author: SAUNDERS, Judge.

text:
    Sandra HUNTER, Individually, et al. v. CHRISTUS HEALTH CENTRAL LOUISIANA, etc.
    No. 13-1057.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2014.

      Robert Lewis Bussey, Bussey & Lauve, Alexandria, LA, for Third Party/Appellant Louisiana Patients Compensation Fund.
    Todd A. Townsley, Loretta L. Middleton, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellee Sandra Hunter, Individually William Hunter, Individually.
    Jeremy C. Cedars, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellant: Christus Health Central d/b/a Christus St. Francis Cabrini Hospital.

      Lee Schwalben, Attorney at Law, St. Lake Charles, LA, for Plaintiff/Appellee: Sandra Hunter, Individually William Hunter, Individually.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

I,This appeal arises from a medical malpractice case wherein a hospital patient sustained a sacral ulcer. The hospital stipulated to liability, and after a trial on the issue of damages, the trial court awarded the patient and her husband a total of $124,089.48. Defendants appeal, seeking a reduction of this award. For the reasons discussed herein, we find that the trial court did not abuse its discretion. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 14, 2005, Plaintiff, Sandra Hunter (hereinafter “Hunter”), entered the hospital of Defendant, Christus Health Central Louisiana d/b/a St. Frances Cabrini Hospital (hereinafter “Cabrini”), to receive a knee arthroplasty. While still at the hospital after surgery, she developed a decubitus ulcer (otherwise known as a “bed sore”) near her tailbone due to improper care. The ulcer was discovered on February 17, 2005.

On February 9, 2006, Hunter filed a medical malpractice action with the Louisiana Patient’s Compensation fund (hereinafter “the PCF”) against Cabrini, claiming Cabrini had fallen below the standard of care by not timely discovering a decubitus ulcer she sustáined during her stay at the hospital. The Medical Review Panel found that Cabrini did not deviate from the standard of care, and the case proceeded to a bench trial on December 4, 2012. Since Defendant stipulated to malpractice liability shortly before the trial, only the issue of damages was before the trial court.

It is uncontested that Hunter sustained a decubitus ulcer with a depth of .2 centimeters while in Cabrini’s care. Hunter, whom the trial court described as a credible witness in its written reasons for judgment, “described the horrible smell of the wound, how her underwear stuck to the wound and the sheets had to be 12changed frequently.” Hunter received several de-bridement procedures to treat the wound, some surgical and some enzymatic. In its written reasons for judgment, the trial court continued, “She further described how treatment that she received ‘exposed her rear end’ and was both painful and humiliating.” Hunter was discharged on March 1, 2005, after which she continued receiving care and medical treatment for the wound.

Hunter then received treatment from Dr. Jorge Kohatsu until the wound healed, by May 24, 2005. Dr. Kohatsu testified that the wound was uncomfortable, could have made sleeping difficult, that the de-bridement procedure can be painful, and that he believed the wound site could create problems for Hunter in the future, as the wound-site skin is permanently damaged. Hunter testified that she does experience periodic pain from the wound site, which the trial court found to be a credible statement in its written reasons for judgment. The trial court also found Hunter “suffered tremendous humiliation and embarrassment as a result of the wound.”

The trial court awarded Hunter and her husband a total of $124,089.48 for damages: $17,589.48 for past medical, $60,000.00 for past pain and suffering, $5,000.00 for future pain and suffering, $25,000.00 for mental anguish, $5,000.00 for loss of enjoyment of life, $1,500.00 for scarring and disfigurement, and $10,000.00 for Mr. Hunter’s loss of consortium. The trial court found that Cabrini is a qualified health care provider under the Louisiana Medical Malpractice Act; therefore, the PCF is liable for all amounts over $100,000.00.

The trial court’s judgment was signed on February 27, 2013. The PCF appeals the amount awarded for past pain and suffering and the amount awarded for mental anguish. Cabrini appeals the same amounts, as well as the amounts |sawarded for future pain and suffering, awarded for past medical expenses, assessing certain deposition costs and expert costs as court costs.

ASSIGNMENTS OF ERROR

On appeal, Cabrini asserts the following assignments of error:

1. The trial court erred in failing to apply the doctrine of mitigation of damages, or in the alternative, finding that the episodes of irritation, after the decubitus ulcer healed, were related to the decubitus ulcer.
2. The trial court erred in awarding certain damages for certain medical bills to the Plaintiffs based in part on testimony that should have been excluded from evidence.
3. The trial court erred in awarding certain deposition costs to experts who did not testify at trial and expert costs to persons who did not testify at trial.
4. The trial court erred by granting excessive damages to the Plaintiffs in this action.

In addition, the PCF asserts the following assignment of error:

The trier of fact award of damages was excessive for Past Pain and Suffering in the amount of $60,000.00 and Mental Anguish in the amount of $25,000.00 for a single, superficial decubitus ulcer in the sacrum area that completely healed in three (3) months and one (1) week.

LAW AND ANALYSIS

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). This standard of review is deferential. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751.

As the supreme court stated in Youn v. Mar. Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994):

|4The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).

Past pain and suffering; Mental anguish

Hunter’s medical records show that, after it was discovered, the wound spread to both buttocks, covering a “butterfly area” that drained with “exudate between cheeks.” Multiple medical professionals testified at trial that the wound was painful, foul-smelling, and required frequent cleaning. Hunter testified that' the wound caused her pain and suffering and that her underwear would stick to the wound. She further testified that the required treatment was humiliating, as it required her to expose her buttocks. After reviewing the record, we cannot say that the trial court manifestly erred in reaching its amount for past pain and suffering, nor its amount for mental anguish.

Future pain and suffering

Defendants argue the trial court’s award for future pain and suffering is manifestly erroneous because Hunter has failed to bear her burden of proof that the discomfort and irritation of the wound site is the result of the ulcer. Dr. Kohatsu testified the skin on the wound site was permanently damaged and could create problems for Hunter in the future. Hunter testified that her continued discomfort stems from the wound. Hunter testified at trial:

Q: Do you know the distinctive type of pain you’re experiencing when your area is irritated?
A: Yes.
IsQ: You don’t confuse it with any other condition?
A: No.
Q: You’re aware of what’s causing your irritation?
A: Yes.

Dr. Kohatsu testified that the skin on the wound site could continue to cause discomfort, as it is permanently damaged despite the fact that the wound has healed. He testified that the wound will continue to affect that skin’s temperature regulation and resistance to infection. Dr. Steve Springer, who also examined Hunter’s wound site, testified that the abnormal skin could result in pain and additional infections. Given the trial court’s broad discretion to assess the credibility of witnesses, we find no manifest error in concluding that Hunter demonstrated causation between the wound and her continued pain and suffering.

Alternatively, Defendants argue that Hunter failed to mitigate her damages by not returning immediately to her original treating physician, Dr. Kohatsu, when she continued to experience irritation from the wound site after it had healed. Hunter testified at trial:

Q: When you had your episodes of irritation, did you remember Dr. Kohatsu’s instructions that you were to follow up with your family doctor if you had any problems with your decubitus ulcer? That had headed.
A: If it was beyond my control of taking care of it, then I was to contact a doctor.

It is clear from the record that Hunter followed her doctor’s instructions in caring for the wound in order to keep the problems it caused under control. For example, she testified that she kept the wound dry, cleaned the wound if she began sweating, and avoided prolonged sitting — all per her doctor’s instructions. The record contains no evidence suggesting the trial court erred in concluding Defendants did not prove Hunter failed to mitigate her damages. To the contrary, the record shows 1 ^Hunter has taken measures to care for the wound and follow Dr. Kohatsu’s medical advice, allowing her to control irritation from the wound and rendering additional doctor’s visits unnecessary.

