author: AMY, Judge.

text:
    STATE of Louisiana v. Leo Paul THIBODEAUX, Jr.
    16-542
    Court of Appeal of Louisiana, Third Circuit.
    03/15/2017

      John Foster DeRosier, District Attorney, Elizabeth Brooks Hollins, Assistant District Attorney, Post Office Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana
    Benjamin A. Cormier, 1 Lakeshore Drive, Suite 120, Lake Charles, LA 70629, (337) 477-8782 COUNSEL FOR DEFENDANT/APPELLANT: Leo Paul Thibo-deaux, Jr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Phyllis M. Keaty, Judges.
   AMY, Judge.

hA grand jury charged the defendant with second degree murder in connection with the death of his girlfriend. Prior to trial, the trial court conducted a Prieur hearing and determined that it would allow certain other crimes evidence to be introduced. A jury found the defendant guilty as charged, and the defendant was sentenced to life in prison with no possibility of parole. The defendant appeals. For the following reasons, we affirm the defendant’s conviction and sentence. We further direct the trial court to send appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received said notice.

Factual and Procedural Background

The record indicates that, in the early morning hours of March 28, 2012, the defendant, Leo Paul Thibodeaux, Jr., called his friend Chris Cooper, who was with his Mend Raphael Johnson. Cooper and Johnson drove to the defendant’s home, which he shared with his girlfriend, Toni Frab-biele. Johnson testified at trial that he saw Cooper enter the defendant’s home and then exit with a shotgun wrapped in his shirt. Cooper then drove away from the home and called 911. Cooper and Johnson met with Calcasieu Parish deputies on Highway 27, at which time Cooper exited his vehicle with the shotgun in his left hand. When the deputies ordered him to drop the shotgun, Cooper threw the shotgun on the ground. Deputies later retrieved a Springfield Arms single-shot 12-gauge shotgun which, per the trial testimony of Corporal Brandon Peresich, was missing a trigger guardia and contained a spent shell casing. Johnson was unaware of whether the trigger guard was already missing before it fell to the ground.

According to Corporal Gordon McGee’s testimony, he and other deputies responded to the defendant’s home at approximately 3:16 that morning. Upon entering the home, deputies discovered Frabbiele’s deceased body on a bed in one of the bedrooms. Deputies then found the defendant on a couch in the living room, holding a pocket knife and threatening to harm himself. When the defendant failed to drop his knife after deputies ordered him to do so, deputies deployed a Taser on the defendant and detained him. The record re-fleets that deputies then obtained a search warrant and searched the home, where they found a shotgun wad in the mattress cover with Frabbiele’s hair attached, letters apparently handwritten by Frabbiele located at the foot of the bed, a cell phone in Frabbiele’s left hand with 911 dialed, and stains throughout the home appearing to be blood. Following his detainment, the defendant was interviewed by authorities and maintained that RFrabbiele shot herself. Defendant’s statement to the detectives further indicates that only he and Frabbiele were present in the home at the time.

Dr. Terry Welke, the Calcasieu Parish Coroner, testified that when he initially examined Frabbiele’s body, he originally believed that the death was a suicide. However, he explained that he became concerned upon viewing photographs of the crime scene and noticing differing patterns of blood spatter on the walls of the bedroom, which led him to believe that there had been “two different trajectories” of gunshots. He also noted that while “shotgun wounds and suicides” typically consist of “contact gunshots[,]” “there was evidence of gunpowder stippling” on Frab-biele’s skin, which he explained indicated to him “that the barrel was not in tight contact with the skin” when the shotgun was fired. Moreover, he explained that he observed the presence of soot “in the wound” but not on Frabbiele’s skin, which indicated to him that “there were two separate wounds.” Dr. Welke stated that due to these observations, he “went back in and re-evaluated” Frabbiele’s body, this time finding an additional shotgun wad embedded in Frabbiele’s facial bones. He further testified that, because he was aware that a shotgun wad had previously been found at the scene, and that “there’s only one power piston, plastic wad, pellet containing container, whatever you want to call them, per shotgun shell,” he concluded that Frabbiele “had died as the result of two shotgun wounds, as opposed to a single shotgun wound,” such that he “changed [his] mind as a ruling from a suicide to a homicide[.]”

I/The defendant was charged with second degree murder via a bill of indictment on September 26, 2013. At trial, the jury unanimously found him guilty as charged. He was sentenced to life in prison with no possibility of parole.

The defendant appeals, assigning as error:

[L] That the Trial Court erred in allowing the State of Louisiana to proceed with an “other crimes” or Prieur hearing despite unreasonable notice being given to the Defendant. Further, that the Trial Court erred in admitting the Prieur evidence despite the ambiguity of the notice.
[II.] That the Trial Court erred in admitting inculpatory statements made by the Defendant, when the notice to admit inculpatory statements was not filed until a day after the trial was set to begin. This error furthered the undeniable notion that Trial Courts feel that any notice, no matter how short, is good notice when it comes to both 404 (b) (Prieur evidence) and notice of intent to use inculpatory statements.
[III.] That the Trial Court erred in allowing the introduction of demonstrative images relating to the design and operation of shotgun shells. The Defense was only notified of the existence of these images until [sic] the eve of trial. This severely prejudiced the Defendant as he was not able to digest the images, have an expert review those images, conduct a Daubert hearing, or prepare the Defense[’]s own images to counter the State’s images.
[IV.] That the Trial Court erred in allowing Dr. Terry Welke to testify as an expert in the areas of blood spatter, firearm, and ammunition. The Trial Court allowed an individual who had been tendered and accepted as an expert in forensic pathology to offer expert and opinion testimony as to at least two disciplines in which he was not an expert, and admitted that he had not [sic] expertise in.
[V.] That the Trial Court erred when it failed to grant the Defendant’s motion for mistrial. The State elicited testimony from witnesses that the Court had previously held were inadmissible. The Defendant found himself forced to decide whether an admonition to the jury would bring more attention to the inadmissible statement. More importantly, it is impossible to expect a lay person to simply ignore some testimony or piece of evidence because a judge tells them to do so. It is no comfort when that individual is made to promise that they can ignore the statement or evidence. In this instance, the State played a recorded statement where the Defendant admitted to falling off the wagon and using drugs. These statements were to be redacted, however the State failed to do so. The Defendant’s counsel received] B the six-hour statement the day before it was played. The Defendant’s counsel did not have time to review the discovery as he receive [sic] the redacted version until [sic] 6:00 p.m. the day before.
[VI.] That the Trial Court erred in denying the Defendant’s request to have the following included in the jury instructions: “You may return a responsive verdict listed on the verdict form even though you find that the State has proved beyond a reasonable doubt every element of the offense charged[.]” The State of Louisiana improperly characterized this statement as a jury nullification instruction!,] and the Trial Court did not include the phrase in final jury instructions.
[VIL] That the Trial Court erred in allowing the jury to view evidence once they began deliberations. The jury requested to view certain pieces of evidence[,] and they were allowed to do so after jury deliberations began.
[VIII.] That the Trial Court erred in denying the Defendant’s motion for new trial.
[IX;] That the evidence presented at trial was insufficient to convict the Defendant of Second Degree Murder[.]

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. On review, we note that the record does not indicate that the trial court advised the defendant of the time period for filing for post-conviction relief as required by La. Code Crim.P. art. 930.8(C). See, e.g, State v. Lapoint, 16-187 (La.App. 3 Cir. 9/28/16), 202 So.3d 593. Accordingly, we direct the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of | fithe rendition of this opinion and to file written proof into the record that the defendant received the notice.

Sufficiency of Evidence

We address the defendant’s final assignment of error first, as a finding that the evidence was insufficient to support a conviction would require an acquittal. See State v. Hearold, 603 So.2d 731 (La.1992). In this regard, the defendant’s appellate brief contains only one sentence in support of this assignment of error, which states: “Without the inadmissible testimony!,] it is clear that there would not have been sufficient evidence presented at trial to convict the defendant.” However, we note that even inadmissible testimony must be considered in a sufficiency of evidence analysis:

When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial.

Id. at 734. Accordingly, because the defendant does not set forth a proper insufficiency of evidence claim, we find that this assignment of error lacks merit. We turn to consideration of the defendant’s remaining assignments of error.

| ^Notice of Prieur Hearing

In his first assignment of error, the defendant argues that he did not receive sufficient notice of the hearing on the admissibility of other crimes evidence pursuant to State v. Prieur, 277 So.2d 126 (La. 1973), modified by State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), — So.3d —. On April 29, 2015, the defendant received a “Prieur notice” from the State regarding its intention to introduce evidence of the defendant’s other crimes, wrongs, or acts pursuant to La.Code Evid. art. 404(B). The date of the Prieur hearing listed on the notice was March 1, 2015, which had already passed. The defendant alleges that his trial counsel later received a handwritten note indicating that the hearing would be held on May 1, 2015, but because his trial counsel was already scheduled to represent another person in a trial on that date, the hearing was rescheduled for May 11, 2015, which was also the date set for the defendant’s trial. Accordingly, the defendant maintains that he was prejudiced by the “lateness” of the State’s notice. The defendant also argues that he was prejudiced by what he describes as “the extreme vagueness of the facts laid out” in the Prieur notice, complaining that the notice listed unnamed “law enforcement testimony” as a witness and that the notice lacked the dates, times, and facts of the defendant’s alleged other crimes.

At the beginning of the hearing on May 11, the defendant objected to the State’s notice on the grounds discussed above. The trial court overruled this objection and allowed the hearing to go forward. The trial court ultimately denied in part and granted in part the State’s motion, determining that it would only allow the State to introduce evidence pertaining to the defendant’s arrest for domestic violence against Frabbiele.

