author: WHIPPLE, J. McCLENDON, J.,

text:
    SCHOOLHOUSE, INC. and Eight Balls, Inc. v. Barry FANGUY.
    No. 2010 CA 2238.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Joseph J. Weigand, Jr., Houma, LA, for Plaintiff/Appellee, Schoolhouse, Inc. and Eight Balls, Inc.
    Dennis John Hauge, Prairieville, LA, for Defendant/Appellant, Barry Fanguy.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

12This matter is before us on appeal by defendant, Barry Fanguy, from a judgment of the trial court rendered in favor of plaintiffs, Schoolhouse, Inc. and Eight Balls, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 21, 1973, Schoolhouse, Inc. entered into a lease with Nelo Hebert for a certain lot of ground with a camp house located thereon in Point-Aux-Chene, Louisiana, for a term of forty-nine years. The lease, which was issued on a yearly basis, was renewable on March 1, 1974, and each year thereafter, for the sum of $400.00 per year. Likewise, on November 4,1973, Eight Balls, Inc. entered into a lease with Nelo Hebert for an adjacent parcel of land with a camp house located thereon for a period of fifty years. This lease was also renewable on March 1st of each year at the sum of $350.00 per year. In 1995, the Hebert family sold the leased property to Barry Fanguy and his brother, Todd Fanguy. In 1997, Todd sold his interest in the property to Barry Fanguy, making him the sole owner of the property-

On June 26, 2007, Schoolhouse and Eight Balls filed a petition for damages citing numerous incidents of interference with and obstruction of their use of the camps and destruction of the leased property by Barry Fanguy in an effort to force or cause plaintiffs to give up their leases, which had occurred over the course of several years since Fanguy’s initial purchase of the property in 1995. Specifically, plaintiffs contended that Fanguy’s actions constituted intentional breaches of the leases and that plaintiffs were entitled to recover for their loss of the use and enjoyment of the property and for the economic value of the loss of such use. Plaintiffs further alleged that Fanguy should be held answerable in | sdamages for the full amount of such damages and loss of use in an amount to be determined by the trial court as reasonable. These alleged breaches included, inter alia, Fan-guy’s interference with the sewerage system causing improper sewerage drainage, as well as interference with the drainage on the property, causing ongoing and continuous flooding. Plaintiffs further sought to be restored to the full extent of possession of the leased premises, and to have Fanguy ordered to remove various improper objects, camps, shells, fill, and other material placed by him on the property that interfered with the drainage and sewerage. Finally, plaintiffs sought a mandatory and permanent injunction against Fanguy ordering him to remove various objects placed on the leased property and to restore it to the condition it was in prior to his violations of the lease, and that Fanguy be enjoined from impeding or interfering in any way with plaintiffs’ use of the leased property.

On August 13, 2007, Fanguy filed an answer and reconventional demand. In his reconventional demand, Fanguy contended that Schoolhouse, Inc. and Eight Balls, Inc., as defendants-in-reconvention, had breached the terms of the lease agreements by failing to keep the premises in reasonable repair, thereby entitling Fan-guy, as plaintiff-in-reconvention, to a rescission of the lease and a judgment declaring the lease terminated and no longer in effect and ordering the occupants evicted. Fanguy further sought damages for the lessees’ alleged failure to keep the leased premises in reasonable repair.

The matter was heard before the trial court on November 9,10, and 12, 2009. At the conclusion of trial, the parties submitted posttrial briefs and on March 3, 2010, presented closing arguments to the trial court. On June 1, 2010, the trial court rendered judgment in favor of plaintiffs and against Fanguy. The trial court specifically incorporated the following findings in its actual judgment:

|4The Court finds that the testimony of the individual members of the plaintiff corporations, Schoolhouse, Inc., and Eight Balls, Inc., is particularly credible. They are each LSU professors who carefully selected Terrebonne Parish for periods of fun, rest and relaxation. They had little once the defendant, Barry Fanguy, purchased the property from their original lessor. Because of Mr. Fanguy’s conduct detailed below, petitioners found the southern end of Terre-bonne Parish to be a far cry from a sportsman’s paradise they’d hoped to enjoy. The professors gave detailed accounts of their ongoing challenges with Barry Fanguy. They also maintained meticulous, detailed written accounts of the damages to the camps and their expenditures to repair same, over the course of the fifteen year-period involved in this lawsuit. In contrast, the Court finds the testimony of Barry Fan-guy as self-serving, contradictory, and not credible. Mr. Fanguy was also openly hostile and belligerent on the stand.
The Court finds that Barry Fanguy, individually and through his agents/employees, did intentionally, willfully, perhaps even criminally, and certainly in bad faith, interfere with the petitioners’ peaceable possession of their leased premises. He did so by committing a multitude of nefarious acts over a time span of approximately fifteen (15) years. His misconduct included, but was not limited to, destroying camp fencing multiple times; creating a “levee system” around the leased premises, causing substantial interference with the property’s natural drainage; storing movable equipment and supplies upon the leased grounds for years without obtaining the lessees’ consent; permitting third parties to park upon the leased premises; repeatedly breaking down camp doors and shattering camp windows; initiating groundless eviction proceedings; and calling upon law enforcement officers, parish officials, and attorneys, without reason. He admitted to these improprieties and more when the parties met at the Schoolhouse camp on or about June 30, 2006.
Given all of the foregoing, the Court finds that under the facts and circumstances of this case, Barry Fanguy’s conduct amounts to a breach of and tortious interference with the written leases. The Court also finds sufficient grounds to issue a permanent injunction against Barry Fanguy and to require Mr. Fanguy to post a substantial bond to insure the lessees’ future peaceable possession of the leased premises. The Court also finds that under the facts of this case, the petitioners are entitled to actual damages, general damages and attorney’s fees.

In accordance with these findings, the trial court then awarded damages and ordered other relief in favor of Schoolhouse and Eight Balls, as follows:

1. General damages in the sum of $25,000.00 to Schoolhouse as compensation for Fanguy’s tortious interference with the written leases Rand for the resulting mental anguish, humiliation, aggravation and inconvenience to its camp members, plus interest;
2. General damages in the sum of $25,000.00 to Eight Balls as compensation for Fanguy’s tortious interference with the written leases and for the resulting mental anguish, humiliation, aggravation and inconvenience to its camp members, plus interest;
3. Attorney’s fees in the sum of $3,000.00 to Schoolhouse and $3,000.00 to Eight Balls for the fees incurred in their retention of attorney Bob Butler to defend against Fanguy’s wrongful 1995 eviction proceeding brought in the City Court of Houma;
4. Attorney’s fees in the amount of $10,000.00 to plaintiffs for the fees incurred in their retention of attorney Joseph Weigand to vindicate the contractual breaches and wrongs enumerated by the trial court and to secure their right to future peaceable possession and enjoyment of the leased premises;
5. That a permanent injunction immediately issue against Fanguy to prevent further interference by him, individually or through his agents/employees, with the lessees’ peaceable possession of the leased premises;
6. That Fanguy immediately post a $500,000.00 bond to ensure his compliance with the permanent injunction, with the bond to be forfeited should there be any violation by Fanguy of the permanent injunction;
7. That Fanguy immediately remove any and all movable and immovable property from the leased premises, which he, individually or through his agents, placed upon the leased premises without the lessees’ consent;
|r,8. That Fanguy remove “forthwith” the levee he built around the leased premises and grade the leased premises to restore the natural flow of rainwater; repair broken water lines going to the camps; repair the sewer systems for each camp; and erect a fence around the leased premises with gates to allow automobiles and people entrance to the property, all of which work is to be approved by a civil engineer selected by plaintiffs and whose fees shall be prepaid by Fanguy;
9. That all costs be taxed to Fanguy.

The trial court further adopted plaintiffs’ post-trial memorandum and amended proposed findings of fact and conclusions of law as further reasons for judgment.

On June 16, 2010, Fanguy filed a petition for a suspensive appeal from the June 1, 2010, judgment of the trial court. The trial court entered an order of appeal and set a bond at $66,000.00. Fanguy then filed a “Power of Attorney,” dated June 23, 2010, as a purported satisfaction of his obligation to furnish a suspensive appeal bond to perfect his suspensive appeal. On July 13, 2010, plaintiffs filed a rule to show cause why the appeal bond should not be deemed insufficient/invalid and why the suspensive appeal should not be set aside, contending that the power of attorney submitted by Fanguy as security for the sus-pensive appeal was meaningless and legally insufficient. Thereafter, Fanguy filed a cash bond in the amount of $66,000.00, which the trial court initially ordered be substituted for the previously filed power of attorney as security for the suspensive appeal. After a hearing on plaintiffs’ rule, however, the trial court determined that as a mere power of attorney, Fanguy’s filing did not meet the criteria for a judicial bond pursuant to LSA-C.C.P. arts. 5121, et seq. Thus, the subsequently filed cash bond could not relate back to cure any defects and perfect a suspensive appeal as there was no “bond” to cure. Accordingly, the trial court 17set aside the suspensive appeal and converted the instant appeal to a de-volutive appeal.

