author: THIBODEAUX, Chief Judge. PICKETT, J.,

text:
    Richard LE, et al. v. NITETOWN, INC.
    No. 10-1239.
    Court of Appeal of Louisiana, Third Circuit.
    July 20, 2011.

      Thomas Reginald Hightower, Jr., Patrick Wade Kee, Michael S. Harper, Lafayette, LA, for Defendant/Appellee, Nite-town, Inc.
    Derriel Carlton McCorvey, Lafayette, LA, for Plaintiffs/Appellants, Richard Le and Edward Prince.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLY H. EZELL, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

_JjThe plaintiffs, Richard Le and Edward Prince (collectively referred to as the “plaintiffs”), were injured by bouncers employed by the defendant, Nitetown, Inc. (Nitetown). The jury found that Nite-town’s conduct was intentional in part and negligent in part and awarded damages to both plaintiffs. The jury further found that Mr. Le was twenty percent negligent in causing his injuries. In its judgment, the trial court reduced the damage awards to the plaintiffs for the comparative negligence of Mr. Le. Both plaintiffs appeal the reduction in their damages. Finding that the trial court erred as a matter of law in reducing the plaintiffs’ damages where the defendant is found liable for intentional tort, we reverse the judgment of the trial court. We further reverse the trial court’s assessment of part of the court costs and fees to Mr. Le. We amend the jury awards to both plaintiffs.

I.

ISSUES

We must decide:

(1) whether the trial court erred in reducing the plaintiffs’ recovery by the percentage of fault attributed to one plaintiff, where the defendant is found to have committed an intentional tort;
(2) whether the trial court abused its discretion in assessing court costs to the plaintiffs in proportion to the comparative fault percentages; and,
(3) whether the amount of the plaintiffs’ general damages are subject to review and, if so, whether they are abusively low.

_b.IL

FACTS AND PROCEDURAL HISTORY

On October 1, 2006, Mr. Le and Mr. Prince incurred injuries at a lounge called Nitetown in Lafayette, Louisiana. A jury found that bouncers employed by Nitetown had used excessive force upon the plaintiffs, that the bouncers’ conduct was intentional, and that the plaintiffs were entitled to general and special damages for their injuries. The jury further found that a percentage of Nitetown’s fault was in negligence for the improper training of its employees, and that Mr. Le was partially negligent in causing his injuries. The jury found no fault of any kind or degree on the part of Mr. Prince. After stating at trial that there would be no reduction of Mr. Le’s recovery for his comparative negligence, the trial court subsequently issued a judgment reducing Mr. Le’s damage award by twelve and one-half percent. The trial court also entered judgment reducing Mr. Prince’s recovery by twenty percent, due to the negligence of Mr. Le.

The trial court further assessed twelve and one-half percent of the court costs and trial fees to Mr. Le in the Le judgment, and twenty percent of the court costs Land fees to Mr. Le in the Prince judgment, even though there was one trial. The plaintiffs appeal the reduction of their damage awards and the imposition of court costs and fees under the trial court’s application of comparative negligence. They also submit that the jury’s awards for general damages were abusively low.

III.

STANDARD OF REVIEW

A trial court’s findings of fact are reviewed under the manifest error or clearly wrong standard of review. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Reversible errors of law are reviewed de novo. Rosell v. ESCO, 549 So.2d 840 (La.1989).

IV.

LAW AND DISCUSSION

Mr. Le and Mr. Prince contend that the trial court erred in reducing their damages by the percentage of negligence that the jury allocated to Mr. Le. We agree. Pursuant to La.Civ.Code art. 2323, the comparative fault of all persons contributing to an injury must be determined, but where part of the damage is the result of the fault of an intentional tortfeasor, the recovery of the injured person shall not be reduced because of his own negligence. Specifically, Article 2323 states:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or | reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

La.Civ.Code art. 2323 (emphasis added).

Here, the jury specifically found that the employees of Nitetown, the bouncers, used excessive force against Mr. Le and Mr. Prince, and that the bouncers committed the intentional tort of battery upon the plaintiffs. The jury further found that the conduct of Mr. Le was not intentional, but that Mr. Le was twenty percent negligent in causing his injuries. Under the clear meaning of La.Civ.Code art. 2323(C), there is no reduction in Mr. Le’s award where he was the victim of an intentional tort, and it is of no moment that the intentional tort-feasor was also found negligent in some degree. Comparing the negligent fault of an injured party with the intentional actions of the party inflicting the injuries is no longer appropriate. This was not the intent of the legislature when it rewrote La.Civ.Code art. 2323 in 1996, specifically adding subsection (C) prohibiting a reduction of the plaintiffs damages in intentional tort scenarios.

In November of 1994, shortly before the legislature’s 1996 revision to Article 2323, the Louisiana Supreme Court articulated its agreement on the differing nature of certain kinds of conduct and the difficulty of comparison:

|fi[A]s Dean Prosser has explained it, intentional wrongdoing “differs from negligence not only in degree but in kind, and in the social condemnation attached to it.” Prosser and Keeton on the Law of Torts § 65, at p. 462 (5th Ed.1984).... Because we believe that intentional torts are of a fundamentally different nature than negligent torts, we find that a true comparison of fault based on an intentional act and fault based on negligence is, in many circumstances, not possible.

Veazey v. Elmwood Plantation Associates, Ltd., 93-2818 (La.11/30/94), 650 So.2d 712, 719-20.

The court in Veazey went on to explain that, given the then-existing statutory scheme, comparative fault law as it existed at the time in Louisiana was broad enough “in an appropriate factual setting to encompass the comparison of negligent and intentional torts,” but it questioned “whether such a comparison should, be made.” Id. at 718 (emphasis added). Ultimately, the court left it to the discretion of the individual courts to determine “in what contexts the doctrine of comparative negligence should be applied,” on a case-by-case basis. Id. at 720.

Thereafter, in 1996, the statutory scheme changed with the rewriting of La. Civ.Code art. 2323 and its heading, specifically adding section (C) prohibiting the reduction of a negligent plaintiffs damages where part of the fault was that of an intentional tortfeasor. Section (A) calls for a determination of the fault of all participants in an incident, whether a party or non-party, whether insolvent or immune, such as an employer, a bankrupt, an unknown, or a previously settled and released defendant. Section (B) makes it clear that section (A) applies to all theories of liability, such as negligence, product liability, premise liability, malpractice, and laso forth; and, it can be extrapolated from (A) and (B) that the fault of two or more intentional actors can be compared in allocating liability between them for payment of a plaintiffs damages. See Landry v. Bellanger, 02-1443 (La.5/20/03), 851 So.2d 943.

Section (C), however, provides a very specific and clear mandate in the case of intentional torts, that the plaintiffs “claim for recovery of damages shall not be reduced,” even if his negligence is part of the cause of his damages. La.Civ.Code art. 2323(C). In other words, the negligence of the plaintiff cannot be used to reduce his recovery if part of his damages are caused by an intentional tortfeasor.

As the Landry court stated,

It is appropriate to consider each party’s respective fault when a matter involves intentional tortfeasors. In prohibiting the reduction of a negligent plaintiffs damages, Article 2323(C) reflects a legislative determination that on the continuum of moral culpability, the act of an intentional actor should not benefit from a reduction in the damages inflicted on a less culpable negligent actor.

Landry v. Bellanger, 851 So.2d at 954. Such an application “furthers public policy by preventing an intentional tortfeasor from using the comparative fault regime to reduce his own obligation to compensate a less culpable victim.” Id.

Even prior to the effective date of Article 2323’s revision and the mandate of section (C), the jurisprudence largely found contributory negligence, or comparative fault, unavailable as a defense to an intentional tort and inapplicable to 17reduce the damages to which a victim of an intentional tort is entitled. Accordingly, the twelve and one half percent reduction in Mr. Le’s award is reversed.

