author: KYZAR, Judge.

text:
    John MANTIPLY and Melissa Sue Mantiply, et al. v. Joseph I. HOFFMAN, Jr., M.D.
    18-292
    Court of Appeal of Louisiana, Third Circuit.
    January 16, 2019 Rehearing Denied March 13, 2019
    Eugene A. Ledet, Jr., Brian Caubarreaux, Brock H. Duke, Brian Caubarreaux & Assoc., 4501 Jackson St., Ste A, Alexandria, LA 71303, (318) 442-0900, COUNSEL FOR PLAINTIFFS/APPELLANTS: John Mantiply, Melissa Sue Mantiply
    Gregory Engelsman, Eric John Miller, Bolen, Parker, Brenner, Lee & Engelsman, LTD, P.O. Box 11590, Alexandria, LA 71315-1590, (318) 445-8236, COUNSEL FOR DEFENDANT/APPELLEE: Joseph I. Hoffman, Jr., M.D.
    Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   KYZAR, Judge.

In this medical malpractice action, the Plaintiffs, John and Melissa Mantiply, appeal the judgment of the trial court dismissing their claims against the Defendant, Dr. Joseph I. Hoffman, Jr. The judgment arose following a trial by jury and in accordance with the jury verdict. For the reasons set forth herein, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 21, 2008, Plaintiff John Mantiply underwent arthroscopic surgery on his left knee to repair a torn meniscus. The surgery was performed by Defendant Joseph Hoffman, M.D., an orthopedic surgeon working as an independent contractor at the Veterans Administration (VA) Hospital. Days after the surgery, John began experiencing pain, swelling, and drainage in his left knee, causing him to return to the VA Hospital multiple times. John was seen by numerous doctors at the VA Hospital, though Dr. Hoffman remained his primary provider post-surgery until June 9, 2008, when Dr. Hoffman aspirated and cultured the fluid from John's left knee and injected the knee with cortisone on the same day without awaiting the results of the culture. Hospital records from the VA do not show an official diagnosis regarding the cause of John's knee problems. On June 26, 2008, John met with Dr. Michael Brunet, an orthopedic surgeon at Mid-State Orthopedic Clinic, regarding his continuing leg pain and lack of mobility.

The sequence of events leading up to the June 9, 2008 aspiration and cortisone injection and the current suit are as follows:

• May 21, 2008: John has arthroscopic surgery performed by Dr. Hoffman at the VA Hospital to repair a torn meniscus in his left knee.
• May 26, 2008: John presented to the Emergency Room (ER) at the VA Hospital, reporting redness, swelling, and bleeding from his left knee. The attending ER physician, Dr. Fitzgerald, aspirated 12ml of fluid from the knee and prescribed the antibiotic amoxicillin.
• May 27, 2008: John followed up with Dr. Hoffman, who examined the knee and noted clear drainage from the needle site. No diagnosis was given, though Dr. Hoffman recommended John continue with his prescribed amoxicillin and return for his regularly scheduled follow-up appointment on May 29.
• May 29, 2008: John returns to the orthopedic clinic to see Dr. Hoffman, relating constant pain in his knee, though there was no more fluid drainage at that time. That evening, however, John returned to the ER complaining of drainage from the surgical site and again saw Dr. Fitzgerald, who noted no redness or swelling.
• May 30, 2008: John called the ER Department at the VA twice complaining of excess fluid draining from his knee. John did not present to the ER for his symptoms.
• June 4, 2008: John returned to the VA for a scheduled appointment but was sent to the ER and seen by Dr. Del Valle due to swelling and continued pain in his left knee. X-Rays were taken that revealed a supra patella effusion and soft tissue swelling. John's knee was wrapped in an ace bandage, and he was discharged with instructions to keep the leg elevated.
• June 5, 2008: John again returned to the orthopedic clinic for a follow-up appointment with Dr. Hoffman, where Dr. Hoffman noted continued drainage of clear fluid from John's left knee. Dr. Hoffman ordered a complete blood count (CBC) on this date and his notes state that this was a "very strange course of events." Dr. Hoffman renewed John's prescription for amoxicillin, though no official diagnosis was noted in the records.
• June 7, 2008: John presented to the ER complaining of sharp pains and severe burning in his left knee. Dr. Fitzgerald noted no redness or swelling and recommended John follow-up with Dr. Hoffman.
• June 8, 2008: John experienced a syncopal episode where he lost consciousness due to the pain in his knee and was admitted to the VA Hospital. A second CBC was ordered, which showed a higher white blood count (WBC) than the previous test. Dr. Clement, who saw John during this visit, also ordered that his "Sed rate" and uric acid level be checked.
• June 9, 2008: While still in the hospital, John was examined by Dr. Hoffman. Dr. Hoffman did an arthrocentesis, in which he aspirated fluid from John's knee, and submitted the fluid for culture. Before the results of that culture were received, Dr. Hoffman also injected cortisone into John's knee to help with pain.
• June 10, 2008: Still hospitalized, John reported no complaints of pain in his knee to his internist, Dr. Ganji, who was treating him for the syncopal episode. Dr. Ganji ordered a CBC, which showed a higher WBC than the test done on June 8, and ordered John to be placed on Clindamycin, a potent antibiotic.
• June 11, 2008: John's WBC count was notably lower than the previous day, and he was released from the ER. The culture from June 9 came back showing a small number of staphylococcus aureus organisms, i.e. the results of the synovial fluid culture was positive for trace amounts of staph. John claims it is during this hospital stay that he first noticed the restriction of mobility in his left knee.
• June 19, 2008: John reported to the orthopedic clinic to see Dr. Hoffman, stating that his knee had become locked, though he reported no pain in the leg. Dr. Hoffman advised John to continue his prescription of Clindamycin and to return in three weeks. No official diagnosis regarding the ongoing issues with John's knee is ever recorded.

The June 19, 2008 appointment is the last encounter John has with Dr. Hoffman. Within a week of that appointment, John met with Dr. Brunet, who urgently advised him to seek additional treatment as the possibility of infection was serious. John returned to Dr. Brunet the next month for continuing knee issues, at which time Dr. Brunet suspected either a chronic infected knee or gouty synovitis. Eventually, Dr. Brunet performed a synovectomy surgery on July 23, 2008 on John's left knee, noting a thickening of the synovial lining. The mobility in John's left leg purportedly did not return, an assertion challenged by the defense at trial.

Trial by jury commenced October 10, 2017. Three medical experts testified at trial. Following deliberations on October 13, 2017, the jury returned a ten-to-two verdict in favor of Dr. Hoffman, finding that Plaintiffs failed to prove by a preponderance of the evidence that Dr. Hoffman deviated from the standard of care of a reasonably prudent orthopedic surgeon in his post-surgical treatment of John, thus awarding Plaintiffs no damages. Specifically, the jury answered "NO" to question one of the jury interrogatories: "Do nine (9) or more of you find by a preponderance of the evidence, that Dr. Joseph Hoffman, Jr. breached the applicable standard of care in his treatment of John Mantiply?" A formal judgment was signed October 20, 2017. Plaintiffs timely moved for a Judgment Notwithstanding the Verdict (JNOV), which was denied. Plaintiffs seek appellate review of the jury's verdict, alleging that it is predicated on manifestly erroneous factual findings because there was no competent evidence in the record to support the jury's interpretation of the facts. Dr. Hoffman answered the appeal asserting that the trial court erred in denying his peremptory exception of prescription.

DISCUSSION

Exception of Prescription

In answer to this appeal, Dr. Hoffman asserts that the trial court erred in denying his exception of prescription. Therein, Dr. Hoffman declares that the claim against him directly, filed for the first time by an amended complaint in federal court on June 9, 2011, was untimely as not having been filed within a year of the purported malpractice or at the least from one year of discovery of the act. As a finding that the claim at hand has prescribed would render the rest of the appeal moot, we will address Dr. Hoffman's exception of prescription first. In Louisiana, delictual actions shall be brought within one year of the event causing injury. La.Civ.Code art. 3492. A hearing on the exception was held on June 13, 2016, and reasons for judgment were handed down on July 1, 2016, denying the exception. A formal judgment to that effect was signed on July 28, 2016. Dr. Hoffman thereafter applied to this court for a writ of review, which was denied. Mantiply, et al. v. Hoffman , 16-708 (La.App. 3 Cir. 11/30/16) (unpublished).

A prior denial of supervisory writs does not preclude reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion. State v. Castleberry , 98-1388, p. 5 (La. 4/13/99), 758 So.2d 749, cert. denied , 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). Under the doctrine of "law of the case," an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. Clement v. Reeves , 07-1154, 07-1155 (La.App. 3 Cir. 1/30/08), 975 So.2d 170, writ denied , 08-0482 (La.4/18/08), 978 So.2d 355 ; State v. Pettus , 11-862 (La.App. 5 Cir. 5/22/12), 96 So.3d 1240. The law of the case doctrine is discretionary. Id. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Id. Although, we find no error in the decision by this court on the writ, and acknowledge there has been no new evidence presented, we feel it in the best interests of justice that a written discussion of the parties' arguments be undertaken. Thus, in our discretion, we decline to apply the law of the case doctrine in this instance, and will entertain LWCC's appeal.

