text:
    Rebecca SIMS, et al., Plaintiffs-Appellants v. Tonya HAWKINS-SHEPPARD, M.D., et al., Defendants-Appellees.
    No. 46,145-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.
    Anthony J. Bruscato, Monroe, for Appellant.
    Hudson, Potts, & Bernstein, LLP, Monroe, by Charles W. Herold, III, G. Adam Cossey, for Appellees.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

12Plaintiff, Rebecca Sims, filed a medical malpractice action on behalf of herself and her infant son, Kolten Sims, against defendants, Dr. Tonya Hawkins-Sheppard and Louisiana Medical Mutual Insurance Company. Following discovery interrogatories, defendants filed a motion for summary judgment on April 9, 2010. A hearing on the motion was set for July 7, 2010. Although plaintiff had a medical expert ready to testify, plaintiffs attorney failed to obtain a signed affidavit or deposition from the expert. On the hearing date, plaintiff, who had been misled by her attorney, requested his dismissal and a continuance. The court denied the continuance and granted summary judgment in favor of defendants because plaintiff had no expert to establish a breach of the standard of care. Following the ruling, the court allowed plaintiffs attorney to ■withdraw. Plaintiff retained a new attorney who filed this appeal. The issues presented involve both informed consent and negligence. Under the specific circumstances, we find that the trial court abused its discretion in not granting plaintiffs request to obtain new counsel and a continuance. We reverse and remand.

Facts And Procedural History

Plaintiff, who was 38 weeks pregnant at the time, was admitted to Glenwood Regional Medical Center in Ouachita Parish on April 2, 2007. Having experienced a difficult delivery due to the large size of her previous baby, plaintiff had requested delivery by Caesarean section. Defendant, Dr. Hawkins-Sheppard, however, decided to perform a surgical vaginal delivery with the use of forceps. The child suffered permanent eye injuries from the use of the forceps, and plaintiff suffered injuries that necessitated a hysterectomy, leaving her unable to conceive. Plaintiff, who was heavily medicated and in great pain, contends that she did not give consent for a vaginal forceps delivery and that Dr. Hawkins-Sheppard breached the applicable standard of care.

Prior to the filing of the complaint, a medical review panel, composed of three physicians who specialized in the field of Obstetrics and Gynecology, convened via telephone conference and concluded that Dr. Hawkins-Sheppard met the applicable standard of care. Upon receiving the panel’s opinion, plaintiff filed the instant lawsuit. Discovery was lspropounded by defendants, who sent interrogatories to plaintiff on September 24, 2009. Plaintiffs attorney answered stating that plaintiff lacked a medical expert. In response, defendants filed a motion for summary judgment on April 9, 2010. The hearing on the motion for summary judgment was set for May 4, 2010, but was continued until July 7, 2010. Plaintiffs former counsel filed a memorandum in opposition to defendants’ motion for summary judgment on June 29, 2010. The memorandum was accompanied by an unsigned physician’s affidavit. Plaintiffs former counsel assured the court and plaintiff that the unsigned affidavit would be replaced with a valid affidavit by the time of the hearing. To plaintiffs surprise, her former counsel failed to obtain a signed affidavit.

At the hearing, plaintiffs former counsel explained that Dr. Kimberly Hess, plaintiffs treating physician after the delivery, agreed to help with plaintiffs case. The attorney had known of Dr. Hess’s position for months; however, he only sent Dr. Hess the affidavit to be signed and materials to be reviewed two weeks before the hearing. Dr. Hess was on vacation the week before the hearing, followed by a three-day holiday, and had not yet signed the affidavit. When plaintiff was made aware of the situation by her former counsel the day before the hearing, she became upset and indicated that she did not want him to represent her any further. Crucially, plaintiff was notified of her former counsel’s failure to obtain a valid affidavit the day before the hearing. In response to plaintiffs wishes, trial counsel moved to withdraw as her attorney and requested that the court give plaintiff additional time to obtain new counsel and present Dr. Hess’s affidavit. At this time, the court had a conversation on the record with plaintiff. The court asked plaintiff if she had discussed the implications of relieving counsel. The trial court went further to preemptively state that there would not likely be a continuance of the summary judgment proceedings. Plaintiff reiterated to the court that she did not know until the day before the hearing on the motion for summary judgment that her attorney failed to obtain the signed affidavit. Plaintiff believed that her former attorney should have had the signed affidavit before Dr. Hess moved from Louisiana to Indiana. Plaintiff further stated that the affidavit was on Dr. Hess’s desk ready to be signed.

|4The judgment granting summary judgment in favor of defendants was signed on July 9, 2010. Plaintiff enrolled present counsel on August 9, 2010, past the time for a new trial motion, and he filed this appeal on the same day.

Discussion

Pursuant to La. C.C.P. art. 966(B), affidavits to oppose a motion for summary judgment shall be filed eight days prior to the hearing on the motion, in observance of District Court Rule 9.9. However, under La. C.C.P. art. 966(B) the trial judge retains great discretion regarding the time of filing. The court shall give the adverse party additional time to file a response, including opposing affidavits, if good cause is shown. It is within the trial judge’s discretion to continue the hearing to enable compliance with the eight day filing requirement. In addition, trial courts have discretion, absent prejudice to the moving party, to consider affidavits served after the time prescribed by La. C.C.P. art. 966(B). James Construction Group, L.L.C. v. State ex rel. DOTD, 07-0225 (La.App. 1st Cir.11/02/07), 977 So.2d 989.

Case law laid down by this state’s highest court guides our analysis of the present issue. Although a new trial motion was at the center of the supreme court’s ruling in Lamb v. Lamb, 430 So.2d 51 (La.1983), the principle laid down is applicable to the present situation. The supreme court in Lamb, when faced with similar facts as the case at hand, found that “[defendant] was victimized by the neglect of her attorney, the overzealous action of opposing counsel and the trial judge’s erroneous belief that she neglected her legal affairs. To allow this judgment to stand would be to permit technical pleading rules to triumph over actual justice.” Lamb, 430 So.2d at 54. Similarly in Hardy v. Kidder, 292 So.2d 575 (La.1973), a case wherein a default judgment was overturned, the supreme court held that good grounds existed for the granting of a new trial due to the blatant failure of defendants’ attorney.

The supreme court in both Lamb and Hardy found that when a litigant suffered the loss of his day in court solely due to attorney negligence, then a technical rule should not aid in the miscarriage of justice. In the instant case, plaintiff was not aware of her attorney’s failure to obtain a valid | ¿affidavit. Even though the physician was ready to sign such an affidavit, the court rendered judgment for defendants, closing its doors to a trial on the merits of plaintiffs case. It is our duty to permit litigants all reasonable opportunity to place before a court all facts bearing on the issues involved. Smith v. Alliance Compressors, 05-855 (La.App. 3d Cir.02/01/06), 922 So.2d 674.

The content of Dr. Hess’s affidavit is alleged to disagree with the view of the medical review panel. The affidavit allegedly focuses on the breach of the standard of care and the overall negligence of the physician/defendant. Allegedly, Dr. Hess, who just returned from vacation, was catching up on her work and the affidavit was sitting on her desk waiting to be signed. Dr. Hess had been available for many months, but plaintiffs counsel simply failed to contact her. This inaction was concealed by plaintiffs former counsel until the day before the hearing on the motion for summary judgment. When weighing the options of giving a litigant, who was misled by her attorney, more time to obtain the necessary documents that are, based on the record, easily attainable versus shutting the doors to litigation, we find that the trial court abused the discretion afforded to it under La. C.C.P. art. 966(B) and the interpreting case law. The trial court should have allowed plaintiff a reasonable amount of time to obtain new counsel and secure the signature of Dr. Hess rather than cutting off plaintiff at the summary judgment phase, which was a clear and direct result of her being misled and deceived by her former counsel.

We further note that the question of informed consent does not necessarily require medical expert testimony. In this case, there was no documentation of consent, and plaintiff asserted that at the time she was substantially medicated. We, however, do not reach that issue at this time.

Conclusion

Based on the above law and facts, we reverse the trial court’s granting of summary judgment and remand the matter to the trial court. Costs assessed one-half to each to defendant, Dr. Tonya Hawkins-Sheppard and Louisiana Medical Mutual Insurance Company.

Reversed and Remanded.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Linda LEE, Roy Lee, Sandra Ketchum, Louis Ketchum, Jr., Linda Giddens, Lee Giddens, Peggy McCain and Tom McCain, d/b/a Shreveport Salvage Pool, Plaintiffs-Appellants v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 46,146-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Robert I. Thompson, III, Trina T. Chu, Shreveport, John W. Pickett, Many, for Appellants.
    Dannye W. Malone, Mary E. Winchell, Shreveport, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

2Linda Lee, Roy Lee, Sandra Ketchum, Louis Ketchum, Jr., Linda Giddens, Lee Giddens, Peggy McCain and Tom McCain, dba Shreveport Salvage Pool (collectively “SSP”) appeal the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, granting a peremptory exception of prescription in favor of the City of Shreveport (“the City”). For the following reasons we affirm the trial court’s judgment.

