author:
MURPHY, J.
      LILJEBERG, J.,

text:
    IN RE: Ralph GUIDRY (D)
    NO. 17-CA-105
    Court of Appeal of Louisiana, Fifth Circuit.
    August 30, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CHRISTOPHER GUIDRY, INDIVIDUALLY, LOUIS GUIDRY, INDIVIDUALLY, MICHAEL GUIDRY, INDIVIDUALLY, DANIELLE, FONTE-NOT, INDIVIDUALLY, AND PATRICIA GUIDRY, INDIVIDUALLY, AND ON BEHALF OF, RALPH GÜIDRY (D), Todd A. Townsley, Jordan Z. Taylor
    COUNSEL FOR DEFENDANT/AP-PELLEE, M. KALEEM ARSHAD, M.D. AND KOA D. TRAN, M.D., Deborah I. Schroeder
    COUNSEL FOR DEFENDANT/AP-PELLEE, OCEANS BEHAVIORAL HOSPITAL OF GREATER NEW ORLEANS, LLC, Sidney W. Degan, III, Richard C. Badeaux, Maryann G. Hoskins
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   MURPHY, J.

|! Plaintiffs have appealed the trial court’s judgment granting the defendants’ exceptions- of prescription regarding their claim for wrongful death in this medical malpractice case. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs are the surviving wife- and adult children of decedent Ralph Guidry. Mr. Guidry, who was seventy-seven years old at the time of his death, suffered from vascular dementia. In 2014, he had become increasingly difficult to care for and moved into an assisted living facility. While in that facility, he exhibited inappropriate sexual behavior and was aggressive with the staff and .other residents. After punching a female resident in the face, Mr. Guidry was admitted to Oceans Behavioral Hospital of Gretna (“Oceans”) on October •19, 2014. .While in Oceans, he was under the care of Dr. Kaleem Arshad and Dr. Koa Tran. He was placed on various psychotropic medications in an attempt to decrease his aggressiveness and inappropriate behavior. During the early morning hours of November 4,. 2014, Mr. Guidry was found on the floor of his room. He was assisted to the bathroom to be cleaned. While in the bathroom, he became unresponsive. Despite aggressive attempts at resuscitation, Mr. Guidry died.

An autopsy dated November 5, 2014 diagnosed Mr. Guidry with bilateral pulmonary emboli with deep vein thrombosis. Mr. Guidry’s death certificate, which was issued on February 9, 2015, listed Mr. Guidry’s cause of death as “bilateral pulmonary emboli with deep leg vein thrombosis.”

On October 22, 2015, well within one year of decedent’s death, plaintiffs filed a claim with the Division of Administration against Oceans and. Drs. Arshad |aand Tran, requesting that a Medical Review Panel be formed to review the care rendered to Mr, Guidry. The claim alleged that the dates of medical malpractice, were from October 19, 2014 through November 4, 2014, The claim alleged that interventions were not implemented to reduce the risk of fall for Mr. Guidry and that he had suffered more than one fall and was injured. The claim alleged that Mr. Guidry was administered medications that were ordered by Drs. Arshad and Tran and that Mr. Guidry was sedated and physically restrained in a Geri-chair. The claim further alleged: “Mr. Guidry’s confinement coupled with the chemical rendered him immobile and at increased risk for a venous thrombus embolus. Mr. Guidry’s venous thrombus embolus risk was not properly identified nor were any interventions prescribed to reduce the risk of venous thrombus embolus.” The claim additionally alleged: “As a result of the breaches in the standard of care by defendants, Ralph Gui-dry fell and became injured and was subsequently locked into a chair and given significant doses of sedating medications causing him to develop a venous thrombus and embolus that progressed to a Pulmonary Embolus.” The claim stated that as a result of the improper treatment, Mr. Gui-dry suffered emotional distress, anxiety, loss of enjoyment of life, scarring, medical expenses, and premature death. The claim stated that defendants are liable to plaintiffs for the loss of consortium of their Spouse and father and for mental anguish and anxiety experienced as a result of Mr. Guidry’s unexpected death.

In a certified letter dated October 28, 2015, the Medical Malpractice Compliance Director of the Division of Administration informed plaintiffs’ attorney that pursuant to La. R.S. 40:1231.8(A)(l)(c) “a filing fee of $100 per qualified defendant must be received by the Patient’s Compensation Fund within 45 days of the postmark of this notice without exception.” The letter went on to state: “Please remit full payment to the Patient’s Compensation Fund in the amount of $300.00.” The letter further stated that the fee may only be waived | supon receipt of an affidavit from a physician or a district Court’s in forma pauperis ruling. Finally, the letter stated: “Failure to comply shall render the request invalid and without effect and shall not suspend the time within which suit must be instituted.” By certified letter dated December 18, 2015, the Medical Malpractice Compliance Director of the Division of Administration informed plaintiffs’ attorney that it had not received the filing fee, that he had failed to comply within the time allowed, and that the claim previously filed was invalid and without effect.

On December 22, 2015, more than one year after the decedent’s death, plaintiffs filed a claim with the Division of Administration against Oceans and Drs. Arshad and Tran, requesting that a Medical Review Panel be formed to review the care rendered to Mr. Guidry. In this claim, plaintiffs state that after reviewing the autopsy, Mrs. Guidry believed that Mr. Guidry died of natural causes. The claim explains that a few weeks after Mr. Gui-dry’s death, Mrs. Guidry obtained an incomplete copy of Mr. Guidry’s medical record from Oceans and arranged for this record to be reviewed by a nurse. The nurse informed her that the record was incomplete. A certified complete copy of the records was received on June 22, 2015. The claim states that Mrs. Guidry met with her attorney and the nurse on August 25, 2015 when she was informed for the first time that Mr. Guidry’s death “was due to improper medical treatment and that his death was not a natural progression of Alzheimer’s disease.” The same allegations made in the October 22, 2015 claim regarding improper treatment by Oceans and Drs. Arshad and Tran are repeated in this claim. This claim alleged that the defendants are liable for the survival claim of Mr. Guidry and the wrongful death claims of the plaintiffs.

On May 5, 2016, a Petition to Institute Discovery was filed in the 24th Judicial District Court by Drs. Arshad and Tran requesting that this matter be allotted to facilitate the provisions of the medical review panel proceeding. This Rrequest was granted. On that same date, Dr. Arshad and Tran filed an Exception of Prescription stating that the October 19, 2015 claim was without effect and that the December 22, 2015 claim was prescribed on its face since it was filed more than a year after Mr. Guidry’s death. On June 27, 2015, Oceans filed an Exception of Prescription arguing that despite constructive knowledge, plaintiffs did not file their claim within one year of the alleged malpractice and the claim should be dismissed.

Plaintiffs opposed the exceptions of prescriptions, arguing that Mrs. Guidry did not suspect malpractice until a nurse deciphered the medical records. Plaintiffs contend that prescription did not begin to run until the date of discovery of the malpractice. Plaintiffs contend that because the claim was filed within one year of the date of discovery of the malpractice, the claim filed on December 22, 2015 was not untimely.

Following a hearing on the motions, the trial court overruled the exceptions of prescription with respect to the survival claim. The trial judge asked for further memo-randa on the issue of whether the wrongful death claims were barred by the one-year prescriptive period starting from the date of Mr. Guidry’s death. The trial judge then rendered judgment sustaining the exceptions of prescription regarding the wrongful death claims. Plaintiffs seek review of the judgment sustaining the exceptions of prescription with respect to the wrongful death claims.

LAW AND DISCUSSION

Prescription is a peremptory exception which is provided for in Louisiana Code Civil Procedure article 927. Evidence may be introduced in support of or contravention of the exception if the grounds are not apparent from the petition. La. C. C.P. art. 931. When evidence is introduced at the hearing on the exception |Bof prescription, an appellate court reviews the ruling on the exception under the manifest error standard of review. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-401 (La. 10/17/06), 939 So.2d 1227, 1231. When no evidence is introduced, the appellate court “simply determines whether the trial court’s finding was legally correct.” Dugas v. Bayou Teche Water Works, 10-1211 (La. App. 3 Cir. 4/6/11), 61 So.3d 826, 830. Generally, the burden of proof lies on the party pleading the exception of prescription. Id. However, if it is apparent from the face of the pleadings that action is prescribed, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

The prescriptive period governing medical malpractice claims, codified in La. R.S. 9:5628(A), provides in pertinent part:

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

In a medical malpractice- case in which the patient of the alleged malpractice dies, the damage resulting from the alleged malpractice, i.e., the patient’s death, is immediately apparent. Carter v. Ochsner Clinic Found., 07-889, (La. App. 5 Cir. 03/11/08), 978 So.2d 562, 566, writ denied, 08-0936 (La. 08/29/08), 989 So.2d 99. The Louisiana Supreme Court discussed the application of the one-year prescriptive period with.respect to damages that are-immediately apparent in In re Medical Review Panel for Claim of Moses, 00-2643, (La. 5/25/01), 788 So.2d 1173, 1178 stating:

[A] one-year prescription period (which parallels the general tort period) is the general rule, which applies to all types of medical malpractice actions. Under this general rule, such actions prescribe Rone year from the date of the alleged act, omission or neglect. This rule applies when the damages are immediately apparent.

