author: GENOVESE, Judge.

text:
    J'Me DECKER v. COX COMMUNICATIONS LOUISIANA, LLC.
    No. 09-655.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.

      Richard B. Eason, II, Raymond P. Ward, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellant, Cox Communications Louisiana, LLC.
    Harry K. Burdette, Lafayette, LA, for Plaintiff/Appellee, J’Me Decker.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this workers’ compensation case, both the Claimant, J’Me Decker, and the Employer, Cox Communications Louisiana, LLC (Cox), appeal the workers’ compensation judgment. Mr. Decker has also answered Cox’s appeal. For the following reasons, we affirm in part, reverse in part, and remand.

STATEMENT OF THE CASE

Mr. Decker injured his back on January 26, 2003, during the course and scope of his employment with Cox. As a result thereof, Mr. Decker and Cox entered into a settlement agreement in March of 2006. In addition to paying Mr. Decker $26,000.00, the settlement also provided that Cox agreed to:

[pay for Mr. Decker’s] future medical treatments including surgery limited to [his] complaints of low back pain that are related to the accident of January 26, 2003, for one year from the date of settlement, in full and final settlement, satisfaction[,] and compromise of any and all issues raised by [Mr. Decker] in this matter ... and any and all claims that may arise out of his employment at Cox.

An order approving the settlement between Mr. Decker and Cox was signed by the workers’ compensation judge (WCJ) on April 26, 2006.

Mr. Decker was scheduled to have an anterior lumbar diskectomy with the application of an artificial disc at the L5-S1 level by Dr. Jorge Isaza on September 14, 2006; however, after being intubated, Mr. Decker began having respiratory difficulty. The surgery was cancelled, and Dr. Isaza advised him to get clearance from a pulmo-nologist before attempting further surgery.

On February 16, 2007, Mr. Decker filed a disputed claim for compensation, commonly referred to as a 1008, wherein he asserted that Cox “has failed to provide medical benefits in accordance with the full and final settlement of March, 2006. ^Claimant requests penalties and attorney fees in accordance with La. R.S. 23:1201( [G]).”

Cox answered Mr. Decker’s claim and asserted that “[u]nder the settlement agreement, [Mr.] Decker had one year from the date of the settlement for additional medical treatment to his back, including surgery. The year has expired. The plaintiffs claim is moot.”

Mr. Decker filed an amended 1008 on July 13, 2007, asserting that Cox had “failed to approve a change in treating orthopedic surgeon due to claimant[’]s treating orthopedic surgeon[’s], Dr. Jorge Isaza[’s], refusal to perform surgery and further treat claimant” and had “failed to approve any further medical treatment in accordance with the settlement of March 2006 in violation of La. R.S. 23:1201(G)[.]” Mr. Decker also requested penalties and attorney fees “for each and every act[.]”

On July 18, 2007, Cox filed a Peremptory Exception of Res Judicata And Alternative Motion for Summary Judgment. In its memorandum in support of its peremptory exception, Cox argued that Mr. Decker was “estopped by the doctrine of res judicata from bringing any claim against Cox that was adjudged in the settlement agreement.” Cox also asserted that Mr. Decker “has not alleged or presented evidence that he submitted any bills to Cox from April 26, 2006[,] to the date of his claim for compensation on February 16, 2007 that were not paid.” Alternatively, in support of its motion for summary judgment, Cox asserted that Mr. Decker “has neither alleged that the compromise was invalid nor that the settlement agreement does not reflect the intent of the parties.” According to the minutes of the trial court, the peremptory exception and motion for summary judgment filed by Cox were heard and both were denied on December 11, 2007.

IsTrial was held in this matter on January 20, 2009. At trial, Cox argued that Mr. Decker did little or nothing to obtain the necessary medical care required after his surgery in September of 2006 was can-celled due to the respiratory complications he suffered while on the operating table. According to Cox, Mr. Decker was instructed by Dr. Isaza to obtain clearance from a pulmonologist before Dr. Isaza would reattempt the surgery.

Mr. Decker asserted that he attempted to obtain authorization from Cox’s attorney, Mr. Richard Eason, on January 13, 2007, to change treating orthopedic surgeons. According to Mr. Decker, his treating orthopedic surgeon, Dr. Isaza, became unwilling to perform his back surgery after Mr. Decker’s surgery in September of 2006 was cancelled due to the respiratory complications he suffered while on the operating table. Mr. Decker argues that he filed a 1008 in February, 2007, after not receiving a response to his request from Mr. Eason.

Counsel for Cox, Mr. Eason, also argued at trial that Mr. Decker’s attempt to obtain authorization to change treating orthopedic surgeons was misdirected. According to Mr. Eason, he was unaware of Mr. Decker’s effort to change physicians. Mr. Eason further argued that Mr. Decker knew that the proper representative that he needed to contact was Connie Freese, employed by the third-party administrator for Cox, with whom Mr. Decker had always dealt. However, according to Mr. Eason, Mr. Decker never made any attempt to contact Ms. Freese about changing his treating physician.

Following the trial, the WCJ issued her oral ruling, as follows, in pertinent part:

From my viewpoint, the issue comes down to the choice of physician issue. We had a one-year period that the medical was left open for. I think all parties would agree; although, what happened in this case |4wasn’t specifically or necessarily foreseeable. I think at the time of settlement it was foreseeable that there could be some disputes about the medical that was opened for a year. There did arise a dispute as to the request for change of physician, and the filing of the claim in connection with that request is what I see as the central issue here.
I have to say that while I understand where Mr. Decker was coming from, at the same time — with the argument that Dr. Isaza became spooked. At the same time, I have to say that when a patient nearly dies on the operating table, I do believe in my non-expert opinion, that a physician would become more cautious in his overview of the necessary treatment knowing that there is a possibility that a particular patient may die during the surgery. I think it was prudent from Dr. Isaza’s standpoint to take the positions that he did, in other words. And I’m saying this in my own words, and this is what I believe the evidence reflects: That all of a sudden because of the near death of the patient on the operating table, the circumstances where changed; and there should be a greater necessity — obviously, that’s not a term of art or referring to necessity under the law, but the circumstances should be more dramatic to go forward with the surgery. So, while I understand Mr. Decker’s not understanding Dr. Isaza’s modification in position, I do not find that it is cause for a change of physician, at least on what I have before me. I think that when you come down to it and the fact that the patient nearly dies on the operating table, the doctors [sic] should be more cautious in going forward with the surgery. So, I’m denying [Mr. Decker’s] request for change of physician.
However, I do believe that Mr. Decker and his counsel did not rush to meet Dr. Isaza’s requirements because the claim had been made for the change of physician, and it needed to be addressed by the [c]ourt. So I am, in effect, finding that the request for change of physician suspended the period. While I’m not allowing a change of physician, I do give Mr. Decker an additional period of time from the finality of this ruling to extend [the] period for a certain time frame.
I’m going to give it from the date of demand, January 13th, simply because it’s going to take the — I mean we’re talking a month which in the big picture is a short period of time. But, under the facts of this case could make a lot of difference. I think the initial settlement contemplated that the surgery would take place. I don’t think anyone had any idea that what happened would happen. So, I do feel that Mr. Decker should have the opportunity to see if he can have the surgery done with Dr. Isa-za, and I think six weeks is — six, seven weeks is insufficient time. So to give him whatever benefits that I’m able to under the circumstances, I will start the suspension from the date of demand of January 13, 2007.

|sA judgment was signed on March 3, 2009, wherein Mr. Decker’s request for a change of physician, penalties, and attorney fees was denied; however, Mr. Decker was granted:

[A]n additional period of one hundred three (103) days for future medical treatments with Dr. Jorge Isaza including surgery by Dr. Jorge Isaza limited to his complains of low back pain that are related to the accident of January 26, 2003. This period begins on the date of the execution of this judgment.