Fanguy appeals, contending that the trial court erred: (1) in finding that he had disturbed the peaceable possession of plaintiffs; (2) in failing to render a ruling and decision on the reconventional demand for eviction; and (3) in converting the instant appeal to a devolutive appeal.

DISCUSSION

Assignment of Error Number One

In Fanguy’s first assignment of error, he contends that the trial court erred in finding as a fact that he disturbed the plaintiffs’ peaceable possession of the leased property. Thus, in this assignment of error, Fanguy essentially challenges the factual findings and credibility determinations made by the trial court.

A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court has announced a two-part test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Where factual findings are [Sbased on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference. Boudreaux v. Jeff, 2003-1932 (La.App. 1st Cir.9/17/04), 884 So.2d 665, 671; Secret Cove, L.L.C. v. Thomas, 2002-2498 (La.App. 1st Cir.11/7/03), 862 So.2d 1010, 1016, writ denied, 2004-0447 (La.4/2/04), 869 So.2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d at 844.

In support of their petition, plaintiffs called several members of Schoolhouse and Eight Balls to testify. These members recounted numerous incidents involving repeated acts of interference and acts of intimidation by Fanguy, which plaintiffs had documented as they occurred and which were noted by the trial court in its written reasons. Plaintiffs also called representatives from the Department of Health and Hospitals, Office of Public Health, as well as a parish building inspector and representative from the U.S. Army Corps of Engineers Regulatory Branch to testify regarding the events giving rise to plaintiffs’ lawsuit.

After hearing the testimony of several witnesses, who kept written records regarding Fangu/s actions, the incidents at issue and photographs, which were introduced into evidence, the trial court concluded that Fanguy had engaged in a course of conduct that interfered with plaintiffs’ peaceable possession of the leased property. The trial court also heard and rejected. Fangu/s testimony. Notably, the trial court’s written reasons specifically indicate that the trial court’s judgment depended heavily on the credibility of the witnesses. In rendering judgment, the trial court noted that it found the testimony of the various plaintiff-members “particularly credible,” while the testimony of Fanguy was found to be | n“self-serving, contradictory, and not credible.” Moreover, the trial court rejected Fan-guy’s explanations, noting that Fanguy was also “openly hostile and belligerent on the stand.”

Considering that credibility determinations are subject to the strictest deference, that the manifest error-clearly wrong standard demands great deference for the trier of fact’s findings and that where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong, Theriot v. State, Department of Wildlife and Fisheries, 94-1536 (La.App. 1st Cir.4/7/95), 661 So.2d 986, 990-991, writ denied, 95-1617 (La.10/6/95), 662 So.2d 1041, we find no error. Instead, after thoroughly reviewing the entire record herein, including the transcript of the three-day trial held in this case and the conflicting testimony presented, we find no error in the factual findings or the judgment rendered by the trial court, which were clearly based on the court’s credibility determinations. Moreover, we find the record overwhelmingly supports the determination of the trial court that Fanguy interfered with plaintiffs’ peaceable possession of the leased property.

Accordingly, we find no merit to this assignment of error.

Assignment of Error Number Two

In Fanguy’s second assignment of error, he contends that the trial court erred in failing to “render a ruling and decision” on his reconventional demand. Generally, silence in a judgment of the trial court as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Hayes v. Louisiana State Penitentiary, 2006-0553 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 554, n. 9, writ denied, 2007-2258 (La.1/25/08), 973 So.2d 758.

| inThe transcript herein reflects that Fanguy’s reconventional demand was taken up or placed before the trial court in the proceedings below. Although the judgment of the trial court did not specifically state that Fanguy’s reconventional demand was denied, given the trial court’s ruling on the main demand, the trial court clearly considered and rejected Fanguy’s reconventional demand, by refusing to order the eviction of the plaintiffs and the other relief sought by Fanguy therein.

Thus, this assignment of error also lacks merit.

Assignment of Error Number Three

In Fanguy’s final assignment of error, he contends that the trial court erred in finding that the Power of Attorney was not an “insufficient” or “invalid” bond for which defects therein could be cured within four days pursuant to LSA-C.C.P. art. 5124.

In converting the instant appeal to a devolutive appeal, the trial court determined that the mere “Power of Attorney” filed by Fanguy was not, in fact or law, a suspensive appeal bond at all, and that the cash bond subsequently filed by Fanguy was not timely filed pursuant to LSA-C.C.P. art. 2123. In [ndoing so, the trial court relied on Guilliot v. City of Kenner, 326 So.2d 359, 363 (La.1976), where the Supreme Court noted:

If what purports to be a bond complies substantially with the requirements of the law, objections as to its form, substance or sufficiency are properly resolved by the trial court, which retains jurisdiction for that purpose as of the date of its filing or subsequently. La. Code of Civ. P. art 2088. The trial court is authorized to cure these objections. La.Code of Civ. P. arts. 5123, 5124, 5125.
On the other hand, if what purports to be a bond is nothing but blank unsigned paper it cannot be cured and it does not meet the requirements of a bond. The filing of such a document is not a ‘timely filing’ of security which gives jurisdiction to an appellate court. Gagneaux v. Desonier, 104 La. 648, 29 So. 282 (1901); Durrett Hardware & Furniture Co., Inc. v. Howze, 174 So. 205 (La.App.1937). This was the situation in the instance case. The purported bond did not substantially comply and could not be cured. To give effect to a document purporting to be an appeal bond which does not bind the surety would render Articles 5121, 5122 and 2124 of the Code of Civil Procedure meaningless.
Nor did the tardy filing of a properly executed bond on April 16, 1975, long after the expiration of the delays for appeal, have the effect of curing a purported bond which could not be cured. Article 5124 of the Code of Civil Procedure contemplates the curing of insufficient and invalid bonds, it does not provide for curing documents which are no bonds at all. (Emphasis added).

After careful review and considering the above legal precepts and jurisprudence, we find the trial court correctly determined that a Power of Attorney filed by Fanguy could not be cured as this filing did not bond any surety or meet the requirements of a suspensive appeal bond. Accordingly, we find no error in the trial court’s determination that Fanguy failed ab initio to post a bond and to convert the appeal to a devolutive appeal.

This assignment also lacks merit.

CONCLUSION

Based on the above and foregoing reasons, the June 1, 2010 judgment of 112the trial court is hereby affirmed. Costs of this appeal are assessed against the defendant/appellant, Barry Fanguy.

AFFIRMED.

McCLENDON, J., dissents in part, agrees in part, and assigns reasons.

McCLENDON, J.,

dissents in part, agrees in part, and assigns reasons.

| Louisiana Code of Civil Procedure article 5124 requires that before an appeal is dismissed for a defect in the bond the appellant must have the opportunity to correct it by furnishing a new or supplemental bond. The purported bond filed in this case was issued in favor of Barry Fanguy, referenced the case number in the underlying district court proceedings, reflected a bond amount of $66,000 (as set by the trial court), and was signed on behalf of the bonding company by an executing agent and senior vice president. Although the bond may have been defective, the document was not merely a blank piece of paper without any binding consequences, and appellant should have been afforded the opportunity to correct the defect. I agree with Justice Tate’s dissent in Guilli-ot v. City of Kenner, 326 So.2d 359, 364, wherein he recognized that the court had “disregarded the unambiguous code of civil procedure articles ... preventing dismissal of appeals without an opportunity to correct or replace technically inadequate appeal bond forms.” Therefore, I respectfully dissent to the extent that the majority concludes that the bond at issue could not be cured. I agree in all other respects.

      . Schoolhouse, Inc. and Eight Balls, Inc. were incorporated groups whose members primarily consisted of retired professional men who used the property and camps thereon as fishing camps.

      . After Fanguy purchased the leased property, he filed an eviction proceeding in the City Court of Houma in an attempt to have plaintiffs evicted from the leases. The eviction proceedings were dismissed by the City Court Judge. Nonetheless, plaintiffs were forced to retain legal counsel to defend the proceedings in City Court.

      . We note that Fanguy does not challenge the specific amount of damages awarded or the award of attorney’s fees on appeal.

      . Louisiana Code of Civil Procedure article 5124 provides:
      Within four days, exclusive of legal holidays, of the rendition of judgment holding the original bond insufficient or invalid, or at any time if no rule to test the original bond has been filed, the party furnishing it may correct any defects therein by furnishing a new or supplemental bond, with either the same surety if solvent, or a new or additional surety.
      The new or supplemental bond is retroactive to the date the original bond was furnished, and maintains in effect the order, judgment, writ, mandate, or process conditioned on the furnishing of security.
      The furnishing of a supplemental bond, or the furnishing of a new bond by a different surety, does not discharge or release the surety on the original bond; and the sureties on both are liable in solido to the extent of their respective obligations thereon and may be joined in an action on the bond.

      . Louisiana Code of Civil Procedure article 2123 provides that the delay for taking a suspensive appeal and furnishing security therefor is within thirty days of the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Tommie Mack GRANGER v. Stephanie W. GRANGER.
    No. 11-77.
    Court of Appeal of Louisiana, Third Circuit.
    June 15, 2011.
    Rehearing Denied Aug. 10, 2011.

