author: WILLIAMS, J.

text:
    Maxie K. MARENGHI, Plaintiff-Appellant v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al, Defendants-Appellees.
    No. 46,032-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Rehearing Denied May 12, 2011.
    James D. Caldwell, Tallulah, LA, for Appellant.

      Brady D. King, II, for Monroe, LA, Appellees, Fakhre Fakhre, M.D. and Louisiana Medical Mutual Insurance Company.
    William E. Scott, III, Patrick S. Jolly, Callie M. Boudreaux, Baton Rouge, LA, for Appellee, West Carroll Care Center, Inc.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

| plaintiff, Maxie K. Marenghi, appeals a district court ruling sustaining a peremptory exception of prescription and granting summary judgment in favor of defendants, Dr. Fakhre Fakhre and Louisiana Medical Mutual Insurance Company (“LAMMI-CO”). For the following reasons, we affirm.

FACTS

The decedent, Minnie E. King, was a resident of West Carroll Care Center, Inc. (“WCCC”), a nursing home located in Oak Grove, Louisiana. On July 15, 2008, the decedent, who was 84 years old, was admitted to West Carroll Memorial Hospital under the care of Dr. Fakhre Fakhre. Her chief complaint was abdominal pain and abdominal distention. She was diagnosed with diverticulitis and remained hospitalized for three days. On July 18, 2003, the decedent was discharged from the hospital and readmitted to WCCC; she remained under Dr. Fakhre’s care. The decedent died at WCCC on July 26, 2003.

On July 14, 2004, plaintiff, Maxie K. Marenghi, the decedent’s daughter, filed a complaint, requesting that a medical review panel evaluate the medical treatment provided to the decedent by Dr. Fakhre and WCCC. Plaintiff alleged that the decedent was treated with Levaquin, an antibiotic, while in the hospital, and the drug was continued for five days after her discharge. She asserted that Levaquin was not the appropriate antibiotic to treat diverticulitis. Plaintiff also alleged that “ [appropriate culture and susceptibility tests should [have been] performed before treatment in order to isolate and identify organisms causing the infection and to determine 12their susceptibility to Levaquin.” More generally, plaintiff alleged that Dr. Fakhre and WCCC “were negligent based upon the health care or professional services rendered, or which should have been rendered, to [the decedent], including failure to render services timely.” Plaintiff also alleged that defendants were negligent in the following aspects: (1) inappropriate medical management of the decedent’s condition; (2) failure to seek appropriate consultation; (3) failure to appropriately monitor the decedent; and (4) failure to provide adequate care and appropriate healthcare, including services consistent with the resident care plan, and (5) “any other acts or omissions supporting the conclusion that the defendants failed to comply with appropriate standard of care as determined by the medical review panel based on the evidence presented.”

Thereafter, a medical review panel convened. On May 10, 2006, the panel unanimously determined that the evidence presented did not support the conclusion that Dr. Fakhre and WCCC failed to meet the applicable standard of care as charged in the complaint. In its written reasons, the panel stated, in pertinent part:

[T]he panel finds the assessment and recommended treatment with Levaquin as the antibiotic of choice and placement of NG tube in this elderly patient were acceptable management. Levaquin is a standard antibiotic in uncomplicated cases of diverticulitis and provides a good spectrum and anaerobic coverage. In addition, it is noted the patient was allergic to other antibiotics, which might have been available. Mrs. King improved with the conservative care given and therapy prescribed.

On August 28, 2006, plaintiff filed the instant medical malpractice [¡¡lawsuit against WCCC, Dr. Fakhre and his malpractice insurer, LAMMICO. Plaintiff alleged:

8.
On July 15, 2008, [Ms. King], age 84, was admitted to West Carroll Memorial Hospital in Oak Grove under the care of Fakhre Fakhre, M.D. with a chief complaint of abdominal pain and abdominal distention. She was initially seen by John Tilmon, PA-C for Dr. Fakhre. Physical examination noted gross abdominal distention with decreased bowel sounds times 4, tenderness in all four quadrants. Initial flat and upright films showed distended large colon with possible irritation secondary to diverticulitis, as well as some fluid levels in the right upper quadrant. She had a history of “severe diverticulitis,” and macular degeneration with almost total blindness.
4.
On July 16, 2003, Ms. King was seen again by John Tilmon, and her diet was advanced to clear with no milk.
5.
On July 17, 2003, Ms. King was again seen by John Tilmon. Her diet was advanced to regular 1800 calorie ADA diet with no milk.
6.
On July 18, 2003, Ms. King was again seen by John Tilmon, and discharged to West Carroll Care Center, Inc. in Oak Grove on outpatient therapy for diverticulitis. She was given Levaquin 500 mg [one tablet by mouth every day] for five days, and FiberCon [two tablets by mouth two times a day] for constipation. Her principal discharge diagnosis by PA-C Tilmon was “acute diverticulitis, improving.”
7.
On July 26, 2003, Ms. King died while at [WCCC]. The Certificate of Death is listed as ‘Cardiorespiratory failure’ due to as a consequence of ‘CVA.’
8.
Petitioner shows and avers that the defendants, including their agents and employees, breached the applicable standards of care which were a proximate cause of the damages sued upon. In particular, those breaches include:
|4a. Inappropriate medical management of the patient’s condition,
b. Failure to seek appropriate consultation,
c. Failure to appropriately monitor the patient, and
d. Failure to provide adequate and appropriate health care, including services consistent with the resident care plan.

On June 5, 2007, Dr. Fakhre and LAM-MICO moved for summary judgment, arguing that plaintiff had failed to submit an affidavit or report from a medical expert to support her allegations. The district court denied the motion.

Subsequently, plaintiff obtained an “expert” opinion from Dr. Meyer N. Solny, a physician practicing in New York, New York. In an affidavit, dated June 13, 2007, Dr. Solny stated that he had reviewed the decedent’s medical records, and opined that Dr. Fakhre “breached the standard of care for failure to ensure that anticoagulation therapy with Coumadin begun in the hospital was continued on an outpatient basis.”

On June 22, 2007, plaintiff filed a first amended petition, adding an allegation that defendants “fail[ed] to ensure that anticoagulation therapy with Coumadin begun in the hospital was continued on an outpatient basis.” In response to the first amended petition, all defendants filed peremptory exceptions of prescription, arguing that the allegation pertaining to an-ticoagulation therapy had prescribed. Defendants asserted that Coumadin was not administered to the decedent during the hospitalization from which plaintiffs lawsuit arose. According to defendants, the decedent’s medical records revealed that she was treated with Coumadin during a previous hospitalization, from June 19-24, 2003; the last dose of Coumadin was 1 .¡¡administered on June 24, 2003, when the decedent was discharged from the hospital. In the alternative, defendants filed dilatory exceptions of prematurity. Defendants argued that the new allegation, pertaining to the alleged failure to continue anticoagulation therapy, constituted a new claim, which had not been reviewed by the medical review panel. The district court denied the exceptions of prescription; however, the court granted the exceptions of prematurity and dismissed the first amended petition as premature.

Subsequently, plaintiff presented the claim regarding the anticoagulation therapy to the medical review panel. On November 21, 2008, the panel concluded that “[t]he evidence presented does not support the conclusion that the defendants, [WCCC] and Dr. Fakhre Fakhre, failed to meet the applicable standard of care as charged in the complaint.” The panel stated:

The panel finds that the care and treatment rendered by Dr. Fakhre Fakhre was appropriate. Ms. King presented to West Carroll Memorial Hospital on June 19, 2003, with complaints of severe vertigo, syncope, severe anxiety and rule out CVA. Ms. King’s medical history included TIAs.
The evidence presented and reviewed does not support the conclusion that Ms. King suffered from atrial fibrillation. The EKG does not support this conclusion. However, in efforts to rule out CVA, Dr. Fakhre ordered a CT scan of the head, which showed no acute bleed. In effort ... to rule out CVA, Dr. Fakhre correctly discontinued her current medications of Plavix and aspirin, placing her on Coumadin and Heparin therapy, while in the hospital. Follow up testing and treatment indicated no evidence of a stroke. The Coumadin and Heparin were appropriately discontinued. The patient was discharged with instructions to resume Plavix and aspirin. The physician was correct in ceasing use of | fiCoumadin, which holds high risk of bleeds for an elderly patient like Ms. King. It is noted that post discharge PT, INR testing were ordered. The panel finds that Dr. Fakhre Fakhre complied with acceptable standard of care in his treatment of Ms. King during and after hospitalization. In addition, the panel finds no deviation of acceptable standard of care by the staff of the defendant Health care provider, West Carroll Care Center.

