author: LOLLEY, J.

text:
    Milton D. BAMBURG, Plaintiff-Appellant, v. ST. FRANCIS MEDICAL CENTER and Dr. Lin Xiong, Defendants-Appellees.
    No. 45,024-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Donald L. Kneipp, for Appellant.
    Hayes, Harkey, Smith & Cascio by Bruce M. Mintz, Laura S. Achord, Monroe, for Appellee, St. Francis Medical Center.
    Hutson, Potts & Bernstein by Charles W. Herold, III, for Appellee, Dr. Lin Xiong.
    Before DREW, MOORE & LOLLEY, JJ.
   LOLLEY, J.

| ,In this medical malpractice case, plaintiff, Milton D. Bamburg, appeals the grant of two motions for summary judgment by the Fourth Judicial Court, Parish of Oua-chita, State of Louisiana, in favor of defendants, St. Francis Medical Center and Dr. Lin Xiong. For the following reasons, we affirm the trial court.

FACTS

Milton Bamburg saw neurosurgeon, Dr. Bernie McHugh, on June 21, 2005, complaining of gait disturbance, mild cervical pain, and memory loss that had been ongoing for three months. Dr. McHugh thought the symptoms were consistent with Normal Pressure Hydrocephalus (“NPH”) and ordered a CT of the head along with a cisternogram for further evaluation. Dr. Lin Xiong, a radiologist, performed the cisternogram at St. Francis Medical Center on July 5, 2005. Dr. Xiong injected an isotope agent that could not be visualized during the injection and the test was determined to be unsuccessful. Bam-burg was not charged for the cisternogram and he was rescheduled for the procedure on July 26, 2005. The second cisterno-gram, which was administered by Dr. Robert Golson, confirmed Dr. McHugh’s diagnosis of NPH.

Bamburg brought this action against St. Francis Medical Center (“St. Francis”) and Dr. Lin Xiong for medical malpractice alleging that the defendants breached the standard of care during the routine cister-nogram procedure. Specifically, Bamburg argues his diagnosis and treatment of NPH was delayed due to Dr. Xiong’s failure to administer the test correctly. He also argues that the hospital failed to give him discharge instructions |2advising him of the risks associated with the medication and administration of the wrong injection and reasons for the rescheduled procedure. On July 7, 2006, Bamburg filed a formal complaint with the Louisiana Patients’ Compensation Fund. A medical review panel (“MRP”) was convened and, in a unanimous opinion, found in favor of Dr. Xiong and St. Francis. On January 8, 2008, Bamburg filed the instant lawsuit.

On January 24, 2008, St. Francis forwarded written discovery to Bamburg seeking, in part, the identification of medical experts. On January 7, 2009, St. Francis filed a Motion to Compel discovery responses which was set for hearing on April 1, 2009. The hearing was continued to allow Bamburg additional time to respond to discovery. On April 29, 2009, defendants filed motions for summary judgment contending that plaintiff did not have a medical expert necessary to meet his burden of proof. The hearing was held June 17, 2009, where the trial court ultimately rendered summary judgments in favor of defendants. This appeal ensued.

LAW AND DISCUSSION

Appellate Jurisdiction

First, we must address whether Bamburg properly appealed both summary judgments that the trial court granted. St. Francis argues that Bamburg failed to appeal the judgment as it relates to the hospital and only took steps to appeal the judgment in favor of Dr. Xiong. According to the record, Bamburg filed a Motion for Appeal which stated:

A Judgment was rendered and signed on June 17, 2009, and filed on June 18, 2009, granting the Motion for Summary Judgment filed by defendant, Lin Xiong, MD, and dismissing the above entitled and numbered cause as to said defendant.
IsMovant desires to appeal devolutively from the Judgment described herein-above.
Wherefore, movant, Milton D. Bam-burg, prays that this Honorable Court grant a devolutive appeal from the Judgment rendered and signed on June 17, 2009, and filed on June 18, 2009, in the above entitled and numbered cause, the said Judgment being more fully described hereinabove.

The trial court signed the Order accompanying the Motion.

Louisiana C.C.P. art. 2121 states:

An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.
An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.
When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.

While the intent to appeal both judgments may have existed, it is not reflected in the Motion to Appeal where it specifically identifies Dr. Xiong.

Bamburg argues that both judgments were signed on the same day and St. Francis was not prejudiced in any way by not being included in the Motion to Appeal considering that they received notice. Our appellate jurisdiction is not based on whether the defendant was prejudiced or had notice. In Gardner v. Du-cote, 44,477 (La.App.2d Cir.04/02/09), 6 So.3d 1045, writ denied, 2009-1260 (La.09/18/09), 17 So.3d 978, both the insurance company and its affiliate company were parties to the same litigation, retained the same counsel, and had their claims adjudicated in adjudgment; however, the order of appeal was granted to only one entity which had no appealable interest. Although an attempt to amend the order was made at the trial court, this court found that it was ultimately an untimely appeal, “a jurisdictional defect which deprives the court of appeal and any other court the jurisdictional power and authority to reverse, revise or modify a final judgment.” Id. at 1047. Similarly, this court does not have jurisdiction if a valid appeal is not perfected. La. C.C.P. art. 2088. An order of appeal must be obtained for each final judgment the appellant seeks to appeal. See Clark v. Mangham, Hardy, Rolfs and Abadie, 30,-471 (La.App.2d Cir.02/24/99), 733 So.2d 43. In the instant case, the trial court clearly granted an Order to appeal the ruling against one defendant, Dr. Xiong, not St. Francis. As such, the appeal against St. Francis is not properly before us.

Standard of Review

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, 1999-2257 (La.02/29/00), 755 So.2d 226; Hinson v. Glen Oak Retirement Home, 34,281 (La. App.2d Cir.12/15/00), 774 So.2d 1134. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(B).

LThe burden of proof on a motion for summary judgment remains with the mov-ant. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant is not required to negate all the essential elements of the adverse party’s claim, action or defense. Id.; Hinson, supra. Rather, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Samaha, supra; Hinson, supra. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and movant is entitled to summary judgment. See La. C.C.P. art. 966(C)(2).

The plaintiff bears the burden of proving that a doctor committed malpractice. Wiley v. Lipka, 42,794 (La.App.2d Cir.02/06/08), 975 So.2d 726, writ denied, 2008-0541 (La.05/02/08), 979 So.2d 1284. Any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and, (3) a causal connection between the breach and the claimant’s injuries. La. R.S. 9:2794(A); Pfiffner v. Coma, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228; Wiley, supra.

The Louisiana Supreme Court has found that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. In Pfiffner, 643 So.2d at 1233, the supreme court explained, “Expert testimony is not required where the | ¡¡physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” See also Samaha, supra; Vinson v. Salmon, 34,582 (La.App.2d Cir.05/09/01), 786 So.2d 913. In most cases, however, because of the complex medical and factual issues involved, a plaintiff who does not present medical expert testimony will likely fail to sustain his burden of proving his claim under the requirements of La. R.S. 9:2794.

Motion for Summary Judgment

Bamburg’s primary issue on appeal is that there is a genuine issue of material fact, and therefore the trial court erred in granting the summary judgments in favor of defendants. Bamburg contends that Dr. Xiong committed medical malpractice in the administration of the cisternogram test.

In order to defeat Dr. Xiong’s motion for summary judgment, it is necessary for Bamburg to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Bamburg argues that Dr. Xiong committed medical malpractice during the routine test; unfortunately, Bamburg does nothing more then state allegations without evidence, specifically medical testimony, to support his claims. While there are occasions where an expert is not necessary, this is not one of them due to the complex medical and factual issues involved. A lay person has no personal knowledge of the standard of care applicable to a radiologist or the |7test involved. Bamburg insists that he did not have adequate time to retain a medical expert. The record is to the contrary and reflects that Bamburg had over a year to respond to discovery. Clearly, there was ample time to secure medical testimony. We find this argument unpersuasive.

