text:
    STATE of Louisiana v. Brett GERALD.
    No. 2013 KA 1478.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.
    Rehearing Denied June 3, 2014.

      Samuel D’Aquilla, District Attorney, Stewart B. Hughes, Special Assistant District Attorney, Clinton, Louisiana, for Ap-pellee, State of Louisiana.
    Thomas C. Damico, Roberta M. Vath, Baton Rouge, Louisiana, for Defen-danVAppellant, Brett Gerald.
    Before WHIPPLE, C.J., WELCH, and GRAIN, JJ.
   CRAIN, J.

|2The defendant, Brett Gerald, pled guilty as charged to seven counts of vehicular homicide, violations of Louisiana Revised Statute 14:32.1. He was originally sentenced on each count to ten years imprisonment at hard labor, the first five years to be served without probation, parole, or suspension of sentences, to pay a $2,000.00 fine, and to attend a substance abuse program, with the sentences to ran consecutively. The trial court granted the defendant’s motion to reconsider sentences, vacated the original sentences, and resentenced the defendant on each count to five years imprisonment at hard labor, without probation, parole, or suspension of sentence, to pay a $2,000.00 fine, and to attend a substance abuse program, with the sentences to run consecutively. The defendant now appeals, arguing that the trial court erred in sentencing him to consecutive terms of imprisonment on each count. We affirm the defendant’s convictions and sentences.

FACTS

Because the defendant pled guilty, the facts of the case were not fully developed at a trial. The defendant’s arrest report indicates that on May 30, 2012, the defendant’s Dodge Ram truck crossed the center line of Louisiana Highway 67, in East Feliciana Parish, and collided with a Mercury Grand Marquis driven by Brenda Gaines. Gaines and her six passengers, Angela Mosely, Denise Gaines, Diamond Johnson, Jyren Johnson, Willie Gaines, |aand Roderick Johnson, were killed. The defendant was charged with killing seven individuals while driving with a blood alcohol level of .15 grams percent. The defendant pled guilty as charged to seven counts of vehicular homicide.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the trial court erred in sentencing him to consecutive terms of imprisonment on each count when all counts and charges arose out of a single act.

Louisiana Code of Criminal Procedure article 881.1A provides that “[i]n felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.” Article 881. IE provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the district court judge still has jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So.2d 1059, 1059 (La.1993) {per curiam).

When the trial court grants relief under Article 881.1 and resentences the defendant, the result is the imposition of a new sentence. Since a new sentence is imposed, Article 881.1 requires that a renewed motion for | ¿reconsideration be made or filed, specifying the grounds for objection to the new sentence State v. Smith, 03-1153 (La.App. 1 Cir. 4/7/04), 879 So.2d 179,183 (en banc).

In this case, after the trial court granted the defendant’s motion to reconsider his original sentences, it resentenced the defendant on May 14, 2013. The defendant did not make or file an oral or written motion to reconsider the new sentences. Although the defendant complained that his new sentences were excessive in his motion for appeal, that motion was merely a request that the trial court grant an appeal, thereby invoking the jurisdiction of this court to change or correct the sentences. It did not request that the trial court change or correct the sentences while it still had jurisdiction. The motion for appeal is not a substitute for a motion to reconsider sentence and does not satisfy the requirements of Article 881.1.

Since the defendant did not make or file an oral or written motion to reconsider the new sentences imposed, he did not preserve appellate review of the new sentences and is procedurally barred from having his challenge to the new sentences reviewed by this court on appeal. See Smith, 879 So.2d at 188.

CONVICTIONS AND SENTENCES AFFIRMED.

      . In granting the motion to reconsider sentences, the trial court stated it based its ruling on the supreme court’s decision in State v. Oliphant, 12-1176 (La.3/19/13), 113 So.3d 165, which was decided seven days after the defendant’s original sentencing. In Oliphant, the court held vehicular homicide to be a crime of violence, requiring that a defendant convicted of that crime serve 85% of his full sentence before becoming eligible for parole. Oliphant, 113 So.3d at 173-174; La. R.S. 15:574.4B(1). The trial court stated that it did not intend for the defendant to spend the rest of his life in prison, which would be the practical effect of the original sentences in light of the Oliphant decision. Thus, the trial court imposed new sentences that it stated would result in approximately the same parole eligibility date and good time discharge date as the prior sentences would have but for the Oliphant decision.

      . Louisiana Code of Criminal Procedure article 916 provides that the jurisdiction of the trial court is divested and that of the appellate court attaches upon entry of the order of appeal, except to take certain enumerated actions, including correction of an illegal sentence or taking other action pursuant to a properly made or filed motion to reconsider sentence.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Heather AYMAMI and Jeremy Aymami, Individually and on Behalf of their Minor Children, Logan Aymami and Savanna Aymami v. ST. TAMMANY PARISH HOSPITAL SERVICE DISTRICT NO. 1 and Keva Fontanille, R.N.
    No. 2013 CA 1034.
    Court of Appeal of Louisiana, First Circuit.
    May 7, 2014.

      James A. Marchand, Jr., Elisia Shofstahl Tipton, Frank E. St. Philip, II, Laura M. Pennison, Law Office of James A. Mar-chand, Jr., L.L.C., Covington, LA, for Plaintiffs-Appellees, Heather and Jeremy Aymami, individually and on behalf of their minor children, Logan and Savanna Aymami.
    Margaret H. Kern, Bailey D. Morse, Jones Fussell, L.L.P., Covington, LA, for Defendants-Appellants, St. Tammany Parish Hospital Service District No. 1 and Keva Fontanille, R.N.
    Ann Marie LeBlanc, Kathryn M. Caraway, Caraway LeBlanc, L.L.C., New Orleans, LA, for Intervenor-Appellant, Louisiana Patient’s Compensation Fund.
    Before PARRO, GUIDRY, AND DRAKE, JJ.
   PARRO, J.

Lin this medical malpractice case, St. Tammany Parish Hospital, Service District No. 1 (STPH), Keva Fontanille, R.N., and the Louisiana Patient’s Compensation Fund (LPCF) appeal a judgment in favor of Heather and Jeremy Aymami, individually and on behalf of their minor children, Logan and Savanna Aymami, for damages they incurred as the result of injuries Heather suffered in a fall at the hospital. The Aymamis answered the appeal, seeking additional damages. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Heather Aymami was admitted to the labor and delivery unit at STPH at 12:02 a.m. on February 14, 2002. Epidural anesthesia was begun at 8:15 a.m. and continued until she delivered her son, Logan, at 11:20 a.m. Keva Fontanille, R.N., was Heather’s labor and delivery nurse, and she continued caring for Heather after the birth. Heather experienced numbness and tingling in her legs as the epidural anesthetic wore off, but by 2:45 p.m., these sensations had stopped. About that time, Keva suggested that Heather might enjoy a bath in the room’s whirlpool tub. Keva lowered the bed rail in order to remove Heather’s IV and Foley catheter and to make it possible for Heather to get out of bed and take a bath. Keva then went to the bathroom to start the bathwater and empty the catheter bag. While the bathtub was filling and Keva was emptying the catheter bag in the bathroom, Heather appeared in the bathroom doorway. She had left the bed and walked several steps to the bathroom with her mother at her side, holding her arm. Keva looked up and saw Heather in the doorway, made a brief comment to her, and turned back to finish emptying the catheter bag. Within a few seconds, Heather tried to take one more step and fell, breaking her left leg. She suffered severe comminuted displaced left tibia and fibula shaft fractures, which | ^required surgical correction with rods and pins later that evening. A second surgical procedure was performed about a year later to remove scar tissue.

The Aymamis filed a complaint with the Division of Administration, Patient’s Compensation Fund Oversight Board, seeking review by a medical review panel to determine whether Keva’s conduct breached the standard of care and caused Heather’s injuries. The panel found that Keva’s conduct met the applicable standard of care. On June 13, 2005, the Aymamis filed suit against Keva and STPH, alleging that the direct and proximate cause of Heather’s injuries was the substandard care received by her while at STPH in Keva’s care. The petition stated that Keva encouraged Heather’s premature ambulation, but she took no safeguards to test Heather for reactivity and failed to follow hospital protocol for post-surgery ambulation and assessment for risk of falling. The Aymamis sought damages for Heather’s pain and suffering, mental anguish, permanent disability, loss of quality of life, medical expenses, and loss of income, as well as loss of consortium damages for her husband and children. The defendants answered, denying the allegations, and extensive discovery took place over a number of years.

