author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Gerard M. HOWARD.
    No. 11-KA-1155.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Rehearing Denied July 19, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, For Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Gerard Howard, In Proper Person, Angie, LA, Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|?On January 7, 2009, defendant, Gerard M. Howard, pled guilty to one count of manslaughter, in violation of LSA-R.S. M^l. He was sentenced to 35 years of imprisonment at hard labor. Defendant was granted an out-of-time appeal. For the foregoing reasons, we affirm defendant’s conviction and sentence.

FACTS

Because defendant pled guilty without proceeding to trial on the merits, the pertinent facts of this case are taken from the indictment, the waiver of rights form, and the guilty plea colloquy. According to the record before us, on October 31, 2007, defendant committed manslaughter of Dwain Stewart.

LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant |sto Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests permission to withdraw as counsel of record. The State concurs with appellate counsel’s assessment that there are no non-frivolous issues for appeal.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, [¿adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that the transcript of the hearing on the motion to suppress evidence and identification reveals no issues for appellate review, and the plea colloquy reveals no constitutional abnormalities. Additionally, appellate counsel considered raising an issue regarding excessive sentence; however, she concluded that defendant was informed of the sentencing range for manslaughter and the sentence he would receive in the guilty plea form, and the trial court informed defendant of his sentence in the plea colloquy. She further asserts that defendant agreed to plead to a reduced charge of manslaughter with the understanding that the State would not file a multiple offender bill of information, thus avoiding a possible life sentence. As such, she concluded that the 35-year sentence was not constitutionally excessive.

| sAppellate counsel has filed a motion to withdraw as attorney of record which states that she notified defendant of the filing of her motion and has advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until January 28, 2012, to file a pro se supplemental brief. Defendant filed a supplemental brief on January 23, 2012.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief is filed, the appellate court reviews: 1) the bill of information/indictment to insure the defendant was properly charged, 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal, 3) all pleadings in the record, and 4) all transcripts to determine if any ruling provides an arguable basis for appeal. Bradford, 95-929 at 4, 676 So.2d at 1110-11.

In conducting this review, we note that defendant was properly charged by a grand jury indictment. The indictment plainly, concisely, and definitely states the essential facts constituting the offense charged, and cites the statute defendant violated. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-466.

As reflected by the minute entries and commitment, defendant appeared at all crucial stages of the proceedings, including arraignment, guilty plea, and sentencing. As such, defendant’s presence does not present, any issues which would support an appeal.

Further, pursuant to a plea bargain, defendant pled guilty to a reduced charge of manslaughter, in violation of LSA-R.S. 14:31. During the guilty plea colloquy, |,¡he was advised of and waived his Boy-kin rights, including his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant was also advised of these rights by means of the Plea of Guilty and Waiver of Constitutional Rights form. Defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty.

When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects by appeal or post-conviction relief. State v. Wingerter, 05-697, pp. 5-6 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 665. Additionally, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

In the present case, the record does not show that the Boykin colloquy was inadequate, that the plea bargain was not kept, or that defendant did not freely and voluntarily plead guilty.

Further, defendant’s sentence, which was part of the plea bargain, was legal and authorized by LSA-R.S. 14:31. The waiver of rights form indicated that defendant would receive a sentence of 35 years at hard labor and that the State would not file a multiple offender bill of information against defendant. The trial court advised defendant of his sentence during the guilty plea colloquy as well. A defendant cannot seek review of a sentence imposed in conformity with a plea 17agreement which was set forth in the record at the time of the plea. LSA-C.Cr.P. art. 881.2(A)(2) and State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Additionally, a review of the pleadings and transcripts do not reveal any basis for appeal. We note that when defendant pled guilty, he did not reserve his right to appeal the denial of his Motion to Suppress under State v. Crosby, 338 So.2d 584 (La.1976). Moreover, neither appellate counsel nor defendant has raised any issues on appeal pertaining to the trial court’s rulings.

We conclude that appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion.

Defendant filed a pro se brief asserting three assignments of error. In his first assignment of error, defendant contends that the “affidavit” prepared by Detective Roger Gorumba, Jr. is fatally defective for failing to comply with La. Const. Art. 7, § 1. In his second assignment of error, defendant asserts that the “indictment” for the offense of LSA-R.S. 14:31 is fatally defective for failure to comply with La. Const. Art. 7, § 1. By these assignments, defendant challenges the validity of both the arrest warrant and the bill of indictment, claiming that they are fatally defective for failing to conclude with the specific words proscribed by Article 7, § 1 of the Louisiana Constitution.

The record does not reflect that defendant filed a motion to quash or objected to any error relative to either the arrest warrant or the indictment in the trial court. Thus, the issues set forth in defendant’s first two assignments of error have not been preserved for appellate review. See LSA-C.Cr.P. art. 841(A); LSA-C.Cr.P. art. 521; LSA-C.Cr.P. art. 531 et. seq.

|sIn his third assignment of error, defendant argues that his guilty plea was not knowing and voluntary. Defendant claims that his guilty plea was invalid, because he was not advised of the nature of the charges against him, thus he did not possess an understanding of the law in relation to the facts.

LSA-C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. State v. Strattman, 08-674, p. 5 (La.App. 5 Cir. 4/28/09), 13 So.3d 1129, 1132, writ denied, 09-1157 (La.1/22/10), 25 So.3d 130. The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. Id.

Violations of LSA-C.Cr.P. art. 556.1 that do not rise to the level of Boy-kin violations are subject to harmless error analysis. Strattman, 08-674 at 5, 13 So.3d at 1132. To determine whether a violation of Article 556.1 is harmless, the proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Id.

In the instant case, the record shows that the trial court adequately ascertained that defendant understood the nature of the charged offense. Defendant does not allege that he did not intend to plead guilty; rather he concludes that he did not understand the nature of the charge due to the trial court’s failure to advise him of such.

However, the record does not show that defendant lacked awareness of the essential nature of the offense to which he was pleading. The trial court asked defendant if he was entering a plea to manslaughter to which he responded in the | ¡¡affirmative. The trial court next asked if defendant had fully consulted with his attorney on the matter, and he, again, responded in the affirmative. The guilty plea form, signed by defendant, also reflects that defendant was pleading guilty to manslaughter and advises of the pertinent maximum and minimum sentence. The trial court personally questioned defendant regarding his Boykin rights, as well as advised him of the sentence he would receive. At no time during the plea colloquy did defendant indicate to the trial court that he did not understand the nature of the charge. Additionally, defendant affirmed that he had discussed the plea with his attorney. Finally, defendant confirmed that he still wished to plead guilty after his discussions with both his attorney and the trial court.

Even if the trial court erred in advising defendant, the record does not show that defendant’s knowledge and comprehension of the full information would have likely affected his willingness to plead guilty. Defendant agreed to plead to a reduced charge of manslaughter, with knowledge of the sentence he would receive, and the understanding that the State would not file a multiple offender bill of information, which reduced his sentencing exposure. Accordingly, we find that any error was harmless.

The record was reviewed for errors patent pursuant to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir.1990). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, the conviction and sentence of defendant, Gerard Howard, are affirmed. In addition, appellate counsel’s motion to withdraw is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . On February 28, 2008, defendant was originally charged by bill of indictment with second degree murder, in violation of LSA-R.S. 14:30.1. The bill of indictment was amended on January 7, 2009, to charge defendant with manslaughter.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      .The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Defendant's sentencing range was in between 0 and 40 years for manslaughter.

      . Defendant’s original second degree murder charge carried a mandatory life sentence. LSA-R.S. 14:30.1.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Carlos A. BONILLA.
    Nos. 2011-KA-1376, 2011-KA-1377, 2011-KA-1378.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.
    Rehearing Denied June 21, 2012.
    John F. Rowley, District Attorney, Darren M. Roy, Assistant District Attorney, Chalmette, LA, for State of Louisiana.
    William Noland, Brandon, MS, for Appellant, Continental Heritage Insurance Company.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Judge.

_JjFor the purpose of judicial economy we will address all three of Continental Heritage Insurance Company’s appeals, 2011-KA-1376, 2011-KA-1377 and 2011-KA-1378, in this opinion.

The appellant, Continental Heritage Insurance Company, appeals the judgment of the trial court, denying its judgment for nullity of bond forfeiture. For the reasons set forth below, we affirm the judgment of the trial court.

