Ewing is entitled to a penalty of $50.00 per day for each day Dr. Hilburn refused her request to see Dr. Rich, the total $50.00 per day penalty may not exceed $2,000.00. La.R.S. 23:1201(F). Mrs. Ewing requested permission to see Dr. Rich on June 2, 2010, but was not granted permission to see him until August 16, 2010, for a total of seventy-six days. This would equal a penalty of $3,800.00, so the maximum amount which may be awarded to Mrs. Ewing is $2,000.00.


author: AMY, Judge. SAUNDERS, Judge,

text:
    STATE in the Interest of M.S., D.S. & B.S.
    No. 11-1364.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Annette Fuller Roach, 15th JDC Public Defenders Office, Lake Charles, LA, Tracey Davenport-McGraw, OCS, Indigent Defender, Rayne, LA, for Appellant, A.S.
    Diane E. Cote, Lafayette, LA, for Ap-pellee, State of Louisiana, Department of Children and Family Services.
    Brett A. Stefanski, Crowley, LA, for Ap-pellees, M.S., D.S., B.S.
    Scott J. Privat, Privat & Privat, Crowley, LA, for Appellant, M.S.
    Tracey Davenport-McGraw, OCS, Indigent Defender, Rayne, LA, for Appellant, A.S.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

LThe three minor children came under the care of the State following allegations that the parents left the children with relatives after the parents received threats due to purported drug-related activity. The State also alleged that the family was homeless. The State ultimately pursued termination of parental rights, asserting that the parents failed to substantially comply with their case plans and that they failed to financially support their children. After a hearing, the trial court terminated the parents’ rights as to all three of the children. The parents separately appeal. For the following reasons, we affirm.

Factual and Procedural Background

This case involves the termination of parental rights of the appellants, A.S. and M.S., to their minor children, D.L.S. (born in 1995), M.L.S. (born in 1997) and B.M.S. (born in 2000). The children came into the custody of the Department of Children and Family Services in April 2009, when the State received information of allegations that A.S., the children’s mother, and M.S., the children’s father, had “no home” and were “being chased and threatened to be killed, in the presence of their children, due to their involvement with drugs.” The resulting instanter order further reported that, although the couple was without a home, “family members and friends [were] not allowing them to reside in their home due to their substance abuse issues.” Subsequently, in July 2009, the trial court issued a judgment, adjudicating the children as being in need of care. In subsequent and repeated review judgments, the children were continued in the State’s custody.

In October 2010, the State filed a Petition for Termination of Parental Rights and Certification for Adoption. The State sought termination under the grounds listed in La.Ch.Code art. 1015(4) and La.Ch. Code. art. 1015(5). Following a hearing, the 12trial court determined that the grounds for termination asserted by the State were established by the evidence. It entered a judgment of termination of parental rights and further certified the children as eligible for adoption.

Both A.S. and M.S. have appealed. Each questions whether the State presented sufficient evidence to support the judgment of termination.

Discussion

Burden of Proof

Louisiana Children’s Code Article 1035(A) requires the State to prove, by clear and convincing evidence, each element of a ground for termination of parental rights. After the State has met that burden of proof, the trial court must determine that termination is in the best interests of the child(ren). See La.Ch.Code art. 1037(B). An appellate court reviews the trial court’s findings as to whether a parent’s rights should be terminated under the manifest error standard. State in the Interest of K.G. and T.G., 02-2886 (La.3/18/03), 841 So.2d 759.

Grounds for Termination

The trial court terminated the parental rights of A.S. and M.S. after determining that the State sustained its burden of proving the grounds for termination under La.Ch.Code art. 1015(4) and (5). Although the parents’ briefs focus on the latter ground, we consider both Paragraph (4) and Paragraph (5) in turn.

La.Ch.Code art. 1015(1) — Abandonment

The State can prove the ground of abandonment as follows:

Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
|a(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

La.Ch.Code art. 1015(4).

Reviewing the record in light of this ground for termination, it is clear that the trial court’s determination was not manifestly erroneous. Instead, Lisa Mooney, the case worker assigned to assist the family, succinctly testified that the parents had not complied with the payment of child support. Indeed, a portion of the State’s case involved the allegation that A.S. and M.S. had not maintained stable employment during the pertinent time period.