The case went to a bench trial on April 12, 2012. Following two days of testimony and the introduction of numerous exhibits, including the depositions of expert and lay witnesses, the court took the case under advisement. On September 17, 2012, the court provided written reasons, concluding that Keva had breached the standard of care in several particulars and was liable, along with STPH under the doctrine of respondeat superior, for the injuries sustained by Heather and the damages that resulted. The court found no fault on the part of Heather. The court awarded Heather general damages in the amount of $100,000, medical expenses in the amount of $39,303.58, and lost wages in the amount of $29,300. For loss of consortium, the court awarded Jeremy and each of the two children $5,000. A judgment awarding these amounts, plus court costs and legal interest from the date the complaint was filed with the Patient Compensation Fund Oversight Board, was signed October 18, 2012. This appeal followed.

| «ASSIGNMENTS OF ERROR

STPH and Keva submit the following assignments of error:

1. The trial court erred as a matter of law in accepting the testimony of Dr. Jay Turkewitz in support of the contention that “the patient bears no responsibility for their safety at all in a hospital facility,” which resulted in the application of incorrect prinei-pies of law, thereby depriving STPH and Nurse Fontanille of substantial jurisprudential rights and limitations of liability.
2. The trial court erred in determining that the actions of Keva Fontanille, R.N., in the hours following the birth of Ms. Aymami’s child, violated the applicable standard of care.
3. Alternatively, it was reversible error for the trial court to conclude that any breach by STPH or its employee, Keva Fontanille, R.N., was the cause in fact of any injuries and damages sustained by the plaintiffs.
4. In the further alternative, the trial court erred in failing to allocate any degree of fault to the plaintiff, Heather Aymami, for her failure to follow Nurse Fontanille’s specific instructions.

LPCF submits the following assignments of error:

1. The trial court committed legal error by: (a) failing to reconcile the factual evidence regarding the circumstances leading up to Plaintiffs fall; (b) finding the hospital was the guarantor of the patient’s safety, regardless of the facts; and (c) failing to determine if any conduct on the part of the Defendants caused Plaintiffs injuries.
2. The trial court was wrong in finding the hospital was the guarantor of the patient’s safety and the Defendants’ actions caused the Plaintiffs injuries considering a reconciliation of the facts shows the Plaintiff was clearly advised to wait for assistance and she refused to do so, which was the sole cause of the fall.
3. Assuming the de novo standard of review does not apply, the lower court committed manifest error in finding Defendants liable considering the court ignored crucial testimony in the Defendants’ favor and relied on Plaintiffs’ experts who were either unqualified or whose testimony was inconsistent and implausible.
4. Under either standard of review, the lower court erred in not finding comparative fault on the part of Plaintiff, Heather Aymami.
5. Assuming the lower court’s decision is not reversed on liability or causation, the lost wage claim should be reduced by approximately half of that which was awarded.

The Aymamis answered the appeal and assigned the following as errors:

1. The trial court erred in awarding excessively low general damages for the severe injuries sustained by Heather Aymami.
2. The trial court erred in awarding excessively low loss of consortium awards to Heather Aymami’s husband, Jeremy, and the couple’s minor children.

INAPPLICABLE LAW

Standard of Review

A court of appeal may not overturn a judgment of a trial court unless there is an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 03-1361 (La.App. 1st Cir.9/17/04), 897 So.2d 616, 617, unit denied,, 04-2572 (La.12/17/04), 888 So.2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Tramp, and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092. If the trial court’s factual findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Smegal v. Gettys, 10-0648 (La.App. 1st Cir.10/29/10), 48 So.3d 431, 435; LeBlanc v. Appurao, 13-0491 (La.App. 1st Cir.2/13/14), 138 So.3d 1, 5, writ denied. 14-0498 (La.4/17/14), 138 So.3d 632. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798, 806.

When a trial court incorrectly applies a principle of law, which causes a substantial deprivation of a party’s rights or materially affects the disposition, it commits a legal error. Hains v. Hains, 09-1337 (La.App. 1st Cir.3/10/10), 36 So.3d 289, 296. Legal errors are prejudicial when they materially affect the outcome and deprive a party 16of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Hains, 36 So.3d at 296.

Medical Malpractice

In a medical malpractice action, the plaintiff must prove by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the violation of the standard of care and the claimed injuries. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233; see also LSA-R.S. 9:2794(A). Resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La.1991); Washington v. Waring, 13-0078 (La.App. 1st Cir.2/18/14), 142 So.3d 40.

In addition to proving a breach of the standard of care, a plaintiff must also establish with adequate evidence a causal connection between the substandard care and the plaintiffs injuries. Pfiffner, 643 So.2d at 1230. Louisiana Revised Statute 9:2794(A)(3) requires the plaintiff to prove that, as a “proximate result” of the defendant’s failure to exercise the required degree of care, “the plaintiff suffered injuries that would not otherwise have been incurred.” Washington, 142 So.3d at 45.

Nurses who perform medical services are subject to the same standards of care and liability as physicians. Johnson v. Morehouse Gen. Hosp., 10-0387 (La.5/10/11), 63 So.3d 87, 96. It is well established that a hospital can be liable for the negligence of its employees under the doctrine of respondeat superior. Grimes v. Louisiana Med. Mut. Ins. Co., 09-0292 (La.App. 1st Cir.9/11/09), 29 So.3d 505, 508, ajfd as amended, 10-0039 (La.5/28/10), 36 So.3d 215.

Expert testimony is generally required to establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfijfner, 643 So.2d at 1233-34. Where there are two permissible views of |7the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Adams, 983 So.2d at 806. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Id. at 806-07. Indeed, where the fact-finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Id. at 807. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Id. Where expert witnesses present differing testimony, it is the responsibility of the trier of fact to determine which evidence is the most credible. Washington, 142 So.3d at 46.

A trial court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Cheairs v. State ex rel. Dep’t of Transp. & Dev., 03-0680 (La.12/3/03), 861 So.2d 536, 541. A trial court’s decision to qualify an .expert will not be overturned absent an abuse of discretion. Johnson, 63 So.3d at 99. Generally, the failure to object to evidence admitted during trial constitutes a waiver of the right to object to its admissibility. Bates v. Denney, 563 So.2d 298, 300 (La.App. 1st Cir.), unit denied, 566 So.2d 961 (La.1990).

Comparative Fault

Louisiana Civil Code article 2323(A), which instituted comparative fault, provides that “[i]n any action for damages where a person suffers injury, death, or loss,” the fault of “all persons causing or contributing to the injury, death, or loss shall be determined.” McKenzie v. Imperial Fire and Cas. Ins. Co., 12-1648 (La.App. 1st Cir.7/30/13), 122 So.3d 42, 47-48, writ denied. 13-2066 (La.12/6/13), 129 So.3d 534. The trier of fact is owed some deference in allocation of fault, since the finding of percentages of fault is a factual determination. Duncan v. Kansas City S. Ry. Co., 00-0066 (La.10/30/00), 773 So.2d 670, 680-81, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. Smegal, 48 So.3d at 439.

In determining the percentages of fault, the trier of fact should consider both the | ^nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). These same factors guide the appellate court’s evaluation of the respective fault allocations. See Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 611.

Damages

General damages are those that are inherently speculative in nature and cannot be fixed with mathematical certainty. Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 711. Much discretion is left to the judge or jury in the assessment of general damages. See LSA-C.C. art. 2324.1. The trier of fact is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Id. In assessing general damages in a personal injury case, a court must consider the severity and duration of the injured party’s pain and suffering. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766, 772.

In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn, 623 So.2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award | nwithin that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976); Broussard v. Razden, 98-2576 (La.App. 1st Cir.12/28/99), 763 So.2d 644, 654. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. It is important to note, however, that prior awards are only a guide. Miller, 973 So.2d at 711. In reviewing a general damage award, a court does not review a particular item in isolation; rather, the entire general damage award is reviewed for an abuse of discretion. Dennis v. The Finish Line, Inc., 99-1413 (La.App. 1st Cir.12/22/00), 781 So.2d 12, 30, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319.

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, McGee v. AC And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, 774. A reviewing court should not set aside an award of special damages unless the award was based on factual findings that are found to be manifestly erroneous. See Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 810.

ANALYSIS

Since some of the assignments of error are duplicative, we will deal with each of the issues presented, rather than the numerical sequence. One issue that is expressed in the assignments of error concerns a comment by plaintiffs’ expert, Dr. Jay Turkewitz, that “the patient bears no responsibility for [his] safety at all in a hospital facility.” Dr. Turkewitz did make this comment as part of his discussion of the correlative duties of the nurse, the hospital, and the patient, which also included other aspects of Keva’s care that he felt did not meet the standard of care. The defendants contend that the trial court legally erred by applying this statement as the standard of care, thus depriving them of the correct legal analysis of their duties as compared to the patient’s duties and requiring this court to conduct a de novo review of the facts. However, it is clear from a reading of the entire reasons for judgment that this comment did not form the basis for the trial court’s judgment in this case. It was mentioned as part of the trial court’s reasons, but those reasons also referenced the opinions of several other experts who stated that Keva’s actions or inactions breached the standard of care. The Imtrial court also stated that it found Heather’s testimony to be credible; this finding established the fact pattern of the events leading to her fall. The trial court’s reasons then enumerated the specific facts upon which the experts’ opinions were based. We find no legal error in the trial court’s judgment as the result of the mention of Dr. Turkewitz’s statement, which was only one sentence in sixteen pages of the trial court’s written reasons for judgment. Therefore, de novo review is not warranted in this appeal, and the manifest error standard of review is applicable.