Hernandez v. La. Workers' Comp. Corp. , 15-118, p. 5 (La.App. 3 Cir. 6/3/15), 166 So.3d 456, 458-59.

Similarly, we will address Dr. Hoffman's assertion in his answer to the appeal here. In Louisiana, "[n]o action for damages for injury or death against any physician ... arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery[.]" La.R.S. 9:5628(A). The events leading to the current suit took place between May 21, 2008 and June 9, 2008. Dr. Hoffman was first named as a defendant in Plaintiffs' amended complaint on June 9, 2011. As noted by Dr. Hoffman, this is clearly outside of the allotted time period for filing such an action. Further, "in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect." La.R.S. 9:5628(A).

Plaintiffs initially began administrative proceedings in March 2010 against the United States of America and the VA and formally filed suit in federal court on December 19, 2010. Delictual actions against the United States must be brought to the appropriate federal agency within two years of the alleged act, omission, or neglect. 28 U.S.C. § 2401. Plaintiffs assert that it was not until June 8, 2011 that counsel for the U.S. stated that Dr. Hoffman was not in fact an employee of the VA but was an independent contractor.

Plaintiffs immediately moved to include Dr. Hoffman individually in the lawsuit upon obtaining such information, asking leave to file an amended complaint to include Dr. Hoffman as a co-defendant in the federal suit and filing a request for a medical review panel per the provisions of La.R.S. 40:1231.8 on June 9, 2011, three years from the date of the cortisone injection. Upon being notified that Dr. Hoffman was not qualified under the Louisiana Medical Malpractice Act as he was only licensed in Georgia and New York, John and his wife filed suit against Dr. Hoffman on August 15, 2011. Dr. Hoffman filed an exception of prescription, noting that La.R.S. 9:5628(A) requires that medical malpractice suits be brought within one year, and at no point more than three years, from the date of the acts causing injury. Further, in actions commenced in an incompetent court or improper venue, prescription is only interrupted as to the defendant who is served within the prescriptive period. La.Civ.Code art. 3462.

The trial court denied Dr. Hoffman's exception of prescription, finding the principle of contra non valentem applied. It is important to note that despite the wording of La.R.S. 9:5628(A), both the one-year and three-year time limitations contained in the statute are prescriptive, not preemptive. Borel v. Young , 07-0419 (La. 11/27/07, 23), 989 So.2d 42, on rehearing (July 1, 2008). Therefore, the exception of contra non valentem , which suspends prescription, is applicable. Id. The doctrine itself is based upon the theory that when a plaintiff is not aware of the facts giving rise to his or her cause of action against a particular defendant, the running of prescription is suspended until the tort victim discovers or should have discovered the facts upon which his or her cause of action is based. In re Med. Review Panel of Howard , 573 So.2d 472 (La.1991). The supreme court has recognized four instances in which contra non valentem prevents the running of liberative prescription:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff's ignorance is not induced by the defendant.

Marin v. Exxon Mobil Corp. , 09-2368, 09-2371, p. 12 (La. 10/19/10), 48 So.3d 234, 245.

"Contra non valentem acts to suspend prescription where the action or inaction of the plaintiff is reasonable." Eastin v. Entergy Corp. , 03-1030, p.8 (La. 2/6/04), 865 So.2d 49, 56. Plaintiffs argue that their ignorance regarding Dr. Hoffman's employment relationship with the VA was not willful or inexcusably negligent but was reasonable in light of the circumstances, and they introduced exhibits into the record at trial to show this. The supreme court addressed a similar issue in Howard , 573 So.2d 472.

In Howard , the plaintiff presented to an emergency room for treatment. However, it eventually came to light over a year after the incident, that the emergency room physician who provided care for him was not an employee of the hospital, but rather was employed by a separate medical group hired by the hospital. Both the trial and appellate courts sustained the doctor's exception of prescription, finding that the hospital had no obligation to disclose its contractual relationship with the emergency room doctor to the plaintiffs. Id. The supreme court reversed, finding that prescription did not begin to run until the plaintiff was made aware of the relationship between the emergency room doctor and the hospital, per the doctrine of contra non valentem . Id. The court found that the key inquiry in a contra non valentem case is the commencement date of the one-year prescriptive period contained in the statute, which is dependent upon the "reasonableness of the claimant's action or inaction." Id. at 474.

Constructive knowledge sufficient to commence the running of prescription requires something more than a mere apprehension that something might be wrong. Cordova v. Hartford Accident & Indemnity Co. , 387 So.2d 574 (La.1980). Prescription does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable . Young v. Clement , 367 So.2d 828 (La.1979).

Id.

In the instant case, John presented himself to the VA. He was treated there by Dr. Hoffman, who was wearing VA medical center attire. The VA itself defended Plaintiffs' claims against it until informing Plaintiffs' counsel that Dr. Hoffman was not an employee of the VA, over a year after proceedings were initiated. While Plaintiffs could have chosen to name Dr. Hoffman personally as a defendant in the initial petition, it was not necessary for them to do so if Dr. Hoffman was a VA employee. See Howard , 573 So.2d 472. Based upon the above facts and the circumstances set up by Dr. Hoffman and the VA, Plaintiffs' belief that Dr. Hoffman had an employment relationship with the VA was reasonable. See Eastin , 865 So.2d 49. As such, we find the principle of contra non valentem applies to halt the running of prescription in the case at hand, and we, accordingly, find no error in the trial court's denial of Dr. Hoffman's exception of prescription.

Breach of the Standard of Care

Standard of Review

The jury in the instant case specifically found that Dr. Hoffman did not breach the applicable standard of care in his treatment of John. The determination of whether Dr. Hoffman breached the standard of care is a factual determination subject to the manifest error standard of appellate review and thus a court of appeal may not set aside the trial court's or jury's finding unless it is manifestly erroneous or clearly wrong. Greer v. State, Through Dep't of Transp. & Dev. , 06-417 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, writ denied , 06-2650 (La. 1/8/07), 948 So.2d 128. Before an appellate court can reverse a factfinder's determination of fact, it must review the record in its entirety and meet the following two-part test: (1) It must find that a reasonable factual basis does not exist for the finding; and (2) It must determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993) ;

Smith v. St. Paul Fire & Marine Ins. Co. , 07-285 (La.App. 3 Cir. 10/3/07), 966 So.2d 1205.

Burden of Proof

In order to establish a medical malpractice claim, La.R.S. 9:2794(A) provides that the plaintiff has the burden of proving three essential elements:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances, and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty[;]
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill[;]
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Thus, Plaintiffs had the burden of proving, by a preponderance of the evidence, the standard of care for treating a patient such as John, that Dr. Hoffman breached that applicable standard of care, and that Dr. Hoffman's breach was the cause of John's injuries. See Browning v. W. Calcasieu Cameron Hosp. , 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied , 03-3354 (La. 2/13/04), 867 So.2d 691.

Standard of Care

In malpractice actions, the degree of knowledge or skill possessed, or the degree of care ordinarily exercised is commonly referred to as the standard of care. Vaughan v. Sanders Vision Ctr. & Children's Eye Clinic , 06-651 (La.App. 3 Cir. 11/2/06), 941 So.2d 682. Medical specialists are held to a uniform standard of care based upon national standards existing within the specialty, as codified in La.R.S. 9:2794. Matthews v. Louisiana State Univ. Med. Ctr. in Shreveport , 467 So.2d 1238 (La.App. 2 Cir. 1985). The jurisprudence of this state makes clear that a physician's duty is to "exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. He must use reasonable care along with his best judgment in the exercise of that skill." Id. at 1241 (citing Meyer v. St. Paul-Mercury Indem. Co. , 225 La. 618, 73 So.2d 781 (1953), overruled on other grounds , 360 So.2d 1331 (La.1978) ). Absolute precision in medical diagnoses is not the required standard of care in this state, which standard is best determined from testimony of other experts in the field. Id.

Three medical experts testified in the instant case in order to establish the requisite standard of care: Dr. Brunet, Dr. Foster, and Dr. Hoffman, himself, all board-certified orthopedic surgeons. Dr. Brunet saw John multiple times for treatment for his leg after John's May 21, 2008 surgery with Dr. Hoffman and an eventual, second surgery on the same knee on July 23, 2008. Dr. Foster's original involvement in the case was on behalf of the VA as an independent medical examiner, though he testified at trial on John's behalf. Dr. Hoffman served as a medical expert in his own defense.