With regard to Mr. Prince, who was assessed with no degree of negligence whatsoever, it would be absurd to reduce his award for the twenty percent negligence of his co-plaintiff, when the eo-plain-tiff is not being penalized for his own negligence. This event was not an accident for which Mr. Le was found twenty percent liable. The jury’s verdict form on Mr. Le found that Mr. Le “breached the standard of ordinary care contributing to his injuries” in the amount of twenty percent. The jury’s verdict form on Edward Prince found that Mr. Prince had not “breached the standard of ordinary care contributing to his injuries” in any percent whatsoever. The defendant committed a battery on each one of the individual plaintiffs. It is clear that the legislature intended to carve out a protection for plaintiffs injured by intentional torts, and there is no indication in the article that a completely innocent plaintiff, i.e., one who is not negligent, should not be afforded the same protection as his partially negligent co-plaintiff who was injured by the same tortfeasor.

As we indicated in Pinsonneault v. Merchants & Farmers Bank & Trust Co., 99-12, p. 41 (La.App. 3 Cir. 7/21/99), 738 So.2d 172, 195-96, reversed on other grounds, 01-2217 (La.4/3/02), 816 So.2d 270, it would be absurd to penalize a nonjnegligent8 plaintiff just because he was not specifically named in a statute that was enacted to protect victims, such as himself, from intentional conduct:

[I]t is clear under 2323(C) that the partly negligent plaintiff is not to be penalized for the intentional harm that has befallen him — i.e., “his claim for recovery of damages shall not be reduced.” What of the completely innocent, non-negligent plaintiff such as we have in this case? Surely he should be entitled to at least as much as the negligent plaintiff, such that his damages “shall not be reduced” by the fault of the intentional tortfeasor.

While factually different, Pinsonneault discusses the importance of not isolating one statute, or section of a statute, and applying it so literally that, standing alone, it leads to an illogical and absurd result not intended by the legislature in enacting the law:

As a general rule, “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’ [in which case] the intention of the drafters, rather than strict language controls.” “When the literal construction of a statute produces absurd or unreasonable results, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.”

Pinsonneault, 738 So.2d at 198 (quoting State v. Ste. Marie, 98-1167, pp. 2-3 (La.12/18/98), 723 So.2d 407, 409).

The reasonable result is to give the blameless or negligence-free plaintiff the same protections from the intentional tort-feasor as those afforded to the partially negligent plaintiff. The twenty percent reduction in Mr. Prince’s recovery is, therefore, reversed.

Allocation of Costs

The plaintiffs also contend that the trial court erred in assessing court costs and fees in proportion to the negligence that was attributed to Mr. Le. As a | ^general rule, and as a default rule under La.Code Civ.P. art. 1920, the party cast in judgment is cast for all costs of trial. Berzins v. Betts, 457 So.2d 282 (La.App. 3 Cir.1984). While “the trial court has broad discretion in the assessment of costs” under Article 1920, “this discretion is not unbounded. In the absence of some equitable or other good reason, costs generally follow the final judgment in favor of the prevailing party.” LeBlanc v. Opt., Inc., 421 So.2d 984, 989 (La.App. 3 Cir.1982), writs denied, 427 So.2d 438 and 429 So.2d 132 (La.1983) (citations omitted). Here, the trial court assessed part of the costs to Mr. Le to coincide with the percentage of negligence attributed to Mr. Le. Where we have found it error to use Mr. Le’s negligence to reduce his recovery from Nitetown, thereby finding Nitetown liable for 100 percent of the damages, we likewise find that Nitetown is cast with all costs of the trial and the appeal. We, therefore, reverse the trial court’s assessment of a percentage of the costs and fees to Mr. Le.

General Damages

Mr. Le and Mr. Prince contend that the jury’s awards for general damages were abusively low for each. They seek increases in the quantum of those damages on appeal. Nitetown filed a motion for partial dismissal in this court, arguing that the plaintiffs limited their appeal to the comparative fault issue under La.Civ.Code art. 2323(C) and specifically designated only the portion of the record that contained the trial court’s analysis of the jury verdict forms on the percentages of fault assigned. Nitetown cites La.Code Civ.P. art. 2129, which states in pertinent part: “[wjhere the appellant designates only portions of the record as the record on 110appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.”

The record reveals however, that the plaintiffs have filed two motions with this court “To Supplement The Designated Record.” Following the first motion, which Nitetown opposed, a panel of this court issued an Order granting the plaintiffs’ motion pursuant to La.Code Civ.P. art. 2128. Article 2128 states in pertinent part that, after the original designation of the record by the appellant, the appellee may also designate other portions that he considers necessary, and that thereafter, “a party or the trial court may cause to be filed ... any omitted portion of the record as a supplemental record.” Subsequently, the plaintiffs second motion to supplement the designated record was properly granted by Order of our Clerk of Court. The plaintiffs’ supplements contain the medical records of the plaintiffs, psychological evaluation records, and medical bill summaries, all of which were entered as exhibits during trial. The plaintiffs’ appeal thoroughly briefs their assignment of error regarding the jury’s awards of general damages. Accordingly, Nitetown’s motion for dismissal of this issue is denied. We will consider whether the general damage awards of the jury were abusively low.

Richard Le was a twenty-two-year-old junior at the University of Louisiana at Lafayette when the Nitetown incident occurred. The report of the clinical psychologist, Lyle LeCorgne Ph.D., states that Mr. Le was trying to move past a woman with a cigarette without getting burned and was excusing himself as he passed by her when a Nitetown bouncer blocked him with an arm to his chest and stared at him; that Mr. Le questioned another patron regarding what was wrong with the bouncer; that the other patron said the bouncer was messed up; that the bouncer then pushed Mr. Le outside, threw him to the ground, pulled his shirt over his head, | nand while one person held him down, three other bouncers hit and possibly kicked him for four or five minutes. The report further related that Mr. Le was choked by a bald bouncer and that the Nitetown manager watched the beating, which stopped only when people approached in the alley. The bouncers told police officers that Mr. Le’s wounds were the result of his fighting inside the club, and he was not allowed to give a statement. An ambulance took Mr. Le to Our Lady of Lourdes emergency room. Mr. Le could not walk for a week and a half, and had swelling and bruises for three weeks.

Mr. Le’s physical injuries included lumbar, left shoulder, and left knee strains, multiple scalp and facial hematomas with contusion, multiple lacerations, and right chest wall hematoma. Pursuant to Mr. Le’s psychological report, he was not causing problems at Nitetown and had never been in a fight. Mr. Le felt that he was treated like an animal. He saw the main bouncer on campus, thought about the incident frequently, dreamed about it regularly, slept only three or four hours a night, and sometimes waited at the door of his home for them to “come finish [him] off.” He experienced a drop in his grades, especially in math. Pursuant to the psychological evaluation of Dr. LeCorgne, Mr. Le suffers from depressive disorder and anxiety disorder with prominent features of post-traumatic stress disorder. Mr. Le’s test results indicated severe symptoms of post-traumatic stress, due to intrusive recollections of the traumatic event, and significant post-traumatic avoidance symptoms, indicating withdrawal, apathy, and emotional numbing, as well as a tendency to avoid people, places, or situations that remind him of the index trauma. Dr. LeCorgne reported that Mr. Le exhibited clinically meaningful levels of trauma-specific dissociation which could signal the presence of a more complex post-traumatic stress disorder.

| i?Mr. Le’s emergency room examination revealed that one of the multiple head lacerations indicated that the corner of something had hit him, possibly a ring, and another looked like a crush-type injury with some blunt edge also. He had multiple lacerations around his head with approximately six hematomas to the forehead. His brain CT was normal, and the CT of facial bones identified no facial fracture; MRI’s of his left knee and shoulder were negative. Mr. Lee had physical therapy and treated with an orthopaedic surgeon for his shoulder, back, and knee, for about three months.