In its assignments of error, the LPCF states that the trial court erred in “failing to reconcile the factual evidence regarding the circumstances leading up to Plaintiff’s fall,” and that “a reconciliation of the facts shows the Plaintiff was clearly advised to wait for assistance and she refused to do so.” The trial court is not required to “reconcile” conflicting versions of events. The trial court may choose to accept one among many statements, and unless the record as a whole shows that this choice is unreasonable and clearly wrong, that choice will prevail. See Adams, 983 So.2d at 806. In this case, the trial court chose to believe Heather’s testimony. Therefore, we must review her testimony and the record as a whole to

determine whether that choice was manifestly erroneous.

Heather testified concerning the sequence of events preparing for the bath and leading to her fall. The upper half of her bed had been raised to allow her to sit up and breast-feed her baby. About 2:45 p.m., Keva lowered the upper half of the bed, lowered the bed rail, removed Heather’s Foley catheter and IV, raised the bed to a sitting position again, and put the bed rail back up. At that point, Keva asked Heather if she could feel her legs and whether she still had any tingling sensations. Heather said she did not feel the tingling any more, so she assumed it had stopped and told Keva that it had. The bed rail was up on the side of the bed; Keva lowered it and told Heather to swing her legs around and sit on the side of the bed while holding the bed rail to see how she felt in that position. Keva sat beside her and helped her sit up. Heather said Keva told her that when she started feeling as if she could stand, she should stand up by the side of the bed, indicating that her mother should stand beside her in case she felt dizzy or weak. While Heather sat and then stood at the bedside, |nKeva went in and out of the room several times, starting the bath water and getting towels and other bath supplies. She asked Heather again how she was feeling, and Heather told her she felt OK.

After standing for a minute or two, Heather felt the urge to urinate, and told Keva that she needed to use the bathroom. Keva responded that the bathwater was almost ready, and she would take Heather to the bathroom in just a minute. Keva left the room again and came back with towels, and Heather repeated that she needed to use the bathroom. Keva went into the bathroom and said, “Okay, it’s just about ready.” At that point, Heather’s mom took her arm, and Heather walked about two steps toward the bathroom. Heather said she could see Keva in the bathroom, in between the tub and the toilet. According to Heather, Keva saw her walking toward her and said, “All right, great, you’re here.” When Heather got to the doorway, her mother stepped back so Heather could get through. Heather took one step to cross the threshold and crumpled to the floor with her left leg bent underneath her. Heather said she felt no pain immediately after falling and while being moved to the bed by orderlies. According to Heather, she first experienced pain when the doctor came in and moved and lifted her foot to wrap and tape it.

Heather had read Keva’s deposition testimony some time before trial and pointedly disagreed with the nurse’s deposition statement that she had told Heather not to get out of bed. Heather stated, “She’s the one that put the bed rail down, took everything off of me, told me to put my legs up, told me to stand up, walked past me numerous times going to get towels in and out, saw me standing up.”

Heather’s mother, Carole Adams, was deposed, and her deposition was introduced into the record. With reference to the bath preparation, Ms. Adams said that when Heather agreed to have the bath, Keva said, “well, okay, I’ll get the bath ready,” and then told Heather to “get up on the side of the bed.” Ms. Adams said that, other than lowering the bed rail, Keva did not assist Heather in sitting up. Keva then went into the bathroom, and Heather sat up on the side of the bed. Heather then asked her mother to come and stand beside her while she sat and as she stood up. 1,¡While Heather was standing next to the bed, Keva left the room to get some towels and then came back. After standing a couple of minutes, Heather said she had to go to the bathroom, so she and her mother started to walk towards the bathroom where Keva was sitting on the side of the tub. Keva looked up and saw them coming and continued to monitor the bath water, saying, “Oh, good, you’re here.” A split second later, Heather fell. Ms. Adams said she never heard Keva tell Heather not to get out of bed until she could be there and assist her, and she also did not hear Keva tell Heather to wait at the bed until she came back to help her.

Keva summarized the events immediately preceding the fall, as follows:

I do recall, I absolutely do remember, it was like a frozen frame, you know, rather a picture in my mind of the scene of the, the actions of me being in the restroom emptying her catheter and turning around and seeing her standing in the doorway and saying “I thought I told you to wait for me.” And she responded “I’m fíne.” And I turned back around to discard what I was doing.
And when I turned my back I heard whatever, the fall, and then turned back to her and did observe her on the floor....

Keva was asked what was meant by the orders of Heather’s obstetrician, Dr. Stefanie Schultis, that the Foley catheter could be discontinued when the patient was “reactive.” Keva explained that her understanding of “reactive” was “to have complete normal sensation as though you have not had any anesthesia at all that day, complete normal sensation and have the ability to ambulate.” Dr. Schultis expressed the same definition of the word “reactive.” Keva’s entry on Heather’s chart at 1:38 p.m. stated that Heather had no complaints of dizziness, but “continues with tingling to the right leg,” which was a sign that Heather was still not ready to ambulate. Keva’s next notation at 2:45 p.m. stated, “Her [F]oley catheter was discontinued. The patient was in bed, the bath water running. Patient instructed to await assistance. No complaints of pain. Denies numbness or tingling in extremities or buttocks.” Based on this assessment of Heather’s sensory functions, Keva stated her usual procedure was to |iafurther evaluate the patient’s motor function and consider allowing her to ambulate. She outlined a number of steps she would take in this evaluation, stating:

I would reiterate and ask again the series of questions [about sensations and ability to move her legs] and I would have her demonstrate for me what she was able to do or not. I would touch her. I would do the alcohol prep [touching her lower legs and feet with an alcohol-soaked pad to see if she could feel the cold]. That’s my preference. After that I would do a series of things for different reasons. I would set [her] up, yes, I would stand her next to [me], touching her physically.
I would stand her up with me next to the bed, in fact her legs touching the bed so that at any time she could sit back on the bed. We would take one step and stand still. Again, I would be beside her, physically touching the patient. We would stand there for a bit.
Then we would take another step and stand there. And then at that point we’re usually very close to where we’re going anyway. Then I would walk with her the rest of the way.’

Keva said she was unable to complete her customary assessment procedures, because Heather did not wait for her to come back; instead, Heather ignored her instructions, got out of bed, and walked to the bathroom.

Keva acknowledged that it was important that the patient be assisted by the nurse the first time she ambulates following an epidural and anesthesia. Keva also stated that it was customary to remove the Foley catheter before making a complete assessment of the patient’s ability to ambulate. Keva said her usual practice when the patient indicated she would like to bathe was to gather all of the supplies that may be needed, remove the catheter, turn the bath water on, and begin that process. She said she generally turned the bath water on before removing the catheter, because the tub was large and it took a long time for it to fill. Keva initially said she did not specifically recall instructing Heather to remain in bed until she came back to assist her; however, this was her usual practice. She said, “I would always instruct the patient to await assistance before getting out of the bed.... Because the patient is not qualified to assess if she [is] capable of ambulating safely close to epidural.” Later, Keva said that she was certain she would have given Heather that instruction. Keva said that her comment to Heather when she saw her in the bathroom doorway was, “I thought I told you to wait for me.”

114Keva stated that she lowered the bed rail in order to remove the Foley catheter. She said she had to lower it, because “[t]here is equipment, IV pumps, fetal monitoring machines next to this. You cannot get to the patient to remove a catheter unless you take the side rail down.” Keva said that after telling Heather to stay in bed, she did not think it was a breach of the standard of care to leave the bed rail down and the patient unattended while taking care of other matters in preparation for Heather’s bath. However, she admitted that if the bed rail had not been lowered and Heather left unattended, the fall in the bathroom would not have occurred. She explained that she had to leave the bed rail down while carrying the catheter bag to the bathroom, because her gloves at that point were not sterile; she would first “de-germ” herself, then return to the patient and raise the bed rail. Keva did not agree with Heather’s description of events, stating that Heather had either misremembered or lied about the facts. However, Keva admitted that if Heather’s account were accepted as true, it would have been negligence on her part to tell Heather to sit up and then to get up and stand by the side of the bed unassisted and unattended by her.

The main difference between Heather’s and her mother’s testimony and Keva’s testimony concerns whether Keva instructed Heather to remain in bed until she could assist her in getting up. After reviewing the varying descriptions of the events leading up to Heather’s fall, we find that there was a reasonable basis for the trial court to accept Heather’s testimony that Keva did not tell her to remain in bed while she prepared the bath and emptied the catheter bag. Keva’s testimony concerning this fact was somewhat equivocal. When asked if she specifically recalled instructing Heather to remain in bed until she came back to assist her, Keva responded, “Again, I don’t specifically remember our conversations. I would always instruct the patient to await assistance before getting out of the bed.” Moreover, there is nothing in the record as a whole that would suggest the trial court was manifestly erroneous in choosing Heather’s account over Keva’s, rather than “reconciling” the conflicting statements.