On January 13, 2009, Dr. Fakhre and LAMMICO moved for summary judgment, arguing that plaintiff had not identified an expert that would contradict the opinion of the first medical review panel. Defendants argued that Dr. Solny’s affidavit “clearly indicate[d] that he ha[d] rendered no expert opinion as to use or nonuse of antibiotics and his opinion addressed only the use of Coumadin which is not an issue in the pleadings as this suit is presently postured.” WCCC subsequently moved for summary judgment on similar grounds. On March 10, 2009, the district court granted partial summary judgment, dismissing plaintiffs claims “concerning any and all claims for or related to the failure to treat an infection with antibiotics asserted in the original petition[.]”

On February 19, 2009, one day prior to the hearing on the motion for summary judgment, plaintiff filed a second amended petition, reasserting the allegation pertaining to Coumadin. Plaintiff also added Paragraph 14 to the petition, which stated:

As reflected in the records of [WCCC], on July 25, 2003 at 4:00 p.m., petitioner called a staff member to relay the information that Ms. King told her that she had another ‘light stroke (TIA)’ that evening and couldn’t talk for a while. A nurse saw Ms. King and Ms. King could not tell the nurse what had happened other than “stomach.” Ms. King was then purportedly assessed. She related at |7that time that her left arm was ‘paralyzed’ but was able to do ROM. At 4:45 p.m. the staff contacted petitioner and told her that Ms. King was ‘alright.’ The next day, July 26, 2003, Ms. King was found unresponsive without vital signs. She was pronounced at 6:45 p.m.

In response, all defendants filed exceptions of prescription, again arguing that the decedent was treated with Coumadin during a previous hospitalization, from June 19-24, 2003. The initial claim was filed with the medical review panel on July 14, 2004; therefore, any claim objecting to the use of Coumadin had prescribed before the plaintiff had filed her initial claim before the medical review panel. The district court sustained the exception of prescription filed by Dr. Fakhre and LAMMI-CO and dismissed the second amended petition “and any and all claims contained therein as to Dr. Fakhre Fakhre and [LAMMICO].” The court granted WCCC’s exception of prescription and dismissed plaintiffs claims against WCCC with regard to the anticoagulation therapy allegation. However, the court denied WCCC’s exception with regard to claims “raised in Paragraph 14 of the Second Amended Petition[.]”

On April 12, 2010, Dr. Fakhre and LAMMICO moved for summary judgment, seeking the dismissal of all remaining claims against them. The district court granted summary judgment and signed a “Final Judgment,” dismissing “any and all claims brought by Plaintiff against Dr. Fakhre Fakhre and [LAMMICO].” The court further stated, “[Although this | ^Judgment does not dispose [of] and dismiss the entire matter as plaintiff presently has claims pending against another defendant, it does dispose of and dismiss all claims previously pending against [LAM-MICO] and Dr. Fakhre Fakhre.”

Plaintiff appeals.

DISCUSSION

Plaintiff contends the district court erred in sustaining the exception of prescription and dismissing the claim asserted in the amended petitions. Plaintiff argues that the claim pertaining to the failure to continue anticoagulation therapy has not prescribed.

The prescriptive period applicable to a medical malpractice suit is set forth in LSA-R.S. 9:5628, which provides:

No action for damages for injury or death against any physician ... [or] hospital ..., whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

(Emphasis added). Thus, a reading of LSA-R.S. 9:5628 shows that the statute sets forth two prescriptive limitations within which to bring a medical malpractice action: (1) one year from the date of the alleged act; or (2) one year from the date of discovery, with a three-year prescriptive period by which all claims must be filed. See, Borel v. Young, 2007-419 (La.7/1/08), 989 So.2d 42; Hebert v. Doctors Memorial Hosp., 486 So.2d 717 |9 (La.1986).

In order to file a medical malpractice action, a party must first present his or her proposed complaint to a medical review panel for review. LSA-R.S. 40:1299.47(B)(l)(a)(i). Additionally, LSA-R.S. 40:1299.47(A) (2) (a) provides for the suspension of the period provided in LSA-R.S. 9:5628 during the time the complaint is pending before the medical review panel.

As an initial matter, we note that plaintiff did not appeal the district court’s ruling sustaining the exception of prematurity with regard to the anticoagulation claim. However, intertwined with her argument related to prescription, plaintiff asserts that the original claim was presented to the medical review panel in July 2004; therefore, the 2004 panel had sufficient information to make a determination regarding all allegations (and potential allegations) of medical malpractice related to the treatment of the decedent.

The allegations contained in plaintiffs initial malpractice complaint and her original petition arose from the decedent’s July 2003 hospitalization 11fland subsequent care. In plaintiffs original petition, she alleged:

3.
On July 15, 2003, [Ms. King], age 84, was admitted to West Carroll Memorial Hospital in Oak Grove under the care of Fakhre Fakhre, M.D. with a chief complaint of abdominal pain and abdominal distention. She was initially seen by John Tilmon, PA-C for Dr. Fakhre. Physical examination noted gross abdominal distention.

Plaintiff then addressed defendants’ alleged failure to conduct proper testing before prescribing and/or administering antibiotics and other general negligence claims. Plaintiff did not state any claim regarding the alleged failure to continue anticoagulation therapy. In the amended petitions, plaintiff added an allegation that plaintiff was treated with Coumadin, and defendants “fail[ed] to ensure that anticoagulation therapy with Coumadin begun in the hospital was continued on an outpatient basis.” The original petition specifically alleged negligence during and following the decedent’s July 2003 hospitalization; however, neither mentioned the June 2003 hospitalization, nor the an-ticoagulation therapy. Consequently, we find that the allegations asserted in the amended petition arose from an entirely separate, unrelated incident and/or hospitalization, and did not arise out of the conduct objected to in the original petition.

Plaintiffs request for a medical review panel was filed on July 14, 2004, and her subsequent lawsuit was filed on August 28, 2006. In both filings, plaintiff alleged that the decedent was admitted to the hospital on July 15, 2003, was discharged on July 18, 2003, and died July 26, 2003. All of the allegations contained in those filings were based on the alleged negligent care rendered to the decedent during and following her Inhospitalization from July 15-18, 2003. As stated above, neither filing mentioned the decedent’s June 2003 hospitalization, during which Coumadin was prescribed and subsequently discontinued upon her discharge. Therefore, we find that the district court did not err in finding that the claims pertaining to Coumadin constituted “new claims.” Since the claims with regard to the misuse of the Coumadin were not brought within one year from the date of the alleged act, omission or neglect, ie., the date the medication was discontinued, we agree that the claims have prescribed.

In the alternative, plaintiff argues that her amended petition with allegations challenging the anticoagulation therapy related back to the date the original petition was filed, and therefore, the anticoagulation claim has not prescribed.

LSA-C.C.P. art. 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In Warren v. Louisiana Medical Mutual Ins. Co., 2007-0492 (La.12/2/08), 21 So.3d 186, on rehearing, our Supreme Court stated:

Because medical malpractice actions are governed by the specific provisions of the Act regarding prescription and suspension of prescription, under Borel, we find that any general codal article which conflicts with these provisions may not be applied to such actions in the absence of specific legislative authorization in the Act. The Act has no rules allowing relation back of pleadings for medical malpractice claims. The application of [LSA-C.C.P.] Article 1153 would permit the adding of a plaintiff subsequent to the expiration of the three-year period provided for in La. R.S. 9:5628, and would read out of the statute the prescription and suspension period 112provisions by La. R.S. 9:5628 and La. R.S. 40:1299.47; therefore, La.C.C.P. art. 1153 may not be applied to the medical malpractice action under the reasoning of LeBreton [v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226] and Borel.

Id. at 207-208 (footnote omitted).

