author: AMY, Judge.

text:
    Kalvin TURNAGE v. WILSON TASK FORCE, LLC, et al.
    No. 10-541.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Michael S. Coyle, Ruston, LA, for Third Party Appellants, Multi-Task, LLC Stone-trust Commercial Insurance Company.
    Louis Wellan, Alexandria, LA, for Plain-tifi/Appellee, Kalvin Turnage.
    Tawni Cooper-Smith, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Baton Rouge, LA, for Third Party Appellee, Louisiana Workers’ Compensation Corporation.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   AMY, Judge.

|, The claimant sought workers’ compensation benefits against his employer and his statutory employer. The statutory employer filed a third party demand against the employer’s purported workers’ compensation insurer, seeking reimbursement and indemnification. The workers’ compensation insurer sought dismissal through summary judgment, alleging that it was not the employer’s insurer. The trial court granted the summary judgment. The statutory employer appeals. We affirm.

Factual and Procedural Background

Kalvin Turnage filed a disputed claim form alleging work-related injury while employed as a laborer for Wilson Task Force, LLC (Wilson) and Multi-Task, LLC (Multi-Task). Multi-Task responded by filing a cross claim against Wilson, asserting that this latter entity was the claimant’s immediate employer and that, in the event Multi-Task was cast in judgment, the cross claim should be entered against Wilson for the same amount.

Thereafter, Multi-Task filed a third party demand, naming Louisiana Workers’ Compensation Corporation (LWCC) as a third party defendant. It alleged that, although LWCC never issued a workers’ compensation policy to Wilson Task Force, LLC, it twice issued certificates of liability coverage certifying workers’ compensation coverage for the period beginning February 3, 2006 through February 3, 2007. Multi-Task contends that LWCC did so through its purported agent, Central Insurers of Louisiana, Inc. (Central Insurers). Multi-Task asserted that Central Insurers issued these certificates on September 3 and September 5, 2006, before the claimant’s September 19, 2006 accident. Despite a policy never having been issued, Multi-Task contended that LWCC “is bound by the Certificate and representations made by its representative, Central Insurers, Inc. to Multi-Task, L.L.C. that such coverage did exist, and for that reason, is bound by the representation of its Agent.” | JR its answer, LWCC disputed whether it had supplied Central Insurers or its president, Kimberly DeSoto, with binding authority.

As evidenced by a motion and order of partial dismissal in the record, Multi-Task eventually agreed to provide the claimant with indemnity benefits. Multi-Task reserved the right to pursue recovery from Wilson and LWCC. In return, the claimant agreed to dismiss his claim against MultiTask and its insurer, Stonetrust Commercial Insurance Company (Stonetrust). The claimant further reserved his right to proceed against Wilson and LWCC.

Subsequently, in a pre-trial memorandum and in a later-filed motion to dismiss, LWCC sought dismissal of the third party demand through a summary judgment. It asserted that there was insufficient evidence that Central Insurers was its agent. LWCC argued, instead, that Central Insurers was operating as an independent insurance broker and, therefore, Central Insurers’ negligence in issuing certificates of insurance would not be imputable to LWCC. Alternatively, LWCC argued that even if Central Insurers was found to be an agent, Multi-Task could not establish detrimental reliance on the certificates where no policy was ever issued in connection therewith.

Following a hearing, the workers’ compensation judge granted summary judgment in favor of LWCC, dismissing the claims against LWCC. Multi-Task |sappeals, assigning the following as error:

1) The [workers’ compensation judge] committed error when it found that Kimberly DeSoto told Sandra Holl-ingsworth, prior to Turnage’s accident, that Wilson Task Force did not have Worker’s Compensation insurance.
2) The [workers’ compensation judge] committed error when it failed to find that Central Insurers had actual authority as the Agent of LWCC to issue Certificates of Insurance on behalf of LWCC.

Discussion

Multi-Task argues that genuine issues of material fact exist with regard to the actions of Kimberly DeSoto, owner of Central Insurers, and whether her office issued certificates of insurance evidencing workers’ compensation coverage. It also contests the workers’ compensation judge’s determination that Ms. DeSoto informed Multi-Task prior to the accident that no workers’ compensation policy had been issued. Instead, it contends that Ms. DeSoto likely had this conversation after the injury at issue.

Louisiana Code of Civil Procedure Article 966(B) provides that a trial court shall enter summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Paragraph (C)(2) further provides that:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, actions, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary |4burden of proof at trial, there is no genuine issue of material fact.

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed de novo under the same criteria that governed the trial court’s determination. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627.

Having conducted a de novo review, we find that LWCC, as the moving party, satisfied its initial burden of pointing out that there is an absence of factual support for at least one of the elements essential to Multi-Task’s claim. Thereafter, MultiTask, as the party with the burden of proof, failed to “produce factual support sufficient to establish that [it] will be able to satisfy [its] evidentiary burden of proof at trial” pursuant to La.Code Civ.P. art. 966(C)(2). Accordingly, the trial court correctly determined that there is no genuine issue of material fact.

Multi-Task claims that LWCC, acting through its purported agent, issued certificates of insurance to Wilson and on which Multi-Task relied to its detriment. MultiTask directs this court to La.Civ.Code art. 3020, which provides that: “The principal is bound to perform the contract that the mandatary, acting within the limits of his authority, makes with a third person.” Multi-Task makes much of the alleged principal/mandatary relationship between LWCC and Central Insurers. However, even if this court were to find that genuine issues of material fact existed in regard to this element of its claim, it would not end the inquiry.

While it is unquestioned that LWCC did not issue a workers’ compensation policy nor were any payments made in this regard, Multi-Task alleges that it relied, to its detriment, on certificates of insurance it asserts were produced by Central Insurers. However, Multi-Task does not produce sufficient evidence regarding any reliance on those certificates, much less whether any reliance was reasonable.

IsLWCC presented the deposition of Ms. DeSoto, the owner of Central Insurers, who explained that Wilson sought insurance quotes for a variety of coverages, but that Mr. Wilson explained that it did not need workers’ compensation insurance because that coverage was provided “through a partnership with Multi-Task.” She explained that one of the certificates of insurance produced at the deposition was a “prospect” certificate used only for the purpose of obtaining a quote. She did not know how Multi-Task would have received such a certificate, because this “prospect” certificate would not have been sent from her office. She confirmed, however, that Multi-Task was in possession of the certificate at some point as Sandra Hollings-worth contacted her regarding whether there was coverage and that Ms. Hollings-worth faxed her the certificate at issue. Ms. DeSoto confirmed that the policy had never been issued. It is unclear from the deposition whether this conversation occurred before or after the accident. LWCC also presented the deposition of its representative, Sally Nesmith, who confirmed that no policy had been issued by it to Wilson. From this evidence it is apparent that Multi-Task had possession of a “prospect” certificate of insurance and that it was issued, perhaps, in error by Central Insurers. Through the testimony of its representative, LWCC also presented evidence showing that it did not issue a policy related to the certificate.

However, Multi-Task did not present further evidence to demonstrate that it would be able to establish the elements of its claim at trial. Strikingly absent from the record is the certificate(s) allegedly in Multi-Task’s possession. Neither is there evidence regarding Multi-Task’s possession of that certificate, its reliance on that | (¡certificate, or any indication that such reliance was reasonable. There is even less evidence and testimony regarding the second certificate of insurance purportedly produced. An assertion in a pleading that Multi-Task relied on such a certificate pri- or to the work-related accident is merely that, i.e., an assertion. It is not “factual support sufficient to establish that [it] will be able to satisfy [its] evidentiary burden of proof at trial[.]” La.Code Civ.P. art. 966(C)(2). Given this absence in the record, and although there may be genuine issues of material fact regarding the principal / mandatary relationship, Multi-Task has failed to produce genuine issues of material fact regarding its reliance on the certificate.

This argument lacks merit.

DECREE

For the foregoing reasons, the trial court’s granting of the motion for summary judgment is affirmed. All costs of this proceeding are assessed to the appellant, Multi-Task, LLC.

AFFIRMED.

      . Although filings in the record refer to Stone-trust as a defendant and, in fact, it appears before this court as an appellant, the record does not contain a pleading naming it as such.

      . In reasons for ruling, the workers' compensation judge stated, in part, that:
      The simple matter of fact is that there was never an application by Wilson's Task Force, never a payment of premium by Wilson's Task Force. I also note from the pleadings on file, Wilson’s Task Force, itself, has never sued the Louisiana Workers' Compensation Corporation, seeking to have coverage for the claims of Kalvin Turnage. Instead, Wilson's Task Force at one point in time in this Court attempted to sue the insurance agency and Kimberly DeSoto, and that was dismissed for lack of subject matter jurisdiction. There is no genuine issue of material fact and that there was never an application, never a premium paid, and whether Ms. DeSoto was an agent or not, clearly Multi Task was informed prior to the date of Mr. Turnage’s injury that Wilson’s Task Force had no workers' compensation insurance coverage with any insurance company whatsoever.

