text:
    STATE of Louisiana v. Frederick LEDAY.
    Nos. 11-KA-1022, 12-KA-54.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

l2Pefendant, Frederick Leday, was convicted of armed robbery in violation of LSA-R.S. 14:64, and sentenced as a second felony offender to 100 years at hard labor. Defendant appeals from his conviction and from his multiple offender adjudication and sentence.

The following was adduced at trial. At approximately 8:00 p.m. on December 22, 2009, Mr. Henry Courteaux, the manager of the Evergreen Plaza Inn on Veterans Highway in Metairie, was watching television behind the front desk. An individual walked in and requested the rate of the rooms and Mr. Courteaux recognized the man as a frequent visitor of the inn. He had been told by one of his employees that the individual had stayed there recently and now wanted a discounted rate, which Mr. Courteaux offered him. After receiving the offer, the individual then appeared to proceed toward the exit, saying he was going to talk with a companion outside. Mr. Courteaux thought the man had exited, but seconds later he observed him pass behind a fish tank in the lobby and come through a side door that accessed the area behind the front desk. The man then put something “sharp and cold” against the manager’s neck, demanded he open the cash register, and give him all the cash. Mr. Courteaux complied, giving the robber $170.00. The robber then ordered Mr. Courteaux to lie face down on the floor, which he Robeyed; and when he stood up moments later, the robber was gone. Mr. Courteaux then called 911.

Deputy Ernest Pierre of the Jefferson Parish Sheriff’s Department responded to the call and arrived on the scene within five minutes. Upon his arrival, Mr. Cour-teaux informed the deputy that he had been robbed at knifepoint.

Ms. Patricia Hills, an employee of the inn, testified that defendant, who was employed across the street at a car wash, often came to the inn to get breakfast, and that she had seen defendant with a knife a few days before the robbery. Ms. Gladiola Williams, also an employee of the inn, was an acquaintance of defendant as a result of his frequenting the inn. She testified that she rented a room to defendant two days before the robbery, on December 19, 2009.

The inn is equipped with seven surveillance cameras, some of which captured the robbery of Mr. Courteaux. Both Ms. Hills and Ms. Williams reviewed the surveillance footage. Ms. Hills testified that she saw defendant put a knife to Mr. Cour-teaux’s neck. Ms. Williams testified that the footage showed defendant coming into the inn on the morning of the robbery and that although the footage of the robbery was dark, making it difficult to make out the robber’s face, she determined that the robber possessed defendant’s features.

On December 23, 2009, the day after the robbery, both Ms. Hills and Ms. Williams identified defendant from photographic lineups. Ms. Hills identified defendant from the lineup as the robber in the video. Ms. Williams identified defendant from the lineup as the person she rented the room to on December 19 and as the person in the surveillance footage entering the inn on the morning of the robbery. In addition, at trial, Mr. Courteaux testified that he was sure that it was defendant who had robbed him.

|4Pefendant was arrested on December 26, 2009. He was advised of his rights, indicated he understood them, and executed a waiver thereof. He then gave a statement. Defendant admitted that he approached Mr. Courteaux from behind, placed his arm around his neck, demanded he open the cash register drawer and remove the money. However, defendant stressed that he did not use a weapon during the robbery.

In his first assignment of error, defendant argues that the trial court erred in admitting evidence of other crimes. Specifically, defendant contends that evidence of a prior first degree robbery conviction should have been excluded as inadmissible other crimes evidence since the evidence was more prejudicial than probative. According to the State’s “Notice of Intent to Use Evidence of Other Crimes,” in August 2005, defendant pled guilty to first degree robbery in violation of LSA-R.S. 14:64.1 for committing theft of U.S. currency belonging to a bank by use of force or intimidation and by leading the victim to reasonably believe he was armed with a dangerous weapon. In its notice of intent, the State asserted that the purpose of introducing the evidence was to show defendant’s knowledge, intent, guilty knowledge, system, and motive.

The trial court found that the evidence of Defendant’s prior conviction was admissible, noting that “first degree robbery is a lesser and includeable [sic] offense within armed robbery, the elements being similar if not identical, certainly not identical.

At trial, evidence of defendant’s prior conviction was admitted. In rebuttal closing argument, the prosecutor argued the relevance of this evidence:

[Defendant] talks a lot about the evidence of other crimes, the, what we call 404(B), evidence of other crimes, his pri- or conviction. He says that he doesn’t want you to consider it at all and that we’re just showing it to you to make him a bad man.
[^That’s not why we put that evidence in. You heard Mr. Leday’s statement, you heard him over and over again say that he didn’t have a knife and he didn’t make them think he had a knife, you heard it numerous times, I didn’t have a knife and I never made anybody think I had a knife.
Why do you think he did that, he’s been there before, he’s had a prior robbery, he knows what he needs to say to the police to mitigate what he did.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. State v. Williams, 09-48, p. 9 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 363, writ denied, 09-2565 (La.5/7/10), 34 So.3d 860. However, such evidence may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule when it tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165.

The statutory exceptions, as provided in LSA-C.E. art. 404(B)(1), are “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” In order for other crimes evidence to be admitted under LSA-C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Cotton, 07-782, p. 12 (La.App. 5 Cir. 2/19/08), 980 So.2d 34, 42, writ denied, 08-0603 (La.10/3/08), 992 So.2d 1010. Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. Id. The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Id.