The jury awarded Richard Le $12,838.26 for medical expenses, $13,000.00 for pain and suffering, and $4,432.35 for mental anguish. He submits that the award for mental anguish was too low for the psychological injuries he sustained. Counsel for Mr. Le cites various cases awarding mental anguish damages starting at $25,000.00, and going up to $350,000.00 for psychiatric and physical pain and suffering. While we find the range for comparable mental anguish to be narrower, we find that Mr. Le’s general damage award was abusively low, and we will increase his overall general damage award to $50,000.00, inclusive of physical pain and suffering and mental anguish.

Edward Prince was twenty-five years old at the time of injury. He was treated at Lafayette’s University Medical Center emergency room for a laceration to 1 ^the back of his scalp and surrounding hematoma. He reported having been hit in the head with a fist during an altercation. Mr. Prince’s medical records do not reveal how he became involved in the incident. His laceration was sutured, and the suture was to be removed in eight days. The jury awarded Mr. Prince $885.75 for medical expenses and $1,500.00 for pain and suffering. Mr. Prince suggests that general damages for scalp lacerations are appropriate at $5,000.00. He cites Risk v. State, 549 So.2d 1272 (La.App. 3 Cir.1989) (laceration on head from single-vehicle accident) and Doucet v. B & R Petroleum Services, Inc., 546 So.2d 626 (La.App. 3 Cir.1989) (twelve stitches to forehead when truck driver was accidently struck by pipe). In this intentional tort case, we will increase Mr. Prince’s general damage award to $5,000.00.

V.

CONCLUSION

Based upon the foregoing, pursuant to La.Civ.Code art. 2323(C), we reverse the trial court’s reduction of the plaintiffs’ damages. We further reverse the trial court’s partial assessment of costs and fees to the plaintiffs, casting all costs and trial fees to the defendant, Nitetown, Inc. We amend the jury’s awards for general damages by increasing the award to Mr. Le to $50,000.00 and Mr. Prince’s to $5,000.00. Costs of this appeal are assessed to Nite-town, Inc.

AMENDED IN PART; REVERSED AND RENDERED.

EZELL, J., concurs in part and dissents in part for the reasons assigned by Judge PICKETT.

PICKETT, J., concurs in part and dissents in part.

PICKETT, J.,

concurring in part and dissenting in part.

hi concur in the judgment of the majority opinion to the extent that the reduction of Mr. Le’s damages by twelve and one half percent is reversed. I find the plain language of La.Civ.Code art. 2323(C) demands this result, but only because Mr. Le suffered damages “as a result partly the result of his own negligence and partly the result of the fault of an intentional tortfeasor.”

In all other respects, I dissent from the majority’s judgment. Mr. Prince’s damages were properly decreased by twenty percent because of the negligence of Mr. Le. Article 2323(C) does not apply to allow Mr. Prince full recovery because his damages are not a result of his own negligence. The majority believes it would be absurd to allow Mr. Le, a negligent party, to recover all of his damages, but reduce the fault of Mr. Prince, an innocent party, by twenty percent because of the negligence of Mr. Le. But Mr. Prince is not being punished because of Article 2323(C). Mr. Prince could have recovered one hundred percent of his damages simply by naming Mr. Le as a defendant in this suit. The majority’s “reasonable result” is contrary to the law, and I respectfully dissent.

Because I would reverse the judgment of the trial court insofar as it lowered Mr. Le’s recovery from Nitetown, I would likewise reverse the assessment of court lycosts to him. I would not disturb the trial court’s assessment of twenty percent of the costs in Mr. Prince’s case to Mr. Le, as I find no abuse of the trial court’s broad discretion in assessing costs.

Finally, I would affirm the trial court’s general damage awards because the designated record provides an incomplete basis for a thorough review. When the plaintiffs originally designated the record, they only included the portion of the trial court record and transcript containing proceedings which occurred after the jury rendered its verdict. The plaintiffs then supplemented the record with some medical records of Messrs. Le and Prince with this court’s permission, over the objection of Nitetown. After this case was heard by a three-judge panel, but before it was submitted to a five-judge panel, the plaintiffs supplemented the record with the full medical records of both plaintiffs. The plaintiffs argue that this court should increase the general damages awarded.

In Reck v. Stevens, 373 So.2d 498 (La.1979), the supreme court rejected the approach of reviewing general damage awards by simply reviewing medical evidence and determining that the trial court abused its discretion. The law clearly requires that we must determine “whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). Because the designated record in this case lacks any indication of the “particular circumstances of the particular injured person,” I cannot review whether the trial court abused its great discretion. On the record before us, I would find that the assignment of error lacks merit.

The majority reviews the facts of this case not by reviewing the testimony, under cross-examination, of the participants in the altercation, but by relying on the | ^report of Mr. Le’s psychologist and the medical records of Messrs. Le and Prince. Outside of the context of the trial transcript, I find that the majority errs in considering this evidence to evaluate whether the trial court abused its much discretion in its award of general damages.

      . The plaintiffs requested separate jury verdict forms, and the jury found differing degrees of intent and negligence in each case. The trial court, therefore, rendered two judgments incorporating the respective jury verdicts as follows:
      Prince Verdict Form: Nitetown's conduct 40% intentional and 40% negligent; Le's negligence 20%.
      Le Verdict Form: Nitetown's conduct 30% intentional and 50% negligent; Le's negligence 20%.

      . The trial court computed Mr. Le's 12.5% reduction as follows: Nitetown's liability at 80% and their negligence at 50% equals 5/8 of total award (or .625) times 20% negligence of Mr. Le = 12.5% reduction; and $30,270.61 reduced by 12.5% equals $26,486.78 (or $30,270.61 x 87.5% = $26,486.78).

      . The trial court computed Mr. Prince's reduction as follows: $1,885.78 reduced by 20% for negligence of Mr. Le equals $1,508.62 (or $1,885.78 x 80% = $1,508.62).

      . Both judgments contained an assessment to the plaintiffs for 100% of the costs of a trial and judgment in 2009, which appears from the record to have been continued by the plaintiffs after a jury was selected. This portion of the judgment is not being appealed.

      . Prior to its revision in 1996, La.Civ.Code art. 2323 was entitled "Computation of damages" and provided: "When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.”

      . "The case law of most jurisdictions does not allow either contributory negligence or comparative fault as a defense to an intentional tort. Comparative negligence, which has taken the place of contributory negligence in Louisiana, is likewise not applicable to reduce the damages to which the victim of an intentional tort is entitled. Woods, H., Comparative Fault, §§ 7.1 and 7.2. (The Lawyers Co-Operative Publishing Co., 1978). Hebert v. First Guar. Bank, 493 So.2d 150, 155 (La.App. 1 Cir.1986) [conversion case].” Miles v. Louisiana Landscape Specialty, Inc., 97-118 (La.App. 5 Cir. 6/30/97), 697 So.2d 348, 350-51 (sexual assault and battery). See also Broussard v. Lovelace, 610 So.2d 159 (La.App. 3 Cir.1992), writ denied, 615 So.2d 343 (La.1993) (conversion case); Bradford v. Bias, 525 So.2d 134 (La.App. 3 Cir.1988) (battery case). After the 1996 revision, see Henderson v. Sell-era, 03-747 (La.App. 3 Cir. 12/17/03), 861 So.2d 923 (battery between minors); Glod v. Baker, 08-355, p. 15 (La.App. 3 Cir. 11/19/08), 998 So.2d 308, writ denied, 08-2937 (La.2/20/09), 1 So.3d 497 (wrongful conversion).

