author:
PETERS, J.
      GREMILLION, Judge,

text:
    Patricia Ann WHERLAND, et ux. v. Carl P. FASTABEND, M.D.
    No. 11-903.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 22, 2012.

      S.Stephen Spring, II, Spring & Spring, LLC, Baton Rouge, LA, for Plaintiffs/Appellants, Patricia Ann Wherland, Fred Wherland.
    John Gregory Bergstedt, Fraser, Wheeler, & Bergstedt, Lake Charles, LA, for Defendant Appellee, Carl P. Fastabend, M.D.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

| tIn this medical malpractice case, the plaintiffs, Patricia Ann Wherland and Fred Wherland, appeal the trial court’s order granting an exception of prescription to the defendant, Dr. Carl A. Fastabend, and dismissing their claims against the doctor. For the following reasons, we affirm the trial court’s judgment in all respects.

DISCUSSION OF THE RECORD

Fred Wherland and Patricia Ann Wher-land are husband and wife. The petition filed against Dr. Fastabend establishes that Mrs. Wherland was injured in an automobile accident in the summer of 1996, and sometime thereafter she began treatment with Dr. Fastabend for the injuries sustained in the accident. The doctor prescribed Xanax for her anxiety associated with the accident and, during his treatment of Ms. Wherland through November of 2004, continued to prescribe Xanax. When Ms. Wherland last saw Dr. Fasta-bend in November of 2004, he refused to increase her prescription dosage. In January of 2005 she visited another physician but, because his treatment did not seem to be helping, she attempted to return to Dr. Fastabend in February of 2005. At that time, she was informed by Dr. Fastabend’s office representative that he would no longer see her and would no longer prescribe any Xanax to her.

While the plaintiffs’ petition does not reference the date they submitted their claims to a medical review panel pursuant to the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41-40:1299.49, we know from the briefs filed by both sides that it was submitted January 6, 2006. Additionally, the exception of prescription filed by Dr. Fastabend, as well as the briefs filed by the parties, establish that the panel returned its opinion in Dr. Fastabend’s favor on April 22, 2008, and that the plaintiffs received the opinion on April 25, 2008. The plaintiffs then filed suit against Dr. Fastabend on April 22, 2009.

12Pr. Fastabend responded to the suit by filing an exception of prescription pursuant to La.R.S. 9:5628. The litigants agreed to submit the matter on the record and briefs, and the trial court granted the exception of prescription. In their sole assignment of error, the plaintiffs assert that the trial court erred in granting the exception of prescription.

OPINION

Louisiana Code of Civil Procedure Article 931 provides that evidence may be introduced to establish or defeat an exception of prescription. In this case, the litigants submitted the prescription issue to the trial court on briefs and introduced no evidence to support their positions, although they did agree on the dates associated with the medical review panel submission. In the absence of evidence, the trial court must decide an exception of prescription based upon the facts alleged in the petition, accepting all allegations as true. Cichirillo v. Avondale Industries, Inc., 04-2894 (La.11/29/05), 917 So.2d 424.

Prescription in a medical malpractice ease is governed by La.R.S. 9:5628. That statute provides in pertinent part that “[n]o action for damages for injury or death against any physician ... arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect.” La.R.S. 9:5628(A). Additionally, “in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.” Id.

The Louisiana Medical Malpractice Act requires that all claims against qualified health care providers be instituted by filing a request for review with the Division of Administration. La.R.S. 40:1299.47. During the pendency of the review, prescription is suspended, and that suspension lasts until 90 days after the claimant or |sher attorney is notified of the medical review panel’s opinion by certified mail. La.R.S. 40:1299.47(A)(2)(a). “The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.” La.Civ.Code art. 3472. This contrasts with the interruption of prescription, the effect of which is to commence prescription “to run anew from the last day of interruption.” La.Civ. Code art. 3466.

In considering the appeal before us, we must first determine who had the burden of proof on this exception. “Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed.” Carter v. Haygood, 04-646, pp. 8-9 (La.1/19/05), 892 So.2d 1261, 1267 (citations omitted).

The plaintiffs’ petition establishes a filing date of April 22, 2009. For the purpose of this exception, we accept as true the allegations of the petition that Mrs. Wherland last saw Dr. Fastabend in November of 2004 and that her last contact with his office was in February of 2005. Additionally, for the purpose of this analysis, we accept as true the agreed-upon dates associated with the medical review panel.

Because their suit was filed more than four years from the last time Mrs. Wher-land had contact with Dr. Fastabend’s office, it is evident that the plaintiffs’ claims have prescribed on the face of the petition. La.R.S. 9:5628. Thus, the burden shifted to the plaintiffs to show that their claims had not prescribed. To that end, the agreed-upon dates found in the litigants’ briefs establish that the plaintiffs timely requested a medical review panel pursuant to La.R.S. 40:1299.41 and that the ninety-day suspensive period provided for in La. R.S. 40:1299.47(A)(2)(a) began to run on April 25, 2008. Thus, prescription on their claims began to run again on July 25, 2008.

Assuming Mrs. Wherland last, contacted Dr. Fastabend’s office on February 28, 2005, by the time the plaintiffs requested the medical review panel, 312 days had |4lapsed for prescription purposes. Thus, they had only fifty-three days remaining to file suit when prescription began to run again on July 25, 2008. The April 22, 2009 filing was clearly in excess of the fifty-three day limit.

The plaintiffs argue in brief that they did not discover their claims for damages until sometime between Mrs. Wherland’s last contact with Dr. Fastabend’s office in February of 2005 and January 6, 2006, when they submitted their claims to a medical review panel. They assert that under the doctrine of contra non valentem, which is codified in La.R.S. 9:5628, prescription did not begin to run until they discovered Dr. Fastabend’s act, omission, or neglect. However, in making this argument, the plaintiffs ignore the fact that their claim has prescribed on the face of their petition, that the burden shifted to them to establish a date of discovery such that the doctrine can be evaluated, and that the record includes no evidence of a date of discovery. We find no merit in this argument.

Finally, as an alternate argument, the plaintiffs assert that prescription was interrupted when the matter was submitted to the medical review panel and that it began to run anew ninety days after receipt of the panel’s decision. We have already addressed the fact that, pursuant to La.R.S. 40:1299.47(A)(2)(a), prescription was suspended during the pendency of the analysis of the claim by the medical review panel and, as provided by La.Civ.Code art. 3472, began to run again when the suspension was terminated. We find no merit in this argument.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of Dr. Carl P. Fasta-bend’s exception of prescription and dismissal of the plaintiffs’ claims. We assess all costs of this appeal against Fred Wher-land and Patricia Ann Wherland.

AFFIRMED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissents and assigns written reasons.

__JjI respectfully dissent, first of all, because the record before us is deficient. It contains a petition and some briefs, but no evidence.

A trial court can determine if a medical malpractice claim has prescribed once it knows the following four dates:

1. The date the alleged malpractice occurred and/or was discovered;
2. The date the plaintiff filed a request for review by a medical review panel;
3. The date the plaintiffs attorney was notified of the medical review panel’s opinion; and
4. The date suit was filed.

The defendant/exeeptor bears the burden of proof with regard to this peremptory exception, and it should not be shifted to the plaintiff unless all four of those dates are in the petition.

The date of the alleged malpractice and/or its discovery is not in the petition. The majority settles on February 28, 2005 as the last possible date for this event based on the allegations of the petition that the plaintiffs last contact with the doctor was in February 2005. We cannot, however, say conclusively that the plaintiffs discovery of this alleged malpractice coincided with either her last treatment by and/or contact with the doctor. Her claim is that Dr. Fastabend over ^prescribed addictive medication to her. Accordingly, unless either Dr. Fastabend or someone in his employ told her that he was over-prescribing medication at the time of the last visit or the last contact, those dates are simply not dispositive. It seems far more likely to this dissentor that she would have discovered this alleged malpractice once it was suggested to her by other healthcare providers after she was no longer treating with Dr. Fastabend.

The record discloses neither the date the medical review panel was requested nor the date the plaintiff was notified of the medical review panel’s opinion. As a matter of pragmatics, the majority relies on dates contained in various memoranda filed by the litigants at the trial court. In so doing, the majority takes the position that what it calls the “agreed upon dates” in those memoranda would be consistent with the evidence if that evidence existed in this record. I subscribe to the belief that, somewhere along the way, either the trial court and/or this court should require the necessary evidence.

This court has refused to even consider exhibits attached to memoranda that were not technically introduced into evidence. See Reese v. Dresser Valve Ind., 10-241 (La.App. 3 Cir. 10/6/10), 48 So.3d 406. We have also refused to consider facts asserted in briefs, because briefs are not part of the record on appeal. Id. We recently affirmed these principles in Brielle’s Florist & Gifts, Inc. v. Trans Tech, Inc., 11-260 (La.App. 3 Cir. 10/5/11), 74 So.3d 833.