Clearly, evidence of other crimes or bad acts is prejudicial since all evidence that tends to make it more probable than not that an individual committed a | (¡criminal offense is necessarily prejudicial. Cotton, 07-782 at 12-13, 980 So.2d at 42. The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. Id., 07-782 at 13, 980 So.2d at 42. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art. 404(B)(1) will not be disturbed. Id.

In the present case, the State sought to introduce the other crimes evidence on five grounds: “knowledge, intent, guilty knowledge, system, and motive.”

Turning first to knowledge, use of other crimes evidence may be used to prove knowledge when proof of such knowledge is required to establish guilt. State v. Silguero, 608 So.2d 627, 629 (La.1992). “In this sense, ‘guilty knowledge’ is used to negate an innocent explanation for an undoubtedly unlawful act, as possibly done unknowingly.” Id. (citation omitted). But the prosecution cannot introduce evidence of other crimes under the guise of proving “guilty knowledge” when it is not a genuine matter in issue. Id., 608 So.2d at 629-30. In this instant case, defendant held a knife to the victim’s neck and demanded he empty the cash register. This action was undoubtedly unlawful that could not have possibly been committed unknowingly. Therefore, guilty knowledge was not necessary to negate an innocent explanation for defendant’s action. State v. Harrison, 291 So.2d 782, 784 (La.1974).

Next, intent was not a real and genuine contested issue in the instant case, since armed robbery is a general intent, not specific intent, crime. Although defendant disputes that he used a weapon to commit the robbery, the testimony of the victim and Ms. Hills, and a review of the surveillance footage indicate that | .¡defendant was armed with a dangerous weapon when he committed the robbery. Defendant’s intent was furnished by his acts and was not a real and genuine contested issue. See State v. Smith, 07-2028, p. 10 (La.10/20/09), 23 So.3d 291, 297.

Regarding the introduction of other crimes evidence to show system, or modus operandi, Louisiana jurisprudence has long sanctioned the use of other crimes evidence to show modus operandi as it bears on the question of identity when the prior crime is so distinctively similar to the one charged, especially in terms of time, place and manner of commission, that one may reasonably infer that the same person is the perpetrator in both instances. State v. Merritt, 04-204, pp. 11-12 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1086, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228. “The modus operandi employed by the defendant in both the charged and uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person.” Id. (citation omitted). Here, the instant offense is similar to the previous one in that it was a robbery involving the use of force or intimidation in which defendant obtained money. However, these two crimes are not so peculiarly distinctive that one must logically say they are the work of the same person.

Lastly, evidence of other crimes may be admissible if the evidence is relevant to show motive, i.e., to show that the defendant had a reason to commit the crime with which he is charged. Cotton, 07-782 at 13, 980 So.2d at 42. The general motive of gaining wealth, which could be the underlying basis for almost any crime, is not sufficient to establish a motive. See State v. Sutfield, 354 So.2d 1334, 1337 (La.1978); Merritt, supra, 04-204 at 14, 877 So.2d at 1087. In this case, the evidence seems to indicate that defendant’s motives in committing both robberies were to gain wealth, which the supreme court has dismissed as a non-|peculiars reason to commit a crime. Further, it does not appear that the bank robbery in 1997 indicated a motive for defendant to commit a robbery against the motel clerk in 2009.

In view of the foregoing, we believe that the trial court abused its discretion in admitting the evidence of defendant’s prior offense. However, the introduction of inadmissible other crimes evidence is subject to a harmless error analysis. State v. Santos, 09-789, p. 14 (La.App. 5 Cir. 4/13/10), 40 So.3d 167, 175, writ denied, 10-1080 (La.11/24/10), 50 So.3d 828 (citations omitted). An error is harmless when the verdict is surely unattributable to the error. Id.

In the instant case, three witnesses identified defendant as the perpetrator. Both the victim and one witness testified that defendant was armed during the robbery. Surveillance footage reveals that defendant was the perpetrator and was armed. And even defendant himself admitted that he robbed Mr. Courteaux, though he claimed he was unarmed. In light of this evidence, the guilty verdict was surely unattributable to the other crimes evidence. Accordingly, we conclude that the trial court erred in admitting the evidence, but that this error was harmless, not requiring corrective action. This allegation of error lacks merit.

In his second assignment of error, defendant argues that his enhanced sentence of 100 years at hard labor is excessive.

Appellate review of sentences for exces-siveness is a two-pronged inquiry. State v. Lobato, 603 So.2d 739, 751 (La.1992). First, the record must show that the sentencing court complied with LSA-C.Cr.P. art. 894.1. Id. If this prong is met, a constitutional inquiry as to the excessiveness of the sentence follows. Id.

This Court has held that the failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Dupre, |fl03— 356 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509; State v. Hester, 99-426, p. 10 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied by State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342. Although defendant orally objected to the trial court’s finding him a fourth felony offender and to his corresponding enhanced sentence, the record reflects that defendant did not file a motion to reconsider sentence. Accordingly, defendant is only entitled to a review for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the | msentence imposed for similar crimes by the same court and other courts. Pearson, 07-332 at 15-16, 975 So.2d at 656.

Before considering these three factors, we first find that defendant’s sentence is within the statutory limits. At the time of the offense, LSA-R.S. 15:529.1(A)(1) provided in pertinent part:

(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

LSA-R.S. 14:64(B), at the time of the offense, provided: “Whoever commits the crime of armed robbery shall be imprisoned for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.”

Accordingly, since the offense of armed robbery is punishable by imprisonment for a term less than natural life, LSA-R.S. 15:529.1(A)(l)(a) dictates a sentencing range of 49 ½ years to 198 years for a second felony offender. Defendant was sentenced to 100 years.