The Louisiana Supreme Court earlier had discussed the prescriptive period for a wrongful death claim asserted in a medical malpractice action in Taylor v. Giddens, 618 So.2d 834, 836 (La.1993) stating:

[Louisiana Revised Statutes] 9:5628 provides the prescriptive period for survival actions but does not provide the prescriptive period for wrongful death actions ... The commencement and running of the prescriptive period for the wrongful death action is controlled by the one, year liberative period applicable to delictual actions....

Delictual actions have a prescriptive period of one year which begins to run from the date the injury or damage is sustained. La. C.C. art. 3492. The Taylor court further explained that although the survival action and wrongful death claim both arise from a common tort, survival and wrongful death actions are separate and distinct. Taylor, 618 So.2d at 840. The wrongful death action, which compensates the beneficiaries for their own injuries suffered from the moment of the victim’s death, does not arise until the victim dies. Id. The Court held, that the prescriptive period for wrongful death claims arising from acts of medical malpractice is not controlled by the prescriptive period provided,for in La. R.S. 9:5268(A). Id. at 841. The Taylor court concluded that the wrongful death prescriptive period begins to run on the date of the victim’s death because that is the date that the claimants are injured. Id.

On appeal, plaintiffs argue that the trial court erred in refusing to apply the doctrine of contra non valentem to this wrongful death claim.

The doctrine of contra non va-lentem applies as an exception to the statutory prescriptive period where a plaintiff is unable to exercise his cause 'of action when it accrues. The Supreme Court has recognized four instances where contra non valentem can apply: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance ' of or acting on the plaintiffs factions; (2) where there was some condition-coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectively to prevent the creditor from availing himself of his cause of action; or (4) where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by'the defendant. Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206, 211. The doctrine of contra non valentem only applies in “exceptional circumstances.” Specialized Loan Servicing, L.L.C. v. January, 12-2668 (La. 06/28/13), 119 So.3d 582, 585; La. C.C. art. 3467, Official Revision Comment (d).

This court has held that when the victim of an alleged act of medical malpractice dies, the damage resulting from the alleged malpractice, i.e., the victim’s death, is immediately apparent. Carter, supra. The Supreme Court explained in Taylor, supra, that a wrongful death claim is not the same as a malpractice claim and wrongful death claims are not necessarily dependent on the presence of a viable malpractice claim. Taylor, 618 So.2d at 841. In a wrongful death action based on medical malpractice, the date of the malpractice victim’s death determines when the prescriptive period commences running, since the date of death is the date the claimants are injured. Id.

Plaintiffs argue that the fourth category of contra non valentem applies to suspend prescription in this case because plaintiffs did not know and could not have known of the malpractice action at the time of Mr. Guidry’s death. They contend that their wrongful death claim was not readily apparent at the time of Mr. Guidry’s death. They argue that the evidence presented at the hearing on the exceptions of prescription showed that it was not until the autopsy and complete medical records were reviewed by a nurse that they were able to discover the actual cause of death.

|sThe evidence in this case indicates that the plaintiffs knew the date Mr. Guidry died and that they immediately requested that an autopsy be perform on Mr. Guidry. A comparison of the two complaints filed by plaintiffs with the Division of Administration indicates that the primary difference is that the second complaint contains several paragraphs regarding discovery of the alleged malpractice. It is significant that the first claim, which was timely filed, makes no mention of any inability to discover the alleged malpractice. A review of the first complaint indicates that claimants had discovered the alleged malpractice, i.e., the failure to properly treat Mr. Gui-dry led to the development of emboli that caused his death.

In the instant case, the wrongful death prescriptive period began to run on November 4, 2014, the date of Mr. Guidry’s death. Plaintiffs’ claim filed on December 22, 2015 is prescribed because it was not filed within one year of Mr. Guidry’s death. Plaintiffs have not shown any extraordinary circumstances to invoke the exception of contra non■ valentem to suspend or interrupt the prescriptive period to file their wrongful death claims. The failure to pay the required filing fee is not a reason to apply the extraordinary exception of contra non valentem. Based on the reasoning set forth in Taylor, supra, and given the facts and circumstances of this case, we find that the trial court did not manifestly err in sustaining defendants’ exceptions of prescription regarding plaintiffs’ wrongful death claims.

CONCLUSION

For the foregoing reasons, the trial court’s judgment sustaining defendants’ exceptions of prescription in favor of Dr. Kaleem Arshad, Dr. Koa Tran, and Oceans Behavioral Hospital of Greater New Orleans, and dismissing the wrongful death claims of Christopher Guidry, individually, Louis Guidry, individually, ^Michael Gui-dry, individually, Danielle Fotenot, individually, and Patricia Guidry, individually, is affirmed. .

AFFIRMED

DISSENTS WITH REASON

LILJEBERG, J.,

DISSENTS WITH REASONS

hi respectfully dissent from the majority’s decision to affirm the trial court’s judgment which granted, in part, defendants’ exceptions of prescription and dismissed plaintiffs’ wrongful death claims.1 believe the trial court erred as a matter of law when it determined the Louisiana Supreme Court’s decision in Taylor v. Giddens, 92-3054 (La. 5/24/93), 618 So.2d 834, and subsequent appellate decisions, supported its finding that the discovery rule does not apply to wrongful death actions. I further believe the majority erred when it conducted a de novo review of the facts relevant to the application of the discovery rule, rather than deferring to the trial court’s factual findings on this issue. The' same facts apply to both the survival and wrongful death actions. The trial court found the date of discovery of the alleged medical malpractice was in late January 2015 for the survival action. Yet, the majority states the date of discovery of the alleged medical malpractice is November 4, 2014, the date of death, for the wrongful death action. For these reasons and those discussed more fully below, I believe the trial court’s judgment dismissing plaintiffs’ wrongful death claims should be reversed.

The assignment of error raised by plaintiffs on appeal is whether the trial court misapplied the law when it determined the discovery rule, the fourth prong under the doctrine of contra non valentwm, does not apply to wrongful death actions involving medical malpractice. I disagree with the majority’s decision not to address this assignment of error in its opinion, and therefore, provide some additional discussion regarding the background and relevant facts relating to this issue.

| ¡According to testimony and the certified copy of the autopsy report entered into evidence during the hearing on the exceptions, the anatomical autopsy was completed on November 5, 2014. However, the entire autopsy report was not completed on that date because blood and vitreous specimens were obtained and sent for screening. The autopsy report contains five scientific and toxicology reports, three dated December 5, 2014, one dated December 19, 2014, and a toxicology report dated December 24, 2014. Testimony presented at the hearing indicated the coroner did not issue the autopsy report until January 6, 2015. Plaintiffs received a copy of the autopsy report on January 27th or 28th, 2015, which revealed for the first time that their family member, Ralph Guidry, died as a result of a pulmonary embolism.

Following the hearing, the trial court found the discovery rule suspended accrual of the prescriptive periods for the survival actions based on its factual finding that the earliest time plaintiffs knew or should have known of the medical malpractice allegedly causing Mr. Guidry’s death was when they received the autopsy report in January 2015, over two months after the date of death on November 4, 2015. The trial court specifically found as follows:

THE COURT:

Based upon the only evidence presented to this Court, the Court is going to liberally apply the prescriptive period and maintain the cause of action for survival action, and the Court will utilize the autopsy report to show that the earliest time that the survival action could have—could have or should have been known is sometime in January. If somebody wants to give me the specific date.

MR. TOWNSLEY:

January 6th is when it was completed, and January 29th is when it was—

| .¡THE COURT:

So sometime in January they got the autopsy report which started the ball rolling of whether or not you, again, based upon a liberal interpretation of prescription, the Court will find that December is clearly within that one year of that as the earliest date, not the actual date of death.

The trial court then asked the parties to file additional briefs regarding whether a wrongful death claim is barred by a strict one year period from the date of death:

THE COURT:

However, the cause of action related to the wrongful death action, I want a legal—using that—clearly if I’m using the January date, then it survives if you win on the argument that something else should apply versus one year.

Therefore, the trial court recognized that if the discovery rule applied to the wrongful death actions, they would be timely based on its factual finding that the first time plaintiffs should have known of the alleged medical malpractice causing the death was in January 2015.

