author: SEXTON, Judge Pro Tem.

text:
    Khadijah BROOKS, Plaintiff-Appellant v. Ula MINNIEWEATHER, John Doe, US-Agencies Insurance Co. and State Farm Insurance Co., Defendants-Appellees.
    No. 46,900-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Smith & Nwokorie, by Brian G. Smith, Tikisha Y. Smith, for Appellant.
    Hudson, Potts & Bernstein, Monroe, LA, by Mark J. Neal, for Appellees, Ula Minnieweather & USAgencies Ins. Co.
    Davenport, Files & Kelly, Monroe, LA, by Lara A. Lane, for Appellee, State Farm Ins. Co.
    Before GASKINS, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| iPlaintiff, Khadijah Brooks, appeals a judgment granting an involuntary dismissal and exception of no cause of action in favor of Defendant USAgencies Insurance Company (“USAgencies”) and dismissing Ms. Brooks’ claims with prejudice. For the reasons stated herein, we affirm.

FACTS

The present appeal arises out of an automobile collision and is the second time this matter has been before the court. The underlying facts were set forth in our prior opinion, wherein summary judgment in favor of Ula Minnieweather, the owner of the offending vehicle, was affirmed. Brooks v. Minnieweather, 44,624 (La.App.2d Cir.8/19/09), 16 So.3d 1244. Those facts are as follows:

On September 8, 2005, a collision occurred between Ms. Brooks’ car and a 1997 Ford Expedition SUV owned by Ula Minnieweather. Ms. Brooks was traveling behind the SUV on Corky Avenue in Bastrop, Louisiana. At the intersection of Corky Avenue and Pleasant Street, the SUV allegedly stopped and began to back up, striking the front of the plaintiffs vehicle. The male driver of the vehicle fled the scene in the SUV.
On September 7, 2006, the plaintiff filed suit. Named as defendants were Ms. Minnieweather, the owner of the SUV; John Doe, the driver of the SUV; USAgencies Insurance Company, Ms. Minnieweather’s insurer; and State Farm Mutual Automobile Insurance Company, the plaintiffs UM carrier.
In her deposition, the plaintiff testified the accident occurred at about 7:00 p.m. after she picked up the children of a friend from day care. She further testified that about five minutes after the other driver fled the accident scene, a woman appeared who claimed to be the mother of the SUV owner. The woman said the driver was her daughter’s flaneé, Shawn. She asked the plaintiff to not call the police because Shawn had outstanding warrants and no driver’s license. However, the plaintiff called the police. About 10 minutes later, the owner of |2the SUV arrived at the accident scene in the SUV. She did not speak to the plaintiff but told the police that her vehicle had been stolen; she said that whoever had taken the vehicle was gone and she did not know he had taken it. The plaintiff also testified that she did not recognize the other driver and had never seen him before. However, she said that she had seen him once since the accident, walking a dog on a Bastrop street.
Ms. Minnieweather testified in her deposition that at the time of the accident she was living with her mother and that her mother had taken in two Katrina victims, an old woman and a young man called “Moo-Moo.” She denied knowing the man’s real name, and she believed that he was the old woman’s grandson. She testified that she was the only person to drive her SUV. On the day of the accident, she was asleep when a friend called to tell her that she had seen a man driving her SUV. Ms. Min-nieweather testified that after she saw that her SUV was gone, she had the friend pick her up so they could look for the SUV. While they were driving around, Ms. Minnieweather received a call from her cousin, Terry Island, that the SUV had been involved in an accident. She said that she went to the accident site and told the police officer there that her vehicle had been stolen. She then continued looking for it. Ms. Minnieweather testified that she found the vehicle abandoned near some apartments and drove it back to the accident site. According to Ms. Minnieweather, the key the male driver used to drive the SUV had been in her purse in her bedroom. Because he was the only male in the house, she assumed that Moo-Moo was the driver. She denied knowing anyone named Shawn; she also said she did not have a boyfriend at the time of the accident.

Finding no evidence of personal liability on the part of Ms. Minnieweather and noting the absence of evidence that she had entrusted her vehicle to John Doe, the unconfirmed driver, this court affirmed summary judgment in favor of Ms. Min-nieweather and dismissed her from the suit. See Brooks, supra. USAgencies had also filed a motion for summary judgment, which was denied by the trial court due to factual issues regarding whether permission had been granted, either express or implied, to the then-unconfirmed driver of the offending vehicle.

| a On the eve of the hearing on the motions for summary judgment in the trial court, Ms. Brooks expressed that she had identified the unknown driver, John Doe, as one Fernando Hubbard. Counsel for Ms. Brooks presented an affidavit to the court attesting to this identification, but the affidavit was excluded as untimely by the trial judge and this decision was affirmed on appeal in Brooks, supra. Mr. Hubbard was never added to the suit as a defendant. He was, however, deposed in August 2009 at the Morehouse Parish Jail, where he was incarcerated and where he resided through trial of this matter.

The matter proceeded to a bench trial on July 10, 2010, against named Defendants USAgencies and John Doe. At trial, Ms. Brooks testified on her own behalf and presented the testimony of Mr. Hubbard and Eric Newnum, the police officer who responded to the accident. Ms. Brooks had also subpoenaed Gwendolyn Brown, Ms. Minnieweather’s mother, who arrived at the scene of the accident just minutes after it had occurred and spoke with Ms. Brooks at the scene. Ms. Brooks allegedly had difficulty locating Ms. Brown prior to trial; and, therefore, the trial judge ordered an attachment on the morning of trial for Ms. Brown.

The testimony at trial was at best inconsistent and contradictory and each witness in one respect or another was lacking credibility. Mr. Hubbard testified that he and Ms. Minnieweather were married, but physically separated at the time of the accident. According to Mr. Hubbard, he was living with his parents and she was living with her mother, Ms. Brown. Mr. Hubbard denied having ever lived with Ms. Brown and denied having |4access or permission to drive Ms. Minnieweather’s vehicles. He further denied being the driver of the SUV on the day of the accident. The story he related about how he became aware of the accident was completely different from the version he provided in his deposition testimony a year prior. Recall that Ms. Minnieweather testified in deposition that, on the day of the accident, her SUV had been stolen by a male Katrina victim who had been taken in by her mother, who she only identified as Moo-moo. Ms. Minnieweather testified that she did not even have a boyfriend at the time of the accident.

Ms. Brooks testified in her deposition that she did not recognize the driver of the SUV at the time of the accident. At trial, however, she testified that she knew him as “Shawn,” which is Mr. Hubbard’s middle name. Ms. Brooks further testified that she had gone to middle school with Mr. Hubbard. She identified him in court and testified about the 2009 affidavit wherein she said that Mr. Hubbard was the individual driving the SUV. Again, at no time prior to the completion of evidence did counsel for Ms. Brooks request to amend the petition to substitute Mr. Hubbard as a defendant.

At this point in the trial, Ms. Brown had not yet been located and counsel for USA-gencies moved for involuntary dismissal and urged an exception of no cause of action. Counsel argued the motion and the court recessed for lunch. Ms. Brown was located over the lunch recess and the trial judge allowed Ms. Brooks to re-open her case and call Ms. Brown to testify.

|fiMs. Brown provided little clarification of the case in her testimony. She testified that both Ms. Minnieweather and Mr. Hubbard were living with her at the time of the accident. She denied having any Katrina evacuees residing in her home. Ms. Brown admitted that she was at the scene of the accident after the SUV fled. She denied, however, that Mr. Hubbard was allowed to drive Ms. Minnieweather’s vehicles. Finally, Ms. Brown testified that Mr. Hubbard had cleaned the SUV and that she had observed him riding as a passenger in the vehicle.

Following Ms. Brown’s testimony, the trial judge granted the previously urged motion for involuntary dismissal, as well as the exception of no cause of action. A judgment was subsequently signed dismissing the action against USAgencies with prejudice. The trial judge’s oral reasons found no affirmative evidence of permissive use for any driver that would bring that driver under the omnibus clause of the insurance policy; and the judge specifically denied the motion to amend the petition to add Mr. Hubbard as a defendant. The present appeal by Ms. Brooks ensued.

