author: AMY, Judge.

text:
    Tommy G. HILLMAN v. Thomas M. ANDRUS, et ux.
    No. 11-5.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      H. Kent Aguillard, Eunice, LA, for Defendants/Appellees, Thomas M. Andrus, Rachael Lea Berken Andrus.
    Michael V. Matt, Eunice, LA, for Plaintiff/Appellant, Tommy G. Hillman.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

| iThis suit arises from a dispute concerning property located in Evangeline Parish. The plaintiff filed a boundary action, seeking recognition of the boundary between his property and that of the defendants. While the defendants asserted that they owned the disputed property by virtue of their title, they also filed an exception of prescription, alleging that they acquired title to the property through possession of thirty years. After a hearing, the trial court granted the defendants’ exception, finding that the defendants acquired the disputed land via a prescriptive period of thirty years. The plaintiff appeals. For the following reasons, we reverse and render.

Factual and Procedural Background

This case involves a dispute over the ownership and/or possession of a 0.94 acre parcel located in Evangeline Parish. The plaintiff, Dr. Tommy G. Hillman, filed this matter as a petition in boundary action and for damages in June 2009. Therein, he asserted ownership to the disputed tract via a 2007 cash sale from Robert D. Luce-ro and Michael P. Lucero.

Dr. Hillman asserted that the defendants, Thomas and Rachael Andrus, were encroaching on the disputed tract from what Dr. Hillman contends was the An-druses’ |aSt. Landry Parish property, located to the south of the disputed property. The record indicates that the descriptions relating to Andruses’ property include Bayou Des Cannes as a northern boundary.

Dr. Hillman asserted that, although the Bayou Des Cannes channel was rerouted to the north from its original channel prior to the Andruses purchase of the property, the Evangeline Parish and St. Landry Parish boundary remained at its historic location. He contended that no Evangeline Parish property was incorporated into St. Landry Parish by the re-routed Bayou Des Cannes.

The record reveals that the Andruses’ presence on the area of the disputed property commenced in November 1977 with the purchase of a 2.07 acre tract, the description of which references only St. Landry Parish. Thereafter, in 1994, the | oAndruses acquired an adjacent parcel, providing them with the approximately 4 acre tract they owned at the time this matter was proceeding below.

In his petition, Dr. Hillman asserted that his purported 0.94 acre tract in Evangeline Parish and the property owned by the Andruses shared a “common boundary, namely the historical Evangeline/St. Landry Parish boundary line.” Citing a dispute as to the location of the boundary line between their respective properties, Dr. Hillman requested that the court fix the boundary thereof and recognize his ownership of the 0.94 acres referenced in his 2007 cash sale description. Dr. Hill-man also sought damages for the Andrus-es’ alleged trespass.

The Andruses reconvened, ultimately asserting that the disputed property was contained within their property descriptions. Alternatively, Mr. and Mrs. Andrus sought a determination of ownership by acquisitive prescription. They contended that pthey and/or their ancestors in title had maintained the 0.94 acres for thirty years and that this possession continued until Dr. Hillman filed this matter. In an amended reconventional demand, they asserted that the United States Army Corps of Engineers had redirected the course of Bayou Des Cannes eleven years before they purchased their property. They stated that after their purchase, it was their “intention to acquire property up to the present location of Bayou Des Cannes as it exists today and not only up to the bed of the old course of Bayou Des Cannes.” The Andruses prayed for damages for emotional distress and a determination that they were entitled “to be maintained in possession permanently to the exclusion of all others, including [Dr. Hillman], and for all other general and equitable relief appropriate in this case.” Finally, the An-druses asked that, if the trial court determined that their property extended into Evangeline Parish, their title would be reformed to show the extent of that ownership, “including any portion that lies in Evangeline Parish.”

Subsequently, and now at issue in this appeal, the Andruses filed an exception of prescription wherein they alleged that they and their ancestors in title had possessed the disputed property in excess of fifty-nine years.

The trial court set both the exception of prescription and the trial on the merits on the same day. It ultimately found in favor of the Andruses, sustaining the exception of prescription due to thirty-year acquisitive prescription. Furthermore, the trial court found that the defendants had possessed the disputed property in excess of one year, to the exclusion of all others and were, therefore, “presumed to be the owners.” Therefore, the trial court’s judgment declared the defendants to be the [ 6owners of the disputed property and dismissed the plaintiffs petition. The trial court denied the parties’ claims for damages.

Dr. Hillman appeals, assigning the following as error:

1. The lower court erred in finding that Hillman did not have corporeal possession when (1) Hillman purchased the tract from the Luceros in 2007, (2) at the time of acquisition, the Luceros were in corporeal possession of the tract, (3) Hillman maintained the same boundary line (the Parish Line) as the Luceros, and (4) Hillman did the requisite acts of an owner in good faith.
2. The lower court erred in finding that Andrus met the requisite elements for 30-year acquisitive prescription, considering that possession was not continuous, was interrupted, certainly not peaceable and was equivocal.
3. The lower court committed error when it failed to set the boundary between Hillman and Andrus at the Parish line.
4. The lower court erred when it failed to award trespass damages to Hillman.

Discussion

Acquisitive Prescription

The central component of the trial court’s ruling was its determination that the Andruses acquired the 0.94 acre disputed property through thirty-year acquisitive prescription. We first consider Dr. Hillman’s second assignment of error in order to address this finding underlying the trial court’s sustaining of the exception of prescription.

The Louisiana Civil Code defines acquisitive prescription as “a mode of 17acquiring ownership or other real rights by possession for a period of time.” La.Civ.Code art. 3446. Further, Article 794 instructs that, in the event a party proves acquisitive prescription, “the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” However, the Civil Code requires that the possessor, here the Andruses, have “corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivocal.” La.Civ.Code art. 3476.

The Andruses asserted that they owned the 0.94 acre disputed property by thirty-year acquisitive prescription, which is available without proof of just title or of possession in good faith, pursuant to La.Civ.Code art. 3486. For purposes of acquisitive prescription in the absence of title, La.Civ.Code art. 3487 instructs that “possession extends only to that which has been actually possessed.” La.Civ.Code art. 3487. Further, the possession of a transferor is “tacked” to that of a transferee if possession has not been interrupted. La.Civ.Code art. 3442. If a party seeks to prove acquisitive prescription through “tacking,” it must establish that it and its ancestors exercised possession of the disputed property up to a visible boundary since the subject property is not contained within its title. McDaniel v. Roy O. Martin Lumber Co., Inc., 560 So.2d 676 (La.App. 3 Cir.1990). “The nature of the land or the use to which it is destined governs the possession necessary to support prescription.” Id. at 680.

In this case, the Andruses, as the parties pleading acquisitive prescription, were required to bear the burden of proving all essential facts. See Hooper v. Hooper, 06-0825 (La.App. 3 Cir. 11/2/06), 941 So.2d 726, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177. Insofar as the trial court’s ruling included findings that the moving party possessed the subject property for prescription purposes, these findings are factual and will not be disturbed on appeal unless they are manifestly erroneous or clearly wrong. See Prince v. Palermo Land Co., Inc., 05-1399 (La.App. 3 Cir. 5/3/06), 929 So.2d 831.

However, and although the trial court explained that its decision was credibility based, this case is not resolved by reference to credibility. Instead, even accepting the testimony of the witnesses in favor of the Andruses, that evidence does not establish the requirements of La.Civ. Code art. 3476. Rather, Article 3476 requires that possession for acquisitive prescription purposes must be “continuous, uninterrupted, peaceable, public, and unequivocal.” The Andruses’ testimonies, at best, establish that they periodically went upon the land and maintained it to varying degrees. Periodically, too, their children went upon the land for recreational purposes.

Even if we were to view the evidence of the quality of the Andrus family’s actions as constituting possession, which we do for analysis and discussion purposes, the evidence does not indicate that the possession was continuous, uninterrupted, or peaceable for a thirty-year period. Beginning with their presence on the property |flthrough a purchase of a portion of their titled property in November 1977, the thirty-year period of acquisitive prescription would have accrued in 2007. However, the Andruses’ possession during this period was not continuous. The trial court erred in failing to recognize this evidentia-ry deficiency in the Andruses’ burden of proof.

With regard to continuity, the Andruses claimed that they regularly went upon the land since their home place, contained on their titled property, was separated from the disputed tract only by the bed of the old Bayou Des Cannes. Critically, however, the Andrus family moved from the property for a number of years. According to Mrs. Andrus, the family resided elsewhere from 1981 to 1987. Although other individuals lived in their house during that period, no evidence existed regarding the extent these individuals may have “possessed” the property during that period. Mrs. Andrus’s testimony, at best, assumed that these individuals possessed the totality of what she believed was the Andruses’ property. As for her own family’s presence on the disputed tract during this six-year period, she stated only that she was not “sure.” The lack of evidence regarding this period of time, | inalone, precluded a determination that the Andruses possessed the property for a thirty-year period after their first presence on the property in 1977.