Accordingly, we do not disturb the trial court’s determination that the State carried its burden of proving the ground for termination under La.Ch.Code art. 1015(4).

La.Ch.Code art. 1015(5)—Lack of Substantial Parental Compliance

While proof of only one ground under La.Ch.Code art. 1015 is required, the trial court also determined that the State proved the requirements of Paragraph (5), which provides that:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

La.Ch.Code art. 1015(5) (emphasis added).

It is unquestioned that more than one year had elapsed since the children were removed from the parents’ custody pursuant to court order. A.S. and M.S., instead, focus on the question of whether the trial court was manifestly erroneous in ^determining that there had been no substantial compliance with the case study plans developed for each parent.

Reference to the case plans indicates that the parents were expected to maintain stable housing (including the payment of utility expenses and the provision of food), maintain and verify employment, and forward a money order for $25.00 each month to the State and provide verification of that payment. Further, with regard to the parents’ substance abuse, each was required to be assessed by an addictive disorders clinic and follow all recommendations for treatment or, otherwise, attend “N/A meetings.” They were also ordered to submit to random drug screenings. The case plan additionally required both parents to successfully complete parenting classes and implement those changes.

As explained in La.Ch.Code art. 1036(C), lack of parental compliance with a case plan, as used in La.Ch.Code art. 1015(5), may be evidenced by proving one or more of the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

|sIn their briefs to this court, A.S. and M.S. focus on those aspects of the case plan that they contend they fulfilled. Namely, A.S. observes that she had completed parenting and anger management classes. She had also obtained substance abuse treatment, at least to some extent. A.S. also points out that she regularly attended visitation with her children and that, at the time of trial, she had obtained full-time employment and the couple was in the midst of renovations to a barn where they hoped to live. Similarly, M.S. points out that testimony indicated that he regularly visited with the children pursuant to the visitation plan and that he had begun a lengthy course at an area church which addressed anger management, substance abuse, and parenting issues. Like A.S., M.S. testified that the couple had begun to renovate a structure in order to provide housing for the family. Both point out that they did not test positive in their most recent drug screen.

Undoubtedly, A.S. and M.S. took certain steps in keeping with their respective case plans. However, the trial court was not manifestly erroneous in concluding that the State proved that there had been no substantial parental compliance with the case plan. Instead, the evidence indicated that the State established several of the factors listed in La.Ch.Code art. 1036(C). Recall that pursuant to the Article’s wording, lack of parental compliance with a case plan “may be evidenced by” proving “one or more ” of those factors. La.Ch. Code art. 1036(C) (emphasis added).

First, according to the testimony of Ms. Mooney, the parents did not contribute to the costs of child support. See La.Ch. Code art. 1036(C)(4). Further, and consistent throughout these proceedings, the parties failed to provide stable housing for the children and failed to maintain employment, so as to implicate La.Ch.Code art. 1036(C)(5) and (6). Throughout the two-year period involved in this case, the parties did not maintain a residence. Instead, A.S. and M.S. changed residences as many as six times during the period involved, according to Ms. Mooney. The record indicates | (¡that, at one point, the couple resided in a tent. While A.S. and M.S. rely on their testimony that they were in the process of renovating a structure so that it might house the family, it is clear that renovations to make the building habitable were only initially underway. According to their testimony, even upon completion, the house would have only a single bedroom. Further, the State demonstrated that the parties had not maintained employment throughout the period. At most, A.S. had been able to obtain part-time work through a temporary service agency a few weeks before trial. She only hoped that this employment would lead to full time employment. Finally, although the parties each returned negative results in their most recent drug screens, they had each returned positive results in the previous screen, approximately six months before trial, when A.S. tested positive for methadone and M.S. tested positive for cocaine and opiates. In light of the State’s evidence of the parties’ repeated and ongoing deficiencies as to these central components of their case plans, we find no manifest error in the trial court’s determination regarding a lack of substantial compliance.

A.S. and M.S. also question that component of La.Ch.Code art. 1015(5) which requires the State to prove that “there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future[.]” However, La.Ch.Code art. 1036(D) explains that this element may be proven by one or more of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the |7child, based upon expert opinion or based upon an established pattern of behavior.