On or about October 25, 2010, Carlos Bonilla was arrested and subsequently charged by bill of information with the crimes of La. R.S. 14:34, to wit aggravated battery; 14:103, to wit disturbing the peace and 14:108, to wit resisting an officer. On December 13, 2010, he was arraigned and entered a plea of not guilty in each case and received notice of a motion hearing date of December 14, 2010 and a notice of trial for April 5-7, 2010. On December 14, 2010, the defendant was present and represented by counsel for a preliminary examination hearing. The trial court found probable cause and denied the defendant’s motion for bond | ^reduction. On December 14, 2010, the defendant received notice, while incarcerated, to appear for a trial in the matter on April 5-7, 2011.

Pertinent to this appeal, on December 17, 2010, Carlos Bonilla was released from prison pursuant to a surety bond posted with Continental Heritage as the surety for the sum of $12,000.00. As a condition of this bond, he was ordered to appear on March 23, 2011 for a scheduled initial court appearance and/or arraignment. The appellant, Continental Heritage asserts that on that March 23, 2011 appearance date, the defendant did not appear, but that nothing happened in court on that date. Significantly, the defendant had been given dates and a trial date had been selected in this matter prior to this bond undertaking.

ASSIGNMENT OF ERROR

Continental Heritage asserts that the trial court erred in denying its petition for nullity of bond forfeiture. Appellant relies on La.C.Cr.P. art. 344(C) to support its position. Continental Heritage asserts that although Carlos Bonilla had notice of the April 5, 2011 trial date, Continental Heritage, in its capacity as surety, never received notice of this impending date, which they claim they were entitled to pursuant to the article. The only date Continental Heritage had notice of was the March 23, 2011 initial appearance date on which the defendant failed to appear. This reliance is misguided. In pertinent part this article states:

If the defendant appears as ordered and the proceeding is continued to a specific date, the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety need not be given notice of the new appearance date. If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the defendant or his duly appointed agent, the personal surety or the agent or Isbondsman who posted the bond for the commercial surety shall be given notice of the new appearance date, (emphasis added)

In the case sub judice, the operative date is the trial date of April 5, 2011. The record indicates that the defendant received notice of this trial date on December 13, 2010, at his first appearance in court while he was still incarcerated. This was before the defendant had bonded out on December 17, 2010. The trial date was never altered and adequate notice was given to the defendant. Continental Heritage was properly noticed of the March 23, 2011 appearance bond hearing date as it appears on the bond document. The defendant never appeared in court on this date but the surety did. No new appearance dates were set by the court. No new trial date was set on this date. In fact Continental Heritage asserts that nothing happened on this date. The original trial date of April 5, 2011, again remained consistent and unaltered from the beginning of the prosecutorial process. La.C.Cr.P. art. 344(C) is simply not applicable in this matter.

Accordingly, we affirm the judgment of the trial court denying Continental Heritage’s petition for nullity of judgment of bond forfeiture.

2011-KA-1376 AFFIRMED

2011-KA-1377 AFFIRMED

2011-KA-1378 AFFIRMED


author: KEATY, Judge.

text:
    STATE of Louisiana v. Charles Paul CELESTINE aka Paul Charles Celestine aka Charles P. Celestine aka Paul C. Celestine.
    No. 11-1403.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2012.

      Michael Harson, District Attorney, Keith A. States, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant Appellant, Charles Paul Celestine.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| iDefendant, Charles Paul Celestine, was convicted by a jury of aggravated rape and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction only, alleging ineffective assistance of counsel in failing to request a Daubert hearing relative to the evidentiary chain of custody and in failing to retain a DNA expert. For the following reasons, we affirm Defendant’s conviction.

FACTS AND PROCEDURAL HISTORY

On August 29, 1989, D.C. started walking home from an area known as the “Strip” in Lafayette after an argument with her boyfriend. As she walked down Bendel Road, a man offered D.C. a ride, but she refused. D.C. encountered a police officer on Pinhook Road, and he asked if she needed a ride. She again refused. D.C. encountered a second police officer near the intersection of Pinhook Road and Kaliste Saloom Road and again refused a ride home. D.C. continued to walk and turned onto Silverbell Parkway. D.C. testified she then noticed someone following her. The man chased her, caught her, threw her into a ditch, and raped her. D.C. testified that she thought the man who raped her was the first person who offered her a ride.

D.C. was brought to the hospital. A sexual assault examination was performed, and a sexual assault kit was delivered to the Acadiana Crime Lab. However, DNA profiles and comparisons were not being performed by the Acadiana Crime Lab in 1989.

|2In 2003, evidence from unsolved rape cases was sent by the Acadiana Crime Lab to other labs for DNA analysis. In 2003, one of the analyzing labs, Orchid Cellmark, generated a DNA profile from the sperm fraction of vaginal swabs taken from D.C. That DNA profile was entered into the Combined DNA Index System (CODIS). A CODIS hit matching Defendant’s DNA profile with that found in the vaginal swabs subsequently occurred. A DNA sample was taken from Defendant in April 2006. The DNA profile from the sperm fraction of the vaginal swab matched the reference sample taken from Defendant in April 2006.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There are two errors patent.

First, the trial court failed to state that the sentence for the aggravated rape conviction was to be served at hard labor. La.R.S. 14:42(D)(1). In State v. Loyden, 04-1558, p. 6 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 172, this court explained, in pertinent part:

[W]e find that the sentences imposed for the defendant’s two aggravated rape convictions in this case are illegally lenient, because the trial court did not indicate that they were to be served at hard labor. Under the authority of La. Code Crim.P. art. 882, we amend the sentences imposed by the trial court to affirmatively indicate that the sentences for aggravated rape be served at hard labor. The district court is directed to make an entry in the minutes reflecting this amendment.

Consequently, the trial court’s failure to order the sentence for aggravated rape to be served at hard labor renders it illegally lenient. However, this court will not consider an illegally lenient sentence unless it is a raised error. State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La.12/18/09), 23 So.3d 931.

|sThe second errors patent concerns the trial court’s reference to Defendant’s post-conviction relief. The transcript of sentencing indicates the trial court, referring to post-conviction relief, informed Defendant that he has two years to file for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has two years after the conviction and sentence become final to seek post-conviction relief. Because the trial court’s advisement was insufficient, the trial court is instructed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion and shall file written proof in the record that it issued the notice to Defendant. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

DISCUSSION

In his only assignment of error, Defendant contends trial counsel was ineffective in failing to request a Daubert hearing, in failing to object to the chain of custody, and in failing to retain a DNA expert.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed initially in the district court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990); State v. Sparrow, 612 So.2d 191 (La. App. 4th Cir.1992); State v. Petta, 496 So.2d 390 (La.App. 4th Cir.1986). However, in the interest of judicial economy, an appellate court can consider an ineffective assistance claim if the record on appeal contains sufficient evidence to evaluate the merits of the claim. State v. Seiss, 428 So.2d 444 (La.1983); State v. Haywood, 516 So.2d 196 (La.App. 4th Cir.1987); State v. Kelly, 92-2446 (La. App. 4 Cir. 7/8/94), 639 So.2d 888. Such is the case here.
To succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). A claim of ineffective assistance may be disposed of based upon a finding that either one of the two Strickland criteria have not been established. State v. James, 555 So.2d 519, 524 (La.App. 4th Cir.1989); State v. Frazier, 599 So.2d 419, 421 (La.App. 4th Cir.1992).

State v. Robinson, 11-66, pp. 11-12 (La. App. 4 Cir. 12/7/11), 81 So.3d 90, 96-97.

Defendant sets forth the following in brief to this court:

Randy Vincent, a former investigator with the Lafayette Police Department, testified he was dispatched on October 29, 1989 to the University Medical Center in reference to a sexual assault. Officer Vincent met with D.C. and sexual assault counselors at the hospital. Officer Vincent then took possession of the sexual assault kit D.C. submitted to. Officer Vincent then delivered the evidence to the Acadiana Crime Lab. The form entered into evidence, S-4, indicates M. Marlette delivered the evidence to Joey Verret, and the person who performed the examination was David Epstein. David Epstein was not called as a witness nor was there an objection as to the chain of custody. S-8 indicates that ACL then sent the evidence by Airborne Express to Orchid Cell Mark [sic]. Once again there was no objection to the chain of custody nor did Defense counsel request a Daubert hearing or independent examination of the DNA evidence.
A review of the record shows evidence of the DNA matches was the only evidence linking Charles Celestine to the D.C. rape.

