text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, in the Interest of P. B. v. Michael REED.
    No. 10-CA-410.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, Joseph R. McMahon, Jr., John D. Fitzmorris, Jr., Assistant District Attorney, Harvey, Louisiana, for Appellant, State of Louisiana, Department of Social Services.
    Lila Molaison Samuel, George Read Coleman, Attorneys at Law, Gretna, Louisiana, for Appellee, Michael Reed.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

[Jn this case, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorney appeals the juvenile court judge’s calculation of child support from a biological father in a “dual paternity” situation. For the following reasons, we reverse and remand.

This is the second time these parties have been on appeal to this Court. The facts are not in dispute. A boy, P.B., was born on January 22, 2001. When he was conceived in May of 2000, his mother, B.B., was married to P.B. and involved in a sexual relationship with her brother-in-law, M.R. Because B.B.’s husband had undergone a vasectomy, B.B. believed, when she learned that she was pregnant, that M.R. was the child’s biological father. Shortly after the child was conceived, B.B. and M.R.’s relationship ended.

On September 10, 2007, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorney’s Office (hereinafter “State”) filed a Petition to Prove Paternity and Obtain Child Support in the Juvenile Court for Jefferson Parish, pursuant to La. R.S. 46:236.1.2. In this action, |3the petitioners represented that M.R. was P.B.’s biological father. The petitioners attached genetic test results from an accredited laboratory, which reflected that the probability that M.R. was the child’s biological father is 99.999%. Further, the petitioners alleged that the child’s mother was entitled to child support based upon La. R.S. 46:236.1.1 et seq. and La. C.C. art. 241.

On November 10, 2008, the juvenile court judge heard testimony from P.B.’s mother, legal father, biological father, and biological aunt/step-mother on whether establishing the child’s paternity was in the best interest of the child. At the conclusion, the judge determined that it was in the child’s best interest for M.R. to be established as P.B.’s biological father.

M.R. appealed that judgment. The State moved to dismiss that appeal on the grounds that the judgment at issue was a partial, non-appealable judgment, citing La. C.C.P. art. 1915(B)(2) and La. C.C.P. art. 2083. We agreed and dismissed the appeal. State, D.S.S. ex rel. P.B. v. Reed, 08-1309 (La.App. 5 Cir. 5/12/09), 15 So.3d 205, 207.

Thereafter, on January 11, 2010, the trial court held a hearing to review the temporary support order and set child support. At that hearing, the judge ordered M.R. to pay B.B. $365.00 per month for P.B.’s support. The State appeals that award herein.

In its sole assignment of error, the State argues that the juvenile court judge erred, as a matter of law, in the methodology used to calculate the child support obligation of a biological father in a “dual paternity” situation. We agree.

“The husband of the mother is presumed to be the father of all children born during the marriage.... ” La. C.C. art. 185. A child does, however, have standing to bring a filiation proceeding against her biological father, despite the existence of La presumptive father. La. C.C. art. 197; Griffin v. Succession of Branch, 479 So.2d 324 (La.1985).

This filiation proceeding does not illegitimate the child, but rather establishes both the child’s legal and biological father, which is referred to as “dual paternity.” Smith v. Cole, 553 So.2d 847 (La.1989). The Louisiana Supreme Court, in Smith, the seminal decision on dual paternity, opined:

The presumed father’s acceptance of paternal responsibilities, either by intent or default, does not [inure] to the benefit of the biological father. It is the fact of biological paternity or maternity, which obliges parents to nourish their children. The biological father does not escape his support obligations merely because others may share with him the responsibility. Biological fathers are civilly obligated for the support of their offspring.

Id. at 854. “[T]he presumption of paternity ... is not intended to allow biological fathers to avoid their support obligation.” State, Dept. of Social Services, Office of Family Support ex rel. Munson v. Washington, 32,550 (La.App.2d Cir.12/08/99), 747 So.2d 1245, 1247 (citing Warren v. Richard, 296 So.2d 813 (La.1974)).

Additionally, La. R.S. 46:236.1(F) gives the State of Louisiana, Department of Social Services standing, under certain circumstances, to bring an action to establish paternity and fix child support. Specifically, the statute authorizes the State to:

... take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section ... A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.

This statute allows DSS to prove the biological paternity of a child solely for the purposes of acquiring support for the child. T.D. v. M.M.M., 98-0167 (La.3/2/99), 730 So.2d 873, 881-882.

| ¿The trial court’s discretion in setting the amount of child support is structured and limited. State ex rel. D.F. v. L.T., 05-1965 (La.7/6/06), 934 So.2d 687, 690 (citations omitted). This obligation must be administered and fairly apportioned between parents in their mutual financial responsibility for their children; toward that end, guidelines balance the needs of children with the means available to parents. Id. The standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Id. (citations omitted).

The Guidelines for Determination of Child Support are set forth in La. R.S. 9:315, et seq. (“Guidelines”). In La. R.S. 9:315(A), the Louisiana Legislature set forth the basic principles of the Guidelines as follows:

The premise of these guidelines as well as the provisions of the Civil Code is that child support is a continuous obligation of both parents, children are enti-tied to share in the current income of both parents, and children should not be the economic victims of divorce or out-of-wedlock birth.

The guidelines mandate that each party provide the Court with proof of his or her income. La. R.S. 9:315.2(A) states:

Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party. [Emphasis added.]

In cases where the record contains inadequate information and documentation upon which to make a child support determination under the guidelines, a remand to the trial court is necessary. Inzinna v. Acosta, 623 So.2d 1357, 1359 (La.App. 5th Cir.1993).

| Jn this situation, which does present a matter of first impression for this Circuit, we would be inclined to render a support order to bring a certain amount of closure to this situation. Unfortunately, the record is devoid of competent evidence necessary to make a proper child support determination under the guidelines.

Here, the exhibit list includes two paycheck stubs from the mother, an unauthenticated list of bank deposits for the biological father, two different LASES worksheets, and a 1099 form for the biological father. It is unclear how the trial judge came upon the amount of income imputed to the legal father. Further, based on the numerous documents listing income for the biological father, it is unclear how the trial judge decided upon the amount of income imputed to him.

The trial court’s discretion in setting the amount of child support is structured and limited. State ex rel. D.F. v. L.T., 05-1965 (La.7/6/06), 934 So.2d 687, 690 (citations omitted). La. R.S. 9:315.2(A) clearly states:

Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party. (Emphasis added).

Here, the juvenile court judge abused her limited discretion in calculating a child support award without verified income statements, including, but not limited to, paycheck stubs or employer statements and the |7most recent tax returns, i.e., 2009, from the mother, legal father, and biological father. Accordingly, we vacate the current award, reinstate the temporary support award, and remand to the juvenile court for a hearing to set child support in compliance with the guidelines, including, but not limited to La. R.S. 9:315.2(A).

REVERSED AND REMANDED.

      . To protect the minor child’s privacy, we will use initials to refer to the minor child as well as the related adults. See, U.R.C.A. 5-2.

      . Even if the record contained proper documentation for the trial judge to determine the parties’ child support obligation, we would find that the calculation was incorrect as a matter of law. For an interesting approach in a "dual paternity” situation, see State ex rel. C.W. v. Wilson, 37,674 (La.App. 2 Cir. 9/24/03), 855 So.2d 913, writ denied, 03-2970 (La. 1/16/04), 864 So.2d 633.