The defendant’s burden to prove that this claim prescribed would have shifted to the plaintiff had the petition clearly set forth the four necessary dates. Because the petition, in fact, only set out one of those four dates, the burden never shifted away from the defendant. Obviously, without a single piece of evidence presented in this record, the defendant’s burden was not met. Accordingly, I would have reversed the trial court.

      . Dr. Fastabend's April 26, 2010 brief addressing his argument on the exception of prescription lists five exhibits that he “would offer and introduce [as] evidentiary exhibits,” none of those documents were attached to the brief or introduced into evidence at the hearing.


source: Caselaw Access Project

author: SAUNDERS, J. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    STATE of Louisiana v. Michael David GORDON.
    No. 11-898.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 22, 2012.

      Charles A. Riddle, III, District Attorney, 12th JDC, Anthony Francis Salario, Asst. DA, Marksville, LA, for Plaintiff Ap-pellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, Michael David Gordon, Cottonport, LA, for Defendant Appellant, Michael David Gordon.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   SAUNDERS, J.

|! Defendant was charged with armed robbery, a violation of La.R.S. 14:64, on December 14, 2010. On March 14, 2011, Defendant pled guilty as charged to armed robbery. A presentence investigation report was ordered by the trial court. On April 12, 2011, he was sentenced to forty years at hard labor without the benefit of parole, probation, or suspension of sentence. He made an oral objection to the sentence following the sentencing hearing, which was “assigned error” by the trial court.

Defendant has perfected a timely appeal wherein he challenges the constitutionality of the sentence and asserts ineffective assistance of counsel for failure to file a motion to reconsider the sentence setting forth grounds for the reconsideration.

FACTS:

On September 21, 2010, Defendant, Michael David Gordon, entered Cottonport Bank with a handgun and robbed the two tellers present in the bank of one hundred thousand dollars.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

\ .DISCUSSION:

Because the three assignments of error pertain to the issue of whether the sentence imposed was constitutionally excessive, we will address all three assignments together. Defendant argues that the trial court failed to adequately comply with the sentencing guidelines as set out in La. Code Crim.P. art. 894.1. Moreover, he asserts that the forty-year sentence without the benefit of parole, probation, or suspension of sentence is a constitutionally excessive sentence considering the facts of his case. Finally, he argues that because defense counsel failed to submit a written motion to reconsider the sentence raising the issues above, he is serving a constitutionally excessive sentence.

Initially, as noted above, Defendant did not file a written motion to reconsider the sentence as required by La.Code Crim.P. art. 881.1, setting forth grounds for a review of the sentence by the trial court or on a subsequent appeal. While immediately following the sentencing hearing, Defendant made an oral objection to the sentence, he did not specify any grounds for the objection. Louisiana Code of Criminal Procedure Article 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Accordingly, Defendant is limited to a “bare bones” review only for constitutional excessiveness of the sentence. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. See also State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612.

In State v. Thibodeaux, 05-680, p. 4 (La.App. 3 Cir. 12/30/05), 918 So.2d 1093, 1095, this court discussed excessive sentences, as follows:

|SA sentence is deemed excessive if the penalty is grossly disproportionate to the severity of the crime as to shock one’s sense of justice, or makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. A trial court has vast discretion in the imposition of a sentence within the statutory limits and such sentence shall not be set aside as excessive absent manifest error. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124. This court has determined the factors to be considered in deciding whether a sentence is excessive.

The sentencing range for the offense of armed robbery is no less than ten years and no more than ninety-nine years without the benefit of parole, probation, or suspension of sentence. La.R.S. 14:64(B). Defendant was sentenced to forty years, a little less than one half of the potential term he could have received.

The two women bank tellers chose not to testify at the sentencing hearing. However, A. J. Roy, president of the Cottonport Bank, testified on their and the bank’s behalf. He began his statement by relating the economic damage done to the bank in that its clients expect the bank to be a secure place to do business. He also described the emotional and psychological damage done to the two tellers. He noted that both of the tellers expressed their belief that they were going to die that day. He stated that one of the tellers has recurring nightmares of the robbery. He stated that the bank had to relocate the two tellers because of the emotional trauma caused by the robbery and that although both women are still encountering the public, they are extremely wary of strangers who come into the bank. He stated that the women acknowledged that Defendant repeatedly told them he was not going to harm them and was apologetic as he forced them into a back room; however, they have become fearful of strangers in their personal lives because of being confronted with a loaded and cocked gun.

Defendant then spoke to the trial court. He expressed extreme remorse for his actions. He apologized to the bank president, to the two women tellers and |4their families for his bad acts, and to his own family who have suffered also. He did not ask for leniency and said that he would be willing to take what sentence the court imposed.

Following arguments by defense counsel and the State, the trial court gave a lengthy recitation of the grounds upon which it was premising Defendant’s sentence. The trial court noted specifically several cases where the defendants convicted of armed robbery were first time felony offenders, including State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, wherein the supreme court affirmed a forty-year sentence imposed on a conviction for armed robbery. In Smith, while affirming the forty year sentence, the supreme court stated:

A review of the second trial judge’s extensive reasons for sentencing shows that he did a thorough job of reviewing the aggravating and mitigating factors. He emphasized that the defendant aimed a firearm at six persons in the store and jeopardized their lives. The value of the items stolen during the robbery was approximately $400,000.00 and the judge observed that this was a “significant economic loss.” The items were recovered with the assistance of the defendant’s co-defendant, Johnson.

Id. at 3-4.

The supreme court further noted that “[t]his sentence is within the thirty-five to fifty-year range this Court has found acceptable for first offenders convicted of armed robbery. State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50; State v. Augustine, 555 So.2d 1331, 1332 (La.1990) and cases cited therein.” Id. at 4.

In brief, the State points to Price, 909 So.2d 612, to show that a forty-year sentence for armed robbery is not unreasonably excessive. In that case, Price was convicted of armed robbery with a firearm. He confessed to the crime on videotape, but then at trial testified that he was not allowed counsel during the police interrogation despite his several requests and that the police choked him repeatedly until he confessed. While ultimately vacating the sentence because it |Bwas indeterminate, the fifth circuit did not find a forty-year sentence excessive in that case.

Finally, while discussing an allegedly excessive sentence imposed on a conviction for armed robbery with a firearm, this court in State v. Clayton, 10-1303, p. 6 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, 423, writ denied, 11-1015 (La.11/4/11), 75 So.3d 923, cited State v. Mason, 39,936, p. 3 (La.App. 2 Cir. 8/17/05), 908 So.2d 1250, 1253, stated as follows: “Armed robbery is, by definition, a dangerous crime, which often leads to death or serious injury. The victims of armed robbery are often physically harmed or otherwise traumatized for life.”

Defendant argues that in the alternative, defense counsel’s performance was ineffective for failure to file a motion to reconsider the sentence. He argues specifically that defense counsel’s performance was defective “by failing to object to the imposed sentence based on both its exces-siveness and the fact that the court gave improper weight and/or mischaracterized certain factors in arriving at the sentence.”

While discussing ineffective assistance of counsel for failure to file a motion to reconsider the sentence, this court in State v. Blake, 03-1465, pp. 6-7 (La.App. 3 Cir. 5/5/04), 872 So.2d 602, 608-09 (footnote omitted), noted:

When presented with an ineffective assistance of counsel claim, we have reasoned:
Failure to file a motion to reconsider the sentence does not necessarily constitute ineffective assistance of counsel. Nevertheless, the defendant may have a basis to claim ineffective assistance of counsel when the [sic] he can show a reasonable probability, but for defense counsel’s error, his sentence would have been different. Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, writ denied, 00-0544 (La.11/13/00), 773 So.2d 156, this court stated:
A claim of ineffective assistance of counsel is properly raised in an application | fifor post conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered.
We further held that the accused cannot prove an allegation of ineffectiveness without a specific showing of prejudice. Whether or not a defendant received ineffective assistance of counsel is a two-part inquiry. First, we must determine whether the trial court would have reduced the Defendant’s sentences upon the filing of a “Motion to Reconsider Sentence.” Second, we must determine whether the sentences were excessive. (Footnotes omitted).

In the underlying case, we find that the record is sufficient to explore the question of whether defense counsel’s performance was defective and whether Defendant was prejudiced by the defective performance.

