author: PEATROSS, J. BROWN, Chief Judge,

text:
    Jonathon JOHNSON and Belinda Johnson, Individually and on Behalf of their Minor Son, Garrett Johnson, Plaintiffs-Appellees v. MOREHOUSE GENERAL HOSPITAL, et al, Defendants-Appellant.
    No. 44,798-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 22, 2009.
    Rehearing Denied Jan. 21, 2010.

      The Law Offices of Wm. E. Bourgeois, by William E. Bourgeois, for Appellant, Morehouse Parish Hospital Service District.
    Nelson & Hammons, by John L. Ham-mons, Guerriero & Guerriero, by Jeffrey D. Guerriero, for Appellees.
    J. Elliott Baker, Special Asst. Attorney General, for Intervenor/Appellee, State of Louisiana.
    Perret Doise, by Nadia de la Houssaye, for Louisiana Patient’s Comp Fund.
    Rankin, Yeldell & Katz, by Stephen J. Katz, for Dr. John Ziegler.
    Before BROWN, STEWART, CARAWAY, & PEATROSS & DREW, JJ.
   PEATROSS, J.

|,After a jury trial in this medical malpractice case, the jury returned a unanimous verdict in favor of Plaintiffs, Jonathon and Belinda Johnson, and against Defendant, Morehouse General Hospital, finding that Defendant committed four acts of medical malpractice which caused injury and damage to Plaintiffs’ minor child, Garrett Johnson. The jury further found that Dr. John Ziegler, another Defendant who had previously been dismissed from the suit, had committed one act of medical malpractice which caused injury to Plaintiffs. The jury awarded damages to Plaintiffs in the sum of $4,879,946.10.

The trial judge signed a judgment reducing the award in favor of Plaintiffs to $648,946.10, with legal interest thereon. The trial judge further adjudicated the minor child, Garrett, to be a patient in need of continuing medical care pursuant to the provisions of the Louisiana Medical Malpractice Act (“LMMA”). Defendant filed a motion for new trial, which was denied by the trial judge. Both parties now appeal. For the following reasons, we affirm in part, amend in part and affirm as amended.

FACTS

On November 1, 1999, Mrs. Johnson, an insulin-dependent diabetic who was 36½ weeks pregnant at the time, realized that she had not felt fetal movement for two days, so she made an appointment with her obstetrician, Dr. Ziegler. According to the medical expert testimony at trial, insulin-dependent diabetics are considered to have high risk pregnancies because there is often a delay in the lung maturity of the fetus. This presents the risk |2that the baby, if delivered too soon, may be born before his lungs have fully matured and will not be able to breathe unassisted by a ventilator.

On the other hand, if the baby is delivered too late, there is a risk that the baby will be subjected to intrauterine distress, which can lead to serious complications such as injuries to the heart, lungs, brain and nervous system. Consequently, in high risk pregnancies involving diabetic mothers, a cesarean section is often performed shortly after the child’s lungs are proven to have matured.

On the day of Mrs. Johnson’s appointment, Dr. Ziegler ordered the scheduling of an amniocentesis, a procedure where amniotic fluid is -withdrawn from the uterus, to determine whether the baby’s lungs had matured sufficiently for delivery. The amniocentesis was subsequently performed on November 2, 1999, through outpatient services. Dr. Ziegler also ordered an amniostat, a laboratory study analyzing the amniotic fluid obtained during the amniocentesis, to be performed at Morehouse General Hospital. He then ordered that the fluid be sent for testing in two additional laboratory studies, a phosphatidyl glycerol (“PG”) and an lecithin/sphingo-myelin ratio (“L/S ratio”), the results of which would be sent to a reference lab for analysis. Dr. Ziegler ordered the results of all three studies to be phoned to him as soon as they were available.

The fluid from the amniocentesis was analyzed for the amniostat at Morehouse General Hospital with the results indicating that the baby’s lungs had matured. The fluid was then sent to the outside reference lab for the PG and L/S ratio, with results also indicating lung maturity. The results |3were transmitted back to Morehouse General Hospital on the following day, November 3, 1999, at 3:28 p.m. According to the medical expert testimony at trial, an L/S ratio is an important test regarding the health of a fetus, the results of which should ideally be communicated to the physician within one hour of receipt or sooner if possible.

Around 8:00 p.m. on November 3, 1999, Mrs. Johnson was admitted to Morehouse General Hospital and remained in its obstetrical unit for approximately two hours. During that time, however, Dr. Ziegler still had not received the laboratory test results, nor had he inquired as to their status. Dr. Ziegler chose not to perform the cesarean section at that time; and, since the fetal heart monitor strip did not show any abnormalities requiring immediate cesarean section, Mrs. Johnson was stabilized and sent home.

Then on November 4, 1999, at approximately 9:00 a.m., Dr. Ziegler received the laboratory test results and his office scheduled an appointment with Mrs. Johnson to take place shortly after the noon hour that day. According to Dr. Ziegler, during her appointment at his office, Mrs. Johnson’s biophysical profile and fetal heart monitor indicated that the baby was in a healthy state with no indication of distress.

Dr. Ziegler testified that, even after he had received the laboratory results indicating lung maturity of the fetus, he chose not to perform the cesarean section immediately. He explained that he wanted to wait to perform the cesarean section because the baby was stabilized at that time, Mrs. Johnson had just eaten lunch, he knew of no available operating rooms in the hospital where he could perform the surgery and the pediatrician, |4Pr. John Coats, would not be available to care for the baby post-cesarean until later in the day. As a result, Dr. Ziegler scheduled a cesarean section for five hours later at 6:00 p.m.

Around 3:30 p.m. that afternoon, Mrs. Johnson was readmitted to Morehouse General Hospital, taken to the obstetrical unit and placed on a fetal heart monitor. Beginning at approximately 3:47 p.m., the fetal heart monitor began to indicate signs of severe intrauterine distress. There were several different nurses who entered and left Mrs. Johnson’s room during and after this time. According to the testimony at trial, Dr. Ziegler was not initially aware of the abnormalities indicated on the fetal heart monitor and did not go to Mrs. Johnson’s room. Instead, he finished seeing his clinic patients for the day and then went to check on Mrs. Johnson a little after 5:00 p.m.

After arriving at Mrs. Johnson’s hospital room, Dr. Ziegler and Mrs. Johnson began to discuss the tubal ligation procedure which was to be performed after the cesarean section. Soon thereafter, Mrs. Johnson signed the applicable consent forms for the cesarean section and the tubal ligation procedures. Then, at approximately 5:35 p.m., Dr. Ziegler was notified by one of the nurses in the room that the fetal heart monitor strip indicated signs of severe fetal stress. About fifteen minutes later at 5:50 p.m., initial surgery preparations were made by Dr. Ziegler, Dr. Coats and hospital personnel and an emergency cesarean section was performed around 6:00 p.m. Subsequently, Mrs. Johnson’s baby, Garrett, was born with brain damage and cerebral palsy.

lüThe case was submitted to a Medical Review Panel which returned an opinion that was favorable to both Dr. Ziegler and Morehouse General Hospital. Shortly thereafter, the current suit was filed. As previously stated, the jury returned a verdict in favor of Plaintiffs, finding four acts of medical malpractice on the part of Morehouse General Hospital, and awarded damages in the amount of $4,379,946.10. In accordance with applicable statutory medical malpractice damages caps, the trial judge reduced the damages to $643,946.10, with legal interest thereon, and further found the child to be a patient in need of continuing medical care pursuant to the LMMA. After Defendant’s motion for new trial was denied, this appeal ensued with both parties urging assignments of error.

DISCUSSION

On review, an appellate court may not set aside the findings of the trier of fact unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 98-1305 (La.2/28/94), 638 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly | (¡erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Id. Causation is a factual finding which should not be reversed on appeal absent manifest error. Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557; Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991); Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815 (La.1988).