DISCUSSION

As a threshold matter, we first dispense with the argument of Ms. Brooks that the direct action statute provides a direct claim for her against USAgencies. La. R.S. 22:1269(B) provides plaintiffs with a direct claim against an insurer in certain limited circumstances:

B. (1) The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury |fioccurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:
(a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.
(b) The insured is insolvent.
(c) Service of citation or other process cannot be made on the insured.
(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.
(e) When the insurer is an uninsured motorist carrier.
(f) The insured is deceased.

Ms. Brooks argues that subsection (c) applies to her claim because she was unable to serve Ms. Minnieweather. The record, however, reflects that Ms. Min-nieweather was served and, as stated herein, was dismissed from the suit on summary judgment. None of the circumstances of the direct action statute are met herein; and, therefore, in order for Ms. Brooks’ action to proceed, a covered insured must also be named as a defendant. We now turn, therefore, to the propriety of the involuntary dismissal, Ms. Brooks’ failure to name Mr. Hubbard as a defendant and the refusal of the trial judge to allow Ms. Brooks to amend her petition to substitute Mr. Hubbard for John Doe.

| tInvoluntary Dismissal

A motion for involuntary dismissal at the close of the plaintiffs evidence is permissible after a bench trial when, based upon the facts and law, the plaintiff has failed to show a right to relief. La. C.C.P. art. 1672(B). Upon a motion for involuntary dismissal, the judge must evaluate all the evidence, without any special inferences in favor of the opponent of the motion, and grant the dismissal if the plaintiff has not established proof by a preponderance of the evidence. Barnes v. Barnes, 46,417 (La.App.2d Cir.6/22/11), 71 So.3d 1004. The appellate court will not reverse an involuntary dismissal under La. C.C.P. art. 1672(B) in the absence of manifest error; and, there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Atkins v. City of Shreveport, 45,665 (La.App.2d Cir.9/22/10) 48 So.3d 326. The trial court has great discretion in the granting of an involuntary dismissal. Barnes, supra, citing Chandler v. Chandler, 45,308 (La.App.2d Cir.5/19/10), 37 So.3d 569 and Smith v. Knight, 39,781 (La.App.2d Cir.6/29/05), 907 So.2d 831.

Ms. Brooks first argues that the trial judge erred in ruling on the motion for involuntary dismissal because she had not yet concluded her case when the motion was heard as Ms. Brown had not yet been located and testified. We are not persuaded by this argument. Ms. Brown was located waiting in the wrong courtroom. Ms. Brooks was allowed to re-open her case and present the testimony. The trial judge heard and evaluated Ms. Brown’s testimony in regard to the motion for involuntary dismissal. The fact that the motion was urged prior to Ms. Brown’s testifying does not | Roffend the language of article 1672(B) that the motion be made following the completion of a plaintiffs presentation of evidence. The testimony was ultimately adduced and considered by the judge prior to ruling.

The second inquiry we will address is the post-trial motion of Ms. Brooks to amend her pleadings to name Mr. Hubbard as a defendant. As previously stated, absent a qualifying circumstance under the direct action statute, a plaintiff must name a covered defendant along with the insurer. After the answer has been served, a plaintiff may amend his or her petition only by leave of court or by written consent of the adverse party. A court’s decision not to permit refiling is reviewable only for abuse of discretion. La. C.C.P. art. 1151. Bankston v. Alexandria Neurosurgical Clinic, 94-693 (La.App. 3d Cir.12/7/94), 659 So.2d 507, writ not considered, 95-0465 (La.4/7/95), 660 So.2d 436.

There is no dispute that Ms. Brooks expressed that Mr. Hubbard was the driver of the SUV as early as 2009, more than one year prior to trial in this matter. Counsel for Ms. Brooks apparently became aware of the critical necessity to amend the petition to name Mr. Hubbard as a defendant at the conclusion of Ms. Brooks’ evidence, as this was the first effort to move to amend. This oral motion to amend was denied by the trial judge.

Considering the nature of the inconsistent, incredible testimony in this case provided by all witnesses herein, the trial judge found it would be an abuse of discretion to allow the eleventh hour amendment. We review that determination under the abuse of discretion standard and find no such abuse in the judge’s refusal to allow the amendment.

| Assuming, arguendo, that the trial judge erred in disallowing the amendment to substitute Mr. Hubbard for John Doe, the unknown driver, we find no manifest error in the trial judge’s determination that there was no evidence of permissive use of the vehicle by any driver, whether it be Mr. Hubbard, Moo-moo or a phantom driver.

All motor vehicle liability insurance policies are required to include an omnibus clause which extends coverage to the person named therein and to any other person using such motor vehicle with the express or implied permission of the named insured. La. R.S. 32:900(B). Once permission, either express or implied, is granted by the insured to use the vehicle, any subsequent changes in the character of the use do not require additional specific consent of the insured. Thereafter, coverage will be denied only if the deviation from permissive use amounts to theft or other conduct displaying utter disregard for the return or safekeeping of the vehicle. Brooks, supra; Wells v. Kemper Casualty Insurance Co., 35,304 (La.App.2d Cir.12/28/01), 803 So.2d 450, writ denied, 02-0271 (La.3/28/02), 812 So.2d 634.

As previously discussed, a review of the transcript of the trial herein reveals untruthful and inconsistent deposition and trial testimony of all of the witnesses. Moreover, the record is replete with instances of the trial judge asking counsel for Ms. Brooks to tell the court what affirmative evidence exists to show permissive use on the part of the driver of the SUV, whoever it may have been. Counsel was unable to provide any such evidence. A review of the testimony leaves this court with no conclusion as |1f)to who was, more likely than not, the driver of the SUV and/or whether that driver resided in Ms. Brown’s home or had permission to use the SUV. We, therefore, find no manifest error in the trial court’s granting of the involuntary dismissal.

In addition, our de novo review of the record yields the same result with respect to the granting of the exception of no cause of action. Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. The claims of Ms. Brooks were properly dismissed with prejudice.

CONCLUSION

For the foregoing reasons, the judgment granting USAgencies Insurance Company’s motion for involuntary dismissal and exception of no cause of action and dismissing the claims of Plaintiff, Khadijah Brooks, is affirmed. Costs of appeal are assessed to Khadijah Brooks.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Deborah K. HARPER and Calvin W. Harper, Plaintiffs-Appellants v. Claude MINOR, M.D., HCA Health Services of Louisiana, d/b/a North Monroe Hospital and Unknown Insurance Carriers, Defendants-Appellees.
    No. 46,871-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 1, 2012.

      Smith & Nwokorie, by Anselm Nwoko-rie, Brian G. Smith, for Appellants.
    Crawford & Ogg, by Brian E. Crawford, Monroe, LA, for Appellee, Claude Minor, M.D.
    Hudson, Potts & Bernstein, LLP, Monroe, LA, by Charles W. Herold, III, for Appellee, John A. Davis, M.D.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

| plaintiffs, Deborah and Calvin Harper, appeal the trial court’s granting of a directed verdict in favor of defendants, Drs. Claude Minor and John Davis. For the reasons stated herein, we reverse.

Facts and Procedural Background

On January 16, 2003, plaintiff, Deborah Harper, underwent a routine bilateral mammogram screening procedure which identified a small lesion in her left breast. Mrs. Harper was referred to defendant, Dr. Claude Minor, a general surgeon, for further assessment. Dr. Minor confirmed that Mrs. Harper did have an abnormal mammogram. After consultation and discussion with Dr. Minor, Mrs. Harper elected to have the mass removed. A needle localization excisional biopsy of the lesion was scheduled for February 24, 2003, at North Monroe Medical Center. Dr. Minor and defendant, Dr. John Davis, a radiologist, performed the procedure.