Now, we direct our attention to the first of the three factors considered in reviewing the trial court’s sentencing discretion — the nature of the crime. This Court has found that if the trial judge who imposed sentence on a defendant’s underlying conviction is the same judge who imposes the enhanced sentence in a multiple offender adjudication, that judge is deemed to be aware of the nature of the crime for the underlying conviction. State v. Woods, 09-399, pp. 28-29 (LajApP-n 5 Cir. 3/9/10), 38 So.3d 391, 412 writ denied, 10-0784 (La.10/29/10), 48 So.3d 1096. In the instant case, the record reflects that the trial judge who presided over defendant’s conviction and sentencing on his underlying offense was the same judge who presided over defendant’s adjudication and sentencing as a multiple offender, and thus was aware that defendant robbed an elderly motel clerk at knifepoint.

Next, regarding the nature and background of the offender, defendant had been previously convicted of a crime of violence, first degree robbery. See LSA-R.S. 14:2(B)(22). Armed robbery is also defined as a crime of violence. See LSA-R.S. 14:2(B)(21). Therefore, defendant’s commission of these two violent crimes, similar in their method of execution and severity, indicates defendant’s propensity for violent recidivism.

Lastly, we consider the sentence imposed for similar crimes by the same court and other courts. This Court has held that repeat offenders are to receive serious sentences. State v. Carter, 96-358 (La.App. 5 Cir. 11/26/96), 685 So.2d 346, 353.

Similarly, the Louisiana Supreme Court has noted that LSA-R.S. 15:529.1 treats the defendant with multiple felony convictions “as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 677.

Reviewing similar cases, we find that defendant’s sentence is supported by comparison. Compare State v. Bruce, 10-121, pp. 15-16 (La.App. 5 Cir. 11/9/10), 54 So.3d 87, 96, writ denied, 10-2756 (La.4/29/11), 62 So.3d 109, (the defendant was convicted of armed robbery, was subsequently adjudicated a second felony offender, and received an enhanced sentence of 100 years at hard labor with the first 99 years to be served without benefit of probation, parole, or suspension of 112sentence, and the remaining one year to be served without benefit of probation or suspension of sentence); State v. Fuller, 07-319, pp. 9-10 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 51, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282, (defendant was sentenced to 198 years for armed robbery as a second felony offender); State v. Smith, 04-340, pp. 14-15 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 290-91, (defendant’s 198-year sentence for armed robbery as a second felony offender upheld).

Accordingly, we find that defendant’s 100-year sentence for armed robbery as a second felony offender was not excessive, especially in consideration of the fact that defendant placed the victim at risk of death or great bodily harm when he held a knife to the victim’s neck. This allegation is without merit.

Defendant requests an error patent review. We have reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which require corrective action.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . On July 13, 2011, Mr. Courteaux testified that he was 70 years old.

      . Mr. Courteaux testified that he did not know what was placed against his neck because he did not see it, but it felt "sharp and cold” and he thought it was a knife.

      . Although the State in its notice of intent lists both "knowledge” and "guilty knowledge” as separate reasons for introducing the other crimes evidence, LSA-C.E. art. 404(B)(1) lists only “knowledge."

      . The Louisiana Supreme Court has held a defendant should be sentenced pursuant to the version of LSA-R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 03-0924 (La.4/14/04), 871 So.2d 317, 326.

      . It is well settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge. EDWARDS, C.J.,

license: Public Domain

text:
    Kelle COWARD, Individually and on Behalf of her Minor Child Thomas Bolduc v. Guy G. CRESSON, D.D.S. and J. Skelly Kreller, D.D.S.
    No. 12-CA-33.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      James A. Marchand, Jr., Elisia S. Tip-ton, Frank E. St. Philip, Attorneys at Law, Covington, LA, for Plaintiff/Appellant.
    Guice A. Giambrone, III, Kelly M. Brian, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2The plain tiffteppellant, Ms. Kelle Coward, appeals from a trial court judgment granting the defendant/appellee’s, Dr. Guy Cresson, motion for summary judgment. For the following reasons, we affirm the trial court judgment.

Factual and Procedural Background

Ms. Coward recited the facts as follows in her affidavit.

In mid-June of 2003, Ms. Coward stated that she was experiencing pain and swelling on the right side of her face. She contacted her cousin, a general dentist in Arkansas, and asked him to prescribe an antibiotic for her. He agreed to do so, only if she saw a dentist immediately. Ms. Coward began to take the Penicillin her cousin prescribed for her, as well as her mother’s Vicodin.

Ms. Coward stated that she visited Dr. Guy Cresson — who was recommended by a colleague — on June 23, 2003, due to the pain and swelling on the right side of her face. Ms. Coward stated that Dr. Cresson informed her that | Sshe had a broken root canal which caused an abscessed tooth and suggested she continue the antibiotic. She further stated that he felt repairing the tooth was unnecessary because all the teeth would have to be extracted for new dentures. She returned to Dr. Cresson’s office the next day to have some dental work completed, but still complained of pain and swelling. She stated that Dr. Cresson prescribed Amoxicillin 500 mg, because the Penicillin was not working and then advised her to see Dr. J. Skelly Krel-ler, an oral surgeon, for root tip removal.