      Richard E. Lee, Attorney at Law, Pine-ville, LA, for Plaintiff/Appellant, Tommie Mack Granger.
    Henry Howard Lemoine, Jr., Attorney at Law, Pineville, LA, for Defendant/Ap-pellee, Stephanie W. Granger.
    Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, LA, for Plaintiff/Appellant, Tommie Mack Granger.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| tin this ongoing custody litigation, the father, Tommie Mack Granger, appeals the judgment in favor of the mother, Stephanie W. Granger. For the following reasons, we affirm in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

In the latest installment of the litigation surrounding custody of their daughter, Savannah Granger, Granger alleges that Barnes has violated several Louisiana laws by relocating Savannah to California.

These parties have litigated over their daughter since 1999, at which time an Orleans Parish Court entered a Consent Judgement awarding Barnes and Granger joint custody with each exercising equal physical custody of Savannah on a two-week rotating basis. This judgment further authorized Barnes’ move to Memphis, Tennessee to complete a fellowship program and, further, prohibited Barnes from moving “outside of a 300 mile radius from Alexandria, Louisiana” with the exception being remaining in Memphis.

In August 2000, an Alexandria court rendered a considered decree maintaining joint custody, but naming Barnes the primary custodian and awarding Granger visitation every other weekend from Wednesday to Sunday and summer visitation. At this time, Barnes resided in Little Rock, Arkansas.

In December 2008, the trial court implemented a second considered decree modifying Granger’s visitation schedule to Friday through Sunday with extra time in summer. At this time, Barnes was living in Shreveport. Granger appealed that ruling, and we affirmed the visitation schedule in Granger v. Granger, 09-2722 2(La.App. 3 Cir. 11/10/09), 25 So.3d 162, writ denied, 09-2687 (La.12/18/09), 23 So.3d 941.

The current dispute involves Barnes’ most recent move to Coronado, California. Barnes hand-delivered written notice of the proposed relocation to Granger on August 10, 2010. Barnes filed a Motion for Court Authorization to Relocate Child on August 11, 2010. On August 16, 2010, Barnes filed a First Supplemental and Amending Motion for Court Authorization to Relocate Child, adding the following paragraph to her petition: “Mover shows that defendant does not have any objection to relocating the residence of the child to California, however the parties have not been able to agree on the modified visitation schedule of the child with defendant.”

On August 23, 2010, Granger filed a Dilatory Exception of Prematurity arguing that Barnes had not complied with any of the requirements of La.R.S. 9:355.4 because she had already relocated the child to California. He further argued that he should be made primary custodial parent. On August 31, 2010, Barnes filed an Opposition to Dilatory Exception of Prematurity with Incorporated Memorandum of Authorities in which she sets forth facts indicating that Granger was fully aware of the move as early as June 2010, and she attached a note handwritten by Granger in which he set forth various changes in the custody and child support arrangement based on the move to California. On September 7, 2010, Granger filed a Peremptory Exception of Res Judi-cata arguing that a 1999 consent judgment barred Barnes from relocating Savannah.

laFollowing a hearing on September 27, 2010, the trial court denied Granger’s Dilatory Exception of Prematurity and Peremptory Exception of Res Judicata. It further granted Barnes’ Motion for Court Authorization to Relocate Child. Granger now appeals and assigns as error:

1. The trial court’s overruling of the Dilatory Exception of Prematurity.
2. The trial court’s overruling of the Peremptory Exception of Res Judi-cata.
3. The trial court’s failure to follow the mandatory provisions of La.R.S. 9:355.1 after finding that Barnes had not complied with the statute.
4. The trial court’s failure to order that the minor child be returned to Louisiana and placed in his custody.
5. The trial court’s finding that Barnes met her burden of proving that she complied with La.R.S. 9:355.4. Alternatively, the trial court manifestly erred by ordering Savannah’s relocation in the absence of compliance with La.R.S. 9:355.1 et seq.
6. The trial court erred by improperly modifying a considered decree in the absence of any evidence that complies with the Bergeron standard and that Barnes failed to meet her burden of proof. Alternatively, the trial court manifestly erred by ordering a change in custody.

PREMATURITY

The dilatory exception of prematurity asks whether the cause of action |4has matured such that it is ripe for judicial determination. La.Code Civ.P. art. 926, Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782. An exception of prematurity merely slows down the progress of the action, but does not usually defeat it. La. Code Civ.P. art. 423. We review a trial court’s denial of an exception of prematurity under the manifest error standard. Pinegar v. Harris, 08-1112 (La.App. 1 Cir. 6/12/09), 20 So.3d 1081.

Louisiana Revised Statute 9:355.3(A) requires a parent exercising primary custody to notify the parent of the proposed relocation of the child’s residence. Louisiana Revised Statute 9:355.4 sets forth the specific requirements of notification including notice by registered or certified mail no later than “[t]he sixtieth day before the date of the intended move or proposed relocation.” Subsection (2) requires notice no later than the tenth day after the custodial parent knows the information to be furnished if she could not have known the information in time to comply with the sixty-day notice required of Subsection (1).

Barnes concedes that she did not send, by certified mail, notice as required by the statute, but hand-delivered it to Granger on August 10, 2010. However, she argues that Granger knew of the proposed move in advance of August 10. While we do not condone failure to strictly comply with the statutory requirements of notification, it cannot be said that it would be in the best interest of the minor child to return her to Granger in order that Barnes can send him certified mail with notice of her intent to relocate.

The legislature provided the trial court with remedies it may exercise when the parent fails to notify the other parent in accordance with the statute. Louisiana Revised Statute 9:355.6 states (emphasis added):

|RThe court may consider a failure to provide notice of a proposed relocation of a child or relocation without court authorization as provided by R.S. 9:355.3 and 355.4 as:
(1) A factor in making its determination regarding the relocation of a child.
(2) A basis for ordering the return of the child if the relocation has taken place without notice or court authorization.
(3) Sufficient cause to order the parent seeking to relocate the child to pay reasonable expenses and attorney fees incurred by the person objecting to the relocation.

The trial court took note of the improper notification method in its oral reasons. The best interests of the child trump the procedural requirements of La.R.S. 355.4. Moreover, the other facts and circumstances indicate that Granger knew of the possibility of proposed relocation more than thirty days in advance of the actual move. We find no manifest error in the trial court’s denial of the Exception of Prematurity. Accordingly, assignment of error number one is without merit.

RES JUDICATA

Granger argues that the May 17, 1999 Consent Judgment entered into by himself and Barnes pertaining to Savannah’s custody “is res judicata as to any subsequent litigation dealing with the rights contained in that judgment.” If this legal argument were valid, then a custody agreement could never be modified on any grounds, which is clearly contrary to the law and the best-interests standard applicable to minor children. Res judicata is a legal principle that is inapplicable to child custody and child support decrees, which are never final and are always subject to modification. See Kleiser v. Kleiser, 619 So.2d 178 (La.App. 3 Cir.1993). Assignment of error number two is without merit.

1 ^CUSTODY

In his fourth and sixth assignments of error, and in pleadings before the trial court, Granger argues that he should be named the primary domiciliary parent, therefore, placing custody at issue. In his sixth assignment of error, Granger argues that Barnes failed to meet her burden of proof under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). However, Granger is the party that moved for a change of custody, the event that triggers a Berger-on analysis.

A trial court’s determination of child custody is entitled to great weight on appeal and will not be disturbed absent a clear abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. The trial court shall award custody of a child in accordance with her best interests. La. Civ.Code art. 131. The best interests of the child are the paramount consideration of the court. Deason v. Deason, 99-1811 (La.App. 3 Cir. 4/5/00), 759 So.2d 219. Louisiana Civil Code Article 134 sets forth the factors to be considered when determining the child’s best interests.

|7The custody arrangement between Barnes and Granger was pursuant to a considered decree rendered in August 2000. When a considered decree of permanent custody has been rendered, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron, 492 So.2d 1193.

Granger’s assertion at trial and on appeal that a change of custody is warranted is unpersuasive. The issue is whether Barnes’ move with Savannah from Shreveport to California is so deleterious as to require the trial court to modify the existing custody decree. There was no evidence to suggest that Granger would be able to meet this burden of proof. As discussed in further detail below, the evidence showed it would only be to Savannah’s advantage to move to California. Accordingly, the trial court did not abuse its discretion in refusing to modify the existing custody decree. Thus, the award of joint custody to Barnes and Granger 1 ^remains in effect, as does the every-other-weekend visitation schedule that is afforded to Granger. Assignments of error four and six are without merit.

RELOCATION

The only issue remaining before this court is whether the trial court erred in authorizing Savannah’s relocation with her mother to California. Louisiana Revised Statute 9:355.13 sets forth the relocating parent’s burden of proof as follows:

The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.

Pursuant to La.R.S. 9:355.12, the factors the trial court shall consider in determining a contested relocation include:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelo-cating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and |3the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

Granger argues that Barnes failed to satisfy her burden of proof and that Barnes used the “excuse” that Savannah would be able to attend one of the best acting schools in the nation.

