text:
    STATE of Louisiana, Appellee v. Leon WILLIAMS, Appellant.
    No. 47,733-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Rehearing Denied April 4, 2013.

      Louisiana Appellate Project, by Douglas L. Harville, for Appellant.
    Leon Williams, Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

b The defendant, Leon Williams, was sentenced as an habitual offender to 40 years at hard labor without benefit of parole, probation, or suspension of sentence for the offense of distribution of cocaine, a violation of La. R.S. 40:967(A). Alleging that his sentence is excessive and that no valid habitual offender bill was filed, he now appeals. We affirm.

FACTS

In State v. Williams, 46,301 (La.App.2d Cir.5/18/11), 69 So.3d 556, writ denied, 2011-1369 (La.12/16/11), 76 So.3d 1200, this court affirmed the defendant’s conviction for distribution of cocaine and sentence of 20 years at hard labor, the first two years without benefits.

On December 15, 2011, the state filed an habitual offender bill of information charging Williams as a second-felony offender. The bill specifically alleged that Williams had been convicted of distribution of cocaine on June 17, 2010, and burglary on December 7, 1993. Both convictions were in Webster Parish under docket numbers 79,131 and 56,635, respectively. As to the burglary offense, the minutes entered into evidence at the habitual offender hearing stated that Williams had been convicted of burglary of an inhabited dwelling, a violation of La. R.S 14:62.2.

At the habitual offender hearing on March 2, 2012, the state called Major Jacob Cyrus Hortman, III, and Detective Tommy D. Kemp, both of the Webster Parish Sheriffs Office, and Renee Davis, a probation and parole agent for the state. Major Hortman testified that he took the defendant’s fingerprints on November 14, 2011. The prints taken by Major |2Hortman were entered into evidence. He testified that Detective Kemp did the initial match of the defendant’s fingerprints to those included with the bills of information relating to the defendant’s convictions for distribution of cocaine on June 17, 2010, and for burglary of an inhabited dwelling on December 7, 1993. Major Hortman testified that he compared the three sets of prints to verify the match found by Detective Kemp. Major Hort-man opined that all three sets of prints came from the same individual, the defendant.

Detective Kemp, who was accepted as an expert in fingerprint identification, testified that he did the initial comparison of the three sets of prints and concluded that all three came from the defendant.

Davis testified that she knew the defendant, who served parole from November 1996 to June 1997 and again from June 1998 to June 1999. She stated that the defendant had been on parole from his 1993 conviction for simple burglary of an inhabited dwelling. Davis identified photographs of the defendant from her file and identified him in open court.

The defendant did not present any evidence.

The trial court adjudicated the defendant a second-felony offender and withdrew his previously imposed 20-year sentence. After the defendant waived sentencing delays, the trial court imposed a new sentence of 40 years at hard labor without benefit of probation, parole or suspension of sentence. The trial court ordered the sentence to be consecutive to another that the defendant was serving.

|3The defendant filed a motion to reconsider the sentence on the grounds that it is excessive based on the facts of the offense and that, given his age, it is equivalent to a life sentence. The trial court denied the motion, and the defendant timely appealed.

DISCUSSION

Appellate counsel assigns as error the excessiveness of the sentence. The defendant also filed a pro se brief in which he asserts that the state did not file a valid habitual offender bill of information. We will first address the pro se claim.

The defendant contends that the habitual offender bill of information did not comply with La. C. Cr. P. arts. 384 and 464. He also complains that he was not provided the requisite 15 days to object to the allegations in the habitual offender bill as required by La. R.S. 15:529.1(D).

La. R.S. 15:529.1(D)(l)(a) states in relevant part:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b) of this Paragraph. The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies as set forth in the information.

|4We note that the copy of the bill of information introduced as S-l at the hearing was neither signed nor stamped; this is apparently the basis of the defendant’s complaint that there was not a valid habitual offender bill. However, the defendant did not object to the introduction of S-l, and the signed and stamped copy of the bill is filed in the record.

The habitual offender bill of information charging the defendant as a second-felony offender was filed on December 15, 2011. The bill states the date of the instant offense of distribution of cocaine in Docket No. 79,181, the date of conviction, and the date of sentencing. It provides the same as to the burglary (simple burglary of an inhabited dwelling) offense in Docket No. 56,685. The bill states that the defendant is subject to an enhanced penalty under La. R.S. 15:529.1. As such, the bill sufficiently informed the defendant that he was being charged as an habitual offender and of the basis for the charge. The bill complies with the specific provisions of La. R.S. 15:529.1, the Habitual Offender Law. Articles 384 and 464, which concern the institution of criminal proceedings and indictments, do not apply here.

Though the record does not show that Williams appeared to answer the allegations of the habitual offender bill of information, the record does show there was adequate opportunity for him to have responded by filing a motion to quash the bill, if he had grounds to do so, and to prepare for the hearing. The bill was filed on December 15, 2011, but the hearing did not take place until March 2, 2012. At the hearing, the defendant was ready to proceed with appointed counsel. He did not file objections or request time |fito do so. For these reasons we find no merit to the pro se assignment of error.

Appellate counsel assigns as error the excessiveness of the sentence. He argues that the underlying conviction was for distribution of only $50 worth of cocaine and that the trial court imposed what amounts to a life sentence for this 52-year-old defendant.

The state counters that Williams could have been sentenced up to 60 years as an habitual offender and that the sentence is justified by the effects of illegal drug sales on society.

When there is a substantive motion for reconsideration of a sentence, we apply a two-part inquiry on appellate review for excessiveness. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 1994-0461 (La.9/5/95), 660 So.2d 819; State v. Cass, 46,228 (La.App.2d Cir.4/13/11), 61 So.3d 840, writ denied, 2011-1006 (La.11/4/11), 75 So.3d 922. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Cass, supra. Secondly, we consider whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, supra.

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id., citing State v. Square, 433 So.2d 104 (La.1983).

Under La. R.S. 15:529.1(A)(1), and La. R.S. 40:967(B)(4)(b), Williams was subject to a sentencing range of 15 to 60 years at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence and the remaining time to be served without the benefit of probation or suspension.

The defendant has not shown that the trial court abused its wide discretion in imposing the 40-year hard labor sentence. The defendant was subject to receiving a 60-year sentence; thus, he received substantially less than the maximum that was possible. The defendant opted to waive delays and proceed directly to sentencing. Although the trial court did not elucidate the exact mitigating or aggravating factors in this matter when sentencing the defendant as an habitual offender, the trial court had previously viewed and considered the defendant’s presentence investigation report and had considered the guidelines in La. C. Cr. P. art. 894.1 when it imposed the 20-year sentence. See State v. Williams, supra. In affirming the defendant’s first sentence, this court noted the trial court’s specific references to the defendant’s extensive criminal background and his then pending felony drug charges. Based on his criminal history and his status as a second-felony offender, the defendant’s 40-year sentence, though arguably harsh, is within statutory limits, is not disproportionate to the offense, and 17does not shock the sense of justice. Accordingly, we find no merit to the assignment of error regarding excessiveness of the sentence.

We do find error patent in that the sentence imposed is illegal because it denies the defendant the benefit of parole for the entirety of his 40-year sentence. The underlying offense mandates that the first two years of the sentence be imposed without the benefit of parole, probation, or suspension of sentence. See La. R.S. 40:967(B)(4)(b). Under La. R.S. 15:529.1(G), habitual offender sentences are to be imposed at hard labor without benefit of probation or suspension of sentence. Contrary to these provisions, the trial court sentenced the defendant to 40 years without all benefits.

An illegal sentence may be corrected by an appellate court on review. La C. Cr. P. art. 882. Therefore, we amend the defendant’s sentence to provide that the first two years shall be served without the benefit of parole, probation, and suspension of sentence and that the remaining 38 years shall be served without the benefit of probation and suspension of sentence.

CONCLUSION

For the reasons explained, we affirm the defendant’s conviction as a second-felony offender. We also affirm his 40-year sentence as amended to provide that the first two years are to be served without benefit of parole, probation, and suspension of sentence, and the remaining 38 years are to be served without benefit of probation and suspension of sentence.

CONVICTION AFFIRMED AS AMENDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY and GARRETT, JJ.

Rehearing denied.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Otis Ray THOMAS, Appellant.
    Nos. 47,738-KA, 47,739-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Otis Ray Thomas, Pro se.
    Carey J. Ellis, III, for Louisiana Appellate Project, Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Andrew C. Jacobs, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

h Otis Ray Thomas was convicted by the 26th Judicial District Court, Parish of Bossier, State of Louisiana, of two counts of felony theft over $500.00 in violation of La. R.S. 14:67(B)(2). Thomas received two sentences of 10 years’ hard labor to run consecutively. For the following reasons, we affirm Thomas’s convictions and sentences.