While this record evidences A.S.’s and M.S.’s respective struggles with substance abuse and, at times, anger management issues, the record most clearly establishes their repeated and ongoing pattern of failing to provide an adequate permanent home for the children. This pattern is evidenced by their failure, over a two-year period, to maintain adequate housing or employment to sustain the family. For this reason, we find no manifest error in the trial court’s determination that the State adequately demonstrated that there was no reasonable expectation of significant improvement of the parent’s conduct in the near future.

This assignment lacks merit.

Best Interests of the Child

We note here that the parents do not specifically contest the trial court’s conclusion that termination of the parental rights was in the best interests of the children. Accordingly, we do not address that finding of the court. We do observe, however, that court-appointed counsel for the children has filed a brief with this court adopting the reasons advanced by the State. This coincides with trial testimony indicating that the children wished to reside at their current placements and not return to their parents.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed equally to the appellants, A.S. and M.S.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, Judge,

dissents and assigns written reasons.

|¶1 disagree with the majority opinion. It is my view that A.S.’s parental rights should not be terminated due to her substantial compliance with the case plan and the reasonable expectation of significant improvement in the parent’s conduct in the near future.

It is my position that A.S. substantially complied with the case plan such that the absence of substantial compliance prong of La.Civ. Code art. 1015(5) is not satisfied. Even with her mental health disorders, major depression and dependent personality disorder, and addiction, A.S. made strides to complete her case plan. She obtained substance abuse treatment and tested negative on the most recent drug screen. She attended and completed parenting classes as well as an anger management course. A.S. cooperated with the agency and voluntarily submitted to a psychological examination. She regularly attended visitation with her children. She obtained employment prior to trial, although it was a temporary part-time position. Based on these facts, A.S. substantially complied with her case plan.

It is also my position that there exists reasonable expectation of significant improvement in A.S.’s conduct in the near future. This prong of La.Civ. Code art. 1015(5) requires that there be a lack of reasonable expectation of improvement in order to terminate parental rights. This conclusion was supported by no evidence at trial. Moreover, A.S. has made significant improvements in her life since 2012, and no evidence in the record suggests that there is reason for the improvements to wane.

I do not feel that termination is appropriate at this point. We must remain mindful that termination, under the law, is a last resort:

[C]ourts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration.

State ex rel. J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 811 (citing State in the Interest of A.E., 448 So.2d 183, 185 (1984)).

Accordingly, I respectfully dissent.

      . Pursuant to the Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, this opinion uses the initials of the parties.


author: ROSEMARY LEDET, Judge.

text:
    Anne E. RAYMOND v. Kendall FLUELLEN.
    No. 2011-CA-1290.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.
    Rehearing Granted for Purpose of Clarifying Opinion April 4, 2012.

      Steven J. Lane, Jennifer L. Greene, Herman Herman Katz & Cotlar, LLP, New Orleans, LA, for Plaintiff/App ellee.
    Alexandra Mora, Law Office of Alexandra Mora, New Orleans, LA, for Defendant/Appellant.
   ROSEMARY LEDET, Judge.

_JjIn this community partition case, the appellant, Kendall Fluellen, appeals a judgment of the trial court, which adopted the appellee’s, Anne E. Raymond’s, detailed descriptive list and entered a judgment deeming the appellee’s list as a judicial determination of the assets and liabilities between the parties. For the reasons that follow, we reverse and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

On September 15, 2008, Ms. Raymond filed a petition to partition the community property against her former husband, Mr. Fluellen. On May 20, 2009, the trial court issued a discovery order in which both parties were ordered to file their descriptive lists on or before June 19, 2009. As ordered, both parties timely filed their descriptive list. Ms. Raymond subsequently filed a traversal against Mr. Fluellen’s list. She also filed two amended sworn detailed descriptive lists.

On August 7, 2009, Ms. Raymond filed a rule to show cause seeking to have her sworn detailed descriptive list deemed a judicial determination of community assets and liabilities. -The trial court issued an order denying Ms. Raymond’s rule |2stating that both parties have filed their detailed descriptive lists in accordance with the May 20, 2009 discovery order and that there was no legal basis for a judicial determination pursuant to La. R.S. 9:2801 A(l)(a).