The following testimony was elicited at trial. Granger testified that he first learned of the possibility of the move at a custody exchange at a gas station in Natchitoches, Louisiana sometime in late July. Granger was repeatedly asked why it would be in fifteen-year-old Savannah’s best interests to reside with him to which he provided no clear answer. However, he pointed out that attending one of her school plays or a ball game becomes impractical with a cross-country move. Granger admitted to making notes about the proposed relocation at a meeting in which he and his wife, Savannah, and Barnes were present. He admitted bargaining and negotiating child support payments, visitation schedules, and various “stipulations” regarding the move to California. When questioned again about his daughter’s best interests, the |infollowing colloquy occurred:

Q. If the judge granted the relocation and worked out your visitation, is that something that you think is in Savannah’s best interest.
A. Repeat your question.
Q. I said if the judge granted the relocation and worked out the visitation schedule in the most favorable terms and conditions to you, would that satisfy your needs?
A. No. Because I — I think the needs here are for her mom to quit making derogatory statements about me and interfering with my relationship with Savannah. I think she needs to be protected from her mom’s attorney, who also makes derogatory statements.

Granger then proceeded to inform Barnes’ counsel that he would be contacting the Louisiana Attorney Disciplinary Board regarding this alleged behavior. Granger provided no testimony as to why he should be made the primary custodial parent or why the relocation was not in Savannah’s best interest.

Barnes testified that she is originally from California and is currently residing in her mother’s house in California. She testified that she was injured in an automobile accident in December 2009 that caused her to be permanently disabled from her employment as a surgeon. Barnes testified that following a visit to California in June to visit her mother, Savannah “fell in love” with the area. Barnes’ current husband, Jim Barnes, was a practicing baria-tric surgeon in Shreveport. Barnes testified that they attended a Bariatric Society Meeting in late June in which Jim was invited to California to interview for an opening in a bariatric partnership. Barnes said that Jim was made an offer of employment shortly after the fourth of July. However, she said that Savannah had informed Granger of the possibility of the move following Jim’s first interview in June.

Barnes said that she personally first informed Granger of the possibility |T1of the move in late July when they were exchanging Savannah at a gas station in Natchi-toches, Louisiana. She said that the second time she informed him was on August 10 at his home at which time she hand-delivered written notice to him of the intended move. The notice is three pages long and details the reasons for relocation. Barnes presented the California high school calendar to Granger so that visitation could be arranged according to holidays and the schedule. She testified that Granger made various notes on the back of the schedule negotiating child support and other things.

Barnes said that Savannah had been in school since August 19 and had visited Granger every other weekend, at her cost, pursuant to their currently existing visitation schedule. Barnes stated that she did not move to California to punish Granger and that she felt the move was in Savannah’s best interest. She detailed the opportunities available in the area and the community. At the close of the evidence, the trial court stated:

Kit’s the ruling of this Court that the child is to remain with the mother in California, and that she is to continue to visit as originally ordered, and the — the parents are to share the expense. When mother sends her, mother has to pay for it; when father sends her back, father pays for it. Every other — everything else in previous rules are to be maintained.
And let me give you some reasons. First of all, based upon the history of this case and the fact that this is not the first time that I sit on — on issues in this case, that under the circumstances, the Court believes that the — it is in the full interest of the child, at this time, to remain with the mother; because she is older than the original ruling in this case, and because she had problems with spending time with her father, in the first place.
I granted joint custody because father has a right to exercise it. I used the— power of this court to maker her interact with her father because we had a baby about to rule the nest here, and we couldn’t have that. And I played the tyrant and made her visit with her father, as she 112continues to do and must continue to do as long as she is a minor.
Now mother should not object about paying to send the child here because she did not follow the statute fully when she moved to California. Though, this Court deems, as a practical matter and in the best interest of the child, her giving the signed Proposal and Notice of her move, together with the caveat “seek legal counsel if you have an objection,” was sufficient and practical not only under the law, but in everyday exercise of custodial jurisdiction over a child.
And, for that reason, that is the order of this Court.

The trial court found, and this record (as well as past records) reflects that Savannah has spent the majority of the time with her mother. Granger, a cardiovascular surgeon, has a demanding job that requires that he be away from home for extended periods of time. Moreover, it is overwhelmingly clear that the litigation is not at all about Savannah’s best interests, but rather the animosity between the former spouses.

We find the trial court did not abuse its discretion in allowing the relocation of Savannah to California. Barnes is originally from the area, her husband accepted employment there, her mother lives there, opportunities abound for excellent and specialized educational opportunities for Savannah, Savannah has always primarily lived with her mother and expresses a preference to live with her, and these parties have ample financial resources to facilitate visitation as set forth in the joint custody decree. Granger offered no evidence whatsoever to suggest that it would be in Savannah’s best interest if she resided with him. Accordingly, assignments of error three and five are without merit.

CONCLUSION

The trial court’s judgment denying Granger’s Exception of Prematurity and Exception of Res Judicata is affirmed. The trial court’s judgment authorizing the | ^relocation of the minor child to Coronado, California is affirmed. All costs of this appeal are assessed to plaintiff/appellant, Tommie Mack Granger.

AFFIRMED.

      . Now Stephanie W. Barnes whom we will refer to as Barnes throughout this opinion.

      . We reversed a portion of that judgment pertaining to child support that is not at issue.

      . The 1999 consent judgment reads:
      Plaintiff, Stephanie W. Granger, and the minor child, Savannah Granger, shall not move outside of a 300 mile radius from Alexandria, Louisiana, however, the sole exception to this agreement is that they shall be allowed to remain in the Memphis, Tennessee area and, in accordance with the provisions of the Louisiana relocation statute, LRS 9:355, et seq., Louisiana shall retain jurisdiction as long as Defendant, Tommie Mack Granger, remains domiciled in Louisiana....

      .We note that Granger fails to argue his assignments of error individually, thus making it difficult at times to determine which arguments go with which assignments of error. We have addressed the assignments of error out of order as necessary.

      . That judgment specifically limited Barnes’ ability to move Savannah more than three hundred miles out of Alexandria, Louisiana as set forth in footnote three.

      . We note that there is some dispute among the circuit as to what triggers a Bergeron analysis with some concluding that a change in visitation is sufficient, while others conclude that a change in custody in required. See Granger, 25 So.3d 162. We need not address that issue again here as Granger has moved to be named the primary domiciliary parent — a clear change in the considered custody decree' — which triggers a Bergeron analysis.

      . The "best interest" factors include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.

        (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . See Granger, 25 So.3d 162.

      . The notice meets the various requirements outlined in La.R.S. 9:355.4(B).


author: PICKETT, Judge.

text:
    Jennifer THIBODEAUX v. Bill COMEAUX, et al.
    No. 11-127.
    Court of Appeal of Louisiana, Third Circuit.
    June 15, 2011.

      John M. Jefcoat, Britney L. Hebert, Galloway & Jefcoat, L.L.P., Lafayette, LA, for Plaintiff/Appellant, Jennifer Thibodeaux.
    L. Lane Roy, Alyse Richard, Preis & Roy, APLC, Lafayette, LA, for Defendant/Appellee, State of Louisiana, Department of Transportation and Development.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| iPlaintiff appeals the trial court’s judgment denying her claims against the State of Louisiana through the Department of Transportation and Development (DOTD). For the following reasons, we reverse this finding. We also affirm in part and amend in part the trial court’s assessment of fault, and we award damages.

FACTS

Jennifer Thibodeaux was seriously injured in an automobile accident on May 23, 2001, when her 1993 Nissan Sentra exited the southern eastbound lane of Highway 190 in St. Landry Parish and struck a mound of debris (the debris) that included a block of concrete weighing approximately 3500 pounds and a tractor tire. The accident occurred at approximately 5:30 a.m. when Ms. Thibodeaux’s vehicle crossed into the northern eastbound lane of the highway and collided with a vehicle driven by Bill Comeaux. As a result of the collision, Ms. Thibodeaux lost control of her vehicle, exited the highway, traveled through a ditch which runs parallel to Highway 90, and struck the debris, specifically the block of concrete. These facts are a compilation of the testimony of the Louisiana State Trooper who investigated the accident and a good Samaritan who stopped after the accident to render aid due to Ms. Thibodeaux having no memory of the accident and Mr. Comeaux having died before the trial.

During the accident, Ms. Thibodeaux was ejected from her vehicle. She suffered two fractures of her lower jaw, two fractured vertebrae at T12 and LI, three fractures to her pelvis, and a lacerated spleen. She was in intensive care for three | ?days and was hospitalized for a total of nine days. While hospitalized, she underwent surgery to repair the fractures of her jaw. This repair required that her jaw be wired closed until July 9, 2001, when another surgical procedure was performed to remove the bars which held her jaw closed. Ms. Thibodeaux was on a liquid diet during that time.

