text:
    STATE of Louisiana v. Darryl BOUDREAUX.
    No. 08-1408.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      J. Phil Haney, District Attorney, Sixteenth Judicial District, Walter J. Senette, Jr., Assistant District Attorney, Franklin, LA, for Appellee State of Louisiana.
    Karla M. Baker, Thomas M. Calogero, Martin E. Regan Jr. & Associates, PLC, New Orleans, LA, for Defendant/Appellant Darryl Boudreaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   PETERS, J.

hThe State of Louisiana (state) charged the defendant, Darryl Boudreaux, by bill of information with one count of vehicular homicide, a violation of La.R.S. 14:32.1, and one count of hit-and-run driving, a violation of La.R.S. 14:100. Pursuant to a plea agreement, the defendant plead guilty to the offense of hit-and-run driving, and the state dismissed the vehicular homicide charge. When he entered his guilty plea, the defendant also admitted to being a second felony offender as defined by La. R.S. 15:529.1. Based on his guilty plea and second-felony-offender status, the trial court sentenced the defendant to serve twelve years at hard labor and ordered that the sentence be served consecutively with a sentence the defendant was serving for a prior conviction. After the trial court rejected his motions to reconsider his sentence and to withdraw his guilty plea, the defendant perfected this appeal, asserting four assignments of error.

DISCUSSION OF THE RECORD

The facts in this criminal prosecution are not seriously disputed. While operating a motor vehicle on the morning of April 2, 2006, the defendant struck and killed Joshua Derouen. He left the scene of the accident and went to great lengths to repair his vehicle and hide the fact that he had struck Mr. Derouen. At the time he was sentenced for the instant offense, the defendant was serving a five year sentence for a prior conviction of second degree battery, a violation of La.R.S. 14:34.1.

OPINION

In his appeal, the defendant raises the following assignments of error:

1. Whether the “open-ended” plea was too vague and indeterminate as to render it constitutionally infirm.
2. Whether the trial court erred in sentencing [the defendant] to consecutive time.
|23. Whether the trial court erred in denying the motion to withdraw guilty plea.
4. Whether [the defendant] received an excessive sentence.

Assignment of Error Number One

The defendant asserts in this assignment of error that his acceptance of the plea agreement was not knowingly and intelligently made because he did not understand the sentencing consequence of the plea agreement. “After sentencing, a guilty plea may be withdrawn only if it is shown that the plea is constitutionally infirm.” State v. Filer, 99-626, p. 7 (La.App. 3 Cir. 9/20/00), 771 So.2d 700, 704, writ denied, 00-2918 (La.9/21/01), 797 So.2d 63. In State v. Readoux, 614 So.2d 175, 176 (La.App. 3 Cir.1993), this court held:

A guilty plea is invalid, or constitutionally infirm, when a defendant is induced to enter a plea of guilty by a plea bargain agreement, or what he reasonably or justifiably believes was a plea bargain agreement, and the terms of the bargain are not satisfied. State v. Jones, 546 So.2d 1343, 1346 (La.App. 3d Cir.1989); State v. Taylor, 535 So.2d 1229, 1230 (La.App. 3d Cir.1988), quoting State v. Dixan, 449 So.2d 463, 464 (La.1984).

The record reflects that the incident giving rise to the criminal charges occurred on April 2, 2006; the state filed its bill of information charging the defendant with the original offenses on June 30, 2006; the defendant pled not guilty to the charges on July 7, 2006; the defendant entered his guilty plea and admission as a habitual offender on January 22, 2008; and the trial court sentenced him on April 21, 2008. The record also contains a document entitled, “CERTIFICATE OUTLINING FELONY PLEA AGREEMENT,” dated January 22, 2008, which reads in part as follows:

I. CHARGE:
The defendant, DARRYL BOU-DREAUX, agrees to plead guilty |sas SECOND FELONY OFFENDER (LA. R.S. 15:529.1).
II. PLEA AGREEMENT:
The defendant, DARRYL BOU-DREAUX, will plead OPEN ENDED and the Court will order a certified criminal history and set a sentencing hearing to be held at a later date.
I HEREBY UNDERSTAND and agree to all the above terms and conditions of my plea agreement and conditions of probation. I also understand that this plea agreement contemplates the District Attorney’s office will discuss the plea agreement with the victim(s) of said crime, if any, and that this plea agreement may be revoked at any time prior to the entry of my plea of guilty.

This language is followed by the signature of the defendant and his trial counsel.

At the January 22, 2008 hearing wherein the defendant entered his plea to the offense, the trial court made the consequences of the defendant’s plea very clear. The trial court first explained to the defendant the rights he was waiving by pleading guilty. After receiving an affirmation from the defendant that he understood those rights and the consequences of the loss thereof, the trial court recited the particulars of the statute defining the offense of hit-and-run driving, as set forth in La.R.S. 14:100(A), and explained the sentencing range for a conviction involving a fatality, as set forth in La.R.S. 14:100(0(2). After explaining the particulars of the offense and the potential punishment, the trial court inquired whether the defendant understood what was explained. In each instance, the defendant stated, ‘Tes, Ma’am.”

When the trial court turned to the defendant’s admission that he was a second felony offender, it again clearly explained the process and procedure to the defendant. After reading all of La.R.S. 15:529.1(A)(l)(a), the trial court again asked the defendant if he understood the particulars of the statute identifying him as a second |4f'elony offender and the sentence that might be imposed. In response to each question, the defendant again stated, ‘Tes, Ma’am.”

We find nothing in the record that suggests the defendant’s plea and acknowledgment of habitual offender status were not knowingly and intelligently made. Therefore, we find no merit in this assignment of error.

Assignment of Error Number Two

In this assignment of error, the defendant asserts that the trial court erred in causing his sentence to run consecutively with the sentence he was serving for the second degree battery conviction. We agree, but find that this is harmless error.

The record establishes that the defendant’s prior conviction of second degree battery initially resulted in a partially suspended sentence. His probation was revoked effective February 13, 2008, and he began serving the remainder of the original sentence at that time. The sentencing judge in the second degree battery proceeding was not the presiding judge in the matter now before us. Additionally, the sentencing judge made no comment concerning whether the sentence should run concurrently or consecutively with any other sentence.

Louisiana Code of Criminal Procedure Article 901(B) provides in pertinent part that “[wjhen a defendant who is under a suspended sentence ... is convicted of any offense under the laws of this state ... his suspended sentence or probation may be revoked as of the date of the commission or final conviction of the offense.” With regard to how that revoked sentence is to be served, Article 901(C)(2) provides:

When the new conviction is a Louisiana conviction, the sentence shall run consecutively with the sentence for the new conviction, unless |5the court originally imposing the suspension or probation specifically orders that said sentences are to be served concurrently, in which case the court minutes shall reflect the date from which the sentences are to run concurrently.

(Emphasis added).

Louisiana jurisprudence has consistently held that the authority to order consecutive sentences under this circumstance rests exclusively in the proceeding wherein the earlier sentence was imposed and not in the subsequent proceeding. State v. Kendrick, 96-1636 (LaApp. 3 Cir. 6/25/97), 699 So.2d 424, writ denied, 98-2159 (La.12/18/98), 731 So.2d 280. See also State v. Jefferson, 33,333 (La.App. 2 Cir. 5/10/00), 759 So.2d 1016, writ denied, 00-1945 (La.9/21/01), 797 So.2d 59, and State v. Hines, 07-313 (La.App. 5 Cir. 11/27/07), 970 So.2d 707.

In this matter, the trial court lacked the authority to order that the sentence it was imposing run consecutively with the original sentence. However, the defendant’s probation was revoked on February 13, 2008, or after he entered his guilty plea in the matter now before us. Because the sentencing judge in the prior offense did not order that the sentence run concurrently with the sentence that might be imposed on the instant conviction, the provisions of La.Code Crim.P. art. 901(C)(2) mandate that the latter sentence be consecutive. Therefore, in the matter before us, the effect of the trial court’s order was to impose a sentence already required. Thus, the trial court’s |fiattempt to run the sentences consecutive to one another is harmless error.

Assignment of Error Number Three

In this assignment of error, the defendant argues that the trial court erred in not granting his motion to withdraw his guilty plea. He bases this argument on his assertion that his trial counsel misrepresented to him the sentencing range for his plea as a second felony offender. Specifically, he asserts that his trial counsel told him that he would be sentenced to no more than seven years at hard labor, and possibly as little as five years.

At the hearing on his motion to withdraw his pleas, the defendant testified that when he signed the open-ended plea agreement, his trial counsel informed him that his sentence would be between five and seven years. The defendant also testified that he did not respond to the trial court’s question during the plea proceeding concerning whether any promises were made to him regarding his possible sentence “[bjecause I was believing in my lawyer” and because his trial counsel had also informed him that if he pled, “they’re going to drop the charges on my family.”