On March 25, 2010, Ms. Raymond filed an additional sworn detailed descriptive list. Within a few days of Ms. Raymond’s filing, Mr. Fluellen’s attorney of record, Gary Brown, filed a motion to withdraw as counsel. Ms. Raymond filed an opposition to the motion to withdraw as counsel requesting the court to deny Mr. Brown’s motion until the court’s April 26, 2010 scheduling conference. The trial court denied the motion. During the April 26, 2010 scheduling conference a trial order was issued, which was signed by both parties and by Ms. Raymond’s attorney. The order was not signed by Mr. Brown although he was in attendance. The trial order indicated that trial on the merits was scheduled on July 8, 2010. As part of the order, the parties were required to submit a joint detailed descriptive list and pretrial motion by June 17, 2010 and to return to court on June 28, 2010 for a subsequent pre-trial or settlement conference.

On June 11, 2010, counsel for Ms. Raymond sent a letter by certified mail directly to Mr. Fluellen. The letter indicated that they were of the understanding that he was no longer represented by an attorney. The record does not indicate as to when Mr. Brown formally withdrew as Mr. Fluellen’s counsel. Enclosed with the letter was Ms. Raymond’s descriptive list. The letter requested Mr. Fluellen’s portion of the list so that they could file a joint descriptive list by June 17, 2010 in accordance with the court’s order. After receiving no response from Mr. Fluellen, |son June 17, 2010, Ms. Raymond filed her portion of the joint descriptive list and a motion to have her portion of the joint descriptive list adopted by the court and deemed a judicial determination of the assets and liabilities between the parties. The court set Ms. Raymond’s motion for June 28, 2010, which was the date on which both parties had prior notice that they were to appear in court for a pre-trial or settlement conference. The parties do not dispute that Mr. Fluellen was properly served.

On the date of the hearing, June 28, 2010, neither Mr. Fluellen nor a representation on his behalf was present. The trial judge stated that it was explained to Mr. Brown in the presence of Mr. Fluellen that this matter would be set for a status conference on that date, which would be put on the record, whether or not Mr. Fluellen was represented by counsel. Ms. Raymond’s counsel informed the court that Mr. Fluellen received notice of the motion to have Ms. Raymond’s Descriptive List adopted by the court by certified mail and that he was served through the sheriffs office. Mr. Fluellen attributed his absence to incorrectly calendaring the date of the hearing.

Following the hearing, the trial judge granted the motion and rendered judgment, as prayed for by Ms. Raymond, adopting her sworn detailed descriptive list as a judicial determination of the community assets and liabilities. The court’s judgment ordered Mr. Fluellen to pay Ms. Raymond $143,362.75 based on the reimbursement that she was owed and the allocation of assets and liabilities. The ¡Judgment also ordered Mr. Fluellen to vacate the property in which he was living, which was awarded to Ms. Raymond.

It is from this judgment that Mr. Fluel-len appeals.

STANDARD OF REVIEW

A trial court is allowed broad discretion in adjudicating issues raised by divorce and partition of the community regime. Graefenstein v. Graefenstein, 03-1077, p. 6 (La.App. 5 Cir. 1/27/04), 866 So.2d 958, 961. Thus, a trial court’s determinations regarding whether property is community or separate and classifying liabilities and assets are reviewed by a court of appeal under the manifest error standard of review. Jemison v. Timpton, 09-1166, p. 8 (La.App. 4 Cir. 5/6/10), 38 So.3d 1021, 1027. However, the issue under review in this appeal is one of legal error. The appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct. Sander v. Brousseau, 00-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 710.

DISCUSSION

On appeal Mr. Fluellen asserts three assignments of error.

His first assignment of error, which we find dispositive, that the trial court erred when it, contrary to the provisions of La. R.S. 9:2801 A(l)(a), disregarded his Lsworn descriptive list filed June 19, 2009 and adopted Ms. Raymond’s descriptive list as the courts own.