      . We use the term "exhibit list” because the transcript of this proceeding is unclear as to what exhibits of those transmitted to this Court were actually introduced into evidence.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge. WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Kevin GRANT.
    No. 10-KA-83.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Matthew R. Clauss — Trial Attorney, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ^Defendant, Kevin Grant, appeals from his convictions for possession with intent to distribute marijuana and possession of cocaine. We affirm.

On December 11, 2008, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant with the above two offenses. Defendant initially pled not guilty, but later, after his motion to suppress the evidence was denied, withdrew his not guilty pleas and pled guilty as charged to both counts under State v. Crosby, 338 So.2d 584 (La.1976). Pursuant to a plea agreement, defendant was sentenced to five years imprisonment at hard labor on each count to run concurrently, which was suspended in favor of five years active probation.

In his sole assignment of error, defendant contends the trial court erred in denying his motion to suppress the evidence. We note that when defendant entered his Crosby plea, he failed to specify the pre-trial ruling that he wished to preserve [sfor appeal. A defendant’s failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby may limit the scope of appellate review, but does not preclude review altogether. State v. Joseph, 03-315, p. 1 (La.5/16/03), 847 So.2d 1196 (per curiam). Absent specification, an appellate court should presume that the Crosby reservation preserves review of those evidentiary rulings which “go to the heart of the prosecution’s case,” such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt. Id., 03-315 at 1-2, 847 So.2d at 1196. After reviewing the record, we find that the only pre-trial ruling that could be reviewed is the denial of defendant’s motion to suppress the evidence.

Defendant contends the evidence seized pursuant to the search warrant should have been suppressed because the search warrant contained the wrong municipal address and a wrong physical description of the residence to be searched. Specifically, defendant asserts the search warrant erroneously listed the place to be searched as 434 Ocean Ave. instead of the correct address of 474 Ocean Ave. He also claims the search warrant described the premises to be searched as a wooden structure with a tan door, but the residence searched was a stucco concrete structure with a white door. Because of these errors, defendant maintains the search warrant did not particularly describe the premises to be searched and facilitated the search of the wrong premises. He argues these errors are fatal despite the fact the correct premises were ultimately searched.

The State contends that any inaccuracies in the warrant’s description never created any real danger that the wrong location would be search because the officer who executed the warrant also applied for the warrant and was the same person, |4who through surveillance of the home, had personal knowledge of the location that was to be searched.

At the suppression hearing, Sergeant James Gregoire testified he received information from a confidential informant (Cl) that K.G., who lived on Ocean Ave., was selling marijuana and sometimes sold crack cocaine. Sgt. Gregoire arranged for a controlled buy with the Cl. He met with the Cl, searched him for illegal contraband and money, and then provided him with prerecorded money to conduct a buy. Sgt. Gregoire maintained constant surveillance while the Cl proceeded to the residence and met with K.G., who was later identified as defendant. The Cl knocked on the front door of the residence, where defendant greeted him before walking back into the residence while the Cl waited outside. After defendant returned, Sgt. Gregoire observed a hand-to-hand transaction take place between defendant and the CL Thereafter, the Cl walked to a prearranged location while under constant surveillance. The Cl gave Sgt. Gregoire ecstasy and marijuana he had obtained from defendant.

Sgt. Gregoire subsequently prepared an affidavit for a search warrant and obtained a search warrant for the residence. During his testimony, Sgt. Gregoire admitted that he made a typographical error when typing the affidavit. He explained that he accidentally typed 434 instead of 474 when typing the numerical address of the residence to be searched. He testified the same typographical error regarding the numerical address also appeared in the search warrant.

Sgt. Gregoire further testified that the description of the residence in the affidavit corresponded to the residence he personally had under surveillance and was a correct description of the residence at 474 Ocean Ave. He described the residence as a tan wooden single story, single family dwelling with dark red trim and a tan front door. The application for the search warrant and the actual search | swarrant described the residence to be searched as “a single family dwelling, single story structure, constructed wood with a black roof,” and a tan colored wooded front door which faced east.

Sgt. Gregoire stated he was the lead investigator in charge of executing the search warrant and was present when the search warrant was executed. He testified the residence at 474 Ocean Ave. was searched, which was the house that he had kept under surveillance. He stated 434 Ocean Ave. was never searched.

Defendant also testified at the suppression hearing. He stated he has lived at 474 Ocean Ave. for his entire life, or 20 years. He introduced photographs of his house, which showed a stucco exterior and a white door. Although he admitted the photographs were taken some time after the search, defendant testified his house has looked like the photographs for 20 years and that the photographs accurately depicted the appearance of his residence on the day it was searched by the police. He further stated his house had never been made of wood and the door to his house had never been painted tan.

The trial court denied defendant’s motion to suppress the evidence. In the trial judge’s reasons for judgment, she expressed that the inaccuracies complained of did not invalidate the search of defendant’s residence. She noted that Sgt. Gre-goire supervised the execution of the warrant and had personal knowledge of the location to be searched because before the search he had conducted surveillance of the location and supervised a controlled buy from the defendant at the location. The trial judge found that based on the totality of circumstances, it was highly unlikely the executing officers would have searched the wrong address.

A defendant who seeks suppression of evidence seized pursuant to a warrant has the burden of proving the grounds of his motion. La.C.Cr.P. art. 703(D). A trial court has great discretion when ruling on a motion to suppress, and its ruling | ñwill not be disturbed absent an abuse of that discretion. State v. Nicholas, 06-903, p. 6 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 686.

A search warrant must particularly describe the place to be searched. U.S. Const. Amend. IV; La. Const, art. I, § 5; La.C.Cr.P. art. 162. The particularity requirement in the Warrant Clause of the Fourth Amendment assures that “[b]y limiting the authorization to search to the specific areas and things for which there is probable cause to search ... the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” State v. Sterling, 99-2598, p. 3 (La.4/25/00), 759 So.2d 60, 62 (per curiam), quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). “The object of the particularity requirement is to prevent a search of the wrong premises; to insure an individual’s safety in his home from unwarranted police intrusion.” State v. Johnson, 408 So.2d 1280, 1285 (La.1982).

The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that the officers will not search the wrong premises. State v. Korman, 379 So.2d 1061, 1063 (La.1980). A search is not invalidated by a minor error in a portion of the description of the premises to be searched. Id.

Generally, mistakes in the use of municipal numbers do not invalidate a search warrant which otherwise describes the premises with sufficient particularity such that the officer with the warrant can with reasonable effort ascertain and identify the place intended. State v. Alonzo, 95-2483, pp. 2-3 (La.5/31/96), 675 So.2d 266, 267 (per curiam) (quotation omitted). In State v. Sterling, supra, the Louisiana Supreme Court held that evidence seized from an apartment under the 17search warrant that listed a different street address did not have to be suppressed. The warrant in Sterling was issued for 3024 Wall Blvd., but the residence at 3022 Wall Blvd. was searched.