Dr. Cresson took dental impressions for top dentures on July 7, 2003. Ms. Coward stated that she informed Dr. Cresson that she was still experiencing pain and swelling on her right side, adding that it had spread to her right eye and forehead area. She stated that Dr. Cresson informed her that she was experiencing those symptoms because the tissues in the area by her mouth were close together. She stated that Dr. Cresson told her not to worry, adding that she would feel much better once the oral surgery was completed and the infection and swelling were gone. She returned to Dr. Cresson’s office on July 15, 2003, to have more impressions taken. She stated that she was still in pain and requested to see an ENT, because she thought something else might be wrong. Ms. Coward stated, however, that Dr. Cresson informed her that an ENT was unnecessary.

Ms. Coward visited Dr. Kreller, the oral surgeon, on July 17, 2003, for an evaluation. During the visit, Ms. Coward informed him about the pain and swelling in her face. Ms. Coward stated that Dr.

Kreller acknowledged the pain and swelling and told her that it would leave once the teeth were extracted. She returned to Dr. Cresson’s office on July 22 and 31, 2003 for more impressions. She indicated that she informed him again that the pain had spread to her right eye and forehead, adding that her face was still swollen.

|4Pr. Kreller extracted Ms. Coward’s upper teeth on August 1, 2003. The denture was immediately fitted, and the swelling went down — only to return later. Ms. Coward returned to Dr. Kreller’s office on August 8, 2003, at which time he drained the area of the swelling in her face. He informed her to use moist heat, a saline rinse and to keep the denture out of her mouth. She added that he also told her that it would take a while for the swelling to go down because the area had been inflamed for so long.

Ms. Coward stated that she grew more concerned about the pain and swelling and visited Dr. Cresson’s office on August 15, 2003. Because he was on vacation, she saw his associate, Dr. Miller, who sent her back to Dr. Kreller. Dr. Kreller drained the swollen area again. The swelling went away but returned. Ms. Coward contacted Dr. Kreller’s office on September 3, 2003, and informed him that the swelling had returned and that she wanted to see an ENT. Dr. Kreller informed her that an ENT was unnecessary but referred her to another oral surgeon, Dr. Anthony Indovi-na, for a “fresh” opinion. Ms. Coward stated that Dr. Indovina dug into the swollen area and removed something that resembled cottage cheese. He then referred her to Dr. John Kimble, an ENT, that same day. Dr. Kimble biopsied the area and determined that Ms. Coward had a malignant tumor in her right sinus cavity, which had spread into the eye orbit and muscles behind her eye. Dr. Kimble scheduled Ms. Coward for exploratory surgery on September 5, 2003. He then referred her to Dr. Robert Miller of Tulane Medical Center where she underwent several rounds of chemotherapy to shrink the tumor. The tumor’s response was not sufficient, and she eventually had surgery on November 28, 2003, wherein Dr. Miller removed her right eye, right sinus cavity, and right upper pallet.

|sMs. Coward filed a Petition for Damages on March 29, 2006, against Drs. Guy G. Cresson and J. Skelly Kreller, alleging they were negligent in their treatment. Dr. Cresson answered the petition on April 25, 2006, and moved for summary judgment on August 4, 2011.

Drs. Richard Irwin, Andrew Schneider, and John Rainey were deposed for the case. Dr. Irwin testified about dentists’ standard of care, while Drs. Schneider and Rainey rendered opinions on causation.

Dr. Richard Irwin, a periodontist, testified that “[t]he standard of care requires that a dentist identify and diagnose all the dental pathology that a patient presents with when the dentist does an examination.” He opined that Dr. Cresson failed to meet the standard by not documenting the pathology for each individual tooth and by not correlating Ms. Coward’s symptoms and complaints to her dental condition. Dr. Irwin added that Dr. Cresson was negligent in failing to document why he prescribed Penicillin for Ms. Coward, adding that Dr. Cresson should have attempted to determine the source of Ms. Coward’s pain rather than keep her on antibiotics. Dr. Irwin further opined that Dr. Cresson breached the standard of care by not referring Ms. Coward to a specialist on June 25th, once the full examination was completed without identifying the source of Ms. Coward’s pain.

Dr. Andrew Schneider, a specialist in medical oncology, testified that squamous carcinoma of the maxillary sinus was rare, but of all sinus cancers, it was the most common. He noted that the cancer is characterized by four stages. He stated that there is no bone destruction in Stage I while Stage II is characterized with bone erosion or destruction. Stage III is characterized by destruction of the bone of the posterior wall of the maxillary sinus, the subcutaneous tissue, the floor |fiof the medial wall of the orbit, the pterygoid fossa, or the ethmoid sinuses. Finally, he noted that Stage IVA involves destruction of the anterior orbital contents, skin of the cheek, pterygoid plates, infratemporal fossa, cri-briform plate, or sphenoid/frontal sinuses.

Dr. Schneider opined that Ms. Coward’s cancer was in the first stage when she presented to Dr. Coward in June of 2003 and that the tumor had likely been present four to 12 weeks before that time. He opined that Ms. Coward’s condition would have been treatable with surgery in June of 2003, adding that she would not have needed chemoradiation nor lost her eye. Dr. Schneider added that Ms. Coward’s cancer remained in Stage I on August 15 because there was no evidence of bone destruction, adding that the eye was still salvageable at that time. He noted that the tumor was rapidly growing because it was poorly-differentiated and because Ms. Coward had a dramatic, rapid response to chemotherapy, explaining that tumors that respond well to chemotherapy are rapidly diving tumors. Although Dr. Schneider was unable to determine when Ms. Coward’s cancer progressed to Stage II, he opined that she was either a Stage III or IVA when Dr. Indovina diagnosed her in September, noting that her eye was not salvageable at that time.