The procedure applied when former spouses are unable to agree on a partition of community property and settlement of claims arising from matrimonial regimes and co-ownership of former community property following termination of the matrimonial regime is outlined in La. R.S. 9:2801, which provides in pertinent part:

(l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other part may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.
(b) Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required.
(2) Within sixty days of the date of service of the last filed detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. For good cause shown, the court may extend the time period for a party to traverse or concur in the detailed descriptive list of the other party. The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.

| (¡Further, pursuant to La. C. Civ. art. 2369.8, La. R.S. 9:2801 is the exclusive procedure by which community property may be partitioned. Article 2369.8 states: “[a] spouse has the right to demand partition of former community property at any time. A contrary agreement is absolutely null. If the spouses are unable to agree on the partition, either spouse may demand judicial partition which shall be conducted in accordance with La. R.S. 9:2801.” (emphasis added). Louisiana appellate courts have held that the procedural requirements of La. R.S. 9:2801 are mandatory. See Strickland v. Strickland, 44,185, p. 2 (La.App. 2 Cir. 4/8/09), 7 So.3d 1282, 1284; Bible v. Bible, 03-2793, p. 5 (La.App. 1 Cir. 9/17/04), 895 So.2d 547, 550; Barry v. Barry, 501 So.2d 897, 898 (La.App. 5th Cir.1987).

There is no procedure pursuant to La. R.S. 9:2801 that allows a court to adopt a party’s sworn descriptive list as a judicial determination of the community of assets and liabilities once descriptive lists have been timely filed by both parties and a traversal has been filed. In the instant case, the parties filed their initial detailed descriptive list timely; however, there were disputes as to the ownership of the property, the valuation of the property, or both. The trial court issued a trial order on May 26, 2010, requiring the parties to submit a joint detailed descriptive list by June 17, 2010. Mr. Fluellen failed to timely file his descriptive list. Subsequently, Ms. Raymond filed a rule to show cause to have her sworn detailed descriptive list constitute a judicial determination of the community assets and liabilities. Mr. Fluellen was absent for this hearing, and the trial court entered a | judgment in favor of Ms. Raymond, adopting her sworn detailed descriptive list as a judicial determination of the community assets and liabilities.

A trial court is authorized to deem a party’s sworn detailed descriptive list as a judicial determination of the assets and liabilities of the community only pursuant to La. R.S. 9:2801(A)(l)(a), which sets forth the specific procedure in which the trial court should follow when a party fails to timely file a sworn detailed descriptive list after the service of a motion to partition the community property. In the instant case, both parties filed their initial sworn detailed descriptive list timely, thus the trial court’s application of La. R.S. 9:2801(A)(l)(a) was legally erroneous; For this reason, the trial court’s judgment is reversed and this case is remanded for a hearing' to determine the allocation and valuation of assets and liabilities along with any claims for reimbursement pursuant to La. R.S. 9:2801.

Because we find Mr. Fluellen’s first assignment of error requires a reversal and remand, we pretermit discussion of the two remaining assignments of error.

DECREE

For the foregoing reasons, the judgment of the trial court, which deemed Anne Raymond’s portion of the joint detailed descriptive list a judicial determination of the community assets and liabilities, is reversed. This matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS

ON APPLICATION FOR REHEARING

\/JN REHEARING GRANTED

We grant rehearing for the sole purpose of clarifying our March 7, 2012 opinion in the following respect. We determined the mandatory provisions to partition community property do not allow the trial court to adopt Ms. Raymond’s sworn descriptive list as a judicial determination of the community of assets and liabilities formerly existing between the parties after descriptive lists have been timely filed by both parties and traversed. La. C.C. art. 2369.8; La. R.S. 9:2801. The Court did not intend to suggest that the trial court does not have any recourse to sanction a party for failure to comply with its pretrial orders. The trial court is vested with wide discretion in determining the penalty for violation of pre-trial or discovery orders, including dismissal and default. La. C.C.P. art. 1471(3).

Assuming the trial court intended to preclude Mr. Fluellen from presenting evidence, Ms. Raymond has the burden of establishing the valuation and allocation of assets, and her reimbursement claim by competent testimonial and documentary evidence. La. C.C.P. art. 1702; see Goldfinch v. United Cabs, Inc., 2008-1447 (La. pp. 4 Cir. 5/13/09), 13 So.3d 1173; also see Dray v. Bendily, 46,452 (La.App. 2 9Cir. 6/22/11), 69 So.3d 1200. The transcript, in the instant case, is void of any testimony from Ms. Raymond or any indication that any evidence was offered in support of her detailed descriptive list. Thus, there is insufficient evidence to support a judgment of partition of community property. In all other respects, the opinion is affirmed as written.