Past medical expenses

Defendants argue that, because Dr. Steve Springer testified to issues not covered on cross-examination during a redirect examination — Hunter incurred increased medical expenses due to the wound — that the trial court erred in awarding Hunter certain medical expenses. Dr. Springer testified:

Q: ... she couldn’t be sent home with a wound like that, could she?
A: Ahh, I, eh, no. I mean, ah, if ... if it’s found smelling and there’s sign [sic] of periwound infection, and there’s active increasing necrosis, eh, you would, you would wanta address multiple things. The patient’s nutritional level; ah, do wound cultures; you may wanta do blood cultures to make sure she’s not trying to get septic ...

Counsel for Cabrini did not object to this question nor to Dr. Springer’s response. Failure to object to the question waives any objection to that question. Wyble v. Acadiana Preparatory School, 07-91 (La.App. 3 Cir. 5/2/01), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004. Further, even assuming Hunter’s counsel’s question was outside the scope of the preceding cross examination, the trial court has discretion to allow questions outside the scope of cross examination. State v. Wiley, 614 So.2d 862 (La.App. 2 Cir.1993). Because the record shows no abuse of such discretion, we find this assignment of error is without merit. Furthermore, Hunter’s medical records and Dr. Kohatsu’s testimony as to the state of the wound and its development present the same evidence, that if not for the ulcer, Hunter’s medical expenses at the hospital would have been lower. The trial court did not manifestly err in awarding Hunter medical expenses which the record shows were incurred as a result of the ulcer.

| tDeposition costs

Cabrini argues that because the depositions were not put into evidence, it should not be required to pay the costs of those depositions. “It is well settled that a trial court has broad discretion in the assessment of court costs.” Davis v. Sonnier, 96-515, p. 19 (La.App. 3 Cir. 11/6/96), 682 So.2d 910, 920. In addition, while it is the general rule that the party cast in judgment is taxed with costs of a proceeding, “the trial court may assess the costs of a suit in any equitable manner and its assessment of costs can only be reversed by the appellate court upon a showing of an abuse of discretion.” Este’ v. State Farm Ins. Cos., 96-99, p. 4 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 859.

On this issue, Defendant offers Hendrix v. Maison Orleans I, L.L.C., 11-1349 (La.App. 4 Cir. 9/26/12), 101 So.3d 1013, writ denied, 12-2426 (La.1/11/13), 107 So.3d 616, in which the fourth circuit found the trial court abused its discretion in awarding costs for depositions that were not used at trial. Unlike Hendrix, in the instant case it is clear from the record that only after the depositions were taken did Defendant stipulate to liability. As the trial court noted in its written reasons for judgment on costs, “[T]he parties stipulated that Cabrini was liable, and the trial involved only the element of damages. However, earlier in the case, the issue of liability was contested.” Because this stipulation was derived from these depositions, it cannot be said that no effect was derived at trial from the depositions. Given the broad discretion of the trial court to assign costs, we affirm as to their costs.

^CONCLUSION

For the foregoing reasons we affirm the trial court’s judgment. All costs of this appeal are assessed equally to Defendants.

AFFIRMED.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE in the Interest of D.B.
    No. 13-1364.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2014.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for Respondent: State of Louisiana.
    Jane Hogan, Public Defender’s Office, Lafayette, LA, for Appellant: D.B.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe Juvenile, D.B., took a 2011 Chevrolet truck that belonged to Douglas Tra-han. Trahan alleged that the tools that had been inside the truck were missing when the truck was returned. The Juvenile was charged with unauthorized use of a movable, a violation of La.R.S. 14:68. He was not charged with any action directly related to the theft of the tools. The Juvenile entered an admission to the charge, was adjudicated delinquent, and a judgment of disposition was rendered committing the Juvenile to the custody of the Office of Juvenile Justice for a period of one year. The term of commitment was suspended, the Juvenile was placed on active supervised probation for one year, and a restitution hearing was scheduled. At the hearing, the Juvenile was ordered, as a condition of probation, to pay $750.00 in restitution in monthly payments of $75.00. Defense counsel objected to the trial court’s order and requested that the restitution be stayed. The trial court denied the request.

Defense counsel filed a notice of intent to apply for supervisory writs. This court denied the Juvenile’s writ application as follows:

WRIT DENIED: The Juvenile’s claims are not reviewable by application for writ of supervisory review, and appellate courts generally will not exercise their supervisory jurisdiction when an adequate remedy exists by appeal. See La. Ch.Code art. 330(B); Douglass v. Alton Ochsner Medical Found., 96-2825 (La.6/13/97), 695 So.2d 953; State in the Interest of P.K., 11-17 (La.App. 3 Cir. 2/2/11) (unpublished opinion).
Defense counsel’s oral notice of intent to appeal at the restitution hearing constituted an oral motion for appeal. See State v. Greene, 12-2027 (La.3/15/13), 109 So.3d 370. Accordingly, we remand the matter to the trial court for the Juvenile to comply with the other provisions regarding appeals.

State ex rel. D.B., 13-1066 (La.App. 3 Cir. 10/4/13) (unpublished opinion).

The Juvenile is now before this court asserting two assignments of error. He contends that the trial court erred in finding he was responsible for restitution, and | ¡.the district court erred in ordering him to pay restitution in the unreasonable amount of $750.00.

After reviewing the record in accordance with La.Code Crim.P. art. 920, we find several errors patent and that the probation order is in need of correction.

First, at the appearance hearing to answer the State’s petition, the trial court failed to advise the Juvenile of his rights as required by La.Ch.Code art. 855. Pursuant to La.Ch.Code art. 855, the trial court must first determine if the juvenile is capable of understanding his/her rights, and if so, to advise the child of his/her rights, including the nature of the proceedings, the nature of the allegations of the petition, the right to an adjudication hearing, the right to appointed counsel, and the right against self-incrimination. In State ex rel. C.P., 12-192 (La.App. 3 Cir. 6/6/12), 91 So.3d 1273, the court applied the harmless error analysis when the trial court failed to advise the juvenile of his rights under Article 855. In C.P., the court found the error was harmless since the record reflected that the juvenile was represented by counsel when he appeared in court and entered a denial to the charges against him. In the present case, the record indicates that the Juvenile was represented by counsel and denied the allegation. Thus, we find that the error was harmless.

Second, the trial court failed to inform the Juvenile of the two-year prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Although the Louisiana Children’s Code contains no similar provision, this court has previously held that this notice should be given. State ex rel. J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. We order the trial court to inform the Juvenile of the provisions of Article 930.8 by sending appropriate written notice to him within ten (10) days of the rendition of this opinion and to file written proof in the record that the Juvenile received the notice.

| ¡¡Third, the probation order needs to be corrected. The order states, “that the Juvenile having been adjudicated Delinquent for the following offense(s): UNAUTHORIZED USE OF A MOTOR VEHICLE 14:68.4[.]” The transcript of the adjudication proceeding indicates that the Juvenile pled to unauthorized use of a movable, a violation of La. R.S. 14:68. We amend the probation order to accurately reflect the transcript of the adjudication hearing. See State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Juvenile contends that the trial court erred in finding that he was responsible for restitution where the charges against him did not allege theft, the only evidence of loss presented at the hearing was a list and receipts provided by the victim without any prior notice to the defense, and the State failed to show that the restitution did not exceed the actual pecuniary loss, if any.

At the restitution hearing, the State called Doug Trahan to testify. He indicated that his truck was taken without permission, and the truck was not damaged. However, Trahan testified that the tools that were inside his truck were taken.

Defense counsel objected, arguing the following:

There is no allegation that he stole tools, that he removed tools. So to suggest that he has to pay restitution for something that he was not charged with, that was not mentioned in the police report, and that we’re first hearing about today, is improper.... So for the first time today to be introducing evidence that there’s missing tools, is improper in a restitution hearing.