Facts

Prior to December 19, 1994, any disabled vehicles within the Shreveport city limits for which the owner did not have a preference of towing company were towed by a towing company from a city-maintained rotational list (“the list”) and stored according to the policy of that towing company. The list was composed of companies that both desired to be placed on the list and also met certain criteria as determined by the City. Some of the listed towing companies maintained their own storage facilities, while others contracted with separate companies to store the towed vehicles at their facilities.

Eventually, the City determined that this practice was problematic for various reasons. In many circumstances, when a person’s vehicle was towed, that person had to call the Shreveport Police Department to find where the vehicle was being stored. The police department did not always know this information and would then have to search for the vehicle. Some towing companies from the list used storage facilities located outside Shreveport’s city limits and in parishes other than Cad-do, causing vehicle owners whose cars were towed there to have to travel significant distances to retrieve their vehicles. The City could not impose requirements regarding the conditions of the storage, such as 24-hour access or security, either. Also, there was no proper facility for cars held as police evidence. In general, there was. a lack of city regulation over this business.

Because of these inefficiencies, the City decided to create a new system using one central storage facility where all “no preference” vehicles would be stored. Several requirements aimed at resolving these inefficiencies were placed upon the companies bidding for the contract with the City to be named the main storage facility, such as the requirement that the location of their storage must be within the city limits and they maintain |sa minimum storage capacity as well as an approved inventory system. The City took bids to determine which company would receive this contract and narrowed the options to two storage companies: Twin City Salvage Pool, Inc. (“Twin City”) and SSP. Twin City won the contract with the City, which became effective on November 25,1994.

Subsequently, Shreveport City Ordinance § 102-344(J) (“the ordinance”) was enacted to reflect these changes. It provided, “All vehicles which are classified as impounds or no-preference shall be towed to a location designated by the City of Shreveport.” The substance of this ordinance remains in effect today. On December 27, 1995, a written memorandum was sent to all tow truck operators. It stated, “After January 1, 1995, all towing and wrecker services requesting participation on the City’s ‘rotational’ list must agree to abide by the limitation of rates for towing services ... and use the City’s central storage facility.”

At the time the ordinance was enacted, SSP maintained contracts with some of the tow companies on the list wherein it would be used as the storage facility for those companies. Because of the new ordinance and City contract with Twin City, SSP could no longer store towed “no preference” vehicles as it once had according to the terms of these contracts.

On January 23, 1995, SSP, along with other individuals and companies involved in the towing and storing business, sought a preliminary and permanent injunction against the enforcement of the ordinance as well as a declaration that the ordinance and subsequent contract with Twin City violated both state and federal laws. The litigation was originally filed in the First Judicial District Court for the Parish of Caddo, but was then removed to federal court. An evidentiary hearing on the request for a preliminary injunction was held and the federal district court denied the motion. Subsequently, the plaintiffs, including SSP, voluntarily dismissed the lawsuit. In 1998, SSP officially ceased its business operations and was no longer a commercial entity from that point forward. It remains out of business today.

|4In December 2002, the former SSP again filed suit against the City in the First Judicial District Court for the Parish of Caddo. This time it prayed for state law remedies only: (1) just compensation on the grounds that the ordinance is tantamount to a taking of property without just compensation within the meaning of the Constitution of the State of Louisiana, Art. 1, Secs. 4 and 23, and (2) that the ordinance resulted in a restraint of trade and created a monopoly in violation of La. R.S. 51:122, et seq. The case was set for trial in December 2008.

The City filed a peremptory exception of prescription. In response, SSP claimed this was a continuing tort and, thus, had not prescribed. The trial court granted the City’s exception and dismissed the case, reasoning that the City’s actions did not fall into the category of a continuing tort. The trial court found, instead, that the plaintiffs claim was subject to a libera-tive prescriptive period of one year as it applies to a claim of restraint of trade, monopoly and antitrust violations. Additionally, the trial court found that a taking without just compensation and denial of due process is in essence an inverse condemnation which prescribes three years from the date of the taking. The trial court found that if a taking had occurred it took place when either the city enacted the ordinance or the contract with Twin Cities took effect, both of which occurred in 1994. Because both of these prescriptive periods had run prior to the institution of this lawsuit, the trial court granted the peremptory exception of prescription, thereby dismissing the lawsuit. SSP filed this appeal.

Law and Discussion

SSP argues that the trial court erred in granting the defendant’s peremptory exception of prescription. It contends that the cause of the injury it suffered is a continuing tort that gives rise to successive damages and, therefore, does not begin to prescribe until the continuing tort ceases. It claims the wrongful conduct of the City was in passing and enforcing the ordinance, and that this conduct continues today, because the ordinance is still in effect and being enforced. Therefore, it asserts the conduct of the City has not ceased, the prescriptive period has not even begun to run, and the trial court’s granting of the City’s peremptory exception of prescription should be reversed. We disagree.

| ¿Continuing Tort

SSP incorrectly claims the continuing tort doctrine applies to this case. Louisiana C.C. art. 2315 states, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” This serves as the basis for all tort claims. Louisiana C.C. art. 3492 states, “Delictual actions are subject to a liberative prescription of one year.” However, when tortious conduct and resulting damages are of a continuing nature, prescription does not begin until the conduct causing the damages is abated. Bustamento v. Tucker, 607 So.2d 532 (La.1992); Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La.App.2d Cir.04/04/07), 954 So.2d 883, writ denied, 2007-1146 (La.09/14/07), 963 So.2d 1001. The principle of a continuing tort applies only when continuous conduct causes continuing damages. Louisiana AG Credit, PCA, supra. The continuous nature of the conduct complained of has the dual effect of rendering such conduct tortious and of delaying the commencement of prescription. Bustamento, supra; Lousiana AG Credit, PCA, supra. The conduct becomes tortious and actionable because of its continuous, cumulative, synergistic nature and prescription does not commence until the last act occurs or the conduct is abated. Id. The Louisiana Supreme Court set out the test to determine whether the law relevant to continuing torts applies. “The court must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen.” Hogg v. Chevron USA, Inc., 2009-2632 (La.07/06/10), 45 So.3d 991. In Crump v. Sabine River Authority, 1998-2326 (La.06/29/99), 737 So.2d 720, the Court made it clear that “[a] continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act.”

The action SSP claims caused it damages was the enactment of the ordinance. The conduct in this case is not continuous in nature; it is a one-time event. The repercussions of this enactment may have caused SSP damages, but that is not the criterion for a continuing tort case as set out by jurisprudence. In order for a case to fall under the theory of continuing torts the conduct causing the damage must be continuous in nature, not the | ^¡damages. That is simply not what happened here. Additionally, SSP cites no continuing tort case law arising out of damages from the enforcement or passage of an ordinance or statute. The continuing tort theory is inapplicable to the facts of this case.

This conduct is not a continuous tort, but is simply a delictual action; therefore, the prescriptive period of one year is applicable. The prescriptive period for delictual actions commences on the date the aggrieved party has actual or constructive knowledge of the facts that would entitle him to bring suit. Percy v. State, Through E.A. Conway Memorial Hasp., 478 So.2d 570 (La.App. 2d Cir.1985). At the very latest, the trial court determined that SSP knew of the ordinance by January 23, 1995, when it joined the first action for injunctive relief. Consequently, this action brought before the court in December 2002, almost eight years later, had prescribed.

Monopoly and Restraint of Trade

The Louisiana Anti-Monopoly Law provides no statute of limitations. La. R.S. 51:121 et seq. However, it has been determined that the prescriptive period for monopoly and antitrust claims is the same as for tort actions, because these actions resemble tort actions more than they resemble breach of contract actions, which have a different prescriptive period. Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553 (1959); State ex rel. Ieyoub v. Bordens, Inc., 1995-2655 (La. App. 4th Cir.11/27/96), 684 So.2d 1024. However, whether or not this situation deals with a monopoly is moot. Whether categorized as a monopoly or a general delictual act, both classifications lend themselves to a one-year prescriptive period and, thus, the claim prescribed in January of 1996, regardless of classification.

Taking

As stated in La. R.S. 13:5111, “Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.” Whether categorized as a taking, with a prescriptive period of three years, or as a general delictual action, with a prescriptive period of one year, the claim has prescribed because it was not brought until over 8 years after the alleged tortious conduct of passing the ordinance occurred. This claim has no merit.

|7Conclusion

We find Shreveport Salvage Pool acquired knowledge of the passage of the ordinance no later than January of 1995. Because it failed to establish continuing tortious conduct by the City of Shreveport, the doctrine of continuing tort does not apply to delay the commencement of prescription on its claims. Accordingly, SSP’s claims, filed in 2002, have prescribed, and the judgment of the trial court dismissing the actions is affirmed. All costs of this appeal are assessed to Linda Lee, Roy Lee, Sandra Ketchum, Louis Ketchum, Jr., Linda Giddens, Lee Giddens, Peggy McCain and Tom McCain dba Shreveport Salvage Pool.

AFFIRMED.