Defendant asserts in assignment of error number four that the jury’s verdict was manifestly erroneous, inconsistent with the facts and applicable law and improperly founded upon sympathy. According to the jury verdict form, the jury found that Defendant was negligent in committing four separate acts of medical malpractice, all of which caused loss, injury or damages to Plaintiffs.

The specific acts of negligence alleged were as follows: (1) Defendant failed to notify Dr. Ziegler of the laboratory results indicating lung maturity when they were received on November 3, 1999, at 3:28 p.m.; (2) Defendant failed to notify Dr. Ziegler of the laboratory test results when he was evaluating Mrs. Johnson in More-house General Hospital later in the | ^evening of November 3, 1999; (3) Defendant failed to notify Dr. Ziegler of the laboratory test results prior to 9:00 a.m. on the morning of November 4, 1999; and (4) Defendant failed to report the abnormalities on the fetal heart tracings to Dr. Ziegler on November 4,1999.

The jury further found that Dr. Ziegler was negligent in his treatment of Mrs. Johnson, but also determined, however, that this negligence was not a superseding cause of Garrett’s injuries. The jury apportioned 80% of the total fault to Defendant for its negligence and 20% of the total fault to Dr. Ziegler for his negligence.

In a medical malpractice ease, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic 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, dentists, optometrists, or chiropractic 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.

See La. R.S. 9:2794(A); Salvant, supra; Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228.

IsFailure to Report Laboratory Test Results

Our review of the record in the case sub judice indicates that the jury erred in its finding that Defendant was negligent due to its failure to report the laboratory test results to Dr. Ziegler on Defendant’s initial receipt at 3:28 p.m. on November 3, 1999, later in the evening of November 3, 1999, and in the morning of November 4,1999, prior to 9:00 a.m. In the event Defendant breached an applicable standard of care in its delayed delivery of the laboratory test results to Dr. Ziegler, this breach did not cause the loss, injuries or damages sustained by Plaintiffs.

As previously stated, Dr. Ziegler received the laboratory test results indicating lung maturity of the fetus around 9:00 a.m. on the morning of November 4, 1999. According to the medical expert testimony of Dr. Aristóteles Pena-Miches, Dr. Robert Katz and Dr. Ziegler himself, insulin-dependent diabetic mothers have extremely high risk pregnancies due to the likelihood of potential complications that can arise causing injury to the fetus. All three experts agreed that obstetricians have a short window of time during these types of pregnancies to deliver the baby safely after the test results prove lung maturity. If the baby is not delivered quickly enough after the lungs have matured, risks of intrauterine distress arise, such as damage to the lungs, heart, brain and nervous system.

Dr. Ziegler was well aware of the risks associated with Mrs. Johnson’s pregnancy as an insulin-dependent diabetic. He testified that, when he saw Mrs. Johnson for her appointment at his office |3three hours after receiving the laboratory test results, her biophysical profile and fetal heart monitor tracings both indicated that the baby was in good, stable health and not in distress. The baby’s healthy state at that time, three hours after Defendant’s delayed reporting of the laboratory results, indicates that Defendant’s failure to notify Dr. Ziegler of the results on any of the three occasions prior to November 4, 1999, at 9:00 a.m., even if considered to be an unreasonably delayed reporting, was not a cause of the loss, damages or injuries sustained by Plaintiffs.

Negligence of Dr. Ziegler

Additionally, once Dr. Ziegler was made aware of the laboratory results, he could have scheduled a cesarean section almost immediately, but chose not to do so until approximately nine hours after receiving the laboratory results. Dr. Ziegler testified that he waited to schedule the surgery for several reasons, including the lack of an available operating room, the lack of availability of Dr. Coats, because Mrs. Johnson had recently eaten lunch and he knew that the baby was stabilized at the time and not in need of an emergency cesarean section.

According to the testimony of Dr. Jason Wilson, if Dr. Ziegler had decided to perform a cesarean section earlier in the day, an operating room would have been made available for his use, as is customary in most hospitals. Dr. Wilson also testified that he noticed many opportunities to deliver Garrett safely prior to the cesarean section scheduled on November 4, 1999, at 6:00 p.m. He further stated that, while he believed |,nthat Dr. Ziegler was very well intentioned and intelligent, he appeared to have simply forgotten about the laboratory test results.

Dr. Coats testified that he would never have told the obstetrician that he was not available for a cesarean section. He further stated that, had he been notified that he was needed for Garrett’s delivery at any point earlier in the day, he would have come over immediately and his office patients would have been required to wait until he returned.

Given the testimony of the aforementioned medical experts and Dr. Ziegler’s own testimony that he knew of the high risk of complications associated with Mrs. Johnson’s pregnancy, we agree with the jury’s finding that Dr. Ziegler was negligent in his treatment of Mrs. Johnson. We disagree with the jury’s conclusion, however, that Dr. Ziegler’s negligence was not a superseding cause of Garrett’s injuries. Dr. Ziegler had the option to deliver the child safely at any point between 9:00 a.m. and 3:00 p.m. on November 4, 1999, but chose not to, citing reasons which were discredited by the testimony of Dr. Wilson and Dr. Coats.

Failure to Report Fetal Heart Monitor Irregularities

Finally, we find no manifest error in the jury’s finding that Defendant was negligent due in its failure to report the abnormalities on the fetal heart tracings to Dr. Ziegler which began at approximately 3:47 p.m. on November 4, 1999, and lasted for over an hour prior to Dr. Ziegler’s arrival at Mrs. Johnson’s room. According to the testimony of nurse Gwen Stephenson, on noticing abnormalities in the fetal heart monitor tracings, she did not leave the room to tell Dr. Ziegler because she did not want to |nleave Mrs. Johnson unattended. Once Dr. Ziegler arrived, she simply held the fetal heart monitor strip up in a way that she thought would make him aware of the irregularities.

Nurse Stephenson admitted that she never verbally informed Dr. Ziegler of the abnormalities because she did not want to say anything alarming in front of Mrs. Johnson. Once Nurse Stephenson believed she had sufficiently indicated to Dr. Ziegler that the fetal heart tracings were irregular, she just waited until her shift was over at 5:00 p.m., then asked Dr. Ziegler if he needed anything else before she left and went home for the night.

After Nurse Stephenson left for the night, Mrs. Johnson remained in her room with Dr. Ziegler until Nurse Lori Priestly, whose shift had just begun, arrived at about 5:30 p.m. Nurse Priestly testified that she noticed within a few minutes that the fetal heart tracings were irregular and she informed Dr. Ziegler, who stated that he had no knowledge of the irregularities prior to that time.

According to Nancy Cook, a scrub technician at Morehouse General Hospital, there were several nurses in and around Mrs. Johnson’s room prior to Dr. Ziegler’s arrival after 5:00 p.m. The cumulative testimony of all hospital personnel, however, reveals that, in spite of the presence of several hospital staff who could have informed Dr. Ziegler of the fetal heart monitor tracing irregularities, Dr. Ziegler remained uninformed of such until shortly after 5:30 p.m. For this reason, we find no manifest error in the jury’s finding that Defendant was negligent in its failure to promptly notify |1?Dr. Ziegler of the abnormalities on the fetal heart monitor tracings. Additionally, we agree that this negligence act on the part of Defendant contributed to the loss, injury or damages sustained by Plaintiffs.

Apportionment of Fault

The Louisiana Supreme Court summarized in Hebert v. Rapides Parish Police Jury, 06-2001 (La.4/11/07), 974 So.2d 635, the standard for reviewing allocation of fault determinations:

Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id. Therefore, an appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement, supra; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Considering our discussion herein regarding the acts of negligence committed by Dr. Ziegler and Defendant, we find that the jury manifestly erred in its apportionment of fault. Accordingly, finding such to be the lowest reasonable allocation, we apportion 80% of the total fault to Dr. Ziegler. Additionally, finding such to be the highest reasonable allocation, we apportion 20% of the total fault to Defendant.