CLARIFIED AND AFFIRMED ON REHEARING

      . Mr. Fluellen’s two remaining assignments of error allege that the trial court erred by ruling contrary to its own trial order and the trial court erred by holding a hearing on the Partition of Community Property without requiring he receive adequate notice.


author: TERRI F. LOVE, Judge.

text:
    Francisco GALACIA v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CA-1125.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2012.

      Al J. Robert, Jr., Law Office of Al J. Robert, Jr., LLC, New Orleans, LA, for Plaintiff/Appellant.
    Darren A. Patin, Christopher M. G’sell, Hailey McNamara Hall Larmann & Pa-pale, Metairie, LA, for Defendant/Appel-lee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

11This is an appeal by Plaintiff, Francisco Galacia, from the trial court’s decision to grant the Motion to Vacate Settlement filed by Defendant, Louisiana Citizens Property Insurance Corporation and in conjunction therewith, dismiss Plaintiffs complaint with prejudice for Plaintiffs failure to comply with the court’s order to return the settlement funds to Louisiana Citizens Property Insurance Corporation. We find that the trial court did not err in granting Louisiana Citizens Property Corporation’s Motion to Vacate Settlement and did not abuse its discretion in dismissing Plaintiffs complaint with prejudice. Accordingly, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This is a Hurricane Katrina-related homeowner’s dispute between the Plaintiff, Mr. Galacia, and his insurer, Louisiana Citizens Property Insurance Corporation (LCPIC). Mr. Galacia owned two properties located in Orleans Parish, 2816-18 Banks Street and 420-22 Gayoso Street, that he claimed were damaged in the storm. Both properties were insured under the same LCPIC policy. 12Mr. Galacia sought damages for these properties in a mass joinder suit filed in Civil District Court, Parish of Orleans against LCPIC. During the pendency of this action, he entered a settlement agreement with LCPIC. Mr. Galacia received $59,903.99 and executed a Receipt, Release and Indemnity Agreement. The Agreement in part released LCPIC from:

“... all claims and demands for loss and damage to property located at 2816-18 Banks Street, New Orleans, Louisiana 70119, and all other losses and damages covered under Louisiana Citizens Property Insurance Corporation, claim number 2006WI007405, policy number FZD 0152829 08....”

Thereafter, Mr. Galacia left the mass joinder litigation and filed the present lawsuit against LCPIC for damages to the Gayoso Street property. In response, counsel for LCPIC sent a letter to Mr. Galacia’s attorney advising that the claims asserted in the suit had already been settled. Mr. Galacia’s attorney then filed a Motion and Order to Dismiss With Prejudice, which was granted by the trial court. A few months later, Mr. Galacia’s attorney decided that the lawsuit had been improperly dismissed and accordingly, filed a Motion for Relief From Judgment and Motion to Re-Open Case.

The motion contended that the settlement agreement covered only the Banks Street property and that Mr. Galacia never intended for the settlement to cover any of the damage to the Gayoso Street property. In support of this position, Mr. Galacia noted that only the Banks Street property was explicitly named in the settlement agreement. LCPIC countered that the settlement agreement expressly included “all other losses and damages” covered under the policy, which would also necessarily include the Gayoso Street property. After hearing Mr. Galacia’s argument that the settlement agreement covered only the Banks Street property and RLCPIC’s claim that both properties were covered by the agreement, the trial court granted Mr. Galacia’s Motion for Relief From Judgment.

In response, LCPIC filed a Motion to Vacate Settlement, citing the parties’ lack of consent to the settlement agreement, and also sought an order that Mr. Galacia return the $59,903.99 he received in settlement funds. On December 10, 2010, the trial court vacated the settlement and ordered Mr. Galacia to tender the $59,903.99 to LCPIC within thirty days of the judgment. Mr. Galacia did not return the settlement funds and instead, filed a Supplemental and Amended Petition for Damages asserting claims for the Banks Street property and the Gayoso Street property. On February 22, 2011, LCPIC filed its Motion to Dismiss For Failure to Comply with Court Order. The trial court heard argument on the motion on March 25, 2011. The trial court reiterated its order for Mr. Galacia to return the settlement funds within thirty days and cautioned that the lawsuit would be subject to dismissal if the funds were not returned. It issued a judgment memorializing these findings on April 13, 2011.