In the instant case, the claim requesting a medical review was filed within one year of the decedent’s death. However, the claim pertaining to the June 2003 hospitalization and anticoagulation therapy was not asserted in the original petition. Thus, based on LSA-R.S. 9:5628 and the supreme court’s ruling in Warren, swpra, the filing of the original claim and subsequent lawsuit had no effect on the running of the peremptory period, and the amended petition adding an additional, unrelated claim did not relate back to the date of the filing of the original petition.

Plaintiff also contends the district court erred in granting summary judgment, dismissing all remaining claims against Dr. Fakhre and LAMMICO. Plaintiff argues that defendants had moved for summary judgment on June 25, 2007, and the court denied the motion. Thereafter, defendants filed another motion, using the same grounds as used in the first motion, offering no new argument to support the new motion. Therefore, according to plaintiff, defendants are prohibited from moving for summary judgment based upon the same grounds asserted in the original motion.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Duncan v. USAA Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544; see also | ^LSA-C.C.P. art. 966. Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the nonmovant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1). In Hines, supra, the supreme court stated:

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but [is] to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate.

Id. at 765-66.

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at |,4trial, there is no genuine issue of material fact. Id.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. LSA-R.S. 9:2794(A). Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002; Samaha v. Rau, supra.

In Pfiffner v. Correa, 94-0924, 94-0992 (La.10/17/94), 643 So.2d 1228, the supreme court stated:

The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.
Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts[.]

Id. at 1233-34 (internal citations omitted).

In the instant case, plaintiff does not contend defendants committed an “obviously negligent” act. Rather, plaintiff merely contends defendants should not have been allowed to move for summary judgment again, after the district court had denied the motion for summary judgment in 2007.

lisOur de novo review of the record reveals that defendants, in support of the motion for summary judgment, introduced into evidence the unanimous opinion of the medical review panel, which concluded that defendants did not fail to meet the applicable standard of care. Therefore, the burden shifted to plaintiff to show that there are genuine issues of material fact. Other than the affidavit of a physician licensed in the state of New York regarding anti-coagulation therapy, plaintiff did not produce any evidence, expert or otherwise, to oppose the opinion of the medical review panel. Even if the affidavit submitted by plaintiff was sufficient to establish a breach of the standard of care, plaintiff has not offered any evidence to establish that the purported breach caused or contributed to the decedent’s death. Therefore, we find that the district court did not err in granting summary judgment in favor of defendants.

CONCLUSION

For the reasons set forth herein, the judgment of the district court is affirmed. Costs are assessed to appellant, Maxie K. Marenghi.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . Plaintiff also named the Louisiana Hospital Association Malpractice and General Liability Trust Fund as a defendant. That entity was dismissed from this lawsuit.

      . WCCC filed an application for supervisory writ with this court. On April 1, 2010, we denied the writ application, stating, "Upon the showing made, the exercise of this Court’s supervisory jurisdiction is not warranted.” Marenghi v. Louisiana Mut. Medical Ins. Co., 45,330 (La.App.2d Cir.4/1/10) (unpublished). Therefore, some of the claims against WCCC are still pending in district court. None of the claims against WCCC are at issue in this appeal.

      . LSA-R.S. 40:1299.47(A)(2)(a) provides, in pertinent part:
      The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfea-sors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review[.]


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Brandon Shane GRIFFITH, Plaintiff-Appellee v. Forrest YOUNG, Defendant-Appellant.
    No. 46,184-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Rehearing Denied May 12, 2011.
    Tommy J. Johnson, Tyler & Johnson, L.L.C., Shreveport, LA, for Appellant.
    C. Sherburne Sentell, III, Sentell Law Firm, L.L.C., Minden, LA, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

|,The defendant, Forrest Young, appeals from a trial court decision granting partial summary judgment as to liability in favor of the plaintiff, Brandon Shane Griffith. According to the allegations in the record, Young physically attacked Griffith because of Griffith’s nonconsensual sexual contact with Young’s wife and his display of nude photos of her to others. We affirm.

FACTS

In June 2009, Griffith filed a petition for damages against Young, alleging that Young battered him at his residence on May 6, 2009, “without any provocation whatsoever.” As a result of the attack, Griffith asserted that he sustained multiple injuries. Young responded with a general denial in which he asserted provocation and justification for his conduct against Griffith.

In March 2010, Griffith filed a motion for summary judgment. He asserted that on February 22, 2010, Young pled guilty to two counts of second degree battery. He argued that the guilty pleas are a judicial admission that Young committed two intentional torts, resolving the issue of liability and leaving only the issue of damages.

In support of his motion, Griffith submitted the following exhibits: the guilty plea transcript; the court minutes in the criminal case against Young; the bill of information against Young; requests for admissions of fact to Young and his responses; and an affidavit by Griffith. In the responses to admissions of fact, Young admitted using a knuckle stun gun on Griffith. However, he did not admit being the initial aggressor in the 12confrontation; instead he stated that when he drove to Griffith’s premises, he “was provoked into doing so because of Plaintiff actions against my wife [sic].” He denied all of the following assertions: that Griffith told him to leave the premises; that Griffith walked in his house, shut the door and locked it to try to keep him out; that he kicked in the door; or that he made a statement to the effect of “I have been waiting two years for this.” In his own affidavit, Griffith stated that Young drove up to his house and exited his vehicle armed with a stun gun. He further stated that after he retreated into his house to avoid any altercation, Young forcefully entered the premises without permission. Once inside, according to Griffith, Young physically attacked him and repeatedly used the stun gun on him without his consent.

Young filed an opposition to the motion for summary judgment in which he cited Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943. In that case, the Louisiana Supreme Court ruled that the aggressor doctrine no longer had a place in Louisiana tort law. In support of his opposition, Young submitted an affidavit in which he stated that he was provoked by Griffith, who had “intentionally engaged in unwanted and nonconsensual sexual relations” with Young’s wife while she was in “an unconscious or semi conscious state and unable to give consent.” He further stated that Griffith boasted of his “intentional sexual conduct” and showed naked photos of Young’s wife to others. An affidavit by Young’s wife was also filed in which she asserted that Griffith “intentionally engaged in unwanted and nonconsensual sexual contact” with her in |.^September 2007; that she did not consent to any nude or semi-nude photos taken of her by Griffith; and that Griffith intentionally boasted to others of his unwanted and nonconsensual sexual contact with her.

A hearing was held on June 29, 2010. Following argument by counsel, the trial court granted partial summary judgment in favor of Griffith. In so ruling, the trial court found that the Landry case, which involved self-defense in a bar fight, was distinguishable from the instant matter. Judgment was signed on August 3, 2010.

Young appeals.

LAW

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will 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(B); Palmer v. Martinez, supra.

On the motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he is not required to negate all the essential elements of the adverse party’s claim, action or defense. Rather, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Swillie v. St. Francis Medical Center, 45,543 (La.App.2d Cir.9/22/10), 48 So.3d 317.

Supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La. C.C.P. art. 967(A). Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. State, Department of Transportation and Development v. Cecil, 42,433 (La.App.2d Cir.9/19/07), 966 So.2d 131, unit denied, 2007-2063 (La.12/14/07), 970 So.2d 536. In ruling on a motion for summary judgment, the court must generally accept an affi-ant’s testimony or affidavit as true. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; State, Department of Transportation and Development v. Cecil, supra.

The trial court cannot make credibility determinations on a motion for summary judgment. It is not the function of the trial court on a motion for |ssummary judgment to determine or even inquire into the merits of the issues raised. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952; Smith v. Lynn, 32,093 (La.App.2d Cir.8/18/99), 749 So.2d 692. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. Row v. Pierremont Plaza, L.L.C., supra.

While a guilty plea is an admission against interest that is relevant and admissible to proving fault in a civil case, it is not conclusive evidence. Harris v. Dunn, 45,619 (La.App.2d Cir.9/22/10), 48 So.3d 367; Miles v. Louisiana Landscape Specialty, Inc., 97-118 (La.App. 5th Cir.6/30/97), 697 So.2d 348.

Liability

Under La. C.C. art. 2315, a person is liable for acts which cause damage to another. The intentional tort of battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact. Touchet v. Hampton, 2008-833 (La.App. 3d Cir.12/11/08), 1 So.3d 729, writ denied, 2009-0076 (La.3/27/09), 5 So.3d 141.