The State argued that the items at issue were inside the truck when it was taken by the Juvenile; however, they were not listed in the police report. The State asserted 14that the Juvenile received notice when defense counsel was provided with the receipts. Defense counsel then argued he was not given any receipts. The trial court found “this would be a direct loss from the crime.” Defense counsel objected to the trial court’s ruling. Defense counsel further argued that it was never alleged or proven that the tools were taken; thus, restitution was inappropriate.

Trahan subsequently testified that a lot of hand tools and power tools were taken from this truck, and the total was $1,552.73. When asked to enumerate what was taken, Trahan stated, “[a] lot of hand tools.” Trahan was then asked to read from “the list” and told, “[i]f you have to read every single one, that’s fine.” Trahan then testified that the following items had been taken:

[sjcrewdriver, nut driver, torque wrench, plyers, needle nose, Lyman plyers, nail set, a couple of felt knives, vice grip, a wrench — two (2) or three (3) wrenches. Let’s see, line strippers, wire strippers, Dewalt set — power tool Dewalt set, which is six hundred dollars ($600) by itself, a tool box, some tape — some duct tape, other different types of screwdrivers, wrenches, more wrenches and — [.]

Trahan said that the tools were kept inside his truck and were there the night the truck was taken. Trahan testified that he purchased some tools recently because he needed them to make repairs, and his insurance did not cover the loss. He further testified that he arrived at the total of $1,552.73 by adding the figures on the various receipts he had presented. The receipts presented were for purchases on several different occasions. Trahan said that he bought what he needed first, and, when he realized he needed more, he purchased a “whole bunch.” Trahan further testified, “[wjell, I acquired all those tools over the years. I didn’t realize what I had, until I needed it. I didn’t make a list of everything.” He continued, “I had to just buy what I thought at first and then come back.” Trahan was then questioned as follows:

IsQ ... But you don’t actually know what it was that you were missing, because you don’t have any documentation of the tools that were actually stolen? A You know — Yes, in a way I don’t, but I do have that — I know if I need it, which I had before, I go look for it and I don’t have it, I knew I had it before. Q But you could have bought something on this list that you didn’t have before?
A If it is, it might be one (1) or two (2), but I really—
Q Might be one (1) or two (2). So there might be something on here that you didn’t lose before?
A Could be, but I really doubt it. Because I had everything. I had a lot. Fifteen hundred is nothing.

Trahan then testified that his tools were old.

The Juvenile testified that he was fourteen years old and lived with his aunt. The Juvenile indicated that he did not have a job and had no money; however, he had cut grass for ten to fifteen dollars a yard when he needed money.

After hearing the testimony of Trahan and the Juvenile and the arguments of counsel, the trial court asked if the Juvenile’s probation would- be for a period of one year. The State answered affirmatively. The trial court then stated, “[tjhat reduces the amount of available funds.” The trial court then inquired as to the date probation would be terminated and ordered the Juvenile to pay restitution of $750.00 at a rate of $75.00 per month. Defense counsel objected and asked that payment be suspended pending review of the trial court’s ruling. The trial court denied the request.

The Juvenile contends that he was not charged with, and did not admit to, any offense by which Trahan was permanently deprived of any property. In support of this argument, the Juvenile cites La.Ch. Code art. 897(B)(2)(c), which provides:

kB. As conditions of probation, if ordered pursuant to Subparagraph A(3) of this Article:
(2) The court may impose any other term and condition deemed in the best interests of the child and the public, including:
(c) A requirement that the child make reasonable restitution to any victim for any personal or property damage caused by the child in the commission of the delinquent act.

The Juvenile also cites La.Code Crim.P. art. 895.1(A)(1), which provides:

When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

The Juvenile argues that the trial court improperly applied the standard found in La.Code Crim.P. art. 895.1(A)(1). Additionally, he argues that the order of restitution was improper under the standards set forth in the criminal code and children’s code, as there was no evidence that he was responsible for the theft of tools or that the tools were stolen.

The Juvenile cites the following from State ex rel. K.J., 11-266, p. 12 (La.App. 4 Cir. 8/17/11), 71 So.3d 557, 564, in his brief to this court:

[I]n a criminal case where the evidence establishes the victim has suffered a direct loss of actual cash, monetary loss due to physical damage to or loss of property, and/or incurred medical expenses, the sentencing judge must order restitution in an amount not to exceed the actual loss sustained or medical expense incurred by the victim as established at trial. The court may further order payment of an additional amount to the victim for any quantifiable loss or 17inconvenience (ie. costs of rental car, cabs, medical equipment, etc.) suffered as a result of the criminal activity for which the defendant was convicted.

The Juvenile argues that K.J. shows that there must be evidence presented at a restitution hearing that the victim suffered a loss as a result of the crime for which he was convicted. The Juvenile argues that the victim presented a new allegation at the restitution hearing, claiming his truck had been burglarized. The Juvenile claims that he received no prior notice through arrest, charge, or documentation of the victim’s claim.

The Juvenile notes that the only testimony presented was that of the victim. The Juvenile then argues there was no attempt to demonstrate the loss suffered was the result of the delinquent act charged in the petition.

In State v. Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860, the defendant was convicted of forgery. As a condition of probation, the trial court ordered the defendant to pay restitution in the amount of $33,946.90. On appeal, the defendant argued that the trial court erred in ordering restitution for the uncharged conduct of forgery by false making. The defendant explained that the bill of indictment charged her with forgery by altering checks and not forgery by false making. In support of this claim, the defendant cited this court’s opinion affirming her conviction, in which this court stated the defendant was guilty of forgery by altering certain checks and not by false making. See State v. Boudreaux, 98-40 (La.App. 3 Cir. 6/3/98) (unpublished opinion).

The defendant then stated she was charged and convicted with altering only two checks; therefore, she should have been ordered to pay restitution on those two checks only. This court noted that the defendant seemed to distinguish between the unauthorized checks she wrote to herself (forgery by false making) and the canceled checks she altered to conceal the false making. Because the defendant |swas not charged with false making, she argued that she should not have been ordered to pay restitution for damages caused by that conduct. This court addressed the issue, stating:

Even though Defendant was not charged with the false making of the checks for which she actually received cash, she was charged with altering canceled checks in order to facilitate her forgery scheme. As noted by this court’s original opinion, “La.Code Crim.P. art. 895 grants the trial judge authority to impose as a specific condition of probation payment of a ‘reasonable ... restitution to the aggrieved party for damage or loss caused by his offense ... ’ (Emphasis added).” Id. at p. 5, n. 2, Citing State v. Allerman, 439 So.2d 418 (La.1983); State v. Labure, 427 So.2d 855 (La.1983). Because the offense committed by Defendant facilitated the forgery scheme by which she caused $33,496.90 worth of loss to the victim, the damage suffered by the victim was caused by the offense committed by Defendant. Thus, the trial court was correct in ordering restitution in the amount of $33,496.90.

Id. at 862.

In State v. Metlin, 467 So.2d 876 (La.App. 3 Cir.1985), the defendant pled guilty to three counts of illegal possession of stolen things valued under $100.00 and was ordered to make restitution of $8,037.50 to the owners of the stolen things he received. This court found that the trial court did not abuse its discretion in ordering the defendant to make restitution. This court noted that the victims suffered a loss caused by the defendant’s offense of receiving stolen things, to which the defendant pled guilty in misdemeanor amounts. The court found that this condition of the defendant’s probation was permitted under the provisions of La.Code Crim.P. art. 895(A)(7) and was reasonably related to his rehabilitation.