      . Article 1920, entitled, "Costs; parties liable; procedure for taxing,” states: "Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

      . See Henderson v. Sellers, 861 So.2d 923 ($25,000.00 in general damages to high school quarterback for broken jaw sustained in fight, two months of significant pain, embarrassment, and inability to play sports his senior year; special damages were $4,670.00); Meche v. Duhon, 05-423 (La.App. 3 Cir. 11/2/05), 917 So.2d 507 ($30,000.00 in general damages to bar patron for chipped teeth, eye contusion, concussion, amnesia, concentration and anger issues resulting from altercation; special damages were $3,611.00); Thomas v. Busby, 95-1147 (La.App. 3 Cir. 3/6/96), 670 So.2d 603 (defamation plaintiff; $25,000.00 for mental anguish); Taylor v. State, 617 So.2d 1198 (La.App. 3 Cir.), writ denied, 620 So.2d 875 (La.1993) (malicious prosecution plaintiff; $40,000.00 for past, present and future anxiety, distress and depression); Chatelain v. Rabalais, 04-28 (La.App. 3 Cir. 7/7/04), 877 So.2d 324 ($45,000.00 for emotional distress of father regarding shooting incident); Precht v. Case Corp., 99-1296 (La.App. 3 Cir. 2/16/00), 756 So.2d 488, writ denied, 761 So.2d 546 (La.5/5/00) ($50,-000.00 in overall general damages, which included post-traumatic stress disorder that could be ongoing; tractor operator suffered second-degree burns over ten percent of his body and painful healing process; special damages were $9,427.98).


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    SUCCESSION OF Agnes Wylonda Johnson CARROLL.
    No. 46,327-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 20, 2011.

      Sedric E. Banks, Monroe, LA, for Appellants, Thomas Cruse and Donna Cruse Cagel.
    Donald L. Kneipp, Monroe, LA, for Ap-pellees, Ethyl Joyce Cruse Hornsby, Gary Maxwell Roark and AWC, LLC.
    Samuel W. Caverlee, Scott L. Zimmer, Shreveport, LA, for Appellee, Bruce Edward Hampton.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, J.

|! Plaintiffs, Thomas B. Cruse, Jr. and Donna Cruse Cagle, appeal the district court’s rulings sustaining defendant’s dilatory exception of improper cumulation of actions and peremptory exception of no cause of action. They also appeal the district court’s grant of a special motion to strike in favor of defendant, Bruce E. Hampton. For the following reasons, we affirm.

FACTS

Agnes Wylonda Carroll (“the decedent”) and Travis Carroll were married for more than 33 years. No children were born during their marriage; however both Travis and the decedent had children from prior marriages. On July 17, 2003, Travis Carroll died intestate; the decedent died testate on January 3, 2008. This dispute involves the decedent’s three surviving adult children, Thomas B. Cruse, Jr. (“Thomas”), Donna Cruse Cagle (“Donna”) and Ethyl Joyce Hornsby (“Ethyl”). Ethyl’s son, Gary Roark (“Gary”) and Bruce E. Hampton, an attorney, are also involved in this dispute.

On July 21, 2003, the decedent executed a durable power of attorney, naming Ethyl and Gary as her mandataries. The document also named Ethyl as executrix of Travis Carroll’s succession. On May 18, 2006, a Judgment of Possession was rendered in Travis Carroll’s succession, placing his children (“the stepchildren”) in possession of his interest in the community property, subject to the decedent’s usu-fruct.

On November 8, 2006, Ethyl and Gary organized AWC, L.L.C. (“AWC”) in the state of Arkansas; Ethyl and Gary were the sole members 1 ?of the company. Subsequently, acting on the decedent’s behalf, Ethyl and Gary purchased the stepchildren’s interests in the family home and other “income producing” assets. The decedent then sold most of her remaining assets to AWC.

In January 2007, the decedent was hospitalized in Arkansas. While there, she executed a will (“the Arkansas will”), in which she bequeathed virtually all of her estate to Ethyl, to the exclusion of Thomas and Donna. The Arkansas will was drafted by Robert Dawkins, an attorney practicing in Arkansas.

Soon thereafter, the decedent returned to Louisiana and retained the services of defendant, Bruce Hampton, an attorney practicing law primarily in Union Parish. On behalf of the decedent, Hampton prepared an act of donation, wherein the decedent transferred ownership of certain property, including her interest in the family home, to Ethyl. Hampton also drafted a cash sale deed, conveying one acre of land and a home/workshop to Gary. Several weeks later, the decedent and Ethyl asked Hampton to determine whether the Arkansas will would be valid in Louisiana. Hampton was uncertain about whether the will would meet Louisiana’s statutory requirements. Therefore, he drafted a “revised” will (“the Louisiana will”), which essentially mirrored the terms of the Arkansas will. In the Louisiana will, the decedent made certain “special legacies,” by which she bequeathed certain pieces of jewelry to Donna, Ethyl and her granddaughter. Additionally, just as the Arkansas will, the Louisiana will made Ethyl the | ^universal legatee of the remainder of the decedent’s estate. The will contained the following statement, “This bequest to [Ethyl] is due to her dedicated care and attention given to me[,] and for her having given up her job and income to do so.”

On April 27, 2007, Hampton and the decedent met to review the terms of the Louisiana will. The decedent affirmed that the Louisiana will expressed her desire concerning her property. She informed Hampton that it was not her desire to bequeath any of her property to Thomas and Donna. She also informed Hampton that all of her children were over the age of 24 and were not permanently incapable of caring for themselves. At the hearing on the exceptions, Hampton testified that the decedent was competent at the time the will was prepared and executed, and she was able to answer questions appropriately. Additionally, Hampton presented a letter from a physician which stated that the decedent was mentally capable of making business decisions and executing a will.

The decedent died almost a year later, on January 3, 2008. Subsequently, Ethyl, who had been named executrix of the decedent’s estate, retained Hampton to probate the will. On August 7, 2008, Hampton filed the necessary pleadings and documents to probate the will. A judgment of possession was rendered on August 1, 2008, recognizing Ethyl as the universal legatee in accordance to the provisions of the decedent’s will.

On November 22, 2008, Thomas and Donna filed a pleading entitled “Petition to Annul and/or Declare Invalid Probated Testament of Agnes |4Wylonda Johnson Carroll and Action to Annul and/or Rescind Real Estate Transactions and Recover All Damages and Attorney’s Fees Due on Account of Fraud.” Ethyl, Gary and AWC were named as defendants. On November 4, 2009, plaintiffs amended their petition, adding as defendants Dawkins, the attorney who prepared the Arkansas will, and Hampton, the attorney who prepared the Louisiana will. Plaintiffs alleged, inter alia, that Hampton and Daw-kins (1) “engaged in and concealed a scheme to use [the] court in order to defraud each plaintiff and to intentionally bring about a result which each and both [attorneys] knew wrongfully invaded the interests of plaintiffs in a manner prohibited by [the] laws of forced heirship;” (2) “acted separately and in concert, to aid and assist [Ethyl and Gary] in order to convert and/or conceal certain property interests and succession rights which [all defendants] knew rightfully belonged to plaintiffs as forced heirs of [the decedent];” and (3) failed to communicate with plaintiffs with regard to their dealings with the decedent, Ethyl and Gary.

Hampton filed a peremptory exception of no cause of action and a dilatory exception of improper cumulation of actions. Thereafter, Hampton filed a special motion to strike the allegations contained in the amended petition. The district court sustained the exception of improper cumulation, noting that the original petition sought to have the will and act of donation nullified, and the amended petition contained tort allegations, ie., fraud. |fiThe court stated, “The actions cumulated by the First Amending and Supplemental Petition are not mutually consistent with the original petition and do not employ the same sort of procedure as the original petition.” The court also sustained the peremptory exception óf no cause of action and granted the special motion to strike. The court stated:

The plaintiffs are non-clients of [Hampton] and there are no allegations that [Hampton] acted with specific malice or intent personally to inflict direct harm upon them. [Hampton] has no legal duty to a person intentionally left out of a testament by a testator.
[T]he attorney does not owe a legal duty to contact non-clients when acting [on] his clients’ behalf.

The court awarded Hampton $7,500 in attorney’s fees.

Plaintiffs appeal.