Although her back and pelvic fractures were displaced and painful, Ms. Thibo-deaux was prescribed physical therapy three weeks after being released from the hospital. When she began therapy, Ms. Thibodeaux was unable to walk and complained of significant pain. After five weeks of therapy, she still had pain but was released from therapy, notwithstanding having just achieved her goals, because she needed to return to work to pay the medical bills she had begun receiving. Ms. Thibodeaux was unable to walk for eight weeks following the accident.

Despite having suffered severe injuries, Ms. Thibodeaux was very fortunate, as her diligent efforts and hard work to rehabilitate herself were very successful. She returned to work in her usual employment as a janitor after being released from physical therapy and only sought medical treatment once thereafter for her back in October 2001. At that time, she complained of severe pain in her mid and low back which was treated with injections and a back brace. She used the back brace until she quit working in 2008. Ms. Thibo-deaux’s physician assessed a 20% permanent partial anatomical impairment rating due to her T12 and LI fractures and congenital spondylolisthesis which was aggravated by the accident. Ms. Thibodeaux married in April 2005 and had a child in July 2009. She continues to experience shooting pain in her jaw occasionally, as well as pain in her back and pelvis, which she attributes to changes in the weather.

IsMs. Thibodeaux sued Mr. Comeaux, his insurer, DOTD, and others, alleging they caused and/or contributed to her damages. Her claims against DOTD were tried to the trial court on September 2, 2010. Evidence established that prior to the accident, DOTD contracted with Gilchrist Con-stouction Company (Gilchrist) to perform construction work on Highway 190 at or adjacent to the area where Ms. Thibo-deaux’s accident occurred. Gilchrist’s superintendent for the project, Ronald Ar-doin, testified that the debris had been in the same location it was the day of Ms. Thibodeaux’s accident from the time Gilchrist started working on the project, two to three months before the accident, and remained there until the project was complete. He stated he had seen the debris before the accident but did not know who placed it there.

Mr. Ardoin testified that the accident did not occur in the “clear zone,” which he defined as an area that DOTD requires be kept free of objects a vehicle might strike if it left the roadway. He also testified that the accident occurred outside the work zone or limits of construction of the project. He explained that if the debris had been within the project’s limits of construction, Gilchrist would have had to remove the debris. He testified, however, the debris was not within the limits of construction; therefore, Gilchrist had not removed it.

Mr. Ardoin related that DOTD project inspectors and a project engineer who addressed problems with him concerning the project were on the project site daily. He stated DOTD did not inform him the debris was Gilchrist’s responsibility and did not instruct him to remove it or to correct anything on the project. DOTD did not dispute his testimony.

|4Ms. Thibodeaux presented the testimony of two expert witnesses regarding DOTD’s liability. Kelley Seale Adamson was qualified as an expert in civil engineering with an emphasis on structures and in accident reconstruction, and the parties stipulated that Dean Tekell Jr. is an expert in highway design with an emphasis on traffic engineering. The trial court completely discounted Mr. Adam-son’s testimony and opinions and relied upon Mr. Tekell’s testimony and opinions in deciding DOTD’s liability.

Mr. Tekell testified the debris was thirty-five feet south of the centerline of Highway 190. He further testified that according to DOTD’s construction plans for the project, the accident occurred within the DOTD’s right of way along Highway 190 and within the limits of construction of the project but outside the clear zone of the project. Mr. Tekell further testified that pursuant to the American Association of State Highway and Transportation Official (AASHTO) standards, it is permissible to leave stationary items in the right of way but outside the clear zone for short periods of time, a day or two during a particular phase of the project, but it is impermissible to leave stationary items in the right of way indefinitely. He explained that DOTD’s plans and specifications for the project called for Gilchrist to remove debris from the right of way during the course of the project. He opined that Gilchrist failed to satisfy the contract by leaving the debris in the right of way too long and that DOTD should have instructed Gilchrist to remove the debris from the right of way.

At the conclusion of the trial, the trial court found that Gilchrist and DOTD knew the debris was within the right of way but did not remove it and determined that it created an unreasonable risk of harm with regard to Gilchrist but not DOTD. The ]¿trial court assessed Ms. Thibodeaux with 60% fault and Gilchrist with 40% fault. Ms. Thibodeaux appealed.

ASSIGNMENTS OF ERROR

Ms. Thibodeaux assigns three errors with the trial court’s judgment:

1. The trial court erred in finding the concrete debris pile did not create an unreasonable risk of harm with respect to DOTD.
2. The trial court erred in finding the concrete debris pile did not act as an intervening and superceding cause to the plaintiffs injuries.
3. The trial court erred in allocating 60% fault to her.

STANDARD OF REVIEW

Factual findings of a trial court are reviewed under the manifest error-clearly wrong standard of review. Fontenot v. Patterson Ins., 09-669 (La.10/20/09), 23 So.3d 259. Under this standard, “an appellate court may not disturb a [trial court’s] finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous.” Id. at 267. If a trial court commits legal error by applying a wrong legal standard, however, the appellate court must perform a de novo review of the record and render a judgment on the merits. Becker v. Dean, 03-2493 (La.9/18/03), 854 So.2d 864.

DISCUSSION

DOTD’S LIABILITY

“DOTD has a duty to maintain the public roadways, including adjacent shoulders and areas in the DOTD’s right-of-way, in a condition that, is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising 1 r,ordinary care and reasonable prudence.” Forbes v. Cockerham, 08-762, 08-770, p. 31 (La.1/21/09), 5 So.3d 839, 858.

DOTD’s duty is not limited to prudent and attentive drivers and extends “to motorists who are slightly exceeding the speed limit or momentarily inattentive.” Netecke v. State ex rel. DOTD, 98-1182, 98-1197, p. 8 (La.10/19/99), 747 So.2d 489, 495. This duty does not make DOTD the guarantor for the safety of all the motoring public or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Id. DOTD can be held liable “only [for] a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.” Id. The fact that an accident occurred does not result in an inference that an unreasonable risk of harm exists. Id. Whether DOTD breached its duty to the public depends on all the facts and circumstances determined on a case by case basis. Forbes, 5 So.3d 839.

To establish that DOTD is hable for her injuries, a plaintiff must prove:

(1) DOTD had custody of the thing that caused [her] injuries or damages;
(2) the thing was defective because it had a condition that created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect in the thing was a cause-in-fact of [her] injuries.

Netecke, 747 So.2d at 494.

The trial court concluded that Ms. Thibodeaux proved the first, third, and fourth factors above. DOTD argues the trial court’s findings with respect to these factors were wrong. Ms. Thibodeaux correctly asserts, however, that because DOTD did not answer her appeal, it is not entitled to have these findings of fact modified. 7Walker v. Clarendon Nat’l Ins. Co., 01-2338 (La.12/14/01), 802 So.2d 1285. Accordingly, we only address Ms. Thibo-deaux’s contention that the trial court erred in finding the debris did not present an unreasonable risk of harm with regard to DOTD and in its assessment of fault.

Determining whether the debris created an unreasonable risk of harm is not a simple task. The supreme court has explained that courts must use the “unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing ... while considering a broad range of social and economic factors.” Forbes, 5 So.3d at 860. These factors include “the cost to the defendant of avoiding the harm, as well as the risk and the social utility of the party’s conduct at the time of the accident.” Id. “[A]ll the circumstances surrounding the particular accident under review must be considered to determine whether DOTD’s legal duty encompassed the risk which caused the plaintiffs damages.” Id.

Relying on Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123, the trial court determined that the debris did not constitute an unreasonable risk of harm as to DOTD because no defect on Highway 190 or its shoulder caused or contributed to Ms. Thibodeaux’s exiting the roadway and colliding with the debris. The trial court made this conclusion without considering and weighing the factors of the unreasonable risk criterion outlined by the supreme court in Netecke, 747 So.2d 489, Forbes, 5 So.3d 839, and numerous other cases involving DOTD. Rather, it based its conclusion on one factor present in both Cormier and in this case. By doing so, the trial court committed legal error. Becker, 854 So.2d 864. Therefore, we now perform a de novo review of the record and render a decision on the merits. Id.

18Mr. Ardoin testified Gilchrist did not create the debris, and no evidence indicates otherwise. Accordingly, the trial court had to determine that Gilchrist’s obligation to remove the debris arose from its contract with DOTD. DOTD’s duty to maintain the highways, shoulders, and rights of way in a reasonably safe condition is non-delegable. Woods v. State, 37,185 (La.App. 2 Cir. 8/14/03), 852 So.2d 1109, writ denied, 03-2584 (La.11/26/03), 860 So.2d 1140. See also Simmons v. Forby Contracting, Inc., 97-1588 (La.App. 3 Cir. 4/29/98), 712 So.2d 614, writ denied, 98-1427 (La.7/2/98), 724 So.2d 740; Roberts v. State, Through Dep’t of Transp. and Dev., 576 So.2d 85 (La.App. 2 Cir.), writ denied, 581 So.2d 685 (La.1991). Therefore, if the trial court’s finding that the debris constituted an unreasonable risk of harm with regard to Gilchrist is correct, its finding that the debris was not an unreasonable risk of harm with regard to DOTD is legally incorrect.

