author: MARC E. JOHNSON, Judge.

text:
    Dr. Jeffrey BRUMBERGER v. Gerry A. CVITANOVICH, M.D., Keith J. Leblanc & Dr. John King.
    No. 13-CA-801.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.
    Bradley Egenberg, Attorney at Law, New Orleans, Louisiana, for PlaintiffAp-pellant.
    Patrick E. Costello, Trevor M. Cutaiar, Attorneys at Law, Mouledoux, Bland, Le-grand & Brackett, LLC, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

|2In this appeal, Plaintiff seeks review of the trial court’s ruling sustaining Defendants’ peremptory exception of prescription. For the reasons that follow, we affirm.

On April 2, 2013, Plaintiff, Dr. Jeffrey Brumberger, filed suit against Dr. Gerry Cvitanovich, Keith LeBlanc and Dr. John King, seeking payment for medical services rendered. According to his petition, Dr. Brumberger was an independent contractor hired by Millennium Healthcare Management, L.L.C. (“Millennium”) in 2008 to provide medical services at an after-hours urgent care center. Millenni-urn dissolved in 2012, leaving its members (presumably Defendants) personally liable under La. R.S. 12:1335.1(A) for the debts of or claims against the limited liability company proportionate to each members ownership interest.

Dr. Brumberger alleged that Millennium issued two checks to him: one on February 13, 2008 for $6,460.00, and one on March 5, 2008 for $4,165.00. He |sasserted that these checks were stolen from his mailbox, fraudulently altered, and forged, and that the perpetrator was subsequently convicted in federal court. Dr. Brumber-ger claimed he had made a demand upon Millennium for replacement of the checks in accordance with his contractual agreement. Apparently, his demand was of no avail because he prayed for judgment against Defendants for “all sums due him by Millennium for medical services rendered” at the after-hours urgent care center.

In response, Defendants filed exceptions of prescription and no cause of action, They first argued that Dr. Brumberger’s claim for recovery of compensation for services rendered was prescribed under the three-year prescriptive period set forth in La. C.C. art. 3494(1). Defendants also claimed Dr. Brumberger’s petition failed to state a cause of action for breach of contract because Millennium issued payment for his services as required by the contract. After a hearing on the exceptions, the trial court sustained the exception of prescription and found the exception of no cause of action moot. Dr. Brumberger appeals the trial court’s ruling finding his suit was prescribed.

On appeal, Dr. Brumberger contends the trial court erred in classifying his claim as one for unpaid wages and applying the three-year prescriptive period under La. C.C. art. 3494. He maintains that his cause of action was for breach of contract, which is subject to a ten-year prescriptive period under La. C.C. art. 3499. Dr. Brumberger argues that the allegations in his petition clearly assert that Millennium violated his contract.

Article 3499 of the Louisiana Civil Code provides that a personal action is subject ^o a Iterative prescription of ten years [ujnless otherwise provided by legisla-La. C.C. art. 3493 provides that, “⅛⅛ action for the recovery of I,(Compensation for services rendered, in-eluding payment of salaries, wages, corn-missions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board” is subject to a liberative prescription of three years. The Louisiana SuPreme Court has held that the three-year prescriptive period under Article 3493 is an authorized legislative limitation on the remedies available to a plaintiff who brings certain enumerated personal actions, Starns v. Emmons, 538 So.2d 275, 277 (La.1989).

“The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings.” Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La.4/12/05); 898 So.2d 1260, 1265.

In Grabert v. Iberia Parish School Board, 93-2715 (La.7/5/94); 638 So.2d 645, certain employees, who worked under four-year employment contracts with the Board, filed suit alleging that the Board had breached their respective contracts by underpaying them. Plaintiffs argued, and the court of appeals agreed, that their claims were for breach of contract, which were subject to a ten-year prescriptive period under La. C.C. art. 3499. However, the supreme court disagreed and found that a petition claiming breach of contract by the underpayment of wages was clearly a cause of action asserting the right to recover unpaid wages. The supreme court explained:

Breach of contract is not a free standing cause of action. It is a legal premise, or principle, which gives rise to the right to claim some substantive remedy at law. Here that remedy is the recovery of past due wages.... The nature of the claim (for under paid wages) is not something different because it arises out of breach of contract. The contract breached made provisions for the very wages sought.

Grabert, 638 So.2d at 646-47.

^Likewise, in the instant case, Dr. Brumberger’s petition claiming breach of contract was clearly a cause of action for the recovery of compensation for services rendered. Dr. Brumberger alleged he had a contract with Millennium to provide medical services. He then prayed for all sums due to him for the medical services he rendered. Although he claims he is only seeking replacement of checks that Millennium previously issued, Dr. Brum-berger is effectively seeking payment for services he rendered for which he was never compensated.

Courts have continuously rejected attempts to circumvent the three-year prescriptive period of Article 3494 by categorizing the entire action as one of breach of contract. See Touro Infirmary v. American Maritime Officer, 09-696 (La.App. 4 Cir. 1/7/10); 34 So.3d 878, 885, writ denied, 10-289 (La.4/9/10); 31 So.3d 395, citing Starns v. Emmons, 538 So.2d at 277 (La.1989); Dear v. Mobile, 93-1188 (La.App. 1 Cir. 5/20/94); 637 So.2d 745. The rationale is that all the actions enumerated in La. C.C. art. 3493 originate from contractual relationships. If these enumerated actions were broadly categorized as breach of contract claims, Article 3494 would be useless. Touro, 34 So.3d at 885, citing Starns, supra.

We find Dr. Brumberger’s reliance on Qayyum v. Morehouse General Hospital, 38,530 (La.App. 2 Cir. 5/12/04); 874 So.2d 371, to be misplaced. In Qayyum, M. Tahir Qayyum, A Professional Medical Corporation (PCM), entered into a contract with a hospital to operate a hospital-based family practice clinic by providing a full-time doctor, Dr. Qayyum, to work in the clinic. Under the contract, the hospital was to bill and collect all fees for services rendered by the PCM and maintain accounting records reflecting all services rendered and fees billed. The contract also provided that the hospital and the doctor would split any profits on a 10/90 basis, after all operating costs that included payment for the |fiphysician were paid. The contract further required the hospital to make a quarterly accounting of profits.

The PCM filed suit more than three years after termination of the contract seeking an accounting as required by one of the provisions of the contract. It alleged that the hospital breached its duty to provide the accounting information and to pay Dr. Qayyum 90% of the profits. The trial court sustained the hospital’s exception of prescription after finding the three-year prescriptive period of La. C.C. art. 3494 applied. The Second Circuit reversed, finding the trial court did not have enough evidence of an employment relationship, as opposed to a joint venture or special partnership, to apply Article 3494.

Relying on Qayyum, Dr. Brumberger argues that the issue of whether an employment relationship existed between him and Millennium must first be determined before applying the appropriate prescriptive period. However, unlike Qayyum, Plaintiff did not allege any facts that suggested a joint venture or special partnership existed between Dr. Brumberger and Millennium. More importantly,, Qayyum is distinguishable on the basis that Dr. Qayyum sought an accounting under the contract. The accounting and payment of a percentage of profits as indicated by the accounting were not related to compensation owed to Dr. Qayyum for services he rendered. Any payment owed to Dr. Qay-yum as compensation for services rendered was under a different portion of the contract relating to operating costs, and Dr. Qayyum’s petition did not seek specific performance of that portion of the contract. Accordingly, the rationale in Qay-yum does not apply to the present case.

Dr. Brumberger filed suit in April 2013 seeking compensation for services rendered five years earlier in 2008. Under the three-year prescriptive period of La. C.C. art. 3494, we find his claims against Defendants are prescribed.

| ^DECREE

For the foregoing reasons, we affirm the judgment of the trial court sustaining Defendants’ exception of prescription. Plaintiff is to bear the costs of this appeal.

AFFIRMED.