Dr. John Rainey, the other medical oncologist, had a different opinion regarding the stage of Ms. Coward’s cancer on June 23rd. Utilizing the Staging guidelines, as well as Ms. Coward’s medical records, Dr. Rainey opined that Ms. Coward was at least a Stage III, possibly a Stage IV, when she presented to Dr. Cresson on June 23, 2003. He based his opinion on several factors. First, he noted that Ms. Coward’s symptoms in September — at the time of her diagnosis — were the same as the symptoms she was experiencing in June and July. Secondly, he 17noted that this particular tumor is slow growing and typically does not change stages in one to two months. Rather, he opined that most solid tumors take from six months to a year to change from one stage to the next. Finally, he noted that most maxillary sinus cancers are Stage III when they are diagnosed. He opined that when Ms. Coward presented to Dr. Cresson in June, her eye was unsalvageable and added that if she had been diagnosed in June by Dr. Cres-son or in July by Dr. Kreller, her outcome would not have been any different.

The trial court heard Dr. Cresson’s motion for summary judgment on September 16, 2011 and issued its judgment on October 5, 2011, wherein it granted the motion and dismissed Dr. Cresson with prejudice.

Assignments of Error

Ms. Coward assigns two errors in the trial court’s ruling.

1. The trial court erred in finding that “under neither causation expert’s [sic] scenario did Ms. Coward’s cancer progress in stage during the time she was under the care of Dr. Cresson.”
2. The trial court erred in not recognizing that Dr. Cresson’s failure to diagnose the cancer and refer her to an appropriate specialist constituted a loss of a chance for a better outcome.

Discussion

We apply the de novo standard of review in reviewing a district court judgment on a motion for summary judgment. Robinson v. Jefferson Parish Sch. Bd„ 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975 (citation omitted). We use “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Id.

| sThe summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id. La. C.C.P. art. 966(B) provides that summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C. P. art. 966(C)(1) further adds that “after adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.”

Ordinarily, the movant bears the burden of proof on a motion for summary judgment. La.C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Robinson, supra, at 1043, citing, Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 776-77. Thereafter, if the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id. In medical malpractice cases, however, the plaintiff bears the initial burden of showing whether medical malpractice was committed.

La. R.S. 9:2794(A) provides: “a medical malpractice plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached the standard of care; and (3) that there was a causal relationship between the breach and the resulting injury.” See Djorghi v. Glass, 09-461, p. 2 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 998. Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care and breach of that standard of 18care. Id. (citation omitted). Thus, the defendant is only required to point out that “there is an absence of factual support for one or more elements essential to the plaintiffs claim to support that there is no genuine issue of material fact.” Id.

In this case, the two causation experts, Drs. Schneider and Rainey, offered different opinions regarding the progression of Ms. Coward’s cancer. Dr. Schneider opined that Ms. Coward was in Stage I on June 23, 2003 and remained in Stage I at least until August 15, 2003. Dr. Rainey opined, on the other hand, that Ms. Coward was already a Stage III, possibly a Stage IV, on June 23, 2003 at which time the eye was not salvageable. Ordinarily, summary judgment is not appropriate where the trial judge has to make a credibility determination. See Maiorana v. Melancon Metal Bldgs., Inc., 05-933 (La.App. 5 Cir. 4/25/06), 927 So.2d 700, 705. In such instances, summary judgment should be denied, and the case must proceed to trial. Although the two causation experts’ opinions differ regarding the staging of Ms. Coward’s tumor on June 23, 2003, there is no evidence that her cancer progressed between June 23 and July 17— the day she was first seen by the oral surgeon. Thus, our inquiry centers on whether Dr. Cresson’s action or inaction was the legal cause of Ms. Coward’s resulting injury.

When Ms. Coward presented to Dr. Cresson’s office on June 23, 2003, she had not sought dental treatment in two years. The record reflects that she had poor oral hygiene, fractured root canals, abscessed teeth, and an ill-fitting partial denture. After Dr. Kreller extracted fifteen of Ms. Coward’s teeth on August 1, 2003, she returned to Dr. Cresson’s office on August 5, 2003 with concerns about the upper denture being off-centered. Dr. Cresson documented, “allow the swelling to go down and the denture will go back to the lab to [illegible word] the center of the teeth.” As far as this Court can discern, this is the first notation of swelling in Dr. Cresson’s records, despite Ms. Coward’s contention otherwise. | ,nOnce Ms. Coward returned to Dr. Cresson’s office on August 7, 2003, he noted that she had swelling in the right upper area and indicated that he was sending her back to Dr. Kreller. The following day, Dr. Kreller noted a “large ulcer of the right buccal maxillary vestibule associated with the denture flange” stating that “this is causing the inflammation and the swelling in the face.” Dr. Kreller further noted that he would speak to Dr. Cresson that day. Ms. Coward presented to Dr. Cresson twice more after Dr. Kreller documented the large ulcer— once on August 11, 2003 and again on August 14, 2003 where he clearly noted in her record, “will be evaluated tomorrow by Dr. Kreller.”

A physician is not held to a standard of absolute precision; rather, his conduct and judgment are evaluated in terms of reasonableness under the circumstances existing when his professional judgment was exercised, and not on the basis of hindsight or in light of subsequent events. Wells v. Louisiana Dept. of Pub. Safety & Corr., 46,428 (La.App. 2 Cir. 8/24/11), 72 So.3d 910, 917, writ denied, 11-2637 (La.2/10/12), 80 So.3d 474, citing, Johnston ex rel. Johnston v. St. Francis Medical Center, Inc., 35,236 (La.App. 2 Cir. 10/31/01), 799 So.2d 671.