Drs. Brunet and Foster testified as to the standard of care required for the treatment of an infected knee. Dr. Hoffman, in contrast, consistently testified that he believed John's knee problems to be the result of synovitis caused by gout. Dr. Brunet testified that even if gout was suspected, in cases of differential diagnoses, the potential infection should have been confirmed and/or treated first, as it would be the more serious threat. Dr. Brunet stated that the fluid aspirated from John's knee on his first return to the VA after surgery should have been cultured, and that bloodwork and investigation was required by the standard of care as early as May 29, 2008. He testified that the standard of care mandates that culture results from the aspirate should have been obtained before injecting a potentially infected knee with cortisone.

Dr. Foster testified that the standard of care required a recognition of the possibility of infection, motivating an aspiration and culture with at least some form of treatment, such as a washout or debridement. Dr. Foster further stated that an administration of intravenous antibiotics until infection was ruled out by a culture of the knee fluid would have been the applicable standard. However, Dr. Foster agreed that an injection of cortisone and Marcaine, as given to John by Dr. Hoffman, is consistent with a diagnosis of gout and treatment thereof. All three experts agreed that knowingly injecting cortisone into an infected knee is a serious breach of the standard of care required by physicians.

Breach

In order to recover, Plaintiffs must have not only established the standard of care, but they had the burden of showing, by a preponderance of the evidence, that said standard was breached by Dr. Hoffman in his treatment of John. See Browning , 865 So.2d 795. Both Drs. Brunet and Foster rendered opinions that Dr. Hoffman breached the standard of care. Both medical experts testified that Dr. Hoffman's failure to aspirate, culture, and debride John's knee in a timely manner, combined with his failure to administer antibiotics, fell below the required standard of care for an orthopedic surgeon. All three testifying medical experts agreed that injecting an infected knee with cortisone, as Dr. Hoffman did to John's knee on June 9, 2008, would be a significant breach of the requisite standard of care, and both Drs. Brunet and Foster opined that Dr. Hoffman's injection of cortisone without the benefit of a bacterial culture confirming that the knee was not infected was, likewise, a breach. Dr. Hoffman, in contrast, testified that John never suffered from an infected knee, but was suffering effects caused by a gouty flare-up. It is undisputed that Dr. Hoffman's actions constituted standard treatment for gout.

In Matthews , 467 So.2d 1238, the second circuit was presented with a similar case. In it, the plaintiff was admitted for a successful surgery, and the surgery site was subsequently closed with braided polyester sutures. The plaintiff returned multiple times for post-surgery checkups, complaining of pain, drainage, and puffiness around the wound, though medical records had previously noted the wound was healing nicely. Id. On each visit, the wound was cleaned and repacked by the attending physician. Id. It was not until seven months after the plaintiff's first visit complaining of pain that she was diagnosed with spitting sutures and treated accordingly. Id. The plaintiff sued, asserting that the spitting sutures causing her pain should have been diagnosed much sooner. Id. The trial court found that the plaintiff had not established a negligent misdiagnosis by a preponderance of the evidence. Id. The second circuit affirmed, finding that though the expert testimony presented at trial was conflicting, the standard requires a physician's use of "reasonable care along with his best judgment" in the exercise of skill ordinarily employed by his professional peers and that as long as a reasonable basis existed for the trial court's findings, those findings would not be disturbed. Id. at 1241.

Dr. Brunet's official report states that Dr. Hoffman's injection of cortisone into a knee he knew to be infected was a "serious deviation" from the standard of care. However, the dates written in this report do not match the dates of treatment on John's medical records. Specifically, the culture of the fluid aspirated from John's knee containing trace amounts of bacteria was not received until after the injection of cortisone. Further, the culture's results do not conclusively prove that John's knee was infected at the time of the injection. Dr. Brunet noted, when he examined John's knee on June 23, 2008, that he was unsure if John's symptoms were caused by a chronic infectious synovitis or gouty synovitis. He did not mention his own potential breach of the standard of care during his treatment of John when he also injected cortisone into John's knee to ease pain before testing for infection.

Dr. Foster's testimony regarding Dr. Hoffman's potential breach of the standard of care centered mainly around Dr. Hoffman's failure to diagnose infection of the knee as the cause of John's problems and failure to take measures consistent with that diagnosis. Dr. Foster stated that Dr. Hoffman deviated from the standard of care by not recognizing the signs and symptoms of a possible infection and by injecting cortisone without awaiting the results of the culture taken immediately prior. He testified that it was error to not actively consider infection as the cause of John's issues. He opined that Dr. Hoffman erred by not interpreting John's WBC as a sign of worsening infection, even though those numbers were improving at the time of the cortisone injection. Plaintiffs assert the decreased count was attributable to the in-hospital administration of antibiotics John received, rather than a sign that the knee was not infected; although John did not take any of his prescribed antibiotics while not admitted to the VA and his knee was shown to be free of infection at the time of Dr. Brunet's surgery some six weeks later. Even Dr. Foster testified that it would be highly unlikely that a knee joint infection would have resolved itself on its own before the surgery performed by Dr. Brunet in this time period and further that the dosage of antibiotics given to John at the VA was unlikely to have been an effective dose.

Dr. Hoffman, who was also certified as an expert witness by the trial court, maintained throughout trial and this appeal that John was not suffering from an infected knee, but rather from an episode of gout, with which he had a history of problems. Though such a diagnosis cannot be found written in any of John's relevant medical records, Dr. Hoffman's injection of cortisone and Marcaine into John's knee after his continued complaints of pain was consistent with a diagnosis of gout, as confirmed by Dr. Foster. Dr. Foster noted that if John's knee had been infected when it was injected with cortisone, he most likely would have lost his leg at that time, rather than have the improvement in his condition that actually resulted.

The jurisprudence of this state confirms that a general physician or surgeon is not required to exercise the highest degree of care possible. His duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. He must use reasonable care along with his best judgment in the exercise of that skill. Meyer v. St. Paul-Mercury Indemnity Co. , 225 La. 618, 73 So.2d 781 (La.1953) ;
Borne v. Brumfield , 363 So.2d 79 (La.App. 4th Cir.1978) ; Lauro v. Travelers Insurance Company , 261 So.2d 261 (La.App. 4th Cir.1972). The law does not require absolute precision in medical diagnoses. Acts of professional judgment are evaluated in terms of reasonableness under the circumstances then existing, not in terms of result or in the light of subsequent events. It is not malpractice to simply miss a diagnosis. Gendusa v. St. Paul Fire & Marine Ins. Co. , 435 So.2d 479 (La.App. 4th Cir.1983) ; Tillman v. Lawson , 417 So.2d 111 (La.App. 3d Cir.1982).

Matthews , 467 So.2d at 1241.

Dr. Hoffman, based upon his professional knowledge and judgment, found John to be suffering from synovitis caused by gout and treated him accordingly. Both Dr. Brunet and Dr. Foster admitted in testimony that all of John's symptoms could have been explained by gout. John had a history of gout and gouty flare-ups in response to previous surgeries. Further, though Dr. Hoffman did not record his purported diagnosis of gout in John's medical record, neither was John explicitly diagnosed with an infection despite being treated by multiple other physicians during his post-surgery visits to the VA. Although one of the physicians did place him on antibiotics without recording a diagnosis of infection, a second physician treating John in the ER of the VA ordered a test for gout and placed John on gout medication. Dr. Brunet also included gout in his original differential diagnosis and initially concluded that it was the cause of John's continuing knee issues. This diagnosis did not change until well after his treatment of John had concluded.

The jury in the instant case found that Dr. Hoffman did not breach the standard of care in his treatment of John. A jury's finding of fact may not be set aside unless it is manifestly erroneous or clearly wrong. Sistler v. Liberty Mut. Ins. Co. , 558 So.2d 1106 (La.1990). "In order to reverse a jury's determination of fact, an appellate court must review the record in its entirety and find that: 1) a reasonable factual basis does not exist for the jury's finding; and 2) the record establishes that the factfinder is clearly wrong." Stobart , 617 So.2d at 882. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989). Further, where the findings are based on determinations regarding the credibility of witnesses and the factfinder's decision to credit the testimony of one of two or more witnesses, the manifest error standard demands great deference to the findings of fact, and such findings can virtually never be manifestly erroneous. Id. "This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony." Bellard v. Am. Cent. Ins. Co. , 07-1335, 07-1339, p. 27 (La. 4/18/08), 980 So.2d 654, 672 (citing Lasyone v. Kansas City S.R.R. , 00-2628, (La.4/3/01), 786 So.2d 682 ).