      . A personal action is "one brought to enforce an obligation against the obligor, personally and independently of the property which he may own, claim, or possess.” La. C.C.P. art. 422.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    James A. PRICE v. Antoinette M. VALENTI, Jefferson Parish Hospital Service District No. 2, Catlin Insurance Company, Inc. and Geico General Insurance Company.
    No. 13-CA-822.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Jim S. Hall, Joseph W. Rausch, Attorneys at Law, Metairie, Louisiana, for PlaintiffiAppellant.
    Jacqueline G. Griffith, Rebecca J. Beck, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

| ¡¡Plaintiff, James A. Price, filed suit for damages after the vehicle he was driving was struck by an ambulance. After a bench trial, the court rendered judgment in favor of defendants, Antoinette M. Valenti and Jefferson Parish Hospital Service No. 2, dismissing plaintiffs claims with prejudice. In its judgment, the court states that

The Court finds that the applicable standard of care in this case is “reckless disregard” or gross negligence. Plaintiff failed to prove by a preponderance of the evidence that Defendant, Antoinette M. Valenti, acted with reckless disregard or gross negligence in connection with the accident occurring on or about June 28, 2011.

On appeal, Mr. Price contends that the trial court applied an improper standard of care to defendant’s actions by requiring that he prove that defendant acted with reckless disregard or gross negligence. Mr. Price further contends that |sthe trial court erred in finding that he did not prove “reckless disregard” or “gross negligence.” For the following reasons, we affirm the decision of the trial court.

The following facts were adduced at trial. On June 28, 2011 at approximately 11:00 A.M., Mr. Price was driving northbound on Clearview Parkway when his truck was struck by an ambulance driven by defendant, Antoinette Valenti. Ms. Valenti is a certified Emergency Medical Technician (EMT), employed by East Jefferson Emergency Medical Services. At the time of the accident, Ms. Valenti and her partner, David Maddox, were responding to a 911 call.

Ms. Valenti testified that, after receiving the 911 call, she drove the ambulance westbound on West Napoleon Avenue. She engaged both the flashing lights and the siren on the ambulance. She was proceeding in the left lane, and there was one car in front of her, who moved to the right lane as she approached. Immediately pri- or to arriving at the intersection of West Napoleon Avenue and Clearview Parkway, the traffic lights changed, so that she had the red light as she approached Clearview Parkway. She stopped at the intersection, and saw that the traffic on Clearview Parkway was not moving. She crossed the right hand lane, looked both ways again, and crossed the middle lane. She then slowly proceeded into the left hand lane, and half way through that lane she ran into Mr. Price’s truck.

Ms. Valenti stated that she was traveling at a rate of about 5 miles per hour crossing Clearview Parkway. She observed a car in the far right lane and an 18-wheeler truck in the center lane of Clearview Parkway, but she did not see any vehicle prior to entering the left lane. She also testified that her view was not blocked by the 18-wheeler and that she could see farther down Clearview Parkway.

| ¿The testimony of David Maddox, the paramedic with Ms. Valenti at the time of the accident, was substantially similar to that of Ms. Valenti. He also was looking to see if it was safe to enter the intersections. Mr. Maddox stated that Mr. Price’s truck “came up from nowhere” and that it did not yield whatsoever to the ambulance, despite the siren and flashing lights.

Mr. Price testified that he was travelling 30 to 35 miles per hour, proceeding north in the left lane of Clearview Parkway as he approached the intersection of Clearview and West Napoleon Avenue. He glanced at the stop light, saw that it was green and then looked down. He then felt the impact as the ambulance hit the passenger side of his truck. Mr. Price stated that he did not hear the siren or see the lights prior to impact, and that he could not see the ambulance because of the 18-wheeler in the center lane. Mr. Price acknowledged that he saw that the other cars on Clearview Parkway were not moving, but he did not “think anything of it.”

Trooper Leander Journee investigated the accident. When he arrived at the scene, the ambulance lights and siren were still engaged. Trooper Journee issued a citation to Ms. Valenti for failure to yield.

Two eyewitnesses to the accident also testified at trial. Cynthia Fitzsimons testified that she was in a car travelling on Clearview Parkway in the right lane. The car stopped at the red light at the intersection of West Napoleon Avenue. She heard the siren and then the light turned green. They remained stopped even though the light was green, as did the other cars around them. She observed the 18-wheel-er in the center lane and no car in the left lane. Ms. Fitzsimons observed the ambulance go through the intersection very slowly, lane by lane. She then turned to talk to her son, who was sitting in the back seat. At that time, she saw Mr. Price’s blue truck. She testified that the truck did not slow down, even though [fitrafflc was stopped. Mr. Fitzsimons’ testimony was consistent with that of his wife.

In this appeal, Mr. Price argues that the trial court erred in applying a “reckless disregard” or “gross negligence” standard to the facts of this case. He contends that the appropriate standard of review is that of “due care” or “ordinary negligence.” In the alternative, Mr. Price argues that Ms. Valenti’s actions in entering his lane of traffic was contrary to “due care” and the trial court erred in finding otherwise.

This matter is controlled by La. R.S. 32:24, which provides:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals, including the use of a peace officer cycle rider’s whistle, sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

In Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175, 177, the Louisiana Supreme Court found that this statute set forth two alternate standards of care, depending on the circumstances present:

If, and only if, subsections A, B and C of La.Rev.Stat. 32:24 are met, will an emergency vehicle driver be held hable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver’s actions will be gauged by an ordinary negligence standard.

The Court then concluded that whether the conduct of the emergency vehicle driver should be gauged by a “reckless disregard” or “ordinary negligence” standard of care is a question to be determined by the trier of fact. Id. at 181.

In reviewing the factual findings of a trial court, this court is limited to a determination of manifest error. An appellate court may not disturb a jury’s finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. A reviewing court, after a full review of the record, may not reverse reasonable findings, even if it had weighed the evidence differently sitting as the trier of fact. Fontenot v. Patterson Ins., 09-0669 (La.10/20/09), 23 So.3d 259.

In this case, the trial court as the trier of fact found that, as a matter of fact, the conditions of La. R.S. 32:24A, B(2), and C applied, and therefore the applicable standard of care was that of “reckless disregard” or “gross negligence.” Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Rabalais v. Nash, 06-0999 (La.3/9/07), 952 So.2d 653, 658.

Here, the record supports a finding that Ms. Valenti met the requirements of subsections A, B, and C when traversing the intersection, and therefore the trial Lcourt correctly applied the “reckless disregard” or “gross negligence” standard of care. The record further supports a finding that Ms. Valenti’s actions did not constitute “reckless disregard” or “gross negligence.” The evidence showed that Ms. Valenti was responding to an emergency call and that she “inched” her way across, looking both ways before she entered each lane of the roadway, in her attempt to cross the intersection. We do not find that she was grossly negligent in failing to anticipate that a driver, who was travelling at a much higher rate of speed, would ignore (or fail to hear and see) the lights and siren, and also the fact that traffic was stopped around him, and proceed through the intersection without stopping or even slowing down. Rabalais, supra; Matthews v. Maddie, 01-1535 (La.App. 1 Cir. 6/21/02), 822 So.2d 739, writ denied, 02-2420 (La.11/22/02), 829 So.2d 1052. Accordingly, we find no error in the trial court’s judgment dismissing plaintiffs claims with prejudice.

Mr. Price argues, inter alia, that in order to satisfy the prerequisite of La. R.S. 32:24 B(2) and receive the benefit of being held to the lower “reckless disregard” standard of care, the language of B(2) requires the driver of an emergency vehicle to first show that he or she in fact maintained a reasonableness standard of care and was free from ordinary negligence. Specifically, he contends that the requirement that the emergency vehicle driver may proceed past a red or stop signal or sign “only after slowing down or stopping as may be necessary for safe operation” means such driver must first demonstrate the use of ordinary care in order to be held only to a “reckless disregard” standard of care.

We disagree with this contention for two reasons. First, such a statutory construction requiring the driver of an emergency vehicle to first show a lack of ordinary negligence in order to be held to the lower “reckless disregard” standard would not make sense. Further, such an interpretation would effectively render La. |sR.S. 32:24 B(2) meaningless and without effect. That cannot have been the intent of the legislature. Moreover, given two possible statutory interpretations, courts should choose the interpretation which is logical, reasonable and meaningful, and which would fulfill the obvious intent of the legislature, over an alternative interpretation which is neither. See also Champagne v. Am. Alternative Ins. Corp., 12-1697 (La.3/19/13), 112 So.3d 179, 183.

Secondly, it is apparent from the trial judge’s application of the “reckless disregard” standard that he concluded as a matter of fact that Ms. Valenti did not fail to slow her emergency vehicle to an extent “necessary for safe operation.” Evidence in the record clearly supports such a finding.

Accordingly, and for the reasons discussed above, the trial court’s judgment dismissing the suit filed by appellant, James A. Price, is affirmed. Costs are assessed to appellant.

AFFIRMED.