Additionally, a discrepancy between the location described in the warrant and the location searched will generally not invalidate the search warrant. If the premises are well known to the officers executing the warrant or had been under surveillance, a discrepancy in the written description is not fatal to the warrant’s validity. State v. Ockman, 466 So.2d 658, 659 (La.App. 5th Cir.1985). The presence of an officer who conducted surveillance during the execution of the search offers additional assurances that only the targeted premises will be searched. Alonzo, 95-2483 at 3-4, 675 So.2d at 267.

In State v. Diggs, 98-964, pp. 5-6 (La.App. 4 Cir. 6/24/98), 715 So.2d 692, 695, writ denied, 98-2647 (La.12/11/98), 730 So.2d 462, an officer received a tip regarding drug sales from 2615½ Louisiana Ave. The officer set up surveillance of the building and saw various transactions between pedestrians and a man who would appear on the balcony on the right-hand side of the building. The officer obtained a warrant listing that address, and officers watched a similar transaction just prior to executing the warrant. However, as they executed the warrant, they learned the building was a four-plex, and the apartment from which the deals were being made was really 2214 ¾ Louisiana Ave. The trial court suppressed the evidence due to the discrepancy of the address, but on review the Fourth Circuit reversed. The court of appeal noted that the application described the building to be searched, and the application and warrant included a reference to the upper right side apartment. In addition, the officer who conducted the surveillance and prepared the warrant was also one of the officers who executed the warrant. The court noted there was little likelihood that the typographical error in the address | ¡¡listed on the affidavit and the warrant led to the search of the wrong apartment and, thus, held the error did not invalidate the warrant.

In State v. Bailey, 446 So.2d 352 (La.App. 4th Cir.1984), the court was convinced that there was no possibility of the wrong apartment being searched under the facts and circumstances of the case. The search warrant application described the location to be searched, but erroneously stated that the apartment was “D” when it was in fact “C.” Nevertheless, the executing officers were also the officers who conducted surveillance and supplied the affidavit to support the warrant. The court found, “[cjertainly they knew the apartment to be searched, and the fact that they thought there was a ‘D’ on the door instead of a ‘C’ does not negate the knowledge they acquired during the surveillance.” Id. at 354-55.

In the present case, there was a typographical error regarding the municipal address. Additionally, portions of the physical description of the house were erroneously described. Although the search warrant incorrectly described the house as a wooden house with a tan door, instead of a concrete stucco house with a white door, it correctly described the house as a single family dwelling, single story structure with a black roof. It also correctly indicated the municipal address for the residence was displayed above the front door. Furthermore, during the suppression hearing, Sgt. Gregoire stated that the house had dark red trim, which is supported by photographs of the searched residence introduced into evidence by defendant.

We find that under the circumstances of this case, there was no reasonable probability that the wrong residence would be searched. Within 48 hours, Sgt. Gregoire conducted surveillance on the residence, observed a transaction at the residence involving defendant, prepared the affidavit for the search warrant, and then participated in the search of the residence, while defendant was present. Sgt. |aGregoire had personal knowledge of the location to be searched and searched the targeted premise. Accordingly, we find the errors in the search warrant did not render it invalid.

In our review of the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547, we note that defendant received an incomplete advisal of the prescriptive period for filing for post-conviction relief. According to the sentencing transcript, defendant was told he had two years from that day to seek post-conviction relief. Additionally, the waiver of rights form contained in the record incorrectly advises defendant that he had “two (2) years from today’s date to seek post-conviction relief.”

Under La.C.Cr.P. art. 930.8, defendant has two years from the time his conviction and sentence become final to file for post-conviction relief. By way of this opinion, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. arts. 914 or 922. We further instruct the trial court to revise its standard waiver of rights/guilty plea form to correctly state that the defendant has two years from the time his conviction and sentence become final to file for post-conviction relief, so it does not continue to incorrectly advise future defendants of the applicable prescriptive period. We find no other errors patent that require corrective action.

For the foregoing reasons, we affirm defendant’s convictions and sentences for possession with intent to distribute marijuana and possession of cocaine.

AFFIRMED.

WICKER, J.

dissenting in part with reasons.

hi agree with the majority to affirm the convictions. However, I respectfully dissent from that portion of the majority opinion affirming the sentences. In my view, there is a mathematical calculation error in the amount of court fines, fees, court costs, and other special fines as outlined in the conditions of probation. Thus, I would vacate the sentences and remand for the sole purpose of instructing the trial judge to clarify the correct amount owed by the defendant as a condition of probation.

The trial judge imposed the sentences to run concurrently with each other. She imposed one probation term for concurrent sentences on two counts. One fine of $300 was imposed as a condition of probation. Therefore, it appears that in light of con-cui’rent sentences, there is only one fíne as a condition of probation.

The trial judge also ordered that the defendant would be responsible for all the fines and fees set forth on the conditions of probation form. The conditions of probation form provides for the following: (1) $720.50 (court costs, fine, juror assessment, and Crimestoppers fee) payable to the Sheriff. (2) a Commissioners’ fee of $100 to be scheduled for payment with the collections officer in the courthouse; (3) a minimum probation supervision fee of $55 per month to the Department of Probation and Parole plus an additional five dollar assessment.

| gin addition to the conditions of probation form, the record also contains a document in which the defendant apparently acknowledged that he understood he owed the 24th Judicial District Court fines, fees, court costs, and other special fines as outlined in the conditions of probation and as instructed by the judge in the amount of $830.50. There is a discrepancy between that amount and the fines, fees, and court costs reflected on the conditions of probation form. Thus, the payment form conflicts with the court’s oral pronouncement that the conditions of probation form governed.

Although the trial judge referred to the conditions of probation form in imposing sentencing, the better practice is to announce in open court the probation conditions so that the defendant actually hears these from the trial judge in order that he understand and comply with them.

In this case, because there is a discrepancy between the conditions of probation form and the payment schedule, I believe that a remand is required to resolve the conflict between the payment schedule and the trial judge’s oral pronouncement. There is no indication that the trial judge ordered the total amount reflected on the payment schedule.

      . Although the conditions of probation form reflects defendant's sentences were deferred and fails to show defendant was placed on five years of active probation, the sentencing transcript, the waiver of rights form, and the commitment all show defendant’s sentences were suspended in favor of five years of active probation.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Gregory MITCHELL.
    No. 10-KA-334.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Thomas J. Butler, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|;,On July 27, 2009, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Gregory Mitchell, with possession of crack cocaine in violation of LSA-R.S. 40r967(C). Defendant pled not guilty to this charge at his arraignment on the following day. Defendant filed several pre-trial motions, including motions to suppress evidence and statement. After a hearing on November 12, 2009, the trial court denied defendant’s motions to suppress.

Following this denial, defendant withdrew his not guilty plea and pled guilty to possession of cocaine pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the ruling on the motion to suppress evidence. In accordance with the plea agreement, the trial court sentenced defendant to two and one-half years imprisonment at hard labor, to run concurrently with a sentence defendant was serving on a parole violation.

The State then filed a multiple offender bill of information, alleging defendant was a second felony offender. After defendant admitted the allegations of the multiple bill, the trial court vacated defendant’s original sentence and | ^sentenced him as a second felony offender to two and one-half years imprisonment at hard labor, to run concurrently with the sentence defendant was currently serving. Defendant now appeals.