FACTS

On August 6, 2008, Thomas took a vehicle belonging to Danny Allen with the use óf a firearm in Bossier City, Louisiana. Thomas sold this vehicle to purchase cocaine. The next day Thomas committed an identical crime when he stole a vehicle belonging to Jennifer Hoppaugh with the use of a firearm. Thomas was arrested and charged by bill of information with one count of armed robbery with a firearm and one count of second degree kidnapping for the offenses committed against Allen and an identical set of charges for the offenses committed against Hoppaugh. Pursuant to a plea agreement, Thomas pled guilty to two counts of felony theft, middle grade, in violation of La. R.S. 14:67(B)(2), and the State agreed not to charge Thomas as a multiple offender. Additionally, Thomas agreed to serve two consecutive 10-year sentences. Thomas waived his sentencing delays and was sentenced by the trial court as he agreed. Thomas now appeals.

DISCUSSION

Thomas’s appellate counsel has filed an Anders brief, which alleges no non-frivolous issues to raise on appeal and seeks the withdrawal of counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d, 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242, writ denied, 1999-3018 (La.03/31/00), 759 So.2d 69; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history and facts of the case set forth by the State. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, at 242. The State filed a letter with this Court agreeing that there are no nonfrivolous issues to raise on appeal. Appeal counsel has verified the mailing of copies of his notice to withdraw and brief to the defendant in accordance with Anders, Jyles, and Benjamin, supra.

La. C. Cr. P. art. 881.2(A)(2) provides that a defendant, cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Pee, 47,261 (La.App.2d Cir.09/26/12), 107 So.3d 69. Here, the transcript of the plea hearing clearly reflects that Thomas agreed to serve two consecutive sentences of 10 years in exchange for the State’s promise not to seek enhancement of his sentences under the Habitual Offender Law. He was advised of his Boykin rights and knowingly and voluntarily pled guilty to two counts of felony theft. In accepting the terms of his plea agreement and ultimately pleading guilty, Thomas cannot now seek review of his sentence. The appellate counsel has shown that defendant cannot appeal the sentences imposed and that no non-frivolous errors can be found after a conscientious review of the record. We have examined the record for error patent and found none.

|aCONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and the convictions and sentences of Otis Ray Thomas are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTIONS AND SENTENCES AFFIRMED.

      . The two cases have been consolidated for the purposes of this appeal.


author: SEXTON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee v. Dominic BANKS, Appellant.
    No. 47,740-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Suzanne M. Owen, Geya D. Williams Prud-homme, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

liThe defendant, Dominic Banks, pled guilty to attempted first degree murder, a violation of La. R.S. 14:30 and 14:27. He was sentenced to 22 years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, arguing that his sentence is excessive. We affirm his conviction and sentence.

FACTS

On August 4, 2011, Officer George Nichols of the Shreveport Police Department was the courtesy officer at the Village Square Apartments. While walking around the apartment complex, he noticed a group of people standing together. He recognized all of them with the exception of one young man, who was subsequently identified as the defendant. When the officer asked him who he was visiting at the complex, the defendant responded that he was visiting his aunt and then began to run. The officer pursued him, and the defendant went through a hole in a fence. As the uniformed officer followed him through the hole, the defendant fired a gun at him from a distance of approximately 15 feet. Fortunately, Officer Nichols was not struck by the bullet. A .380 shell casing was recovered at the scene.

Several weeks later, while riding a bicycle, the defendant had another encounter with the police that resulted in him being pursued again. During the chase, the defendant jumped off the bicycle and threw down a backpack. Although the defendant eluded the officer, the backpack was retrieved, and a .380 caliber handgun was found in it.

^Subsequent testing determined that the weapon found in the defendant’s backpack fired the cartridge case recovered at the scene of the shooting. Additionally, Officer Nichols identified the 16-year-old defendant from a photo lineup as the person who shot at him.

The defendant was charged by bill of information with the attempted first degree murder of Officer Nichols. In February 2012, he pled guilty to the charge, admitting that he had, in fact, shot at the police officer. In March 2012, a sentencing hearing was held at which the state presented the testimony of Officer Nichols. Testifying on the defendant’s behalf were his stepfather, a cousin, and a close friend. The defendant also testified, requesting leniency. He stated that he found the loaded gun on a trail three days before the shooting. He also insisted that he did not fire directly at the officer, but rather to the right side of the officer.

In April 2012, the trial court sentenced the defendant to 22 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a timely motion to reconsider sentence. The trial court denied the motion with written reasons.

The defendant appeals. In his sole assignment of error, he asserts that the sentence imposed by the trial court is grossly excessive under the facts and circumstances of this case, especially in light of his young age.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Holder, 47,002 (La.App.2d Cir.2/29/12), 87 So.3d 241. The articulation of a factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Holder, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Holder, supra.

Second, the court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it |4shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Holder, supra.

A trial court has broad discretion to sentence within the statutory limits. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. Holder, supra. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

The sentencing range for attempted first degree murder of a police officer is imprisonment at hard labor for not less than 20 nor more than 50 years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30 and 14:27(D)(l)(b).

DISCUSSION

The defendant argues that even though his sentence falls within the statutory limits, it still violates his constitutional right against excessive punishment. He claims that a sentence of 22 years at hard labor without benefits serves no useful purpose for him or for society. By the time he is released, he will be 39 years old, at which point it will be difficult for him to successfully reintegrate into society. He argues that we should look to the particulars of the crime and this defendant and find that the sentence imposed is excessive.

In opposition, the state maintains that the defendant’s sentence, which is only two years above the minimum mandatory sentence, is not grossly disproportionate to the severity of the crime. In support of its argument, the state cites State v. Watson, 46,380 (La.App.2d Cir.6/22/11), 71 So.3d 479, in which this court upheld a 34-year sentence imposed upon a 16-year-old offender for attempted second degree murder. In that case, the defendant borrowed a cell phone from the relative of a friend; when the friend requested the return of the phone, the defendant shot him several times, inflicting serious injuries. The defendant in Watson — like the defendant in the case before us — had a juvenile criminal record but the shooting was his first adult felony conviction.

In the instant case, the defendant almost took the life of a uniformed police officer when he shot at him from a distance of only about 15 feet. When he discharged the gun, he also endangered the lives of other people who were nearby at the apartment complex.

In imposing sentence upon this defendant, the trial court gave great consideration to both aggravating and mitigating factors. The trial court specifically stated that he recognized that the defendant was only 17 years old at the time he was sentenced, and that the minimum mandatory sentence for the crime he committed exceeded the amount of time he had been alive. However, the trial court emphasized the serious nature of the defendant’s crime and noted the defendant’s apparent lack of remorse for his crime as demonstrated by his attempt to downplay his level of culpability. Additionally, the trial court considered the defendant’s extensive juvenile record, which involved approximately nine separate events, and the fact that he continued to engage in criminal behavior despite his juvenile adjudications and detentions.

| ^Clearly the trial court took the defendant’s young age into consideration when it imposed a sentence of only 22 years out of a possible term of 50 years. Although the court could have utilized its great discretion to impose a longer sentence, it specifically chose not to do so because of the defendant’s youth.

Based on the great amount of careful thought and consideration the trial court gave to the imposition of this particular sentence, we find that it is not grossly disproportionate to the severity of the offense. Nor is it shocking to the sense of justice.

This assignment is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Tyrone HAMILTON, Appellant.
    No. 47,773-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Paula Corley Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| j This criminal appeal arises from the 26th Judicial District Court, Parish of Webster, State of Louisiana. The defendant, Tyrone Hamilton, pled guilty to one count of bank fraud in violation of La. R.S. 14:71.1. He was sentenced to 10 years at hard labor with the condition that he pay restitution to three victims should he ever be paroled. Hamilton appeals his sentence. For the following reasons, his conviction is affirmed, and his sentence is affirmed in part, vacated in part, and remanded for resentencing.

Facts

On November 10, 2009, Hamilton went to Gibsland Bank and Trust (“Gibsland Bank”) in Minden, Louisiana, and cashed a counterfeit check in the amount of $1,432.90. On that same day he also cashed a fraudulent check for $1,299.65 at Citizen’s Bank and Trust (“Citizen’s Bank”), also in Minden. He was subsequently arrested and charged with two counts of bank fraud in violation of La. R.S. 14:71.1. Pursuant to a plea agreement, Hamilton pled guilty to one count of bank fraud against Gibsland Bank. In exchange for his guilty plea, the State dismissed count two regarding Citizen’s Bank and agreed not to file a multiple offender bill for sentence enhancement. The trial court accepted Hamilton’s plea and ordered a presentence investigation report (“PSI”).