      . Defendants Catlin Insurance Company, Inc. and Geico General Insurance Company were dismissed from this suit prior to trial.


author: ROBERT M. MURPHY, Judge.

text:
    Gail Baudy Wife of/and Warren BAUDY v. The TRAVELERS INDEMNITY COMPANY OF CONNECTICUT and Winn Dixie.
    No. 13-CA-832.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Robert B. Evans, III, Cesar R. Burgos, Gabriel 0. Mondino, Robert J. Daigre, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Michael F. Grennan, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

1 gPIaintiffs-appellants, Gail and Warren Baudy, appeal the trial court’s judgment granting the motion for directed verdict filed by defendants-appellees, TBS, LLC and Travelers Indemnity Company of Connecticut. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On December 8, 2011, plaintiffs Gail and Warren Baudy filed suit to recover damages for injuries sustained by Gail Baudy when she fell off of a raised sidewalk and curb at a Winn-Dixie store in Destrehan, Louisiana, as she stepped off of the sidewalk and onto the driveway of the shopping center. Plaintiffs named as defendants, Winn-Dixie Montgomery, LLC, TBS, LLC (the owner of the shopping center leased by Winn-Dixie), and Travelers Indemnity Company of Connecticut (the liability insurer of TBS, LLC). Plaintiffs alleged that the slope in the driveway located at the bottom of the sidewalk and curb, caused her ankle to roll as she stepped off of the curb and onto the driveway. She claimed that the | ssloped driveway created a dangerous condition, for which, defendants are liable due to their failure to prevent the unreasonably dangerous condition from causing injury, and their failure to warn of the dangerous condition. Mrs. Baudy sustained a broken right arm and a radial neck fracture, as a result of the incident.

Subsequently, plaintiffs filed a motion to voluntarily dismiss Winn-Dixie Montgomery, LLC from the lawsuit, which was granted by the trial court on April 10, 2012. As such, the case proceeded against TBS, LLC and Travelers Indemnity Company of Connecticut (hereinafter collectively referred to as “defendants”) as the only remaining defendants.

The matter was set for a jury trial, commencing on March 19, 2013. The parties filed a joint pre-trial statement on October 31, 2012, wherein they provided their respective witness lists. At that time, plaintiffs listed an unnamed St. Charles Parish code enforcement officer, but did not identify an expert witness regarding the issue of liability. Defendants listed William Argus, an architect, to testify as an expert. The trial court ordered the parties to file a final witness list twenty days before trial, or on February 27, 2013. Defendants filed their final witness list at that time, naming Argus, but plaintiffs did not file a final witness list of their own. On March 8, 2013, plaintiffs filed an “Amended Pre-Trial Statement,” naming Walter Antin as an expert in architecture. Defendants subsequently filed a motion to strike plaintiffs proposed expert witness based upon plaintiffs’ failure to timely disclose their expert in accordance with the court’s deadlines, and their failure to provide an expert report regarding his opinions in the matter. The trial court indicated that it was inclined to grant defendants’ motion to strike, but deferred ruling on the motion until trial.

|40n the morning of trial, March 19, 2013, defense counsel informed the court that plaintiffs’ counsel intended to call the defense’s liability expert, Argus, during plaintiffs’ case-in-ehief. As a result, the parties held a bench conference with the trial judge regarding taking Argus out of turn during plaintiffs’ case-in-chief. During the conference, defense counsel voiced concerns about plaintiffs’ counsel possibly attempting to impeach Argus before the defense had laid a foundation on direct examination, and plaintiffs’ counsel stated that he wanted Argus’ testimony to be included within plaintiffs’ case-in-chief for purposes of any motion for directed verdict filed by defendants. After a discussion regarding the order in which each party would question Argus, the parties agreed on the record that during plaintiffs’ casein-chief, defendants would first conduct a direct examination of Argus, followed by plaintiffs’ cross-examination, and then defendants’ re-direct examination.

At trial, plaintiffs called as witnesses Mrs. Baudy, Mr. Baudy, Mrs. Baudy’s sister, Dr. Melissa Gorman and Argus. Mrs. Baudy testified that she shopped at this particular Winn-Dixie two to three times a week, prior to her fall at issue. She explained that on the day of her fall, she was walking towards the Winn-Dixie on the sidewalk and noticed a crowd forming around a table of girls selling Girl Scout cookies on the sidewalk near the entrance to the store. In an effort to avoid the crowd, she stepped off of the sidewalk/curb and onto the driveway. As she stepped off of the sidewalk/curb, she stated that the driveway appeared to be level and not sloped. However, once she stepped onto the driveway, the slope of the driveway caused her ankle to roll and she fell to the ground. On cross-examination, defendants confronted Mrs. Baudy with her prior deposition testimony wherein she stated that the unevenness of the curb caused her to fall. The testimony of Mrs. Baudy’s treating physician, Dr. Melissa Gorman, was offered by deposition. Dr. | RGorman testified that Mrs. Baudy informed her that she injured herself when she slipped and fell in water on the floor of the Winn-Dixie.

In accordance with the parties’ agreement, Argus took the stand during plaintiffs’ case-in-chief. He testified that he was retained by defendants to determine whether any unreasonably dangerous condition existed at the Winn-Dixie. He testified that the maximum allowable height for a curb is seven inches, and that the curb in the area where Mrs. Baudy indicated she fell measured below that limit, at 6⅜ inches. He also testified that the sidewalk and the driveway measured within code limits for slope. Specifically, he measured the cross slope of the driveway, which runs parallel to the curb, at two percent, which complies with code limits. He explained that driveways need to be sloped to some degree so that rainfall flows away from the curb. Argus looked for uneven surfaces in the area of Mrs. Baudy’s fall, but did not find any. Specifically, he explained to the jury that he closed his eyes and stepped off of the curb onto the driveway, but did not find any unevenness. Argus testified that he did not find any unreasonably dangerous conditions in the area where Mrs. Baudy’s fall occurred.

At the conclusion of Argus’ testimony, plaintiffs rested their case and the trial court dismissed the jury for the day. On the following morning, defendants moved for a directed verdict, citing plaintiffs’ failure to establish the existence of an unreasonably dangerous condition in defendants’ property, or that defendants knew, or should have known, of an unreasonably dangerous condition. Plaintiffs opposed defendants’ motion for directed verdict on the merits, but they did not make any formal objections to the motion. The trial court granted defendants’ motion, finding that plaintiffs failed to present any evidence of a defect, or of an unreasonable risk of harm, and that the slope of the driveway was open and obvious. Plaintiffs now appeal.

^ASSIGNMENTS OF ERROR

On appeal, plaintiffs allege the following assignments of error:

1. The trial court erred procedurally in granting defendants’ motion for directed verdict.
2. The trial court erred substantively in granting defendants’ motion for directed verdict.
3. The trial court erred in depriving plaintiffs of their right to a jury trial.

LAW AND DISCUSSION

In their first assignment of error, plaintiffs contend that the trial court’s grant of defendants’ motion for directed verdict was procedurally improper because it was not made at the appropriate time. Specifically, plaintiffs contend that because defendants’ expert, Argus, testified during plaintiffs’ case-in-chief, the trial court erred procedurally in granting defendants’ motion for directed verdict after plaintiffs rested their case-in-chief, but before defendants rested their case-in-chief. We need not address the merits of this assertion, however, because this question is not properly before this court.

It is well-settled law that failure to make formal objections to a ruling of the trial judge results in a waiver of a party’s right to urge those objections as error on appeal. Nunnery v. City of Kenner, 08-1298 (La.App. 5 Cir. 5/12/09), 17 So.3d 411, 415, citing La. C.C.P. art. 1635. Our review of the record reveals that plaintiffs did not object to defendants’ motion for directed verdict or to the trial court’s ruling thereon, on the procedural ground that the motion was untimely. In fact, the record shows that the reason Argus was called out of turn was due to the fact that ■plaintiffs wanted Argus to testify during their case-in-chief. Moreover, during the bench conference with the court, counsel for plaintiffs stated: “My only thought is if he were to make a motion for directed verdict, I want the testimony of|7his guy to be included as part of my case.” Thus, not only did plaintiffs fail to object to the timeliness of defendants’ motion for directed verdict and/or the trial court’s ruling thereon, they affirmatively sought to have Argus called out of turn during their casein-chief. “In the absence of objection, the trial court is afforded no opportunity to prevent or correct the alleged error.” Bernard v. Ferrellgas, Inc., 96-621 (La. App. 3 Cir. 2/5/97), 689 So.2d 554, 557 (citation omitted). Because plaintiffs made no objection at trial to the timeliness of defendants’ motion for directed verdict or to the trial court’s ruling thereon, the alleged error is waived and not properly before this Court on appeal.