La. C.C. art. 2323 provides:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall |fibe reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced.

In a suit for damages resulting from an intentional tort, the claimant must carry the burden of proving all prima facie elements of the tort, including lack of consent to the invasive conduct. In turn, the defendant could seek to prove that he was without fault because his actions were privileged or justified, such as self-defense. Landry v. Bellanger, supra; Williams v. Moore, 45,299 (La.App.2d Cir.5/19/10), 36 So.3d 1214.

The Landry court further stated, 851 So.2d at 955:

Absent a qualifying privilege, any provocative or aggressive conduct on the part of the plaintiff should be incorporated into the allocation of fault by the trier of fact. However, simply because the trier of fact must consider the fault of both plaintiff and defendant, does not mean that an aggressive plaintiff can avoid responsibility for his conduct. In fact, nothing prevents a trier of fact from determining that the plaintiffs conduct was of such a provocative nature as to render it the sole cause of his injury. Thus, we must consider [the plaintiffs] conduct to determine whether [the defendant] was acting in self-defense, such that his conduct was justified or privileged and precludes recovery by [the plaintiff], or whether self-defense is unavailable as a complete defense, such that [the plaintiff] and [the defendant’s] relative fault must be compared.
The aggressor doctrine has traditionally precluded tort recovery where a plaintiffs own actions, though not necessary physical, were sufficient to provoke a physical retaliation. However, we find that the aggressor doctrine is inconsistent with Louisiana’s pure comparative fault regime. Thus, pursuant to the rules imposed by [La. C.C.] |7Article 2323, comparative fault principles should be applied to such a plaintiffs actions, thereby eliminating the inequities inherent in the “all or nothing” recovery rules that prevailed prior to the adoption of comparative fault. A comparison of fault is required in spite of Section C of Article 2323, which only prohibits a reduction of the plaintiffs recovery of damages for an injury partly the result of the fault of an intentional tortfeasor and partly the result of his own negligence.

In Louisiana jurisprudence, provocation as an affirmative defense or justification for a tortious attack is often discussed in the context of the former aggressor doctrine. Under the aggressor doctrine, a party could not recover tort damage for a battery committed on his person if the evidence established that his actions immediately before the altercation constituted a provocation sufficient to justify the defendant’s conduct. Squyres v. Phillips, 285 So.2d 337 (La.App. 3d Cir.1973). An attack was not justified if there was “vicarious” provocation directed toward a third party and there was a passage of time since the provocation. Williamson v. Chappell, 262 So.2d 148 (La.App. 3d Cir. 1972).

Self-defense, unlike the aggressor doctrine, is a true defense in that it operates as a privilege to committing the intentional tort. In such a case, a plaintiffs conduct must have gone beyond mere provocation under the aggressor doctrine. Under Louisiana jurisprudence, in order to succeed on a claim of self-defense (not involving deadly force), there must be an actual or reasonably apparent threat to the claimant’s safety and the force employed cannot be excessive in degree or kind. Landry v. Bellanger, supra; Williams v. Moore, supra.

| ¡ARGUMENTS

Young argues in brief that while Griffith’s nonconsensual sexual relations with his wife occurred shortly before their marriage, he only learned of the incident just before his May 6, 2009, attack on Griffith. He claims that under the facts presented in the pleadings, the issue of provocation was raised and that the evidence submitted by the plaintiff in support of his motion for summary judgment failed to negate that defense. He further reasons that the defense of provocation involves an allocation of fault and the element of the defendant’s state of mind, thus making summary judgment inappropriate. He contends that, while his guilty plea is an admission against interest, it is not conclusive evidence.

Griffith asserts that even if all of the defendant’s allegations are accepted as true, the conduct alleged against the plaintiff was actually directed toward a third party, who was not shown to be the defendant’s wife at the time of the alleged misconduct; thus, Griffith contends that provocation is not applicable as a defense. He also claims that Young failed to file any countervailing affidavit that refuted Griffith’s assertions that Young entered his house and battered him without permission. Additionally, Griffith argues that the affidavits submitted by the defendant were deficient-Young’s because he failed to allege personal knowledge of the asserted incidents or when they occurred, and Young’s wife because she failed to allege when she married Young or when Griffith boasted about the alleged sexual misconduct.

IaDISCUSSION

In the plaintiffs petition, he asserted that the defendant’s attack was unprovoked. The affidavits submitted for and against summary judgment set forth the following: Griffith engaged in “unwanted and nonconsensual sexual contact” with Young’s wife in 2007 (Mrs. Young’s affidavit); Griffith took nude or semi-nude photos of Mrs. Young without her consent (Young’s affidavit and Mrs. Young’s affidavit); Griffith boasted of these activities (Young’s affidavit and Mrs. Young’s affidavit); Young attacked Griffith with a stun gun in 2009 (Griffith’s affidavit and Young’s responses to requests for admission); Young’s attack on Griffith was provoked by Griffith’s actions toward Mrs. Young (Young’s affidavit). In their briefs, the parties argue additional facts, such as the Youngs not being married at the time of the alleged sexual assault and Young learning of the incident shortly before attacking Griffith.

While the plaintiffs alleged actions against Mrs. Young — a third party to the altercation — are grossly offensive, the evidence submitted on summary judgment indicates that they occurred about 20 months before her husband’s attack against the plaintiff. Also, there is no allegation in the affidavits opposing summary judgment to indicate when Young learned of the incident. We believe that the sort of “provocation” which is intended as a privilege or justification for the defendant’s actions is of a more immediate nature involving the possibility of physical harm. Here, neither self-defense nor defense of another would be a viable defense because there was no immediate threat of harm from the plaintiff. Thus, the alleged | ^provocation is legally insufficient as a justification for Young’s attack on Griffith. See Landry v. Bellanger, supra, which involved a clash that developed in a bar and ended up in the parking lot. Also, see and compare Williams v. Moore, supra, wherein a bar fight apparently erupted minutes after the defendant inappropriately touched the plaintiffs fiancée; in that case, the court found the actors in the altercation equally at fault for the choices they made “during the heat of the moment.” Like the trial court, we are compelled to find that the defendant was solely at fault in the instant situation. Therefore, we affirm.

CONCLUSION

The trial court decision granting partial summary judgment in favor of the plaintiff is affirmed. Costs of this appeal are assessed to the appellant/defendant.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.

      . In the damages portion of the trial, the defendant can explain the circumstances that led to this incident.


author: PEATROSS, J. BROWN, Chief Judge,

text:
    James P. WELLS, Jr., Plaintiff-Appellant v. Donald J. ZADECK, Zadeck Energy Group, Inc., Oleum Operating Company, L.C., T.M. Hopkins Operating, Inc. and T.M. Hopkins, Inc., Defendants-Appellees.
    No. 46,138-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Rehearing Denied May 12, 2011.

      Downer, Huguet & Wilhite, by Philip E. Downer, III, M. Amy Burford McCartney, Michael A. Marino, Shreveport, LA, for Appellant.
    Wiener, Weiss & Madison, by Frank H. Spruiell, Jr., for Appellees, Donald Zadeck and Zadeck Energy Group, Inc.
    Shuey Smith, LLC, by John Miller Shuey, Jr., Shreveport, LA, for Appellees, Oleum Operating Co., LC, T.M. Hopkins Operating, Inc., and T.M. Hopkins, Inc.
    Before BROWN, PEATROSS, and MOORE, JJ.
   PEATROSS, J.

| plaintiff, James P. Wells, Jr., appeals from the judgment of the trial court granting Defendants’, Donald J. Zadeck and Zadeck Energy Group, Inc.’s (“Zadeck”), peremptory exception of prescription. For the reasons stated herein, we affirm.

FACTS

Plaintiff, James P. Wells, Jr. (“Wells”), is the son of James Wells and Olean Speights Wells. On September 17, 1949, James and Olean Wells executed a deed in favor of Paul and Cleo Holmes conveying certain property (hereinafter referred to as “the Property”) in DeSoto Parish, Louisiana. The Wellses reserved unto themselves an undivided one-half interest in and to all of the oil, gas and other minerals on, in or under the Property. Shortly thereafter, James and Olean Wells divorced; and, pursuant to a community property settlement, Ms. Wells retained ownership of an undivided one-fourth mineral interest in the Property.