On September 7, 2016, the trial court provided a ruling from the bench as to whether the wrongful death actions were prescribed. The trial court determined that when applying contra non valentum to a wrongful death action, “the cases implicitly have done away with the argument that the discovery rule is one of the facts for the Court to consider.” Therefore, while applying the discovery rule to the survival action, the trial court rejected plaintiffs’ argument that the same rule and facts should serve to delay commencement of the prescriptive period for their wrongful death actions. The trial court declared the wrongful death claims untimely because plaintiffs failed to file them within one year after the date of death.

|/The trial court’s decision creates a situation where even when the facts establish a plaintiff does not know or should not know at the time of death of the alleged tort causing the death (in this case medical malpractice), the wrongful death prescriptive period still begins to run. This decision allows a scenario where a wrongful death action could prescribe before plaintiff has notice of facts sufficient to incite curiosity or attention that a cause of action exists. Though wrongful death actions are distinct from survival and underlying medical malpractice actions, a wrongful death action does not arise without the existence of an underlying tort of medical malpractice. As discussed more fully below, I believe it is improper to reach a legal conclusion which creates a segment of plaintiffs who may lose their wrongful death claims before they know or should know of the tort creating the existence of the claim. Furthermore, I believe it is important to directly address this legal issue to prevent any additional confusion regarding the application of the discovery rule to wrongful death claims in the future,

. It is' well-established that the doctrine of contra non valentum creates a jurisprudential exception to the running of prescriptive periods. Richards v. Choice Hotels Int'l, Inc., 13-973 (La. App. 5 Cir. 5/21/14), 142 So.3d 249, 252. La.C.C. art. 2315.2 contains language indicating the time limitation for a wrongful death claim is a prescriptive period: “The right of action granted by this Article prescribes one year from the date of death of the deceased.” [Emphasis added.] The Louisiana Supreme Court also recognizes the prescriptive nature of the time limitation to file a wrongful death action. Taylor, 618 So.2d at 841.

. [ ¿Despite the trial court’s findings, I have not located any cases expressly declaring the contra non valentum discovery doctrine no longer applies to wrongful death claims. To the contrary, in Hotard v. Banuchi, 00-1364 (La. App. 5 Cir. 1/30/01), 784 So.2d 654, 655, this Court explicitly recognized the application of the discovery rule to wrongful death actions:

Medical malpractice claims must be brought within one year from the alleged malpractice or within one year of the discovery of the malpractice. La. R.S. 9:5628. Claims for wrongful death must be brought within one year of the date of death or discovery of the negligence which caused the death. La. C.C. art. 3492. [Emphasis- added.]

The trial court started its analysis with the Louisiana Supreme Court’s finding in Taylor, swpra, that the prescriptive'period for ,a wrongful death action runs from the date of death, .It is important to recognize the context within which the Supreme Court rendered this decision. First, the factual scenario facing the Taylor court was completely opposite from the- scenario .facing this Court. In Taylor the plaintiff knew of the alleged medical malpractice years prior to the date -of death, whereas in the- present matter the trial court has determined plaintiffs could not have known of the alleged malpractice until they received the autopsy i’eport. Because of this factual difference, it is important to note that the • Taylor court was not faced with the issue of whether the discovery rule applies to a wrongful death action.

The Taylor court’s analysis arose from a factual situation where the plaintiff knew three years prior to his wife’s death that her doctor failed to diagnose her |fiwith cancer of the esophagus. 618 So.2d at 838. The Taylor court considered a split in, the circuits as to whether the medical malpractice prescriptive period set forth in La. R.S. 9:5628 applied to -wrongful death actions, as well as survival actions. Id. at 839-40. This presented the Louisiana Supreme Court with the dilemma of whether the prescriptive period for the wrongful death cause of action must begin to run from the date the plaintiffs’ learned of the medical malpractice and therefore, potentially prescribe even before the patient died. Id, at 841. Because of this, the Louisiana Supreme Court explained that with respect to the applicable prescriptive period, wrongful death actions must be treated differently than survival and medical malpractice actions, and determined that even when the plaintiff knows of the alleged act or omission constituting medical malpractice prior to death, the prescriptive period for the-wrongful death claim did not begin to run until the date of. death. Id. The Taylor court determined the date of discovery of the medical malpractice was inconsequential when the plaintiff had knowledge of the álleged malpractice prior to death. However, I do not believe it would reach the same conclusion if faced with the present matter where the plaintiffs are not aware of the alleged malpractice until after the date of death.

In reaching its decision, the Taylor court noted that its decision avoided’ the creation of a segment of plaintiffs who would lose their right to pursue wrongful death actions before they even came into existence:

This statutory construction and interpretation. satisfies the State’s interest in protecting the family unit which is at the core of the wrongful death statute. Comment, Wrongful Death in Louisiana: Too Often A “Cause” Without A “Right,”41 La.L.Rev. 954 (1981). It also prevents the loss of the wrongful death action to a certain class of victims (claimants), an action which was given to all wrongful death victims (claimants) by Acts of 1884, No. 71, and which have been .considered since 1884 as a compen-sable injury and a vested property right. See LSA-C.C. arts. 2315, 2315.2; Guidry v. Theriot, supra; 39 La.L.Rev. 1239, supra at 1241; 58 Tul.L.Rev. 1547, supra 1248. Cf. Crier v. Whitecloud, on rgh’g, supra, [when, an injury occurs which |7fflves the injured party a cause of action, that cause of action becomes a vested property right which is protected by the guarantee of .the due process clause; when a. person does not file suit within the prescriptive period, the person has no cause of. action and no vested property right]. Additionally, .this construction prevents the aura of unconstitutional restriction of access to the courts to a certain class of wrongful death claimants and equally protects the claimant’s property, interest by insuring they have a period in which to bring .their cause of action after it accrues. LSA-Const. Art. I, § 3, Art. I, § 22. See generally Crier v. Whitecloud, on reh’g, supra; Everett v. Goldman, 359 So.2d 1256 (La. 1978); Valentine v. Thomas, 433 So.2d 289, 292 (La. App. 1st Cir. 1983)[“Eqúal protection of the law means that state laws must affect alike all persons similarly situated.”], writ den., 440 So.2d 728 (La. 1983).

Just as the Taylor court was concerned about creating a faction of plaintiffs whose wrongful death actions would prescribe before death occurred, I believe this Court must also be mindful of providing a vague legal analysis which could servé to create a faction of plaintiffs whose wrongful death prescriptive period commences and- ends before they could or should know medical malpractice caused their family member’s death.

As noted above, the majority did not directly address the trial court’s erroneous legal conclusions. Instead, the majority cites to language from this Court’s decision in Carter v. Ochsner Clinic Foundation, 07-889 (La. App. 5 Cir. 3/11/08), 978 So.2d 562, 566, writ denied, 08-0936 (La. 8/29/08), 989 So.2d 99, noting that when a patient dies as a result of medical malpractice, the damage, i.e. the patient’s death, is immediately apparent. The majority then cites to the Louisiana Supreme Court’s decision in In Re Medical Review Panel for Claim of Moses, 00-2643 (La. 5/25/01), 788 So.2d 1173, for the principle that when damages are immediately apparent, the actions prescribe one year from the date of the “alleged act, omission |8or neglect.” The majority also notes that the Taylor court concluded that the wrongful death prescriptive period runs from the date of death because that is the date the claimants are injured. The majority’s position on the discovery rule is unclear to me. On the one hand, the majority seems to indicate in its analysis that because the death, the damages resulting from the alleged medical malpractice is immediately apparent, the prescriptive period for a wrongful death action must always commence at the date of death. However, at the end of the opinion, the majority appeared to entertain and reject plaintiffs’ discovery rule arguments after conducting its own analysis of the facts.

I believe the analysis provided in the majority opinion is incomplete because in order for a prescriptive period to com-menee, the plaintiff must have more than knowledge that damage or a death occurred. The Louisiana Supreme Court, as well as this Court, recognize that prescriptive periods do not commence until the plaintiff knows or should know of three things: the damage, the tort, and the relationship between them. Bailey v. Khoury, 04-620 (La. 1/20/05), 891 So.2d 1268, 1275-76; Encalade v. Coast Quality Constr. Corp., 00-925 (La. App. 5 Cir. 10/31/00), 772 So.2d 244, 247, writ denied, 00-3229 (La. 1/26/01), 782 So.2d 634. Determination of when prescription commences under the discovery rule depends on two primary factors: (1) the date on which the plaintiff gained actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort; and (2) the date on which the “tortious act actually produces damage.” Bailey, 891 So.2d at 1284.

Therefore, in addition to knowledge of the damages, plaintiff must also have sufficient knowledge or notice that a tort or negligence occurred. Prescription does not begin to run at the first indication that the plaintiff may have suffered harm, but rather it begins to run when a plaintiff has a reasonable basis to pursue a claim |9against a specific defendant. Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987).

In Taylor, the prescriptive period for the wrongful death action ran from the date of death because the plaintiffs already had knowledge of the alleged act of malpractice. In the present matter, after conducting a hearing and reviewing the evidence and testimony, the trial court determined plaintiffs could not have known of the alleged medical malpractice until over two months after the date of death. In many instances, it is easy to discern the cause of death is the alleged medical malpractice. However, this is not always the case. I believe that failing to account for those factual situations where the alleged medical malpractice causing the death is not immediately apparent essentially creates a type of peremptive period for wrongful death claims. I do not believe this is the result the Taylor court intended when it stated the prescriptive period runs from the date of death. Just as the Taylor court found it necessary to avoid creating a class of claimants who could lose their wrongful death claims prior to the decedent’s death, I also believe it is improper for courts to imply or establish that a plaintiff must always know that medical malpractice caused the death. Therefore, I believe the majority should have recognized in its analysis that when a plaintiff does not and could not know of the alleged medical malpractice at the time of death, the discovery rule can serve to suspend the commencement of the prescriptive period.