      . We note here that our review is de novo, therefore, we do not consider Multi-Task’s assertion that the workers' compensation judge erroneously determined that Ms. DeSo-to informed Multi-Task before the accident that there was no workers’ compensation policy. It instead points to another portion of Ms. DeSoto's testimony indicating that the accident had occurred at the time of the conversation. Any determination made by the workers’ compensation judge is of no moment due to the de novo standard of review.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Samantha L. TANKERSLEY v. Derek J. KOZIELSKI.
    No. CA 10-540.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Eugene Paul Cicardo, Jr., Alexandria, LA, for Defendant/Appellant, Derek J. Ko-zielski.
    W. Jay Luneau, Luneau Law Office, Alexandria, LA, for Plaintiff/Appellee, Samantha L. Tankersley.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   EZELL, Judge.

|, Derek Kozielski appeals a trial court judgment complaining about the amount of child support he was ordered to pay. Mr. Kozielski asserts the trial court committed several errors in its determination that he owed $900.00 per month as child support.

1 ¡..FACTS

Derek Kozielski and Samantha Tankers-ley are the parents of a daughter who was born on June 22, 2004. In November 2004, a stipulated custody plan and child support judgment was entered. In 2005 the parties moved in together, at which time they stipulated that child support would cease and they would share custody of the child. After several months of living together, the mother and child moved out and requested a new child custody order and child support. This motion was dismissed pursuant to Ms. Tankersley’s request.

In July 2008, Mr. Kozielski filed a rule for sole custody and restricted visitation. In November 2008, Ms. Tankersley followed with a rule for change of custody and child support. On November 24, 2008, an order was entered continuing Ms. Tankersley’s rule and ordering Mr. Koziel-ski to pay $500.00 a month in interim child support.

A hearing was held on May 11 and 18, 2009. Again the rules filed by both parties were continued. At that time, Mr. Koziel-ski was ordered to pay $500.00 a month as interim child support in addition to the child’s health insurance. Joint custody of the child was ordered, with parties alternating each week of custody. Judgment was signed on July 20, 2009.

At the request of Mr. Kozielski, the hearing on the parties’ rules was continued twice. After considering memoranda and respective child support worksheets presented to the trial court by each of the parties, the court set child support in the amount of $900.00 a month. Judgment was signed January 5, 2010.

On January 11, 2010, Mr. Kozielski filed a motion for new trial. Mr. Kozielski argued that the child support determination was based on worksheets and pay 1 ^information that was submitted to the trial court but not entered into the record. Mr. Kozielski also argued that a hearing was held on December 29, 2009, placing the child in his sole custody and issuing a protective order prohibiting Ms. Tankers-ley from having any contact with the child unless it was supervised. He argues that his child support obligation should have been suspended at that time.

A hearing on the motion for new trial was held on February 22, 2010. Upon denial of his motion for new trial, Mr. Kozielski filed the present appeal.

DISCUSSION

Mr. Kozielski appeals the tidal court’s determination of child support claiming the trial court erred in using Worksheet A instead of Worksheet B, in the calculation of his annual salary, and in not terminating child support once he was given custody pursuant to a protective order. The evidence that Mr. Kozielski relies on to support his claims was introduced as a proffer at the hearing on the motion for new trial.

At the hearing on the motion for new trial, counsel for Mr. Kozielski admitted he wanted to introduce evidence that was not in the record because the trial court had ruled on the issue of child support based on briefs that were submitted to the court without a hearing. Mr. Kozielski also wanted to introduce evidence of W-2s and worksheets based on those W-2s, which he argued was new evidence obtained after the submission of the briefs.

Apparently, after several continuances had been granted in the case on the issue of child support, the trial court asked the parties to submit briefs on the issue. No hearing on the matter was held. As a result, no evidence was placed on record.

Louisiana Code of Civil Procedure Article 1972 provides that a new trial shall be granted when the party has discovered evidence since the trial which he could not have obtained before the trial. Clearly, the evidence that Mr. Kozielski sought to Lintroduce was utilized by the trial court in its determination of child support and was available at the time of the trial court’s determination. More importantly, there was never a proceeding at which the evidence could have been introduced into the record in the first place.

In Barton v. Barton, 05-1190 (La.App. 1 Cir. 6/9/06), 938 So.2d 779, the first circuit reviewed a child support case in which the transcript showed that the evidence relied on by the trial court had not been placed on the record. Recognizing that an appellate court cannot review evidence not in the record on appeal and cannot receive new evidence, the first circuit determined that a remand was necessary pursuant to La.Code Civ.P. art. 2164.

In Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, the fifth circuit also recognized that evidence that is not properly introduced at trial cannot be considered even if it is physically placed in the record. The court held that the trial court’s ruling was improper because there was not a proper foundation for the judgment. See also Jackson v. United States Auto. Ass’n Cas. Ins. Co., 08-333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512.

We are faced with a case in which no evidence has been formally introduced in the trial court because there was never a proceeding at which the evidence could be introduced. A motion for new trial assumes that there has been a trial in the first case at which evidence was received. It cannot be used to introduce evidence that was not properly received into the record. Furthermore, Mr. Kozielski attempts to introduce evidence he argues is new because it was not available at trial. Ms. Tankersley has argued that this evidence was determinable at the time the briefs were submitted to the trial court. Even if a motion for new trial was proper in this case, the evidence may have been discoverable before trial. Under the circumstances presented by this case, |5we find the proper procedure to follow is to remand the case for a proper hearing and introduction of evidence.

For these reasons, we vacate the judgment of the trial court and remand for the purpose of an evidentiary hearing to provide a basis for a determination of child support. Costs of this appe'al are to be split equally between Derek Kozielski and Samantha Tankersley.

JUDGMENT VACATED AND CASE REMANDED.


author: COOKS, J.

text:
    Ray BIAS v. SCOTTSDALE INSURANCE CO., et al.
    No. 10-378.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2010.

      Donald L. Mayeux, Eunice, LA, Attorney For Plaintiff/Appellant Ray Bias.
    Galloway, Johnson, Tompkins, Burr & Smith, Mark R. Pharr, III, Jason E. Wilson, Lafayette, LA, Attorneys For Defendants/Appellees Scottsdale Ins. Co. and David Courville d/b/a David & Lori’s Kitchen.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH PICKETT, Judges.
   COOKS, J.

JjFACTS AND PROCEDURAL HISTORY

Ray Bias (Plaintiff) filed suit alleging he was injured when he fell in a parking lot owned by David Courville d/b/a David & Lori’s Kitchen (Defendant) in Mamou, Louisiana. The business is insured by Scottsdale Insurance Company, (Scottsdale) also a named defendant in the suit. Plaintiff alleges he injured his knees when he slipped and fell on loose pea gravel which was present on the cement surface outside the order window of Defendant’s restaurant. He admits he walked across a gravel parking lot to get to the cement area where he fell but alleges he was looking up at the order board and did not notice the ten to twenty pieces of pea gravel on the cement. He admits he visited the restaurant approximately twenty times before the date of the alleged incident, but alleges he had not visited the restaurant for some time prior to that date.

Defendant and Scottsdale filed a motion for summary judgment originally set for hearing on August 18, 2009. The trial court requested Plaintiff conduct additional discovery and gave him an additional thirty days to conduct more discovery. The hearing on the defendants’ motion for summary judgment was set for and heard on December 18, 2009, approximately one hundred and twenty days after the originally scheduled hearing. Plaintiff offered no expert evidence at the motion to establish that the presence of ten to twenty pieces of pea gravel on the cement area created an unreasonably dangerous condition. The trial court granted the defendants’ motion for summary judgment dismissing all of Plaintiffs claims with prejudice. Plaintiff appeals alleging one assignment of error, to wit, that there are genuine issues of material fact as to whether the loose gravel on the cement surface created an unreasonable risk of harm.

| .ANALYSIS

We review motions for summary judgment de novo. See Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article 966(B) provides, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Louisiana Code of Civil Procedure, Article 966(C)(2) sets forth the burden of proof as follows:

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

The trial court instructed Plaintiff to conduct additional discovery and allowed Plaintiff ample time to do so prior to the hearing on the motion for summary judgment. Nevertheless, Plaintiff failed to produce any evidence at the hearing to establish that the presence of ten to twenty pieces of pea gravel on Defendant’s concrete area presented an unreasonably dangerous condition. Plaintiff relied solely on his opinion for proof of his allegation. The trial court properly dismissed Plaintiffs action finding Plaintiff presented no evidence to show there is a genuine issue of material fact in dispute as to whether an unreasonably dangerous condition existed on Defendant’s premises. For the following reasons we affirm the trial court’s ruling.

The Louisiana Civil Code, Articles 2317 and 2317.1, set forth the responsibility for acts which cause damage to another and the requirements for ^establishing liability-

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La.C.C. art. 2317.

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of such reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La.C.C. art. 2317.1.