For this reason, and even taking into account the trial court’s credibility determinations, the trial court was manifestly erroneous in finding that Mr. and Mrs. Andrus acquired the disputed property by acquisitive prescription. Accordingly, we reverse the sustaining of the exception of prescription and render judgment denying that exception.

Corporeal Possession

The trial court did not speak directly to Dr. Hillman’s ownership of the disputed property by virtue of his title. Instead, the trial court’s factual findings addressed its determination that Mr. and Mrs. An-drus acquired the property by thirty-year acquisitive prescription prior to certain actions to keep Mr. and Mrs. Andrus from the property. The trial court determined that actions taken by Dr. Hillman in 2008 were too late to interfere in their possession. In his appeal, Dr. Hillman contests the trial court’s determination that he and his ancestors in title, the Luceros, ludid not have corporeal possession of the property so as to undermine the Andruses’ acquisitive prescription claim. Above, we have found that the trial court erred in finding that the Andruses satisfied their burden of proof on the prescription claim. Thus, the assignment addressing this underlying factual finding is rendered moot by this decision.

Boundary Action

After the close of evidence on the exception of prescription, Dr. Hillman presented evidence in support of his own petition in the boundary action. He now asks that this court “fix the boundary line between Hillman and Andrus at the boundary between the Parishes, thus establishing Hill-man as the owner of the 0.94 acre tract.”

With regard to a boundary action, Louisiana Code of Civil Procedure Article 3693 provides that, after considering the evidence submitted, the court “shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.” Further, La.Civ.Code art. 792 provides that: “The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.” In the event both parties rely on their respective titles only, La.Civ.Code art. 793 instructs, in part, that “the boundary shall be fixed according to titles.” Finally, and in the event a party is able to prove acquisitive prescription, “the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” La.Civ.Code art. 794.

112As addressed above, La.Civ.Code art. 794 is inapplicable as the Andruses failed to meet their burden of proving acquisitive prescription. However, they also entered their own property description(s) into evidence and asserted, by virtue of their re-conventional demand, that they held title to this property. Thus, we consider La. Civ.Code art. 793 to determine whether the boundary must be “fixed” for purposes of the boundary action.

Dr. Hillman’s title very clearly includes the disputed property. His property description placed the property in Evangeline Parish and, importantly, referenced an annexed survey. The survey highlights the 0.94 acre disputed property as the property sold/purchased in the 2007 cash sale from the Luceros. The survey shows the disputed tract is bordered to the south by the “surveyed centerline” of the old Bayou Des Cannes channel. This sale was placed into the record with an “Evangeline Parish Record Page” attached to demonstrate its filing into the registry of the court. See La.Civ.Code art. 3483.

In contrast, the Andruses’ descriptions only reference property in St. Landry Parish. They are arguably ambiguous to the extent that they describe the northern boundary as Bayou Des Cannes. The An-druses contend that the measurements contained in the description permitted a finding that their two tracts were bordered to the north by the existing Bayou Des Cannes, not its historical location. However, they presented no testimony or evidence establishing this northern border by the | ^measurements contained in them titles. Neither did the Andruses present evidence that their northern border was, in fact, inside of Evangeline Parish.

While these titles are arguably conflicting, we do not find that the need for a more specific fixing of the border has been proven in this case. Instead, this case properly proceeded as one involving a claim for acquisitive prescription, not a boundary action. Accordingly, we do not further designate the boundary as requested by Dr. Hillman. We instead, find that Dr. Hillman’s title is superior to that of Mr. and Mrs. Andrus and adequately establishes his southern border as identified in the survey annexed to the cash sale by which he acquired the property.

Trespass

Finally, Dr. Hillman seeks trespass damages for the loss of peaceable possession of his property. With regard to damages for trespass, this court has previously explained that:

In an action for trespass, the plaintiff must show damages based on the result or the consequences of an injury flowing from the act of trespass. Bell v. Sediment Removers, Inc., 479 So.2d 1078 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1350 (La.1986). The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence. Id. One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience. Ard v. Samedan Oil Corp., 483 So.2d 925 (La.1986). Mental anguish does not result of necessity from a trespass or the encroachment on a persons’ property. Even though mental anguish may be compensable, it must be proven with sufficient evidence. Bell, 479 So.2d 1078. However, mental anguish does not require proof that medical or psychiatric care was required as a result of the incident, but minimal worry and inconvenience should not be compensated. Phillips v. Town of Many, 538 So.2d 745 (La.App. 3 Cir.1989).

_^Lacombe v. Carter, 07-1063, p. 4 (La.App. 3 Cir. 1/30/08), 975 So.2d 687, 690.

Although Dr. Hillman established trespass, we do not find that he proved entitlement to damages. In short, Dr. Hillman only owned this property for a short period of the time at issue in this case. The extent and/or type of trespass during that period of time is unclear under the evidence presented. Dr. Hillman has not presented evidence as to his inability to go upon or enjoy his property insofar as he testified regarding his regular use of it for recreational purposes since his purchase. He did not further present evidence regarding mental anguish.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. The exception of prescription filed by Thomas M. Andrus and Rachael Lee Berken Andrus is denied. Judgment is cast in favor of Tommy G. Hillman insofar as he is the owner of the disputed property by virtue of title, evidenced by the Cash Sale from Robert Dean Lucero and Michael Paul Lucero to Tommy G. Hillman dated July 18, 2007 and recorded July 23, 2007 as File No. 558659 in Evangeline Parish. Costs of this proceeding are assessed equally between the appellant, Tommy G. Hillman, and the appellees, Thomas M. Andrus and Rachael Lee Berken Andrus.

REVERSED AND RENDERED.

      . The record indicates that the sale included a total of three tracts, including the 0.94 acre tract at issue. An Act of Correction related to the sale describes the disputed 0.94 acres as follows:

        TRACT 3

      A certain tract or parcel of land containing 0.94 acres, more or less, located in the Southwest Quarter (SW/4) and the Northwest Quarter (NW/4) of Section 33, Township 6 South, Range 1 West, Evangeline Parish, Louisiana, and being more fully described on that certain Map of Survey Made for Robert D. & Michael Lucero dated December 21, 2006 and prepared by Ryan J. Fuselier, Registered Professional Land Surveyor, annexed hereto and made part hereof.

        ACQUISITIVE HISTORY: Being a portion of the same property acquired by Robert Dean Lucero and Michael Paul Lucero by Act of Cash Sale from Joseph Anthony Lucero dated August 23, 2004 and recorded as Original Act Number 537273 in Conveyance Book C295 at Page 685 in the Clerk of Court's Records for Evangeline Parish, Louisiana[.]
      (Emphasis added.)

      . The evidence indicates that the 0.94 acre disputed property is a peninsular area of higher ground located between the current location of Bayou Des Cannes, to the north, and the former channel bed of Bayou Des Cannes, to the south. Testimony indicates that the area is, to varying degrees, inaccessible at various points in the year due to high water in the area. Both parties assert that they and their ancestors in title have used the area for recreational purposes, namely hunting and fishing. The property can only be accessed from the north through the existing Bayou Des Cannes or by a small weir extending from the north bank of the Bayou Des Cannes. Otherwise, the property could only be accessed by an area of high ground contained on the property of the landowner to the west of the Andruses' undisputed acreage.

      . The bayou contains various titles and spellings in the record. Notwithstanding quotations, this opinion refers to the area as Bayou Des Cannes.

      . The November 1977 Cash Sale describes the 2.07 acre tract, in part, as:
      A certain tract or parcel of land, containing 2.07 acres, more or less, situated in the Southwest Quarter (SWl4) of the Northwest Quarter (NWl4) of Section 33, Township 6 South, Range 1 West, St. Landry Parish, Louisiana, together with all improvements situated thereon, which tract or parcel of land is more particularly described as beginning at a point 1,159.2 feet West of the Southeast Corner of the Southwest Quarter (SW!A) of the Northwest Quarter (NW¡4) of Section 33, Township 6 South, Range 1 West; thence proceeding in a Northerly direction along the eastern boundaiy of Mike Courville tract a distance of 979 feet; thence proceeding in an Easterly direction a distance of 89 feet; thence proceeding in a Southerly direction along the West boundary of a certain two (2) acre tract owned by Ruby Peloquin Roy, et al a distance of 1050.0 feet; thence proceeding in a Westerly direction along Public Black Top Road a distance of 89 feet to point of beginning. Said property being bounded now or formerly as follows: North by Bayou De-Cannes; South by Black Top road; East by two (2) acre tract owned by Ruby Peloquin Roy, et al; and West by Mike Courville and being the same property which Robert Wayne Andrus acquired from Ruby Pelo-quin Roy, et al by Cash Sale dated November 17, 1976.
      (Emphasis added.)