Finally, I believe the majority erred by conducting its own independent analysis of the evidence and disregarding the trial court’s factual finding that plaintiffs could not have known of the alleged malpractice until they received the completed autopsy report. Although contra non valentwm is a legal principle, its application to the facts of the case and a determination of whether the plaintiffs were prevented from filing their claim under one of the four circumstances is an Imissue of fact. Amoco Prod. Co. v. Texaco, Inc., 02-240 (La. App. 3 Cir. 1/29/03), 838 So.2d 821, 829-830, writ denied, 03-1102, 031104 (La. 6/6/03), 846 So.2d 1096. Therefore, the trial court’s finding of fact on this issue is subject to the manifest error, clearly wrong standard of review. Id.

The same evidence, facts and circumstances apply to both the wrongful death and survival actions. Again, the survival and wrongful death actions are interrelated to the extent they both arise from the same negligence or fault, which is the medical malpractice. I believe the majority overlooked the trial court’s factual findings regarding when plaintiffs first should have known of the alleged medical malpractice, and instead determined the evidence establishes plaintiffs had facts sufficient to notify them of the existence of the alleged medical malpractice at the time of death. It is contradictory to have two different factual findings as to when sufficient knowledge existed to commence the prescriptive period for each cause of action. I believe if the majority agrees that the discovery rule can apply to plaintiffs’ wrongful death actions, then it should have deferred to the trial court’s factual findings on this issue unless manifestly erroneous.

The evidence indicates that this matter involved an elderly person who collapsed and died for reasons unknown to plaintiffs until the release of the autopsy report. In conducting its own independent review of the evidence, the majority concluded that because plaintiffs immediately requested an autopsy after the death and subsequently failed to mention their alleged inability to discover the alleged malpractice in their first claim filed with the medical review panel, they knew of the alleged medical malpractice on the date of death. I do not believe these facts are sufficient to disregard the trial court’s factual findings relevant to the. application of the discovery rule.

      . An autopsy was not required by law following Mr. Guidry’s death. It appears that the autopsy was performed at the request of Mr. . Guidry’s family.

      . This appeal pertains solely to the judgment sustaining the exceptions of prescription with respect to the wrongful death claims.

      . Plaintiffs filed both survival and wrongful death actions. The exceptions of prescription filed by defendants sought dismissal of both causes of action. The trial court denied defendants' exceptions of prescription with respect to plaintiffs' survival action claims based on its application of the discovery rule. Therefore, the survival actions remain pending before the medical review panel.

      . La. C.C. art. 2315.2 provides “[i]f a person dies due to the fault of another, suit may be brought by the following persons ... ."[Emphasis added.] Furthermore, in Taylor, supra, the Louisiana Supreme Court recognized a wrongful death action has its genesis in an act of malpractice, and that wrongful death and survival actions arise from a "common tort.” 618 So.2d at 840.

      . Plaintiffs also cite to a list of cases where courts have applied the discovery rule to wrongful death actions arising from both general tort law and medical malpractice: Brown v. Department of Health and Human Resources, 498 So.2d 785 (La. App. 4 Cir. 1986), writ denied, 500 So.2d 430 (La. 1987); Quibodeaux v. Medical Center of Southwest Louisiana, 97-204. (La. App. 3 Cir. 3/6/98), 707 So.2d 1380, writ denied, 98-926 (La. 5/15/98), 719 So.2d 465; In re Medical Review Panel of Howard, 573 So.2d 472 (La. 1991); Dean v. United-Medical Center, No. 2004-CA-588 (La. App. 4 Cir. 2004); Guillot v. Daimlerchrysler Corp., 08-1485 (La. App. 4 Cir. 9/24/10), 50 So.3d 173, writ denied, 11-321 (La. 3/2/11), 58 So.3d 461; Leslie v. Shell Chemical LP, 2013 U.S. Dist. LEXIS 120215 (E.D. La. 2013); Watkins v. Exxon Mobil Corp, 12-477 (La. App. 4 Cir. 5/29/13), 117 So.3d 548, aff’d on appeal, 13-1545 (La. 5/7/14), 145 So.3d 237; McClendon v. State, 357 So.2d 1218 (La. App. 1 Cir. 1978).

      . The trial court also relied heavily on the Carter decision for its conclusion that the discovery rule does not apply to wrongful death actions. The Carter court made no such statement. Rather, this Court based its decision on its finding the plaintiff "presented no evidence to support a suspension or interruption of the one year prescriptive period that began on the date of death.” Id. at 566. Furthermore, the facts in Carter involved a plaintiff who died as a result of internal bleeding after a doctor improperly inserted a catheter during dialysis. These facts are much more extreme and obvious than the current situation involving an elderly man who collapsed and died for unknown reasons.


source: Caselaw Access Project

author: HANS J. LILJEBERG JUDGE

license: Public Domain

text:
    Dean E. STIPP v. METLIFE AUTO AND HOME INSURANCE AGENCY, INC. and/or MetLife Auto and Home, Metropolitan Property and Casualty Insurance Company, Mercedes-Benz USA, LLC, Benson Motor Company d/b/a Mercedes-Benz of New Orleans and ABC Insurance Company
    NO. 17-CA-61
    Court of Appeal of Louisiana, Fifth Circuit.
    August 30, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, DEAN E. STIPP Corina E. Salazar, Cesar R. Burgos, Robert J. Daigre, Gabriel 0. Mondino, George M. McGregor
    COUNSEL FOR DEFENDANT/APPELLANT, BENSON MOTOR COMPANY D/B/A MERCEDES BENZ OF NEW ORLEANS AND ON BEHALF OR ITS TRADE NAME, D/B/A MERCEDES BENZ OF NEW ORLEANS Leonard A. Davis, Charles M. King, Charles G. Justice, III
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   HANS J. LILJEBERG JUDGE

|,In this breach of contract case arising from the repair of a motor vehicle after a collision, defendant appeals the trial court’s judgment rendered in favor of plaintiff. For the following reasons, we reverse and vacate the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

In March of 2008, plaintiff, Dean Stipp, purchased a 2008 Mercedes Benz SL550 (“the SL550”) from defendant, Benson Motor Company d/b/a Mercedes Benz of New Orleans (“Benson”), for approximately $91,000. Several months later, on November 9, 2008, Mr. Stipp was involved in a high impact collision with another vehicle, causing substantial damage to the SL550. On November 13, 2008, the SL550 was towed to Benson for repairs.

Although Mr. Stipp’s insurer, Metropolitan Property and Casualty ' Insurance Company (“Metropolitan”), prepared a repair estimate after the collision, Benson discovered additional damage during the repair process. On March 2, 2009, Benson requested a supplemental from Metropolitan to complete the repairs, and Metropolitan subsequently approved the request. On June 30, 2009, Benson notified Mr. Stipp that the repairs were complete.

In July of 2009, when Mr. Stipp went to Benson to pick up his vehicle, he noticed some scratches on the body of the car and a scratch on the navigation screen located on the dashboard. Mr. Stipp left the SL550 at Benson for them to repair the scratches. Benson requested a second supplement from Mr. Stipp’s insurer in order to repair the navigation screen. On August 20, 2009, Benson informed Mr. Stipp that the vehicle was ready, and he picked it up on August 26, 2009. The total cost of the repairs for 'the SL550 was approximately $36,000.

|2On November 6, 2009, Mr. Stipp filed this lawsuit against Benson alleging breach of contract to repair and breach of duty of good faith. In his petition, Mr. Stipp asserted that Benson failed to repair the SL550 within a reasonable time and failed to repair it to his satisfaction or to its pre-accident condition. He alleged that in addition to the diminished value of the car due to its defective condition, he also sustained damages due to the repair delay. Mr. Stipp asserted that the damages due to the repair delay included the insurance premiums and car notes he paid while the car was being repaired and was unusable, as well as damages for inconvenience and loss of enjoyment of the vehicle.

On November 18, 2009, after filing this lawsuit, Mr. Stipp had the SL550 towed to Benson with complaints regarding the finish on the passenger door, operation of the convertible top, warning lights on the dashboard, and the vehicle’s electrical system. Benson repaired the finish on the passenger door, replaced the starter battery, found the car to be fully operational, and notified Mr. Stipp that the vehicle was ready on November 19, 2009. He picked up the SL550 on December 11, 2009.

In connection with this litigation, Mr. Stipp was deposed on February 15, 2011. In his deposition, Mr. Stipp testified that he believes the SL550 cannot be fixed and will never be the same as it was before the accident. He stated that it drives a little different and does not feel the same, the top creaks, and the trunk does not close properly. After this deposition, the SL550 was towed to Benson on July 6, 2011, for an inspection and to allow Benson to make any appropriate repairs. During the inspection, Benson replaced the system battery and the |3hydraulic pump that operates the roll bar for the convertible top. Benson also found that the trunk did not close properly, as alleged by Mr. Stipp, because the owner’s manual was in the trunk in a position that prevented it from closing properly. The SL550 was towed back to Mr. Stipp on August 2, 2011.

According to Mr. Stipp, he continued to experience problems with the SL550. Approximately three years after Benson last inspected the vehicle, Mr. Stipp had the SL550 inspected by an automobile mechanic, Ryan Sterling, in August of 2014. Mr. Stipp gave Mr. Sterling a list of problems he was experiencing and asked him to inspect and confirm them, but not to fix them.