The jury was presented with testimony from three, separate, qualified medical experts. This expert evidence differed regarding Dr. Hoffman's treatment of John's knee and its relation to the required standard of care. Though both Dr. Brunet and Dr. Foster testified that Dr. Hoffman breached the standard of care, it is clear from the evidence that at least one other treating physician, i.e. Dr. Brunet, found gout to be a reasonable diagnosis based upon John's symptoms. While this court reviews the record in its entirety, our function is to determine "only whether there is sufficient evidence before the trier of fact to furnish a reasonable basis for its findings where contradiction occurs. We are not to disturb those findings in the absence of clear error, even if other conclusions from the same evidence are equally reasonable." Matthews , 467 So.2d at 1243.

The jury heard all of the expert testimony, made determinations based upon the credibility of said expert testimony, and found Dr. Hoffman did not breach the standard of care. Where there is conflicting expert testimony, the jury's decision to credit the testimony of one witness of two or more should not be disturbed on appeal in the absence of manifest error. Bellard , 980 So.2d 654. Based on our thorough review of the record, we find that two permissible views of the evidence exist, as shown by the conflicting expert testimony. As such, we cannot say that the jury was manifestly erroneous or clearly wrong in finding that Plaintiffs failed to prove that Dr. Hoffman breached the standard of care, as is required by La.R.S. 9:2794 in order to prevail in such instances. See Rosell , 549 So.2d 840. Having concluded that the jury was not manifestly erroneous in their finding, we do not consider to what extent Plaintiffs suffered damages.

DISPOSITION

In accordance with the foregoing, we affirm the ruling of the trial court, dismissing the claims of John and Melissa Mantiply against Dr. Joseph I. Hoffman, Jr. All costs of this appeal are assessed to John and Melissa Mantiply.

AFFIRMED.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Jana Marie Lindner MCCAFFERY v. Joe Ann Young LINDNER
    NO. 18-CA-163
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, JANA MARIE LINDNER MCCAFFERY, Ronald W. Morrison, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, JOE ANN YOUNG LINDNER, Stephen D. Marx
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

Appellant, Jana Marie Lindner McCaffery, seeks review of the trial court's January 9, 2018 judgment, in which the trial court ordered appellee, Joe Ann Young Lindner, to return $897,079.78 to the Lazy J-7 Trust, subject to a credit for those monies returned prior to judgment. For the following reasons, we affirm the trial court's judgment.

Facts and Procedural History

This matter involves the disputed management of a family trust fund established by John Lindner, Jr. ("Mr. Lindner"), Mrs. McCaffery's father and Mrs. Linder's husband. Mr. Lindner established the Lazy J-7 Trust on November 18, 1992 and served as the sole trustee until his death on March 24, 2001. Mrs. Linder was named as the sole income beneficiary, and Mrs. McCaffery and John E. Lindner, III were named as the principal beneficiaries of the trust with Mr. Lindner, III's interest set at Fifty Thousand Dollars, $50,000 and Mrs. McCaffery's interest for the remainder. Upon Mr. Lindner's death, Mrs. Lindner became the successor trustee and remains the trustee to date.

The Lazy J-7 Trust is a so-called "spendthrift" trust, which allows for invasion of principle only under limited circumstances. The trust was funded upon its creation with three pieces of immovable property: (1) a ranch in Hancock County, Mississippi owned by Mr. Lindner individually; (2) a property on Gentilly Blvd. in New Orleans; and (3) a property on Chateau Blvd. in Metairie. The Gentilly and Metairie properties were found to be marital property when they were donated. All three funding properties were sold during Mr. Lindner's tenure as trustee: (1) the ranch in 1998 for $2.4 million; (2) the Gentilly property in 1994 for $140,000; and (3) the Chateau property in 1999 for $310,000. Accordingly, the principal value of the trust at the time that Mrs. Lindner became trustee should have been not less than $2.85 million.

On September, 23, 2015, appellant, Mrs. McCaffery, filed a petition for trustee's accounting against her mother, Mrs. Lindner, of the inter vivos irrevocable Lazy J-7 Trust. Mrs. McCaffery received Mrs. Lindner's accounting in October, 2015 and learned that the trust's actual value at the time Mrs. Lindner became trustee was approximately $1.36 million. The accounting revealed that Mrs. Lindner distributed to herself almost $900,000 in trust principal during her tenure as trustee. After submission of the accounting, Mrs. McCaffery amended her petition to include demands for return of all monies from the sales of the three funding properties, and for damages for mismanagement of the trust by Mr. and Mrs. Lindner. It is undisputed that both Mr. and Mrs. Lindner invaded trust principle in violation of the terms of the trust during their respective terms as trustee. Mrs. McCaffery also sought removal of Mrs. Lindner as trustee and her appointment as successor trustee.

On July 14, 2016, the trial court held an evidentiary hearing on Mrs. McCaffery's motion to remove Mrs. Lindner as trustee. At this hearing, Mrs. Lindner testified that she took over as trustee in 2001 and that there was approximately one million three hundred thousand dollars ($1,300,000) in the trust. She also testified that she was in the meeting with legal counsel when the trust was created and that counsel told her and her husband that the money could be treated as their own property. The trial court declined to remove Mrs. Lindner as the trustee of the Lazy J-7 Trust, finding that there was no evidence of bad faith and thus no basis to support removal of the trustee.

At trial, Mrs. Lindner again testified that she and Mr. Lindner relied on the advice of counsel in treating the trust assets as their own. Mrs. Lindner also testified that, since the filing of this lawsuit, the terms of the trust have been explained to her and she has replaced an undisputed portion of the removed principal. Mrs. Lindner argued at trial that she should not be obligated to return any portion of invaded principle which constitutes her share of community property. She also asserted that she should not be held liable for any violation of the trust which occurred during Mr. Lindner's tenure as trustee.

At trial, the trial court considered the following issues: (1) whether Mrs. Lindner had a claim to a community interest in the trust's funding properties; (2) whether Mrs. Lindner should replace principal assets removed from the trust during Mr. Lindner's term as trustee; and (3) whether Mrs. Lindner should replace principal assets removed from the trust during her own term as trustee. The trial court ruled in favor of Mrs. McCaffery and against Mrs. Lindner, and ordered Ms. Lindner to return $897,079.78 to the Lazy J-7 Trust, subject to a credit for those monies returned prior to judgment. After trial on November 27, 2017, the trial court also (1) ruled that Mrs. Lindner does not have any community interest claim to the three funding trust properties and that she is not liable for the breaches committed by the predecessor trustee; and (2) excluded the expert testimony of appellant/Mrs. McCaffery's expert, a Louisiana attorney and board certified estate planning and administration expert.

Assignments of Error

Appellant asserts that the trial court erred (1) in not removing Mrs. Lindner as trustee of the Lazy J-7 Trust; (2) in not holding Mrs. Lindner liable for the breaches of trust by her predecessor, Mr. Lindner; and (3) in excluding the expert testimony and report of Carole Cukell Neff, a proposed expert in the usual and customary standards of a trustee. Appellee answered the appeal, asserting the trial court erred in (1) not classifying the Mississippi ranch and contiguous acreage as community property; and (2) holding that Mrs. Lindner tacitly ratified her contribution of her half of the two Louisiana properties to the Lazy J-7 Trust.

Standard of Review

A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. To reverse a factfinder's determinations the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong or manifestly erroneous. Care Servs. v. DBR Assocs., L.L.C., 14-757 (La. App. 5 Cir. 2/11/15), 167 So.3d 936, 939-940. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Id. Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the conclusion of the trier of fact was a reasonable one. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the trier of fact, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

Removal of the Trustee

Appellant asserts that Mrs. Lindner should be removed as trustee because she breached her duty as trustee by using an exorbitant amount of funds from the trust for her own personal gain, she failed to keep the trust assets separate from her personal assets and she has failed to administer the trust for the benefit of the beneficiaries. Based on the following, we find no error in the trial court's refusal to remove Mrs. Lindner as trustee.

A trustee is obligated to administer a trust solely in the interest of the beneficiary and shall exercise the skill and care that a man of ordinary prudence would exercise in dealing with his own property. La. R.S. 9:2082 ; La. R.S. 9:2090. A trustee has a duty to a beneficiary to take reasonable steps to take, keep control of, and preserve the trust property. La. R.S. 9:2091. Louisiana jurisprudence has recognized that these statutes evidence the Legislature's intention "to place the very highest possible fiduciary responsibility on the trustee towards the beneficiaries." Succession of Dunham , 408 So.2d 888, 901 (La. 9/8/1981).

A trustee shall be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause. La. R.S. 9:1789. Louisiana jurisprudence provides that neither a conflict of interest, nor hostility, of itself, constitutes sufficient cause for removal of a trustee unless it materially impairs or interferes with the proper administration of the trust. Succession of Noe, 398 So.2d 1173, 1177 (La. App. 2 Cir. 1981), writ denied, 405 So.2d 530 (La. 1981). Removal of a trustee for sufficient cause requires allegations of conflict of interest, hostility, and impairment or interference with proper administration of the trust. Id.