Cox filed a suspensive appeal. Mr. Decker also appealed and filed an answer to the appeal lodged by Cox.

ASSIGNMENTS OF ERROR

In its sole assignment of error, Cox argues that “[t]he [WCJ] erred in modifying the April 26, 2006 settlement to make Cox responsible for 103 days[ ] additional medical care related to [Mr.] Decker’s lower back.” In its brief, Cox contends that the WCJ erroneously modified the workers’ compensation settlement where there was no showing of either fraud or misrepresentation as mandated by La. R.S. 23:1272(B).

In his sole assignment of error, Mr. Decker argues that the WCJ “committed manifest error and was clearly wrong by disallowing a change of [his] choice of orthopedic surgeon.” Additionally, in his answer to the appeal lodged by Cox, Mr. Decker requests: (1) “additional attorney fees, costs and all damages allowed by law |ñfor answering and defending this appeal”; (2) “that all issues decided favorable to [him] be affirmed”; and (3) “an increase in all damages, costs[,] and interest[.]”

LAW AND DISCUSSION

In Boykin v. PPG Industries, Inc., 08-117, pp. 4-5 (La.App. 3 Cir. 6/16/08), 987 So.2d 838, 842, writs denied, 08-1635, 08-1640 (La.10/31/08), 994 So.2d 537, this court set forth the applicable standard of review:

Questions of contractual interpretation are questions of law which are subject to a de novo standard of review. Mitchell v. Patterson Ins. Co., 00-612 (La.App. 3 Cir. 12/6/00), 774 So.2d 366. Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ.Code arts. 1983 and 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La.Civ.Code art. 2046. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050. Whether or not a contract is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759. These general rules that govern the interpretation of most contracts apply to contracts of indemnity. Soverign Ins. Co. v. Tex. Pipe Line Co., 488 So.2d 982 (La.1986).

Also instructive to our review of this matter is Rogers v. Mumford, 08-1144, p. 3 (La.App. 3 Cir. 2/4/09), 6 So.3d 848, 850:

“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.” La. Civ.Code art. 3071. “Such a compromise is valid only if the parties share a meeting of the minds as to their intent.” Amy v. Schlumberger Technology Corp., 00-175, p. 4 (La.App. 3 Cir. 6/14/00), 771 So.2d 669, 672 (citing Am. Bank & Trust Co. v. Hannie, 568 So.2d 216 (La.App. 3 Cir.1990), writ denied, 572 So.2d 64 (La.1991)).

Appeal by Mr. Decker

In brief, Mr. Decker alleges that he “tried to have the surgery rescheduled but was informed that Dr. Isaza no longer wanted to perform the surgery.” Thereafter, |7Mr. Decker submitted a request to Cox that he be allowed to see a different orthopedic surgeon. According to Mr. Decker, he filed the 1008 at issue herein when “[t]his request went completely unacknowledged[.]” On appeal, Mr. Decker contends that the WCJ erred in failing to order that a change of physician was warranted under these specific circumstances.

Cox argues that Mr. Decker’s assertion that “Dr. Isaza no longer wanted to perform the surgery” was “contrary to the record.” According to Cox, Dr. Isaza never refused to perform Mr. Decker’s surgery; instead, Dr. Isaza merely insisted that he would not reschedule the operation until he had clearance from a pulmonologist that Mr. Decker was a candidate for surgery.

The record reveals that at Mr. Decker’s post-surgical follow-up visit with Dr. Isaza on October 4, 2006, Dr. Isaza’s medical notes state “I would not recommend for [Mr. Decker] to return to surgery unless his pain is miserable.” We find that this notation corroborates Mr. Decker’s contention that Dr. Isaza was unwilling to reschedule his surgery. We consider Dr. Isaza’s position that Mr. Decker needed to be “miserable” before he would operate a sufficient basis to afford Mr. Decker the right to seek treatment/surgery with a different physician. Therefore, we find that the WCJ clearly erred when she denied Mr. Decker’s request to change physicians.

Appeal by Cox

In brief, Cox argues that “[u]nder La. R.S. 23:1272(B)(1), a settlement may not be modified except for fraud or misrepresentation made by any party.” Therefore, Cox contends that the WCJ erred when she granted to Mr. Decker an additional 103 days of medical treatment at the expense of Cox in the “absence of any showing | a(much less a finding) of fraud or misrepresentation.”

Mr. Decker counters by arguing that because his request to change physicians was “ignored by [Cox,]” he filed the 1008 at issue herein “before the one-year period” set forth in the settlement agreement expired in April of 2007. Therefore, Mr. Decker argues that said “[disputed [c]laim interrupted the one year period.”

Based upon the record before us, we do not find that the WCJ was manifestly erroneous or clearly wrong in its factual findings on the issue of whether to extend the time period within which Mr. Decker had to undergo back surgery. Based upon Dr. Isaza’s position that he “would not recommend for [Mr. Decker] to return to surgery unless his pain is miserable!,]” we find that Mr. Decker was justified in his belief that Dr. Isaza was unwilling to reschedule his surgery. We consider Cox’s refusal to grant Mr. Decker’s request to change physicians a breach of the settlement agreement; therefore, the WCJ was legally correct in granting Mr. Decker additional time to receive the medical treatment contemplated by the settlement agreement.

Considering the foregoing, and in an effort to assure that Mr. Decker obtains his necessary medical treatment, this court orders that Mr. Decker shall have a maximum of 103 days from the issuance of this court’s ruling to undergo back surgery by a physician of his choice. However, this authorization for change of physician shall in no way extend or affect the expiration of Mr. Decker’s 103-day window which closes 103 days from the issuance of this court’s ruling.

Mr. Decker’s Answer to Appeal

This court has not considered the generalized requests listed in Mr. Decker’s answer to appeal, i.e., “additional attorney fees,[] costs[,] and all damages allowed by | Jaw for answering and defending this appeal ]” as well as “an increase in all damages, costs[,] and interest!.]” Mr. Decker failed to brief these assignments of error; instead, his brief contains only an argument relative to the issue of whether the WCJ’s denial of his request to change physicians was proper. Therefore, because Mr. Decker did nothing more than specify these requests without submitting a memorandum, citing any authority, or making any argument in favor thereof, we consider Mr. Decker’s requests specified in his answer to the appeal lodged by Cox to be, in effect, abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed in part, reversed in part, and remanded. All costs of this appeal are assessed to the Employer/Appellant, Cox Communications Louisiana, L.L.C.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Louisiana Revised Statutes 23:1272(B) provides:
      When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers' compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers' compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

      . The record indicates that Mr. Decker had only one appointment with Dr. Isaza between the time of his surgery, September 14, 2006, and his filing of his disputed claim on February 16, 2007.

      . Noteworthy is the fact that the March 3, 2009 judgment did not award Mr. Decker attorney fees.

      . Uniform Rules — Courts of Appeal, Rule 2-12.4 provides, in pertinent part, "[a]Il specifications ... must be briefed. This court may consider as abandoned any specification ... which has not been briefed.”