Nevertheless, under La. C.C.P. art. 1810, a motion for directed verdict is appropriately made at the close of the evidence offered by the opposing party. See also Dugas v. Automotive Cas. Ins. Co., 98-807 (La.App. 5 Cir. 2/10/99), 729 So.2d 25, 28; Conrad v. Doe, 95-518 (La. App. 5 Cir. 11/28/95), 665 So.2d 542, 546, unit denied, 95-3092 (La.2/16/96), 667 So.2d 1058. Here, there is no dispute that defendants moved for a directed verdict after plaintiffs rested their case. Plaintiffs cite Melody v. Wendy’s of New Orleans, Inc., 95-913 (La.App. 5 Cir. 4/16/96), 673 So.2d 1094, writ denied, 96-1249 (La.6/21/96), 675 So.2d 1088, abrogated on other grounds by Porteous v. St. Ann’s Cafe & Deli, 97-0837 (La.5/29/98), 713 So.2d 454, in support of their claim that the trial court erred in granting defendants’ motion for directed verdict after plaintiffs rested their case, but before defendants rested their case. In Melody, this Court held that once a defense witness is taken out of turn, a motion for involuntary dismissal can only be entertained at the close of all the evidence. Id. at 1097. However, we note that the defendant’s witness in Melody was called out of turn during the plaintiffs case-in-chief at the defendant’s request. Id. We find that Me-lady is distinguishable from the instant case because defendants’ expert, Argus, was called out of turn during [ Splaintiffs’ case-in-chief at plaintiffs’ request. Our review of the record clearly shows that plaintiffs rested their case-in-chief after Argus’ testimony, at which point, defendants properly moved for a directed verdict under La. C.C.P. art. 1810. Accordingly, this assignment is without merit.

In their second assignment of error, plaintiffs assert that the trial court erred substantively in granting defendants’ motion for directed verdict because reasonable persons could have reached a contrary verdict based on the evidence submitted. La. C.C.P. art. 1810 provides as follows, with respect to motions for directed verdict:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

A motion for a directed verdict is a procedural device available in trials by jury with an eye toward judicial economy. Reed v. Columbia/HCA Info. Sys., Inc., 00-1884 (La.App. 5 Cir. 4/11/01), 786 So.2d 142, 145, writ denied, 01-1384 (La.6/22/01), 794 So.2d 796. The motion is appropriately made at the close of the evidence offered by the opposing party and should be granted when, after considering all of the evidence in the light and with all reasonable inferences most favorable to the mov-ant’s opponent, it is clear that the facts and inferences point so overwhelmingly in favor of granting the verdict, that reasonable jurors could not arrive at a contrary result. Id. However, if there is evidence produced in opposition to the motion that has such quality and weight that reasonable and fair-minded men, exercising impartial judgment, might reach different conclusions, then the motion should be denied and the case should be submitted to the jury. Id.

The trial court has much discretion in determining whether or not a motion for a directed verdict should be granted. Joseph v. Cannon, 609 So.2d 838, 843 (La.App. 5 Cir.1992), writ denied, 623 So.2d 1330 (La.1993), cert. denied, 510 U.S. 1097, 114 S.Ct. 935, 127 L.Ed.2d 226 (1994). The standard of review for the appellate court is whether, viewing the evidence submitted, reasonable people could not reach a contrary result. Reed, supra at 146. Moreover, the propriety of a directed verdict must be evaluated in light of the substantive law related to the claims. Id.

In this case, plaintiffs sought to establish defendants’ liability for her injuries due to the existence of an unreasonably dangerous condition or defect in defendants’ property. Under La. C.C. art. 2317.1, “[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect. Babino v. Jefferson Transit, 12-468 (La.App. 5 Cir. 2/21/13), 110 So.3d 1123, 1126, citing Jeansonne v. S. Cent. Bell Tel. Co., 08-568 (La.App. 5 Cir. 1/13/09), 8 So.3d 613, 619. Not every defect gives rise to liability. Id., citing Monson v. Travelers Property, 06-921 (La. App. 5 Cir. 4/24/07), 955 So.2d 758, 761. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Id. Moreover, the hpfact that a pedestrian fell does not elevate automatically the condition of a street to that of an unreasonably dangerous defect. Id.

In granting defendants’ motion for directed verdict, the trial court stated:

In this case, plaintiff has not presented evidence of a defect or unreasonable risk of harm. The slope is open and obvious. The condition of the walkway and the slope is open and obvious. Plaintiff admits she has been there numerous times before and entered through the front, the same entrance, even though she said it was from a different place. But I saw no evidence, and for that reason, for the first time in my career as a judge, I’m going to grant the directed verdict.

In reviewing the propriety of the directed verdict in light of the substantive law applicable to plaintiffs’ claims, we find no error in the trial court’s ruling granting defendants’ motion for directed verdict. Plaintiffs simply did not meet their burden of proof. Mrs. Baudy was the only person who testified for plaintiffs regarding the reason for her fall and the alleged unreasonably dangerous condition of the sloped driveway. Plaintiffs presented no additional evidence, expert or lay testimony, to support their claim that defendants’ property was defective. Conversely, defendants offered testimony from their expert, Argus, establishing that the curb, sidewalk and driveway of defendants’ property all measured within code limits, and that no unreasonably dangerous or defective conditions existed in the area of Mrs. Baudy’s fall. Considering all the evidence submitted at trial, we find that there was no evidence of a dangerous condition upon which reasonable people could reach a contrary result and find defendants liable for Mrs. Baudy’s injuries. Accordingly, we find no error in the trial court’s grant of defendants’ motion for directed verdict.

In their third assignment of error, plaintiffs contend that the trial court erred in depriving plaintiffs of their right to a jury trial when it granted defendants’ motion for directed verdict. Plaintiffs assert the same arguments in support of this | n assignment of error that they have asserted in support of their second assignment of error. Because we have already addressed those arguments in our analysis of plaintiffs’ second assignment of error and found them to be without merit, we find this assignment of error to be moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting defendants’ motion for directed verdict is affirmed.

AFFIRMED.

      . Because plaintiffs did not make an attempt to call their proposed expert to testify at trial, the trial court did not rule on defendants' motion to strike plaintiffs’ expert.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Freddy FUENTES v. VOIRON COMPANIES, LLC.
    No. 13-CA-859.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Miguel A. Elias, Attorney at Law, Ken-ner, Louisiana, for PlaintiffAppellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

| ^Claimant, Freddy Fuentes, appeals the dismissal of his disputed claim for worker’s compensation benefits against Voiron Companies, LLC without prejudice on June 19, 2013 and then with prejudice on August 7, 2013. For the following reasons, we find the trial court erred, reverse its judgments of dismissal, and remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 25, 2013, Mr. Fuentes filed a disputed claim for compensation against Voiron. In it, Mr. Fuentes claimed he had an accident while he was working for Voi-ron on May 17, 2012 in New Orleans when a “construction beam fell on claimant’s foot.” Mr. Fuentes further alleged that this accident caused him to suffer injuries to his left leg and knee, that Voiron had not paid wage benefits to him, and that Voiron had not authorized his medical treatment.

I/Thereafter, Mr. Fuentes moved for a preliminary default, arguing that he was entitled to the default judgment because of Voiron’s failure to answer his claim. On June 19, 2013, the trial court held a hearing on Mr. Fuentes’ motion where it recognized the appearance of Mr. Fuentes’ attorney, Mr. Miguel Elias, but found that Mr. Fuentes himself had failed to personally appear. In light of this finding, the trial court judge rendered an oral judgment dismissing Mr. Fuentes’ claim “without prejudice under the 5705.” Referring to Rule 5705 of the Office of Worker’s Compensation’s Hearing Rules, the trial court judge informed Mr. Fuentes’ attorney that under “5705” she was bound to dismiss Mr. Fuentes’ claim. The trial court allowed Mr. Fuentes 30 days to “reinstate the action for good cause.” The trial court judge memorialized her ruling in a written judgment issued the same day. On July 19, 2013, Mr. Fuentes sought to reinstate his claim by filing another copy of his original “disputed claim for compensation.”