DENIAL OF MOTION TO SUPPRESS EVIDENCE

On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. He argues that his detention and the subsequent search of his vehicle were illegal and without justification, and therefore, any evidence seized from his vehicle should have been suppressed.

Trooper Ryan Zimmerman of the Louisiana State Police was the sole witness to testily at the suppression hearing. Trooper Zimmerman testified that on the evening of June 25, 2009, he was traveling north on South Bengal Road in his police unit when he observed a gray 1999 Dodge Neon traveling in front of him at a high rate of speed. With his radar, Trooper Zimmerman determined the driver was doing 35 mph in a 20 mph zone. Because the driver was speeding, Trooper Zimmerman turned on his emergency lights and conducted a traffic stop. After ordering the driver, subsequently identified as defendant, to exit the vehicle, Trooper Zimmerman saw him attempting to conceal something in the middle of the vehicle between the driver and passenger seat. Trooper Zimmerman testified that for officer safety he walked up to the driver’s window of the vehicle and ordered defendant out of the vehicle again. Trooper Zimmerman opened the door of the vehicle for defendant to get out at which time he smelled a strong odor of marijuana emitting from inside of the vehicle. As requested, defendant handed his driver’s license to Trooper Zimmerman. The trooper observed that defendant appeared visibly nervous, and his hands, as well as his bottom lip and lower jaw, were shaking. Thereafter, both defendant and the passenger from the vehicle were placed in handcuffs for officer safety. Another unit came to the scene, and the ¡¿officer watched both subjects while Trooper Zimmerman conducted a “probable cause search” of the vehicle.

During the search, Trooper Zimmerman recovered twelve off-white crack rocks in a clear plastic bag in the middle of the vehicle between the driver and passenger seat. The trooper testified that this was the same location where he had observed the driver trying to conceal something prior to exiting the vehicle. He stated that the narcotics were “kind of in plain view” once he was inside of the vehicle and placed his knee on the driver’s front seat. A field test confirmed that the substance was crack cocaine. No marijuana or paraphernalia was found in the vehicle. Defendant was issued citations for speeding and for a seatbelt violation and was arrested after the crack cocaine was found in the vehicle he was driving.

After arguments were presented by both parties at the hearing, the trial judge denied defendant’s motion to suppress evidence. Defendant now challenges this denial claiming that both his detention and the subsequent search of his vehicle were illegal, and therefore, the evidence seized from the vehicle should have been suppressed. To support this argument, defendant points out that he was ordered out of the vehicle for no articulated reason, that he was ordered out of the vehicle prior to the trooper seeing his alleged movement to conceal something, that no marijuana was discovered even though the trooper claimed he smelled it, that he was illegally arrested based solely on the officer’s alleged smell of marijuana, and that the trooper had no legal justification for searching the vehicle. For the reasons that follow, we find no merit to defendant’s arguments.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Warrantless searches and seizures are per se ¡.¡unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Wolff, 09-508 (La.App. 5 Cir. 12/29/09), 30 So.3d 897, 901.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.2d 826, 829.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, 1056 (per curiam).

In the present case, Trooper Zimmerman testified that he pulled defendant over because, according to his radar, he was speeding. Trooper Zimmerman wrote defendant a citation for traveling 35 mph in a 20 mph zone. Thus, without regard to Trooper Zimmerman’s subjective intent, defendant’s speeding above the posted limit gave the trooper an objective probable cause basis to pull over the vehicle for a traffic violation. State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90, 92 (per curiam); State v. Wolff, 30 So.3d at 902.

| fiTrooper Zimmerman then ordered defendant to exit the vehicle. Defendant suggests that Trooper Zimmerman ordered him to exit the vehicle without expressing any “articulated reasons.” However, following the lawful stop of defendant’s vehicle for the traffic violation, the trooper was authorized to order both the defendant and the passenger out of the vehicle pending completion of the stop. State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-0927 (La.11/14/08), 996 So.2d 1088; State v. Gomez, 06-417 (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 85.

After Trooper Zimmerman lawfully ordered defendant to exit the vehicle, he observed defendant attempting to conceal something in the vehicle between the driver and passenger seats. For officer safety, Trooper Zimmerman walked to the vehicle and ordered defendant to exit the vehicle again. When he opened the door for defendant, Trooper Zimmerman detected a marijuana odor emitting from the vehicle. At the suppression hearing, the trooper testified that both the driver and passenger were then placed in handcuffs for officer safety.

Defendant suggests that the officer’s actions in handcuffing him amounted to an arrest which was not justified based merely on the smell of marijuana. In State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657, this Court recognized that since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. In Morton, 993 So.2d at 657, this Court discussed the law regarding when the use of handcuffs escalates an investigatory stop into an arrest requiring probable cause:

Inherent in the right of police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. There is no question that the use of handcuffs 17incrementally increases the degree of force that is used in detaining an individual. However, arrest-like features such as the use of drawn weapons and handcuffs may, but do not invariably, render the seizure a de facto arrest. Therefore, when the State seeks to prove that an investigatory detection involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm. If the added intrusion is not warranted under particular circumstances, a Terry stop may escalate into- a de facto arrest requiring probable cause to render it valid. State v. Porche, 06-0312 (La.11/29/06), 943 So.2d 335, 339-340. See also State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286-1287.

In the present case, Trooper Zimmerman testified that he smelled a strong odor of marijuana coming from the vehicle. In addition, he had observed defendant trying to conceal something between the seats. Defendant also appeared visibly nervous. It is long established that drugs, guns, and violence often go together, and thus, this may be a factor tending to support an officer’s claim of reasonableness. State v. Thomas, 08-521 (La.App. 5 Cir. 1/27/09) 8 So.3d 646, 653, writ denied, 09-0391 (La.12/18/09), 23 So.3d 928. Considering these circumstances, we find that Trooper Zimmerman was justified in his decision to handcuff defendant as a safety precaution; those actions did not rise to the level of an arrest.

Having determined that defendant’s initial stop and detention were lawful, our next inquiry focuses on the legality of the subsequent search of the vehicle. We find that the search was justified pursuant to the automobile exception to the warrant requirement.

In Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam), the United States Supreme Court held that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle without more. In Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam), the Court recognized that the automobile exception has no separate exigency requirement. This Court has also recognized that the automobile exception does not have an independent exigency requirement and if probable cause exists for the search of the vehicle that is sufficient. The exigency is supplied by the inherent mobility of the vehicle and the citizen’s lesser expectation of privacy. State v. Joseph, 02-717 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049, 1054, writ denied, 04-2404 (La.6/17/05), 904 So.2d 686; State v. Jones, 09-688 (La.App. 5 Cir. 2/9/10), 33 So.3d 306, 317. Further, the Louisiana Supreme Court has recognized that there is no constitutional distinction between seizing and holding a car before presenting the probable cause issue to a magistrate and immediately searching the vehicle without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Tatum, 466 So.2d 29, 31 (La.1985).

Probable cause means “a fair probability that contraband ... will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Whether probable cause exists must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Jones, 33 So.3d at 317.