DISCUSSION

Exception of Improper Cumulation of Actions

Plaintiffs contend the district court erred in sustaining the dilatory exception of improper cumulation of actions. They argue that the actions were properly cu-mulated because both the original petition and the amended petition contained allegations of fraud and included demands for damages. Plaintiffs also argue that the named defendants were co-conspirators in a fraudulent scheme, and therefore, a community of interests is clear.

LSA-C.C.P. art. 463 provides, in pertinent part:

Two or more parties may be joined in the same suit, Neither as plaintiffs or as defendants, if:
(1) There is a community of interest between the parties joined;
(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.

(Emphasis added).

A suit to annul a probated testament shall be tried as a summary proceeding. LSA-C.C.P. art. 2931 and 2592. A tort action must be brought by petition as an ordinary proceeding. See, LSA-C.C.P. art. 851 and 852.

In the instant case, plaintiffs sought to join their suit to annul the probated testament, which must be brought by summary proceeding, with their suit for damages, which must be brought by an ordinary proceeding. Such cumulation of actions is improper under Article 463, and the district court properly sustained Hampton’s exception of improper cumulation of 17actions. This assignment lacks merit.

Exception of No Cause of Action

Plaintiffs also contend the district court erred in sustaining the exception of no cause of action. Plaintiffs argue that Hampton engaged in and concealed a scheme to defraud plaintiffs and to intentionally invade their interests; therefore, the exception should have been denied.

In City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, the Louisiana Supreme Court explained the exception of no cause of action and the standard of appellate review of the lower court’s decision on such an exception. The court stated:

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidenced] The exception is triable on the face of the [petition], and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff[.] A court of appeal reviews de novo a lower court’s ruling sustaining an exception of no cause of action because the exception raises a question of law and because the lower court’s decision is generally based only on the sufficiency of the petition[.j The question is whether, in the light most favorable to the plaintiff, the petition states any valid cause of action for relief]].]

Id. at 755-56 (internal citations omitted); see also LSA-C.C.P. art. 934.

An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the |8face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an af-ftrmative defense that appears clearly on the face of the pleading. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690 (La.7/5/94), 640 So.2d 237 (emphasis added); Rogers v. Ash Grove Cement Co., 34,934 (La.App.2d Cir.11/2/01), 799 So.2d 841, writ denied, 2001-3187 (La.2/8/02), 808 So.2d 351. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law. Id.

An attorney’s paramount duty is, and must be, to his client. Scheffler v. Adams & Reese, LLP, 2006-1774 (La.2/22/07), 950 So.2d 641. An attorney does not owe a legal duty to his client’s adversary when acting on his client’s behalf. Id.; Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127. However, an attorney may be held personally accountable for his intentional tortious conduct under the broad ambit of LSA-C.C. art. 2315. See, Montalvo, supra; Penalber v. Blount, 550 So.2d 577 (La.1989). A litigant who wishes to sue his adversary’s attorney must show that the attorney acted with a specific malice or intent to personally inflict direct harm upon his client’s adversary and with full knowledge that his conduct would cause such harm. Montalvo, supra; Penalber, supra.

Having reviewed plaintiffs’ amended petition, we find that it fails to Rallege facts sufficient to state a cause of action in intentional tort. Plaintiffs essentially alleged that Hampton conspired with Ethyl and Gary, and participated in a “scheme” with the intent to defraud plaintiffs of their rightful inheritance. Plaintiffs also alleged that Hampton failed to communicate with them to inform them, as possible forced heirs, regarding the testament and probate proceedings.

It is undisputed that plaintiffs are not, and never have been, Hampton’s clients. The petition alleged that Hampton was retained by the decedent to draft a testament and to assist with other transactions related to property owned by the decedent. Plaintiffs further alleged that, following the decedent’s death, Hampton was retained by Ethyl to initiate probate proceedings. Thus, Hampton owed a duty to his clients, the decedent and Ethyl.

Plaintiffs also alleged that Hampton failed to notify the court that plaintiffs were “possible” forced heirs; however, there are no specific allegations that Hampton acted with malice or in bad faith with the intent to cause direct harm to plaintiffs. The failure to notify the court of the existence of forced heirs may possibly constitute a violation of the rules of professional conduct; however, such allegations are not sufficient to give rise to intentional tortious conduct. The mere fact that plaintiffs were disinherited by their mother does not give rise to a cause of action against the attorney who drafted the will and/or initiated the probate proceedings. Accordingly, we find that the district court did not err in sustaining the exception of no cause of action. This assignment lacks merit.

| inSpecial Motion to Strike

Plaintiffs contend the district court erred in granting defendant Hampton’s special motion to strike and dismissing their tort claims against him. Plaintiffs argue that, in granting the motion, the court misinterpreted and misapplied LSA-C.C.P. art. 971.

In response to plaintiffs’ allegations against him, Hampton filed a special motion to strike, seeking to “strike all of the plaintiffs’ first amending and supplemental petition in its entirety against Hampton.” Hampton alleged that plaintiffs’ claims were “without merit and are in response to his exercise of the constitutional right of petition or free speech.” Hampton also requested “reasonable attorney’s fees and costs incurred in the prosecution of [the] motion.” The district court granted Hampton’s motion and dismissed “all tort actions, claims and demands of [plaintiffs] against [Hampton].” The court further awarded Hampton attorney’s fees in the amount of $7,500 and court costs.

The special motion to strike is governed by LSA-C.C.P. art. 971, which provides, in pertinent part:

(1)A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2)In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
F. As used in this Article, the following terms shall have |nthe meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) “Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in recon-vention.

The Louisiana legislature enacted LSA-C.C.P. art. 971 “to screen out meritless claims pursued to chill one’s constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press.” Melius v. Keiffer, 2007-0189 (La.App. 4th Cir.3/12/08), 980 So.2d 167, 170, writ not considered, 2008-1039 (La.8/29/08), 989 So.2d 90, |12quoting Lee v. Pennington, 2002-0381 (La.App. 4th Cir.10/16/02), 830 So.2d 1037, 1041. The party filing the motion to strike bears the initial burden of proving that the cause of action arises from an act in the exercise of his right of free speech regarding a public issue. Melius, supra; Thinkstream, Inc. v. Rubin, 2006-1595 (La.App. 1st Cir.9/26/07), 971 So.2d 1092, writ denied, 2007-2113 (La.1/7/08), 973 So.2d 730, citing Aymond v. Dupree, 2005-1248 (La.App. 3d Cir.4/12/06), 928 So.2d 721, writ denied, 2006-1729 (La.10/6/06), 938 So.2d 85. Once this is proven, the plaintiff must then demonstrate a probability of success on the claim. Id.

The granting of a special motion to strike presents a question of law. Thinkstream, Inc., supra. Questions of law are reviewed de novo, with the judgment rendered “on the record, without deference to the legal conclusions of the tribunals below.” Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582 (La.11/29/06), 943 So.2d 1037, 1045, citing Louisiana Municipal Association v. State, 2004-0227 (La.1/19/05), 893 So.2d 809, 836.

In Thinkstream, Inc., supra, the plaintiffs sued a law firm and three of its attorneys alleging that the plaintiffs suffered damages as a result of actions taken by the law firm in defending a client in litigation against the plaintiffs. Plaintiffs alleged, inter alia, that the law firm had made defamatory statements in an appeal filed with the Commissioner of Administration. In response, the law firm filed a special motion to strike. The trial court granted the motion, and the court of appeal affirmed, stating:

[I]t is undisputed that the cause of action against [the law firm] arose from an act by [the law firm] in furtherance 113of the right of petition or free speech, as the defendants made the allegedly defamatory statements in the original appeal they filed with the Commissioner on behalf of [its client]. As such, the allegedly defamatory comments were written statements made in connection with an issue under consideration or review by an executive or a judicial body, or any other official body authorized by law. See LSA-C.C.P. art. 971(F)(1)(b).