      . As of November 9, 2010 this ordinance is now embodied in Shreveport City Ordinance § 102-160(J).


author: KEATY, Judge. SAUNDERS, Judge,

text:
    Lyndon G. DOYLE, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 10-1020.
    Court of Appeal of Louisiana, Third Circuit.
    March 2, 2011.

      Walter K. Jamison, III, Marjorie B. Breaux, Bryan E. Lege, Kraft Gatz Lane Benjamin, LLC, Lafayette, Louisiana, for Defendant/Appellee, National Union Fire Insurance.
    P.J. Laborde, Jr., David C. Laborde, The LaBorde Law Firm, L.L.C., Lafayette, Louisiana, for Plaintiffs/Appellants, Lyndon G. Doyle, Charlotte Doyle.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiffs, Lyndon Doyle (Doyle) and his wife, Charlotte Doyle, appeal a summary judgment granted in favor of Defendant, National Union Fire Mutual Insurance Company (National Union), on the basis that a waiver of uninsured motorist insurance was validly executed, thereby relieving National Union from liability.

FACTS AND PROCEDURAL HISTORY

On January 31, 2008, Aniece Smith rear-ended Doyle while he was driving a vehicle owned by his employer, Ecolab, Inc. (Eco-lab). As a result of the collision, Doyle suffered a myriad of injuries to his back, shoulders, neck, and limbs, in addition to sprained muscles. At the time he filed his petition in the District Court, Doyle’s medical bills totaled $15,283.69. Additionally, he was diagnosed with adhesive capsulitis, and his doctor recommended a surgery estimated to cost at least $11,500.00.

Smith carried two insurance liability policies each with a limit of $10,000.00. Those policies were paid in full to Doyle. Ecolab was insured by National Union, and in addition to seeking full policy limits from Smith’s carriers, Doyle sought full policy limits from National Union under the uninsured/underinsured motorist (UM) liability provision. National Union admitted that a policy covering Doyle existed but denied the availability of UM coverage due to a waiver signed by Ecolab’s [¿representative, John Spies, on February 4, 2003. A second waiver at issue in this appeal was signed by Spies on December 18, 2003.

Doyle filed a petition for damages on January 12, 2009. In his petition, he named five defendants: Allstate Insurance Company as Aniece Smith’s liability insurer, Allstate Insurance Company as Doyle’s UM insurer, Unitrin, National Union Fire Insurance, and Aniece Smith.

Doyle filed a motion for partial summary judgment against National Union on February 10, 2009, alleging that the UM waiver signed on February 4, 2003 was improperly executed and, therefore, invalid. The rule was set for March 15, 2010, and was continued to March 29, 2010 pursuant to an unopposed motion to continue filed by National Union. There is no indication in the record that a hearing on Doyle’s partial summary judgment took place on March 29, 2010, nor does the record reflect that it was continued or reset.

National Union filed a cross motion for summary judgment on March 19, 2010, alleging that the UM waiver was valid, thereby precluding Doyle’s recovery. National Union’s motion for summary judgment was heard and granted on May 10, 2010.

Doyle appeals, claiming in a single, two-part assignment of error: that “[t]he trial court erred in denying Plaintiffs’ Motion for Summary Judgment and granting Defendant’s Motion for Summary Judgment, holding that there is no uninsured motorist coverage under National Union Fire Insurance Company of Pittsburgh, Pennsylvania’s policy.”

|3For the following reasons, we affirm the trial court’s judgment.

DISCUSSION

Summary Judgment

Summary judgment is a procedural tool “designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La.Code Civ.P. art. 966(A)(2). If the motion for summary judgment and supporting affidavits show that there is no genuine issue of material fact, the mover is entitled to a judgment as a matter of law. La. Code Civ.P. art. 966(C). A material fact is one whose “existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. In Evans v. Automotive Casualty Insurance Co., 94-129, p. 3 (La. App. 3 Cir. 10/5/94), 643 So.2d 389, 391, unit denied, 94-2732 (La.1/6/95), 648 So.2d 930 (citations omitted), we noted that “[a] ‘genuine issue’ is a ‘triable issue.’ ” We further stated that “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” Id. (citations omitted).

A granting of summary judgment by the trial court is reviewed by this court de novo. Advance Prods. & Sys., Inc. v. Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26 (La.3/9/07), 949 So.2d 444. In doing so, we must “[view] the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant.” Id. at 791 (quoting Hines v. Garrett, 04-806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (per curiam)).

|^Denial of Doyle’s Motion for Summary Judgment

This issue is not before us. According to. the record, on February 26, 2010, Doyle agreed to continue the hearing on his motion for summary judgment without date. The hearing was reset to March 29, 2010. There is no evidence in the record to support a conclusion that the hearing occurred or that it was continued and reset to another day. “[A]n appeal is from the judgment.” Parish of St. Charles v. Young, 99-411, p. 3 (La.App. 5 Cir. 12/15/99), 750 So.2d 276, 278 (quoting State v. Sonat Exploration Co., 27,592 (La. App. 2 Cir. 12/6/95), 665 So.2d 718, 722, umt granted, judgment reversed on other grounds, 96-443 (La.4/19/96), 671 So.2d 933). The May 10, 2010 judgment being appealed reflects that the motion for summary judgment considered at the hearing was filed on behalf of National Union and does not indicate that the trial court considered cross motions for summary judgment at the hearing. Thus, this assignment of error is without merit.

Grant of Defendant’s Motion for Summary Judgment

UM waiver signed on February 4, 2003

In his brief, counsel for Doyle contended that the waiver of UM coverage signed by Ecolab’s representative on February 4, 2003 is invalid because it does not contain a policy number in the place designated by the commissioner of insurance and in accordance with Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544 and because it does not contain the company name in the designated | ^location according to bulletin number 98-01, promulgated by the commissioner of insurance. At oral arguments, counsel for Doyle effectively withdrew his assertion that the February 4, 2003 waiver is invalid by stating that the first waiver complied with Duncan and that Gingles v. Dard-enne, 08-2995 (La.3/13/09), 4 So.3d 799, made it clear that the insurance company name need not be present on the form. Accordingly, we will treat this portion of Doyle’s argument as withdrawn from our consideration.

Second Waiver Signed on December 18, 2003

Doyle’s only assertion for our consideration is that a second waiver, signed on December 18, 2003, is invalid and super-cedes the first, valid waiver because it was signed during the original policy term, not in conjunction with a renewal and not in conjunction with a change in coverage.

At trial, National Union admitted that the December 18 waiver was invalid but claimed that they did not have a copy of that waiver in their underwriting file for Ecolab. This assertion was corroborated by Lynn M. Boyle, assistant vice president and regional manager for the commercial casualty, risk management, department of Chartis U.S., who stated in her deposition that the December 18 waiver was not in Ecolab’s underwriting file. Doyle obtained the December 18 waiver from Marsh, USA, the independent broker for Ecolab.

John Spies, director of corporate risk management for Ecolab, stated in his deposition that he negotiated and secured insurance with National Union on behalf IfiOf Ecolab in 2003 and in subsequent years and that he is the person who signs all requisite forms, including waivers, necessary for procuring insurance policies on behalf of Ecolab. He also stated that the renewal process begins a few months before a policy is set to renew and that he has discussions with his broker and with underwriters, fills out applications, and receives quotes in the month of December and makes a decision “several weeks before expiration.” When asked why he would have signed two UM waivers in one year, he stated, “one form may have been for the 2003 year and another form for the upcoming renewal.”

National Union reiterated to this court, at oral argument, that the insurance policy was secured in February 2003 but dated back to December 31, 2002, and that the UM waiver signed in February 2003 was retroactive to December 31, 2002.

Doyle would have this court find that the second waiver was not signed pursuant to a renewal and thus supercedes the valid first waiver. In making this assertion, he relies on this court’s opinion in Alexander v. Estate ofMcNeal, 10-66, p. 5 (La.App. 3 Cir. 6/30/10), 44 So.3d 338, 341, unit denied, 10-1807 (La.10/29/10), 48 So.3d 1093, where we found that because the second UM waiver was signed only a few months after the initial waiver and because “[t]here is nothing in the record to indicate Mr. Dupar was called in to sign a renewal,]” the second, invalid waiver superceded the first waiver, and UM insurance was in effect. That case is factually distinguishable from the instant case.

In Alexander, the insured signed waivers of UM coverage on two rejection forms, each containing different language, three months apart. The validity of the first waiver was disputed, but the second waiver was undeniably invalid. The | insurance company, in Alexander, argued that the second waiver was irrelevant since the first waiver was valid, and the trial court, at a motion for summary judgment, stated that although “there is strong statutory language indicating that regarding renewal the initial UM rejection stands,” for an unknown reason, the insurance company wanted to have a second rejection form signed and wanted that form to have “the full force of law.” Id. at 340-11. The trial court went on to state that “where the drafter of the contract, the drafter of the policy, the insurer compels for whatever reason the insured to come back in[,][t]hat second document has to stand for something.” Id. at 340.

On appeal, we agreed, finding that “[t]he insurer cannot pick and choose which one of the rejection forms to enforce” and that “[tjhere is nothing in the record to indicate Mr. Dupar was called in to sign a renewal.” Id. at 341. Thus, we concluded that because the two rejection forms were different in their wording and because the insured was called in to sign them only three months apart, the second waiver su-perceded the first. As the second waiver was invalid, we found that there was not a rejection of UM coverage.