The most significant assignments of error are those pertaining to whether Keva’s actions or inactions breached the standard of care, and whether this breach was a 11ficause in fact of Heather’s injuries. The standard of care, which was expressed by several of the medical experts, required the nurse to fully evaluate the patient’s ability to ambulate before removing the catheter, because there was no need to remove the catheter until the patient was ready to get out of bed and use the bathroom. This was in accord with Dr. Schul-tis’s order that the Foley catheter could be discontinued when the patient was “reactive,” which, according to Keva, meant that the patient had completely normal sensation and the ability to ambulate. Other aspects of the standard of care included leaving the bed rail up while the patient was unattended, assisting the patient to sit and stand before attempting ambulation, and helping the patient take the first steps after having received an epidural. Finally, when Keva saw Heather standing alone in the bathroom doorway, she immediately should have stopped whatever she was doing and gone to Heather’s side.

Dr. Paul Fuselier, a member of the medical review panel, originally agreed with the other panel members that there was no breach in the standard of care. However, after reviewing additional materials, he had changed his opinion. He testified at trial that on a birthing bed, such as was used in Heather’s room, there was no reason for Keva to lower the bed rail in order to remove the Foley catheter. He stated that it was a breach of the standard of care for Keva to lower that bed rail and leave it down while she left the patient unattended. He also said that even though Keva testified that she could not put the bed rail up, because her gloves were unclean after removing the Foley catheter, she could have used her elbow to raise it, could have asked a family member to raise it, or could have removed one glove to raise it. Dr. Fuselier also stated that in order to determine whether the patient is “reactive” before removing the catheter, as was ordered by Dr. Schultis, a full evaluation of the patient’s sensory responses and motor ability should have been done. He noted that Keva had admitted that this was not done before removing the Foley catheter and, in fact, was not done at all. Removing the catheter before performing a complete assessment was a violation of the doctor’s order and a breach of the standard of care. Dr. Fuselier also stated that it was a breach of the standard of care for Keva to turn her back on Heather after she saw her standing alone in the doorway of the bathroom. He stated:

|1fiAnd when she [Keva] is fooling with the Foley bag and catheter and she sees the patient standing there, I mean, there is a priority here. You throw that Foley bag in the garbage. That can be done anytime. And you go to the patient and assist the patient either back to the bed or as the nurse wanted, take a bath.

Dr. Turkewitz testified in his deposition that he had not examined Heather and had not reviewed any statements or depositions; he always based his opinions strictly on what was in the medical records. He said there was a clear dereliction of duty on the part of the nurse, primarily because “there was no neuromuscular examination about the ability of this patient to sustain weight prior to getting her out of bed. End of story.” Dr. Turkewitz reiterated that “regardless of what anesthetic agent you used, from a neurological perspective before you get a patient up you do a neuromuscular assessment to make sure the patient can bear weight, And that wasn’t done in this case.” He elaborated on his opinion, stating:

Hence, there’s a dereliction in duty. The patient’s safety was not addressed. As far as I’m concerned, the primary responsibility of nurses is patient safety.... This patient was not only not kept safe, this patient was put in an unsafe situation of the greatest degree. ... The patient was allowed to dangle over the side of the bed in a position where she was able to stand up. And she should have never been in that position to stand up on her own or with anyone’s assistance without a neuromus-cular examination.... The nurse was running the bath water. So, the nurse had every intention of getting that patient up without any evidence of her neuromuscular examination.... [A] side rail ... that’s down allows the patient to get up on their own easily.... [H]uman nature with patients is when the side rail is put down and they’re expecting to transfer themselves out of bed, particularly if they have any inkling that they can do it on their own, they will do it on their own. That’s why patients are not supposed to be left unattended by nurses.

Dr. Turkewitz said that even if Keva had told Heather to await assistance, as was indicated on the 2:45 p.m. nurse’s notes on Heather’s chart, once Keva put the side rail down and went to draw a bath prior to doing a complete neuromuscular evaluation, there was a breach of the standard of care “without question.” He also clarified his statement that the only people responsible for patient safety in a hospital are doctors and nurses, explaining that this was his personal opinion, not a legal opinion. He was adamant that “you don’t put the side rails down unless you know the patient can — has the strength to ambulate.” And even if a full assessment has been done, the nurse should not just walk away and leave the patient in the bed with the bed rail down. Dr. Turkewitz summarized his opinion concerning the actions that constituted a breach of l17the standard of care, stating:

My opinion is very simple. It’s very simple and very straightforward. The nurse by her running the bath water had made the decision to get the patient up. She put the bed rail down without making certain the patient had the strength to walk. She subsequently left the patient unattended.

Nancy McNamara, R.N., a legal nursing consultant, also provided an opinion concerning the nurse’s standard of care in this case. She said that the primary body speaking to the standard of nursing care in labor and delivery is the Association of Women’s Health Obstetric and Neonatal Nursing. Its publications generally advise nurses that they are to make sure the epidural has worn off sufficiently before allowing a post-delivery patient to ambulate, and they are to assist the patient the first time she is up following an epidural. However, the association’s literature does not provide step-by-step instructions. McNamara also consulted publications in the anesthesia field, which generally specified the use of a modified Bromage score. She testified that in her experience, although the nurses did not call it by that name, those procedures were what the nurses used to assess the degree to which the motor block was wearing off on the patient. McNamara said that, based on her own experience, her review of the medical literature on the subject, and Keva’s actions as reflected in her charting, Keva had “deviated from the standard of care in terms that she apparently deemed the patient appropriate for a trial of ambulation without benefit of assessing her motor function.” She explained that her opinion was not based on anything particular in the notes, stating, “Rather, it is the absence of any reference to assessment of motor function in the notes.” McNamara said that generally the nurse is doing these assessments on a regular basis post-delivery in order to ascertain when motor function has returned. The first indication in the nurse’s notes on Heather’s chart that Keva was readying Heather for ambulation is the notation at 2:45 p.m., stating, “Foley discontinued with clear yellow urine. Patient in bed. Bath water running. Patient instructed to wait assistance. No complaint of pain. Denies numbness and tingling in extremities or buttocks.” McNamara said this would have been the time for Keva to conduct a motor function evaluation, which was not done, although Keva had made several notations concerning the return of sensory function. She also said that Keva was obviously intending to allow Heather to ambulate at 2:45 p.m., because she had __L^discontinued the Foley catheter, “[wjhich one would not do unless one were anticipating imminently ... that the patient was going to be ambulating.” McNamara also stated she found it odd that after removing the Foley catheter, the side rail was left down, and that according to the chart, Keva was doing the motor and the sensory evaluations at different times. McNamara also noted that the sensory evaluation should have included objective tests, such as a pin prick or alcohol swab, in addition to asking for the patient’s subjective perception. She said that when addressing the wearing off of the epidural, that is ail done in one assessment, explaining:

Motor and sensory are two different things. And the thing that we need to be concerned about for walking is the degree to which her motor function has returned. The degree to which she has voluntary control over her muscle fibers and the normal strength of them back.

Also, given that Keva weighed only 107 pounds and Heather weighed about 220 pounds, McNamara said Keva needed to enlist the assistance of another staff member before Heather would have her first trial of ambulation, because Keva, alone, would not have been able to break Heather’s fall if she had fallen or if her knees had buckled. There was nothing in the medical records or in Keva’s testimony indicating Keva had taken any steps to obtain help with Heather’s first attempt to ambulate. McNamara stated that the preservation of the patient’s safety as it relates to ambulating after an epidural is virtually always in the realm of nursing care. The side rail should have been up, and the motor function assessment should have been complete.

It is true that, as the defendants contend, there were other medical experts in this case who opined that Keva had not breached the standard of care. However, the trial court has the right to choose one or more expert opinions over others. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Also, when the fact-finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Adams, 983 So.2d at 806-07. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of |, ¡¡conflicts in expert testimony. Id. at 807. Therefore, we conclude that the Aymamis established the standard of care applicable to Keva’s care of Heather and also established that this standard was breached in several particulars.

