author: | .THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Roy WALKER.
    No. 02-KA-495.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, Terry Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Arcenious F. Armond, Jr., Gretna, LA, for Defendant/Appellant.

      Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   | .THOMAS F. DALEY, Judge.

The defendant has appealed his adjudication as a second felony offender and the sentence imposed. For the reason that follow, we affirm.

The defendant was tried and convicted of conspiracy to commit armed robbery and attempted manslaughter. The State filed a habitual offender Bill of Information alleging the defendant to be a second felony offender based on the present conviction of conspiracy to commit armed robbery and a prior theft conviction. The defendant admitted the allegations of the multiple offender bill, his original sentence was vacated, and he received an enhanced sentence of 35 years imprisonment at hard labor. On appeal, this Court affirmed the convictions and sentence of 15 years for the attempted manslaughter conviction, and vacated the multiple offender conviction, finding defendant was not advised of his right to remain silent and right to a hearing on the multiple bill prior to stipulating as to his identity. On remand, a hearing was held on 13the multiple offender Bill of Information. At the conclusion of the hearing, the defendant was adjudicated a second felony offender. His original sentence was vacated and his sentence was enhanced so that the 35 year sentence for conspiracy to commit armed robbery is to be served consecutive to the 15 year attempted manslaughter sentence. Defendant has appealed both his adjudication as a multiple offender and his sentence.

Defendant argues that the trial court erred in finding him to be a second felony offender, because the State failed to present proper proof of a previous conviction. He contends that, during the colloquy on the predicate plea, there was no independent advisal by the trial court of his right to remain silent and of his right against self-incrimination. The State responds that the record shows the trial court did advise defendant of his right against self-incrimination, and that the right against self-incrimination includes the right to remain silent.

In his objection to the multiple offender bill, the defendant submitted the transcript on the plea for the predicate offense, case number 96-2820. The transcript shows that in accepting the defendant’s guilty plea, the following exchange took place:

THE COURT:
Mr. Walker, your attorney has indicated to me that he’s advised you of your rights (1) to a trial by jury, (2) to confront your accusers, and (3) against self-incrimination and that by entering your plea of guilty you are waiving or giving up these rights. He has also indicated to me that you have advised him that you understand these things; is that correct?
DEFENDANT:
Yes, sir.

The record on appeal includes the record in case number 96-2820. That record contains a Waiver of Rights form, which states in pertinent part:

Your attorney has indicated to me that he/she advised you of your rights (1) to a trial by jury or by the Court alone, (2) to confront your Laccusers, and (3) of your right against self-incrimination, and that by entering your plea of guilty, you are waiving or giving up these rights. He/she has also indicated to me that you have advised him/her that you understand these things. Is that correct?

The word “yes” was written next to the above paragraph. The Waiver of Rights form was signed by defendant, his attorney, and the trial judge. The record in case number 96-2820 also contains the “hard labor sentencing form” which states, inter alia, that the court advised defendant of his/her rights, that defendant waived these rights, and that a Waiver of Rights was executed and filed into the record.

In State v. Hollins, 99-278, pp. 20-22 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 684-85, writ denied, 99-2853 (La.01/05/01), 778 So.2d 587, this Court set forth the pertinent law regarding the method to be used to prove the constitutionality of a plea:

In proving the constitutionality of the plea, the State must produce either a “perfect” transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an “imperfect” transcript. Shelton, 621 So.2d at 780. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary. Shelton, 621 So.2d at 780.

The Boykin decision sets forth the specific federal constitutional rights that must be explained and waived when a guilty plea is entered in State criminal proceedings. “First, is the privilege against compulsory self-incrimination.... Second, is the right to trial by jury.... Third, is the right to confront one’s accusers.” Boykin, 395 U.S. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279. The scope of Boykin has not been expanded to require the specific enumeration to defendant of rights other than the trilogy listed. See, State v. Nuccio, 454 So.2d 93, 104 (La.1984), overruled on other grounds as stated in State v. Johnson, 94-1379, p. 15 (La.11/27/95), 664 So.2d 94, 101.

| sIn the jurisprudence, the terminology “right to remain silent” frequently is used interchangeably with the “right against self-incrimination” and is an acceptable substitute as long as it is clear that the trial court is referring to the right to remain silent “at trial.” State v. Dumas, 96-2748 (La.App. 1 Cir. 11/7/97), 703 So.2d 112, 114 (citations omitted).