We now review the facts of this case according to the unreasonable risk of harm criterion and begin by observing that the debris had no social utility. Moreover, there is no evidence the debris was visible to drivers like Ms. Thibodeaux who traveled that portion of Highway 190 early in the morning. Therefore, the danger posed by the debris may not have been perceived by drivers who inadvertently left the roadway. The severity of Ms. Thibodeaux’s injuries shows that the likelihood of the harm presented by the debris was not minimal.

The social utility of Ms. Thibodeaux’s conduct immediately prior to the accident was meaningful, as she was driving on Highway 190 to work in a manner consistent with its intended use and purpose. Her use of the highway at the time of the accident, though, was not meaningful because for an unknown reason, she left her lane of travel, collided with Mr. Comeaux’s vehicle, lost control of her vehicle, and 19exited the highway. There is no evidence she attempted to stop or significantly slow her vehicle at any time after colliding with Mr. Comeaux’s vehicle. Under these circumstances, we find no social utility in Ms. Thibodeaux’s actions which caused her to leave the highway.

DOTD cannot be held responsible for all injuries on the state’s highways that result from careless driving, but the following facts show that holding DOTD responsible in this case will not place an unreasonable burden on the State and DOTD: 1) it should have been foreseeable to DOTD that the debris posed a serious danger to any driver who inadvertently lost control of her vehicle and left the highway; 2) DOTD’s failure to remove the debris from its right of way was a violation of AASHTO standards which DOTD adopted and must follow, La.R.S. 48:35(A); 3) DOTD employees were at the site of the debris daily and knew or should have known of its existence and location; 4) DOTD’s contract with Gilchrist included debris removal; 5) removal of the debris required only an instruction to Gilchrist; and 6) removal of the debris would not have cost DOTD any additional funds.

Importantly, we observe that imposing liability on DOTD in this case does not create concerns cases like Cormier, 748 So.2d 1123, and Netecke, 747 So.2d 489, seek to avoid. It does not require DOTD to perform unreasonable inspections or expend exorbitant amounts of money the State does not have to bring an old highway up to current AASHTO standards. Imposing liability here only requires DOTD and its employees to observe what is clearly visible and to have its contractors perform duties they are contracted to perform.

| inFor these reasons, we find the trial court committed legal error in finding the debris did not constitute an unreasonable risk of harm as to DOTD and reverse that finding of fact.

ASSESSMENT OF FAULT

Ms. Thibodeaux assigns error with the trial court’s assessment of fault and argues DOTD should be assigned a higher degree of fault than her, if not 100% fault. The assessment of fault as required by La.Civ.Code art. 2323 is a fact determination which is reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. In Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La.1985), the supreme court identified factors to be considered when apportioning fault, explaining:

[Vjarious factors may influence the degree of fault assigned, including: (l)whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Drivers are presumed to be negligent when they cross into another lane of travel and strike a vehicle traveling in its lane of travel, Stone v. Bullard, 43,996 (La.App. 2 Cir. 1/28/09), 2 So.3d 1241, and when they lose control of their vehicles. O’Quin v. Continental Cas. Ins. Co., 07-355 (La.App. 3 Cir. 10/10/07), 967 So.2d 1194, writ denied, 07-2207 (La.1/25/08), 973 So.2d 755. These two presumptions are applicable to Ms. Thibo-deaux. Drivers also have a duty to maintain a proper lookout for hazards that could pose an unreasonable risk of harm to them. Id.

| iiThe State Trooper testified that Ms. Thibodeaux’s vehicle traveled 400 feet after colliding with Mr. Comeaux’s vehicle, and Mr. Tekell testified that the debris was thirty-five feet from the centerline of the highway. There is no evidence that anything between her impact with Mr. Co-meaux’s vehicle and her encounter with the ditch prevented Ms. Thibodeaux from regaining control of her vehicle, but she failed to do so. This evidence shows Ms. Thibodeaux’s negligence was a substantial factor in causing the accident; therefore, the trial court’s assessment of 60% fault to her is not manifestly erroneous.

Having found the trial court erred in not finding DOTD liable, we must determine what percentage of fault should be assessed to it. In Roberts, 576 So.2d 85, the court addressed this issue under circumstances similar to those present here and explained that while DOTD’s duty to the plaintiff was non-delegable, the contractor’s failure to fulfill its contractual obligations rendered the contractor liable to the plaintiff also. In apportioning fault between DOTD and Gilchrist, we observe neither DOTD nor Gilchrist created the debris, both Gilchrist and DOTD had a duty to remove the debris, and both had an equal opportunity to observe the debris and have it removed. For these reasons, we apportion 20% fault to DOTD and 20% fault to Gilchrist.

DAMAGES

The trial court committed legal error in finding the debris did not constitute an unreasonable risk of harm to Ms. Thibo-deaux with regard to DOTD; therefore, we have conducted a de novo review of the record to determine the amount of damages to be awarded Ms. Thibodeaux. The parties stipulated that Ms. Thibodeaux’s medical expenses were $64,677.40. Ms. Thibodeaux testified she could not work for two 112months due to her injuries. At the time of the accident, she had a full-time job as a janitor and a part-time job as a cashier. She worked forty hours a week at her full-time job where she earned $7.80 per hour and 14.5 hours per week at her part-time job wheresshe earned $5.15 per hour. Accordingly, she lost wages of $2,496 plus $597.40 or $3,093.40 as a result of the accident.

Ms. Thibodeaux suffered serious injuries, but she worked hard and was rewarded with an excellent recovery. She does, however, continue to suffer occasional pain as a result of her injuries and was assessed a 20% permanent partial impairment rating. Under these circumstances, we award $125,000 in general damages, $64,677.40 in medical expenses, and $8,093.40 in lost wages.

DISPOSITION

The trial court’s finding of fact that the debris did not create an unreasonable risk of harm with regard to the State through the Department of Transportation and Development is reversed. The trial court’s assessment of fault is amended to assess 20% fault to the State through the Department of Transportation and Development and 20% fault to Gilchrist Construction Company; its assessment of 60% fault to Ms. Thibodeaux is affirmed. Ms. Thibo-deaux is awarded general damages in the amount of $125,000, medical expenses in the amount of $64,677.40, and lost wages in the amount of $3,098.40, together with legal interest thereon from the date of judicial demand. Costs of this appeal are assessed 60% to Ms. Thibodeaux and 40% to the State through the Department of Transportation and Development.

REVERSED IN PART; AFFIRMED IN PART; AMENDED AND RENDERED.

      . Ms. Thibodeaux asserted a claim against the manufacturer of her car that her seatbelt was defective because it failed during the accident. That claim was settled, and her use or nonuse of her seatbelt was not an issue at trial.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Emanuel RANDALL.
    No. 2010-KA-1027.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 22, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).

      . Defendant's conviction and original sentence in that case were affirmed by this Court in State v. Randall (unpub.), 2008-0289 (La.App. 4 Cir. 8/13/08), 989 So.2d 881. He was later charged as a third offender, adjudicated as such, and sentenced in March 2009 to five years without the benefit of probation, parole, or suspension of sentence. His sentence was amended to delete the prohibition on parole, and as amended, affirmed. State v. Randall, 2010-0027 (La.App. 4 Cir. 10/27/10), 51 So.3d 799.

   ROLAND L. BELSOME, Judge.

^^Defendant-Appellant Emanuel Randall appeals his adjudication as a quadruple offender under La. R.S. 15:529.1 and his sentence of life imprisonment. For the reasons that follow, we affirm the adjudication and sentence as amended.

PROCEDURAL HISTORY OF THE CASE

On December 5, 2006, Defendant-Appellant Emanuel Randall was charged with possession of cocaine, a violation of La. R.S. 40:967(C), and was found guilty as charged by a six-person jury following trial on January 13, 2009. Defendant filed a motion for new trial on February 2, 2009, as well as a motion for appeal. The State filed a multiple bill of information. On March 13, 2009, Defendant pled not guilty to the multiple bill, and the trial court sentenced him to serve five years at hard labor in the custody of the Department of Corrections. On August 18, 2009, following remand from this Court, the trial court denied appellant’s motion for new trial. This Court subsequently affirmed the Defendant’s conviction, vacated his sentence, and remanded the matter for resentencing. State v. Randall (unpub.), 2009-0782 (La.App. 4 Cir. 12/16/09), 25 So.3d 1035.

While the Defendant’s conviction and original sentence were on appeal, on November 3, 2009, the State filed a new multiple bill of information charging | ¡¡Defendant as a fourth offender. Defendant entered a plea of not guilty. On January 4, 2010 the court conducted a multiple offender hearing and found Defendant was a quadruple offender. The court vacated the previous sentence of March 13, 2009 and sentenced Defendant to life at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served, to run consecutively with all other sentences.

On January 5, 2010, this Court’s opinion vacating Defendant’s sentence and remanding for resentencing was filed into the district court. Accordingly, on January 19, 2010, the trial court vacated the sentences of March 13, 2009 and January 4, 2010 and resentenced Defendant as a fourth offender to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant orally filed a motion for an appeal, which was granted.