The defendant’s trial counsel testified that he did discuss with the defendant the sentencing ramifications of the state’s plea offer. During that discussion, he informed the defendant that he thought the trial court “would be inclined to sentence him from seven to ten years,” although he emphasized that it could be “a little less” or “a little more.”

Given the record as a whole, we do not find the defendant’s self-serving testimony to be sufficient to establish that his trial counsel promised he would receive only seven years imprisonment in exchange for his pleas.

It is well settled that if a defendant’s misunderstanding is not induced by or attributed to representations made by the district attorney or the trial |7court, there is no ground for invalidating the guilty plea. State v. Malmay, 548 So.2d 71, 73 (La.App. 3d Cir.1989); State v. Jones, [546 So.2d 1343 (La.App. 3 Cir.1989) ].
It is also well settled that a misunderstanding between a defendant and counsel for defendant does not have the same implication as a breached plea bargain agreement, and this misunderstanding does not render the guilty plea invalid. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Johnson, 533 So.2d 1288, 1292 (La.App. 3d Cir.1988), writ denied, 563 So.2d 873 (La.1990). In the absence of fraud, intimidation, or incompetence of counsel, a guilty plea is not made less voluntary or less informed by the considered advice of counsel. See, State v. Johnson, 461 So.2d 1259, 1261 (La.App. 1st Cir.1984).

Readoux, 614 So.2d at 176-77.

We find no merit in this assignment of error.

Assignment of Error Number Four

The defendant asserts in his final assignment of error that his twelve-year sentence is constitutionally excessive. In considering this assignment, we first note that La.R.S. 15:529.1(A)(l)(a) provides that “[i]f 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.” Because La.R.S. 14:100(0(2) provides that the maximum incarceration that may be imposed on a conviction of hit-and-run driving is ten years at hard labor, the sentencing range for the defendant is a minimum of five years and a maximum of twenty years at hard labor. Thus, the defendant received a sentence slightly above the mid-range.

In State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17, the supreme court stated the standard of review for a sentence is as follows:

The trial judge is given a wide discretion in the imposition of |Rsentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). 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, 95-2785 (La.5/31/96), 674 So.2d 957. 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.

At the sentencing hearing, the trial court took into consideration the defendant’s criminal history, which included an arrest for criminal damage to property, one conviction for domestic abuse, and two convictions for second degree battery. On both second degree battery convictions, the defendant had been placed on probation and his probation was subsequently revoked.

After listening to testimony from the victim’s family and friends, as well as the defendant and his family and friends, and after a lengthy recitation regarding the blame for the defendant’s actions, the trial court imposed the twelve-year sentence.

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/08), 846 So.2d 786,789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

In State v. Williams, 02-707, p. 8 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1101, this court held that “[t]he trial court may also consider other factors not provided by La.Code Crim.P. art. 894.1,” including “the benefit obtained by the |3defendant through the plea bargain.” In this case, the defendant clearly benefitted from the plea agreement in that the state dismissed the vehicular homicide charge which, standing alone, provided for an incarceration sentencing range of five to thirty years at hard labor, with at least three years of any sentence imposed being without benefit of probation, parole, or suspension of sentence. La.R.S. 14:32.1(B). Additionally, the defendant went to great lengths to cover up his crime and was apprehended weeks later after an extensive police investigation.

We find no merit in this assignment of error.

DISPOSITION

We affirm the defendant’s conviction, adjudication as a multiple felony offender, and sentence in all respects.

AFFIRMED.

      . The trial court sentenced the defendant to serve five years at hard labor with all but one year being suspended and the defendant being placed on supervised probation.

      . We note that both Kendrick and Jefferson equate "the court” as used in La.Code Crim.P. art. 901(C)(2), to the individual judge who imposed the original probationary sentence. This language raises specific issues where that judge has died or left office before the probation revocation hearing takes place as it seems to suggest that in such situations, Article 901(C)(2) would be rendered inapplicable, and no one would have authority to impose consecutive sentences. In the matter before us, the judge who imposed the original probationary sentence was also the judge who revoked that probation. Given that particular fact situation, we do not have to address the issue past concluding that the revocation occurred in the same legal "proceeding” and only that presiding judge had the authority to apply Article 901(C)(2). We will not consider the effect of Kendrick and Jefferson to other fact situations not before us, and we save those issues to another day.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Glenn M. HEBERT v. J. Elise SHELTON.
    No. 08-1275.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Thomas Robert Shelton, Shelton Law Firm, Lafayette, LA, for Defendant/Appel-lee, J. Elise Shelton.
    R. Scott lies, Lafayette, LA, for Plain-tifi/Appellant, Glenn M. Hebert.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.

      . The medical expenses and litigation-related costs advanced by a workers' compensation claimant's attorney are part of the attorney’s fee as determined in the attorney's privilege statutes, providing the attorney with a superi- or privilege over that of the statutory lien available to the workers' compensation insurer for those sums it had provided. La.R.S. 23:1103 and 37:218. See Theodile v. RPM Pizza, Inc., 03-987 (La.App. 3 Cir. 2/4/04), 865 So.2d 980.

   THIBODEAUX, Chief Judge.

| Plaintiff-Appellant, Glenn M. Hebert, brought an action for money due in the amount of $9,074.45 against Defendant-Appellee, J. Elise Shelton. Ms. Shelton is an attorney who hired Mr. Hebert to perform vocational rehabilitation services and to provide a life care plan on behalf of her injured client, Mr. Magnon. The trial court granted Ms. Shelton’s exception of no right of action and dismissed Mr. Hebert’s claim. Because we find that Mr. Hebert had a legal interest in instituting a suit to recover payments for services performed, we reverse the trial court’s granting of the exception of no right of action.

While the hearing was brought to dispose of three other exceptions, the exceptions of vagueness, no cause of action, and prescription, the trial court did not provide for their disposition in its judgment. Those omissions in the trial court’s judgment result in a denial of each exception, which we affirm, as more fully set forth below. Mr. Hebert’s suit is remanded to the trial court for a full trial on the merits.

I.
ISSUES
We must decide:
(1) whether the plaintiffs petition was vague and ambiguous;
(2) whether the plaintiffs petition stated a cause of action;
(3) whether the trial court erred in granting the defendant’s exception of no right of action; and,
(4) whether the plaintiffs action is prescribed.

_kIL

FACTS AND PROCEDURAL HISTORY

Ms. Shelton hired Glenn Hebert, a vocational rehabilitation counselor, to provide services for her client, Mr. Magnon, who had lost both arms in a work-related accident, though one arm was reattached and had limited use. Mr. Hebert submitted five invoices to Ms. Shelton totaling $9,074.45 for work done between September 2000 and March 2002. None of the invoices was paid. Ms. Shelton’s office acknowledged that Mr. Hebert was owed payment on his invoices in a letter dated December 18, 2003, and Ms. Shelton provided assurances of forthcoming payment after settlement of the tort suit in a letter dated January 19, 2006. After receiving no payment on his invoices, Mr. Hebert filed a “Petition for Monies Due” on September 29, 2006.

Ms. Shelton filed a dilatory exception of vagueness, and peremptory exceptions of prescription, no cause of action, and no right of action. The trial court granted the exception of no right of action and declined to rule on the other exceptions. Mr. Hebert appealed the judgment. Ms. Shelton answered the appeal, asking this court to affirm the trial court in granting her exception of no right of action, and, in the alternative, to grant her exception of prescription. Based upon our review, we reverse in part and affirm in part the judgment of the trial court, and remand.

III.

LAW AND DISCUSSION

Standard of Review

Appellate review of the trial court’s granting of the exception of no right of action is de novo review. Aucoin v. Fell, 00-1254 (La.App. 3 Cir. 2/7/01), 779 |3So.2d 1087. The standard of review for sustaining or denying a peremptory exception of no cause of action is de novo because it raises a question of law. See, Kinchen v. Livingston Parish Council, 07-478 (La.10/16/07), 967 So.2d 1137.

Exceptions

In the present case, Ms. Shelton filed a dilatory exception of vagueness and three peremptory exceptions, including the exceptions of no cause of action, no right of action, and prescription. At the hearing, Ms. Shelton’s attorney indicated that all exceptions, which had been briefed prior to the hearing, could be disposed of by addressing the exception of prescription first. However, when all evidence had been presented,-the trial court ruled only on the exception of no right of action.

