author: WALTER J. ROTHSCHILD, Judge.

text:
    Martin MANNING v. PFG-CARO FOODS, Travelers Indemnity Company of America, Teamwork Staffing Service/TSS of Maryland and 60196 Zurich American Insurance Company.
    No. 12-CA-223.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Susan A. Repasky, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Samuel R. Aucoin, Attorney at Law, Lafayette, LA, for Defendant/Appellee.
    James A. Holmes, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ^Defendant, Teamworks USA, Inc. (“TeamWorks”), appeals the October 3, 2011 judgment of the worker’s compensation court, which was rendered after this Court remanded the case for further proceedings following the first appeal in this matter. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Following Hurricane Katrina in 2005, the claimant, Martin Manning, was recruited by TeamWorks to perform temporary work for PFG-Caro Foods (“Caro”), which is a food product delivery service. On November 19, 2005, while working as a delivery truck driver, Mr. Manning suffered injuries to his back, neck, and jaw/ teeth when he slipped and fell while making a delivery to a Popeye’s Famous Fried Chicken restaurant.

|aOn November 16, 2006, Mr. Manning filed a Disputed Claim for Compensation against TeamWorks and its insurer. He amended his worker’s compensation claim on June 18, 2007 to add Caro as a defendant.

On January 19, 2010, counsel for the claimant filed a Motion for Partial Dismissal without Prejudice as to TeamWorks and its insurer, Travelers Indemnity Company (“Travelers”), asking for dismissal of all claims as to those defendants only, without prejudice. Trial was held the next day, January 20, 2010. At the outset, counsel for the claimant announced that her client wished to dismiss TeamWorks and Travelers without prejudice. The court orally granted the motion to dismiss.

Immediately thereafter, counsel for Caro filed a peremptory exception of prescription. He argued that the claim on its face was prescribed as to Caro, because although the suit was filed timely against TeamWorks, TeamWorks was never the claimant’s employer and should not have been part of the suit, so the addition of Caro after the one-year anniversary could not relate back to the original filing date of the claim.

After an off-the-record discussion with counsel, the worker’s compensation judge rescinded the granting of the motion to dismiss due to the issue raised by the exception of prescription. Trial proceeded that day. The second day of trial was held on May 12, 2010.

On August 10, 2010, the worker’s compensation judge issued a judgment finding that the claimant had a work-related accident on November 19, 2005. However, the judge also granted the claimant’s motion to dismiss TeamWorks, | ¿granted the exception of prescription filed by Caro, and dismissed the case. Claimant appealed.

In the first appeal, the claimant raised the following four assignments of error:

1. The trial court erred in failing to order Caro to pay medical benefits and failing to assess penalties and attorney fees against Caro for its termination of medical benefits and non-payment of medical bills.
2. The trial court erred in granting the Exception of Prescription in favor of Caro, when a claim had been timely filed and served in Maryland and a new claim filed within the one-year period after the Maryland claim was dismissed.
8. The trial court erred in granting Caro’s Exception of Prescription when the claimant had timely filed a tort suit in relation to the accident and injuries involved herein.
4. The trial court erred in dismissing TeamWorks pursuant to Claimant’s Motion to Dismiss TeamWorks, when claimant had already withdrawn the motion and the Court had already denied the motion.

After considering the claimant’s first assignment of error and the opposition thereto, this Court held that the worker’s compensation court erred in failing to order Caro to pay medical benefits and in failing to assess penalties and attorney’s fees against Caro. This Court remanded the case to address these issues. Manning v. PFG-Caro Foods, 10-1014, p. 18 (La.App. 5 Cir. 6/14/11), 71 So.3d 981, 993.

After considering the claimant’s second and third assignments of error, this Court concluded that the worker’s compensation judge was clearly wrong and erred as a matter of law in finding that the claim against Caro was prescribed. Id. at 23, 71 So.3d at 995.

Finally, after considering the claimant’s fourth assignment of error, this Court found that the worker’s compensation judge erred in granting the motion to dismiss TeamWorks when the claimant had withdrawn the motion on the first day of trial. This Court further noted that due to the dismissal of TeamWorks and Caro Isfrom the case, the worker’s compensation court never considered the merits of the claimant’s case for indemnity benefits. Accordingly, this Court ordered the worker’s compensation court on remand to address the evidence concerning the claimant’s injuries and disability, and rule thereon. Manning, 10-1014 at 24, 71 So.3d 996.

On remand, the case came before the worker’s compensation court for hearing on August 18, 2011. No additional testimony was taken, but TeamWorks filed a Certificate of Insurance into the record and five joint stipulations were submitted. The worker’s compensation judge allowed the parties additional time to submit mem-oranda to the court and thereafter took the matter under advisement.

On October 3, 2011, the worker’s compensation judge issued a judgment providing as follows:

1) Caro and TeamWorks are both employers of the claimant.
2) The claimant had a work-related accident on November 19, 2005, while he was employed by Caro and TeamWorks.
3) The claimant was disabled and remains disabled from his employment with Caro and TeamWorks as a result of the accident.
4) The average weekly wage should be calculated using an hourly wage of $17.80 plus overtime for the four weeks preceding the accident.
5) Caro and TeamWorks are solidarity liable for indemnity benefits in the amount of $454.00 per week from December 15, 2005 until present and continuing.
6) Caro and TeamWorks must pay further indemnity benefits to the claimant until and unless it is determined that he is no longer eligible for indemnity benefits.
7) Caro and TeamWorks must pay all past due medical bills, including $2,709.36 in bills that had been submitted.
8) Caro and TeamWorks must authorize treatment with the claimant’s choice of treating physician.
9) Defendants did not reasonably controvert claimant’s entitlement to worker’s compensation benefits.
IfilO) Caro and TeamWorks must pay penalties of $8,000.00 for their refusal to pay for medical expenses, medication, indemnity benefits, travel expenses, and vocational rehabilitation expenses.
11) Defendants shall pay all medical expenses, medication expenses, indemnity benefits, travel expenses, and vocational rehabilitation expenses for the accident of November 19, 2005.
12) Caro and TeamWorks must pay attorney fees to the claimant’s counsel in the amount of $20,000.00.

TeamWorks appeals the October 3, 2011 judgment of the worker’s compensation court.

DISCUSSION

In the present appeal, TeamWorks has set forth six assignments of error for this Court’s consideration. The first two assignments of error are related and can be addressed together. In its first assignment of error, TeamWorks asserts that the trial court erred when it found Team-Works to be an employer or co-employer of the claimant. In its second assignment of error, TeamWorks contends that the trial court erred in finding that 'Team-Works was responsible, in solido, with Caro for the claimant’s workers’ compensation benefits.

TeamWorks argues that it never hired the claimant and was never his employer, but it simply acted as a “head hunter.” It claims that Caro was at all times the direct employer of the claimant and should be solely responsible for his worker’s compensation benefits.

The claimant responds that the worker’s compensation court correctly found that TeamWorks was a co-employer of the claimant at the time of the accident and was liable in solido with Caro for his worker’s compensation benefits. He contends that the evidence makes it abundantly clear that TeamWorks was a general (lending) employer and Caro was a special (borrowing) employer, thus making both parties liable, jointly and solidarily, for his claim.

|7In Caro’s brief on appeal, it argues that TeamWorks is precluded from raising the issues of co-employment and solidary liability with Caro in this second appeal, because it did not seek a rehearing or apply for a writ of certiorari with the Louisiana Supreme Court after this Court found that TeamWorks and Caro were co-employers and solidarily liable to the claimant.

After the first trial, the worker’s compensation judge dismissed TeamWorks pursuant to the claimant’s motion to dismiss and dismissed Caro pursuant to its exception of prescription. On appeal, after discussing the law pertaining to solidary obligors, this Court found that Caro’s exception of prescription had been improperly granted. Thereafter, when discussing the dismissal of TeamWorks, this Court noted:

The effect of the dismissal of Team-Works was to eliminate the party with whom Caro was solidarily liable, thus preventing the late addition of Caro to the Louisiana worker’s compensation claim from relating back to the original filing date.

Manning, 10-1014 at 28, 71 So.3d 995-996.

After reviewing all of the testimony and evidence presented in the first trial, including ample evidence pertaining to whether or not TeamWorks was an employer of the claimant, this Court rendered an opinion finding that the worker’s compensation court erred by dismissing both TeamWorks and Caro from the claimant’s lawsuit. Based on the language contained therein, the effect of this Court’s holding in its previous opinion was to find that TeamWorks was in fact solidarily liable with Caro for the claimant’s worker’s compensation benefits. TeamWorks did not seek review of this Court’s decision by applying for a rehearing with this Court or applying for a writ of certiorari from the Louisiana Supreme Court. See LSA-C.C.P. art. 2166(A). Thus, the finding that TeamWorks was solidarily liable with Caro became final.

IsWe further note that in remanding this case to the worker’s compensation court, this Court provided instructions on what issues would be addressed on remand, after considering the specific assignments of error asserted by the claimant on appeal. The issue of TeamWorks’ liability or lack thereof was not an issue to be addressed on remand.

Accordingly, for the reasons provided, we find that TeamWorks is precluded from raising the issues of co-employment and solidary liability with Caro in this second appeal. Thus, the merits of the first two assignments of error set forth by Team-Works will not be addressed.

TeamWorks’ third and fourth assignments of error can also be addressed together. In its third assignment of error, TeamWorks asserts that the worker’s compensation court erred in failing to recognize that TeamWorks’ responsibility for worker’s compensation benefits was governed by the contract between Team-Works and Caro. In its fourth assignment of error, TeamWorks contends that the worker’s compensation court erred when it failed to recognize that TeamWorks was an additional insured on Caro’s worker’s compensation insurance policy.