971 So.2d at 1100-1101.

We first address plaintiffs’ argument that Article 971 applies only to defamation claims and actions involving free speech. We find no merit in this contention. The express language of the article clearly establishes that it applies to “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech[J” LSA-C.C.P. art. 971(A)(1). (Emphasis added). Additionally, the legislature has expressed its intent that the article be “construed broadly.” See, Section 2 of Acts 1999, No. 734; Darden v. Smith, 2003-1144 (La.App. 3d Cir.6/30/04), 879 So.2d 390, writ denied, 2004-1955 (La.11/15/04), 887 So.2d 480.

In the instant case, plaintiffs’ amended petition contain numerous allegations against Hampton, arising from actions undertaken and pleadings .filed in court on behalf of his clients. As such, the actions taken by Hampton constituted written statements “made before a ... judicial proceeding, or any other official proceeding authorized by law.” See, LSA-C.C.P. art. 971(F)(1)(a). We find that Hampton met his burden of proving that plaintiffs cause of action arose from acts he undertook in the exercise of his right of free speech or petition. Thus, the burden shifted to plaintiffs to demonstrate a probability of success on their claims. The record in this_J_ycase supports the district court’s finding that plaintiffs were unable to meet their burden.

Further, we do not find any merit in plaintiffs’ argument that the district court erred in awarding Hampton attorney’s fees. The district court correctly followed LSA-C.C.P. art. 971(B), which provides:

In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

(Emphasis added). This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the district court’s rulings sustaining defendant’s dilatory exception of improper cu-mulation of action and peremptory exception of no cause of action. The district court’s grant of the special motion to strike in favor of defendant, Bruce E. Hampton, is also affirmed. Costs of the appeal are assessed to plaintiffs, Thomas B. Cruse, Jr. and Donna Cruse Cagle.

AFFIRMED.

      . According to plaintiffs, the decedent and Travis Carroll owned "substantial community property,” including a home, oil royalties, stocks and commercial leases.

      . Dawkins filed exceptions of improper venue, no cause of action and prematurity. The district court sustained the exceptions and dismissed Dawkins from these proceedings. Plaintiffs did not appeal that judgment, and Dawkins is not a party to this appeal.

      . The court ordered plaintiffs as follows: "to withdraw or amend the first amending ... petition to remove the tort claims against [Hampton] within [30] days ... or said petition will be dismissed for noncompliance with this order."

      .The claims against Ethyl and Gary are not at issue in this appeal.

      . LSA-C.C.P. art. 2931 provides:
      A probated testament may be annulled only by a direct action brought in the succession proceeding against the legatees, the residuary heir, if any, and the executor, if he has not been discharged. The action shall be tried as a summary proceeding.

      (Emphasis added). LSA-C.C.P. art. 2592 provides, in pertinent part:
      Summary proceedings may be used for trial or disposition of the following matters only:

      (9) An action to annul a probated testament under Article 2931.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Derrick Wayne DOUGLAS.
    No. 2010 KA 2039.
    Court of Appeal of Louisiana, First Circuit.
    July 26, 2011.
    Rehearing Denied Aug. 31, 2011.

      Hillar C. Moore, III, District Attorney, Philip House, Jeanne Rougeau, Assistant District Attorneys, Baton Rouge, LA, for Appellee, State of Louisiana.
    Frederick Kroenke, Baton Rouge, LA, for Defendant-Appellant, Derrick Wayne Douglas.
    Derrick Wayne Douglas, Angola, LA, Defendant-Appellant In Proper Person.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|2The defendant, Derrick Wayne Douglas, was charged by bill of information with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). He pled not guilty. The State amended the bill of information to charge the defendant with possession of cocaine, a violation of LSA-R.S. 40:967(C). The defendant pled not guilty to the amended charge. The defendant was tried by a jury and found guilty of the responsive offense of attempted possession of cocaine, in violation of LSA-R.S. 40:967(C) and LSA-R.S. 14:27. See also LSA-R.S. 40:979. The defendant filed a pro se motion for post-verdict judgment of acquittal. The State filed a habitual offender bill of information. A hearing was held on the habitual offender bill of information, and the defendant was adjudicated a fourth-felony habitual offender. The defendant was sentenced to life imprisonment without the benefit of probation, parole,, or suspension of sentence. The trial court denied the defendant’s motion to reconsider sentence. Later, the court also denied the defendant’s pro se motion for post-verdict judgment of acquittal.

The defendant appealed. On June 19, 2009, in an unpublished opinion, this court found merit in the defendant’s claim that the trial court failed to rule on the pro se motion for post-verdict judgment of acquittal before sentence. We noted that the trial court no longer had jurisdiction over the case at the time of the ruling on the pro se motion for post-verdict judgment of acquittal. We vacated the sentence and remanded the matter to the trial court for further proceedings. State v. Douglas, 09-0002 (La.App. 1st Cir.6/19/09), 11 So.3d 1246.

IsOn remand, the trial court denied the defendant’s motion for post-verdict judgment of acquittal. After a second habitual offender hearing, the defendant was again found to be a fourth-felony habitual offender and sentenced to life imprisonment at hard labor. The defendant moved for reconsideration of the sentence. The trial court denied the motion. The defendant now appeals, urging the following assignments of error by counseled and pro se briefs:

Counseled:
1.The trial court erred in imposing a sentence herein which is unconstitutionally excessive.
Pro se:
1. The trial court erred by not providing the [defendant] the prior appellate record, denying him a right to appeal his conviction.’
2. [The defendant’s] appeal counsel was ineffective.
3. The trial court erred in sentencing the [defendant] to life at hard labor as a habitual offender when the statute does not provide for a hard-labor sentence.
4. The trial court erred in sentencing the [defendant] to 51 years, then to a life sentence, without vacating the 51 year sentence.
5. The trial court erred in finding the [defendant] a fourth felony offender despite insufficient evidence of [defendant’s] knowing and intelligent waiver of constitutional rights during predicate guilty pleas.
6. The trial court erred in imposing a vindictive sentence on the [defendant] because he exercised his right to go to trial by jury.

We affirm the defendant’s conviction, habitual offender adjudication, and sentence.

FACTS

In the prior appeal, the facts of this ease were summarized as follows:

On or about February 14, 2007, at approximately 9:30 a.m., Detective Michael Burkett, of the Baton Rouge City Police Narcotics Division, received a tip from a confidential informant regarding narcotics activity involving the defendant at the 1100 block of North 48th Street. Detective Burkett and other officers responded to the scene in plain clothes and an unmarked vehicle. The officers wore badges identifying themselves as police officers. Detective Burkett |4observed the defendant and another subject sitting in a brown Cadillac in front of a residence. The defendant was positioned in the driver’s seat while the other occupant sat in the passenger seat.
The officers pulled into the driveway of the house, exited their vehicle, and began walking toward the Cadillac. The occupants observed the officers as they approached. Detective Burkett and Detective Drew White observed the defendant as he reached between his legs, and the passenger placed an object in his mouth, opened the door, and exited the vehicle. Detective Burkett approached the driver’s side of the vehicle while the other officers went to the passenger side. Detective Burkett asked the defendant to step out of the vehicle and walk toward the front of the vehicle, and the defendant complied. Detective Burkett observed, through the open door of the car in plain view on the seat where the defendant was sitting, a bag of suspected marijuana and a bag of suspected crack cocaine between the seats, next to a digital scale. After being questioned, the passenger attempted to flee but was apprehended. Detective Burkett placed the defendant under arrest and informed him of his Miranda rights at the scene and again at the narcotics office interview room.
Upon a search incident to an arrest, more drugs were found on the passenger, and one hundred and fifteen dollars were found in the defendant’s pocket. The defendant stated that the money came from selling cocaine. The defendant also stated that he had purchased the cocaine and marijuana from the subject in the passenger seat and that he intended to smoke the marijuana but was going to sell the cocaine. The defense stipulated to the results of the Louisiana State Police Crime Lab Report, finding that the substances seized at the scene were tested and determined to consist of marijuana and cocaine.