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Lavelle W. AYCOCK, et al. v. Daniel CHICOLA.
    No. 09-563.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.
    Robert Edgerton Bethard, Bethard & Bethard, Coushatta, LA, for Defendant/Appellee, Daniel Chicóla.
    Jeffrey Howerton Thomas, Thomas Law firm, Natchitoches, LA, for Plaintiffs/Appellants, Arden J. Lea, Lavelle W. Aycock, South Texas Partners, LLC.
    William Roby Jones, Jones & Adams, Coushatta, LA, for Intervenors/Appellees, United Country/Gaddis Realty, Edgar Gaddis, Inc.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

| ^ This is a case that involves a dispute over whether two parties agreed to sell property. The buyer claims that the seller agreed to sell the land, then refused to transfer the property as per the real estate agreement.

The buyers filed suit attaching a document to their petition that they argue is a contract confected by the defendant/appel-lee to sell the property. The buyers then supplemented that petition and attached another document to that supplementation. They claimed, in the alternative to a finding that the first purported contract was not a valid contract, that this document was the confected contract to sell the property.

The purported sellers filed an exception of no cause of action claiming that the two documents are not valid contracts to sell land. The district court granted the seller’s exception and dismissed the buyer’s claims. We reverse and remand, finding that the buyers’ petition stated a valid claim for relief.

FACTS AND PROCEDURAL HISTORY:

In March of 2008, Daniel Chicóla (Chicó-la) was the owner of approximately 295 acres of property situation in Natchitoches Parish. Chicóla decided to offer this property for sale and entered into a exclusive right to sell listing agreement with M.L.S., Inc. that appointed United Country/Gaddis Realty to assist in selling this property. Robbie Simmons (Simmons), an employee of United Country, contacted Levell W. Aycock to purchase this property.

On April 17, 2008, Aycock, Arden J. Lea, and South Texas Partners, L.L.C. (collectively Aycock), met with Simmons regarding the sale of the property. A document entitled “Real Estate Buy/Sell Agreement,” that contained the terms reflecting Aycock’s offer to purchase the land, was created. This document was then given to Chicóla to contemplate the offer. Chicóla made two changes to the offer: (1) |2Chicola extended the date that physical transfer of the property was to take place by three months to allow time to bring in a crop on the land; and (2) Chicóla deleted a provision regarding the right of access to the property and noted that the property had access by way of a back lot that was to be part of the sale of the land. Chicóla then signed the document and checked a box labeled Counter Offer.

On April 18, 2008, Aycock, thinking that a contract was confected, created a bank money order in the amount of $7,500.00 for the deposit required in the April 17, 2008, document. After discussions allegedly ensued regarding $30 per acre monthly cash rent to be paid for the additional three months referenced by Chicóla, on April 21, 2008, another document was created. That document reflected the cash rent and was silent regarding access to the property. Aycock signed this document and sent the document to Chicola’s realtor.

Chicóla later refused to perform in accordance to the alleged contract(s). Ay-cock filed suit against Chicóla on April 30, 2008, requesting, specific performance or damages for breach of contract. Aycock supplemented his petition on June 18, 2008. Edgar Gaddis, Inc. doing business as United Country/Gaddis Realty filed an intervention in the proceedings to recognize that, should Aycock be successful in his petition, its three percent commission be recognized. On July 16, 2008, Chicóla filed a peremptory exception of no cause of action. In November 2008, after a hearing, the district court rendered its ruling and judgment that granted Chicola’s exception. Aycock filed this appeal, alleging the following four assignments of error:

ASSIGNMENTS OF ERROR:

1. The District Court erroneously applied the legal standard for deciding an Exception of No Cause of Action.
2. The District Court erroneously found that the payment of the deposit 13was not an unequivocal acceptance by Aycock of Chicola’s “Counter Offer.”
3. The District Court erroneously concluded that the signature by Aycock on the April 21, 2008 Buy/Sell Agreement was not an acceptance of Chicola’s “Counter Offer.”
4. The District Court erroneously concluded that the April 21, 2008 Buy/ Sell Agreement was not a binding offer by Chicóla and accepted by Aycock.

ASSIGNMENT OF ERROR NUMBER ONE:

Aycock argues in brief that the district court erroneously applied the legal standard for deciding an exception of no cause of action. We find that this assignment of error is moot given that the remedy to this assignment is the same as the standard of reviewing an exception of no cause of action.

The standard of review when an appellate court is presented with an exception of no cause of action is well-settled. Our Supreme Court, in Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 118-19 (citations omitted), stated the following:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.
Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.
The burden of demonstrating that the petition states no cause of action is upon the mover. In reviewing the judgment of the district court ^relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.

The standard of review stated above entitles Aycock to a de novo review of the record, as he has appealed a district court’s decision on an exception of no cause of action. Aycock, in his assignment of error, alleges that the district court committed an error of law. When such an error of law is committed by a lower court, the appellate court should conduct a de novo review of the record. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). Thus, regardless of whether the district court applied the incorrect legal standard for an exception of no cause of action, Aycock is entitled to a de novo review of the record. Accordingly, we will conduct that de novo review to determine whether Chicola’s exception of no cause of action was correctly granted.

In the case before us, Aycock’s original petition had a document attached to it dated April 17, 2008, that is entitled REAL ESTATE BUY/SELL AGREEMENT. Attached to Aycock’s first amended and/or supplemental petition was a document dated April 21, 2008, again entitled REAL ESTATE BUY/SELL AGREEMENT. While the standard of review cited above makes no mention of whether this court can consider these attachments for purposes of reviewing an exception of no cause of action, this court, in Mire v. Fidelity & Casualty Co. of New York, 338 So.2d 351, 352 (La.App. 3 Cir.1976)(emphasis added), stated, “[i]n ruling on an exception of no cause of action, only the well-pleaded facts in plaintiff’s petition or documents attached thereto can be considered.” Therefore, when we conduct our de novo review of the record before us, we will not only consider Aycock’s petition and its supplement, we will also consider these two documents attached to the petition to | .¡determine whether Aycock, when construing all allegations in Aycock’s petition in a light most favorable him and with every doubt resolved Aycock’s favor, the petition states any valid cause of action for relief that Aycock is legally entitled to seek.

In the original petition Aycock sought a judgment ordering Chicóla to specifically perform his obligations or to pay damages for breach of contract under the terms of the April 17, 2008, document. In the alternative, Aycock sought an injunction ordering Chicóla to execute an original cash sale deed for the property referenced in the April 17, 2008, document. In the supplement to his petition Aycock sought a judgment declaring that the April 21, 2008, document is a written promise to sell the property by Chicóla. Further, Aycock sought a judgment ordering Chicóla to specifically perform his obligations or to pay damages for breach of contract under the terms of the April 21, 2008, document. In the alternative, Aycock again sought an injunction ordering Chicóla to execute an original cash sale deed for the property referenced in the April 21, 2008, document.

Louisiana Civil Code Article 2439 states that a “[s]ale is a contract whereby a person transferring ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale.” Louisiana Civil Code Article 2440 states that “[a] sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839.”

Given the requested relief and the applicable code articles, in order to defeat Chi-cola’s exception of no cause of action, Ay-cock must allege in his petition that | fithere was an act under private signature or authentic act where the thing to be sold is identified, the price for that thing is identified, and the consent of both parties to the sale is indicated. Further, Aycock must allege that Chicóla failed to perform his obligations under the alleged act under private signature or authentic act in some manner. We find that Aycock’s original petition meets these requirements.