Further, we see no manifest error in the jury’s determination that Garrett is a patient in need of continuing medical care for the brain damage and medical problems he sustained at birth. The child’s medical records in | ^conjunction with the medical expert testimony elicited at trial adequately support this finding.

Although we have reapportioned the percentages of fault, we note that this will have no ultimate effect on the jury’s award of damages, the amount of which was properly reduced by the trial judge in accordance with La. R.S. 40:1299.42, as reflected in his January 13, 2007 judgment. In any event, Defendant did not appeal the jury’s award of damages.

Expert Witnesses

Defendant asserts in assignment of error number one that the trial judge improperly overruled its objection to Plaintiffs’ expert witness, Dr. William Kendrick Hardin, based on his lack of qualifications pursuant to La. R.S. 9:2794. We agree.

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Crisler v. Paige One, Inc., 42,563 (La.App.2d Cir.1/9/08), 974 So.2d 125; Graves v. Riverwood In tern. Corp., 41,810 (La.App.2d Cir.1/31/07), 949 So.2d 576, writ denied, 07-0630 (La.5/4/07), 956 So.2d 621, citing Roberts v. Owens-Corning Fiberglas Corp., 03-0248 (La.App. 1st Cir.4/2/04), 878 So.2d 631, writ denied, 04-1834 (La.12/17/04), 888 So.2d 863; Emery v. Owens-Corporation, 00-2144 (La.App. 1st Cir.11/9/01), 813 So.2d 441, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842.

At trial, a party must make a timely objection to evidence that the party considers to be inadmissible and must state the specific ground for the objection. La. C.E. art. 103(A)(1); La. C.C.P. art. 1635; Crisler, supra; Graves, supra; McWilliams v. Courtney, 41,725 (La.App.2d Cir.12/13/06), 945 So.2d 242. On appeal, this court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. Crisler, supra; Graves, supra. If not, a reversal is not warranted. Crisler, supra; Graves, supra, citing La. C.E. art. 103(A); Emery, supra; Brown v. Associated Insurance Consultants, Inc., 95-1451 (La.App. 1st Cir.4/4/96), 672 So.2d 324, writ denied, 96-1106 (La.6/7/96), 674 So.2d 970. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case; and it is the complainant’s burden to so prove. Crisler, supra; Graves, supra.

La. R.S. 9:2794 D provides in pertinent part:

D. (1) In a medical malpractice action against a physician, licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who meets all of the following criteria:
(a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose.
(b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.
(c) He is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care.
(d) He is licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other jurisdiction in the United States, or is a graduate of a | ^medical school accredited by the American Medical Association’s Liaison Committee on Medical Education or the American Osteopathic Association.
(2) For the purposes of this Subsection, “practicing medicine” or “medical practice” includes but is not limited to training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.

According to Dr. Hardin’s own testimony at trial, he was not practicing medicine in 1999 at the time of the incident involving Garrett and he was not practicing medicine in 2007 when he testified at trial. In addition, Dr. Hardin was not training residents or students at an accredited medical school and he was not serving as a consulting physician during either of the relevant time periods.

La. R.S. 9:2794 D(l) is explicitly clear in that it requires an expert to meet all of the criteria set forth in paragraphs (a) through (d) of La. R.S. 9:2792 D(l). Since Dr. Hardin clearly failed to meet the criteria set forth in paragraph (a) of La. R.S. 9:2994 D, the trial judge erred when he failed to disqualify Dr. Hardin as a medical expert and exclude his testimony at trial.

When compared to the record in its totality, however, the trial judge’s improper admission into evidence of Dr. Hardin’s testimony does not appear to have had a substantial effect on the outcome of the case. Dr. Hardin was only one of six physicians who testified as a medical expert at trial; and, in the context of the entire record, his testimony was relatively brief. Furthermore, considering the testimony of the other medical experts, the arguments of counsel and the totality of the evidence presented at trial, the 11fjury would likely have reached the same verdict had his testimony been excluded from trial.

Accordingly, we find that the trial judge’s admission into evidence of Dr. Hardin’s testimony was harmless error. Crisler, supra; Graves, supra.

Closing Argument

Defendant asserts in assignment of error number two that, during closing arguments, counsel for Plaintiffs wrongfully indicated to the jury that Morehouse General Hospital was the only Defendant in this case from which Plaintiffs could receive a money judgment. Defendant objected in a timely fashion between arguments to avoid drawing more attention to the error and requested that the trial court give an admonition to the jury to disregard the statement. Defendant argues that the trial court erroneously declined to make the admonition, citing for its reasons that the “bell had been rung.”

Similarly, in assignment of error number three, Defendant asserts that the trial court erroneously overruled its objection to Plaintiffs’ counsel’s remarks during closing argument that Defendant had submitted an incomplete copy of the fetal heart monitor strips to Plaintiffs in an effort to “hide something.” Defendant contends, however, that it offered, filed and introduced into evidence an original, complete, certified copy of the 119 pages of the relevant fetal heart monitor strips and complains that it was unreasonable and unfair for Plaintiffs to submit an incomplete set of records, purporting to be the fetal heart monitor strips submitted by Defendant, and then claim it was Defendant who had submitted the 117incomplete set. According to Defendant, this action by Plaintiffs prejudiced the jury against it and caused them to “think less” of Defendant. Defendant contemporaneously objected to Plaintiffs’ counsel’s remarks during closing arguments regarding the fetal heart monitor strips.

The court has the power to require that the proceedings are conducted with dignity and in an orderly and expeditious manner and to control the proceedings at trial so that justice is done. La. C.C.P. art. 1631. An attorney at law is an officer of the court and shall conduct himself at all times with decorum and in a manner consistent with the dignity and authority of the court. La. C.C.P. art. 371. He shall treat the court, jurors, witnesses, opposing party and opposing counsel with due respect. Id. He shall not interfere with or impede the orderly dispatch of judicial business by the court. Id. He shall not knowingly encourage or produce false evidence or make any misrepresentation, impose upon or deceive the court. Id.

All parties are entitled to a fair trial on the merits of the case, uninfluenced by appeals to passion and prejudice. Ogletree v. Willis-Knighton Memorial Hospital, Inc., 530 So.2d 1175 (La.App. 2d Cir.1988), writ denied, 532 So.2d 133 (La.1988); Cooper v. United Southern Assurance Co., 97-0250 (La.App. 1st Cir.9/9/98), 718 So.2d 1029. Counsel should confine their arguments to the evidence admitted and the inferences that may be properly drawn from it. Ogletree, supra; Cooper, supra. The test of whether an argument of counsel is prejudicial or inflammatory is whether such comment is unreasonable or unfair in the eyes | wof the law. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976); Ogletree, supra; Terrance v. Dow Chemical Co., 06-2234 (La.App. 1st Cir.9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534; Cooper, supra.

When the language used is such as discloses a studied purpose to arouse the prejudices of the jury, the court cannot overlook it or consider that a party against whom such effort has been made has had a fair consideration of its case at the hands of the jury. Temple, supra; Ogletree, supra. It is equally well settled that counsel has great latitude in argument before a jury and fair advocacy not designed to inflame the jury is permissible. Temple, supra; Ogletree, supra; Terrance, supra; Cooper, supra.

In the case sub judice, Plaintiffs’ counsel’s objectionable statements concerning the sole source of Plaintiffs’ damages and the purported incomplete set of fetal heart monitor strips were subject to corrective measures. The court admonished the jury, both at the start of the trial and when all parties had rested, that the statements of counsel were their opinions and nothing more. The court stated that these statements were designed to persuade and direct the jury toward a particular verdict, were not to be considered evidence and should not interfere with its determination of the facts. While we express great concern over the tactics of Plaintiffs’ counsel during his closing argument, we find that these statements by the trial court at the beginning and end of the trial served to 1 iacounteract the possibly adverse effect of Plaintiffs’ counsel’s arguments. Temple, supra.