Where the trial court fails to rule on a demand raised by the pleadings, the silence in the judgment is deemed a rejection of the demand. Metro Elec. & Maintenance, Inc. v. Bank One Corp., 05-1045 (La.App. 3 Cir. 3/1/06), 924 So.2d 446 (citing Sun Finance Co., Inc. v. Jackson, 525 So.2d 532 (La.1988)); VaSalle v. Wal-Mart Stores, Inc., 01-462 (La.11/28/01), 801 So.2d 331. Accordingly, in this case, the trial court has effectively denied the exceptions of vagueness, no cause of action, and prescription. We will address those denials, along with the exception of no right of action.

Exception of Vagueness or Ambiguity of the Petition

Vagueness or ambiguity of the petition is a dilatory exception. La.Code Civ.P. art. 926(A)(5).

The exception of vagueness or ambiguity of the petition does not entitle defendants to demand exactitude and detail of pleadings beyond those necessary to place them on notice of the causes of action alleged. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890. It is sufficient if Plaintiffs petition fairly informs 14Pefendants of the nature of the cause of action and includes sufficient substantive particulars to enable them to prepare their defense. Id.

Gray v. State, 05-617, p. 14 (La.App. 3 Cir. 2/15/06), 923 So.2d 812, 822.

In this case, Mr. Hebert’s “Petition for Monies Due” stated that he was a licensed vocational rehabilitation consultant who performed evaluations and submitted a life care plan for Ms. Shelton’s client, Caleb Brian Magnon, on five specific dates. Mr. Hebert provided the exact dates, a description of the service provided on each date, an amount charged for each service on each date, and a total amount due. He asserted that he had presented a certified demand, attaching it to his petition, and that he had not been paid the amount due. Mr. Hebert included in his petition a prayer for the amount due and for attorney fees of at least twenty-five percent. We find that Mr. Hebert provided sufficient detail to put Ms. Shelton on notice of the cause of action against her. Moreover, in addition to finding that the pleading itself is not ambiguous, in this case, the record contains clear evidence of itemized bills and correspondence between the parties well in advance of the filing of suit that defeats any argument that Ms. Shelton was not notified of Mr. Hebert’s claim against her. We, therefore, affirm the tacit denial of the exception of vagueness.

Peremptory Exception of No Cause of Action

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the |Bwell-pleaded facts in the petition must be accepted as true. [A] petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.

Kinchen, 967 So.2d at 1138 (citations omitted).

Mr. Hebert filed an unambiguous petition for a specific amount of money owed, $9,074.45. He provided detailed facts including the names and professional relationships between the parties, the manner in which the indebtedness arose, and the amount of the indebtedness. Accordingly, where our Louisiana codes provide for various actions for the recovery of compensation for services rendered and actions on open accounts (see La.Code Civ.P. art. 74.4; La.R.S. 9:2781; La.Civ.Code art. 3494; and various articles on obligations), Mr. Hebert stated a cause of action for money owed. Consequently, we affirm the trial court’s tacit denial of this exception as well.

Peremptory Exception of No Right of Action

The exception actually granted in this case was Ms. Shelton’s exception of no right of action. At the hearing on the exceptions, Elise Shelton testified that, following Mr. Magnon’s accident on December 2, 1999, she asked Mr. Hebert to examine Mr. Magnon for vocational rehabilitation because the workers’ compensation insurer was not providing that service. She then testified that in October 2000, she had filed a claim with the workers’ compensation carrier for the payment of Mr. Hebert’s services up to that point, and the claim was denied. The record indicates that the workers’ compensation carrier had consented to the tort settlement, handled by Ms. Shelton’s father, in March 2005, but that compensation issues were still in dispute. The trial court stated that Ms. Shelton handled only the workers’ compensation portion of the case, that those claims were still pending, and | fithat Mr. Hebert’s claim for money owed was premature. This finding apparently formed the basis of the trial court’s granting of the exception of no right of action.

Mr. Hebert assigns as error the trial court’s granting of Ms. Shelton’s exception of no right of action. He asserts that it was, in reality, the granting of an exception of prematurity, which was not before the court, and which was waived because it not pled, pursuant to La.Code Civ.P. art. 926(B). We agree with that portion of Mr. Hebert’s argument. The dilatory exception of prematurity must be pled prior to, or along with, the answer to the suit or it is waived. La.Code Civ.P. arts. 926 and 928. In this case, Ms. Shelton filed a total of seven exceptions, three of which were denied in a previous judgment. None of the exceptions filed was an exception of prematurity. Therefore, the prematurity defense was waived.

However, implicit in the court’s ruling was also a finding that Mr. Hebert’s recourse for recovery of his payment was under the Workers’ Compensation Act, and not against Ms. Shelton. Mr. Hebert argues that this was error because he had no recourse under the Act where he was hired independently by Ms. Shelton. He further argues that the bulk of his billing was for a life care plan which is not recoverable under the workers’ compensation statutes. Mr. Hebert is partially correct. His bills for vocational rehabilitation are not recoverable under the Act because Ms. Shelton hired him independently and of her own accord. As a workers’ compensation attorney, Ms. Shelton should have been aware that vocational rehabilitation counselors must first be designated by the insurer/employer and approved by the Office of Workers’ Compensation, or their services will not be covered by statute. |7La.R.S. 23:1226(c); J.E. Merit Constructors, Inc. v. Hickman, 99-1389 (La.App. 3 Cir. 3/1/00), 758 So.2d 320, reversed in part on attorney fees only, 00-943 (La.1/17/01), 776 So.2d 435; Robert Sepulvado Logging, Inc. v. Sepulvado, 05-1630 (La.App. 3 Cir. 5/31/06), 931 So.2d 528.

As to the life care plan, we have held that, while the life care plan is not a recoverable expense under La.R.S. 23:1226, it may be recovered under La.R.S. 23:1203(A) where the employer has a duty to furnish all necessary medical and non-medical services. Williamson v. CIGNA/Insurance Co. of North America, 595 So.2d 325 (La.App. 3 Cir.), writ denied, 596 So.2d 197 (La.1992). Therefore, all of Mr. Hebert’s bills were potentially recoverable under the Act, but not by Mr. Hebert; rather, they were recoverable by Ms. Shelton as Mr. Magnon’s attorney. Ms. Shelton should then have a first privilege recourse against her client, Mr. Magnon, for her expenses, including the litigation expenses for the services of a vocational rehabilitation counselor.

| ¡¡However, this is not an appeal of a workers’ compensation claim. The cause of action herein is against Ms. Shelton for non-payment of money due on professional services rendered. Ms. Shelton admitted hiring Mr. Hebert for professional vocational rehabilitation services. Under La. Code Civ. P. art. 927(A)(5), the peremptory exception of no right of action tests whether the plaintiff has an interest in enforcing an action or the capacity to bring the action. Sanders v. Gore, 95-660 (La.App. 3 Cir. 7/10/96), 676 So.2d 866, writ denied, 96-2072 (La.11/15/96), 682 So.2d 762. It tests whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Turner v. Busby, 03-3444 (La.9/9/04), 883 So.2d 412.

Here, where the cause of action is nonpayment for professional services rendered, and the petition seeks to recover money due, it is clear that Mr. Hebert, who allegedly provided those services on various occasions, is the party possessing the right to bring the action. The trial court’s granting of the exception of no right of action is reversed.

Peremptory Exception of Prescription

Elise Shelton answered Mr. Hebert’s appeal in this case, asking us to affirm the judgment granting her exception of no right of action or, in the alternative, to grant her exception of prescription. Ms. Shelton contends that Mr. Hebert’s claim is prescribed, pursuant to La.Civ. Code art. 3494, because all work performed by him was completed more than three years before he brought suit. Mr. Hebert asserts that Ms. Shelton’s acknowledgment of the debt for services interrupts prescription under La.Civ.Code art. 3464. Those articles are properly cited and provide in pertinent part as follows:

| flArt. 3494: Actions subject to a three-year prescription
The following actions are subject to a liberative prescription of three years: (1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees ... money ...;
(4) An action on an open account.
Art 3464. Interruption by acknowledgment
Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.
Revision Comment (e) provides:
(e) Louisiana jurisprudence is settled that an acknowledgment interrupting li-berative prescription may be oral or written, formal or informal, and express or tacit. See Lake Providence Equip ment Co. v. Tallulah Production Credit Ass’n, 257 La. 104, 241 So.2d 506 (1970).

Mr. Hebert submitted bills to Ms. Shelton as follows:

9/20/00 Vocational Rehabilitation Services $ 375.00
11/2/00 Life Care Plan $5,250.00
1/11/01 Vocational Rehabilitation Services $ 720.00
3/04/02 Vocational Rehabilitation Services $ 629.45
9/21/04 Vocational Evaluation $2,100.00
Total $9,074.45

Mr. Hebert filed suit on September 29, 2006. On December 18, 2003, in response to Mr. Hebert’s letter six days prior, Ms. Shelton’s office sent a letter to Mr. Hebert’s attorney stating that, “Mr. Hebert’s services were rendered to Mr. Magnon in his Workers’ Compensation claim and third party action.” It further stated that the bills had been submitted to and denied by the Workers’ Compensation carrier, which denial would be addressed in an upcoming hearing the following month. The letter also stated that compensation for Mr. Hebert’s work was of the utmost concern, 110and that all necessary efforts would be made to ensure that he was paid. Hence, the letter was an acknowledgment under Article 3464 sufficient to interrupt prescription as to some of the bills.