In Paragraph two of his original petition it is clear that Aycock’s allegation specifically identifies the thing to be sold in the purported sale:

2.
Lot 1 of Block E of Addition # 1 to Greenville Park Subdivision as the same is more fully shown on a plat of survey prepared by R.L. Gunter, R.L.S. dated December 17, 1968, and filed of record in Map Book 1, page 547, map slide 108 A of the records of Natchitoches Parish, Louisiana.
AND
That certain piece, parcel or tract of ground containing 295 acres, more or less located in Section 84, Township 10 North, Range 7 West, and Sections 19 and 80, Township 10 North, Range 6 West, Natchitoches Parish, Louisiana, and being more particularly described by reference to Exhibit “A” attached hereto and made a part hereof.
(The above described properties hereinafter referred to as the “Chicóla Properties”)

In Paragraph three of his original petition Aycock’s allegations establish that there was a price for the thing to be sold and that an act under private signature or authentic act was created by the parties in order to sell the thing at that price:

8.
Petitioners show that on April 17, 2008 Lavell W. Aycock, individually and on behalf of the other petitioners, executed a “Real Estate Buy/Sell Agreement” (the “April 17, 2008 Real Estate Contract), offering to purchase the Chi-cóla properties for the price and sum of $725,000.00, which offer was tendered to and received by the defendant, Daniel Chicóla. A copy of the April 17, 2008 Real Estate Contract is attached hereto and made a part hereof as Exhibit “B”.

|7Aycock’s allegations in Paragraphs five, six, seven, and eight of his original petition establish the consent of both parties to the sale of the thing for the price in the above alleged act under private signature or authentic act:

5.
Upon completion of the black spaces, the April 17, 2008 Real Estate Contract was signed by Aycock, individually and on behalf of South Texas Parties, L.L.C., a Louisiana Limited Liability Company which was to have been formed by Aycock’s Natchitoches attorney, the members of which include Ay-cock and Lea.
6.
The completed April 17, 2008 Real Estate Contract was then tendered to the defendant, Daniel Chicóla, who made two handwritten revisions to lines 23 and 123 of the April 17, 2008 Real Estate Contract, which April 17, 2008 Real Estate Contract was then signed by this defendant and returned to Aycock, all as will be more fully shown by reference to page 3 of Exhibit “B”.
7.
The two revisions to lines 23 and 123 of the April 17, 2008 Real Estate Contract were immaterial to the price, object and consent of the parties and consisted of the following:
Line 23: hand written date of “10/1/01” initialed by this defendant, instead of “[7J/1/08” which was originally typed on line 23.
Line 123: hand written provision of “Lot on back property goes with property for access.” which was initialed by this defendant.
8.
The original of the April 17, 2008 Real Estate Contract was then returned to Aycock who issued a Bank Money Order no.: 159543, drawn on the Gibsland Bank & Trust Co. payable to the order of the listing agent, United Country/Edgar Gadis Realty, in the sum of $7,250.00, the amount of the deposit provided for in the April 17, 2008 Real Estate Contract. On April 18, 2008, Ay-cock returned both the original of the April 17, 2008 Real Estate Contract bearing the signatures of Aycock and Chicóla, together with the Bank Money Order for the deposit to the account of the defendant’s real estate agent, Robbie Simmons, thus acknowledging acceptance of the revised terms and conditions of the April 17, 2008 Real Estate Contract. A copy of the Gibsland Bank Money Order is attached hereto as Exhibit “C”.

| (¡Finally, the allegation in Paragraph nine of Aycock’s original petition establishes that Chicóla failed to perform his obligation under the act under private signature or authentic act:

9.
The defendant refused to comply with the terms and provisions of the April 17, 2008 Real Estate Contract by refusing to execute an instrument translative of title to the Plaintiffs and thus the defendant has failed to perform in accordance with its terms.

Chicóla argues that the document attached to Aycock’s original petition was not a contract for various reasons not pertinent to this particular issue on appeal. Chicola’s argument is misguided, for regardless of whether the attached document is actually a valid contract to sell land, Aycock has alleged all that is necessary under the law to defeat an exception of no cause of action. Whether the contract is valid, i.e. whether the allegations are ultimately established to be true, is more suitable for summary judgment or some other procedural vehicle not at issue before this court.

Therefore, we find that the district court erred in granting Chicola’s exception of no cause of action. When viewed in a light most favorable to Aycock and with every doubt resolved in his favor, his original petition states a valid cause of action for relief. Accordingly, we reverse the district court’s judgment dismissing Aycock’s claims against Chicóla, and remand the case for further proceeding.

CONCLUSION:

Aycock raised four assignments of error, the first of which was that the district court erroneously applied the legal standard for deciding an exception of no cause of action. We find that regardless if Ay-cock is correct, he is entitled to a de novo review of the record given that this type of review is the standard for this exception. After conducting that review to determine whether the granting of an exception for no hcause of action was appropriate, we find that a judgment dismissing Aycock’s claims against Chicóla based on a finding of no cause of action was incorrect.

Therefore, we reverse the district court’s judgment and remand the case for further proceedings not inconsistent with this opinion. The remaining assignments of error raised by Aycock are pretermitted by our finding in assignment of error number one. The costs of this proceeding are to be paid by Chicóla.

REVERSED AND REMANDED.

      . Louisiana Civil Code Article 1839 creates an exception to the requirement of La.Civ.Code art. 2440 that the sale of immovable property must be by authentic act or by act under private signature. It validates an oral transfer "when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath." La.Civ. Code art. 1839. Here, the property was not actually delivered, thus, the exception in Article 1839 does not apply.


text:
    STATE of Louisiana v. Brenda LANGLINAIS.
    No. 09-422.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.
    Mary Constance Hanes, New Orleans, LA, for Defendant/Appellant: Brenda Langlinais.
    Hon. J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Appellee: State of Louisiana.

      Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

|, On August 3, 2007, agents with the Iberia Parish Sheriffs Department received information that a large quantity of narcotics was located at a residence occupied by the Defendant, Brenda Langlinais. The homeowner, the Defendant’s sister, consented to a search of the residence. During the search, agents witnessed the Defendant pick up an object on a nightstand and place it in the waistband of her pants. The object, a black plastic container, housed ten grams of crack cocaine, six large and nine small rocks. Also, approximately 590 tablets of Lortab (dihydroco-deinone) were seized in the search and neither the Defendant nor her sister, had a legitimate prescription for the medication.

On December 5, 2007, the Defendant was charged by bill of information as follows: count one-possession with intent to distribute a schedule III controlled dangerous substance, dihydrocodeinone, a violation of La. R.S. 40:968(A)(1); count two-possession with intent to distribute a schedule II controlled dangerous substance, cocaine, a violation of La. R.S. 40:967(A)(1); and, count three-possession of a firearm while in possession of dihydro-codeinone and cocaine, a violation of La. R.S. 14:95(E). Pursuant to a plea agreement, the Defendant entered a plea of no contest to counts one and two, and the remaining count was dismissed.

The Defendant was sentenced on June 25, 2008, to serve five years on count one, and to ten years on count two, with five years suspended. The sentences were ordered to run concurrently. The trial court also ordered five years of supervised probation upon the Defendant’s release, along with special conditions of probation. The special conditions of probation are as follows:

I) Report to the probation office within twenty-four (24) hours of release;
|¾2) report monthly and pay a $56.00 monthly supervision fee;
3) on the charge of Possession With Intent to Distribute Cocaine, pay a fine of $2,000.00 and on the charge of Possession with Intent to Distribute Dihydro-codeinone, pay a fine of $2,000.00; also pay cost of court; Fine and court cost is to be paid within two (2) years;
4) pay the cost of prosecution in the amount of $100.00 within two (2) years of signing up;
5) reimburse the Indigent Defender Board $500.00 for services rendered to be paid within two (2) years;
6) pay $500.00 for each charge to the 16th Judicial Acadiana Crime Lab Fund within three (3) years;
7) pay $100.00 to the Clerk of Court to defray the filing cost within sixty (60) days of signing up;
8) perform 100 eight (8) hour days of community service;
9) within seven (7) days of signing up, attend, pay for and successfully complete an approved substance abuse program and evaluation and follow any recommendation for treatment;
10) remain drug and alcohol free; stay out of bars, casinos and away from illicit drug and substance abusers;
II) attend five (5) AA or NA meetings a week while on probation;
12)medical condition is to be taken care of at Department of Corrections Facility

A motion to reconsider the Defendant’s sentences was filed by her public defender on July 22, 2008, and denied on July 25, 2008. A subsequent motion to reconsider was filed by private counsel on July 28, 2008, and denied as moot on July 28, 2008.