Accordingly, we find Defendant’s second and third assignments of error to be without merit.

Expert Witness Fees

In assignment of error number five, Defendant argues that the trial court erroneously disregarded the provisions set forth in La. R.S. 13:3666(B) by improperly adopting the expert witness fees in the amounts claimed by the expert witnesses. Defendant contends that the trial court should have taken testimony evidencing the proper amount of the fees or should have issued a rule to show cause in accordance with the statute. Defendant further claims that the expert witness fees awarded to Plaintiffs were punitive in nature.

La. R.S. 13:3666(B) provides:

B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed |2nas costs to be paid by the party cast in judgment. La. R.S. 18:8666; Mount Mariah Baptist Church, Inc. v. Parnell’s Associated Electric, Inc., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 03-0555 (La.5/2/03), 842 So.2d 1101. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. Orea v. Scallan, 32,622 (La.App.2d Cir.1/26/00), 750 So.2d 483. The trial judge has great discretion in awarding and fixing costs and expert fees. Mount Mariah Baptist Church, Inc., supra. A trial court’s assessment of costs can be reversed by an appellate court only upon a showing of abuse of discretion. Mount Mariah Baptist Church, Inc., supra; Orea, supra.

Factors to be considered by the trial judge in setting expert witness fees include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed and the knowledge, attainments and skill of the expert. Mount Mariah Baptist Church, Inc., supra. Additional considerations include the helpfulness of the expert’s report and testimony to the court, the amount in controversy, the complexity of the problem addressed by the expert and awards to experts in similar cases. Id.

Considering our discussion of Defendant’s first assignment of error wherein we found that the trial judge erred in admitting the testimony of Dr. Hardin on the grounds that he did not qualify as a medical expert under La. R.S. 9:2794, we reduce the total award of expert witness fees by the amount of Dr. Hardin’s fee, i.e., $3,700. With regard to the award of expert witness fees for the services of Dr. Pena-Miches and Dr. Katz, we do not | ai find the amounts of those fees to be excessive, unreasonable or punitive. Consequently, we find no abuse of discretion on the part of the trial judge in awarding those fees. We, therefore, reduce the trial judge’s total award of expert witness fees in favor of Plaintiffs from $11,600 to $7,900.

Motion for New Trial

In its sixth and final assignment of error, Defendant asserts that the trial judge erroneously denied, but had “good grounds” to grant, its motion for new trial, specifically because the jury returned a verdict based on the testimony of a witness who was not credible, i.e., Dr. Ziegler.

A new trial may be granted in any case if there are good grounds therefor. La. C.C.P. art.1974; Horton v. Mayeaux, 05-1704 (La.5/30/06), 931 So.2d 338. Whether to grant a new trial requires a discretionary balancing of many factors. Dowles v. Conagra, Inc., 43,074 (La.App.2d Cir.3/26/08), 980 So.2d 180; Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2d Cir.1991). The trial judge may evaluate evidence without favoring any party and draw his own inferences and conclusions. Dowles, supra.

Perhaps the significant authority is the trial judge’s ability to assess the credibility of witnesses when determining whether to grant or deny the motion for new trial. Dowles, supra; Morehead v. Ford Motor Co., 29,399 (La.App.2d Cir.5/21/97), 694 So.2d 650, writ denied, 97-1865 (La.11/7/97), 703 So.2d 1265. The trial judge’s discretion in ruling on a motion for new trial is great and his decision will not be disturbed on appeal absent an abuse of that discretion. Dowles, supra; Morehead, supra. Furthermore, |22“when the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered.” Lamb v. Lamb, 430 So.2d 51 (La.1983); Dowles, supra.

The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. Dowles, supra. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Id. Fact finding is the province of the jury and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. Id.

A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Dowles, supra. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Gibson, supra.

After thorough review of the record, we cannot say that the trial judge committed manifest error or abused his discretion in denying Defendant’s motion for new trial. Dr. Ziegler was only one of many witnesses who testified over the course of a week long trial. Given the totality of the evidence submitted in this case, we are not inclined to believe that his testimony, regardless of its credibility, was the sole consideration of the jury in reaching a verdict. We find this assignment of error to be without merit.

J^ANSWER TO APPEAL

Plaintiffs contend that the trial judge erred in declining to sign their proposed judgment allowing a separate award of damages, each with its own cap for each separate act of negligence of Defendant, and, consequently, in failing to sign a judgment which conformed to the jury verdict.

In consideration of our discussion of Defendant’s fourth assignment of error wherein we determined that Defendant only committed one distinct act of negligence, ie., in failing to promptly notify Dr. Ziegler of the irregularities on the fetal heart monitor tracings, we pretermit any discussion of the issue of damages for the other three purported acts of negligence urged by Plaintiffs. This assignment of error is, therefore, without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed in part, amended in part and affirmed as amended. Costs of this appeal are assessed equally to both parties.

AFFIRMED IN PART, AMENDED IN PART and AFFIRMED AS AMENDED.

BROWN, C.J., dissents in part with written reasons.

BROWN, Chief Judge,

dissenting in part,

hi agree that Dr. Ziegler was negligent in delaying the delivery of the child after he received the laboratory results at 9:00 a.m. on November 4; however, a successful delivery may still have been possible, or at least the damage lessened, if the delivery had been immediately performed when the abnormalities on the fetal heart tracings first appeared. This child was under distress from 3:30 p.m. until 5:00 p.m. before it was reported to Dr. Ziegler.

I disagree with the majority view that Dr. Ziegler’s negligence was a “superseding cause” of the child’s injuries. A “superseding cause” is a subsequent act of negligence by another person or entity which supersedes the negligent act of the first person. See Adams v. Rhodia, Inc., 07-2110 (La.05/21/08), 983 So.2d 798.

In this case, the act of the nurse in not immediately informing Dr. Ziegler of the stress shown on the monitoring strips was the last negligent act and thus, could be claimed to be a “superseding cause” of the child’s injuries. Because Dr. Ziegler’s negligence had not ended, however, I would not label the nurse’s failure to inform Dr. Ziegler as a superseding cause. I would note that the viability of the concept of superseding negligence relieving the first actor of any liability is itself questionable in a comparative fault system.

It was for the jury to apportion fault. I believe the majority has substituted its opinion for that of the jury and would affirm the jury’s reasonable apportionment of fault. Frankly, the defendant’s witnesses were |2impeached while the jury found Dr. Ziegler credible. As to Dr. Ziegler’s settlement, it was defendant’s attorney who first brought this issue into the case.

Although the majority’s reapportionment of fault will not reduce defendant’s payment of the damage award, it will affect the continuing medical care obligation. Thus, I would affirm the jury’s apportionment of fault.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, & PEATROSS & DREW, JJ.

Rehearing denied.

      . During oral argument before this court, counsel for Plaintiffs conceded to this fact.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    FIA CARD SERVICES, N.A., Plaintiff-Appellee v. Ricky D. SMITH, Defendant-Appellant.
    No. 44,923-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 22, 2009.
    Rehearing Denied Jan. 21, 2010.

      Ricky D. Smith, In Proper Person.
    Eaton Group Attorneys, LLC by Gregory McCarroll Eaton, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

| [Ricky D. Smith established a credit card account with MBNA, which later became FIA Card Services (“FIA”). The contract required arbitration in case of disputes. Smith placed charges on the account and became in arrears. The dispute went to arbitration, pursuant to due notice. An award was entered, which was duly confirmed in the Fourth Judicial District Court. Smith now appeals the judicial confirmation of the adverse arbitration award as to his indebtedness. Finding no error below, we affirm.