The State asserts DNA testing and its methodology have long been accepted in Louisiana courts. The State also asserts Defendant fails to argue the justification for a Daubert hearing. In support of its argument, the State cites State v. Quatrevingt, 93-1644 (La.2/28/96), 670 So.2d 197, cert. denied, 519 U.S. 927, 117 S.Ct. 294, 136 L.Ed.2d 213 (1996), wherein the supreme court held that the principles of DNA profiling and Restriction Fragment Length Polymorphism analysis were both relevant and reliable and were, therefore, admissible. The State also cites La.R.S. 15:441, which was repealed effective January 1, 1989. We presume the State meant to cite La.R.S. 15:441.1, which provides: “[ejvidence of deoxyribonucleic acid profiles, genetic markers of the blood, and secretor status of the saliva offered to establish the identity of the offender of any crime is relevant as proof in conformity with the Louisiana Code of Evidence.”

|sThe State asserts the chain of custody goes solely to the weight of the evidence and need only be established by a preponderance of the evidence. The State also asserts that:

the evidence is clear from the testimony of D.[C]., from whom the vaginal swabs were taken, from Detective Vincent who retrieved the sexual assault kit containing the swabs, and who delivered the swabs to the Acadiana Crime Lab, from Chemist Joey Verret who received the swabs and found them to contain semen, from DNA experts Winnie Kurowski and Carolyn Booker who confirmed the presence of semen in the sex assault kit swabs and who confirmed and adopted the DNA profiles generated from the sex assault kit swabs, from Sgt. Monde Potier who personally obtained DNA samples from the defendant Charles
Paul Celestine and who delivered the defendant’s samples to the Acadiana Crime Lab, and from DNA experts Ku-rowski and Booker who derived a DNA profile from the samples from the defendant, who compared the defendant’s DNA profile to the male sperm DNA from the sex assault kit swab taken from the victim D.[C]., and who confirmed them to be a match.

Daubert

Defendant notes the only evidence linking him to the rape of D.C. was DNA evidence, and trial counsel failed to object to the validity of the test methodology under a Daubert analysis regarding the testing done by Acadiana Crime Lab or Orchid Cellmark. Defendant asserts there can be no explanation why trial counsel failed to request a Daubert hearing.

Defendant does not declare any error in the methodology used by Acadiana Crime Lab and/or Orchid Cellmark. General statements and conclusory allegations will not suffice to prove a claim of ineffective assistance of counsel. State v. Camp, 46,052 (La.App. 2 Cir. 3/16/11), 59 So.3d 548, writ denied, 11-954 (La.12/16/11), 76 So.3d 1199. Thus, this claim of ineffective assistance of is without merit.

Chain of Custody

Defendant notes that trial counsel did not object to the chain of custody for DNA recovered from vaginal swabs taken from D.C. on the night of the alleged | (joffense. Defendant asserts there can be no legitimate trial strategy as to why trial counsel did not object to the chain of custody for the vaginal swabs taken from D.C. He contends that without establishing who performed the sexual assault kit, how his DNA was recovered from the vaginal swabs, and who turned the sexual assault kit over to Officer Randy Vincent, the State was allowed to circumvent the chain of custody. He asserts trial counsel was ineffective in failing to object to the chain of custody from the initial evidence collected to the transfer to Orchid Cellmark by Airborne Express.

To admit demonstrative evidence at trial, an object must be identified, either by testimony that the object is related to the case or by the chain of custody from the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. State v. Holden, 45,038 (La. App.2d Cir.01/27/10), 30 So.3d 1053, writ denied, 2010-0491 (La.09/24/10), 45 So.3d 1072. It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. The state need only establish by a preponderance of the evidence that the object is the one connected with the case. State v. Toney, 26,711 (La.App.2d Cir.03/01/95), 651 So.2d 387. A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Jackson, 629 So.2d 1374 (La.App. 2d Cir.1993), writ denied, 1994-0201 (La.05/06/94), 637 So.2d 1046.

State v. Booker, 46,256, pp. 8-9 (La.App. 2 Cir. 5/18/11), 70 So.3d 818, 823.

D.C. testified that a rape kit was performed on her. Captain Randy Vincent came into possession of the sexual assault kit at University Medical Center and completed the property record admitted as State’s Exhibit 3. Captain Vincent made a request that the sexual assault kit be delivered to the crime lab. He also gave instructions to the crime lab as indicated by State’s Exhibit 4. Captain Vincent testified that State’s Exhibit 5 bore the signature of the lab personnel who received the evidence, which included one sexual evidence collection kit, one brown bag containing the victim’s clothing and shoes, and one brown envelope containing fingernail samples from the victim. The person who received the |7evidence was Joey Verret. Captain Vincent testified that the sexual assault kit was in fact delivered to the Acadiana Crime Lab. Additionally, State’s Exhibit 5 appears to display the signature of Marlette as the person delivering the sexual assault kit to the lab.

Joey Verret worked as a serologist at the Acadiana Crime Lab in 1989. Verret testified that he received the evidence listed on State’s Exhibit 5. The Acadiana Crime Lab report admitted as State’s Exhibit 6 indicated he took possession of the sexual assault kit. The report stated the evidence was delivered to the lab by M. Marlette. Verret testified he examined the sexual assault kit for semen stains. Verret issued the report, which was admitted as State’s Exhibit 7, regarding the vaginal smear slide and swab.

Carolyn Booker, a DNA analyst and DNA database administrator at the Acadi-ana Crime Lab, testified that as part of the search for a serial killer in 2003, DNA from unsolved rape cases was sent to other labs for testing. Orchid Cellmark performed the DNA analysis in the case at bar and forwarded the results to the Aca-diana Crime Lab. When the results were received by the Acadiana Crime Lab, the results were reviewed and she “made sure that the data look[ed] good and that they followed all the perimeters that [were] set out in the contract and all the protocols were followed properly.” A report was then written by Acadiana Crime Lab based on the data provided by Orchid Cell-mark.

Winnie Kurowski, a forensic chemist at the Acadiana Crime Lab, testified that the Acadiana Crime Lab sent a sealed envelope containing reference blood from D.C. and a sealed envelope containing vaginal swabs to Orchid Cellmark. Kurowski testified the two items were obtained from the sexual assault kit. Kurowski also testified that when the evidence was sent to Orchid Cellmark, the Acadiana Crime Lab requested the type of kits Orchid Cellmark was to use and the |8method used to analyze the DNA. Kurowski further testified that once the results were received, the Acadiana Crime Lab “go[es] through that data, make[s] sure that it matches up to that table that’s generated and to ensure that the quality ... is met that everything was done correctly. The controls were performed correctly.”

State’s Exhibit 8, a forensic case report issued by Orchid Cellmark, indicated that Orchid Cellmark received a sealed envelope containing a victim reference blood sample from D.C. and a sealed envelope containing vaginal swabs via Airborne Express on August 26, 2003. Testimony indicated that David Epstein, who was not called to testify, tested the victim’s blood for alcohol.

The State did not present testimony regarding who performed the sexual assault examination and collected evidence found in the sexual assault kit. However, D.C. was subjected to an examination, and Captain Vincent came into possession of the sexual assault kit at the hospital. Also, the State did not present any evidence regarding transmittal/receipt of the items from the sexual assault kit by Airborne Express to Orchid Cellmark. However, Orchid Cellmark’s report indicated it received the same evidence that Kurowski testified Acadiana Crime Lab sent to Orchid Cellmark, and DNA from the reference blood sample matched DNA from the non-sperm fraction of the vaginal swab.

The record supports a finding that it is more probable than not that the tested scientific evidence was connected to the case at bar. Additionally, there is no indication in the record of evidence tampering or that evidence was compromised in any way. Furthermore, any defect in the chain of custody goes to the weight of the evidence, not its admissibility. For these reasons, trial counsel was not ineffective for failing to object to the chain of custody regarding the collection of evidence from D.C. through its testing at Orchid Cell-mark.

| ^Expert

Defendant contends trial counsel was also ineffective for failing to retain an expert in DNA analysis or ask for independent testing of the DNA recovered.