In Davis v. American Legion Hospital, 06-608, p. 3 (La.App. 3 Cir. 11/2/06), 941 So.2d 712, 714 we held that under the provisions of Articles 2317 and 2317.1:

[I]n order to recover for damages, a plaintiff must prove: (1) the thing was in defendant’s custody and control; (2) the thing contained a defect which presented an unreasonable risk of harm to others; and (3) the defendant knew or should have known of the defect. Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 05-1285, p. 5 (La.App. 3 Cir. 4/12/06), 928 So.2d 703, 705-6 (emphasis added). The claim must fail if the plaintiff fails to prove any one of these elements. Littelfield v. Iberia Bank, 04-1334 (La.App. 5 Cir. 3/15/05), 900 So.2d 925, writ denied, 05-876 (La.5/13/05), 902 So.2d 1032.
Furthermore, not every minor imperfection or irregularity will give rise to ... liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Amest v. City of Breaux Bridge, 01-1034, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 582, 584-85 (quoting LeJeune v. Riviana Foods, 97-1091, p. 3 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1040, writ denied, 98-749 (La.5/1/98), 718 So.2d 418).

The record contains no evidence to support Plaintiffs opinion that the presence of ten to twenty pieces of pea-sized gravel on Defendant’s cement pad created an unreasonably dangerous condition. We also note Plaintiff testified that he was not exercising ordinary care when he stepped onto the cement area. He admitted he had Rvisited this establishment at least twenty times in the past, and that he walked across the graveled parking area to approach the cement area in front of the window where patron’s place their orders. According to Plaintiff, he was not paying attention to the surface on which he was walking but was looking up at the order board. Be that as it may, Plaintiff offered no evidence to establish that the presence of the pieces of pea-sized gravel on the cement area presented an unreasonable risk of harm to patrons. It was incumbent on Plaintiff to do so in order to survive summary judgment. Further, as we held in Amest v. City of Breaux Bridge, 01-1034, p. 2, (La.App. 3 Cir. 12/12/01), 801 So.2d 582, 584-85:

Property owners are not insurers of the safety of visitors, but only owe a duty to keep their premises in a safe condition for use in a manner consistent with the purposes for which the premises are intended. David v. Reon, 520 So.2d 820 (La.App. 3 Cir.1987), unit denied, 522 So.2d 564 (La.1988). Furthermore, not every minor imperfection or irregularity will give rise to strict liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Koppie v. Commercial Union Insurance Company, 478 So.2d 179 (La.App. 3 Cir.), writ denied, 479 So.2d 922 (La.1985). In other words, the owner of the premises cannot be held responsible for any risk posed by his property, only those presenting an unreasonable risk of harm to others. David, 520 So.2d 820. In determining whether a given condition is unreasonably dangerous, the degree to which the danger may be observed by a potential victim who may then provide self-protection is a major factor. Silliker, 520 So.2d 880.

Plaintiff did not present any evidence to support his allegation that the presence of ten to twenty pieces of pea-sized gravel on a cement pad would reasonably be expected to cause a person, exercising ordinary care, to slip and fall. The judgment of the trial court is affirmed with costs of this appeal assessed against Plaintiff.

AFFIRMED.


author: PETERS, J. GREMILLION, Judge,

text:
    Margie McGLOTHLIN, et al. v. CHRISTUS ST. PATRICK HOSPITAL.
    No. 10-0278.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 2010.

      Kenneth Michael Wright, Attorney at Law, Lake Charles, LA, Vincent J. DeSal-vo, Attorney at Law, Baton Rouge, LA, For Plaintiffs/Appellants, Margie McGloth-lin, John McGlothlin.
    Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, Christus St. Patrick Hospital.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

| ,The plaintiffs in this medical malpractice case, Margie McGlothlin and her husband, John McGlothlin, appeal a jury verdict rejecting their claims for damages asserted against the defendant, Christus St. Patrick Hospital. For the following reasons, we reverse the trial court judgment and render judgment in favor of the McGlothlins.

DISCUSSION OF THE RECORD

This litigation has as its origin complications arising from a bilateral total knee replacement surgery that was performed by Dr. Lynn Edward Foret, a Lake Charles, Louisiana, orthopaedic surgeon, at Christus St. Patrick Hospital in Lake Charles on May 17, 1999. Dr. Foret had begun treating Mrs. McGlothlin for osteoarthritis in both knees in 1991 and, after conservative treatment proved unsuccessful, he recommended that both knees be replaced.

The surgery was successful, and Mrs. McGlothlin’s initial recovery uneventful. Three days after surgery, Dr. Foret issued orders transferring Mrs. McGlothlin from the main hospital to its rehabilitation section. While in the rehabilitation section, Mrs. McGlothlin sustained a dislocation of her left kneecap. Thereafter, she underwent significant medical treatment to address the dislocation and complications arising therefrom. The specific cause of the dislocation of the kneecap is the underlying issue in this litigation.

The McGlothlins first submitted their claims for damages to a medical review panel empaneled pursuant to La.R.S. 40:1299.47, and, in a June 13, 2005 opinion, the panel rejected their claims. The instant suit followed the release of that opinion, and in their pleadings, the McGlothlins assert two separate events that they claim were the cause of the dislocation Mrs. McGlothlin suffered.

| gThe McGlothlins assert that the first event occurred on May 20, 1999, during Mrs. McGlothlin’s move from the main hospital to the rehabilitation section. They claim that when the nurse assistant attempted to transfer Mrs. McGlothlin from her wheelchair to her bed, she “half-dropped” her, injuring her left knee. The second event giving rise to this litigation is purported to have occurred on May 28, 1999, as another nursing assistant helped Mrs. McGlothlin transfer from her wheelchair to a toilet with a seat riser. They assert that during the transfer process, Mrs. McGlothlin fell to the bathroom floor and injured her left knee. In both events, the McGlothlins assert that the nurse assistant attempted to transfer Mrs. McGlothlin without the assistance of anyone else. Mrs. McGlothlin claims these events caused the dislocation.

It is not disputed that Mrs. McGlothlin sustained a kneecap dislocation while under the care, custody, and control of the hospital; she was under the hospital’s care, custody, and control at the time both instances are alleged to have occurred; the nurse assistants involved in the alleged transfers were employees of Christus St. Patrick Hospital; and the standard of care applicable to the movement of a double knee replacement patient from a wheelchair to a bed or toilet requires the coordination of that effort with more than one trained individual. By way of defense, however, the hospital denied that either of the two events occurred as alleged by the McGlothlins and suggested that the dislocated kneecap resulted from physical therapy, not a violation of the applicable standard of care in moving a patient from a wheelchair to a bed or toilet.

|sThe three-day jury trial on the merits began on June 16, 2009, and resulted in a verdict in favor of Christus St. Patrick Hospital. After the trial court entered a judgment in accordance with the jury verdict, the McGlothlins perfected this appeal, asserting four assignments of error:

1.The Medical Review Panel is inadmissible in evidence and the District Court erred in editing the Panel opinion and admitting the edited Panel opinion in evidence.
2. The District Court erred in prohibiting cross-examination of defense expert, Dr. Lee Leonard, on the issue of the Medical Review Panel’s determination of credibility.
3. A reasonable factual basis does not exist for the jury’s finding of no liability.
4. What quantum of damages will adequately compensate Margie McGlothlin for her injuries?

OPINION

Assignment of Error Number One

In their first assignment of error, the McGlothlins argue that the trial court erred in admitting an edited version of the medical review panel opinion into evidence and that this error requires this court to undergo a de novo review of the jury’s decision. We agree.

This issue arose because, on the second day of trial, the McGlothlins filed a motion in limine seeking to prohibit the introduction of the medical review panel opinion. In their motion, they argued that the panel’s opinion was based on its determination of a material issue of fact, not requiring an expert opinion, which violates its statutory mandate as provided in La.R.S. 40:1299.47(G). The trial court agreed that the medical review panel had overstepped its statutory authority, but | ¿instead of rejecting the opinion in its entirety, attempted to delete certain language in the opinion to cure the admissibility problem created by the statutory violation.

Louisiana Revised Statutes 40:1299(H) provides in part that “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” (Emphasis added.) However, with regard to what the medical review panel’s opinion should address, La.R.S. 40:1299.47(G) provides:

The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(4) When Paragraph (1) of this subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

(Emphasis added.)

In its June 13, 2005 opinion, the medical review panel unanimously concluded that “[t]he evidence does not support the conclusion that the defendant, Christus St. Patrick Hospital, failed to comply with the appropriate standard of care as charged Ifin the complaint.” It then followed this conclusion with written reasons supporting this conclusion that state as follows:

The post-surgery patella dislocation and infection are known complications of this procedure, and could have occurred without any negligence on the part of the hospital. The patient and her family allege that two incidents occurred involving hospital staff that caused a twisting injury and an acute flexation injury, damaging the total knee arthroplasty, resulting in a dislocated patella. However, the LPN alleged to be involved in the initial incident on May 20, 1999, upon admit to the rehab unit, emphatically denies that any incident occurred; the alleged incident was not documented in the hospital records at the time of the occurrence; no contemporaneous Incident Report was filed; the patient did not report the incident to the P.A. the following morning; and the patient attended physical therapy for several days thereafter with progress being noted. On May 28, 1999, an x-ray was ordered which showed lateral displacement of the left kneecap, possibly due to rotation or true lateral displacement, but the patient and her family allege that the second incident occurred in the bathroom oh May 29, 1999, a day later. Once again, the CNA alleged to be involved in the second incident emphatically denies that any incident occurred, the alleged incident was not documented in the hospital records at the time of occurrence, and no contemporaneous Incident Report was filed. The follow-up x-rays of May 31, 1999, and June 1, 1999, do indicate that lateral displacement was occurring, but we feel that the versions of both of the incidents, by the patient and her family, appear to have numerous inconsistencies.