CHRONOLOGY OF SIGNIFICANT PLEADINGS AND EVENTS

11/03/06 Notice of arbitration mailed to 9137 Beechwood Dr., Bastrop, LA 71220, the same address Smith used on his subsequent pleadings.

01/12/07 Second notice of arbitration sent to same address.

02/12/07 Arbitration award rendered in favor of FIA, specifically finding that notice of arbitration was properly made upon Smith.

02/13/07 Notice of arbitration award mailed to Smith, who never interposed an objection within the arbitration proceedings.

06/05/07 FIA sued Smith to confirm arbitration award, also filing a request for admission of facts.

07/03/07 Smith, pro se, filed an exception of want of amicable demand.

08/20/07 FIA sent Smith a request for genuineness of document and request for production of document.

09/13/07 FIA filed a motion to overrule Smith’s exception, reflecting notice by mail having been made on 8/20/07.

12/17/07 On this date, Smith’s exception was overruled, with the trial court ordering that the petition be answered within 10 days, with notice of judgment having been sent this date.

(.01/02/08 Smith filed untimely response to FIA’s (6/5/07) request for admission of fact, as well as his original answer (denying the existence of an arbitration order) and a re-conventional demand.

01/22/08 Affidavit filed by FIA, confirming notification to defendant of the need to file responsive pleadings, which notice enclosed a copy of the preliminary default, all as per La. C.C.P. art. 1702(A).

03/03/08 FLA filed answer to defendant’s reconventional demand.

03/20/08 Smith filed first set of requests for production of documents.

10/02/08 Judge Alvin Sharp granted judgment in favor of FIA.

10/30/08 Judge Sharp set aside his previous judgment for “lack of service of process.”

11/20/08 Smith filed an amended answer and reconventional demand plus an amended response to requests by plaintiff.

2/23/09 Initial hearing date on exception; record left open until 3/30/09.

3/30/09 Hearing concluded; FIA’s motion to confirm arbitration award granted; FIA’s exception of no cause of action upheld.

05/08/09 Filing of written reasons for judgment.

05/21/09 Motion for appeal filed.

06/09/09 Amended order of devolutive appeal signed.

|;06/11/09 Judgment issued confirming arbitration award and dismissing Smith’s reconventional demand.

06/15/09 Notice of judgment mailed to Smith.

THE LAW

La. R.S. 9:4209. Motion to confirm award; jurisdiction; notice

At any time within one year after the award is made any party to the arbitration may apply to the court in and for the parish within which the award was made for an order confirming the award and thereupon the court shall grant such an order unless the award is vacated, modified, or corrected as prescribed in R.S. 9:4210 and 9:4211. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.

La. R.S. 9:4210. Motion to vacate award; grounds; rehearing

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

La. R.S. 9:4211. Motion to modify or correct award; grounds

In any of the following cases the court in and for the parish wherein the award was made shall issue an order modifying or correcting the award upon the application of any party to the arbitration.
A. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
B. Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.
|4C. Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order shall modify and correct the award so as to effect the intent thereof and promote justice between the parties.
La. R.S. 9:4212. Judgment upon award Upon the granting of an order confirming, modifying, or correcting an award, judgment may be entered in conformity therewith in the court wherein the order was granted.

La. R.S. 9:4213. Notice of motions; when made; service; stay of proceedings

Notice of a motion to vacate, modify, or correct an award shall be served upon the adverse party or his attorney within three months after the award is filed or delivered, as prescribed by law for service of a motion in an action. For the purposes of the motion any judge, who might issue an order to stay the proceedings in an action brought in the same court may issue an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.

La. R.S. 9:4216. Limitation of application of Chapter

Nothing contained in this Chapter shall apply to contracts of employment of labor or to contracts for arbitration which are controlled by valid legislation of the United States or to contracts made prior to July 28,1948.

La. C.C.P. art. 1467. Requests for admission; answers and objections

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within fifteen days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of thirty days after service of the petition upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of | ¿which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Article 1472, deny the matter or set forth reasons why he cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Article 1469 apply to the award of expenses incurred in relation to the motion.

La. C.C. art. 3129. Approval of award by judge.

The award in order to be put in execution, ought to be approved by the judge; but this formality is only intended to invest the award with a sufficient authority to ensure its execution and not to submit to the judge the examination of its merits, except in case an appeal is brought before him.

9 U.S.C. § 9. Award of arbitrators; confirmation; jurisdiction; procedure

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident, then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.

9 U.S.C. § 10. Same; vacation; grounds; rehearing

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration-
| f,(l) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
(b) If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.
(c) The United States district court for the district wherein an award was made that was issued pursuant to section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5.

9 U.S.C. § 11. Same; modification or correction; grounds; order

In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration—
(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.

9 U.S.C. § 12. Notice of motions to vacate or modify; service; stay of proceedings

Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident then the notice of the application shall be served by the marshal of any district within which the 17adverse party may be found in like manner as other process of the court. For the purposes of the motion any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.

Legal errors are reviewed de novo. A district court’s review of an arbitration award is extraordinarily narrow. An appellate court makes a de novo review of a district court judgment confirming an arbitration award. NCO Portfolio Management, Inc. v. Walker, 2008-1011 (La. App. 3d Cir. 2/4/09), 3 So.3d 628. In Chase Bank, USA, N.A. v. Roach, 2007-1172 (La. App. 3d Cir. 3/5/08), 978 So.2d 1103, the court noted that arbitration is favored and an arbitration award is res judicata. The burden of proof is on the party attacking the arbitration award. Unless that party establishes grounds for vacating, modifying or correcting the award, the arbitration award must be confirmed.

DISCUSSION

Defendant’s reconventional demand, even as amended, makes only vague, illusory conclusions that his due process rights were violated. The facts of the reconventional demand are not well pleaded. In fact, not until the first hearing on February 23, 2009, did the plaintiff and the court appear to understand the thrust of his complaints. As Louisiana is a fact-pleading state, and since defendant pleaded no facts that could sustain any remedies by law, plaintiff’s exception of no cause of action was properly sustained. This conclusion is obvious on the face of the pleadings. Continuing the hearing was unnecessary, as the issue of appropriate notice of arbitration |8was a specific finding in the arbitration award. It is clear that the learned trial court was making painstaking efforts at satisfying justice and allowing the defendant to have his day in court, which efforts are appreciated.

As to Smith’s complaints about lack of subject matter jurisdiction, Morehouse Parish is the domicile of the defendant, thus the Fourth Judicial District Court is appropriate for the confirmation of the arbitration award. A similar issue was addressed in Chase Bank, USA, N.A., supra. Like Smith in the present dispute, the defendant was sent two notices prior to the arbitration proceeding. The defendant neither responded nor appeared at the arbitration. Notice of the arbitration award was sent to the defendant, who did not respond or make any other communication to the arbitrator. Chase Bank sent a demand letter to the defendant and subsequently filed a petition to confirm the arbitration award. The district court denied the confirmation based on lack of jurisdiction because the confirmation petition was filed in the wrong venue. The appellate court reversed the trial court’s denial of the confirmation, notwithstanding the language in La. R.S. 9:4209 stating “an arbitration award must be confirmed in the parish where the arbitration was made.” The Third Circuit relied on federal arbitration and debt collection statutes to reach the eminently practical result that confirmation of arbitration could be confirmed, among other places, where the contract was signed or where the debtor was domiciled. The debtor in Chase Bank, USA, N.A., also had not challenged the arbitration.

|9Smith could have attempted to challenge the arbitration procedure, but instead he waited to object until court proceedings were at hand. He also failed to timely respond to requests to admit or deny facts and genuineness of documents, deeming them admitted. It was mandatory that the trial court confirm the award, so long as the award had not been vacated, modified, or corrected. Nothing in this record supports any of these three situations.

Morehouse Parish is the domicile of Mr. Smith, conferring subject matter jurisdiction upon the Fourth Judicial District Court, the trial court of general jurisdiction in and for the parishes of Ouachita and Morehouse.