Finally, Dr. Xiong’s motion for summary judgment is further supported by the MRP’s opinion where there was a unanimous finding that he did not fail to meet the applicable standard of care in his treatment of Bamburg. Specifically the MRP explained that:

The isotope injection of the patient for the cisternogram was performed by Dr. Xiong in an appropriate fashion with an attempt to inject the Indium 111 Pente-tate Agent into the thecal sac; however, this attempt failed and Dr. Xiong canceled and rescheduled the cisternogram, which was the appropriate thing to do.... On occasion the [Indium 111 Pentetate Agent] does not enter the the-cal sac, in which event the cisternogram procedure cannot be completed as said procedure is dependent upon the isotope being injected into the thecal sac. The fact that this occurs is not a deviation below the standard of care by Dr. Xiong or St. Francis Medical Center. The rescheduling of the cisternogram procedure three weeks later was appropriate in this case.

Bamburg failed to produce evidence to contradict these findings. Accordingly, while we are sympathetic to the inconvenience Bamburg experienced, after a review of the record, Dr. Xiong’s actions were not below the standard of care.

CONCLUSION

For the foregoing reasons, the trial court’s grant of Dr. Lin Xiong’s motion for summary judgment is affirmed. Costs are assessed against Milton Bamburg.

AFFIRMED.

      . St. Francis filed a motion seeking partial dismissal of the appeal based on this court's lack of jurisdiction; however, since the court does not have jurisdiction to provide such relief, the motion is denied as moot.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Lawrence GIPSON, Independent Executor for the Estate of Hazel Williams Gipson Lee, Plaintiff-Appellant, v. Donald Ray FORTUNE and Chase Home Finance, LLC, Defendants-Appellees.
    No. 45,021-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Dianne Hill, Monroe, for Appellant.
    Philip E. McQueen, for Appellee, Donald Fortune.
    McGlinchey Stafford, PLLC, by: Michael D. Ferachi, Jonathan G. Wilbourn, Jamie D. Seymour, Baton Rouge, for Ap-pellees, JP Morgan Chase Bank and Chase Home Finance.
    Before BROWN, PEATROSS, and MOORE, JJ.
   BROWN, Chief Judge.

11Plaintiff, Lawrence Gipson, Independent Executor for the Estate of Hazel Williams Gipson Lee, has appealed from the trial court’s judgment in favor of defendant, JP Morgan Chase Bank, which sustained the bank’s exception of no cause of action and dismissed with prejudice plaintiffs claim against Chase Bank. For the reasons set forth below, we affirm.

Facts and Procedural Background

On March 7, 2008, Gipson, as executor for the estate of his mother, filed suit against Chase Bank and his brother, Donald Fortune, seeking damages for the loss/diminished value of assets from the estate of Mrs. Lee. In his petition, Gipson alleged that he was the sole owner of all property comprising the estate of Mrs. Lee, who had died on June 27, 2007. Gip-son further averred that on March 8, 2000, Mrs. Lee entered into a $30,000 home equity line of credit (“HELOC”) with Bank One (Chase Bank’s predecessor), and that the HELOC was secured by real property owned by Mrs. Lee located at 2817 Murray Street in Monroe, Louisiana.

Gipson alleged that Mrs. Lee suffered from dementia and was mentally incapacitated at the time that she entered into the HELOC. Therefore, Bank One was negligent in issuing funds to Mrs. Lee based upon the fact that it “knew or should have known that she lacked capacity to enter into a contract.” Gipson sought to rescind the mortgage contract and promissory note executed by Mrs. Lee based upon the fact that they are null and void as they were entered into when she lacked mental capacity to contract. Gipson also asserted several separate claims against his brother, Fortune, for conversion and/or mismanagement of the assets of their mother 12prior to her death. Plaintiffs claims against his brother are still pending and not at issue in the instant appeal.

Chase Bank filed its answer and affirmative defenses on May 7, 2008, and thereafter, both parties began discovery. Neither Gipson nor Chase Bank was satisfied with the other’s responses (or lack thereof) in the discovery process. A motion to compel discovery was filed by Gipson on December 2, 2008, and was denied by the trial court following a hearing held on January 12, 2009, by judgment dated January 21, 2009.

Chase Bank filed an exception of no cause of action and a motion to determine the sufficiency of plaintiffs answers to requests for admissions on March 13, 2009, and a hearing on the exception and motion was set for May 18, 2009. According to Chase Bank, plaintiffs nullity action should be dismissed because Gipson had failed to allege any of the exclusive grounds for nullifying a contract of a non-interdicted decedent as required by La. C.C. art. 1926. Gipson filed a second motion to compel discovery on April 13, 2009, and a hearing on Gipson’s motion was set for June 19, 2009. Thereafter, plaintiff filed an opposition to the exception of no cause of action on April 30, 2009, admitting that while he had not alleged a cause of action to nullify the HELOC under La. C.C. art. 1926, he had made sufficient allegations to support a cause of action against Chase Bank for fraud and/or conversion.

Attorneys for both parties set forth them respective positions at the May 18, 2009, hearing on the exception and motion filed by Chase Bank. Plaintiff again admitted that his petition did not allege the elements of a|3cause of action under La. C.C. art. 1926, then stated “but it does not mean that they don’t exist, and it’s a little complicated.” The trial court queried why, if the elements existed, did plaintiff not provide this information in his discovery responses. Plaintiff contended that he did not have all of the information because of the ongoing discovery dispute with Chase Bank. The trial court noted that information about the four grounds for nullification under La. C.C. art. 1926, such as whether a petition to interdict Mrs. Lee had been filed, was available to plaintiff, and was not dependent upon any information Chase Bank had not already provided to Gipson.

Plaintiff then noted that he learned during the discovery process that no money had been disbursed under the 2000 HE-LOC, but that there was a second contract dated October 26, 2006, allegedly signed by Mrs. Lee, under which the $30,000 was disbursed. Plaintiff noted that they did not have any information about this subsequent document when the petition was filed in March 2008, and acknowledged his receipt of a copy of the second contract in July 2008. When asked by the trial court why the petition had not been amended after plaintiff obtained the subsequent contract in July 2008 to include any allegations related to this document, plaintiff asserted that there were other things involved, such as Mrs. Lee’s condition, which had to be gleaned from the voluminous nursing home records.

The trial court noted that, even if the court accepted as true plaintiffs allegation that Mrs. Lee was mentally incompetent to enter into the HELOC, the only cause of action for nullity of this contract was one under La. C.C. art. 1926. Because plaintiff had not alleged any of these grounds, and had |,[provided no argument to support his ability to do so, the trial court sustained defendant’s peremptory exception of no cause of action. The trial court next analyzed La. C.C.P. art. 934, and found that based upon plaintiffs counsel’s argument, plaintiff would not be able to amend his petition to state a cause of action under art. 1926, and that therefore allowing plaintiff an opportunity to amend his petition would be frivolous. Plaintiffs claims against Chase Bank were dismissed with prejudice, and this appeal ensued.

Discussion

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Veroline v. Priority One EMS, 09-1040 (La.10/09/09), 18 So.3d 1273; Scheffler v. Adams and Reese, LLP, 06-1774 (La.02/22/07), 950 So.2d 641. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. To determine whether the trial court in the instant case erred in granting Chase Bank’s exception of no cause of action, we accept all facts alleged in the petition as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court conducts a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency 15of the petition. Harrington v. Harrington, 43,373 (La.App.2d Cir.08/13/08), 989 So.2d 838.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. The four elements required for confection of a valid contract are: (1) the capacity to contract (La.C.C. art. 1918); (2) mutual consent (La.C.C. art. 1927); (3) a certain object (La.C.C. art. 1971); and (4) a lawful cause (La.C.C. art. 1966). Worley v. Chandler, 44,047 (La. App.2d Cir.03/04/09), 7 So.3d 38; Provenza v. Central & Southwest Semces, Inc., 34,-162 (La.App.2d Cir.12/15/00), 775 So.2d 84.

The general rule is that all persons are presumed capable of contracting, except those who have been declared incapable by law. La. C.C. art. 1918; Taylor v. Taylor, 32,517 (La.App.2d Cir.01/06/00), 755 So.2d 341; Standard Life & Accident Insurance Co. v. Pylant, 424 So.2d 377 (La.App. 2d Cir.1982), writ denied, 427 So.2d 1212 (La.1983); Julius Cohen Jeiveler, Inc. v. Succession of Jumonville, 506 So.2d 535 (La.App. 1st Cir.1987), writ denied, 511 So.2d 1155 (La.1987).