TeamWorks avers that it cannot be held responsible for the claimant’s worker’s compensation benefits, because the contract between Caro and TeamWorks provided that Caro was responsible for “all payroll, benefits, and applicable liability insurance” for the drivers. It also asserts that TeamWorks was listed as an additional insured on Caro’s worker’s compensation insurance policy, so Caro is responsible for payment of all benefits.

The claimant responds that the worker’s compensation court was correct in failing to recognize the terms of the contract between TeamWorks and Caro, because his claim is governed by Louisiana Worker’s Compensation Statutes, not |aby a private contract between TeamWorks and Caro to which the claimant is not a party.

As stated above, the issue of Team-Works’ liability or lack thereof was not an issue to be addressed on remand. Rather, after this Court found that the worker’s compensation court erred in granting the motion to dismiss TeamWorks, it noted that the merits of the claimant’s case for indemnity benefits had never been addressed. This Court ordered the worker’s compensation court on remand to address the evidence concerning the claimant’s injuries and disabilities. At no time did this Court remand for consideration of or additional evidence pertaining to TeamWorks’ liability. Thus, we find that the issues raised in the third and fourth assignments of error are beyond the scope of the remand instructions and not properly before us in this proceeding.

The final two assignments of error can also be addressed together. In its fifth assignment of error, TeamWorks asserts that the worker’s compensation court erred when it found there was no reasonable basis for TeamWorks to controvert Mr. Manning’s entitlement to worker’s compensation benefits. In its sixth assignment of error, TeamWorks contends that the worker’s compensation court erred when it found that the claimant was entitled to penalties and attorney fees from TeamWorks.

After the initial trial in this matter, the worker’s compensation judge dismissed both Caro and TeamWorks from this case. In the first appeal, Mr. Manning argued that the worker’s compensation court erred in failing to assess penalties and attorney fees against Caro for its termination of medical benefits and nonpayment of medical bills, pursuant to LSA-R.S. 23:1201. On remand, the worker’s compensation court was instructed to address the assessment of penalties and attorney’s fees against Caro, not Team-Works. Thus, it was beyond the scope 110of the instructions on remand for the worker’s compensation court to address whether TeamWorks reasonably controverted Mr. Manning’s claim and to specifically assess penalties and attorney fees against TeamWorks. Accordingly, we reverse and vacate the order of penalties and attorney’s fees against TeamWorks.

DECREE

For the foregoing reasons, we affirm the ruling of the worker’s compensation court finding TeamWorks solidarily liable for the claimant’s benefits, because this issue has been previously addressed and decided. We reverse and vacate the order of penalties and attorney fees against TeamWorks, because this assessment is beyond the scope of the issues to be addressed on remand.

AFFIRMED IN PART; REVERSED IN PART.

      . A thorough recitation of the facts and procedural history prior to the first appeal is set forth in this Court’s opinion in Manning v. PFG-Caro Foods, 10-1014 (La.App. 5 Cir. 6/14/11), 71 So.3d 981.

      . After the first day of testimony, the trial recessed until a later date to allow for marshaling of other evidence and for counsel to submit memoranda pertaining to Caro's exception of prescription. On March 17, 2010, the worker’s compensation judge issued a judgment denying Caro’s exception of prescription. The judgment also dismissed Travelers from the lawsuit pursuant to Travelers' Motion for Summary Judgment.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    Nicolle Dugas WEAVER v. Ryan Joseph WEAVER.
    No. 12-CA-238.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Allison K. Nestor, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Michael A. Rosenblatt, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

12Plaintiff/appeIlant, Nicolle Dugas Weaver (“Mrs. Weaver”), appeals a judgment of the district court denying her “Rule For Contempt Accumulated Child Support, To Make Past Due Support Exec-utory; To Increase Support Obligation, For An Income Assignment Order And For Attorney’s Fees And Costs.”

Mrs. Weaver and defendant/appellee, Ryan Joseph Weaver (“Mr. Weaver”), were divorced in 2005. Via two consent judgments, the parents were awarded joint custody of the two minor children with Mrs. Weaver designated as the domiciliary custodial parent. Child support was ordered to be paid by Mr. Weaver in the amount of $500 per month, retroactive to December 2004. Mr. Weaver was also ordered to pay Mrs. Weaver $800 every two weeks until arrearages of $2,500 had been satisfied.

In 2007, Mrs. Weaver filed a rule for contempt for failure to pay support, garnishment, income assignment, attorney’s fees, and other issues. Generally, Mrs. Weaver contended that Mr. Weaver had not paid child support in a timely fashion, and, at the time of the petition, he was in arrears in the amount of $1,000. | ¡¡She alleged that Mr. Weaver was in both civil and criminal contempt of court and asserted he should be punished under La. R.S. 13:4611, R.S. 9:315.32, and R.S. 9:315.36. for “his pattern of nonpayment of child support.” She additionally requested an increase in child support. Another consent judgment was entered into, evidenced in the record by the court minutes as dated January 30, 2008. The parties failed to file the written consent judgment; therefore, the terms of the 2008 judgment were not reduced to writing or signed by the trial court until July 15, 2011. However, according to the minute entry in 2008, Mr. Weaver was ordered, among other things, to pay $700 per month support, in increments of $350 on the first and fifteenth of each month “through an income assignment order through his employer.” Until the income assignment was in place, Mr. Weaver was to pay support directly to Mrs. Weaver. Arrearages were set in the amount of $100 to be paid within fourteen days of the judgment. Mr. Weaver was ordered to pay half of the children’s uncovered medical bills within thirty days of written notice sent by Mrs. Weaver. Mr. Weaver was ordered to provide proof of income, tax returns, and employer information to Mrs. Weaver’s counsel for purposes of the income assignment order. Contempt proceedings were waived upon compliance with the terms of the judgment.

On June 24, 2011, Mrs. Weaver filed the Rule at issue in the present appeal, urging that Mr. Weaver had not complied with the terms of either the 2005 or the 2008 judgments. She alleged that Mr. Weaver had not paid $1,000 of past due support due for September and October of 2007; that the support order of $500 per month due for November and December of 2007, and January of 2008, was not paid. (In a later paragraph, she stated that the $500 payments were not made for September 2007 through January 2008.) Mrs. Weaver further averred that the support award of $700 per month was never paid from February 2008 through |4October 2009 and that Mr. Weaver has paid the support due from November 2009 to the date of the petition, but such payments were inconsistent and untimely. Mrs. Weaver contended that Mr. Weaver never provided his income tax returns for 2006-2007, never provided his employer information, and never split the uncovered medical expenses, all as had been ordered in the previous consent judgments. She urged that Mr. Weaver was in violation of La. R.S. 14:74, criminal neglect of family, and requested the court impose a prison sentence. She further urged that Mr. Weaver was in civil contempt of court and asked for attorney’s fees, expenses, and penalties, including fíne and imprisonment, under La. R.S. 13:4611; for suspension of his driver’s license under R.S. 9:315.32 and 9:315.36; for judicial interest; for income assignment and garnishment; to make past due support executory; for an increase in support, and, again, prayed that Mr. Weaver receive a jail sentence.

The rule came for hearing on August 18 and September 23, 2011. At the hearing, Mr. Weaver testified that he regularly paid child support from January 2008 through the present date. In addition to his employment as a police officer in the town of Springfield, Louisiana, Mr. Weaver works an off-duty detail at a bingo hall, beginning in January of 2011, for which he is sometimes paid in cash. The job pays $120 about twice per month. If paid by check, the bingo hall cashes it. In 2010, Mr. Weaver had a savings account in addition to his checking account, but he closed the savings account in April 2011. At the time of the hearing, Mr. Weaver was living with Desiree Chauvin, the owner of R & D Sales, who is also named on his checking account; however, although Mr. Weaver occasionally helped out at the company, he has no financial interest in it. During periods of unemployment, he turned to his mother for help so that he could pay the support.

|¡;Mr. Weaver testified that, for the month of February 2008, he paid support of $700 plus $100, in cash, which had been ordered by the court in the earlier consent judgment. He then testified that he paid $700 per month from March 2008 through December 2009, at her request in cash, although the payments were not made on the first and fifteenth, but, instead, when he picked up or dropped off the children. Bank statements for March 2010 were produced indicating the deposit of some payroll checks from Wal-Mart, as well as some cash withdrawals totaling $380, which Mr. Weaver testified were for support. In April, he took out $304 for purposes of support. Later, on the advice of his fiancée, Desiree Chauvin, he began paying support with a check. In March of 2010, Mrs. Weaver asked him to add $10 per week to the check because her bills had gone up. At some point, Mr. Weaver applied to join the military, and there was a sign-on bonus had he been accepted. However, he denied telling Mrs. Weaver that he was going to pay his support ar-rearages with it. Mr. Weaver’s grandmother died, but he did not expect an inheritance from her and did not receive one. He further testified that he did produce his employment information to Mrs. Weaver’s attorney as ordered, for purposes of garnishment proceedings; however, that garnishment was never effected. He also paid medical expenses presented by Mrs. Weaver, and he has paid for one daughter’s eye exam and prescription glasses. He has now enrolled his daughters on his insurance at work.