The Louisiana Legislature created the remedy of arbitration to simplify and speed the process of resolving disputes. This pro se party has confounded the system by putting this matter off for over three years.

DECREE

At the cost of Ricky D. Smith, the judgment below, affirming the award of arbitration, is AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, PEATROSS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Proper notice was specifically confirmed by the arbitrator in the award.

      . His mother's house. The Federal Express envelope reflected delivery on November 3, 2007, to "A. Smith."

      . Later amended on November 20, 2008.

      . None of Smith’s responses were timely, rendering admitted FIA's Request for Admissions of Facts and Request for Genuineness of Documents, as per La. C.C.P. art. 1467.
      Thus he admitted that:
      • he received notice of the arbitration proceedings;
      • the arbitration award had not been modified, vacated, or corrected;

        • the credit card agreement approved the arbitration procedure;
      • the notice of arbitration was genuine;
      • the arbitration award was genuine; and
      • his card member agreement approved the arbitration.

      . The trial court found that proper notices were made to Smith, who had been properly informed he should file a response within 30 days and that failure to do so might result in an award being entered against him. Further, the court reasoned that Smith's failure to file any response to the notice of arbitration resulted in no notice being required of the date, place and time that the preliminary default was to be entered and confirmed, resulting in the mandatory confirmation of the arbitration award against Smith.

      . See Ovennier v. Traylor, 475 So.2d 1094 (1985).

      . See findings and conclusions # 3 under “Case Summary”: An arbitration hearing notice was duly delivered to the Parties as required by the Forum Rules; and # 3 under "Decision”: The Claim was properly saved on the Respondent by Claimant in accordance with Rule 6, including a Notice of Arbitration.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Fab E. IDRIS v. ALLSTATE INSURANCE COMPANY.
    No. 2009-CA-0098.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2010.
    Rehearing Denied Jan. 29, 2010.

      Fab E. Idris, New Orleans, LA, for Plaintift/Appellant, Pro Se.
    Jeffery P. Lozes, Lozes & Lozes, New Orleans, LA, for Defendant/Appellee, Allstate Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, and Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hFab Idris, plaintiff below, appeals the trial court’s judgment granting the Motion for Directed Verdict pursuant to La.Code Civ. Proc. Art. 1810 filed on behalf of the defendant, Allstate Insurance Company (Allstate). For the reasons that follow, we affirm the judgment of the trial court.

Mr. Idris filed a claim under his Allstate homeowner’s insurance policy for property lost in an alleged burglary on or about March 12, 2005. The list of allegedly stolen items included ninety-three laptop computers, seventy-four camcorders and twenty-seven digital cameras. The stipulated insurance policy provided limits of $2500 for business inventory, and $5000 for electronic data processing equipment, whether or not used in business. The policy also provided that losses or occurrences in which the insured person concealed or misrepresented any material fact or circumstances were not covered.

The trial court orally assigned its reasons for judgment:

The motion for directed verdict is granted. In this Court’s view, Plaintiff abysmally failed to prove his claim by the accepted standard of more likely than not. In fact, he didn’t even prove his claim by could have, |2wouId have, should have. The motion, therefore, is granted.
And because this Court is of the view that the plaintiffs, Fab E. Idris [sic], testimony was riddled with lies in his sworn testimony demonstrating total disrespect for this Court, the Court finds him in contempt and orders him in prison for 24 hours.

Mr. Idris made the following fro se assignment of error:

“The trial court erred was the lopsided judgment, the judge totally ignore the Louisiana code of civil procedure: R.S. 22:1220; the trial court did not consider this important law code of the state of Louisiana. The trial court erred was he totally ignore the substantial evidence that show a satisfactory proof of loss in this case. The trial court erred was that he totally ignore: R.S. 22:1220, subsection, B(5); failing to pay after receipts of satisfactory of proof of loss. The trial court erred was offering $5,000 to appellant for the loss of over $65,000; on April-14-2008 in the pre-trial hearing; appellant respectfully declined the offer.” [Sic]

We note initially that the judgment does not address the settlement offer referenced in Mr. Idris’ assignment of error, and he has not cited nor has our independent research discovered any cause of action for an offered and rejected settlement under the circumstances of this case. Furthermore, La. R.S. 22:1220 is a strictly construed penalty statute, applicable only to those cases in which an insurer is found liable under its policy and where the insured has proved that the insurer has breached its duty of good faith and fair dealing. For the reasons that follow, it is clear that Allstate is not liable under the policy and did not breach its duty to Mr. Idris.

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-100, p. 4 (La.1/16/96), 666 So.2d 612, 614. When findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact’s findings. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Our review of the record in its entirety convinces us that the trial court’s conclusions are reasonable and supported by the record taken as a whole.

Mr. Idris testified that on the evening of March 12, 2005, he had been out with friends, and returned to his home at approximately three o’clock in the morning to find the door ajar. Upon entering his home, he observed certain items were missing, and concluded that he had been the victim of a burglary. He called the police, and an officer investigated the alleged crime.

Mr. Idris testified that he filed a claim with Allstate for approximately $65,000, representing the value of the items he claims were stolen, and that Allstate denied his claim. Mr. Idris testified that the items he claims were stolen were not business inventory, but had been purchased either in bulk or individually as parts of a collection, thus taking them out of the inventory limitation set forth in 14the insurance policy. He admitted, when questioned by the trial judge, that the items were basically the same, although some of the digital cameras differed in style, model, design and technology. According to Mr. Idris, the thief or thieves went directly to the walk-in closet in his bedroom and stole only the electronic equipment he contended constituted his collection.

Under cross-examination, Mr. Idris admitted that he had suffered similar thefts of electronic equipment in 1997 and 1998, when he was insured by State Farm. He claimed a loss of five camcorders, five cameras and portable television sets on August 12, 1997. According to the stipulated State Farm records introduced in connection with Mr. Idris’ testimony, a burglar went through Mr. Idris’ iron doors to enter the house. Mr. Idris’ State Farm claim indicates that, as he had in the instant case, he left the house and returned at about three o’clock in the morning to discover the burglary. A year later, he claimed that twenty-seven camcorders, nine cameras and four mini-television sets were stolen. In both State Farm claims, Mr. Idris contended that the stolen property was not held for resale, but was part of a collection he kept as a hobby. Mr. Idris denied that he sold this equipment out of his house, but refused to reply to discovery asking for his financial information in order to determine how he was able to support these collections. He testified that he has never been employed, and came to this country in the early 1980s. Subsequently in his testimony, he stated, “I wouldn’t say I never have employment, but I have several things. But say basically employment, I have my own income. So, I don’t know. I’m really entertaining this because it’s not irrelevant to the law, but I’m just entertaining it.” When the trial court pointed out that his sources of income were relevant to the coverage, vel non, of the Allstate policy, Mr. Idris testified that he could not recall having been employed |fisince coming to the United States. He started a transshipping company that made no money and was closed down after approximately six months in 1998.

Mr. Idris admitted that in 1993 he was sued for child support following a positive paternity test. In connection with a hearing in that case, he submitted a signed and sworn income and expense sheet indicating that he was earning $800 a month, and had monthly expenses of $763. Mr. Idris admitted that he appealed the child support judgment, finding him liable for arrearag-es of approximately $15,000, to the Court of Appeal and applied for a supervisory writ to the Louisiana Supreme Court, persisting in the allegation that he earned only $800 a month and cleared only $37. At the same time, he was purchasing the equipment he alleged was stolen in 1997 and 1998.