With reference to causation, the defendants argue that even if this court agrees with the trial court’s choice of witnesses to establish the facts, the standard of care, and the breach of the standard of care, none of the evidence shows that Keva’s actions or inactions caused Heather’s injuries. They contend that if Heather had stayed in bed as she was instructed to do, she would not have fallen and broken her leg. Therefore, her actions were the sole cause of her injuries. This argument begs the question, in that it accepts Keva’s testimony that she gave Heather instructions to stay in bed and wait for assistance before trying to get up and walk. However, the trial court accepted Heather’s version of events, which was that she was never told to stay in bed, but rather, was encouraged by Keva to get out of bed in order to take a bath. We found no manifest error in this selection by the trial court. Moreover, several of the medical experts agreed that even if Keva had told Heather to stay in bed, Keva’s actions-removing the Foley catheter, running the bath water, and leaving the bed rail down-tacitly approved Heather’s decision to attempt to ambulate with the assistance of her mother after testing her own reactions by sitting and by standing beside the bed. Thus, the trial court’s implicit conclusion that Keva’s actions were a cause in fact of Heather’s injuries was not manifestly erroneous.

The defendants further contend that the trial court erred in failing to assign any degree of comparative fault to Heather. The trial court’s decision is reviewed for manifest error, using the factors set out in the jurisprudence to evaluate Heather’s actions. See Smegal, 48 So.3d at 439; Watson, 469 So.2d at 974; and Clement, 666 So.2d at 611. The first factor is whether her conduct resulted from inadvertence or involved an awareness of the danger involved in trying to walk too soon after having an epidural. Keva testified that she advised Heather several times about the need to wait until she had full strength and feeling back in her legs. However, Heather and her mother said that Keva began urging Heather to get up and take a bath while she was still nursing her baby. Heather was reluctant, because she wanted to continue relaxing 12nwith her baby and because she had been given epidural anesthesia during the birth of her first child eight years earlier and knew from that experience that it took almost a full day for the epidural to wear off. Keva assured her that the substances used in the epidural had changed, allowing earlier ambulation; the modern epidural was called a “walking epidural,” because it wore off much more quickly. Keva also told her that new mothers were being encouraged to get up as soon as possible to prevent blood clots from forming in the legs. After being asked for the third time whether she was ready to take a bath, Heather agreed. From these exchanges between Keva and Heather, it appears that Heather was aware of some degree of danger, but was being advised by her nurse that early ambulation was not as risky as it had been in the past. Heather actually felt pressured to agree to the bathing process before she was ready.

The degree of risk created by Heather’s conduct was succinctly summed up by Dr. Schultis, who, when asked what would be the risk of getting up too soon after anesthesia, responded, “We just saw it,” referring to Heather’s fall. She agreed that Heather’s fall was one of the major risks that would be envisioned by getting a patient out of bed too soon. The significance of what was sought by Heather in leaving the bedside and walking toward the bathroom was slight. She could have taken a bath at any time and could have used a bedpan or bedside commode in order to urinate.

Evaluating Heather’s capacities, whether superior or inferior, she would definitely be in an inferior position in this circumstance. She was tired from the labor and delivery process, was still experiencing some degree of disability from the epidural, and was in the care of someone else, her nurse, who was encouraging her to get up and walk as soon as possible. She deferred to what she believed was Keva’s greater knowledge and experience in postpartum care.

The last factor to be considered is whether there were any extenuating circumstances that might require the actor to proceed in haste, without proper thought. As previously discussed, Heather felt pressured to take a bath. After the Foley catheter had been removed and she had stood at the bedside for a few minutes, she felt the urge to urinate. She told Keva twice that she needed to use the toilet.

Her mother was there to assist her in walking to the bathroom, so she thought she could safely take the 12)few steps to get there.

Based on this analysis of the relevant factors in assessing Heather’s degree of fault, we find that the trial court had a reasonable factual basis for concluding that she was not at fault in this accident. Our review of the record as a whole does not suggest that this finding was clearly wrong. Accordingly, we must affirm the trial court’s finding.

Finally, there is a dispute about the amount of damages awarded. The Aymamis contend the amount awarded to Heather in general damages was abusively low, as was the amount awarded to her husband and children for their loss of consortium. Addressing first the award of general damages in the amount of $100,000 to Heather, we recognize that this amount is on the low side for the severity and duration of her injuries. However, we do not find that it is so low that it is an abuse of the much discretion given to a trial court when assessing general damages. The same is true for the loss of consortium awards to Jeremy, Savanna, and Logan. Therefore, we will not modify these awards.

The LPCF claims the award of $29,300 in lost wages should be reduced by at least half. The LPCF contends that Heather is entitled to only nine months of lost income, because she did not accept the position that was offered to her when she was finally cleared to return to work thirteen months after her fall. We disagree. Heather testified that the employer told her that her job would not be available to her, but a lower-paying position could be offered to her at another location. The new position would have required a daily commute across the Causeway to either New Orleans or Metairie, with no additional compensation for the gasoline and tolls that this commute would entail. In addition, she would have had to pay for before- and-after-school care for her daughter, making the new job at lower wages an untenable option. Accordingly, we find that there was a reasonable factual basis for the trial court’s award, and the record does not reveal that the trial court was clearly wrong in awarding this amount.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Keva Fontanille, R.N., St. Tammany Parish Hospital Service | {¡¡¡District No. 1, and the Louisiana Patient’s Compensation Fund.

AFFIRMED.

      . When the LPCF is defending an action for excess damages after a plaintiff has settled with a healthcare provider, the status of the LPCF is in the nature of a statutory interve-nor. Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 702 n. 13.

      . The anesthesiologist, Dr. Patrick McCaslin, stated the epidural pump would have been turned off after the delivery about 11:20 a.m. However, there was no notation in the medical records that this was done at that time. Keva charted that the pump was off when she checked it at 12:15 p.m. Therefore, the exact time at which the epidural anesthetic was discontinued is unclear.

      . There is significant conflict in the testimony surrounding the process of preparing for Heather's bath and the events immediately preceding her fall. These discrepancies are detailed later in this opinion.

      . On cross examination, Heather said it was possible that Keva had started the bath water before removing the catheter and IV. Keva said she generally started the bath water before removing the catheter.

      . Jeremy Aymami’s deposition was also in the record, but his description of events did not correlate with Heather’s testimony, her mother's testimony, or Keva’s testimony. For instance, he stated that as Heather sat on the side of the bed, she complained to Keva several times that she could not move her legs. Heather consistently testified that she could move her legs throughout the labor and delivery and had no problem moving her legs following the delivery, even before the effects of the epidural had subsided.

      . Keva later stated that this note on Heather’s chart probably was not made contemporaneously with those events at 2:45 p.m. It was made some time after she fell.

      . There was a great deal of discussion at trial concerning whether the bed had two rails or four. Regardless, Keva stated she lowered a bed rail and left it down while she went to empty the catheter bag and prepare the bath. This correlates with Heather's testimony and her mother's testimony.

      . The defendants argue that the plaintiffs’ medical experts were either unqualified or provided testimony that was inconsistent and implausible, so the trial court erred in accepting their opinions. However, the depositions of all of the experts, other than Dr. Fuselier, who testified at trial, were jointly submitted by the parties in lieu of live testimony without any objections. As such, any objections to the admissibility of the experts’ opinions on behalf of the plaintiffs were waived and cannot be raised on appeal.


author: EDWIN A. LOMBARD, Judge. McKAY, C.J.,

text:
    STATE of Louisiana in the Interest of L.V.
    No. 2013-CA-1585.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge JOY C. LOBRANO).
   EDWIN A. LOMBARD, Judge.

liThe juvenile, L.V., challenges his adjudication as a delinquent for the offenses of illegal possession of a handgun and criminal trespass, arguing both insufficient evidence and ineffective assistance of counsel. After review of the record in light of the applicable law and arguments of the parties, we find the evidence sufficient but vacate the adjudication based on ineffective assistance of counsel.

Relevant Facts and Procedural History

In the early morning hours of June 21, 2013, Mr. Ulysses Santiago had an altercation with L.V., his wife’s son. After Mr. Santiago called the New Orleans Police Department (NOPD), L.V. left the house. When the NOPD officers arrived, L.V. was not in the vicinity. However, after they departed Mr. Santiago looked out his window and saw L.V. with a handgun. Accordingly, Mr. Santiago called the NOPD a second time and, subsequently, L.V. and another individual were taken away. Later that day, Mr. Santiago found the gun in his backyard and, after L.V. returned demanding its return, Mr. Santiago called the NOPD a third time. When Officer Shawn Madison arrived, Mr. Santiago turned the gun over to him and an arrest warrant was issued for the juvenile.

|2L.V. was charged with criminal trespass and illegal possession of a handgun by a juvenile. The matter was initially set for adjudication on August 15, 2013. On that date, it was continued until September 5, 2013, but because Mr. Santiago failed to appear for the hearing, the juvenile judge issued a warrant for Mr. Santiago and granted the State’s motion to nolle prose-qui The State reinstituted charges and the hearing was set for September 30, 2013. After opening arguments on September 30th, the hearing was reconvened on October 17, 2013. On that date, the State presented the testimony of Officer Madision and Officer Leslie Guzman and the juvenile court adjudicated L.V. delinquent on both charges.