      . An August 1994 Cash Sale describes Mr. and Mrs. Andrus’s purchase as follows:
      A certain tract or parcel of land, together with all buildings and improvements situated thereon, situated in Section 33, Township 6 South, Range 1 West, St. Landry Parish, Louisiana, containing two (2) acres, more or less; said property being more particularly described as beginning at the Southwest (SW) Corner of a certain 4.45 acre tract of land which Louis Roy, et al sold to Barney Andrus, Jr., et ux, on September 30, 1976, said sale being recorded in Conveyance Book 0-20, at Page 84, as Original Act No. 602481, Clerk of Court Records, St. Landry Parish, Louisiana; from said point of beginning proceed in a generally Westerly direction along the West side of a blacktop road Eighty-one (81) Feet; thence in a generally Northerly direction a distance of 1,050 Feet; thence in a generally Northeasterly direction to the Western boundary of the land belonging now or formerly to Barney Andrus, Jr.; thence in a Southerly direction along the Western boundary of said land a distance of 1,105 Feet; said tract of land being bounded now or formerly as follows: On the North by Bayou des Cannes; on the South by a Blacktop road; on the East by Barney Andrus, Jr., et ux; and on the West by Robert W. Andrus; being the same property which Newman Louis Thibodeaux, et ux acquired from Louis Roy, et al by Cash Sale dated May 20, 1977, recorded on May 31, 1977 in Conveyance Book Y-20, Page 479, as Original Act No. 609207, records of St. Landry Parish, Louisiana.
      (Emphasis added.)

      . In reasons for ruling, the trial court remarked that the exception ruling turned on credibility and further stated that:
      Having said all of that, though, when you look at the credibility issue, I believe that we cannot say that someone has to possess property totally, every day, and completely. If that was the case, you know, I own hundreds of acres, if not more. And I’d have to be on that land every day ... There’s no way I can do it. I think drat possession, you have to look at the situation and take each case on a case by case basis. This land is right behind the Andrus’s house. They obviously have the most interest in this particular piece of property. They have the most motive to possess it in so far [sic] as I’m concerned. And the testimony was by the Andrus’s that they possessed it in the sense that they used it regularly and frequently. They mowed it. What's the extent of the possession, and that's a very important point. And I agree with Mr. Matt [counsel for Dr. Hillman]. You have to look at the extent. I don't think you have to fence it in. There are many cases where they talk about homesteaders. Big timber companies around here have trouble with people building a house, cutting out part of their woodland, building a house. They possess that part. They don't possess the whole forest ... They possess that part, and they gain title to it. According to Mr. Andrus’s testimony, he mowed the whole ,92[sic] acres or the majority of it. He maintained that whole area. He said that Dr. Hillman’s father or his representative mowed up to a line. He mowed from there on. There’s an obvious boundary that’s being protected. You look at the only evidence. What evidence do we have of adverse possession other than the possession that Mr. Andrus testified to, we've got Mr. Lucero, was the only testimony I heard. He went fishing and he supposedly took a very young child hunting. Now, he might have taken him hunting, but there wasn’t a hell of a lot of hunting going on with a little kid like that. And I’m not at all saying Mr. Lucero’s lying. That’s not what I mean. But I look at it from this standpoint. Mr. Lucero had 75 acres more or less across the boundary ... the bayou, had a lot more frontage on the north side, had access to the weir on the north side, and he said by his own testimony, "That's a great place for the kids to go 4-wheeler riding, hunting, fishing ... It’s a good recreational area.’’ I believe him. It makes perfect sense to me. Why in the world would you leave that situation, walk across wet, slippery rocks, or drive all the way around, come through somebody else’s property, and then go to a little ,92[sic] acre piece when you’ve got all that other land across the bayou? Now, he probably did it. I believe he did it, but I don't know that he did it that often to where it would alarm every one that, "Uh oh. Something’s going on over here.” Dr. Hillman testified, and I think very honestly, that he’s going on that property. I believe him, but has he done anything to show, "Hey, that’s my property. I’m the one that's owning it.” What did he do? He put up a chain. Good move I think. He tore it down, I bet you. It's gone. What did Dr. Hillman do at that point, another good move in my opinion, he filed a suit. And that was real smart except for the fact that you came in so late in the game, 2008, cause you had bought it in 2007. If you believe him, since [19]77 he’s been possessing it. That’s not your fault. It's just the way the time fell. Mr. Matt did an excellent job in drafting the petition because if he’d of asked and said that you owned it, he’d of had to prove title but against the world-real hard to do. He also didn't do something else that worries me, and this is part of my reasons. He didn't say that Dr. Hillman was in possession of it. Again, I think very good lawyering, because I think Mr. Matt knew his boat would have been loaded trying to prove that Dr. Hill-man was in possession of it. Cause if he’d of been [in] possession of it for one year, the law would presume that you’re the owner. You hadn't had that opportunity, and he didn't have the proof to do it. Again, he did a smart thing. He went to boundaries, but the fact that he couldn’t prove possession tells me somebody else was in possession. Back to the Andrus's ... That’s the logical place. That's the place that makes more sense. I have to determine credibility as I said from the beginning. When you look at that, all of the factors I’ve said, plus the stipulated Judgment where Dr. Hill-man’s father stipulated in open Court the Andrus's were the owners of that property. He gave them a right of way. He knew the Luceros were involved in this. He gave them a right of way to go to that property. If he didn’t believe that the Andrus’s had some claim on that property, why do that? It’s an exercise in futility. Doesn’t make sense. None of these things tracks logical possession. Because of all of that, I find that the possession of the Andrus’s is more credible. I will sustain the Exception of Prescription.
      And I'll go further that in the even[t] that it is reversed, I at least find that the Andrus's are in possession for a period of at least one year, and therefore, they’re presumed to be the owner at this point. So, I'm saying thirty years. In the alternative, I’m saying one.

      . "A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.” La. Civ.Code art. 3483.

      . Dr. Hillman states in brief that the Andruses did not claim acquisitive prescription through tacking. He refers to a portion of Mr. An-drus's testimony wherein he states that he was not relying on possession prior to his 1977 purchase of the property. Additionally, we note that the trial court’s reasons for ruling indicate that it did not find acquisitive prescription through tacking. Instead, it discussed the prescriptive period in the context of the 1977 purchase of the property.

      . As stated earlier, the Andruses acquired an additional portion of their titled property in August 1994.

      . As explained above, the Andrus family could only access the property by going upon the property of the landowner to the west and entering the disputed property through a portion of higher ground. Since 1996, that property has been owned by Dr. Hillman's father, C.G. Hillman. After his purchase, Mr. Hill-man placed a fence along the border of his boundary, obstructing the Andruses’ previous passage. After litigation ensued between Mr. Hillman and the Andruses, the parties entered into a consent judgment providing the An-druses with a servitude of passage over Mr. Hillman’s property to access what was labeled as their property. Mr. and Mrs. Andrus refer to Mr. Hillman's acknowledgment of their ownership rights in this document. While this may relate to the openness of their use of the property, it is of little significance as to ownership of the property since Mr. Hillman has never claimed any ownership in the disputed property. Rather, the record contains no evidence that Dr. Hillman has ever acknowledged that the Andruses have an ownership interest in the property.

      . Two of the Andrus children also testified regarding the family's absence from the property during this time period. Although there was some variation in the witnesses’ testimony with regard to the time period the family was away from the area, it is clear that their presence on the disputed property was not continuous.

      .Notwithstanding this deficiency of evidence as to continuity of possession, the record contains other evidence contrary to a finding that the Andruses peaceably possessed the disputed tract for thirty years after their 1977 move onto the property. Mr. Andrus acknowledged that he received a claim disputing his ownership by a 2004 letter. Robert Lucero, one of Dr. Hillman's ancestors in title, testified that he once instructed Mr. An-drus to stay off the disputed tract in 2002. After he later saw Mr. Andrus on the property, he contacted an attorney to officially notify Mr. Andrus of his claim. Dated June 9, 2004, the letter is included in the record and details the Luceros’ 2002 acquisition of the property and their claim regarding the parties’ property boundaries. It instructs that: “My clients exercise possession and control of the tract and hereby inform you to cease and desist in any attempt at use of their property, or making any claim to same, and that your simple presence on same will be considered criminal trespass and will be pursued to the full extent of the law.” Mr. Andrus acknowledged receipt of the letter, stating that he simply threw it away.

      . We note that the trial court factually erred in determining that all of these actions were subsequent to the point in time at which it found that the Andruses acquired the property by thirty-year acquisitive prescription. It is true that, like his predecessor in title, Dr. Hillman prompted his attorney to notify the Andruses by letter of his ownership of the tract. The letter was not sent until 2008, after the 2007 time period when the thirty-year period would have ended. However, even presuming the Andruses began possessing the property in November 1977, Dr. Hill-man testified that he erected a chain with a no trespassing sign after his purchase of the property in July 2007.