IsA trial court’s finding that the State complied with the requirements of Prieur, as well as its determination of the admissibility of other crimes evidence, cannot be disturbed absent an abuse of discretion. See State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, cert. denied, — U.S. —, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013). Moreover, if a trial court improperly admits other crimes evidence, that error is subject to a harmless error analysis, with an error being harmless if the verdict is “surely unattributable” to the error. Id. at 39 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

We find that an analysis of whether notice was inadequate is unnecessary, because even in the event any error occurred, it was harmless. Notably, the State provided evidence that Frabbiele suffered two shotgun wounds to the head, obviating the defendant’s theory that she either committed suicide or shot herself accidentally. Moreover, it is apparent from his statement to detectives that defendant and Frabbiele were alone in the house at the time she died. Thus, we find that the guilty verdict was surely unattributable to the other crimes evidence presented at trial. For these reasons, we find that this assignment of error lacks merit.

Notice of Intent to Introduce Inculpatory Statements

In his second assignment of error, the defendant argues that he was prejudiced by the State moving to introduce two of his inculpatory statements on the date trial was set to begin. The defendant argues that because the State waited until this date to give notice, he did “not have any time to investigate the individuals making the claims” or “to conduct legal research in preparation for arguing the merits of the notice.”

^Regarding notice of the State’s intention to introduce inculpatory statements, La.Code Crim.P.art. 768 provides the following:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

(Emphasis added). The State’s failure to provide adequate notice of intent to introduce inculpatory statements is subject to a harmless error analysis. See State v. Quimby, 419 So.2d 951 (La.1982). Specifically, “the error may be harmless if the remaining evidence of guilt is overwhelming.” Id. at 958. See also State v. Curington, 09-867, (La.App. 5 Cir. 10/26/10), 51 So.3d 764, writ denied, 10-2612 (La. 4/8/11), 61 So.3d 684.

In the instant case, the State’s notice of intention to introduce inculpatory statements was timely, as it was given to the defendant before the commencement of the State’s opening statement. Additionally, due to the overwhelming evidence of the defendant’s guilt, as evidenced in the discussion of the previous assignment of error, we find that any error that may have occurred was harmless. For these reasons, we find that this assignment of error lacks merit.

Notice of Intent to Introduce Shotgun Images

In his third assignment of error, the defendant argues that he was prejudiced by the State providing notice “on the very eve of jury trial” that it planned to introduce images created by Dr. Welke depicting the function of a shotgun shell. The defendant argues that because he did not receive notice earlier, he did not have “enough time to file for and conduct a Daubert hearing[,]” to “consult with his own expert regarding the accuracy of the images[,]” or “to have an expert of his own prepare images that [he] could employ to counter those produced by thejin State.” He further argues that Dr. Welke “is a medical doctor and a forensic pathologist” who “has no expertise in ammunition or firearms.”

Regarding the introduction of demonstrative evidence, the Louisiana Supreme Court has stated the following:

The rule concerning the introduction of demonstrative evidence is that the foundation laid must establish that it is more probable than not that the evidence is connected with the case and that the evidence has some relevance which the trial court considers sufficient to warrant its introduction. Ultimate connexity is a factual matter for determination by the jury. Diagrams generally are admissible to aid the jury in understanding testimony if shown to be an accurate representation of the subject matter in question and the ruling of the trial eourt relative to admissibility will not be disturbed on appeal unless there has been abuse of discretion. In considering whether demonstrative evidence is admissible over objection that it is unduly inflammatory!,] the test to be applied is whether the proffered evidence is relevant to any material issue in dispute and, if so, whether its probative value exceeds its probable prejudicial effect.

State v. Prestridge, 399 So.2d 564, 573 (La.1981) (citations omitted). Furthermore, “the introduction of demonstrative evidence is subject to a harmless error analysis.” State v. Smith, 11-638, p. 17 (La.App. 5 Cir. 3/13/12), 90 So.3d 1114, 1125. While the defendant contends that Dr. Welke was unqualified to create the images at issue, he does not contend that the images were inaccurate, nor does he demonstrate how the images were unduly prejudicial. We also find that, as discussed in previous assignments of error, any error that may have occurred was harmless. Therefore, we find that this assignment of error lacks merit.

Dr. Welke’s Testimony

In his fourth assignment of error, the defendant alleges that the trial court erred in allowing Dr. Welke, who was qualified as an expert in forensic pathology, to testify regarding “both blood spatter and firearm mechanics as an expert.” Within Dr. Welke’s testimony, we note the following colloquy:

|uQ All right. From the scene photographs, was there anything brought to you that was of interest to you?
A Yes, sir.
Q Could you tell the Jury what that was?
A Well, initially when I had done my examination, usually, when we see— I’m not a firearms expert, but gunshot wounds are my forte, and when someone dies as a result of a gunshot wound or shotgun wound, we try to make a determination of the distance; in other words, is the end of the barrel in contact tight to the skin, or is the end of the barrel a long way from the skin at the time of discharge? And when I did my initial examination—like I said, the information, if I remember correctly, was called in and said that a wad—and basically, what a wad is, it’s a portion of a shotgun shell that separates the pellets from the powder. The powder is what burns, and then, basically, the gases and everything push the pellets out of the barrel. And when I did my examination, like I said, with shotgun wounds and suicides, we usually see contact gunshots—or injuries, entry wounds, and in this particular instance, things just didn’t make any sense to me because I saw something that I thought was a medium range, meaning there was evidence of gunpowder stippling, which means that the barrel was not in tight contact with the skin, and there was also some findings where there was soot inside of the wound, but no soot, which is like smoke—and I did not see the smoke or the soot on the skin, but I saw it within the eye socket, so it didn’t make—something just didn’t jive [sic] with me, so, anyhow, when Zeb and Charlie returned with the scene photographs, they showed those to me, and I am not a blood splatter expert, but I told Zeb and Charlie—I paint. My wife and I paint the walls in our house, so I’m familiar with what paint does when you flick it off of a paintbrush. If you go straight on at a 90-degree angle, it makes little round circles, and makes those little things kind of shoot outwards, but if you hit a wall at an angle, it gives a tadpole effect, and in the scene photographs that they had shown me, over the headboard were these tadpole-like blood splatter findings, and, to me, that meant that it was at an angle at the time of discharge, or at the time that the pellets hit the body and the blood had expelled from the body, and then, on another wall which was adjacent to that and to the side—alongside of the bed, the blood splatter was straight on, and so I thought there were two different trajectories, one at an angle—
|1BMR. ALEXANDER:
Your Honor, I’m going to object because he’s just said he’s not a blood splatter expert but he’s proceeding to give opinion evidence on blood splatter.
A Well, I’m not finished, sir.
THE COURT:
State?
MR. BRYANT:
He’s allowed to testify as to—he’s a forensic pathologist who’s allowed to testify as to what opinions he came to as to why he continued his investigation into this matter, and he is—he viewed the photographs and why he continued his investigation into this matter, Your Honor. I think he’s more than qualified to do this. He’s done over five thousand autopsies, he’s done gunshot wounds, and I think he’s more than qualified to testify in this area.
THE COURT:
Objection’s overruled. You may proceed.
A So then I thought there were two different trajectories, and then, in conjunction with the fact that the findings I had found on the body did not jive [sic], did not sync, I went back in and reevaluated Toni’s body and was—I taken what we call— they’re basically long tweezers, and starting probing the facial bones, and I found a second wad, which didn’t— there was one wad that was at the scene, and the second wad that was still in her facial bones, and this started to make more sense to me, because, then, I felt that Toni had been the result—or had died as the result of two shotgun wounds, as opposed to a single shotgun wound, so I then asked Zeb and Charlie to return to the scene to take more photographs, and, by the time the day was over, I had gone from—changed my mind as a ruling from a suicide to a homicide, meaning that someone had caused her death.

After review, we conclude that, rather than Dr. Welke testifying as an expert regarding firearms or blood spatter, he discussed these topics merely to explain thej 1S course of action he took in investigating Frabbiele’s death. More specifically, his testimony in this regard pertained to his discovery of the second wad. Dr. Welke explained multiple times throughout his testimony that he was neither a firearms expert nor a blood spatter expert. Further, he stated that he did not base his conclusion regarding Frabbiele’s “manner of death nor cause of death on blood splatter.” Moreover, if the trial court erred in allowing Dr. Welke to testify regarding blood spatter and firearms, such error was harmless, as the State presented another witness, Colonel Timothy Scanlan, who qualified as an expert in blood spatter and firearm examination.

The defendant also argues that the trial court erred in prohibiting his expert witness, who was qualified in the areas of firearm examination, crime scene reconstruction, shooting reconstruction, and blood spatter, from testifying “in areas that fell squarely within his expertise, but were not included in his expert witness report.” The defendant complains that he was held to a “double standard[,]” asserting that Dr. Welke was allowed to “give expert opinion testimony” as a layperson regarding blood spatter and firearms “without the noticef.]” However, as discussed above, we do not find that Dr. Welke testified as an expert in the areas of blood spatter or firearms. Moreover, the defendant’s appellate brief fails to specify what testimony his expert was prohibited from providing. A review of the record reveals that while the defendant’s expert was barred from testifying regarding his own analysis, as this had not been included in his expert witness report, he was able to present his opinion regarding the analyses of the State’s expert witnesses. Accordingly, we find that this assignment of error lacks merit.

| uDenial of Motion for Mistrial

In his fifth assignment of error, the defendant argues that the trial court erred in denying his motion for mistrial. The motion was made after the State played for the jury a recorded statement by the defendant containing information regarding the defendant’s past drug use, which the State had previously agreed to redact. The defendant alleges that his trial counsel received the State’s “redacted” version of the “five-hour statement at 6:00 p.m. the day before it would be played before the jury,” and that accordingly, his trial counsel “did not have an opportunity to review” the entire statement. However, the defendant sets forth no statutory law or jurisprudence in support of his argument.