(Emphasis added.)

On the surface, this opinion seems to comply with the statutory mandate of La.R.S. 40:1299.47(G) in that it reaches the conclusion provided for in La.R.S. 40:1299.47(G) (2) and provides written reasons. However, a closer examination of the written reasons leads to only one conclusion — that the medical review panel reached its opinion only by resolving material issues of fact which did not require an expert opinion. Simply stated, a medical review panel cannot return a conclusion on the breach of standard of care issue provided for by either La.R.S. 40:1299.47(G)(1) or (G)(2) if unresolved material issues of fact exist on that issue that do not require | fian expert opinion for resolution and that bear on the question of liability. Whittington v. Savoy, 05-1169 (La.App. 3 Cir. 5/31/06), 931 So.2d 1198.

In the matter now before us, the medical review panel found no violation of the applicable standard of care without even stating what that standard of care is. Instead, the panel’s written reasons addressed only the factual conflicts raised by the information before it. Furthermore, as was established by the testimony of Glenda Joiner Rogers, a Georgetown, Texas registered nurse and clinical nurse specialist who teaches nursing at the University of Texas, the applicable standard of care was hardly an issue. According to Ms. Rogers, the standard of care applicable to the transfer from wheelchair to either bed or toilet of a patient weighing almost 300 pounds required that there be two people assisting in the transfer with the use of a “gait belt” around the patient’s waist. Not only did Christus St. Patrick Hospital not dispute this standard as being applicable to this litigation, but its witnesses agreed with Ms. Rogers’ assessment.

This court in Whittington, 931 So.2d 1198, held that the statutory authority of La.R.S. 40:1299.47(H), which allows the admissibility of the medical review panel 17opinion, “presupposes the validity of the opinion itself.” Whittington, 931 So.2d at 1201. In a situation almost identical to the one now before us, the Whittington court concluded that an opinion rendered on the merits in violation of La.R.S. 40:1299.47(G) was not admissible. We agree with that rationale and find that the medical review panel opinion in the matter before us was not admissible into evidence. Furthermore, we find that the trial court did not cure the admissibility problem by deleting certain language from the opinion.

Specifically, the trial court deleted the medical review panel’s conclusion as well as part of the last sentence, which states “but we feel that the versions of both of the incidents by the patient and her family appear to have numerous inconsistencies.” However, a clear reading of what remains of the medical review panel’s opinion establishes to the reader that the underlying dispute was factual and not legal.

The error is made more grievous because of the testimony on behalf of the hospital by Dr. Lee Leonard, a Lafayette, Louisiana orthopedic surgeon who served as a member of the medical review panel. In ruling that portions of the medical review panel’s opinion were not admissible, the trial court also ruled that Dr. Leonard would not be allowed to state what the panel’s conclusion was. However, Dr. Leonard made it clear in his testimony that his opinion and that of the panel were based on factual findings. Although Dr. Leonard testified that it was his opinion that there was no evidence of a breach in the standard of care on the part of the hospital, Dr. Leonard never stated what the applicable standard of care was. He testified that a patella dislocation could occur during rehabilitation, without there being any fault | son the part of the hospital employees, and that he did not find any evidence of anyone’s fault in causing the patella dislocation. Thus, despite the trial court’s attempt to redact the offensive language to cure the medical review panel’s violation of its statutory mandate, the jury became fully informed concerning how the panel’s opinion was reached and that it had found Christus St. Patrick Hospital did not violate the standard of care.

Having found that the trial court erred in allowing the jury to consider a redacted version of the medical review panel’s opinion, we must next consider the effect of that error on our scope of review. The general rule is that whether a health care provider’s conduct falls below the applicable standard of care is a factual determination that is subject to the manifest error standard of review. Curtis v. Columbia Doctors' Hosp. of Opelousas, 03-916 (La.App. 3 Cir. 12/17/03), 862 So.2d 1125. However, “[w]hen the jury is tainted by incorrect and prejudicial instructions or rulings on admissibility of evidence in a tort case, the jury’s liability decision is not entitled to any deference, and the appellate court decides the case on the record without according any weight to the jury’s liability decision.” Andrus v. State Farm Mut. Auto. Ins. Co., 95-801, p. 10 (La.3/22/96), 670 So.2d 1206, 1211. Legal errors are considered prejudicial when they materially affect the outcome of the litigation. Lanningham v. Walton, 06-1103 (La.App. 3 Cir. 2/7/07), 950 So.2d 922. When such an error occurs, the appellate court will, if possible, apply the correct principles of law, determine the material facts, and render a proper judgment on the record. Id. In this.case, we find that the trial court’s erroneous admission of the medical review panel’s redacted opinion and Dr. Leonard’s direct testimony concerning the inner workings of the panel tainted the integrity of the trial, and accordingly we will review |gthe record de novo. Ernst v. Taylor, 08-1289 (La.App. 3 Cir. 5/6/09), 17 So.3d 981, writ denied, 09-1262 (La.9/18/09), 17 So.3d 977.

Assignment of Error Number Two

Because we find that the trial court erred in admitting the medical review panel’s opinion, we need not address the McGlothlins’ second assignment of error.

Assignment of Error Number Three

In their third assignment of error, the McGlothlins seek reversal of the jury’s judgment that Christus St. Patrick Hospital was not hable for their injuries. Based on our de novo review, we find merit in this assignment of error.

The McGlothlins’ allegations of liability on the part of Christus St. Patrick Hospital are based on their claims of negligence by two of the hospital’s certified nurse assistants. It is well established that under the doctrine of respondeat superior a hospital can be liable for the negligence of its employees. Odom v. State Dep’t of Health and Hosps., 98-1590 (La.App. 3 Cir. 3/24/99), 733 So.2d 91; Little v. Pou, 42,872 (La.App. 2 Cir. 1/30/08), 975 So.2d 666, unit denied, 08-806 (La.6/6/08), 983 So.2d 920. To meet their burden of proving medical malpractice by a nurse, the plaintiffs must prove the applicable standard of care, that the nurse breached that standard, and that the substandard care caused an injury that the plaintiffs would not have otherwise suffered. La.R.S. 9:2794; Donaldson v. Sanders, 94-1366 (LaApp. 3 Cir. 7/19/95), 661 So.2d 1010, unit granted, 95-2940 (La.2/28/96), 668 So.2d 363. A nurse’s duty is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of the nursing profession in good standing in the same community or location, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. Odom, 733 So.2d 91.

| mAs previously stated, Ms. Rogers established the proper standard of care applicable to this litigation: The transfer from wheelchair to either bed or toilet of a bilateral knee replacement patient weighing almost 300 pounds requires at least two people assisting in the transfer together with the use of a gait belt. Whether the hospital employees breached that standard of care, and whether that breach caused Mrs. McGlothlin’s dislocated kneecap are questions of fact. Hypolite v. Columbia Dauterive Hasp., 07-357 (La.App. 3 Cir. 10/3/07), 968 So.2d 239; and see Sepulvado v. Toledo Nursing Center, Inc., 07-122 (La.App. 3 Cir. 5/30/07), 958 So.2d 135, writ denied, 07-1583 (La.10/12/07), 965 So.2d 406; and Squyres v. Our Lady of Lourdes Reg’l Med. Ctr., Inc., 06-1517 (La.App. 3 Cir. 4/4/07), 954 So.2d 897. As the McGlothlins assert two events gave rise to Mrs. McGlothlin’s injuries, we will consider them separately.

May 20, 1999 Incident

The factual record establishes that Connie George, a certified nurse assistant, moved Mrs. McGlothlin by wheelchair from the postoperative floor of the hospital to its rehabilitation section on May 20, 1999. Mrs. McGlothlin and three other family member witnesses testified that Ms. George’s hands slipped as she attempted to lift Mrs. McGlothlin from the wheelchair to the bed and that Mrs. McGlothlin almost fell to the floor. Not only did Ms. George dispute the particulars of the transfer, but she ^testified that none of the family members were even present during the transfer. According to Ms. George, she asked Mrs. McGlothlin if she wanted to be transferred to the bed upon their arrival at the rehabilitation section’s room, but Mrs. McGlothlin informed her that she would like to sit up for a while. Ms. George testified that she left Mrs. McGlothlin sitting in the wheelchair and that she had no further contact with the patient.

We need not resolve the factual dispute with regard to this particular incident because, even assuming that the McGlothlins carried their burden of proof on the breach issue, the record does not support a finding of causation. The medical records of the following day reflect that at 7:30 a.m. Mrs. McGlothlin was “awake, alert, and oriented,” with no complaints of discomfort or distress noted, and Mrs. McGlothlin acknowledged in her testimony that between May 21 and May 27,1999, she made positive progress in her recovery. According to Mrs. McGlothlin, after two or three days her left knee started feeling better and, although she continued to use pain medication, she also continued to progress through her rehabilitation. Her rehabilitation records reflect that she seemed to make daily progress.