However, we find that none of Mr. Hebert’s bills had prescribed under the applicable doctrine of contra non va-lentem. In Cole v. Celotex Corp., 620 So.2d 1154, 1157 (La.1993), the Louisiana Supreme Court articulated as follows:

The doctrine of contra non valentem agere nulla currit praescriptio prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff. It is often difficult to identify a precise point in time at which the claimant becomes aware of sufficient facts to begin the running of prescription. In re Medical Review Panel of Howard, 573 So.2d 472 (La.1991).
In Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987), we stated:
Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.
When prescription begins to run depends on the reasonableness of a plaintiffs action or inaction. Jordan, 509 So.2d at 423.

In the present case, Mr. Hebert provided vocational rehabilitation services and developed a Life Care Plan for Ms. Shelton’s client, who had lost his arms. While Ms. Shelton and her attorney/father attempted at the hearing to attribute | nall of Mr. Hebert’s work to the workers’ compensation claim, Mr. Hebert testified that he told Ms. Shelton that he did not do workers’ compensation cases. Mr. Hebert, a 58-year old vocational rehabilitation counselor, life care planner, and medical case manager, with twenty-seven years of experience, further testified that he was told that he would be paid an hourly rate for his services when the case settled. Our research reveals that the overwhelming majority of the cases involving life care plans are not workers’ compensation cases; rather, the life care plan is most often used to show an element of damages for future care costs in a tort suit.

The Louisiana Supreme Court has identified four situations in which the doctrine of contra non valentum may apply:

(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;
(4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

Whitnell v. Menville, 540 So.2d 304, 308 (La.1989) (citations omitted).

In the present case, we find that situations two (2), three (3), and four (4) apply in favor of Mr. Hebert. The condition of the settlement of the tort suit satisfies conditions (2) and (4), and the reassurances given by Ms. Shelton satisfy condition number (3). In addition to the letter of December 18, 2003, Ms. Shelton also wrote to Mr. Hebert’s attorney on January 19, 2006, stating that settlement [of the tort suit] had been agreed upon as of March 31, 2005, but no documents had been signed, nor 112had there been an approval from the Office of Workers’ Compensation. The January 2006 letter specifically stated, “As soon as any monies are being disbursed in this matter, Mr. Hebert’s outstanding invoices will be disbursed.” Accordingly, we find that the earliest time at which Mr. Hebert could have known that he might have to bring a suit to get paid for his services was well after the letter of assurance dated January 19, 2006. Where Mr. Hebert filed suit eight months later, in September of 2006, he was well within the three-year prescriptive period of La.Civ.Code art. 3494.

IV.

CONCLUSION

Based upon the foregoing, and for the reasons set forth fully in this opinion, the judgment of the trial court granting the exception of no right of action is reversed. The trial court’s implicit denial of the exceptions of prescription, no cause of action, and vagueness or ambiguity are affirmed. The case is remanded for trial on the merits.

All costs of this appeal are assessed against the defendant, Elise Shelton.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Mr. Hebert also argued that the trial court erred in granting an exception of no right of action based upon prematurity, instead of granting his motion for involuntary dismissal of the exception of prescription under La. Code Civ.P. art. 1672, because he would have had the opportunity to present evidence on the prescription issue under La. Civ. Code art. 931. We disagree. Article 1672 is in Title V entitled ‘‘Trial'' and refers to the dismissal of an action, not the dismissal of an exception. The articles on “Exceptions" appear in Chapter 3 of Title I of the Code of Civil Procedure. Moreover, the record contained all evidence necessary to address the prescription issue.

      . § 1203. Duty to furnish medical expenses; prosthetic devices; other expenses
      A. In every case coming under this Chapter, die employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. All such care, services, and treatment shall be performed at facilities within the state when available. The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less.

      . While the letter was written by Ms. Shelton's secretary, the trial court found, and we agree, that it bound Ms. Shelton under the laws on agency. Additionally, while the letter states that compensation would be in accordance with an original agreement that the bills would be held by Mr. Hebert during the pendency of Mr. Magnon’s workers' compensation claim, the letter indicates services rendered on the compensation claim and the third party claim, i.e., the tort suit.


author: PAINTER, Judge. COOKS, J.,

text:
    Cleotter SIMIEN, et al. v. MEDICAL PROTECTIVE COMPANY, et al.
    No. 08-1185.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Lloyd Dangerfield, Attorney at Law, Lafayette, LA, for Plaintiffs-Appellants, Cleotter Simien, et al.
    Marc W. Judice, Judice & Adley, A.P.L.C., Lafayette, LA, for Defendants-Appellees, Medical Protective Company and Dr. John Rainey.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

^Plaintiffs, Cleotter and Ruben Simien, filed' a medical malpractice suit against Medical Protective Company and Dr. John Rainey relative to the recurrence of Mrs. Simien’s thyroid cancer. Plaintiffs now appeal the dismissal of their suit by the trial court’s grant of summary judgment in favor of Defendants. For the following reasons, we affirm the trial court’s decision.

FACTUAL AND PROCEDURAL BACKGROUND

In January of 1998, Mrs. Simien was diagnosed with thyroid cancer and underwent a total thyroidectomy. She began treating with Dr. Rainey following a consult request from Dr. Ernest Kinchen, Jr. after the surgery. She continued treating with Dr. Rainey and numerous other physicians for various medical problems until she failed to show for an appointment with Dr. Rainey on September 22, 2005. Mrs. Simien, who was hoping to become pregnant, was seen at M.D. Anderson Cancer Center on February 14, 2005, and was informed that her thyroid cancer had recurred. She underwent surgery for the removal of multiple nodules and the recurrent tumor. Following this diagnosis, Mrs. Simien, in proper person, requested that a medical review panel be formed to review her allegations that Dr. Rainey failed to order or perform the necessary medical testing based on her earlier diagnosis of thyroid cancer and that such failure allowed her cancer to recur and grow undetected.

In due course, a medical review panel was convened. The panelists were Dr. Deborah Abernathy, Dr. Howard G. Wold, and Dr. Bashar Saad. On March 22, 2007, the panel rendered its opinion that Dr. Rainey fell below the requisite standard of care in his treatment of Mrs. Simien, stating:

The [pjanel is of the opinion that the tests ordered by Dr. Rainey throughout the follow-up care did not include an annual measurement of the thyroglobu-lin.
|3In 2004, when the elevated thyroglobu-lin was noted, this result was elevated for someone who had previously had a total thyroidectomy. Therefore, a more aggressive work-up at that time, looking for evidence of recurrence, would have been appropriate.

However, the panel went on to find that the conduct complained of was not a factor of the resultant damages. The panel stated: “In fact, the prognosis for the patient is excellent and the failure to take such test did not contribute negatively to the condition of the patient.”

Thereafter, on or about July 24, 2007, Mrs. Simien and her husband, again in proper person, filed suit in district court against Dr. Rainey and Medical Protective Company. Defendants answered the petition and propounded discovery upon Plaintiffs, requesting, among other things, that Plaintiffs identify all experts with whom they had consulted or whom they would call to testify at trial. Plaintiffs failed to respond to said discovery. In December 2007, Defendants filed a motion for summary judgment on the ground that Plaintiffs were unable to produce the required expert evidence needed to support their assertion that Dr. Rainey breached the applicable standard of care and that this breach caused the alleged damages. In February 2008, Plaintiffs obtained legal counsel, requested a continuance of the hearing on the motion for summary judgment (to which Defendants did not object), and filed an opposition to the motion for summary judgment alleging that there had not been adequate time for discovery. Other than the panel opinion and an affidavit of Mrs. Simien, who is herself a registered nurse, outlining her medical treatment, Plaintiffs submitted no evidence in opposition to the motion for summary judgment.

A hearing on the motion for summary judgment was held on April 21, 2008. Plaintiffs still had not responded to the outstanding discovery. When questioned by the trial court as to whether an expert could be retained by Plaintiffs by the first of 14June, Plaintiffs’ counsel indicated that he was unable to make such an assurance. The trial court then granted Defendants’ motion for summary judgment, implicitly agreeing with Defendants’ assertions that expert testimony was required and that Plaintiffs could not offer sworn expert testimony to meet their burden of proving the essential elements of their claim, and further stated that there was no good faith effort on the Plaintiffs’ part to move the case forward. Plaintiffs now appeal, again asserting that adequate discovery had not been taken and that there existed a genuine issue of material fact regarding causation.