Mrs. Weaver testified that Mr. Weaver told her she would be receiving support payments from the garnishment proceedings. Mr. Weaver did not pay any support from February 2008 through January 2009. In October of 2009, Mr. Weaver became employed by the police department and started making payments soon thereafter. She then testified that he did give her cash consisting of $60 to $100 “four to five times” in June and July of 2009, when he was at Wal-Mart. In R2008, after Mr. Weaver lost his job in Pearl River, he never paid her. He promised her any inheritance he would receive from his grandmother, and also he told her she would receive the $10,000 sign-up bonus he would earn if he was accepted in the military. Mr. Weaver also told her he was the owner of R & D Sales, which he said stood for “Ryan and Desiree,” and asked her to bring business cards to her job to help him sell. Everything was in Mr. Weaver’s name until Mrs. Weaver told him she was taking him back to court. Mr. Weaver also told her he was a seller for Louisiana Cedar Shack, which makes wooden boxes, and that he received income from that. He started paying an extra $20 per month in March 2010, toward the ar-rearages he owed, but Mrs. Weaver did not ask him to do so.

Mr. Weaver has not paid his share of uncovered medical bills, except for $100. Mrs. Weaver did not present Mr. Weaver with medical payments she made. Mrs. Weaver became ineligible for Medicaid, and the children were placed on the Louisiana CHIP plan. Her daughter has a patch, not covered by insurance, for which she pays $50 per month at the office. She never sent Mr. Weaver her monthly statement, because he would not pay it.

According to Mrs. Weaver, the consent judgment was incorrect, because the ar-rearages at the time were $1,000, not $100. On cross-examination, Mrs. Weaver agreed that, in her answers to interrogatories, between February 2008 and November 2009 she received, at most, eight payments of between $60 and $100. She has received $700 per month from November 2009 through the present, although the payments are never on time. She agreed that she consented to let him pay her whenever they exchanged the children. She further agreed she did not request him to make medical payments in writing and then later stated she did send notice to Mr. Weaver of the monthly CHIP obligation, because she wanted him to cover them on his insurance at work. Mrs. Weaver did not continue to take him to 17court when he failed to pay because she could not afford an attorney each time and because he was unemployed. She admitted she had no evidence that he did not pay her.

JoEllen Weaver testified that she is Mr. Weaver’s mother. He lived with her from 2008 to 2009, and she gave him use of a bank account. He had the ATM card. She observed Mr. Weaver paying support on a few occasions when Mrs. Weaver brought the children. JoEllen Weaver did not think any payments had been missed, and Mrs. Weaver did not complain of such to her. JoEllen Weaver paid the support in the amount of $850 about three times. She agreed that, had her son been accepted into the military, he would have placed the money into an account for payment of support. She knows nothing about R & D Sales or Louisiana Cedar Shack.

Desiree Chauvin testified that she is engaged to Mr. Weaver. Mr. Weaver has nothing to do with R & D Sales except that he has helped her occasionally. There was never an account with the company, which is now defunct, with Mr. Weaver. The company was a seller for manufactured carports and buildings, but Desiree Chau-vin closed it down. Coast-To-Coast was a third party company that made the buildings sold by R & D. Although it was her business, and in her name, she gave Mr. Weaver permission to sign on her behalf because she was not able to be present at the time the arrangement was set up with Coast-To-Coast. Mr. Weaver also set up an internet site for Louisiana Cedar Shack but did not make money from that. Desiree Chauvin had previously had a good relationship with Mrs. Weaver.

After taking the matter under advisement, the trial court found a number of inconsistencies between the petition for contempt, the answers to interrogatories submitted by the parties, and the testimony, “most of [which] were acknowledged |sby Mrs. Weaver, who maintained that her in court testimony was the correct account .... ” In light of the inconsistencies, the court opined that Mrs. Weaver had failed to carry her burden of proof and . denied the rule for contempt.

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court constitutes constructive contempt of court. La. C.C.P. art. 224. The burden of proof for civil contempt is by a preponderance of the evidence and appellate review is by the manifestly erroneous standard. To find a person guilty of constructive contempt, it is necessary to find that he violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Proceedings for contempt must be strictly construed, and the law does not favor extending their scope.

Mrs. Weaver argues on appeal that the court erred in finding her testimony inconsistent with the allegations in her Rule, and she seeks to reconcile that testimony with the pleadings. Fundamentally, however, the appeal presents issues that, overall, address themselves to the apparent credibility finding of the trial court.

Mrs. Weaver testified as to the payments she did and did not receive from Mr. Weaver. Mr. Weaver testified that he made all payments due. Mrs. Weaver argued that he could not have done so, urging his periodic un-employment, his method of making ATM withdrawals and the timing of his payments, stating in brief that his explanations “appear” or are “seemingly” false. She then argues that |9he had business arrangements and access to other funds with his fiancée. Mrs. Weaver details certain perceived inconsistencies in the testimony and answers to interrogatories.

However, the trial court found inconsistencies in Mrs. Weaver’s own testimony. The court noted that she testified she received some payments in June and July of 2009, which contradicted her allegation that she had received no payments whatsoever. We note inconsistencies within her testimony on that issue, wherein she stated she received four or five payments, and then stated it was no more than eight. Her testimony on whether and how she had notified Mr. Weaver of the children’s medical expenses was confusing. Although there were also some inconsistencies with Mr. Weaver’s testimony, after reviewing the entire record, we cannot state that, insofar as the judgment was based on a credibility finding, such finding was manifestly erroneous.

The evidence admitted at trial, which consisted of answers to interrogatories, some paycheck stubs, and a few checking account records, was inconclusive in proving that Mr. Weaver had not complied with the support order. In the end, Mrs. Weaver admitted she had no evidence of non-payment. Therefore, the trial court correctly determined that Mrs. Weaver failed to carry her burden of proof by a preponderance of the evidence.

For the foregoing reasons, the judgment denying the rule for contempt is affirmed.

AFFIRMED

      . In re Jones, 10-66 (La.App. 5 Cir.11/9/10), 54 So.3d 54, 67, writ not considered sub nom. In re Interdiction of Jones, 10-2738 (La.2/4/11), 56 So.3d 979.

      . In re Jones, supra (citing Brunet v. Magnolia Quarterboats, Inc., 97-187 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, writ denied, 98-0990 (La.5/29/98), 720 So.2d 343, cert. denied, Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999)). (Citations omitted.)

      . Id.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana in the Interest of M.L.W. a/k/a M.M.
    Nos. 12-CA-331, 12-CA-332, 12-CA-333.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Sherry A. Watters, Katherine M. Dowl-ing, Attorneys at Law, Department of Children and Family Services, New Orleans, LA, for Plaintiff/Appellant.
    Cynthia D. Samuel, Attorney at Law, New Orleans, LA, for Parent/App ellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

| .¿This is an appeal by the Louisiana Department of Children and Family Services (DCFS) from a judgment ordering it to pay the fees of a duly appointed curator in a voluntary surrender proceeding. For the following reasons, we affirm the judgment and award an additional $750.00 in attorney fees for work performed on this appeal.

FACTS AND PROCEDURAL HISTORY

The pertinent facts are that DCFS had been conducting a child in need of care proceeding bearing No. 10-CC-98 “A” in the Juvenile Court of Jefferson Parish. While that proceeding was ongoing, the child’s mother executed a voluntary surrender of parental rights form. At that point, DCFS filed in the juvenile court a “Motion and Order to File Mother’s Act of Surrender, Notify Non-Surrendering Father and Set Review.” A new case number was given to this proceeding, ie., 11-PP-06 “A.” In its motion, DCFS requested that a curator be appointed for the absent father pursuant to La.Ch.C. art. 1136. In response, the Rcourt appointed attorney Cynthia Samuel. In addition, DCFS instituted a third proceeding, No. ll-TP-17 “A,” to terminate the parental rights of the father.

Ms. Samuel could not locate the father and filed with the clerk of court her affidavit with supporting documentation under case No. ll-PP-06 “A.” She then sought payment of her curator’s fee and related expenses from DCFS. DCFS refused to pay, and referred her to the Jefferson Parish Public Defenders Office. That latter office also declined to pay the curator’s fee. Ms. Samuel then urged a motion in the juvenile court seeking payment of the fee from DCFS. She also sought additional attorney fees for the time spent in pursuing payment of the original curator’s fee. After a hearing, the juvenile court judge ordered DCFS to pay the curator’s fee, as well as the additional attorney fees incurred for litigating the issue of payment of the fee. This appeal followed.

LAW AND ANALYSIS

Article 1136, under which Ms. Samuel was appointed, is applicable when an alleged or adjudicated father’s whereabouts are unknown. In this circumstance, a curator must be appointed upon whom service of the notice of the filing of the surrender shall be made. Thereafter, the curator shall make a diligent effort to locate the father. If the father is located, notice of the surrender is to be given to him by the curator; if the father is not located, the curator shall file an affidavit detailing the efforts made to locate the father, including but not limited to proof of publication seeking his whereabouts. In either case, the curator’s duties do not include any additional representation of the father in the proceedings. ^Furthermore, indigency is of no consequence with regard to the curator’s duties. Additionally, a curator’s duties are strictly limited to those conferred by the law authorizing her appointment, and cannot be extended to matters not within that law. Johnson v. Jones, 170 La. 760, 129 So. 155 (La.1930).

As a general rule, the plaintiff is liable for the costs of a curator. Pursuant to La. C.C P. art. 5096, “the court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but which shall be taxed as costs of court.” The language of the statute is mandatory, ie., “the court shall allow” the attorney a fee. The only discretion permitted to the court is the determination of the reasonableness of the fee. Moreover, where a curator has been forced to litigate payment of a fee, the courts have allowed collection of an additional fee for that work as well. Lovett v. Brown, 2003-1749 (La.App. 3 Cir. 6/30/04), 879 So.2d 406; State, DOTD v. Falcone, 487 So.2d 588 (La.App. 4 Cir.1986). In the present case, we find that the juvenile court properly imposed the curator’s fee, as well as an additional fee for work done to collect that fee, on DCFS, the plaintiff in the litigation.