LCPIC filed an ex parte order re-urging its Motion to Dismiss when the funds were not returned; and on June 13, 2011, the trial court signed a judgment dismissing Mr. Galacia’s lawsuit with prejudice. This appeal followed.

JjLCPIC’S EVIDENTIARY BURDEN OF PROOF

Mr. Galacia argues in his first assignment of error argues that the trial court erred when it granted LCPIC’s Motion to Vacate the Settlement Agreement because LCPIC did not introduce any evidence in support of its motion. He represents that LCPIC attached four exhibits to its supporting memorandum; however, LCPIC did not offer the settlement agreement or any other exhibits into evidence nor did it elicit testimony from witnesses to prove its claim that there was no meeting of the minds. Mr. Galacia cites Triss v. Carey, 00-608 (La.App. 4 Cir. 2/7/01), 781 So.2d 613, and Porter v. Louisiana Citizens Property Insurance Corporation, 11-0101 (La.App. 4 Cir. 8/31/11), 72 So.3d 946, in support of this argument.

The Triss decision vacated the trial court’s judgment that had granted the defendant’s peremptory exceptions of no right of action and prescription. The decision found that the parties introduced no evidence at the exceptions and stated that documents attached to memoranda do not constitute evidence and cannot be considered on appeal. Because the court was confronted with an incomplete record, it was unable to review the trial court’s judgment on the exceptions and hence, vacated and remanded the judgment. Id., 00-0608, p. 3-4, 781 So.2d at 615.

Likewise, this Court in Porter v. Louisiana Citizens Property Insurance Corporation also vacated and remanded the trial court’s decision to grant the insurer’s exception of res judicata. The insurer filed an exception of res judicata or alternatively, a motion to enforce a settlement agreement reached with its insured. |aIn relying upon Louisiana Workers’ Comp. Corp. v. Betz, 00-603, p. 3 (La.App. 4 Cir. 4/18/01), 792 So.2d 763, 765, we opined that the burden of proof is on the party urging the exception of res judicata to prove its essential elements by a preponderance of the evidence. The insurer failed to introduce exhibits attached to its exception into evidence. Thus, we concluded that the insurer could not obtain dismissal based on res judicata without entering the parties’ prior settlement agreement into evidence. Porter, 11-0101, p. 4, 72 So.3d at 949.

The facts of the case at bar, however, are distinguishable from those referenced in Triss and Porter, supra. Unlike the movers in Triss and Porter, LCPIC did not file nor did the trial court grant any peremptory exceptions to enforce the settlement agreement. Therefore, the only issue this court needs to resolve is whether the trial court had a sound legal basis to grant LCPIC’s Motion to Vacate the Settlement Agreement. We find that it did.

At the time that LCPIC filed its Motion to Vacate, the trial court, upon Mr. Gala-cia’s own motion, had already granted him relief from abiding by the very same settlement agreement that LCPIC sought to vacate. The trial court accepted Mr. Gala-cia’s contention that the agreement covered only the Banks Street property and LCPIC’s countervailing claim that the agreement extended to the Banks and Gayoso Street properties. Neither party appealed this judgment. We therefore conclude that the judgment that released Mr. Galacia from the settlement agreement also released LCPIC. As there was no enforceable settlement agreement when LCPIC filed its Motion to Vacate, LCPIC was relieved of any evidentiary obligation to prove that the agreement should be vacated in its entirety. The legal arguments raised by LCPIC in its Motion to Vacate provided the trial | ficourt with sufficient reasons to grant the motion. Therefore, this assignment of error lacks merit.

MEETING OF THE MINDS

Mr. Galacia’s second assignment of error maintains that the trial court erred when it found that there had been no meeting of the minds about the Banks Street property. He argues that the “unambiguous” language of the settlement agreement showed that the parties intended to only settle the Banks Street property claim because that was the lone property expressly named in the release. We find no merit to this argument. The language of the settlement agreement is clearly not unambiguous. Mr. Galacia interpreted the agreement to cover only the Banks Street property. In contrast, LCPIC believed the release’s language covered all other losses and damages under the policy, including the Gayoso Street. Mr. Galacia’s counsel conceded at the Motion For Relief From Judgment hearing that there might not be a meeting of the minds if LCPIC’s intent was to settle the claims against both properties. As referenced herein, Mr. Ga-lacia effectively forfeited any argument to claim that the parties had a meeting of the minds when he requested relief from the agreement. The parties clearly had different interpretations of the settlement agreement. The trial court correctly determined that there cannot be consent where there is no meeting of the minds. Accordingly, the trial court did not err in vacating the settlement agreement.