Attacks on contracts for lack of mental capacity are governed by La. C.C. art. 1919-1926. As a general proposition, contracts entered into by a noninterdicted deceased person may not be attacked. La. C.C. art. 1926 sets forth the exclusive grounds upon which a contract made by a noninterdicted person deprived of reason at the time of contracting may be attacked on the ground of incapacity. These grounds are: (1) when the contract is gratuitous; (2) when the contract evidences lack of understanding; (3) when the contract | (¡was made within 30 days of his or her death; and (4) when an application for interdiction was filed before his or her death. Taylor, supra.

In Atkins v. Bridgewater, 35,453 (La. App.2d Cir.12/05/01), 803 So.2d 290, the two surviving children of Ophelia Hunter filed suit to nullify a deed based upon Mrs. Hunter’s incapacity at the time the deed was executed. Plaintiffs also alleged that Mrs. Hunter did not execute the deed and that no price was paid to her. Trial was held and after hearing the evidence, the trial court on its own motion dismissed the nullity suit for failure to state a cause of action under La. C.C. art. 1926 and for failure to present clear and convincing evidence sufficient to overcome the presumption of capacity on the part of Mrs. Hunter.

On appeal, plaintiffs argued that the trial court erred in relying upon article 1926 in dismissing their claim. This court disagreed, noting that plaintiffs did not offer sufficient evidence of nonpayment (lack of consideration), and that the evidence and deed showed that the contract was not gratuitous. Atkins, 803 So.2d at 292. Furthermore, Mrs. Hunter was not interdicted, nor was there an application pending for her interdiction at the time the deed was executed. Id. The court noted that the deed was regular on its face and was executed many months before Mrs. Hunter’s death. Therefore, reasoned this court, article 1926 was properly applied by the trial court as a bar to plaintiffs’ attempt to annul the deed based upon their claim of lack of contractual capacity. Id.

The Fourth Circuit in In re Succession of Flanigan, 06-1402 (La.App. 4th Cir.06/13/07), 961 So.2d 541, affirmed the trial court’s grant of 17summary judgment in favor of the beneficiary of the decedent’s retirement account, noting that pursuant to La. C.C. art. 1926, a contract entered into by a (noninterdicted) person deprived of reason could only be attacked in the four circumstances set forth in article 1926.

Based upon the foregoing legal principles, and our de novo review of the record, particularly Gipson’s petition and the transcript from the hearing on the exception, we find no error in the trial court’s ruling sustaining the exception of no cause of action filed by Chase Bank. Plaintiffs petition contains no allegations of any of the four La. C.C. art. 1926 factors, and plaintiffs counsel conceded at the hearing that the elements of a cause of action for nullifying a contract under La. C.C. art. 1926 were not specifically alleged in the petition. Notwithstanding plaintiffs argument that he has been unable to amend his petition because of Chase Bank’s refusal to provide him with requested discovery materials, we observe that any information relative to whether plaintiff could allege one (or more) of the exclusive grounds set forth in article 1926 for nullifying Mrs. Lee’s contract/loan with Chase Bank was not necessarily within the scope of anything plaintiff could discover from the bank. In fact, Chase Bank has already provided Gipson with copies of both documents related to the HELOC, and plaintiff has not amended his petition to include allegations related to or arising out of the subsequent contract.

Plaintiff also contends that the trial court erred in dismissing his claim against Chase Bank with prejudice instead of without, and in refusing to allow him the opportunity to amend his petition to allege facts to support |sother causes of action. This assertion is without merit. La. C.C.P. art. 934 requires a trial judge to allow time for amendment of a petition if the grounds of the objection may be removed by amendment. Batson v. Cherokee Beach and Campgrounds, 428 So.2d 991 (La.App. 1st Cir.1983), writ denied, 434 So.2d 1092 (La.1983).

Our review of the initial petition contains one claim against Chase Bank-namely, that Gipson sought to rescind the mortgage contract and promissory note related to the HELOC on the basis that his mother lacked mental capacity to enter into a contract at the time the documents were executed. There are no allegations of fact in the petition which would support any other cause of action against Chase Bank and the trial court did not err in denying plaintiff the opportunity to amend based upon specious arguments to the contrary.

Conclusion

For the reasons set forth above, the trial court’s judgment sustaining the exception of no cause of action filed by Chase Bank and dismissing with prejudice plaintiffs claims against the bank is affirmed. Costs are assessed to plaintiff-appellant, Lawrence Gipson, Independent Executor for the Estate of Hazel Williams Gipson Lee.

      . However, evidence admitted without objection may be viewed as an enlargement of the pleadings and considered as such. Sterling v. Jones, 255 La. 842, 233 So.2d 537 (1970); Touro Infirmary v. American Maritime Officer, 09-0697 (La.App. 4th Cir. 11/09/09), 24 So.3d 948 Teague v. St. Paul Fire and Marine Insurance Co., 06-1266 (La.App. 1st Cir.04/07/09), 10 So.3d 806, writ denied, 09-1030 (La.06/17/09), 10 So.3d722.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Duncan E. HICKS, Appellant.
    No. 45,001-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Brian Harkins, Allen Harvey, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

| Appealing his sentence of 10 years at hard labor for armed robbery, the defendant, Duncan E. Hicks, argues that it should be reversed due to unreasonable delay from the time of his guilty plea to the sentencing and excessiveness. Finding no merit to his arguments, we affirm.

FACTS

On October 3, 1997, the defendant and three accomplices robbed the Central Bank in Monroe, Louisiana. The defendant was charged with armed robbery and pled guilty as charged on September 25, 1998. The plea agreement provided for a sentencing cap of 20 years. Before he could be sentenced, the defendant escaped. A warrant was issued for his arrest on January 20, 1999, and he was entered in the National Crime Information Center (“NCIC”) database. A warrant report of the Ouachita Parish Sheriff’s Office states that the district attorney would extradite the defendant once found.

Soon after his escape, the defendant was involved in another bank robbery and arrested in Nashville, Tennessee on January 27, 1999. He was subsequently sentenced to 10 years in federal prison. The Ouachi-ta Parish Sheriffs Office received detainer action letters from the Federal Bureau of Prisons on May 8, 2000, May 21, 2003, and June 2, 2003, stating where the defendant was being housed and his projected release date. The defendant wrote to the Fourth Judicial District Court in May 2004, complaining of “insufficient counseling” and requesting appointment of a public defender. |gHe wrote again in April 2005, making the same request and advising that he was trying to get concurrent sentences. A response in May 2005, from Judge Benjamin Jones informed the defendant that his information was being provided to the district attorney.

No action was taken to sentence the defendant until his release from federal prison in October 2008, when he was transferred to Louisiana. Sentencing occurred on December 10, 2008. The district court imposed a sentence of 10 years at hard labor without the benefits of probation, parole, or suspension of sentence. The defendant was given credit for time served prior to his escape, and the state did not pursue the escape charge.

Asserting an unreasonable delay in sentencing and excessiveness of the sentence, the defendant filed motions to quash and to reconsider the sentence. After initially denying the motions, the district court granted a hearing but ultimately denied the motions upon finding that the delay in sentencing was neither unreasonable nor prejudicial to the defendant. The defendant now appeals.

DISCUSSION

Delay in Sentencing

The defendant argues that the delay in sentencing was unreasonable, unjustified and prejudicial considering that he was available for sentencing from the date of his arrest in Tennessee on January 27, 1999. He asserts that he did not conceal his whereabouts and even wrote to Ouachita Parish officials to seek disposition of his case. He also claims that he was prejudiced by the detainer placed on him by the state, which caused him to | sbe ineligible for community confinement while in federal prison and to be deprived of having his federal and state sentences run concurrently.

La. C. Cr. P. art. 874 states:

Sentences shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.

Even when a delay in sentencing may be unreasonable, the defendant is not entitled to have his conviction and sentence set aside unless he has been prejudiced by the delay. La. C. Cr. P. art. 921; State v. Johnson, 363 So.2d 458 (La.1978); City of Winnfield v. Weems, 545 So.2d 717 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1319 (La.1989). The mere passage of time while a defendant is serving a subsequent sentence does not automatically render a delay unreasonable or prejudicial. State v. Hancock, 1999-293 (La.App. 3d Cir.11/24/99), 748 So.2d 549. Rather, the burden is on the defendant to prove he was prejudiced by the delay. Id.