The fifth circuit dealt with a similar fact pattern in State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, unit denied, 07-1650 (La. 5/9/08), 980 So.2d 684. In Lagarde, the defendant argued that the trial court erred in denying his motion for mistrial after “the jury viewed an edited version of the defendant’s statement that failed to omit a reference to the defendant’s arrest for second degree murder.” Id. at 1110. The panel stated that a “mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial.” Id. at 1113. Moreover, a denial of a motion for mistrial cannot be disturbed absent an abuse of discretion, and an “impermissible reference to other crimes is subject to a harmless error analysis.” Id. at 1114. The fifth circuit found no abuse of discretion in denying the motion for mistrial and stated^ that “even if the jury read or heard the brief reference to the defendant’s ‘second degree homicide’ arrest, any error that occurred was harmless” due to the “evidence against the defendant[.]” Id. at 1114.

In the instant case, we do not find that the trial court abused its discretion in denying the defendant’s motion for mistrial. We also find that even if the trial court had abused its discretion, the error was harmless, as the verdict was surely unattributable to the recorded statement’s brief reference to the defendant’s past drug use. For these reasons, we find that this assignment of error lacks merit.

Denial of Special Jury Instruction Request

In his next assignment of error, the defendant indicates that the trial court erred in denying his request for a special jury instruction. In a letter to the trial court dated May 7, 2015, the defendant requested the following special instruction: “You may return any responsive verdict listed on the verdict form even though you find that the State has proved beyond a reasonable doubt every element of the offense charged.” The defendant argues that in requesting this jury instruction, he “simply sought to inform the jury that the jury had the option of returning a responsive verdict, even if they [felt] the State proved every element of the offense beyond a reasonable doubt.” On May 14, 2015, the State filed a “State’s Opposition to Defendant’s Request for a Special Jury Instruction Regarding Jury Nullification.” After the jury had been charged, the following colloquy occurred:

MR. ALEXANDER:
If this would be an appropriate time to make the formal objections on the record with regard to the jury instructions?
THE COURT:
It would be.
|1flMR. ALEXANDER:
Because we haven’t been on the record about that yet. It’s just been called to my attention by Mr. Flammang that the form does not include—can this be right—it doesn’t include the circumstantial evidence instruction?
THE COURT:
You read the form and approved the form before I gave the instruction.
MR. ALEXANDER:
I’m making my objection on the record now that it should contain the circumstantial evidence instruction. If he’s right, it doesn’t. That escaped my attention, but I wouldn’t have had a chance to make an objection on the record until now, and so I make it.
I also, with regard to things that we have previously discussed, and I have a copy of the letter that I submitted on May 7th about the two that I requested in advance about the proposed special jury instructions. One about the responsive verdicts where I have requested quote, ‘You may return any responsive verdict listed on the verdict form even though you find that the State has proved beyond a reasonable doubt every element of the offense charged.”
THE COURT:
Let the objection be noted. State, anything on the first objection being placed by Defense?
MR. BRYANT:
I thought everything had been approved. I looked through it and I didn’t notice that, but I thought both side[s] had approved the jury instructions.
THE COURT:
And I do want to note this would be the opportune time to suggest that we met after close of proceedings yesterday in my chambers to approve. There were some corrections to be made, research to be had on some questions by Defense. We reconvened at 8:30 this morning for the second jury charge, upon which all the additions were made.
The Defense and the State suggested that they wish to change what the jury instruction was. I told them the only two ways they] 17 could change it was to agree with each other by stipulation and/or the Court was going to follow standard treatise law as it relates to instructions. That was placed on the record.
We had a third and subsequent meeting on the jury instructions at the conclusion of the Defense case in open court in which the jury charges, which I just read to the jury were promulgated, received by each party, given an opportunity to respond, upon which the Defense suggested that there was going to be a stipulated agreement that the language included that was inconsistent with the instructions yesterday would be included.
That was by stipulation, and as a result thereof the Court allowed this matter to proceed with closing arguments and now as we find ourselves with a charged Jury.

According to La.Code Crim.P. art. 807, “[a] requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” In State v. Sharp, 35, 714, p. 19 (La.App. 2 Cir. 2/27/02), 810 So.2d 1179, 1191, the defendant argued that the trial court erred in failing to give the following requested jury instruction: “You the jury have the option to convict the defendant of a lesser offense, even though the evidence clearly and overwhelmingly supports a conviction of the charged offense.” Finding no error in this regard, the second circuit stated the following:

Clearly, the first portion of the special instruction requested by [the defendant] was an attempt to reiterate more specifically the law of responsive verdicts to the jury, i.e., even if the evidence supports second degree murder, you can return a manslaughter verdict. Although arguably a technically correct statement[] it is one which is integrated within the responsive verdict law. The jury was clearly instructed that it could return a verdict of guilty to the lesser included offense of manslaughter. To expound the responsive verdict law in the way that [the defendant] suggests would, in our opinion, require, at the very least, qualification and certainly explanation. There is noj1R Louisiana jurisprudence supporting an argument that it is proper to instruct a jury that it can disobey law and reach a verdict inconsistent with the evidence. In this case, the general instruction was adequate to instruct the jury on this point. The trial judge obviously agreed. Finally, with the general instructions clearly listing manslaughter as a lesser included verdict to second degree murder, [the defendant’s] request to inform the jury that in any second degree murder case you may return a verdict of manslaughter would have been redundant.

Id. at 1192.

In the instant case, after the trial court explained to the jury the elements of second degree murder as well as its responsive verdicts, it stated the following: “If the State has failed to prove beyond a reasonable doubt that the defendant is guilty of the offense charged or of the lesser included offenses, your verdict should be not guilty.” We find that, as in Sharp, the trial court sufficiently instructed the jury regarding its ability to return a responsive verdict, such that inclusion of the defendant’s instruction was unnecessary. Accordingly, we find that this assignment of error lacks merit.

Jury Examination of Autopsy Photographs

In his seventh assignment of error, the defendant argues that the trial court erred in allowing the jury to examine autopsy photographs during jury deliberations. The defendant argues, without citing to any statutory law or jurisprudence, that these photographs could have “provoke[d] an emotional reaction” in the jury and that it was “clearly prejudicial” to allow the jury to view those photographs. However, a trial court is permitted to allow jurors to view any object received in evidence, including photographs, during deliberations. See La.Code Crim.P. art. 793(A); see also State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994). Thus, we find that this assignment of error lacks merit.

h JDenial of Motion for New Trial

In his eighth assignment of error, the defendant argues that the trial court erred in denying his motion for new trial. In support of this argument, the defendant reiterates his previous assignments of error, indicating that it was “impossible” for the defendant to “receive a fair trial” given these errors.

We have above determined that each of the defendant’s previous assignments of error lack merit. Moreover, Louisiana jurisprudence does not recognize such “cumulative error” arguments. See State v. Blank, 16-213 (La. 5/13/16), 192 So.3d 93; see also State v. Kelly, 14-522 (La.App. 3 Cir. 12/10/14), 153 So.3d 1257, aff'd in part, 15-484 (La. 6/29/16), 195 So.3d 449. For these reasons, we find that this assignment of error lacks merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Leo Paul Thibo-deaux, Jr., is affirmed. We further direct the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record that the defendant received notice.

AFFIRMED WITH INSTRUCTIONS.

      . Cooper was deceased at the time of trial.

      . When asked at trial to explain shotgun wadding to the jury, State expert Colonel Timothy Scanlan testified as follows:
      [I]n general shotgun wadding kind of acts as a piston. So we talked about all those little pellets being loose inside the barrel of a shotgun. Well, the way a gun works is you have an explosion. The fancy word for it is deflagration. It’s a pushing explosion. So when you have a bullet in a barrel, that gas is going to push up against the bullet and push it down the barrel.
      Well, if you have a bunch of little pellets and you have no piston, if you have nothing behind it the gas is just going to go by it. You have nothing to push it down, right. There's no tight fit.
      So what happens, what shotgun manufacturers do since the beginning of time with shotguns, is put a piston behind it.... Now most shotgun manufacturers, as so in this case, using all in one piece; that is a one piece wad system. So that one piece wad is in the gun. It has everything in it. So you have the cup that holds the gunpowder, and you have a wad system and leaves that kind of keep everything together; and that travels down the barrel as a piston, and then when it leaves the gun the wadding opens up and the shot goes downrange.

      . At trial, defense expert Christopher Robinson explained that the term “power piston” is "a trademark made by Remington” to refer to Remington’s wads, so that “[w]hen you hear the term power piston, they’re just using that in exchange for just wadding.”

      , Louisiana Code of Criminal Procedure Article 930.8(C) provides, in pertinent part: "At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing.”

      . Additionally, we note that the defendant has failed to brief this assignment of error outside of the single aforementioned sentence. See Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4) (providing that "[a]ll assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.”),

      . At trial, Mr. Alexander represented the defendant, and Mr. Bryant represented the State.

      . In the argument section of the defendant's appellate brief, the defendant reverses the order of his fifth and sixth assignments of error, such that his discussion of his sixth assignment of error immediately precedes the discussion of his fifth assignment of error. For the purposes of this opinion, we discuss these assignments in the order that they are listed in the assignments of error section of the defendant's appellate brief.

      . See State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137. In Porter, the supreme court explained: "Treating the jury’s prerogative to return a responsive verdict similar to the jury’s power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.” Id., at 1140 (footnote omitted).