The procedure entailed the radiologist “localizing” the lesion. Using ultrasound guidance, Dr. Davis inserted a five centimeter Kopan’s hook wire into the breast with the hook overlapping the lesion. He confirmed the placement by mammogram, X-ray image. The patient was then taken to the operating room where she was prepped and anesthetized. The operating surgeon, Dr. Minor, reviewed the mammogram to ensure that the lesion was properly located and to determine how he would approach the lesion. Dr. Minor commenced the surgery, located what he believed to be the lesion mass, and removed it. After the mass was removed, the excised tissue and wire were sent to radiology where an X-ray was taken of the tissue and compared to the pre-procedure mammogram to determine if the targeted [2Iesion was fully removed. Dr. Davis concluded that the oval mass removed by Dr. Minor corresponded to the mass seen on the earlier mammogram. He also concluded that the Kopan hook wire was overlapping the specimen. Dr. Davis called the operating room and informed Dr. Minor, who then sutured the patient and ended the procedure. The tissue that was removed was then sent to the pathologist for testing. The pathologist determined that the mass removed by Dr. Minor was not a fibroadenoma, a benign breast tumor, but was a fibrosis, breast tissue.

Approximately ten months later, Mrs. Harper underwent another bilateral mammogram, which revealed that a three centimeter portion of the hook wire and the earlier targeted lesion remained intact in her breast. As a result, a second needle localization was performed by Dr. Minor, wherein the wire fragment and the benign fibroadenoma lesion were successfully removed.

Plaintiffs filed a medical review panel complaint against Drs. Davis and Minor and the North Monroe Medical Center. The medical review panel found in favor of defendants, and plaintiffs subsequently filed the present medical malpractice suit. The review panel for Dr. Davis stated:

It is unfortunate that a segment of the hook wire along with the targeted breast mass remained in the patient. However, it was later discovered by a follow-up mammogram and was appropriately addressed and excised in subsequent surgery by Dr. Minor. As best we can tell, the second surgical procedure was uneventful and the excised mass was found to be benign.

The lawsuit was originally filed against Dr. Minor on January 19, 2007, and then later amended to include Dr. Davis on October 30, 2008. The case proceeded to jury trial in February 2011, wherein, upon Iscompletion of plaintiffs’ case, defendants moved for directed verdicts, which the trial court granted.

Plaintiffs appealed the trial court’s granting of directed verdicts in favor of Drs. Minor and Davis.

Discussion

Directed Verdicts

A directed verdict should be granted when, after considering all eviden-tiary inferences in the light most favorable to the non-moving party, it is clear that the facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion. Tanner v. Cooksey, 42,010 (La.App.2d Cir.04/04/07), 954 So.2d 335, writ denied, 07-0961 (La.06/22/07), 959 So.2d 508. A trial court has much discretion in determining whether to grant a motion for directed verdict. Id.

A plaintiff bears the burden of proving that a doctor committed malpractice. Wiley v. Lipka, 42,794 (La.App.2d Cir.02/06/08), 975 So.2d 726, writ denied, 08-0541 (La.05/02/08), 979 So.2d 1284. A medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and (3) a causal connection between the breach and the claimant’s injuries. La. R.S. 9:2794(A); Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; Bamburg v. St. Francis Medical Center, 45,024 (La.App.2d Cir.01/27/10), 30 So.3d 1071, writ denied, 10-0458 (La.04/30/10), 34 So.3d 294.

bin Bamburg, supra at 1075, we stated:

The Louisiana Supreme Court has found that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. In Pfiffner, 643 So.2d at 1233, the supreme court explained, “Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” In most cases, however, because of the complex medical and factual issues involved, a plaintiff who does not present medical expert testimony will likely fail to sustain his burden of proving his claim under the requirements of La. R.S. 9:2794. (Citations omitted).

Plaintiffs contend that the trial court erred in granting defendants’ motions for directed verdict. Plaintiffs contend that expert testimony was not necessary to establish malpractice, as these were obviously careless acts and, as such, negligence could be inferred.

Dr. Davis testified that the targeted mass was a suspected fibroadenoma, and that the tissue removed was subsequently determined by a pathologist to be fibrosis. According to Dr. Davis, the radiograph of the specimen removed had the same shape, color, and density as the targeted lesion, a suspected fibroadenoma. Dr. Davis stated that he was not aware that it was fibrosis until pathology issued its report. Moreover, Dr. Davis testified that the wire appeared to hook around the oval density that was excised. In the present case, Dr. Davis opined that the wire got bent in such a way that it appeared to have a hook on it. Based upon the appearance of the removed tissue and the presence of the hook wire overlapping the tissue, Dr. Davis testified that it was his determination that the targeted mass was properly excised and the hook portion of the wire removed.

|5It appears that either Dr. Davis placed the hook wire overlapping the wrong mass or Dr. Minor cut the wire and took out the wrong mass. The fibroadenoma identified in the initial mammogram overlapped with the hook wire remained in Mrs. Harper after the surgical procedure.

Although the procedure itself may be considered routine, considering the procedure as a whole, specifically the judgment calls required of Drs. Minor and Davis, it is clear that this is not a scenario from which lay persons could infer negligence on the parts of Drs. Minor and Davis. Thus, it was imperative that plaintiffs put forth medical expert testimony sufficient to sustain their burden of proof.

Plaintiffs’ Expert Witness

Plaintiffs attempted to get Dr. Roderick Boyd accepted as an expert witness in the interpretation of radiographic images, which the trial court denied. Plaintiffs did not offer any other expert in the field of radiology before closing their case-in-chief.

The trial court has wide discretion to decide whether a particular witness will be allowed to testify as an expert, and its judgment will not be disturbed by an appellate court unless it is manifestly erroneous. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.01/29/96), 666 So.2d 1073; Johnson v. English, 34,322 (La.App.2d Cir.12/20/00), 779 So.2d 876.

Plaintiff sought to tender Dr. Boyd as an expert in the field of general surgery and interpretation of radiographic images. Defendants objected and, after a brief voir dire, the trial court accepted Dr. Boyd as an expert in the field of general surgery but found that his level of expertise in the field | (¡of radiology did not rise to the level needed to give an opinion as to the standard of care required of a radiologist and the placement of the guide wire.

Specifically, voir dire revealed that, as a general surgeon, Dr. Boyd had performed several hundred needle localization breast biopsies. He does regularly review radiographic images as a function of his occupation as a general surgeon and in connection with biopsies such as the one performed in this case.

Dr. Boyd regularly performs these procedures and most importantly regularly reviews the radiographic images. Not to accept Dr. Boyd as an expert in this type of procedure to include a reading of the radiographic images was clear error.

Dr. Boyd’s knowledge of the requisite standard of care is evidenced by the following discourse between him and the trial court:

THE COURT:
Now, Dr. Boyd, let me just ask you this. All right. You testified that, you know, that any surgeon would — once the results (radiographs) come back (showing the insertion of the wire and lesion) and you’re called upon to go in and remove the lesion, you would look at those images yourself.
DR. BOYD:
Yes.
THE COURT:
That was your testimony?
DR. BOYD:
Correct.
THE COURT:
Now, if you looked at this lesion and you made a determination or you looked at the results of the report from the radiologist and you disagreed with it, what would you do?
|7DR. BOYD:
Get another film.
THE COURT:
You’d go back to the radiologist?
DR. BOYD:
Get another film. Look at it with the radiologist,—
THE COURT:
Right.
DR. BOYD:
—have a discussion—
THE COURT:
Consult with the radiologist and then perform your procedure once you’re satisfied in speaking with the radiologist that to your satisfaction this radiological report and the interpretation of these reports or these images are correct?
DR. BOYD:
Yes.
THE COURT:
Okay. Well, I think that goes right to the issue, Mr. Nwokorie. If you — he still would have to go back. If he looks at the report from the radiologist and disagrees with it, he wouldn’t just go on his own and act as a general surgeon; he would go back to the radiologist and he would consult with the radiologist after additional imaging is taken, after additional interpretations are made and then, and only then, would he act in the field of a general surgeon.
MR. NWOKORIE:
And I agree with that. I agree with that. But what I’m saying is that he is able to see that it was placed not in the right place. As long as I — I’m not saying that—
THE COURT:
But if he’s asked to testify whether this device placed in that place by a radiologist is in the right or -wrong place, then he is commenting on whether the radiologist breached the standard of care. Okay. Not the general surgeon. He is qualified to make a comment as to whether the general surgeon breached that standard of care only. And he cannot comment on whether the radiologist breached the standard of care. And if you ask him to testify as to whether this device was placed in the proper | ¡¡place to locate the lesion, then that is infringing on an area of expertise that he is not qualified to testify in.
THE COURT:
So I’ll sustain the — I’m going to sustain the objection as it relates to his qualifications in the area of radiology and I’m not going to allow him to testify as it relates to the standard of care as it relates to a radiologist.
MR. NWOKORIE:
Your Honor, just so-but can he testify that I reviewed this, this is what I see in these films? I can see them, but without offering an opinion. Can he say this is what I see without offering an opinion? I’m not going to ask him to offer an opinion, Your Honor.
THE COURT:
So this is what I see; I’ve reviewed the films and this is what I see. I see that this is placed in the wrong place. That’s an opinion.
THE COURT:
That’s an opinion as to the ultimate issue as to breach of the standard of care by the radiologist. He’s not qualified to do so.