In order to determine whether a delay was unreasonable or prejudicial, a flexible approach is used in which all the circumstances are evaluated on a case-by-case basis. State v. Duncan, 396 So.2d 297 (La.1981); City of Baton Rouge v. Bourgeois, 380 So.2d 63 (La.1980).

The record shows that the defendant pled guilty on September 25,1998, but was not sentenced until December 10, 2008. The delay was in part caused by the defendant escaping from jail in Ouachita Parish and then committing another bank robbery and being arrested in Tennessee. However, the state had notice of his whereabouts possibly as early as his arrest in Tennessee on January 27, 1999, and certainly as early as May 2000, |4 through a detainer action notice from the U.S. Bureau of Prisons. The defendant also wrote letters in May 2004, and April 2005, seeking appointment of counsel and sentencing. Yet no attempt was made by the state to initiate sentencing until the defendant’s release from federal prison in 2008.

Even if we consider this delay of approximately 10 years, though partly the fault of the defendant, to be unreasonable on the facts of this matter, an unreasonable delay in sentencing does not justify reversal of the conviction and sentence unless the defendant was prejudiced by the delay. The defendant argues that he was prejudiced because the detainer placed on him, in lieu of bringing him back for sentencing, caused him to receive a higher security designation which made him ineligible for a community placement. In Hancock, supra, the third circuit concluded that the defendant was prejudiced by an eight-year delay in sentencing because the detainer placed against him while in federal prison prevented him from being eligible for parole to a halfway house. The defendant relies on Hancock, supra, and a letter from Candace Girouard, a federal employee with the Dallas Community Corrections Office, stating that her office “will not place inmates in a Residential Re-entry Center if he/she has unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement.” The defendant also argues that he was prejudiced because he did not have the opportunity to have his federal and state sentences run concurrently.

| Neither the defendant’s evidence nor arguments about the potential prejudice that may have resulted from the delay in sentencing prove that he suffered any actual prejudice. The defendant offered no evidence of what his security designation would have been if he had been sentenced earlier on the armed robbery charge in Louisiana. There is no evidence that this defendant, an escapee found guilty of two armed robberies, would have been given a lower security designation in the absence of a detainer or if he had been sentenced sooner by the state. We are not persuaded to follow the third circuit’s finding of prejudice in Hancock, supra.

With regard to the possibility of concurrent sentences, this is merely conjecture by the defendant rather than proof of prejudice. While there may have been the possibility of having the federal and state sentences run concurrently, neither the federal court nor the state district court would have been required to order its sentence to run concurrently with the other. See 18 U.S.C. § 3584 and La. C. Cr. P. art. 883.1.

The defendant has not met the burden of proving that he was prejudiced by the delay of approximately 10 years between his plea and the sentencing. Thus, reversal of his conviction and sentence is not warranted.

| zExcessiveness of Sentence

The defendant also argues that his sentence of 10 years at hard labor is excessive. However, the sentence was imposed in conformity with an agreed upon sentencing cap of 20 years.

Where a specific sentence or sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved. La. C. Cr. P. art. 881.2(A)(2). Moreover, there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Fizer, 43,271 (La.App.2d Cir.6/4/08), 986 So.2d 243; State v. Bailey, 40,098 (La.App.2d Cir.10/26/05), 914 So.2d 116, writ denied, 2006-0462 (La.9/22/06), 937 So.2d 377.

The record shows that the trial court advised the defendant of the time limits for an appeal immediately after sentencing him. However, the transcript of the plea colloquy shows that at the time of the plea the trial court specifically advised the defendant that by pleading guilty with a sentencing cap he would be giving up his right to appeal. The record shows that the defendant did not reserve the right to appeal his sentence as part of the plea agreement. See State v. Young, 1996-0195 (La.10/15/96), 680 So.2d 1171; State v. Taylor, 44,205 (La.App.2d Cir.5/13/09), 12 So.3d 482. Thus, the defendant’s sentence imposed in conformity with the plea agreement is not appealable.

Moreover, even if reviewed for ex-cessiveness, the sentence of 10 years would not be considered excessive under the facts of this case. The | defendant traveled from California to Louisiana where he engaged in a bank robbery. The commission of the armed robbery endangered lives and terrified the bank employees and customers present during the robbery. The defendant faced a maximum of 20 years at hard labor under his plea agreement, which gave him the great benefit of avoiding exposure to the statutory maximum of 99 years at hard labor. La. R.S. 14:64(B). A sentence of 10 years at hard labor, which is now the statutory minimum for armed robbery, does not shock the sense of justice or constitute a needless infliction of pain and suffering on the defendant. See State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. Though the trial judge was not required to do so in light of the sentencing cap, he did consider La. C. Cr. P. art. 894.1 and addressed the factors he weighed in imposing the sentence. The trial judge clearly did not abuse his discretion in sentencing this defendant. We find no merit to the argument that the sentence is excessive.

CONCLUSION

For the reasons stated, the defendant’s conviction for armed robbery and sentence of 10 years at hard labor without the benefits of probation, parole, or suspension of sentence and with credit for time served prior to the escape is affirmed.

AFFIRMED.

      . For additional facts relating to the armed robbery, see State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288, affirming the conviction of co-defendant John P. Roddy.

      . Both provisions make clear that the sentencing court has discretion in imposing concurrent sentences. As staled in IS U.S.C. § 3584, "Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” The article makes clear that a term of imprisonment imposed on a defendant who is already subject to an undischarged term of imprisonment may run concurrently or consecutively. La. C. Cr. P. art. 883.1 provides that the court may specify whether "the sentence imposed may be served concurrently with a sentence imposed by a federal court ... and that service of the concurrent terms of imprisonment in a federal correctional institution ... shall be in satisfaction of the sentence imposed in this state....”


author: GASKINS, J.

text:
    STATE of Louisiana In the Interest of the Minor Children R.L.T. AND S.A.T.
    No. 45,168-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Brad Smitherman, for Defendant-Appellant S.M.T.
    Pamela Harper-Jacob, Department of Social Services, for Plaintiff-Appellee Department of Social Services.
    Margherita McWilliams, Legal Services of North La., Inc., for the Minor, Children R.L.T. and S.A.T.
    William Allen Haynes, for Defendant-Appellee W.A.F.
    Ark Daniel Frederick, Shreveport, Curator Ad Hoc for Defendants-Appellees John Doe and any Unknown Fathers of R.L.T.
    Before STEWART, GASKINS and MOORE, JJ. GASKINS, J.
   GASKINS, J.

11 S.M.T., the mother of S.A.T. and R.L.T., appeals from a trial court judgment terminating her parental rights and releasing the children for adoption. For the following reasons, we affirm.

FACTS

S.M.T. is the mother of S.A.T. (born in 2002) and R.L.T. (born in 2004). S.A.T.’s father is W.A.F. He is currently incarcerated in this state serving a 45-year sentence for attempted first degree murder. R.L.T.’s father is unknown. On April 18, 2007, the Louisiana Department of Social Services (DSS) received a report of abuse or neglect regarding the children. The mother had been arrested on drug charges at her boyfriend’s house. The children were left with her boyfriend’s relatives. Later, an unrelated friend of the maternal grandmother went to the house, at the grandmother’s request, and took the children.

The DSS obtained an oral instanter order from the trial court on April 18, 2007, removing the children from the custody of the friend and placing them in the custody of the DSS under foster care. The children were adjudicated in need of care on July 2, 2007. At the hearing, the mother stipulated that the children were in need of care.

The original goal of the DSS was to reunify the children with their parents. The DSS devised several case plans for the mother to work through to achieve reunification. As a result of her arrest on drug charges, the mother pled guilty to possession of Schedule II CDS on August 7, 2007. She was sentenced to four years at hard labor. It appears that the sentence was suspended and she was placed on two years’ supervised probation with |2special conditions. The mother did not fully comply with the conditions of her probation. On October 30, 2007, she was ordered to serve 90 days for a probation violation and was then placed back on probation. Although not clear from the record, it appears that the mother had another probation violation and eventually was ordered to serve a portion of her sentence.