Louisiana has a strong public policy in effectuating and protecting a settlor's intent as set forth in a trust instrument. Miller v. Miller, 35,934 (La. App. 2 Cir. 5/8/02), 817 So.2d 1166, 1169, writ denied, 02-1890 (La. 10/25/02), 827 So.2d 1154, (citing Albritton v. Albritton, 91-2903 (La. 5/26/92), 600 So.2d 1328 ). A settlor's intent controls, unless contrary to law or public policy. Miller, 817 So.2d at 1169, citing Richards v. Richards, 408 So.2d 1209, 1210 (La. 1981). Louisiana law has recognized a concept of trust indestructibility as an inherent part of Louisiana trust law. Richards, 408 So.2d at 1210.

The trial court found Mrs. Lindner's acts were not in bad faith and thus there was no basis for her removal as trustee. At trial, Mrs. Lindner testified that she and Mr. Lindner relied on the advice of counsel in treating and using the trust assets as their own. Based on counsel's advice, she thought Mr. Lindner could administer the trust in any manner he wanted to, and, once she took over as trustee, she believed she could do the same. After this lawsuit was filed, Mrs. Lindner learned that the terms of the trust did not allow her to use the trust funds as her own, and she replaced an undisputed portion of the principal back in the trust. The trial court found Mrs. Lindner's testimony credible. Given the deference to which the trial court's credibility determinations are entitled, this Court cannot disturb the trial court's reasonable evaluation of credibility.

Given these facts, we do not find a conflict of interest which has impaired or interfered with the proper administration of the trust. Once Mrs. Lindner learned that the terms of the trust prohibited her from using the funds for her own personal use, she returned the undisputed portion to the trust and, since then, there is no evidence of mismanagement. In addition, while appellant argues there is substantial animosity between her and Mrs. Lindner, under the jurisprudence, this alone is not sufficient cause for removal. The record does not indicate that this animosity has affected the administration of the trust. Thus, considering the record, the policy in favor of maintaining a settlor's intent, and the deference to which a trier of fact is entitled, we do not find the trial court's refusal to remove Mrs. Lindner as trustee to be manifestly erroneous or clearly wrong.

Trustee's Liability for Predecessor Trustee's Acts

Appellant asserts that the trial court erred in not holding Mrs. Lindner liable for the breaches of trust by her predecessor. La. R.S. 9:2204 provides:

§ 2204. Liability of successor trustee
A trustee shall not be liable to a beneficiary for a breach of trust committed by a predecessor trustee, unless he:
(1) Knows or should know of a situation constituting a breach of trust committed by his predecessor and improperly permits it to continue; or
(2) Neglects to take proper steps to compel the predecessor to deliver the trust property to him; or
(3) Neglects to take proper steps to redress a breach of trust committed by the predecessor.

The trial court found that the evidence did not support a finding that Mrs. Lindner knew or should have known that Mr. Lindner breached the trust during his tenure as trustee. Based on the record, we do not find this conclusion manifestly erroneous or clearly wrong.

Mrs. Lindner's testimony that she and Mr. Lindner relied on legal counsel's advice in using the trust assets as their own and that, once she learned that this was inconsistent with the trust administration, she replaced an undisputed portion of the principal back in the trust supports the trial court's conclusion that Mrs. Lindner did not know that her predecessor's acts constituted a breach of the trust. Given the trial court's acceptance of this explanation from Mrs. Lindner, the deference to which the trial court's credibility determinations are entitled, we find no error in the trial court's determination that Mrs. Lindner is not liable for the breaches of the trust by her predecessor trustee.

Exclusion of Appellant's Expert on Trusts and Estate Administration

Appellant asserts that the trial court erred in excluding the expert testimony and report of Carole Cukell Neff, a proposed expert in the usual and customary standards of a trustee. Based on Louisiana law, we find no abuse of discretion by the trial court in excluding this testimony.

A trial court has broad discretion in determining whether expert testimony is admissible, and whether an individual should or should not be permitted to testify as an expert. Normand v. Cox Communs. La., LLC, 14-563 (La. App. 5 Cir. 12/23/14), 167 So.3d 156, 163, writ denied, 15-1581 (La. 4/10/15), 163 So.3d 815, (citing Cheairs v. State ex rel. Department of Transp. and Development, 03-0680 (La. 12/3/03), 861 So.2d 536, 541 ). A trial court's decision regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its discretion. Normand, 167 So.3d at 163, (citing Morgan v. State Farm Fire and Casualty Company, Inc., 07-0334 (La. App. 1 Cir. 11/2/07), 978 So.2d 941, 946 ).

Louisiana jurisprudence is well established that witnesses may not provide opinions regarding domestic law. UTELCOM, Inc. v. Bridges, 10-0654 (La. App. 1 Cir. 9/12/11), 77 So.3d 39, 54, writ denied, 11-2632 (La. 3/2/12), 83 So.3d 1046. Expert testimony is proper for the purpose of assisting the court only in those fields in which the court lacks sufficient knowledge to enable it to come to a proper conclusion without such assistance. Id.

Based on our review of the evidence and expert testimony, we find that the trial court did not abuse its discretion in refusing to accept Ms. Neff's opinion testimony as an expert witness on matters of trusts and estate administration under Louisiana law. Ms. Neff's testimony would have consisted of legal opinions and conclusions, more properly made by the trial court. The trial court does not require assistance in interpreting and applying Louisiana law. Accordingly, we find this assignment of error is without merit.

Community Property Classification

Appellee, Mrs. Lindner, asserts the trial court erred in not classifying the Mississippi ranch and contiguous acreage as community property. This property was donated to the Lazy J-7 Trust, eventually sold and the cash from the sale was placed in various brokerage accounts with the Lazy J-7 Trust as the account holder. The trial court found that when this immovable property was donated to the trust, it ceased to be marital property and became trust property. As a result, the trial court found that Mrs. Lindner did not maintain a community interest in the trust property. For the following reasons, we find no error in this conclusion.

La. C.C. art. 477 states that "Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law." La. R.S. 9:1971 provides that a principal beneficiary's interest is acquired immediately upon the creation of a trust, subject to certain exceptions. See also Succession of Materiste, 273 So.2d 617 (La. App. 1 Cir. 1973). La. R.S. 9:1935 provides that "An addition of property to an existing trust by donation inter vivos is effective upon acceptance by the trustee."

A trust beneficiary does not have ownership of the corpus of the trust, but has an interest in the trust. Reynolds v. Reynolds, 388 So.2d 1135 (La. 1979). While ownership remains in the trustee, the fruits of the property could not fall into the community between the beneficiary wife and her husband. Id. at 1139. Pursuant to the creation of the Lazy J-7 Trust, Mr. Lindner irrevocably gave, donated, transferred and conveyed the property at issue to the trust. Mrs. Lindner was named "the sole income beneficiary of the trust for her lifetime" and was entitled to receive undistributed and accumulated income from the trust. There is nothing in the Act of Donation in Trust to support Mrs. Lindner's assertion that she or her husband maintained any community interest in the trust property.

Considering the authorities cited above, and language of the Lazy J-7 Trust, we find that the immovable property at issue became trust property at the time that Mr. Lindner donated the property to the trust. Upon creation of the Lazy J-7 Trust, the immovable property ceased to be community property and Mr. and Mrs. Lindner no longer maintained a separate community property interest in the property. We therefore find no error in the trial court's refusal to classify any portion of the trust property as community property. Therefore, this assignment of error lacks merit.

Ratification of Trust Contribution

Appellee also contends the trial court erred in finding that she tacitly ratified her contribution of her half of the two Louisiana properties to the Lazy J-7 Trust. Louisiana law requires the concurrence of both spouses for the alienation, encumbrance, or lease of community immovables. La. C.C. art. 2347. When the concurrence of the spouses is required by law, the alienation, encumbrance, or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur. La. C.C. art. 2353. A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed. La. C.C. art. 2031. La. C.C. art. 1843 states that ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority. Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation. Zeller v. Webre, 09-45 (La. App. 5 Cir. 5/26/09), 17 So.3d 55, 58.

Louisiana cases support the proposition that the non-signing spouse may ratify an unsigned agreement affecting community property, including immovable property. In Kee v. Francis Camel Const., 532 So.2d 378 (La. App. 3 Cir. 10/5/88), the Louisiana Third Circuit Court of Appeal found that the wife ratified the grant of a right-of-way executed only by the husband. The project for which the right-of-way was granted lasted over eighteen months. Mrs. Kee (the wife) was obviously aware of the project, voiced no objection to her husband signing the right-of-way agreement, and was aware of the agreement as she signed it in the capacity of a witness.