At the hearing in the juvenile court, DCFS did not contest the reasonableness of the fee sought by the curator. Instead, it only argued that under the statutory regime which went into effect in 2010 regarding payment of attorneys appointed to represent children and indigent parents, all such payments are to be made through the various parish public defenders offices, rather than through DCFS as under the prior statutes. It cites La.Ch.C. arts. 571-575, La. R.S. 15:185.1-185.9, La. R.S. 46:460.21(A)(B) & (G), and Supreme Court General Administrative Rule, Part G, Section 9, as well as a December 18, 2009 Memorandum from Louisiana Supreme Court Chief Justice Catherine Kimball, in support of this proposition.

Un 2007 the Louisiana Legislature found that society has a responsibility to provide legal services to children and indigent parents in “child abuse and neglect cases.” La.Ch.C. art. 571. La.Ch.C. art. 572(1) states:

“Child abuse and neglect case” means a child protection proceeding conducted by a court exercising juvenile jurisdiction involving the abuse or neglect of children as provided specifically in Titles VI and X of the Louisiana Children’s Code.

Similarly, La. R.S. 15:185.1 states as its purpose the representation of children and indigent parents in child abuse and neglect cases, and La. R.S. 15:185.2 defines “child abuse and neglect cases” as those “provided specifically in Titles VI and X” of the Children’s Code. Chief Justice Kimball’s Memorandum concerning the new system of payment addresses “child abuse and neglect” cases, and refers several times to the appointment of attorneys for “indigent parents.” It concludes by stating “please be assured that this new system will be rigorously monitored and held accountable to provide qualified legal representation for these children and their indigent parents.” (emphasis added). Part G, Section 9 of the Louisiana Supreme Court Rules also applies to attorneys “who represent children and their indigent parents in Child in Need of Care and Termination of Parental Rights proceedings ...” (i.e., Titles VI and X of the Children’s Code)(emphasis added). The only statute which might lend support to DCFS’s position is La. R.S. 46:460.21. That statute concerns payment of fees during the period in which the various entities involved were confect-ing a general reorganization of the procedures through which appointed attorneys were to be paid. Although there are references in that statute to curators appointed under La.Ch.C. art. 1136, all of the other statutes relating to the reorganization refer specifically to cases arising under Titles VI and X.

IfiAs pointed out above, La.Ch.C. art. 1136 is found in Title XI. It does not involve an inquiry as to indigence, nor does it require the curator to “represent” the absentee. Johnson v. Jones, supra. It only requires the curator to search for the absentee and, if he is located, notify him of the proceedings against him, and additionally to notify the court of the results of the curator’s efforts. In this Court’s opinion, there is insufficient explicitness in these statutes to evidence a legislative determination that Article 1136 curators be treated differently than as required by C.C.P. art. 5096. We therefore affirm the ruling of the juvenile court that DCFS is liable for payment of the curator fee, as well as the cost of litigation involved in the curator having to litigate her claim. We also find that the curator has had to expend additional effort in defending against this appeal and therefore award her $750.00 in attorney fees for work performed on this appeal.

DCFS argues that there was no determination made as to the reasonableness of the fees sought. As we note above, that issue was not raised in the juvenile court, and therefore it may not be raised for the first time on appeal. Azreme, Corp. v. Esquire Title Corporation, 98-1179 (La.App. 5 Cir. 3/30/99), 731 So.2d 422.

For the foregoing reasons, the decision of the juvenile court is hereby affirmed and appellant is awarded an additional $750.00 in attorney fees for work performed on this appeal.

AFFIRMED; ATTORNEY FEES ON APPEAL AWARDED

      . DCFS eventually determined that the father here was neither an “alleged" nor an “adjudicated father" and therefore that its action under Title XI of the Children’s Code, in which Ms. Samuel had been appointed curator, did not lie. Instead it chose to pursue a termination of parental rights proceeding under Title X. Although a minute entry and the judgment in this latter proceeding (No. ll-TP-17 "A”) show Ms. Samuel as curator/attorney for the father, the Order of Appointment shows that Jennifer Womble was appointed as "curator ad hoc and legal representative” for the father. There is no Order of Appointment of Ms. Samuel in this proceeding. Whatever the status of Ms. Samuel in case No. ll-TP-17 “A,” she did not submit a bill for any services that she may have provided in that matter.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. LAURICELLA LAND COMPANY, L.L.C., et al.
    No. 12-CA-384.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      E. John Litchfield, Carey B. Daste, Attorneys at Law, New Orleans, LA, For Plaintiff/Appellant.
    Gregory G. D’Angelo, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Debra C. Eldredge, Attorney at Law, Office of the General Counsel, Louisiana Dept, of Transportation and Development, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

12AppelIant, Jon Gegenheimer, in his official capacity as Clerk of Court of the 24th Judicial District Court in and for the Parish of Jefferson, has appealed a trial court judgment ordering that funds deposited with his office by appellee as court costs be returned to appellee. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Appellee in this proceeding, the State of Louisiana, through the Department of Transportation and Development (“DOTD”) filed suit against Lauricella Land Company, L.L.C. (“Lauricella”) and The Pep Boys — Manny, Moe & Jack, Inc. (“Pep Boys”) to expropriate land pursuant to LSA-R.S. 48:451, et seq., for the purpose of widening the approach to the Huey P. Long Bridge in Jefferson Parish. The Order of Expropriation was signed by the trial court on March 10, 2008. Lauricella and Pep Boys proceeded to withdraw funds from the registry of the court pursuant to this Order. On November 19, 2008, Lauricella filed an Answer and Reconven-tional Demand claiming that the amount paid by DOTD was ^insufficient to fully compensate it for the full extent of its loss for the taking. The matter proceeded to a jury trial and a verdict was rendered in favor of Lauricella. DOTD appealed this verdict, which was affirmed by this Court. State, Dept. of Transp. and Dev. v. Lauricella Land, L.L.C., 10-790 (La.App. 5 Cir. 4/28/11), 65 So.3d 712.

After the verdict in favor of Lauricella was affirmed, Mr. Gegenheimer, in his official capacity as Clerk of Court of the 24th Judicial District Court (“Clerk”), refused to allow Lauricella to withdraw the full amount of funds on deposit to satisfy the judgment; rather, he attempted to retain the amount of court costs incurred by DOTD on behalf of the state during the pendency of the proceeding. By agreement with the Clerk, DOTD deposited additional funds with the Clerk in an amount equal to the court costs it incurred on behalf of the state in this matter ($4,559.94). This allowed Lauricella to withdraw the full amount awarded to it under the judgment that had been rendered in its favor.

DOTD then filed a motion requesting that a rule nisi be held ordering the Clerk to show cause why DOTD should not be refunded the $4,559.94 it deposited as court costs it incurred on behalf of the state pursuant to the agreement it had reached with the Clerk in this matter, plus the initial filing fee of $421.65 the Clerk charged it in this matter, which DOTD asserts that it had inadvertently paid. In its motion, DOTD asserted that it is an entity of the state, and as such, is exempt from assessment and payment of its own costs pursuant to LSA-R.S. 13:4521. In response to this motion, the trial court ordered the Clerk to show cause why DOTD should not be refunded all costs deposited in this matter incurred by DOTD on behalf of the state.

14At the hearing on the matter, DOTD argued that pursuant to the explicit wording of LSA-R.S. 13:4521, the court does not have authority to tax the state for its own costs, and correspondingly, the Clerk does not have authority to collect the costs incurred by the state. In response, the Clerk argued that the case law holds that state agencies are no longer immune from paying costs; rather, costs are temporarily deferred until the conclusion of the litigation. At the conclusion of the hearing, the trial court ruled in favor of DOTD, ordering the Clerk to refund said deposits of costs made by DOTD, prompting this appeal by the Clerk.

ASSIGNMENTS OF ERROR

In this appeal, the Clerk assigns the following errors, to-wit:

The trial court erred in finding that DOTD is not required to pay the court costs incurred by it in connection with this litigation.
The trial court further erred in ordering the Clerk of Court to return to DOTD the amount DOTD deposited in the registry of the court representing payment of court costs incurred by DOTD, and refund the additional costs incurred and paid by DOTD.

The Clerk argues that LSA-R.S. 13:4521 provides for the payment of court costs by the state, state agencies, and other governmental entities. Section (A)(1) of this statute provides as follows:

Except as provided in R.S. 13:5112, R.S. 19:15 and 116, and R.S. 48:451.3, and as hereinafter provided, neither the state, nor any parish, municipality, nor other political subdivision, public board, or commission, nor any officer or employee of any such governmental entity when acting within the scope and authority of such employment or when discharging his official duties shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state, or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state, including particularly but not exclusively those courts in the parish of Orleans and the city of New Orleans. This Section shall also apply to the Louisiana Insurance Guaranty Association and the Louisiana Life and Health Insurance Guaranty Association in any judicial proceeding instituted by or against them. This Section shall also apply to the policyholder or other insured of an insolvent insurer in any judicial proceeding instituted by or against the | .^Louisiana Insurance Guaranty Association and the Louisiana Life and Health Insurance Guaranty Association. This Section shall also apply to employees or agents of the state if they are named as defendants in a suit arising out of the course and scope of their employment or agency. Costs which are temporarily deferred pursuant to this Section cannot be shifted to opposing parties during the pendency of such deferment.