In brief, Defendant argues:

Counsel objected to the imposition of the forty-year sentence. However, he did nothing to attempt to correct the trial court’s classification of various factors, and he specifically did not object to the judge imposing a sentence almost twice that which the judge indicated his own research suggested was appropriate, because Appellant was old enough to know better. Counsel also erred in failing to file the statutorily required motion to reconsider sentence specifically setting forth these errors to preserve them for appellate review. In these regards, counsel’s performance was deficient. The review of the excessiveness of the sentence and the court’s improper weight given to factors that were already decided by the legislature at arriving at the sentencing range for the crime have been discussed in the previous assignments of error. For the reasons discussed therein, it is submitted that Michael David Gordon was prejudiced by counsel’s non-performance.

Defendant argues that the trial court failed to consider the mitigating circumstances, such as the fact that he has no prior criminal history, that he was extremely remorseful, and that the hardships in his life contributed to his bad decision to rob the bank. Defendant argues that compared to other defendants in 17similar circumstances, he received an unduly harsh sentence that makes no meaningful contribution to acceptable penal goals.

Following Defendant’s statement, defense counsel cited to the trial court several cases wherein the defendants, who had prior armed robberies or similar offenses, were sentenced to the minimum sentence of ten years. The trial court responded that these particular cases were not applicable in that they were plea agreements. The current case was also resolved by a plea agreement. However, it appears that what the trial court meant was that the lengths of sentences were a part of the plea agreement between the defendants and the State; and the trial court accepted the recommendations.

The trial court then recited its reasoning for imposing the sentence, beginning with acknowledging all the letters received on Defendant’s behalf. The trial court stated:

These letter[s] confirm that beginning in 2004 something in your life begin to unravel. The death of your father, your mom was in the hospital four time[s] in 2008. You lost your job, were injured and hurt your back. Had business problems building homes and then the crowning blow when your wife left and refused to negocíate [sic] and help you with your property problems. You filed bankruptcy and as a result you lost your home and lost everything. Life got tuff [sic] for Mike Gordan [sic], the good man Mike Gordan [sic]. As you confirmed, you lost your job, kid’s jobs, your wife, your home, your family property and you had no life insurance. You felt you were a complete failure and you lost your will to live and I believe that through [sic] what happened to you. You confirmed to me how desperate that you got and the telling thing of course it’s telling into your character and into your beliefs is you wanted to do yourself in. You wanted to leave this life and then you realized that if you do you’re leaving your family nothing because you were broke and no property. Then you made the horrible decision....

The trial court then recited the emotional and psychological injuries suffered by the two bank tellers as portrayed by the bank’s president. The trial court continued:

|8If I were to give you the maximum sentence being a first offender, there’s no way in the world the Court of Appeals would let that stand. They would say no that is the needless imposition because they never done [sic] it on a first offender. I’ll give you examples, State versus Perry, 9 [So.]3d 251 [342] out of the Third Circuit here, a twenty year old first offender robbed a Sonic Drive-in and injured an[ ] employee and was given twenty five years and that was said to be appropriate. State versus Joseph, 982 So.2d 310 again out of this circuit, Third Circuit. A robbery occurred and person was seriously injured, that defendant was given thirty years. In State versus Jefferson, 920 So.2d 984 again a first offender, using a gun but that person had no remorse. The court considered the impact upon the defendant though and gave thirty years and that was said to be appropriate. In State versus Jackson, 904 So.2d 907 an eighteen year old first offender pointed a gun in the face of an employee and left that victim terrified, she fell to the floor when he left. Well that defendant had two convictions for armed robbery and was given sixty years because it was two convictions. State versus Singletary again out of the Third Circuit a non-published opinion 2010 WL 4325836 this individual was charged with armed robbery with a firearm, attempted armed robbery "with a firearm, theft under $300.00, theft under $300.00 and conspiracy to commit armed robbery. The defendant pled no contest, didn’t say he was guilty, he said I’m not contesting the charge to count one and the DA dismissed the other charges. He was given twenty five years for the armed robbery plus five years for using a firearm for a total of thirty and that was said to be appropriate. Again this defendant was a first offender, 24 years old first time felony offender. Then I found two bank robbery cases, State versus Lewis, 292 [892] So.2d 702, armed robbery of three bank employees, armed with a bb gun, the Court imposed three twenty year sentences to run concurrent another twenty years total and the Court said that was appropriate. State versus Square, 433 So.2d 104 and [sic] twenty two year old first time felony offender with no injuries to the bank employees, he was given twenty five years for bank robbery. And the last case I will mention is State versus Smith, 839 So.2d, page 1, where the Supreme Court of Louisiana in 2003 stated thirty five to fifty years is the acceptable range for first offenders with armed robbery. Yet even with that 2003 case at hand the Court of Appeals affirmed many cases with twenty and twenty five years for first time felony offenders. So now, when I get to this point I have letters for you and how good of a man you are except for this bad thing. I have the impact upon the victims in the bank. I’ve now looked at prior law, similar cases, so now I look in the law book and guidelines that I have to follow to sentence. Under Article 894.1 of the Louisiana Code of Criminal Procedure I do find that you must have correctional treatment that can be provided by an institution and any lesser sentence that I imposed today would deprecate the seriousness of your offense and your sentence you’re not eligible for probation. But the law gives me certain aggravating factors and mitigating factors to look at. Aggravating factors, these are factors not in favor of Michael Gordan [sic]. Number one, your actions constituted although not intended, constituted deliberate cruelty of these victims, the two ladies. | aAlso aggravating factor, you received money for the commission of your offense. Also an aggravating factor, you used threats of violence in the commission of the offense, threats, in that, having a gun is considered threats of violence. Also this is a significant permanent loss physiologically [sic] to the victims. There was a severe economic loss to the bank but I understand that loss has all been recovered. You used a dangerous weapon which is considered an aggravating factor. This is a major economic offense although the money was returned and you used a firearm as stated before. So aggravating factors are all against Michael Gordan [sic]. The mitigating factors are that the longer the imprisonment upon you, the more hardship it would be on many members of your family, which happens in every case. The mitigating factor number two for you is that you had no prior record. So, not many mitigating factors for something this serious.

A trial court has vast discretion when imposing a sentence, and the reviewing court shall not set aside a sentence absent a showing that the trial court abused its discretion when it imposed the sentence. Thibodeaux, 918 So.2d 1093. In State v. Smith, 839 So.2d 1, discussed by the trial court above, the supreme court noted that a thirty-five to fifty-year sentence for armed robbery with a firearm was not excessive in cases where the defendant was a first time felony offender. While pondering whether the trial court abused its discretion when it imposed the forty-year sentence, the supreme court noted:

At the time of the commission of the offense, the defendant was on probation under a suspended sentence of five years for a conviction of “larceny from a house” in Oklahoma. He had prior arrests for attempted rape and kidnapping in 1990 and robbery with a firearm in 1994. A stolen car was used in the attempt to flee the scene of the crime. The defendant then drove his mother’s car in a dangerous, high speed chase that was unsuccessful. During the chase, Johnson fired two shots at the pursuers. The trial judge observed “you [Smith] were a principal, and to that extent you share equally to the extent of this robbery.” La. R.S. 14:24. The defendant showed no remorse. In particular, the trial judge observed as follows:
Whether you [Smith] should receive less than he [Johnson] is a factor for me to consider based upon your involvement and his involvement, but it is not an absolute factor there; because he receives a twenty year sentence that you should receive less than he or more than he. You must stand on your own feet as you are today and receive your individual punishment |inrecognizing your involvement and recognizing your past criminal conduct.

Id. at 4.

We find that the trial court adequately considered the aggravating and mitigating factors as required by La.Code Crim.P. art. 894.1. Defendant has not offered any new mitigating facts which should have been considered by the trial court and which could have affected the length of the sentence. We also find that the forty-year sentence is not unconstitutionally excessive. While the forty-year sentence may seem harsh to some, it is within the sentencing range set out by the legislators and is within the range of sentences the supreme court has deemed as acceptable for a first time felony offender. Finally, we do not find that Defendant was prejudiced due to ineffective assistance of counsel, since it is this court’s belief that the trial court would not have reduced Defendant’s sentence upon the filing of a motion to reconsider sentence.

The trial court did not abuse its considerable discretion when it sentenced Defendant to forty years imprisonment for the offense of armed robbery. The sentence is affirmed.

DECREE:

Defendant’s sentence is affirmed.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

LThe forty-year sentence is excessive under the circumstances of this case, and Defendant received ineffective assistance of counsel during the sentencing stage. The majority concludes that “[w]hile the forty-year sentence may seem harsh to some, it is within the sentencing range set out by the legislators and is within the range of sentences the supreme court has deemed as acceptable for a first time felony offender.”