Finding that the McGlothlins failed to prove the element of causation, we hold they failed to prove their claim for damages arising from the May 20, 1999 incident by a preponderance of the evidence.

May 28, 1999 Incident

The McGlothlins claim that on May 28, 1999, certified nursing assistant Peggy White took Mrs. McGlothlin to a bathroom in the rehabilitation facility and, while transferring Mrs. McGlothlin from her wheelchair to a toilet with a seat riser, allowed 112Mrs. McGlothlin to fall from her wheelchair. According to Mrs. McGloth-lin, the seat riser, which was not properly fastened, gave way, causing her to fall. She claims she suffered immediate and intense pain in her left knee. Dislocation of Mrs. McGlothlin’s left kneecap was confirmed that same day by an x-ray taken at Dr. Foret’s instruction.

Mrs. McGlothlin testified that Ms. White took her in her wheelchair to use the rehabilitation bathroom, placed the wheelchair on the side of the commode, and placed the plastic seat riser onto the commode without latching the riser to the commode. According to Mrs. McGlothlin, Ms. White then stood on one side of her and lifted her up under her left arm, while she (Mrs. McGlothlin) held onto the wheelchair with her other arm. After Ms. White had lifted Mrs. McGlothlin partially up, and Mrs. McGlothlin was beginning to sit on the riser, the riser moved and Mrs. McGlothlin fell. According to Mrs. McGlothlin, her left knee bent as she went to the floor. Mrs. McGlothlin testified that Ms. White assisted her back into the wheelchair, but that her left knee was already swelling and painful. She asked Ms. White to return her to her room. When she returned to her room, Mrs. McGlothlin immediately telephoned both her husband and Dr. Foret to report the fall. According to Mrs. McGlothlin, Dr. Foret came to her room soon thereafter and ordered an x-ray.

Ms. White testified that not only did the bathroom incident not occur, but that there had never been an incident in which Mrs. McGlothlin sustained any injuries while under her care.

Dr. Foret testified that on May 28, 1999, and after receiving a complaint from Mrs. McGlothlin that she had injured her knee in the bathroom, he ordered an x-ray of Mrs. McGlothlin’s left knee. According to Dr. Foret, Mrs. McGlothlin told him | ]Sthat she had been in the bathroom with an aide trying to get her up when her knee went to the side. The x-ray was taken the same day, and a radiologist’s subsequent report revealed that there was a possible lateral patella displacement; that is to say, the kneecap had become displaced.

Dr. Foret testified that a displaced patella is usually caused when the patient’s foot slips to the side and a valgus angle is created, so that the kneecap goes to the outside. According to Dr. Foret, the danger of this kind of injury is one of the reasons that a patient who is recovering from knee replacement surgery is transported by multiple people to try to maintain stability of the knee. The doctor also noted that, in the case of Mrs. McGlothlin, this extra assistance was made even more important by the patient’s obesity. He described the injury to Mrs. McGlothlin’s kneecap as completely consistent with the accident she described to him on May 28, 1999. He noted that while setbacks in rehabilitation occur regularly from knee pain, weakness, or bursitis setting in, “a trauma event is when the kneecap would dislocate.”

The hospital first argues that Mrs. McGlothlin’s kneecap became dislocated as a result of activities during rehabilitation on May 28, 1999, and without any negligence on the part of hospital employees. However, nothing in the medical records suggests that any traumatic event occurred during rehabilitation therapy to injure her knee. On the other hand, Mrs. McGlothlin’s medical records do confirm that something occurred on May 28, 1999, that reversed the rehabilitation progress of the past few days. The occupational therapy assessment for the period of May 27 through June 2, 1999, contained a notation that on May 28, Mrs. McGlothlin was able to stand for five minutes before she began complaints of pain, and that rehabilitation | uactivities had been placed on hold “since problems with knee have risen.” Debra Loftin, a registered nurse who was working as the administrator of the rehabilitation unit in May of 1999, interpreted this report to mean that “the pain was starting to inhibit her mobility ... on rehab,” and that Mrs. McGlothlin’s left knee symptoms took a turn for the worse on Friday, May 28,1999.

Additionally, Ms. Loftin had prepared an incident report on July 14, 1999, that stated:

Patient states that on May 20th, when a nurse aide from Unit 51 brought her down to rehab, she twisted her knee getting into bed. Patient further states that on May 29th, when she was assisted to the toilet in her room, the elevated toilet seat slipped and she twisted her left knee, which was painful.

When asked about the source of this information, Ms. Loftin stated “I would think the patient had already told me and the incident report had not been completed yet; and, so, they had requested that I complete the incident report.”

The hospital also argues that if the incident in the bathroom described by Mrs. McGlothlin did occur, it took place on June 2, 1999, after her kneecap had already been dislocated. The hospital based this argument on three “markers” given by Mrs. McGlothlin’s testimony, which would establish the day the incident in the bathroom took place: crying in bed, calling Dr. Foret, and being given morphine. A note in Mrs. McGlothlin’s medical records shows that on June 2, at 1:45 p.m., she was crying in her room, complaining of pain, and that at 2:00 p.m. Dr. Foret saw Mrs. | lfiMcGlothIin and ordered morphine for her. Ms. Haley testified that the medical records show that June 2 was the first day that Mrs. McGlothlin received morphine while in the rehabilitation unit. However, this analysis ignores the fact that Dr. For-et testified that he received an injury report on May 28; ignores the results of the x-ray taken on May 28; and disregards the fact that Mrs. McGlothlin’s knee was x-rayed on May 28, but not on June 2.

The hospital’s medical records reflect clearly that Mrs. McGlothlin was consistent and immediate in her complaints about her treatment on both May 20 and May 28. The same Debra Loftin who completed the July 14,1999 incident report had made an entry in Mrs. McGlothlin’s records on May 21, 1999, concerning the patient’s complaint involving the transfer the day before. The entry notes that “[pjatient complains. Yesterday when that aide from the other floor brought me down, she twisted my knee getting me into bed.” Mrs. McGlothlin’s complaints also appear in a hospital quality assurance committee variance report dated July 14, 1999. That report contained a notation that “Pt states that on May 20, when a nurse aide from U51 brought her down to rehab, she twisted her knee getting into bed. Pt further states that on May 29 when she was assisted to the toilet (in her room) the elevated toilet seat slipped [illegible] she twisted her It knee, which was painful.”

Despite Dr. Foret’s description of a kneecap displacement as a traumatic event, those employees of the hospital responsible for investigation of patient complaints seem to automatically resolve the complaints as unfounded if they found no record, | ifiof a contemporaneous complaint. This approach ignores the obvious with regard to the May 28 incident — a traumatic event occurred resulting in Mrs. McGlothlin’s kneecap becoming dislocated. Absent a showing of any other possible cause, Mrs. McGlothlin’s account has credibility.

Reviewing the entire record de novo, we conclude that the McGlothlins carried their burden of establishing that on one occasion, May 28, 1999, a hospital employee breached her duty of the care due to Mrs. McGlothlin when she attempted to transfer Mrs. McGlothlin without assistance, and that this breach resulted in an injury to Mrs. McGlothlin’s left knee.

Assignment of Eiror Number Foui-

In their final assignment of error, the McGlothlins seek damages for the injuries they suffered. Dr. Foret performed surgery on July 15, 1999, to correct the kneecap displacement. In doing so, he discovered that the retinaculum, the connecting band that holds the kneecap in place, was completely torn. After this surgery, Dr. Foret asked Dr. Carlos M. Choucino, a Lake Charles, Louisiana, infectious disease specialist, to follow Mrs. McGlothlin because he was concerned about possible infections. In a consultation report dated July 29, 1999, Dr. Choucino related to Dr. Foret that he had discovered an extremely rare bacteria in Mrs. McGlothlin’s left knee — stenotrophomonas maltophilia. Dr. Choucino began treating Mrs. McGlothlin with a combination of several antibiotics, and she convalesced until October of 1999. However, on October 18, 1999, biopsies taken by Dr. Foret revealed a staph infection in Mrs. McGlothlin’s left knee.

On October 21, 1999, Dr. Foret inserted a Jackson Pratt drain in Mrs. McGlothlin’s left knee in an effort to eliminate the infection without having to |17remove the entire joint. On October 25, 1999, Dr. Foret replaced the Jackson Pratt drain. However, Mrs. McGlothlin’s problems persisted and, on January 18, 2000, Dr. Foret bought Mrs. McGlothlin back into surgery and opened up both sides of the knee to obtain in an effort to see if there was an infection in both components of the knee. Dr. Foret repeated his search for infection on March 2, 2000, when he made incisions in the four quadrants of Mrs. McGlothlin’s left knee joint to drain the knee and to take additional cultures. All of these procedures took place in the operating room, with Mrs. McGlothlin under general anesthesia.