After reviewing the PSI, the trial court conducted a sentencing hearing. At the hearing, the trial court noted that Hamilton was a fifth felony offender with extensive juvenile and adult criminal records, including but not limited to: six crimes of violence; possession of a controlled substance; misdemeanor theft; and, burglary. He had been placed on probation numerous times, and |2nearly all had been revoked. The trial court observed that Hamilton had three children, a history of employment, and had completed various rehabilitation programs during past incarcerations. After considering the foregoing information, the trial court found the aggravating circumstances to be overwhelming, and it sentenced Hamilton to 10 years of imprisonment, the maximum penalty permitted under the statute. In addition to the 10-year sentence, the trial court ordered Hamilton, as a condition of his parole, to make restitution to Gibsland Bank in the amount of $1,432.90, as well as Beverly Williams in the amount of $380.00.

Following his sentencing, Hamilton filed a motion to reconsider sentence citing his age and family. His motion was denied. However, at the hearing on his motion, the trial court amended the original sentence and ordered Hamilton to additionally make restitution to Citizen’s Bank should he ever be paroled. This appeal by Hamilton ensued.

Discussion

On appeal, Hamilton brings three assignments of error, all related to different issues regarding his sentence.

Restitution

In his first assignment of error, Hamilton argues that the trial court erred in ordering restitution as a condition of parole. Specifically, he claims that the trial court lacked the authority to order restitution to Gibsland Bank, Beverly Williams, and Citizen’s Bank as conditions of his parole, because under La. R.S. 15:574.4.2 only the parole board may impose conditions on a prisoner’s | sparole. As such, Hamilton requests that the conditions placed on his parole be removed and the matter remanded for sentencing in accordance with La. C. Cr. P. art. 883.2. The State agrees that the trial court had no authority to order restitution as a condition of parole and does not oppose Hamilton’s request.

A person convicted of bank fraud shall be ordered to make full restitution to the victim and any other person who has suffered a financial loss as a result of the offense. La. R.S. 14:71.1(B); see also La. C. Cr. P. art. 883.2. If he is deemed to be indigent, the court shall order a periodic payment plan consistent with the person’s financial ability. La. R.S. 14:71.1(B). While a trial court may order restitution as a condition of a defendant’s probation, only the parole board may impose such a condition of parole. La. C. Cr. P. art. 895(A)(7); La. R.S. 15:574.4.2(0(1); see also State v. Young, 45,265 (La.App.2d Cir.06/23/10), 42 So.3d 1025; State v. Bass, 43,858 (La.App.2d Cir.01/14/09), 4 So.3d 110. Should the trial court improperly order restitution as a condition of parole, the proper action for the reviewing court is to vacate the order of restitution as a condition of parole and remand for resen-tencing. State v. Young, supra.

As stated, statutory law clearly prohibits a trial court from imposing conditions on a defendant’s parole. Here, the trial court obviously lacked the authority to order restitution as a condition of Hamilton’s parole; thus that part of the sentencing order must be vacated. However, because restitution is mandatory under La. R.S. 14:71.1(B), we cannot merely vacate the trial court’s order, but must also remand the matter for resentencing so that a binding order of restitution may be imposed against Hamilton.

|4In his second assignment of error, Hamilton argues that the trial court erred in ordering any restitution at all to Citizen’s Bank, because the count alleging bank fraud against Citizen’s Bank was not prosecuted. Hamilton claims the trial court had no authority to order restitution to Citizen’s Bank, because he was neither charged for the crime associated with that bank, nor did he agree to make such restitution in his plea agreement. Again, in brief the State agrees with Hamilton’s argument. We agree as well.

As previously stated, under La. R.S. 14:71.1(B) restitution is required to the victim and any other person who has suffered a financial loss as a result of the offense. However, La. C. Cr. P. art. 888.2(B) states, “[I]f the defendant agrees as a term of a plea agreement, the court shall order the defendant to provide restitution to other victims of the defendant’s criminal conduct, although those persons are not the victim of the criminal charge to which the defendant pleads.” That was not the case here.

In this case, Hamilton was convicted and sentenced only on the charge against Gib-sland Bank. Hamilton correctly points out that his charge against Citizen’s Bank was not prosecuted. Obviously, because Hamilton was not convicted of the offense regarding Citizen’s Bank, the trial court could not order Hamilton to make restitution to Citizen’s Bank under La. R.S. 14:71.1(B). However, because he pled guilty to the Gibsland Bank fraud, the trial court may have ordered him to make restitution to other victims had it been part of his plea agreement, as provided under La. C. Cr. P. art. 883.2. That did not happen here: Hamilton’s plea agreement did not include a provision ordering him to make restitution to Citizen’s Bank. Therefore, the trial court erred by ordering him to do so, and that part of Hamilton’s sentence |⅛ vacated.

Excessive Sentence

In his final assignment of error, Hamilton submits that the trial court’s maximum 10-year sentence is excessive. In support of his argument, he cites specific mitigating circumstances, including: his current age; his three children; his completion of various rehabilitation programs; and, the lack of force or violence used during the crime.

Louisiana R.S. 14:71.1 states, in pertinent part:

A. Whoever knowingly executes, or attempts to execute, a scheme or artifice to do any of the following shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than one hundred thousand dollars, or both:
(1) To defraud a financial institution.
(2) To obtain any of the monies, funds, credits, assets, securities, or other property owned by or under the custody or control of a financial institution by means of false or fraudulent pretenses, practices, transactions, representations, or promises.

To determine whether an imposed sentence is excessive, the reviewing court will first examine the record to ascertain if the trial court considered the aggravating and mitigating factors under La. C. Cr. P. art. 894 in determining a factual basis for the sentence imposed. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The trial court must consider such factors as a defendant’s personal history, prior criminal record, seriousness of the offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581.

| fiSecond, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). If the sentence imposed, in light of the harm done to society, shocks the sense of justice, then the sentence imposed is excessive. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

The trial judge has wide discretion in imposing sentences within the statutory limits and in consideration of aggravating and mitigating circumstances. Therefore, a reviewing court considers only whether the trial court abused its discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Cozzetto, 2007-2031 (La.02/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.02/13/08), 976 So.2d 802. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain. State v. Murray, 46,895 (La.App.2d Cir.01/25/12), 86 So.3d 35.

The trial court is not required to list every aggravating or mitigating |7circumstance so long as the record reflects that it adequately considered the guidelines of the article when imposing a sentence. Here, the trial court sentenced Hamilton to 10 years at hard labor, the maximum period of imprisonment allowed by the statute. Before sentencing, the trial court ordered a PSI on Hamilton, which it obviously reviewed prior to the hearing. In reaching its decision, the trial court took into consideration Hamilton’s criminal history, which included multiple crimes of violence, burglary, and theft charges. The trial court also noted that Hamilton’s probation had been revoked multiple times. Finding these circumstances to be so aggravating as to outweigh any mitigating factors presented on Hamilton’s behalf, the trial court sentenced Hamilton to the maximum penalty permitted under the statute. In this case, as the transcript from the sentencing hearing demonstrates, the trial court considered several of the factors of La. C. Cr. P. art. 894.1 and articulated its reasons for imposing such a sentence. When the crime and punishment are viewed in light of the harm done to society, Hamilton’s sentence is neither grossly disproportionate to the crime committed, nor does it shock the sense of justice. Therefore, the trial court did not abuse its discretion in imposing upon Hamilton a maximum sentence of 10 years, and this assignment is without merit.

Conclusion

For the forgoing reasons, we amend Tyrone Hamilton’s sentences to vacate the order of restitution as a condition of parole, and remand the case for resentencing in accordance with La. R.S. 14:71.1(B) and La. C. Cr. P. art. 883.2. In all other respects, the conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, ^VACATED IN PART AND REMANDED FOR RESENTENCING.

      . Williams was the bank teller at Gibsland Bank to whom Hamilton presented the fraudulent check. Restitution to her was compensation for the time she lost from work.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Jamie L. STAPLETON, Appellant.
    No. 47,775-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Carey J. Ellis, III, for Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Robert N. Anderson, Josephine P. Heller, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Jamie L. Stapleton, was charged by bill of information that on March 8, 2010, he did: (1) possess methamphetamine, a Schedule II CDS, with intent to distribute, in violation of La. R.S. 40:967(A)(1); (2) possess cocaine, a Schedule II CDS, in violation of La. R.S. 40:967; (3) possess alprazolam (Xanax), a Schedule IV CDS, in violation of La. R.S. 40:969; (4) possess dextropropoxyphene (Darvocet), a Schedule IV CDS, in violation of La. R.S. 40:969; (5) possess drug paraphernalia, in violation of La. R.S. 40:1023; and (6) possess marijuana, a Schedule I CDS, in violation of La. R.S. 40:966.