      . On this point, Mr. Andrus testified that he had never "physically measured” the distance. However, once, "for curiosity sake,” he used a "marking wheel” and measured the distance from the parish road in front of his home to the old bayou. In his opinion, the measured distance to that point was less than what he felt was described in the title and that, if he had gone the full distance described in the title, it would have been "to the new bayou.” We do not find this adequate evidence to establish the Andrus boundary by distance.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Ginger L. STEWART v. Keith STEWART.
    No. 10-1525.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.
    Lauren Gay Coleman, Alexandria, LA, for Defendant/Appellant, Keith Stewart.
    Brian K. Thompson, Alexandria, LA, for Plaintiff/Appellee, Ginger L. Stewart.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

B Keith Stewart appeals the trial court’s judgment granting Ginger L. Stewart’s Motion to Enforce SettlemenVCompromise and ordering him to pay her $4,000.00. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Keith and Ginger Stewart were married on February 14, 2003, and divorced on August 13, 2007. A judgment partitioning their community property was signed on August 26, 2009, wherein the trial court ordered “that [Keith] shall pay directly to [Ginger] $20,000.00 as a cash equalization payment in exchange for release of reimbursement[.]” An Amended Judgment on Community Property was signed on September 28, 2009, in which it was again ordered that Ginger “shall receive $20,000.00 from the Thrift Savings Plan of [Keith] as a cash equalization payment in exchange for release of reimbursement^]”

Ginger filed a Motion to Enforce Settlement/Compromise on March 11, 2010, alleging that she had received only $16,000.00 from Keith, not $20,000.00 as ordered. A hearing was held on May 10, 2010, after which the trial court signed a judgment ordering Keith to “remit $4,000.00 to [Ginger]....”

Keith filed a Motion for New Trial on May 18, 2010, arguing that by the terms of the Amended Judgment on Community Property, Ginger would receive $20,000.00 from his Thrift Savings Plan. Keith asserted that he complied with the terms of the Amended Judgment on Community Property, because the sum of $20,000.00 was withdrawn from his Thrift Savings Plan on January 4, 2010; however, for reasons that were allegedly beyond his control, Ginger received a check in the amount of $16,000.00. A hearing on Keith’s motion was held on July 26, 2010, after which the trial court issued Written Reasons for Judgment, dated July 30, 2010, denying Keith’s |2Motion for New Trial, stating in pertinent part that “Ginger ... was expecting to receive $20,000.00[,] and she should have received $20,000.00.” Keith filed a Motion and Order for Devolutive Appeal on October 1, 2010.

ASSIGNMENT OF ERROR

In his sole assignment of error, Keith argues that “[t]he trial court erred in ruling that [he] owes Ginger ... an additional $4,000.00 as an equalization payment pursuant to the community property partition judgment.”

LAW AND DISCUSSION

The disputed issue before us involves a factual determination made by the trial court; therefore, we review this matter under the manifest error — clearly wrong— standard. Bhati v. Bhati, 09-1030 (La.App. 3 Cir. 3/10/10), 32 So.3d 1107; Rosell v. ESCO, 549 So.2d 840 (La.1989).

Keith does not dispute Ginger’s assertion that she only received $16,000.00 and not $20,000.00. Instead, Keith argues the trial court incorrectly accepted Ginger’s argument that “because [she] did not receive $20,000.00 from the administrator of the Thrift Saving[s] Plan, [he] had not complied with the agreement.” Keith asserts it was not their agreement for Ginger to “receive” $20,000.00 from him. Instead, he contends: “The agreement was for [him] to pay to Ginger ... an equalization payment of $20,000.00 from the major asset of community property; the Thrift Saving[s] Plan.” Keith introduced into evidence his Thrift Savings Plan Participant Statement for the period January 1, 2010 through March 31, 2010, which indicates that $20,000.00 was deducted on January 4, 2010. Keith argues that “[t]he trial court went beyond the four corners of the agreement in this case in that it accepted Ginger[’s] ... assertion she did not expect to have to pay taxes on her |sportion of the Thrift Saving[s] Plan.”

Ginger counters, arguing that Keith violated the terms of the community property settlement because she received less than was agreed upon. Ginger asserts that she consented to Keith taking $20,000.00 from his Thrift Savings Plan “after he and his counsel conveyed to the [c]ourt and [her] that the account was similar to a savings account[,] and that there would be no necessity for a Qualified Domestic Relations Order or any related documentation to be submitted.” It was because of “these statements and inducements” that Ginger agreed to receive $20,000.00 as a cash equalization payment in exchange for release of reimbursement. According to Ginger, the trial court did not err in finding that Keith violated the terms of the community property settlement.

Based upon the facts before this court, we find no manifest error in the trial court’s ruling. The terms of the community property settlement were that Ginger would receive $20,000.00 from Keith. Instead, Ginger received only $16,000.00 from Keith’s Thrift Savings Plan. The trial court was correct in granting Ginger’s Motion to Enforce Settlement/Compromise and ordering Keith to pay the remaining $4,000.00 to Ginger pursuant to the terms of them community property settlement.

DECREE

For the reasons stated above, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against Defendant/Appellant, Keith Stewart.

AFFIRMED.


text:
    Mickey ATKINSON, et al. v. LAMMICO INSURANCE COMPANY, et al.
    No. 11-13.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      Randall M. Seeser, Joseph P. Landre-neau, Gold, Weems, Bruser, Sues & Run-dell, Alexandria, LA, for Defendants/Ap-pellees, Healthcare Indemnity Insurance Company Dr. Martin Young.
    Michael G. Hodgkins, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, LA, for Plaintiffs/Appellees, Mickey Atkinson, Amy Atkinson.
    David A. Woolridge, Jr., Roedel, Parsons, Koch, Blache, Balhoff & MeCollister, A.L.C., Baton Rouge, LA, for Third Party Appellant, Louisiana Patients’ Compensation Fund Oversight Board.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

_J_¡The plaintiffs filed suit, alleging that their minor child suffered .damages as a result of a physician’s failure to test his brother for a genetic disorder. The defendants filed an exception of prematurity, arguing that the plaintiffs had failed to exhaust the remedies available in the Louisiana Medical Malpractice Act (MMA) pri- or to the institution of suit. The trial court determined that the child was a “patient” for the purposes of the MMA and granted the exception. The intervenor, the Louisiana Patient’s Compensation Fund Oversight Board, appeals, asserting that the trial court erred in granting the exception. For the following reasons, we reverse the trial court’s grant of the exception of prematurity and remand for further proceedings.

Factual and Procedural Background

This suit arises from allegations that one of the defendants, Dr. Martin C. Young, committed medical malpractice. The basic facts of this case are not in dispute. Mickey and Amy Atkinson consulted Dr. Young for treatment of their son Gabriel’s deep-skin pigmentation condition. Dr. Young diagnosed Gabriel with idiopathic Addison’s Disease, but did not test him to determine the cause of the disease.

After Gabriel’s condition did not improve, the Atkinsons sought a second opinion from Dr. Janna Flint. Dr. Flint had Gabriel tested for a rare and potentially fatal cause of idiopathic Addison’s Disease-X-linked Adrenoleukodystrophy (“X-ALD”). According to the parties’ arguments at the hearing on the exception of prematurity, X-ALD is a genetic disorder that, if left untreated, results in coma and/or death by age thirteen. Gabriel tested positive for X-ALD. Because X-ALD is an X-linked genetic disorder, Dr. Flint “immediately recommended” that the Atkinsons’ | gother sons, Evan and Luke, be tested for the disease. The youngest son, Luke, tested positive.

The Atkinsons, individually and on behalf of Gabriel, Evan, and Luke, sued Dr. Young and his insurance companies, seeking damages for Dr. Young’s alleged failure to test Luke for X-ALD. The defendants filed a dilatory exception of prematurity, arguing that a medical review panel had not reviewed the plaintiffs’ claim before they filed suit. The Louisiana Patient’s Compensation Fund Oversight Board (the Oversight Board) intervened, asserting that Luke was not a “patient” within the meaning of the MMA and that, therefore, the claim was not subject to review by a medical review panel.

After a hearing, the trial court found that “through Gabriel, Luke was also a patient” of Dr. Young and granted the exception. The Oversight Board appeals, asserting the following assignments of error:

1. Contrary to the clear allegation in the plaintiffs’ Panel Request, that Dr. Young never had a physician/patient relationship with Master Luke, which Panel Request was admitted into evidence by the plaintiffs with no contrary documentary evidence or testimony to contradict such allegation, the Trial Court erred in factually determining that Luke was a patient of Dr. Young.
2. The Trial Court erred in granting Dr. Young’s Exception of Prematurity, where the definition of “malpractice” under the MMA requires a physician/patient relationship and the undercontroverted evidence indicated that there was no 13physician/patient relationship between Dr. Young and Master Luke.

Discussion

The Louisiana Medical Malpractice Act (MMA)

Louisiana Revised Statutes 40:1299.41 through 40:1299.49 sets forth the MMA, which limits liability for “qualified health care providers” and provides a procedural framework for the litigation of medical malpractice claims. See Delcambre v. Blood Systems, Inc., 04-561 (La.1/19/05), 893 So.2d 23. The MMA’s procedural requirements and limitations of liability apply only to medical malpractice claims. Id. All other tort liability by a qualified health care provider is subject to the general law of torts. Id. We note that, because the provisions of the MMA are in derogation of the rights of tort victims, the act is strictly construed. Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La.6/29/07), 959 So.2d 440.