Defendant does not set forth a reason why trial counsel should have obtained an expert in DNA analysis or asked for independent testing of the DNA recovered. General statements and conclusory allegations will not suffice to prove a claim of ineffective assistance of counsel. Canvp, 59 So.3d 548. Thus, this claim of ineffective assistance of counsel is also without merit.

CONCLUSION

Defendant’s claims of ineffective assistance of counsel lack merit, and his conviction is affirmed. The trial court’s advisement regarding the time Defendant has for filing an application for post-conviction relief was insufficient. The trial court shall inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion and file written proof in the record that it issued notice to Defendant.

AFFIRMED.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc.. 516 U.S. 869. 116 S.Ct. 189. 133 L.Ed.2d 126 (1995).

      . The initials of the victim are being used to protect her identity in accordance with La. R.S. 46:1844(W). The indictment lists the victim as D.A. The victim has since married; thus, her initials at the time of trial are used in this opinion.

      . A map of the area was introduced as State’s Exhibit 1.


author: GREMILLION, Judge.

text:
    Leslie SCHILLING v. Lynn W. AURICH, Ph.D., et al.
    No. 11-1325.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2012.

      Rick A. Caballero, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant, Leslie Schilling.
    James J. Hautot, Jr., Judice & Adley, Lafayette, LA, for Defendants/Appellees, Lynn W. Aurich, Ph.D., Charter Cypress Behavorial Health Systems, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liThe plaintiff, Leslie Schilling, appeals the trial court’s grant of a judgment notwithstanding the verdict (JNOV) and, conditionally, a motion for new trial in favor of the defendant, Dr. Lynn W. Aurich. For the following reasons, we reverse the grant of JNOV, reverse the conditional grant of motion for new trial, and reinstate the jury’s verdict and award.

FACTUAL AND PROCEDURAL BACKGROUND

Leslie was involuntary committed to psychiatric care by Dr. Aurich on August 15, 1995, the same day as her seventeen-year-old son’s (Trey) funeral at which her then-husband, Herbert Schilling, removed his wedding band, placed it on their deceased son’s hand, and announced to Leslie that the marriage was over.

Dr. Aurich did not conduct a face-to-face interview with Leslie before committing her to the care of Charter Cypress Hospital. A medical review panel found this failure was a breach of the standard of care.

Leslie filed suit in September 1999. Following a five day trial in August 2010, the jury found that Dr. Aurich breached the standard of care owed to Leslie and awarded her $50,000 for mental anguish and $15,000 for loss of enjoyment of life. Dr. Aurich filed a motion for judgment notwithstanding the verdict (JNOV) and/or a motion for new trial. The trial court granted Dr. Aurich’s motion for JNOV, finding that “[t]he evidence ... was insufficient to support the jury’s findings that Dr. Aurich breached the standard of care and had caused damages to the plaintiff.” The trial court continued:

12Puring the trial, Dr. Simoneaux, a member of the medical review panel who found Dr. Aurich had deviated from the standard of care, was offered by the plaintiff as an expert. Dr. Simoneaux’s testimony appeared to be advocating to support his medical review panel decision instead of being objective. Because of this, the court placed little emphasis on his testimony. Additionally there was testimony that Dr. Aurich spoke with the plaintiff on the evening of her commitment and went to the hospital to execute the commitment paperwork. Notwithstanding the fact that Dr. Au-rich did not wait for the plaintiff to arrive at the hospital to conduct a face-to-face observation, this court feels that given the prior relationship of the plaintiff and Dr. Aurich, that [sic] fact that Dr. Aurich was familiar with the plaintiffs history, and at the insistence of the plaintiffs family and friends, Dr. Au-rich’s decision to execute the PEC was appropriate. Therefore, it is the opinion of this court that the defendant, Dr. Aurich did not breach the standard of care and is not liable to the plaintiff for damages.

The trial court further conditionally granted a motion for new trial. Leslie now appeals.

ISSUES

Leslie assigns as error:

1. The trial court erred in granting Dr. Aurich’s motion for JNOV as there was ample evidence in the record upon which reasonable jurors, in the exercise of their impartial judgment, could have based their verdict in this case.
2. The trial court erred in granting Dr. Aurich’s motion for new trial. The verdict in this case is not contrary to the law and the evidence and does not represent a miscarriage of justice warranting new trial.

JNOV

In Love v. Lewis, 00-06, pp. 4-5 (La. App. 3 Cir. 10/11/00), 771 So.2d 220, 222, writ denied, 00-3506 (La.2/16/01), 786 So.2d 102, we stated:

La. Code Civ.P. art. 1811 provides the basis for filing a Motion for JNOV. However, Article 1811 does not set forth any specific grounds on which a trial court may set aside a verdict. Therefore, we rely on the well-settled jurisprudence that a JNOV may only be granted when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable people could not arrive at a contrary verdict on the facts at issue. Peterson v. Gibraltar Sav. & Loan, 98-1601 (La.5/18/99); 733 So.2d 1198. Additionally, “[t]he trial court may not weigh the ^evidence, pass on the credibility of witnesses, or substitute the reasonable inferences of the facts for those of the jury.” McBride v. H. Brown Machine Shop, 98-1271, p. 3 (La.App. 3 Cir. 3/31/99); 732 So.2d 650, 652, writ denied, 99-1288 (La.7/2/99); 747 So.2d 20, quoting Webb v. Goodley, 512 So.2d 527, 530 (La.App. 3 Cir.1987). In reviewing the grant of a JNOV an appellate court must first determine whether the trial court erred in granting the JNOV. The appellate court does this by applying the same criteria as the trial court. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La. 1991). If reasonable people could have arrived at the same verdict, given the evidence presented to the jury, then the JNOV is improper. Id.

In Lastrapes v. Progressive Security Insurance Co., 10-51, p. 5 (La.11/30/10), 51 So.3d 659, 662 (quoting Joseph v. Broussard Rice Mill, Inc., 00-628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99), the supreme court recently stated (emphasis added):

The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that ivhen there is a jury, the jury is the trier of fact.

We find the trial court erred in granting a JNOV in favor of Dr. Aurich. The jury had sufficient evidence before it to allow them to conclude that Dr. Aurich breached the standard of care and that Leslie suffered damages as a result of the involuntary commitment. Louisiana Revised Statute 28:53(B)(1) regulates the involuntary commitment of a person and stated in part, at the time of Leslie’s commitment:

Any physician, psychiatric mental health nurse practitioner, or psychologist may execute an emergency certificate only after an actual examination of a person alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate care and treatment in a treatment facility because the examining physician, psychiatric mental health nurse practitioner, or psychologist determines the person to be dangerous to self or others or to be gravely disabled. Failure to conduct an examination |4prior to the execution of the certificate will be evidence of gross negligence.

The July 1999 medical review panel opinion stated in part:

1. The evidence supports the conclusion that the defendant, DR. LYNN AU-RICH, failed to comply with the appropriate standard of care as charged in the complaint.
The conduct complained of was not a factor in the resultant damages.

The reasons for the panel’s opinion are as follows:

Dr. Lynn Aurich breached the standard of care because he did not meet with Mrs. Schilling face to face and conduct an actual examination before commitment. We feel there is a general lack of impairment arising from the commitment and that the hospitalization was probably appropriate and beneficial to Mrs. Schilling. The major emotional damages were caused by the death of her son and the divorce and the commitment did not significantly add to that burden.

Pursuant to La. R.S. 9:2794(A), medical malpractice actions require that the plaintiff bear the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Many witnesses testified during the week-long trial. Jackie Cefalu, a retired teacher, testified that she met Leslie in the late 1960s or early 1970s, shortly after Leslie had moved to Lafayette. She said they were close friends. Cefalu testified Lthat as soon as she learned of Trey’s death she went to stay with Leslie. She attended the funeral and remained with Leslie throughout the day except for one hour when she attended a back-to-school function. She said Leslie was never suicidal and never indicated to anyone that she was going to commit suicide. Cefalu further testified that during the entire time she was there, Leslie did not talk with anyone on the telephone. Cefalu testified that when she returned from her function the police were at the Schilling home. She said Leslie had “no idea what was going on.” She asked if “they” had informed Leslie of what was about to happen and said that no one had told her. Cefalu said she asked if she could go and let her know what was about to happen. Cefalu said she was not involved in any way in the decision-making process and that no one asked her opinion. She stated that Leslie “absolutely [did] not” know what was about to happen until Cefalu told her.