DISCUSSION

We review this matter de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Accordingly, we must determine, using the same criteria applied by the trial court, whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. However, in Butler v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730), we noted:

[I]f the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but rather he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Moreover, in Young v. Mobley, 05-547, p. 5 (La.App. 3 Cir. 3/1/06), 923 So.2d 917, 920-21, we explained:

Louisiana Revised Statute 9:2794 provides the applicable burden of proof for a plaintiff in a medical malpractice case. That article | ¡-.provides that a 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 that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. Generally, expert testimony is required to establish the applicable standard of care and whether or not that standard of care was breached. Butler, 876 So.2d 259 (citing Davis v. Atchison, 37,832 (La.App. 2 Cir. 10/29/03), 859 So.2d 931). There is an exception to this general rule for cases where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Thomas v. Southwest La. Hosp. Ass’n., 02-0645 (La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-0476 (La.4/25/03), 842 So.2d 401 (citing Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228).

We agree with the trial court’s finding that this is not a case where negligence is so obvious that expert testimony is unnecessary. Issues of the relation between any alleged failure on the part of Dr. Rainey to properly test Mrs. Simien, the recurrence of her cancer, and any resultant damages are complex, and we find that Plaintiffs would be required to present expert testimony to establish the elements of her case. As in Young, we note that Plaintiffs would not be able to use the testimony of defense experts (in the form of the medical review panel opinion) to establish causation since the panel indicated that its opinion was that the conduct complained of was not a factor of the resultant damages.

Defendants met their initial burden of proof on the motion for summary judgment. The panel opinion shows that there is an absence of factual support for an essential element of Plaintiffs’ claim, i.e., that there was a causal connection between the breach and the resulting injury. As such, the burden shifted to Plaintiffs to “sufficiently establish the existence of proof of an essential element of his claim on which he is to bear the burden of proving at trial.” Alex v. Dr. X, 96-1196, p. 4 (La.App. 3 Cir. 3/5/97), 692 So.2d 499, 502; La.Code Civ.P. art. 966(C). Plaintiffs produced no expert testimony as to causation in opposition to the motion for summary | [judgment and could not agree to any time frame in which to retain such an expert. Therefore, we find the Plaintiffs did not successfully rebut Defendants’ showing on summary judgment. Accordingly, because Plaintiffs failed to produce factual support sufficient to establish that they would be able to satisfy their eviden-tiary burden of proof at trial, the trial court was correct in granting summary judgment in favor of Defendants.

We next address Plaintiffs’ argument that there had been insufficient time to conduct discovery. Nearly three years elapsed between the alleged malpractice and the grant of the summary judgment in favor of Defendants. Approximately nine months passed between the filing of Plaintiffs’ petition and the hearing on the motion for summary judgment. Plaintiffs had retained counsel nearly two months before the hearing. No answers to outstanding discovery were made during that time. Further, Plaintiffs could not, or would not, commit to any time frame for the retention of experts when such an option was offered by the trial court. Plaintiffs were given every opportunity to present expert testimony to support their claims.

We further note, as we did in Young, 923 So.2d at 921 (citing Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908, 912 (La.1986)), that “[tjhere is no absolute right to delay action on a motion for summary judgment until discovery is completed.” Louisiana Code of Civil Procedure article 966 provides that a defense motion for summary judgment may be made at “any time” and that “[a]f-ter 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.” [Emphasis added.] The trial court has discretion to render a summary judgment or to require further discovery. Estate of Loveless ex rel Loveless |7v. Gay, 41,575 (La.App. 2 Cir. 12/13/06), 945 So.2d 233. As such, on the facts of this case, we find no error in the trial court’s grant of summary judgment while there was outstanding discovery or before Plaintiffs retained an expert.

DECREE

The trial court’s grant of summary judgment in favor of Defendants, Medical Protective Company and Dr. John Rainey, is affirmed. Costs of this appeal are assessed against Plaintiffs-Appellants, Cleot-ter and Ruben Simien.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

|⅞1 respectfully disagree with the majority’s decision to affirm the judgment of the trial court granting Defendants’ motion for summary judgment. I believe the trial court erred in finding Plaintiffs did not make a good faith effort in proceeding forward with the lawsuit and in finding that expert testimony at the summary judgment stage was necessary to defeat the Defendants’ motion.

As to the trial court’s finding that Plaintiffs did not make a good faith effort to proceed timely, I cannot ascertain from the record any blanket refusal by Plaintiffs’ counsel to provide expert testimony. Instead, it appears he was only apprehensive in agreeing to the time period set forth by the trial court to secure an expert. The record indicates the trial court was willing to allow Plaintiffs sixty days, or until June 1, 2008, to retain an expert. However, the trial court warned Plaintiffs’ counsel that if an expert was not secured within this sixty day period the case would be dismissed. Plaintiffs’ counsel maintained he could guarantee discovery would begin within that time frame, but stated he could not agree to a stipulated dismissal of the case if an expert was not secured within sixty days. Plaintiffs’ counsel requested a continuance until September, 2008, at which time he felt comfortable that an expert could be secured and the failure to do so would be at Plaintiffs’ peril.

Louisiana Code of Civil Procedure Article 966(C)(1) mandates that a motion 12for summary judgment should not be granted until “adequate discovery” has taken place. The court in Hubbard v. North Monroe Medical Center, 42,744 (La.App. 2 Cir.12/12/07), 973 So.2d 847, 849, writ denied, 08-0101 (La.3/7/08), 977 So.2d 907, noted that “[f]undamental fairness dictates that a party opposed to a motion for summary judgment must be given a reasonable opportunity for discovery before the motion is heard.”

It is true, the record indicated over two years elapsed from the time of the alleged act of malpractice to the grant of summary judgment. However, during that time Plaintiffs proceeded in proper person, and was unable to procure counsel until less than two months before the hearing on the pending motion for summary judgment. Defendants argue Plaintiffs would not agree to any time frame for the retention of experts. However, as stated earlier, that is not an accurate account. Plaintiffs’ counsel agreed that the case needed to proceed forward, and even agreed that he would answer the interrogatories within ten days. Despite this, the trial court found by refusing to agree to a stipulated sixty day dismissal period if an expert was not secured, Plaintiffs were “not making a good faith effort.”

Considering the circumstances, I believe a miscarriage of justice results by depriving Plaintiffs an opportunity to defend the summary judgment motion. Further, there is nothing in the record suggesting Plaintiffs did not make a good faith effort to secure legal representation prior to the filing of the summary judgment motion. The lapse of two months for retained counsel to depose and prepare for the pending motion was unreasonable. The trial judge’s insistence that he agree to an automatic dismissal within sixty days if an expert was not secured likewise was unreasonable and may have subjected counsel to a malpractice claim for acquiescing to a demand which may not be proeedurally warranted or legally required to establish causation |sin this case. “To allow the judgment below to stand would be to permit technical pleading rules to triumph over actual justice.” See Peters v. Hortman, 03-2597 (La.App. 1 Cir.10/29/04), 897 So.2d 131, quoting Lamb v. Lamb, 430 So.2d 51, 54 (La.1983).

Moreover, I do not agree with the majority and the trial court that expert testimony was essential in this case to establish causation on the part of Dr. Rainey. The MRP found that Dr. Rainey deviated from the appropriate standard of care. Nevertheless, it concluded there was no casual connection between his negligence and Plaintiffs’ injuries.

Apparently, the MRP believed since Mrs. Simien’s prognosis in the future was “excellent,” any resultant surgeries and medical complications from the recurrence of her cancer did not cause her any lasting harm. This is not the legal standard for determining causation in medical malpractice cases.

The Louisiana Supreme court in Pfiffner v. Correa, 94-924, 94-963, 94-992, p. 8 (La.10/17/94), 643 So.2d 1228, 1233, noted the “jurisprudence has also recognized that there are situations in which expert testimony is not necessary.” The Pfiffher court also commented “[tjhere are surely cases in which there are obvious unnecessary delays in treatment which constitute medical malpractice and where causation is evident” and “there no doubt are other instances in which the medical and factual issues are within the lay person’s ability to perceive as negligence and harmful through delay in treatment.” Id. at 1234.