One of the primary features of the MMA is that, when a plaintiff asserts a claim meeting the statutory requirements, unless the parties agree to waive the requirement, the plaintiff must submit his complaint to a medical review panel and may not file suit in any court until the medical review panel has rendered its expert opinion on the merits of the complaint. Delcambre, 893 So.2d 23. Thus, if the plaintiff fails to submit the claim to a medical review panel before the institution of suit, the appropriate procedural remedy is a timely filed exception of prematurity. Blevins, 959 So.2d 440.

At the hearing on an exception of prematurity, “evidence may be introduced to support or controyert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 930. “The burden of proving prematurity is on the exceptor ... who must show that it is entitled to a medical Preview panel because the allegations fall within the [MMA].” Blevins, 959 So.2d at 444.

“Malpractice,” as defined by the MMA, is:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.R.S. 40:1299.41(A)(13) (emphasis added).

The MMA defines a “patient” as “a natural person, including a donor of human blood or blood components and a nursing home resident who receives or should have received health care from a licensed health care provider, under contract, expressed or implied.” La.R.S. 40:1299.41(A)(15) (emphasis added). Further, “health care” is defined as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.” La.R.S. 40:1299.41(A)(9) (emphasis added).

In Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, the supreme court enumerated a list of factors to be considered in determining whether alleged misconduct by a qualified health care provider constitutes “malpractice” under the MMA. The examining court should consider:

[1] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill[;]
1 ñ[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached[;] ...
[3] whether the pertinent act or omission involved assessment of the patient’s condition^]
[4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform[;]
[5] whether the injury would have occurred if the patient had not sought treatment[;] and
[6] whether the alleged tort was intentional.

Id. at 315-16 (quoting, in part, Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992)).

The Existence, or Non-Existence, of a Physician/Patient Relationship Between Luke and Dr. Young

In its first assignment of error, the appellant contends that the trial court erred in finding that Luke was a patient of Dr. Young. The controlling question in this case is whether a minor sibling, who allegedly should have been tested for a genetic disorder by his brother’s health care provider and who never received any testing or treatment from the health care provider, is a “patient” for purposes of the MMA.

Whether Luke Received, or Should Have Received, Health Care Services from Dr. Young

Both the MMA and the Coleman factors clearly contemplate that the conduct occurs within the context of a patient-physician relationship. The supreme court examined who constitutes a patient in this context in Delcambre, 893 So.2d 23. The claimant in that case was a volunteer blood donor who suffered injuries to his arm while having blood drawn. In finding that the blood donor was not a patient, the 1 ^supreme court looked to whether the claimant was receiving any medical care from the health care provider. The supreme court found that because the blood donor was not relying on the provider “to diagnose or inform him of any physical condition,” the donor was not receiving medical care from the provider. Id. at 29.

Similarly, in Clark v. Baird, 97-1025 (La.App. 4 Cir. 5/20/98), 714 So.2d 840, writ denied, 98-1684 (La.10/9/98), 726 So.2d 31, the fourth circuit addressed whether the husband of a patient who, due to her doctor’s negligence, was infected with Hepatitis C was a “patient” for the purposes of the MMA. The fourth circuit concluded that the husband was not a patient, stating “[h]e neither received health care from the defendants, nor did he have an express or implied contract with the defendants. He had no relationship with the defendants whatsoever.” Id. at 845. See also Reed v. St. Charles Gen. Hosp., 01-1148 (La.App. 4 Cir. 3/27/02), 815 So.2d 319 (discussing whether a hospital patient’s wife’s claim was subject to the MMA in the context of an exception of prescription).

An exception of prematurity is based on the facts that existed at the time the lawsuit was filed. Blevins, 959 So.2d 440. Here, the evidence entered in support of the exception are the allegations made in the petition, the memorandums and exhibits filed in support of, and in opposition to, the exception of prematurity, and the exhibits filed at the hearing. Therein, the Atkinsons allege that only Gabriel received | ./treatment from Dr. Young. They do not allege that they ever sought treatment for Luke, the subject of this litigation, from Dr. Young, or that he ever received any kind of treatment whatsoever from Dr. Young. Notably, the plaintiffs’ letter requesting a medical review panel specifically refers to Luke as a “non-patient” of Dr. Young. Further, Dr. Young does not allege that he ever treated Luke or that the Atkinsons ever consulted him about treatment for Luke. Thus, based on the evidence submitted in support of the exception, we find that Dr. Young did not establish that Luke received any health care services from him.

Therefore, the only basis upon which Luke could have been a “patient” of Dr. Young under these circumstances is that Luke “should have” received treatment from Dr. Young, based on Dr. Young’s alleged failure to test Gabriel for X-ALD and his alleged subsequent failure to recommend testing for Gabriel’s male siblings, including Luke. We note that in Price, 693 So.2d at 1173, the supreme court held that the negligent act or omission must have occurred “during the patient’s medical care, treatment or confinement.” Further, cases referenced herein addressing whether someone who “should have” received treatment is a patient under the MMA generally contemplate a situation where the claimant has sought diagnosis or treatment from a health care provider and the provider has, for whatever reason, failed to provide the treatment.

|sThat is not the case in this situation. Based on the evidence submitted at the hearing on the exception of prematurity, as discussed above, the Atkinsons did not seek Dr. Young’s professional services for the diagnosis or treatment of Luke. Further, Dr. Young’s failure to test Luke for X-ALD, the alleged negligent act or omission, did not occur during any “medical care, treatment or confinement” that related to Luke. La.R.S. 40:1299.41(A)(9). Thus, we find that Luke was not a person who “receive[d] or should have received health care” as contemplated by the MMA. La.R.S. 40:1299.41(A)(15).

Whether a Contractual Relationship Existed Between the Atkinsons and Dr. Young for the Treatment of Luke

On appeal, the appellees additionally argue that, because the Atkinsons had a contractual relationship with Dr. Young for the treatment of Gabriel, that contract extends to the treatment of Luke. Louisiana Civil Code Article 1906 defines a contract as “an agreement by two or more parties whereby obligations are created, modified, or extinguished.”

In Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415, the supreme court noted a difference between an implied contractual relationship and the imposition of a duty of care with regard to a non-patient. The claimant in that case was a psychiatric patient’s wife who was paralyzed after her husband shot her and then killed himself. She sued her husband’s psychiatrist after he failed to warn her about her husband’s threats of physical violence. The supreme court held that the | ^‘alleged ‘failure to warn’ plaintiff does not constitute ‘malpractice’ as defined in the [MMA] because plaintiff was not Dr. Patel’s patient pursuant to an express or implied contract establishing a physician-patient relationship.” Id. at 422. See also Guidry v. Garrett, 591 So.2d 806 (La.App. 8 Cir.1991), writ denied, 592 So.2d 1389 (La.1992).

The evidence submitted in support of the exception of prematurity includes the petition, the memorandums and exhibits filed in support of, and in opposition to, the exception of prematurity, and the exhibits filed at the hearing. In their pleadings, the Atkinsons do not base their theory of liability on a contractual relationship allegedly extending to the treatment of Luke. Instead, the Atkinsons base liability on Dr. Young’s alleged breach of the standard of care, which, they contend, included testing Gabriel for X-ALD and, if the result was positive, testing other male members of the Atkinson family for the genetic disorder. Dr. Young does not allege that the contractual relationship between the At-kinsons and Dr. Young contemplated anything other than the treatment of Gabriel. Like the Atkinsons, Dr. Young contends that any liability on his part stems from a breach of the duty of care in his treatment of Gabriel. Thus, we find the appellees’ argument concerning an alleged contractual relationship extending to the treatment of Luke unpersuasive.

The burden of proving the exception lies on the exceptor. Blevins, 959 So.2d 440. As discussed above, the evidence submitted in support of the exception of prematurity establishes that the Atkinsons only consulted Dr. Young “to diagnose or inform [them] of any physical condition” with regard to Gabriel, not Luke. Further, the evidence reveals that the Atkinsons did not request that Dr. Young treat Luke, nor is there any indication that the contractual relationship for the treatment of Gabriel |incontempIated that Dr. Young would be responsible for Luke’s treatment, if any. Given that we must construe the provisions of the MMA strictly, we find that Dr. Young did not meet his burden of establishing that a “physician/patient” relationship existed with regard to Luke, based on the evidence submitted to the trial court. See Blevins, 959 So.2d 440. Therefore, we find the trial court erred in determining that Luke was a patient of Dr. Young.

Applicability of the MMA to Non-Patients

Although a physician/patient relationship does not exist, a litigant’s claim may still be subject to the provisions of the MMA. The supreme court has interpreted the MMA to apply to claims brought by “a patient, a patient’s representative on the patient’s behalf, or other persons having claims arising from injuries to or death of a patient.” Hutchinson, 637 So.2d at 422. However, claims which do not arise from injuries to or the death of a patient are excluded from coverage under the MMA. Id.