Cefalu testified that she rode with Leslie in the police car to Cypress. She described it as a “horrible experience.” Ce-falu said that she told Herbert that she would have stayed with Leslie every minute of the day if it could have prevented her from having to go to Cypress, but that the decision had been made without her knowledge.

Leslie testified that she was fifty-eight years old at the time of trial and was the Director of the Humanities Resource Center at the University of Louisiana at Lafayette. She said she has worked in the resource department since 1993. Leslie testified that she had been married to Herbert from 1977 to 1996, a little over eighteen years. Leslie said that she and Herbert had three children. At the time of Trey’s death, her daughter was sixteen and her youngest son was twelve.

Leslie said that she knew her marriage to Herbert was headed for divorce in July 1995, following a family trip. She said that upon return from the trip, she | (-.contacted Dr. Aurieh, on August 1, 1995. She said that she went to see him because there was a lot of “family discord,” and she was concerned about her children going through the divorce. She said that during the trip to Florida, her son Trey had been arrested and her youngest son had become “totally inebriated” and that she was worried for her children and wanted to talk to someone to develop a guidance plan for them.

Leslie discussed the Life History Questionnaire that she filled out at her first visit with Dr. Aurieh. She noted her age (43) and her main problem as follows “Presently I am depressed. I feel as though I’ve been stretched so thin that I’m not capable of doing even the most basic tasks.” The twelve-page questionnaire requires lengthy written responses in addition to several sections that instruct one to “Underline any of the following that apply to you.” In one of those sections, that contains forty options for underlining, Leslie underlined eighteen of them, including one that said “suicidal ideas.” With regard to that response, Leslie testified:

Q. Explain to the jury what you meant when you underlined suicidal ideas.
A. Sometimes we need a place to start from, and when everything is totally out of control, that’s exactly what it would be if you’re not there. And that’s the point from which you build what you will do to either rectify or solidify or bring together whatever the disparate elements are.
Q. Had you had thoughts about suicide at some point in your life?
A. I think everybody has.
Q. Had you?
A. I’m certain that were times when yes.
Q. Okay. Had you ever gotten so far in your mind that you were like, well, I’m going to do it and start thinking about how to do it or had you just had—
|7A. Oh, heavens no.

Leslie testified that Herbert was physically and emotionally abusive.

Leslie’s next contact with Dr. Aurich was on August 5, 1995. She said that she called and told him that “when I came home from mass, Herbie had attacked me in the washroom and threatened to kill me and make it look like suicide. I was calling him to tell him that no matter what, if something happened to me, it was not suicide.” She denied ever indicating that she was suicidal. Leslie said that Dr. Au-rich spoke with both Herbert and Trey that evening.

Leslie next saw Dr. Aurich on August 9, 1995, at which time she turned in the Life History Questionnaire and also partially completed the MMPI-2. Leslie testified that she did not answer all of the 567 questions on the test, leaving some bubbles unmarked. However, all of the questions had been answered on the form submitted into evidence.

On August 12, 1995, Trey was killed when he was accidentally run over by a truck. Leslie testified that Dr. Aurich’s office sent flowers to the funeral home on Monday August 14, 1995. Leslie said that she spent time that day writing thank you notes at her dining room table. She said eventually she wrote over 200 thank you notes, which were mailed by Herbert’s secretary. However, she said that the thank you note to Dr. Aurich was written on the 14th because she would not have written the note after the commitment.

Leslie described the events on the day of Trey’s funeral, including Herbert’s announcement at her son’s casket that their marriage began with Trey and ended with his death. She said that Herbert further announced she was no longer a part of this family. Leslie said that upon returning home from the funeral, she bathed. |sShe denied speaking to Herbert at all and said that she never spoke to Dr. Aurich at all on that day and had not spoken to him since August 9.

Leslie said that Herbert walked in from the kitchen and “told me that the police were here to take me to the hospital because Dr. Aurich wanted to talk to me.” She said that the police said nothing to her. Leslie said that upon her arrival at Cypress, she felt tricked because she thought Dr. Aurich wanted to speak with her, and he was not there. She said, “I realized that Herbie had done this to get me out of the house.” Leslie went on to describe the ensuing strip search and meeting with doctors the next day.

Leslie said that while in the institution, she first saw Dr. Aurich on August 16, 1995, at which time he suggested that she take medication. Leslie testified that she declined to take the medication based on the “zombie-like” appearance of the other patients in the facility. She said that Dr. Aurich told her that if she was not cooperative, he would cease being her doctor. Leslie said that she was at Cypress until August 24, 1995. Other than taking an antibiotic for an upper respiratory infection, Leslie said that she did not take any other medication while there. Leslie said that on the day of her departure from the hospital, she called friends who picked her up. She attempted to return to her home, but two deputies served her with divorce papers and would not allow her to go into the house. She said that she never spent another night in the home.

Leslie described how the commitment affected her: she was unable to see her children during the critical time following their brother’s death; she was unable to care for her father, who was dying of cancer and relied upon her for basic tasks; and how the commitment affected all custody issues and her children’s view of her, stating that Herbert used “the forced commitment as evidence that their mother was crazy.” Leslie continued that the forced commitment was a problem at school |fl(her employment). She said that she worked with a therapist for several months to deal with the emotional impact of the forced commitment.

Dr. John Simoneaux, an expert psychologist, testified that he was a member of the medical review panel that decided whether Dr. Aurich breached the standard of care. Dr. Simoneaux testified that he has been involved with hundreds of PECs (Psychologist Emergency Certificates) over the years involving his employment at various institutions. In sum, Dr. Simo-neaux testified that it was the panel’s opinion that the statute’s requirement of an “actual” exam required an in-person examination before a person can be involuntary committed. He said that the normal practice in the area has determined “actual” to mean an in-person examination. Dr. Si-moneaux testified that the panel was further of the opinion that it violated the standard of care to conduct a phone interview rather than an in-person examination. Essentially, the standard of care required an in-person examination before a person can be involuntarily committed. Thus, Dr. Aurich breached the standard of care by not conducting an in-person examination of Leslie. However, Dr. Simoneaux opined that “the damage resulting from the hospitalization [was] not there because a hospitalization probably would have occurred had he done an actual examination anyway.” Dr. Simoneaux further testified that the commitment damages were not significant in comparison to the damages Leslie was already suffering due to other life events. However, Dr. Simoneaux noted that “it is unrealistic to think that someone who ha[s] been committed does not suffer damages from a commitment.”

Dr. Philip Landry, a psychiatrist, testified that he believed a face-to-face examination within twenty-four hours was required before a patient could be involuntary committed. He testified that he agreed with the medical review panel’s opinion that Dr. Aurich breached the standard of care. Dr. Landry testified that heJjjfirst met Leslie the day after her commitment to Cypress. He said that Leslie appeared neither suicidal nor psychotic during his initial interview of her. He testified that Leslie’s clinical presentation did not coincide with the descriptions that were provided by Dr. Aurich.

Dr. Landry testified that at the time he saw Leslie, within twelve hours of her admittance to the hospital, he did not believe she was suicidal nor did he find any evidence of psychosis or a character disorder such as borderline personality. Although Dr. Aurich recommended that Leslie be medicated, Dr. Landry did not feel it was necessary to prescribe any medication for Leslie. He stated he would not have committed her based on his impression of her when he assessed her the following day. However, on cross-examination, he admitted that his final diagnosis included, among other diagnoses, “borderline personality disorder,” based on the history and testing he had received. He further testified that he agreed to be the admitting physician at the hospital and that Dr. Au-rich had telephoned him prior to the commitment to confirm same, as Dr. Aurich was unable to admit patients at Cypress without a consulting order from a doctor with privileges at the hospital.

Dr. Landry was asked why he did not release Leslie sooner to which he responded that he wanted to be sure she was not suicidal. Dr. Landry found Leslie’s case “puzzling,” so much so that he did some investigation of collateral sources. He stated that essentially, Herbert and his friends advised that she was suicidal while Leslie’s friends stated that she was not. Dr. Landry did feel that the hospitalization was beneficial to Leslie from an emotional standpoint due to all of the tragedies that had occurred in her life; however-, he was not sure if the commitment would adversely affect her in other ways, such as harm to her reputation or, from a legal standpoint, disadvantage her in child custody litigation.