To prevail in a medical malpractice case, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom. La. R.S. 9:2794(A).

Where the alleged acts of negligence raise issues peculiar to a particular specialty, then only those qualified in that specialty may offer evidence of the applicable standard of care. La. R.S. 9:2794(A)(1).

La. R.S. 9:2794(D)(3) provides:

In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the|3witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing in that area. (Emphasis added).

Thus, a specialist’s knowledge of the requisite subject matter, rather than the specialty or subspecialty within which the specialist practices, determines whether a specialist may testify as to the degree of care which should be exercised. A particular specialist’s knowledge of the subject matter on which he is to offer expert testimony should be determined on a case by case basis. McLean v. Hunter 495 So.2d 1298 (La.1986).

After our review of the record and relevant case law, we find that Dr. Boyd was qualified to testify as to the standard of care expected of a radiologist as to the procedure in this particular case.

Without question, Dr. Boyd is an expert in reading the films and determining the correct placement of the hook wire. If the placement was correct, then questions are presented as to Dr. Minor’s work; if not, these | inare issues as to Dr. Davis’s work. Clearly, Dr. Minor reviewed the films and had the responsibility to determine that the placement was correct and make the decision to go ahead with the procedure.

We cannot speculate on Dr. Boyd’s opinion or its impact on the jury’s decision. Nonetheless, the trial court, in denying Dr. Boyd the opportunity to testify as an expert regarding the interpretation of the radiographic images involved in this procedure, one he has performed hundreds of times, committed clear error. As any expanded testimony could foreseeably impact Dr. Davis, as well as Dr. Minor, we must reverse the trial court’s grant of both defendants’ motions for directed verdict, and remand for further proceedings.

Conclusion

Based on the foregoing reasons, the trial court’s grant of directed verdicts in favor of defendants, Drs. Claude Minor and John Davis, is hereby reversed and the case is remanded for further proceedings. Costs are assessed to defendants.

      . In Roberts v. Warren, 01-1342 (La.06/29/01), 791 So.2d 1278, the Louisiana Supreme Court held that a board certified oral surgeon was qualified to testify as an expert in a dental malpractice case against a general dentist regarding the applicable standard of care in dealing with the extraction of teeth.
      In Soteropulos v. Schmidt, 556 So.2d 276 (La.App. 4th Cir.1990), the court found that where medical disciplines overlap, specialists in one field may give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines; orthopedic surgeons were allowed to give their expert opinions regarding a vascular surgeon's adherence to the standard of care in performing a below-knee amputation.
      In Smith v. Juneau, 94-2440 (La.09/29/94), 642 So.2d 860, the Louisiana Supreme Court ordered that a physician who practiced in physical medicine and rehabilitation be allowed to testify as to the standard of care applicable to an orthopedic surgeon.
      In Slavich v. Knox, 99-1540 (La.App. 4th Cir.12/15/99), 750 So.2d 301, the appellate court held that the trial court did not err in allowing a general surgeon to testify as to the standard of care applicable to an internist who failed to diagnose a liposarcoma in a female patient.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Frank WASHINGTON, Appellant.
    No. 46,913-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 1, 2012.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Frank Washington, Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|! Frank Washington was convicted by a jury of one count of distribution of cocaine and sentenced to 20 years at hard labor, the first two years of which are to be served without benefit of probation, parole, or suspension of sentence. Washington appeals his conviction and sentence. We affirm.

Facts

In May 2010, the Minden Police Department Narcotics Unit conducted an undercover narcotics operation in Webster Parish. Lieutenants Dan Weaver (‘Weaver”) and Marvin Garrett (“Garrett”) met with a confidential informant, Joseph Howard (“Howard”), who told them he knew where he could buy cocaine. Howard was searched for drugs and money and then fitted with an audio and video recording device for recording the drug buy. The officers gave Howard $100 in bills with recorded serial numbers to buy the drugs. He was instructed to meet the officers at a specified location after the drug buy.

On May 19, 2010, after first attempting to buy drugs from defendant’s brother, Ervin Washington (hereinafter “Ervin”), Howard went to defendant’s home to buy drugs. After a conversation, Washington went alone behind the house and then returned back to Howard. Howard then went to the same location behind the house where Washington had gone and on a shelf in a tree found five rocks of what appeared to be crack cocaine. He left the money on the shelf, took the cocaine and returned the drugs to the officers.

^Washington was arrested and charged with three counts of distribution of a Schedule II controlled dangerous substance. On January 26, 2011, Washington was tried by jury on count three which involved the sale of drugs to Howard on May 19, 2010.

By 11-1 vote, the jury returned a verdict of guilty. Washington’s counsel filed a timely motion for post-verdict judgment of acquittal and Howard filed an untimely pro se motion for new trial. Both motions were denied at the sentencing hearing on March 28, 2011. Washington was sentenced to 20 years at hard labor, the first two years of which were to be served without benefit of probation, parole, or suspension of sentence. He filed a motion to reconsider sentence, which was also denied. This appeal ensued.

Discussion

I.

Washington argues that the evidence was insufficient to support his conviction on the grounds that the state failed to prove that he ever had contact with the substance behind the house or was ever found in possession of the money used to make the purchase. Further, Washington contends that there was insufficient evidence that the substance received by Howard was cocaine. Finally, Washington argues that the lack of evidence regarding who put the cocaine on the shelf allows the possibility that it was Howard who did so after surreptitiously obtaining the alleged cocaine from another person with whom he made contact before reaching Washington’s house.

^Additionally, Washington argues discrepancies between what was shown on the video and the testimony at trial. He contends that Howard made stops after leaving the officers at two different apartments before the alleged drug transaction. Washington also argues that the video shows that after he walked away from Howard, he was never seen on the video again.

La. R.S. 40:967(A) states in pertinent part as follows:

Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled dangerous substance analogue classified in Schedule II.
(4)(b)Distribution ... cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) ... shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The State must show: (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Marshall, 45,567 (La.App.2d Cir.9/22/10), 47 So.3d 1083, writ denied, 10-2411 (La.2/25/11), 58 So.3d 457; State v. Kelley, 36,602 (La.App.2d Cir.01/29/03), 836 So.2d 1243; State v. Manning, 30,809 (La.App.2d Cir.06/24/98), 715 So.2d 668.

|4When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

UThe trier of fact is charged to make credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). A witness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Dorsey, 10-0216 (La.9/7/11), 74 So.3d 603; State v. Davis, 02-1043 (La.6/27/03), 848 So.2d 557. In the absence of internal contradiction or irreconcilable conflict with physical evidence, that witness’s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Dorsey, supra; State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Moore, 44,429 (La.App.2d Cir.8/26/09), 20 So.3d 1137, writ denied, 09-2166 (La.4/9/10), 31 So.3d 378; State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630. When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438.

| (At trial, Garrett testified that on May 19, 2010, he contacted Howard for the purpose of making a purchase of illegal narcotics, namely crack cocaine. The officer testified that he and his partner, Weaver, first met Howard behind the Min-den Press Herald and took him to the police department. The officers then prepared Howard to make the buy of the illegal drugs by patting him down, searching him to make sure he did not have any weapons or illegal narcotics or any other money on his person. The officers instructed the informant to make the purchase and return directly to a pre-ar-ranged location. The original target of the drug buy apparently was Washington’s brother, Ervin.