Courts have consistently held that the odor of marijuana provided the officers with sufficient probable cause to conduct warrantless searches of the vehicles. In State v. Waters, 780 So.2d at 1058, the defendant was lawfully stopped for a traffic violation. The investigating officer determined that defendant had two prior felony arrests, and thereafter, lawfully conducted a self-protective search of the vehicle’s interior for a firearm. While performing this search, the officer detected the distinct odor of marijuana. The Louisiana Supreme Court | flfound that the officer’s detection of the odor gave rise to probable cause to search the vehicle’s interior for the contraband, and exigent circumstances arising from the stop of the car on the open road excused the warrant requirement.

In State v. Garcia, 519 So.2d 788, 794 (La.App. 1 Cir.1987), writ denied, State v. Rodriguez, 530 So.2d 85 (La.1988), the police stopped the defendant for a traffic violation and detected the odor of marijuana coming from the back of the truck. The court found the odor of marijuana gave the officer probable cause to believe the truck contained contraband and an immediate warrantless search was constitutionally permitted. Likewise, in State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, 1161-63, writ denied, 10-0097 (La.6/25/10), 38 So.3d 336, the court found that the officer’s detection of the odor of burnt marijuana emanating from the defendant’s vehicle provided probable cause for the search of his vehicle. See also, State v. Allen, 10-1016 (La.5/7/10), — So.3d -, 2010 WL 2010766 (per curiam) and State v. Williams, 38,379 (La.App. 2 Cir. 11/25/03), 858 So.2d 878, 880-81, writ denied, 03-3535 (La.3/12/04), 869 So.2d 807.

Based on the cases cited herein, we find that Trooper Zimmerman’s detection of the odor of marijuana emanating from defendant’s vehicle provided probable cause for the immediate warrantless search of defendant’s vehicle. Defendant cites Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) in support of his argument that the search of the vehicle was illegal. However, the instant case is distinguishable from the facts in Arizona v. Gant because it does not involve a search incident to an arrest. Rather, the evidence was seized, pursuant to the automobile exception to the warrant requirement, after the trooper had probable cause to believe the vehicle contained evidence of criminal activity.

ImBased on the foregoing discussion, we find that the trial judge properly denied defendant’s motion to suppress evidence.

ERROR PATENT DISCUSSION

We have also conducted a review of the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975).

Our review reveals a discrepancy in the transcript and commitment regarding the trial court’s advisal of the prescriptive period for filing post-conviction relief. Although the commitment reflects defendant was properly advised of the prescriptive period for post-conviction relief, the transcript and written waivers reflect an improper advisal. In accord with State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272 and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473, we advise defendant by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

DEFENDANT’S CONVICTION AND SENTENCE ARE AFFIRMED.


text:
    Olivia T, BETHLEY, Percy Bethley, Jr., Billy Bethley, Darlene Bethley and Donnie Bethley on Their own Behalf and on Behalf of Percy Bethley, Sr. v. Dr. Reza SHEYBANI, Louisiana Medical Mutual Insurance Company and Baton Rouge General Medical Center, Mid-City.
    No. 2010 CW 0575.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore pursuant to special appointment of the Louisiana Supreme Court.

   In re: Dr. Reza Sheybani and Louisiana Medical Mutual Insurance Company, applying for Supervisory Writs, 19th Judicial District Court, Parish of East Baton Rouge, Number 580,834.

Before KUHN, PETTIGREW, JJ. and KLINE, J. Pro Tem.

WRIT GRANTED. The Motion to Strike the affidavit of Dr. Sheybani with attached exhibits is reversed. See Bethley v. Sheybani, 2010 CA 0713, 2010 WL 4273105 (La.App. 1 Cir.2010).


author: GUIDRY, J.

text:
    Jerry BICKHAM, Ella Bickham, Candace Lajoce Bickham, and Jyra Thelmelia Bickham v. LOUISIANA EMERGENCY MEDICAL CONSULTANTS, INC.; Inphynet d/b/a Inphynet Medical Management/Med Partners; Riverside Medical Center; James Kerry, M.D.; and XYZ, ABC, and DEF Insurance Companies.
    No. 2010 CA 0535.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2010.

      Marie Riccio Wisner, New Orleans, LA, for Plaintiffs/Appellants Jerry Bickham, Ella Bickham, Candace Lajoce Bickham, and Jyra Thelmelia Bickham.
    Sean E. Rastanis, New Orleans, LA, for Defendants/Appellees Lifeline Emergency Medical Services Company, Inc. and Royal Indemnity Company.
    Kathleen E. Simon, Adrianne Baumgart-ner, Covington, LA, and C. William Bradley, Jr. New Orleans, LA, for Defendants/Appellees Louisiana Emergency Medical Consultants, Inc.; InPhyNet; James Kerry, M.D.; and Basem Yacoub, M.D.
    Ann Marie LeBlanc, New Orleans, LA, for Defendant/Appellee St. Paul Fire and Marine Insurance Co.
    Jacqueline Blankenship, Metairie, LA, for Defendant/Appellee East Jefferson General Hospital.
    Daniel A. Reed, Baton Rouge, LA, for Defendant/Appellee Riverside Medical Center.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

| sIn this medical malpractice action, plaintiffs, Jerry Bickham, Ella Bickham, Candace Bickham, and Jyra Bickham, appeal from a judgment of the trial court, granting summary judgment in favor of defendants, Lifeline Emergency Medical Services Company, Inc. and Royal Indemnity Company, and dismissing the plaintiffs’ claims against them with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 1997, Jerry Bickham was injured in an automobile accident and was taken to the emergency room at Riverside Medical Center (Riverside). Mr. Bickham was subsequently transferred from Riverside by appellee, Lifeline Emergency Medical Services Company, Inc. (Lifeline), to East Jefferson General Hospital. While at East Jefferson General Hospital, Mr. Bickham suffered a spinal cord compression while being moved to change his bed linens, which resulted in his being rendered a quadriplegic.

Plaintiffs filed two suits against various medical providers involved in Mr. Bick-ham’s treatment. The first suit, which named Lifeline as one of several defendants, was filed in the Twenty-Second Judicial District Court for the Parish of Washington. A second suit, naming Louisiana Medical Mutual Insurance Company (LAMMICO) and Delta Radiology, et al., was filed in the Civil District Court for the Parish of Orleans. Plaintiffs subsequently entered into a settlement agreement with Delta Radiology and its insurer, LAMMI-CO, together with the Louisiana Patient’s Compensation Fund (PCF), for $800,000.00, plus future medical expenses. Plaintiffs, however, reserved all rights against other defendants.

Thereafter, the remaining defendants in both suits, including Lifeline, filed motions for summary judgment, seeking dismissal of plaintiffs’ claims on the basis that they had recovered the maximum amount under the damages cap provided by |4the Medical Malpractice Act, La. R.S. 40:1299.42. Following a hearing on the motions, the trial court signed a judgment on August 15, 2007, granting Lifeline’s motion for summary judgment and dismissing plaintiffs’ claims against Lifeline and Royal Indemnity Company with prejudice. Plaintiffs now appeal from this judgment.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/5/07), 958 So.2d 1199. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-231.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

At the time of the alleged malpractice at issue, Louisiana Revised Statute | ,40:1299.42 provided, in pertinent part:

A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(3) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.
B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.
(3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all hable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1299.44(0).
(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.