The Defendant is now before this court on appeal, asserting that her sentences and the fines and special conditions of probation are excessive.

| ..ASSIGNMENT OF ERROR:

The sentence of five (5) years for possession with intent to distribute dihydro-codeinone (count one) and ten (10) years, ■with all but five (5) years suspended, for possession with intent to distribute cocaine (count two), and the fines and numerous special conditions of probation are excessive under the circumstances of this case.

DISCUSSION OF APPLICABLE LAW:

In her sole assignment of error, the Defendant argues that her sentences and the fines and special conditions of probation are excessive. This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192[p.5] (La-App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense | committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (LaApp. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The maximum possible sentence for possession with intent to distribute dihydroeo-deinone is ten years at hard labor and a fine of not more than $15,000.00. La. R.S. 40:968(B). As such, the Defendant received one-half of the maximum possible sentence and her fíne of $2,000.00 was significantly less than the maximum possible fíne.

The sentencing range for possession with intent to distribute cocaine is two to thirty years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence, and a fine of not more than $50,000.00. La. R.S. 40:967(B)(4)(b). The Defendant’s ten-year sentence is one-third of the maximum possible sentence, and her $2,000.00 fine is a fraction of the maximum possible fine. Additionally, half of the Defendant’s ten-year sentence was suspended, further reducing the amount of time she must serve.

Lastly, the benefit received from the Defendant’s plea bargain was significant. Prior to her plea, the Defendant faced an additional hard-labor sentence of five to ten years, without benefit of probation, parole, or suspension of sentence, and a fine of not more than ten thousand dollars. La. R.S. 14:95(E).

At sentencing, the Defendant confirmed that she has been under continuous medical care since 1979. She also described her medical condition, stating that she had back surgery in 1979 and neck surgery in 1984. As a result, she suffers from |Bchronic pain and had been under the treatment of Dr. Steven Staires for 3 weeks for pain management. When she began treatment under Dr. Staires, he reduced the large amount of pain medication that she had been taking for two years with the use of methadone. According to the Defendant, she could function but was still in pain. She also explained that she has a hammer toe and wears only a certain type of shoe. The Defendant testified that she has had ten heart stents and one renal stent and was due to return to her doctor in July. With regard to work, the Defendant stated that she was sitting with an elderly woman, but that the job was hard now because she was no longer taking pain medication.

In reaching its decision, the trial court stated that it considered the following:

I did read in preparation for your sentencing a letter from Dr. Hebert who speaks very well of you and the care that you gave his ninety-five year old mother that they had not been able to get before that. They speak very well of you and I take that into consideration.
I also take into consideration ... your medical conditions that you assert. They’re not very different from my medical conditions. I too had back surgery, major back surgery in the nineties and I too am in chronic pain. I just have to decide that I have to go forward. Everybody has some kind of pain. I see a long list of medications listed by Dr. Stine. The Toprol, a lot of people take Toprol. The aspirin, a lot of people take aspirin. There are lots of things that are here that’s just for regular functioning. Ms. Nancy says you’re elderly. She’d better be careful. You’re fifty-one years old. You’ll be fifty-one in September. So there are lots of things here for stomach upset and all those things that can be caused by the amount of medications that you’re taking that are prescribed, and the amount of medications that you’re taking that are not prescribed.
In addition to that, in order to care for a ninety year old lady, I have no doubt, ma’am, that you have to exert energy. They’re a dead weight and I think that’s a medical term. You have to move the, you have to lift them. There are things that you have to do that do not indicate to me that you’re incapable. You’ve for years lived as someone who couldn’t work, and that’s okay. I just don’t have that luxury. I also have to take into consideration the fact that you are a first time felony offender, and I tell the kids, though, the young kids sometimes, you picked a doo-zy for your first time, and you are a first time felony | fioffender and I am going to keep that in consideration, but quite often and regularly in this courtroom young men and particularly young African American men go to jail for having a lot less dope. I’m not saying that that is bad. Selling dope is selling dope. But you have a large amount of crack cocaine, a large amount of Lortabs, and a gun. And you’ve already received the benefit of the gun charge being dismissed.
I understand your medical condition, but it’s not anything that cannot be taken care of by the Department of Corrections. Know that all my sentences reflect mercy. I will not throw you away just like I don’t throw the young people away. You are here, there’s some consequences to your behavior, and notwithstanding your medical conditions,
Let me make it clear to you, Ms. Langlinais, I think you do have some medical problems, but I think you’ve used that as a reason to develop the drug problem. And therefore you’re no different than Mr. Ted Antoine who sat up there earlier today. He has a drug problem, he just didn’t have prescription drugs. A drug problem is a drug problem is a drug problem. I think you have a drug problem and you need to deal with it.
I’m not going to say maintain gainful employment. I think the community service can be done in connection with the disabilities. As the record is clear that you have worked in a service industry that requires you to be able to do some physical exertion. In addition to that, the information from Dr. Steve Stine tells me all of your medical conditions are under control. You do not experience chest pains on physical exertion and you’re not experiencing shortness of breath other than brought on by your stress. These are stressful times. I understand that.

The trial court also stressed that it could have ordered consecutive sentences and was under no obligation to run them concurrently. The trial court then stated:

In addition to that, young kids sometimes do what I call stupid points, because they’re young and stupid. We all were. You’re past that. Those people who know better should do better. Those people who hold themselves out as being responsible are held to a different level. I didn’t create that. Your sentence is consistent with my sentencing style.

|7The letter from Dr. J.R. Hebert to which the court referred at sentencing reflects that in addition to his praise of the Defendant’s caregiving to his elderly mother, he indicates that he did not condone the Defendant’s actions. Dr. Hebert, nonetheless, requested that the trial court consider an alternative to jail time in sentencing her. He explained that the Defendant “brought about a renewed spirit and value of life” to his ninety-five-year-old mother who had been confined to a wheelchair for several years. Dr. Hebert described the Defendant as “not only a caregiver, but a valued and trusted friend” to his mother.

The Defendant’s medical evaluation by Dr. Jonathan H. Stine, upon which the trial court relied in sentencing, was also reviewed. Although the trial court was correct in stating that the Defendant’s medical conditions were under control per Dr. Stine’s conclusion, a review of Dr. Stine’s evaluation provides a more accurate and thorough summary of the Defendant’s health problems than that which was stated by the trial court at sentencing. First, Dr. Stine, the Defendant’s cardiologist, identified the Defendant’s multiple diagnoses, which included coronary artery disease, renal artery disease, congestive heart failure, hypertension, hyperlipidemia and chronic hepatitis B infection. The Defendant was taking thirteen medications for the maintenance of these problems, eleven of which were prescription medications. Her medical history included the placement of numerous coronary artery stents and a renal artery stent. The trial court correctly stated, however, that Dr. Stine reported that the Defendant’s medical conditions were either stable or well-controlled.

On appeal, the Defendant stresses that although the sentences and fines are within the respective sentencing ranges, they are, nonetheless, excessive, considering her age and the fact that this was her first conviction of any kind. In addition to her | ^health problems as discussed above, the Defendant asserts that her only income is from disability payments, supplemented with income from caring for an elderly woman.