The instant case involves two UM rejection forms, but unlike Alexander, the forms are identical. The first form was signed when Ecolab obtained insurance with National Union, but it was intended to relate back to the retroactive starting date of the policy, December 31, 2002. The second form was signed on December 18, 2003. National Union did not have the second form in its underwriting file; indeed, it was obtained by Doyle from Marsh, the independent broker. The testimonies we have explaining why the second waiver may have been signed are from John Spies who made an educated guess that the second waiver was signed in connection with an | Rupeoming renewal period and from Lynn Boyle who testified that “in the normal course of business something dated 12/18/03 would be in preparation for the '03 to '04 renewal of a policy.”

This court clearly stated in Rashall v. Pennington, 08-1 (La.App. 3 Cir. 4/30/08), 982 So.2d 301, writ denied, 08-1543 (La.10/10/08), 993 So.2d 1286 and Stephenson v. Van Vleit, 96-1407 (La.App. 3 Cir. 4/30/97), 693 So.2d 858, writ denied, 97-1431. (La.9/19/97), 701 So.2d 174 that in cases of a renewal, a second, invalid form does not supercede an initial, valid waiver since the purpose of the second waiver is to reiterate the insured’s intent to reject his or her UM coverage. Since a new waiver does not have to be signed each year when a policy is renewing without any changes, a second invalid waiver on a renewal does not supercede an initial, valid waiver. La.R.S. 22:1295; see Rashall, 982 So.2d 301.

Lynn Boyle testified that National Union only sends new UM rejection forms to its insured when there is a change in the insured’s limits or deductibles or in connection with a renewal. She testified that in the normal course of business, once a UM rejection form is signed and returned to Chartis, it is placed in the underwriting file, that there would not be additional UM rejection forms in the file unless the coverage or limits had changed, and that she did not have the December 18, 2003 waiver in her underwriting file.

John Spies testified that UM forms come to him either from National Union or from Marsh, and that the second rejection form was probably signed in connection with a renewal as the policy renewed every year on December 31. Counsel for Doyle loStated that they received their copy of the second waiver from Marsh, not from National Union.

We conclude that the second waiver was signed in connection with a policy renewal; thus, Alexander does not apply to the instant case, and the second waiver does not supercede the first. Ecolab validly rejected UM coverage on the policy insuring Lyndon Doyle at the time of the accident in January 2008.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of National Union. Costs of this appeal are assessed to National Union Fire Insurance.

AFFIRMED.

SAUNDERS, J., dissents with written reasons.

SAUNDERS, Judge,

dissenting.

h Summary Judgment, while now favored in law, must still be based on competent evidence. In my view, an “educated guess” by a single witness is not enough to support summary judgment.

The record before us does not establish the reason that the second rejection was signed. It may or may not have been a renewal. This is a critical issue of fact and is unresolved. We should remand the case for a trial on the merits to resolve this issue. Accordingly, I respectfully dissent.

      . Charlotte Doyle joined in Lyndon Doyle’s petition for damages claiming severe mental anguish and loss of consortium. She was not involved in the accident giving rise to Lyndon Doyle’s injuries. When we refer to Doyle in the opinion we are only referring to Lyndon Doyle.

      . Adhesive capsulitis is defined as "a global decrease in shoulder range of motion ... referring to the actual adhesion of the shoulder capsule to the humeral head.” It is usually painful at onset. Norman Cohen, M.D., Eric P. Gall, M.D. and Lori Siegal, M.D. Adhesive Capsulitis: A Sticky Issue, American Academy of Family Physicians, April 1, 1999 available at http://www.aafp.org/afp/990401 ap/1843. html.

      . A foreign insurance company; the petition does not specify whom they insured.

      . All claims against Smith, Unitrin, and Allstate, in its capacity as insurer for both Smith and Doyle, were dismissed on March 20 and April 28, 2009.

      .In Duncan, 950 So.2d at 551, the supreme court enumerated six factors that needed to be present on a UM waiver form to render the rejection valid:
      (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

      . Bulletin 98-01 states: "For identification purposes, the company name must be placed at the lower left-hand comer ... of the Form.” Duncan, 950 So.2d at 551. The bulletin was created prior to the Duncan opinion and the supreme court did not address the company name in its enumeration of the requirements for effectuating a valid UM rejection.

      . The Chartis hierarchy is as follows: AIG is the parent company to Chartis, and Chartis issues policies for various insurance companies including National Union.

      . The 2003 policy year expired on December 31, 2003.

      . Rashall references La.R.S. 22:680(l)(a)(i-ii) which was renumbered pursuant to Acts 2008 No. 415 § 1. The subject of La.R.S. 22:680 is now found in La.R.S. 22:1295.


author: THIBODEAUX, Chief Judge.

text:
    W.T.A. v. M.Y., et al.
    No. 10-839.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    See also, 2011 WL 383978.

      Joseph E. Bearden III, Christina M. Kocke, Geoffrey Peter Clement, Metairie, LA, for Defendant/Appellee, M.Y.
    Winston Thomas Angers Lafayette, LA for Plaintiff/Appellant, W.T.A.
    Robert Alexander Jarred, Lafayette, LA, for Defendant/Appellee, A.J.A.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| Appellant, W.T.A., asserts that the trial court erred by granting Marcie Yeager’s exception of no cause of action on the claim of intentional infliction of emotional distress and by failing to address his other various claims. Marcie Yeager is a social worker. W.T.A. also asserts the trial court erred by holding his defamation claim against Yeager prescribed. W.T.A. finally argues that because the trial court erred as noted above, it also erred by holding his motion to compel discovery moot. Because we find that W.T.A.’s original petition stated a claim for intentional infliction of emotional distress, we reverse that portion of the judgment which dismissed this claim. We also reverse the trial court’s denial of W.T.A.’s motion to compel discovery, and we order Yeager to produce her records and to submit to all other appropriate discovery. Finally, for the following reasons, we affirm the rest of the judgment.

I.

ISSUES

We shall consider whether the trial court erred by dismissing:

(1) W.T.A.’s claim of intentional infliction of emotional distress for failure to state a claim where W.T.A. alleged that Yeager coached his son to make false accusations of sexual abuse against him; and,
(2) W.T.A.’s defamation claim on the grounds of prescription where W.T.A. filed his petition in 2001 but alleged 1994 as the only year surrounding his claims of defamation.

J¿I.

FACTS AND PROCEDURAL HISTORY

When A.J.A. was approximately four years old, his father, W.T.A., and his mother, S.J.D., were divorced. A lengthy and bitter battle over A.J.A.’s custody ensued. W.T.A. and S.J.D. accused each other of sexually molesting A.J.A. Thus, A.J.A. has undergone several examinations and counseling sessions with various mental health experts. Most of these experts were court-appointed. A.J.A.’s mother also hired Yeager as her expert. Yeager was the only expert who concluded that W.T.A. molested A. J.A.

W.T.A. filed this suit in 2001. In 1997, W.T.A. also filed a suit on his own behalf and on behalf of A.J.A. against Yeager and S.J.D. alleging the same conduct on their part as he has alleged in this suit. Eventually, the trial court dismissed the 1997 suit for failure to state a claim. W.T.A. appealed this judgment, and this court reversed, stating that W.T.A. alleged enough facts to state, at the very least, a defamation claim. W.T.A. v. M.Y., 10-434 (La. App. 3 Cir. 11/3/10), 2011 WL 383978.

In 2000, after an exhaustive investigation, the trial court, in a proceeding separate from this matter, found that A.J.A. was coached to accuse his father, W.T.A., of sexually molesting him. Because the court found that Yeager coached A.J.A., the court prohibited anyone acting on behalf of A.J.A. from bringing A.J.A. to any counseling sessions with Yeager or any other mental health professional the court did not appoint.

In this suit, W.T.A. presented detailed allegations as to how Yeager coached A.J.A. to make false allegations against him and how both W.T.A. and A.J.A. suffered from this. W.T.A. alleged in great detail how Yeager committed | ^malpractice. W.T.A. also included one paragraph in which he summarily alleged that Yeager defamed W.T.A. and A.J.A. by making false statements and that both were damaged by this. Finally, W.T.A. alleged that Yeager invaded W.T.A.’s and A.J.A.’s privacy by violating the court’s seal.

In 2009, after A.J.A. reached majority, Yeager filed an exception of no right of action and/or exception of lack of procedural capacity. The trial court appointed a curator for A.J.A. and gave A.J.A. an opportunity to pursue his claims against Yeager on his own behalf. A.J.A. refused in writing to maintain the suit.

In February of 2010, the trial court sustained Yeager’s exception of no cause of action and dismissed W.T.A.’s claims of negligent or intentional infliction of emotional distress, malpractice, loss of father/son relationship, loss of consortium, and loss of love and affection. The trial court allowed W.T.A. to amend the petition to state a cause of action for defamation. W.T.A. filed a motion for a new trial and to compel deposition of Yeager and production of her records.