Initially, Garrett went to a nearby location where the purchase was to take place to set up surveillance. Weaver then activated the video equipment attached to Howard, gave Howard money for the purchase, and dropped him off. Garrett explained that the police used a video camera and an audio system on the informant that transmits the audio signal to the police vehicle so the informant’s actions are monitored.

Garrett testified that he next saw Howard about 15 minutes after Garrett left the police station and set up surveillance on Chesnut Street. The officer stated he had a pair of high-powered binoculars and he saw Howard come out of a trail at Chesnut and Cherry Street. Garrett testified that he observed Howard unsuccessfully try to make contact with another subject before going back to the trail. Garrett received a phone call from Weaver who told him that the person Howard expected to see, Ervin Washington, |7was not at home and Howard was going to go to the home of Frank Washington to attempt a purchase of crack.

Garrett next saw Howard coming back on the trail onto the corner of Chesnut and Cherry Streets where he made contact with the defendant at his home. Garrett stated he could not hear the conversation between Howard and Washington, but saw them talking. He then saw Washington turn and walk to the left, around and behind a house. That was the last time Garrett was able to see Washington. Garrett testified that Howard stayed near the road while Washington went behind the house. Howard spoke to someone else for a minute, and then he went behind the house in the same direction as Washington. The officer stated Howard only stayed behind the house only a minute and then returned to the front of the house. Howard then left the area by way of the trail on which he had come.

Howard testified consistently with the officers regarding his preparation for the buy. Howard explained that prior to his encounter with the defendant, he stopped to talk to another drug dealer he happened to meet on the street. He stated he stopped another time when he saw his mother and sister and hid behind a dumpster until they went by. Howard testified he stopped at Ervin Washington’s house because he owed him money, a statement that did not align with the officers’ testimony. However, Howard confirmed that Ervin was not home. Thereafter, Howard called Weaver who instructed him to go to the defendant’s house. When he arrived, Washington was outside leaning against a car.

| sHoward testified he told Washington there was a man from Gibsland who wanted $100 worth, and Frank told him to get the money. When Howard told Washington he had the money, Washington asked, “Are you ready?” Howard told Washington, “It’s on.” Howard testified that Washington, “went through the trail to go through the back of the empty house across the road where he kept it and he come out of the trail and said okay.” Howard testified that the word “okay” meant “that he got a little shelf sitting behind the tree and he had put it on the shelf, that mean[t] for me to go around and get it and put the money on the shelf.” Howard also stated that he went to the shelf letting the camera film himself counting out the money, delivering the money on the shelf, and taking the five rocks of cocaine.

Howard stated that after he placed the money on the shelf and picked up the drugs, he told Washington he was coming back to pay his brother the money he owed him. Howard told Washington that he should have thrown in something extra, and Washington replied that he did. Howard testified that he took the five rocks of cocaine and carried them in his hand for a while before putting them in his shirt pocket. He stated he walked away from Washington’s house and communicated with the officers over the audio feed the entire time. Howard testified that he went back behind the newspaper building where the officers picked him up. He gave the officers the drugs when he got in their car, and when he got to the station they took the wires off and put his own shirt back on. At that time, the officers paid him $100. Howard testified that he had no doubt in his mind that he 19purchased five rocks of cocaine from Washington. Howard also identified photographs of his actions with Washington produced from still photos taken from the video.

On cross-examination, Howard admitted that he did not see Washington place the drugs on the shelf. He testified that he knew that Washington placed the cocaine on the shelf, because he was the only person who “went back there.” He also testified that nobody came up behind him and gave him drugs. He testified that the only people he talked to were the other dealer and the dealer’s girlfriend, and one man in the yard with Frank Washington.

Weaver was qualified as an expert in identification of street drugs and also testified as a fact witness. He testified that initially he had attempted to get Howard to purchase drugs from Ervin Washington, the original target of the operation. When that transaction did not take place, Weaver told Howard via the direct audio communication to go to the home of Frank Washington and attempt to make a buy from him.

Weaver testified that the conversations from the video and those which he heard from the live audio equipment were consistent. He also stated that based upon his training as an expert witness, the conversation he heard between Washington and Howard indicated to him that Howard asked Washington for $100 worth of crack cocaine.

Weaver also testified that he was familiar with defendant’s house. He saw that portion of the video where Howard placed the money and obtained the five rocks of crack cocaine. Weaver testified that at the time of the | ^transaction, he saw Washington move “beside the house” and go “back to where the Cl later went back and laid the money and also received the cocaine.” Finally, from still photographs taken from the video, Weaver was able to identify Washington in the first and second photographs and Howard’s money and the five rocks of crack cocaine in the third and fourth photographs.

Weaver identified the five rocks of crack cocaine he received from Howard which were at that time in a deteriorated, crumbled state. Weaver stated he had written on the evidence tag that it was five rocks of suspected crack cocaine. He also indicated the person who it was purchased from, the date, and that he had turned it over to the evidence person at the Minden Police Department whose job it was to send it to the crime lab for analysis.

Weaver was asked about Howard’s recording device, and he acknowledged that the battery was low on the device. He explained that was why it quit working when Howard was approximately 1,000 yards from the point where he made contact with Weaver after the purchase and why there was no video of the informant turning the drugs over to him.

Garrett’s testimony also confirmed the events that transpired in the time period after the tape was stopped. He testified that upon leaving the defendant’s house, Howard walked back through the apartment complex where he lives, without stopping at his own apartment, and then he met the officers at the pre-arranged meeting place. Weaver took possession of the five rocks of cocaine that Howard handed him. According to regular police | n procedure, Howard was searched for any other illegal drugs or money, and he did not have any.

The 50-minute video introduced by the State into evidence generally corroborated the preceding testimony in the following particulars:

• The informant’s preparation by the officers for the transaction.
• Howard’s stopping behind a dumpster and speaking to a man and woman (with a child) in a vehicle. Howard never approached the vehicle or made physical contact with either occupant of the car.
• Howard’s attempt to reach Ervin Washington by knocking on the door of his trailer. The video depicts a lady answering the door and informing Howard that Ervin was at work.
• Howard’s entrance into the Elderly Apartment complex where he entered two apartments including his own. In the first apartment he engages in an unintelligible conversation with an unknown male. In the second, he lights a cigarette and leaves.
• Howard’s encounter with Washington in the yard of the defendant’s home. Howard can be heard to mention $100 to Washington who disappeared from the video after making a comment to one of the men in the yard. When someone is heard to say “all right,” Howard walked to a location near the house where he lifted a black tarp and placed the money under it. He then is seen to take several rocks of crack from behind the tarp.
• As Howard moved away from the black tarp, he can be heard to twice say “you ain’t give me nothing.” Somebody responded, “yeah I did,” to which Howard responded that he had to pay the 15 to Ervin.
• Howard returned to his apartment. For a moment, the video blacks out. Howard apparently drank something and announced his intent to leave. Howard exited the apartment building and walked approximately four minutes when the recording stopped before he reached the officers.

[ ^Officer Ronald Peyton, who supervised the evidence room at the Minden Police Department, explained how the evidence was sealed and that he received it from Weaver on the morning of June 3, 2010. He testified that after he sealed the evidence, he initialed the seals and transported the evidence to the crime lab on June 4, 2010. He also picked up the evidence from the crime lab on September 10, 2010, when he took it back to the evidence locker where it stayed until trial.

Randall Robillard, an expert in forensic chemistry from the North Louisiana Crime Lab in Shreveport, testified that he personally received the drugs at issue on June 7, 2010; the drugs had been delivered to the lab three days earlier. He testified that he performed routine standard tests on the material and determined that it contained cocaine. He prepared the report that was admitted as State’s Exhibit D which states, “Item 1 was determined to contain cocaine, Schedule II.”