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    Melvin R. LUCAS, Jr., et ux. v. RAPIDES HEALTH CARE SYSTEM, L.L.C., et al.
    16-844
    Court of Appeal of Louisiana, Third Circuit.
    04/05/2017

      Sage Middleton, 3102 Enterprise Boulevard, Lake Charles, Louisiana 70601, (337) 478-1400, COUNSEL FOR PLAINTIFFS/APPELLANTS: Melvin R. Lucas, Jr., Evangeline Lucas
    Robert L. Bussey, Bussey & Lauve, LLC, Post Office Drawer 8778, Alexandria, Louisiana 71306-1778, (318) 449-1937, COUNSEL FOR INTERVENOR/AP-PELLEE: The Louisiana Patient’s Compensation Fund and Oversight Board
    Randall M. Seeser, Kay H. Micheils, Gold, Weems, Bruser, Sues & Rundell, Post Office Box 6118, Alexandria, Louisiana 71301, (318) 446-6471, COUNSEL FOR DEFENDANT/APPELLEE: Rap-ides Healthcare System, L.L.C. D/B/A Rapides Regional Medical Center
    Gregory N. Wampler, 607 Main Street, Pineville, Louisiana 71360, (318) 473-4220, COUNSEL FOR APPELLEES: John E. Morton and Morton Law, LLC
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   CONERY, Judge.

| jBefore this court is an appeal of the trial court’s judgment dated August 15, 2016, granting a motion by the intervenor, the Louisiana Patient’s Compensation Fund (LPCF), to enforce the settlement of a medical malpractice action filed by Melvin R. Lucas, Jr. seeking damages from the Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center (Rapides). For the following reasons, we reverse and remand to the trial court for further proceedings.

FACTS

After the submission of his claim to a medical review panel pursuant to the provisions of La.R.S. 40:1299.41 and the receipt of the panel’s opinion on September 11, 2013, Melvin and Evangeline Lucas timely filed suit on November 25, 2013. Their petition sought damages against Rapides for a pressure ulcer Mr, Lucas developed in March 2011 while he was in the care of Rapides for strep pneumonia. Mrs. Lucas is a native of the Philippines, and English is not her first language. She was not married to Mr. Lucas at the time of the alleged malpractice, but was married to him by the time suit was filed. Rapides responded to the petition by filing a dilatory exception of lack of procedural capacity and a peremptory exception of no right of action based on the Lucas’ failure to plead whether or not they were married at the time of the alleged incident.

On June 17, 2015, the parties engaged in mediation. Mr. Lucas was represented by attorney John Morton at that time, but claimed he could not attend because of medical reasons. He sent Mrs. Lucas to attend in his place. As the couple was not married at the time of the alleged injury to Mr. Lucas, she was not a proper party to the litigation. However, Mrs. Lucas had a power of attorney signed by Mr. Lucas allegedly granting her the authority to participate in the mediation 12and possibly settle the lawsuit. During the mediation an offer was conveyed to Mr. Lucas by Mrs. Lucas. Mr. Lucas did not decline the offer or issue a counteroffer during the mediation, but then, according to Mr. Morton, he called Mr. Lucas, who allegedly agreed verbally to the offer. Nothing was placed in writing and no written settlement agreement was signed at that time.

Shortly thereafter, Mr. Lucas discharged Mr. Morton and asked him for his file materials. Pursuant to Mr. Morton’s motion to withdraw as counsel the trial court signed an order on July 7, 2015, allowing Mr. Morton to withdraw as counsel for Mr. Lucas. Obviously, no settlement agreement had been completed or signed at that time.

On October 22, 2015, Mr. Morton filed an intervention seeking his fees and costs based on a contingency fee contract signed by Mr, Lucas. The trial court signed an order on October 22, 2015, allowing Mr. Morton to intervene in the case. In the same order allowing the intervention, Mr. Morton requested the trial court further order, “that all parties and/or their counsel of record are ordered to appear for a status conference on November 30, 2015 at 9:30” in the trial court’s chambers. Mr. Lucas was sent a subpoena, requested by Mr. Morton on October 23, 2015, requiring him to attend the status conference. Again, Mr. Morton was no longer counsel for Mr. Lucas and his interests at this time were adverse to his former client, as he was obviously trying to get Mr. Lucas to agree to the settlement offer made during mediation. In any event, Mr. Lucas was unable to attend the status conference due to illness. Mrs. Lucas, who still possessed a valid power of attorney for Mr. Lucas, attended in his place.

There is nothing in the record to support Rapides’ assertion that a settlement conference took place between the parties and the trial court prior to the “status | ¡¡conference” on November 30, 2015. No motion to set a “settlement conference” appears in the record. The order setting the “status conference” on November 30, 2015, in chambers was part of Mr. Morton’s motion to intervene in the lawsuit.

At the status conference on November 30, 2015, former counsel for Mr. Lucas, Mr. Morton, and counsel for Rapides, Mr. Seeser, sought to place an alleged “confidential settlement agreement” on the record and to have the trial court confirm by the testimony of Mrs. Lucas, acting pursuant to a power of attorney, that Mr. Lucas had agreed to settle his case. Mrs. Lucas did appear on behalf of Mr. Lucas and her power of attorney was presented to the trial court, and was filed into the record as a part of the proceedings by the trial court. However, no “confidential settlement agreement” was placed on the record, under seal or otherwise.

Again, Mr. Morton no longer represented Mr. Lucas and, in fact, had filed a motion to intervene in Mr. Lucas’ lawsuit, seeking his full fee and expenses based on an alleged settlement offer procured before he withdrew as counsel. At this point in the proceedings, Mr. Morton had no authority whatsoever to speak on behalf of either Mr. or Mrs. Lucas.

A colloquy occurred on the record between the trial court and Mr. Morton, intervenor, and Mr. Seeser, attorney for Rapides, which stated in pertinent part:

MR. MORTON:
The parties have discussed the matter and there is—we think a binding settlement, unless—the Court can question Ms. Lucas about the matter.
BY THE COURT:
All righty. Ms. Lucas, I need you to raise your right hand in a minute.
1/ * * EVANGELINE LUCAS * * * having been first duly sworn, testify (sic) as follow[s]:
* * * QUESTIONED BY THE COURT
Q All right. Do you understand what you[ ] are doing here today?
A Yes, sir.
Q Okay. You do have the Power of Attorney for Mr. Lucas? •
A Yes, Your Honor.
Q Okay. Where is that Power of Attorney? Do you have a copy of it?
A Yes, sir.
BY THE COURT:
Okay let’s file this into the record and we’ll make a[] copy of it and we’ll put it into the record.
* * * QUESTIONING CONTINUES BY THE COURT * * *
Q Do you understand ma’am that the—the settlement agreements are open to you and your husband, so that you’ll know exactly what’s going on.
A Yes, Your Honor.
Q Do you understand that you have to go to Mr. Seeser’s office to execute the documents that will provide the basis of the settlement?
A Yes, Your Honor.
Yes.
hQ, Okay. Now, then no one will—no one party will be able to negotiate this settlement unless all parties are present and all parties acknowledge the settlement documents. Okay?
A Yes, Your Honor.
Q So you can’t settle ... without him. And you can’t settle with him without her. So again, y’all are all lumped together. It’s either y’all all agree or [you] don’t agree. Okay?
A Yes, sir.
BY THE COURT:
All right. When can she come to your office to uh—if she’s got the documents. I don’t know ...
BY MR. SEESER:
I—I’m not—do you have any documents Ms. Lucas? Have you been given any—that ...
BY MR. MORTON:
Your Honor, before my office closed I think I sent them to her but she probably needs a fresh copy. (Emphasis ours.)
BY MR. SEESER:
Oh, what we can do—you can come by today and sign the documents, right now, or you can make an appointment, and you tell me when you want to be there.
BY MR. SEESER:
And Judge, just for the record, until we get both the settlement documents signed the CMS Model Forms and a W-9, I can’t even request my check from my client.
BY THE COURT:
|f,I understand that and they need to understand that. That the check can not (sic) be requested until those documents are forwarded to the appropriate parties.
So the sooner you get it done—if get it done today—the sooner you get it done the sooner you can get your money and be finished with it. Okay?
BY MS. LUCAS:
Yes, sir.

The colloquy makes clear that there would be no settlement unless and until the “confidential settlement agreement,” not placed of record, was signed by all parties. The trial court then placed a copy of the power of attorney giving Mrs. Lucas the authority to settle on behalf of Mr. Lucas into the record and stated, ‘Yeah, So that we will have in the record that she was in fact authorized to speak on his behalf since he is not here. Okay.” The power of attorney placed into the record grants the authority to settle the case on behalf of Mr. Lucas, but does not contain any specifics as to the terms and conditions of the settlement. The trial court then stated with regard to the previously discussed settlement documents and the need to file them in the record, “And with that—um—I will be expecting those documents shortly.”

No “settlement terms” were discussed on the record. Mrs. Lucas never contacted Mr. Seeser, counsel for Rapides, in order to sign the alleged “settlement documents,” nor did she or Mr. Lucas ever sign a written settlement agreement. If, indeed, they had agreed to a settlement, all that was required was for Mr. Lucas or Mrs. Lucas, using her power of attorney, to sign the actual settlement documents. 17Clearly, they did not do so, and on March 31, 2016, new counsel enrolled to represent Mr. Lucas in the litigation.

On July 8, 2016, the LPCF, who was not an initially named party defendant, intervened in the case pursuant to La. R.S.40:1299.44, now La.R.S. 40:1231.4, effective June 2, 2015, to assert their right to “review and approve settlements where it [the LPCF] is affected.” In this case, the LPCF was obligated to pay under the terms of the alleged “confidential settlement agreement” its initial statutory maximum amount of $100,000. Thus, without the enforcement of the “confidential settlement agreement,” the LPCF could be at risk of having to defend a case where the amount of damages from the LPCF could exceed that amount. Accordingly, the LPCF filed a motion to enforce the “confidential settlement agreement” that had allegedly been agreed upon at the November 30, 2015 “status conference.” There is nothing in the record to show that the LPCF was ever at that status conference, much less had agreed to a settlement.