In State v. Portie, 08-1580 (La.App. 4 Cir. 9/16/09), 22 So.3d 213, the defendant was charged with theft of property having a value over $500.00. A jury found him guilty of attempted theft of property valued over $500.00. As part of his sentence, the defendant was ordered to pay restitution in the amount of $38,553.91. On appeal, the defendant argued that a sentence requiring payment of restitution | flfor stolen property could only be justified upon a conviction for the actual crime of theft. The fourth circuit noted that the trial court, at the time restitution was imposed, stated it was perplexed and had no idea why the jury made the decision to find the defendant guilty of the lesser included offense of attempted theft. The fourth circuit then cited La.R.S. 14:27(C), which states that a defendant may be convicted of an attempt to commit a crime although it appears at trial that the crime intended or attempted was actually perpetrated in pursuance of the attempt. The fourth circuit then found the trial court acted within its discretion when ordering the defendant to pay full restitution to the victim.

In State v. Moore, 614 So.2d 145 (La.App. 3 Cir.1993), the defendant pled guilty to ten counts of misdemeanor theft and five counts of simple burglary. This court noted that restitution may have been ordered on counts to which the defendant did not enter pleas of guilty. This court found that a factual basis was stated for the record showing the defendant’s participation in the crimes involving each of the victims to whom restitution was ordered; likewise, the defendant’s possession of the various stolen things was not disputed. This court found that restitution as part of defendant’s probation was permitted under the provisions of La.Code Crim.P. Art. 895(A)(7) and was reasonably related to his rehabilitation.

Based on the cases cited above, we find that the trial court properly ordered restitution, as simple logic and deduction demands a conclusion that the loss suffered by Trahan was caused by the offense committed by the Juvenile. Further, this court finds that the trial court’s order is reasonably related to the Juvenile’s rehabilitation.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Juvenile contends that the district court erred in ordering him to pay restitution in the amount of $750.00 at a rate of [ in$75.00 per month, and this amount is an unreasonable burden to place on an indigent fourteen-year-old juvenile. We disagree.

With regard to the value of the tools, this court and the court below are persuaded with the evidence and the testimony offered by Trahan. To require more from Trahan than what he provided would be to victimize him twice.

Considering the amount of restitution ordered, the juvenile directs us to State ex rel. B.A., 12-659 (La.App. 3 Cir. 12/19/12), 104 So.3d 833, but his reliance on this case is misplaced. There, we found that the ordered amount of restitution exceeded the pecuniary loss. That is not the case here. Rather, we find that the trial court had evidence allowing it to find that the actual loss was more than twice the ordered amount of restitution.

The Juvenile further argues that mowing approximately five yards per month is too extreme a punishment. The Juvenile suggests to this court that he is unable to find any rehabilitative purpose in the trial court’s order. Again, we disagree. We find that requiring a juvenile to account for a portion of the reasonable and direct consequences of his crime is an acceptable form of rehabilitation.

While we concede that the trial court’s order could have been done with more precision (such as considering the lack of yards to mow in the winter), overall we find that it did an excellent job of “balancing] the needs of the child with the best interest of society.” State ex rel. Garner, 484 So.2d 149, 154 (La.App. 3 Cir.1986), citing State ex rel Ray, 432 So.2d 312 (La.App. 5 Cir.1983). Further, we recognize that much discretion is granted to the trial court because of the special nature of the juvenile proceeding. Garner, 484 So.2d 149. Particularly, we have found that “[although many of the amounts assessed by the trial court are replacement values, it was within the trial court’s discretion to choose an appropriate amount.” State v. Johnson, 04-1266, p. 22 (La.App. 3 Cir. |11 2/2/05), 893 So.2d 945, 959. The trial court clearly acted within its discretion. Therefore, the assignment of error lacks merit.

The judgment of the trial court is affirmed as amended with the following instructions:

1. The trial court is ordered to inform the Juvenile of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten (10) days of the rendition of this opinion and to file written proof in the record that the Juvenile received the notice.

2. We amend the probation order to accurately reflect the transcript of the adjudication hearing indicating that the Juvenile was adjudicated for the offense of unauthorized use of a movable, a violation of La.R.S. 14:68.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.


author: JOY COSSICH LOBRANO, Judge.

text:
    Dr. David MILLAUD, et al. v. The CITY OF NEW ORLEANS.
    No. 2013-CA-1152.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2014.
    Rehearing Denied May 28, 2014.

      Deborah M. Henson, The Law Office of Deborah M. Henson, LLC, Edward R. Washington, III, The Washington Law Group, LLC, Leonard L. Levenson, Wei-gand & Levenson, New Orleans, LA, for Plaintiff/Appellant.
    Adam J. Swensek, Assistant City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    Michael G. Gaffney, Hurndon & Gaffney, New Orleans, LA, for Intervenor/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|, Plaintiffs, Dr. David Millaud and C & M Surgical Group, appeal the May 23, 2013 trial court judgment affirming the December 12, 2011 decision of the Board of Zoning Adjustments (“BZA”). The BZA decision denied plaintiffs’ appeal of the August 12, 2011 decision of the City of New Orleans Department of Safety and Permits, which held that property owned by plaintiffs at 3670 Gentilly Boulevard in New Orleans lost its nonconforming use status due to plaintiffs’ failure to reestablish business operations at that location prior to August 29, 2007, or two years following Hurricane Katrina.

In Civil District Court for the Parish of Orleans, plaintiffs filed an appeal and/or writ of certiorari of the ruling of the August 12, 2011 ruling of the Department of Safety and Permits regarding the status of the Gentilly Boulevard property. According to plaintiffs, the pi’operty at issue is zoned as “RS-1 Single Family Residential District,” but was previously granted nonconforming use status when a law office was operated on the property for many years prior to plaintiffs’ acquisition of the property in 2001. The Department of Safety and Permits ruled Lthat because the property was not reestablished prior to August 29, 2007, two years after the landfall of Hurricane Katrina, the nonconforming use status of the property was lost and the property can only be used from the date of the ruling forward for residential purposes. Plaintiffs asked the Civil District Court to set aside the ruling of the Department of Safety and Permits.

Plaintiffs further alleged that legislation enacted in 2006 following Hurricanes Katrina and Rita only required that the property owner initiate the process of rebuilding within a certain time period in order to retain the nonconforming use status of a property. Specifically, plaintiffs cite La. R.S. 33:4882, which provides that a property would not lose its nonconforming use status for two years following Hurricane Katrina if, because of that storm, the property was vacant or operations normally carried on in that location were temporarily discontinued. Plaintiffs contend that Dr. Millaud began repairing the damages sustained to the property as a result of Hurricane Katrina within the two-year period set forth in La. R.S. 33:4882, and, therefore, preserved the nonconforming use status of the property, where he intends to operate an oral surgery practice.

In opposition to the plaintiffs’ appeal of the ruling of the Department of Safety and Permits, the City of New Orleans argued that the Department correctly found that the property at issue lost its nonconforming use status due to plaintiffs’ failure to reestablish the property prior to August 29, 2007. Contrary to plaintiffs’ claim that Dr. Millaud began repairing the damages sustained as a result of | (¡Hurricane Katrina within the two-year period set forth in La. R.S. 33:4882, the City alleged that the plaintiffs did not even apply for a restoration permit before August 29, 2007, much less start business operations prior to that date.

Following a hearing, the trial court rendered judgment on November 15, 2011, stating that it was not ruling on the appeal and/or writ of certiorari filed by plaintiffs. Instead, the trial court directed plaintiffs to exhaust all administrative remedies by appealing and/or applying to the City of New Orleans BZA. Following a hearing, the BZA denied plaintiffs’ appeal of the Department of Safety and Permits’ decision holding that plaintiffs’ property lost its nonconforming use status.

On May 29, 2012, a petition for intervention was filed by Mr. and Mrs. John D. Lambert, Jr., Mayor and Mrs. Sidney Bar-thelemy, and Dr. and Mrs. C. Bernard Parent. The parties filing the petition for intervention identified themselves as residents of the Gentilly area who own homes in close proximity to the property at issue in this matter. The trial court allowed the petition for intervention to be filed, and ordered that the parties filing the petition be allowed to intervene as party defendants with the City of New Orleans.