The Clerk contends that this statute allows for the state to prosecute or defend an action in court without the prepayment of court costs as they accrue, but the payment of these costs is only temporarily deferred until the end of the litigation, at which time the state must pay the costs incurred by it unless these costs have been assessed to another party. In support of this argument, the Clerk explains that when LSA-R.S. 13:4521 was amended in 1992, to include the language: “Costs which are temporarily deferred pursuant to this Section cannot be shifted to opposing parties during the pendency of such deferment”, the legislature intended that the state’s own costs were merely deferred until the end of the litigation and not waived. The Clerk further explains that the 1993 amendment to this statute included the Louisiana Insurance Guarantee Association (“LIGA”) and the Louisiana Life and Health Insurance Guaranty Association (“LLHIGA”) as entities which are exempt from the prepayment of court costs. The Clerk concludes that, based on the timing of these two amendments (ie., since this amendment to LSA-R.S. 13:4521(A)(1) to include LIGA and LLHIGA came after the above-quoted 1992 amendment to said statute), the temporary deferment of costs applies not only to LIGA or LLHIGA, but also to all costs incurred by the state in the litigation, including its own costs.

DOTD notes that as passed in 1974, Section 10(A) of Article 12 of the Louisiana Constitution read: “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” DOTD acknowledges that pursuant to this repeal of sovereign | (Immunity of the state, the courts have included the state’s own court costs as items for which the state could be held liable. DOTD contends, however, that the 1995 amendment to Section 10 of Article 12 of the Louisiana Constitution restored the legislature’s authority to limit the waiver of sovereign immunity of the state. This amendment added the following provision to Paragraph (C) to Section 10 of Article 12, in pertinent part, to-wit:

Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages ....

DOTD argues that under this amended constitutional provision, the legislature can by statute limit the extent of the liability of the state, a state agency, or a political subdivision of the state in all eases and for all types of liability, including court costs. DOTD then argues that the legislature did just that when in 1995 it passed a verbatim reenactment of LSA-R.S. 13:5112, which provides, in pertinent part:

(A) In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party’s court costs under R.S. 13:4533 and ■ other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

DOTD contends that the verbatim reenactment of LSA-R.S. 13:5112 is a solemn expression by the legislature that courts are constrained to tax costs against the state only in the manner and to the extent provided in LSA-R.S. 13:5112, and no further.

|7The Clerk contends that there is no temporary deferment of costs under LSA-R.S. 13:5112 because those costs are paid as they are incurred by the plaintiff (absent a pauper plaintiff) in a proceeding against the state. If the trial court determines that the state should be liable for the successful plaintiffs costs, the court can assess costs of the plaintiff against the state. DOTD responds that to interpret the deferral clause of LSA-R.S. 13:4521(A)(1) as referring to the state’s own costs will render the deferral clause meaningless.

ANALYSIS

The issue to be resolved in this case is whether the state, its agencies, or political subdivisions of the state can be made to pay its own incurred costs in a proceeding by or against it. A review of the legislative enactments and case law on this issue is instructive.

The Louisiana Constitution of 1974 provides that “[n] either the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” La. Const, art. 12, § 10(A). In Segura v. Louisiana Architects Selection Board, 362 So.2d 498, 499 (La.1978), the Supreme Court held that court costs are part of the “liability’ to which a party is cast in litigation.

Prior to its amendment in 1992, LSA-R.S. 13:4521(A) provided:

Except as provided in R.S. 13:5112, R.S. 19:12.1, R.S. 19:113.1, and R.S. 48:451.3, and as hereinafter provided, neither the state nor any parish, municipality, or other political subdivision, public board, or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the parish |8of Orleans and the city of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.

The plain language of this 1991 version of LSA-R.S. 13:4521(A) granted the state, its agencies, and political subdivisions of the state immunity from all court costs (with the exceptions provided for in the referenced statutes of 13:5112, 19:12.1, 19:113.1 and 48:451.3). In finding that the state, its agencies, and political subdivisions of the state could be liable for court costs, the Segura court reasoned that the Louisiana Constitution of 1974 superseded the immunity afforded the state, its agencies, and political subdivisions of the state by statute.

In June of 1992, the Louisiana legislature amended LSA-R.S. 13:4521(A) to add: “Costs which are temporarily deferred pursuant to this Section cannot be shifted to opposing parties during the pendency of such deferment.” In LIGA v. Gegenheimer, 93-3021 (La.4/21/94), 636 So.2d 209, the Supreme Court analyzed and interpreted this amendment to LSA-R.S. 13:4521(A). In LIGA, the Supreme Court stated that the “state, state agencies, and political subdivisions are no longer immune from payment of court costs.” The Court found that, after its decision in Segura, LSA-R.S. 13:4521(A) was amended to provide that “court costs due from the state and state agencies are ‘temporarily deferred.’ ” Again, in 1995, in its decision in Prejean v. Dixie Lloyds Ins. Co., 94-2979 (La.5/22/95), 655 So.2d 303, 307, modified on other grounds on reh’g, 94-2979 (La.9/15/95), 660 So.2d 836, the Supreme Court reiterated that “the state and state agencies are ‘exempt from the prepayment of court costs’ or have been given a ‘temporary deferment’ from the payment of court costs until a final judgment is rendered.” (Emphasis in original.) In so holding, the Court acknowledged that LIGA is responsible for its own court costs under. Title 22 of the Revised Statutes. However, the Court explained that pursuant to the 1993 amendment to 13:4521(A), the same | exemption granted to the state, its agencies, and political subdivisions of the state, ie., temporary deferment of court costs as they accrue, was then extended to LIGA by statute, stating: “[t]he temporary deferment afforded by La. R.S. 13:4521(A) was made applicable to LIGA in 1993.” 655 So.2d at 307.

In 1995, the Louisiana Constitution was amended to provide that the “legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages.” La. Const, art. 12, § 10(C). This 1995 constitutional amendment was approved by the legislature on June 16, 1995. On June 27, 1995, following its approval of the constitutional amendment and subsequent to the Supreme Court’s decisions in LIGA and Prejean, the legislature reenacted LSA-R.S. 13:4521 and the deferral language remained unchanged as written in the statute.

The legislature is • presumed to have enacted an article or statute in view of the prior law involving the same subject matter. and court decisions interpreting those articles or statutes. See Red Stick Studio Dev., L.L.C. v. State ex rel. Dept. of Econ. Dev., 10-0193 (La.1/19/11), 56 So.3d 181, 186. Accordingly, the legislature is presumed to have knowledge of the preceding Supreme Court decisions interpreting LSA-R.S. 13:4521 prior to the statute’s reenactment in June of 1995. When the legislature reenacted this statute, the legislature did not retract nor amend the deferral language contained in La. R.S. 13:4521(A), and thus, did not intend to change the law as interpreted by the Supreme Court in LIGA and Prejean.

| ^Additionally, in Jefferson Parish Hosp. Serv. Dist. No 2. v. Gegenheimer, 06-598 (La.App. 5 Cir. 11/28/06), 947 So.2d 59, writ denied, 06-2830 (La.2/2/07), 948 So.2d 1081, this Court addressed a matter of “first impression for our consideration that involves the interpretation” of LSA-R.S. 13:4521. This Court specifically analyzed Section (A) of LSA-R.S. 13:4521 and found that “the last line of that section makes it clear that the exemption of payment of court costs is ‘temporarily deferred’ and ‘cannot be shifted to opposing parties during the pendency of such deferment.’ ” Thus, this Court has also interpreted LSA-R.S. 13:4521(A) to extend an exemption to the state, its agencies, and political subdivisions of the state of prepayment of court costs. This interpretation of LSA-R.S. 13:4521(A) allows no distinction between the state, its agencies, or political subdivisions of the state as a plaintiff or as a defendant. Rather, the statute specifically states that the exemption is to the state, its agencies, and political subdivisions of the state in any action “instituted or prosecuted by or against” the state. Accordingly, it is our opinion that, because LSA-R.S. 13:4521(A) only provides for an exemption of prepayment to the state, its agencies, and political subdivisions of the state of its own incurred court costs, the state, its agencies, and political subdivisions of the state can be made to pay its own incurred costs in a proceeding by or against it.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review is hereby reversed.

REVERSED

      . Pep Boys filed a similar claim, which was settled with DOTD.

      . The 1978 version of LSA-R.S. 13:4521 discussed in Segura did not contain the deferral language disputed in the present case. Segu-ra simply provides the foundation to show that court costs are a "liability'' as contemplated by the Louisiana Constitution art. 12, § 10(A).

      . This constitutional amendment was approved by the electors of this state at the election held on October 21, 1995. The governor proclaimed the adoption of the amendment on November 2, 1995. The effective date of the amendment is November 23, 1995.

      . The Supreme Court granted a rehearing in the Prejean case on September 15, 1995. The original Prejean decision was reviewed and modified by the Court on different grounds. The effect, if any, of the constitutional amendment and reenactment of LSA-R.S. 13:4521 was not addressed by the Court.


text:
    Donald K. GORDON, Jr. v. TURNER INDUSTRIES GROUP, LLC.
    No. 12-CA-388.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Anthony L. Marinaro, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Charles J. Duhe, Jr., Heidel A. Schneider, Attorneys at Law, Baton Rouge, LA, for DefendanVAppellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

laThis is an appeal from a determination by the Office of Workers’ Compensation (OWC) made in a disputed workers’ compensation claim. For the following reasons we remand the matter for further proceedings consistent with this opinion.