In this instant matter, Mrs. Lindner was aware of the creation of the trust, the donation of the property to the trust, her husband's role as trustee and eventually succeeded her husband as trustee. In addition, she benefitted from the trust for many years and eventually administered the trust. Furthermore, as determined by the trial court, she actively participated in meetings with counsel concerning the trust's creation. We find these facts sufficient to constitute tacit ratification of the donation of her interest in the two Louisiana properties to the trust.

Conclusion

For the foregoing reasons, we affirm the trial court's judgment.

AFFIRMED


text:
    DIEUDONNE ENTERPRISES, INC. v. Belah Richard SLADE, DBA Richard Slade Construction and Richard Slade, LLC
    NO. 18-CA-375
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, DIEUDONNE ENTERPRISES, INC., Steven J. Rando, Gerald Wasserman, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, BELAH RICHARD SLADE, DBA RICHARD SLADE CONSTRUCTION AND RICHARD SLADE, LLC, Willard O. "Trey" Lape, III, Covington
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

Appellants/defendants, Belah Richard Slade and Richard Slade, LLC d/b/a Richard Slade Construction, appeal the trial court's March 28, 2018 judgment denying the motion for new trial. For the reasons that follow, we find this Court lacks appellate jurisdiction to consider the merits of appellants' appeal.

Facts and Procedural History

On June 6, 2012, appellee/plaintiff, Dieudonne Enterprises, Inc., filed a "Petition for Damages, Breach of Contract, Civil Conversion, Fraud, and Attorney Fees" against appellants, Belah Richard Slade d/b/a Richard Slade Construction and Richard Slade, LLC. The petition alleged that appellants wrongfully converted $73,500.00 in deposits made by appellee to appellants regarding an Atmos Entergy construction project at 101 Airline Highway, in Metairie, commencing in January 2011. The petition asserted claims against appellants for unjust enrichment, conversion, breach of contract, open account, and civil fraud. On July 2, 2012, Richard Slade LLC d/b/a Richard Slade Construction filed an answer and exceptions of no right and no cause of action as to Belah Richard Slade, individually. In response, appellee filed a motion to strike the exceptions. On September 20, 2012, counsel for Richard Slade LLC d/b/a Richard Slade Construction withdrew the exceptions of no right and no cause of action, rendering appellee's motion to strike moot. The trial court ordered counsel to file an answer within ten days on behalf of Mr. Slade, individually, which was filed by counsel on September 24, 2012.

On February 26, 2013, the parties entered into a consent judgment (hereinafter "2013 Consent Judgment"). The 2013 Consent Judgment provided, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment rendered herein in favor of plaintiff, Dieudonne Enterprises, Inc. in the amount of $40,00.00, forty-thousand dollars ($40,000.00), inclusive of all claims set forth in case number 715-641, Div. "F."
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event this $40,000.00 is not paid in full within nine months of the signing of this consent judgment, this judgment will accellerate [sic] to $50,000.00 payable on or before the twelve month anniversary of the signing of this consent judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event said consent judgment is not paid in full on or before the twenty four month anniversary of this consent judgment, the unpaid principal balance will double and continue to double on each anniversary of this consent judgment thereafter until paid in full . (Emphasis added.)

On February 27, 2018, five years after the 2013 Consent Judgment, appellants filed a motion for new trial contending: (1) the motion for new trial was timely under La. C.C.P. art. 1974 because the notice of judgment was never mailed by the clerk of court to counsel for appellants under La. C.C.P. art. 1913 ; and (2) the "doubling" provision amounts to prohibited usurious interest under La. R.S. 9:3500, et seq. , rendering the consent judgment an absolute nullity. In the motion, appellants stated that Mr. Slade made the first payment in the amount of $15,000.00 on March 12, 2014. Appellants contended that on August 27, 2014, counsel for appellee sent a letter stating that appellants now owed appellee $50,000.00 plus thirty-five percent (35%) attorney's fees, less a credit for his one $15,000.00 payment. Appellants claimed that additional discussions were held with appellee over the course of several months about appellants paying off the judgment. Appellants contended that two more checks for $15,000.00 each, totaling $30,000.00 were delivered to appellee. Appellants argued that $45,000.00 has been paid towards the judgment. In the motion, appellants contended that according to appellee, they currently owed appellee $320,000.00 exclusive of attorney's fees, judicial interest, and costs. Based on the alleged usurious term of the consent judgment, appellants requested that the motion for new trial be granted for re-argument only with respect to the "doubling" provision of the consent judgment under La. R.S. 9:3500, et seq. , or alternatively requested the trial court to grant the motion for new trial.

Appellee filed an opposition to the motion for new trial arguing: (1) that a party to a consent judgment cannot directly appeal the judgment; rather the party must first invalidate his consent; (2) since there is no appeal from a consent judgment, the clerk of court was not obligated to issue notices of judgment to initiate delays for a motion for new trial or appeal; (3) motion for new trial is not applicable because there was no trial or considered decree; and (4) even if motion for new trial is procedurally proper, which appellee denies, the agreement and payment between the parties were commercial in nature and as such are exempt from usury limitations.

After a contradictory hearing, the trial court denied the motion for new trial finding that (1) the 2013 Consent Judgment "was an agreed to contract" between the parties; (2) the parties "had the information available to them at that time;" and (3) the judgment was signed in 2013 and this motion for new trial was filed five years after the judgment.

On April 3, 2018, appellants filed a motion for devolutive appeal of the March 28, 2018 judgment denying the motion for new trial. On appeal, appellants contend that the underlying 2013 Consent Judgment should be declared an absolute nullity as it is against public policy and contra bonos mores because it contains a prohibited usurious term. While this argument may have merit, for the following reasons, we find this Court lacks appellate jurisdiction to consider the merits of appellants' appeal.

Discussion

Generally, the denial of a motion for new trial is an interlocutory judgment which is not appealable. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La. App. 5 Cir. 11/25/14), 165 So.3d 147, 151, citing Pignona v. Farber, 13-192 (La. App. 5 Cir. 10/9/13), 128 So.3d 390, 395-396. Nevertheless, in cases in which the motion for appeal refers to a specific judgment denying a motion for new trial, but the appellant exhibits a clear intention to appeal the underlying judgment on the merits, then this Court has invoked its appellate jurisdiction to review the underlying judgment. 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 15-686 (La. App. 5 Cir. 2/24/16), 187 So.3d 522, citing Burns, 165 So.3d at 151-52 ; Pignona, 128 So.3d at 395-396. In this case, appellants have evidenced a clear intent to appeal the underlying 2013 Consent Judgment. However, upon review of the record, we find that the underlying judgment at issue, the 2013 Consent Judgment, lacks decretal language and thus, is not a valid, final appealable judgment.

Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue. Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc., 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915. This Court has held that "we cannot reach the merits of an appeal unless our appellate court jurisdiction has been properly invoked by a valid final judgment." Id.; Gabriel v. Delta Air Lines, Inc., 16-210 (La. App. 5 Cir. 10/19/16), 202 So.3d 1184, 1185-1186 ; Morraz-Blandon v. Voiron, 16-112 (La. App. 5 Cir. 8/25/16), 199 So.3d 1220, 1221.

A valid judgment must be precise, definite and certain. Blanke v. Duffy, 05-829 (La. App. 5 Cir. 3/28/06), 927 So.2d 540, 541. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Claiborne Medical Corp. v. Siddiqui, 12-759 (La. App. 5 Cir. 2/28/13), 113 So.3d 1109, 1112 ; Blanke ,supra. The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment. City of Gretna v. Morice, 13-85 (La. App. 5 Cir. 10/30/13), 128 So.3d 468, 470, citing Input/Output Marine Sys., 52 So.3d at 916 ; Babin v. State Farm Mutual Automobile Insurance Company, 11-192 (La. App. 5 Cir. 9/27/11), 76 So.3d 100, 102. Additionally, the failure to name any defendant against whom the judgment was rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom the judgment may be enforced. Input/Output Marine Sys., 52 So.3d at 916 ; Borg-Warner Acceptance Corp. Through Borg-Warner Leasing v. Whitlow Truck Center, Inc. , 508 So.2d 857, 859 (La. App. 5 Cir. 1987).

Upon our review of the 2013 Consent Judgment in this case, we find that the judgment at issue lacks the necessary decretal language and thus, is not a valid, final judgment. Specifically, we find that the judgment does not name the party or parties against whom the judgment is rendered. The party or parties cast in judgment cannot be assumed from the caption or "title" of the case. Here, more than one defendant is named in the suit-Belah Richard Slade, individually, as well as Richard Slade, LLC d/b/a Richard Slade Construction-but the 2013 Consent Judgment as issue does not state against which defendant the judgment is rendered. Further, even in cases in which there is only one named defendant, it cannot be assumed that there are no other third-party or other ancillary parties which could be cast to pay a judgment without review of the entire record.

Moreover, the specific relief granted, including the "doubling" provision which appellant contends is against public policy, is subject to multiple interpretations and on its face is not determinable without reference to extrinsic sources to determine the parties' intent.