Plaintiffs subsequently filed an amended petition and appeal, and petition for writ of certiorari. One of the allegations in the amended petition is that on September 20, 2006, Dr. Millaud obtained a permit from the Department of Safety and Permits to make repairs to his property. They further alleged that from September 2006 to October 2008, Dr. Millaud made repairs to the property, |4including renovating the property in order to convert it to a dental office. The amended petition stated that on October 2, 2008, the New Orleans City Council reaffirmed its 2001 decision to allow the nonconforming use status of the property. However, later that same month, the Department of Safety and Permits informed Dr. Millaud that the property had lost its nonconforming use status and could not be used as a dental office. Plaintiffs alleged that under City Comprehensive Zoning Ordinance (“CZO”) Section 13.3.2, the policy of the Department of Safety and,Permits is that a person had two years to obtain a permit after Hurricane Katrina, or until August 29, 2007, and then had one more year to complete repairs on the property, or until August 29, 2008. They further alleged that the City’s policy was that if repairs were ongoing as of August 29, 2008, a person would be allowed to continue with repairs beyond August 29, 2008 to restore a property and maintain nonconforming use status. Plaintiff alleged that repairs to the property were ongoing when the Department of Safety and Permits informed Dr. Millaud that the property lost its nonconforming use status. Dr. Millaud alleged that at that time, he ceased repairs to the property to avoid civil and criminal penalties.

Following a hearing, the trial court rendered judgment on May 23,2013, affirming the December 12, 2011 decision of the BZA denying plaintiffs’ appeal of the August 12, 2011 decision of the Department of Safety and Permits that the property at issue lost its nonconforming use status due to plaintiffs’ failure to reestablish business operations at that location prior to August 29, 2007. Plaintiffs subsequently filed a motion for new trial, which was denied by the trial court on [¿June 5, 2013. Plaintiffs now appeal the trial court’s judgments of May 23, 2013 and June 5, 2013.

On appeal, plaintiffs present two assignments of error:

1) The trial court erred by depriving Dr. Millaud of his vested property interest in the Gentilly building after approving the nonconforming use status and issuing permits, then rescinding approval to renovate; and
2) The trial court erred by misapplying the language of the applicable zoning ordinance, the practice of the City enforcing that ordinance, and the applicable jurisprudence that allows retention of nonconforming use if work is ongoing under a valid building permit.

Before addressing the plaintiffs’ assignments of error, we must first address the motion to dismiss plaintiffs’ appeal due to prescription filed by the intervenors in this matter. In this motion, the intervenors assert that the BZA denied plaintiffs’ appeal on December 12, 2011, but plaintiffs’ amended petition seeking review of that decision was not filed until August 3, 2012, well beyond the thirty-day period mandated by La. R.S. 33:4727 for an appeal of a BZA decision. Plaintiffs opposed the motion to dismiss, citing La. C.C.P. article 1094, which states: “An intervenor cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.”

As noted by this Court, “[a]n intervenor takes the proceedings as he finds them.” Leger v. Kent, 01-2241, p. 4 (La.App. 4 Cir. 4/24/02), 817 So.2d 305, 308, citing La. C.C.P. article 1094 and Taylor v. Tulane University of Louisiana, 97-0977 (La.App. 4 Cir. 9/17/97), 699 So.2d 1117. The defendant in this case, the City of New Orleans, did not raise the exception of prescription in the trial court or at the appellate level. Because this was a defect personal to the original parties, | (¡La. C.C.P. article 1094 prohibits the interve-nors from raising the exception of prescription in this matter. For that reason, the intervenors’ motion to dismiss appeal due to prescription is denied.

In addition to the intervenors’ motion to dismiss the plaintiffs’ appeal, the plaintiffs also filed an exception of prescription to the petition for intervention. However, because we are affirming the trial court judgment and upholding the denial of plaintiffs’ appeal of the BZA decision for reasons stated below, the issue of whether the petition for intervention is prescribed is moot and need not be addressed.

Turning now to the assignments of error raised by plaintiffs, we find no merit in plaintiffs’ arguments that the trial court misapplied the law in this case, or erred in its judgment upholding the decision of the BZA. The standard for reviewing decisions of the BZA was recently summarized in Ellsworth v. City of New Orleans, 13-0084 (La.App. 4 Cir. 7/31/13), 120 So.3d 897, as follows:

The jurisprudence has recognized that “the decisions of the BZA, while subject to judicial review under La. R.S. 33:4727(e), are subject to a presumption of validity and are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion.” French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm’n, 99-2154, p. 3 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 18-19 (citing Curran v. Board of Zoning Adjustments, 90-1441 (La.App. 4 Cir. 04/16/91), 580 So.2d 417, 418; Lake Forest Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 138, 135 (La.App. 4th Cir.1986); Cross v. City of New Orleans, 446 So.2d 1253, 1255 (La.App. 4 Cir.1984)). The jurisprudence has further recognized that “[t]he reviewing court may not simply substitute its own judgment for that of the BZA.” Id. The jurisprudence has still further recognized that it “ ‘is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public.’ ” Toups v. City of Shreveport, 10-1559, pp. 5-6 |7(La.3/15/ll), 60 So.3d 1215, 1218 (quoting TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2 Cir. 7/14/04), 878 So.2d 880).

Id. at 6-7,120 So.3d at 902.

CZO Section 13.2.1 provides that “the burden of proof to establish the existence and retention of a nonconforming use shall be on the property owner of the building or land claiming retention or said nonconforming use by clear and convincing evidence.” In reasons for judgment, the trial court cites CZO Section 13.3.2, under the category of “Destruction of Nonconforming Use,” which provides as follows:

Application for a restoration permit shall be made within one year of the destruction in whole or in part by fire, storms or other acts of God or the public enemy. Restoration shall be completed within one year from the date of the issuance of the restoration permit unless extensions are approved by the Board of Zoning Adjustments.

The trial court also cited La. R.S. 33:4882, enacted in 2006, which provides, in pertinent part:

Notwithstanding any provision of law or municipal or parish ordinance or resolution to the contrary, the governing authority of any municipality or parish and any agency of any such municipality or parish shall not allow and shall not cause any building or land to lose its nonconforming use status because, during all or part of the period of August 29, 2005, through August 28, 2007, as a result of damage caused by Hurricane Katrina or Hurricane Rita, it is temporarily vacant or operations normally carried on in such building or on such land have been temporarily discontinued.

Both CZO Section 13.3.2 and La. R.S. 33:4882 were correctly applied by the trial court in this case. Plaintiffs’ original and amended petitions describe the property at issue as having sustained significant damage from Hurricane Katrina U(the amended petition states that the property was flooded). Plaintiffs’ brief also states that flooding resulting from Hurricane Katrina damaged much of the renovation work that Dr. Millaud had begun prior to the storm. As such, plaintiffs admit that there was at least destruction of the property “in part” as a result of the storm, thereby triggering the rules for restoration set forth in CZO Section 13.3.2. Furthermore, by all accounts, the property was temporarily vacant as a result of damage caused by Hurricane Katrina. Therefore, the provisions of La. R.S. 33:4882 also apply.

We find no merit in plaintiffs’ argument that Dr. Millaud is being deprived of a vested property right because he obtained a permit and had commenced renovation work on the property when the City determined that the property had lost its nonconforming use status. Plaintiffs rely on the case of St. Raymond v. City of New Orleans, 99-2438 (La.App. 4 Cir. 5/17/00), 769 So.2d 562, in support of this argument. We find that the plaintiffs’ reliance on the St. Raymond case is misplaced. Nothing in that decision relieves a property owner of his obligation to comply with the timetables established by the City’s zoning ordinances and applicable statutes.