On both assertions, the majority is wrong. Certainly, the sentence is within the sentencing range. That begs the question of whether it is constitutionally permissible. If the sentence was outside the sentencing range, it would be illegal. The fact that it is within the sentencing range does not ipso facto clothe it with legality. Under this rationale, any sentence between ten and ninety-nine years would be acceptable, and would eliminate the need for an appeal. Further, the Louisiana Su-prerae Court has not deemed such a sentence acceptable for a first time felony offender under the circumstances of this case, as the cases relied upon by the majority are inapposite.

In all of the cases cited by the trial court and relied upon by the majority, the defendants who were convicted of armed robbery were all technically first felony offenders and received sentences of twenty to thirty years | ^imprisonment. However, in several of the cases there were aggravating factors not present in the present case. In State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352 and State v. Joseph, 07-1567 (La.App. 3 Cir. 4/30/08), 982 So.2d 310, there were significant injuries inflicted on the victims. Here, there were no injuries. Furthermore, in both Perry and Joseph, the defendants had criminal histories. Here, Defendant has no criminal history.

In State v. Jefferson, 40,439, p. 5 (La.App. 2 Cir. 1/27/06), 920 So.2d 984, 987, the trial court noted there was no remorse, the defendant had a juvenile criminal history, and had a “bad attitude.” Here, Defendant apologized to the victims.

In State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 942 So.2d 162, the sentences for two armed robberies were sixty years each, to be served concurrently. However, the defendant had been charged with nine counts of armed robbery and one count of criminal conspiracy to commit armed robbery, had gone to trial on only two of the armed robbery counts and the conspiracy count, and had been on a three day crime spree when he was apprehended. Here, only one armed robbery occurred. In Jackson, the fifth circuit noted that “[i]n cases similar to the present one, where the defendant does not have a criminal history and the armed robbery did not involve the discharge of a weapon or any physical injury to the victims, the sentencing range is between 20-40 years.” Id. at 916.

In State v. Singletary, an unpublished opinion, 10-354 (La.App. 3 Cir. 11/03/10), 50 So.3d 989, writ denied, 10-2657 (La.4/25/11), 62 So.3d 87, there were several charges that were dismissed when the defendant pled guilty to armed robbery and was sentenced to twenty-five years imprisonment, plus five years because he used a firearm.

IsFinally, in State v. Lewis, 39,263 (La.App. 2 Cir. 1/26/05), 892 So.2d 702 and State v. Square, 433 So.2d 104 (La.1983), the sentences were twenty years and twenty-five years, respectively. In the current case, the trial court, without finding any of the additional aggravating circumstances in the above cases present in the current case, sentenced Defendant to forty years imprisonment.

I recognize that a trial court has vast discretion when imposing a sentence. I also recognize that in State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, the supreme court observed, in dictum, that a thirty-five to fifty year sentence range was acceptable for a first time felony offender. Smith, however, relied on State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49, which involved consecutive sentences on armed robbery, aggravated escape, and possession of a firearm by a convicted felon. The defendant’s action endangered deputies, court personnel, and the public. Further, the defendant in Thomas fled with her husband and eluded capture for eight days. Smith also relied on State v. Augustine, 555 So.2d 1331 (La.1990) which involved actual violence during the commission of an armed robbery.

Considering that the trial court and the majority, in an effort to support the imposition of the forty year sentence, cited cases that had lower sentences but more aggravating circumstances, I find the sentence of forty years at hard labor without the benefit of parole, probation, or suspension of sentence is a needless infliction of pain and suffering compared to other cases in this jurisdiction and other jurisdictions. Moreover, in State v. Clayton, 10-1303 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, writ denied, 11-1015 (La.11/4/11), 75 So.3d 923, wherein this court affirmed a twenty-seven year sentence imposed on a defendant who committed an armed robbery and who was a second felony offender, this court commented on the reasoning the trial court in State v. Mason, 39,936, pp. 3-4 |4(La.App. 2 Cir. 8/17/05), 908 So.2d 1250, 1253 (emphasis added), gave for the habitual offender minimum sentence of forty-nine and one half years, as follows:

Armed robbery is, by definition, a dangerous crime, which often leads to death or serious injury. The victims of armed robbery are often physically harmed or otherwise traumatized for life. On this record, we can find no error in the imposition of this sentence, which most assuredly does not shock the sense of justice, and is not a needless infliction of pain. The penalty is admittedly harsh, though not unduly so. The legislatively-mandated sentence is severe, precisely because the crime of armed robbery is so reprehensible, even more so when committed by one who is already a felon. (Emphasis added).

Considering the facts and circumstances of this case, defense counsel’s failure to file a written motion to reconsider the sentence setting forth specific grounds constituted defective performance. Defense counsel had thirty days from the date of the sentencing in which to research the issue and prepare to plead the case. La. Code Crim.P. art. 881.1.

In brief, Defendant argues:

In mitigation, the judge noted the hardship imprisonment would cause to his family and a lack of a prior record. Although previously commented upon, the judge did not note in mitigation the emotional state Michael Gordon was in at the time of the offense, the remorse he has repeatedly shown for his actions and his acceptance of responsibility.
The judge specifically commented “... although the prior case law says twenty and twenty five years for first time offenders those are first time eighteen, nineteen, twenty, twenty five year old offenders not a forty six year old man who had everthing and knew better ... ”. Immediately following this comment, the judge imposed upon Michael David Gordon a sentence of forty years with the Department of Corrections without the benefit of parole, probation, or suspension of sentence.
A review of the transcript indicates that the judge considered Mr. Gordon’s age to be an aggravating factor, deserving of a harsher sentence than a man twenty years younger. Additionally, despite acknowledging several factors which should have been considered as mitigating factors during his comments on the record, when he | ¡^specifically listed the mitigating factors, he listed only two-the hardship to the family (which he discounted as being present in every case) and Mr. Gordon’s lack of a prior criminal record. The judge did not consider as mitigation, those factors set forth in article 894.1(B)(23), (24), (27), (29), and (33). Most important is Mr. Gordon’s repeated and extreme remorse for the crime. He even apologized during the commission of the crime which suggests he did not contemplate that his actions would threaten serious harm. Furthermore, Mr. Gordon’s mental state at the time of the crime was outlined in detail by the judge but was given little or no weight in the ultimate sentence. The judge acknowledged that the bank had been made whole but, despite this, he found the economic loss to the bank to be an aggravating factor.

Considering the above arguments regarding the trial court’s failure to adequately apply aggravating and mitigating factors and the comparison of sentences for similar crimes, I conclude there was a reasonable possibility that the trial court would have reconsidered the sentence and reduced the sentence to be commensurate with the circumstances of Defendant’s actions and the legislative intent behind the punishment. The legislature created a sentencing range for armed robbery of no less than ten years and no more than ninety-nine years — an eighty-nine year spread. The vast spread was because there are multiple and varying circumstances involved in the crime of armed robbery as noted above, and the trial courts are granted much leeway in which to impose punishment.

For the reasons previously articulated, Defendant’s sentence makes no meaningful contribution to acceptable penal goals and is, therefore, constitutionally excessive in this case. For the foregoing reasons, I respectfully dissent.

      . At the Boykin hearing, the State told the trial court it was dismissing two second degree kidnaping charges under a different docket number. However, there is no evidence in the record that Defendant was charged with these offenses. The offense of armed robbery was committed on September 21, 2010. The bill of information charging Defendant with the armed robbery was filed on December 14, 2010, and he was arraigned on that charge only the same date.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Brett T. COX.
    No. 2011-KA-0670.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| Appellant Brett Cox is before this Court seeking to have his guilty pleas vacated on the grounds that all of the evidence against him was illegally seized and thus should have been suppressed. For the reasons discussed below we affirm the defendant’s convictions and sentences.

PROCEDURAL BACKGROUND

On March 4, 2010, the defendant was charged with one count of violating La. R.S. 14:95 E, possession of a firearm while in the possession of marijuana, and one count of violating La. R.S. 40:967(F), possession of more than twenty-eight, but less than two-hundred, grams of cocaine. Motion hearings were conducted on June 18, 2010 and the trial court withheld ruling at that time in order to receive and review post-motion memorandums. Post hearing memorandums were filed on behalf of the defendant and the State. On July 27, 2010, the court granted defendant’s motion to suppress the evidence. The State sought supervisory review of the ruling. In an unpublished opinion this court granted the State’s writ, reversed the trial court’s ruling on the suppression of the evidence and remanded the matter to the trial court. State v. Cox, 2010-1251 (La.App. 4 Cir. 9/8/10), unpub., writ denied, 2010-2280 (La.10/25/10), 48 So.3d 279. Defendant filed for 12a rehearing with this Court on September 13, 2010, which was denied on September 15, 2010. Defendant then applied for a writ to the Supreme Court which was also denied.