Mr. Idris testified at trial that in 1998 he owned property on Bundy Road in New Orleans; however, in a prior sworn statement given in this proceeding, he testified that the Bundy Road property was owned by his brother, Fary Eboh, and that his brother received the rent from the property. Mr. Idris testified in the sworn statement that he managed the property for his brother and lived in one of the units. When questioned about this statement at trial, Mr. Idris denied recalling the statement, and denied that the property was in his brother’s name. The Act of Sale for the property, introduced in connection with Mr. Idris’ trial testimony, named Fary Eboh as the purchaser throughout the document and on the signature line. At trial, Mr. Idris claimed this was an error, but admitted that he signed the above the signature line that read “Fary Eboh”. He denied that he was Fary Eboh, and claimed that the notary erroneously provided the name Fary Eboh instead of Fab Idris, allegedly because the names sounded alike. He also claimed that another notary made the same mistake with respect to property on Curran Road in New | (¡Orleans. Mr. Idris also claimed that the notary made a mistake in identifying the purchaser as having never been married, when he had been married and divorced. During cross-examination, Mr. Idris admitted that, “I have, yes, I held myself as Fary Eboh after when this thing [Curran Road sale] was signed and I brought it and then it was signed and I bring it to somewhere and they want to know — they want to — after I show them that, hey, I’m Fab Idris, I’m Fab Idris. But it was an error in that thing.” He admitted that when he bought the property, he indicated that he was Fary Eboh, but then testified that he did not recall if he said that to the notary, or to anyone else. He then denied having any knowledge of how the two notaries obtained the name Fary Eboh. Ultimately, the trial judge asked Mr. Idris if he had a brother named Fary Eboh, to which Mr. Idris replied, “No,” and denied having told counsel for Allstate that he had such a brother. Counsel then presented Mr. Idris with the following language from Mr. Idris’ sworn statement: “I was making money but the rental property was not in my name. It is in the name of my brother ... Fary. “Furthermore, Mr. Idris was presented with his sworn deposition in which he was asked if he had a brother, Fary, to which Mr. Idris replied, “Yeah,” and verified the spelling of Farjfs name.

Mr. Idris also admitted on cross-examination that the 1997 and 1998 State Farm theft claims were made in the name of Fary Eboh, who was the named insured under the State Farm policy. The settlement checks were made out to Fary Eboh, but Mr. Idris admitted that he cashed them. The trial court then noted these multiple incidents in which Mr. Idris held himself out to be Fary Eboh, although he had denied under oath having done so.

With respect to the burglary that is the subject of the instant litigation, Mr. Idris admitted that although he locked the burglar bars on his front door, he did not 17lock the front door, although he testified that he lived in a “bad neighborhood”, where, he testified, three murders had been committed since August of 2005.

Ray William Talley testified at trial that he was the notary for an Act of Cash Sale from the Secretary of Housing and Urban Development to Fary Eboh for the Curran Road property. Mr. Talley testified that prior to execution of the Act of Sale, Mr. Idris identified himself as Fary Eboh, and told him that he had never been married. According to Mr. Talley, it was his business practice to require proof that the person who signs a notarial act is, in fact, the person named therein. Mr. Talley denied that he erroneously entered the name as Fary Eboh.

Mr. Idris called Althea Williams Folse, the Allstate adjuster assigned to his claim. She testified that she received Mr. Idris’ claim and the police report indicating that a theft had been reported by Mr. Idris. She testified that the policy requires the insured to attend an examination under oath and sign his sworn statement, which Mr. Idris refused to do. He also refused to comply with Allstate’s request to provide his accounting records, bills, invoices, and other vouchers, or certified copies, that the insurer reasonably requests to examine and copy.

Officer Patrick Hartman, the police officer who investigated the alleged burglary, testified that he has been a crime scene investigator for over eleven years. When he arrived at the Idris home, he observed a broken door or iron gate and ransacked premises. He called a crime lab unit to the scene. Mr. Idris did not call the crime lab investigator to testify at trial.

Officer Hartman flagged the police report, noting “Idris stated that he had homeowner’s insurance.” He testified that he flags reports in this manner whenever it is obvious to him that it is a case of insurance fraud.

|sFrom our review of the record in its entirety it is abundantly clear that the trial court’s conclusions are reasonable and supported by the record. Therefore, we affirm the judgment in favor of the defendant/appellee, Allstate Insurance Company.

AFFIRMED.


author: GREMILLION, Judge. SAUNDERS, Judge.

text:
    STATE of Louisiana v. Oterrel J. BOUTTE aka O'Terrel Boutte, aka O'Terrell Boutte, etc.
    No. KA 09-404.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 13, 2010.

      Michael Harson, District Attorney, Lafayette, LA, for Plaintiff/App ellee: State of Louisiana.
    Allan P. Haney, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee: State of Louisiana.
    William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant: Oterrel J. Boutte.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

h The Defendant, Oterrel J. Boutte, was convicted of monetary instrument abuse and then charged as a habitual offender. He entered a plea of not guilty. The parties stipulated Defendant had three pri- or felony convictions. The trial court subsequently adjudicated Defendant to be a habitual offender and sentenced him to twenty years at hard labor.

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is an error patent concerning the habitual offender proceeding. The trial court erred in failing to advise Defendant of his right to remain silent, the right to a hearing, and to have the State prove its case at the habitual offender proceeding.

At the habitual offender proceeding, the State introduced into evidence certified copies of Defendant’s pleas in three other matters to prove the existence of Defendant’s prior convictions. Counsel then stipulated that Defendant was properly identified as the person who had those prior convictions. The State offered no independent evidence or testimony to prove Defendant’s identity. The trial court subsequently found Defendant to be a multiple felony offender, and sentenced him to twenty years at hard labor.

In State v. Fletcher, 00-968, pp. 3-4 (La.App. 3 Cir. 12/6/00), 776 So.2d 1240, 1243, writ denied, 01-342 (La.12/14/01), 803 So.2d 986, this court, addressing an assigned error, discussed the pertinent case law on this issue:

While La. R.S. 15:529.1 does not specifically address the issue of a defendant’s right to remain silent, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted, on other grounds, 438 So.2d 1113 (La.1983), appeal after remand, 457 So.2d 1251 (La.App. 1 Cir.1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the supreme court concluded that the statute clearly recognizes that a defendant has the bright to remain silent and thus implicitly provides that a defendant should be advised by the trial court of this right before he acknowledges or confesses his status as an habitual offender. Thus, the trial court erred in failing to advise the defendant of this right before accepting his admission that he was the person who was convicted of the predicate offenses. The question is whether or not this is harmless error.

This very issue was addressed by the supreme court in State v. Harris, 95-0900 (La.5/19/95); 654 So.2d 680. In that case, the state introduced a sworn affidavit from a representative of the Department of Corrections to establish that the defendant was the same person who had been convicted of the predicate offenses. Additionally, the defendant’s counsel stipulated “in open court and in the presence of the [defendant]” that he was the same person. In an application for post-conviction relief, the defendant sought to have his adjudication as a multiple offender set aside because the trial court had failed to advise him of his rights as required by La. R.S. 15:529.1(D). In rejecting this argument, the supreme court stated:

Admissions of identity at a multiple offender hearing implicate the defendant’s Fifth Amendment privilege against self-incrimination. State v. Johnson, 432 So.2d 815 (La.1983). Nevertheless, multiple offender proceedings “simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence.” State v. Martin, 427 So.2d 1182, 1185 (La.1983). This Court has therefore declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty. Id., 427 So.2d at 1185, n. 7. In the absence of any allegation or showing that the admission was involuntary, compare State v. Johnson, supra, the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law. See, Holloway v. Lynaugh, 838 F.2d 792 (5th Cir.), cert. denied, 488 U.S. 838, 109 S.Ct. 104, 102 L.Ed.2d 80 (1988); State v. Firmin, 522 So.2d 1181 (La. App. 4th Cir.), writ denied, 532 So.2d 759 (La.1988).
Id. at 680.
The supreme court concluded that the petitioner was given a fundamentally fair hearing despite the fact that the trial court failed to advise him of his rights.

plead guilty to two unrelated charges in |sexchange for concurrent sentences with the habitual offender sentence. On appeal, he challenged his habitual offender adjudication and sentence on the ground that the trial court failed to advise him of his right to remain silent. The defendant admitted to identity and the state did not introduce any evidence to prove identity, However, relying on Harris and State v. Payne, 94-1628 (La.App. 3 Cir. 5/22/96), 677 So.2d 527, this court found the defendant’s hearing was fundamentally fair, thus, the error lacked merit. The facts of Fletcher reflected that the trial court advised the defendant of his right to a hear-In Fletcher, the defendant agreed to ing for the State to prove its ease, and the defendant waived the hearing.