FAILURE TO RETURN SETTLEMENT FUNDS

Mr. Galacia’s third assignment of error alleges that the trial court abused its discretion when it dismissed his claims with prejudice because he failed to return the settlement funds. However, he acknowledges that the trial court had the inherent authority to dismiss his claim. La. C.C.P. art. 191.

17An appellate court generally reviews a judgment of dismissal under the abuse of discretion standard. Ridgeway v. Pierre, 06-0521, 06-0522, p.4 (La.App. 4 Cir. 1/11/07), 950 So.2d 884, 888. Mr. Galacia suggests that this court rely on Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203, to find that the trial court abused its discretion in dismissing his complaint. Horton lists four factors that a court should evaluate to decide whether a failure to comply with discovery mandates dismissal. These factors include 1) whether the violation was willful or resulted from inability to comply; 2) whether a less drastic sanction would be effective; 3) whether the violation prejudiced the opposing party’s trial court preparation; and 4) whether the client participated in the violation or simply misunderstood a court order or innocently heard a derelict attorney. Id., 93-2315, p. 10, 635 So.2d at 203. Mr. Galacia contends that none of the Horton factors were met in the present matter. Specifically, he argues that his failure to return the settlement funds was not willful, but rather was because he had already spent the funds on the Banks Street property. He claims that the trial court should have used a less drastic measure, such as dismissal of his Banks Street claims because the disputed settlement funds related to that property. He also alleges that LCPIC would not have been prejudiced by a lesser sanction because discovery was still on-going and there was no evidence in the record to suggest that Mr. Galacia was aware that his case was subject to dismissal. He thereby reasons that the trial court erred in dismissing his claim with prejudice. We disagree.

First of all, the Horton factors do not apply to the facts of this case because the dismissal was not based on a failure to comply with discovery demands. However, even if this Court applies the Horton factors, we still conclude that the trial court did not abuse its discretion in dismissing Mr. Galacia’s complaint.

|sThe record reveals that Mr. Galacia never made an effort to return any portion of the settlement funds. Mr. Galacia’s insistence that the trial court should have imposed a lesser sanction because he allegedly used the settlement funds to repair the Banks Street property overlooks that he was not legally entitled to those funds once he was granted relief from the settlement agreement and he filed the amended complaint that sought recovery for the Banks and Gayoso Street properties. Simple equity dictates that LCPIC would be prejudiced if Mr. Galacia were allowed to retain settlement funds to which he was no longer entitled and to which LCPIC no longer had an obligation to pay. Mr. Gala-cia cannot keep the settlement funds and pursue litigation against LCPIC at the same time. This Court also cannot overlook that the issuance of the order to return the settlement funds was trigged when the trial court granted Mr. Galacia’s Motion For Relief From Judgment. At the hearing on that motion, LCPIC and the trial court discussed that LCPIC would file a motion to vacate and request a return of the of the settlement funds. The trial court afforded Mr. Galacia two thirty-day notices that his case would be subject to dismissal if the settlement funds were not returned. Mr. Galacia was represented by counsel at every stage of these proceedings. These circumstances contradict any claim that he was unaware that his case could be dismissed. Therefore, the trial court did not abuse its discretion in dismissing Mr. Galacia’s case when he did not return the settlement funds.

DECREE

Based on the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . LCPIC argues that this Court does not have jurisdiction over Mr. Galacia’s appeal as it seeks review of the April 13, 2011 judgment that deferred the imposition of sanctions, not the June 13, 2011 judgment that actually dismissed Mr. Galacia’s complaint. Therefore, LCPIC maintains that the April 13, 2011 judgment is not a final, appealable judgment over which this court has jurisdiction. However, we agree with Mr. Galacia that this Court does have jurisdiction pursuant to La. C.C.P. art. 1915(A)(6) because the April 13 judgment effectively imposed sanctions when it provided that Mr. Galacia’s lawsuit would be dismissed in the event the settlement funds were not returned.