In moving for summary judgment, Lifeline asserted that the plaintiffs had already received an amount in excess of the total amount recoverable for their malpractice claims from other qualified health care provider defendants, and therefore, they are statutorily precluded from recovering any additional damages from other qualified healthcare provider defendants, such as itself. In support of its motion, Lifeline attached a letter from the PCF dated March 19, 1999, stating that Lifeline was enrolled with the PCF under the provisions of La. R.S. 40:1299.41, et seq., from May 15, 1997, through May 15, 1999. Additionally, Lifeline, in ^adopting the motion for summary judgment memoranda and arguments of its co-defendants, presented the deposition testimony of Jerry Bickham, in which Bickham stated that the plaintiffs had received $800,000 in settlement from the second suit in the Civil District Court for the Parish of Orleans.

From our review of the record, Lifeline presented prima facie proof that it is a qualified health care provider within the protections afforded by the Medical Malpractice Act and pointed out that the plaintiffs had received an amount in excess of the $500,000 statutory cap. Therefore, the burden shifted to the plaintiffs to put forth evidence creating a genuine issue of material fact, so as to defeat Lifeline’s motion for summary judgment.

Plaintiffs assert that, despite their settlement with Delta Radiology, LAMMICO, and the PCF, their recovery of $800,000 does not preclude them from proceeding against other qualified health care provider defendants found to be eompara-tively at fault for uncapped damages up to their individual $100,000 limitation on liability. See La. R.S. 40:1299.42(B)(2). In support of this argument, plaintiffs rely on La. R.S. 40:1299.42(B)(1), which provides that the “total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 4.0:129943, shall not exceed five hundred thousand dollars plus interest and cost.” (Emphasis added.)

The relevant version of La. R.S. 40:1299.43(B)(1) provides that ‘“[f]uture medical care and related benefits’ for the purpose of this Section means all | Treasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of the injury.” (Emphasis added.) Accordingly, “future medical care and related benefits” encompasses all past, present, and future medical and related care services necessitated by a qualified health care provider’s negligence, not just what is usually thought of as “future” medical needs. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, 1217.

However, La. R.S. 40:1299.43(D) provides that “[pjayments for medical care and related benefits shall be paid by the patient’s compensation fund without re-

gard to the five hundred thousand dollar limitation imposed in R.S. 40:1299.42.” (Emphasis added.) Therefore, according to the plain language of the statute, it is the PCF, not the qualified health care provider, who is responsible for payment of medical care and related benefits as contemplated by La. R.S. 40:1299.43. See Watkins v. Lake Charles Memorial Hospital, 04-355, pp. 6-8 (La.App. 3rd Cir.12/15/04), 896 So.2d 130, 135-136, writ denied, 05-0145 (La.4/8/05), 898 So.2d 1279 (affirming trial court judgment casting PCF in judgment for medical expenses and related benefits already incurred)-, see also LeRay v. Bartholomew, 03-1370 (La.App. 5th Cir.3/30/04), 871 So.2d 492 (affirming trial court judgment against lsthe PCF for future medical care and related benefits previously incurred); Hernandez v. Chalmette Medical Center, 01-0074 (La.App. 4th Cir.2/4/04), 869 So.2d 141, writs denied, 04-0517 and 04-0546 (La.4/8/04), 870 So.2d 277 and 279 (affirming trial court judgment in favor of plaintiffs and against the PCF for medical expenses already incurred as well as future medical care and related benefits for the remainder of plaintiffs life); and see also La. R.S. 40:1299.44(B).

Accordingly, plaintiffs’ argument that they may still recover uncapped future medical care and related benefits from Lifeline, up to its individual liability of $100,000, is without merit. Based on the clear wording of the statute above, the plaintiffs can only recover payment of accrued future medical care and related benefits from the PCF, which, according to the consent judgment filed by the plaintiffs in the second suit, has already settled with the plaintiffs for $700,000 and has been released from any further liability.

Plaintiffs also argue that a factual issue exists as to whether Mr. Bickham suffered two injuries, and therefore, whether two statutory caps apply. In examining a similar argument, this court in Maraist v. Alton Ochsner Medical Foundation, 00-0404, p. 7 (La.App. 1st Cir.4/4/01), 808 So.2d 566, 569-570, writ denied, 01-2031 (La.11/2/01), 800 So.2d 882, stated that when damage cannot be apportioned between multiple tortfeasors because the damage is indivisible, the claim is not severable, and only one statutory cap applies. However, if the damage or injury can be divided into two or more parts, with each part caused by a separate defendant, then each part constitutes, in effect, a separate injury under La. R.S. 40:1299.42(B)(1). Maraist, 00-0404 at p. 7, 808 So.2d at 570.

In Maraist, two different Ochsner Clinic physicians had failed to diagnose bacterial meningitis in the plaintiffs’ infant daughter, Brittany, for approximately | nfour days. The plaintiffs also alleged that Brittany received substandard care at the Medical Center of Baton Rouge, where she was sent by an Ochsner physician for treatment once he suspected Brittany had meningitis. As a result, the meningitis left Brittany profoundly neurologically impaired. This court found that the effect of the malpractice acts, viewed singly or collectively, was not determinable until the bacterial meningitis was discovered, and plaintiffs’ damages could not be calculated, whether caused by the Medical Center of Baton Rouge or the Ochsner defendants, with reference to any date other than when the bacterial meningitis was discovered. Maraist, 00-0404 at p. 7, 808 So.2d at 570.

In the instant case, the evidence of record indicates that Mr. Bickham suffered spinal injuries, which ultimately resulted in his being rendered a quadriplegic. The plaintiffs have alleged in various pleadings that the failure of multiple health care providers to diagnose, stabilize, and treat these injuries resulted in Mr. Bickham’s permanent paralysis. The plaintiffs, however, have not presented any evidence indicating that the damages sustained by Mr. Bickham can be divided into parts, with each part traceable back to a specific delictual origin. See Turner v. Massiah, 94-2548 (La.6/16/95), 656 So.2d 636, 640; see also Maraist, 00-0404 at p. 7, 808 So.2d at 570. Plaintiffs’ argument that a second injury can be inferred is simply not sufficient to sustain their burden of proof on the motion for summary judgment.

Therefore, based on the record before the court, we conclude that Mr. Bickham suffered a single, indivisible injury from which all plaintiffs’ damages flow. Because the plaintiffs have recovered the statutory maximum permitted under La. R.S. 40:1299.42(B)(1) for Mr. Bickham’s injury, plaintiffs cannot recover any additional amount from Lifeline for the damages Mr. Bickham may have suffered as a result of Lifeline’s medical treatment and care of him. See Maraist, 00-0404 at p. 8, 808 So.2d at 570.

ImFinally, plaintiffs assert that the trial court erred in denying their request for a hearing on the constitutionality of the Medical Malpractice Act. This argument, however, is not properly before this court, because the denial of plaintiffs’ request for a hearing is the subject of a separate judgment rendered on October 30, 2007, which judgment is not before this court in the instant appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of defendants, Lifeline Emergency Medical Services Company, Inc. and Royal Indemnity Company, and dismissing plaintiffs’ claims against them with prejudice. All costs of this appeal are assessed to the plaintiffs, Jerry Bickham, Ella Bickham, Candace Bickham, and Jyra Bickham.

AFFIRMED.