Sufficiency of the Evidence

When sufficiency of the evidence is challenged on appeal, we first consider that claim to determine if, under the Jackson v. Virginia standard, viewing the evidence in the light most favorable to the prosecution, sufficient evidence supports the adjudication.

The following evidence was adduced at the hearing. Officer Madison testified that he was dispatched to 7929 Morrison Road where Mr. Santiago told him about the earlier altercations with L.V. and interactions with the police. According to Officer Madison, Mr. Santiago told the police during the initial visit that “my son [L.V.] always has a gun on him” but conceded to them that he had not actually seen the gun in L.V.’s possession during the first altercation. However, after the police left, L.V. returned “with somebody else, and that this time, [Mr. Santiago] physically saw him with a gun in his hand” so he called the police again and “advised the dispatcher that now he physically see him with a firearm.” The police came and “transported [L.V.] and the other gentleman somewhere else.” |sThe following day, Mr. Santiago went into his backyard and “saw the gun laying on the side of the house” and, “because his grandchildren frequently play in the yard” Mr. Santiago unloaded the gun and brought it into the house. Shortly thereafter, L.V. returned and “they get into an altercation about where the gun was.” L.V. left when Mr. Santiago threatened to call the police again and, according to Officer Madison’s testimony, “That’s when I got there.” According to Officer Madison, when he arrived at Mr. Santiago’s residence, he took possession of the gun, a 40-caliber Taurus, which he identified as State’s Exhibit 1, and applied for an arrest warrant for L.V.

Officer Guzman identified L.V. in court and testified that she arrested L.V. on July 11, 2013, pursuant to the arrest warrant.

In closing, defense counsel moved for a directed verdict, pointing out that the State failed to offer eyewitness testimony as to L.V. being in possession of the weapon. The State responded that, as there was no contemporaneous objection to the Officer Madison’s testimony as to what Mr. Santiago related to him, Officer Madison’s testimony was of evidentiary value and, therefore, sufficient to adjudicate L.V. on the charges.

On appeal, counsel for the juvenile concedes that hearsay evidence to which no objection is lodged constitutes substantive evidence of guilt but argues that hearsay evidence alone should not support an adjudication of delinquency. In support, counsel points to the exception carved out by the Louisiana Supreme Court in State v. Allien, 366 So.2d 1308 (La.1978), wherein the “unobjected to hearsay which is the exclusive evidence of a defendant’s guilt of the crime or an essential element thereof, and where contradicted at trial by the sworn recantation |4of the out-of court de-clarant, is not evidence at all.” According to counsel, by carving out this exception the Louisiana Supreme Court has “flirted with the possibility of altering the requirement that there be a sworn recantation of the hearsay testimony” and therefore this court should overturn the adjudication because a rational trier of fact, based solely on hearsay evidence, would not have “believed that L.V. was trespassing when he came to the home where his mother, listed as his guardian in the petition, and stepfather lived.”

This argument is not persuasive. Although Mr. Santiago subsequently decided not to testify against his step-son, nothing in the record indicates that Mr. Santiago sought to recant his statements to the police or otherwise contradicted the veracity of his initial statements. Therefore, viewed in the light most favorable to the prosecution, Officer Madison’s recitation without contemporaneous objection of the Mr. Santiago’s statement that he saw the juvenile in actual possession of a gun is sufficient to support the adjudication.

Ineffective Assistance of Counsel

Next, L.V.’s appellate counsel argues that his counsel’s error in failing to object to the testimony of Officer Madison was so egregious as to be a denial of his Sixth Amendment right to counsel. We agree. Specifically, trial counsel failed to object to the hearsay testimony of Officer Madison, the only evidence submitted by the State to support L.V.’s adjudication and, in so doing, allowed it to come in as substantive evidence. But for this hearsay evidence, there is no evidence of the juvenile’s possession of a handgun. This was clearly not, as the State tries to |-suggest, trial strategy. Further, trial counsel failed to object to the imposition of consecutive and excessive dispositions or to the fee assessment above the statutory maximum. The record before us clearly indicates that, pursuant to Strickland v. Washington, trial counsel’s performance was egregiously deficient and that deficient performance prejudiced L.V.’s defense.

Conclusion

Based on ineffective assistance of counsel, we vacate the juvenile’s adjudication as a delinquent for the offenses of trespass and possession of a firearm.

ADJUDICATION VACATED.

McKAY, C.J., dissents.

LOBRANO, J., concurs in the results.

McKAY, C.J.,

dissents.

|,I would affirm the trial court’s judgment.

      . As is customary, we use the juvenile’s initials to protect his identity.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Notably, although the imposition of consecutive terms of secure care is assigned as error by appellate counsel (and conceded by the State), the sufficiency of the evidence underlying the adjudication for the offense of trespass is not contested on appeal. However, the record clearly shows that counsel was ineffective, supra, thus requiring that the adjudication be vacated. Therefore, further discussion of errors is pretermitted.

      . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).


author: McKAY III, Chief Judge.

text:
    William and Tammy GETTYS, Individually and on Behalf of their Deceased Daughter Gabrielle Gettys v. Joaquin WONG, M.D., State of Louisiana, and Louisiana State University Health Science Center.
    No. 2013-C-1138.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.

      Thomas Corrington, New Orleans, LA, for Plaintiffs/Respondents.
    Peter J. Wanek, Lance Williams, Lou Anne Milliman, Shantell L. Payton, Kathryn T. Trew, McCranie, Sistruck, Anzel-mo, Hardy McDaniel & Welch, LLC New Orleans, LA, for Defendants/Relators.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   McKAY III, Chief Judge.

| ¶ Defendant, Louisiana State University Health Science Center (“LSUHSC”), initially applied for supervisory writs with this Court, seeking to reverse the judgment of the trial court denying its exception of prescription with regard to the plaintiffs’ medical malpractice claim. This Court denied the writ application, finding that LSUHSC had an adequate remedy on appeal. LSUHSC then applied for a writ of certiorari with the Louisiana Supreme Court. The writ to the Supreme Court was granted, and the case was remanded to us for briefing, oral argument, and opinion. For the reasons that follow, we affirm the trial court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Plaintiffs’ sixteen year old daughter, Gabrielle Gettys, died at Children’s Hospital on December 12, 2008. On December 7, 2009, with six days remaining on the one-year prescriptive period, plaintiffs instituted a medical review panel complaint against Dr. Joaquin Wong, Dr. Valentine Enemuo, Dr. Constantine Dimitriades, and Children’s Hospital. The medical review panel rendered its opinion on March 29, 2011, finding no breach of the standard of care. Notice of the opinion was issued on April 19, 2011.

|2The instant medical malpractice lawsuit was timely filed against Dr. Wong, Dr. Enemuo, and Children’s Hospital on May 24, 2011. On September 28, 2011, plaintiffs filed a supplemental petition adding LSUHSC, Dr. Wong’s employer, as a defendant. In response, LSUHSC filed an exception of prescription, arguing that the supplemental petition adding LSUHSC as a defendant was filed beyond the one-year prescriptive period and the ninety-day suspension period provided by the Medical Malpractice Act (“MMA”) La. R.S. 40:1299.39 et seq., and the provisions of La. R.S. 9:5628, which delineate liberative prescription applicable to actions for medical malpractice under Title 40.

Plaintiffs opposed the exception, asserting that the timely filed suit against Dr. Wong interrupted prescription as to LSUHSC based on its vicarious liability as Dr. Wong’s employer. The trial court rejected the plaintiffs’ argument and granted the exception of prescription, dismissing LSUHSC from the case.

The matter proceeded to trial on April 15, 2013. At that time, defense counsel sought dismissal of the case against Dr. Wong pursuant to Detillier v. Kenner Regional Medical Center, 2003-3259, p. 16 (La.7/6/04), 877 So.2d 100, 111, wherein the Supreme Court held that “in a medical malpractice suit brought against the state and a qualified state health care provider, if the court finds the state health care provider committed medical malpractice, judgment must be entered against the state alone.” (Emphasis added).

In the present case, because LSUHSC was no longer a party, there was no entity against whom a judgment could be rendered if Dr. Wong was found to be at fault. For that reason, the trial court declined to dismiss Dr. Wong, and instructed plaintiffs to file the necessary pleadings to correct the procedural posture of the | Scase. Plaintiffs responded with a motion to reconsider LSUHSC’s exception of prescription.

The trial court granted plaintiffs’ motion to reconsider, reversed her previous ruling, and denied LSUHSC’s exception of prescription. LSUHSC’s supervisory writ to this Court was denied. Now, on remand with instructions from the Louisiana Supreme Court, we consider the merits of the trial court’s ruling.

ANALYSIS

On appeal, LSUHSC asserts two assignments of error: 1) the trial court erred in granting plaintiffs’ motion for reconsideration because plaintiffs presented no new evidence or adequate legal grounds for a new trial; and 2) the trial court erred in denying the exception of prescription because the MMA provides that a timely filed suit does not interrupt prescription against joint and solidary obligors.