COUNSELED ASSIGNMENT OF ERROR EXCESSIVE SENTENCE

In his sole counseled assignment of error, the defendant argues the trial court erred in imposing an unconstitutionally excessive sentence. Specifically, he argues that the maximum sentence of life imprisonment was not warranted in this case because there was no showing that he is the worst type of offender or that he committed the most serious violation of the offense. The State asserts the sentence imposed is justified based upon the defendant’s criminal history and his propensity to continue to break laws.

| r,Article I, § 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Generally, a sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 628 So.2d 1276, 1280 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. LSA-C.Cr.P. art. 894.1. The trial court need not cite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La.App. 1st Cir.1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La.1982).

Based on his prior convictions, as a fourth-felony habitual offender, the defendant was exposed to a penalty of imprisonment, with or without hard labor, for a minimum of twenty years to a maximum of life. See LSA-R.S. 40:967(0(2); LSA-R.S. 14:27(D)(3) and LSA-R.S. 40:979(A). See also LSA-R.S. 15:529.1(A)(l)(c)(i) (pri- or to the 2010 amendments). As previously noted, the defendant received the maximum sentence. This court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders, State v. Easley, 432 So.2d 910, 914 (La.App. 1st Cir.1983), or when the offender poses an unusual risk to the public safety due [ fito his past conduct of repeated criminality. See State v. Chaney, 537 So.2d 313, 318 (La.App. 1st Cir.1988), writ denied, 541 So.2d 870 (La.1989).

Initially we point out that, in denying two separate motions for reconsideration of the sentence, the trial court specifically noted that all relevant aggravating and/or mitigating circumstances were taken into consideration. Further, the evidence introduced at the habitual offender hearing in this case established that the defendant has been committing felony drug offenses since 1990. Considering the defendant’s extensive criminal record, we find that the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the statutory maximum sentence upon the defendant. Such a sentence is clearly supported by the record. The defendant, who has repeatedly committed felony drug offenses, poses an unusual risk to public safety and is exactly the type of recidivist that the Habitual Offender Law intends to punish severely. The maximum sentence imposed in this case is not unconstitutionally excessive.

This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR ONE DENIAL OF COMPLETE APPELLATE RECORD

In his first pro se assignment of error, the defendant argues his constitutional right to appeal his conviction and sentence was denied when the trial court failed to provide him access to the prior appeal record on remand. On March 10, 2011, in response to a motion to suspend briefing and a motion to file a supplemental pro se brief, this court issued an order granting the defendant leave of court to file a pro se brief. This court also forwarded the records filed under our docket number 2009 KA 0002 (the defendant’s prior appeal) and 2010 KA 2039 (the instant appeal) to Louisiana State Penitentiary and ordered that the defendant be allowed access 17thereto. Thus, the defendant’s claim that he was erroneously denied access to the prior appeal record is now moot.

PRO SE ASSIGNMENT OF ERROR TWO INEFFECTIVE ASSISTANCE OF APPEAL COUNSEL

In his next pro se assignment of error, the defendant asserts his appellate counsel was ineffective in filing the brief in the instant appeal without having access to the complete record. He argues that without access to the voir dire transcript and other transcripts from the defendant’s trial and conviction, counsel could not effectively represent the defendant on appeal.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

Review of the record in this case reveals that the record for the defendant’s prior appeal is included as an exhibit in the instant appeal record. Furthermore, the defendant was represented by the same attorney in both the prior appeal and the instant appeal. Thus, the defendant’s claim that his appeal counsel did not have access to the complete record when preparing the instant appeal lacks merit.

The defendant also argues that his appellate counsel was ineffective in failing to raise the issue of the trial court’s failure to deviate from the mandatory minimum sentence as allowed by State v. Dorthey, 623 So.2d at 1278. Since the | ¡¡defendant was not sentenced to a minimum sentence, we conclude that he could not possibly have suffered any prejudice as a result of his appellate attorney’s failure to raise this issue of the trial court’s failure to deviate below the mandatory minimum in sentencing. If the substantive issue an attorney failed to raise has no merit, then the claim the attorney was ineffective for failing to raise the issue also has no merit. State ex rel. Roper v. Cain, 99-2173 (La.App. 1st Cir.10/26/99), 763 So.2d 1, 5 (per curiam), writ denied, 00-0975 (La.11/17/00), 773 So.2d 733.

This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR THREE IMPOSITION OF LIFE SENTENCE AT HARD LABOR

In his third pro se assignment of error, the defendant argues the trial court lacked authority to order that the life imprisonment sentence be served “at hard labor” when the provision which allows a sentence to be imposed at hard labor under the Habitual Offender Law was not enacted until 2010 by Act No. 69.

Although the “at hard labor” language was, in fact, added to LSA-R.S. 15:529.1(G) by 2010 La. Acts, No 69 § 1, the addition of that condition to the Habitual Offender Law did not modify the sentencing provisions of any underlying felony offense. The sentence conditions required by LSA-R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provision for the underlying offense. A sentence enhanced under the Habitual Offender Law is computed by referring to the underlying offense. See State v. Robinson, 46,330 (La.App.2d Cir.2/18/11), 54 So.3d 1292.

Herein, the defendant’s underlying felony conviction was for attempted possession of cocaine, in violation of LSA-R.S. 40:967(C) and LSA-R.S. 14:27. The sentencing provision for possession of cocaine under R.S. 40:967(0(2), provides for imprisonment “with or without hard labor[.]” LSA-R.S. 14:27 provides that a sentence for an attempted offense shall be served “in the same |flmanner as for the offense attempted.” Therefore, because the underlying offense allowed for a sentence at hard labor, that condition was a legal component of the defendant’s sentence as a habitual offender.

Furthermore, we note that statutory enactments are generally classified as substantive, procedural, or interpretive. The Louisiana Supreme Court has stated:

Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws.

State v. Washington, 02-2196 (La.9/13/02), 830 So.2d 288, 290 (per curiam).

In the instant case, we find that Act 69 is an interpretive enactment intended to clarify the purpose of the Habitual Offender Law. Clearly, the Habitual Offender Law was enacted with the intent to punish recidivism with hard labor sentences. This is evident by the fact that certain third and fourth felony habitual offender sentences restrict parole eligibility. The concept of parole is applicable only to hard labor sentences.

This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR FOUR FAILURE TO VACATE SENTENCE

In his fourth pro se assignment of error, the defendant argues the trial court erred in failing to vacate the fifty-one-year imprisonment sentence originally imposed before imposing the life sentence.

Following the defendant’s habitual offender adjudication on remand, the following exchange occurred regarding the sentencing:

[THE COURT]: After that finding I’m going to sentence Mr. Douglas to fifty-one years in the Department of Corrections at hard labor. I guess that’s without the benefit of probation, parole or suspension of sentence. Well, it doesn’t say that; does it?
ImWell, let’s go another way if it doesn’t say it. Go ahead and sentence him to natural life.
[DEFENSE COUNSEL]: Your honor, the statute does provide for without benefit of probation, parole or suspension of sentence.
[THE COURT]: I thought I had — I thought it said that, but I—
[DEFENSE COUNSEL]: It says it— it’s toward the end; Paragraph “G”.
[THE COURT]: (Reviewing the statute) There it is. “Any sentence imposed under the provision of this section shall be without benefit of probation, parole or probation, or suspension of sentence.” (Reading from the statute).
[THE PROSECUTOR]: It doesn’t say parole.
[THE COURT]: It doesn’t say parole. So, to be on the safe side, sentence him to life imprisonment.

The aforementioned exchange reveals that while the trial court discussed the possibility of imposing a sentence of fifty-one years, once the court realized that it could not restrict parole eligibility on the sentence, the court opted to impose a life imprisonment sentence instead. This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR FIVE INSUFFICIENT EVIDENCE TO SUPPORT HABITUAL-OFFENDER ADJUDICATION

In his fifth pro se assignment of error, the defendant argues the trial court erred in adjudicating him a fourth-felony habitual offender. Specifically, he asserts that the evidence presented at the habitual offender hearing in support of the three prior guilty pleas failed to establish knowing and voluntary waivers of his constitutional rights. Thus, he asserts, the State should not have been allowed to use any of these predicates for enhancement.