On July 19, 2013, the trial court issued a rule to show cause ordering “Freddy Fuentes, Claimant” to appear on August 7, 2013, “to show good cause as to why [his] Disputed Claim for Workers’ Compensation should be reinstated.” On August 7, 2013, the trial court held a hearing on Mr. Fuentes’ filing to reinstate his claim. The transcript reveals that while Mr. Fuentes’ attorney appeared at this hearing, Mr. Fuentes did not personally appear. After finding again that Mr. Fuentes had failed to personally appear, the trial court judge ruled from the bench, dismissing Mr. Fuentes’ claim with prejudice. In so ruling, the trial court judge stated:

So, now you’re telling me he’s not here again. I don’t really have any other choice but to dismiss his case with prejudice. I mean, I don’t have any indication from you or from him that he wants to pursue the claim. The rule to show cause specifically says Freddy Fuentes shall appear and show good cause. So, for those reasons I’ll dismiss this claim with prejudice.

|4This ruling was memorialized in a written judgment issued and mailed on August 7, 2013. Mr. Fuentes moved for a devolu-tive appeal from this judgment on August 27, 2013. The trial court granted this appeal the same day.

DISCUSSION

Mr. Fuentes now appeals the trial court’s judgment dismissing his claim without prejudice on June 19, 2013, and its judgment dismissing his claim with prejudice on August 7, 2013. Mr. Fuentes argues the trial court erred in failing to allow his attorney to appear on his behalf, in failing to provide him proper notice, and in finding he abandoned his claim. For the following reasons, we agree.

First, it is clear from the transcripts that the trial court dismissed Mr. Fuentes’ claim on June 19 and August 7, 2013 because of Mr. Fuentes’ failure to personally appear in court on the hearing on those dates. The transcripts also reveal that in support of its judgments of dismissal, the trial court relied on its authority to dismiss Mr. Fuentes’ claim, with or without prejudice, arising from Rule 5705 of the Office of Worker’s Compensation’s Hearing Rules, entitled “Abandonment.” In pertinent part, that rule states:

A. A claim may be dismissed without prejudice after contradictory hearing properly noticed by the court on the judge’s own motion or on ex parte motion of a party for the following reasons:
4. where a claimant fails to appear for any properly noticed conference or hearing;
* ⅜ *
C. Any order of dismissal shall allow for reinstatement of the action within 30 days for good cause shown.
D. The workers’ compensation judge may order the claim dismissed, with prejudice, after a contradictory hearing, when it is shown that more than 90 days has elapsed since a claim was dismissed for any reason listed in Subsection A of this Section and no good cause has been shown for reinstatement.

La. Admin. Code tit. 40, pt. I, § 5705.

|fiWhile the record supports the trial court’s finding that Mr. Fuentes did fail to personally appear, the record also shows that Mr. Fuentes’ attorney, Mr. Miguel A. Elias, did appear on both occasions.

Under the Office of Worker’s Compensation Hearing Rules, Mr. Elias’ appearance on behalf of Mr. Fuentes constituted an appearance by Mr. Fuentes. See La. Admin. Code tit. 40, pt. I, § 5545 (“In all hearings before the Workers’ Compensation Judge the parties may appear in person or by counsel licensed to practice law in the State of Louisiana....”). Furthermore, despite statements by the trial court judge at the August 7, 2013 hearing indicating otherwise, we find no evidence in the record that the trial court judge had ordered Mr. Fuentes to personally appear in court that date. Accordingly, we find that the trial court erred by issuing its judgments of dismissal of Mr. Fuentes’ claim based on his failure to personally appear.

Next, we also find that Mr. Fuentes’ argument claiming that he was not given proper notice of his hearings has merit. While the record indicates that Mr. Fuentes may have received notice that the trial court planned to hold hearings on June 19, 2013, and August 7, 2013, the record contains no evidence that the hearings on those dates were properly noticed as hearings on the question of whether the court should dismiss Mr. Fuentes’ claim. Rather, the record indicates that on June 19, 2013, Mr. Fuentes expected to have a hearing on his motion for a preliminary default against Voiron, and that on August 7, 2013, Mr. Fuentes expected to have a hearing on his motion to reinstate his claim for good cause shown. Under the Office of Worker’s Compensation’s Hearing Rule 5705, the |fitrial court lacked authority to issue the two judgments dismissing Mr. Fuentes’ claim without providing him notice that the matter of dismissal would be heard. See Piper v. Shakti Inc., 02-1010 (La.App. 3 Cir. 10/1/03), 856 So.2d 144, 148-49 (reversing the dismissal of appellant’s claim based on appellant’s failure to appear at a hearing when there was “nothing in the record to show” claimant “received proper notice” of that hearing) and Bellard v. Seale Guest House, 02-355 (La.App. 3 Cir. 10/30/02), 829 So.2d 1080, 1084 (where claimant appealed the dismissal of his claim for his failure to attend a hearing, the court of appeal remanded the matter to the trial court because it was “unable to determine from the record whether that [hearing] was ‘properly noticed’ as required by Hearing Rule 5705”).

Finally, with regard to the trial court’s August 7, 2013 dismissal with prejudice of Mr. Fuentes’ motion to reinstate his claim, we find that the trial court erred in failing to comply with the requirements of the Office of Worker’s Compensation’s Hearing Rule 5705 subsection “D.” In order to dismiss a plaintiffs claim with prejudice, Rule 5705 subsection “D” requires that “more than 90 days has elapsed since a claim was dismissed for any reason listed in Subsection A of this Section and no good cause has been shown for reinstatement.” Here, the trial court first dismissed Mr. Fuentes’ claim without prejudice on June 19, 2013 because of the fourth reason provided in subsection A of Rule 5705, the previously discussed failure of Mr. Fuentes to personally appear on that date. The trial court then followed with its dismissal with prejudice on August 7, 2013. Because less than ninety days elapsed between these two dates, the trial court did not comply with Rule 5705 subsection “D” when it dismissed Mr. Fuentes’ claim with prejudice. The trial court’s failure to comply with this ninety-day time delay |7provides an additional reason why its August 7, 2013 judgment dismissing Mr. Fuentes’ claim with prejudice was in error.

CONCLUSION

For the foregoing reasons, we find the trial court erred both when it dismissed Mr. Fuentes’ claim without prejudice on June 19, 2013, and when it dismissed Mr. Fuentes’ claim with prejudice on August 7, 2013. Accordingly, we reverse the trial court’s judgments of dismissal from those dates and remand this ease for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . The transcripts of these hearings also show that Voiron failed to appear at both of these hearings.

      . After dismissing Mr. Fuentes’ claim at the initial hearing on June 19, 2013, the trial court advised Mr. Fuentes’ attorney as follows: "So, if you can confirm with him and then confirm to me that he does want to proceed with this claim. What I’ll do is reopen it under the same docket number and set the preliminary default hearing.” We find that this statement by the trial court did provide notice to Mr. Fuentes, or his attorney, that Mr. Fuentes was required to be personally present at the next hearing.

      . In light of our finding that this matter may be resolved under Rule 5705, we decline Mr. Fuentes’ invitation to consider whether, under these facts, Rule 5705 conflicts with La R.S. 23:1209(D).


text:
    STATE of Louisiana v. Orlando YOUNG.
    No. 13-KA-745.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Sloan Abernathy, Douglas W. Freese, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

| «¡.Defendant, Orlando Young, was convicted of possession of 28 grams or more, but less than 200 grams of cocaine in violation of La. R.S. 40:967F, and in due course, was sentenced as a second felony-offender to 20 years imprisonment at hard labor to be served without benefit of probation or suspension of sentence. The court further ordered defendant to pay a fine of $50,000.00. Defendant now appeals from his conviction and sentence, contending that the trial court erred in denying his motions to suppress evidence and statements. We affirm defendant’s conviction of possession of 28 grams or more, but less than 200 grams of cocaine and his adjudication as a second felony offender. Defendant’s sentence is amended to delete the fine, and his sentence of 20 years imprisonment at hard labor to be served without benefit of probation or suspension of sentence is affirmed as amended.

J^FACTS

On November 8, 2011, Officer David Schlueter of the Kenner Police Department Narcotics Investigations Section, and other officers initiated an investigation of a residence located at 904 27th Street in Kenner after receiving information from a confidential informant (“Cl”) that a black male, with several tattoos on his neck, face, and arms, was selling crack cocaine from that residence. They followed up on the information they received by conducting a controlled buy of crack cocaine from 904 27th Street utilizing the Cl.