In Browning v. West Calcasieu Cameron Hosp., 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La.2/13/04), 867 So.2d 691, this court reviewed the trial court’s denial of the defendant Hospital’s motion for summary judgment against the family of a patient who died subsequent to being treated by emergency medical technicians dispatched from the hospital. In that case, |4the hospital argued the plaintiffs were required to produce expert evidence to prove their medical malpractice claim. This court addressed that issue and wrote as follows:

Louisiana Revised Statutes 9:2794(B) gives any party to a suit the right to subpoena any physician, without his or her consent, for a deposition or testimony at trial to establish a health care provider’s standard of care. However, the statute is silent on the necessity of experts.
In Pfiffner v. Correa, our supreme court pointed out that while a majority of Louisiana courts have held that expert testimony is necessary, others have held that it is not absolutely required. The latter merely state that the standard of care and a breach of that standard are “best determined from the testimony of other experts in the field.” Therefore, such testimony is persuasive, but not always needed.
The jurisprudence has recognized various situations that do not necessitate medical malpractice plaintiffs to proffer expert evidence. The Pfiffner court listed a few examples:
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. Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, (violation of LSA-R.S. 40:2113.4 which imposes a duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim.
The Plaintiffs must demonstrate by a preponderance of the evidence that a causal nexus exists between WCCH’s fault and Mrs. Browning’s death. The Pfiffner court noted that there are “cases in which there are obvious unnecessary delays in treatment which constitute medical malpractice and where causation is evident.”
| .^Furthermore, our supreme court recognized that the factfinder does not always need expert testimony to prove that a patient’s death is causally connected to an unreasonable delay in diagnosis and treatment of that patient.
Moreover, in Estate of Adams v. Home Health Care of Louisiana, 00-2494 (La.12/15/00), 775 So.2d 1064, the supreme court recently set aside an appellate court’s ruling granting a healthcare provider summary judgment when the plaintiff did not provide expert testimony to prove the defendant’s negligence (failing to call the attending doctor when the condition worsened) caused the damages (amputation). Our supreme court found such evidence to be unnecessary and, thus, explained:
Causationis an issue of fact that is generally decided at the trial on the merits. As the dissenting judge on the intermediate court noted, the admitted negligence clearly caused some damages, even if it merely hastened the amputation by one day. Plaintiffs damages for pain and suffering during the period of negligence, for aggravation of her medical condition, and for loss of any chance of saving her foot or of delaying the amputation is more appropriately decided by trial on the merits, even if plaintiffs case regarding the amount of damages is considerably weakened by the dearth of expert testimony.
We find the Brownings’ failure to proffer expert evidence to prove causation unimportant at this stage in the proceedings, even though, ultimately, its absence may weaken their case, since the delay in diagnosing and treating Mrs. Browning’s heart condition was surely a factor in bringing about her eventual demise. Clearly, she would have received immediate emergency medical care for her heart condition much sooner if she had agreed to transport.
Thus, we find that the Brownings did not need to present expert testimony to prove the existence of a causal connection between WCCH’s alleged negligence and Mrs. Browning’s death.

I, likewise, find there is a serious dispute as to the necessity for expert testimony to establish a causal connection between Dr. Rainey’s negligence and the injuries that resulted from the recurrence of Mrs. Sim-ien’s thyroid cancer. If anything, the facts in the present case are even stronger than those in Browning. The question in Browning concerned whether the emergency technicians (EMTs) dispatched from the defendant hospital deviated below the appropriate standard of care and if so, ^whether that contributed to the death of the patient. It was uncontradicted that even after calling for an ambulance the first time, the decedent in Browning refused transport to the hospital, which undeniably compromised her condition. However, the evidence also established the EMT’s clearly failed to adhere to the hospital's protocols, which was sufficient evidence of their negligence. Our court then concluded there were too many issues of genuine fact for summary judgment to be appropriate. In the present case, Dr. Rai-ney was found by the MRP to have deviated from the appropriate standard of care, the result of which caused Mrs. Simien’s cancer to remain undetected for a prolonged period of time. Mrs. Simien was forced to undergo a major surgical procedure, which included removal of multiple lymph nodes and the recurrent tumor. She then underwent extensive radiation therapy to help cure the cancer which had advanced substantially without detection. She maintained, as well, that she has endured other difficulties as a result of the recurrence which would not have occurred if discovered timely.

The trial coui’t granted summary judgment for two interrelated reasons: (1) it felt an expert witness was required for Plaintiffs to meet their burden of proving causation, and (2) Plaintiffs would not agree to the trial court’s mandate that it secure an expert witness within sixty days or have their case automatically dismissed. As stated above, I find this was one of those situations referenced in Pfijf-ner in which expert testimony may not be necessary. Submission of the full hospital records and reports of the treating physicians at M.D. Anderson may suffice to establish medical causation. Further, considering that Plaintiffs represented themselves throughout the MRP proceedings and only secured counsel less than two months before the summary judgment hearing, I find Plaintiffs were denied fundamental fairness when the trial court refused to allow further time for “adequate discovery” as required by La. Code |7Civ.P. art. 966(C). Finally, the MRP did not have for review the full records from M.D. Anderson when considering the causation question. Thus, for these reasons, and the fact the record shows questions of fact still exist as to the duration and severity of the complications endured by Mrs. Simien as a result of her undetected thyroid cancer recurrence, I believe the trial court erred in granting summary judgment in this case.


author: AMY, Judge.

text:
    STATE of Louisiana v. Joseph “Joey” Alford GRANGER.
    No. 08-1478.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Joseph “Joey” Alford Granger.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe defendant pled guilty to issuing worthless checks over $500.00, a violation of La.R.S. 14:71. He was sentenced to serve six years at hard labor with the sentence to run consecutively with the sentences imposed on five other convictions. The defendant appeals, asserting that the sentence is excessive and that the trial court erred in ordering him to pay restitution to the victims of the crimes after he was sentenced. We affirm the defendant’s sentence, but vacate the Judgment of Restitution. We remand for further proceedings.

Factual and Procedural Background

This matter is one of six companion cases. In this case, the defendant, Joseph “Joey” Alford Granger, was initially charged by bill of information with twelve instances of issuing worthless checks between December 2000 and August 14, 2002. The State amended the bill on December 12, 2005 to reflect one count of issuing worthless checks over $500, as part of a plea agreement.

The defendant entered a guilty plea to the amended bill. He also entered guilty pleas for five other offenses. The trial court ordered a presentence investigation report.

On March 14, 2008, the trial court sentenced the defendant to six years at hard labor with the sentence to run consecutively with the sentences imposed for the other convictions.

Thereafter, the defendant filed a Motion to Amend or Modify Sentence or Alternatively Motion to Reconsider Sentence. The trial court denied the motion on 12April 14, 2008. Defense counsel later proffered evidence and testimony with regard to the denial of the Motion to Reconsider Sentence.

On June 4, 2008, the trial court issued a “Judgment of Restitution,” ordering the defendant to pay restitution to the victims of the crimes underlying the six convictions.

The defendant appeals, asserting that the sentences imposed are excessive and that the trial court erred in ordering restitution after sentencing the defendant.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent requiring correction.

Excessive Sentence

The defendant, on appeal, contends that his sentence is excessive, particularly because the six-year sentence was ordered to run consecutively to the six-year sentences imposed on the other five charges to which he also pled guilty. Relying on La. Code Crim.P. art. 883, he asserts that “all six cases clearly constituted a common | -¡scheme or plan to the extent that the state consolidated all six for an initial arraignment, a guilty plea and sentencing.” Further, the defendant argues that the trial court’s reasons for ordering that the sentences be served consecutively do not “articulate a basis for overriding the presumption of concurrent sentences.”

The defendant did not specifically raise the error of consecutive sentences in his motion to reconsider sentence filed in the trial court. Accordingly, the sentence will be reviewed under a bare excessiveness claim. See La.Code Crim. P. art. 881.1 and State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied, 06-2857 (La.9/21/07), 964 So.2d 324.