On December 9, 2010, the State amended both counts of the bill to charge attempt (La. R.S. 14:27). The defendant entered Crosby guilty pleas and was sentenced on each count to serve concurrent three year sentences at hard labor. The court ordered the sentence on count one to be served without the benefit of probation, parole, or suspension of sentence. The court imposed a fine of $5,000 on count one and $25,000 on count two. On January 4, 2011, the trial court granted the defendant’s motion for an appeal. Defendant’s appeal was filed in this Court on May 19, 2011.

FACTUAL BACKGROUND

Because defendant pled guilty, there is no trial transcript, and therefore the facts have been gathered from the transcript of the pretrial motion hearing, which was reviewed by this Court in the aforementioned writ proceeding.

Testimony at the suppression hearing reflected that a Louisiana State Police Task Force was conducting a narcotics investigation when they received information that the defendant was associating with a known drug dealer. They went to the defendant’s residence which was a separate structure located in the rear of 1218 Barracks Street. The 6 members of the task force knocked at the door of the main residence and the owner, Gary Frankston, answered and told the officers |3defendant Brett Cox lived in the rear structure. Without permission from Mr. Frankston the officers opened the gate, which lead to the rear structure by removing a bungee cord. They knocked on the door to the rear structure which was answered by defendant Cox. At this point the facts are disputed as to whether the officers walked into Mr. Cox’s residence or he invited them in; however, it is undisputed that at some point after entering the residence the officers obtained a Consent to Search from Mr. Cox. Evidence was seized by the officers, which they observed and was pointed out to them by the defendant.

ERRORS PATENT

A review of the record for errors patent reveals one. The waiver of rights forms signed by the defendant, one for each count, state that each charge required a minimum sentence of two and one-half years. The transcript of the guilty pleas similarly shows that the trial court informed the defendant that there was a minimum sentence of two and one-half years on each count. However, this information was incorrect. The Louisiana Supreme Court has noted that “La.Rev. Stat. 14:27 D(3) by its terms provides only a maximum sentence for a conviction of attempting to commit a crime. There is no express statutory minimum sentence for being convicted of an attempt, and principles of lenity require that the statute be strictly construed.” State v. Callahan, 95-1331, p. 1 (La.3/29/96), 671 So.2d 903. See also State v. Brown, 2000-2120 (La.App. 4 Cir. 12/19/01), 804 So.2d 863.

| .(Nevertheless, the record clearly establishes that the defendant was advised of his constitutional rights prior to entering his guilty pleas. The defendant and the State entered into an agreement in which the defendant would receive a sentence of three years on each count, more than the minimum sentence which the defendant was led to believe was required by law, to run concurrently. The sentences imposed by the trial court were in accordance with the plea bargain. The plea bargain was clearly favorable to the defendant considering the testimony and the evidence seized. Therefore, on the record before this Court, the misinformation provided to the defendant does not appear to have had an impact on his decision to plead guilty or to have prejudiced him. Thus, the error is harmless. See State v. Dickerson, 10-672, pp. 13-16 (La.App. 5 Cir. 4/26/11), 65 So.3d 172, 180-82, and the cases discussed therein.

STANDARD OF REVIEW

As the “law of the case” doctrine applies herein we must review whether the prior ruling reached by this Court would accomplish an obvious injustice or was manifestly erroneous.

DISCUSSION

The sole error assigned by the appellant is that his motion to suppress evidence should have been granted. As noted above, the trial court did grant the motion, specifically finding that the officers needed consent before removing the bungee cord and opening the solid metal gate leading to the rear of the property. [fiThe State successfully obtained supervisory review of that ruling; this Court found that the trial court abused its discretion in granting the motion. State v. Cox, unpub., 2010-1251 (La.App. 4 Cir. 9/8/10), writ denied 2010-2280 (La.10/25/10), 48 So.3d 279. A review of that writ application reflects that the State provided this Court with the transcripts of the motion hearing and the court’s ruling. The State also provided copies of the post-hearing memoranda filed in the trial court, thus providing this Court with the defendant’s argument. Further, defendant applied for a rehearing with this court which was briefed. Thus, this Court had a complete record upon which to base its decision. There have been no additional proceedings held in the trial court which would provide this Court with evidence it did not have at the time it considered the State’s writ application and application for rehearing. In particular, because the defendant entered guilty pleas, there was no trial and thus no additional testimony for this Court’s consideration.

As stated, this Court has already ruled on this issue. The district court held an evidentiary hearing after which it suppressed the evidence obtained from the search of defendant’s residence. The State sought supervisory writs to this Court, which found that the trial court abused its discretion in granting the motion to suppress, reversed the ruling and remanded the matter. The defendant did not present any new evidence subsequent to this Court’s ruling to show that these rulings were in error. Consequently, this claim is barred from consideration on appeal by the “law of the case” doctrine.

| r,The “law of the case” doctrine is well-settled; when it is applied and the reasons for it were explained in State v. McElveen, 2010-0172, p. 13, fn. 8 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054:

The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. See Pumphrey v. City of New Orleans, 2005-0979 (La.4/4/06), 925 So.2d 1202. This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the ease” doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This doctrine is not an inflexible law; thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous.

See also State v. Scoggins, 2010-0869, p. 19 (La.App. 4 Cir. 6/17/11), 70 So.3d 145, 156. In this instance, even if the initial entry through the metal gate after removing the bungee cord was improper, defendant Cox’s subsequent consent to search purged the initial search of any taint. State v. Williams, 353 So.2d 1299 (La.1977); State v. Harper, 27,278 (La.App. 2 Cir. 8/23/95), 660 So.2d 537; State v. Henry, 440 So.2d 872 (La.App. 2 Cir.1983).

CONCLUSION

In this matter, there are no additional facts or evidence which would warrant reconsideration of this Court’s ruling in the pretrial writ application. Accordingly, the convictions and resulting sentences are affirmed.

AFFIRMED

      . 2010-2280 (La.10/25/10), 48 So.3d 279.

      . The defendant entered his guilty pleas pursuant to State v. Crosby, 338 So.2d 584 (La.1976), which allows a defendant who enters a guilty plea to reserve his right to appeal from an adverse pretrial ruling. A review of the guilty plea transcript reflects that the defendant was aware that the adverse ruling was from this Court.

      .La. R.S. 14:27(D)(3) provides:
      D. Whoever attempts to commit any crime shall be punished as follows:
      (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

      . If the defendant had been convicted of count two as charged, he was subject to a minimum sentence of five years without the benefit of probation or parole and a maximum sentence of thirty years, of which the first five years would be without benefits, and a mandatory fine of not less than $50,000 nor more than $150,000. La. R.S. 40:967(F)(G).

      . It should be noted that the defendant can raise the issue of whether his guilty pleas were constitutionally infirm due to this misinformation in a post-conviction relief application at which time the trial court could conduct an evidentiary hearing at which defense counsel and the defendant could testify regarding the defendant’s motivation for pleading guilty.


text:
    Norman PRESTENBACK v. Irma Dennett HEARN.
    No. 2011-CA-1380.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2012.
    Rehearing Denied March 23, 2012.

      Gregory J. St. Angelo, Jose Carlos Mendez, La Nasa St. Angelo & La Nasa, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    A. Scott Tillery, Tillery & Tillery, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

L Norman Prestenback appeals an order dismissing his lawsuit against Irma D. Hearn on the ground of abandonment. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND:

Mr. Prestenback, filed suit against his sister-in-law, Ms. Hearn , on February 6, 2004. The petition sought to set aside a recorded authentic act of sale executed in 1972 on the grounds of alleged forgery and fraud.

Mr. Prestenback claimed to be the owner of an undivided one-half interest in a certain portion of immovable property at 633-635 St. Roch Avenue in New Orleans. His ownership was acquired by an Act of Sale executed in 1961. Mr. Prestenback stated that he believed he continued to own an interest in this property, until he learned of an Act of Sale executed in 1972, in which he and his wife allegedly sold their interest to defendant, Ms. Hearn. Mr. Prestenback claimed that neither he nor his wife signed the 1972 Act of Sale, and that the signatures purported to be his and his wife’s were forgeries.

| Recording to the petition, Ms. Hearn owned the other undivided one-half interest in the property with her husband, until his death, at which time she acquired her deceased husband’s interest through succession.

Ms. Hearn, through her attorney, answered the petition on November 30, 2004. Numerous actions were taken by both parties, including discovery, scheduling of status conferences, and correspondence with the court. A notice of trial was mailed to counsel for Ms. Hearn and to Mr. Prestenback personally, as both of his previous attorneys had withdrawn and he was without counsel at the time of setting. Trial was set for October 2, 2006. On September 6, 2006, Gordon Patton enrolled as counsel for Mr. Prestenback. On September 11, 2006, Mr. Patton filed a motion to continue and reset in which he indicates that counsel for Ms. Hearn objects to a continuance. The continuance was denied.