To use a prior guilty plea to enhance punishment under LSA-R.S. 15:529.1, the State need prove only the fact of conviction and that the defendant was represented by counsel (or waived counsel) at the time he entered his plea. Thereafter, the defendant bears the burden of proving a significant procedural |ndefect in the proceedings. See State v. Shelton, 621 So.2d 769, 779-80 (La.1993). Once a defendant makes an affirmative showing of an infringement of his rights or a procedural irregularity in the plea transcript, the State must prove the constitutionality of the predicate pleas by producing a “perfect” transcript. If the State produces anything less than a “perfect” transcript, e.g., a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. State v. Zachary, 01-3191 (La.10/25/02), 829 So.2d 405, 407 (per curiam).

At the habitual offender hearing on remand in this case, the State presented certified documentary evidence of the three guilty pleas alleged as predicates. In his pro se brief, the defendant acknowledges that the State introduced “certain documents.” The record from the remand healing contains copies of the bill of information in all three predicates. The record also contains copies of the minute entries of the guilty pleas in the 1996 and 2000 pleas. The record does not contain a minute entry for the 1990 guilty plea. However, the record of the original habitual offender hearing, of which the trial judge took judicial notice at the remand hearing, contains a copy of the minute entry in the 1990 guilty plea. These documents show that the defendant was represented by counsel at each of the prior guilty pleas. The minutes of each of the pleas show that the defendant was advised of his Boykin rights prior to pleading guilty. At the original habitual offender hearing, the State also introduced expert testimony confirming that the defendant’s fingerprints (taken the day of the hearing) matched the prints in the defendant’s supervision files at the office of Probation and Parole in each of the prior convictions. With this evidence, the State met its initial burden of proof under Shelton.

112Once the State met this burden, the defendant was required to produce some affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the predicate guilty pleas. The defendant offered no affirmative statement or documents to contradict the State’s evidence. Consequently, we find that the trial court correctly adjudicated the defendant to be a fourth-felony offender under LSA-R.S. 15:529.1. This argument lacks merit.

In connection with this assignment of error, the defendant also argues the trial court erred in failing to grant his counsel’s motion for a continuance of the habitual offender hearing. At the habitual offender hearing on remand, after the State introduced its evidence, the defendant advised the court that he no longer wanted to admit any of the allegations in the habitual offender bill of information, and challenged the validity of all three predicates. The defendant then orally moved for a continuance of the hearing to obtain further documentation on the prior convictions. The trial court went on to adjudicate the defendant a habitual offender based on the evidence presented, thereby implicitly denying the motion for a continuance.

Initially, we note that, since the hearing had already commenced, the defendant actually sought a recess, not a continuance. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. LSA-C.Cr.P. art. 708. A motion for a recess is evaluated by the same standards as a motion for a continuance. State v. Brown, 95-0755 (La.App. 1st Cir.6/28/96), 677 So.2d 1057, 1065. The granting or denying of the motion to continue lies within the trial court’s discretion. LSA-C.Cr.P. art. 712. Denial of the motion is grounds for reversal only where defendant shows both abuse of the trial court’s discretion and specific prejudice. State v. Dangerfield, 00-2359 (La.App. 4th Cir.4/3/02), 816 So.2d 885, 893, writ denied, 02-1269 (La.11/22/02), 829 So.2d 1038; See also State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 849.

Herein, the original habitual offender bill of information was filed on May 29, 2008. After this court’s remand, a Supplemental Information to Establish Habitual Offender Status was filed on November 18, 2009. Despite having had well over a year’s notice of the alleged predicates (since the filing of the original habitual offender bill of information), the defendant did not seek to challenge the predicates until the day of the second habitual offender hearing. Under these circumstances, the trial court was well within its discretion in viewing the defendant’s request as a dilatory tactic, and in denying it as such. Moreover, because the defendant could have introduced other evidence, i.e., personal testimony regarding the taking of the prior guilty pleas, which would have shifted the burden back to the State to produce a “perfect transcript,” we find no abuse of discretion in the trial court’s denial of the defendant’s request to recess the hearing already in progress. There is no specific showing that the defendant was prejudiced. This argument lacks merit.

Finally, the defendant argues the trial court erred in failing to conduct a new habitual offender hearing on remand. The record and the defendant’s own pro se brief (wherein he argues the trial court erred in failing to continue the habitual offender hearing) show that this claim is clearly meritless. On December 7, 2009, a habitual offender hearing was held. The State introduced evidence (which included a copy of the transcript of the prior hearing) and counsel made argument to the court. Thereafter, the court rendered its ruling. This argument also lacks merit.

I uPRO SE ASSIGNMENT OF ERROR SIX IMPOSITION OF A VINDICTIVE SENTENCE

In his final pro se assignment of error, the defendant argues that the life imprisonment sentence was a result of vindictiveness by the trial court to punish him for exercising his right to trial instead of accepting the plea bargain. The record reflects that prior to trial the defendant was offered a sentence of thirty years imprisonment. The trial court advised the defendant that if he was tried and convicted, the state intended to file a habitual offender bill of information seeking to have him adjudicated and sentenced as a fourth-felony habitual offender, thereby exposing him to a possible penalty of life imprisonment. The defendant rejected the offer. The defendant now argues that the life sentence imposed following his conviction was obviously designed to punish him for rejecting the plea offer and exercising his constitutional right to trial.

If a trial judge has agreed to impose a particular sentence pursuant to a plea bargain, this does not restrict him from imposing a more severe sentence if the defendant elects to go to trial and is convicted. The sentencing judge must nonetheless comply with constitutional standards, and the sentence should not be increased due to vindictiveness arising from the exercise of the defendant’s right to stand trial. See State v. Frank, 344 So.2d 1039, 1045 (La.1977). However, as the Louisiana Supreme Court has recognized, “[a] judge’s disposition to impose a lenient sentence during plea discussions should not be understood as setting a limit for the justifiable sentence under accepted principles of criminal justice. The better view ... is that the plea proposal is a concession from the greatest justifiable sentence, the concession being made because of circumstances surrounding the plea.” State v. Frank, 344 So.2d at 1045.

In Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978), the U.S. Supreme Court stated:

|1fiTo punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. [Citations omitted.]

The defendant herein chose not to accept the plea bargain offered by the state, thereby taking the risk of a greater penalty upon conviction by a jury. There is nothing in the record to show that the defendant’s sentence is the product of vindictiveness by the trial judge. As previously noted, the sentence is not constitutionally excessive, and it is adequately supported by the record. This assignment of error lacks merit.

REVIEW FOR ERROR

The defendant asks that this court examine the record for error under LSA-C.Cr.P. art. 920(2). This court routinely reviews the record for such error, whether or not such a request is made by a defendant. Under Article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 05-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 07-0130 (La.2/22/08), 976 So.2d 1277.

|1fiFor the reasons set forth above, we affirm the defendant’s conviction, habitual offender adjudication, and sentence.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      . The defendant’s habitual offender status is based upon a February 23, 1990, guilty plea to possession of cocaine (19th Judicial District Court Docket number 01-90-0800); a October 21, 1996, guilty plea to conspiracy to possess with intent to distribute cocaine (19th Judicial District Court docket number 06-96-0591); and a March 15, 2001, guilty plea to possession of cocaine (19th Judicial District Court docket number 09-00-0730). (R. p. 48).

      . The defendant’s pro se motion for post-verdict judgment of acquittal was denied after the habitual offender adjudication, sentencing, and the perfecting of the appeal.

      . Defendant's counsel previously filed a written response to the habitual offender bill of information admitting the 1996 and 2001 predicate guilty pleas.