On August 1, 2011, jury selection began. The next day, however, defendant agreed to plead guilty to count one, possession of methamphetamine with intent to distribute. The state agreed that the remainder of the counts were to be dismissed at sentencing. The agreement provided a sentencing cap of 15 years. The state agreed not to file habitual offender proceedings and that any sentence imposed would run concurrently with any other time that defendant might be serving on probation or parole.

At sentencing, the trial court reviewed the PSI report, including defendant’s criminal, personal, social, and employment history. Defendant was classified as a fourth felony offender. The court considered defendant’s statements to the probation officer rendering the report and letters of recommendation submitted on defendant’s behalf. Also, the court reviewed the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. Considering the above, the trial court sentenced defendant to 10 years at hard labor, with credit for time served. However, the court did not expressly state whether 12defendant’s sentence would run concurrently or consecutively to any other sentence(s).

Defendant filed a motion to reconsider sentence on January 19, 2012, claiming that he had shown great efforts to end his drug addiction, that no one was harmed in the commission of the offense and that he did not benefit from the offense. The trial court denied the motion on March 16, 2012. This appeal followed. We affirm the conviction, but we vacate the sentence and remand for resentencing.

Discussion

Defendant argues that although the 10-year sentence imposed upon him is within the 15-year cap set forth in the plea agreement, his sentence should be reviewed because it does not fully conform with the terms of the plea agreement. According to defendant, the trial court failed to specify that his sentence was to run concurrently with any other sentence. Defendant claims that neither the minutes nor the record reflects imposition of a concurrent sentence. Therefore, defendant asks this court to vacate his sentence and remand the matter to the trial court for resentenc-ing in accordance with the plea agreement; specifically, to reflect that the 10-year sentence imposed shall run concurrently with any other sentence defendant may have to serve due to a violation of parole or probation. Alternatively, defendant contends that he should be allowed to withdraw his guilty plea.

The state agrees that this case should be remanded to the trial court for resentenc-ing in accordance with the plea agreement. According to the state, the court intended to sentence defendant in accordance with the agreed upon terms of the plea agreement, and this omission was inadvertent.

|sA defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2). However, a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea agreement which is then not fulfilled. State v. Robinson, 38,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868.

The record reflects that when defendant entered his guilty plea, all parties agreed that his sentence would run concurrently with any other sentence that he may serve or have to serve due to a violation of probation or parole. As such, this condition was part of the plea agreement. The trial court, however, failed to order that the sentence be served concurrently with prior sentences.

Defendant’s PSI indicates that on March 2, 2010, just six days before his arrest on the instant offense, defendant pled guilty to one count of theft and was sentenced to 90 days in the parish jail, suspended, with 24 months’ unsupervised probation. As such, it would appear that defendant was on probation at the time of the instant offense and if so, only the court originally granting the suspended sentence and probation on the theft charge may determine whether defendant will serve the revocation of that probation and the instant sentence concurrently or consecutively. See La. C. Cr. P. art. 901(C)(2); State v. Hotard, 04-1092 (La.10/15/04), 885 So.2d 533; State v. Ester, 436 So.2d 543 (La.1983); State ex rel. Brently v. Dees, 388 So.2d 386 (La.1980); State v. Cooper, 93-863 (La.App. 5th Cir. 03/16/94), 635 So.2d 301.

|4In the instant case, defendant’s PSI further indicates that on November 15, 2007, he pled guilty to possession of Alprazolam and was given a four-year hard labor sentence. On August 31, 2009, defendant was released on good time parole supervision. Thereafter, his parole was revoked on June 27, 2011, as a result of the theft arrest and the instant drug offenses. Unlike probation, there is no prohibition against the trial judge ordering a sentence to run concurrently with a parole revocation. State v. Arceneaux, 05-338 (La.App. 5th Cir.12/17/05), 930 So.2d 44; State v. Ott, 12-111 (La.App. 5th Cir.10/16/12), 102 So.3d 944. Therefore, the trial court has authority to order the instant sentence to run concurrently with the parole revocation sentence.

We will therefore vacate defendant’s sentence and remand the matter to the trial court for clarification of defendant’s probation/parole status and resentencing, reserving to defendant the right to withdraw his guilty plea.

Conclusion

Defendant’s conviction is affirmed. His sentence is vacated and the matter is remanded to the district court for further proceedings.

AFFIRMED; VACATED; REMANDED.


author: PITMAN, J.

text:
    Calvin RICHARDSON, Jr., Plaintiff-Appellee v. CHRISTUS SCHUMPERT HEALTH SYSTEM and Louisiana Patient’s Compensation Fund, Defendants-Appellants.
    No. 47,776-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Mark A. Goodwin, for Appellant, Christus Schumpert Health System.
    Hudson, Potts & Bernstein, L.L.P., Monroe, LA, by Jay P. Adams, Gordon L. James, for Intervener/Appellant, LA Patient’s Compensation Fund.
    Michael D. Cox, for Appellee.
    Before CARAWAY, LOLLEY & PITMAN, JJ.
   PITMAN, J.

| iDefendants, Christus Schumpert Health System (“Schumpert”) and the Louisiana Patient Compensation Fund (“LPCF”), appeal a judgment rendered in favor of Plaintiff, Calvin Richardson, Jr. (“Calvin”), by the First Judicial District Court, Caddo Parish, Louisiana, in this medical malpractice action. A verdict was entered in favor of Calvin and against Schumpert in the amount of $110,000, which included $80,000 for past medical expenses. Calvin filed a motion for a judgment notwithstanding the verdict (“JNOV”), which was granted by the trial court. Judgment was entered, increasing the past medical damages to $190,000. The LPCF has intervened and also appeals the judgment rendered against it in the amounts in excess of $100,000, plus interest. For the following reasons, we affirm the original judgment and the judgment rendered pursuant to the JNOV.

FACTS

Calvin was 16 years old in 2006. He had . a history of severe asthma with frequent exacerbations or flare-ups and was diagnosed as a “brittle asthmatic.” On November 16, 2006, his mother took him to the office of his pediatrician, Dr. Brondwyn Holliway, who gave Calvin a shot of Celestone and administered four breathing treatments of Albuterol. When Calvin did not respond well to treatment, Dr. Holliway determined that he should be admitted to the pediatric floor of Schum-pert where a continuous treatment of Al-buterol could be administered to stop the cascade of inflammation and exacerbation of the asthma attack. This method of treatment had been successful before. In fact, Calvin had been treated for his asthma at Schumpert a short time before this November 2006 incident. Calvin 12received another nebulizer Albuterol treatment in the emergency department (“ER”) of Schumpert, and, at approximately 3:09 p.m., was sent to the pediatric intensive care unit (“PICU”) as an overflow patient. The nurses’ chart indicates that, at 4:15 p.m., the Respiratory Therapy Department was notified that a continuous Albuterol treatment had been ordered for Calvin.

Calvin did not begin to receive the continuous Albuterol treatment until 5:50 p.m. He received other ordered medications at 6:00 p.m. At that time, his continuous Albuterol treatment was halted while he was moved to the 8th floor of the main hospital. He was reconnected to his Albu-terol treatment at 7:00 p.m. The level of his medication was changed by doctor’s orders at approximately 7:35 p.m.; and, at 7:40 p.m., he suffered a respiratory arrest, had to be resuscitated and intubated and ultimately spent approximately two weeks in the hospital.

On November 2, 2007, Calvin’s parents, Gwen and Calvin Richardson, Sr., filed a Medical Review Panel proceeding against Schumpert and asserted a claim on behalf of their son, as well as individual claims for their respective damages. The Medical Review Panel’s found in favor of Schum-pert on August 4, 2010. The Richardsons had until November 29, 2010, to file suit.

On October 26, 2010, Calvin, who had reached the age of majority, filed suit on his own behalf. Calvin’s parents were not named as plaintiffs in the original suit. An amended petition filed on February 7, 2011, sought to add them as plaintiffs. Schumpert filed an exception of prescription,_[owhich was sustained by the trial court. The Richardsons’ claims were subsequently dismissed with prejudice.

Calvin’s suit alleged that his respiratory arrest, ischemia and subsequent damages were caused by a breach of the standard of care at Schumpert in that he did not receive his continuous Albuterol treatment in a timely fashion. Calvin claimed that the respiratory arrest caused him to graduate three months later than his high school class and that he suffered personality changes, including a loss of drive. He also claimed he had pain in one of his feet and experienced some temporary visual problems, which resolved while he was in the hospital.

The central issues at trial were (1) whether the staff at Schumpert breached the standard of care by failing to administer Calvin’s medication in a timely manner, (2) whether the staff breached the standard of care in transferring him to another portion of the hospital and (8) whether Schumpert’s negligence caused the damages alleged by Calvin. After trial, a jury ruled in Calvin’s favor finding that Schum-pert had breached the standard of care and that the breach was a substantial factor contributing to his injuries. The judgment included damages of $80,000 for past medical expenses, $25,000 for past pain and suffering and $5,000 for loss of enjoyment of life. Calvin filed a motion for JNOV and sought an increase in the medical damages to $190,000. The trial court granted Calvin’s JNOV and increased the award for medical damages to $190,000 as requested. This appeal ensued.