W.T.A. amended his petition and made detailed allegations of defamation. Nevertheless, the only date of publication to the third parties he alleged was 1994 — the year in which Times of Acadiana published an article about the matter. Yeager filed an exception of prescription which the trial court granted. Without court’s leave, past the time the trial court allowed for the amendment, and five days before the hearing, W.T.A. attempted a second amendment of his petition to allege 1996 as the year of the publication in Times of Acadia-na. The trial court disallowed the second amendment as untimely.

In light of its decision to sustain the exception of prescription, the trial court denied W.T.A.’s motion to compel deposition of Yeager and production of her records as moot. Finally, the trial court denied W.T.A.’s motion for a new trial Rbecause W.T.A. failed to raise any grounds or arguments not previously presented to the court.

On appeal, W.T.A. argues that because he filed his first suit in 1997, it interrupted prescription. He further argues that his first amended petition contained a clerical error, i.e., that the publication in Times of Acadiana was not in 1994 but in 1996, and, therefore, his 1997 suit was within the prescriptive period. W.T.A. also maintains that Yeager continued to make false allegations to third parties. Thus, under the continuing tort theory, W.T.A. suggests that the trial court erred by concluding that the action was prescribed.

W.T.A. also assigns errors to the following trial court’s actions: . (1) the holding that his original petition did not state a claim for infliction of emotional distress; (2) the failure to address his claims of invasion of privacy, malicious litigation and prosecution; and, (3) the failure to allow an amendment to allege malicious litigation, malicious prosecution, invasion of privacy, and civil conspiracy to obstruct justice.

III.

STANDARD OF REVIEW

Appellate courts review a grant of the peremptory exception of no cause of action de novo. Hebert v. Shelton, 08-1275 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197.

The manifest error standard of review applies to an appellate court’s consideration of prescription. Strahan v. Sabine Ret. & Rehab. Ctr., Inc., 07-1607 (La.App. 3 Cir. 4/30/08), 981 So.2d 287. Nevertheless, we must bear in mind that an appellate court must strictly construe the statutes against prescription and in favor of the extinguished claim. Id.

After an answer is filed, the trial court has considerable discretion as to whether to refuse or allow amendments to the pleading. Stockstill v. C.F. Indus., Inc., 94-2072 (La.App. 1 Cir. 12/15/95), 665 So.2d 802, writ denied, 96-149 (La.3/15/96), 669 So.2d 428. The appellate courts will not disturb the trial court’s decision on appeal absent an abuse of that discretion and a possibility of resulting injustice. Id.

IV.

LAW AND DISCUSSION

(1) Exception of No Cause of Action

The exception of no cause of action is designed to test the sufficiency of the plaintiffs petition. Hebert, 11 So.3d 1197 (quoting Kinchen v. Livingston Parish Council, 07-478, p. 2 (La.10/16/07), 967 So.2d 1137, 1138). The issue is whether the law affords a remedy to the plaintiff based on the facts the pleading contains. Id. No evidence may be introduced to decide this issue, but the well-pleaded facts in the petition must be accepted as true. Id. The court should not dismiss an action for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” Id. at 1202 (emphasis added).

The essential elements of a claim for an intentional infliction of emotional distress are: (1) intent to cause (2) severe emotional distress by (3) extreme and outrageous conduct. White v. Monsanto Co., 585 So.2d 1205 (La.1991). “The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly | ^intolerable in a civilized community.” Id. at 1209. Merely tortious or illegal conduct does not rise to the level of extreme and outrageous. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017. Thus, “[l]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” White, 585 So.2d at 1209. “The distress suffered must be such that no reasonable person could be expected to endure it.” Id. at 1210.

In the petition, W.T.A. essentially alleges that Yeager, along with S.J.D., coached A. J.A. to make false accusations of sexual abuse against him. Accepting, as we must, these allegations as true, we conclude that the law affords a remedy to W.T.A. Certainly, coaching a child to make a false allegation of sexual abuse against his father is an intentional act to inflict emotional distress upon the father. It is an act that goes beyond all possible bounds of decency, and our civilized community must regard it as atrocious and utterly intolerable. Of course, no reasonable person could be expected to endure the distress of a person falsely accused of sexual abuse of her or his own child. Therefore, W.T.A. alleged enough facts to state a cause of action for intentional infliction of emotional distress.

(2) Exception of Prescription

The party that asserts the exception of prescription bears the burden of proof. Hogg v. Chevron USA, Inc., 09-2632, 09-2635 (La.7/6/10), 45 So.3d 991. Nevertheless, when the face of the petition reveals that the plaintiffs claim is prescribed, the burden shift back onto the plaintiff to show why the claim is not prescribed. Id. The prescriptive period applicable to the defamation claims is one year. La.Civ.Code art. 3536; Dupre v. Marquis, 467 So.2d 65 (La.App. 3 Cir.), writ denied, 472 So.2d 38 (La.1985).

17As the trial court correctly pointed out, the only date of publication to the third parties W.T.A. alleged in his amended petition was 1994, the year in which an article about the matter was published in Times of Acadiana. Thus, the defamation claim is prescribed on the face of the petition. The burden shifted to W.T.A. to show that his claim was not prescribed. He has failed to timely sustain that burden.

We find W.T.A.’s argument regarding continuous • tort theory without merit. Contrary to W.T.A.’s assertions, each publication of a defamatory statement to third persons is a new tort and constitutes a separate cause of action. Wiggins v. Creary, 475 So.2d 780 (La.App. 1 Cir.), writ denied, 478 So.2d 910 (La.1985) (citing Neyrey v. Lebrun, 309 So.2d 722 (La. App. 4 Cir.1975)). W.T.A. alleged in his amended petition that Yeager “continued to make them [defamatory statements] after [their] invalidation” by the numerous investigations. Presumably, these statements were made in 1994, as W.T.A. alleged no other year in the petition or in the amended petition. Again, it was W.T.A.’s burden to show that his claim was not prescribed once it appeared on the face of the petition that it was. Therefore, the trial court committed no manifest error by holding W.T.A.’s claims of defamation prescribed.

3) Residual Issues

In his brief to this court, W.T.A. asserts that the trial court erred by not permitting him to amend his petition to allege malicious litigation, malicious prosecution, invasion of privacy, and civil conspiracy to obstruct justice. W.T.A. further alleges that his original petition stated a cause of action for invasion of privacy because he alleged that Yeager violated the court’s seal.

We find no error in the trial court’s refusal to allow W.T.A.’s second amended petition. W.T.A. attempted to file the amending petition without leave of | scourt five days before the hearing in 2010. Therefore, we do not find that the trial court abused its discretion by disallowing the second amending petition to be filed. Moreover, W.T.A. had some nine years from the time he filed the petition to state all causes of actions he thought he had against Yeager. Thus, we find no error in the trial court’s refusal to allow an amendment as to any causes of action except defamation.

Finally, we find no error in the trial court’s conclusion that W.T.A. did not state a cause of action for invasion of privacy. There are four ways in which one’s privacy may be invaded, and the summary allegation that Yeager invaded W.T.A.’s privacy by violating the court’s seal is not enough to establish this cause of action. Our conclusion that the trial court did not err by disallowing W.T.A. to amend his petition forecloses the consideration of whether the trial court should have allowed W.T.A. to amend the petition to state a claim for invasion of privacy and other torts.

V.

CONCLUSION

Judgment sustaining Marcie Yeager’s exception of no cause of action is affirmed with respect to all W.T.A.’s claims against her except intentional infliction of emotional distress. Judgment sustaining Marcie Yeager’s exception of prescription on W.T.A.’s defamation claim is affirmed. Finally, we reverse the trial court’s denial of the motion to compel discovery and to produce documents. We order Marcie Yeager to produce the documents and to submit to other appropriate discovery. Costs of this appeal are assessed against Marcie Yeager.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Initials of the persons are used because this case involves allegations of a minor's abuse during his minority.

      . We note that W.T.A. appealed the judgment that denied his motion for a new trial, not the judgment that dismissed his claims. Nevertheless, our jurisprudence indicates that where an appellant intended to appeal the judgment on the merits, the appeal should be maintained even if the motion for appeal refers by date to the judgment denying the motion for a new trial. Cole v. Belknap, Inc., 495 So.2d 434 (La.App. 3 Cir.1986). From W.T.A.’s brief, we conclude that W.T.A. intended to appeal the judgment on the merits.

      . An invasion of privacy may occur in one of four ways: (1) one appropriates name or likeness of another for ones own benefit; (2) one unreasonably intrudes upon physical solitude or seclusion of another; (3) one gives publicity which unreasonably places another in a false light before the public; and, (4) one unreasonably discloses embarrassing private facts about another to the public. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979).


text:
    STATE of Louisiana v. Lisa M. BROWN.
    No. 10-910.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant-Lisa M. Brown.
    J. Reed Walters, District Attorney, Walter Evans Dorroh, Jr., Assistant District Attorney, Jena, LA, for Plaintiff/Appellee-State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

hA jury convicted Defendant, Lisa M. Brown, of possession of cocaine. She appeals that conviction and asserts two assignments of error. She contends the trial court erroneously advised her that her sentence was not subject to diminution for good behavior pursuant to La.R.S. 15:571.3, and it erroneously refused to give a nullifying instruction to the jury on the charge of possession of drug paraphernalia. Because we find that the trial court erred in failing to give the requested instruction and the error was not harmless, we vacate Defendant’s conviction and sentence and remand this case to the trial court. Thus, Defendant’s first assignment of error is rendered moot.