The basic facts are that Donald K. Gordon, Jr. suffered a stroke while in the workplace, and alleged that this stroke was work-related and rendered him disabled. The evidence showed that claimant was found on the ground unable to speak and unable to move. He was taken to the nurse’s station on the plant site, where he remained for over four hours. Claimant testified that he was informed by the duty nurses that he had food poisoning. Dr. John L. Freiberg, Jr., a vascular neurologist who eventually treated claimant, testified that the symptoms when he presented to the nurse’s station should have been recognized as indicative of a stroke, and further, had claimant received immediate treatment for a stroke at that time, his eventual outcome might well have been more favorable. All of the above evidence was received without objection from the employer.

|sThe employer argues that this issue was not raised by claimant prior to trial. However, when evidence is introduced at trial without objection, the pleadings are considered as enlarged to include any issues raised by that evidence. La. C.C.P. art. 1154; Greengrove Missionary Baptist Church v. Cox, 42,418 (La.App. 2 Cir. 9/19/07), 966 So.2d 707, writ denied, 2007-2064 (La.12/14/07), 970 So.2d 537.

After a hearing, the OWC judge ruled that the stroke was not work related. However, there is nothing in the record to indicate that she considered, and she made no findings as to, whether the four hour delay at the nurse’s station without company personnel seeking any medical treatment for claimant, who may have himself been incapacitated, contributed to his resulting condition. In this circumstance, this court is unable to review factual issues in dispute which the OWC judge did not resolve. We therefore remand this matter to the OWC for consideration and ruling on the issues raised by claimant regarding the delay in treatment.

REMANDED


author: ROBERTA. CHAISSON, Judge.

text:
    Carlos FLORES v. ANGELLE APARTMENTS COMPANY.
    No. 12-CA-401.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Joseph J. Schüleci, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Nathan L. Schrantz, Attorney at Law, Gulfport, MS, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

| aThis is an appeal by Angelle Apartments Company from a judgment awarding Carlos Flores workers’ compensation benefits, as well as attorney fees and penalties. For the following reasons, we affirm the award of benefits, but reverse the award of attorney fees and penalties.

FACTS AND PROCEDURAL HISTORY

Carlos Flores was employed in 2007 as an all-around maintenance man by Angelle Apartments Company. He was paid $100 per day, and was given a reduced rental rate on an apartment in the complex. On January 15, 2010, Mr. Flores reported to his supervisor, Michael Kraft, that he had strained his back while unloading bags of cement from a truck. Four days later, because Mr. Flores was still complaining of back pain, Mr. Kraft took him to the East Jefferson After Hours clinic. After an examination, no work restrictions were placed on Mr. Flores by the doctor at the clinic. On January 29, 2010, Mr. Flores was seen at the Daughters of Charity medical center for his backache, but again no work restrictions were placed on him. This visit was never reported to the employer and |ano request for payment for these services was ever made on the employer by Mr. Flores or the facility. Mr. Flores was again seen at Daughters of Charity on March 24, 2010, apparently in regards to renewal of a nasal spray prescription. The records of this visit do not indicate any discussion of back problems.

Mr. Flores next visited Daughters of Charity on June 3, 2010, with complaints of “back pain radiating.” An examination revealed lower back tenderness on palpation of the left paraspinal region, but no tenderness in the lumbosacral spine was noted. The sensory exam was normal, as were the gait and stance, and reflexes. Based on this examination, the treating physician gave him a work restriction certificate stating “off work 1-2 weeks, no heavy lifting.” The certificate does not identify any particular condition or injury underlying the restrictions. A radiology report of June 4, 2010, indicates “mild degenerative changes at L5-S1. No acute abnormality.” The record of a follow-up office visit on June 10, 2010, indicates a history of “[ljower back pain radiating. Started suddenly lifting at work two weeks ago.” There was no report of an injury made to his employer in the two-week time frame indicated in this record. Mr. Flores notified the employer of his one- to two-week restriction and was told to go home. He did not report for work for two weeks, and when he returned he was told that there was no more work for him at the apartments.

Although Mr. Flores testified that he did not work for about eight to ten days immediately after the injury of January 15, 2010, the pay records of the apartment building show that he was paid $500 for each week in January of 2010. Those records also show that he was paid for a full week’s work for every week between January 8, 2010, and May 28, 2010, and was also paid $200 for the period of June 3-4, 2010, the last two days of his employment with Angelle Apartments.

14Aside from a one-day job, Mr. Flores did not work again until November of 2010, when he was employed by Boh Brothers on a construction job. In his application papers for the Boh Brothers job, he was asked if he had ever received medical treatment for any “back or neck injuries or problems,” and he checked “No.” His position on that job was described as “laborer,” and nothing in his personnel file indicates that he had any restrictions as to “light duty.” Between his dismissal by Angelle Apartments and his employment by Boh Brothers, there is no evidence of any work restrictions or disability ratings placed on him by any health care provider or anyone else. Also, his salary at Boh Brothers was higher than his salary at Angelle Apartments.

In January of 2011, Mr. Flores employed counsel to pursue this claim. On January 20, 2011, counsel sent him to Dr. Jerome Kurpel. Dr. Kurpel diagnosed Mr. Flores with a “history of a lower back injury accruing approximately a year ago with residual diffuse paralumbar muscle spasm, strain and myalgia.” Mr. Flores was treated with medication and conservative therapy. Dr. Kurpel also made a recommendation of “light duty.” Mr. Flores had monthly doctor visits with Dr. Kurpel through July of 2011, during which time the diagnosis and treatment was basically the same, with a continuing recommendation of “light duty.” Dr. Kurpel also recommended an MRI, but this procedure had not been scheduled as of the trial of this matter.

Based on the above evidence, the Office of Workers’ Compensation judge awarded claimant total disability benefits for the two weeks in June when he was off of work, supplemental earnings benefits from the time he left Angelle Apartments until he was employed by Boh Brothers, and medical expenses | f,occasioned by the accident of January 15, 2010. She also awarded $8,000 in attorney fees and $8,000 in penalties. This appeal followed.

LAW AND ANALYSIS

In Dean v. Southmark Construction, 03-1051 (La.7/6/04), 879 So.2d 112, 117, the court stated:

In worker’s (sic) compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the ‘manifest error-clearly wrong’ standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

In the present case, the employer does not dispute that Mr. Flores injured his back while unloading bags of cement on January 15, 2010. What it does dispute is whether that injury was disabling for purposes of workers’ compensation, and whether it reasonably controverted the claim so as to avoid the imposition of penalties and attorney fees.

Mr. Flores testified that from the time of the accident, until he left the job with Angelle Apartments, his back was hurting him. He said that he took over-the-counter pain medication and used a back brace to alleviate the pain. He further testified that after he left Angelle Apartments, he continued to experience discomfort, and still has ongoing pain. This continuing condition is attested to by the reports of Dr. Kurpel, his present treating physician. The employer offered no doctors’ reports or other evidence to 16refute Mr. Flores’ condition. Considering the record in its entirety, it is clear that a reasonable trier of fact could have found that Mr. Flores suffered a compen-sable injury which rendered him totally disabled for the two weeks in June of 2010, and entitled him to supplemental earnings benefits from that time until he was hired by Boh Brothers at an increased salary. It was equally reasonable to award him medical expenses for treatments related to the back injury. In this circumstance, we must affirm the awards of benefits and medical expenses.

The next issues are the awards of attorney fees and penalties. Under La. R.S. 23:1201(F)(2), no penalties and attorney fees are owing where the employer has reasonably contested the claim for benefits. Faulkner v. Better Services, Inc., 10-867 (La.App. 5 Cir. 5/24/11), 67 So.3d 646. Here, the employer knew of the injury on January 15, 2010, when it occurred, and took Mr. Flores to the doctor a few days after the incident when he continued to complain of pain. He was not assigned any disability rating and returned to work. The payroll records of the employer show that he did not lose any pay for the period of the injury. Michael Kraft, his supervisor, testified that for the four and one-half months after the injury, Mr. Flores did not complain to him of any back problems. Mr. Flores did not refute this assertion at trial. When he was seen at Daughters of Charity on January 29, 2010, Mr. Flores did not report this visit to his employer. Again, no disability rating was assigned. At the March 24, 2010 visit to Daughters of Charity, Mr. Flores did not make any complaints of ongoing back pain.

It was not until June of 2010 that any treating physician gave Mr. Flores a disability rating, but that certificate did not specify why the rating was given or what injury might have occasioned its issuance. Further, |7Mr. Flores did not make a claim for workers’ compensation at that time. When he retained counsel in January of 2011, a full year after the injury, counsel sent the employer the records from Daughters of Charity, which indicated that the June disability rating related to an incident which had occurred two weeks prior to issuance of the certificate. Again, Mr. Kraft testified that he was unaware of any workplace accident occurring in that time frame, and Mr. Flores did not address this discrepancy in his testimony. Those records also contained Mr. Flores’ medical history form which he filled out when he was hired by Boh Brothers. That medical history form showed that he had never been treated for back problems. Moreover, although Mr. Flores testified that he worked a “light duty” type job at Boh Brothers, his job classification contained no such restriction and he was simply classified as a “laborer.” Considering all of these factors, we find that it was manifest error for the trier of fact to conclude that the employer did not reasonably controvert the claim for compensation. We therefore set aside the awards for penalties and attorney fees.

CONCLUSION

For the foregoing reasons, the award of benefits and medical expenses is affirmed, and the awards for penalties and attorney-fees are set aside.

AFFIRMED IN PART; REVERSED IN PART


text:
    STATE of Louisiana v. Michael P. LONG.
    No. 12-KA-184.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Michael P. Long, Angola, LA in Proper Person, Defendant/Appellant, IPP.
    Holfi A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Michael P. Long, appeals his multiple offender sentence for armed robbery, arguing that it is excessive. For the following reasons, we affirm defendant’s multiple offender sentence and remand the matter to the trial court for correction of an error patent as noted herein.