The controlled buy was conducted outside the residence during nighttime hours. The Cl purchased an off-white, rock-like object, which field tested positive for cocaine. Because it was dark, the officers were not able to identify the black male who sold cocaine to the Cl. After the controlled buy, Officer Schlueter obtained a search warrant for the residence located at 904 27th Street, authorizing the search of the premises and anyone located on or in the premises.

The search warrant was executed on November 17, 2011. The officers entered the residence and found two adults, defendant and Precious Robinson, and seven children in the premises. Defendant was lying on a couch in the living room when officers entered. After the residence was secured, Detective Wimberly brought defendant to the rear bedroom while Ms. Robinson and the children remained in the living room.

Detective Wimberly advised defendant of his Miranda rights and defendant stated that he understood his rights and waived them. Detective Wimberly advised defendant that this was a narcotics investigation and that they had a search warrant for the residence. Detective Wimberly told defendant that since Ms. Robinson and the children were present, it might be better to cooperate to save the officers from | ¿having to “tear through the house.” According to Detective Wimberly, defendant advised him that Ms. Robinson had nothing to do with the investigation and that he did have narcotics in the house. Defendant led Detective Wimberly to the couch in the living room and pointed to the pullover sweater on the couch and stated, “It’s in there.” Detective Wimberly testified that defendant told him that the sweater belonged to him. Detective Wim-berly picked up the sweater, reached into the pocket, and recovered a clear bag of off-white, rock-like objects, consistent with crack cocaine. Because defendant showed Detective Wimberly where the narcotics were located, the officers did not search anywhere else in the residence. Defendant was arrested and taken into custody.

DISCUSSION

In his sole assignment of error, defendant contends that it was reversible error for the trial court to deny his motions to suppress evidence and statements. Defendant claims that he did not have constructive or actual possession of the cocaine that was discovered in the apartment of his friend, Ms. Robinson. Defendant also argues that he was not the owner of the sweater that the cocaine was found wrapped in because the sweater was an extra-large size, and defendant wore a size “3XL.” Further, defendant claims that his alleged statements to the police were not admissible because he was not informed of his Miranda rights before the police interrogation.

Motion to Suppress Evidence

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. The | .^remedy for evidence derived from an unreasonable search or seizure is exclusion of the evidence from trial. State v. Washington, 11-716 (La.App. 5 Cir. 3/13/12), 90 So.3d 1157, 1160. A defendant who is adversely affected may move to suppress any evidence from use at trial on the ground that it was unconstitutionally obtained. La.C.Cr.P. art. 703A.

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Payne, 10-46, 10-47 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287, 1295, writ denied, 11-0387 (La.9/16/11), 69 So.3d 1141. A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. Id. Probable cause for the issuance of a search warrant exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. Id. The determination of probable cause does not rest on an officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. Id. A search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. Id.

When ruling on a motion to suppress, the trial court is afforded great discretion, and its ruling will not be disturbed absent an abuse of its discretion. Washington, 90 So.3d at 1160. The task for a reviewing court is to ensure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. Payne, 59 So.3d at 1296. Facts contained | fiwithin the affidavit must establish the existence of probable cause for issuing a warrant. Id. If the magistrate finds that the affidavit is sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Id. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. Id. When evidence is seized pursuant to a valid search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. Id. Marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. Id. (citing State v. Rodrigue, 437 So.2d 830, 833 (La.1983)).

At the motion to suppress evidence hearing, Officer Schlueter testified that the Cl contacted him on his department cell phone and informed him that a black male, with several tattoos on his face, neck and arms, was selling illegal narcotics at 904 27th Street.

After the Cl advised him that he could purchase cocaine from this individual, Officer Schlueter contacted Detectives Brian Norwood and Mark McCormick to set up visual surveillance on the residence. Once the surveillance was set up, Officer Schlueter searched the Cl for contraband or currency, which proved negative. He provided the Cl with $20.00 in Kenner police funds to conduct a purchase of crack cocaine. Officer Schlueter observed the Cl arrive at 904 27th Street on foot and knock on the front door. A black male answered the door and Officer Schlueter observed the black male conduct a hand-to-hand transaction with the CL

Officer Schlueter testified that the officers were only able to see that the black male was dressed in all black. The officers were unable to observe any |7physical or facial description of the black male because it was late at night. Officer Schlueter further testified that the Cl advised him and the other officers that this was the same black male with multiple tattoos on his face, neck and arms that he referred to when he first contacted the police.

Officer Schlueter testified that the Cl provided him with an off-white, rock-like object, which tested positive for cocaine. Another search of the Cl proved negative for any other contraband or currency. After, Officer Schlueter returned to the police department, he recorded the weight of the off-white, rock-like object and then stored it in his narcotics safe.

Officer Schlueter further testified he prepared an application for a narcotics search warrant on November 11, 2011, for the premises located at 904 27th Street, including “anyone located on/or inside the premises.” In the application, Officer Schlueter attested to facts surrounding the Cl’s initial contact with him concerning narcotics being sold from the premises located at 904 27th Street, a detailed description of the controlled buy utilizing the Cl, the Cl’s prior reliability and assistance, and requested a warrant for search of the premises. A search warrant was issued authorizing the search of the premises located at 904 27th Street, including anyone located on or in the premises.

Officer Schlueter testified that the warrant was executed on November 17, 2011. The officers gained entry into the residence by breaching the door with a ram. Officer Schlueter testified that the door was locked, and they did not knock because it was a “no-knock warrant.” He discovered defendant and Ms. Robinson, along with her children. After the residence was secured, Officer Schlueter testified he left and returned to another residence where he was also conducting an unrelated search warrant. According to Officer Schlueter, Ms. Robinson was the 1 Sresident of the house, and defendant did not reside there. Officer Schlueter testified that narcotics were recovered during the execution of the search warrant.

Based on the testimony and evidence, the facts and circumstances were sufficient to support a reasonable belief that crack cocaine was being sold from the residence at 904 27th Street. Accordingly, we find that there was probable cause for issuing the search warrant and the trial court did not abuse its discretion in denying defendant’s motion to suppress evidence.

Constructive Possession

Defendant argues that he was identified by a Cl who was unable to provide a full name of the black male who sold the narcotics, the evidence was discovered in Ms. Robinson’s residence, and the narcotics were discovered in a sweater that did not belong to him. Thus, defendant contends that the trial court erred in denying his motion to suppress evidence.

La.C.Cr.P. art. 703A provides for suppression of evidence obtained by an unconstitutional search or seizure. La. C.Cr.P. art. 703A is not intended to permit suppression of evidence seized by a warrant unless the seizure violates fundamental due process concepts. State v. Guidry, 03-1944 (La.11/21/03), 862 So.2d 965, 965-966. The only issue properly before the trial court at a hearing on a motion to suppress is whether the evidence should be excluded as unconstitutionally seized. Procedurally, a motion to suppress is not used to test the admissibility of evidence constitutionally seized. State v. Garnier, 261 La. 802, 261 So.2d 221, 223 (1972); State v. Green, 454 So.2d 885, 886 (La.App. 4 Cir.1984). Questions of admissibility, relevance, weight and connexity are properly resolved |flat a trial on the merits. Id.; State v. Tanner, 457 So.2d 1172 (La.1984); See also State v. Joseph, 454 So.2d 237, 242 (La.App. 5 Cir.1984).

We find that the defendant’s contentions fail to show error in the trial court’s denial of the motion to suppress evidence. Nevertheless, the following addresses the merits of defendant’s contentions that he was not in possession of the cocaine recovered during the execution of the warrant.

The officer’s determination that defendant was in possession of the cocaine was not dependent on the credibility of the CL Defendant’s possession of the cocaine was based on police observation. The application for the search warrant stated that “this particular source has proved to be reliable numerous times in the past and his/her assistance has led to multiple arrests and convictions, with seizures of large amounts of U.S. currency and narcotics.” After the Cl provided information that crack cocaine was being sold from the residence by a black male, the officers corroborated the information by conducting the controlled buy with the Cl at the specific address indicated on the search warrant.

During the surveillance, officers observed a black male conduct a hand-to-hand transaction with the Cl. The search warrant itself authorized that the search of the premises including anyone located on or in the premises. When the search warrant was executed, defendant was the only adult black male in the residence.