I.

ISSUES

We must decide whether the trial court erroneously refused to give a nullifying instruction to the jury on the charge of possession of drug paraphernalia.

II.

FACTS AND PROCEDURAL HISTORY

Police stopped a vehicle in which Defendant was a passenger. During the stop, police observed a small Maverick cigarette box and a chrome cylinder-shaped object outside the driver’s door. Police suspected the chrome object was used to smoke crack cocaine. Additionally, a spoon containing cocaine residue was found during a search of the backseat where Defendant was sitting. Clear cellophane wrapped in aluminum foil was found in the pocket of another passenger.

The spoon, two metal tubes, and the piece of aluminum foil containing pieces of plastic all contained white residue that tested positive for cocaine. | ¡¿Defendant admitted she smoked crack cocaine earlier in the day and that the paraphernalia and/or the crack pipe belonged to her.

Defendant was charged by bill of information with possession of cocaine, in violation of La.R.S. 40:964. Defendant entered a plea of not guilty. A jury found Defendant guilty as charged. Defendant was subsequently sentenced to five years at hard labor, three of which were suspended. She was ordered placed on five years active supervised probation upon her release from incarceration. She was also ordered to pay a fine of $1,000 and costs of the proceedings. A motion to reconsider sentence was denied. A motion for appeal was filed and subsequently granted.

III.

LAW AND DISCUSSION

Trial Court’s Failure to give Nullifying Instruction

Defendant contends the trial court erroneously refused to give a nullifying instruction to the jury on the charge of possession of drug paraphernalia. Before the trial court gave its final jury instructions, defense counsel objected to the instructions because the trial court failed to include the responsive verdict of possession of drug paraphernalia. The trial court then stated the following:

[T]his is a situation where I think that it would present additional exposure for Ms. Brown, as to having an additional responsive verdict for possession of drug paraphernalia in this jury instructions, [sic] Quite honestly, which would not be under a normal possession of drug paraphernalia, I mean, possession of cocaine. I do believe that according to the law and according to my notes that are contained in the Civil Law Treatise, I do believe there is a notice requirement provided and that such a notice has to be more so than just talking about it in the middle of trial. I believe there has to be some type of pleading or some type of pretrial proceeding that has — that notice is provided specifically. Therefore, that is the reason why I did not include it as a responsive verdict in the case | ^specific instructions contained in this — in the proposed jury instructions. And that’s the reason for my ruling....

Defendant cites the statute governing special jury charges and contends that had the trial court instructed the jury on the elements of possession of drug paraphernalia, the verdict may have been different. We agree.

Louisiana Code of Criminal Procedure Article 807, entitled “Special Written Charges,” provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

State v. Simmons, 01-293, pp. 4-5 (La.5/14/02), 817 So.2d 16, 19-20 explained the significance of Article 807:

By its own terms, this article requires written submission of requested “special charges.” ... Special charges are to be distinguished from general charges, that category under which lesser and included grades of the charged offense, ie., responsive verdicts pursuant to La. C.Cr.P. art. 815, fall. See Ralph Slovenko, Control Over the Jury Verdict in Louisiana Criminal Law, 20 La. L.Rev. 657, 663-67 (1960) (distinguishing special charges from general charges and explaining, under the heading of “general charges,” that the trial judge “must charge the law as to the lesser included offense which the jury can return a verdict”). This court recognized this distinction in State v. Wilson, 315 So.2d 646, 649 (La.1975), as follows:
The trial judge is required to charge the jury as to the law that is “... applicable to the case.” La.Code Crim.P. art. 802 (1966). This includes all other offenses of which the accused may be convicted by responsive verdict. Id. art. 803. In addition to the ^charges that the trial judge must give in every case, article 807 allows the state and the defendant to submit requested special charges.
Because responsive verdicts that are required by La.C.Cr.P. arts. 803 and 815 are not special charges, they are not required to be requested in writing pursuant to La.C.Cr.P. art. 807.

Louisiana Code of Criminal Procedure Article 814(50.1) provides the following responsive verdicts for Ms. Brown’s charged offense, possession of cocaine:

Guilty.
Guilty of attempted possession of cocaine.
Guilty of possession of drug paraphernalia.
Not guilty.
The possession of drug paraphernalia verdict is responsive only if there is evidence of drug paraphernalia, as defined in R.S. 40:1031, in the charged offense of possession of cocaine.

Louisiana Revised Statutes 40:1021 defines drug paraphernalia as follows:

(1) All equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the Uniform Controlled Dangerous Substances Law, as scheduled in R.S. 40:964.
JL- • • •
(3) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.
(10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.
(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.
(b) Water pipes.
(f) Miniature cocaine spoons, and cocaine vials.

“When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.” La.Code Crim.P. art. 803. “Failure of the trial judge to fully charge the permissible verdicts then applicable to the charge in the indictment requires a reversal of the conviction.” State v. Ferguson, 358 So.2d 1214, 1221 (La.1978). Nevertheless, the mandatory nature of Article 803 is tempered by La.Code Crim.P. art. 814(C), which provides that:

Upon motion of the state or the defendant, or on its own motion, the court shall exclude a responsive verdict listed in Paragraph A if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.

16Thus, if no evidence reasonably supporting a verdict exists, that verdict may be excluded as a possible responsive verdict.

Clearly, this case involves evidence of drug paraphernalia. Thus, the trial court erred in failing to give the requested jury instruction because it was a general charge, not a special charge. We decline to review such an error under a harmless error analysis.

In Simmons, 817 So.2d 16, the defendant was charged with unauthorized entry of an inhabited dwelling, but found guilty of attempted unauthorized entry of an inhabited dwelling. At trial, the defendant requested the trial court instruct the jury that criminal trespass was a responsive verdict. The trial court refused.

The supreme court found criminal trespass was a lesser and included offense and failure to include the requested instruction on criminal trespass was not harmless error because there was a reasonable probability that the error affected the outcome of the trial. The supreme court then noted:

Given the fact that the jury, after requesting further instruction, returned a verdict of the only lesser included offense offered, it is entirely possible that the jury would have returned a verdict for the lesser misdemeanor offense of criminal trespass if that charge had been given. This difference is significant since defendant would have escaped sentencing as a multiple offender under La. R.S. 15:529.1 if the jury had convicted him of criminal trespass, a misdemean- or.

Id. at 21. The supreme court then reversed the defendant’s conviction and sentence for attempted unauthorized entry of an inhabited dwelling.

In State v. Johnson, 01-06 (La.5/31/02), 823 So.2d 917, the defendant was tried and convicted of battery on a police officer while in the custody of a correctional facility. During recess following jury selection, the trial court rejected |7a joint proposal that it charge jurors with respect to the responsive verdicts of simple battery of a police officer outside of a correctional facility and simple battery. At the close of evidence, defense counsel renewed his request, which the trial court again rejected. In accord with its view that the charged crime had no lesser included offenses, the trial court instructed jurors that the only two responsive verdicts in the case were guilty as charged and not guilty. After brief deliberation, jurors found the defendant guilty as charged.

The supreme court noted:

[Tjhough the jury’s plenary power of compromise does not altogether preclude harmless-error analysis when a trial court has erred with respect to charging lesser and included offenses, it does place that analysis beyond a purely quantitative measure of the evidence presented at trial. Harmless-error analysis may apply in a case in which a trial judge inadvertently omits one or more responsive verdicts or lesser included offenses but includes others in its jury charge and the jury rejects a compromise by returning a verdict of guilty as charged....
However, in Louisiana, a trial judge has no authority to decide unilaterally that an instruction on lesser and included offenses is not necessary because overwhelming evidence exists to convict the defendant on the crime charged and reasonable jurors therefore could not rationally acquit on the greater offense but could convict on a lesser offense. The court has limited authority to exclude those statutory responsive verdicts provided for specific offenses by La.C.Cr.P. art. 814(A) only when those verdicts are not supported by the evidence in a particular case. La.C.Cr.P. art. 814(C); cf. [State v.] Porter, 98-1106 at 9, [ (La.7/5/94),] 639 So.2d [1137] at 1142 (option of striking particular statutory responsive verdicts is “not designed to give trial courts and prosecutors the option to strike a lesser offense as a responsive verdict in order to prevent the jury from returning a compromise verdict ... supported by the evidence, even if the evidence also supports a verdict of the charged offense.”). Nor may a reviewing court sanction a similar result, when a trial court as in the present case erroneously concludes that the charged crime has no lesser included offenses, by applying a test of harmless error keyed to the weight of the evidence supporting the charged offense. As we underscored in Porter, Louisiana’s system of responsive verdicts | ¿presupposes a jury’s authority to compromise its verdict even in the face of overwhelming evidence of the charged crime.
In Louisiana, juries are sworn to render a verdict “according to the law and the evidence.” La.C.Cr.P. art. 790. The jurisprudence has allowed jurors to return a lesser responsive verdict fully supported by the same evidence which would also demonstrate, beyond a reasonable doubt, that the charged crime occurred. In the present case, the trial court’s decision to foreclose that opportunity had stark consequences for relator in terms of his sentencing exposure. It was otherwise clear that he had struck the deputy sheriff, but the difference between a misdemeanor and felony conviction, a decision which properly belonged solely within the prerogative of the jury, ultimately became the difference between six months in jail and life imprisonment at hard labor.