1. New Trial

LSUHSC submits that a judgment sustaining an exception of prescription is a final and appealable judgment, and because the trial court’s April 5, 2013 judgment granting the exception of prescription was a final judgment, the motion for reconsideration must be treated as a motion for new trial. LSUHSC argues that plaintiffs did not meet the standards for granting a new trial pursuant to La. C.C.P. articles 1972 and 1973. We find no merit in this assignment of error.

La. C.C.P. art. 1972 specifies three peremptory grounds upon which a new trial “shall” be granted, namely: (1) when the verdict or judgment appears clearly contrary to the law and the evidence; (2) when a party has discovered new evidence important to the cause which he could not, with due diligence, have discovered prior to trial; and (3) when the verdict has been tainted by juror bribery or juror misconduct. La. C.C.P. art. 1973 provides discretionary grounds for the | ¿trial court to grant a new trial, and states that “[a] new trial may be granted in any case if there is good ground therefore, except as otherwise provided by law.”

In this case, it is clear from the record that the trial court granted plaintiffs’ “new trial” or motion for reconsideration to correct what was believed to be a miscarriage of justice given the procedural posture of the case. The trial court reasoned that her initial granting of the exception of prescription was wrong because the state is the only entity against whom plaintiffs can get a judgment. Thus, to allow the plaintiffs the ability to proceed forward with their case, the motion to reconsider was granted. Under the circumstances, we find no abuse of discretion in that ruling.

We further recognize the well-established principle that a peremptory exception may be urged at any time. Pursuant to La. C.C.P. art. 928, “[a] party may re-urge a peremptory exception after a denial of the exception.” Landry v. Blaise, Inc., 2002-0822, p. 3 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664. Accordingly, reconsideration of the exception of prescription was not in error.

2. Interruption of Prescription

La. R.S. 9:5628(A) provides for the one year prescriptive period in medical malpractice cases, as follows, in pertinent part:

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

|sWith respect to state health care providers, La. R.S. 40:1299.39.1(A)(2)(a) provides, in pertinent part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, ... to the claimant or his attorney of the issuance of the opinion by the state medical review panel, in the case of the state or persons covered by this Part,.... The filing of a request for review of a claim shall suspend the running of prescription against all joint or solidary ob-ligors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are subject of the request for review.

In the case sub judice, the one-year prescriptive period began to run from the date of death, which occurred on December 12, 2008. Pursuant to La. R.S. 40:1299.39.1(A)(2)(a), prescription was suspended against all joint and solidary obli-gors by the convening of the medical review panel on December 7, 2009, with six days remaining on the initial prescriptive period. The suspension of prescription continued for 90 days following the notification of the medical review panel opinion on April 19, 2011. Adding the six days that remained on the one-year prescriptive period, prescription on plaintiffs’ claim against LSUHSC would have tolled on July 26, 2011. Plaintiffs amended their suit to name LSUHSC as a defendant on September 28, 2011.

Citing Richard, v. Tenet Health Systems, Inc., 2003-1933 (La.App. 4 Cir. 4/14/04), 871 So.2d 671, LSUHSC maintains that the suit against Dr. Wong did not interrupt prescription against LSUHSC. In Richard, the plaintiff filed a timely request for a medical review panel against the hospital and various physicians. After rendition of the panel decision, the plaintiff filed a timely suit against those | (¡defendants. Some years later, the plaintiffs filed a request for a medical review panel against additional physicians, alleged to be joint tortfeasors, who were not previously named in the panel request. Those added defendants filed an exception of prescription. This Court concluded that the suit was barred by prescription. The initial request for a medical review panel suspended prescription as to the added physicians, as joint tortfeasors. However, pursuant to the specific provisions of La. R.S. 40:1299.39.1(A)(2)(a), we held in Richard that “the plaintiffs had only until 90 days after notice of the rendition of the opinion of the original medical review panel to file a complaint against any solidary obligors.” Id., 2003-1933, p. 4, 871 So.2d at 674.

Plaintiffs seek to distinguish Richard, arguing that LSUHSC and the physicians in Richard did not occupy the same legal position. We agree. As plaintiffs correctly point out, LSUHSC is not a newly added health care provider, and there are no independent claims of malpractice made against LSUHSC. Rather, LSUHSC is the employer of the physician that was timely sued. In Richard, unlike in the present case, the newly added defendants had no legal responsibility for the actions of the physicians first sued.

Employers are answerable for the damage caused by their employees in the exercise of the functions in which they are employed. La. C.C. art. 2320; Ermert v. Hartford Ins. Co., 559 So.2d 467, 475 (La.1990). Vicarious liability is imposed upon the employer without regard to his own negligence or fault; it is a consequence of the employment relationship. Sampay v. Morton Salt Co., 395 So.2d 326, 328 (La.1991).

In the present case, the claim against LSUHSC is solely derivative of the timely filed claim made against Dr. Wong. Thus, the claims are one and the same. 17Under the circumstances, we choose not to extend our holding in Richard, as to do so would lead to an absurd result.

We also find merit in plaintiffs’ argument that given the Supreme Court’s holding in Detillier, LSUHSC must be considered an indispensable party. Pursuant to Detillier, in the event that a state health care provider is found to have committed malpractice, any judgment in favor of the plaintiff will be entered against the state alone. Detillier, 2003-3259, p. 16, 877 So.2d at 116. For plaintiffs to prevail against Dr. Wong, LSUHSC must be a party to this action. Without LSUHSC, there is no entity against whom a judgment could be rendered.

La. C.C.P. art. 641, which governs “Join-der of parties needed for just adjudication” , provides:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

La. C.C.P. art 645 provides that failure to join a party may be noticed by the trial or appellate court on its own motion.

Pursuant to La. C.C.P. art 641(1), a party in whose absence complete relief cannot be accorded among those who are parties “shall be joined as a party.” | ¡^Moreover, it is well established that “[a]n adjudication made without making a person described in article 641 a party to the litigation is an absolute nullity.” James v. Maison Orleans II, Inc., 2004-1132 (La.App. 4 Cir. 5/11/05), 913 So.2d 115, 122, on rehearing.

“A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights.” Industrial Companies, Inc. v. Durbin, 2002-0665, p. 14 (La.1/28/03), 837 So.2d 1207, 1217. Courts are to determine whether a party should be joined by a factual analysis of all the interests involved. Gibbs v. Magnolia Living Center, Inc., 38,184, p. 8 (La.App. 2 Cir. 4/7/04), 870 So.2d 1111, 1116.

Given the procedural posture of the present case, and considering the Supreme Court’s mandate in Detillier, it is evident that a judgment cannot be rendered against Dr. Wong and in favor of plaintiffs without LSUHSC being a party to the action. Thus, as complete relief cannot be accorded in its absence, LSUHSC is an indispensable party and must be joined in this action.

CONCLUSION

For the foregoing reasons, we find no error in the trial court’s judgment denying LSUHSC’s exception of prescription. Accordingly, we affirm.

AFFIRMED.

      . See LeBreton v. Rabito, 97-2221, p. 6 (La.7/8/98), 714 So.2d 1226, 1229.

      . The 1995 amendments to La. C.C.P. art. 641 removed the terms "necessary and indispensable parties” and inserted the concept of "joinder of parties needed for just adjudication.”


author: THERIOT, J.

text:
    Gregory C. HENKELMANN and Cynthia L. Henkelmann v. WHISKEY ISLAND PRESERVE, LLC.
    No. 2013 CA 0180.
    Court of Appeal of Louisiana, First Circuit.
    May 15, 2014.

      See also 2012 WL 1965853.

      Stephen M. Irving, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Gregory C. Henkelmann and Cynthia L. Henkelmann.
    Andre G. Coudrain, Chris D. Broadwa-ter, Hammond, Louisiana, for Plaintiff/Ap-pellee, Whiskey Island Preserve, LLC.
    Before WHIPPLE, C.J., HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

|2Gregory and Cynthia Henkelmann appeal a judgment dismissing their suit against Whiskey Island Preserve, LLC based on the doctrine of res judicata. We affirm the judgment of dismissal and deny Whiskey Island Preserve, LLC’s request for damages for frivolous appeal.

FACTS AND PROCEDURAL HISTORY

Whiskey Island Preserve, LLC is the developer of a subdivision in Tangipahoa Parish called “The Preserve at Whiskey Island,” in which large residential lots were offered for sale in an upscale neighborhood with expansive common areas, natural woodlands, and many planned amenities. A “Declaration of Rights, Restrictions, Affirmative Obligations and Conditions for the Preserve at Whiskey Island[,] a Subdivision” was recorded on June 2, 2006. This Declaration and the subdivision plat designated certain portions of The Preserve at Whiskey Island as common areas on which there could be no development and which were dedicated for the use and enjoyment of all lot owners.