ERRORS PATENT

A review of the record evidences one error patent relative to the Defendant’s sentence. The minute entry dated January 19, 2010 reflects that the Defendant’s life sentence is to be served without the benefit of suspension of sentence. However, the transcript of January 19, 2010 reflects that the court imposed the life sentence without the benefit of probation, parole, or suspension of sentence. Where there is a discrepancy between a minute entry and the transcript, the transcript prevails. State v. Randall, 2010-0027, p. 3 (La.App. 4 Cir. 10/27/10), 51 So.3d 799, 802; State v. Rideau, 2005-0462, p. 34 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 147; and State v. Kirkling, 2004-1906, pp. 9-10 (La.App. 4 Cir. 5/18/05), 904 So.2d 786, 792. While the multiple offender sentenced imposed Lunder La. R.S. 15:529.1 must be served without the benefit of probation or suspension of sentence, the statute does not provide that the sentence be served without the benefit of parole. La. R.S. 15:529.1(G). Furthermore, La. R.S. 40:967 C(2), which provides the sentence for possession of cocaine, does not provide that the sentence be served without the benefit of parole, probation, or suspension of sentence. Accordingly, the sentence imposed by the trial court is illegal.

The matter is thus remanded to the trial court to amend the sentence and delete any reference to the denial of parole. The trial court shall furnish the Department of Corrections with a commitment form which reflects the amended sentence. See State v. Randall, 2010-0027, p. 14, 51 So.3d at 808.

DISCUSSION

In the first assignment of error, Defendant asserts that his life sentence is excessive. Although no motion to reconsider sentence was filed following either the January 4, 2009 or the January 19, 2009 sentencing, immediately after sentencing him each time, the trial court noted an objection on Defendant’s behalf. In State v. Every, 2009-0721, pp. 6-7 (La.App. 4 Cir. 3/24/10), 35 So.3d 410, 416, writ denied, 2010-0929 (La.11/19/10), 49 So.3d 397, this Court recognized that, under similar circumstances in State v. Dunbar, 2006-1030, p. 3 (La.App. 4 Cir. 3/19/08), 981 So.2d 51, 53, the Court held that the trial court’s actions in sua sponte making an objection for the defendant served to effectively preserve the defendant’s right to raise on appeal the issue that his sentence was unconstitutionally excessive. Therefore, in this case, the trial court’s objection on 1 ¡¡Defendant's behalf sufficed to preserve for review, despite the Defendant’s failure to file a motion to reconsider sentence or enter an objection on his own behalf.

Defendant in this case was sentenced to life imprisonment at hard labor, the maximum sentence under La. R.S. 15:529.1(A)(l)(c)(i), which provides in pertinent part:

(c) if the fourth or subsequent felony is such that, upon a first conviction the appellant would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.

In State v. Every, this Court recognized the well-settled standard for reviewing a claim of an excessive sentence:

In State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court set forth the following standards for reviewing a claim of excessive sentence:
Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.
Id. (Internal citations omitted). The reviewing court must determine whether the district court adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). If the reviewing court finds adequate compliance with Article 894.1, it must determine whether the sentence the district court imposed is too severe in light of the particular appellant as well as the particular circumstances of the case, “keeping in mind that maximum sentences should be reserved for the 1 ¿most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239; see also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

State v. Every, 2009-0721, pp. 7-8, 35 So.3d at 417. Likewise, “[wjhen the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even when there has not been full compliance with Article 894.1.” Id. (citing State v. Egana, 97-0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223).

At the resentencing hearing on January 19, 2010, the trial court did not provide specific reasons for imposing the life sentence again. Instead, the court referred to the reasons it provided at the January 4, 2010 multiple offender sentencing, stating that they were being included in the “transcript verbatim, word-for-word, as if reiterated live on the record;” the court also incorporated the reasons it assigned at the original sentencing on March 13, 2009, again “verbatim, as if read into the record by the Court word-for-word.” The court noted that it had considered La. C. Cr. P. arts. 893 and 894, as well as the presen-tence investigation report, and subsequently imposed the life sentence.

A review of the January 4, 2010 transcript reflects that the trial court stated that it reviewed the presentence investigation report and determined that Defendant was not a good candidate for a downward departure from the mandatory minimum sentence. The trial court further determined that Defendant was not eligible for probation based upon his criminal record, which included convictions in 1990 and 1991 for possession of cocaine. The trial court acknowledged that Defendant had Jabeen given probation in the 1990 and 1991 convictions, but that on both occasions, his probation was revoked. The court recognized Defendant’s continuing problem with substance abuse, noting that in 1991 he had been sent to Odyssey House as a condition of his probation, which was subsequently revoked. Considering the foregoing, the trial court determined that Defendant had repeatedly failed to take advantage of the opportunities to overcome his addiction which had been afforded to him on numerous occasions by the courts.

Next, the trial court reviewed Defendant’s violent criminal history and concluded that Defendant was a danger not only to himself, but also to others. Most notably, the trial court acknowledged that Defendant had already once received a life sentence, as Defendant had previously been convicted of second degree murder and sentenced to life imprisonment. The conviction was vacated on appeal and the matter remanded for further proceedings; in a subsequent plea bargain with the district attorney’s office, Defendant pled guilty to manslaughter and received an eleven-year sentence with credit for time served. However, upon his release from prison for manslaughter, according to the trial court, Defendant “returned to his life of crime and substance abuse.”

The trial court further stated that upon review of the provisions of La. C. Cr. P. arts. 893 and 894, the court had determined that there was an undue risk that Defendant would commit another crime; that Defendant was in need of | scorrectional treatment; and that a lesser sentence would deprecate the seriousness of Defendant’s crime. Additionally, the trial court noted that although possession of cocaine was arguably “a crime without a victim,” the real victim was Defendant, who was a danger to himself due to his “long-term chronic addiction to cocaine.” Significantly, the trial court concluded that Defendant “has proven that he is also a danger to others, in connection with this [sic] plea to manslaughter.” Finally, the court acknowledged Defendant’s extensive and significant criminal history, both as previously discussed by the court and as reflected in the presentence investigation report.

A review of the transcript of January 4, 2010, incorporated by reference into the resentencing proceeding held on January 19, 2010, evidences that the trial court complied with the sentencing guidelines and considered both mitigating and aggravating circumstances. However, Defendant argues that his sentence is excessive because it far exceeds the sentences imposed upon other fourth offenders convicted of possession of cocaine.

In support of this argument, Defendant cites cases in which the minimum sentence of twenty years was imposed. Notably, however, in none of the cited cases did the defendant therein have any prior felony convictions as violent as Defendant’s prior conviction. For example, in State v. Allen, 2009-0813 (La.App. 4 Cir. 1/13/10), 30 So.3d 1024, the most serious of the predicate convictions was a second-degree battery. Likewise, in State v. Jones, 2007-0533 (La.App. 4 Cir. 12/28/07), 975 So.2d 73, the defendant’s prior convictions were for simple robbery, illegal use of a weapon, and possession of cocaine. Additionally, in State 9v. Briggs, 2009-0148 (La.App. 4 Cir. 8/19/09), 19 So.3d 517, writ denied, 2009-1964 (La.4/5/10), 31 So.3d 355, none of the defendant’s four offenses involved violence or crimes against the person. The three predicate offenses in Briggs were for possession of cocaine, theft of property valued between $100 and $500, and possession of stolen property, while the most recent offense was attempted possession of cocaine. Significantly, despite the non-violent criminal history and the arguably minor nature of the most recent offense, this Court rejected defendant Briggs’ argument that the minimum twenty-year sentence was constitutionally excessive. Similarly, in State v. Perkins, 2008-0078 (La.App 4 Cir. 6/25/08), 988 So.2d 793, the sole issue was whether the trial court had jurisdiction to reduce the defendant’s minimum twenty-year sentence as a fourth offender to a ten-year sentence several years after the sentence had originally been imposed. This Court held that the trial court erred in failing to grant the State’s motion to reconsider sentence.

In other circuits, in State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, the Fifth Circuit upheld the defendant’s sentence of twenty years at hard labor. The defendant was convicted of possession of cocaine, adjudicated a fourth felony offender and sentenced to the mandatory minimum of twenty years without the benefit of parole, probation, or suspension of sentence. His prior convictions included robbery, felon in possession of a firearm, and burglary. Additionally, in State v. Lemon, 08-619 (La.App. 5 Cir. 12/16/08), 3 So.3d 20, the court upheld a sentence of thirty-five years imposed upon a habitual offender whose convictions included one crime of violence, aggravated battery, and multiple convictions for possession of cocaine. The court rejected the defendant’s argument that the sentence imposed was disproportionate to the nature of the Imoffense being enhanced, which was another conviction for possession of cocaine, and upheld the sentence despite the trial court’s failure to give any reasons for the sentence imposed.