Based on the record before us, Ms. Coward will not be able to establish, by a preponderance of the evidence, that Dr. Cresson was legally responsible for either the loss of her eye or the loss of a chance of a better outcome.

In this case, Dr. Irwin opined that Dr. Cresson breached the standard of care by not referring Ms. Coward to an oral surgeon on June 25th after the full examination was completed without identifying the source of her pain. The record reveals, however, that Ms. Coward was examined by the oral surgeon on July 17th — approximately three weeks after Dr. Irwin opined that she should have had the examination. None of the experts opined that this three week delay contributed to the progression of Ms. Coward’s cancer, and Ms. Coward presented no otherJjjevidence that this delay in treatment may have caused her to lose the opportunity to save her eye or cheek. The evidence reflects that the treatment would have been the same on June 25th and July 17th.

Ms. Coward also contends that the appropriate treatment would have been a timely referral to an ENT. None of the expert testimony, however, presented by Ms. Coward showed that Dr. Cresson’s treatment fell below the ordinary standard of care, which is an essential element a plaintiff must prove to succeed in a medical malpractice claim. See Arroyo v. East Jefferson General Hospital, 06-799 (La.App. 5 Cir. 3/13/07), 956 So.3d 661, 664, writ denied, 07-784 (La.6/1/07), 957 So.2d 179. Although Ms. Coward argues that Dr. Cresson should have referred her to an ENT, none of the expert testimony established that Dr. Cresson’s referral to an oral surgeon, as opposed to an ENT, fell below the required standard of care for a dentist.

Based on the foregoing, we find that Ms. Coward will not be able to establish that Dr. Cresson breached the requisite standard of care and that she suffered any damage as a result of Dr. Cresson’s treatment. Accordingly, the judgment appealed from is affirmed.

AFFIRMED

EDWARDS, C.J., concurs with reasons.

EDWARDS, C.J.,

concurs with reasons.

hi agree with the outcome of the majority opinion that summary judgment was properly granted in favor of Guy G. Cres-son, D.D.S. It is clear from the record that Ms. Coward has not met her burden of proof to defeat the motion for summary judgment by presenting factual support adequate to establish an essential element of her cause of action against Dr. Cresson. However, I make no further finding.

      . The medical review panel (MRP) convened on February 9, 2006, and found that neither Dr. Cresson nor Dr. Kreller breached the standard of care.

      . Ms. Coward stated in her affidavit that her cousin prescribed Penicillin and that Dr. Cresson prescribed Amoxicillin. The medical records reflect that on June 23, 2003, Ms. Coward was already taking Amoxicillin.

      . Stage IVB is not implicated in this case and is therefore not mentioned.


author: MARION F. EDWARDS, Chief Judge.

text:
    CONSTRUCTIONSOUTH, INC. v. Gayle O. JENKINS.
    No. 12-CA-63.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      R. Patrick Vance, Richard J. Tyler, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, William W. Hall, Attorney at Law, Metair-ie, LA, for Plaintiff/Appellee.
    David L. Neeb, Ann Neeb, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Gayle O. Jenkins (“Jenkins”), appeals a judgment of the Twenty-Fourth Judicial District Court confirming an arbitration award in favor of plaintiff/appellee, ConstructionSouth, Inc. (“CSI”). On March 24, 2004, CSI entered into a construction contract with 3901 Ridgelake, LLC (“Ridgelake”) to build Pontchartrain Caye Condominiums, a condominium project at 3901 Ridgelake Drive in Metairie, Louisiana. Jenkins, is the managing member of Ridgelake. CSI and Ridgelake entered into a contract, a standard form AIA Document “for Construction Projects of Limited Scope where the basis of payment is a STIPULATED SUM.” The contract contains the standard AIA arbitration provision. The contract showed the name of the owner as Ridgelake, underneath which was Jenkins’ signature, absent a title or other designation.

CSI sought to recover damages under the contract for failure of Ridgelake to pay sums due under the contract. According to the record, in December 2007, CSI initiated an arbitration proceeding against Ridgelake with the American Arbitration Association. While the arbitration proceeding was still pending in January 2009, |3CSI filed a petition in the Twenty-Fourth Judicial District Court against Jenkins personally, alleging that she made certain misrepresentations and diverted proceeds from insurance, as well as advances on a construction loan, and that she failed to pay particular applications for payment made by CSI. CSI alleged the following causes of action: detrimental reliance; fraud; disregard of corporate identity; and negligent or intentional misrepresentation. Jenkins filed an Exception of Prematurity and Motion to Stay, averring that the dispute in question was the subject of the arbitration proceedings and that the claims against her were required to be decided in that forum. In April 2009, the court ordered the parties to the lawsuit, including Jenkins, to proceed to arbitration and granted the Motion to Stay, finding the Exception of Prematurity to be moot.

On January 14, 2011, the arbitrator entered his Final Award, finding that CSI substantially performed the construction contract with Ridgelake and that the unpaid balance owed by Ridgelake was $1,040,550, plus interest. It was also determined that Ridgelake’s failure to pay constituted an unexcused material failure to perform its obligations and was a breach of contract. The arbitrator also found that Jenkins, as the managing member of Ridgelake, was personally liable for its obligations to CSI because she disregarded the corporate formalities and conducted the business in such a manner that she and Ridgelake were alter egos of one another. She co-mingled corporate and personal funds, undercapitalized the company, and made preferential payments out of company funds to herself in lieu of outstanding obligations to CSI. CSI was not liable for bad faith or intentional misconduct.