      . Although the parties do not contest the status of Lifeline as a qualified health care provider on appeal, we note that the letter from the PCF is considered prima facie proof that the provider is a qualified health care provider under the Medical Malpractice Act, and the plaintiffs have offered no countervailing evidence as to Lifeline’s qualification. See Hidalgo v. Wilson Certified Express, Inc., 94-1322, p. 5 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 117; Roberson v. Arcadia Healthcare Center, Inc., 37,761, p. 10 (La.App. 2nd Cir.7/9/03), 850 So.2d 1059, 1065-1066; Remet v. Martin, 98-2751, pp. 6-9 (La.App. 4th Cir.3/31/99), 737 So.2d 124; 128-129, Goins v. Texas State Optical, Inc., 463 So.2d 743, 745 (La.App. 4th Cir.1985); see also LAC 37:111.515.

      . La. R.S. 40:1299.43(B) was amended in 2004 and now provides:
      (1) “Future medical care and related benefits” for the purpose of this Section means all of the following:
      (a) All reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, incurred after the date of the injury up to the date of the settlement, judgment, or arbitration award.
      (b) All reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provisions of such services, after the date of the injuiy that will be incurred after the date of the settlement, judgment, or arbitration award.
      (2) “Future medical care and benefits” as used in this Section shall not be construed to mean non-essential specialty items or devices of convenience.

      . Plaintiffs did not introduce any evidence that the settlement with the PCF for $700,000 was for medical care and related benefits only, so that they could proceed against other qualified health care provider defendants for the remaining $400,000 of the statutory cap.


author: EZELL, Judge.

text:
    MB INDUSTRIES, LLC v. CNA INSURANCE COMPANY, et al.
    No. CA 10-321.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Rehearing Denied Jan. 12, 2011.

      James Ronald Clary, Jr., Clary & Over-ton, Baton Rouge, LA, for Defendants/Ap-pellees, Steven Gerald Durio, Durio, McGoffin, Stagg & Ackermann, Steven G. Durio, P.C.
    Gracella Gail Simmons, Collin Joseph LeBlanc, Keogh, Cox, & Wilson, Baton Rouge, LA, for Defendants/Appellees, John Haas Weinstein, Continental Casualty Company, John Haas Weinstein, APLC.
    Glen Scott Love, Robert Graves, Baton Rouge, LA, Milo Addison Nickel, Jr., Elisa D. Davis, Gary Russo, Nadia Marie de la Houssaye, Jones Walker, Lafayette, LA, for Plaintiff/Appellant, MB Industries, LLC.
    James Huey Gibson, Alien & Gooch, Lafayette, LA, for Defendants/Appellees, Durio, McGofñn, Stagg & Ackermann, Continental Casualty Company, Steven G. Durio, P.C., Steven Gerald Durio.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

|,MB Industries, LLC appeals a trial court decision granting summary judgment in favor of Steven Durio and John Weinstein and dismissing its legal malpractice claims against them.

FACTS

MB Industries (MBI) manufactures blast-resistant buildings. MBI initially received its assets from another company, Moon Ventures LLC, which had been placed in bankruptcy. Mark Massey was an owner in Moon Ventures, and Sam Lav-ergne was an employee with Moon Ventures. Shortly after the asset transfer from Moon Ventures to MBI, Mr. Lav-ergne started Hunter Buildings, LLC, which also manufactures blast-resistant buildings. Later, Mr. Massey joined Mr. Lavergne at Hunter Buildings. MBI filed the underlying lawsuit in 2000 against Mark Massey, Sam Lavergne, and J. Bass, LLC claiming breach of noncompetition and trade secrets agreements, misappropriation of trade secrets, unfair and deceptive trade practices, and conversion of property. During different times Mr. Du-rio and Mr. Weinstein represented MBI in the proceedings. The underlying lawsuit was primarily based on the Defendants’ competition with MBI for blast-resistant buildings at Exxon’s refinery in Baton Rouge. Apparently, Mr. Massey and Mr. Lavergne had signed noncompetition agreements with Moon Ventures, which was the basis for the lawsuit.

A bench trial was held on November 10, 12, and 13, 2003, on the underlying lawsuit. By that time, Mr. Weinstein had withdrawn as counsel of record. Mr. Durio represented MBI at trial. The trial court ruled against MBI. MBI filed a lawsuit against Mr. Durio and Mr. Weinstein on March • 16, 2004, claiming that it lost the lawsuit due to the malpractice of its attorneys before trial began. Specifically, MBI claims that both Mr. Durio and Mr. Wein-stein failed to meet the trial court’s cutoff 12dates for amending the petition, adding parties, and conducting discovery. It also claims that they failed to conduct adequate discovery. Another allegation by MBI is that Mr. Durio lost a box of evidentiary materials and failed to seek a protective order of such evidence. MBI additionally alleged that Mr. Weinstein withdrew from the matter, indicating to the trial court that no trial date had been set, when he knew that a date had been set.

In August 2009, Mr. Durio and Mr. Weinstein filed motions for summary judgment. A hearing on the motions was held on September 28, 2009. The trial court granted both motions for summary judgment, dismissing MBI’s claims against them. MBI then filed the present appeal.

SUMMARY JUDGMENT

MBI argues that the trial court focused on only a portion of its claims against its former attorneys and failed to consider all of the claims set forth in its petition. MBI suggests that there are genuine issues of material fact which warrant a trial on the merits.

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

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

“Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. at 354.

In order to establish a claim for legal malpractice, a plaintiff must prove that (1) there was an attorney-client relationship; (2) the attorney was negligent in his representation of the plaintiff; and (3) plaintiff sustained a loss as a result of the attorney’s negligence. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129; Morgan v. Simon, 00-1556 (La.App. 3 Cir. 2/28/01), 780 So.2d 626.

In the lower court Mr. Durio and Mr. Weinstein argued several grounds that they claim entitle them to summary judgment in this case. They first make several arguments regarding MBI’s inability to establish the third prong of a legal malpractice claim claiming that MBI cannot establish a loss as a result of any alleged malpractice. Mr. Durio and Mr. Wein-stein first argue that MBI is estopped from asserting a legal malpractice claim against them because it failed to appeal the decision of the trial court. Mr. Durio and Mr. Weinstein also argue that MBI cannot prove a legal malpractice claim, because a legal malpractice claimant possesses no greater rights against an attorney than are available in the underlying claim citing Costello, 864 So.2d 129. Specifically, they argue that the trial court in the underlying suit found that even if the noncompetition agreement applied, it did not cover East Baton Rouge Parish, which is the parish that Hunter was doing business in resulting in the lawsuit filed by MBI.

In opposition to these arguments, MBI claims that the acts of malpractice it complains about occurred before trial and affected the outcome of the trial and that |4an appeal would have been futile. It argues that it should not be required to appeal a case when it would be unreasonable, impractical, or disproportionately expensive considering all of the circumstances, citing American Reliable Insurance Co. v. Navratil, 445 F.3d 402 (5 Cir.2006). MBI claims that the underlying case was viable but for the negligent acts of Mr. Durio and Mr. Weinstein.