From September 13-21, 2006, Mr. Patton issued numerous notices of deposition and subpoenas. On September 29, 2006, a letter was sent to the trial court judge by another attorney, indicating that Mr. Patton had been admitted to the hospital for emergency heart surgery. The letter further indicated that Mr. Patton would file a formal motion (presumably to continue the trial) when he was able.

On December 7, 2006, a rule to show cause was filed on behalf of Mr. Presten-back seeking to have Ms. Hearn produce her social security earnings [¡¡records. The record contains a letter to the trial court dated January 24, 2007, indicating that the rule was moot.

The next record filing was a Motion to Dismiss Suit on the Grounds of Abandonment, with an order signed by the duty judge on November 17, 2010, dismissing the action as of December 7, 2009.

On November 24, 2010, current counsel for Mr. Prestenback enrolled and filed a Motion and Order to Set for Trial. The motion was granted for a pre-trial conference to be held on December 10, 2010. It is unclear what transpired at the conference, but on December 22, 2010, counsel for Mr. Prestenback filed a Motion to Set Aside Dismisal [sic], which was set for hearing on February 11, 2011. The trial court ruled from bench denying the motion.

This appeal followed.

DISCUSSION:

The controlling statute in this case is La.Code Civ. Proc. art. 561, which provides in part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed or record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Article 561 sets forth three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must 14appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendants will be deemed a step. La. Dept. of Trans. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912, pp. 4-5 (La.12/6/11), 79 So.3d 978, citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784.

A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. See James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La.4/3/02), 813 So.2d 335, 338.

Article 561 was designed to prevent protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). Dismissal for abandonment is not intended to be punitive; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court without the risk of losing same due to technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not linger indefinitely, preserving stale claims from the normal extinguishing operation of prescription. Oilfield Heavy Haulers, 2011-0912, p. 5, 79 So.3d at 981; Clark, 00-3010, pp. 10-11, 785 So.2d at 787.

Article 561 is to be liberally construed in favor of maintaining a lawsuit because dismissal is the harshest of remedies. Oilfield Heavy Haulers, supra; Clark, 00-3010, p. 8, 785 So.2d at 785. Any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim. Oilfield Heavy Haulers, supra; Clark, 00-3010, p. 10, 785 So.2d at 787. Article 561 was not designed to allow dismissal of suits on mere technicalities, but only suits where |5a plaintiffs inaction during the statutory time period has “clearly demonstrated his abandonment of the case.” Oilfield Heavy Haulers, supra; Clark, 00-3010, pp. 8-9, 785 So.2d at 785-86 (quoting Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4 Cir.1976)).

In Oilfield Heavy Haulers, supra, the “step” in question was whether a letter filed in the record and served on all remaining parties scheduling a Rule 10.1 conference qualified as a “step” in the prosecution. The Supreme Court found that the letter was a step because scheduling a Rule 10.1 conference was a necessary step in the discovery process, thereby moving the case towards judgment.

In Clark, 00-3010, 785 So.2d 779, the Supreme Court held that an insurer’s unconditional tender of benefits was an “ac-knowledgement” and thus a waiver of the right to assert abandonment. Id. 00-3010, p. 22, 785 So.2d at 793.

In the instant case, the action which plaintiff claims was a step in the prosecution was the preparation of affidavits by the defendant’s counsel. Defense counsel explained that he prepared the affidavits in April 2009 in response to death and bomb threats reportedly made by Mr. Presten-back’s son, Norman “Jay” Prestenback, Jr.

Defense counsel further explained that Deborah Martin, plaintiffs daughter, had previously given deposition testimony in the underlying lawsuit that her father could not write his name, and therefore, he could not have signed the Act of Sale transferring ownership of the disputed property to Ms. Hearn. In her affidavit, Ms. |fiMartin attested that she had given false testimony in her deposition, when she stated that her father could not write his name.

Defense counsel prepared the affidavits to be given to the Federal Bureau of Investigation and the New Orleans Police Department to aid in the investigation of the threats. As counsel explained, it was necessary to include bare facts about the lawsuit to demonstrate why the threats were being made.

Mr. Prestenback disagrees that the purpose of the affidavits was to aid in the investigation of alleged threats, but rather were prepared relative to the underlying lawsuit. Therefore, it was error for the trial court to not find the affidavits were prepared for trial purposes. Mr. Presten-back insists that there was no legitimate reason other than preparation for trial, for law enforcement officials to know about Mr. Prestenback’s ability to write his name. It is his contention that the affidavits were prepared for the trier-of-fact, not for an investigation of threats.

After carefully reviewing the record, we cannot agree with the plaintiffs position. The affidavits were not filed into the record of the case, a requirement set forth in Oilfield Heavy Haulers, supra, and Clark, supra. The preparation of the affidavits cannot be considered a type of formal discovery, which is an exception to steps not contained in the- record. La.Code Civ. Proc. art. 561 B.

We also find that the preparation of the affidavits was the type of extrajudicial effort uniformly held to be insufficient to constitute a step for purposes of interrupting abandonment. See Clark, 00-3010, p. 16, 785 So.2d at p. 790.

Accordingly, for the reasons assigned herein, we affirm the judgment of the trial court.

AFFIRMED

      . Both Mr. Prestenback and Ms. Hearn were approximately 90 years old at the time this appeal was filed.

      . The record contains an Answer to Recon-ventional Demand, although no Reconven-tional Demand is contained in the record. A citation indicates that a Reconventional Demand was served on plaintiff.

      . We are aware that argument by counsel, either at the trial court or in brief, is not evidence. However, because the affidavits, the preparation of which plaintiff argues is a "step” in the prosecution by the defendant, we must rely, as did the trial court, on the explanations given at the hearing and on appeal.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Marilyn CLINE v. Mohammad CHEEMA d/b/a Belle Chasse Shell, Cheema Properties, LLC and M & S Oil Services, LLC.
    No. 2011-CA-1029.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2012.

      Timothy E. Pujol, Barbara Lane Irwin, Pujol & Pryor, Gonzales, LA, Michael David Clement, Law Offices of Michael D. Clement, Belle Chase, LA, for Plaintiff/Ap-pellee, Marilyn Cline.
    James R. Sutterfield, Jessica B. Cozart, Sutterfield & Webb, LLC, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| ^Defendants, Cheema Properties, LLC, and M & S Oil Services, LLC, appeal the trial court’s judgment awarding the plaintiff, Marilyn Cline, damages sustained when she fell and injured herself on the premises of the defendants’ gasoline service station. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEEDINGS BELOW

On November 24, 2009, Ms. Cline filed suit alleging that on November 9, 2009, she tripped on an uneven portion of the cement at the Belle Chasse Shell, causing her to fall and strike her head on an ice machine. Ms. Cline further alleged that as a result of this fall, she received fourteen stitches in her head, fractured two cervical vertebrae which required surgical repair, and suffered various other injuries which impaired her lifestyle. She also alleged that this accident was solely and completely the fault of the defendants because they allowed an unreasonably | aharmful, defective condition to exist on the premises of their business despite having actual or constructive notice of the defect.

The matter was tried in a bench trial on February 24 and 25, 2011. On April 14, 2011, the trial court rendered judgment in favor of Ms. Cline against the two remaining defendants, awarding a total of $886,385.79 in damages ($280,500.00 for past and future pain and suffering, mental anguish and loss of enjoyment of life, $67,685.79 for past medical expenses, and $38,250.00 for future medical expenses), plus court costs and judicial interest.

In extensive written Reasons for Judgment, the trial court stated that the plaintiff had met her burden of proving the defendants’ liability pursuant to La. R.S. 9:2800.6 A, which provides the criteria for determining when a merchant is liable to a business patron for injuries incurred as a result of a defective or unsafe condition existing on the merchant’s premises. The trial court concluded that the uneven pavement at the service station created an unreasonable risk of harm, that the defendants had failed to exercise reasonable care in repairing and/or warning patrons about this condition despite having actual or constructive notice of it, and that this defective condition was the cause-in-fact of the plaintiffs injuries. Although the trial court assigned 85% of the fault to the defendants, it also found the plaintiff to be 15% at fault because she “contributed, either through inattention or as a result of her preexisting medical condition, to her injuries.” Additionally, the trial judge explained how he had determined the amounts awarded for past medical expenses, future medical expenses and general damages, specifically noting that the damages awarded in the judgment had been calculated by reducing |4the original amounts (namely: $79,571.51 in past medical expenses, $45,000.00 in future medical expenses, and $330,000.00 in general damages) by 15% to account for the fault of the plaintiff.