When viewed in the light most favorable to the state, we find the evidence presented in support of Washington’s conviction to be sufficient to establish the elements of the charged offense beyond a reasonable doubt. The testimony of the officers, Howard and the video recording submitted into evidence established that Howard, an established confidential informant, went to Washington’s home in an attempt to buy drugs. Washington and Howard engaged in a conversation in which Howard indicated to Washington he wanted to buy $100 worth of crack cocaine. Weaver heard this conversation in real time and testified that in his expert 1^opinion, the words shared between the two men corroborated Howard’s testimony. The video also establishes that the conversation took place.

Washington claims that the video never depicts him coming back to Howard after he went across the street to an empty house. Nevertheless, the jury obviously believed Howard’s eyewitness account which supplemented any deficiencies in the video. Upon Washington’s return, Howard reported that Washington spoke to him telling him it was “all right” to proceed. The evidence then indicates that Howard walked in the same direction from which Washington had come, immediately placed the $100 given to him by the police on the shelf under a black tarp, and took five rocks of cocaine from the shelf. The recording of the incident corroborates this portion of the informant’s testimony. The very short timing for the entirety of the encounter between the two men as documented by the video shows beyond a reasonable doubt that the defendant had facilitated the transaction.

Moreover, the jury also chose to believe the testimony of the crime lab witness who performed the analysis of the evidence presented to him and who determined that the substance was in fact cocaine. Full cross-examination of the witness was allowed by the defense concerning the technique or science used to make the identification of the substance. No objection to or contrary evidence was presented by the defense on the issue. The jury was entitled to weigh the evidence and make credibility determinations regarding its reliability.

From this evidence as well as Howard’s testimony, the conversations and actions of the parties established by the video and eyewitness accounts 114of the officer, the jury could have reasonably concluded to the exclusion of every other reasonable hypothesis of innocence (including any claim that the buy was a set-up by Howard to frame Washington) that it was Washington who knowingly placed cocaine on the shelf which Howard retrieved and paid for. This evidence is sufficient to prove the crime of distribution of cocaine.

II.

Washington next argues that the imposed sentence is disproportionate to the crime under the facts and circumstances of this case. He contends that because of his age, the 20-year sentence may very well span the remainder of his productive work life and effectively transform him from a contributing member of society into a burden on the taxpayers.

The test imposed by the reviewing court in determining the exees-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Gr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows |ir,an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57, 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 04-2606 (La.06/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La. App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, |1 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

On the day of sentencing, the trial court noted its consideration of the facts presented in a presentence investigation report (“PSI”), including that Washington has a son who is going blind and a daughter in high school. He is 47 years old with an eleventh-grade education. The court considered that Washington worked throughout his life in construction and other manual labor endeavors. Nevertheless, the court noted that this offense was Washington’s third-felony conviction. The court considered that Washington’s first conviction in 1981 was for simple burglary for which he received probation which was terminated unsatisfactorily. The defendant did not commit any other crimes until 1990 when he was found guilty of three counts of distribution of Schedule II drugs. For the convictions, Washington served approximately nine years in prison and was paroled, but the parole was revoked in May of 2000. He was paroled again in April of 2004 and his parole expired in 2008.

After reviewing these facts the trial judge imposed the 20-year sentence, with the first two years to be served without benefit of probation, parole, or suspension of sentence. The court also accepted the forfeiture of a 1983 Chevrolet pickup truck in lieu of the court finding any costs were due.

We find adequate 894.1 compliance. The trial judge considered the facts presented to him in the PSI and took into consideration both mitigating and aggravating facts when he fashioned the defendant’s sentence, noting | l7social history, work experience, church affiliation, and family. The judge specifically considered the 894.1 guidelines and the fact that Washington’s criminal history occurred quite a while ago.

Moreover, we find this midrange sentence to be clearly tailored to fit the defendant and offense and not grossly disproportionate to the severity of the offense nor shocking to the sense of justice. For the conviction, Washington faced maximum sentencing exposure of 30 years. The offense of conviction is Washington’s third felony offense. He has previously served jail time for this identical offense and had been paroled only a few years prior to this offense. In these circumstances it is clear that Washington has failed to be rehabilitated by prior incarceration and leniency in sentencing. We see no constitutional error in the imposed sentence and reject Washington’s claim.

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

AFFIRMED.

      . Two of the charges concerned sales made on other dates and were reset for trial at a later date.

      . Testimony and video indicate that Ervin’s trailer was next door to, or nearby, Washington's house.

      . The audio portion of the video is difficult to understand. Howard turned away from Washington and did not have the camera pointed in the direction the defendant walked.

      . Washington’s remaining claims in his pro se brief are without merit. The denial of his claims for new trial relating to chain of custody involved issues of fact and credibility which are not reviewable on appeal. La. C.Cr.P. art. 858. His claim that the trial court erred in failing to admonish the jury regarding alleged prejudicial remarks of a witness were waived at trial as no request for admonition was made to the court. State v. Williams, 383 So.2d 996 (La.1979).


author: WILLIAMS, J.

text:
    Michele Baker SKIPPER, Plaintiff-Appellant v. Marcus Joe SKIPPER, Defendant-Appellee.
    No. 46,935-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 1, 2012.

      Charles H. Kammer, III, Shreveport, LA, for Appellant.
    Clinton C. Black, Minden, LA, for Ap-pellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   WILLIAMS, J.

bln this child custody dispute, the mother, Michele Baker Skipper, appeals a trial court judgment granting the father’s motion to modify custody of the minor child. She also challenges the lower court’s ruling allowing the father to claim the income tax dependency deduction for the minor child every other year. For the following reasons, we amend the trial court’s judgment with regard to child visitation and affirm as amended. Additionally, we reverse the portion of the judgment which would allow the father to claim the income tax deduction every other year.

FACTS

Marcus Joe Skipper (“Mark”) and Michele Baker Skipper (“Michele”) were married on April 28, 2001, and divorced on June 26, 2008. Of the marriage, one child, Jake, was born on February 19, 2003. Jake has been diagnosed with Usher Syndrome, a genetic condition which affects his hearing, vision and mobility. At the time of the hearing, Jake was legally blind and partially deaf, hearing only with the assistance of hearing aids; he also walked with the assistance of a cane. According to the testimony, Jake’s condition will progressively worsen, and he will eventually become totally blind and deaf.

On June 26, 2008, the parties entered into a joint stipulation whereby they agreed to share the joint custody of Jake, with Michele being designated the domiciliary parent. Them visitation schedule provided that Mark would have visitation with Jake every other weekend and two weeks during the summer months. The parties also entered into an agreement regarding holidays and Jake’s birthday. The trial court entered a consent ^judgment, ratifying the joint stipulation. The right to claim Jake as a dependent for state and federal income tax purposes was not mentioned in the joint stipulation/consent judgment.

On March 7, 2011, Mark filed a motion to modify custody, alleging, inter alia: (1) Michele had refused to be flexible with the visitation schedule; (2) Michele had refused to agree to reasonable requests for additional visitation; (3) Michele scheduled events and appointments that conflicted with Mark’s visitation; (4) Michele had refused to allow Mark the opportunity to provide childcare for Jake when she was unable to care for him; (5) Michele had failed to notify Mark about appointments, activities and events concerning Jake. Mark also requested a reduction in child support and to be allowed to claim Jake each year as a dependent on state and federal income tax returns.

In response, Michele filed a rule to increase child support, alleging: (1) the income of both parties had changed; (2) Jake’s monthly expenses had increased due, in part, to his disabilities; (3) daycare costs had increased. Michele also objected to Mark’s request that he be allowed to claim Jake as a dependent for income tax purposes each year.

Prior to the hearing on the motions, the parties reached a consent agreement re: garding child support and expenses for Jake. However, the parties were unable to agree with regard to visitation and the right to claim the income tax dependency deduction.