As the trial court noted, on September 20, 2006, Dr. Millaud obtained a permit for electrical work on the property at issue. This Court has stated that “reading [La. R.S.] 33:4882 in connection with BZA [Section] 13.3.2,” a property owner had “two years to apply for a restoration permit and one year to complete repair.” Joubert v. City of New Orleans, 11-0854, p. 4 (La.App. 4 Cir. 1/11/12), 81 So.3d 994, 996-97. While the September 20, 2006 restoration permit was obtained by plaintiffs during the two-year period authorized by La. R.S. 33:4882, its issuance started the clock on the one-year deadline of CZO Section 13.3.2 for | restoration work to be completed or for an extension to be obtained by a property owner. We agree with the trial court that the plaintiffs had until September 20, 2007 to reestablish a business operation at the property, and not until August 28, 2007 as determined by the Department of Safety and Permits. Nonetheless, the record is clear that restoration of plaintiffs’ property was not completed within one year of the issuance of the September 20, 2006 permit, and business operations were not reestablished by that date. Furthermore, there is no evidence in the record that plaintiffs ever requested an extension from the BZA, as allowed under CZO Section 13.3.2. Based on these facts, the trial court affirmed the BZA’s December 12, 2011 decision that plaintiffs’ property lost its nonconforming use status. We affirm this decision by the trial court based on our conclusion that the BZA’s decision was not arbitrary, capricious or an abuse of discretion. We also find no error in the trial court’s denial of plaintiffs’ motion for new trial.

For the reasons stated above, the trial court judgments of May 23, 2013 and June 5, 2013 are affirmed. The intervenors’ motion to dismiss plaintiffs’ appeal is denied.

JUDGMENTS AFFIRMED; MOTION TO DISMISS APPEAL DENIED.

      . This Court has also noted that the BZA is authorized to grant additional extensions to a restoration permit beyond the initial two-year period of CZO Section 13.3.2. See Williams v. Parish of St. Bernard., 10-0397, p. 9 (La.App. 4 Cir. 10/13/10), 49 So.3d 520, 527.


author: MURDOCK, Justice.

text:
    Derrick ERVIN v. CITY OF BIRMINGHAM.
    1101555.
    Supreme Court of Alabama.
    March 22, 2013.
    Rehearing Denied Aug. 16, 2013.

      Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for appellant.
    Jacinda D. Anderson, City of Birmingham, Law Department, Birmingham, for appellee.
   MURDOCK, Justice.

Derrick Ervin appeals from a summary judgment in favor of the City of Birmingham (“the City”) in his in rem action seeking the return of $178,858. We affirm.

I. Facts and Procedural History

Most of the pertinent facts leading to the filing of Ervin’s action were summarized in the complaint for forfeiture of the subject $178,858 (sometimes hereinafter referred to as “the subject property” or “the cash”) filed by the United States on August 21, 2006, in the United States District Court for the Northern District of Alabama (“the federal district court”):

“That an investigation conducted by the Drug Enforcement Administration (DEA), together with local law enforcement agencies, into the illegal transportation and sale of cocaine in the Birmingham, Alabama area has revealed the following:
“(a) That since approximately 1997, Derrick Ervin has been engaged in a conspiracy with other individuals to sell and distribute multi-kilogram quantities of cocaine in the Birmingham, Alabama area.
“(b) That on or about February 16, 2006, officers with the Birmingham, Alabama Police Department (BPD), were conducting surveillance at The Patio Club apartment complex, located at 3400 Clairmont Avenue South, Birmingham, Alabama, because of suspected illegal drug activity. During that surveillance, officers observed three individuals leave Apartment 204 and proceed to the rear of the apartment complex; one of the individuals was carrying a black bag on his shoulder. An officer followed the three men and heard the sound of a vehicle being unlocked and locked again; the officer then heard what he recognized as the sound of a handgun being ‘chambered’ with a round of ammunition. “(c) That the BPD officer then identified himself by stating ‘Birmingham Police’ and asked who had chambered the round. One of the individuals, later identified as Derrick Ervin, was standing by a 2002 green GMC Denali truck as he removed a handgun from his waistband, pointed the weapon in the direction of the officer and fired multiple shots; Ervin and the other two individuals then fled on foot. Officers apprehended one of the other men, Donald Lundy, as he crouched behind a vehicle, pointing a handgun in the direction of another police officer.
“(d) That the third individual, Carl Sims, was observed entering a nearby grocery store, and then arrested by officers inside the store; a firearm was found in the nearby parking lot.
“(e) That officers later found Derrick Ervin several blocks away; another firearm was found near that scene.
“(f) That officers determined that the green 2002 GMC Denali truck, was registered to Derrick Ervin and impounded the vehicle. On February 17, 2006, BPD officers obtained a state search warrant for Ervin’s vehicle in connection with suspected illegal drug activity.
“(g) BPD officers used a drug detection dog around the outside of the truck; the dog reacted to the odor of controlled substances. At that point, DEA agents and BPD detectives executed the search warrant of the truck’s interior. During the search, officers found a black bag containing thirty-two (32) bundles of cash, each bound with rubber bands, totaling $160,840.00 in U.S. currency on the driver’s side rear seat of the vehicle. Officers also found a shoe box in the back seat containing six (6) more bundles of cash, totaling $18,000.00 in U.S. currency. Officers also found assorted documents bearing Ervin’s name, as well as another additional $18.00 in cash in the truck’s console. As a result of the search, law enforcement officers seized the defendant $178,858.00 in U.S. currency.”

(Emphasis added.)

Ervin did not contest the above-related facts in the federal district court. In the present action, Ervin contends that the cash was initially seized by the Birmingham Police Department (“the BPD”), not by the Drug Enforcement Agency (“the DEA”), and that the cash was subsequently transferred by “unknown Birmingham police officers ... to the DEA to commence forfeiture or condemnation proceedings” in the federal court. Ervin alleges that neither the Jefferson County District Attorney nor the Alabama Attorney General was notified of the seizure of the cash by the BPD. Ervin also emphasizes that the warrant to search his vehicle was issued by a Jefferson Circuit Court judge. As noted above, on August 21, 2006, the United States filed a complaint in the federal district court seeking forfeiture of the cash pursuant to 21 U.S.C. § 881. Ervin was served with notice of the complaint through his counsel of record. On January 18, 2008, Ervin filed a motion to withdraw his verified claim for the cash in the federal district court. The motion stated that Ervin “no longer wishes to pursue the claim and seeks to withdraw said claim and consent[s] to the forfeiture of said subject property.”

On January 28, 2008, the federal district court entered a final judgment forfeiting the $178,858 to the United States. Ervin did not appeal that judgment and has not sought any postjudgment relief from it in the federal court itself. Pursuant to “equitable sharing” of the seizure, the City received the majority of the cash for its role in the operation, and the DEA kept a small percentage.

On March 25, 2011, Ervin filed in the Jefferson Circuit Court a complaint for the return of the subject property, alleging that it had been seized under § 20-2-93, Ala.Code 1975, and that forfeiture proceedings should have occurred in accordance with that statute. Ervin alleged that, because such forfeiture proceedings had never been instituted, he was entitled to the return of the subject property.

On May 9, 2011, the City filed a motion to dismiss or, in the alternative, for a summary judgment, noting that the subject property had been forfeited through proceedings in the federal district court. On May 18, 2011, Ervin filed a cross-motion for a summary judgment in which he alleged that the federal district court never acquired jurisdiction over the subject property and that, therefore, the district court’s judgment was void. Ervin filed no evidence in support of his cross-motion for a summary judgment.

On May 31, 2011, the circuit court entered an order granting the City’s summary-judgment motion and denying Er-vin’s motion. The circuit court concluded that the federal district court had “properly exercised jurisdiction” over the cash because § 20-2-93 did not prohibit the City from transferring the cash to the United States in order to institute forfeiture proceedings.