With regard to the fines and special conditions of probation, the Defendant asserts that they are onerous and destine her for failure. The fines and fees the Defendant will be expected to pay during her first two years of probation total $6,200.00: $2,000.00 in fines for each conviction, $500.00 for costs of prosecution, $500.00 to the Indigent Defender Board, and $1,200.00 for twenty-four months of supervised probation fees. In her third year of probation, the Defendant will be expected to pay a total of $1,600.00: $500.00 to the Acadiana Crime Lab Fund for each conviction and $600.00 for twelve months of supervised probation fees. The Defendant contends that these sums of money are beyond what she can reasonably be expected to pay, considering she relies on disability income and her limited ability to earn additional money.

The Defendant also points to the trial court’s recognition at sentencing that she is unlikely to earn much from working and that the court was not going to require her to maintain gainful employment. As such, the Defendant maintains that it makes little sense to impose fines and fees which she is unable to pay, especially the fines that are not mandatory. Additionally, the trial court ordered the Defendant to perform one hundred eight-hour days of community service and to attend five AA or NA meetings a week during her probationary period, further reducing her ability to supplement her disability income.

This court finds significance in the mitigating factors present in this case — most notably that the Defendant is a first time offender, that she is in poor 19health, and that she is over fifty years of age. However, we are also vigilantly aware of, and hold great respect for, the wide discretion owed to the trial court in imposing a sentence. We find that the trial court was measured and deliberate in handing out a relatively lenient sentence for such a serious offense. With regard to the length of the sentence, while we are mindful of the Defendant’s condition and health, we cannot say that the trial court exhibited a manifest abuse of discretion in handing down this sentence, considering the much harsher penalty it could have imposed.

We are greatly concerned, however, with the severe special conditions of probation that accompany the sentence. We note that the primary purpose of probation is the rehabilitation of the defendant through reintegration into society. State v. Clark, 391 So.2d 1174 (La.1980). We find it difficult to see how such rehabilitation would be possible when the Defendant will be placed under such a heavy financial burden.

In State v. Hall, 99-2887 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, the defendant pled guilty to possession of cocaine and was sentenced to three years at hard labor, suspended, and three years of probation with ten special conditions of probation at a total cost of $1,300.00 plus a $20 per month probation fee. On appeal, the Defendant argued that the conditions of probation were financially excessive. The court found, however, that the defendant, a twenty-eight-year-old able-bodied male, was gainfully employed in the construction industry, and thus, failed to show that the conditions of probation were financially excessive. In reaching its decision, the court stated:

The purpose of probation is the promotion of a defendant’s rehabilitation by allowing him to reintegrate into society without confinement. State v. Clark, 391 So.2d 1174, 1177 (La.1980); State v. Davis, 375 So.2d 69, 73 (La.1979). “It holds no promise and serves no | mpurpose if the conditions are so harsh that the probationer is destined for failure at the outset.” State v. Carey, 392 So.2d 443, 444 (La.1981). This includes financial conditions. See Carey; State v. Sartain, 571 So.2d 192 (La.App. 4 Cir. 1990). Such excessively harsh financial conditions of probation will be stricken by appellate courts. Carey; Sartain.

Id. at 59.

In State v. Parker, 423 So.2d 1121, 1124 (La.1982), the supreme court stated:

In the past, we have consistently afforded the trial judge a -wide latitude in the imposition of probationary conditions, as long as the conditions are reasonably related to the rehabilitation of the individual and do not constitute excessive, cruel, or unusual punishment. La. Const, art. 1, sec. 20; La. C. Cr. P. arts. 894, 894.1; State v. Morgan, 389 So.2d 364 (La.1980); State v. Davis, 375 So.2d 69 (La.1979); State v. Credeur, 328 So.2d 59 (La.1976). This discretion is not without its bounds, however. We cannot countenance the imposition of sentences under conditions which heap an unjust burden upon the generally impecunious criminal defendant.

Considering same, the court found that the $200.00 per month payment to the criminological fund as a condition of probation was not reasonably related to the defendant’s rehabilitation. The court noted that the defendant was already burdened with fixed expenses, consuming an appreciable portion of his disposable income. The court found significant the fact that the defendant was the sole support of his elderly mother and that he had some difficulty in paying $150.00 per month in child support.

These cases are on point with the matter before us and reflect our grave concern on the issue of the excessive burden placed by the special conditions of probation. The Defendant’s health problems, coupled with her already limited income, make it unrealistic for the court to expect her to be capable of meeting these conditions. Accordingly, we find that the special conditions are excessive considering the jurisprudence and the circumstances surrounding this case.

Pursuant to La.Code Crim.P. art. 882, an appellate court can correct an illegal In sentence at any time. An appellate court may not correct an illegal sentence if that correction involves the exercise of sentencing discretion. State v. Curtis, 08-99 (La.App. 3 Cir. 6/5/08), 987 So.2d 294. We note, however, the multiple cases wherein certain aspects of a sentence have been vacated in lieu of remanding the matter back to the trial court for resentencing. First, there is a line of cases involving default prison time for failure to pay a fine and/or costs. The second circuit in State v. Helsley, 457 So.2d 707 (La.App. 2 Cir. 1984), vacated the portion of the defendant’s sentence involving the fine and costs rather than remanding the case to the trial court for resentencing. In reaching its decision, the court stated:

If a defendant is indigent, the trial court may not impose a maximum sentence of imprisonment and a fine which will cause him to be imprisoned beyond the maximum duration fixed by statute when he is unable to pay a fine. State v. Williams, supra [288 So.2d 319 (La.1974) ]. The imposition of the fine and costs in addition to the maximum term of imprisonment is excessive in this case because- the defendant is an indigent whose financial situation is unlikely to substantially improve during the extended period of imprisonment which he is facing; thus, he will be forced to serve a longer term of imprisonment than that statutorily imposed because of his impecunious condition.

Id. at 721.

After the Helsley decision, the Fourth Circuit addressed the discriminatory aspect of imposing a fine on an indigent defendant in State v. Williams, 489 So.2d 286, 291-92 (La.App. 4 Cir.1986). The specific issue addressed by the court was whether imposing a fine on an indigent defendant and then automatically converting the fine into an additional prison term violated the Due Process and Equal Protection Clauses of the United States and Louisiana Constitutions.

To determine whether the different treatment for an indigent violates the Equal Protection clause, we must decide whether and under what circumstances a defendant’s indigent status may be considered in imposing a fine which can result in additional time. This is substantially |12similar to asking the due process question of whether and when it is fundamentally unfair to impose such a fine which converts into additional prison time when an indigent is totally unable to pay. See Bearden v. Georgia, 103 S.Ct. at 2069, n. 8.

The state has a fundamental interest in appropriately punishing individuals who break criminal laws whether the persons are rich or poor. Sentencing judges are vested with wide discretion in determining the initial punishment in a particular case and consider many factors including the defendant’s financial condition. Bearden v. Georgia, 103 S.Ct. at 2071.

The state’s penological interests are served here by imposition of the predicate prison term. The objective of imposing a fine in addition to the sentence relates to augmenting the state’s revenues, but that purpose cannot be served when the indigent defendant cannot pay the fine and the additional imprisonment saddles the state with the cost of housing and feeding him for an additional six months. See Tate v. Short, 401 U.S. at 399, 91 S.Ct. at 671.