In Trahan v. McManus, 97-1224 (La.3/2/99), 728 So.2d 1273, although finding that the plaintiffs in that case could not recover bystander damages, the supreme court stated that claims for mental anguish could fall under the purview of the MMA, provided that the claims arose from the injury to or death of a patient. The lnfirst circuit expounded on this principle in Bolden v. Dunaway, 97-1425 (La.App. 1 Cir. 12/28/98), 727 So.2d 597, writ denied, 99-275 (La.3/26/99), 739 So.2d 801. One of the plaintiffs in that case was the husband of a patient whose surgeon refused to perform surgery on her after she had been prepped for surgery. The first circuit held that the husband’s claims, which included intentional infliction of emotional distress, were subject to the MMA because they were “clearly derivative” of the injuries to his wife.

In Jones v. Scriber, 30,693 (La.App. 2 Cir. 6/24/98), 716 So.2d 905, the plaintiff was injured in a horse-and-buggy/automobile accident. He sued the other driver’s ophthalmologist, alleging that the ophthalmologist had committed malpractice in certifying that the other driver’s vision was sufficient for him to drive. The second circuit noted that, although the plaintiffs injuries might be related to the ophthalmologist’s negligence, the plaintiffs injuries did not “arise” from any injury to the other driver, i.e., the ophthalmologist’s patient. Thus,- the second circuit affirmed the trial court’s denial of an exception of prematurity, finding that the claim was “a non-patient claim which does not arise from injuries to or death of [the ophthalmologist’s] patient[.]” Id. at 906.

The plaintiffs are not claiming, at least in this litigation, that the damages that Luke suffered were in the nature of bystander damages or loss of consortium. Luke’s claims are medical in nature. Although Luke’s claims are related to Dr. Young’s alleged breach of the duty of care with regard to Gabriel, they do not arise from the alleged injury to Gabriel and are thus not “derivative” of Gabriel’s claim. They are similar to the claims in Clark, 714 So.2d 840, and Reed, 815 So.2d 319, where the claimants suffered injuries that, although the damages stemmed from an act of alleged |12medical malpractice, they occurred independently from the alleged malpractice. Thus, we find that the claim is not “derivative” for the purposes of the MMA.

Exception of Prematurity

In order to grant the exception of prematurity, the claim must be subject to the MMA. In Coleman, 813 So.2d 303, the supreme court enumerated a list of factors to be considered in determining whether alleged misconduct by a qualified health care provider constitutes “malpractice” under the MMA. The Coleman factors include a requirement that the alleged injury occur in the context of a physician/patient relationship. We have determined that the trial court erred in finding that Luke was a patient of Dr. Young. Further, although Luke’s brother Gabriel was a patient of Dr. Young, we have determined that Luke’s claim is not “derivative” of the alleged injury to Gabriel. Thus, Luke’s claims do not comport with the Coleman factors and are not subject to the provisions of the MMA.

For these reasons, we reverse the grant of the exception of prematurity and remand for further proceedings.

DECREE

For the foregoing reasons, the trial court’s grant of the exception of prematurity is reversed. One-half of the costs of this appeal are assessed to the plaintiffs/appellees, Mickey Atkinson and Amy Atkinson, individually and on behalf of their minor children, Luke Allen Atkinson, Gabriel Allen Atkinson, and Evan Kane Atkinson. The remaining one-half of the costs of this proceeding are assessed to the defendants/appellees, Healthcare Indemnity Insurance Company and Dr. Martin C. Young.

REVERSED AND REMANDED.

      . In addition to Luke’s alleged damages, the petition included claims for medical expenses and loss of consortium.
      The plaintiffs filed a separate cause of action on behalf of Gabriel.

      . Louisiana Revised Statutes 40:1299.44(D)(2)(b)(xiv) permits the Oversight Board to intervene "in any civil action or proceeding in which a health care provider files a dilatory exception of prematurity” where the Oversight Board reasonably believes that the health care provider is not qualified or the claim is not subject to the MMA.

      . After the supreme court decided Delcambre, 893 So.2d 23, in 2005, the legislature amended La.R.S. 40:1299.41 in 2006 to include blood donors and the donation of blood or blood components in the definitions of "patient,” "health care,” and "malpractice.”

      . Even if a doctor/patient relationship exists, under certain fact patterns, the alleged tor-tious conduct may not arise "in the context of” that relationship, and does not, therefore, constitute medical malpractice. See Blevins, 959 So.2d 440 (analyzing the Coleman factors and finding that certain claims for injuries from an improperly secured hospital bed fell under general tort law and not medical malpractice, in part, because they did not arise in the context of a physician/patient relationship or within the scope of activities the hospital is licensed to perform); Price v. City of Bossier City, 96-2408 (La.5/20/97), 693 So.2d 1169, 1173 (an employer-mandated drug screen given to an employee who was treated for a non-drug related work injury was not given in the course of medical treatment as the employee was not, with regard to the drug screen, relying on the provider to "inform her of a physical condition of which she was unaware”).

      . See McLemore v. Westwood Manor Nursing & Rehabilitation, L.L.C., 37,450 (La.App. 2 Cir. 8/20/03), 852 So.2d 1170 (After a nursing home resident was allegedly dropped by staff and then was not treated for injuries sustained as a result of the fall, the claimant filed suit. The second circuit held that because the resident should have received treatment as a result of the fall, the claim was subject to the MMA.); Bolden v. Dunaway, 97-1425 (La.App. 1 Cir. 12/28/98), 727 So.2d 597, writ denied, 99-275 (La.3/26/99), 739 So.2d 801 (The claimant alleged that, after she was prepped, her surgeon refused to perform the surgery after a miscommunication regarding whether payment had been provided. The first circuit, although not stating that the claimant "should have” received services from the surgeon, found that the suit was subject to the MMA.). See also Leonard v. State, Dep’t of Health & Hospitals, 42,893 (La.App. 2 Cir. 1/30/08), 975 So.2d 662, writ denied, 08-0805 (La.6/6/08), 983 So.2d 920 (Group home’s delay in obtaining treatment for resident who ingested fatal dose of Se-roquel was not subject to the MMA because, in part, there was no patient-physician relationship. The relationship was "more akin to the relationship between a young student and his teacher.”)

      . We note that, although they mentioned the contractual question in their arguments at the trial court, the Atkinsons argued that the alleged damages to Luke occurred outside the context of a physician/patient relationship.

      . Although our holding in this case is based on Louisiana's medical malpractice scheme and jurisprudence, other states have found that immediate family members are not "patients" for the purposes of a medical malpractice action based on failure to disclose or failure to test for a genetic disorder. See Safer v. Estate of Pack, 291 N.J.Super. 619, 677 A.2d 1188 (N.J.Super.Ct.App.Div.1996) (noting that the trial court found that a daughter, who was diagnosed with the same genetically-linked cancer as her father, sued her father’s physician for failure to warn that his immediate family may have inherited the disease, was not a "patient” for purposes of medical malpractice); Pate v. Threlkel, 661 So.2d 278 (Fla.1995) (The plaintiff was diagnosed with the same genetically-linked cancer as her mother and subsequently sued her mother’s physicians for failure to notify her mother that her children should be tested for the disease. The Florida Supreme Court noted that the trial court found that the plaintiff was not a "patient" for purposes of medical malpractice.); Richardson v. Rohrbaugh, 857 S.W.2d 415 (Mo.Ct.App.1993) (A "family physician” was treating the plaintiffs’ eldest child and misdiagnosed the child as not having a genetic disorder. After the mother subsequently became pregnant and gave birth to another child with the same disorder, she brought suit. The Missouri Court of Appeals held that the physician/patient relationship was between the physician and the eldest child, not the physician and the mother.)


author: COOKS, Judge.

text:
    STATE of Louisiana v. J.S.
    No. 10-1233.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, J.S.
    John F. DeRosier, District Attorney, Cynthia Killingsworth, Carla Sigler, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

| defendant appeals his conviction and sentence for committing the crime of forcible rape. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 19, 2004, the victim, A.T., was sleeping in her bed after returning home from work. She awoke to find her hands and feet tied to the bedposts. Present in the room were Defendant, J.S., and another man, R.S. Defendant then proceeded to engage in sexual intercourse with A.T. against her will.

Defendant was indicted on one count of aggravated rape on February 22, 2007. Trial commenced and shortly after voir dire, pursuant to a plea agreement, Defendant pled guilty to forcible rape, a violation of La.R.S. 14:42.1. The trial court ordered a presentence investigation report. Defendant was sentenced on February 8, 2008, to thirty years imprisonment, with the first ten years without the benefit of probation, parole, or suspension of sentence. Defendant subsequently filed a “Motion to Reconsider Sentence,” which was denied.