According to the DSS, the mother was in and out of jail during the time that the case plans for reunification were in place. Some of her requirements included completing parenting classes; attending a psychological evaluation and possible treatment; providing stable housing with working utilities; providing medical care for the children in a timely fashion; avoiding criminal activity upon being released from prison; submitting to a substance abuse assessment and completing any recommended treatment; submitting to random drug testing; visiting the children bimonthly; contributing financially to the children or providing token gifts for birthdays, etc.; keeping the case manager aware of any changes in her home such as financial status, employment status, and changes in address or phone numbers; providing the case manager with the names and addresses of family and/or friends for possible placement of the children other than foster care; and allowing the case manager to visit her home announced and unannounced.

The mother managed to complete parenting classes while incarcerated, but did not comply with any of the other requirements of the case plan. She refused to appear for drug testing or a psychological evaluation which had been arranged for her. She did not keep the case ^manager informed as to her whereabouts. The one time that she did appear for visitation, she arrived late. She did not contribute financially to the children.

S.A.T.’s father was unable to comply with any case plan for reunification due to his lengthy incarceration. R.L.T.’s father is unknown. The DSS made efforts to determine the identity of the child’s father, but was unable to do so. The mother offered no assistance in determining the identity of R.L.T.’s father.

On April 30, 2009, more than two years after the children were taken into custody, the DSS filed a petition for the involuntary termination of parental rights and certification for adoption. The DSS alleged that the children had been in the custody of the DSS for more than one year pursuant to a court order and there was no substantial parental compliance with the case plan. According to the DSS, there was no reasonable expectation of significant improvement in the parents’ condition or conduct in the near future. The DSS asserted that the best interest of the children required termination of the parental rights in order to allow the children to be freed for adoption.

A hearing on the termination of parental rights began on July 15, 2009. The hearing was reconvened on September 14, 2009. On that date, W.A.F. stipulated that he agreed to the termination of his parental rights to S.A.T.

On September 18, 2009, the court put reasons on the record, in open court, finding that when the mother was not in jail, she did not comply with the Lease plan. Therefore, the trial court terminated her parental rights as to the children. On September 21, 2009, a judgment was filed, terminating the mother’s parental rights to S.A.T. and R.L.T., terminating W.A.F.’s parental rights as to S.A.T., and terminating the parental rights of the unknown father as to R.L.T.

The mother appealed. She argues that the trial court erred in terminating her parental rights without first requiring the DSS to demonstrate that reunification efforts were not required as set forth in La. Ch. C. ai't. 672.1. She also contends that the trial court erred in terminating her parental rights to R.L.T. and S.A.T. based upon a finding that the requirements of La. Ch. C. art. 1015(4), (5), or (6) had been satisfied.

COMPLIANCE WITH LA. CH. C. ART. 672.1

The mother claims that the trial court erred in terminating her parental rights ■without first requiring the DSS to file and prove a La. Ch. C. art. 672.1 motion. This article allows the DSS to bypass the reunification efforts under certain circumstances. The mother believes that this article is a threshold requirement before her parental rights can be terminated. This argument is without merit.

Legal Principles

La. Ch. C. art. 672.1 provides:

A. At any time in a child in need of care proceeding when a child is in the custody of the department, the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required.
B. The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not | ¿required, considering the health and safety of the child and the child’s need for permanency.
C. Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that:
(1) The parent has subjected the child to egregious conduct or conditions, including but not limited to any of the grounds for certification for adoption pursuant to Article 1015.
(2) The parent has committed murder or manslaughter of another child of the parent or has aided or abetted, attempted, conspired, or solicited to commit such a murder or manslaughter.
(3) The parent has committed a felony that results in serious bodily injury to the child or another child of the parent.
(4) The parental rights of the parent to a sibling have been terminated involuntarily.
D. If the court determines that reunification efforts are not required, it shall document that determination by written findings of fact. A permanency hearing, which considers in-state and out-of-state permanent placement options for the child, may be conducted immediately and shall be conducted within thirty days after the determination.

This article is permissive and not mandatory. It provides that the DSS “may” file a motion for a judicial determination that efforts to reunify the child and parent are not required. State ex rel. H.M. v. T.M., 44,446 (La.App. 2d Cir.5/6/09), 12 So.3d 409. It does not compel the DSS to file a motion for a judicial determination that efforts to reunify the family are not required. State ex rel. P.A.P., 44,221 (La.App. 2d Cir.2/4/09), 4 So.3d 182.

Discussion

Under the facts of this case, La. Ch. C. art. 672.1 has no application. The comments to the article indicate that it is designed for use when reunification is not a viable, realistic option. The article recognizes that in |,¡such circumstances, lengthy delays in permanent placement of a child may result in psychological damage.

In this ease, the DSS was not proceeding under La. Ch. C. Art. 672.1. Rather, the DSS made extensive efforts at reunification and made a shift in the case plan to termination of parental rights and adoption only after the mother failed to comply with her case plan after ample time and opportunities were presented. The DSS is proceeding in this matter under La. Ch. C. Art. 1015, not La. Ch. C. Art. 672.1. Therefore, the DSS was not required to seek a judicial determination that efforts to reunify the family were not required. The mother is simply erroneous in arguing that the article is applicable to this case. There is no trial court error in this regard.

COMPLIANCE WITH LA. CH. C. ART. 1015

The mother claims that the trial court erred in terminating her parental rights to R.L.T. and S.A.T. based upon a finding that the requirements of La. Ch. C. art. 1015(4), (5), or (6) had been satisfied. She maintains that the DSS failed to show what efforts were made by the DSS to assist her in complying with the case plan while incarcerated. She stated that she could provide only limited contact or support while incarcerated and no attempts were made by the DSS to facilitate visitation. She claims that there was no evidence of her ability to provide financially for the children. She also contends that she could not comply with the case plan because of her addictions. Therefore, she argues that the trial court erred in terminating her parental rights to the children.

17Legal Principles

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79; State ex rel. C.M.M. v. T.P.M., 42,238 (La.App. 2d Cir.5/9/07), 957 So.2d 330; State ex rel. A.D.W., 43,012 (La.App. 2d Cir.1/9/2008), 974 So.2d 137.

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. Parents have a natural, fundamental liberty interest to the continuing companionship, care, custody, and management of their children. These interests warrant great deference and require full, vigilant due process protection that fair procedure be followed when the state seeks to terminate the parent-child legal relationship. Balanced against those protections is the child’s profound interest in terminating parental rights which prevent adoption, and hamper the establishment of secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing the parents’ and the child’s interests, the courts of this state have consistently found the interests of the child to be paramount over those of the parents. State ex rel. C.M.M. v. T.P.M., supra.

The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, Land mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the state remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. S.M.W., 2000-3277 (La.2/21/01), 781 So.2d 1223; State ex rel. C.M.M. v. T.P.M., supra.

Although there are several statutory grounds for involuntary termination of parental rights set forth in La. Ch. C. art. 1015, only one ground need be established. State ex rel. S.C.M., 43,441 (La.App. 2d Cir.6/4/2008), 986 So.2d 875; State ex rel. J.W.M., 44,513 (La.App. 2d Cir.6/24/2009), 15 So.3d 1218. According to La. Ch. C. art. 1015(4),(5), and (6), the grounds for termination of parental rights include:

(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or | ^communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.
(6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

The petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. C.M.M. v. T.P.M., supra. Even upon finding that the state has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interest. State ex rel. C.E.C. v. D.M.D.B., 40,409 (La.App. 2d Cir.9/28/05), 912 So.2d 418; State ex rel. C.M.M. v. T.P.M., supra.

La. Ch. C. art. 1036, which addresses proof of parental misconduct, provides in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
| m(l) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

The state must prove that the parent is unfit to retain parental control and that there is no reasonable expectation of reformation in the foreseeable 1 nfuture in order to obtain termination of parental rights when the child has been removed for the parent’s home. State ex rel. B.H. v. A.H., 42,864 (La.App. 2d Cir.10/24/07), 968 So.2d 881.

The issue of parental compliance with a case plan, the parent’s expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a proceeding for termination of parental rights. An appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State ex rel. C.E.C. v. D.M.D.B., supra; State ex rel. S.S.S., 39,047 (La.App. 2d Cir.8/18/04), 880 So.2d 153; State ex rel. C.M.M. v. T.P.M., supra.