\ .DISCUSSION

Standard of Care and Causation

Defendants have raised two related assignments of error and argue that the jury erred in finding that Schumpert breached the standard of care and that its alleged negligence was a substantial factor in causing Calvin’s injuries. Specifically, Defendants maintain that there is no reasonable factual basis in the record for the jury to conclude that the nursing staff breached the standard of care by failing to ensure that Calvin received his breathing treatments in a timely fashion or in transferring him to the main hospital after halting his continuous Albuterol treatment. Defendants also argue that Calvin failed to establish a causal nexus by expert testimony that any alleged act or omission on the part of Schumpert caused Calvin’s respiratory arrest. We disagree.

In a medical malpractice action against a hospital, the plaintiff must prove, as in any negligence action, that: the defendant owed the plaintiff a duty to protect against the risk involved; the defendant breached that duty; the plaintiff suffered an injury; and the defendant’s actions were a substantial cause-in-fact of the injury. Gordon v. Willis Knighton Med. Ctr., 27,044 (La.App.2d Cir.6/21/95), 661 So.2d 991, writs denied, 1995-2776, 1995-2788 (La.1/26/96), 666 So.2d 679. A hospital is bound to exercise the degree of care toward a patient that his or her condition requires, which must be determined under the particular facts and circumstances. Id.; Hastings v. Baton Rouge Gen’l. Hosp., 498 So.2d 713 (La.1986). A determination of whether a hospital has breached those duties ^depends upon the facts and circumstances of each particular case. Id.; Hunt v. Bogalusa Community Med. Ctr., 303 So.2d 745 (La.1974).

Where there are contradictory expert opinions regarding compliance with the applicable standard of care in a medical malpractice case, the appellate court is bound to give great deference to the conclusions of the trier of fact. Hays v. Christus Schumpert Northern La., 46,408 (La.App.2d Cir.9/21/11), 72 So.3d 955. Hospitals are held to a national standard of care. The locality rule does not apply to hospitals. Henderson v. Homer Memorial Hosp., 40,585 (La.App.2d Cir.1/27/06), 920 So.2d 988, writ denied, 06-0491 (La.5/05/06), 927 So.2d 316. The mere fact that an injury occurs or an accident happens raises no presumption or inference of negligence on the part of the hospital. Galloway v. Baton Rouge Gen’l. Hosp., 602 So.2d 1003 (La.1992). Nurses who perform medical services are subject to the same standards of care and liability as are physicians. The nurse’s duty is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of the nursing or health care profession in good standing in the same community or locality, along with his or her best judgment, in the application of his or her skill to the case. Little v. Pou, 42,872 (La.App.2d Cir.1/30/08), 975 So.2d 666, writ denied, 08-0806 (La.6/06/08), 983 So.2d 920.

A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus, to reverse a trial court, the appellate court must find from the record that a reasonable factual basis |fidoes not exist for the finding and, further, that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra, at 844. However, where documents or objective evidence so contradict the witness’s testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the testimony, the appellate court may find manifest error even where the finding is purportedly based on a credibility determination. Id. at 844-45. Where this situation does not exist, however, and a fact finder’s determination is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. at 845; Welch v. Willis-Knighton Pierremont, 45,554 (La.App.2d Cir.11/17/10), 56 So.3d 242, units denied, 11-0075, 11-0109 (La.2/25/11), 58 So.3d 457, 459.

Calvin went to the Schumpert ER and was admitted there at 2:43 p.m. Dr. Hour-way’s orders were to admit him to the pediatric floor. Dr. Holliway also ordered a continuous Albuterol treatment and the administration of Decadron, IV Solu-Me-drol, Rondec, Zyrtec, Singulair, Biaxin and monitoring of routine vital signs. On the pediatric floor, routine vital signs are taken every four hours. None of Dr. Holli-way’s orders indicated that the medication was to be administered in an urgent manner. When Calvin’s vital signs were initially taken in the ER at 2:44 p.m., his 1 ^respiration rate was at 23 breaths per minute and his oxygen level was at 95%. He was given a nebulizer Albuterol treatment in the ER.

Although there is a discrepancy in the medical records as to the exact time of discharge from the emergency room, Calvin was discharged either at 3:09 or 3:26 p.m. He was transferred to the PICU on the fourth floor as an overflow pediatric patient because there were not enough beds available on the pediatric floor. The level of care provided to Calvin that day in the PICU was deemed intermediate care since he had not been admitted as a child in need of critical care.

Nurses Betsy Harris and Kelly Anderson were in charge of Calvin’s care on the fourth floor. Nurse Harris testified that she saw Dr. Holliway’s orders at 3:30 p.m., but her case notes state that she did not see the patient until 6:00 p.m. She claimed she never saw Calvin’s ER records, and she was unaware of his earlier vital signs and lower respiratory rate or that he had a breathing treatment in the ER. At 4:15 p.m., Nurse Anderson took Calvin’s vital signs, and his respiration had increased from 23 breaths per minute to 32 breaths per minute. The record reflects that the normal respiratory rate for an adolescent is “18 to 20’s.” His oxygen level was 96%.

Calvin’s father, Calvin Richardson, Sr. (“Richardson”), arrived at Schumpert around 3:45 p.m., and his mother left to go to work. Richardson testified that he was with his son while he was in the PICU and that his son was becoming anxious because his breathing treatments had not yet been started. According to Richardson, he found a nurse and asked about |sCalvin’s medication(s) and the nurse advised that she would contact a respiratory therapist. After a 20-minute wait, Richardson again found the nurse, and she told him she had not forgotten about his concerns. Calvin continued to worsen and to sweat profusely, so Richardson informed two nurses at the nurses’ station that his son was getting worse. The nurses told him they had contacted the respiratory therapy department. They further informed him that nurses could not give the breathing treatment and that he would have to wait on the respiratory therapist.

At 5:30 p.m., Nurse Anderson called Dr. Holliway’s office to discuss the hospital’s need to move Calvin from the PICU to the eighth floor of the main hospital, which was an adult respiratory unit. The hospital needed the beds in the PICU for critically ill children. Nurse Harris testified that, Nurse Anderson told her she spoke to Dr. Holliway’s nurse, Olivia, who spoke to Dr. Holliway standing beside her. Olivia allegedly told Nurse Anderson that Dr. Holliway approved the transfer. Dr. Hol-liway’s testimony, however, differed in that she stated that she was not notified of the transfer of her patient until after it had already been accomplished and that no one had called her to ask her permission to transfer him.

Although the exact time is not clear from the medical record, around 5:50 p.m., approximately 2½ to 3 hours after Calvin arrived at PICU, the respiratory therapist on the fourth floor, Jonathan Holt, connected him to the continuous Albuterol treatment ordered by Dr. Holliway. Mr. Holt testified that, although he was unable to give a specific time when he initiated the breathing treatment since he had not noted the time on the chart, he did set it |9up within 10-15 minutes after the nursing staff told him that it was necessary. The chart contains a notation by Nurse Anderson that she notified respiratory therapy of the need for treatment at 4:15 p.m., and Mr. Holt insisted that he would have begun the treatment by 4:30 p.m. He also stated that he would not have waited an hour and 45 minutes to begin the treatment once he had the orders. Richardson, however, testified that the breathing treatment was begun only 10 minutes before the staff arrived at 6:00 p.m. to move Calvin to the eighth floor. Richardson testified that, by that time, his son “was doing real, real bad. I mean, he was having real difficulty breathing.”

Approximately 10 minutes later, at 6:00 p.m., Calvin received the IV Solu-Medrol, Rondec, Singulair and Biaxin, all of which were administered by the nursing staff. At that time, Nurse Harris informed Calvin and Richardson that Calvin was being transferred to the eighth floor of the main hospital because of the need for beds on the fourth floor and the fact that he was one of the oldest of the pediatric patients.

Nurse Harris stopped Calvin’s continuous Albuterol treatment in order to transfer him. She did not take any new vital sign readings, with the exception of noting that his oxygen level was at 100%. She further noted that Calvin was alert, but had labored breathing, was short of breath, had audible wheezing, was sweating and had a difficult time getting into the wheelchair being used to transport him. Richardson estimated that it took Calvin approximately 15 minutes to move from the bed to the wheelchair. Nevertheless, the nursing staff deemed him stable enough to transfer to the |10eighth floor. Calvin’s canister of Albuterol was placed on his lap in the wheelchair as he was taken to the eighth floor of the main hospital. Nurse Harris testified that the transfer took only a very short period of time.