On August 29, 2016, a bench trial was held in this matter. At trial, Dean Stipp testified that he purchased the SL550 as a pleasure vehicle to be used on “nice days.” He did not intend to use this vehicle for everyday driving. Mr. Stipp testified regarding the problems he experienced with the SL550 after the collision and subsequent repairs by Benson. He stated that the car and the brakes felt different after the repairs and the roll bar for the convertible top had problems. He also testified regarding battery issues, stating that the battery would be drained if the car sat for two weeks or so without being driven, and warning lights would come on the dashboard. Mr. Stipp testified that prior to the accident, he was able to leave the car without driving it for a month and the battery would still work properly. He stated that he contacted Benson about - the battery problem and was told to drive the car around the block every two weeks.

According to Mr. Stipp, while the car was at Benson for repairs, he knew he had rental insurance but he did not ask for a rental car because he had another vehicle to use. He also testified that he contacted John Stemke, the body shop manager at Benson, about once a month to check on the repair status and Mr. Stemke would typically say the repairs were delayed because they found more “twisted stuff.” Mr. Stipp testified that he did not consider selling or trading the |4SL550 to Benson; he just wanted the vehicle fixed. At trial, he did not recall receiving a letter in 2012 from Benson indicating that Benson was willing to purchase the car from him or arrange a trade-in. He testified that he may have known that Benson was willing to buy the car back from him, but he did not recall.

Mr. Stipp testified at trial that he did not recall Mr. Stemke saying that he did not know how long the repairs would take when the SL550 was initially taken to Benson for repairs. However, he admitted that in his deposition, he testified that Mr. Stemke indicated that he did not know how long the repairs would take.

Ryan Sterling was accepted by the trial court as an expert in automotive maintenance, repair, and claims dealing with insurance companies. Mr. Sterling testified that he inspected, .the SL550 in August of 2014 at Mr. Stipp’s request. When the vehicle arrived for the inspection, the batteries had to be charged before Mr. Sterling could evaluate Mr. Stipp’s complaints. Mr. Sterling confirmed that the windows were not operating properly and the roll bar for the convertible top was not operating properly. He stated that he did not test drive the vehicle due to safety concerns, because the brake pedal “sank to 'the floor,” indicating that the braking system was not working properly. He also stated that one side of .-the trunk had a greater gap than the, other. .Mr. Sterling testified that he did not determine the cause of any of the vehicle’s problems.

Mr. Sterling admitted that he did not know some preliminary information about the car, such as whether it was frequently used or whether it went for long periods of time without use. He was aware that .the vehicle was returned to Mr. Stipp in August of 2009, after the initial repairs by Benson, and that he had examined it five years after the repairs were performed. Mr. Sterling could not say that Benson did anything wrong, what caused the vehicle’s problems, or how long the problems existed.

| .^Regarding the timeliness of Benson’s repairs, Mr. Sterling testified that it was “irresponsible” for the repairs to have taken nine months to complete. He stated that it was unreasonable for Benson to have taken until March of 2009 to request the first insurance supplement, but after the additional parts were ordered and came in, he did not think it was unreasonable for the repairs to be completed in June of 2009. When Mr. Stipp came to pick up the SL550 after the repairs were initially completed in June of 2009, he found additional scratches. As a result, Benson had to request a second insurance supplement and the repairs were completed in August of 2009. Mr. Sterling admitted that he has personally had a repair job that took nine months to complete. Mr. Sterling did not-testify as to what he believes would have been treasonable time to repair the SL550 based on the extensive .damage it sustained in the collision.

Finally, Mr.' Sterling testified regarding the valué of the SL550. He stated that 'he is knowledgeable about a car’s depreciation over time' and how ah" accident can affect its value. Mr. Sterling testified that when the accident" occurred, the SL55Ó was worth approximately $70,000. He further stated that the value of a vehicle in such a collision would be affected by at least fifty percent. Thus, he opined that the SL550’s resale value likely dropped by approximately $36,000 after this accident, which is roughly the cost of the repair.

The defense called John Stemke, the body shop manager at Benson, who was accepted as an expert in body shop operations, management, and repair. Mr. Stemke testified that .on November 13, 2008, the day. Benson received the SL550 for repairs, he spoke on the phone to Mr. Stipp and discussed the repairs. He stated that he informed Mr. Stipp that the body shop had a heavy workload at that time and would not be able to start the repairs on his vehicle right away. Mr.- Stemke asserted that he told Mr. Stipp the repairs would take several months and that he |fiwas unable to give an estimated completion date due to the complexity of the repairs.

Mr. Stemke testified about the timeline of the repairs. He stated that the adjuster’s estimate was prepared before Benson received the vehicle. Parts were ordered, and they were received on December 8, 2008. Mr. Stemke testified that after the parts came in, a technician would have been assigned to the vehicle once a technician became available. He was not sure if the work on the SL550 began in December of 2008 or early 2009. Mr. Stemke stated that once the car was “torn down,” additional damage was found, so Benson requested an insurance supplement in March of 2009. Once the supplement was approved, additional parts were ordered and received, and they completed the repairs on June 30, 2009. However, when Mr. Stipp came to get the car and noticed some scratches on the vehicle and a light scratch on the navigation screen, Benson had to request a second supplement, resulting in further' delay. After these additional repairs, Mr, Stipp picked up the SL550 bn August 26, 2009.

When the vehicle was returned to Benson in November of 2009, Mr. Stemke inspected it, started the engine, and saw that the dashboard indicated the “consumer functions” were turned off due to low voltage of the system battery. Mr. Stemke testified that after the vehicle idled for 15 to 20 minutes, the windows and convertible top operated properly. He testified that after the battery was charged, every button in the car worked and everything Mr. Stipp complained of worked properly. Mr, Stemke drove the car approximately six to eight blocks and had no problem with the function of the brakes. Benson did find that the starter battery needed to be replaced and replaced it during this visit. Mr. Stemke stated that Mr. Stipp was informed the car was ready on November 19, 2009, but he did not pick it up until December 11,2009,

|7When the SL550 was returned to Benson on July 6, 2011, Mr, Stemke and the shop foreman, Stephen Edwards, inspected it. They found that the trunk did not close properly due to the placement of the owner’s manual in the trunk where it blocked the proper operation of the trunk lid. Once the owner’s manual was removed, the trunk worked properly. They also noticed there was some “jumpiness” where the'roll bar hydraulically lifts and retracts. Mr. Stemke stated that Benson replaced the hydraulic pump, which was under warranty, but this had nothing to do with the collision or the resultant repairs. He testified that everything was functioning as designed when the vehicle was returned to Mr. Stipp on August 2, 2011.

Stephen Edwards was accepted as an expert in Mercedes Benz service and repair. He drove and inspected the SL550 in July of 2011, Mr. Edwards explained that the SL550 has two batteries—the starter battery and the system battery. The starter battery’s primary function is to start the vehicle. Its secondary function is to provide backup for the system battery in the event of an emergency power failure. The system battery powers the windows, air conditioning, lighting, and other electronics. Mr. Edwards explained that the system battery also powers the brakes, and that if the system battery was not working properly, the brakes would operate and feel differently, including causing the brake pedal to “travel really far.” He noted that the owner’s manual indicates that the brakes require an electrical panel to function correctly. In July of 2011, Benson replaced the system battery due to low voltage issues. According to Mr. Edwards, it was not “out of the norm” for a 2008 vehicle to need a new system battery in 2011.

Mr. Edwards drove the SL550 for approximately ten miles, ,did not have any problems, and found that the brakes worked properly. He also checked all of the vehicle’s systems and found that the roll bar would “vibrate and chatter” as it was |sraised. He replaced the hydraulic unit for the convertible top, which solved the problem.

Mr. Edwards testified that Mr. Stipp’s complaints to Mr. Sterling in 2014 regarding the brake pedal and the window and convertible top operations could have been caused by a low voltage problem with the system battery. He stated that the system battery must be properly charged or there is a risk of its depletion and ultimate demise. Mr. Edwards asserted that it is not good for a battery to sit idle for long periods of time; rather, these cars must be driven regularly or kept on a battery maintenance charger. Mr. Edwards further testified that it was unlikely that something related to the repairs performed after the collision would have caused the brake pedal to go to the floor, as described by Mr. Sterling. He believes that such a problem or hydraulic failure would have manifested itself much sooner after the repairs were completed.

At the conclusion of trial, the trial judge took the matter under advisement. Thereafter, on September 23, 2016, the trial judge rendered a judgment in favor of Mr. Stipp and against Benson in the amount of $50,000, plus interest, costs, and attorney fees. Benson appeals this judgment and denies any liability in this matter. Mr. Stipp has answered the appeal, seeking an increase in the amount of damages awarded.

LAW AND DISCUSSION

On appeal, in Benson’s first assignment of error, it argues that the trial court erred by accepting Ryan Sterling as an expert witness. It asserts that Mr. Sterling has no expertise in the inspection or repair of Mercedes Benz automobiles and did not even inspect the SL550 until five years after the repairs were completed. Benson argues that Mr. Sterling’s testimony was not relevant or reliable because he did not examine the vehicle within a reasonable time after the repairs were completed in August of 2009. Further, Benson notes that Mr. Sterling could not 19say that Benson did anything wrong or caused the problems complained of by Mr. Stipp in 2014.