On August 4, 2016, Mr. Morton, interve-nor as former counsel for Mr. Lucas, also filed a motion to adopt the pleadings and arguments of the LPCF, which was granted by the trial court on August 18, 2016. Both the the LPCF and Mr. Morton were not parties to the lawsuit, but merely in-tervenors, yet both were seeking to “enforce” an alleged “settlement” between Mr. Lucas and Rapides. The terms of the so-called “confidential settlement agreement” were then placed in the court | ^record for the first time by two interve-nors who were not actual parties to the litigation.

Mr. Lucas, through his counsel, filed an opposition to LPCF’s motion to enforce settlement. Rapides then filed a motion to file “under seal” its reply to plaintiffs opposition and all attachments and exhibits, which included as Exhibit A, the alleged unsigned settlement document entitled, “RECEIPT, RELEASE, INDEMITY AND CONFIDENTIALLY AGREEMENT.” An order placing under seal the Rapides’ reply memoranda and exhibits, as well as all filings and hearings related to the LPCF’s motion to enforce settlement, was signed by the trial court on August 16, 2016.

Through new counsel, Mr. Lucas opposed the LPCF’s motion to enforce the “confidential settlement agreement,” arguing that Mrs. Lucas did not “consent” to any settlement on the record at the status conference, the terms of the alleged “confidential settlement agreement” were not recited in open court, it was not signed, and therefore a valid settlement was never perfected as required by La.Civ.Code art. 3072. Mr. Lucas also sought to strike as untimely Mr. Morton’s motion to adopt the LPCF’s motion to enforce the “confidential settlement agreement” pursuant to La. Dist.Ct.R. 9.9(b).

On August 15, 2016, the trial court held a hearing on the motion to enforce the “confidential settlement agreement” allegedly reached at the status conference on November 30, 2015. The trial court granted the motion, without reasons, hence there are no factual findings. The trial court also denied Mr. Lucas’ motion to strike Mr. Morton’s allegedly untimely motion to enforce the “confidential 1 ^settlement agreement.” The trial court’s judgment granting the motion to enforce the “confidential settlement agreement” was signed in open court on August 15, 2016, and stated:

ORDERED, ADJUDGED AND DECREED that an enforceable settlement was reached between the parties in open court on November 30, 2015, which settlement is subject [to] all terms and conditions of the written settlement documents prepared by counsel for Rapides Healthcare System, L.L.C. d/b/a Rap-ides Regional Medical Center and previously provided to the Lucas’ through their former attorney.

Mrs. Lucas was also ordered to execute the written documents within ten days, and, if she failed to execute the documents as ordered, then the terms of the written documents would “be deemed enforceable by all parties and that the settlement proceeds be disbursed in accordance with the settlement documents or alternatively deposited into the registry of court for disbursement in satisfaction of subsequent interventions and liens.”

Mr. Lucas now appeals the trial court’s judgment of August 15, 2016, enforcing the “confidential settlement agreement” allegedly reached at a status conference on November 30, 2015.

| ^ASSIGNMENTS OF ERROR

Mr. Lucas presents the following assignments of error for our review.

1. Judge Metoyer manifestly erred in allowing an Intervenor to join and participate in Oral Argument after they failed to abide by District Court Rules.
2. Judge Metoyer manifestly erred in finding that a compromise was con-fected on November 30, 2015 per Louisiana Civil Code Article 3072.

LAW AND DISCUSSION

Standard of Review

When a party seeks to enforce a settlement agreement, this court explained the applicable standard of review as follows:

This court has applied the manifest error/clearly wrong standard when reviewing a “trial court’s determination that there existed a valid and enforceable settlement agreement.” Geer v. BP Am. Prod. Co., 14-450, p. 4 (La.App. 3 Cir. 11/5/14), 150 So.3d 621, 624-25, unit denied, 14-2558 (La. 2/27/15), 159 So.3d 1070. As we explained in Geer, our rationale for doing so was “‘because the existence or validity of a compromise depends on a finding of the parties’ intent, an inherently factual finding.’ ” Id. at 625 (quoting Klebanoff v. Haberle, 43,102, p. 4 (La.App. 2 Cir. 3/19/08), 978 So.2d 598, 601).

Adrian v. Adrian, 15-419, pp. 2-3 (La.App. 3 Cir. 11/4/15), 178 So.3d 297, 299-300.

In Hayes Fund For The Frist United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-16, the supreme court reiterated the duty of appellate courts in a manifest error review and stated in pertinent part:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court’s factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts luthe trial court’s findings. The court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge’s or jury’s factfinding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).

Errors of law, however, are reviewed de novo. See Foti v. Holliday, 09-93 (La. 10/30/09), 27 So.3d 813. Accordingly, when reviewing an issue of law, we “render[] judgment based on the record without deference to the legal conclusions of the lower courts.” Id. at 817.

Application of Louisiana Civil Code Articles 3071 and 3072

In a dispute over whether a settlement has been perfected, La.Civ.Code art. 3071 provides, “A compromise is a contract whereby the parties, through concessions made by one or more of them settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Further, La.Civ.Code art. 3072 requires that “[a] compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” (Emphasis added.)

In Sullivan v. Sullivan, 95-2122, p. 4 (La. 4/8/96), 671 So.2d 315, 318, the supreme court found that an agreement dictated to a court reporter in an attorney’s office and later transcribed did “not constitute a recitation ‘in open court’ for purposes of [then La.Civ.Code art.] 3071.” The Sullivan court also discussed the purpose of La.Civ.Code art. 3071, now also La.Civ. Code art. 3072:

|lgLa.C.C.art. 3071 is placed in the code to insure proper proof of extrajudicial agreements. Inasmuch as there is no judgment on the merits outlining the obligations each party has to the other when a case is settled by the parties, the law has seen fit to require the compromise agreement, which sets out those obligations, to be reduced to writing to serve as proof of the agreement and the acquiescence therein.

Sullivan, 671 So.2d at 317 (quoting Felder v. Georgia Pacific Corp., 405 So.2d 521, 523 (La.1981).

Additionally, the supreme court in Sullivan then discussed the requirement that a document be signed in order to qualify as a “writing” under former Article 3071, and enforced under now La.Civ. Code arts. 3071 and 3072 stating, “Obviously, to serve as written proof of the agreement and obligations of both parties, and their acquiescence therein, the written agreement must be signed by both parties, obligating both to do what they have agreed on.” Sullivan, 671 So.2d at 317 (quoting Felder, 405 So.2d at 523. It is undisputed that the “confidential settlement agreement” discussed in general terms with the court at the status conference on November 30, 2015, was not signed by any of the parties to the alleged settlement. Therefore, we must determine if the “confidential settlement agreement,” referenced only in general at the status conference, can be enforced under La.Civ. Code arts. 3071 and 3072.

The Status Conference

It is undisputed that the actual terms of the “confidential settlement agreement” were not placed on the record in open court at the November 30, 2015 status conference. Therefore, the exact terms of the “confidential settlement agreement,” which were contained in the unsigned confidential settlement documents, were not “susceptible of being transcribed from the record of the proceedings” as required by La.Civ.Code art. 3072.

| ^Defense counsel and the intervenor argue that it was impossible to place the terms of the settlement on the record, as that action would have voided the “confidentially provisions” of the settlement. However, considering the past history of the litigation, and the reality that Mr. Morton no longer represented Mr. Lucas, and, indeed, had interests adverse to his former client, there certainly was no legal impediment to placing the “confidential settlement agreement” under seal in the record at the time of the hearing. Indeed, if not signed by the parties, the “confidential settlement agreement” was required to be recited in open court subject to transcription as required by La.Civ.Code art. 3072 as interpreted by Sullivan and its progeny. If the parties wished the settlement to be confidential, they could have requested that the “confidential settlement agreement” and terms be placed under seal, as Rapides did later.

Moreover, for some reason, not fully explained on the record, Mr. Lucas was not even present in open court so that he could be questioned as to his understanding and acceptance of the terms of the “confidential settlement agreement.” Mrs. Lucas, who was his wife by that time, was acting pursuant to a power of attorney, but she was not questioned as to the terms of the “confidential settlement agreement” either.

Defendant, Rapides, obviously anticipated at the time of the status conference before the court on November 30, 2015, that Mrs. Lucas, acting pursuant to the power of attorney from Mr. Lucas, would shortly come to the office of Mr. Seeser, counsel for Rapides, and sign the actual confidential settlement documents. However, it is also undisputed that Mrs. Lucas never appeared at Mr. Seeser’s office to sign the actual documents, hence there was no written settlement |14agreement. The LPCF, Rapides, and Mr. Morton are relying solely on La.Civ.Code art. 3072 in order to enforce the “confidential settlement agreement.”

In Lemoine v. Thornton, 13-889, p.8 (La. App. 3 Cir. 2/12/14), 161 So.3d 666, 671, writ denied, 14-541 (La. 4/25/14), 138 So.3d 648, a panel of this circuit stated that “a compromise is valid only if the parties share a meeting of the minds as to their intent.” Hence, even if this court were to determine that it was the intent of the parties to settle, there is nothing on the record to show that either Mr. Lucas, or Mrs. Lucas, pursuant to the power of attorney, actually had agreed to the terms of the confidential settlement documents pri- or to or at the status conference. The “confidential settlement agreement” was not filed under seal, nor was there actual acknowledgement on the record that Mr. or Mrs. Lucas were actually apprised of the contents at the time of the status conference. Nowhere in the appellate record of the status conference does it reflect that Mrs. Lucas actually stated on the record that she had received and/or reviewed a copy of the “confidential settlement agreement,” much less that Mr. Lucas agreed to the terms thereof.