In Payne, this court reached the conclusion that a proceeding was fundamentally fair even though the defendant was not advised of his right to remain silent in a habitual offender adjudication and despite the fact that the only evidence of his multiple offender status was his own admission. In doing so, the court made the following statement:

There have been no allegations or showing that the admission was involuntary. Defendant was represented by counsel at the hearing, he was informed of the allegations in the multiple offender bill and he was advised of his right to a hearing wherein the state would have the burden of proving he was the same person previously convicted of the predicate offense. Furthermore, the admission was part of a plea agreement and defendant was fully apprised of the sentence he was to receive.

Id. at 530.

The court in Payne referred to the Harris decision and concluded that the proceedings were fundamentally fair and met due process standards. In Payne, the defendant was advised by the trial court he had the right to a hearing, and the right for an attorney to represent him at the hearing. Additionally, the trial court advised the defendant, “You have a right to have the state come and prove that you are the Usame George Payne that had the other convictions,” and “[i]f you plead guilty and accept this at this time, then you’re waiving the right to that particular hearing, which |5would be with all due process and all the rest.” Id. at 529.

In State v. Boswell, 96-801 (La.App. 3 Cir. 2/12/97), 689 So.2d 627, this court found the habitual offender hearing was fundamentally fair despite the defendant’s admission of his status as a habitual offender without being informed of his right to remain silent and in the absence of additional evidence being presented to prove his status. In concluding the hearing was fundamentally fair, this court noted that the defendant was represented by capable counsel who explained the habitual offender charges to him and the defendant admitted his prior offense in the presence of his attorney “after being extensively informed of his right to a hearing where the State would have to prove his identity as a habitual offender beyond reasonable doubt.” Id. at 636. (emphasis added).

In State v. Roberson, 94-1570 (La.App. 3 Cir. 11/2/95), 664 So.2d 687, this court reversed a habitual offender adjudication, concluding that the proceeding was not fundamentally fair when the defendant was not advised of his right to remain silent and the state failed to introduce independent evidence of his identity before he admitted to his status as a habitual offender. Although the trial court advised the defendant he had the right to a trial where the state would have to prove beyond a | ¿reasonable doubt that he was the person that committed the prior crimes, this court pointed out that the trial court did not state that the defendant had the right to remain silent. Additionally, this court distinguished Harris because, unlike the affidavit introduced in Harris, “[n]o independent evidence or testimony was introduced to prove the defendant’s identity.” Id. at 690.

In State v. Coleman, 96-525 (La.App. 3 Cir. 10/7/98), 720 So.2d 381, this court distinguished Harris, and concluded that the defendant was not afforded a fundamentally fair hearing. The trial court did not advise the defendant of his right to remain silent or have the state prove its case. Before the defendant’s admission to his status as a habitual offender, the trial court stated, “ ‘[rjather than [having] a hearing on habitual offender, you admit to being a habitual offender....’” Id. at 387. No proof other than the defendant’s admission was offered to prove his status as a habitual offender.

In this case, Defendant was not advised of his right to remain silent, the right to a hearing, and to have the State prove its case, including identity. Defendant did not waive his right to the hearing. No independent evidence was introduced by the State to prove identity except for Defendant’s stipulation. Additionally, Defendant’s stipulation was not part of a plea bargain agreement. Consequently, we find that Defendant was denied a fundamentally fair hearing. Accordingly, Defendant’s habitual offender adjudication and enhanced sentence for the conviction of monetary instrument abuse is vacated and remanded for a new habitual offender hearing and | (¡resentencing.

ASSIGNMENTS OF ERROR

Defendant’s three assignments of error are addressed in appellate court docket number 09-583, as they pertained to Defendant’s underlying conviction.

DECREE

Defendant’s habitual offender adjudication and enhanced sentence on the conviction of monetary instrument abuse are vacated, and the matter is remanded to the trial court for a habitual offender hearing and resentencing.

SENTENCE VACATED, REMANDED FOR HABITUAL OFFENDER HEARING & RESENTENCING.

SAUNDERS, J., dissents with written reasons.

SAUNDERS, Judge.

hThe majority has concluded that we vacate the Defendant’s habitual offender adjudication and enhanced sentence and that we remand for a new hearing and re-sentencing. I disagree.

At the Defendant’s habitual offender proceeding, certified copies of the Defendant’s pleas in three other matters were used to evidence the Defendant’s status as a habitual offender. No independent evidence was used to prove his identity. The Defendant was informed of the allegations against him in the multiple offender bill that was read in open court. The Defendant was accompanied by an attorney at the proceeding, and said attorney stipulated that the Defendant was properly identified as the person who had the prior convictions. The court did not notify the Defendant that he had the right to remain silent or that he had the right to a hearing wherein the state would prove its case against him.

As noted in the majority opinion, the supreme court has not adopted a requirement similar to a Boykin colloquy in habitual offender proceedings. So long as there is not a showing that the admission was involuntary, the question comes down to whether the proceeding was fundamentally fair.

The present matter varies very little, if at all, from the scenarios in State v. Frazier, 99-780 (La.App. 3 Cir. 12/8/99), and State v. Roberson, 01-1171 (La.App. 8 Cir. 2/27/02), 809 So.2d 1173. In both cases, this court found the proceedings to be fundamentally fair despite a failure to advise the defendant of his right to remain silent and to a hearing. In State v. Payne, 94-1628 (La.App. 3 Cir. 5/22/96), 677 So.2d 527, another case similar in facts to the present matter, this court found the proceeding to be fundamentally fair despite an absence of independent evidence identifying the defendant. While no mention was made to his right to remain silent, |2the court did alert the defendant to his right to a hearing.

In the matter before us, I think great significance lies in the fact that the Defendant was accompanied by his attorney and that he was apprised of the charges against him by the reading of the multiple offender bill. I believe that there is nothing to suggest that the admission was involuntary, and I feel that the Defendant was given a fair hearing. For these reasons, I respectfully dissent from the majority opinion.

      . In State v. Frazier, an unpublished case bearing docket number 99-780 (La.App. 3 Cir. 12/8/99), this court noted as error patent that the defendant was not apprised of his right to silence and to have a hearing before he admitted his status as a habitual offender. After reviewing the pertinent case law, this court concluded the defendant was afforded a fundamentally fair hearing. The state introduced additional evidence to prove the existence of the defendant's prior guilty pleas, but no evidence to prove the defendant’s identity. The colloquy between the defendant and the court was not extensive, but defense counsel informed the court that the matter had been discussed with his client and the prosecutor informed the judge that the defendant was aware of his rights (with no objection from the defense). This court noted that the defendant admitted his status in the presence of his attorney and that the defendant did not allege that his admission was involuntary.

      . In State v. Quinn an unpublished opinion bearing docket number 06-1183 (La.App. 3 Cir. 2/7/07), the trial court failed to advise the defendant of his right to remain silent and to have the state prove the case against him at the multiple offender proceeding. The defendant stipulated that he was the same person convicted of the predicate offenses. The state presented no other evidence concerning the identity of the prior felony offender. This court, following Roberson and Coleman, vacated the defendant’s multiple offender sentence and remand the matter for resentenc-ing.