Defendant has lodged this appeal, wherein he asserts two assignments of error, one attorney-filed and one pro-se; the sentence of thirty years was excessive and the trial court failed to comply with the mandates of La.Code Crim.P. art.. 894.1, and the evidence was not sufficient enough to have allowed the trial court to accept Defendant’s plea of guilty pursuant to the mandate of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

For the following reasons, we affirm Defendant’s conviction and sentence.

PRO-SE ASSIGNMENT OF ERROR NUMBER 1

We will address Defendant’s prose assignment of error first, because if there |2⅛ merit to this assignment, any issue regarding the sentence would be moot.

Defendant argues the guilty plea was not valid because the trial court failed to establish that there was “strong evidence of actual guilt.” He asserts that he pled “guilty under Alford for his alleged acts of sexual miscount [sic] with his ex-girl[friend] despite protesting his innocence.”

The “best interest” or Alford plea, which derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant pled guilty while maintaining his innocence. In Alford, the Supreme Court ruled that a defendant may plead guilty, without forgoing his protestations of innocence, if “the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.” Id., 400 U.S. at 81, 91 S.Ct. at 164; State v. McCoil, 2005-658 (La.App. 5th Cir.02/27/06), 924 So.2d 1120. In a case involving an Alford plea, the record must contain “strong evidence of actual guilt.” Id., 400 U.S. at 38, 91 S.Ct. at 167; State v. McCoil, supra;

State v. Stevenson, 45,371, pp. 4-5 (La.App. 2 Cir. 6/23/10), 41 So.3d 1273, 1277.

Furthermore, when a defendant claims innocence and still makes an Alford plea, the trial court is put on notice that a substantial basis of guilt must be placed into the record. State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745.

[T]he standard under Alford is not whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea “represents a voluntary and intelligent choice among the alternative[s].” Id. 400 U.S. at 31, 91 S.Ct. at 164.

State v. Orman, 97-2089, pp. 1-2 (La.1/9/98), 704 So.2d 245, 245.

In pertinent part, forcible rape is defined as:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
|s(l) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believed that such resistance would not prevent the rape.

La.R.S. 14:42.1(A)(1).

In State v. Schexnaider, 03-144, p. 10 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 457, this court set forth the elements the state must prove to support a conviction of forcible rape as follows:

[I]n order to convict the Defendant, the State had the burden of proving: (1) an act of vaginal or anal intercourse; (2) without the lawful consent of the victim; and (3) where the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

On the date trial commenced, Defendant advised the trial court that pursuant to Alford, he was going to plead guilty to the amended charged of forcible rape. The trial court then thoroughly Boykinized Defendant. The trial court then asked for a factual basis for the plea. The following conversation took place:

MS. KILLINGSWORTH (Assistant District Attorney):
Your Honor, if called to trial the State would prove that on or about April 19th, 2004, the defendant was involved in a relationship with [A.TJ. They were off and on.
I believe they were off at the time. There is some question with Mr.[S] as to that particular issue. And that’s one of the things I’m sure he will take — or have a different thing to say about.
However, Ms. [T] is a nurse and was working 12-hour shifts, 7 on 7 off. She had finished her shift [and] was at home. She fell asleep, she sleeps very deeply.
When she woke up she was tied to the bedpost. Her hands and legs were tied to each of the four bedposts. He had someone else with him, his name is [R.S.],
And Mr. [S.] raped her against her will.
THE COURT:
Mr. [S.], you’ve heard what Ms. Kill-ingsworth’s description of |4what she believes the State could have proved in this situation.
THE DEFENDANT:
Yes, Your Honor.
THE COURT:
Okay. Do you agree or disagree with those facts?
THE DEFENDANT:
I disagree.

Defendant then proceeded to give the trial court a detailed explanation how his girlfriend wanted to do a threesome, so one evening he met a man in a bar, R.S., whom he talked into going home with him to have sex with the victim. He gave a long and very descriptive narration of how she happily got right into having sex with both men. Eventually, he left the bedroom to make coffee and watched television until the victim and R.S. were finished.

At this point, the State offered a statement made to the police by R.S., corroborating the victim’s allegation of being tied to the bedposts and being forced to submit to sex acts committed by Defendant. The State told the trial court R.S. was prepared to testify at trial. Defense counsel agreed that he had seen the statement and had discussed the statement with Defendant. The trial court said that since Defendant disagreed with the statement, it would need something more before it could accept Defendant’s guilty plea. The trial court permitted defense counsel to speak with Defendant outside its purview, and following that discussion, the following took place:

MR. WHITE:
Thank you, Your Honor.
I’m going to let my client address the Court. This is — I was worried about allocution — I was worried, that’s why I wanted to pursue an Alford \ ¿plea.
He’s going to continue to deny the rope and blindfold allegation, but there is something he would like to tell the Court.
THE COURT:
Okay. Well, I want to hear what he has to say.
Mr. [SJ?
THE DEFENDANT:
I’ll say that maybe at that point in time I didn’t have consent for penetration. Your Honor..

The trial court was put on notice of Defendant’s claim of innocence and thereafter ascertained that the record contained strong evidence of actual guilt. The record indicated Defendant tied the victim, spread eagle, to the bedposts while she was in a deep sleep. He blindfolded her and stuffed a sock into her mouth and proceeded to brutally rape her. These facts were supported by the statement of the eyewitness who was prepared to testify at trial. Defendant admitted there was no consent. The victim was prevented from resisting by force. She was tied up, blindfolded, and gagged — physical resistance in this case was futile. Therefore, all the elements of forcible rape were present in the record before the trial court.

Furthermore, the facts of the case could have supported a conviction for aggravated rape; thus, Defendant could have been sentenced to life imprisonment, instead of the thirty years he received when he pled guilty to forcible rape. In view of the strong factual basis, Defendant’s plea of guilty to the lesser offense was knowingly and intelligently entered. The trial court did not commit error in accepting the plea.

ASSIGNMENT OF ERROR NUMBER 1

Defendant argues a thirty-year sentence for the offense of forcible rape is excessive considering that none of his prior convictions were of a sexual nature and | fithere was subsequent consensual sexual intercourse between him and the victim.

The statute which defines forcible rape provides for a range of imprisonment of not less than five nor more than forty years, with at least two years of the sentence imposed without the benefit of parole, probation, or suspension of sentence. La.R.S. 14:42.1(B).

In State v. Jacobs, 07-1370, pp. 7-8 (La.App. 3 Cir. 6/5/08), 987 So.2d 286, 291-92, unit denied, 08-2000 (La.4/3/09), 6 So.3d 769, wherein this court affirmed a defendant’s thirty year sentence for the offense of forcible rape, this court noted the following standard to be used to review the excessiveness of the sentence:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have also held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While |7a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.

At the sentencing hearing, held on February 8, 2008, the trial court gave the following reasons for imposing sentence:

THE COURT:
I’m looking at a conviction from 7/16/90, convicted of inflicting corporal injury of spouse, six years prison sentence, suspended, probationary period.
Then I’m looking at a plea to a theft in Baton Rouge on 2/1/01, sentenced to two years at hard labor. Then I’m looking at a plea of 3/22/02, unauthorized use of a motor vehicle which I would surmise is probably what he’s on probation for now.
All right. This Court, of course, has labored with this matter for some time. This Court remembers well when we took the plea in this matter and the labors that this Court went through to make sure that Mr. [S.] understood what was going on at that time.
This matter was called for trial. We had, in fact, started picking a jury. The plea was made at this time and this Court still contends it was made knowingly and properly at that time.
Of course, the record is going to reflect that earlier today we had a hearing regarding allowing Mr. [S.] to withdraw his plea and again, this Court stands by its position that it’s not going to allow that.
We’re proceeding with the sentencing regarding this situation here. It’s a very unfortunate situation.
This Court had some concerns and I expressed those concerns regarding the reporting issue in this matter. I’m satisfied as to what has taken place there and it should not affect the situation regarding the ^sentencing.
Based on his record, based on what has taken place in this matter, based on what this Court has been presented with at this time, the law is regarding this matter that whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five years nor more than forty years.
Based on the circumstances in this matter this Court is going to sentence [J.S.] to 30 years Department of Corrections. Ten years of that is without benefit of probation, parole, or suspension of sentence.

On February 29, 2008, defense counsel filed a timely “Motion to Reconsider Sentence,” wherein he asserted Defendant was suffering from a mental disability which prevented him from communicating to the trial court his remorsefulness for the offense. Accordingly, defense counsel advised the trial court that Defendant desired to speak before any new sentence was imposed.

A hearing was held on the motion to reconsider the sentence. At that time, defense counsel informed the trial court that he had attempted to get medical records from the military which could contain some mitigating information, but to no avail. Defendant further advised the trial court that although the sentence disallowed the benefit of the possibility of parole for ten years, the Department of Corrections had informed him he would have to serve all the thirty years because of his prior criminal history. The trial court denied the motion to reconsider the sentence.