Former counsel for Mr. Lucas, Mr. Morton, did testify at the hearing on the motion to enforce the “confidential settlement agreement” held on August 15, 2016, that he had spoken with Mrs. Lucas and discussed the terms with her prior to her testimony at the status conference on November 30, 2015, and that she understood and agreed to those terms. Further, Mr. Morton also testified at the hearing on the motion to enforce “confidential settlement agreement” on August 15, 2016, that he had spoken by phone to Mr. Lucas on the day of the status conference on November 30, 2015, and Mr. Lucas had “consented” to the “confidential settlement agreement.” Mr. Morton further stated that he had discussed the implications of the confidentially of the settlement agreement with 1 ifiMi*. and Mrs. Lucas, and that was the only reason the actual terms of the “confidential settlement agreement” were not put into the record. Again, he was no longer representing them and had interests adverse to those of his former clients. He obviously wanted the “confidential settlement agreement” to go through so that he could collect his fee and expenses pursuant to the intervention.

Moreover, the transcript of the status conference on November 30,2015, does not corroborate Mr. Morton’s claims. In fact, as previously stated, the record itself is not clear as to just what was explained or communicated to Mr. or Mrs. Lucas concerning the specifics of the alleged “confidential settlement agreement,” or whether, in fact, either or both had ever agreed to the terms thereof. The colloquy on this issue provides:

BY THE COURT:
All right. When can she come to your office to uh—if she’s got the documents. I don’t know ...
BY MR. SEESER:
I—I’m not—do you have any documents Ms, Lucas? Have you been given any—that . •,.
BY MR. MORTON:
Your Honor, before my office closed I think I sent them to her but she probably needs a fresh copy. (Emphasis added.)

This statement by Mr. Morton at the status conference, at which the “confidential settlement agreement” was supposedly agreed upon, clearly contradicts the testimony given by Mr. Morton at the hearing on the motion to enforce the “confidential settlement agreement” held on August 15, 2016. Again, the terms of the “confidential settlement agreement” were never placed on the | ¶ i-record subject to transcription at the status conference on November 30, 2015, as required by La.Civ.Code • art. 3072.

The case of City of Baton Rouge v. Douglas, 07-1153, (La.App. 1 Cir. 2/8/08), 984 So.2d 746, writ denied, 08-939 (La. 6/20/08), 983 So.2d 1284, is instructive on the issue of the importance of placing the actual settlement terms on the record when a settlement is recited in open court. Unlike this case, in that case, the settlement terms were actually placed, on the record in open court, transcribed, and then the plaintiff later refused to sign the written settlement documents:

On March 9, 2007, the parties and their attorneys engaged in a settlement conference with the trial court. After the conference, the parties and their attorneys entered a settlement agreement on the record in open court. At the hearing, the parties acknowledged that they had been well-represented by counsel and that they had reached an agreement disposing of all the issues referenced in a written stipulation, including the City/Parish’s payment of back wages, severance, and retirement contributions. In the stipulation, Mr. Douglas agreed to release the City/Parish from all possible pending claims, to retire from the City/Parish employment, and to never again seek or accept employment with the City/Parish.
The written stipulation detailing the dollar amounts agreed to be paid and outlining the terms and conditions of the settlement were prepared by the City/Parish. A copy of the stipulation was received by the trial court, the parties, and all counsel, and it was filed into evidence at the March 9, 2007 hearing. At the hearing, the trial court questioned Mr. Douglas on the record regarding his understanding .that the settlement agreement “puts an end to all of the litigation between you and the City/Parish.” Mr. Douglas indicated that he understood and that he desired to put an end to the litigation. Mr. Douglas asked a question about the stipulation that he must “never” seek employment with the City/Parish in the future, and it was explained to him that it was one of the City/Parish’s conditions of | ^settlement. Mr. Douglas indicated on the record, “[tjhat’s agreeable” and the trial court stated, “[a]ll right. This case is fully settled.”

Id. at 747-48.

Mr. Douglas later sent a letter to the trial court, his counsel, and the City/Parish through its counsel “declaring that he was refusing to accept the .terms of the settlement because he no longer agreed to retire and sever any future employment relationship with the City/Parish.” Douglas, 984 So.3d at 748. The City/Parish filed a motion to enforce the settlement of March 9, 2007, and the trial court, after a hearing on the motion, granted the City/Parish’s motion to enforce the settlement agreement which had been recited in open court in accordance with the terms of an earlier written stipulation. The stipulation of the parties was filed into the record at the hearing of the motion to enforce settlement. The transcript of the hearing demonstrates that the judge questioned the parties about the settlement and all parties agreed on the record. The trial court found that there was a valid settlement, and a panel of our sister circuit affirmed the trial court’s ruling enforcing the settlement, stating:

Although this particular settlement agreement was not put into a writing that was signed by the parties, the agreement was detailed in a written stipulation that was offered and accepted into evidence at an open court hearing in which the trial court, the attorneys, and the parties all acknowledged the existence of the stipulation and the parties agreed on the record that they desired to fully settle their differences.

Douglas, 984 So.2d at 749.

The appellate court further determined that prior to the hearing placing the settlement on the record, all parties and the trial court had participated in a settlement conference which resulted in the stipulation that was placed on the record at the hearing. All of the terms were fully disclosed to all parties and their |1scounsel, and there was no objection on the record to the terms of the stipulation and settlement. See Id.

In Morris Lee and Bayle, LLC v. Macquet, 14-1080 (La.App. 4 Cir. 3/23/16), 192 So.3d 198, a panel of the fourth circuit found that in a case where it was undisputed that the explicit terms of a compromise agreement and the parties explicit consent thereto were recited on the record in open court, a valid and enforceable settlement was perfected pursuant to La.Civ.Code art. 3072.

The record before this court on appeal demonstrates that the alleged “confidential settlement agreement” was discussed only in general terms in open court at the status conference on November 30, 2015, and the terms were not placed on the record by the parties or reviewed by the trial court, under seal or otherwise. The terms of the “confidential settlement agreement” were thus not capable of being transcribed as required by the clear wording of La. Civ. Code art. 3072.

In Kee v. Cuco’s Inc., 92-685 (La.App. 3 Cir. 5/5/93), 618 So.2d 12 (La.App. 3 Cir. 1993), a settlement agreement was recited on the record by the attorneys of the parties, but the tape of the proceedings was lost. Therefore, the only existing record of the settlement agreement was a minute entry of the trial court. A panel of this court found that a minute entry did not constitute a “writing!’- for the purposes of an enforceable settlement pursuant to former article 3071, now La.Civ.Code arts. 3071 and 3072.

In Abadie v. Metro. Life Ins. Co., 97-932, at 97-940, (La.App. 5 Cir. 4/9/98), 712 So.2d 932, writ denied, 98-1268 (La. 6/26/98), 719 So.2d 1059, a panel of the fifth circuit found that no valid, enforceable settlement was perfected. The terms of the settlement agreement were never put in writing. Therefore, like the instant 119case, the terms of the settlement were required to be recited in open court and capable of being transcribed as required by what is now La.Civ.Code art. 3072. Although the settlement was recited in open court, it did not include a full disclosure of the terms of the settlement so that all parties involved were fully apprised of their rights and obligations. Troxclair v. Parish of St. Charles, 450 So.2d 759 (La. App. 5 Cir. 1984).

Neither Mr. nor Mrs. Lucas actually signed the alleged “confidential settlement agreement” containing the actual terms and conditions thereof. Without either a signed writing or a stipulation of the actual terms of a settlement recited and agreed upon in open court that is capable of transcription, we find that there was no valid settlement between the parties. See La. Civ.Code art. 3072.

Accordingly, the trial court erred in granting the LPCF and intervenor, Mr. Morton’s, motions to enforce the settlement. We reverse the judgment in its entirety and remand the matter to the trial court for further proceedings. Since we have reversed the judgment of the trial court and found no valid settlement agreement existed between the parties, we need not consider Mr. Lucas’ first assignment of error concerning Mr. Morton’s participation in the hearing on the motion to enforce settlement.

CONCLUSION

For the foregoing reasons, the trial court’s judgment dated August 15, 2016, granting the Louisiana Patient’s Compensation Fund motion to enforce the settlement is reversed in its entirety. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of the trial court and all costs of this appeal are assessed equally to the intervenors the Louisiana Patient’s Compensation Fund and Mr. John E. Morton.

| ^REVERSED AND REMANDED.

      . The LPCF filed their statutory invention pursuant to La.R.S. 40:1299.44. This court notes that La.R.S. 40:1299.41-49, which includes La.R.S. 40:1299.44, was redesignated as La. R.S. 1231.1 to 40:1231.10, and is now included in La. R.S. 40:1231.4. The redesig-nated statute became effective on June 2, 2015, prior to the status conference on November 30, 2015, and the LPCF's motion to enforce the alleged settlement on August 15, 2015. The "HISTORICAL AND STATUTORY NOTES" under La.R.S. 40:1231.4 provide, "the provision of this Act enacting [La.] R.S. 40:1299.44(C)(5)(a) and (e) are procedural and interpretative in nature and are intended to clarify and codify existing law.”

      . Although the record reflects that the trial court denied Mr. Lucas’ motion to strike Mr. Morton’s motion to adopt the position of the LPCF, that ruling is not contained in the judgment on appeal. Further, the August 15, 2016 judgment granting the LPCF’s motion to enforce the "confidential settlement agreement” does not mention Mr. Morton, who was allowed by the trial court to adopt the motion filed by the LPCF.

      . In 2007, La.Civ.Code art. 3071 was revised and the second paragraph of Article 3071 became Article 3072. Official Revision Comment (a) for La.Civ.Code art. 3071 states, "This Article is new. It is not intended to change the law.” Louisiana Civil Code Article 3072 “preserved the requirement of Article 3071 of the Louisiana Civil Code of 1870 that a compromise must be reduced to writing. It is not intended to change the law.” Official Revision Comment (a) for La.Civ.Code art. 3072.