On June 5, 1954, Ms. Wells executed a mineral lease in favor of Z.T. Gallion, pursuant to which a well was drilled on the Property. The well resulted in a dry hole and the lease was released on June 26, 1958. A few years later, Zadeck and/or their predecessors-in-interest acquired oil, gas and mineral leases covering the Property, as well as other land. Specifically, Zadeck acquired a lease executed by the Holmeses in favor of Parnell, Inc., covering lessors’ “entire undivided one-half interest in and to” the Property. When Zadeck conducted a search of the public records in connection with the leasing of the Property, the one-fourth interest of |2Ms. Wells was not discovered by Zadeck and Ms. Wells was not provided notice of the mineral activity on the Property. The Property was then included in the Paluxy Sand Unit U, a unit in which the Shirey Well No. 1 achieved production in January 1965.

Ms. Wells died in 2002. On December 19, 2008, Wells was contacted by a land-man concerning the mineral interest. Wells inquired into the matter and discovered the long history of production. On December 18, 2009, Wells filed suit against Donald J. Zadeck, Zadeck Energy Group, Inc., Oleum Operating Co., L.C., T.M. Hopkins Operating, Inc., and T.M. Hopkins, Inc., for their failure to tender unto him and his predecessors-in-interest (Ms. Wells) their rightful share of proceeds from the production. Zadeck responded by filing an exception of prescription, urging that Wells’ claims against it prescribed ten years from Zadeck’s cessation of involvement (September 8, 1994) with the Shirey Well No. 1. In response to Zadeck’s exception, Wells argued that, prior to December 18, 2008, he and his mother had no knowledge of any production; and, therefore, the doctrine of contra non valentem suspended the tolling of prescription. Following a hearing on the exception, on May 11, 2010, the trial court |sgranted Zadeck’s peremptory exception of prescription and dismissed with prejudice the claims of Wells against Zadeck. This appeal ensued.

DISCUSSION

A trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Marin v. Exxon Mobil Corp., 09-2368 (La.10/19/10), 48 So.3d 234; Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261.

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Alexander v. Fulco, 39,293 (La.App.2d Cir.2/25/05), 895 So.2d 668, writ denied, 05-0781 (La.5/6/05), 901 So.2d 1107. When, however, the plaintiffs petition reveals on its face that the prescriptive period has expired, the burden shifts to the plaintiff to show why the claim has not prescribed. Campo, supra; Alexander, supra; Netherland v. Ethicon, Inc., 35,229 (La.App.2d Cir.4/5/02), 813 So.2d 1254, writ denied, 02-1213 (La.6/21/02), 819 So.2d 339.

Wells filed suit against Zadeck on December 18, 2009. Zadeck filed a peremptory exception of prescription that evidenced its cessation of ownership and operation of the Shirey Well No. 1 on September 3, 1994. Since neither party disputed the applicability of the ten-year liberative prescriptive period set forth in La. C.C. art. 3499, Wells’ claim against Zadeck had facially prescribed. The burden, therefore, shifted to Wells to demonstrate that the running of prescription had been suspended or interrupted.

.Although La. C.C. art. 3467 provides that “prescription runs against all persons unless exception is established by legislation,” Louisiana jurisprudence has long recognized the doctrine of contra non valentem as an additional means of suspending the running of prescription when the circumstances of a case fall within one of four categories. Marin, supra; Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034 (La. 1987); Edwards v. Alexander, 42,000 (La. App.2d Cir.6/6/07), 960 So.2d 336, writ denied, 07-1317 (La.9/28/07), 964 So.2d 371. The four factual situations in which the doctrine of contra non valentem may apply are as follows:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.

Marin, supra; Netherlands supra.

It is the fourth category of contra non valentem, commonly referred to as the “discovery rule,” which is at issue in the case sub judice. The discovery rule is only applied in extreme circumstances and when the plaintiffs ignorance of his cause of action is not attributable to his own willfulness or neglect. Marin, supra; Davis v. Johnson, 45,200 (La.App.2d Cir.5/5/10), 36 So.3d 439. In Marin, supra, the supreme court recognized ]sthat “lower courts have interpreted the fourth category of contra non valentem too broadly” and that it is to apply only in “exceptional circumstances.” Further, the supreme court in Marin reiterated that “[t]his principle will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own wilfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Marin, supra, citing Renfroe v. State ex rel DOTD, 01-1646 (La.2/26/02), 809 So.2d 947; Matthews v. Sun Exploration and Production Co., 521 So.2d 1192 (La.App. 2d Cir.1988). When prescription begins to run depends on the reasonableness of plaintiffs action or inaction. Marin, supra; Campo, supra; Landry v. Blaise, Inc., 02-0822 (La.App. 4th Cir.10/23/02), 829 So.2d 661. Stated another way, to determine when a plaintiff knew or should have reasonably known of his cause of action, the plaintiff will be deemed to know what he could have learned through reasonable diligence. Renfroe, supra.

In the case sub judice, the primary issue is whether the trial court correctly concluded that Wells’ claims had prescribed and that contra non valentem did not operate to suspend the tolling of prescription. The trial court’s written reasons for judgment indicate that it granted Zadeck’s peremptory exception of prescription on two bases: 1) as a result of Wells’ mother’s failure to monitor her mineral interests, which in effect is a finding that the Wells family (including Plaintiff) failed to exercise reasonable diligence regarding the mineral activity on the Property, and 2) Wells’ failure to prove that some reason external to his own will led to his or his | (¡mother's ignorance of the fact that they had a cause of action they could pursue. Mindful that we review the judgment of the trial court and not the reasons for judgment, we perceive no manifest error in the ultimate conclusion that Wells failed to demonstrate that the doctrine of contra non valentem should apply in the present case and, therefore, that Wells’ claims against Zadeck are prescribed. See Mayard v. Mayara, 44,465 (La.App.2d Cir.7/1/09), 16 So.3d 466.

As previously explained, in order to avail himself of the fourth category of contra non valentem, Wells must show that his ignorance of his cause of action cannot be attributable to his own willfulness or neglect. Renfroe, supra. He is deemed to know what he could have learned by reasonable diligence. Id. It is this principle on which Zadeck relies in arguing that Ms. Wells and her son failed to monitor the mineral interest. Zadeck suggests that a call to the surface owners or inquiries to neighbors could have put the Wellses on notice that there was drilling in the area. Zadeck further points out that Ms. Wells participated in leasing her mineral interest back in the 1950s and was well aware of the process of exploration, leasing and production of minerals. Wells testified at the hearing on the exception of prescription that the first he ever learned of the mineral interest owned by his mother was December 19, 2008, when he was contacted by a landman. According to Wells, he and his mother never discussed the mineral interest and he was unaware of her ever receiving any royalty payments for the production therefrom. When presented with the oil and gas lease executed by his mother in 1954, and released in 1958, Wells l7testified that he did not recall his mother executing the lease. Significantly, however, Wells acknowledged that his mother executed the mineral lease of 1954 and later released that lease, which indicates Ms. Wells’ knowledge of her ownership rights and her familiarity with the leasing and drilling processes. Despite this knowledge, Wells was unable to produce any evidence that his mother had kept abreast of leasing and drilling activity regarding her mineral interests over the next 43 years.

Wells argues on appeal that neither he nor his mother knew or should have known that the mineral interests were being produced since Zadeck failed to provide the statutorily required notice of forced pooling and failed to tender royalty payments unto him or his mother. In support of his argument, plaintiff cites Amoco Production Company v. Texaco, Inc., 02-240 (La. App. 3d Cir.1/29/03), 838 So.2d 821, writs denied, 03-1102 and 1104 (La.6/6/03), 845 So.2d 1096. While we recognize some factual similarities between the instant case and Amoco, the present case boils down to one of proof, or the lack thereof. The present record is devoid of evidence of any efforts on the part of Ms. Wells to keep abreast of the mineral activity on the Property. We decline to create a bright-line rule regarding what actions might be considered reasonably diligent in protecting such interests; however, some reasonable inquiry or action is required. In the present case, as stated, Wells was unable to demonstrate that his mother exercised any diligence to protect her mineral interests. Again, Ms. Wells was familiar with exploration, leasing and drilling activity and yet she remained silent and inactive with regard to her interest for more | sthan 40 years. Simply stated, Ms. Wells’ ignorance of a potential claim was attributable to her own neglect, and such is attributable to Wells. Considering the particular facts of this case, we do not find manifest error in the trial court’s granting of Za-deck’s peremptory exception of prescription.