With regard to excessive sentence claims, this court stated:

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

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

The trial court, at the sentencing hearing, stated:

At this time the Court is called upon to go through Article 894.1 with regard to the sentencing guidelines. 894.1 indicates that there should be a sentence of imprisonment if any of the following occurs.
Is there an undue risk during a period of suspended sentence or probation that the defendant would commit another offense?' It’s noted that the defendant is in fact a third time felony offender based on his classification from the Department of Corrections. Since he has been in his late twenties he has been constantly in trouble with the law, with all of these matters apparently involved with some form or allegation of taking of which there has at least been two prior felony convictions. The Court would answer that in the affirmative.
Is the defendant in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution? It is apparent that as a third time offender that the defendant at this point has not learned to cease and desist and, in fact, there are six individual counts before the Court at this point and in comparing that with the past offenses the Court is also answering that in the affirmative; that a commitment to an institution is appropriate, as well as the defendant’s failure to adhere to the request to appear in Court on the number of bench warrants that his record also demonstrates.
Would any lessor [sic] sentence deprecate the seriousness of the offense? Obviously at some point the opportunities for probation based on the statutory guidelines indicating that he is not eligible as a third time offender must indicate the State’s preference to some form of incarceration and further to continue to allow that defendant to be on the street. He’s basically a hindrance and hazard to the public and would deprecate the seriousness of this offense.
In looking at aggravating circumstances the Court notes the following: The offender offered or has been offered or has given or received something of value for the commission of these offenses by the very nature. The Court finds that to be aggravating.
The offender has used his position or status to facilitate the commission of these offenses. The victims in this case were vulnerable. | BThey trusted the defendant, many of them in times of need following the hurricane and needing help to assist them in other repairs and items. The defendant has used his position and ability to be somewhat of a craftsman as far as floor coverings and such to gain their trust and then once he’s received funds then basically disappears with those monies and not provide the services that he previously rendered. In addition, he has submitted a number of worthless checks in an attempt to obtain something for nothing.
Other aggravating [sic], it is noted that these offenses have resulted in significant permanent injury or economic losses to the victims. In reviewing the pre-sentence investigation there is an aggregate of $46,622.76 from a number of victims that was determined by the officer with Probation and Parole and that is a significant economic expense, as well as the inability then to trust other individuals could cause some permanent detriment to the victims in this matter. The Court would find that aggravating.
The offenses involve multiple victims and incidences for which separate sentences have not been imposed. While the matters before the Court include six separate felony offenses, it is noted that there were a number of other offenses pursuant to that guilty plea that were in fact dismissed and the Court is not considering those, however it is noted that multiple victims and incidences did exist for aggravating purposes.
The offender was persistently involved in similar offenses not already considered as a criminal history or part of a multiple offender adjudication. He’s not been addressed as a multiple offender, however in a review of his history, while there’s not been convictions, the Court cannot ignore the number of allegations that have been brought against the defendant for the past fifteen, twenty years. The Court also finds that this offense was a major economic offense.
Other aggravating circumstances, specifically the defendant absconding from his sentencing hearing when given the opportunity to remain free and having received notice in open court made the decision to try and avoid the entirety of his sentence or repayment to society and by avoiding that proceeding not only delayed the Court’s business, but gave an indication as to his true intent, whether he was remorseful and willing to accept punishment for the actions that he has been involved with.
The defendant had made arguments that he would compensate or would compensate [sic] the victims, but at this time the Court’s received no proof that that in fact has been done and it is the Court’s opinion that those promises and now looking at the track record were merely an effort to delay the ultimate sentencing for the matters before the Court. That would be aggravating more than mitigating.
|6The defendant has no prior history of delinquency or criminal activity and has led a law abiding life for a substantial period of his life. That is much more aggravating than mitigating.
The defendant’s criminal conduct was the result of circumstances unlikely to recur. More aggravating than mitigating.
The defendant is particularly likely to respond affirmatively to probationary treatment. Again, he’s had those opportunities in the past and failed to take advantage of them. I find that to be more aggravating than mitigating.
The Court, if it did not mention one of the aggravating or mitigating circumstances specifically, they were considered and, if not mentioned, deemed insignificant or inapplicable to the incident [sic] offense.
At this time the defendant has pleaded guilty to docket 20582-02, felony worthless checks in an amount greater than $500; docket 3827-03, theft greater than $500, noting that that was one count with multiple victims inclusive; docket 28024-02, theft greater than $500; docket 20576-03, theft greater than $500; docket 4995-02, theft by fraud; and docket 28023-02, theft greater than $500.
At this time the Court hereby sentences the defendant, Mr. Joseph Alford Granger, to serve the sum of six years on each of those dockets. That term will run consecutive with one another and the Court at this time references Code Article 883 of the Code of Criminal Procedure. As previously indicated the Court is of the opinion it needs to annunciate particular justification if the sentence should be established as consecutive. The basis of that, the Court finds that the defendant has used his position to prey on societal needs. Each of these victims was an individual that had unique issues, losses, for which the defendant took advantage of. They occurred on different times, different physical locations, and all with the defendant’s intent to take from that specific victim or the matters associated with those specific dockets. Some were property takings, some were money takings for equipment rental, repair. Some were monies that were going to be received in advance to repair, such as remodeling or installing flooring, and many of the others were significant issuance of worthless checks to vendors or creditors that the defendant has pled guilty to knowing that there were no funds to pay for those.
The defendant will serve a total of 36 years with the Department of Corrections as a result of that.

|7The defendant in this case committed separate crimes, with separate victims, locations, and dates. Pursuant to La.Code Crim. P. art. 883, the sentence was to be served consecutively, unless the court expressly directed that it be served concurrently. Accordingly, the trial court did not err in ordering that the six sentences run consecutively.

Regarding the determination of whether the penalty imposed shocks one’s sense of justice, we note that the defendant received a mid-range sentence. Louisiana Revised Statutes 14:71(0 instructs that the penalty for issuing worthless checks in an amount greater than $500.00 is up to ten years with or without hard labor or a fíne of not more than three thousand dollars, or both. The defendant was sentenced to six years, a mid-range sentence. Also, the defendant benefitted from the State’s aggregating the multiple charges into a single count. La.R.S. 14:71(F). As such, this assignment of error lacks merit. Restitution

In his second assignment of error, the defendant asserts that the trial court erred in ordering that he pay restitution two months after a hard labor sentence was imposed. He contends that, pursuant to La.Code Crim.P. art. 916, the trial court no longer had jurisdiction to issue such a judgment. Secondly, the defendant argues that “restitution is generally limited by statute to probated sentences.” Finally, he questions whether it was appropriate to impose restitution without a hearing being conducted.

|sAt the sentencing hearing, the defendant’s attorney acknowledged, without “objections or additions” the content of the presentence investigation report, including the amounts of restitution owed to the victims. The trial court stated at the sentencing hearing:

I indicate to the State that they may seek or file a civil judgment in conformity with the pre-sentence investigation as to the respective victims and restitution less any credits that may have been received, Mrs. Wilson, for those respective amounts and they can remain in the civil records in the hopes of some time [sic] collecting those amounts.

After the defendant’s Motion to Reconsider Sentence was denied, the defendant filed a motion for appeal. Said motion was granted on May 14, 2008. On June 4, 2008, without a hearing, the trial court issued a judgment, ordering that the specified amounts of restitution be paid to the eighteen victims listed therein.

Suspension of a defendant’s sentence or placing a defendant on probation is not a prerequisite to imposing restitution. La. Code Crim.P. art. 883.2. At the time this offense was committed, La.Code Crim.P. art. 883.2 provided:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

(Emphasis added).

Furthermore, La.Code Crim.P. art. 886(A) provides, in pertinent part:

In the event of nonpayment ... of restitution to the victim, ... within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fine or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both. Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case.

|3(Emphasis added).

Louisiana Code of Criminal Procedure Article 916 also provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:

(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Thus, the trial court was divested of jurisdiction in this case at the time it entered the Judgment of Restitution. The judgment is therefore a nullity.

Also, in State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, the trial court stated at sentencing that it was ‘also granting] Mr. Gary Celestine a judgment in the amount of $28,556.71 against Mr. Roberts.’ ” Id. at 1016. The defendant appealed, arguing that the trial court did not order restitution as part of his sentence | U)pursuant to La.Code Crim.P. art. 883.2. This court, relying on La. Code Crim.P. art. 886, held:

Rather than making restitution to the victim a part of the Defendant’s sentence, the trial court ordered restitution in the form of a money judgment. The judgment was improper as Defendant had not been given sixty days to pay restitution. Accordingly, the judgment is vacated, and this matter is remanded for the imposition of restitution as part of Defendant’s sentence as contemplated by La.Code Crim.P. art. 883.2.

Id. at 1016.

As in Roberts, the trial court improperly imposed restitution via a civil judgment, rather than as a part of the defendant’s sentence pursuant to La.Code Crim.P. art. 883.2.

Further, the record does not indicate that the defendant was present when the Judgment of Restitution was issued. In State v. Thomas, 05-1051, p. 4 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, 1149, abrogated on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court stated:

Louisiana Code of Criminal Procedure Article 835 provides for the Defendant’s presence when sentence is pronounced:
In felony cases the defendant shall always be present when sentence is pronounced.... If a sentence is improperly pronounced in the defendant’s absence, he shall be resen-tenced when his presence is secured.
The imposition of restitution is considered a part of the defendant’s sentence, for which the defendant must be present. State v. Fortier, 03-882 (La.App. 5 Cir. 11/25/03), 862 So.2d 170. See also State v. Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860.

Accordingly, the Judgment of Restitution is vacated, and the matter is remanded to the trial court for restitution to be imposed as part of the defendant’s sentence as contemplated by La. Code Crim.P. art. 883.2. See, e.g., Thomas, 924 So.2d 1146 and Roberts, 4 So.3d 1011.