      . Both Mr. and Mrs, Lucas executed sworn affidavits which allegedly directly contradicted Mr. Morton's statements, but the trial court sustained an objection and those affidavits were not allowed in evidence. A “proffer” was made, and though die affidavits are in the appellate record, the issue of the admissibility of the affidavits was not challenged on appeal and cannot be considered.


author: EZELL, Judge.

text:
    Suzanne BAEZ v. HOSPITAL SERVICE DISTRICT NO. 3 OF ALLEN PARISH, et al.
    CA 16-951
    Court of Appeal of Louisiana, Third Circuit.
    04/05/2017

      Chris James LeBlanc, Watson, Blanche, Wilson & Posner, Post Office Drawer 2995, Baton Rouge, LA 70821-2995, (225) 387-5511, COUNSEL FOR DEFENDANT/APPELLEE: Hospital Service District No. 3 of Allen Parish
    Nicholas Gachassin, III, Julie Savoy, Ga-chassin Law Firm, P.O. Box 80369, Lafayette, LA 70598, (337) 235-4576, COUNSEL FOR DEFENDANT/APPELLEE: Dr. Samir Abdou Tomajian
    Zachary R. Christiansen, The Bowling Law Firm, APLC, 1615 Poydras St., Suite 1050, New Orleans, LA 70112, (504) 586-5200, COUNSEL FOR PLAINTIFF/APPELLANT: Suzanne Baez
    Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   EZELL, Judge.

h Suzanne Baez appeals a trial court judgment granting summary judgment in favor of Hospital Service District No. 3, d/b/a Allen Parish Hospital, and Dr. Samir Tomajian. Summary judgment was granted in a malpractice suit Ms. Baez filed against defendants alleging their malpractice caused her father’s death. Ms. Baez also claims the trial court-erred in denying her motion to file a surreply and in failing to grant her a continuance. For the following reasons, we affirm the judgment of the trial court.

FACTS

Adolph Baez travelled on a chartered bus trip from San Antonio, Texas, to the Coushatta Casino in Kinder, Louisiana, on March 22, 2012. His sister, Olga Trevino, organized the trip. The group arrived at the casino that afternoon and spent the night. Around 10:30 the next morning, Ms. Trevino received a call informing her that her brother had passed out. Mr. Baez was transported to the Allen Parish Hospital by ambulance, and his sister travelled in the ambulance with him.

Upon his arrival at the hospital at 10:45 a.m., Mr. Baez reported that he felt weak and passed out. He had not eaten that day. He denied that he was in any pain. He also reported a history of diabetes and hypertension. The hospital intake records indicated that his blood pressure was 94/41 and his pulse was 58. His temperature was 98.4 degrees. Lab work, a chest x-ray, and an EKG were ordered. Dr. Samir Tomaji-an, the emergency room physician, evaluated Mr. Baez at 11:10 a.m. Upon taking Mr. Baez’s history, Dr. Tomajian discovered that Mr. Baez previously suffered a myocardial infarction and that a cardiac bypass was performed. Dr. Tomajian then also ordered a troponin test.

| pThe EKG revealed a right bundle branch block and an old infarction. Lab results indicated a BNP of 2000, BUN 53, creatinine 3.33, CK-MB 7.8, and troponin .06. Dr. Tomajian met with Mr. Baez again to discuss the results of the tests. Dr. Tomajian testified that he explained the gravity of the situation to Mr. Baez and that his condition could worsen or lead to his demise. Dr. Tomajian further testified that he held Mr. Baez’s hand, told him his condition was critical, and he needed to be evaluated by a cardiologist at a larger facility. He told Mr. Baez he was suffering from before congestive heart failure. Dr. Tomajian stated that Mr. Baez was worried about getting back to Texas. Dr. To-majian then left Mr. Baez with his sister to discuss the situation. When Dr. Tomajian went back to talk to Mr. Baez, he and his sister were gone.

Ms. Trevino testified that she was not in the room when the doctor initially talked to her brother. She did hear the doctor tell her brother that he was not going to release her brother until he was stabilized. She testified that her brother wanted to leave right away. The bus was scheduled to leave for San Antonio at 3:00 p.m. The doctor said he was not letting Mr. Baez go until he ate something. Lunch was ordered, and her brother did eat something. Her brother told her several times he wanted to leave the hospital and get on the bus. She tried to talk him out of leaving the hospital, but he got mad at her. Ms. Trevino testified that she even offered to go to Lake Charles with him so they could take a flight home, but he refused.

The Allen Parish Hospital records indicate that at 11:00 a.m. and 11:30 a.m., Mr. Baez and his sister were worried about catching the bus back home. At 12:30 p.m., they requested to leave as soon as possible so they could board the bus to San Antonio, because they feared they would be stranded. The nurse explained to them that Mr. Baez needed to contact the emergency room as soon as he got home to be 1 .¡admitted to the hospital. A representative of the hospital called the casino at 12:40 p.m. to get transportation back to the casino. Mr. Baez’s IV was disconnected at 1:00 p.m., and the nurse discharged him at 1:05 p.m.

When they got on the bus to leave, Mr. Baez sat in the last seat by the window with his feet propped up on the other seat. Ms. Trevino’s friend and the friend’s husband sat on the seat across the aisle from Mr. Baez. Ms. Trevino’s husband sat in the seat in front of her brother, and she sat across the aisle from her husband. The bus made a stop in Sealy, Texas. Mr. Baez did not get off the bus. They brought him a hamburger and a soda, but he only took a few bites. The bus then stopped at Columbus, Texas. Ms. Trevino’s friend informed her that Mr. Baez’s eyes had been closed for some time. When Ms. Trevino checked on her brother, he did not respond.

The bus driver pulled over and called emergency medical services, and an ambulance was on the scene within five minutes. Records from the Colorado County Emergency Medical Services indicate that Mr. Baez was not breathing and had no pulse. CPR was performed. His pulse returned, and he was intubated. He was taken to Columbus Community Hospital. Shortly after arriving at the hospital, Mr. Baez died.

On November 14, 2013, a medical review panel rendered its opinion. Ms. Baez then filed suit against Dr. Tomajian and Allen Parish Hospital on February 21, 2014. Both of the defendants filed motions for summary judgment; Allen Parish Hospital on April 1, 2016, and Dr. Tomajian on April 15, 2106. A hearing on the motions was held on September 22,2016.

Having reviewed the memorandum and documents introduced for and against summary judgment, including Ms. Baez’s expert affidavit, the trial court [¿granted both of the defendants’ motions for summary judgment. Ms. Baez then filed the present appeal.

SUMMARY JUDGMENT

Summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends.” La.Code Civ.P. art 966(A)(2). In reviewing the trial court’s decision on a motion for summary judgment, this court applies a de novo standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876, cert. denied, — U.S. —, 136 S.Ct. 197 (2014).

The burden of proof is on the mover unless the mover will not bear the burden of proof at trial, in which case the mover is not required to negate all essential elements of the adverse party’s claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party’s claim. La.Code Civ.P. art. 966(D)(1). “The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id.

“After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which | .-reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.

Jackson, 144 So.3d at 882.

The applicable substantive law determines materiality, so we must examine the substantive law applicable to medical malpractice cases to determine whether a particular fact is in dispute. Id.

The requirements of establishing malpractice based on the negligence of a physician are found in La.R.S. 9:2794(A), which requires that a plaintiff establish: (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that standard of care; and (3) a causal connection between the doctor’s alleged negligence and the plaintiffs injuries. The standard of care is generally that degree of knowledge or skill possessed or the degree of care ordinarily exercised by doctors licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances. La.R.S. 9:2794(A)(1). “However, emergency room physicians are held to the standard of care of specialists in emergency care.” Wright v. HCA Health Servs. of Louisiana, 38,427, p. 7 (La.App. 2 Cir. 6/23/04), 877 So.2d 211, 216.

“The plaintiff in a medical malpractice suit against a hospital has a burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved.” Jones v. Rapides Gen. Hosp., 598 So.2d 619, 621-22 (La.App. 3 Cir. 1992); Miller v. Tulane Univ. Hosp., 09-1740 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142.

Expert testimony is required to establish the standard of care of both the physician and hospital in a medical malpractice action, unless the negligence | (¡complained of is so obvious that a layperson can infer the negligence without the aid of expert testimony. Pfiffner v. Correa, 94-992 (La. 10/17/94), 643 So.2d 1228; Miller, 38 So.3d 1142.

In filing them motions for summary judgment, the defendants claimed that Ms. Baez had not offered any expert testimony to support her claims against them. On June 20, 2016, Ms. Baez opposed the motions for summary judgment with the affidavit of Dr. Carol DerSarkissian, a doctor practicing in New York and board certified in emergency medicine. Ms. Baez claims that Dr. DerSarkissian’s affidavit is sufficient to overcome the defendants’ motions for summary judgment. The trial court disagreed and granted both, motions for summary judgment because “the expert’s affidavit does not set forth a factual foundation in support in regards to causation. I do think that it is more collusionary [sic] than fact based.”

All parties cited this court’s case in Kinch v. Our Lady of Lourdes Regional Medical Center, 15-603 (La.App. 3 Cir. 12/9/15), 181 So.3d 900, in which this court affirmed summary judgment in favor of a doctor, finding that an affidavit opining that the doctor breached the standard of care was speculative, and thus, the affidavit did not create a fact issue precluding summary judgment. This court specifically found that the expert doctor’s affidavit was conclusory and merely stated that the defendant doctor breached the standard of care, failing to address causation.