Finally, we note that, in his first assignment of error, Wells argues that the trial court improperly required that he prove culpability on the part of Zadeck. Wells urges that the added requirement of having to prove culpability amounted to a misapplication of legal principles because he was seeking relief under the fourth category of contra non valentem, which specifically excludes the requirement that the defendant induced the ignorance of the plaintiff. Wells asserts, therefore, that the findings of the trial court should be subject to de novo review. We disagree. While the trial court did mention Wells’ inability to prove culpability on the part of Zadeck, we find that this reference did not constitute a requisite that Wells prove culpability in order to prevail; rather, it was merely a component of the trial court’s analysis in considering whether prescription may have been tolled.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining Defendants’, Donald J. Zadeck and Zadeck Energy Group, Inc.’s, peremptory exception of prescription is affirmed. Costs of this appeal are assessed to Plaintiff, James P. Wells, Jr.

AFFIRMED.

BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge,

dissenting.

liThe primary issue before us is whether plaintiffs mother, ergo plaintiff, knew or should have known about defendant’s production of plaintiffs unleased mineral interests. The majority’s holding would have us impute constructive knowledge of defendant’s production to Mrs. Wells as a result of her failure to monitor her mineral interests. This holding is neither rooted in equity nor justice. Noting Zadeck’s admission that Mrs. Wells’ one-fourth interest was overlooked, how is it equitable to punish someone for their failure to monitor their unleased mineral interests, when the law places no such burden.on them, while rewarding a company for its failure to perform an affirmative duty created by law-i.e., to provide notice of forced pooling, issue reports to owners of unleased interests, and tender payment to unleased mineral interest owners within 180 days? See La. R.S. 80:10 and 30:103.1, which state in pertinent parts:

La. R.S. 30:10 A

(l)(a) All orders requiring pooling shall be made after notice and hearing. They shall be upon terms and conditions that are just and reasonable and that will afford the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense.... (3) If there is included in any unit created by the commissioner of conservation one or more unleased interests for which the party or parties entitled to market production therefrom have not made arrangements to separately dispose of the share of such production attributable to such tract, and the unit operator proceeds with the sale of unit production, then the unit operator shall pay to such party or parties such tract’s pro rata share of the proceeds of the sale of production within one hundred eighty days of such sale. li>La. R.S. 30:103.1
Whenever there is included within a drilling unit, as authorized by the commissioner of conservation, lands producing oil or gas, or both, upon which the operator or producer has no valid oil, gas, or mineral lease, said operator or producer shall issue the following reports to the owners of said interests by a sworn, detailed, itemized statement:
(1) Within ninety calendar days from completion of the well, an initial report which shall contain the costs of drilling, completing, and equipping the unit well.
(2) After establishment of production from the unit well, quarterly reports which shall contain the following:
(a) The total amount of oil, gas, or other hydrocarbons produced from the lands during the previous quarter.
(b) The price received from any purchaser of unit production.
(c) Quarterly operating costs and expenses.
(d) Any additional funds expended to enhance or restore the production of the unit well.

In Amoco, supra, Amoco, a major oil and gas corporation, subleased five of its leaseholds in Vermilion Parish. The contract executed by the parties contained a “reassignment clause,” whereby the defendants, one of which was IMC, were not to allow the cancellation of any of the leases without providing notice to Amoco at least 60 days in advance. In 1976 the defendants allowed one of the leases to expire, and in 1981 the defendants released then nonproducing acreage from the other four leases. The defendants subsequently took new leases in their names on these properties. In 1993 Amoco hired a landman to audit its properties being operated by outside companies such as the defendants. This audit led to the discovery of |sthe lease cancellations 18 and 13 years prior. Summarizing the parties’ arguments and its conclusion, the Third Circuit stated:

IMC argues Amoco should have discovered the lease cancellations earlier because they were duly recorded in the Vermilion Parish public records. IMC cites a number of cases in support of this contention.... In all of these cases, the court found the plaintiff had a duty to investigate the public records because [plaintiff] was clearly placed on notice of a possible injury. Amoco argues these cases do not apply to an unsuspecting plaintiff, who has no notice of the potential claim as a direct result of defendant’s failure to provide information it was required by contract to furnish. We find Amoco’s argument persuasive in this instance.... (Emphasis added) (Citations omitted).

Amoco, supra at 830-31.

Noting the factual similarities of the Amoco case, the majority nonetheless disregards its applicability in the present matter and, without any qualifying distin-guishment, merely states that “the present case boils down to one of proof, or the lack thereof.” While I recognize that the record proves, and Zadeck does not dispute, that Zadeck and/or its predecessors-in-interest failed to furnish Mrs. Wells with the information and payments it was obligated by law to furnish her, the majority finds plaintiffs inability to demonstrate any actions his mother may have performed to monitor her mineral interests fatal. Based upon this reasoning, proof that a-defendant failed to perform its affirmative duties is of no consequence unless the plaintiff can also prove that she performed her nonexistent duty of monitoring her mineral interests.

The majority contends that Mrs. Wells could have learned of the mineral production through the exercise of reasonable diligence. According to the majority, Mrs. Wells could have communicated with neighbors of the | property or called her successor-in-title on the phone. Plaintiffs testimony, however, reveals that Mrs. Wells was a single mother living in a different parish than the Property at the time the Shirey Well No. 1 began production. She had no car and barely scraped by on a minimum wage job. Regardless, the majority apparently finds that reasonable diligence entails tracking down and cold calling potential neighbors and possible successors-in-title to a property sold more than 16 years prior, to find out if, unbeknownst to her, an oil and gas company was usurping her mineral interests. To place such a onerous burden on her to, basically, do the job that Zadeck and their predecessors-in-interest should have done, without her having some prior notification of a possible injury, is unreasonable.

Further, I take issue with the majority’s repeated characterization of Mrs. Wells as someone who had familiarity with the exploration, leasing, and drilling processes as a result of her one-time execution of a mineral lease. Not only did she execute the lease contemporaneously with Mr. Wells, which could indicate her reliance on his mineral leasing knowledge, but the particular well drilled as a result of the lease was actually drilled on the Property. Meanwhile, in the present case, the completed well was not on the 120 acres in which Mrs. Wells had an interest, but was located on a different tract within the drill-mg unit. To try to equate the knowledge needed to execute a mineral lease where a well will be drilled on the actual property you have an interest in, to being familiar with the complexities involved in a forced pooled unit, is quite an overreach.

UThe equitable nature of the circumstances in each case determines whether contra non valentón is applicable. See Matthews, supra. In the case sub judice, the totality of the circumstances demonstrates that Zadeck, a sophisticated oil and gas company, failed to perform its affirmative duty to, inter alia, tender unto plaintiff and his predecessors-in-interest their pro rata share of the production proceeds. Mrs. Wells, an unsuspecting plaintiff, had no knowledge that her unleased mineral interests were being produced. Her ignorance was not the result of her being negligent, as the law places no duty on an unleased mineral interest owner to scour the public records or cold call successors-in-title to make sure that their mineral interests are not being usurped. Accordingly, I find that the majority was erroneous in its conclusion that, as a result of Mrs. Wells’ failure to monitor her mineral interests, plaintiff could not avail himself of the jurisprudential exception of contra non valentem.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, PEATROSS, and MOORE, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

      . Additional defendants who continued mineral production after Zadeck ceased its operation and ownership remain in the lawsuit and are not involved in this appeal.

      . Shirey Well No. 1 is not located on the Property. Per appellant’s brief, the SONRIS website reflects that production from the Shi-rey Well continued until September 2006, and it is still listed as "active-producing.”