Additionally, the evidence supports the finding that defendant was in possession of the crack cocaine discovered by officers. A person not in physical possession of a drug may have constructive possession when the contraband is under the person’s dominion and control. State v. Fisher, 03-326 (La.App. 5 Cir. 7/29/03), 852 So.2d 1075, 1079, writ denied, 03-2545 (La.5/14/04), 872 So.2d 510. The key factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are Imthe defendant’s knowledge that illegal drugs were in the area, his relations with a person found to be in actual possession, the defendant’s access to the area where the drugs were found, evidence of recent drug use by the defendant, the existence of drug paraphernalia, and evidence that the area was frequented by drug uses. Id.

Defendant had knowledge that illegal drugs were in the residence because he admitted drugs were in the residence to the officer and actually led him to where the drugs were located. When officers entered the residence, defendant was in the living room and was either sitting on the same couch or on the couch across from where the drugs were found. Therefore, defendant had access to the area where the drugs were found shortly before the officer discovered it. Additionally, the officers had previously observed a drug transaction conducted at the residence. Therefore, we find that the evidence showed that defendant possessed the cocaine at the time the search warrant was executed.

Accordingly, we find that the trial court did not abuse its discretion in denying the defendant’s motion to suppress evidence.

Motion to Suppress Statements

La.C.Cr.P. art. 703B provides that “[a] defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.” Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; State v. Mollette, 08-138 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-0155 (La.10/16/09), 19 So.3d 472.

111A determination of whether a waiver of constitutional rights was knowing and voluntary is made on a case-by-ease basis, and such a determination rests upon the totality of the circumstances. State v. McGee, 04-963 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, 407, writ denied, 05-0593 (La.5/20/05), 902 So.2d 1050. There is a presumption against waiver which the State must rebut. State v. Lemonte, 12-657 (La.App. 5 Cir. 1/30/13), 108 So.3d 1271, 1278. The State must specifically rebut the defendant’s allegations when claims of police misconduct in eliciting a confession are raised. State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

To determine whether the trial court’s ruling is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing, but also may consider pertinent evidence presented at trial. Mollette, 2 So.3d at 467. The trial court’s admissibility of a statement, and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement, are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Allen, 06-778 (La. App. 5 Cir. 4/24/07), 955 So.2d 742, 752, writ denied, 08-2432 (La.1/30/99), 999 So.2d 754. The testimony of an interviewing police officer alone may be sufficient to prove that an inculpatory statement was given freely and voluntarily. State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 755.

Defendant contends that he remained silent and did not make any statements to the police and he refused to verify or deny that there were drugs in the residence. Defendant further claims that his alleged statements to the police were not free and voluntary; he was not free to ignore the officer’s questions; he was not advised of l^his right to remain silent; and the officers made several threats in an attempt to force defendant to speak.

Detective Wimberly testified at the hearing and trial that he participated in the investigation that resulted in the arrest of defendant. At the time the search warrant was executed, Detective Wimberly spoke to defendant, after first advising him of his Miranda rights. According to Detective Wimberly, defendant stated that he understood and waived his rights. Detective Wimberly testified that he pulled defendant aside into a rear bedroom, explained to him the nature of the investigation and informed him of the narcotics search warrant. Detective Wimberly stated to defendant, “Look, if you have anything here, we’re going to find it, you know. It would be best for you to cooperate; that way, we don’t have to tear through the house.”

Detective Wimberly testified that he did not force, threaten, or coerce defendant into making a statement, or promise him anything in return for his statement. Defendant stated that he had “some crack” located where he was lying on the couch in the living room when the officers first entered the house. Defendant walked with Detective Wimberly to the living room and pointed to a sweater lying on the back of the couch. v In the sweater pocket, Detective Wimberly found a big, clear bag containing several rock-like objects that appeared to be crack cocaine. Detective Wimberly testified that defendant stated that the drugs belonged to him, that Ms. Robinson had nothing to do with the drugs, and Ms. Robinson had no knowledge that the drugs were there.

1 lsDetective Treigle testified at trial that he observed defendant show Detective Wimberly the sweater that contained the crack cocaine. He further testified that he heard defendant state that the crack cocaine belonged to him, that Ms. Robinson was not involved, and there were no other narcotics in the residence.

Defendant testified at trial that he was silent and did not have any conversations with any officer that night and did not sign any documents. Defendant subsequently testified that he attempted to tell the police that he had nothing to do with the drugs, but they refused to listen. Defendant later testified that he did not explain anything to the officers and did not say anything. He testified that he did not make any statements to the officers that the drugs belonged to him and that Ms. Robinson had nothing to do with the drugs.

Considering the above stated facts, we find that the trial court did not abuse its discretion in denying defendant’s motion to suppress statements.

ERRORS PATENT

The record was reviewed for errors patent, in accordance with the mandates of La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). The following error patent requires corrective action.

When sentencing defendant as a habitual offender, the trial judge imposed a fine of $50,000.00. La. R.S. 15:529.1 only provides for enhanced sentences relating to the term of imprisonment. The statute does not authorize the imposition of a fine. State v. Dickerson, 584 So.2d 1140 (La.1991). Accordingly, we hereby amend defendant’s sentence to delete the fine by way of this Court’s opinion. State v. Baskin, 13-351 (La.App. 5 Cir. 10/30/13), 129 So.3d 614, 624 (citing State v. Marshall, 45,567 (La.App. 2 Cir. 9/22/10), 47 So.3d 1083, writ denied, 11410-2411 (La.2/25/11), 58 So.3d 457). As amended, defendant’s sentence is hereby affirmed.

CONCLUSION

For the foregoing reasons, defendant’s conviction of possession of 28 grams or more, but less than 200 grams of cocaine and his adjudication as a second felony offender are affirmed. Defendant’s sentence is amended to delete the fine, and his sentence of 20 years imprisonment at hard labor, the first five of which is to be served without benefit of parole, and the entirety of which is to be served without probation or suspension of sentence is affirmed as amended.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED.

      . The bill of information charges defendant with possession of cocaine "in excess of 28 to 200 grams,” which does not follow the precise statutory language of R.S. 40:967G. However, it is clear from the evidence and record that the defendant was found in possession of 41 grams of cocaine, and that the defendant and jury understood the nature and parameters of the charge.

      . Defendant’s sentence is illegally lenient in that the trial court did not order the first five years of his sentence to be served without benefit of parole, as provided in R.S. 40:967G. While R.S. 15:529.1G requires that second felony habitual offender sentences under R.S. 15:529.1 (A) 1 be served without the benefit of probation or suspension of sentence, the restriction on parole eligibility in the underlying statute (R.S 40:967G) also applies to the habitual offender enhanced sentence. State v. Bruins, 407 So.2d 685 (La.1981). Thus, the first five years of the defendant's sentence must be served without benefit of parole.
      La. R.S. 15:301.1A provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence whether or not specified by the sentencing court, and are therefore statutorily effective. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 798-99. Thus, no corrective action is required to specify that the first five years of defendant’s sentence is to be served without benefit of parole. Accordingly, on error patent review, no corrective action need be taken by the trial court.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In his assignment of error, defendant contends that the police "stormed into his friend’s apartment” when executing the search warrant. However, defendant failed to brief this issue or claim specifically that the search was unreasonable because of the officer's no-knock entry. Accordingly, this issue is deemed abandoned and will not be considered by this Court on appeal. U.R.C.A. Rule 2-12.4; See State v. Sinceno, 12-118 (La.App. 5 Cir. 7/31/12), 99 So.3d 712, 720, writ denied, 12-2024 (La. 1/25/13), 105 So.3d 713.

      . It is noted that defendant does not argue that the evidence was insufficient to support his conviction. Defendant argues that the trial court erred in denying his motion to suppress because the State failed to show that defendant was in possession of the cocaine.

      . In his appellate brief, defendant failed to specify threats the officers made. Additionally, defendant failed to mention any threats when he testified at trial. However, Detective Wimberly testified at the hearing and at trial that he told defendant that it would be better to cooperate in order to avoid the officers having to "tear through” Ms. Robinson's residence while searching for narcotics. Nevertheless, defendant's admission was not coerced so as to render the statement involuntary and inadmissible merely because defendant was motivated to protect Ms. Robinson. See State v. Weinberg, 364 So.2d 964, 971 (La.1978).

      . See FN 2


text:
    STATE of Louisiana v. Darrion GOFF.
    Nos. 13-KA-866, 13-KA-867.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, Louisiana, for Plaintiff/Ap-pellee.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.

      Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

| gDefendant, Darion Goff, appeals his convictions and sentences for armed robbery and aggravated battery. Defendant’s appointed appellate counsel has filed an appellate brief pursuant to Anders v. California and has farther filed a motion to withdraw as counsel of record. For the following reasons, we affirm defendant’s convictions and sentences and grant counsel’s motion to withdraw.

STATEMENT OF THE CASE

On August 17, 2007, the District Attorney for the Twenty-Third Judicial District filed two bills of information charging defendant with armed robbery in violation of La. R.S. 14:64 and aggravated battery in violation of La. R.S. 14:34. Defendant pled not guilty to the charges at his arraignment on September 17, 2007. However, on December 15, 2008, defendant changed his pleas and pled guilty to both charges. The parties agreed that the trial court would order a Pre-Sentence Investigation Report and further agreed to a thirty-year sentencing cap. Pursuant to lathe parties’ agreement, the trial court ordered a Pre-Sentence Investigation Report and deferred sentencing to await receipt of the report. On March 16, 2009, the trial court sentenced defendant to thirty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, for the armed robbery conviction and five years for the aggravated battery conviction, to be served at the same time as defendant’s sentence for his armed robbery conviction.

FACTUAL BACKGROUND

Defendant pled guilty without proceeding to trial, but agreed to a factual basis provided for each charge during his guilty plea colloquy:

On July 10, 2007, in St. James Parish, defendant committed an armed robbery by intentionally taking property from Tuan Nhuyen by use of force or intimidation while armed with a knife and, on the same date, further committed aggravated battery upon Tuan Nhuyen by stabbing him with a knife and causing injury to his right forearm.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir.1990), defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds the case to be wholly 14frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Defrene, 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In this case, appointed appellate counsel’s brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The state agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record. An independent review of the record supports counsel’s assertion that there are no non-frivolous issues to raise on appeal.

First, the bills of information filed properly charged defendant with armed robbery in violation of La. R.S. 14:64 and aggravated battery in violation of La. |sR.S. 14:34. As required, the bills of information clearly, concisely, and definitely state the essential facts constituting the offenses charged and sufficiently identify defendant and the crimes charged. See La.C.Cr.P. arts. 464-66. Second, the minute entries reflect that defendant appeared at each stage of the proceedings against him. Defendant physically made an appearance in open court for his arraignment, his guilty plea proceeding, and his sentencing.

Third, defendant pled guilty to the charges against him. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

The record reflects that defendant was aware he was pleading guilty to the charged offenses, armed robbery and aggravated battery. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, supra. Defendant was advised of these rights by means of the waiver of rights form, which he signed, and during the colloquy with the trial judge.

| (¡The trial court advised defendant of the nature of the offenses with which he was charged and defendant agreed to the factual basis provided for each plea. Defendant was also informed of the statutory penalty ranges for the offenses, the agreed upon sentencing cap of thirty years, and the agreement that a Pre-Sentence Investigation Report would be ordered by the court. The trial court was convinced that defendant understood his rights, the charges against him, and the possible penalties he faced. The court and defendant’s trial counsel agreed that defendant’s plea was freely and voluntarily made.

Last, defendant’s sentences fall within the sentencing ranges statutorily prescribed. Defendant pled guilty to armed robbery in violation of La. R.S. 14:64 and faced a sentencing range of imprisonment at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64(B). Defendant was sentenced to thirty years at hard labor without benefit of parole, probation, or suspension of sentence. As to his aggravated battery conviction, defendant faced a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than ten years, or both. See La. R.S. 14:34. The trial court imposed a five-year sentence for defendant’s aggravated battery conviction, which is well within the prescribed statutory sentencing range.

|7Further, defendant’s sentences were imposed pursuant to a plea agreement. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2). This applies both to plea agreements involving specific sentences and sentencing caps. State v. Morales, 12-21 (La.App. 5 Cir. 10/30/12), 102 So.3d 1038, 1040—41; State v. Jackson, 07-975 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 251. Defendant knew that a Pre-Sentence Investigation Report would be ordered and that he faced a sentencing cap of thirty years. Because defendant’s sentences were imposed in conformity with a plea agreement which was set forth in the record at the time of the plea, defendant cannot seek review of his sentences on appeal. See State v. Smith, 09-1043 (La. App. 5 Cir. 6/29/10), 43 So.3d 261, 265.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant’s appointed appellate counsel has adequately demonstrated her review and analysis of the record in this case. An independent review of the record supports counsel’s assertions set forth in her Anders brief. Therefore, we find that counsel’s request to withdraw as counsel of record should be granted.

ERRORS PATENT DISCUSSION

Defendant requests an error patent review. This Court routinely reviews records for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990), regardless of whether a defendant makes such a request. The record reflects the following errors patent:

First, the sentencing minute entries and the transcript reflect that, at defendant’s sentencing, the trial judge ordered that defendant be afforded ^treatment. Although the trial judge may recommend rehabilitative treatment to a defendant — and is encouraged to do so in certain cases — the trial court has no authority to dictate how defendant’s sentence is to be served once he is in the custody of the Department of Corrections. Under La.C.Cr.P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review when such correction does not involve the exercise of sentencing discretion. See State v. Webre, 09-351 (La.App. 3 Cir. 11/4/09), 21 So.3d 1154, 1159. Accordingly, we hereby amend defendant’s sentences to delete that portion requiring participation in any form of treatment. We further remand this matter to the trial court for correction of the sentencing minute entries. See La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Second, the record reflects an apparent discrepancy between the sentencing minute entries and the transcript as to defendant’s sentence for aggravated battery. The sentencing minute entries reflect that the trial judge ordered defendant’s five-year sentence for his aggravated battery conviction to be served at hard labor. However, the transcript reflects that the trial judge did not specifically order the five-year sentence for defendant’s aggravated battery conviction to be served at hard labor. Whether a defendant sentenced for aggravated battery serves the sentence with or without hard labor is left to the discretion of the trial court. See La. R.S. 14:34. Although the transcript reflects that the trial judge did not order defendant’s five-year sentence for his aggravated battery conviction to be served at hard labor, he did order that the sentence be served “at the same time” as 1 fldefendant’s thirty year sentence for his armed robbery conviction. We find that the trial judge ordered defendant’s five year sentence for his aggravated battery conviction to be served concurrently to his thirty year sentence at hard labor for his armed robbery conviction. Therefore, any discrepancy between the sentencing minute entries and the transcript is rendered moot.

Accordingly, for the reasons provided herein, defendant’s convictions and sentences are affirmed and appellate counsel’s motion to withdraw is hereby granted. This matter is remanded to the trial court for correction of the sentencing minute entries to reflect this Court’s amendment deleting the portion of defendant’s sentences ordering that he participate in treatment.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF THE SENTENCING MINUTE ENTRIES.

      . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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

      . If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Defendant filed pre-trial motions, including a motion to suppress statement. The record does not reflect that the suppression motion was ruled upon prior to defendant’s guilty plea proceeding. Nevertheless, when a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Further, no rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

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

      . Although the trial court mistakenly advised defendant during the colloquy that the minimum sentence for armed robbery was three years, we find this error harmless. La.C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. Violations of La.C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. See State v. Guzman, 99-1528 and 99-1753 (La.5/16/00), 769 So.2d 1158, 1164-66; State v. Gilliam, 01-748 (La.App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-0512 (La.l 1/1/02), 828 So.2d 562. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Gilliam, 807 So.2d at 1027. Any variance from the procedure required by Article 556.1 that does not affect the substantial rights of the accused shall not invalidate the plea. La. C.Cr.P. art. 556.1(E). We find that defendant was properly advised of the mandatory minimum sentence for his armed robbery conviction in his waiver of rights form, which he signed and acknowledged he reviewed with his counsel. Therefore, we find that the trial court’s statement to defendant providing the incorrect mandatory minimum sentence for armed robbery in this case was harmless error.

      . Although the trial judge did not specifically order drug treatment, the transcript indicates defense counsel's request that the trial court order drug treatment for defendant.

      . Neither La. R.S. 14:64 nor La. R.S. 14:34 mandate treatment as a part of a defendant’s sentence.

      .The sentencing minute entries reflect that the trial court ordered that defendant serve his sentence for his aggravated battery conviction with the Department of Corrections. A defendant sentenced to the custody of the Department of Corrections is necessarily sentenced at hard labor. See La. R.S. 15:824(C).