Ridgelake and Jenkins were ordered to pay the amount of $1,499,725, as well as the administrative fees and expenses of the arbitrator, within thirty days.

|4On January 28, 2011, CSI moved to confirm the arbitration award, but learned that Jenkins had filed a voluntary petition for Chapter 11 Bankruptcy on January 18, 2011. In February 2011, CSI moved the Bankruptcy Court for relief from the automatic stay in order to resume and complete the confirmation of the arbitration award in state court. Counsel for Jenkins had no opposition to the motion, which was then granted by the Bankruptcy Court.

Six days prior to the confirmation hearing, Jenkins filed a notice of removal of the matter to federal court. In turn, CSI moved to remand the matter back to state court, which motion was granted. In so doing, the federal court further assessed reasonable attorney’s fees and costs against Jenkins. Prior to the confirmation hearing re-set in state court, Jenkins requested the award be vacated, urging that the arbitrator exceeded his authority in rendering an award against her, a non-party; that the award was not based on contract; and that the findings constituted a manifest disregard of the law. Following a hearing, the trial court found that Jenkins consented to and voluntarily joined in the arbitration between Ridge-lake and CSI; that the arbitrator did not exceed the authority granted him by the parties; and that statutory grounds for vacatur were not established. In the transcript, the court also found that the motion to vacate was untimely. The court confirmed the award in the amount of $1,538,610 plus legal interest. Jenkins appeals.

On appeal, Jenkins urges that the request to vacate was timely. She further avers that the tort causes of action were not before the arbitrator and that the findings of the arbitrator did not arise out of the contract that was the subject of the mediation. Jenkins argues that the award “finds its essence” in an equitable remedy rather than in contract.

|aOn appeal, we decline to address the issue of timeliness because of our findings below.

The arbitration clause contains the following language:

Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to the Contract Documents shall include, by consolidation, joinder or in any other manner, any person or entity not a party to the Agreement under which such arbitration arises, unless it is shown that at the time the demand for arbitration is filed that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of such person or entity is required if complete relief is to be accorded in the arbitration, (3) the interest or responsibility of such person or entity in the matter is not insubstantial, and (4) such person or entity is not the Architect or any of the Architect’s employees or consultants. The agreement herein among the parties to the Agreement and any other written agreement to arbitrate referred to herein shall be specifically enforceable under applicable law in any court having jurisdiction thereof.

As the basis for her exception of prematurity and motion to stay, Jenkins invoked the arbitration clause in the contract and confessed in her memorandum that she had filed a written demand for arbitration and

thereby has supplied the written consent required by that provision in order to join in the arbitration ‘any person or entity not a party to the Agreement under which such arbitration arises.’ Furthermore ... the exception of persons who are not parties to the Agreement but may be joined in arbitration ... covers Jenkins. That is, Jenkins is a person who is ‘substantially involved in a common question of fact or law.’

She further stated that

ConstructionSouth has clearly raised the issue of veil-piercing and alter ego through its factual allegations and third count of its complaint, It would be inequitable to permit ConstructionSouth to litigate under a theory of piercing the veil or alter ego liability while denying Jenkins the right to arbitrate these claims....

In argument to the court, Jenkins argued that the arbitration clause in the contract between Jenkins, Ridgelake, and CSI applied to any disputes arising from |fithe work performed, citing Grigson v. Creative Artists Agency, LLC, a federal Fifth Circuit case, as controlling. Grigson holds that proceedings against parties and non-parties to the arbitration agreement are stayed pending the outcome of arbitration, when the action against the non-party is dependent upon interpretation of the underlying contract. Parties to arbitration agreements cannot avoid them by casting their claims in tort, rather than in contract. Further, in certain limited instances, a non-signatory-to-an-arbitration-agreement-defendant can compel arbitration against a signatory-plaintiff. Jenkins urged that her case presented the classic situation set forth by Grigson: the interdependency of the claims was based on the petition claiming that she is responsible for the obligations of Ridgelake. In argument to the court, Jenkins’ counsel stated that

My client would like to bring this whole thing under one tent and the fact that Mr. Hall has been keen enough to kind of couch the claims in a different way doesn’t get around the fact that everything arises out of the contract between 3901 Ridgelake and ConstructionSouth. Given the fact it’s an arbitration provision, this matter should be sent to arbitration ....

Jenkins repeatedly emphasized that the money being sought in the petition was money owed under the contract.

Following argument, the court ordered that the “proceedings in this case be stayed and that the parties are ordered to proceed to arbitration.”

Jenkins now argues that she was not a party to that arbitration and the tort claims made by CSI against her were not before the arbitrator. Rather, she urges that the trial court ordered the tort claims expressed in the petition to be arbitrated after the original contract arbitration concluded. She quotes the judgment language: “[T]he parties are to proceed to arbitration pending the outcome of the Jjcurrent arbitration between plaintiff Con-structionSouth Inc. and 3901 Ridgelake L.L.C. ...”

Arbitration is favored as a public policy in Louisiana. Confirmation of an arbitration award is reviewed de novo. Arbitration awards are presumed to be valid. A district court’s review of an arbitration award is “extraordinarily narrow.” 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. Errors of fact or law do not invalidate an arbitration award. Because the parties must agree to arbitration, they are presumed to accept the risk of procedural and substantive mistakes of either fact or law.

An arbitration award may be challenged only on the grounds specified in the arbitration statutes. A motion to vacate an arbitration award may be filed:

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.
1 RWhere an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

The law additionally provides that an arbitration award may be modified or corrected:

A. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
B. Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.
C. Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order shall modify and correct the award so as to effect the intent thereof and promote justice between the parties.