Children have a need for permanency. Forcing children to remain in foster care indefinitely, when there is no hope of reuniting them with them families, runs afoul of the state and federal mandates to further the best interests of the child. State ex rel. C.E.C. v. D.M.D.B., supra; State ex rel. C.M.M. v. T.P.M., supra; State ex rel. A.D.W., supra.

Discussion

The initial portion of the hearing on the termination of parental rights was held in July 2009. The mother was incarcerated at that time. However, she was present in court. She had been transported to court from jail. At the hearing, Joanna Morgan-Huckabee, the child welfare specialist serving as the case manager, testified regarding the mother’s noncompliance with her case plan. The mother began parenting classes while incarcerated. She did not complete the course during her first incarceration, but did finish 112during a subsequent incarceration. Ms. Morgan-Huckabee stated that the mother was out of jail for a three-month period and then for a five-month period during the time the DSS sought reunification. During the time that she was not incarcerated, the mother refused to go to a psychological evaluation. She missed a second appointment because she had gone back to jail. The case worker stated that the mother had not contributed financially to the children and did not go to scheduled drug assessment or random drug tests.

When the mother was not incarcerated, she failed to keep the case worker informed of her whereabouts. At one point, the mother’s telephone was disconnected. After conducting a records check in June 2008, the case worker found that the mother was back in jail.

While out of jail, the mother was supposed to see the children twice a month. Although transportation was arranged, she failed to show up. On the one occasion that she appeared, the mother was late for visitation. The case worker testified that the mother could have gone to medical appointments with the children when she was not incarcerated, but the DSS could not locate her.

Ms. Morgan-Huckabee testified that the mother was released from jail at the end of July 2009. The mother was informed of the second hearing date in September 2009, but did not appear. At the hearing in September 2009, the case worker outlined the mother’s failure to attend drug assessment and random drug tests, and her failure to go for a psychological evaluation. The case worker said that she had notified the mother of the | ^appointments and had spoken to her on the phone and still she failed to attend. Ms. Morgan-Huckabee stated that the mother attended one family visit, but showed up 30 minutes late. The mother also failed to attend a family planning meeting. Ms. Morgan-Huckabee stated that she visited the address furnished by the mother as her residence, but no one came to the door or answered the telephone. According to the case worker, the mother now has a third child who was about nine months old. That child is also in the custody of the DSS.

The record shows that the DSS clearly established grounds for the termination of the parental rights of the mother to S.A.T. and R.L.T. by clear and convincing evidence. The mother complains that the DSS did not provide evidence of efforts to assist her in achieving her case plan. She claims that the DSS failed to provide opportunities for visitation when she was incarcerated and provided no help in dealing with her addictions. However, the record shows that the DSS set up appointments for a psychological evaluation and drug abuse assessment. The mother refused to attend the appointments. Therefore, the mother’s argument that she was not given help with her addictions is unfounded.

Further, the mother was not incarcerated the entire time that the children were in the custody of the DSS. When the mother was not incarcerated, the DSS set up opportunities for visitation with the children and provided transportation. In several instances, the mother failed to appear. On the one visit that she attended with the children, the mother | ^arrived 30 minutes late. The mother’s complaint that she was not given help in visiting the children is not supported by the record.

The record shows that the mother completed parenting classes while incarcerated. However, when she was not in jail, she was uncooperative with the DSS and failed to take any necessary steps to regain custody of the children. The mother failed to keep the DSS apprised of her whereabouts and significant changes affecting her ability to comply with the case plan. Most notable is the fact that the mother was informed of the second hearing date and failed to appear. She was present at the first hearing because she was incarcerated and was brought to the hearing from jail.

The DSS proved by clear and convincing evidence that the children were in state custody for more than one year and that the mother did not substantially comply with the case plan for reunification. The DSS further carried its burden of showing that there is no reasonable expectation of significant improvement in the mother’s condition in the near future. The mother’s criminal conviction points to substance abuse which renders her unable or incapable of exercising parental responsibilities without exposing the children to a substantial risk of harm, based upon her established pattern of behavior. The mother has also exhibited a pattern of repeated incarceration that has rendered her unable to care for the immediate and continuing physical and emotional needs of the children for extended periods of time.

The DSS has proven that the best interest of the children requires the termination of the parental rights of the mother, freeing the children for adoption. The trial court did not err in ordering the termination of the 115parental rights of the mother to S.A.T. and R.L.T., releasing the children for adoption.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court, terminating the parental rights of the mother to S.A.T. and R.L.T., releasing the children for adoption. Costs in this court are assessed to the mother.

AFFIRMED.


text:
    The GREEN CLINIC, L.L.C., Plaintiff-Appellee v. James S. FINLEY and James S. Finley, M.D. A Professional Medical Corporation, Defendants-Appellants James S. Finley, M.D., Plaintiff-Appellant v. The Green Clinic, L.L.C., Defendant-Appellee.
    Nos. 45,140-CA, 45,141-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Breazeale, Sachse <& Wilson by Jude C. Bursavich, Emily B. Grey, Carroll Devillier, Baton Rouge, for Appellants.
    Bleich & Burnett by E. Joseph Bleich, Ruston, Cook, Yancey, King & Galloway by Sidney E. Cook, Jr., Stephen P. Barker, Michael D. Lowe, Shreveport, for Ap-pellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

11 James S. Finley (Dr. Finley) and James S. Finley, M. D., A Professional Medical Corporation (the “corporation”), appeal a judgment granting injunctive relief in favor of The Green Clinic, L.L.C., (“TGC”), to enforce a noncompetition clause included in TGC’s Operating Agreement. At issue is whether the trial court erred in applying the law in effect on September 1, 2003, when Dr. Finley assigned his interest in TGC to his professional medical corporation, to interpret the noncompetition clause in TGC’s Operating Agreement. For reasons explained in this opinion, we affirm the trial court’s judgment.

FACTS

Dr. Finley is an orthopaedic surgeon who has practiced with TGC since 1987. Though TGC was first organized as a partnership, it began operating as a limited liability company on January 1, 1994, when its members signed TGC’s Operating Agreement. An operating agreement is any written or oral agreement by the members of a limited liability company memorializing its affairs and the conduct of its business. La. R.S. 12:1301(A)(16). TGC’s Operating Agreement includes a noncompetition clause at Section 11.3.

Over the years the Operating Agreement has been amended and restated, both in whole and in part, with TGC’s members signing each new version or amendment. The version of the Operating Agreement relevant to this dispute became effective as of February 25, 2003. The noncompetition clause at Section 11.3 states:

No individual Member or professional employee of a corporate Member shall engage, directly or indirectly in the ownership, [¡¡.management or operation of a medical office building or provision of physician services at any medical or health care facility providing services substantially similar to those provided by the Organization within Lincoln Parish, Jackson Parish, Bienville Parish, Union Parish, and all of Ouachita Parish West of the Ouachita River for a period twenty-four (24) months after any termination of those Member’s interest in the Organization. This non-competition clause is made by the Members in consideration of the purchase of their interest in the Organization upon withdrawal for any reason and in consideration for the relief from the Organization’s liabilities upon withdrawal (other than Member’s malpractice liability for the Member’s own conduct). The Members acknowledge that a remedy at law for breach of this covenant is inadequate, and that the Organization shall be entitled to specific performance and injunctive relief against a former individual Member or professional employee of a corporate Member.

On September 1, 2003, Dr. Finley transferred his membership interest in TGC to his corporation. The document entitled “TRANSFER OF INTEREST IN THE GREEN CLINIC, L.L.C,” provides:

WHEREAS, Finley is a Member of the Clinic owning a 3.33% interest in the Clinic; and
WHEREAS, Finley desires to transfer his entire interest in the Clinic to Corporation; and
WHEREAS, the Clinic has no objection to substituting Corporation in place of Finley as a Member of the Clinic in all respects.
NOW, THEREFORE, the parties agree as follows:
1. As of the effective date hereof, Finley has transferred his entire membership interest in the Clinic to the Corporation and the Corporation is substituted as a full Member of the Clinic in Finley’s place.
2. Corporation agrees to be bound by all of the terms and conditions of the Clinic’s Operating Agreement, as amended.