111Dr. Ted Friedberg, a clinical psychologist, was a member of the medical review panel in this case. He testified he was of the opinion that Dr. Aurich breached the standard of care because he failed to conduct a face-to-face examination of Leslie. Dr. Friedberg further testified that he has never committed anyone over the telephone; an in-person examination is required. However, he said that the panel did not feel that Leslie’s damages were significant because of all of the othér trauma she was experiencing due to the loss of her son and marriage. Dr. Friedberg testified that the panel decided that less than five percent of the damages she was suffering at the time were attributable to the involuntary commitment. Dr. Friedberg stated, “[S]he’s got bigger problems than this, you know, even though when you PEC somebody, you put somebody in the hospital against their will, that’s not a fun thing. Nobody is looking forward to that experience. And it’s a traumatic experience. But compared to everything else, it wasn’t much.”

Dr. Aurich testified that Leslie is the only patient he has ever had to administer a PEC for admission. He reviewed his notes from their first visit on August 1, 1995, noting that Leslie presented with a “stress reaction and significant marital discord.” Dr'. Aurich testified that he also noted “suicidal ideation.” Dr. Aurich said that at the initial meeting he conducted a suicide risk assessment, noting that some people may have suicidal thoughts, but really have no plans to actually do it. He discussed his method of evaluating a person’s suicide risk based on method, availability, specificity, and lethality. Dr. Au-rich testified that Leslie had suicidal thoughts but “didn’t have a plan or anything like that.” He said that he felt her risk of suicide was low. He testified that he did have Leslie sign a no-suicide contract in which she agreed to not commit suicide or to call him if she was having suicidal thoughts.

112Pr. Aurich testified that his next contact with Leslie was on the evening of August 5. He stated that Leslie called and said that she felt suicidal following an altercation with her husband and that in honoring the no-suicide contract she was calling as instructed. Dr. Aurich testified that Leslie had intent and a plan this time, indicating that she was going to crash her car or take drugs to complete her mission. Dr. Aurich said he spoke with Herbert, but that he discounted Leslie’s claims. Dr. Aurich said that he recommended Leslie go to the hospital that night but she adamantly refused. Dr. Aurich indicated that she should have someone stay with her, and her son, Trey, agreed to do so. Dr. Aurich had no further contact with Leslie that evening.

Dr. Aurich next saw Leslie on August 9, 1995, at which time she returned to his office with her Life History Questionnaire. Dr. Aurich noted at the appointment that Leslie:

called me Saturday night threatening suicide, very resistant to my recommendations, talked with husband who was not cooperative with me, recommended that she be hospitalized, but he disagreed .... he still wants her out of the house. She reported to me that he has threatened to kill her numerous times. We discussed that at some length. And then my comment was she is in denial, resistant, rigid.

Dr. Aurich had noted that Leslie indicated at the August 5th appointment that Herbert threatened to kill her and make it look like a suicide. Dr. Aurich said that “apparently, he had made these threats numerous times.” Dr. Aurich testified that the MMPI-2 was administered to Leslie at this appointment, and the results were received on August 14, 1995. Dr. Aurich then testified at length regarding the MMPI-2 results. In sum, he said the results indicated that the most likely diagnosis for Leslie, based on her answers, was paranoid schizophrenic.

He then testified regarding the events of August 15,1995. Dr. Aurich said he spoke with Herbert sometime between 8:00 and 9:00 p.m., who informed him | isthat Leslie was threatening suicide, indicating that she was going to be with Trey. Dr. Aurich said that he spoke with Leslie after he spoke to Herbert. Dr. Aurich testified that Leslie indicated that she wanted to go home with her son Trey and was “done with everything.” Dr. Aurich said that he conducted a suicide assessment over the phone using the four aforementioned factors. Dr. Aurich related that Leslie said she was going to crash her car or take pills. He considered Leslie to be a serious suicide risk that evening based on his assessment and the surrounding facts and circumstances. He advised Leslie that he wanted her to go to the hospital, but that she adamantly refused. He said that he spoke with Herbert again and recommended a PEC because Leslie refused to go to the hospital. Dr. Aurich testified:

[Herbert] agreed with me and agreed that he would see to it that she got to Charter Cypress Hospital. I told him that I would immediately go to the hospital and fill out the necessary paperwork and would then call him back — or rather I would see — I’m sorry. That I would then see her on the following day and follow her while she was in the hospital.

Dr. Aurich then testified that he received a call from Nancy Mounce, a family friend, who was extremely worried for Leslie’s safety. He said that he went to the hospital to fill out the PEC. He recorded various assessments including “suicidal ideation and specific plan.” Dr. Au-rich testified there was nothing he could have learned from a visual examination that would have changed his mind about the necessity for hospitalization.

Regarding the need for an in-person, face-to-face examination, Dr. Aurich opined that the ethical principles set forth by the Louisiana Board of Examiners which incorporates the APA Ethical Principles of Psychologists do not require a face-to-face or a visual assessment. Dr. Aurieh testified that he met with Leslie the day after she was involuntary committed. He said that he recommended that she 114take an anti-depressant medication. He continued to work with Leslie while she was hospitalized, but he felt as though they were not making any progress. Dr. Aurieh noted that if Leslie continued to refuse medication, he would have “no choice” but to remove himself from her care. By August 21, 1995, Dr. Aurieh had withdrawn from the case, leaving Leslie in the hands of Drs. Landry and Ally.

Dr. Mark Warner, a clinical and neurological psychologist, testified that he trained law enforcement officers for twelve years, served for fourteen years on the medical ethics board, and the same amount of time training medical residents in dealing with patients with emotional problems. Dr. Warner testified that all four physicians who encountered Leslie following the commitment maintained the commitment. He said that every doctor maintained Dr. Aurich’s initial PEC until the coroner came in and rendered a Coroner’s Emergency Certificate, the next step in the process. Dr. Warner opined that the medical review panel failed to consider all of the sources and to document the basis for their opinion. He said in determining whether the standard of care has been breached the panel should have considered state law, licensing board regulations, ethical principles of the professional associations, case law, and finally, consensus of the community. He was of the opinion that the word “actual” did not require a face-to-face examination, but that the extent of the data one had, and the evaluation conducted to determine risk factors from an objective standpoint, were more important. Dr. Warner felt Dr. Aurich’s actions were reasonable and clinically sound based on his previous sessions with Leslie, the completed psychological testing, the phone calls, the events of the day. Dr. Warner opined that Dr. Aurieh met or exceeded the standard of care for psychologists in issuing the PEC.

Marilyn Crane testified that she has known Leslie since about 1980 and that their children attended school together. She also said that she has known Herbert 11ssince 1970 or so; they attended college together and Herbert’s first wife was her sorority sister. Crane’s husband has known Herbert since high school. Crane said that she and Leslie developed a close friendship by about 1990. Crane testified that she does not know Dr. Aurieh. Crane said that she assisted with some of the details of Trey’s funeral and that she had extensive conversations with Leslie the day of the funeral. She said that Leslie indicated that her “life was over,” “that she had nothing to live for,” and that “she wanted to be with her son.” Crane said that Leslie was generally “theatrical,” but her demeanor that day was “was very subdued and reserved and serious. And it worried me a lot.” Crane said she informed Herbert that she was concerned about Leslie. She said that Herbert then asked her to write down what Leslie had told her “so that they would have a clear idea of what had transpired.” Crane then read her handwritten note.

DISCUSSION

Dr. Aurich’s argument in favor of his JNOV was that there was no evidence presented to the jury that would allow them to conclude that Leslie would not have been hospitalized had Dr. Aurieh conducted an actual, face-to-face examination of her. We agree that all of the doctors found that based on the facts and circumstances known at the time, and after a face-to-face examination, an involuntary commitment would have been proper. Yet, that is not the standard. The jury heard testimony from several witnesses that an actual exam, according to local standards, requires a face-to-face meeting within seventy-two hours prior to the involuntary commitment. We find nothing unreasonable about this requirement and do not think that this standard should be excused based on the particular circumstances. The severity of committing someone against their will to a psychiatric institution should, at a minimum, require that the strictest of formalities 110be met. Clearly, the jury agreed, and it is not our function to second-guess their credibility assessments and reasonable conclusions.

There was some debate as to whether Dr. Aurich spoke with Leslie on the phone the evening of the commitment (he claimed he did, Leslie claims he did not). Even assuming that he did, there was still no error in the jury’s finding that he breached the standard of care by not conducting a face-to-face examination of Leslie.