InDECREE

For the foregoing reasons, the defendant’s sentence is affirmed, but the Judgment of Restitution is vacated. The matter is remanded to the trial court for re-sentencing with regard to amounts owed for restitution, in accordance with this opinion.

SENTENCE AFFIRMED. JUDGMENT OF RESTITUTION VACATED. REMANDED.

      . For the factual backgrounds of the other five convictions, see the decisions in the companion cases also before this court on appeal: State v. Joseph A. Granger, 08-1477 (La.App. 3 Cir. 6/3/09), 11 So.3d 649; State v. Joey Granger, 08-1479 (La.App. 3 Cir. 6/3/09), 11 So.3d 666; State v. Joey Granger, 08-1480 (La.App. 3 Cir. 6/3/09), 11 So.3d 658; State v. Joseph A. Granger, Jr., 08-1481 (La.App. 3 Cir. 6/3/09), 11 So.3d 683; State v. Joseph A. Granger, 08-1482 (La.App. 3 Cir. 6/3/09), 11 So.3d 675.

      . Louisiana Code of Criminal Procedure Article 920 provides:
      Art. 920. Scope of appellate review
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      . Louisiana Code of Criminal Procedure Article 883 provides:
      Art. 883. Concurrent and consecutive sentences
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

      . Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:
      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      . Louisiana Revised Statutes 14:71(F) provides:
      When the offender has issued more than one worthless check within a one hundred
      eighty-day period, the amount of several or all worthless checks issued during that one hundred eighty-day period may be aggregated to determine the grade of the offense.


author: GENOVESE, Judge.

text:
    Ronald BROOKS v. ALLRIDE AUTO, LLC.
    No. 09-252.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    Ronald Brooks, DeQuincy, Louisiana, Plaintifi/Appellant, In Proper Person.
    Paul N. DeBaillon, DeBaillon & Miley, Lafayette, Louisiana, for Defendant/Appel-lee, AllRide Auto, LLC.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

| plaintiff, Ronald Brooks, appeals the trial court’s denial of his pro se Petition for Rule to Show Cause against Defendant, AllRide Auto, LLC (AllRide). For the following reasons, we affirm.

FACTS

Mr. Brooks filed a “Petition for Rule to Show Cause” (Rule to Show Cause) against AllRide, alleging that he was “the holder of a promissory note, regarding a (1996 Dodge Ram), VIN No. 1B7HC16YOTS577617L] which was executed by (All Ride Auto), an Auto Dealership franchise.” Mr. Brooks contended that he “acquired the property subject to terms of the lease[,]” and that AllRide was “willfully and subjectively holding said vehicle without cause.” The Rule to Show Cause further set forth that on May 9, 2008, via a power of attorney, Mr. Brooks authorized his mother, Mable Brooks, to manage his affairs, including “the upkeep of his automobile including monthly payments.” “Thereafter, on or about June 23, 2008[, Mr. Brooks’] truck was taken into the defendant’s auto shop for repairs.... ” Allegedly, Ms. Brooks “was thereafter notified by All Ride Auto that said truck could not be released to her as she was not the ownerf,] and she could not provide a verifiable signature.” Thus, in filing the Rule to Show Cause, Mr. Brooks was “challenging the denial of All Ride Auto from releasing said automobile to his mother.” The Rule to Show Cause prayed that All-Ride show cause why Mr. Brooks “should not be awarded the continued use of his movable, a 1996 Dodge Ram 1500.”

In response to the Rule to Show Cause, AllRide filed a “Dilatory Exception of Improper Use of Statutory [sic] Proceedings and Answer” wherein it excepted to the pleadings filed by Mr. Brooks insofar as he sought to obtain “summary relief and that such relief may not be granted by summary proceedings.” Additionally, AllRide denied that Mr. Brooks was the holder of the promissory note. AllRide asserted that | ¡.the promissory note which was executed in its favor was “assigned to and held by Empire Credit, LLC.” Additionally, “a petition for executory process [had] been filed in the 15th Judicial District Court for the Parish of Lafayette, State of Louisiana, Docket No. 2008-5758,” as a result of Mr. Brooks being “in default under the terms of the installment sale contract^] and that the vehicle is presently under seizure for failure to make payments of installments due and for failure to maintain insurance on the vehicle.” All-Ride did admit that, due to Mr. Brooks’ detention in a correctional facility and pursuant to his request, “the vehicle was towed to Stan’s Auto Center, LLC[,] for repairs caused by misuse of the vehicle by the Plaintiff; the vehicle [was] inoperable and [was] still located at Stan’s Auto Center, LLC.”

The Rule to Show Cause was heard by the trial court on October 20, 2008, at which time the trial court denied the rule. A judgment in accordance therewith was signed on October 20, 2008. Mr. Brooks appeals.

ISSUE

The pro se appellate brief filed by Mr. Brooks fails to set forth any issues or assignments of error for our review. Instead, his brief states the following:

The decision of the 15th Judicial District Court is in err. District Court Judge Marilyn Castle erred in relation to the proceedings that took place in the court on [October] 20, 2008. Procedural due process in this case has been violated. This case deals with a question of fact[;] therefore[,] this court has the authority to review this case, and its progeny. Petitioner nevertheless challenges the ruling of the court.

For the reasons which follow, we find no merit to these contentions.

LAW AND DISCUSSION

Mr. Brooks’ appellate brief is incomprehensible. However, it appears that his contention as set forth above relative to a lack of procedural due process is grounded upon his not being present at the October 20, 2008 hearing. In brief, he states the ^following:

With all due respect concerning the lower court’s decission [sic], it is in my opinion that the court was in error in having the knowledge that I am incarcerated and would not be at liberty to be present in front of the court at my desire[,] denying all relief[,] stating that Mr. Brooks had only supplied the court with a post office box address[.] [T]he court stated again that they needed a physical address. [Court orders are sent to the post office boxes of jails and prison’s [sic] on a daily basis.] Mr. Brooks supplied the court with a physical address of the jail that he was occupying at the time. At a latter [sic] date[,] the court summoned Mr. Brooks at the Depatment [sic] of Corrections, C. Paul Phelps Correctional Ctr., located at P.O. Box 1056[,] DeQuincy, La., on the date of October 17, 2008, which was on a Friday; court was set for Monday 10/20/08. One of the two followed this event: 1) the court did not allow enough time for arranging transportation, 2) the court notified only Mr. Brooks and failed to notify the facility of the court hearing not allowing Mr. Brooks to be present to defend his intrest [sic] and right in that he was denied his rights to the Louisiana Const. Art. I § 2. Due process of law; and, Art. I § 16. Right to a fair trial.

This court has reviewed the entire record of these proceedings, including the transcript of the October 20, 2008 hearing. The transcript and the judgment confirm that Mr. Brooks was not present at the hearing. Rather, after noting that Mr. Brooks had filed in proper person and that he was incarcerated, the trial judge stated that she did not “know that there was ever a transport order requested on him.” This observation was corroborated by defense counsel who indicated that he had “not seen or heard anything.”

Although Mr. Brooks contends that his lack of presence at the hearing violated his due process rights, he has cited no authority, nor is there any authority requiring that the trial court, sua sponte, arrange for his transportation and appearance at civil proceedings such as the one filed by him herein. To the contrary, it was incumbent upon Mr. Brooks to arrange for his transportation and appearance at the hearing if he desired to attend. Mr. Brooks’ absence was of his own making and is not an error of the trial court as he seemingly asserts on appeal.

^Additionally, the transcript of the hearing confirms the trial court’s ruling that the vehicle at issue was not in the possession of AllRide. The record reveals that Mr. Robert Hawkins, an employee of AllRide, testified at the October 20, 2008 hearing. According to Mr. Hawkins, Mr. Brooks had purchased a vehicle from All-Ride. Subsequently, Ms. Brooks contacted him to advise that the vehicle, which was located in New Orleans, was inoperable, and she requested that AllRide pick up the vehicle and repair it. At the expense of AllRide, the vehicle was towed from New Orleans to Stan’s Auto Center in Lafayette. Mr. Hawkins testified that the vehicle had “a blown engine, and the rest of the vehicle [was] in deplorable condition.” Finally, Mr. Hawkins confirmed the institution of foreclosure proceedings due to Mr. Brooks’ failure to make timely payments on the note and his failure to maintain the requisite insurance on the vehicle. Based upon this evidence, the trial court orally ruled as follows:

[B]ased on the testimony that I’ve heard and the evidence also in regard to the fact that a foreclosure proceeding is pending, the Court is going to deny the [P]laintiffs request to have the vehicle turned over to him.
It does appear that — up until the point of seizure, that the vehicle was really not in the possession of All Ride, in any event.

Based upon the record, we do not find that the decision reached by the trial court on the Rule to Show Cause was in error.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Ronald Brooks.

AFFIRMED.

COOKS, J„ dissents.