Now, in brief, Defendant argues that the sentence is constitutionally excessive in that, while he was a four-time felony offender and that his criminal history reflected prior domestic violence, there were no prior crimes of a similar nature as the current offense. Defendant argues he has a high school education and was honorably discharged from the military. He asserts he is deserving of a chance to reenter society before he is eighty years old. He further argues that even the victim recognized “positives” and attempted reconciliation after the charged offense.

19Initially, Defendant did not raise the claim of constitutional excessiveness in his attorney-filed motion to reconsider the sentence. 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 or to include a specific ground upon which a motion to reconsider sentence may be based, in-eluding 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.

However, Defendant did file an untimely pro-se “Motion to Reconsider Sentence,” on March 10, 2008, wherein he claimed the sentence was excessive without giving reasons why the sentence was excessive. We will conduct a bare bones review of the excessiveness of the sentence. See 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. Malloy, 01-1118 (La.App. 3 Cir. 2/6/02), 815 So.2d 940.

Defendant argues the trial court did not take into adequate consideration his personal history and did not sufficiently articulate which factors were taken into consideration to support such a lengthy sentence, as required by La.Code Crim.P. art. 894.1. In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, the fifth circuit set forth the standard for reviewing a trial court’s sentencing discretion, as follows: a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts.

In the current case, while the trial court did not articulate Defendant’s personal history, the presentence investigation report gave a lengthy history. A summary of Defendant’s personal history as reported by Defendant is, as follows: He was fifty-two at the time of the report. He had a difficult childhood. He reported watching his | mfather shoot his mother with a shotgun. She survived, but his father spent time in prison. After high school, he went into the Navy and was honorably discharged. He had been married twice, with a child by each spouse. He had maintained steady employment driving trucks and worked as an electronic technician for an aircraft corporation until he came to Louisiana.

However, while the current conviction was Defendant’s fourth felony conviction, the presentence investigation report indicated that his arrest record, starting in 1980, was lengthy and included arrests for infliction of corporal injury on a spouse, willful child cruelty, theft, lewd or lascivious acts with a child under the age of fourteen, unauthorized use of a motor vehicle, illegal possession of stolen things, misdemeanor theft, and disturbing the peace. In selecting a proper sentence for a criminal defendant, a trial judge is not limited to considering only prior convictions and may review all evidence of prior criminal activity. State v. Cooks, 36,613 (La.App. 2 Cir. 12/04/02), 833 So.2d 1034. When evaluating a defendant’s criminal history, trial courts may consider evidence at sentencing that would otherwise be inadmissible at trial. State v. Myles, 94-217 (La.6/3/94), 638 So.2d 218. The trial court may consider records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle prossed. State v. Emerson, 31,408 (La.App. 2 Cir. 12/9/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470.

Furthermore, Defendant attached a statement to the presentence investigation report which gave a long and detailed description of all his and the victim’s sexual activities, including the current incident, and concluded that the victim initiated the sexual act with relish, then falsely accused him of rape without an explanation of why she would do so. Defendant exhibited no remorse.

| nIn Jacobs, 987 So.2d 286, this court affirmed a thirty-year sentence for an offense of forcible rape. That defendant broke into the victim’s motel room, threatened to shoot her unless she gave him money and her car keys, then raped her. This court did not find thirty years excessive under the circumstances of the case. The defendant had a criminal history, mostly drug violations. This court noted that he could have received the maximum sentence and stated: “Moreover, we find that the sentence imposed by the trial court is clearly supported by the record. See State v. Carter, 04-482 (La.App. 5 Cir. 10/26/04), 888 So.2d 928, where the trial court held that a thirty-seven-year sentence for forcible rape was not excessive.” Id. at 292.

We find the offense to which Defendant pled guilty did not adequately describe his conduct. As noted above, Defendant was originally charged with aggravated rape, an offense which provides for a punishment of life imprisonment. The difference between forcible rape and aggravated rape is the degree of violence used and the extent to which the victim resists. See State v. Leyva-Martinez, 07-1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276, writ denied, 08-1200 (La.1/30/09), 999 So.2d 747, and State v. Chandler, 41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, writ denied, 06-2554 (La.5/11/07), 955 So.2d 1277. In the current case, the victim who was bound to the bedposts, blindfolded, and gagged, stated that she was raped so violently that she soiled herself and hurt for days. Defendant received a significant benefit by pleading guilty to forcible rape. The severity of an imposed sentence may be assessed with consideration of whether the defendant is allowed to plead guilty to a lesser offense. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. See also State v. Howard, 36,929 (La.App. 2 Cir. 4/9/03), 842 So.2d 1233, writ denied, 03-1571 (La.12/12/03), 860 So.2d 1152.

Although we note the trial court did not extensively discuss the reasons for the | ^sentence, the record is sufficient for this court to determine that the sentence is not such that would shock this court’s sense of justice considering the situation and the facts of the case. See State v. Day, 02-1039 (La.App. 3 Cir. 2/5/03), 838 So.2d 74.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Initials will be used throughout this opinion to protect the identity of the victim in accordance with La.R.S. 46:1844(W).


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Harrison THIBEAUX.
    No. 11-40.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    Rehearing Denied June 15, 2011.

      Hon. J. Phillip Haney, District Attorney, Sixteenth Judicial District, Walter J. Sen-ette, Jr., Assistant District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Harrison Thibeaux.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Harrison Thibeaux, was convicted of domestic abuse battery, third offense, in violation of La.R.S. 14:35.3(E). He appeals his sentence of five years at hard labor to be served without benefit of probation, parole, or suspension of sentence to run consecutively with a ten-year sentence he received for theft over $500. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2010, Defendant was charged by Bill of Information with theft of more than $500 in violation of La.R.S. 14:67(B)(1). In February 2010, he was charged by Bill of Information with domestic abuse battery, third offense, in violation of La.R.S. 14:35.3(E).

In July 2010, Defendant entered into a felony plea agreement in which he agreed to plead guilty to domestic abuse battery, third offense, and theft of over $500. He agreed to a sentence of ten years at hard labor for the theft charge and the State agreed not to charge Defendant as a habitual offender. Defendant was sentenced to serve five years at hard labor to run consecutively to his ten-year sentence. Defendant filed a motion for reconsideration of sentence which was denied.

Defendant now appeals and asserts that his sentence is excessive and that the trial court failed to consider his mitigating circumstances listed in La. Code Crim.P. art. 894.1.

EXCESSIVENESS OF SENTENCE

The State argues that Defendant’s agreement to enter an open-ended plea to domestic abuse battery, third offense, with an agreement by the State not to habitually bill him, constitutes a cap on his sentence such that he is precluded from praising the excessiveness of his sentence on appeal. Louisiana Code of Criminal Procedure Article 881.2(A)(2) states that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.”

The plea agreement, signed by Defendant, was entered into the record. It states:

II. PLEA AGREEMENT:
1. 10-0173: Domestic Abuse Battery (3rd offense); the defendant, HARRISON THIBEAUX, will plead OPEN ENDED and the Court will order a certified criminal history and set a sentencing hearing to be held at a later date;
2. 10-83: THEFT over $500; The Defendant, HARRISON [THI-BEUAX], is sentence[d] to ten (10) years at hard labor with the department of corrections.
8. The State of Louisiana agrees not the charge the defendant as a habitual offender.
4. The Court will decide if the sentences impose[d] run concurrent or consecutive.

The transcript of the plea indicates that Defendant understood the plea agreement he entered into:

Q. The possible penalty you could receive for pleading guilty to third offense domestic abuse battery is imprisonment with or without hard labor for not less than one year nor more than five years and a fine of $2,000. The first year of the sentence of imprisonment is without the benefit of probation, parole, or suspension of sentence. So you understand, if you pled guilty to that charge, you could be sentenced in accordance with that, which means that you could be sentenced to imprisonment with or without hard labor not less than one year nor more than five years. That could be your sentence, somewhere between one and five years and fine of $2,000. The first year of the sentence, you have to serve in jail because you can’t get probation, parole or |ssuspension of sentence for the first year of the sentence. So you understand what the possible sentences are for pleading guilty to domestic abuse battery, third offense?
A. Yes, sir.
Q. And my understanding is that you agreed to plead guilty to domestic abuse battery, third offense. I’m going to decide what your sentence would be, between one and five years. It could be one, it could be five, or it could be two, or it could be three; anywhere between one and five years. I’m going to decide what your sentence would be.
A. Yes, sir.
Q. So you understand that that is what your agreement is to plead guilty to that charge?
A. Yes, sir.

Defendant waived his right to appeal his five-year sentence by entering into a plea agreement with a sentencing cap. The agreement was entered into the record at the time of the plea, and Defendant was sentenced to a term within the range that the trial court advised him of. See State v. Senterfitt, 00-415 (La.App. 3 Cir. 9/27/00), 771 So.2d 198, writ denied, 00-2980 (La.9/28/01), 798 So.2d 107; State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171. Accordingly, La.Code Crim.P. art. 881.2(A)(2) precludes Defendant from appealing his sentence.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.