Louisiana courts have consistently held that an indigent may not be given a fine in default of which a prison term is imposed in excess of the statutory maximum. State v. Williams, 288 So.2d at 319; State v. Williams, 480 So.2d 432 (La.App. 4th Cir.1985), writ granted, 484 So.2d 662 (La.1986); State v. Turner, 480 So.2d 404 (La.App. 4th Cir.1985); State v. Helsley, 457 So.2d 707 (La.App. 2d Cir.1984); State v. Plaisance, 444 So.2d 665 (La.App. 1st Cir.1983); State v. Young, 432 So.2d 1012 (La.App. 1st Cir.1983).

The rule of Williams, Tate and Bear-den is that the state cannot impose a fíne as a sentence and then automatically convert it into a prison term solely because the defendant is indigent and cannot pay the fine regardless of whether the aggregate sentence exceeds the statutory maximum. State v. White, 476 So.2d 1162 (La.App. 3rd Cir.1985); State v. Perry, 472 So.2d 344 (La.App. 3rd Cir.1985); State v. LaGrange, 471 So.2d 1186 (La.App. 3rd Cir.1985). Cf. State v. Jones, 473 So.2d 66 (La.App. 3rd Cir. 1985). Contra State v. Williams, 480 So.2d at 432; State v. Garrett, 480 So.2d 412 (La.App. 4th Cir.1985), writ granted, 484 So.2d 662 (La.1986); State v. Coon, 475 So.2d 33 (La.App. 2d Cir.1985); State v. Swartz, 444 So.2d 660 (La.App. 1st Cir.1983).

Imprisoning a person solely because he lacks funds to pay the fine was condemned in Williams, Tate and Bearden. That is exactly what happened in this case. The trial court imposed the fine, stated that Williams was indigent and could not pay the fine (without considering the reasons for his inability to pay or other alternatives), and declared that in lieu of payment he would have to serve additional time.

_J_i2Although the defendant in Williams had not yet defaulted on his fine, the court recognized that he would not be able to improve his impoverished condition while serving his prison term and concluded that his sentence was unconstitutional. His sentence was then amended to delete that portion which imposed additional jail time in default of payment of the fine. Unlike in Helsley, the fine was left intact.

Likewise, in State v. Roye, 501 So.2d 916 (La.App. 2 Cir.1987), the appellate court found that the portions of defendant’s sentences which required him to serve additional periods of incarceration in default of the payment of fines and costs were constitutionally impermissible. The court reasoned:

The U.S. Supreme Court has held that when the aggregate imprisonment exceeds the statutory maximum and results from an involuntary failure to pay a fine, there is an impermissible discrimination that rests solely on the inability to pay. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). This rule has consistently been followed in Louisiana appellate decisions. State v. Helsley, 457 So.2d 707 (La.App. 2d Cir.1984); State v. Williams, 480 So.2d 432 (La.App. 4th Cir.1985), writ granted, 484 So.2d 662 (La.1986); and State v. Plaisance, 444 So.2d 665 (La.App. 1st Cir.1983).
However, the Louisiana Supreme Court has apparently extended this rule to provide that the state cannot impose a fine as a sentence and then automatically convert it into a prison term solely because the defendant is indigent and cannot pay the fine, regardless of whether the aggregate sentence exceeds the statutory maximum, relying upon Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970) and Williams v. Illinois, supra. See: State v. Garrett, 484 So.2d 662 (La.1986); State v. Williams, 484 So.2d 662 (La.1986); State v. Pinkney, 488 So.2d 682 (La.1986).
Based upon these more recent pronouncements of the Louisiana Supreme Court, by which we are bound, this court, and other appellate courts of this state, have now been required to reverse and set aside, as unconstitutional, jail terms in lieu of the payment of fines assessed to indigent defendants. State v. Gooden, 502 So.2d 1180 (La.App. 2d Cir.1987); State v. Williams, 489 So.2d 286 (La.App. 4th Cir.1986); State v. White, 476 So.2d 1162 (La.App. 3rd Cir. 1985); and State v. Bohanna, 491 So.2d 756 (La.App. 1st Cir.1986).
Based on the aforementioned decisions, we are compelled to follow the pronouncements of the Louisiana Supreme Court which hold that the state cannot impose a fine as a sentence and then automatically convert it into a prison term solely because the defendant is indigent and cannot pay the fine, regardless of whether the aggregate sentence exceeds the statutory maximum.

Id. at 919. The defendant’s prison terms were affirmed, but the sentences were amended to delete that portion which required the defendant to serve one year imprisonment in default of payment of the $5,000 ñne and to serve an additional sixty days in jail in default of payment of the $500 fine and costs. As in Williams, the court did not disturb the fines and costs.

The second circuit in State v. Evans, 506 So.2d 1288 (La.App. 2 Cir.1987) went a step further and amended both the default time and fees/costs. In Evans, the trial court imposed the maximum sentence as a well as a $2,000.00 fine and court costs. In default thereof, an additional one year in jail was ordered. Based on its finding that the defendant was indigent and faced a long term of imprisonment, the fine, court costs and default time were vacated on appeal.

Regarding the excessiveness of a special condition of probation, we note the recently decided case State v. Standfill, 44,407 (La.App. 2 Cir.7/1/09), 15 So.3d 1252. In Standfill, the defendant was convicted of simple cruelty to animals and sentenced to six months, suspended, and placed on two years probation. As a special condition of probation, the Defendant was ordered to perform 180 eight-hour days of community service at the local animal control center. On appeal, the defendant argued that the trial court imposed an excessive amount of community service and the appellate court agreed. The court noted that the only mandatory portion of the cruelty to animals statute called for five eight-hour days while the remainder was | ^discretionary. Considering same, along with the specific facts of the case, the court found that the trial court abused its discretion, and subsequently amended the sentence to impose only the mandatory hours of community service. The court also vacated the rest of the sentence, specifically the six months suspended, and probation with special conditions.

In the instant case, we conclude that the special conditions of probation are excessive, and thus, we find that the trial court abused its discretion. The special conditions of probation are exceptionally onerous for a woman who has been disabled for many years and is on a limited income. Not only is her financial situation unlikely to improve during her imprisonment or while serving probation, her medical diagnoses which pose a serious and ongoing threat to her health are chronic and will not likely improve as she ages. As such, we vacate the special conditions of probation in part, leaving the remainder of the sentence intact. We do not vacate the special conditions that require the Defendant to report to the probation office within twenty-four hours, report monthly to the probation office, and to pay a $56.00 monthly supervision fee.

CONCLUSION:

The Defendant’s sentence for possession with intent to distribute dihydroeodeinone is affirmed. The Defendant’s sentence for possession with intent to distribute cocaine is affirmed and amended by deleting the special conditions of probation, with the exception of reporting to the probation office within twenty-four hours of release, reporting monthly, and paying a $56.00 monthly supervision fee.

AFFIRMED AND AMENDED IN PART.


text:
    SUCCESSION OF Mary Louida Arceneaux LEFORT.
    No. 09-303.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.
    Glenn W. Alexander, Attorney at Law, Cameron, LA, for Appellee: Mary Lou Stoker Joanen.
    Michael Bruce Holmes, Attorney at Law, Kinder, LA, for Appellant: Ethel Marie Fontenot Sack Lefort.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

| jThis case raises the issue of whether the judgment issued by the trial court was an absolute nullity in that it was a judgment against a deceased person. For the following reasons, we find the judgment to be absolutely null and remand the matter to the trial court.

FACTS AND PROCEDURAL HISTORY:

The matter before us arises out of the succession of Mary Louida Areeneaux Le-fort (hereinafter referred to as “Mary Louida”). Mary Louida and Alexis Joseph Lefort, Jr. (hereinafter referred to as “Alexis”) were married for 39 years and had one child, Mary Lou Stoker Joanen (hereinafter referred to as “Joanen”). Mary Louida died in 1997, and Alexis subsequently married Ethel Marie Fontenot Sacker (hereinafter referred to as “Ethel”).