Conclusion

Accordingly, because we find the 2013 Consent Judgment is not a valid, final appealable judgment, we do not have appellate jurisdiction to consider the merits of the appeal and we hereby dismiss this appeal.

APPEAL DIMISSED

      La. R.S. 9:3500 defines legal interest and states that conventional interest cannot exceed twelve percent per annum. La. R.S. 9:3501 provides "Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.


text:
    STATE of Louisiana v. William J. SHELBY
    NO. 18-KA-185
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, WILLIAM J. SHELBY, Bertha M. Hillman
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

On appeal, defendant's appointed appellate counsel filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. For the reasons that follow, we grant defense counsel's motion to withdraw as counsel of record, and affirm defendant's convictions, habitual offender stipulation, sentence on count one and his enhanced sentence on count two. We amend and affirm as amended defendant's sentence on count three, and remand with instructions consistent with this opinion.

PROCEDURAL HISTORY

On August 6, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, William J. Shelby, with possession with the intent to distribute marijuana, in violation of La. R.S. 40:966 A (count one); possession with the intent to distribute cocaine, in violation of La. R.S. 40:967 A (count two); and possession with the intent to distribute methamphetamine, in violation of La. R.S. 40:967 A (count three). On October 13, 2015, defendant pled not guilty at his arraignment.

On August 31, 2017, defendant withdrew his not guilty pleas and pled guilty as charged. The trial court sentenced defendant to fifteen years in the Department of Corrections on all counts to run concurrent with each other and any and all other time imposed. The court ordered defendant to comply with the schedule of "fines, fees, sentencing provision and probation requirements form," within twelve months of release, which included the payment of a $500 fine. The trial court also ordered that the first two years of counts two and three to be served without the benefit of probation, parole, or suspension of sentence.

On the same day, the State filed a habitual offender bill of information alleging defendant to be a second felony offender on count two, to which defendant stipulated. The trial court vacated the original sentence on count two and resentenced defendant to fifteen years in the Department of Corrections with the first two years of the sentence to be served "without benefits and the entirety of his sentence shall be without the benefit of probation or suspension of sentence" and to run concurrently with any and all other sentences.

On March 6, 2018, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted by the trial court on March 15, 2018. This appeal followed.

FACTS

Because defendant entered guilty pleas, the underlying facts were not fully developed at trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[T]he state would be able to prove beyond a reasonable doubt as to count one that on or about April 16, 2014, the defendant violated Revised Statute 40:966A in that he did knowingly or intentionally possess with the intent to distribute marijuana.
As to count two on that same date, he violated Revised Statute 40:967A in that he did knowingly or intentionally possess with the intent to distribute cocaine.
And as to count three on that same date, that he violated Revised Statute 40:967A in that he did knowingly or intentionally possess with the intent to distribute methamphetamine.

DISCUSSION

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 06/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

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

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel indicates that prior to defendant's decision to change his pleas from not guilty to guilty, the trial court fully informed defendant of the legal consequences of doing so. Appellate counsel states that during the plea colloquy, the trial court explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights. She asserts that the trial court informed defendant that he would be sentenced to a term of fifteen years on each count, including his sentence as a habitual offender, to run concurrent with each other and any and all time imposed. She avers that defendant was sentenced in conformity with the plea agreement, and accordingly, is restricted by law from appealing his sentences.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcript. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The record reveals no constitutional infirmities or irregularities in defendant's guilty pleas to the charges that would render them invalid. The transcript of the guilty plea proceeding and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right of confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Further, defendant was informed of the actual sentences that would be imposed on him.

Additionally, defendant acknowledged that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant was informed that his guilty pleas could be used against him if he was convicted of a subsequent offense and could affect him under the habitual offender law. After the colloquy with defendant, the trial court accepted defendant's pleas as knowingly and voluntarily made.

A review of the record also reveals no constitutional infirmity in defendant's stipulation to the habitual offender bill. Both the waiver of rights form and the transcript of the habitual offender proceeding reflect that defendant was advised of his right to a hearing at which the State would have to prove his habitual offender status; of his right to remain silent throughout the hearing; of the potential sentencing range as a second felony offender; and the actual sentence that would imposed. Defendant indicated in the waiver of rights form and during the colloquy that he had not been forced, coerced, or threatened into stipulating to the habitual offender bill. The trial court accepted the stipulation as being knowingly, intelligently, and voluntarily made by defendant. A stipulation to a habitual offender bill bars a defendant from asserting on appeal that the State failed to produce sufficient proof at the habitual offender bill hearing. See State v. Crawford, 14-364 (La. App. 5 Cir. 12/23/14), 166 So.3d 1009, 1019.

Defendant's sentences, including his enhanced sentence, were imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the pleas and stipulation. State v. Moore, 06-875 (La. App. 5 Cir. 04/11/07), 958 So.2d 36, 46 ; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams, 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied, 13-109 (La. 06/21/13), 118 So.3d 406. Nevertheless, defendant's sentences fall within the sentencing range prescribed by the statutes. See La. R.S. 40:966 A; La. R.S. 40:967 A; La. R.S. 15:529.1. Moreover, defendant's plea agreements were beneficial to him because he received mid-range sentences for all his sentences and the minimum sentence for his enhanced sentence, all of which were to be served concurrently.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record is granted.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals the following errors patent that require correction.

According to the sentencing transcript, defendant received a sentence for his conviction of possession with the intent to distribute methamphetamine (count three) of fifteen years at hard labor with the first two years to be served without the benefit of probation, parole, or suspension of sentence. The commitment and the Uniform Commitment Order (UCO) also reflect this sentence. However, La. R.S. 40:967 B(1) does not provide for a restriction on benefits.

In cases in which a sentencing error by the trial court does not involve the omission of a restrictive term specified by the legislature as part of the sentence but the imposition of limits beyond what the legislature has authorized in the sentencing statute, this Court has corrected the sentence on its own authority under La. C.Cr.P. art. 882. State v. Sanders, 04-017 (La. 05/14/04), 876 So.2d 42 (per curiam ).

Therefore, we amend the sentence on count three to delete the restriction on benefits, affirm as amended defendant's sentence on count three, and remand this matter for the trial court to correct the commitment and UCO and transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892. B(2) and to the Department of Corrections' legal department.

CONCLUSION

For the reasons stated above, we grant defense counsel's motion to withdraw as counsel of record, and affirm defendant's convictions, habitual offender stipulation, his sentence on count one, and his enhanced sentence on count two. We amend and affirm as amended defendant's sentence on count three, and remand with instructions consistent with this opinion.

CONVICTIONS AND HABITUAL OFFENDER STIPULATION AFFIRMED; SENTENCE ON COUNT ONE AND ENHANCED SENTENCE ON COUNT TWO AFFIRMED; SENTENCE ON COUNT THREE AMENDED AND AFFIRMED AS AMENDED; CASE REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      Though the trial judge sentenced defendant to imprisonment in the Department of Corrections rather than to imprisonment at hard labor as required by law, this Court deems such a sentence necessarily at hard labor. See State v. Baptiste, 16-316 (La. App. 5 Cir. 12/14/16), 209 So.3d 321, 324 n.2.

      On August 31, 2017, defendant also entered guilty pleas and was sentenced in district court case numbers 16-4060 and 16-4061. Defendant appealed his guilty plea in number 16-4060, which is appeal number 18-KA-186. In case number 16-4061, defendant pled guilty to the misdemeanor offense of illegal use of a controlled substance in the presence of a minor child.

      In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 04/28/95), 653 So.2d 1176, 1177 (per curiam ).

      Defendant was notified of his right to file a pro se supplemental brief in this appeal. As of the date of this opinion, defendant has not filed a pro se brief.

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

      Advice of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Martin, 17-558 (La. App. 5 Cir. 03/14/18), 242 So.3d 1236 ; State v. Faggard, 15-585 (La. App. 5 Cir. 01/13/16), 184 So.3d 837, 847, writ denied, 16-338 (La. 02/10/17), 215 So.3d 701 ; State v. Craig, 10-854 (La. App. 5 Cir. 05/24/11), 66 So.3d 60, 64.

      At the time of this offense, La. R.S. 40:967 B(1) provided a sentence of "not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars."


text:
    STATE of Louisiana v. William J. SHELBY
    NO. 18-KA-186
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna.
    COUNSEL FOR DEFENDANT/APPELLANT, WILLIAM J. SHELBY, Bertha M. Hillman
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Defendant's appointed appellate counsel filed an Anders brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we remand the matter with instructions for resentencing on count three. In all other respects, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On June 24, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, William J. Shelby, with possession with the intent to distribute marijuana, in violation of La. R.S. 40:966 A (count one); possession of a firearm while in possession of a controlled dangerous substance, in violation of La. R.S. 14:95 E (count two); possession with the intent to distribute MDMA, in violation of La. R.S. 40:966 A (count three); and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count four). On July 8, 2016, the State filed an amended bill of information, adding a second predicate conviction on count four, defendant's possession of a firearm by a convicted felon charge. On June 12, 2017, defendant pled not guilty.