At one point, while fighting these infections, Mrs. McGlothlin’s kidneys failed and she had to undergo three dialysis treatments. Dr. Foret ultimately decided that the infection in the joint could not be resolved, and on July 17, 2000, he removed the artificial knee from her left leg, leaving her able to only partially bend her left leg. Mrs. McGlothlin remained in the hospital after that surgery until July 26, 2000. On August 10, 2000, Dr. Foret performed another operation, during which he found dead tissue inside Mrs. McGlothlin’s left knee joint and cleaned out the joint in an effort to prevent further infection.

Dr. Foret testified that Mrs. McGlothlin can bend her left leg only slightly; she is unable to walk; and she is confined to her bed and her wheelchair. According to the doctor, there is no expectation that her condition will ever change.

Mrs. McGlothlin testified that since the removal of the artificial knee joint in July of 2000 she cannot dress herself and can only walk a short distance — perhaps ten feet — on her walker. She was dependent on a catheter for twenty-seven months after Dr. Foret removed the artificial knee joint in July of 2000, and at the time of trial had to have a catheter inserted any time she leaves home. She testified that her knee hurts | ^constantly, that her pain is not relieved by medication, and the only place she goes is to the doctor. Mrs. McGlothlin testified that she cries all day because she cannot use her left leg; she is depressed and takes medication for depression.

Mr. McGlothlin testified that he retired from his cross-country truck driving career in 1999 to take care of his wife. When Mrs. McGlothlin was initially released from the hospital, one of their daughters moved in with them for six months to help care for her mother. After the daughter moved out of the home, Mr. McGlothlin has been the primary caretaker and assists her with all of her daily living chores. According to Mr. McGloth-lin, since the infections began, his wife has expressed that she is in constant pain.

While acknowledging that the subsequent infections may have occurred regardless of the July 15, 1999 surgery, Dr. Foret testified that it was more probable than not that the infections came about as a result of the patella revision surgery on July 15. He noted that there was no sign of infection immediately after the knee replacement surgery, and were they to relate to that surgery, he would have expected symptoms of the infection to have appeared earlier. Dr. Leonard testified that the infections could have arisen from the May 17,1999 surgery, but he could not be sure whether they developed from the first or subsequent surgeries. He did agree, however, that the risk of infections increases when there are additional surgeries.

Based on the evidence presented at trial, we find that the McGlothlins established the hospital’s liability for both the displaced patella and the series of infections.

Because we are making an initial award of damages, not reviewing an award made by the trial court, we are not limited by a determination of either the lowest or 113highest amount that should be affirmed. Broussard v. Med. Protective Co., 06-331(La.App. 3 Cir. 2/21/07), 952 So.2d 813. Rather, we base the amount of damages on what the record reveals is just compensation. Id. However, the McGlothlins’ claims for damages are governed by the Medical Malpractice Act, La.R.S. 40:1299.41-1299.49, which limits recovery by medical malpractice victims who have been injured by qualified health care providers as follows: “The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.” La.R.S. 40:1299.42(B)(1).

Medical Expenses

Medical care and related benefits as provided for in La.R.S. 40:1299.42(B)(1) include all reasonable medical treatment incurred after the date of the injury until the date of the judgment and reasonable medical treatment that will be incurred after the date of the judgment. La.R.S. 40:1299.43(B) and (D). At trial the parties stipulated that the medical expenses incurred through the date of trial totaled $64,815.41. However, this included $2,474.12 for expenses of the May 17, 1999 double knee replacement surgery and its attendant rehabilitation, neither of which were caused by the hospital employees’ negligence. Accordingly, we reduce the stipulated amount to $62,341.29. Thus, we find that the McGlothlins are entitled to an award of $62,341.29 in special damages for past medical expenses, and for the expenses of reasonable medical treatment that will be incurred after the date of the trial court judgment.

| .^General Damages

“General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty.” Miller v. Lammico, 07-1352, p. 27 (La.1/16/08), 973 So.2d 693, 711. General damages can include an award for mental or physical pain and suffering and loss of enjoyment of life. Id. Mr. McGlothlin also seeks damages for his loss of consortium. The compensable elements of damage in a claim for loss of consortium of a spouse include loss of love and affection, loss of companionship, loss of material services, loss of support, impairment of sexual relations, loss of aid and assistance, and loss of felicity. Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La.7/1/97), 696 So.2d 569. Mr. McGlothlin’s claim for damages for loss of consortium arises under La.Civ.Code art. 2315 and is a separate cause of action from his wife’s claim. McGee v. A C And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770.

However, even though Mr. McGlothlin’s loss of consortium claim is a separate cause of action, under the Medical Malpractice Act that applies to private health care providers, La.R.S. 40:1299.41-1299.49, his loss of consortium claim is combined with Mrs. McGlothlin’s medical malpractice claim for purposes of the $500,000.00 statutory cap in La.R.S. 40:1299.42(B)(1). Under these statutes, which apply to all private health care providers, only Mrs. McGlothlin is considered a “patient.” Louisiana Revised Statutes 40:1299.41(A)(15) defines “patient” as “a natural person, including a donor of human blood or blood components and a nursing home resident |2iwho receives or should have received health care from a licensed health care provider, under contract, expressed or implied.” Under La.R.S. 40:1299.42(B)(1) (emphasis added), “[t]he total amount recoverable for all malpractice claims for injuries to or death of a patient ... shall not exceed five hundred thousand dollars plus interest and cost.” Since here only Mrs. McGlothlin is considered a patient, and Mr. McGlothlin’s claim for loss of consortium is a derivative of her malpractice claim, their claims are combined for purposes of the $500,000.00 statutory cap.

In reaching this conclusion, we note that a different definition of “patient” is given in La.R.S. 40:1299.39-1299.39.3, which govern the malpractice liability for state health care providers. There a patient is defined as “a natural person who receives, or should have received, health care from a person covered by this Part and any other natural person or persons who tvould or may have a claim or claims for damages under applicable law arising out of, or directly related to, the claim or claims of the natural person who receives, or should have received, health care from a person covered by this Part.” La.R.S. 40:1299.39(A)(3) (emphasis added). Under that definition of “patient,” Mr. McGlothlin might also be considered a patient, and thus his consortium claim would be subject to a separate $500,000.00 statutory cap. See dissent in Hollingsworth v. Bowers, 96-257 (La.App. 3 Cir. 12/30/96), 690 So.2d 825.

Considering the length of time that Mrs. McGlothlin suffered debilitating surgeries and hospitalizations; the extent of her current incapacity, which has no hope of improving; and the impact these injuries have had on Mr. McGlothlin’s life, we find that her pain and suffering and loss of enjoyment of life and Mr. McGloth-lin’s |22loss of consortium far exceed the statutory cap of $500,000.00, and accordingly award the McGlothlins the statutory maximum of $500.000.00.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s judgment dismissing the claims of Margie McGlothlin and John McGlothlin and render judgment in their favor and against Christus St. Patrick Hospital in the amount of $500,000.00, inclusive of the general damage award to Mrs. McGlothlin and loss of consortium award to Mr. McGlothlin; $62,341.29 in past medical expenses and the expenses of reasonable medical treatment that will be incurred after the date of the trial court judgment; and all legal interest from the date of the filing of the complaint until paid as per La.R.S. 40:1299.47(M). We assess all costs of these proceedings, both at trial and on appeal, to Christus St. Patrick Hospital.

REVERSED AND RENDERED.

GREMILLION, J., concurs in part, dissents in part, and assigns written reasons.

GREMILLION, Judge,

concurs in part and dissents in part.

| tThis medical malpractice action involves the admissibility of the medical review panel’s opinion and the prejudicial effect that panel opinion had on the outcome of a jury trial that resulted in a verdict in favor of the defendants. The majority concludes that the opinion should not have been admitted into evidence. On that point, I concur. However, the majority determines that a de novo review of the record reveals that the jury verdict should be reversed. From that conclusion I dissent.

Louisiana Revised Statute 40:1299.47(G) establishes the sole duty of the medical review panel. The panel is to render an opinion that the evidence does or does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care, or that there is a genuine issue of material fact, not requiring expert testimony, for consideration by the court. When the panel deviates from that duty, its opinion may be excluded from evidence. Whittington v. Savoy, 05-1169 (La.App. 3 Cir. 5/31/06), 931 So.2d 1198.

The panel clearly discounted the accounts of injury supplied by the McGloth-lins. In this, the panel deviated from its duty and its opinion should have been excluded.

I disagree that this case should be reviewed de novo. Rather, Whittington v. Savoy, 05-1169 (La.App. 3 Cir. 5/31/06), 931 So.2d 1198, illustrates the manner in which we should proceed. In Whittington, the plaintiff complained of the length of |2the scar she bore following surgery. The panel opined that the length of the scar was immaterial, despite the fact that the length of the scar was the only allegation of malpractice. The trial court admitted the panel opinion into evidence. This court held that the panel exceeded its statutory duty in commenting upon the materiality of the length of plaintiffs scar. Nonetheless, the application of the manifest error standard necessitated affirming the trial court’s judgment.

In the present matter, a review conducted under the manifest error standard would, I believe, result in upholding the findings of the jury. I would affirm the trial court.