On June 30, 2011, Ervin filed a motion to reconsider the denial of his motion for a summary judgment. On July 11, 2011, Ervin filed an amended motion to reconsider the denial of his motion for a summary judgment in which he attached the application for the search warrant pursuant to which the cash was seized as well as the search warrant itself.

Following a hearing on Ervin’s motion, the circuit court on August 16, 2011, denied Ervin’s motion.

II. Standard of Review

“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033,1034-35 (Ala.2005).

III. Analysis

Ervin’s action amounts to a collateral attack in state court on a final judgment entered by a federal court. Ervin asserts a right to property given to the State by the federal government. The federal government, however, obtained ownership of that property as against Er-vin pursuant to the 2008 judgment of the federal district court. Ervin filed no post-judgment motions challenging that judgment, nor did he appeal from it. To the contrary, as he stated in his motion to withdraw his claim for the cash filed in the federal court, Ervin “consented] to the forfeiture of the subject property.” Accordingly, the judgment of the federal district became a final judgment. As the successor in title to the forfeited property, the State is entitled to the res judicata benefit of that final judgment. Henderson v. Scott, 418 So.2d 840, 841-42 (Ala.1982) (holding that a successor in interest is entitled to res judicata benefit of prior judgment awarding property to its predecessor).

Ervin nevertheless contends that the cash was seized pursuant to a search warrant issued by a State judge under the auspices of § 20-2-93, Ala.Code 1975, that State law-enforcement officials initially seized the cash, and that they improperly transferred the cash to federal officials. Even if all these contentions were correct, they amount only to an attack on the authority of the federal district court to exercise jurisdiction over the res in an in rem action, not an attack on the subject-matter jurisdiction of the federal court over a forfeiture action brought under federal law. As such, they come too late and are being advanced in the wrong court. See Porsche Cars North America, Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir.2002) (distinguishing between objections to subject-matter jurisdiction and objections to a court’s exercise of jurisdiction over the res in an in rem action, and explaining that, as with in personam jurisdiction, “in ... civil forfeiture cases, for years courts have held that objections to in rem jurisdiction may be waived” and citing cases in support); United States v. Nineteen Thousand Eight Hundred Fifty Five ($19,-855.00) Dollars in United States Currency (No. 2:12-CV-146-WKW, Nov. 19, 2012) note 6 and accompanying text (M.D.Ala. 2012) (not selected for publication in F.Supp.3d)(explaining that objections to in rem jurisdiction may be waived if not timely asserted). See also Edney v. City of Montgomery, 960 F.Supp. 270, 273 (M.D.Ala.1997):

“After the city seized the currency at issue, the DEA adopted the city’s seizure by authorizing the city to seize the money on behalf of the DEA and to transfer the money to the DEA. ‘[U]n-der the “adoptive forfeiture” doctrine, the United States’ adoption of the State’s seizure of [the plaintiffs’] cash has the same effect as if the government had originally seized the currency.’ U.S. v. $119,000 in U.S. Currency, 793 F.Supp. 246, 249 (D.Haw.1992). That is, ‘[ojnce the federal government has taken custody of property under 21 U.S.C. § 881, such property is not repleviable, subject only to orders from the court having jurisdiction over the forfeiture proceeding.’ Id. And it is the federal district court that has original jurisdiction of a federal forfeiture action. 28 U.S.C. § 1355(a).”

(Emphasis added.)

IV. Conclusion

We affirm the judgment of the circuit court granting the City’s motion for a summary judgment on Ervin’s claim for return of $178,858 in cash previously ordered forfeited by a final judgment of the federal district court.

AFFIRMED.

MOORE, C.J., and BOLIN and MAIN, JJ., concur.

BRYAN, J., concurs in the result.

      .The unpublished memorandum of the Court of Criminal Appeals in Ervin’s criminal case relates that for these actions Ervin was convicted of first-degree attempted assault, trafficking in cocaine while in possession of a firearm, and failure to affix tax stamps. Ervin v. State (No. CR-07-0125, Aug. 27, 2010), 84 So.3d 1016 (Ala.Crim.App.2010) (table). He was sentenced to 10 years’ imprisonment, life in prison without the possibility of parole, and 10 years’ imprisonment, respectively, for those convictions; the sentences were to run concurrently. The Court of Criminal Appeals affirmed the convictions, and this Court denied certiorari review. Ex parte Ervin (No. 1100048, Aug. 5, 2011), 123 So.3d 15 (Ala.2011) (table).

      . Title 21 U.S.C. § 881 is part of the Controlled Substances Act.

      . Our courts have noted that "the provisions of § 20-2-93 are substantially similar to those contained in 21 U.S.C. § 881." Money v. State, 717 So.2d 38, 46 n. 4 (Ala.Crim.App.1997).


author: PARRO, J.

text:
    Jane M. LeBLANC v. Dr. Jayagopal APPURAO and Louisiana Medical Mutual Insurance Company a/k/a Lammico.
    No. 2013 CA 0491.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2014.

      Lauren A. Welch, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel, & Welch, L.L.C. New Orleans, LA, for Plaintiff-in-Intervention/Appellant, Ron A. Austin and Austin & Associates, L.L.C.
    Robert G. Harvey, Sr. New Orleans, LA, for Defendant-in-Intervention/Appellee, Jennifer M. Medley.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   PARRO, J.

lijRon A. Austin (Austin) and Austin & Associates, L.L.C. (the Austin firm) appeal a judgment dividing attorney fees on a quantum meruit basis between the Austin firm and Jennifer M. Medley (Medley). For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2009, attorneys Robert M. Johnston, with the office of Robert M. Johnston, L.L.C., and Michael Hingle, with the office of Michael Hingle & Associates, L.L.C. (collectively referred to as the Hin-gle group), filed a medical malpractice case on behalf of their client, Jane LeBlanc. Before filing suit, LeBlanc had entered into a contingency fee arrangement with the Hingle group. In early 2011, LeBlanc became dissatisfied with the performance of her attorneys and discussed her case with Medley. Medley was associated with the Austin firm at that time, and she arranged a meeting between LeBlanc and Austin to discuss the case. Following that meeting, LeBlanc discharged the Hingle group and on June 15, 2011, signed a contingency fee contract naming Medley and the Austin firm as her attorneys.

On August 15, 2011, LeBlanc’s malpractice case went to a mediation that was conducted by Austin and Medley. As a result of the mediation, the defendants agreed to a $300,000 settlement. Medley reached an agreement with the Hingle group that they were to receive two-thirds of the 40% contingency fee, specifically, $80,000, plus expenses, and she would receive one third of the 40% contingency fee, specifically, $40,000. However, Austin had not authorized this agreement, and it was inconsistent with a conversation between Austin, Medley, and LeBlanc at the mediation, purportedly advising that the Austin firm would lower its contingency fee to 33-1/3% and would try to get the Hingle group to do the same, resulting in a greater recovery for LeBlanc. At this point, Austin and the Austin firm terminated their relationship with Medley, and Le-Blanc also fired her. On September 19, 2011, LeBlanc signed another contingency fee agreement that named only Austin and the Austin firm as counsel, omitting Medley’s name from the agreement. Because the attorneys disagreed on the distribution of the attorney fees called for in the three contingency fee contracts, the amount of $120,000 |sin attorney fees, plus $23,852.42 in expenses incurred by the Hingle group, was deposited in the registry of the court.

Austin and the Austin firm filed an intervention in the lawsuit to recover their attorney fees, naming the Hingle group and Medley as defendants-in-intervention and asking that any damages recovered by LeBlanc be apportioned so that the inter-venors’ claim for legal services, costs, and expenses would take precedence over the plaintiffs recovery. The Hingle group also filed a petition of intervention and a supplementary and amending petition of intervention, naming Medley and Austin as defendants-in-intervention and seeking enforcement of the contract that they had negotiated with Medley. Medley, Austin, the Austin firm, and the Hingle group eventually agreed that the Hingle group was entitled to $80,000, plus $23,852.42 in expenses, and these amounts were paid to the Hingle group. The only remaining dispute was between Medley and the Austin firm as to the distribution of the $40,000 still on deposit in the registry of the court.