      . Wells states in his original brief that he is the owner of the mineral interests at issue. Zadeck’s original brief states, however, that Wells is not the owner of the mineral interests at issue since there has been no succession filed following Ms. Wells’ death. Additionally, Zadeck points out that Wells has a sister and she has not joined the lawsuit. In between the filing of Wells’ original brief and his reply brief, two affidavits of death and heirship were filed in the Conveyance Records of DeSoto Parish, Louisiana, stating that Ms. Wells died intestate on May 21, 2002, and that she had two children, one of which is plaintiff, James P. Wells, Jr.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Larry D. WILLIAMSON, Jr., Appellant.
    Nos. 46,179-KA, 46,180-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Burnes, Burnes & Talley, by Dmitrc I. Burnes, Lavalle B. Salomon, Monroe, LA, for Appellant.
    William R. Coenen, Jr., John M. Lancaster, District Attorneys, Penny Douciere, Johnny R. Boothe, Assistant District Attorneys, Rayville, LA, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

liThe defendant, Larry D. Williamson, Jr., pled guilty to one count of aggravated assault with a firearm in violation of La. R.S. 14:37.4, and to one count of second degree battery in violation of La. R.S. 34.1. Each offense is punishable by imprisonment, with or without hard labor, for up to five years. Defendant was sentenced to four years’ imprisonment at hard labor for the aggravated assault with a firearm conviction to run concurrently with a sentence of three years’ imprisonment at hard labor for the second degree battery conviction. The defendant now appeals. We affirm.

FACTS

On April 14, 2006, the defendant, Larry D. Williamson, Jr., repeatedly called the cell phone of his wife, Donna Hitt Williamson, but she did not answer. Fearing her husband’s reprisal, Mrs. Williamson did not go home that night. The next morning she went to her house, and seeing her husband’s truck was gone, she went into the house and put her one-year-old son, Mason, in his bed.

According to Mrs. Williamson, the defendant came out of a closet, grabbed her by the hair and dragged her across the floor. He put her on the bed and pointed a .357 Magnum pistol at her head, clicking the hammer back and forth, while threatening to kill her and then himself. He also threatened to burn down the house.

Mrs. Williamson grabbed the baby and ran out of the house. The defendant ran behind her and fired the .357 Magnum pistol in Mrs. Williamson’s direction as she handed the baby to her sister, Darby Hitt, who, along with their mother, Donna Hitt, had just arrived at the residence. |2The Williamsons’ neighbor, Glenda Daniels, called 911. Shortly thereafter, Franklin Parish Sheriffs deputies arrived, and the defendant relinquished the .357 Magnum pistol, which contained five live rounds. Although the defendant’s shot did not hit Mrs. Williamson, she reported to the police that she was scared to death. The defendant was arrested.

On May 23, 2008, the defendant was charged with attempted second degree murder, aggravated assault, domestic abuse battery, and simple battery. On March 23, 2010, the bill of information for attempted second degree murder was amended to aggravated assault with a firearm, and the domestic abuse battery charge was amended to second degree battery. The defendant withdrew his former plea of not guilty and pled guilty to the amended charges. In exchange for this plea, the state dismissed the aggravated assault and simple battery charges. The defense and the state agreed to submit the Franklin Parish Sheriffs Office report as the factual basis for defendant’s plea. The court ordered a presentence investigation (“PSI”) and scheduled sentencing for June 15, 2010.

At the sentencing hearing, the trial court reviewed the PSI, letters submitted by the victim and her family, as well as letters submitted by and on behalf of the defendant. The court recognized that the defendant voluntarily completed an anger management course in August 2008. From the PSI report, and police reports, the court noted that when the sheriffs office initially arrived, the defendant did not state that the shooting was accidental. Rather, it was some time later that the defendant told the investigator that he did not shoot at his wife, but that “he was trying to let lathe hammer go forward on the pistol and it slipped out of his hand and went into the ground.” The court opined that the shooting was not accidental.

The court also reviewed the defendant’s criminal history, and noted he was a first-time felony offender. However, the court noted that this was not defendant’s first act of violence against the victim. Approximately two months prior to the instant offense, Mrs. Williamson sought a protective order against the defendant wherein she alleged that she was picked up by her hair, thrown to the floor, kicked in the ribs and dragged across the floor; however, the protective order was dismissed.

There were several mitigating and aggravating factors that the court considered prior to imposing defendant’s sentences. The court listed the following as mitigating factors: defendant is 29 years old and a first felony offender; he is a hard worker paying $1,100 per month in child support, and imprisonment would place a hardship upon the victim because she would not receive the child support; and the defendant voluntarily participated in an anger management program. Nevertheless, the court noted several aggravating factors. The most alarming factor was that the defendant shot a .357 Magnum pistol at or in the direction of the victim and his own child. Defendant used threats of violence and actual violence in the commission of the offense. Also, this was not the defendant’s first act of violence against this same victim. Furthermore, the court found that this incident was planned because the defendant hid his truck. The court also noted that the defendant bene-fitted from the plea agreement because it greatly reduced his sentencing exposure. Lastly, the court considered the impact of this offense |4on the victim and her family.

The court sentenced the defendant to four years’ imprisonment at hard labor on the charge of aggravated assault with a firearm and three years’ imprisonment at hard labor for the second degree battery charge. The sentences were ordered to run concurrently with each other, and the defendant was to be given credit for time served.

The defendant filed a motion to reconsider sentence and asserted numerous factors in mitigation of the sentences imposed. Specifically, the defendant alleged the shooting was accidental, and several people could have testified to the facts which support his version of the incident. He also asserted that he suffers from a physical condition in his arms which caused the gun to slip and mistakenly fire. He alleged that he did not intend to shoot and/or harm anyone because he left five live rounds in the .357 Magnum pistol.

Defendant requested that the court consider the fact that Mrs. Williamson is no longer fearful of the defendant, and that the defendant is considered a churchgoing man, hard-working and a helpful citizen in the community, as noted in the witnesses’ letters. He also reiterated that he voluntarily completed an anger management course. Based upon these factors, the defendant requested that the court hold a hearing and reconsider the original sentences imposed. The trial court denied the motion, noting that the factual basis was based upon the police reports, to which the defense had earlier agreed. Further, the court noted that it had previously considered all of these factors prior to imposing the sentence. This | r,appeal followed.

DISCUSSION

By his first assignment of error, the defendant contends that the district court erred by imposing excessive sentences for the two offenses. He contends that a probated sentence is more appropriate under the circumstances.

The state argues that the defendant’s sentences are appropriate considering the nature of the offense committed and the benefit defendant received from the plea agreement.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,-855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App. 2 Cir. 8/13/08), 989 So.2d 267. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. R12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, the court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In this instance the trial court adequately considered the PSI report, witnesses’ letters, letters from the victim and her family, and all aggravating 17and mitigating factors set forth in La. C. Cr. P. art. 894.1. The court recognized that the defendant was only 29 years old, a first-time felony offender, and that the defendant’s incarceration would place an undue hardship upon Mrs. Williamson because she would not receive the monthly child support. Nonetheless, there were several aggravating factors in this case. Specifically, the defendant shot a .357 Magnum pistol, which could have resulted in serious bodily injury or even death, in the direction of his wife while his own son was practically in her arms. This shooting was not believed to be accidental, considering that the defendant was in a jealous rage, that he hid his truck in order to surprise the victim, and that he threatened to kill the victim. Also, this was not the defendant’s first time committing acts of violence against this victim.

Furthermore, the defendant was originally charged with attempted second degree murder, aggravated assault, domestic abuse battery and simple battery. The attempted second degree murder charge alone would have exposed defendant to a possible sentence of at least 10 years, and as much as 50 years’ imprisonment at hard labor without parole, probation or suspension of sentence. La. R.S. 14:27(D)(l)(a). With the plea agreement, however, the defendant’s maximum exposure was limited to 10 years. Of those 10 years, the defendant received four years’ imprisonment at hard labor and three years’ imprisonment at hard labor to run concurrently. Considering the seriousness of this offense and defendant’s propensity to commit acts of violence against the same victim, this sentence is neither grossly disproportionate nor does it shock the sense of justice.

| ¡/This assignment of error therefore is without merit.

By his second assignment, the defendant alleges that the district court erred by failing to grant a hearing on defendant’s motions to reconsider sentence pursuant to C. Cr. P. art. 881.1. He contends that he would have been able to present evidence to support reconsideration of the sentences imposed if the court would have granted a hearing on its motion to reconsider sentence.