      . In their pleadings the McGlothlins assert that the second incident occurred on May 29, 1999. However, at trial the McGlothlins raised the issue of whether the incident occurred on May 28, 1999, without objection by Christus St. Patrick Hospital, in such a manner as to expand the pleadings to include May 28, 1999. La.Code Civ.P. art. 1154.

      . We recognize that La.R.S. 40:1299.47(G) provides that the medical review panel may "render one or more” of the three available opinions provided for in the statute. However, that provision applies in cases like Allen v. Baton Rouge Gen. Med. Ctr./Gen. Health Sys., 09-1110, p. 2 (La.App. 1 Cir. 12/23/09), 30 So.3d 127, 128-29, writ denied, 10-195 (La.4/5/10), 31 So.3d 368, where the medical review panel was examining complaints against both a medical center and a doctor and found that as to the medical center "[t]here is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the Court,” while it found that as to the doctor “[t]he evidence supports the conclusion that Dr. Lenahan failed to comply with tire appropriate standard of care as charged in the Complaint.” When only one health care provider’s actions are under review, it would be totally inconsistent to allow the panel to reach a conclusion on the standard of care issue and, at the same time, return an opinion stating that material issues of fact still remain unresolved on that same issue.

      . Mrs. McGlothlin was excessively overweight.

      . A gait belt is a belt that placed around a patient's waist which the nurses can hold onto as they transfer a patient, for example from a wheelchair to a bed.

      . We note that this holding represents a split from our brethren in the second circuit, who have held that the language of La.R.S. 40:1299.47(H) makes the medical review panel’s opinion admissible even if the panel improperly rendered an opinion on the merits when there was a material issue of fact bearing on liability that did not require an expert opinion. Hunter v. Bossier Med. Center, 31,-026 (La.App. 2 Cir. 9/25/98), 718 So.2d 636.

      . Ms. Rogers also suggested that the transfer from the wheelchair to a toilet seat should have been accomplished with the use of a locked toilet seat extender as well, and that in any case, a walker would be helpful.

      . Ms. George has married since the events in 1999; her full name is now Connie George Eaglin. However, for consistency with the other witnesses' testimony, we will refer to her as Ms. George throughout the opinion.

      . The individuals whom the witnesses claim to have been present at the transfer from the wheelchair to the bed include Mr. McGloth-lin; two daughters, Genevieve Marks and Margie Marie Beckworth; and one granddaughter, Flavia Marie McGlothlin. Ms. Beckworth did not testify at the trial.

      . Ms. George testified that it would have been a breach of the standard of care applicable to nurses and nurse assistants had she attempted to lift Mrs. McGlothlin by herself.

      . Dr. Leonard testified that it was possible for a patella dislocation to occur in rehabilitation without there being any fault on the part of the rehabilitation workers.

      . The second page of the assessment report is not in the record, the report itself is not dated, and there is no evidence of the time of the assessment. The report itself reads as follows:
      Patient able to tolerate standing up to 5 minutes on Friday before c/o pain to (L) knee began. Patient able to perform transfer on/off BSC w/ mod (I)-SBA. Toilets w/ SBA. Dresses LE w/ SBA using A/E. Patient continues to perform UE exercises at bedside since problems w/ (L) knee have arisen. Will await further orders to continue.

      . We note that Carroll Boudreaux, a registered nurse, recorded no complaints from Mrs. McGlothlin or her family in his initial assessment report when Mrs. McGlothlin first came to the rehabilitation unit on May 20, 1999. However, Mr. Broudreaux had no independent recollection of the review and there is no evidence concerning when or where the review was performed.

      . It is unclear from the record whether these comments were derived from Mrs. McGloth-lin after the two incidences at issue or taken from hospital records.

      . Although only Mrs. McGlothlin is considered a "patient,” both she and Mr. McGloth-lin together are considered to be one "claimant.” Louisiana Revised Statutes 40:1299.41(A)(4) defines a "claimant” as "a patient or representative or any person including decedent's estate, seeking or who has sought recovery of damages or future medical care and related benefits under this part," and provides that "[a]ll persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant.”

      . Louisiana Revised Statutes 40:1299.47(M) provides that "[Ilegal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part.”


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. C.S.
    No. 2010-507.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 2010.

      Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Marksville, LA, for Plaintiff/Appellee, State of Louisiana.
    Timothy D. Shumate, The Shumate Law Firm, LLC, Alexandria, LA, for Defen-danfyAppellant, C.S.
    Andrea D. Aymond, Assistant District Attorney, Twelfth Judicial District Court, Marksville, LA, for PlaintiffiAppellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

11Defendant, C.S., was indicted on November 20, 2008, on two counts of aggravated rape, violations of La.R.S. 14:42. Defendant waived his right to trial by jury, and he was found guilty of one count of aggravated rape. He was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. Defendant did not file a motion to reconsider the sentence.

Defendant perfected a timely appeal. He raises four assignments of error: “(1) the court committed reversible error when it convicted appellant on insufficient evidence; (2) the appellant’s right of witness confrontation was violated; (3) the appellant was prejudiced and harmed by ineffective assistance of counsel; and (4) the mandatory sentence is unconstitutionally excessive.” For the following reasons, we affirm Defendant’s conviction and sentence.

I.

ISSUES

We shall consider whether:

(1) the evidence was insufficient to support Defendant’s conviction by the trial court;
(2) Defendant’s right to confront witnesses was violated;
(3) Defendant was prejudiced by ineffective assistance of counsel; and,
(4) Defendant’s sentence was constitutionally excessive.

_L2.IL

FACTS

On July 29, 2008, Defendant filed a complaint of molestation of his six-year-old daughter, accusing his former girlfriend’s brother of the abuse. The victim and her two brothers, ages five and three, were taken to Avoyelles Hospital and examined by an emergency room doctor the same day. The examination revealed that the girl had been sexually abused. The Office of Community Services (“OCS”) was contacted, and an appointment was made with the Children’s Advocacy Center to interview the children on August 1, 2008. Several days after the interview, Defendant informed the investigating officer that he wanted to “drop charges” and that he was taking the children and leaving the area. Concerned for the welfare of the victim, the investigating officer and OCS arranged a second examination with Dr. Mayeaux, a family physician and forensic expert, on August 7, 2008. Dr. Mayeaux reported that there was significant evidence of additional sexual molestation of the girl since the first exam on July 29, 2008. At this time, the children were taken from their father’s custody and placed in foster cai’e. During a second interview at the Children’s Advocacy Center, the victim stated that it was Defendant who had been sexually assaulting her.

Following the second interview, wherein the victim named her father as the assailant, Defendant was arrested on September 26, 2008, and charged with two counts of aggravated rape.

III.

LAW AND DISCUSSION

(A) Sufficiency of Evidence

Defendant asserts that the evidence presented was insufficient to sustain |sa verdict of aggravated rape. Defendant does not, however, address specifically in what manner the evidence was insufficient. He merely cites the law on sufficiency of the evidence and reiterates the facts of the case. Defendant’s presentation of the facts, however, indicates that he questions the victim’s credibility.

In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, this court stated:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981).

The testimony of a single witness is sufficient to support a verdict absent internal contradiction or irreconcilable conflict with the physical evidence, and any credibility determination made by the trier of fact is normally not within the purview of the reviewing court. State v. Schexnaider, 03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450; State v. Watson, 39,362 (La.App. 2 Cir. 4/20/05), 900 So.2d 325; State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, ivrits denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 00-150 (La.6/30/00), 765 So.2d 1066.

Aggravated rape, in pertinent part, is defined as:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La.R.S. 14:42.

Defendant does not argue in what way the evidence was insufficient other than implying through the recitation of the facts that the victim’s testimony was not credible because she had changed her accusation of who abused her several times. After she was removed from Defendant’s custody, the victim stated that the Defendant abused her, and she consistently maintained that position through the trial. In State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, 491, this court quoted the following ruling in State v. Roca, 03-1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La.7/2/04), 877 So.2d 143, which in pertinent part stated: “In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding.”

Considering the evidence in a light most favorable to the prosecution, sufficient evidence exists to sustain the verdict of aggravated rape of a child under the age of thirteen years.

(B) Confrontation of a Witness and Ineffective Assistance of Counsel

Defendant argues that he was denied his constitutional right to confront a witness — the victim. Specifically, he asserts that defense counsel obstructed his view of the victim as she was testifying; therefore, he was not able to see or observe her demeanor. Accordingly, Defendant asserts defense counsel acted ineffectively because he blocked Defendant’s view of the witness.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This right provides “ ‘two types of protections for a criminal | .¡defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.’ ” Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). However, public policy considerations and necessities may take precedence over “face-to-face” confrontation. Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990).

State v. Welch, 99-1283, p. 4 (La.4/11/00), 760 So.2d 317, 320.

With regard to ineffective assistance of counsel, the second circuit stated the following:

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).
Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires defendant to establish that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra.

State v. Kinsey, 42,935, pp. 9-10 (La.App. 2 Cir. 2/13/08), 976 So.2d 315, 320.