On August 31, 2017, defendant withdrew his not guilty pleas and pled guilty as charged. The trial court sentenced defendant to fifteen years in the Department of Corrections on count one; ten years in the Department of Corrections without the benefit of probation, parole, or suspension of sentence on count two; fifteen years in the Department of Corrections on count three; and fifteen years in the Department of Corrections without the benefit of probation, parole, or suspension of sentence on count four. The trial court further ordered all of his sentences to run concurrently with each other and all other time imposed. The trial court also ordered defendant to "comply with the schedule of fines, fees, sentencing provision and probation requirements form," within twelve months of release, which included the payment of a $500 fine. On March 6, 2018, defendant filed an application for post-conviction relief, seeking an out-of-time appeal, which was granted by the trial court on March 15, 2018.

FACTS

Because defendant pled guilty, the underlying facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty plea:

[T]he state would be able to prove beyond a reasonable doubt as to count one that on or about December 3, 2015, the defendant violated Revised Statute 40:966.A, in that he did knowingly or intentionally possess with the intent to distribute marijuana.
As to count two, on or about December 3rd, 2015, he violated Revised Statute 14:95.E, in that he did possess a Glock 45-caliber firearm while in possession of oxycodone.
As to count three on that same date, that he violated Revised Statute 40:966.A, in that he did knowingly or intentionally possess with the intent to distribute MDMA.
And as to count four on that same date, that he violated Revised Statute 14:951 [sic], in that having been previously convicted of a felony, he was in possession of a Glock 45-caliber handgun.

DISCUSSION

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

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

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel indicates that prior to defendant's decision to change his pleas from not guilty to guilty, the trial court fully informed defendant of the legal consequences of doing so. Appellate counsel states that during the plea colloquy, the trial court explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights. She avers that defendant was sentenced in conformity with the plea agreement, and accordingly, is restricted by law from appealing his sentence.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcript. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

A review of the record reveals no constitutional infirmities or irregularities in defendant's guilty pleas to the charges that would render them invalid. The transcript of the guilty plea proceeding and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Further, defendant was informed of the actual sentences that would be imposed on him.

Additionally, defendant acknowledged that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant was informed that his guilty pleas could be used against him if he was convicted of a subsequent offense and could affect him under the habitual offender law. After the colloquy with defendant, the trial court accepted defendant's pleas as knowingly and voluntarily made.

Defendant was not advised of the mandatory restriction of benefits he faced under counts two, three or four prior to his guilty plea. In a similar factual situation, the omission of advice regarding the restriction of benefits did not present an issue for appeal. See State v. Landfair, 07-751 (La. App. 5 Cir. 3/11/08), 979 So.2d 619, 622-23, writ denied, 08-1143 (La. 1/9/09), 998 So.2d 713. In Landfair, this Court found on error patent review that the Boykin colloquy and the written waiver of rights form failed to inform the defendant that his guilty plea for two counts of attempted second degree murder and one count of attempted armed robbery would result in concurrent 20-year sentences imposed without the benefits of parole, probation, or suspension of sentence. This Court recognized that the defendant did not assign any errors relating to his sentence and did not make any allegations that his plea was involuntary. This Court further found the sentences imposed were consistent with the plea agreement and must be served without benefits in accordance with law. Accordingly, this Court affirmed defendant's convictions and sentences as follows:

There is no indication in either the record or in defendant's brief that any inducement regarding the benefits was discussed. Accordingly, we find the trial judge did not violate the terms of the plea agreement when sentencing defendant. Further, we find that the plea was tendered voluntarily and knowingly. Nothing in this record indicated otherwise.

Landfair, 979 So.2d at 623 (internal footnote omitted); see also State v. Byers, 16-627 (La. App. 5 Cir. 2/8/17), 213 So.3d 491, 496-97, writ denied, 17-592 (La. 11/28/17), 229 So.3d 936.

In this case, the record reflects the trial court advised defendant of his Boykin rights and defendant indicated his willingness to plead guilty. The trial court sentenced defendant to ten years on count two and fifteen years on count four, both without the benefit of probation, parole or suspension of sentence. Defendant did not object to these restrictions when imposed by the trial court during sentencing and defendant does not raise any assignments of error concerning his guilty plea and sentencing on appeal. The record does not contain any indication that the restriction of benefits served as an inducement to defendant's guilty plea. Accordingly, we find the failure to inform defendant of the benefit restrictions did not affect his substantial rights or render his guilty plea unknowing or involuntary.

Defendant's sentences were imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Nevertheless, defendant's sentences fall within the sentencing ranges prescribed by the statutes. See La. R.S. 40:966 B(3); La. R.S. 14:95 E; La. R.S. 40:966 B(2); La. R.S. 14:95.1. Moreover, defendant's plea agreements were beneficial to him because he received mid-range sentences on counts one and three, and a sentence five years below the maximum on count four. Although he did receive the maximum sentence on count two, the sentences were also ordered to run concurrently.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record is granted.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals the following error patent that requires correction.

The sentence on count three is illegally lenient. The penalty provision of La. R.S. 40:966 B(2), possession with the intent to distribute MDMA, provided for a sentence of imprisonment at hard labor "for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence[.]" Here, the trial court did not impose the restriction of benefits as required by La. R.S. 40:966 B(2).

Generally, when a trial court does not mention the restriction of benefits, such conditions are deemed to exist by operation of law under La. R.S. 15:301.1. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 801. However, in this case, the trial court's failure to impose the statutory restrictions is not cured by La. R.S. 15:301.1 because the portion of the sentence to be served without benefits is left to the discretion of the trial court. Therefore, we remand defendant's sentence on count three for resentencing with instructions to the trial court to impose defendant's sentence in accordance with the provisions of La. R.S. 40:966 B(2) only as it relates to the restriction of benefits on count three. State v. Napoleon, 11-530 (La. App. 5 Cir. 1/24/12), 87 So.3d 127 ; State v. Tapps, 02-574 (La. App. 5 Cir. 10/29/02), 832 So.2d 995, 1004, writ denied, 02-2921 (La. 4/21/03), 841 So.2d 789.

CONCLUSION

For the reasons stated above, we remand the matter with instructions for resentencing on count three. In all other respects, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw as counsel of record.

AFFIRMED; REMANDED FOR RESENTENCING ON COUNT THREE; MOTION TO WITHDRAW GRANTED

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      Co-defendant, Gloria Glass, was charged in the same bill of information in counts one, two, and three.

      Though the trial judge sentenced defendant to imprisonment in the Department of Corrections, rather than to imprisonment at hard labor as required by law, this Court deems such a sentence necessarily at hard labor. See State v. Baptiste, 16-316 (La. App. 5 Cir. 12/14/16), 209 So.3d 321, 324 n.2.

      Also on August 31, 2017, defendant entered guilty pleas and was sentenced in district court case numbers 15-4648 and 16-4061. Defendant appealed his guilty plea in number 15-4648, which is appeal number 18-KA-185. In district court case number 16-4061, defendant pled guilty to the misdemeanor offense of illegal use of a controlled substance in the presence of a minor child.

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

      Defendant was notified of his right to file a pro se supplemental brief in this appeal. As of the date of this opinion, defendant has not filed a pro se brief.

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

      Advice of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Martin, 17-558 (La. App. 5 Cir. 3/14/18), 242 So.3d 1236 ; State v. Faggard, 15-585 (La. App. 5 Cir. 1/13/16), 184 So.3d 837, 847, writ denied, 16-338 (La. 2/10/17), 215 So.3d 701 ; State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

      Under count two, possession of a firearm while in possession of a controlled dangerous substance, La. R.S. 14:95 E provides for a penalty of imprisonment at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence and a fine of not more than ten thousand dollars.
      Under count three, possession with the intent to distribute MDMA, at the time of the offense, La. R.S. 40:966 B (2) provided for a penalty of imprisonment at hard labor for not less than five nor more than thirty years, with at least five years without the benefit of probation, parole, or suspension of sentence and a fine of not more than fifty thousand dollars.
      Under count four, possession of a firearm by a convicted felon, La. R.S. 14:95.1 B provides for a penalty of imprisonment for not less than ten nor more than twenty years at hard labor without the benefits of probation, parole, or suspension of sentence and a fine of not less than one thousand dollars nor more than five thousand dollars.

      As discussed, infra , the trial court failed to impose any restrictions on defendant's concurrent fifteen year sentence on count three. La. R.S. 40:966 B(2) provides for a sentence of imprisonment at hard labor "for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence[.]"