Mary Louida’s last will and testament was probated in March of 1997, with all of her property (the entirety of Mary Loui-da’s separate property and half of the community property owned by Mary Louida and Alexis) being left to Joanen, subject to a right of use in favor of Alexis. In the judgment of possession, however, the right of use granted to Alexis was termed a usufruct. The community property included in the judgment of possession consisted of a home located in Welsh, Louisiana, a Lincoln Towncar, a lot of household furniture, and multiple bank accounts.

In November of 2005, upon discovering that several substantial pieces of Mary Louida’s property had been omitted from the 1997 succession, Joanen filed a petition to reopen the succession and for the appointment of an independent administra-trix. Among the items that Joanen alleged were omitted were multiple New York Life Company Mainstay Fund accounts that totaled $412,892.06. Joanen argued that these were community assets of Mary Louida and Alexis. She also alleged that there were [2several items of Mary Louida’s separate property that were not included in the judgment of possession: a dinnerware set, decorative cups and saucers, a painting, a bench, a rocking chair, and a telephone table. All of this property was left to Ethel, by way of testament, after the death of Aexis in April of 2005.

Joanen filed a petition to partition the succession on April 17, 2006. Specifically, she requested that the court partition the community property of Aexis and Mary Louida that was omitted from the original judgment of possession and that it order Ethel to return the separate property of Mary Louida. Ethel filed exceptions of lis pendens, improper venue, improper cumu-lation of actions, and no cause of action. The exceptions were denied by the trial court.

Ater hearing the case, the trial court made the following findings: It found that the home in Welsch was to be put up for sale with the proceeds divided evenly between the parties. It found that the six household items (dinnerware, cups and saucers, painting, bench, rocking chair, and telephone table) were the separate property of Mary Louida and were to be returned to Joanen. It found that the New York Life accounts were opened during the marriage of Mary Louida and Aexis; thus, the accounts were community property.

Subsequent to Mary Louida’s death, the accounts were transferred to other accounts bearing the names of Aexis and Ethel. After Aexis’s death, Ethel mistakenly listed the accounts as having been Aexis’s separate property and transferred the money into accounts bearing only her name. The trial court found that Joanen was entitled to Mary Louida’s half of the accounts, $211,177.26 of the $422,354.51 total. It also found that Joanen was still owed Mary Louida’s half share of the checking and savings accounts held by Mary Louida and Aexis during their | ^marriage. It awarded Joanen $10,443.50, half of the $20,887.00 total. Finally, the court awarded Joanen reimbursement for certain expenses related to the items included in Mary Louida’s succession, totaling $5,931.87.

Joanen passed away on November 9, 2008, shortly after trial ended. A formal judgment of partition of succession was signed on November 16, 2008. A motion and order to substitute party was filed by Joanen’s surviving husband, Ted Joanen, on December 17, 2008.

Ethel is appealing the judgment of the trial court and has asserted the following assignments of error:

APPELLANT’S ASSIGNMENTS OF ERROR:

The trial court erred in issuing judgment in favor of a deceased person. Appellant asserts numerous additional errors, but in light of our discussion on the issue of the judgment in favor of a deceased person, we need not address them at this time.

LAW AND DISCUSSION ON THE MERITS:

By her first assignment of error, Ethel asserts that the judgment issued by the trial court in the present matter is an absolute nullity. This court is faced with the rare occurrence where, after prevailing on the merits, a party to the litigation died before the signing of the final judgment. The chronology of the events pertaining to this matter are not in dispute. On October 29, 2008, the trial court issued its Reasons for Ruling, finding in favor of Joanen. The final Judgment of Partition of Succession was not signed by the trial court until November 26, 2008. Sadly, on November 9, 2008, between the time of the issuance of the Reasons for Ruling and the signing of the final judgment, Joanen died. On December 17, 2008, Joanen’s surviving spouse, Ted |4Joanen, filed a Motion and Order to Substitute Party with the trial court.

It is well established law that a judgment for or against a deceased person is an absolute nullity. Fountain v. American Employer’s Ins. Co., 161 So.2d 120 (La.App. 3 Cir.1964), Simoneaux v. Sun Erection Co., 531 So.2d 1136 (La.App. 4 Cir.1988). As the substitution of Ted Joanen as a party did not take place until after the judgment was signed, this was clearly a judgment for a deceased person. Thus, there can be little argument that the result is not an absolute nullity. The appeal must be dismissed without prejudice.

Having decided that the case must be dismissed without prejudice, we now remand the case to the district court for further appropriate proceedings. In Gulfco Finance of Livingston, Inc. v. Lee, 224 So.2d 524 (La.App. 1 Cir.1969), and Fuller v. State Department of Transportation and Development, 615 So.2d 494 (La.App. 3 Cir.1993), similar cases were heard. Gulfco addressed a suit on a promissory note. After a trial on the merits, the trial court gave oral reasons for its judgment in favor of the plaintiff and against Percy Lee. Unfortunately, Lee died a short time later, before the rendition and signing of the judgment against him. On appeal, the First Circuit acknowledged that the judgment against Lee was an absolute nullity, but it went on to state as follows:

We believe the better course of action is to follow the procedure adopted in Hughes v. Furlow [83 So.2d 144 (La. App., 1955)], supra, wherein the nullity of the judgment of the trial court was recognized but the matter was remanded to the trial court for the purpose of permitting the plaintiff to proceed against substituted parties. In Fountain v. American Employers Insurance Company, supra, co-plaintiffs appealed from an adverse judgment. The court permitted the appeal against the living co-plaintiff to stand but dismissed the appeal as to the deceased co-plaintiff. However, the court noted that it was possible for the representatives of the deceased co-plaintiff to make appropriate substitution in the lower court that would possibly permit their cause being heard on appeal along with the remaining co-plaintiff.
|fiIn the instant cause while declaring that the judgment rendered against Percy Lee is a nullity, we believe this matter should be remanded to the trial court for the purpose of permitting such substitution of parties as may be appropriate and permitted by law. C.C.P. Article 801 et seq.

Id. at 525. The court remanded the case back to the trial court, where the proper party was substituted pursuant to La.Code Civ.P. art. 801. The First Circuit then heard the case on the merits. See Gulfco Finance Company of Livingston, Inc. v. Lee, 241 So.2d 301 (La.App. 1 Cir. 11/16/1970).

In Fuller, the plaintiff filed suit against DOTD for damages he sustained while driving a dump truck across a bridge that partially collapsed. The trial court found in favor of the plaintiff, but he died before the judgment was signed. The executrix of the plaintiffs estate moved to be substituted as party plaintiff, but the substitution occurred after the signing of the judgment in favor of the deceased plaintiff. This court, citing Gulfco, declared the judgment an absolute nullity and remanded the case back to the district court “for such action as the law permits, including the substitution of the legal successor of the deceased party, the rendition and signing of a judgment in favor of the properly substituted party, and the perfection of an appeal from such judgment by any party to the action.” Fuller, 615 So.2d at 496.

We agree with these decisions and find them applicable to the present matter before us. Accordingly, we find that the judgment by the trial court was an absolute nullity, and we remand the matter back to the trial court for such action as the law permits.

CONCLUSION:

In light of the facts presented and the jurisprudence from Gulfco and Fuller, we find that the judgment in favor of Joanen was an absolute nullity, and we remand the |ficase to the trial court consistent with the procedure employed in the above cited cases.

DISMISSED AND REMANDED.