The transfer agreement is signed by TGC’s Medical Director, Randy McWhorter; by James S. Finley, M.D.; and by James S. Finley, M.D., as President of James S. Finley M.D., A Professional Medical Corporation.

|sBy letter dated June 1, 2009, Dr. Finley informed TGC of his intent to resign and to become an “employed physician of Community Health Systems as of 9/1/2009.” Community Health Systems owns the Ruston Clinic, L.L.C., where Dr. Finley would be employed as an ortho-paedic surgeon, and Northern Louisiana Medical Center, where Dr. Finley would perform the majority of his surgeries. These facilities are located within walking distance from TGC. Dr. Finley would be in direct competition with TGC.

On June 16, 2009, TGC filed a petition for injunctive relief and a declaratory judgment against Dr. Finley and his corporation. TGC alleged that Dr. Finley’s plan to become an “employed physician” of Community Health Systems violated Section 11.3 of the February 25, 2003, Operating Agreement. TGC later amended its petition to allege that when Dr. Finley transferred his interest in TGC to his corporation on September 1, 2003, the corporation agreed to be bound by the terms and conditions of TGC’s Operating Agreement.

Seeking a declaratory judgment that his employment would not violate Section 11.3, Dr. Finley filed his own petition against TGC. He asserted that the noncompete clause in Section 11.3 is governed by the law in effect February 25, 2003, when he signed that version of the Operating Agreement. Citing La. R.S. 23:921 as interpreted by SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294, Dr. Finley asserted that he would not be in violation of Section 11.3 if employed as a physician by a competing practice.

| ,[The two suits were consolidated for trial, with TGC’s request for preliminary and permanent injunctions heard together at the parties’ request. Dr. Finley, Dr. Randy McWhorter; and Doug Sills, the CEO of Northern Louisiana Medical Center, testified and numerous exhibits were entered into evidence. Rendering judgment in favor of TGC, the trial court permanently enjoined Dr. Finley from working as an employed physician for a period of 24 months from September 1, 2009, in compliance with the noncompete clause in TGC’s Operating Agreement.

The trial court’s written reasons for judgment concluded that “James S. Finley, M.D., A Professional Medical Corporation, was never an original party to the February 24, 2003 agreement.” Rather, on September 1, 2003, Dr. Finley’s professional medical corporation became a member of TGC and agreed to be bound by the terms and conditions of TGC’s Operating Agreement. This created a new contract governed by La. R.S. 23:921 as amended on August 15, 2003. Thus, the noncompete clause in the Operating Agreement prevented Dr. Finley from going to work for TGC’s competitor as an employed physician. In a footnote, the trial court concluded that even if SWAT 24, supra, applied, he would find that Dr. Finley would not be an employee in his new position and would still enforce the noncompete clause.

Dr. Finley now appeals the trial court’s judgment.

DISCUSSION

Dr. Finley’s appeal primarily challenges the trial court’s application of the law governing noncompete agreements in effect on September 1, |s2003, the date of the agreement transferring Dr. Finley’s individual membership in TGC to his corporation. He argues that the Transfer Agreement does not have a noncompete clause and that the parties did not execute a noncompete agreement on that date. Dr. Finley asserts that the only noncompete agreement between the parties is contained in the Operating Agreement dated February 25, 2003. Thus, the law governing noncompete agreements that was in effect on that date, must be applied.

Louisiana’s public policy has traditionally disfavored and restricted noncom-pete agreements. SWAT 24, supra. As stated in La. R.S. 23:921(A), every contract, agreement, or provision that restricts one from exercising a lawful profession, trade or business shall be null and void except as provided in the exceptions set forth in the statute. Noncompete agreements are considered to be in derogation of the common right and must be strictly construed against the party seeking their enforcement. SWAT 24, supra; Action Revenue Recovery, L.L.C. v. eBusiness Group, 44,607 (La.App. 2d Cir.8/19/09), 17 So.3d 999.

The relevant exception allowing for agreements restraining competition is set forth in La. R.S. 23:921(C), which states, in part:

C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.

| fiWhen Dr. Finley signed the Operating Agreement of February 25, 2003, La. R.S. 23:921(C) had been interpreted by the supreme court as restricting an employee from engaging in or carrying on his own competing business but still allowing an employee to become employed by a competitor of his former employer. SWAT 24, supra. The supreme court posited that the legislature could not have intended the absurd results that would follow if the statute were read as prohibiting employment by a competitor. One such result referred to in the opinion was that of a doctor employed by a regional hospital being prevented under a noncompete agreement from practicing medicine in any capacity in the region for two years after terminating employment. SWAT 24, 2000-1695, p. 20, 808 So.2d at 307. This is similar to the situation here. The law in effect on February 25, 2003, would allow Dr. Finley to leave TGC and to become an employed physician at a competing clinic without breaching the noncompete clause of TGC’s Operating Agreement.

However, SWAT ¾⅛ narrow interpretation of “carrying on and engaging in a business similar to that of the employer” in La. R.S. 23:921(C) was legislatively overruled. By Act 2003, No. 428, effective August 15, 2003, the legislature broadened the scope of noncompete agreements by amending La. R.S. 23:921 to provide:

D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

17When the Transfer Agreement was executed on September 1, 2003, the amendment of La. R.S. 23:921 had taken effect and employment by a competing business was now deemed to be carrying on or engaging in a business similar to that of the party with the contractual right to prevent such competition. Because of this change in the law, it is necessary to determine whether the Transfer Agreement resulted in the execution of a new noncompete agreement by the corporation, or whether, as Finley asserts, the corporation simply assumed his pending obligations under the Operating Agreement signed by him on February 25, 2003.

Contracts are interpreted in accordance with the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. When a contract can be interpreted within its four corners, without resort to extrinsic evidence, its interpretation presents a question of law. ScenicLand Const. Co., L.L.C. v. St. Francis Medical Center, Inc., 41,147 (La.App. 2d Cir.7/26/06), 936 So.2d 247. In such cases, appellate review is limited to whether the trial court was legally correct or incorrect. Lawrence v. Terral Seed, Inc., 35,019 (La.App. 2d Cir.9/26/01), 796 So.2d 115, writ denied, 2001-3134 (La.2/1/02), 808 So.2d 341.

|sAs shown by the record, including the testimony at trial, the noncompetition clause sought to be enforced is included in Section 11.3 of the February 25, 2003, Operating Agreement signed by Dr. Finley. Though parts of the Operating Agreement have been amended since that date, none of the amendments affect Section 11.3. The Transfer Agreement does not include a specific noncompetition clause within its four corners. However, the Transfer Agreement does state, “Corporation agrees to be bound by all of the terms and conditions of the Clinic’s Operating Agreement, as amended.” (Emphasis added.) In clear and unambiguous language, the corporation agreed to be bound by TGC’s Operating Agreement, which includes the noncompete clause at Section 11.3. By agreeing to be bound by the terms and conditions of the Operating Agreement, the corporation in effect agreed to be bound by the noncompete clause included in the Operating Agreement.

A party’s obligations under a contract are fixed at the time the contract is entered into. Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.7/1/97), 696 So.2d 1373; Block v. Reliance Insurance Company, 433 So.2d 1040 (La.1983). Juridical persons, such as corporations, are distinct from its members. La. C.C. art. 24. When Dr. Finley, on his own behalf as a member of TGC, executed the February 25, 2003, Operating Agreement, his corporation was not yet in existence and not a party to the Operating Agreement on that date. The corporation did not become bound by the Operating Agreement, including the noncompetition clause contained therein, until it became a 1^member of TGC upon execution of the Transfer Agreement on September 1, 2003. On that date it specifically agreed to be bound by the Operating Agreement’s terms and conditions. Therefore, the corporation agreed to be bound by Section 11.3, which prohibited both the corporation and Dr. Finley, as its professional employee, from directly or indirectly engaging in the ownership, management or operation of a medical office building or providing physician services at a health care facility under the terms outlined in the clause.

The Transfer Agreement had dual effect. First, it assigned Finley’s membership interest in TGC to his professional medical corporation. Second, as a new member of TGC, the corporation agreed to be bound by the Operating Agreement. The corporation did not simply assume pending obligations; rather, it became a member of TGC upon transfer of Finley’s membership interest. As a member and as shown by the clear and unambiguous language of the Transfer Agreement, the corporation agreed in its own right to be bound by the Operating Agreement.