Id. at 922-23. The supreme court reversed the defendant’s conviction, vacated his sentence, and remanded the matter to the trial court for further proceedings.

In State v. Hernandez, 02-340 (La.App. 5 Cir. 7/30/02), 824 So.2d 529, the defendant was charged with and convicted of unauthorized entry of an inhabited dwelling. The fifth circuit reversed his conviction and remanded the matter for a new trial because the defendant requested the trial court instruct the jury that the crime of criminal trespass was a responsive verdict to the charged offense, and the trial court refused to do so.

In State v. Allen, 08-326 (La.App. 4 Cir. 12/10/08), 2 So.3d 499, writ denied, 09-31 (La.9/25/09), 18 So.3d 81, the defendant was charged with purse snatching. A jury unanimously found him guilty as charged. The fourth circuit reversed the defendant’s conviction and sentence for purse snatching and remanded the matter for a new trial because the trial court refused to give the requested instruction for the responsive verdict of theft. The court relied on its ruling in State v. Marts, 98-99 (La.App. 4 Cir. 5/31/00), 765 So.2d 438, when reversing the defendant’s conviction.

Inin Marts, the defendant was convicted of purse snatching. On appeal, the defendant argued the trial court’s failure to include theft as a responsive verdict was reversible error. The fourth circuit found that under the facts presented, the jury should have been allowed to consider and should have been instructed on the possible verdict of guilty of theft. The court then stated the following:

Unlike purse snatching, the sentencing range for theft varies depending on the value of the property taken, and theft is not a crime of violence that necessitates a more severe penalty for a multiple offender. Therefore, the trial court’s error was highly prejudicial, and necessitates that the matter be remanded for a new trial.

Id. at 445 (footnote omitted).

This court concludes, based on Hernandez, 824 So.2d 529, Allen, 2 So.3d 499, and Marts, 765 So.2d 438, that Defendant’s conviction must be reversed, her sentence vacated, and the matter remanded to the trial court for further proceedings. We note that this case is similar to Hernandez, 824 So.2d 529. In both cases, the defendants were convicted as charged. Additionally, in Allen, 2 So.3d 499, as in this case, the defendant was convicted as charged, and the verdict was unanimous. In Marts, 765 So.2d 438, the fourth circuit found the trial court’s failure to give the requested jury instruction was highly prejudicial. Because first offense possession of drug paraphernalia is a misdemeanor and the charged offense and the responsive verdict given are felonies, we find that the trial court’s failure to give the requested instruction for possession of drug paraphernalia was highly prejudicial to Defendant. For these reasons, we find that the trial court erred in failing to give the requested jury instruction. Thus, Defendant’s conviction is reversed, her sentence is vacated, and the matter is remanded to the trial court for further proceedings.

| ipOur reversal of Defendant’s conviction renders moot any discussion of whether the trial court erroneously advised Defendant that her sentence was not subject to diminution for good behavior.

IV.

CONCLUSION

The trial court erred in failing to give the requested jury instruction. Thus, we reverse Defendant’s conviction, vacate her sentence, and remand this action to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Louisiana Revised Statutes 14:1031 reads as follows: "It is the purpose of this Part to establish a permit system to allow animal control facilities to acquire and administer sodium pentobarbital for the humane euthanasia of sick, homeless, and abandoned animals." Article 814(50.1) contains a typographical error. We assume the legislature meant to reference La.R.S. 40:1021, which defines the term drug paraphernalia.

      . We note that in the State’s opening statement, counsel described at least two items classified as “drug paraphernalia” that were found in the car — a’ crack pipe and a metal spoon.


author: PETERS, J.

text:
    STATE of Louisiana v. Oterrell BOUTTE aka O’Terrel Boutte aka O’Terrell Boutte, et al.
    No. 10-0928.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Alan P. Haney, Assistant District Attorney, Fifteenth Judicial District, Lafayette, LA, for Appellee, State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Oterrel Joseph Boutte.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

| ¡This matter is before us for a second time on the issue of the defendant’s habitual offender status. Previously, the defendant, Oterrel Joseph Boutte, appealed his conviction for monetary instrument abuse, a violation of La.R.S. 14:72.2, as well as his adjudication as a fourth felony offender. This court, in separate opinions, affirmed his conviction but vacated his adjudication as a fourth felony offender and remanded the matter to the trial court for further proceedings. State v. Boutte, 09-583 (La. App. 8 Cir. 12/16/09), 27 So.3d 312; State v. Boutte, 09-404 (La.App. 3 Cir. 1/13/10), 27 So.3d 1111. After holding a new hearing, the trial court again adjudicated the defendant as an habitual offender. The trial court then sentenced him to serve twenty years at hard labor. The defendant again appeals his adjudication and sentence. For the following reasons, we affirm the adjudication and sentence in all respects.

Of the five assignments of error before this court, the defendant’s counsel raises two. The remaining three are pro se assignments of error. The defendant’s counsel asserts that:

1. The trial court erred in adjudicating Mr. Boutte a fourth felony habitual offender.
2. The sentence imposed is excessive for Mr. Boutte and this offense.

In his pro se assignments of error, the defendant asserts that:

1. the trial court [erred] in adjudicating him a fourth felony offender in absence of the State’s proof at the multiple offender hearing that the predicate pleas were made with the assistance of counsel.
2. the trial court committed error patent on the face of the record when it relied on a predicate offense that was never in existence for the purpose of finding him to be a fourth felony offender. In [ 2this matter as the information charging that a nonexistent offense suffered an unwaivable substantial defect that cannot be cured at this late state of the proceedings by noting the correct date the predicate conviction was obtained.
3. it was error for the trial court to use a non-finalized conviction for the purpose of sentence enhancement.

Assignment of Error Number 1

In this assignment of error, the defendant challenges the evidence supporting his adjudication as a fourth felony offender. Specifically, he asserts that the State of Louisiana (state) failed to produce any evidence to establish the discharge date of any of his prior convictions, and that this failure is fatal to his adjudication as an habitual offender.

Louisiana Revised Statutes 15:529.1(C) provides that:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

The record before us establishes that the defendant pled guilty to possession of cocaine on February 7, 1994; to accessory after the fact to attempted second degree murder on February 28, 1994; and to possession of cocaine on February 4, 2002. These three convictions, together with the conviction for monetary instrument abuse, constitute the basis for the defendant’s adjudication as a fourth felony offender. The defendant committed the offense of monetary instrument abuse on March 25, 2003, and was convicted of that offense on July 2, 2008.

IsThe defendant correctly points out that the state presented no evidence to establish the discharge dates for any of his prior convictions, and cites us to State v. Davis, 41,245 (La.App. 2 Cir. 8/9/06), 937 So.2d 5, as support for his position that the evidence is insufficient to support his adjudication.

The defendant in Davis had been sentenced in 1983 to ten years at hard labor by the State of Texas for a rape conviction. The Texas court suspended Davis’ sentence and placed him on probation. However, his probation was revoked on April 25, 1985, and he was ordered to serve his ten year sentence, but subject to credit for time served. The offense for which he was being adjudicated an habitual offender occurred on April 28, 2004. Thus, as pointed out by the second circuit, the discharge date was critical in determining whether the cleansing period had run. In finding that Davis’ habitual offender adjudication and sentence should be vacated, the second circuit relied on its holding in a previous case, State v. Boykin, 29,141 (LaApp. 2 Cir. 01/31/97), 688 So.2d 1250. The second circuit stated in Boykin that:

This “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311 (La.1977); State v. Metoyer, 612 So.2d 755 (La.App. 5th Cir.1992). The state has the burden of proving the date of defendant’s discharge from state supervision. See State v. Lorio, 94,2591 (La.App. 4th Cir.9/28/95), 662 So.2d 128. Where a defendant has been adjudicated a habitual offender, the state’s failure to prove the defendant’s date of discharge and thus prove that the “cleansing period” has not expired is error patent on the face of the record. See State v. Bullock, 311 So.2d 242 (La.1975); see also State v. Baker, 452 So.2d 737 (La. App. 1st Cir.1984).

Id. at 1257-58.

The state asserts that the matter now before us is distinguishable from Davis because the record establishes without any additional evidence that the cleansing period has not lapsed in the defendant’s case. That being the case, the state argues, it was not necessary to prove the discharge dates. In support of its argument, the state 14 cites us to our holding in State v. Sanders, 542 So.2d 1134, 1137 (La.App. 3 Cir.1989), where this court held that if the time since a defendant’s last conviction was less than the statutory cleansing period, “the State need not prove the date of discharge on the earlier sentence in the Habitual Offender proceeding.”