Mr. Stipp responds that the trial court’s acceptance of Mr. Sterling’s expert testimony was not an abuse of discretion. He notes that Benson fully cross-examined Mr. Sterling regarding his qualifications and opinions in this matter. Mr. Stipp contends that any issue as to the timing of his inspection of the SL550 goes to the weight of the evidence, not its admissibility.

La. C.E. art. 702 governs the admissibility of expert testimony in Louisiana, providing as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue:
2) The testimony is based on sufficient facts or data;
3) The testimony is the product of reliable principles and methods; and
4) The expert has reliably applied the principles and methods to the facts of the case.

A trial court’s decision to qualify an expert cannot be overturned on appeal unless the trial court abused its discretion. Cheairs v. State ex rel. Department of Transportation and Development, 03-680 (La. 12/3/03), 861 So.2d 536, 541. In considering expert testimony, a trial court may accept or reject, in whole or in part, the opinion expressed by an expert. Phillip Family L.L.C. v. Bayou Fleet Partnership, 12-565 (La. App. 5 Cir. 2/21/13), 110 So.3d 1158, 1167-68, writ denied, 13-0641 (La. 4/26/13), 112 So.3d 846; Allensworth v. Grand Isle Shipyard, Inc., 15-257 (La. App. 5 Cir. 10/28/15), 178 So.3d 191, 196. The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Phillip Family, L.L.C., 110 So.3d at 1167.

| inAt trial, Mr. Sterling testified that he has worked as an auto mechanic for approximately 30 years and had previously been qualified as an expert in court four times. He stated that he also has experience working oh Mercedes Benz vehicles and has had some training on Mercedes Benz vehicles, though he has not been trained specifically on the SL550 model. The trial court accepted him as an expert in automotive maintenance, repair, and claims dealing with insurance companies, not specifically in Mercedes Benz service or repair.

Mr. Sterling clearly has extensive experience in automotive maintenance and repair, as well as claims dealing with insurance companies, and we find that he was qualified to testify as an expert in those fields. Mr. Sterling inspected the SL550 and his automotive expertise could have assisted the trial judge in understanding the evidence. Accordingly, considering Mr. Sterling’s qualifications and experience, we cannot say that the trial court abused its discretion by accepting Mr. Sterling as an expert witness and allowing him to testify as such at trial. This assignment of error is without merit.

In its second assignment of error, Benson asserts that the trial judge erred by finding it liable for breach of contract. It argues that Mr. Stipp had the burden to prove, how Benson breached its obligation to perform the repairs in a workmanlike manner, but he failed to point to any want of skill, efficiency, knowledge, or lack of ordinary care in the performance of the repairs. Benson notes that even Mr. Stipp’s expert, Mr. Sterling, testified that he did not determine what caused the deficiencies complained of, and he could not point to anything Benson did wrong. Benson further argues that although Mr. Sterling testified that taking nine months to repair the SL550 was “irresponsible,” he did not indicate what a reasonable time would have been under the circumstances. Thus, he did not prove the repairs were not completed in a reasonable time.

| nIn order to prevail on a breach of contract claim, the plaintiff must prove by a preponderance of the évidence: 1) defendant owned him an obligation; 2) defendant failed to perform the obligation; and 3) defendant’s failure to perform resulted in damage to the plaintiff. Hayes Fund for the First United Methodist Church of Welsh, L.L.C. v. Kerr-McGee Rocky Mt., L.L.C., 14-2592 (La. 12/8/15), 193 So.3d 1110, 1115; Mouton v. Generac Power Sys., 14-350 (La. App. 3 Cir. 11/5/14), 152 So.3d 985, 997. A contract for work or services carries an implied obligation on the contractor to perform in a workmanlike manner, in default of which he must respond in damages for the losses that may ensue. La. C.C. arts. 1994, 2769; Platt v. Interstate Dodge, 37,059 (La. App. 2 Cir. 4/9/03), 843 So.2d 1178. A party claiming that repairs are defective or unsatisfactory bears the burden of proving by a preponderance of the evidence that the work was defective. See K&F Refrigeration v. Bowman, 41,098 (La. App. 2 Cir. 5/17/06), 930 So.2d 1141, 1145-1146. Proof of failure to perform contract in a workmanlike manner requires some showing of a want of skill, efficiency, knowledge, or lack of ordinary care in the performance of the work. Professional Constr. Services, Inc. v. Lee Marcello Contractor, Inc., 550 So.2d 968, 971 (La. App. 5 Cir. 1989), writ denied, 556 So.2d 36 (La. 1990).

In the present case,' based on the record before us, we find no reasonable basis for an assignment of liability to Benson. It was Mr. Stipp’s burden to prove that Benson breached its obligation to perform the vehicle repairs in a workmanlike manner, and he failed to meet this burden.

The record before us does not show that Benson failed to perform the repairs on the SL550 in a workmanlike manner or that it was possible for the vehicle to have been repaired to .its pre-accident condition. At trial, Mr. Stipp -testified that when he got the SL550 back, from Benson in August of 2009, the car felt different. He complained that the brakes did not feel the same and the battery would drain if [ 12the vehicle was left without being driven for two weeks or so. In November of 2009, Mr. Stipp complained about the operation of the convertible top, warning- lights on the dashboard, and problems with the electrical system. Benson replaced the starter battery at that time. Thereafter, in July of 2011, Mr. Stipp set forth several complaints, including that the convenible top creaked, the trunk did not close properly, and battery issues. As a result, Benson replaced the system battery, discovered that the owner’s manual was preventing the trunk from properly closing, and replaced the hydraulic pump for the roll bar. Mr. Edwards testified that everything worked properly when the vehicle was returned to Mr. Stipp.

Mr. Stipp’s expert, Mr. Sterling, did not inspect the SL550 until 2014. While he confirmed Mr. Stipp’s complaints regarding the operation of the windows and convertible top, as -well as brake issues, he did not determine the cause of any of the vehicle’s problems. Mr. Stipp had complained that the brakes felt different after the repairs, but the testimony and evidence did not show that the brake issue noted by Mr. Sterling was present after Benson’s initial repairs or caused by the repairs. Mr. Edwards testified that it was unlikely that anything related to the repairs caused the brake pedal to “go to the floor,” as described by Mr. Sterling, because the problem or hydraulic failure would have manifested itself much sooner after the repairs were completed. Further, Mr. Edwards stated that the system battery is involved in powering the brakes and the brakes can feel different if the system battery is not working properly.

The testimony revealed that some of the problems with the SL550 were related to battery issues. Mr. Stipp admitted that he did not use the SL550 for everyday driving, and he had problems with the battery draining if he did not use the car for two weeks, or so. Mr. Edwards testified that Mr. Stipp’s complaints, to Mr. Sterling in 2014 could have been caused -by a low voltage problem with the system battery. He further stated, that the car should be driven regularly or kept on | iaa battery maintenance charger, or there is a risk that the battery could be depleted. The evidence did not show that the battery or electrical issues were caused by any substandard repairs performed by Benson after the accident. It is also noted that Benson replaced the starter battery in November of 2009 and the system battery in July of 2011.

Although Mr. Stipp complained about problems with various functions of the SL550 after the initial repairs were made, the testimony and evidence did not establish that the repairs were not performed in a workmanlike manner or were substandard. Mr. Stemke and Mr, Edwards testified that everything on the SL550 worked properly when it was returned to Mr. Stipp in July of 2011. It was not until three years later that Mr. Sterling inspected the vehicle at Mr. Stipp’s request. Although he confirmed some of the problems complained of, even Mr. Sterling could not say what caused these problems. In fact, Mr. Sterling testified that he could not say that Benson did anything wrong.

Based on the testimony and evidence presented, we find that' the trial court erred by finding that Mr. Stipp met his burden of proving that Benson breached its obligation to repair thé SL550 in a workmanlike manner.

With regard to Mr.’ Stipp’s claim" that Benson failed to repair the SL550 within a reasonable time, we also find that Mr. Stipp did not meet his burden of proof. The record does not show that the parties agreed the repairs would take a particular amount of time. According to Mr. Stemke,-he informed Mr. .Stipp that Benson had a heavy workload when the SL550 arrived, that the repairs could not be started right away, and that he did not know when the repairs would be completed. Although Mr. Stipp testified at trial that he did not recall Mr. Stemke saying he did not know how long the repairs would, take, he did not testify that Mr. Stemke agreed for the repairs to be completed at any particular time.

114Where no time for the performance is specified, the inference will be supplied that the parties intended for the obligation to be undertaken within a reasonable time. Pelican Electrical Contractors v. Neumeyer, 419 So.2d 1 (La. App. 4 Cir. 1982), writ denied, 423 So.2d 1150 (La. 1982). What constitutes a reasonable time must be determined by the circumstances of each case. Id.