Gregory and Cynthia Henkelmann purchased Lot 12 in The Preserve at Whiskey Island development for $286,985.00 on June 15, 2006. The purchase agreement was amended with a handwritten notation to show that one of the amenities shown on the sales literature, a marina/boathouse, was to be completed within 180 days from the date of the purchase agreement.

The Henkelmanns filed a suit for declaratory judgment on February 14, 2008, alleging that Whiskey Island Preserve, LLC was planning to develop a substantial portion of the common areas in the neighborhood as additional residential lots for sale. The suit also alleged that Whiskey Island Preserve, LLC had failed to complete the marina/boathouse within the allotted time period and that the Henkelmanns believed that Whiskey Island 1 .¡Preserve, LLC had abandoned its plans to build the marina/boathouse. The Henkelmanns sought a declaratory judgment establishing that the common areas are subject to a servitude and consequently there can be no obstruction or development of the common areas. Additionally, the Henkelmanns sought damages for Whiskey Island Preserve, LLC’s failure to timely construct the marina/boathouse, as well as rescission of the sale of Lot 12, return of the full purchase price, and an award of attorney fees.

The trial court recognized the Henkel-manns’ servitude and right of use of the common areas, but denied rescission of the purchase and denied damages. This court affirmed the trial court in an unpublished opinion, Henkelmann v. Whiskey Island Preserve, LLC, 11-0304 (La.App. 1 Cir. 6/1/12), 2012 WL 1965853.

Subsequently, on July 19, 2012, the Henkelmanns filed a separate suit for specific performance, alleging that Whiskey Island Preserve, LLC failed to complete the marina/boathouse within the allotted time and asking the court to order Whiskey Island Preserve, LLC to complete the marina/boathouse as promised in the purchase agreement. Whiskey Island Preserve, LLC filed a peremptory’ exception raising the objection of res judicata, pointing out that the Henkelmanns’ suit for specific performance arises out of the same transaction or occurrence (the failure to complete the marina/boathouse within the allotted time) that was litigated by the identical parties in the prior suit. In support of this assertion, Whiskey Island Preserve, LLC pointed to the now-final trial court judgment in the original suit between the parties, which stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Defendant and against Plaintiffs denying Plaintiffs’ claim for damages for failure to timely construct the marina/boat house in accordance with the terms of the purchase agreement, as well as Plaintiffs’ claim for ^rescission of the sale of Lot 12 with full restitution of the sale price and an award of attorney’s fees is hereby denied.

The trial court sustained the exception raising the objection of res judicata, and the Henkelmanns appealed. Whiskey Island Preserve, LLC answered the appeal seeking attorney fees and costs for a frivolous appeal.

DISCUSSION

The doctrine of res judicata is set forth in Louisiana Revised Statutes 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Based on the language of the above statute, the supreme court has established the following five elements that must be satisfied for a finding that a second action is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chevron U.S.A., Inc. v. State, 07-2469, p. 10 (La.9/8/08), 993 So.2d 187, 194. The “chief inquiry” is whether the second Inaction asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action. Id. The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Stroscher v. Stroscher, 01-2769, p. 6 (La.App. 1 Cir. 2/14/03), 845 So.2d 518, 525.

The Henkelmanns concede that the judgment in the first suit is final and valid and that the parties in the two suits are identical. They also concede that both suits arise out of the commitment to build the marina/boathouse. However, the Hen-kelmanns assert that the doctrine of res judicata should not apply to their second suit because the cause of action asserted in the second suit (the abandonment of the marina/boathouse plan) did not exist at the time of the first suit. The Henkelmanns allege in their brief that at the time of the trial in the first suit, the construction of the marina/boathouse had only been delayed by unforeseen events, not abandoned. However, the Henkelmanns’ petition in the first suit contains allegations that the plans for the marina/boathouse had been abandoned:

12.
When the Plaintiffs agreed to purchase Lot 12, Plaintiffs and Defendant entered into an agreement to buy and sell dated May 07, 2006 which agreement provides that Defendant will complete the Marina/Boathouse at Whiskey Island within 180 days of the date that agreement is executed, This contract formed part of the consideration that Plaintiffs received for the purchase price.
13.
The Defendant has failed to complete the Marina/Boathouse within the allotted time period and, as a result, Plaintiffs have been deprived of the benefit of the Marina/Boathouse.
14.
Furthermore, Plaintiffs have been informed that the Defendant may or has abandoned plans to build the Marina/Boathouse. Plaintiffs are entitled to rescind the sale of Lot 12 due to the failure to build the Marina/Boathouse.

| ^Although the Henkelmanns acknowledge in their brief that they “could have brought a claim for specific performance in 2008,” they argue that “a claim that construction of the marina-boathouse has not progressed beyond driving a few pilings asserted in 2013, four years after the utilities were installed, is not the same claim as one asserted in 2008 at a time when Whiskey Island maintained that it had not commenced construction because of a delay in Entergy providing electric services.” We disagree. The Henkelmanns alleged in their first suit that they believed Whiskey Island Preserve, LLC had abandoned plans to build the marina/boathouse, and they could certainly have asserted a cause of action for specific performance at that time.

The Henkelmanns next argue that the doctrine of res judicata is inapplicable to their second suit because the issue of their entitlement to enforce the obligation to build the marina/boathouse was not actually litigated in the first suit. Pri- or litigation of an issue is not required in order for a cause of action to be barred by res judicata. Louisiana Code of Civil Procedure article 425 provides that a party “shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” (Emphasis added.) After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence as a previous suit. See La. R.S. 13:4231; La. C.C.P. art. 425. Implicit in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so. Once a final judgment acquires res judicata status, no court has jurisdiction to change the judgment. Stroscher, 01-2769 at p. 6, 845 So.2d at 525.

Louisiana Revised Statutes 13:4231 embraces the broad usage of the term “res judicata” to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Under claim preclusion, a res judicata |7judgment on the merits precludes the parties from relit-igating matters that were or could have been raised in that action. Under issue preclusion, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: a) foreclosure of relitigating matters that have never been litigated but should have been advanced in the earlier suit; and b) foreclosure of relit-igating matters that have been previously litigated and decided. Stroscher, 01-2769 at pp. 6-7, 845 So.2d at 525. Because the claim for specific performance arose from the same transaction or occurrence that was the subject matter of the prior litigation, it was required to be advanced in the earlier suit. Failure to do so results in the foreclosure of relitigation of those matters which have never been litigated. This assignment of error is without merit.

Finally, the Henkelmanns argue that exceptional circumstances exist in their case, which prevent the application of res judicata. Louisiana Revised Statutes 13:4232(A) provides an exception to the general rule of res judicata where “exceptional circumstances justify relief from the res judicata effect of the judgment.” The “exceptional circumstances” exception generally applies to complex procedural situations in which litigants are deprived of the opportunity to present their claims due to unanticipated quirks in the system, to factual situations that could not be anticipated by the parties, or to decisions that are totally beyond the control of the parties. Kevin Associates, LLC v. Crawford, 04-2227, p. 8 (La.App. 1 Cir. 11/4/05), 917 So.2d 544, 549, writ denied, 06-0220 (La.5/5/06); 927 So.2d 311. The Henkel-manns assert that because the developer did not admit in the first suit that they had abandoned plans to build the marina/boathouse, the 1 ^Henkelmanns abandoned their rescission claim on appeal and filed the second suit for specific performance of the obligation to build the marina/boathouse. They claim this change constitutes an exceptional circumstance. We disagree. The Henkelmanns alleged in the original suit that Whiskey Island Preserve, LLC may have abandoned plans to build the marina/boathouse; thus, they clearly had sufficient knowledge to bring the claim for specific performance at that time. Failure to do so does not constitute exceptional circumstances.

Whiskey Island Preserve, LLC answered the appeal, alleging that the Henkelmanns’ appeal is frivolous and designed only to harass them and ask this court to award attorney fees and costs incurred in the frivolous appeal.

Louisiana Code of Civil Procedure article 2164 provides that an appellate court may award damages, including attorney fees, for a frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. The courts have been reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Guarantee Systems Const. & Restoration, Inc. v. Anthony, 97-1877, p. 13 (La.App. 1 Cir. 9/25/98), 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Id. Furthermore, because appeals are favored in our law, penalties for the filing of a frivolous appeal will not be imposed unless they are clearly due. Id. We do not agree with the Henkelmanns’ arguments and did find that they lack merit. However, we cannot say this appeal was taken solely for the purpose of Udelay or that appealing counsel does not seriously believe in the position he advocates. Therefore, damages for frivolous appeal are denied.

CONCLUSION

The judgment of the trial court dismissing plaintiffs’ suit based on res judicata is affirmed. The Preserve at Whiskey Island, LLC’s request for attorney fees is denied. All costs of this appeal are assessed to Gregory C. Henkelmann and Cynthia L. Henkelmann.

AFFIRMED; RELIEF SOUGHT IN ANSWER TO APPEAL DENIED.