Necessity of Appeal

Equitable estoppel has been defined by this court as the barring of an action by a complaining party against another party when the complaining party’s conduct resulted in the other party justifiably relying on the complaining party’s conduct such that he changed his position to his detriment based on such reliance. Roberson v. Lafayette Oilman’s Sporting Clays Shoot Inc., 02-1275 (La.App. 3 Cir. 4/30/03), 845 So.2d 1267, writ denied, 03-1531 (La.9/26/03), 854 So.2d 370.

In Murphy v. Gilsbar, Inc., 02-205 (La.App. 1 Cir. 12/31/02), 834 So.2d 669, writ denied, 03-676 (La.5/30/03), 845 So.2d 1057, the first circuit applied the concept of equitable estoppel in ruling that a client could not bring a legal malpractice claim against her attorney. The client claimed that her former attorney let her discrimination claim prescribe. However, in an attempt to reinstate the claim, the client refused to participate, indicating that she no longer had an interest in her discrimination suit. Her inaction precluded revival of the action, so she waived her right to proceed with her malpractice suit.

The fifth circuit also applied the doctrine of equitable estoppel in a legal malpractice proceeding in Gross v. Pieno, 04-820, 04-821 (La.App. 5 Cir. 12/28/04), 892 So.2d 662, writ denied, 05-218 (La.4/22/05), 899 So.2d 582. Clients had brought a legal malpractice claim against their former attorney for failure to prosecute civil claims which resulted in dismissal on the grounds of abandonment. The | ¿judgment of abandonment was set for hearing, but the clients entered into negotiations with the defendants and entered into a settlement agreement which terminated the litigation in the underlying suit. By settling the claim before the issue of abandonment could be decided, the former clients prevented a determination of whether the action had been abandoned.

In American Reliable Insurance Co., 445 F.3d 402, the fifth circuit held that the settlement of an underlying case did not bar the client from bringing a legal malpractice suit. The clients had proceeded all the way through a jury trial resulting in a large jury award against them. The fifth circuit distinguished Gross, 892 So.2d 662, because the clients in that case had settled their claims before there was any hearing on the abandonment issue, making it impossible for a court to determine if the attorney had in fact caused harm to his clients. The fifth circuit explained that the attorney’s entire performance could be evaluated from the record of the state trial court proceedings in the case before it. The court reasoned that, while a client has a duty to mitigate damages caused by its attorney’s malpractice, that duty cannot require the client “to undertake measures that are unreasonable, impractical, or disproportionately expensive considering all the circumstances.” American Reliable Ins. Co., 445 F.3d at 406. We agree with the reasoning of the fifth circuit.

In Couture v. Guillory, 97-2796 (La.App. 4 Cir. 4/15/98), 713 So.2d 528, writ denied, 98-1323 (La.6/26/98), 719 So.2d 1287, the fourth circuit found that while a client had compromised part of his claim for damages against the employer school board, he still had the right to assert the claims that were not discharged. The fourth circuit agreed that the client could still pursue malpractice claims against his attorneys to establish that he would have been successful in a writ application to the supreme court to be reinstated to his former position had the attorneys sought a writ.

|fiIn the present case all claimed offenses took place before any appeal. A full record of the underlying proceeding is available. If it is established there were acts of malpractice, the attorneys can present evidence that had there been an appeal, they would have been successful. This goes to the issue of mitigation of damages. While part of their argument to this court is that an appeal would not be necessary because the underlying claim had no merit, there remain questions of fact on this issue. MBI claims that if the underlying case has no value, it is due to the malpractice of Mr. Durio and Mr. Weinstein.

Underlying Litigation

A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. Costello, 864 So.2d 129.

The underlying case was a complicated commercial litigation case involving questions of breach of a noncompetition agreement, alleged violations of the Louisiana Unfair Trade Practices Act and the Louisiana Trade Secrets Act, conversion of property. Issues involved whether the noncompetition agreements were even enforceable by MBI since they were signed by Mr. Lavergne and Mr. Massey when Moon Ventures was doing business as Nautica. Furthermore, it is clear that East Baton Rouge Parish, the major parish where Hunter competed with MBI for Exxon’s business, was not included in the noncompetition agreement. Reading Fred Gossen’s deposition, the current president and CEO of MBI, it appears that there was some question of whether Hunter had competed in Calcasieu Parish with MBI. Calcasieu Parish had been included in the noncompetition agreement. The trial court also found that no trade secrets existed and if they did, MBI failed to carry its burden establishing the trade secrets and whether they were violated. Once again, Mr. |7Gossen discussed what he considered trade secrets and his opinion that his attorneys failed to put on proper evidence concerning these issues. Part of MBI’s allegation is that Mr. Durio lost a box of evidence which would have established a violation of trade secret agreements. Included in these allegations is the assertion that the attorneys failed to meet deadlines to add parties who MBI alleged had violated agreements and used MBI’s research for the benefit of Hunter.

We find that there is a question of fact as to whether the underlying litigation had merit. The issue remains to be determined is whether it was the negligent handling by the attorneys that caused MBI’s loss in the trial court.

Expert Testimony

Mr. Durio and Mr. Weinstein further claim that, regardless of what issues may be out there, MBI cannot establish its claim for legal malpractice because it has offered no expert testimony that they breached the standard of care in handling the case.

An attorney’s paramount duty to his client is a greater duty of trust than in any other agency relationship. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.2/1/08), 974 So.2d 1266. The standard of care an attorney must exercise in representing of a client is that degree of care, skill, and diligence exercised by prudent practicing attorneys in his locality. Id.

Expert testimony is certainly admissible to establish the standard of care based on practices of attorneys in the community. In certain cases the opinions of experts may be essential to prove the standard of care an attorney must meet. In many cases, however, the trial court, which is of necessity familiar with the standards of practice in its community, is competent to make such a determination without the assistance of expert witnesses. There may also be cases in which the failure of the practitioner to use due care under any reasonable standard of conduct may be so obvious as to make expert testimony unnecessary.

Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1 Cir.1973); Frisard v. State Farm Fire and Cas. Co., 06-2353 (La.App. 1 Cir. 11/2/07), 979 So.2d 494.

The allegations against Mr. Durio and Mr. Weinstein include the claim that both of them failed to meet the trial court’s cutoff dates for amending the petition, adding parties, and conducting discovery. MBI further claims that both attorneys failed to conduct adequate discovery. MBI has also alleged that Mr. Durio lost a box of evidentiary material that affected the prosecution of the case. There is also an allegation that Mr. Weinstein withdrew from the matter after a trial date had been set and informing the court that no trial date had been set.

While the underlying case involved complicated issues, the allegations against Mr. Durio and Mr. Weinstein are not so complicated as to require expert testimony. While the facts are contested, whether these alleged acts of malpractice were negligent and whether they caused damage to MBI can be litigated without the aid of expert testimony. Frisará, 979 So.2d 494.

For the reasons set forth in this opinion, the judgment of the trial court, granting summary judgment in favor of Steven Du-rio; Steve G. Durio, P.C.; Durio, McGof-fin, Stagg & Ackermann; Continental Casualty Company; John Haas Weinstein; John Haas Weinstein, APLC; and Continental Casualty Company LLC, and dismissing MB Industries’ claims against them, is reversed. This matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed equally between the Durio parties and the Weinstein parties.

REVERSED AND REMANDED.