Defendant also relies upon State v. Ealy, 44,252 (La.App. 2 Cir. 5/13/09), 12 So.3d 1052, writ denied, 2009-1393 (La.2/5/10), 27 So.3d 298, in which a forty-year sentence imposed on a fourth offender convicted of aggravated battery was upheld by the Second Circuit. Finally, in State v. Johnson, 43,302 (La.App. 2 Cir. 4/30/08), 982 So.2d 260, also relied upon by Defendant, the court upheld the imposition of the maximum life sentence imposed on the defendant who was adjudicated a fourth offender. Johnson’s current conviction was for simple possession of cocaine, as was Defendant’s conviction in this case. The Second Circuit recognized that the trial court had reviewed the reasons it had provided at an earlier sentencing in the case, the facts of the instant case, the defendant’s extensive criminal history, the defendant’s attitude to the police officers who arrested him for domestic violence, and the appropriateness of the multiple offender law in situations such as the one before the court. Although the defendant argued that a life sentence was excessive, considering that he was fifty years old and eight of his felony convictions were for non-violent offenses, the Second Circuit ultimately concluded that the record supported the sentence of life imprisonment.

In this case, the trial court plainly considered a variety of factors in concluding that a life sentence was appropriate for Defendant. Most significantly, the trial court recognized the fact that a jury had previously found Defendant guilty of second degree murder by a jury, for which he was convicted and received a sentence of life imprisonment. Furthermore, according to the presentence Ininvestigation report, Defendant was subsequently arrested three times within four months for criminal trespass and for disturbing the peace. Two months later, he was arrested for possession of a firearm by a convicted felon; that charge was refused on December 28, 2005. Less than a year later, on February 5, 2006, Defendant was arrested for possession of cocaine. On July 11, 2007, Defendant was found guilty of attempted possession of cocaine.

In the interim, Defendant committed the instant offense on June 19, 2006. The presentence investigation report further reflects that in connection with the instant offense, Defendant was convicted of resisting an officer. In 2008, warrants were issued for Defendant in Jefferson Parish for domestic abuse battery and for harassment; the charges were still outstanding at the time that the report was prepared. Additionally, prior to his arrest for second degree murder, Defendant was also arrested multiple times for simple and aggravated battery and also armed robbery, although the charges were refused.

Defendant, who was born in 1972, has a criminal history which dates back to 1989, when he was seventeen years of age. As the trial court acknowledged, Defendant has never successfully completed a period of probation or parole. While his first offenses were non-violent and apparently related to his substance abuse problem, Defendant sharply escalated to being convicted of second degree murder. Thereafter, despite an eleven-year period of incarceration, he returned to 112a life of abusing drugs and committing numerous crimes upon his release from prison.

Defendant contends that the trial court failed to give sufficient consideration to the testimony given by his father, Charles Tapp, at the sentencing hearing held on January 4, 2010. Mr. Tapp testified that he would support his son and that the Defendant’s mother was ill and needed her son. However, Mr. Tapp in his testimony suggested that Defendant’s life of crime was not his own fault, stating that Defendant was under his control as a teenager until he wént to live with his mother, who gave him more freedom. Mr. Tapp also stated that he did not think that his son “deserve [sic] a lot of the things that he’s getting.... So, I think he got a bad deal.” Mr. Tapp further testified that before Defendant was released following his guilty plea to manslaughter, he had not been given an education or guidance; “nothing [was] provided for him to readjust Mm.... And he was let back out on the streets, and there was no direction for him. And we tried to get him programs, but there was nothing ... they didn’t give him [any] opportunities to really better himself.”

The trial coui't stated that it reviewed the provisions of La. C. Cr. P. arts. 893 and 894.1 in making its determinations. Additionally, it is unnecessary for a trial court to list every aggravating or mitigating factor, provided that the record demonstrates the court adequately considered the guidelines. State v. Smith, 433 So.2d 688, 698 (La.1983). Accordingly, we find that the record evidences the trial court’s consideration of Mr. Tapp’s testimony in making its determinations. Additionally, it is well-settled that a trial court is vested with wide discretion in imposing a sentence within the statutory limits, and such sentence will not be set aside as excessive absent an abuse of discretion. State v. Williams, 2003-3514, | ,sp. 14 (La.12/13/04), 893 So.2d 7, 16; State v. Every, 2009-0721, pp. 7-8, 35 So.3d at 417. Considering the trial court’s aforementioned detailed and lengthy reasons for imposing the maximum sentence, as well as the court’s consideration of the provisions of La. C. Cr. P. arts. 893 and 894.1, we find that the court did not abuse its discretion in determining that Defendant is one of the most egregious offenders for whom maximum sentences are reserved.

Defendant filed a pro se supplemental brief assigning two errors. In the first, he contends that at the multiple offender hearing the State failed to prove the dates of his discharge from his predicate offenses. At the hearing, defense counsel argued in particular that the State failed to prove that less than ten years elapsed between Defendant’s release from custody or supervision on the first two convictions listed in the multiple bill and his next conviction, for manslaughter, in 2004. Defense counsel agreed that less than ten years had elapsed between Defendant’s 2004 conviction for manslaughter and the instant offense, which occurred on June 19, 2006; nevertheless, he argued that the State had failed to prove that no ten-year period had elapsed between conviction and the end of the sentence for each of the offenses.

In this case, the multiple bill filed by the State charged that Defendant had three convictions in addition to the conviction in the instant case:. (1) a conviction of possession of stolen auto valued at over $500.00 on September 7, 1990 in case number 344-978; (2) a conviction for possession of cocaine on February 6, 1991 in case number 340-376; and (3) a conviction for manslaughter on March 3, 2004 in case number 363-554. At the multiple bill hearing, the State introduced a complete certified “Pen Pack” from the Department of Corree-tions. This material contains the records of Defendant’s dates of convictions, dates of incarcerations, and 114discharges from custody and supervision. The records evidence that Defendant was physically in the custody of the Department of Corrections from January of 1996 until August of 2003. Defendant was also incarcerated in the Department of Corrections during the years 1993 and 1994 as a result of probation revocations in case numbers 340-376 (five-year sentence) and 344-978 (three-year sentence). The records further show that, on May 15, 1992, Defendant was arrested for second degree murder and was later convicted and sentenced to life imprisonment under case number 363-554. As previously noted herein, after the conviction and life sentence were vacated by this Court on appeal, Defendant entered a guilty plea to manslaughter and was sentenced to eleven years at hard labor, with credit for time served, on March 3, 2004.

In computing the ten-year cleansing period, La. R.S. 15:529.1(C) provides that “any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.” The evidence submitted by the State at the multiple offender hearing established that Defendant was incarcerated for the majority of the years between the revocation of his probations in 1992 in the earliest two predicate convictions and when he committed the instant offense on February 5, 2006. The evidence also set forth Defendant’s release dates. The State thus established that Defendant was a quadruple offender.

In his second and final pro se assignment of error, Defendant alternatively argues that, if this Court finds that his counsel did not adequately preserve his argument regarding the lack of proof of discharge dates, then he was denied the Ineffective assistance of counsel; however, the record evidences that Defendant’s counsel argued the issue to the trial court. Therefore, this argument lacks merit.

CONCLUSION

Defendant’s adjudication as a multiple offender is hereby affirmed. The sentence is amended to delete the prohibition on parole, and is affirmed as amended. Additionally, the trial court is directed to furnish the Department of Corrections with a commitment form reflecting the amended sentence.

AFFIRMED AS AMENDED.

      . The facts established at Defendant’s trial are not relevant to this appeal; the instant appeal is from a sentencing proceeding only.

        . The record does not contain a commitment form for the January 19, 2010 sentence, although there are commitment forms in the record for the earlier sentences. Absent a commitment form, the minute entry is generally the document relied upon by the Department of Corrections to determine what sentence was imposed.

      . At the January 4, 2010 hearing, the trial court stated that "[r]egarding [State v.] Dor[they], I have considered Dor[they] on more than one occasion, as it relates to Mr. Randall” and "rejected a downward departure under Dor[they] on his behalf” referencing the comments previously made by the court upon review of the pre-sentence investigation after Defendant’s 2009 conviction with regard to whether Defendant would be a good candidate for a downward departure.

      . In the original appeal from the conviction for second degree murder on October 20, 1993, and the sentence of life imprisonment imposed on October 12, 1995, this Court in State v. Randall (unpub.), 98-1633 (La.App. 4 Cir. 7/26/00), 786 So.2d 979, conditionally affirmed Defendant's conviction and remanded the case to the trial court to determine whether a witness’ entire prior testimony was introduced at the trial. The trial court conducted an evidentiary hearing and determined that the witness' entire testimony was presented to the jury. In an out-of-time appeal from that ruling, this Court reversed the Defendant's conviction and remanded for further proceedings, finding that the trial court erred in admitting testimony from a co-defendant's trial, as Defendant was not afforded the opportunity to cross-examine the witness. State v. Randall, 2002-0248, pp. 9-10 (La.App. 4 Cir. 10/16/02), 830 So.2d 1062, 1067-1068.

      . According to the presentence investigation report. Defendant stated that he began using cocaine at age seventeen and had never completed a substance abuse treatment program.