A hearing was held on August 26, 2011. The evidence established the following: Jake is currently in third grade; Jake is under the care of |.omul tiple doctors in different states; Jake has seven teachers from special services, including a speech therapist, occupational therapist, itinerant hearing teacher, hearing impaired teacher, orientation teacher, mobility teacher and inclusion teacher; Michele is an occupational therapist employed by the Caddo Parish School System; Michele is trained to work with children with disabilities; Michele’s job allows her to be with Jake during the summer months and holidays; Michele’s hours are flexible during the day, enabling her to confer with Jake’s teachers and therapists; Mark is employed as a pharmacist at Walgreens; his work schedule varies, requiring him to work all hours of the week, including evenings, weekends and holidays; Mark has never been involved in Jake’s schooling and has never met any of his teachers or therapists. Michele also testified that the loss of the right to claim the tax exemption for Jake would cost approximately $2,000 per year. Mark produced no evidence with regard to the tax exemption.

At the conclusion of the hearing, the trial court granted Mark’s motion to modify the visitation schedule. The court reviewed the factors set forth in LSA-C.C. art. 134, and stated:

[Michele,] and looking at the days [t]hat you proposed, [Marcus will] have approximately four to four and a half days per month out of thirty days. That is not sufficient under the United States Constitution; that is not sufficient under these statutes. That is not sufficient under the codes and under the case law. I mean, four and a half days out of thirty days. That does not foster a relationship, especially as close as the parties live. [H]e has the right to be a father and that’s what the constitution says. And he has the right to exercise those abilities, and until he cannot exercise those abilities then he is given the opportunity to exercise those abilities.
He has the right to be a father. He has the right to participate. You said in your testimony that the child’s condition will be that he cannot see in the future and that he cannot hear in the future. The child has the right to remember your voice and the right to remember your face as much as he as the right to remember his father’s voice and his father’s face. And four days a month is not going to do it[.]
⅜ * *

The court ordered visitation as follows:

1. The visitation shall follow [Marcus]’s work schedule. [Mareus]’s work schedule is based on a 28 day cycle that rotates throughout the year. [Marcusj’s visitation shall begin on the first day of his 28 day cycle which is Wednesday, May 18, 2011 (Day 1) at 4:00 p.m. He shall keep the minor child overnight and return him to school the following morning. He shall pick up the minor child on Saturday, May 28, 2011 (Day 11) at 10:00 a.m. and return the minor child on Monday, May 30, 2011 (Day 13) to school. During the summer time only, he shall pick up the minor child on Thursday June 2, 2011 (Day 16) at 10:00 а.m. and return the minor child the following day at 4:00 p.m. He shall pick up the minor child Friday, June 10, 2011 (Day 24) at 4:00 p.m. through June 14, 2011, which marks the end of his 28 day cycle. This cycle shall rotate throughout the year, subject to the holiday and summer visitation set forth herein. As part of the new cycle, he will keep the minor child from June 14, 2011 through Thursday, June 16, 2011 at which time he will return the minor child to school. A copy of the visitation schedule for the remainder of 2011 is attached hereto as Exhibit “A”.
* * *
б. If MARCUS JOE SKIPPER has to work during any of his periods of visitation with the minor child, the minor child shall be returned to MICHELE BAKER SKIPPER at the normal exchange location.

The court then established very specific visitation for the summer months, Thanksgiving holiday and Christmas holiday. The court also ordered Mark to return Jake to Michele if he was required to work during any of his |fischeduled visitation periods. Additionally, the court ordered both of the parties to alternate claiming Jake as a dependent on federal and state income tax returns.

Michele appeals.

DISCUSSION

Michele contends the trial court abused its discretion in granting the motion to modify custody. She argues that the visitation schedule centers around Mark’s work schedule, rather than around the best interests of the child.

It is well settled in our statutory and jurisprudential law that the paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir. 12/16/09), 27 So.3d 1024; Shivers v. Shivers, 44,596 (La.App.2d Cir.7/1/09), 16 So.3d 500. The court is to consider all relevant factors in determining the best interest of the child. LSA-C.C. art. 134.

1 fiThe trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSA-C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra; Robert v. Robert, 44,528 (La.App.2d Cir.8/19/09), 17 So.3d 1050, writ denied, 2009-2036 (La.10/7/09), 19 So.3d 1; Bergeron v. Bergeron, 44,210 (La.App.2d Cir.3/18/09), 6 So.3d 948. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

LSA-R.S. 9:335(A)(2)(b) provides that, to the extent feasible and in the best interest of the child, physical custody of the child should be shared equally. However, the law is clear: substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Semmes, supra; Stephenson v. Stephenson, 37,323 _y(La.App.2d Cir.5/14/03), 847 So.2d 175.

The trial court has vast discretion in deciding matters of child custody and visitation. Semmes, supra; Slaughter v. Slaughter, 44,056 (La.App.2d Cir.12/30/08), 1 So.3d 788; Gaskin v. Henry, 36,714 (La.App.2d Cir.10/23/02), 830 So.2d 471. Therefore, the trial court’s determination will not be disturbed on appeal, absent a clear showing of an abuse of discretion. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Semmes, supra; Slaughter, supra. As long as the trial court’s factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not re-verse even though convinced it would have weighed the evidence differently if acting as the trier of fact. Id.

In the instant case, Michele and Mark testified that Jake is a bright, happy and well-adjusted child, despite his disabilities. Both Michele and Mark agreed that they are both good parents to Jake.

Michele testified that a custody arrangement whereby she and Mark would exchange custody of Jake several times a week would be difficult and detrimental to Jake’s routine and academic progress. She explained the complexity of Jake’s needs as a disabled child and believed that Jake’s need for structure and stability was paramount. Michele also testified that she is very active in Jake’s school-related activities, and stated that she often meets with his teachers as much as three times a week to ensure Jake’s physical and academic success. Michele was complimentary of Mark’s relationship with Jake and stated, “I’m not going to keep Mark away from Jake.” Michele further testified that her schedule is more flexible than 18Mark’s schedule, which rotates on a monthly basis and requires him to work various shifts, including some weekends and evenings. Michele was adamant about maintaining the every other weekend visitation schedule and opined that Mark had other opportunities to spend time with Jake but had elected not to do so. Michele stated:

Mark has flexibility to come to any of Jake’s extracurricular activities, any in-school programs, I mean, we have joint custody, he can walk in that front door just like I do. And he can go with Jake on kite day, and field day, and extra recess day. Has he gone to any of those in his three years of education? Not that I’m aware of.

Mark testified that he was no longer satisfied with being limited to spending every other weekend with Jake. He stated that initially, Michele allowed him to see Jake on his days off during the week, but she had stopped doing so. Mark also testified that Michele had failed to notify him of Jake’s extracurricular activities and would not provide him with information regarding her vacation plans with Jake. He stated that he is aware of Jake’s condition and limitations, and he is willing to accommodate those special needs at his home. Mark admitted that he had never attended any Individualized Education Program (“IEP”) meetings at Jake’s school, and blamed Michele for either failing to notify him of the meetings in advance or declining his offers to “go with her or meet her there.” He also stated that Michele withholds information from him concerning Jake’s medical needs, schooling and extracurricular activities. However, on cross-examination, Mark admitted that he has never been prevented from participating in Jake’s schooling or from calling and/or meeting with his ^teachers and therapists.

We have reviewed this record in its entirety and are convinced that Michele and Mark are both fit and loving parents. However, the paramount goal in custody cases is reaching a decision which serves the best interests of the child. We find that the visitation schedule set forth by the trial court to “follow [Marcus’] work schedule” is not in the best interest of Jake. The schedule is tailored solely to Mark’s work schedule, and demonstrates no regard for Jake’s needs and activities. However, we also find that the previous visitation schedule, which allowed Mark to visit with Jake a mere four days per month is not in Jake’s best interest. Accordingly, we amend the trial court’s visitation order to provide that Mark shall have visitation with Jake every other weekend, from Friday evening, through Tuesday morning, when he returns the child to school. Michele shall pick the child up from school every other Tuesday afternoon. If Mark is required to work during any of his periods of visitation, or for any reason cannot transport the child to or from school during his periods of visitation, Mark shall return the child to Michele, with advance notice, at the normal exchange location.