The trial court noted at the hearing on the JNOV, “What troubles me more than anything else is the fact that Dr. Simo-neaux was on that medical review panel and then he was submitted as an expert in the plaintiffs case.” We find this reason for granting Dr. Aurich’s JNOV unimpressive. Members from the medical review panel regularly testify at trial.

Dr. Aurich argues that the initial commitment without a face-to-face examination was valid because the subsequent doctors maintained her commitment for nine days before releasing her. However, reasonable people could conclude from examining the evidence that, out of abundance of caution, and due to the assertions made by Dr. Aurich, further investigation into Leslie’s emotional state was required before it would be prudent to release her. It is not surprising that all of the subsequent doctors who “maintained” the commitment noted the suicidal ideation on their various forms given the circumstances and the information presented to them by Dr. Au-rich. The jury had evidence before it, including Dr. Landry’s testimony, that he would not have committed Leslie. The fact remains that reasonable people, including the medical review panel, could find that Dr. Aurich’s failure to conduct a face-to-face interview of Leslie within seventy-two hours before committing her was a breach of the standard of care requiring an “actual” examination of the patient.

117Having noted all of that, we address whether Leslie suffered any damages. It is preposterous to assume, as Dr. Aurich suggests, that being involuntarily committed into a mental institution on the day of your son’s funeral is a tort without damage. One does not need expert testimony to imagine what a traumatic effect being carted off by the police, being stripped naked, and undergoing a cavity search would have on a woman, not to mention the legal ramifications of having an involuntary commitment used against you in divorce and custody litigation. Clearly, burying a child is one of the worst things a person could endure, but that does not lessen the effect of being involuntarily committed the same day. On the contrary, it aggravates it. Any reasonable juror could have found that Leslie suffered damages due to the involuntary commitment.

The case before us presents classic credibility determinations and assessments of the evidence by the jury. A reasonable person, considering the evidence before the jury, could readily find that Dr. Aurich breached the standard of care and that Leslie suffered damages as a result. Accordingly, the trial court erred in granting a JNOV in favor of Dr. Aurich.

MOTION FOR NEW TRIAL

In this assignment of error, Leslie argues that the trial court erred in conditionally granting a motion for new trial in the event we find that JNOV was not warranted. Louisiana Code of Civil Procedure Article 1972(1) provides that a new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” We review the trial court’s grant of a motion for new trial using the abuse of discretion standard. Martin v. Heritage Manor S. Nursing Home, 00-1023 (La.4/3/01), 784 So.2d 627. The trial court has wide discretion in granting a new trial. Nevertheless,

|1sThe fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Gibson v. Bossier City General Hospital, et al., supra. [594 So.2d 1332 (La.App. 2 Cir.1991)] See also Engolia v. Allain, 625 So.2d 723 (La.App. 1 Cir.1993). (Emphasis added.)

Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 93.

As part of its consideration of whether to grant a new trial, “the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness.” Joseph v. Broussard Rice Mill, Inc., 00-628, pp. 14-15 (La.10/30/00), 772 So.2d 94, 104. As an appellate court “[W]e are faced with the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial.” Davis, 774 So.2d at 93-94. “The scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial court is left with a breadth of discretion which varies with the facts and events of each case.” Id. at 94.

Based on our review of the evidence, the jury’s finding that Dr. Aurich breached the standard of care was not clearly contrary to the law and evidence. Thus, the trial court abused its discretion in conditionally granting the motion for a new trial. We, therefore, reverse the trial court’s grant of a conditional new trial and reinstate the jury’s verdict awarding Leslie $65,000 in damages.

| ^CONCLUSION

We reverse the trial court’s grant of a judgment notwithstanding the verdict; reverse the trial court’s conditional grant of a motion for new trial; and render judgment reinstating the jury verdict awarding the plaintiff-appellant, Leslie Schilling, $65,000 in damages. All costs of this appeal are assessed against the defendant-appellee, Dr. Lynn W. Aurich.

JNOY REVERSED; CONDITIONAL GRANT OF MOTION FOR NEW TRIAL REVERSED; JURY VERDICT REINSTATED.

      . Leslie initially filed suit against Dr. Aurich and Charter Cypress Behavioral Health System, L.L.C. in August 1996 (docket number 96-3899). In November 1996, Leslie voluntarily dismissed the claim against Dr. Aurich in order that her claims could be brought before the medical review panel. The medical review panel convened and made a finding adverse to Dr. Aurich. The current suit followed (docket number 99-4357). The two suits were initially consolidated by the trial court in November 1999. However, on appeal, docket number 96-3899 (CA 11-1324) was dismissed.

      . The Minnesota Multiphasic Personality Inventory is a clinical assessment test used by mental health professionals.


text:
    Jason L. MOURET, et al. v. BELMONT HOMES, INC., et al.
    No. 12-55.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2012.

      M. Terrance Hoychick, Attorney at Law, Eunice, LA, for Plaintiffs/Appellants, Jason L. Mouret, Jessica Mouret.
    Steven J. Bienvenu, Falgoust, Caviness & Bienvenu, L.L.P., Opelousas, LA, for Defendant/Appellee, Jim Tatman’s Mobile Homes, Inc.
    Victor R. Loraso, III, Carleton Loraso, LLC, Baton Rouge, LA, for Defendant/Ap-pellee, Cavalier Home Builders, LLC.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| iPlaintiffs appeal from a judgment denying their motion to vacate decision of arbitrator and dismiss arbitration. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 23, 2008, Jason L. Mouret and Jessica Mouret, individually and on behalf of their minor children, Amelia Mouret and Kadyn Mouret (collectively referred to as “plaintiffs”), filed a petition for redhibition against Belmont Homes, Inc. (Belmont), a division of Cavalier Enterprises, Inc. (Cavalier), and Jim Tatman’s Mobile Homes, Inc. (Tatman’s). Plaintiffs alleged that Jason had purchased a mobile home manufactured by Belmont from Tatman’s on August 23, 2002. When plaintiffs refinanced the mobile home in July of 2007 in order to construct a carport, their contractor informed them that the home’s roof decking was rotten. Plaintiffs contacted Tatman’s about the roof problems, but they were advised that it could not help them and that they needed to get in touch with Belmont, the home’s manufacturer. Upon contacting Cavalier, plaintiffs were told that only the roofing shingles were warranted and that the roof itself was the responsibility of the homeowner. Plaintiffs alleged that their home was “defective as manufactured and unsuitable for its intended purpose.” They sought rescission of the sale; return of the purchase price, all expenses, and finance charges; damages; and attorney fees.

In response to plaintiffs’ petition, Cavalier filed a dilatory exception of prematurity with an incorporated motion to stay the proceedings based upon a Dispute Resolution and Disclosure Agreement (Arbitration Agreement) that Jason ^signed on August 8, 2002. Cavalier sought a stay of the proceedings and referral of the dispute to binding arbitration.

On January 8, 2009, counsel for plaintiffs and for Cavalier filed, and the trial court signed, a Consent Order Staying Litigation (Consent Order). The Consent Order provided that they had agreed to submit the matter to alternative dispute resolution (ADR) in accordance with the Arbitration Agreement and requested that the matter be stayed pending a final decision through the ADR process. The parties submitted to mediation with the Better Business Bureau in September 2009. When they were unable to settle their dispute pursuant to mediation, plaintiffs filed a demand for arbitration with the American Arbitration Association (AAA) in February 2010. The arbitrator heard evidence over a five-day period and visited plaintiffs’ mobile home before rendering a decision on June 7, 2011.

On July 2, 2011, plaintiffs returned to the trial court with a motion to vacate decision of the arbitrator and dismiss the arbitration. Cavalier opposed the motion. Following a hearing, the trial court denied plaintiffs’ motion to vacate and dismiss at their costs. Written judgment to that effect was signed on December 21, 2011.

Plaintiffs appeal, contending that the trial court erred: 1) in finding a valid Arbitration Agreement; 2) in finding insufficient grounds to vacate the decision of the arbitrator; and 8) in not ordering a narrative of facts pursuant to La. Code Civ.P. art. 2131 as requested by plaintiffs.