The state argues that the record reflects that the trial court considered all of the factors the defense attempted to raise in the motion to reconsider sentence prior to imposing defendant’s sentence.

La. C. Cr. P. art. 881.1, in pertinent part, states:

D. The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider sentence without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion. (Emphasis added.)

Thus, a trial court is not required to conduct a hearing on a defendant’s motion to reconsider sentence. State v. Vance, 45,250 (La.App. 2 Cir. 5/19/10), 36 So.3d 1152; State v. Bedoya, 08-630 (La. App. 5 Cir. 12/16/08), 998 So.2d 1283, writ denied, 2009-0484 (La.11/20/09), 25 So.3d 784.

In this instance, the trial court did not abuse its discretion when it denied defendant’s request for a hearing on the motion to reconsider sentence. In its written reasons, the court noted that the defense agreed to submit the Franklin Parish Sheriffs Office reports as the factual basis. Therefore, although the defendant had the opportunity to contest the facts | contained in the police report, and to supply the court with his version of the events, he elected not to do so. Furthermore, defendant’s motion to reconsider did not allege any new factors that the court had not previously considered. Considering that the defendant offered nothing new for the court to consider, there was no abuse by the trial court of its discretion when it denied the motion to reconsider sentence without a hearing.

This assignment of error is therefore without merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Donald BOSWELL, Appellant.
    No. 46,181-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Rehearing Denied May 12, 2011.

      Phillips & Grosjean Law Firm, By Marti Grosjean-Pearson, for Appellant.
    J. Schuyler Marvin, for District Attorney Appellee.
    John M. Lawrence, Marcus R. Patillo, Assistant District Attorneys.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   BROWN, Chief Judge.

| defendant, Donald Boswell, was convicted of attempted aggravated rape and was sentenced to 48 years at hard labor without parole, probation or suspension of sentence. Money seized from him at the time of his arrest was deemed forfeited. Defendant has appealed his conviction and sentence.

Facts

Defendant, Donald Boswell, was indicted by the Webster Parish Grand Jury with one count of aggravated rape of a juvenile in violation of La. R.S. 14:42(A)(4) and one count of indecent behavior with a juvenile in violation of La. R.S. 14:81. The original bill charged that the crimes were committed between January 1, 2009, and August 31, 2009, but was subsequently amended to provide that they occurred between December 1, 2008, and August 31, 2009. Defendant initially pled not guilty; however, on April 5, 2010, defendant entered a plea of guilty to one count of attempted aggravated rape. The factual basis for the guilty plea, provided by the prosecutor during the Boykin hearing, was as follows:

[I]f this matter were to go to trial, the State would present evidence which would prove that Donald Boswell between the months of December first of 2008 and August 31, 2009, around or about that time, did commit attempted aggravated rape of a juvenile, initials TM, whose date of birth was August 28, 1997, by having anal, oral or vaginal intercourse without the lawful consent of the victim, victim being under the age of 13 years. We would present evidence which would show after Mr. Boswell was Mirandized by Detective Scott Tucker of Webster Parish Sheriffs Department, here in Webster Parish, did state to Detective Tucker that ... he had sexual intercourse at least three times with the minor.... And that took place here in Webster Parish.

After consultation with defendant, defense counsel stated on the record that the recitation of the facts was “substantially correct” with the |2exception that defendant did not agree on the number of times the conduct occurred. When asked directly whether the factual recitation was substantially correct subject to the clarification offered by defense counsel, defendant answered, “Yes, sir.”

At sentencing, the trial court recited the relevant provisions of La. C. Cr. P. art. 894.1 and reviewed the contents of the presentence investigation report (“PSI”) which included a detailed and disturbing account of defendant’s conduct giving rise to his conviction. The victim had been entrusted to defendant by her mother, who was one of defendant’s employees. While defendant was allegedly caring for the victim, he had her sleeping in his bed in the nude and had both vaginal and oral intercourse with her. Most troublesome is the report’s account of defendant’s belief, reasserted in his brief on appeal, that the 11-year-old victim was the aggressor or initiator.

The judge also reviewed defendant’s social and criminal history as described in the PSI report. The judge noted that defendant was 37 years of age at the time of sentencing and that he had completed high school and 58 hours of study at Bossier Parish Community College. The court noted that defendant, since graduating from high school, has had a good work history, including the operation of his own business. The judge also noted that defendant is the divorced father of one son.

The trial judge then noted defendant’s lack of a significant criminal history, having had no prior felony convictions. The judge also referred to various letters he had received, one written by defendant, others written on phis behalf, and one written by the victim’s father regarding the impact of defendant’s crime on his daughter and family.

The judge listed as aggravating factors that: defendant’s conduct manifested deliberate cruelty to the victim;, defendant should have known about his victim’s 'vulnerability due to her youth; defendant used his status as a trusted family friend in committing the crime; and the victim would be permanently impacted by the crime. As mitigating factors, the trial court referenced defendant’s first felony offender status; his previously recited social history; and a letter defendant had written to the court in which he expressed some remorse, although he still blamed the victim’s aggressiveness for his conduct.

The trial judge sentenced defendant to 48 years at hard labor without the benefit of parole, probation or suspension of sentence. Additionally, the trial court ordered approximately $5,000 seized from defendant’s home at the time of his arrest to be submitted to the district attorney’s office for remittance to the victim for counseling costs. A motion to reconsider sentence filed by defendant was denied. This appeal followed.

Discussion

In the defense brief it is stated that “defendant concedes that punishment is necessary and required for his criminal activity and [he] does accept punishment. However, it is the excessive punishment that is at issue.” Defendant argues that the sentence is excessive because it was not particularized in light of certain alleged mitigating factors. Furthermore, he Purges that the sentence is excessive because he was denied the effective assistance of counsel throughout the proceedings.

Excessive Sentence

For attempted aggravated rape, the statute provides for a sentence of no less than 10 years and no more than 50 years at hard labor, without benefit of probation, parole, or suspension of sentence. La. R.S. 14:27(D)(l)(a) & 14:42(D).

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.04/30/08), 981 So.2d5 792; State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.01/28/04), 865 So.2d 280, writ denied, 04-0597 (La.09/24/04), 882 So.2d 1165.

In the present case, the record shows that the trial judge adequately considered the aggravating and mitigating circumstances applicable to defendant, thereby complying with La. C. Cr. P. art. 894.1. Defendant was originally charged with one count of aggravated rape of an 11-year-old girl. According to the record and the PSI, he confessed to multiple counts when interviewed by law enforcement officers. Given that a conviction on one count of aggravated rape would have resulted in a mandatory life sentence, the 48-year sentence on a conviction for attempted aggravated rape is not grossly disproportionate to the seriousness of the offense.

Furthermore, the record shows that the victim had been entrusted to defendant’s care, a trust which he violated in facilitating the commission of the crime. Though the trial court finds that defendant expressed some remorse in his letter to the court, the court also noted that defendant persisted in blaming the young victim for being the aggressor. When this offense and the 48-year hard labor sentence are viewed in light of the harm done to society and the young victim, the sense of justice is not shocked. While this first offender received a near maximum sentence for the pled | fioffense, the offense of conviction does not adequately describe his egregious actions. Accordingly, the sentence imposed is not constitutionally excessive, nor does it reflect a manifest abuse of the trial court’s discretion.

Ineffective Assistance

Among the deficiencies in his representation, defendant alleges that counsel failed to: consult with him about the case to any significant degree; investigate constitutional violations by law enforcement; review discrepancies in the police report; object to the state’s use of the report’s contents as a factual basis; and raise defendant’s objection that two of the members of the grand jury that indicted him were defendant’s co-workers.

Most of defendant’s claims of ineffective assistance of counsel regard the alleged role his attorney’s conduct played in defendant’s decision to enter a guilty plea and in the sentencing phase. The record herein does not disclose the necessary evidence to decide those claims of ineffective assistance of counsel and they will be more properly raised in a post-conviction writ in the trial court, where a district judge can order a full evidentiary hearing.

Conclusion

Affirmed.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.

Rehearing denied.

WILLIAMS, J., would not consider a rehearing.