We reached a similar result in State v. Webster, 95-605, pp. 8-9 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, 630, wherein this court stated:

In our opinion the drafters of La.R.S. 15:529.1 intended for the five year cleansing period to apply only to a defendant who is able to live five years without being convicted of a felony. See Bennett, The Work of the Louisiana Supreme Court for the 19M-19U8 Term— Criminal Law and Procedure, 9 La. L.Rev. 247, 271-72 (1949); Wilson, The Louisiana Criminal Code — Making the Punishment Fit the Criminal, 5 La. L.Rev. 53, 61-62 (1942). See also State v. Anderson, 349 So.2d 311 (La.1977). The Louisiana Supreme Court has interpreted La.R.S. 15:529.1(0 in State ex. rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La.1982), wherein the Court stated:
... in order to use a prior felony offense to support a multiple offender adjudication there must not have intervened, before commission of another felony, a five year “cleansing” period, that is, five years between the end of the previous sentence and the commission of another felony. (Emphasis added.)

The second circuit reached a similar conclusion in State v. Wallace, 44,831, pp. 78 (La.App. 2 Cir. 10/28/09), 26 So.3d 176, 181, where it stated:

Although the state has the burden of proving that the 10-year period has not expired, the state need not prove the discharge date when less than 10 years have elapsed between the last conviction and the subsequent conviction. State v. Smith, (La.App. 4 Cir. 7/20/05), 913 So.2d 836; State v. Collins, 2001-1459 (La.App. 4 Cir. 8/21/02), 826 So.2d 598.

See also State v. Mosley, 08-1319 (La.App. 5 Cir. 5/26/09), 16 So.3d 398; State v. Smith, 05-375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, writ denied, 07-811 (La.1/11/08), 972 So.2d 1159; State v. Gaines, 93-1554 (La.App. 1 Cir. 6/24/94), 639 So.2d 458, writs denied, 94-1921 (La.11/4/94), 644 So.2d 1058, and 94-1980 (La.11/4/94), 644 So.2d 1058.

We agree with the state’s position on this issue and find no merit in the defendant’s assignment of error. At no time between the four convictions is there a ten-year cleansing period. Each of the first three convictions occurred within ten years of each other, and the fourth offense was committed less than ten years after the third offense.

Assignment of Error Number 2

The maximum incarceration period for a conviction for monetary instrument abuse is ten years at hard labor. La.R.S. 14:72.2. Because the maximum sentence is a term less than the defendant’s natural life, the penalty for his fourth offense adjudication is “a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.” La.R.S. 15:529.1(A)(l)(c)(i). Thus, the defendant’s twenty-year hard labor sentence is the statutory minimum for his adjudication. Nevertheless, the defendant asserts in this assignment of error that the sentence is excessive and that the trial court erred in not deviating from the statutory minimum and imposing a lesser sentence that would not be constitutionally excessive.

Although the minimum sentences imposed upon multiple offenders pursuant to the Habitual Offender Law are presumed constitutional, a court has the power to declare such a sentence excessive under Article I, Section 20 of the Louisiana Constitution. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339. “A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.” State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676. 1R To rebut the presumption of constitutionality, the defendant must show that he is “exceptional, which in this context means that because of unusual circumstances [he] is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Id. at 676.

As pointed out by the state, the defendant presented no evidence to show that his particular case was so exceptional that it deserved a downward departure from the mandatory minimum sentence as set forth in La.R.S. 15:529.1. Therefore, we find no merit in this assignment of error.

Pro Se Assignment of Error Number 1

In his first pro se assignment of error, the defendant asserts that the transcript is void of any evidence to establish beyond a reasonable doubt that he was represented by counsel when he entered his pleas to the predicate offenses. This assertion is not correct. Minutes of court introduced by the state at the habitual offender hearing establish that the defendant was represented by an attorney on each occasion he entered his guilty pleas in the underlying convictions. Thus, this assignment of error has no merit.

Pro Se Assignment of Error Number 2

In his second pro se assignment of error, the defendant asserts that the trial court erred in relying on a predicate offense that did not exist in finding him to be a fourth felony offender. He bases this argument on the fact that the habitual offender bill of information states that he pled guilty to the possession of cocaine charge on February 2, 2002, while that the correct date of his conviction for that offense was February 4, 2002. The state acknowledges this error in the bill of information charging the defendant as an habitual offender, but asserts that the error is harmless.

It The fifth circuit, in State v. Carey, 04-1073 (La.App. 5 Cir. 3/29/05), 901 So.2d 509, reached a decision supportive of the state’s position when it was faced with a situation where the habitual offender bill stated that the defendant had been tried for the underlying offense on February 20, 2004, when the actual trial date was February 12, 2004. Additionally, the bill of information listed the conviction date for the underlying offense as April 23, 1997, but that date was actually the date the defendant was convicted of the predicate offense. In its discussion of these errors, the fifth circuit stated:

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, Article 1, § 13. A clerical error does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice. La.C.Cr.P. art. 464; State v. Vamado, 01-367, p. 7 (La.App. 5th Cir.9/13/01), 798 So.2d 191, 194. In State v. Jason, 99-2551, p. 13 (La.App. 4th Cir.12/6/00), 779 So.2d 865, 873, writ denied, 01-0037 (La.11/9/01), 801 So.2d 357, the court held that a typographical error in the habitual offender bill of information which listed the wrong date of one of the defendant’s convictions was not prejudicial to the defendant because it contained the correct case number and section of court. Thus, the defendant knew which prior plea was being used in the bill of information.

Id. at 513.

In the matter now before us, the only error concerning the underlying conviction complained of was the erroneous conviction date, and there is nothing to suggest that the defendant did not know which prior conviction was being used in his adjudication proceedings, or that the error mislead him to his prejudice. As did the fifth circuit in Carey, we find that the clerical error complained of by the defendant was harmless, and we find no merit in this assignment of error. See also, State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, writ denied, 04-1605 (La.l 1/15/04), 887 So.2d 476, cert, denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) and State v. Jason, 99-2551 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, writ denied, 01-37 (La^ll/9/01), 801 So.2d 357.

Pro Se Assignment of Error Number 3

In his final pro se assignment of error, the defendant asserts that the trial court erred in úsing a non-finalized conviction for the purpose of sentence enhancement. He bases this argument on the fact that his conviction for monetary instrument abuse had not become final, and directs our attention to the supreme court’s decision in Townley v. Dep’t. of Pub. Safety & Corr., 96-1940 (La.11/1/96), 681 So.2d 951, as support for his argument. We do not find Townley to be supportive of the defendant’s position.

In Townley, the defendant had been convicted of simple burglary of a pharmacy and three counts of simple burglary in 1984, and of simple burglary and simple criminal damage to property in 1988. He was remanded to the custody of the Louisiana Department of Public Safety and Corrections on March 2,1988, and escaped on June 6, 1988. He was later apprehended, and was subsequently convicted of simple escape on September 27, 1998. The prior convictions, together with the simple escape conviction, constituted the basis for his adjudication as a third felony offender. However, at the time of his adjudication, appeals were still pending on the 1988 convictions and, therefore, they were not final. The supreme court concluded that the 1988 convictions could not be used to have him adjudicated as an habitual offender and have his sentence enhanced pursuant to La.R.S. 15:529.1 because they were not yet final.

While the holding in Townley remains the rule of law with regard to the use of a prior conviction, the supreme court rejected the defendant’s position that the underlying conviction must be final before an enhanced sentence for that offense could be imposed through an adjudication proceeding in State v. Martin, 316 So.2d 19740, 742-43 (La.1975). In Martin, the supreme court stated:

Considered in the light of the statute [the Louisiana Habitual Offender Law], defendant’s argument is patently specious. The multiple offender law merely prescribes enhanced penalties for a basic conviction. The sentencing of defendant is pursuant to the basic conviction and is in no way related to any prior offense. Hence, the sentencing procedure is the same whether defendant is sentenced according to the standard penalty or the enhanced penalties prescribed for multiple offenders. Extended to its logical extreme, defendant’s reasoning would prevent a trial judge from sentencing any duly convicted criminal defendant until all avenues of appeal on the validity of the conviction alone had been exhausted. This argument is contrary to the procedures set forth in the Code of Criminal Procedure and the Louisiana Habitual Offender Law.

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

DISPOSITION

For the foregoing reasons, we affirm the defendant’s adjudication as a fourth felony offender and affirm the sentence imposed.

AFFIRMED.

      . The defendant is known by a number of aliases.

      . Although the trial court did not specifically state that it was adjudicating the defendant a fourth felony offender, it found that the defendant had at least three prior felony convictions, and the defendant asserts in his brief to this court that the trial court adjudicated him a fourth felony offender.

      . At the time of the Saunders decision, La. R.S. 15:529.1 provided for a five-year cleansing period. By 1994 La. Acts 3rd Ex.Sess. No 85 the cleansing period was increased to seven years. It was increased to ten years by 1995 La. Acts No. 839, § 1.