A “membership interest” in a limited liability company consists of the member’s rights in the company, including his share of its profits and losses, the right to receive distributions of its assets, and any right to vote or participate in management. La. R.S. 12:1301(A)(14). These rights, which are reflected in Dr. Finley’s 3.33% interest in TGC, are what Dr. Finley transferred and assigned to his corporation. A membership interest is assignable in whole or in part. La. R.S. 12:1330(A). Assignment of a membership interest does not automatically make the assignee a member. |inThe assignee must be admitted as a member in accordance with the provisions governing limited liability companies set forth in La. R.S. 12:1301 et seq., or as provided in the company’s articles of organization or operating agreement. La. R.S. 12:1330(A); La. R.S. 12:1332. “An assignee who becomes a member has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a member under the articles of organization, any operating agreement, and this Chapter.” La. R.S. 12:1332(B).

TGC’s Operating Agreement allows a member to assign his membership interest to a professional corporation with the Medical Director’s consent. The corporation is then “submitted as a Member in all respects for the individual Member.” Thus, TGC’s Operating Agreement permits assignment of a whole membership interest to a professional corporation and admittance of the corporation as a member without the necessity of unanimous written consent of the other members as required by La. R.S. 12:1332(A) or of any formality other than the consent of TGC’s Medical Director. The Transfer Agreement accomplished assignment of Finley’s entire membership interest to his corporation and made the corporation a member, in all respects, of TGC. Upon becoming a regular member of TGC on September 1, 2003, the corporation obtained the rights and powers of a member and became subject to the restrictions and liabilities of a member as provided under the Operating Agreement. Thus, as a member, TGC agreed to be bound by the Operating Agreement and became subject to its restrictions and liabilities, including the | u noncompetition clause. The corporation’s obligations as a member of TGC became fixed as of September 1, 2003.

A noncompetition agreement must be strictly construed. Action Revenue Recovery, supra; Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954 (La.App. 1st Cir.9/28/01), 809 So.2d 405, writs denied, 2001-3316 (La.3/8/02), 811 So.2d 883 and 2001-3355 (La.3/8/02), 811 So.2d 886. If the action sought to be enjoined pursuant to the noncompete agreement does not fall within the statutory exception of La. R.S. 23:921(C), or the agreement does not conform to the statutory requirements, then the party seeking enforcement cannot prove it is entitled to the relief sought. Action Revenue Recovery, supra; Vartech Systems, Inc. v. Hayden, 2005-2499 (La.App. 1st Cir.12/20/06), 951 So.2d 247.

Here, the action sought to be enjoined by TGC falls within the exception of La. R.S. 23:921(C) and the noncompete clause appears to conform to the statutory requirements. Strictly construing the language of the noncompete clause, we find that injunctive relief was properly granted. Because the corporation became a member of TGC and bound itself to abide by the terms and conditions of the Operating Agreement on September 1, 2003, the trial court did not commit legal error in applying the law in effect on that date to determine whether TGC was entitled to enforce the noncompete clause included in the Operating Agreement and to obtain injunctive relief.

La. R.S. 23:921, as amended effective August 15, 2003, provides that a person who becomes employed by a competing business, regardless of 112whether he is an owner or equity interest holder of that business, may be deemed to be carrying on or engaging in a business similar to that of his former employer who seeks to enforce a noncompete agreement. La. R.S. 23:921(D). This is the law in effect on the date the corporation became bound by the Operating Agreement. Thus, under the noncompete clause in the Operating Agreement, Dr. Finley, who is bound as the employee of his professional corporation, is prohibited from being employed as a physician for a competing practice in the designated parishes for a period of 24 months after the termination of the corporation’s membership interest in TGC. In-junctive relief enforcing the noncompete clause in the Operating Agreement against Dr. Finley was properly granted.

Appellants also assigned as error the trial court’s footnote finding that Dr. Finley would not be an “employee” in his proposed new position with Community Health Systems. However, our decision affirming the application of the law in effect on September 1, 2003, renders this assignment moot.

CONCLUSION

For the reasons explained, the judgment of the trial court is affirmed, with costs of this appeal assessed against the appellants.

AFFIRMED.

      . La. Act 2003, No. 428 is a substantive amendment of La. R.S. 23:921 and is to be applied prospectively only. John Jay Esthetic Salon, Inc. v. Preskitt, 2004-1378 (La.App. 4th Cir.2/23/05), 898 So.2d 538, writ denied, 2005-1109 (La.6/24/05), 904 So.2d 743; Sola Communications, Inc. v. Bailey, 2003-905 (La.App. 3d Cir. 12/10/03), 861 So.2d 822, writ denied, 2004-0107 (La.3/19/04), 869 So.2d 858.


author: JAMES F. McKAY, III, Judge.

text:
    Charlotte YARLS v. Keith YARLS.
    No. 2009-CA-1173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 2010.
    Bernadette D’Souza, Mark Moreau, Southeast Louisiana Legal Services, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY, III, Judge.

|! Indigent plaintiff, Charlotte Yarls, appeals the trial court judgment assessing her court costs in connection with these divorce proceedings. For the reasons set forth below, we find the trial court erred in assessing court costs against her.

FACTS:

Ms. Yarls filed a petition for divorce, which included a request to proceed in forma pauperis. The trial court granted her indigent status pursuant to La. C.C.P. arts. 5181, et seq. On July 2, 2009, on Ms. Yarls’ motion, the trial court granted a default judgment of divorce. Ms. Yarls was assessed fifty percent of the court costs.

On appeal, Ms. Yarls asserts that the trial court erred in assessing her court costs despite the fact that she was an indigent litigant. Ms. Yarls further argues that the trial court erred in failing to include the names of the parties in the judgment and in failing to state that the judgment was granted in her favor. Regarding the latter assignment of erroi*, Ms. Yarls submits that the trial court declined to sign her proposed default judgment, but drafted its own judgment decreeing a divorce “between the parties.”

DISCUSSION:

|2La. C.C.P. art. 5186 states:

An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney. If judgment is rendered against the indigent plaintiff and he is condemned to pay court costs, an affidavit of the account by an officer to whom costs are due, recorded in the mortgage records, shall have the effect of a judgment for the payment due. [Emphasis supplied.]

The record on appeal is devoid of any evidence that Ms. Yarls’ right to proceed in forma pauperis was ever traversed or rescinded. La. C.C.P. art. 5184. We note that, as a general matter, La. C.C.P. art. 1920 gives the trial court equitable discretion to tax costs against any party. Specifically, article 1920 states, in part:

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. [Emphasis supplied.]

We find that the discretion afforded the trial court in La. C.C.P. art. 1920 is limited in a pauper case by the more specific provision found in La. C.C.P. art. 5186, which mandates the assessment of costs to the party against whom judgment is rendered. See Holloway v. Holloway, 2001-0273, p. 2 (La.App. 3 Cir. 6/6/01), 787 So.2d 600, 601. Moreover, pursuant to La. C.C.P. arts. 1701 and 1702, a judgment confirming a default is entered against the party who fails to answer the petition and citation of the plaintiff.

In the case at bar, Ms. Yarls was the prevailing party in the confirmation of the default, and the judgment should have been entered in her favor. Thus, we find the trial court erred in failing to render the default judgment against Mr. Yarls. We further find that the trial court erred in failing to asses all court costs for the |8divorce proceedings against Mr. Yarls. La. C.C.P. art. 5186. See Williams v. Williams, 98-2899, pp. 1-2 (La.App.4.Cir.4/28/99), 732 So.2d 1243, 1244; Smith v. Smith, 99-0365, pp. 1-2 (La.App. 4 Cir. 5/5/99), 733 So.2d 729, 730.

Accordingly, we amend the judgment to reflect that a divorce a vinculo matrimoni is granted in favor of Charlotte Yarls, and against Keith Yarls. We reverse that portion of the judgment assessing fifty percent of the court costs against Charlotte Yarls and render judgment assessing all court costs associated with these proceedings against Keith Yarls, to be paid within 60 days.

AMENDED IN PART; REVERSED IN PART; RENDERED.