The record does not establish what a reasonable time would have been for these repairs under the circumstances presented in this case. The testimony revealed that there was substantial damage to the SL550 when it arrived at Benson in November of 2008. As the car was “torn down,” additional damage was discovered and Benson had to request a supplement from Mr. Stipp’s insurer and order additional parts. Once these parts were received, the repair work was completed on June 30, 2009. When Mr. Stipp came to Benson to get the car, he noticed some scratches on the vehicle and the navigation screen. Benson had to request an additional supplement to repair the navigation screen. Mr. Stipp picked up the SL550 on August 26, 2009.

Because the record does not establish what a reasonable time, for repairs would have been under the particular circumstances of this case, we cannot say that Benson failed to repair the SL550 within a reasonable amount of time.

Based on our finding that Mr. Stipp did not prove Benson, failed to make the repairs in a workmanlike manner or that the repairs were not completed within a reasonable time, we find that the trial court was clearly wrong in finding that Benson was liable to Mr. Stipp for damages. Accordingly, we reverse this finding of the trial court and vacate the trial court’s judgment ordering Benson to pay $50,000 plus costs, interest, and attorney fees to Mr. Stipp.

Considering our finding that Benson has no liability in this case, we need not address Benson’s remaining two assignments of error, in which it challenges the amount of damages awarded and the award of attorney fees. Likewise, based on |1Bour decision to reverse and vacate the award of damages, we find no merit in Mr. Stipp’s answer to the appeal, in which he requests an increase in the damages awarded.

DECREE

For the foregoing reasons, we reverse the trial court’s finding that Benson is liable to Mr. Stipp for breach of contract. We further vacate the trial court’s judgment awarding $50,000 plus costs, interest, and attorney fees to Mr. Stipp.

REVERSED; JUDGMENT VACATED

      . Mr. Stipp also filed suit against his insurer, Metropolitan, alleging that his policy provided coverage for the actual replacement value of the vehicle and that Metropolitan had breached the insurance contract by failing to ''total'' the SL550 and pay the actual cash replacement value. The trial court dismissed Metropolitan from this case via summary judgment, and this Court affirmed the trial court’s ruling. See Stipp v. MetLife Home and Auto Ins. Agency, Inc., 13-507 (La. App 5 Cir. 12/19/13), 131 So.3d 455.

      . In his petition, Mr. Stipp also set forth claims against Benson for redhibition and/or breach of warranty and unjust enrichment. However, these claims were later dismissed by the trial court after Benson filed exceptions of no cause of action.

      . The SL550 is equipped with two batteries— the starter battery and the system battery.


author: MURPHY, J.

text:
    STATE of Louisiana v. Arnold H. VANCE
    NO. 17-KA-72
    Court of Appeal of Louisiana, Fifth Circuit.
    August 30, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler
    COUNSEL FOR DEFENDANT/APPELLANT, ARNOLD H. VANCE, Jane L. Beebe
    DEFENDANT/APPELLANT. Arnold Vance, In Proper Person
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   MURPHY, J.

| defendant, Arnold Vance, appeals his conviction and sentence for first degree robbery. For the reasons that follow, we affirm the conviction and sentence and remand with instructions. We further grant appellate counsel’s motion to withdraw as attorney of record!

STATEMENT OF THE CASE

On July 28, 2014, the Jefferson Parish District Attorney’s office (“the State”) filed a bill of information charging defendant with one count of first degree robbery in violation of La. R.S. 14:64.1. On July 29, 2014, defendant pled not guilty at arraignment. On March 24, 2015, defendant withdrew his not guilty plea, pled guilty as charged, and was sentenced to eight years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On January 20, 2017, defendant was granted an out-of-time appeal. The instant appeal follows.

FACTS

Because the instant conviction was a result of a guilty plea, the underlying facts were not fully developed at trial. However, at the time of defendant’s guilty plea, the State provided the following factual basis:

[S]hould this case proceed to trial, the State has sufficient evidence to demonstrate beyond a reasonable doubt that Arnold Vance committed the felony offense of first degree robbery in that he led the victim to reasonably believe he was armed with a dangerous weapon to facilitate the robbery; that robbery occurred on May 25th, 2014, within the confines of Jefferson Parish, Louisiana.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court |2record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide'the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability!’ and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court, of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (internal citation omitted).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion-or objection made at trial with a detailed explanation of why the motions or objections lack, merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

¡¡¡When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable bn the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

ANALYSIS

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. This was not a plea under State v. Crosby, 338 So.2d 584 (La. 1976) and there were no pretrial motion hearings subject to this appeal. Counsel indicates that defendant pled guilty pursuant to a counseled plea agreement, and that the trial court’s colloquy was thorough and complete. In exchange .for defendant’s guilty plea, the State agreed not to file a multiple offender bill of information. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of her brief.

The State asserts that the record shows that prior to defendant’s guilty plea, the district court fully explained to him the rights he was waiving, and defendant affirmed his understanding. ■ The State agrees with counsel that defendant made a knowing and voluntary act of pleading guilty. Further, defendant was informed of his right to appeal. The State concludes, therefore, that defendant’s convictions and ^sentences should be affirmed and that appellate counsel should be allowed to withdraw.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The record shows that defendant was present at sentencing and was represented by counsel. Prior to sentencing, the trial court entered into a colloquy with defendant wherein the court advised defendant of his Boykin rights and asked defendant if he understood that he was waiving those rights by pleading guilty. Defendant was advised of the sentence he would receive if he pled guilty. Defendant’s sentence is in the statutory range for a violation of La. R.S. 14:64.1. Further, it appears -that defendant’s plea bargain for the charged offense of first degree robbery was highly beneficial. Defendant received an eight-year sentence for a crime that permitted a maximum sentence of forty years. La. C.Cr,P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the-plea. Defendant was also properly advised of the time limitations for filing post-conviction relief.

Because appellant, counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for. a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s sentences and convictions and grant appellate counsel’s motion to withdraw as attorney of record.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Defendant raises two pro se assignments of error. In his first assignment, defendant.asserts that his guilty plea was fraudulently obtained because his trial counsel misled him about evidence the State had against him. Defendant also | r,contends that the State failed to turn over Brady material which proves his innocence, specifically a “C-D Rom” of defendant’s arrest, and ATM receipts from the victim in this case that show that he was robbed on a different date. However, because defendant pled, guilty, he cannot now challenge the sufficiency of the evidence against him. State v. Smith, 07-815 (La. App. 5 Cir. 3/11/08), 982 So.2d 821, 824 n.3, writ denied, 08-927 (La. 11/14/08), 996 So.2d 1088.

PRO SE' ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant asserts that his trial counsel was “intentionally ineffective” for failing to challenge an illegal arrest. Defendant faite to brief this assignment, and we therefore consider it abandoned under Uniform Rules, Courts of Appeal, Rule 2-12.4. See State v. Camp, 16-473 (La. App. 5 Cir. 3/15/17), 215 So.3d 969, 973. Nevertheless, based on the limited record on appeal, we find that defendant’s ineffective assistance of counsel claim would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary, and defendant can present evidence to support his allegations. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Welland, 556 So.2d 175 (La. App. 5 Cir. 1990). We note that' the State of Louisiana Uniform Commitment Order (“UCO”) fails to include the trial court’s recommendation that | (¡defendant be allowed to participate in “any self-help and/or work release programs” that may be available to him. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the case for correction of the UCO to reflect the court’s recommendation for any self-help and/or work release programs available to defendant, and direct the Clerk of Court to transmit the corrected UCO to the officer in charge of the institution to which defendant has been sentenced as well as. to the legal department of the Louisiana Department of Public Safety and Corrections. ■

DECREE

Accordingly, for the reasons provided herein, defendant’s conviction and sentence are affirmed, the matter is remanded for a correction to the uniform commitment order, and appellate counsel’s motion to withdraw as attorney of record is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      .Additionally, this Court sent. defendant a letter by certified mail informing Kim that an Anders brief had been filed and that he had until April 6, 2017, to file a pro se supplemental brief. Defendant timely filed a pro se brief.

      . Boykin v. Alabama, 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963).

      . Even if considered, we note that defendant’s argument in this assignment fails on the merits. The U.S. Supreme Court' has explained that "[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Here, defendant has not demonstrated how the evidence he claims is Brady material, specifically the C-D Rom of his arrest, is favorable to his defense. Next, defendant appears to acknowledge in his brief that his trial counsel had the opportunity to review the C-D Rom, which implies that the .State did not suppress it. With respect to the photographs of receipts attached to defendant’s pro se brief, defendant states that he was the one who collected them. Again, defendant does not assert how these receipts are exculpatory, or that they were in the State’s custody and control. Accordingly, the requirements for a Brady claim have not been met.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Jeremy C. JULIEN
    NO. 17-KA-57
    Court of Appeal of Louisiana, Fifth Circuit.
    September 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, JEREMY C. JULIEN, Prentice L. White
    DEFENDANT/APPELLANT, JEREMY C. JULIEN, In Proper Person
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore
   CHAISSON, J.

|, Defendant, Jeremy C. Julien, appeals several felony convictions and sentences, as well as his multiple offender adjudication and enhanced sentence. For the reasons that follow, we affirm defendant’s convictions, his multiple offender adjudication, the sentence as amended herein on count three, and the sentences imposed on the remaining counts, including the enhanced sentence’. We remand the matter however for correction of errors patent as noted herein. In addition, we grant appellate counsel’s motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On March 22, 2012, the Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of La, R.S. 14:30.1 (count one); distribution of heroin, in violation of La. R.S. 40:966(A) (count two); possession with intent to distribute heroin, in violation of La. R.S. 40:966(A) (count three); possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count four); and possession of hydrocodone, in violation of La. R.S. 40:967(C) (count five). At the March 23, 2012 arraignment, defendant pled not guilty to the charged. offenses. Defendant thereafter filed pre-trial motions, including motions to suppress evidence, statement, and identification. On July 19, 2012, the trial court heard and denied the motions to suppress.