ISSUES

On appeal, the defendants contend that the trial court erred by:

(1) Finding that the elevation differential at the Belle Chasse Shell parking lot created an unreasonable risk of harm, and relying upon the testimony of the plaintiffs expert, Dr. George Hammitt, to reach this conclusion;
(2) Assessing the plaintiff only 15% of the fault;
(3) Awarding future medical expenses without sufficient evidentiary support; and
(4) Awarding an excessive amount of general damages.

STANDARD OF REVIEW

We review the factual findings of the trial court pursuant to the manifest error standard, as set forth by Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Accordingly, we may not set aside the trial court’s findings unless, in view of the entire record, they are manifestly erroneous or clearly wrong. Moreover, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be set aside upon review. Id.

Applying the manifest error standard to an award of special damages, such as medical expenses, requires the appellate court to employ a two-step analysis based upon the entire record. First, we must conclude that there is no reasonable factual basis for the trial court’s award, and second, we must conclude that the award is clearly wrong. Kaiser v. Hardin, 2006-2092, pp. 11-12 (La.4/11/07), 953 So.2d 802, 810.

1 BGeneral damage awards, which are inherently speculative in nature and cannot be fixed with legal certainty, are reviewed according to an abuse of discretion standard. Bouquet v. Wal-Mart Stores, Inc., 2008-0309, p. 4 (La.4/4/08), 979 So.2d 456, 459. Pursuant to this standard, the trier of fact is afforded vast discretion because it is in the best position to evaluate the credibility of witnesses and view the evidence firsthand. Id. at pp. 4-5. Thus, the appellate court should rarely disturb such an award, doing so only when an articulated analysis of the particular facts and circumstances of the case reveals an abuse of discretion. Id., p. 5.

DISCUSSION

I. Whether the Condition Presented an Unreasonable Risk of Harm

Defendants first contend the trial court committed manifest error by finding that the uneven portion of concrete at the Belle Chasse Shell presented an unreasonable risk of harm. La. R.S. 9:2800.6 provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
| n(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

The defendants contend the trial court erred by finding that the plaintiff met the first prong of the three-part burden of proof set forth in the above-quoted statute, i.e., the existence of an unreasonable risk of harm. Specifically, they argue that the trial court failed to perform a risk-utility balancing test when it determined that an approximately 1 ⅜ inch elevation change in an expansion joint between two concrete slabs presented an unreasonable risk of harm to a prudent person using ordinary care under the circumstances. To employ such a balancing test, the trial court would have had to balance the gravity and risk of the harm against the individual and societal rights and obligations, the social utility and the cost and feasibility of repair. See Boyle v. Board of Supervisors, Louisiana State Univ., 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083. Stated more simply, the trier of fact “must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others?” Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365.

It is evident from its Reasons for Judgment that the trial court performed a risk-utility balancing test before reaching its conclusion. In those Reasons, the court discussed Reed v. Wal-Mart and also specifically recognized that the decision places a duty upon the trier of fact to balance the risk of harm presented by the defect against its social utility and the cost and feasibility of repair. In so balancing, the trial court considered the deposition testimony of Dr. [7George Hammitt, the plaintiffs expert in civil engineering, concrete and accident reconstruction, as well as that of James Danner, the defendant’s expert in the same subjects. Dr. Hammitt testified that the spot where Ms. Cline had tripped was in a natural path of ingress and egress to the service station’s convenience store. Based upon photographs of the site, he estimated that the difference in elevation was at least two inches, and stated that any abrupt change in elevation greater than one-half inch would violate several building/safety codes adopted in Louisiana, including the Americans with Disabilities Act and the Life Safety Code. Dr. Hammitt opined that the defect would cost about $300.00 to repair by overlaying the concrete in the specific area, which he estimated to be about fourteen feet by two feet. He opined that the defect presented an unreasonable risk of harm.

Mr. Danner, who had taken his own measurements at the site of the accident, testified that the greatest elevation differential he had found was 1 ¼ inches. He opined that this differential was due to soil subsidence common in southeastern Louisiana. Although he did not give a precise estimate of the cost of repairing the defect, he opined that the cost would be higher than Dr. Hammitt’s estimate. Unlike Dr. Hammitt, Mr. Danner did not believe that a concrete overlay would permanently fix the problem; instead, he opined that the old concrete would have to be removed and replaced, which would require the area to be cordoned off for about seven days.

Ultimately, the two experts disagreed as to whether the uneven concrete constituted an unreasonable risk of harm. As reflected in the Reasons for |sJudgment, the trial judge considered all the above-referenced factors, employed the appropriate balancing test, and concluded the evidence supported a finding that the defect did present an unreasonable risk of harm.

Nevertheless, defendants specifically argue that the trial court committed manifest error by relying upon the testimony of Dr. Hammitt with regard to building and safety codes. They contend that these codes are inapplicable to the instant situation because they are design codes which provide standards for original construction, and do not require property owners to change existing conditions. Finally, they argue that Dr. Hammitt’s opinion as to the existence of an unreasonable risk of harm was improperly based upon the fact that any difference in elevation greater than one-half inch would violate these codes.

We first note that, despite defendants’ suggestion to the contrary, Dr. Hammitt did not testify that any abrupt elevation change greater than one-half inch would present an unreasonable risk of harm; he testified that this particular concrete differential, which measured at least one and one quarter inches according to all the evidence, constituted an unreasonable risk of harm. Moreover, Dr. Hammitt admitted that he did not know when the service station had been built or whether it had complied with the building codes in effect at that time, but indicated that he was merely using the codes as guidelines to help him determine whether the uneven concrete at the Belle Chasse Shell constituted an unreasonable risk of harm. The trial judge heard this testimony and had the responsibility to give it the weight he believed it deserved. Moreover, we note that the trial judge did not rely 19solely on Dr. Hammitt’s testimony in making his determination. He also viewed photographs of the site placed in evidence and considered the other evidence presented. We therefore do not find that the trial court erred by relying to some degree upon Dr. Hammitt’s testimony. Pursuant to the manifest error standard of review, where there are two permissible views of the evidence, such as were presented by the two experts herein, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. See Rosell v. ESCO, supra, at 844.

Finally, the defendants suggest that the trial court’s finding that the elevation differential in the parking lot created an unreasonable risk of harm is not in accordance with Louisiana jurisprudence. In support of this contention, the defendants cite four cases that they suggest are factually similar to the instant case. In two of those cases, the Louisiana Supreme Court reversed the trial and appellate court’s conclusions that the defective pavement in question presented an unreasonable risk of harm. See Reed v. Wal-Mart, supra, wherein the Supreme Court held that % to ½ inch variations in elevation along an expansion joint in a highly trafficked area of the Wal-Mart parking lot did not create an unreasonable risk of harm; and Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080, wherein the Supreme Court held that a ½ to 1 inch depression in a sidewalk on a university campus did not create an unreasonable risk of harm. We note that both of these cases involved elevation differentials that were smaller than the one present in the instant case. The defendants cite two other cases, Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), and White v. City of Alexandria, 216 La. 308, 43 So.2d |10618 (1949), both of which involved a greater elevation difference (1 ½ to 2 inches), which the Supreme Court ruled was not unreasonably dangerous. These two cases are distinguishable from the instant case, however, because they both involved a defect in a public sidewalk rather than in a business’s private parking lot. Because a municipality is responsible for the maintenance of a large network of sidewalks and streets, the factors that must be considered in the balancing equation are inherently different than in a case against a business owner.

To controvert the defendants’ argument that the trial court’s finding herein does not comport with the jurisprudence, plaintiffs cite the Louisiana Supreme Court’s decision in Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106 (La.1990), in which the Court upheld the trial court’s finding that a 1 inch difference in elevation at the entrance of a restaurant was an unreasonably dangerous condition that caused a patron of the restaurant to fall. In view of all the jurisprudence, we cannot accept the defendants’ argument that the trial court’s finding in the instant case does not comport with the prevailing case law.

Accordingly, after reviewing the record we do not find that the trial court committed manifest error in determining that the uneven concrete that caused Ms. Cline’s fall presented an unreasonable risk of harm.

lull. Allocation of Fault

Defendants next argue that the trial court committed manifest error by failing to allocate a sufficient degree of fault to the plaintiff. Louisiana Civil Code article 2828 provides, in pertinent part:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined. ... If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

In the instant case the trial court found Ms. Cline to be 15% at fault, attributable either to inattention or to her preexisting medical condition. Defendants argue that this assessment of fault is too low, considering that Ms. Cline admitted that, just prior to her fall, she was looking at the door of the service station rather than at the pavement. According to the defendants, this inattention on the part of Ms. Cline merits an assessment of at least 75% comparative fault to her. Defendants assert that as an invitee, Ms. Cline assumed the ordinary and obvious risks involved in the use of a gas station and therefore had a duty to “walk with her eyes open, to observe the course which [she was] pursuing, and to actually | ,?see and be guided by what [was] readily apparent.” See Meek v. Travelers Ins. Co., 188 So.2d 677 (La.App. 4th 1966), at 680 n. 3.