In support of the defendants’ motions for summary judgment, the medical review panel’s opinion with reasons, which was properly authenticated and introduced by affidavit as now required by La.Code Civ.P. art. 966(A)(4), were filed in support of the motions for summary judgment. See Comment (c) to the 2015 amendments. The panel’s written reasons provide:

|7It is the opinion of the Medical Review Panel regarding the defendants, SAMIR TOMAJIAN, M.D. AND ALLEN PARISH HOSPITAL SERVICE DISTRICT # 3, that there is a material issue of fact, not requiring expert opinion, bearing on the liability for consideration by the Court, for the following reasons; There is conflicting written and testimonial evidence related to what was told to the patient, how the patient responded, who was involved in the discharge and who authorized and completed the discharge. It appears that there was not good communication between the nurses and doctor. The documentation is poor and does not allow us to come to a decision.
If the process was followed appropriately then there was no breach because the patient would have understood the ramifications of his decision to leave. However if it was not followed, there might have been a breach if the patient was not appropriately discharged.

Allen Parish Hospital records were also filed in support of the motions for summary judgment. The nurses’ notes indicated that (at 11:00 a.m., 11:30 a.m., and 12:30 p.m.) Mr. Baez and his sister voiced their concerns about getting back to the casino and catching the bus back to San Antonio. At 12:40 p.m., the casino was called for transportation, and at 1:05 p.m., the nurse discharged Mr. Baez with instructions to go to the closest emergency room once he got home. Hospital records indicated that he verbalized an understanding of the instructions. As noted earlier, Dr. Tomajian testified that he explained the gravity of the situation to Mr. Baez. When Dr, Toma-jian attempted to speak with Mr. Baez again, he had already been discharged. Hospital records indicate that Mr. Baez left before signing receipt of the HIPAA privacy notice and authorization for emergency medical treatment was signed.

Dr. DerSarkissian’s affidavit indicated that she reviewed the medical records of both Allen Parish Hospital and Columbus Community Hospital, the depositions of Dr. Tomajian and Ms. Trevino, the medical review panel opinion and submissions, and the AMA policy of Allen Parish Hospital. Dr. DerSarkissian concluded that “had the nursing staff of Allen Parish Hospital and Dr. Tomajian 18not deviated from the standard of care, Mr. Baez would have been treated for his heart failure and likely survived.”

While the AMA policy of Allen Parish Hospital is not part of the record, Dr. DerSarkissian’s affidavit states that the policy provided:

Any patient who refuses an EMS (Emergency Medical Screening), treatment, medication, hospitalization, or transfer to appropriate facility that has been advised by the ED physician, or an attending physician, must sign a Release, Leaving Against Medical Advice/Refusal of Treatment form.

Dr. DerSarkissian then goes on to state that:

The AMA Protocol requires that the “RN and/or physician shall discuss with the patient and/or family, the potential complications and risks that may occur if the patient leaves prior to the physician discharging the patient.” Under The AMA Protocol, if after explanation of the potential consequences, the patient still wishes to leave, an AMA form should be signed by the patient and placed in the chart. Alternatively, if there is a refusal to sign this AMA form, the refusal to sign the AMA form should be noted on the physician t-sheet and/or nurses’ notes.

While Dr. DerSarkissian alleges that Allen Parish Hospital and Dr, Tomaji-an violated the standard of care in treating Mr. Baez, she never specifically relates how these violations caused Mr. Baez’s death. Mr. Baez insisted on leaving the hospital and getting back to the casino to board the bus home, which is well-documented by the nurses’ notes. Dr, Tomajian testified that Mr. Baez’s main concern was returning to the casino, even after Dr. Tomajian told Mr. Baez how grave his condition was. The nurses’ notes indicate that Mr. Baez was told to go to an emergency room when he got home, further stressing to him the serious nature of his condition before he left the hospital. Ms. Baez agreed that he wanted to get back to the casino to catch the bus, and she could not even persuade him to stay and take an alternative means home. While there is no signed AMA form, nothing in the medical records indicated that Mr. Baez was not told how grave his ^condition was. All evidence, including his own sister’s testimony, established that there was concern for Mr. Baez’s health, which had been relayed to him, before he left the hospital. We find no genuine issue of material fact.

We agree with the trial court that there is no expert evidence in the record that Mr. Baez’s subsequent death was caused by any violation of any standard of care by either Allen Parish Hospital or Dr. Toma-jian. The trial court did not err in granting the motions for summary judgment filed by Allen Parish Hospital and Dr. Tomaji-an.

SURREPLY

In her second assignment of error, Ms. Baez argues the trial court erred in denying her motion to file a surreply. She argues that La.Code Civ.P. art. 966(D)(2) implies that the trial court can and should admit additional documents at its discretion.

On July 6, 2016, Ms. Baez filed a motion to file a surreply to the defendants’ reply to her opposition to their motion for summary judgment, which was granted by the trial court. Ms. Baez attached a supplemental affidavit from Dr. DerSarkissian to her surreply. The defendants opposed this motion and filed a joint motion to vacate the ex parte order granting Ms. Baez’s motion to file a surreply. On July 25, 2016, the trial court signed an order vacating the order which granted Ms. Baez’s motion to file a surreply.

“The purpose of a surreply is to enable the non-movant to contest matters presented for the first time in the opposing party’s reply.” Nix El v. Williams, 174 F.Supp.3d 87, 92 (D.D.C. 2016). “A surre-ply may not be used simply to correct an ‘alleged mischaracterization,’ ... or to reiterate arguments already made.” Id.

| ^Louisiana Code of Civil Procedure Article 966(B) provides for the filing of motion for summary judgment, opposition, and reply as follows.

B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1)A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the trial.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days proper to the hearing on the motion. No additional documents may be filed with the reply memorandum.

We first observe that La.Code Civ.P. art. 966(B) does not provide for the filing of a surreply memorandum. It only allows for the filing of a motion for summary judgment, opposition, and a reply. Furthermore, even if we considered Ms. Baez’s motion to file a surreply as a reply memorandum, she would not be allowed to file Dr. DerSarkissian’s supplemental affidavit with the surreply because La.Code Civ.P. art 966(B)(3) does not allow for the filing of additional documents with the reply- '

Even if La.Code Civ.P. art. 966 permitted the filing of a surreply, we also find that it would not have been timely. Louisiana Code of Civil Procedure Article 966(B)(3) provides that a reply memorandum shall not be filed less than five days before the hearing. Comment(d) to the 2015 amendments provides that the trial court and the parties have the ability “to enter in to [sic] a case management or scheduling order or other order to establish deadlines different from those provided 1 nby this Article...” but the time to file a motion for summary judgment or oppose the motion cannot be shortened.

At the time Ms. Baez filed her motion to file a surreply, the hearing was set for Wednesday, July 6, 2016. Louisiana Code of Civil Procedure Article 5059 provides that in the computation of time, the last day of a period of time is to be included in the period of time allowed by law. However, if the period is less than seven days, legal holidays are not included. La.Code Civ.P. art 5059(3). In that case, Ms. Baez should have filed her motion to file surre-ply on June 28, 2016, five days before July 6, not including Saturday, Sunday, or July 4.

For these reasons, we find no abuse of discretion by the trial court in denying Ms. Baez’s motion to file a surreply with its supplemental affidavit.

CONTINUANCE

Ms. Baez’s claims that the trial court abused its discretion when it denied her request for a continuance. She argues that the defendants’ reply memorandum sought to raise admissibility concerns regarding the testimony of Dr. DerSarkis-sian and transform the summary judgment hearing into a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 5.Ct. 2786 (1993), hearing on the admissibility of Dr. DerSarkissian’s expert testimony. She claims that discovery was not complete and that the defendants did not attempt to take Dr. DerSarkissian’s deposition.

“The denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court.” Newsome v. Homer Med. Ctr., 10-564, p. 2 (La. 4/9/10), 32 So.3d 800, 802. Louisiana Code of Civil Procedure Article 966(C) provides that “[ujnless otherwise agreed to by all of the parties and the court .... [f]or good cause shown, the court may order a | ^.continuance of the hearing.” In written reasons for judgment, addressing Ms. Baez’s motion to file a surreply, the trial court ruled that “[i]n light of the time that his case has been pending, delay in retention of a medical expert by plaintiff and the issues raised in defendants[’] reply, the court does not find good cause.”

The medical review panel opinion was rendered in November 2013. Ms. Baez filed her petition for damages on February 21, 2014. The motions for summary judgment were filed in April 2016, two years after the petition was filed. Dr. DerSarkis-sian’s affidavit is dated June 14, 2016. The hearing on the motions for summary judgment was originally set for May 18, 2016, but was reset to July 6, 2016, by agreement of all the parties. Since Ms. Baez’s motion for leave to file her surreply was heard on this date, the hearing on the motion for summary judgment was finally heard on September 22, 2016.

We find that Ms. Baez had ample time to secure an expert witness in this case before the motions for summary judgment were filed and did secure expert testimony which was considered for the purposes of summary judgment. Furthermore, the trial court specifically ruled that emergency medicine is a specialty and that the locality issue of expert testimony was not at issue and based its decision on the failure to establish with expert testimony that any negligence on the part of Allen Parish Hospital or Dr. Tomajian was the cause of Mr. Baez’s death. We find no abuse of discretion in the trial court’s decision to deny a continuance of the hearing on the motions for summary judgment.

113For the reasons set forth in this opinion, the judgment of the trial court granting Dr. Tomajian’s motion for summary judgment and granting Allen Parish Hospital’s motion for summary judgment is affirmed. Costs of this appeal are assessed to Suzanne Baez.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 966 was amended by Acts 2015, No. 422, and was effective January 1, 2016, so the amendment applies in this case since the hearing on the motions was heard on September 22, 2016.

      . A hospital's nursing staff standard of care is judged according to the locality rule, while "emergency room physicians are held to the standard of care of specialists in emergency care.” Wright v. HCA Health Servs. of Louisiana, 38,427, p. 7 (La.App. 2 Cir. 6/23/04), 877 So.2d 211, 215.