Michele also contends the trial court erred in awarding the dependency deduction for income tax purposes to Mark every other year. She argues that Mark did not put forth any evidence to demonstrate that he would benefit from claiming the deduction.

LSA-R.S. 9:315.18 provides, in pertinent part:

A. The amounts set forth in the schedule in R.S. [in9:315.19[] presumes that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section.
B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obli-gor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

In this case, the trial court determined that Mark pays “over 50%” of the child support obligation. However, the statute clearly provides that the non-domiciliary parent, is entitled to claim the dependency deduction if the court finds that the right to claim the deduction would substantially benefit the non-domiciliary parent without significantly harming the domiciliary parent. Here, Mark failed to present any evidence to prove that the income tax deduction would substantially benefit him, without substantially harming Michele. See, Semmes, supra; Neill v. Neill, 33,398 (La.App.2d Cir.6/21/00), 764 So.2d 235. Accordingly, we find that the trial court erred in awarding the right to claim the income tax deduction to Mark every other year, and that portion of the judgment is hereby reversed.

^CONCLUSION

For the above reasons, the judgment of the trial court is amended with regard to child visitation and is affirmed as amended. The portion of the judgment which would allow the father to claim the income tax deduction every other year is hereby reversed. Costs are assessed to both parties.

AMENDED IN PART; AFFIRMED AS AMENDED; REVERSED IN PART.

      . LSA-C.C. art. 134 provides, in pertinent part:
      Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.

        ís) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . The schedule of support to be used for determining the basic child support obligation is set forth in LSA-R.S. 9:315.19.


author: LOLLEY, J.

text:
    Lovenda Janice Allen SONNIER, Plaintiff-Appellant v. Andrea Sonnier CONNER, Thomas Sonnier and Diamond McCattle Company, LLC, Defendants-Appellees.
    No. 46,857-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 1, 2012.

      Marshall L. Sanson, Monroe, LA, for Appellant Lovenda Sonnier & Intervenor Appellees Jerry T. McEachern & Sharon A. McEachern.
    Pesnell Law Firm, Shreveport, LA, by W. Alan Pesnell, for Appellees.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| lovenda Janice Allen Sonnier (“Loven-da”) appeals the judgment of the Second Judicial District Court, Parish of Jackson, State of Louisiana, wherein the trial court granted a motion for summary judgment in favor of the defendants, Andrea Sonnier Conner and Thomas Sonnier (collectively, the “defendants”), and dismissed her claims. For the following reasons, we reverse the trial court’s judgment.

Facts

This matter has been before our court previously and an opinion rendered in the matter, Sonnier v. Conner, 43,811 (La.App.2d Cir.12/03/08), 998 So.2d 344, writ denied, 2009-0309 (La.04/03/09), 6 So.3d 773 (“Sonnier I ”). We adopt the detailed facts as stated in Sonnier I and will not repeat those herein; however, we note the following series of events:

1)In 1988, Lovenda executed two deeds regarding three separate parcels of property (the “Property”) to her niece, Sharon Allen McEachern (wife of Jerry McEachern);
2) In 1993, the McEacherns conveyed the Property to Rennie and Gloria Sonnier in the form of two separate deeds;
3) Gloria Sonnier died on October 5, 1994, her succession was opened, and the judgment of possession rendered in 1995 did not describe the Property;
4) Rennie Sonnier died on May 30, 2003, his succession was opened, and the judgment of possession rendered in 2004 did not describe the Property. His children, Thomas Sonnier and Andrea Sonnier Conner, were his sole heirs;
5) A mineral lease of the Property was granted by the defendants in favor of Devon Energy Production Company, LLC and was recorded on August 5, 2004;
|26) The defendants petitioned the district court to amend their parents’ successions to include the Property and amended judgments of possession were rendered on August 6, 2004;
7) The defendants executed an Act of Exchange with Diamond McCattle Company, LLC regarding the Property, which act was recorded on August 30, 2004; and,
8) In 2005, two cash sale deeds regarding the Property were recorded in Jackson Parish, which were reportedly executed on April 30, 1993, signed by Rennie and Gloria Sonnier as vendors, and purportedly transferred the property to Lovenda as vendee.

Lovenda filed suit against the defendants, alleging that the deeds transferring the Property were simulations and that she, and not the defendants, is the rightful owner of the property. The McEacherns intervened in the matter, acknowledging that the deeds to them by Lovenda were simulations, as were the deeds between them and Rennie and Gloria Sonnier. The defendants moved for summary judgment, which the trial court granted. We reversed the trial court grant of summary judgment in Sonnier I, which served to reinstate Lovenda’s claims against the defendants. In a lengthy and detailed opinion, we concluded that:

Material fact issues exist for the resolution of [Lovenda’s] claim of alleged simulated sales. Based upon our interpretation of Civil Code Articles 1848 and 2480, the evidence of [Lovenda’s] retained corporeal possession, the allegation of nonpayment of the price, and [Lovenda’s] and the McEaeherns’ alleged intentions for the acts of the sale to the Sonniers and the Blank Deed raise fact issues which the Defendant’s motion for summary judgment did not attempt to overcome.

Notwithstanding the clear explanation contained in Sonnier I, the defendants filed a second motion for summary judgment. In it they claimed that: Lovenda executed the deeds in favor of the McEac-herns in order to |3hide the property from her creditors; such a cause to enter into a contract is immoral or illicit and against public policy; and, resultantly, the deed was an absolute nullity. The trial court again granted the Sonniers’ motion for summary judgment, and Lovenda has appealed.

Discussion

From the very beginning, the crux of this litigation is whether or not the deeds in question were simulations as claimed by Lovenda. A major issue addressed in Sonnier I was whether the trial court could consider parol evidence in making such a determination. We determined that parol evidence could indeed be considered by the trial court and that genuine issues of material fact existed making summary judgment erroneous. Sonnier I, at 858.

In this second appeal, the defendants have seemingly conceded that the deeds were simulations (presumably an alternative defense), and are attacking Lovenda’s cause for executing the initial deeds under La. C.C. art. 2033. The trial court has again granted summary judgment in favor of the defendants, agreeing with the defendants’ assertion that the 1988 deeds were absolutely null on a public policy basis. However, as stated, the seminal question in this litigation is whether the deeds in question were in fact simulations. In Son-nier I, after thorough discussion, we concluded that the question would need to be answered after a trial of the matter — not in a summary proceeding. We noted previously that Lovenda’s claims, if true, ] 4would result in the deeds being absolute simulations, as defined in La. C.C. art. 2026. Providing expressly for an absolute simulated contract in the Civil Code, our law reflects no public policy bar to such transactions as between the parties to such act. If that is ultimately determined, the deeds would not have had any effects between the parties — as if the transactions never occurred. Thus, at this juncture, it was error for the trial court to make a determination regarding Lovenda’s cause for executing the instruments, and it was not relevant. The evidence must be examined to determine whether the deeds were absolute simulations, and her purpose regarding her creditors is not pertinent for making that initial determination as between these particular parties. As made ■ clear in Sonnier I, the issue of whether the deeds in question were indeed simulations should be determined after a consideration of all the evidence in a trial of the matter; thus, the trial court’s grant of summary-judgment in favor of the defendants on this second issue was in error.

Conclusion

So considering, the judgment of the trial court which granted the motion for summary judgment by Andrea Sonnier Conner and Thomas Sonnier is reversed. All costs of this appeal are to be paid by the defendants.

REVERSED AND REMANDED.

      . The trial court's judgment concluded only that no genuine issues of material fact existed based on the defendants' motion for summary judgment and supporting documentation. At the hearing, the trial court declared, "I think the depositions of the parties indicate that it was done to defraud the creditors or to defraud somebody so I'm gonna allow the motion for summary judgment.”

      . Furthermore, in the event that any creditors were indeed defrauded by her actions, those creditors could seek to have the deeds annulled through a revocatory action. See La. C.C. arts. 2036 et seq.