PROCEDURAL HISTORY

This is defendant’s second appeal. In the first appeal, State v. Long, 11-313, 11-314 (La.App.12/13/11), 81 So.3d 875, writ denied, 12-0251 (La.8/22/12), 97 So.3d 367, this Court affirmed defendant’s conviction for armed robbery, but vacated his multiple offender sentence of 99 years, finding that it was indeterminate because the trial court failed to impose the mandatory five-year firearm enhancement sentence required by LSA-R.S. 14:64.3. This Court remanded the case to the trial court for resentencing, pretermitting discussion of ^defendant’s assignment of error that his sentence was constitutionally excessive, and reserving his right to appeal the newly imposed sentence.

On remand, the trial court again sentenced defendant to 99 years imprisonment at hard labor as a third felony offender, to be served without the benefit of parole, probation, or suspension of sentence. The trial court further sentenced defendant under the firearm enhancement statute, LSA-R.S. 14:64.3, to an additional five-year term of imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence, to be served consecutively to his 99-year sentence. Although defendant objected to the harshness of the newly imposed sentence, the objection was denied. Defendant now appeals, arguing that his habitual offender sentence is excessive.

FACTS

The facts of the offense were detailed in this Court’s previous opinion, State v. Long, supra, and are not reiterated here.

COUNSELED ASSIGNMENT OF ERROR

Defendant contends that although his 99-year sentence is less than the maximum 198 years that could have been imposed, and falls within the sentencing range for a third felony offender, it is nevertheless excessive. Defendant further suggests that the trial court failed to articulate the reasons for its sentence as required by the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. Defendant also asserts that the trial court considered incorrect facts from the trial in the original sentencing, and, more particularly, it erred in considering co-defendant Patterson’s actions as sentencing factors for defendant’s sentence.

I/The State responds that defendant did not file a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1, limiting this Court’s review of his sentence for constitutional excessiveness only. The State notes that defendant’s sentence is not excessive because it is one-third of the maximum penalty that he could have received; the trial court considered defendant’s felony record and the facts of the case; and the sentence imposed was not outside the bounds of the statute. Additionally, the State asserts that other courts have upheld the constitutionality of similar sentences with like circumstances, citing State v. Howard, 43-227 (La.App. 2 Cir. 6/11/08), 987 So.2d 330, writ denied, 08-1608 (La.4/3/09), 6 So.3d 766.

On August 23, 2010, defendant was originally sentenced to 99 years at hard labor, without the benefit of parole, probation or suspension of sentence. At the sentencing hearing, and after providing a detailed overview of the testimony adduced at trial, the trial court stated:

The Court heard your testimony; the jury heard it, but rejected it. The (sic) found you guilty of armed robbery.
The Court, in its considerations, has considered the sentencing guidelines, the Code of Criminal Procedure Article 894.1, and it is this Court’s belief that you did, in fact, commit this armed robbery, that you did it to people that you knew and that you’d been in contact with.
And that I believe under 894.1(A)(1) that there is an undue risk that during the period of a suspended sentence or probation, the defendant will commit another crime; two, the Defendant is in need of a correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution; and three any lesser sentence will deprecate the seriousness of this offense; and also under (b)(1), the offender’s conduct during the commission of the offense manifests a deliberate cruelty to the victim or victims, and that there were threats during the commission of this offense, and that the offender used a dangerous weapon in the commission of the offense.
| Jt’s going to be the sentence of this Court, based on your conduct and threats that were made to the victims in which they testified that they feared for their lives, and based on your testimony and the Court’s knowledge of your prior criminal history, I took that into account.
I don’t like armed robbery, Mr. Long. I don’t like it [at] all. I especially don’t like it in a situation where, although you may not have a had a dangerous weapon, because we saw the gun that came into Court, your co-perpetrator came in with a loaded weapon, stole X amount of dollars out of this place, and these were people that you knew, you terrorized the people, you didn’t have to.

Defendant objected to the excessiveness of his sentence, to which the trial court replied: “the Court doesn’t feel it is excessive based on his extensive criminal history, and based on the offense that he used his knowledge to gain entrance into a locked bar, in that particular residence, and used a co-perpetrator, who was a juvenile, to come in behind him with a loaded weapon to terrorize two people that he knew in a bar, and bring the bartender in the back at gunpoint, his co-perpetrator, to steal, and flee.” Defendant’s original sentence was later vacated and defendant was re-sentenced as a third felony offender to 99 years imprisonment, to which he objected.

On remand, the trial court again re-sentenced defendant to 99 years imprisonment, plus an additional five-year consecutive sentence for the firearm enhancement under LSA-R.S. 14:64.3. Defendant objected to the imposition of a harsher sentence than that originally imposed by the court. The trial court responded that defendant was a three-time felony offender and could have been sentenced to 297 years, but that the court chose to sentence him on the “low end.”

Now, for the first time on appeal, defendant suggests that the trial court did not comply with the sentencing guidelines. Defendant’s argument, however, has no merit. Compliance with the sentencing guidelines pursuant to LSA-C.Cr.P. art. |fi894.1 is not required when the sentence imposed is statutorily prescribed under the Multiple Offender Law. State v. Howard, 10-541, p. 11 (La.App. 5 Cir. 4/26/11), 64 So.3d 377, writ denied, 11-1073 (La.12/2/11), 76 So.3d 1173. Further, defendant did not file a motion to reconsider sentence. Accordingly, defendant is limited to a review of his habitual offender sentence for constitutional excessiveness only. See State v. Mason, 10-284, p. 11 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, 427, writ denied, 11-0306 (La.6/24/11), 64 So.3d 216; LSA-C.Cr.P. art. 881.3.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen, 06-969, p. 5 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen, 06-969 at 5-6, 958 So.2d at 64.

According to LSA-C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, while recognizing the trial court’s wide discretion. Nguyen, 06-969 at 6, 958 So.2d at 64. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 880 (citation omitted). However, there is no requirement that specific matters be given any particular |7weight at sentencing. State v. Tracy, 02-0227 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La.4/4/03), 840 So.2d 1213 (citation omitted).

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Taylor, 06-889 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La.6/15/07), 958 So.2d 1179. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” Id. at 28. Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in rare situations. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Taylor, 06-839, 956 So.2d at 28.

Here, defendant was convicted of armed robbery with a firearm, which carries a penalty of imprisonment at hard labor for not less than 10 and not more than 99 years without the benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64(B). In the present case, the State also invoked the firearms sentencing provision of LSA-R.S. 14:64.3. That statute provides for an additional five years of imprisonment at hard labor without benefits, to be served consecutively to the sentence imposed for the commission of the armed robbery, when the offender commits the armed robbery with a firearm. State v. Hartwell, 03-1214, p. 11 (La.App. 5 Cir. 1/27/04), 866 So.2d 899, 906, writ denied, 04-448 (La.6/25/04), 876 So.2d 832. Defendant was also adjudicated a third felony ^offender, which mandates a sentence of imprisonment for not less than two-thirds of the longest possible sentence for the underlying conviction and not more than twice the longest possible sentence prescribed for a first conviction. LSA-R.S. 15:529.1(A)(3). Therefore, defendant’s possible sentence ranged from 66 years to 20B years. Defendant’s sentence of 104 years falls well within the sentencing limits prescribed by the statute. State v. Otero, 09-468, p. 9 (La.App. 5 Cir. 1/26/10), 31 So.3d 1125, 1131, writ denied, 10-0489 (La.9/24/10), 45 So.3d 1072.

In reviewing the judge’s habitual offender sentencing discretion, the record reflects that defendant has an extensive criminal history, including convictions for possession of marijuana, possession of stolen property over $500, simple escape, possession of a weapon, and possession of marijuana.

Moreover, as the State points out, the sentence is supported by comparison. See State v. Carter, 570 So.2d 234, 235 (La.App. 5 Cir.1990), where this Court upheld the defendant’s 99-year sentence as a third felony offender, finding that the defendant, who had an extensive criminal history and propensity for felonious behavior, placed the victim in fear of his life; and State v. Armstrong, 95-1665, p. 1 (La.App. 3 Cir. 10/11/96), 683 So.2d 1261, 1264, writ denied, 97-0596 (La.9/5/97), 700 So.2d 505, where the court upheld the sentence of the defendant, with prior robbery convictions, who was convicted of armed robbery and was sentenced as a habitual offender to a term of 99 years even though there was no injury to the victim. See also State v. Bruce, 10-121, p. 18, (La.App. 5 Cir. 11/9/10), 54 So.3d 87, 97-98, where this Court, citing similar cases, upheld the defendant’s 100-year sentence as a second felony offender after considering the defendant’s extensive criminal history and propensity for felonious behavior, and the fact that the | defendant entered the victim’s home at night, threatening the victim’s life through the use of a knife.

Accordingly, we find that defendant has failed to rebut the presumption of constitutionality of the imposition of the 104-year habitual offender sentence in the instant case. Considering that the record reflects defendant’s extensive and continual criminal history, and that the nature of the instant offense was very serious, we find that the trial judge did not abuse his wide discretion in sentencing defendant to 99 years as a third felony offender, plus an additional consecutive five years for the firearm enhancement, for a total of 104 years.

PRO SE ASSIGNMENT OF ERROR

In his only pro se assignment of error, defendant argues that “there lies an instance of redundancy by the District Court in rarely reestablishing its’ [sic] original sentence as before during resentencing.”