At 6:30 p.m., after first being taken to a room on the eighth floor which was not set up to provide oxygen and was not next to the nurses’ station, Calvin was placed in the proper room that had been prepared for him by his nurse on that floor, Elisa Metsger. Although there was no time noted on the chart, Nurse Metsger testified that Calvin’s vital signs were taken by a technical assistant upon his admission to the floor. There is a set of unidentified vital signs in Calvin’s records which indicate that his respiratory rate was 28 breaths per minute, his heart rate was 137 and his oxygen level was 97%. Nurse Metsger’s notes also indicate that Calvin’s condition remained unchanged from that noted by Nurse Harris, but added that he was unsteady and increasingly restless. Her notes further reflect that Calvin was reconnected to the continuous Albuterol treatments at 7:00 p.m., one hour after they were discontinued on the fourth floor.

At 7:10 p.m., Lisa Myers, a respiratory therapist, was called to assist the eighth floor respiratory therapist on Calvin’s case. The case notes indicate at that time that his respiratory rate was 24 breaths per minute and his heart rate was 155. Ms. Myers noted that his oxygen level was 96% and that his lungs seemed “tight,” indicating that he was unable to exhale. Calvin complained about shortness of breath and was irritable. Ms. Myers told Richardson that she would have Dr. Holli-way called.

InAt 7:25 p.m., at Ms. Myers’ request, Nurse Metsger called Dr. Holliway, at which time Dr. Holliway ordered an increase in the Albuterol from 8 to 10 milligrams per hour. At 7:35 p.m., Dr. Hol-liway’s new orders were faxed to the hospital pharmacy. Ms. Myers obtained the new medication and mixed it, brought it to Calvin’s room and made sure the treatment was being properly administered before she left the room.

At 7:40 p.m., a Code Blue was called. Calvin had gone into respiratory arrest, not because of lack of oxygen, but because he was unable to expel the carbon dioxide from his lungs. An ER physician came immediately to Calvin’s room and intubat-ed him. He was placed on a ventilator and then put into an induced coma so that he would not fight the ventilator. He was immediately moved back to the PICU where he remained on the ventilator for six days.

On November 19, 2006, Calvin was evaluated by a pediatric cardiologist, Dr. Robert Jackson. Dr. Jackson determined from Calvin’s elevated troponin level that, at the time of the respiratory arrest, he had suffered ischemia or temporary damage to his heart. The results of an electrocardiogram performed at that time, however, were normal. On November 26, 2006, Calvin was transferred from PICU to the pediatric floor until his discharge on December 1, 2006.

Calvin claims the standard of care by which the nurses of Schumpert must be judged is primarily that which is written in the hospital’s “Policies and Procedures.” In support of his claim that the staff at Schumpert had breached the standard of care, Calvin presented Patsy McCann, RN, a | steadier of Allied Health Care and Medical Law and Ethics, and a former employee at Schumpert. She was accepted as an expert in nursing and testified that she had reviewed Calvin’s medical records and the hospital’s policies and procedures and determined that the staff had indeed breached the standard of care. The specific policies of the hospital which she considered included the following:

PC 3.269(1) Patients are transferred with appropriate hemodynamic monitoring and stabilizing support measures maintained throughout transports.
PC3.269(II)D Prior to transfer of patient, verify that room is ready.
PC3.269(II)F. Use the most suitable method of moving the patient with appropriate equipment.
PC3.266(II)B3b4 Initial assessment and admission history initiated within 1 hour and completed within 8 hours.

After reviewing these policies, Nurse McCann determined that Schumpert’s staff had failed to meet the standard of care in several ways. She stated that she had examined the chart and found that the nurses on the fourth floor did not initially assess Calvin, and, in fact, that he was not assessed until an hour after admission to the PICU. She also testified that an hour after an initial assessment is a reasonable time to initiate medications which are deemed to be administered “as quickly as possible.” Calvin’s medications were not initiated for more than an hour after they were noted at 3:30 p.m., vital signs were not recorded until 4:15 p.m. and none of the IV medications were given until 6:00 p.m. Nurse McCann further testified that those times were not within a reasonable time period to begin treatment and fell below the standard of care.

[1sIn addition, Nurse McCann testified that, in her opinion, the Schumpert staff failed to properly transport Calvin from the fourth floor PICU to the eighth floor because they transferred him after his oxygen and Albuterol/Decadron respiratory therapy had been discontinued. She also testified that it was a breach of the standard of care to move him from the PICU to the eighth floor without first receiving an order from the treating physician; and, in this case, there was no such order from Dr. Holliway. Nurse McCann further stated that Calvin’s transfer was not properly accomplished because, even though he was eventually taken to the room prepared for him by Nurse Metsger, he was originally taken to a room on the eighth floor which was not properly prepared to dispense the oxygen and Albuterol he required. She went on to testify that it was also a breach of the standard of care for Calvin to be transferred without his respiratory therapy equipment and to be without his respiratory treatment during the time it took to transfer him to the eighth floor.

Nurse Chinta Wilson was the director of the pediatric floor at Schumpert on the day Calvin was transferred from the fourth to the eighth floor. She testified that the standard of care for nurses required that a patient be stable before being transferred to another floor.

Schumpert and the LPCF argue that the medical evidence presented at trial shows the jury was clearly wrong in finding that the staff breached the applicable standard of care and that the breach caused Calvin’s damages. They claim that the evidence presented at trial does not support the jury’s findings because the physicians who testified at trial never testified that 114Schumpert’s actions caused Calvin’s injuries. We disagree and find that the record and evidence support the jury’s findings. Calvin was sent to Schum-pert specifically because the hospital setting provided the equipment necessary for him to receive a continuous Albuterol treatment to stop the exacerbation of his asthma attack after treatment at his physician’s office had not been successful. He came to the ER with his mother at 2:43 p.m. and transferred to the PICU at either 3:09 p.m. or 3:26 p.m. According to the medical records introduced at trial, the respiratory therapist was notified at 4:15 p.m. that the continuous Albuterol treatment had been ordered. Calvin’s father testified that he informed the nurses on the fourth floor several times that his son was getting anxious and requesting his breathing treatment, but it was not until 5:50 p.m. that the treatment was actually started. Within 10 minutes of the initiation of the continuous Albuterol treatment, the nursing staff disconnected the medication and transferred Calvin to the eighth floor. There is no indication in the medical charts that the medication was reconnected until 7:00 p.m. The respiratory therapist who agreed to assist the therapist on the eighth floor noted that Calvin’s lungs were tight and that he was agitated. Within the hour, the Code Blue was called.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. The jury chose to believe Calvin’s evidence presented at trial. We note that the record reflects that Calvin arrived at the hospital for treatment to halt his cascading asthma attack, but that he did not begin to receive the 11fiordered continuous Albuterol treatments until at least 2½ to 3 hours after his arrival at the PICU. The testimony of all the doctors at trial indicated that an asthma exacerbation is an emergency and treatment should be started as quickly as possible in order to break the inflammatory cascade and ease the airway narrowing. All of the medications ordered by Dr. Hol-liway were designed to stop the cascade and any associated risk. We agree with the jury’s conclusion that the tardy administration of the medication was a breach of the standard of care and that the breach caused Calvin’s eventual respiratory failure. The jury’s findings were not manifestly wrong. Accordingly, these assignments of error are without merit.

JNOV

In an additional assignment of error, Defendants contend that the trial court erred in granting Calvin’s motion for JNOV because a reasonable jury could have concluded that the original award of $80,000 for past medical damages was appropriate. Specifically, Schumpert and the LPCF contend that the trial court erred in assuming that the jury’s award was based on the misapplication of the collateral source rule to the award of damages and increasing the award of damages to $190,000, the amount requested in open court by Calvin’s attorney. Defendants claim that a reasonable jury could have concluded that Calvin’s medical damages were only $80,000 because he failed to explain in court exactly which portions of the medical damages were attributable to the breach of the standard of care. For these reasons, Defendants claim the trial court should not have substituted its own view for that of the jury with regard to medical damages. We disagree.

|UA JNOV is warranted only when the facts and inferences, viewed in the light most favorable to the party opposing the motion, are so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach a different conclusion, not merely when there is a preponderance of the evidence for the mover. Peterson v. Gibraltar Savings & Loan, 98-1601 (La.5/18/99), 733 So.2d 1198; Welch v. Willis-Knighton Pierremont, supra.

Under the “collateral source rule,” a tortfeasor may not benefit because of his victim’s receipt of insurance payments from sources independent of the wrongdoer’s contribution. A plaintiff may ordinarily recover reasonable medical expenses, past and future, which he incurs as a result of injury. Terrell v. Nanda, 33,-242 (La.App.2d Cir.5/10/00), 759 So.2d 1026.