Medley filed a motion for summary judgment, claiming that, as of early May 2011, she was an independent contractor, of counsel to the Austin firm, and was no longer an employee of the Austin firm when LeBlanc agreed to hire her to handle the malpractice case. She contended that Austin and the law firm had no legitimate claim to an attorney fee in the case or, in the alternative, that any such fee be limited by quantum meruit. Austin and the Austin firm opposed the motion, claiming Medley was at all relevant times an employee of the firm, was paid a salary, and was entitled to only 10% to 35% of the collected fee if she was the originating attorney and did substantial work on a case. They based these percentages on two standard contracts used by the law firm when associating an attorney; no signed contracts between LeBlanc and Austin or the Austin firm were submitted into evidence. Finding there were genuine issues of material fact, the court denied the motion.

A concursus trial was held on August 15, 2012, after which the court took the case under advisement. In reasons for judgment, the court reviewed the evidence and concluded that Medley was an employee of the Austin firm from April 1, 2011, when |4she was hired, until August 16, 2011, when she was terminated. However, there was no signed, written contract setting forth the terms of her employment, nor was there a meeting of the minds as to the terms of her compensation. Accordingly, the court concluded that she should be paid on a quantum meruit basis. Applying the factors set forth in the Louisiana State Bar Association Rules of Professional Conduct, Rule 1.5, the court concluded that Medley was entitled to $23,500, and Austin and the Austin firm were entitled to $16,500. A judgment to this effect was signed November 5, 2012.

Austin and the Austin firm filed a sus-pensive appeal from this judgment. In their assignment of error, they state the trial court erred in awarding attorney fees to Medley, Austin’s employee, based on Austin’s intervention in these proceedings to enforce his and his firm’s attorney fee lien on the proceeds of the settlement.

APPLICABLE LAW

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

With regard to questions of law, appellate review is simply a review of whether the trial court was legally correct or legally incorrect. Hidalgo v. Wilson Certified Exp., Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. In re Mashburn Marital Trust, 04-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, 246, writ denied, 06-1034 (La.9/22/06), 937 So.2d 384.

ANALYSIS

The trial court made a factual finding that Medley was an employee of Austin and the Austin firm from April 1, 2011, when she was hired, until August 16, 2011, when she was terminated. As with any factual finding, this conclusion is reviewed under the manifest error standard. In written reasons for judgment, the trial court stated:

The evidence established that on or about April 1, 2011[,] Ms. Medley was hired by the Austin law firm. She was paid bi-monthly subject to state and federal withholding taxes, beginning April 16 through August 15, 2011. She was issued a W-2 for her compensation, assisted by office personnel and provided with a private office, other office supplies, administrative services and costs associated with her employment. On or about August 16, 2011 [,] Ms. Medley’s employment relationship with the law firm was terminated. After considering the evidence and testimony, the Court finds that there was a mutual intent to enter into an employment contract between Ms. Medley and Mr. Austin on behalf of the Austin law firm on or about April 1, 2011, and the agreement remained in effect through August 15, 2011.

Having reviewed the evidence, which includes copies of Ms. Medley’s payroll records, as well as testimony from the Austin firm’s office manager, Cynthia Coleman, from Austin’s paralegal, Debra Preston, from Austin, and from Medley, we conclude there was a reasonable factual basis for the court’s finding of fact that Medley was an employee of the Austin firm when the contingency fee contract with LeBlanc was signed on June 15, 2011, and continued through the date when the settlement was confected on August 15, 2011. Moreover, our review of the entire record does not reveal that this finding was clearly wrong.

The issue then is whether Medley, as an employee of the Austin firm, had a legal [ aright to a quantum meruit allocation of the attorney fee sought by the Austin firm in connection with the LeBlanc case, which she originated and worked on. Louisiana Revised Statute 37:218(A) states, in pertinent part:

By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws.

In order for an attorney to claim a contingency fee, the attorney must have a written contingency fee contract with the client. See Dereyna v. Pennzoil Exploration, 04-0097 (La.App. 3rd Cir.8/4/04), 880 So.2d 124, 127, writ denied, 04-2261 (La.11/19/04), 888 So.2d 197. Rule 1.5(c) of the Louisiana State Bar Association Rules of Professional Conduct states, in pertinent part, “A contingent fee agreement shall be in a writing signed by the client.” State Bar Articles of Incorporation, Art. 16, Rules of Prof. Conduct, Rule 1.5(c).

Medley contends that she had a valid contingency fee contract with LeBlanc, thus entitling her to claim a portion of the contingency fee from the Austin firm. She said that for the cases she originated after May 2011, she used a revised form of the Austin firm’s standard contract, which included her name as “of counsel” to the Austin firm. Austin testified that after LeBlanc verbally agreed to hire the Austin firm to represent her, he asked Medley to take care of having a contingency fee contract executed. The document signed by Medley and LeBlanc was a revised version of the Austin firm’s standard contingency fee contract. In four places, this contract named “JENNIFER M. MEDLEY, Attorney at Law, Of Counsel with the law firm of AUSTIN & ASSOCIATES, L.L.C.,” as LeBlanc’s attorney in connection with the malpractice suit. However, the agreement also stated that LeBlanc retained “JENNIFER M. MEDLEY, Attorney at Law, Of Counsel and the law firm of AUSTIN & ASSOCIATES, L.L.C.” to represent her. (Emphasis added). Medley and LeBlanc were the only signers on this contingency fee contract.

In the Dereyna case, an attorney was employed by a law firm for twelve years. He was paid a percentage of the fees earned in the cases he handled, with the 17percentage varying from time to time and from case to ease. The law firm paid all of the expenses and overhead. The attorney and the law firm never entered into a written agreement and had only a loose verbal understanding of their relationship. Eventually, the relationship deteriorated, and a fee dispute arose concerning a substantial settlement in a ease the attorney had worked on. Both the attorney and the law firm intervened in the lawsuit for all or part of the attorney fee specified in the contingency fee agreement with the client. The court held that the attorney had no right of action, because he was an employee of the firm and did not have a contingency fee contract with the client; the contingency fee contract was only with the law firm. However, the court also stated that its decision that the attorney had no right to intervene in the client’s suit did not preclude the attorney from claiming a portion of the fee from the law firm on the basis of quantum meruit or unjust enrichment. Dereyna, 880 So.2d at 129.

This case differs from the Dereyna case, in that Medley did not intervene in Le-Blanc’s case to enforce her claim to a portion of the contingency fee out of the client’s recovery. She merely responded to the intervention filed by Austin and the Austin firm, claiming that she was entitled to some portion of the fee, based on her origination of the case and the amount of work she had done in preparing for the mediation, communicating with LeBlanc and the Hingle group, and drawing up the settlement documents. At all times, her claim was against Austin and the Austin firm. Also, unlike the Dereyna case, the contingency fee contract executed by Le-Blanc on June 15, 2011, purported to engage the services of both Medley and the Austin firm to handle the malpractice litigation. We conclude, therefore, that under the unique circumstances of this case, the court did not err in allocating the attorney fee between Medley and the Austin firm on a quantum meruit basis.

CONCLUSION

For the above reasons, the November 5, 2012 judgment is affirmed. All costs of this appeal are assessed to Austin and the Austin firm.

AFFIRMED.

      . The Austin firm had already been paid the costs it had incurred; Medley did not claim any costs.

      . Austin and the Austin firm did not appeal the amount of the award allocated between them and Medley.