DISCUSSION

Validity of Arbitration Agreement

Plaintiffs contend that the Arbitration Agreement was invalid because no consideration was given for it. In support of their contention, plaintiffs rely on Quebedeaux v. Sunshine Homes Inc., 06-349 (La.App. 3 Cir. 10/11/06), 941 So.2d 162, units denied, 06-2698, 06-2772 (La.1/8/07), 948 So.2d 131, 134; Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, writ denied, 05-862 (La.6/3/05), 903 So.2d 458; and Rodriguez v. Ed’s Mobile Homes of Bossier City, La., 04-1082 (La.App. 3 Cir. 12/8/04), 889 So.2d 461, writ denied, 05-88 (La.3/18/05), 896 So.2d 1010. They point out that the Arbitration Agreement was not included in the purchase agreement that Jason signed on June 28, 2002. Instead, the Arbitration Agreement was one of three documents that Jason signed on August 8, 2002. Plaintiffs further submit that Jason did not read the Arbitration Agreement at the time he signed it, and no one explained it to him.

Plaintiffs could have objected to the validity of the Arbitration Agreement when Cavalier filed its exception of prematurity and motion to stay pending arbitration. Rather than oppose the exception and motion, plaintiffs, through their attorney of record in this matter, entered into a Consent Order agreeing to participate in the ADR process outlined in the Arbitration Agreement that Jason admittedly signed on August 8, 2002. In addition, when their attempt at mediation failed, it was plaintiffs who, again through their attorney of record, filed a demand for binding arbitration with the AAA. By doing so, they waived their right to challenge the validity of the Arbitration Agreement. The cases cited by plaintiffs are distinguishable because none of the parties seeking to invalidate the arbitration agreements that they had signed consented to and voluntarily participated in arbitration before challenging the validity of those agreements in court. Plaintiffs’ first assignment of error lacks merit.

Should the Arbitrator’s Decision Have Been Vacated?

Louisiana Revised Statutes 9:4210 lists the grounds for vacating an arbitration award. It provides, in pertinent part:

|4In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

A litigant may also “attack the arbitration award on the basis of ‘a manifest disregard of the law,’ a judicially created ground for vacating an arbitration award.” Webb v. Massiha, 08-226, p. 4 (La.App. 5 Cir. 9/30/08), 993 So.2d 345, 347, writs denied, 08-2834, 08-2845 (La.2/6/09), 999 So.2d 780, 781.

Arbitration is favored in Louisiana. Furthermore, an arbitration award is res judicata. Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed, and the burden of proof is on the party attacking the award. Absent the existence of any of the statutory or jurisprudential grounds for vacating ... an arbitration award, a reviewing court is prohibited from reviewing the merits of the arbitration judge’s decision. Further, a reviewing court may not substitute its own conclusions for that of the arbitration judge.

Id. at 4-5, 993 So.2d 845 (citations omitted).

“A district court’s review of an arbitration award is extraordinarily narrow.” FIA Card Servs., N.A. v. Smith, 44,923, p. 7 (La.App. 2 Cir. 12/22/09), 27 So.3d 1100, 1106, writ denied, 10-385 (La.4/23/10), 34 So.3d 265. “Because of the strong public policy favoring arbitration, 'arbitration awards are presumed to be valid. Errors of fact or law do not invalidate a fair and honest arbitration award.” Nat'l Tea Co. v. Richmond, 548 So.2d 930, 932 (La.1989).

| .^Plaintiffs contend that the arbitrator “clearly committed manifest error of the law” and “imperfectly used his power to apply the law to the facts” in that he essentially, found that their mobile home’s roof contained a redhibitory defect that caused it to be a “disaster,” yet he failed to award plaintiffs the remedy of rescission even though Jason testified that he would not have bought the mobile home had he known of the problems with its roof. Plaintiffs further submit that while arbitration is favored in the law, their experience offered none of the usual benefits to be gained from the typical arbitration process. Instead, the arbitration that plaintiffs participated in was expensive and time consuming, and only one AAA arbitrator was qualified to hear their dispute, thus, offering them no real choice of suitable arbitrators.

The arbitrator in this matter rendered his decision in a very detailed four-page document issued on June 7, 2011. After painstakingly discussing the alleged and actual problems that plaintiffs claimed to have existed with the mobile homes’ roof, siding, and walls, including their claims that their home had negative pressure and moisture intrusion, the arbitrator awarded plaintiffs a fifteen percent reduction in the purchase price or $8,843.85 ($58,959.00 x 15%). Plaintiffs were awarded one-third of their experts’ bill, or $10,991.01, as an expert fee. Considering the substantial effort, time, and expenses incurred by plaintiffs’ counsel in pursuing |fitheir claim and the ultimate result obtained, the arbitrator awarded plaintiffs an attorney fee in the amount of $10,000.00. Because he determined that there was no evidence that Tatman’s was guilty of any fault, the arbitrator cast only Cavalier in judgment. However, he granted Cavalier a credit in the amount of $2,307.79 for reimbursement of its expenses in compelling the arbitration. Finally, the arbitrator cast Cavalier for the entire cost of his compensation and expenses as well as for AAA’s administrative fees, resulting in plaintiffs being owed reimbursement of $6,567.90.

Plaintiffs complain that the arbitration process was very time consuming; however, they fail to mention that much of that delay was caused by the four and one-half month lapse between the unsuccessful mediation and their request for arbitration and by the untimely death of one of plaintiffs’ relatives which resulted in another delay of approximately five and one-half months. Plaintiffs’ claim that there was only one arbitrator qualified to hear their dispute is not borne out by the record. To the contrary, Exhibit C, attached to Cavalier’s opposition to plaintiffs’ motion to vacate arbitration, indicates that AAA supplied the parties with the names of five potential arbitrators and that Charles Min-yard was ultimately appointed without objection. With regard to the costs of arbitration, the bulk of the cost consisted of Mr. Minyard’s fees, and plaintiffs were told in advance the amount that he charged per hour. Finally, after considering all the evidence submitted to him, the arbitrator rendered a “mutual, final, and definite award.” See La.R.S. 9:4210(D).

In light of the conflicting evidence presented to him, we find that the arbitrator rendered a “fair and honest” award. See Richmond, 548 So.2d at 932. The law on redhibition provides that a reduction in the purchase price is a valid remedy to plaintiffs who succeed in proving a redhibitory defect. While plaintiffs 17are not satisfied with the outcome of the arbitration that they voluntarily participated in, they failed to allege and prove any of the statutory or jurisprudential grounds for vacating the arbitration award. Given the extremely narrow scope of review afforded a trial court when reviewing an arbitration award, we cannot say that the trial court erred in refusing to vacate the arbitration award rendered in this matter. Plaintiffs’ second assignment of error lacks merit.

Narrative of Facts

Louisiana Code of Civil Procedure Article 2131 provides:

If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.

“It is not the duty of the trial court to furnish a narrative of facts until or unless formally requested to do so by appellant who must first demonstrate the inability of counsel to agree upon such a statement as required by LSA-C.C.P. Articles 2130 and 2131.” Webre v. Heard, 207 So.2d 880, 882 (La.App. 1 Cir.1968). Plaintiffs have not alleged that they formally requested that the trial court furnish them with a narrative of facts after their counsel and counsel for defendants were unable to agree upon such a statement of facts. In addition, plaintiffs did not offer any jurisprudence in support of their assertion that Article 2131 applies in the context of a trial court ruling on a party’s motion to affirm or vacate an arbitration award. Accordingly, we find no error in the trial court’s failure to furnish a narrative of facts pursuant to La.Code Civ.P. art. 2131. Plaintiffs’ third assignment' of error lacks merit.

^DECREE

For the foregoing reasons, the judgment of the trial court denying plaintiffs’ motion to vacate the decision of the arbitrator and dismiss arbitration is affirmed in its entirety. Plaintiffs are cast with all costs of this appeal.

AFFIRMED.

      . Plaintiffs alleged that Jason and Kadyn suffered from allergy and respiratory symptoms, respectively, which were related to or aggravated by the moisture and mold in the walls of their home. Plaintiffs sought damages for their past, present, and future medical expenses and physical and emotional pain and suffering; inconvenience and mental anguish; loss of consortium, society, and enjoyment of life; and fear of disease.

      . The hearings took place on August 18-19, 2010, and March 15-17, 2011.

      . Louisiana Civil Code Article 2520 entitled "Warranty against redhibitory defects” provides:
      The seller warrants the buyer against red-hibitory defects, or vices, in the thing sold.
      A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
      A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that1 it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.