Special damages are those damages that can be determined with some degree of certainty and include past and future medical expenses. Thibeaux v. Trotter, 04-482 (La.App.3d Cir.9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La.2/18/05), 896 So.2d 31. “Medical expenses are a component of special damages.” Cormier v. Colston, 05-507 (La.App.3d Cir.12/30/05), 918 So.2d 541. The plaintiff bears the burden of proving special damages by a preponderance of the evidence. Id. An award of special damages is reviewed pursuant to the manifest error standard of review. Id. 117at 547-48; Collins v. National Healthcare of Leesville, Inc., 12-502, (La.App.3d Cir.11/07/12), 101 So.3d 1110.

During its deliberations, the jury sent a question to the trial judge to determine the out-of-pocket expenses of Calvin’s family. The judge sent an instruction to the jury regarding the collateral source rule and notified it that the hospital bill showed a payment by the HMO/PPO of $118,000.

At the hearing on the motion for the JNOV, the trial judge stated:

It seems clear that what the Jury did was they subtracted the one-eighteen from the one-nighty-eight, and that is where the $80,000.00 came from. So they did not give the Plaintiff the benefit of the collateral source rule.
I mean, it looks like that they were of the view that the Plaintiffs would have only been responsible for the $80,000.00 that was not covered by the HMO/PPO payment.
So I do not think that the Jury understood what the collateral source rule is, and the damage award for the past medicals is just clearly wrong.

Based on this reasoning, the trial judge found the jury’s award to be abusively low and granted the JNOV, increasing the medical award to $190,000, which was Calvin’s estimate of the medical damages after a deduction of $8,000 (an approximate charge for a two-day stay at the hospital which would have been incurred had Defendant’s actions not caused the need for an extended stay).

The trial court’s actions in granting the motion for JNOV and increasing the amount for medical damages was not in error. Calvin introduced evidence at trial that his total charges for his care at Schumpert from November 16, 2006, through December 1, 2006, were $198,485. | ¡^Defendants made no objection to the bill and introduced no evidence to prove that this bill did not properly measure Calvin’s actual medical damages. The past medical damages sought are specific damages and need no interpretation. The jury clearly did not understand the collateral source rule, and the trial court simply corrected the misunderstanding by increasing the award of damages to an amount reflecting the proper past medical damages actually due Calvin. For that reason, we find no error in the trial court’s decision to grant the JNOV and raise the award for medical damages to $190,000. Defendants’ final assignment of error is without merit.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court in favor of Calvin Richardson, Jr. and against Chris-tus Schumpert Health System and the Louisiana Patient’s Compensation Fund. We further affirm the judgment of the trial court granting the judgment notwithstanding the verdict and amending the judgment to increase the award for past medical expenses to $190,000. Costs of this appeal are assessed to Defendants, Christus Schumpert Health System and the Louisiana Patient’s Compensation Fund.

AFFIRMED.


author: TERRI F. LOVE, Judge. McKAY, C.J.,

text:
    Glenda CACERAS, Individually and on behalf of her Deceased Child, and Jesus Acevedo, Individually and on behalf of his Deceased Child v. Kevin G. WORK, M.D., Heyzel Retana and Louisiana Medical Mutual Insurance Company.
    No. 2012-CA-1097.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 2013.

      J. Wayne Mumphrey, Carlos A. Zelaya, II, Mumphrey Law Firm, LLC, Slidell, LA, for Plaintiff/Appellant, Jesus Acevedo.
    Paul A. Tabary, III, Elizabeth R. Borne, Lacey Tabary, Tabary And Borne, LLC, Chalmette, LA, for Defendant/Appellee, Louisiana Medical Mutual Insurance Company.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   TERRI F. LOVE, Judge.

|/The parents of a child, who died before birth, filed suit against the treating doctor, treating nurse, and the Louisiana Medical Mutual Insurance Company seeking damages for the child’s death. The Louisiana Medical Mutual Insurance Company filed a peremptory exception of no right of action against the alleged father alleging he did not formally file a filiation action as to the deceased child. Therefore, the Louisiana Medical Mutual Insurance Company alleges that Louisiana law affords the father no remedy. The trial court sustained the exception. We find that the Louisiana Supreme Court’s recent pronouncement affords the father a remedy, as his petition alleges sufficient facts for an avowal action. Therefore, we reverse and remand for proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 5, 2010, Glenda Caceras and the alleged father of her unborn child, Jesus Acevedo visited Dr. Kevin Work’s medical office on Canal Street for a routine visit and an ultrasound. Ms. Heyzel Reta-na, a nurse working in Dr. Work’s office, instructed Ms. Caceras to ingest three white pills. When Ms. Caceras asked about the reason for the pills, Ms. Retana allegedly stated that the pills were “to [ 2aIlow the uterus to contract and just go ahead and take them.” Ms. Caceras suffered abdominal cramps and contractions after ingesting the pills administered. While in the exam room, Ms. Caceras informed Ms. Retana that she was there for an ultrasound. Then Ms. Retana allegedly instructed Ms. Caceras to regurgitate the pills. Following a pelvic exam, Dr. Work prescribed medication for an infection. Later that evening, Mr. Acevedo took Ms. Caceras to the emergency room at Oehs-ner Medical Center — West Bank, in Gret-na, Louisiana. Ms. Caceras’ unborn baby, determined to be sixteen weeks and six days along, died.

On March 3, 2011, within one year of the child’s death, Ms. Caceras, individually and on behalf of her deceased child, and Mr. Acevedo (collectively “Plaintiffs”) filed a petition for damages against Dr. Work, Ms. Retana, and the Louisiana Medical Mutual Insurance Company (“LAMMI-CO”) alleging that Dr. Work’s and Ms. Retana’s actions caused the death of her unborn baby. Attorney David Band then filed a petition for intervention asserting that he was previously retained by the Plaintiffs to represent them in the litigation. LAMMICO filed exceptions of no cause of action, no right of action, and lack of procedural capacity against the Plaintiffs. Subsequently, LAMMICO also filed a motion for partial summary judgment contending that Dr. Work’s insurance policy did not provide coverage for Ms. Reta-na. Mr. Acevedo filed an exception of insufficiency of citation and no right of action against Attorney Band. Dr. Work filed an exception of prematurity because the medical review panel was not convened prior to the Plaintiffs filing suit. After the filing of numerous oppositions to all of the exceptions, LAMMICO withdrew its exceptions of no right of action and lack of | .¡procedural capacity against Ms. Caceras due to the hospital records she attached to an opposition.

The trial court granted LAMMICO’s peremptory exception of no right of action regarding Mr. Acevedo. Further, the trial court granted LAMMICO’s motion for partial summary judgment and held that Ms. Retana was not covered by LAMMI-CO’s insurance policy. The trial court also granted LAMMICO’s exception of no cause of action regarding survival actions on behalf of the deceased child. As to Dr. Work’s exception of prematurity, the trial court granted the exception, but dismissed the Plaintiffs’ claims without prejudice so the claims could be refiled following the medical review panel proceedings. Mr. Acevedo filed a motion for new trial, which the trial court denied. Mr. Acevedo subsequently filed a devolutive appeal of the trial court’s judgment granting LAMMI-CO’s peremptory exception of no right of action.

Mr. Acevedo asserts that the trial court erred because 1) Louisiana law does not require a filiation proceeding to pursue a wrongful death action pursuant to La. C.C. art. 2315.2, 2) if a filiation proceeding is required, the petition for damages is sufficient, and 3) that the trial court erred by disregarding evidence introduced at the hearing on the exception.

STANDARD OF REVIEW

A trial court’s ruling on a peremptory exception of no right of action is reviewed by appellate courts with the de novo standard of review because the exception deals with a question of law. Recovery Dev. Group, LLC, Next Generation Homes, LLC v. Nat’l Baptist Convention of Am., Inc., 10-1086, p. 10 (La.App. 4 Cir. 4/20/11), 63 So.3d 1127, 1132.

NO RIGHT OF ACTION

Mr. Acevedo contends that the trial court erred in granting LAMMICO’s exception of no right of action because Louisiana law does not require a separate filiation proceeding and that the allegations in the petition constitute an act for filiation. While the issue of filiation with a child not born alive is a res nova issue for this Court, given the Louisiana Supreme Court’s recent pronouncements in Udomeh v. Joseph, 11-2839 (La.10/26/12), 103 So.3d 343, we find that Mr. Acevedo’s assertions are meritorious.

“The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. The exception of no right of action is a peremptory exception. La. C.C.P. art. 927. The Louisiana Revised Statutes provide that “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934.

This Court described the function of a peremptory exception of no right of action as follows:

The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor. Thomas v. State of Louisiana, 545 So.2d 632 (La.App. 4th Cir.), writ denied, 551 So.2d 639 (La.1989). When considering the exception, the court must ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted. In re G.E.T., 529 So.2d 524 (La.App. 1st Cir.1988). The exception does |snot raise the question of the plaintiffs ability to prevail on the merits nor [sic] the question of whether the defendant may have a valid defense. Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155 (La.App. 1st Cir.1992).