On September 17, 2014, the State amended count one of the indictment to charge defendant with manslaughter, a violation of La. R.S. 14:31. On that same day, defendant withdrew his not guilty pleas and, after being advised of his rights, pled guilty to count one as amended and guilty as charged to counts two through five. In accordance with the plea agreement, the trial court sentenced defendant to the following terms of imprisonment: thirty years at hard labor on count one (manslaughter); forty years at hard labor with the first five years to be served ^without benefit of probation, parole, or suspension of sentence on counts two (distribution .of heroin) and three (possession with intent to distribute heroin); ten years at hard labor without benefit of probation, parole, or suspension of sentence on count four (possession of a firearm by a convicted felon); and five years at hard labor on count five (possession of hydrocodone). The trial court ordered defendant’s sentences to run concurrently.

The State then filed a bill of information, pursuant to the provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second felony offender on count two. After being advised of his rights, defendant stipulated to the allegations in the multiple bill, The trial, court then vacated defendant’s sentence on count two and re-sentenced him, in accordance with the plea agreement, to forty years imprisonment at hard labor without benefit of probation or suspension of sentence, to run concurrently with any other sentence being served, including the remaining sentences imposed in this case as well as the sentences imposed' for the misdemeanor offenses. On ■ Janüary 11, 2016, defendant filed a pro' se motion to reconsider sentence, which was denied by the trial court on January 19, 2016.

Subsequently, on .August 11, 2016, in response to an application for post-conviction relief filed by defendant, ■ the trial court, granted him an out-of-time'appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in Stale v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. State v. Bradford, 676 So.2d at 1110.

In this case, defendant’s appellate counsel has complied with the procedures for filing an Anders brief. He thoroughly details the procedural history of the case, the facts brought out at the pre-trial motion hearings, and the circumstances surrounding defendant’s guilty pleas and sentencing. After a careful review of the record, defendant’s appellate counsel concludes that there are no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports the appeal. In particular, appellate counsel notes that the trial court addressed all of defense counsel’s motions and objections, that defendant was fully advised of and acknowledged that he understood his rights and the consequences of his guilty pleas, and that the sentences were imposed in accordance with the plea agreements and the statutory penalties.

Along with his brief, appellate counsel has filed a motion to withdraw as attorney of record, which states that he has filed an Anders brief and that he has advised defendant of his right to file his own brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until March 22, 2017, to file a pro se supplemental brief. Defendant has filed a pro se supplemental brief, in which he raises issues | relating to the voluntariness of his guilty pleas based on allegations' of ineffective assistance of counsel.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently .identified defendant and the crimes charged. See La. C.Cr.P. arts. 462-466. Further, as reflected by the minute entries, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty pleas, sentencing, and multiple offender proceedings.

Defendant pled guilty in this case. Generally, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes réview of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10); 47 So.3d 455, 459. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived. In addition, no pre-trial rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

IsOur review of the record reveals no constitutional infirmities or irregularities in defendant’s guilty pleas to the five felony offenses. In particular, the record reflects that defendant was advised of the nature of the charges against him as' well as his constitutional rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant signed the waiver of rights form indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood the rights he was waiving by pleading guilty.

Defendant was additionally informed of his sentencing exposure and of the actual sentences that would be imposed upon acceptance of his guilty pleas. Further, during the guilty plea colloquies and in the waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. After the colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

Likewise, the record reveals that defendant was adequately advised of his rights in the multiple offender proceedings. The waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicates that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender and the actual sentence he would receive. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill, that he understood his rights and the legal consequences of pleading guilty to the multiple offender bill of information, and that he wished to plead guilty. The trial court | f,thereafter accepted defendant’s admission to the multiple offender bill as knowingly, intelligently, freely, and voluntarily made.

With regard to defendant’s sentences, they were imposed in accordance with the plea agreements. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173; State v. Williams, 12-299 (La. App. 5 Cir 12/11/12), 106 So.3d 1068, 1075, writ denied, 13-109 (La. 6/21/13), 118 So.3d 406. In addition, defendant’s, sentences fall within the sentencing ranges set forth in the applicable statutes. See La. R.S. 14:31(B); La. R.S. 40:966(B)(1); La. R.S. 14:95.1(B); La. R.S. 40:967(0(2); La. R.S. 15:529.1.

We have also considered the arguments raised by defendant in his pro se supplemental brief. Specifically, defendant challenges the validity of his guilty pleas alleging that they were involuntarily entered as a result of ineffective assistance of counsel. Basically, defendant contends that his guilty pleas were induced by his attorney’s erroneous advice that if he pled guilty, he would receive good time and would only have to serve eighteen years of his forty-year enhanced sentence.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can, be conducted if necessary, rather than by direct appeal. State v. Jones, 13-99 (La. App. 5 Cir. 8/27/13), 123 So.3d 758, 765. See State v. Hartshorn, 09-47 (La. App. 5 Cir. 11/10/09), 25 So.3d 172, 181, writ denied, 09-2654 (La. 6/4/10), 38 So.3d 298 (where the defendant’s argument that his counsel’s incorrect advice and inducements forced him to plead guilty and I ^constituted ineffective assistance of counsel could not be properly considered on appeal).

Accordingly, we find that defendant’s allegations of ineffective assistance of counsel are more appropriately relegated to post-conviction relief where the issue can be considered,in an evidentiary hearing if necessary,

ERRORS PATENT REVIEW

In his Anders brief, defendant’s appellate counsel requests an errors patent review. . This Court routinely reviews the record for errors patent regardless of whether defendant makes such a requést. La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990).

First, the transcript reflects that the trial judge restricted parole on count three. The .applicable sentencing statue, La. R.S. 40:966(A), does not provide any restriction on parole. Accordingly, we amend defendant’s sentence on count three to delete, the restriction on parole. However, since both the minute entry/commitment and-the uniform commitment order properly reflect no parole restriction, it is unnecessary to order that those documents be amended.

Second, we note that the minute entry/commitment and the uniform commitment order are inconsistent with the transcript. According to State v. Lynch, 441 So.2d 732, 734 (La. 1983), if “there is a discrepancy between the minutes and the transcript, the transcript must prevail.” With regard to count four, the transcript reflects that defendant was sentenced to ten years imprisonment without benefit of probation, parole, or suspension of sentence. However, the'minute entry/commitment and the uniform commitment order reflect that the ten | ¿years imposed on count four are to be served without benefit of probation or suspension of sentence.

In addition, the uniform commitment order incorrectly reflects the date of defendant's offenses as December 7, 2011. The record reflects that December 7, 2011, was the offense date for count one and December 15, 2011, was the offense date for counts two through five. A second uniform commitment order was done reflecting defendant’s enhanced sentence. That uniform commitment order likewise reflects December 7, 2011, as the offense date.on count two, whereas the actual offense date was December 15,20Í1.

In accordance with this Court’s usual procedure, we direct the trial court to correct the minute entry/commitment and the uniform commitment order to reflect that defendant’s sentence on count four is to be served without benefit of probation, parole, or suspension of sentence and to correct the two uniform commitment orders to reflect the accurate offense dates. We further instruct the Clerk of Court for the 24th Judicial District Court to transmit the original of the amended commitments to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ Legal Department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

Based on the foregoing, we find that defendant’s guilty pleas, his multiple offender stipulation, and the sentences imr posed pursuant to the plea agreements do not present any issues for appeal. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we affirm defendant’s convictions, his multiple offender adjudication, the sentence as | ^amended herein on count three,, and the sentences imposed on the remaining counts, including the enhanced sentence. We remand the matter for correction of errors patent as noted herein. In addition, we grant appellate counsel’s motion to withdraw as attorney of record for defendant.

AFFIRMED, AS AMENDED; MATTER REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      . On September 17, 2014, defendant also pled guilty, in district court case number 12-1649, to two misdemeanor offenses, possession of marijuana and resisting an officer, and was . sentenced to six months in parish prison on each count.

      . In Bradford, supra, this Court adopted the procedures outlined'in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The State’s brief, in footnote 4, notes that defendant maintained his right to appeal, as "defendant was entering his plea under Crosby." However, the record does not support that defendant entered his pleas under Crosby.

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

      . The trial judge also restricted parole on count two. However, this sentence was vacated prior to the enhanced sentence being imposed. Thereafter, the trial court properly imposed the enhanced sentence without benefit of probation or suspension of sentence.