Regarding this issue, this Court has stated:

To be a defect, the imperfection must pose an unreasonable risk of injury to persons exercising ordinary care and prudence. A pedestrian has a duty to see that which should be seen and is bound to observe his course to see if his pathway is clear.

Williams v. Orleans Parish School Board, 541 So.2d 228, 230 (La.App. 4th Cir.1989) (Citations omitted). However, we have also held that “[a] pedestrian is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle.” Johnson v. New Orleans Dept. of Streets, 94-1542, p. 2 (La.App. 4 Cir. 2/23/95), 650 So.2d 1216, 1218 (quoting White v. City of Alexandria, 43 So.2d at 620).

In the instant ease, we cannot say that the percentage of fault the trial court attributed to Ms. Cline is unreasonable based on the record. An ordinary person exercising reasonable care does not walk with his or her head down constantly, but generally looks ahead. Ms. Cline testified that she was looking at the door she was heading toward, not at the ground. The plaintiff does not dispute the trial court’s finding that she was 15% at fault for failing to notice the uneven concrete slab. Under the circumstances, we conclude that there is a reasonable basis in the record for this assessment of fault, and that the trial court was not manifestly erroneous for failing to allocate a greater percentage of fault to the plaintiff.

III. Award of Future Medical Expenses

The defendants contend that the trial court committed manifest error by awarding an excessive amount of future medical expenses without sufficient [ 1sevidentiary support. The trial court found that Ms. Cline was entitled to $45,000.00 for future medical expenses. In its Reasons for Judgment, the court noted that the plaintiffs treating physician, Dr. Sulaiman, and the defendants’ medical expert, Dr. Applebaum, concluded that although the surgery performed on Ms. Cline had been successful in eliminating the possibility that a bone fragment could migrate and injure the spinal cord, the second goal of the surgery, which was to cause the fractured segments to fuse, had not been achieved. Both physicians also agreed that, although the lack of such fusion did not mandate future surgery for Ms. Cline, a second surgery would be one of her treatment options. Finally, Dr. Su-laiman testified that Ms. Cline would continue to have neck pain for the rest of her life, which would require periodic treatment including physical therapy, spinal injections, medication and possibly further surgery.

Defendants argue that, except for approximately $2600.00 to cover the remaining physical therapy treatments Dr. Sulai-man had prescribed at the time of trial, the plaintiff failed to introduce evidence to support her need for future medical expenses.

As this Court has repeatedly held, the proper standard to determine whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expenses will be medically necessary. Moody v. Cummings, 2009-1233, p. 15 (La.App. 4 Cir. 4/14/10), 37 So.3d 1054, 1064 (citing Hoskin v. Plaquemines Parish Government, 97-0061, p. 6 (La.App. 4 Cir. 12/1/97), 703 So.2d 207, 211). In Molony v. USAA Prop. & Cas. Co., 97-1836 (La.App. 4 Cir. 3/4/98), 708 So.2d 1220, this Court articulated that standard as follows:

114Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred. Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record. If the fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then an award is proper.

Id., pp. 2-3, 708 So.2d at 1221-22 (citations omitted). Furthermore, in Dunomes v. Plaquemines Parish Government, 2009-0570 (La.App. 4 Cir. 10/21/09), 24 So.3d 242, we stated that “when the need for future medical care is established, but the cost is not, the factfinder may make a reasonable award.” Id., p. 3, 24 So.3d at 245 (quoting Lacy v. ABC Ins. Co., 97-1182, p. 13 (La.App. 4 Cir. 4/1/98), 712 So.2d 189, 196).

Applying this standard, we find the record demonstrates the existence of a reasonable factual basis for the trial court’s award of $45,000.00 in future medical expenses. The trial court heard Ms. Cline testify that she had constant neck pain. She also testified that her pain medication cost her approximately $42.00 per month. Dr. Sulaiman confirmed that Ms. Cline would probably have pain for the rest of her life and therefore would require further medical treatment including injections, pain medication, physical therapy and possibly surgery. This testimony by Dr. Sulaiman was uncontroverted. Indeed, Dr. Applebaum agreed that Ms. Cline may require surgery in the future. A reasonable inference from the medical testimony is that the conservative treatments Ms. Cline was receiving at the time of trial may well prove insufficient to address her symptoms in the future, at which point she could opt for surgery. Moreover, although the record does not contain the exact costs of future treatments, it does contain the current costs of Ms. Cline’s physical therapy sessions and medications, as well as the cost of her initial surgery. We do not find it unreasonable for the trial court to have used these amounts as | ^guidelines in determining that $45,000.00 was the appropriate award for future medical treatment. We find a reasonable factual basis in the record for that award.

IV. Award of General Damages

Defendants argue that the trial court’s award of $330,000.00 in general damages is excessive. As stated previously, general damage awards are inherently speculative; therefore, the trial court is afforded much discretion, and the appellate court may not disturb the trial court’s award unless an articulated analysis of the facts and circumstances of the case reveals an abuse of that discretion. Bouquet v. Wal-Mart Stores, Inc., supra, pp. 4-5 (La.4/4/08), 979 So.2d at 459.

In the instant case, the factual evidence does not indicate an abuse of discretion. Ms. Cline initially was transported by ambulance to the nearest hospital emergency room, where she received fourteen stitches in her head before being transferred to another hospital for surgery. Ms. Cline testified she was in severe pain from her broken neck, but was not allowed any pain medication for three days. She underwent neurosurgery which required the insertion of a permanent screw to stabilize her cervical fracture. Ms. Cline spent approximately about a week in the hospital, in-eluding time in the intensive care unit. Upon her release, she was required to wear a cervical collar for about three months, could not drive for five months, and for one month required constant assistance from her daughter and her flaneé to perform normal daily activities such as showering, dressing and using the bathroom. Ms. Cline testified that she still experiences constant pain, which her doctor testified will probably be there for the rest of her life. Prior to the accident, Ms. Cline and her fiancé frequently enjoyed fishing, camping, boating, hiking, and dancing, none of which Ms. Cline has been able to do since the accident. Ms. Cline’s fiancé, Steve Mason, testified that this accident has “totally |1f,changed her life.” Ms. Cline can no longer drive long distances to visit relatives and friends as she did before the accident; she can drive only short distances because she has difficulty turning her neck. Ms. Cline’s daughter, Stacy Cash, testified that her mother, who was able to do her own housework, cooking, laundry, and yard work before the accident, now requires Stacy’s assistance to perform those tasks.

Considering these facts, we do not find that the trial court abused its discretion by awarding Ms. Cline $380,000.00 in general damages for pain, suffering, and loss of enjoyment of life. We therefore decline to disturb that award.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

      . The answer filed by the original three defendants asserts that the Belle Chasse Shell is owned and operated by M & S Oil Services, LLC, and is located on property owned by Cheema Properties, LLC. The record reflects that Mohammad Cheema owns/ controls both entities. Accordingly, on February 18, 2011 (one week prior to trial), upon the motion of the plaintiff, the trial court dismissed without prejudice the claims against defendant Mohammad Cheema only. The trial court's judgment was rendered against the remaining two defendants, which now appeal.

      . See the discussion of La. R.S. 9:2800.6 A, infra.

      . Moreover, these two cases each involved factual issues not present in the instant case, such as unclear photographic evidence (in Shipp) and whether there was proper lighting at the site of the plaintiff’s fall (in White).

      . Defendants do not argue in their brief that Ms. Cline should have been assessed a greater degree of fault because of her preexisting medical condition that may have predisposed her to fall. The defendants were unsuccessful at trial in proving the affirmative defense that Ms. Cline’s fall was the result of her fainting rather than tripping on uneven concrete.
      We note that, despite the trial court's indication to the contrary in its Reasons for Judgment, any weakened medical condition that might predispose a plaintiff to falling is not relevant to the determination of comparative fault pursuant to La. C.C. art. 2323. In Wheat v. State Farm Fire and Casualty Co., 583 So.2d 1 (La.App. 1st Cir.1991), the court explained: "Furthermore, within the meaning of LSA-C.C. art. 2323, a medical condition is neither contributory negligence nor fault which will reduce the award to the plaintiff. See Acosta v. Pendleton Memorial Methodist Hospital, 545 So.2d 1053 (La.App. 4th Cir.), writs denied, 551 So.2d 637 and 551 So.2d 638 (La.1989). The reason is that medical causation, such as the plaintiff’s predisposition to accident, does not qualify as conduct’ on the part of the plaintiff which can be considered under the principle of comparative causation.” Id. at p. 4.