Recovery Dev. Group, LLC, 10-1086, pp. 10-11, 63 So.3d at 1132-33, quoting Touzet v. V.S.M. Seafood Servs., Inc., 96-0225, pp. 2-3 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012-1013. “[E]vidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition” at the hearing on the peremptory exception. La. C.C.P. art. 931.

LAMMICO contends that Mr. Acevedo does not have a right of action for wrongful death because he failed to file a formal filiation proceeding within a year of the death of the deceased child. “Filiation is the legal relationship between a child and his parent.” La. C.C. art. 178. “Filiation is established by proof of maternity or paternity or by adoption.” La. C.C. art. 179. The 2012 Electronic Pocket Part Update provides that “[p]roof of maternity or paternity may consist of evidence including factual circumstances that create presumptions of paternity, testimony, documents, or the results of scientific tests.” La. C.C. art. 179. “[T]he action shall be instituted no later than one year from the day of the death of the child” and “[t]he time periods in this Article are peremptive.” La. C.C. art. 198.

La. C.C. art. 26 provides:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.

“The surviving father and mother of the deceased, or either of them if’ the deceased “left no spouse or child surviving,” may recover damages if the deceased died “due to the fault of another.” La. C.C. art. 2315.2. The Louisiana Supreme Court Lheld that the parents of a child that is born dead may recover for the child’s wrongful death. Danos v. St. Pierre, 402 So.2d 633, 639 (La.1981). The Louisiana Supreme Court held that a father must file an avowal action in order to bring a wrongful death action regarding a deceased child. Udomeh, 11-2839, p. 8, 103 So.3d at 348.

Although the Plaintiffs did not title their petition for damages, which was filed within a year of the child’s death, alternatively as an action for filiation, they set forth facts regarding Mr. Acevedo’s alleged paternity of the deceased child. “Louisiana’s Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations.” Udomeh, 11-2839, p. 8, 103 So.3d at 348. “No technical forms of pleading are required” in Louisiana. La. C.C.P. art. 854. “Every pleading shall be so construed as to do substantial justice.” La. C.C.P. art. 865. “Harsh, technical rules of pleadings are not favored in Louisiana in order to arrive at the truth and avoid miscarriages of justice.” Reese v. State Dep’t. of Pub. Safety & Corr., 03-1615, p. 7 (La.2/20/04), 866 So.2d 244, 249. “[A] final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” La. C.C.P. art. 862. The Court stated that La. C.C.P. art. 862 permitted “courts to render substantive justice on the basis of facts pleaded and to refuse to permit a denial of substantive rights due to technical defects of language or characterization of the case.” Udomeh, 11-2839, p. 9, 103 So.3d at 348-49. The Court further provided that

“So long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence.” Greemon [v. City of Bossier City], 10-2828, 11-0039 at 8 [ (La.7/1/11) ]; 65 So.3d [1136] at 1268 (quoting Cox v. W.M. Heroman & Co., Inc., 298 So.2d 848, 855 (La.1974)). However, due process requires adequate notice to the parties of the matters to be adjudicated. Sylvester [v. Fontenot], 10-1115 at 13 [ (La.App. 3 Cir. 3/9/11) ]; 58 So.3d [675] at 683.

Udomeh, 11-2839, p. 9, 103 So.3d at 349.

“Whether a particular pleading can reasonably be construed as an action for filiation, however, should be determined on a case-by-case basis.” In re Bester, 00-2208, p. 7 (La.App. 4 Cir. 9/18/02), 828 So.2d 644, 648. The Louisiana Supreme Court held that if the “bare allegations” in the original petition “show an attempt to set forth a filiation action,” then sufficient facts existed to place the defendants on notice that filiation was at issue. Reese, 03-1615, p. 10, 866 So.2d at 250.

The Louisiana Supreme Court recently examined a similar situation in Udomeh, wherein a father filed for wrongful death damages when Fidel Udomeh’s previously unfíliated minor son was murdered by his own mother. Udomeh, 11-2839, p. 3, 103 So.3d at 345. Upon reviewing the petition, the Court determined that Mr. Udomeh had “set forth the material facts necessary for an avowal action.” Udomeh, 11-2839, p. 10, 103 So.3d at 349. The Louisiana Supreme Court found that Mr. Udomeh’s “petition alleges a biological relationship between the pleader and the child, as well as his support and acknowledgement of the child. These allegations provided the state defendants with adequate notice of the issue of Udomeh’s paternity.” Udomeh, 11-2839, p. 10, 103 So.3d at 349. In conclusion, the Court stated that:

[w]e conclude Udomeh’s petition sets forth sufficient facts to state an avowal action and provide notice to defendants of the issue of Udomeh’s paternity. This is in accord with La.Code Civ. Proc. art. 862 and the general rules that pleadings should be construed in such a manner as to achieve substantial justice, and harsh, technical rules of pleading are not favored. La.Code Civ. Proc. arts. 854, 865. As Udomeh filed his petition within one year of S.U.’s death, his avowal action is timely under La. Civ.Code art. 198, and his right to bring an avowal action is not perempted as long as the present action is pending. See La. Civ.Code art. 3461, Official Revision Comments (c) (“when an action asserting a right subject to peremption has been commenced or served as provided in Article 3462, the right has been exercised and so long as the action is pending the lapse of the period of per-emption does not extinguish the right.”). As the determination of whether a party has pled sufficient facts under Article 862 to be entitled to certain relief must necessarily be decided on a case-by-case basis, our ruling in this particular matter is limited to the facts adduced in this record.

Udomeh, 11-2839, pp. 14-15, 103 So.3d at 351-52.

Because La. C.C. art. 198 is per-emptive in nature, Mr. Acevedo cannot amend the original petition to allege additional facts, pursuant to La. C.C.P. art. 934. Udomeh, 11-2839, p. 8, 103 So.3d at 348. Accordingly, we must determine if the Plaintiffs alleged sufficient facts in the original petition to entitle him relief under Udomeh, In the original petition, the Plaintiffs asserted that they were involved in an intimate relationship and that Mr. Acevedo was the biological father of the deceased child. The facts also contend that Mr. Acevedo attended the routine visit and ultrasound appointment when Ms. Caceras was given the three white pills by Ms. Retana. Further, the Plaintiffs claim that Mr. Acevedo accompanied Ms. Cacer-as to the emergency room. Our review of the original petition demonstrates that Mr. Acevedo was attempting to assert the paternity of the deceased child. Additionally, LAMMICO would have had adequate notice that | 9Mr. Acevedo’s paternity would be an issue in the litigation. Although Mr. Acevedo did not specifically request a determination of paternity, in order to achieve substantial justice, we find, based on the facts and circumstances in the case sub judice, that the original petition sets forth sufficient information to be construed as an action for filiation as well as a petition for damages. Mr. Acevedo demonstrated that he was attempting to behave as the father of the deceased child and none of these factual representations were contested by Ms. Caceras. Therefore, we reverse the trial court’s granting of LAM-MICO’s exception of no right of action and remand for further proceedings consistent with this opinion.

DECREE

For above-mentioned reasons, we find that the trial court erred in granting LAMMICO’s exception of no right of action in light of the Louisiana Supreme Court’s holding in Udomeh. Therefore, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

McKAY, C.J., concurs.

McKAY, C.J.,

concurs.

hi concur with the majority that based on Udomeh v. Joseph, 11-2839 (La.10/26/12), 103 So.3d 343, the district court should not have granted the exception of no right of action.

      . Attorney Band later filed an amending petition for intervention, which added David Band, A Profession Law Corporation.

      . LAMMICO reasoned that the hospital records established that Ms. Caceras was indeed the mother of the deceased child.

      . The trial court’s hearing and judgment regarding LAMMICO's exception of no right of action occurred prior to the Louisiana Supreme Court’s holding in Udomeh, which reversed the previous Third Circuit holding in Udomeh v. Joseph, 11-342 (La.App. 3 Cir. 10/5/11), 75 So.3d 523, 524, reh’g denied (11/23/11), writ granted, 11-2839 (La.3/30/12), 85 So.3d 100 and rev'd, 11-2839 (La. 10/26/12), 103 So.3d 343, reh’g denied (11/30/12). LAMMICO relied upon the Third Circuit's holding to bolster the position that Mr. Acevedo did not possess a right of action. The record does not contain reasons for the trial court’s ruling. The transcript provides that the trial court judge took the exception of no right of action as to Mr. Acevedo under advisement.

      . LAMMICO never pleaded the dilatory exception of improper cumulation. Thus, the exception is waived. La. C.C.P. art. 926(B).