It appears that defendant is arguing that the trial court erred in re-sentencing him under the multiple offender statute to the same 99-year sentence originally imposed prior to remand. Defendant seems to argue that by sentencing him to 99 years imprisonment, the trial court neglected to follow this Court’s remand order, which defendant believes ordered the trial court to resentence him because this Court found his sentence to be excessive. Due to this Court’s alleged finding of ex-cessiveness, defendant argues that the trial court knew that it could not enhance his sentence, but did so anyway, rendering his sentence again indeterminate.

Defendant has misinterpreted this Court’s opinion and remand order. In his previous appeal, this Court pretermitted discussion regarding defendant’s claim that his 99-year sentence was excessive, due to this Court’s finding that defendant’s habitual offender sentence was indeterminate. Because this Court did |10not make a finding in the first appeal that defendant’s sentence was excessive, defendant’s pro se assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Defendant is not entitled to a second errors patent review of his underlying conviction and sentence; however, the record on appeal regarding defendant’s habitual offender re-sentencing was reviewed for errors patent and one error requiring correction was found.

A review of the record in this case reveals an error in the “State of Louisiana Uniform Commitment Order.” The Uniform Commitment Order reflects a harsher sentence than that imposed by the trial court. In the instant case, the minute entry and sentencing transcript are consistent. Both reflect that defendant was sentenced to 99 years imprisonment at hard labor, to run consecutively to the five-year firearm enhancement at hard labor, for a total of 104 years imprisonment, without benefits. However, the Uniform Commitment Order is inconsistent with the minute entry and sentencing transcript. It indicates that defendant’s total length of incarceration is 198 years.

Accordingly, we remand this case for correction of the Uniform Commitment Order error regarding the noted total length of incarceration. We further direct the trial court to make the appropriate entries on the Uniform Commitment Order reflecting this change and direct the Clerk of Court to transmit the original of the Uniform Commitment Order to the officer in charge of the Ininstitution to which defendant has been sentenced and the Department of Correction’s Legal Department. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONCLUSION

For the foregoing reasons, defendant’s multiple offender sentence is affirmed. This matter is remanded to the trial court for correction of an error patent as noted herein.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . LSA-C.Cr.P art. 881.1(E) states: “[fjailure 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.”

      . Both sentences were ordered to be served at hard labor and without the benefit of parole, probation or suspension of sentence,

      . This calculation includes the enhanced five year sentence authorized under LSA-R.S. 14:64.3.

      . See State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783-84, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426; and State v. Alberto, 95-540, p. 23 (La.App. 5 Cir. 11/28/95), 665 So.2d 614, 625, writs denied, 95-1677 (La.3/22/96), 669 So.2d 1222, 96-0041 (La.3/29/96), 670 So.2d 1237.


author: FREDERICKS HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Nathaniel HERNANDEZ.
    No. 12-KA-196.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Nathaniel Hernandez, Kinder, LA, In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKS HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Judge.

|2The defendant/appellant appeals his conviction and sentence for simple burglary in violation of La. R.S. 14:62. He contends that it was error for the trial court to increase his bargained-for six-year sentence by two additional years. While defendant was aware of the alternate sentence that would be imposed for failure to abide by the terms of the plea agreement set forth on the record at the time of the plea, the record does not clearly reflect that the preconditions for nullifying the agreed upon plea bargain were met. Therefore, we remand this case to the district court for further proceedings.

Background

The defendant/appellant, Mr. Nathaniel Hernandez, was charged by bill of information with simple burglary in violation of La. R.S. 14:62 on August 12, 2009. He initially pled not guilty to the offense but later withdrew his not guilty |splea and tendered a plea of guilty on October 15, 2009. Pursuant to the plea agreement, Mr. Hernandez signed a Waiver of Constitutional Rights Plea of Guilty Form {Boy- kin Form) acknowledging that he would be sentenced to six years imprisonment at hard labor and that no multiple bill would be filed against him. The trial judge agreed to defer sentencing to allow Mr. Hernandez time to attend to his affairs. The judge expressly noted, however:

So I’m going to give you until November 12th to show up, sir, for sentencing. If you show up on November 12th for sentencing on time at nine a.m. on November 12th, and you heard me say this a couple of times today, then your sentence will be — and you don’t get into any trouble between now and then, the sentence will be six years in the Department of Corrections. The State will no bill you and give you credit for time served. If you don’t show up, if you show up late, or you get in any trouble between now and then, then I’m free to sentence you as I please and I can tell you it will be more like 12 than six and the State is free to multiple bill you which could give you a sentence up to 24 years. Okay? And I promise you it will be closer to that than the six if I’ve got to come chase you. Do you understand?

(emphasis added).

Mr. Hernandez acknowledged that he understood the above conditions that were set forth on the record at the time of the plea.

Sometime after Mr. Hernandez’s guilty plea on October 15, 2009, but before his sentencing, Mr. Hernandez was arrested. The date of the act for which Mr. Hernandez was arrested during this time period is not in the record before this Court.

During the sentencing hearing, which occurred on November 12, 2009, the trial judge increased Mr. Hernandez’s sentence from the previously agreed upon six years, to eight years in the Department of Corrections with credit for time served. Mr. Hernandez’s increased sentence was due to trouble that Mr. Hernandez had gotten into, the trial judge stated:

|4The only thing that bothers me about that to be honest with you is, I’m giving him the eight kind of assuming that he was just wrong place, wrong time kind of thing ...
* ⅜ ⅜ ‡
I guess I’m saying if I find out for some reason that it’s not just wrong place, wrong time, and he was, in fact, receiving stolen things and had the weapon in his possession and not spending time with his son which is what I was led to believe, then, I’m going to give him the 12 and hope the state bills him.

Mr. Hernandez moved to reconsider the sentence on December 4, 2009, on the basis that the sentence was in contravention to his plea agreement. The trial court denied the motion on January 12, 2010. Mr. Hernandez then filed an application for post-conviction relief on May 12, 2011, setting forth the same arguments as he did in his motion to reconsider sentence. The trial court, however, denied the motion on June 13, 2011. The order denying the motion reiterated the warnings given to Mr. Hernandez during the Boykin hearing, explaining that Mr. Hernandez had been arrested on unrelated charges after the Boykin hearing.

Mr. Hernandez sought supervisory review of the trial court’s denial of his application for post-conviction relief. In State v. Hernandez, 11-0692 (La.App. 5 Cir. 8/1/11) (unpublished writ), this Court transferred the writ application to the district court for consideration as an application for post-conviction relief seeking an out-of-time appeal. On remand, the trial court denied Mr. Hernandez’s application for post-conviction relief, as well as his request to seek an out-of-time appeal. Again, Mr. Hernandez sought supervisory review with this Court. We determined that the trial court erred in denying Mr. Hernandez’s request to seek an out-of-time appeal. State v. Hernandez, 11-0905 (La.App. 5 Cir. 12/8/11) (unpublished writ). We vacated the trial court’s ruling, granted the out-of-time appeal, and remanded the matter to the trial court. Id. On remand, the trial court granted Mr. Hernandez’s motion for appeal.

|fiOn this appeal, Mr. Hernandez contends that the trial court committed reversible error by increasing his bargained-for six-year sentence by two years. Discussion

La.C.Cr.P. art. 881.2(A)(2) provides that “the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” It is well settled that a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain and that plea bargain is not kept. State v. Mitchell, 08-0629, p. 11 (La.App. 5 Cir. 1/13/09), 7 So.3d 744, 751, writ denied, 09-0254 (La.10/30/09), 21 So.3d 270 (citation omitted). In cases where plea agreements are breached, the defendant may demand either specific performance or withdrawal of the plea. Id. In this case, Mr. Hernandez contends that he is entitled to such relief due to a breach of the plea agreement he made with the State.

In State v. Roche, 09-0684 (La.App. 5 Cir. 3/23/10), 39 So.3d 706, 709, writ denied, 10-0930 (La.11/19/10), 49 So.3d 396, this Court held that the defendant was “precluded from challenging the excessiveness of his sentence on appeal because his sentence was imposed in conformity with a plea agreement that was set forth in the record at the time of the plea.” In that case, the trial court warned the defendant in open court that if he failed to appear he would not receive the 10 year bargained-for sentence but “rather he would face a possible maximum sentence.” Id. Despite the warnings, the defendant failed to appear for sentencing; and as a result, he received the maximum 30-year sentence. In that case, we stated that the “[defendant was clearly informed of the two possible sentences, which were dictated by his actions, when he entered his plea.” Id.

| (iHere, it is clear that Mr. Hernandez knew that he could only take advantage of the plea agreement if he stayed out of “trouble” between the time of the agreement and the time of his sentencing. The present case however differs from Roche because it is not clear when, or if, Mr. Hernandez breached his agreement to stay out of “any trouble” between the date of the plea agreement and the date of the sentencing. .While the record reveals that Mr. Hernandez was arrested after his plea agreement, it is not clear whether the offense for which Mr. Hernandez was arrested occurred before or after the trial court ordered Mr. Hernandez to stay out of “any trouble.” On the record before us, it is plausible that Mr. Hernandez first committed an act of “trouble” which made him subject to arrest, then second agreed to this plea agreement, then finally was arrested. If it were the case that the act of “trouble” came before this plea agreement, then it would be an error for the trial court to find that Mr. Hernandez had breached this plea agreement.

In light of this ambiguity, this Court hereby vacates defendant’s sentence and remands this case to the trial court for a determination of when the act occurred which may have violated the plea agreement and for further proceedings consistent with this opinion.

Errors Patent Discussion

The record was reviewed for errors patent according to La.C.Cr.P. art. 920. The review reveals that there are no errors patent.

SENTENCE VACATED, REMANDED FOR HEARING AND FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.