Defendant’s view of the victim was not obstructed during her testimony. The child testified from the stand. At that time, she pointed to and identified Defendant as her father and the man who sexually abused her. During her testimony, Defendant interrupted his attorney’s cross-examination three times in order to confer [ fiwith him, and once spoke directly to the victim. Nothing indicates that defense counsel blocked Defendant’s view of the witness.

Though procedures are available to protect a child victim of sexual abuse from having to look at her assailant in court, the court employed no such procedure in this case. See La.R.S. 15:283; State v. Brocket, 98-1089 (La.App. 5 Cir. 3/30/99), 733 So.2d 640, unit denied, 99-1516 (La.10/15/99), 748 So.2d 469; State v. Smith, 95-734 (La.App. 5 Cir. 1/30/96), 668 So.2d 1260, unit denied, 98-1406 (La.10/16/98), 726 So.2d 899.

Defendant’s allegation that his constitutional right to confront a witness was violated has no merit. Thus, Defendant also fails to show that defense counsel rendered ineffective assistance of counsel by blocking his view of the witness.

(C) Constitutionality of Sentence

Defendant argues that the mandatory sentence of life imprisonment is constitutionally excessive. The trial court convicted Defendant of aggravated rape, a violation of La.R.S. 14:42, which provides in pertinent part that “[wjhoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” Accordingly, Defendant was sentenced to the mandatory minimum sentence.

In State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676, the supreme court held:

[T]o rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of |7the offender, the gravity of the offense, and the circumstances of the case.
[State v.] Young, 94-1636 at pp. 5-6, [(La.App. 4 Cir. 10/26/95)] 663 So.2d [525] at 528 (Plotkin, J., concurring).

Defendant did not file a motion for reconsideration of the sentence. At the sentencing hearing, following the trial court’s recitation of the sentence, Defendant merely agreed with the trial court that he objected to the sentence.

Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Defendant again merely cites the law on excessive sentences, but he makes no argument as to how he is exceptional or why the sentence is excessive in his case. Moreover, this court has consistently held that the mandatory minimum sentence of life imprisonment for convictions of aggravated rape of a child under the age of thirteen is constitutional. See State v. D.T., 08-814 (La.App. 3 Cir. 12/11/08), 998 So.2d 1258, writ denied, 09-624 (La.11/25/09), 22 So.3d 171.

J¿V.

CONCLUSION

We affirm Defendant’s conviction for aggravated rape and the sentence of life imprisonment.

AFFIRMED.

      . As required by La.R.S. 46:1844 W, the initials of the parties involved are used to protect the identity of the victim.


author: GRAVES, Presiding Justice,

text:
    LOGGERS, L.L.C., A Mississippi Limited Liability Company and Gary Troescher, Individually v. 1 UP TECHNOLOGIES, L.L.C., A Louisiana Limited Liability Company.
    No. 2009-CA-01471-SCT.
    Supreme Court of Mississippi.
    Jan. 6, 2011.
    Nathan S. Farmer, Picayune, attorney for appellants.
    Michael Chad Moore, attorney for appel-lee.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. This is an appeal from the Circuit Court of Pearl River County involving whether the appellants waived an affirmative defense by not specifically asserting it in their answer. Because the appellants are barred from raising the affirmative defense for the first time at trial, we affirm the judgment of the trial court.

FACTS

¶2. In April 2007, Loggers, LLC, and Gary Troescher (“Loggers”) entered into an oral contract with 1 Up regarding equipment and services for Loggers’ computer gaming business in Pearl River County. A dispute arose, and 1 Up ultimately filed suit on October 10, 2007, against Loggers for $8,783.33 owed on the contract and $2,195.83 in attorney’s fees. 1 Up obtained a default judgment against Loggers, but the default judgment later was set aside by the trial court. On May 7, 2008, Loggers filed its Amended Combined Answer, Affirmative Defenses and Counter-Claim(s) of the Defendants, which contained various affirmative defenses.

¶ 3. The trial was held before a special master on February 10, 2009. At the close of 1 Up’s case-in-chief, Loggers moved for dismissal under Mississippi Rules of Civil Procedure 12(b)(6) and 41(b) on the ground that 1 Up was barred from bringing suit under Mississippi Code Section 79-29-1007(1). The special master took the motion under advisement, and Loggers proceeded with its case. On July 9, 2009, the special master issued her report, wherein she found that Loggers had waived its right to assert the affirmative defense under Mississippi Code Section 79-29-1007(1) by failing to raise it in its answer and by raising it for the first time at trial. Loggers objected to the special master’s report. However, the special master’s report was adopted by the Circuit Court of Pearl River County, which entered final judgment on August 5, 2009, in favor of 1 Up in the amount of $10,979.19 plus court costs. Thereafter, Loggers appealed.

ANALYSIS

¶ 4. This Court reviews issues of law, including those involving a motion to dismiss or a motion for directed verdict, under a de novo standard. Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854, 856 (Miss.2006). See also Forbes v. Gen. Motors Corp., 935 So.2d 869, 873 (Miss.2006).

¶ 5. Loggers asserts that it preserved its right to the affirmative defense that 1 Up is barred from filing or maintaining this action pursuant to Section 79-29-1007(1) by the inclusion of general language from Mississippi Rule of Civil Procedure 12(b)(6) in its response. Loggers’ response, filed May 07, 2008, asserted various affirmative defenses, and included the following language:

Defendants would assert the Plaintiffs Complaint fails to state a claim for which the Plaintiff may be granted relief as against the Defendants. Defendant, Gary Troescher, also asserts the Complaint of Plaintiff fails to state any claim for relief against the Defendant, Troescher, individually, due to the fact that at all times that any contractual relationship existed solely between Defendant, Loggers, L.L.C., A Mississippi Limited Liability Company and the Plaintiff.

¶ 6. At the close of 1 Up’s case-in-chief during the trial of this matter on February 10, 2009, Loggers moved for involuntary dismissal under Rule 41(b) pursuant to Mississippi Code Section 79-29-1007(1), which states: “A foreign limited liability company transacting business in this state may not maintain any action, suit, or proceeding in any court of this state until it has registered in this state.” Miss.Code Ann. § 79-29-1007(1) (Rev.2009).

¶ 7. The special master found that 1 Up was not registered to do business in Mississippi and was unable to bring a lawsuit pursuant to Section 79-29-1007(1). But the special master also found that this assertion was an affirmative defense that should have been raised by Loggers prior to trial. The special master further found as follows: “After reviewing all pleadings in this matter, the first mention of this defense was asserted at trial. This lawsuit was filed on October 10, 2007 and the Defendants have actively participated in the litigation since its inception and have thereby waived this defense.” The special master quoted East Mississippi State Hospital v. Adams, 947 So.2d 887, 891 (Miss.2007) (quoting MS Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006)), for the following: “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.”

¶ 8. The circuit court adopted the special master’s findings and further said: “However, this Court is of the opinion that a specific affirmative defense, such as this, cannot be raised in a general 12(b)(6) defense provision. Furthermore, any Rule 12(b)(6) motions or assertions must be addressed prior to trial, not at a Motion for Directed Verdict.”

¶ 9. Loggers asserts that the trial court erred and that the boilerplate language from Rule 12(b)(6) included in its response was sufficient to preserve the right later to assert Section 79-29-1007(1) at trial. Rule 12 states, in relevant part:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(6) Failure to state a claim upon which relief can be granted....

Miss. R. Civ. P. 12(b)(6). Further, the comment to Rule 12 provides, in relevant part:

Rules 12(b)(6) and 12(c) serve the same function, practically, as the general demurrer. [Citations omitted]. They are the proper motions for testing the legal sufficiency of the complaint; to grant the motions there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. '

Miss. R. Civ. P. 12 cmt.

¶ 10. Loggers relies on Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854 (Miss.2006) and Transocean Enterprise, Inc. v. Ingalls Shipbuilding, Inc., 33 So.3d 459 (Miss.2010), as authority for the proposition that a general Rule 12(b)(6) assertion is sufficient to preserve a later issue. In Howard, this Court, without explanation, found that a general Rule 12(b)(6) assertion in a motion to dismiss was sufficient to preserve for appeal an issue of medical malpractice liability. Howard, 947 So.2d at 860. In Trans-ocean, the majority of this Court did not address the waiver issue, but found that the “trial court justifiably did not address the implications” of the relevant statute. Transocean, 33 So.3d at 463.

¶ 11. However, in reaching our decision today, we rely on Burleson v. Lathem, 968 So.2d 930 (Miss.2007), and East Mississippi State Hospital v. Adams, 947 So.2d 887 (Miss.2007). As stated previously herein, the complaint in this matter was filed on October 10, 2007. The trial occurred more than a year later on February 10, 2009. The record in this matter indicates that Loggers actively participated in the litigation. Loggers cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later. See Burleson, 968 So.2d at 934-37, and East Mississippi State Hospital, 947 So.2d at 890-91. For these reasons, we affirm the judgment of the Circuit Court of Pearl River County.

¶ 12. AFFIRMED.

WALLER, C.J., CARLSON, P.J., KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DICKINSON AND LAMAR, JJ., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Rule 41(b) states, in relevant part: "After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Miss. R. Civ. P. 41(b).