Our review of the record discloses that, as she argued in her Motion to Stay, the claims against Jenkins clearly arose out of the contract. As a matter of fact, she specifically requested those claims be sent to arbitration. In granting the Motion to Confirm Arbitration Award, the trial court found that Jenkins compelled arbitration by asserting that she had a right to do so even though she was not a signatory of the contract. “Ms. Jenkins consented to the authority of the arbitrator.” We see no error in this finding.

We further determine that the claims were, in fact, before the arbitrator at the time of the award. The Final Award of Arbitrator states that the proceedings concerned the agreement of CSI, Ridgelake, and Jenkins. Evidentiary hearings were held over a period of several days and included representatives of the parties as well as those parties’ lawyers. In addition, in the record is the Order from the United States District Court for the Eastern District of Louisiana remanding Jenkins’ case back to state court after she had filed for removal to federal court (see above). In that order, the federal court outlined the procedural history of the |flcase, specifically noting that the Twenty-Fourth Judicial District Court ordered the claims brought by CSI against Jenkins proceed to arbitration, and that CSI had, in fact, proceeded to arbitrate their dispute. While parties may not be compelled to submit matters to arbitration which were not previously agreed to, there is no prohibition preventing parties from submitting additional matters to the arbitrator. Jenkins clearly agreed to submit all matters to arbitration.

It is well settled in both state and federal courts that an award may be challenged only on the grounds specified in the statute. The court cannot substitute its conclusion for that of the arbitrator. A reviewing court cannot review merits of an arbitrator’s decision, and appellant may not actually seek review of the merits of the case by couching its argument in terms of arbitrators having exceeded their authority. Absent the existence of one of the specified grounds in La. R.S. 9:4210, a reviewing court is prohibited from reviewing the merits of an arbitrator’s decision. In this case, none of the grounds set forth in La. R.S. 9:4210 have been proven. La. R.S. 9:4211 is, likewise, inapplicable.

On the facts of this case, we find no cause to vacate the arbitrator’s award. The judgment of the trial court granting the motion to confirm the arbitrator’s decision is affirmed.

CSI has answered this appeal, asserting that the appeal is frivolous and requesting additional attorney’s fees.

Rule 2-19 of the Uniform Rules — Courts of Appeal provides that “The court may award damages for frivolous appeal in civil cases as provided by law.” |inDamages for a frivolous appeal are awarded pursuant to La. C.C.P. art. 2164, which states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

An appeal is not automatically deemed frivolous simply because it lacks merit. La. C.C.P. art. 2164 is penal in nature and must be strictly construed. It provides that an appellate court may award damages for frivolous appeal when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates.

We do not find that the present matter quite meets the requirements of a frivolous appeal, and, therefore, we decline to award additional attorney’s fees.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

      . 210 F.3d 524, 526 (5th Cir.2000).

      . Grigson, supra.

      . Id.

      . Id.

      . Farmers Cotton Co., Inc. v. Savage, 30,289 (La.App. 2 Cir. 6/26/98), 714 So.2d 926, 928, writ denied, 98-2322 (La. 11/20/98), 728 So.2d 1288.

      . FIA Card Serv., N.A. v. Smith, 44,923 (La.App. 2 Cir. 12/22/09), 27 So.3d 1100, 1106, writ denied, 10-0385 (La.4/23/10), 34 So.3d 265. See also, Sarofim v. Trust Co. of the West, 440 F.3d 213 (5th Cir.2006).

      . Id. (citing Nat'l Tea Co. v. Richmond, 548 So.2d 930 (La.1989)).

      . FIA Card Serv., supra. See also, Downer v. Siegel, 489 F.3d 623, 626 (5th Cir.), cert. denied, 552 U.S. 1063, 128 S.Ct. 721, 169 L.Ed.2d 555 (2007).

      . FIA Card Seiv., supra.

      . Johnson v. 1425 Dauphine, L.L.C., 10-0793 (La.App. 4 Cir. 12/1/10), 52 So.3d 962, 967, writ denied, 11-0001 (La.2/18/11), 57 So.3d 334 (citing Montelepre v. Waring Architects, 00-0671, 00-0672, p. 3 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130).

      . Id.

        . Kleinschmidt v. Lanza, 10-0540 (La.App. 4 Cir. 9/15/10), 45 So.3d 1165, 1169, reh'g denied, (10/5/10), writ denied, 10-2478 (La.1/28/11), 56 So.3d 964.

      . La. R.S. 9:4210.

      . La. R.S. 9:4211.

        .Kleinschmidt v. Lanza, supra (citing Casares v. James M. Brown Builder, Inc., 44,561, p. 5 (La.App. 2 Cir. 8/19/09), 17 So.3d 1022, 1026).

      . Firmin v. Garber, 353 So.2d 975, 977 (La.1977).

      . Wittich v. Wittich, 06-418 (La.App. 5 Cir. 11/28/06), 948 So.2d 195, 198 (citing P & M Equities, Inc. v. Latter & Blum, Inc., 96-940 (La.App. 5 Cir. 3/25/97), 692 So.2d 1255).

      . Wittich, supra (citing Welch v. A.G. Edwards & Sons, Inc., 95-2085 (La.App. 4 Cir. 5/15/96), 677 So.2d 520).

      . Alombro v. Alfortish, 02-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, 1170, writ denied, 03-1947 (La. 10/31/03), 857 So.2d 486.

      . Id.