Based on our review of the current appellate record and the record in case number 96-2820, we find that defendant was advised of the three Boykin rights in the Waiver of Rights form that defendant signed and during the 1996 plea colloquy: the right against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. The right to remain silent is not one of the enumerated rights that must be given to a defendant during a Boykin colloquy. Boykin, supra. However, the terminology “right to remain silent” frequently is used interchangeably with the “right against self-incrimination.” Dumas, supra.

In addition, even though the transcript in case number 96-2820 indicates that the trial court did not independently advise defendant of his rights, this Court has found that to be of no consequence, if the record clearly shows that defendant was advised of his rights and knowingly and voluntarily waived those rights prior to entering the guilty plea. State v. Flagg, 01-65 (La.App. 5 cir. 7/30/01), 792 So.2d 133. In the instant case, the Waiver of Rights form and the transcript of the 1996 plea colloquy clearly show that defendant was advised of his three Boykin rights and knowingly and voluntarily waived those rights prior to entering his guilty plea. Accordingly, we find that the trial court did not err in adjudicating the defendant to be a second felony offender.

Defendant also argues that his consecutive sentences are constitutionally excessive. He claims that, because his two convictions arose from a single course of 16action, he should have received concurrent sentences under LSA-C.Cr.P. art. 883. Defendant contends that, although the trial court has discretion to impose consecutive sentences, it failed to articulate particular justification for the consecutive sentences.

The State responds that the trial court did articulate particular justification for the consecutive sentences. It argues that the sentences are supported by the facts elicited at trial, the trial judge’s stated reasons, and the underlying jurisprudence. The State concludes that the consecutive sentences are not constitutionally excessive and should not be reversed.

Louisiana Constitution, Article I, Section 20 prohibits the imposition of excessive punishment. Although a sentence is within the statutory limits, the imposition of that sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Cann, 471 So.2d 701 (La.1985). A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, needlessly imposes pain and suffering, or is grossly out of proportion to the gravity of the offense so as to shock our sense of justice. State v. Lobato, 603 So.2d 739 (La.1992). A trial judge has wide discretion in the imposition of a sentence and a sentence will not be set aside absent a showing of manifest abuse of that discretion. State v. Carter, 96-358 (La.App. 5 Cir. 11/26/96), 685 So.2d 346, 353.

Defendant was convicted of conspiracy to commit armed robbery and attempted manslaughter. At the second multiple offender hearing, defendant was 17found to be a second felony offender. The trial court vacated the original sentence on count one (conspiracy to commit armed robbery) and sentenced defendant under LSA-R.S. 15:529.1 to imprisonment at hard labor for 35 years, to run consecutively to the 15 year sentence on count three (attempted manslaughter), for a total of 50 years. LSA-R.S. 15:529.1(A)(2)(a) provides as follows:

(a) If the second felony is such that upon a first conviction the offender ' would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Conspiracy to commit armed robbery carries a maximum sentence of 49/£ years. LSA-R.S. 14:26 and 14:64. Thus, as a second felony offender, defendant faced a mandatory minimum sentence of 24 1/4 years and a maximum sentence of 99 years.' Defendant’s 35 year enhanced sentence falls within the lower end of the sentencing range. Attempted manslaughter carries a sentence of not more than 20 years. LSA-R.S. 14:31 and 14:27.

We find that the record from the defendant’s previous appeal and the facts and circumstances surrounding this crime support the defendant’s 35 year sentence for conspiracy to commit armed robbery. Although a pre-sentence investigation was not ordered, the competency evaluation report reveals defendant has been in trouble with the law since age 12. In his present crime, defendant conspired to commit an armed robbery and during the course of the armed robbery he fired several shots at a DEA agent. He purposefully endangered the lives of many people as the crime was committed at 3:30 p.m. at a gas station. And, while no one was physically injured, this fact does not lessen the severity of the crime; Based on these facts, an enhanced sentence at the lower end of the sentencing range for conspiracy to commit armed robbery is not excessive.

| sDefendant also objects to the consecutive nature of his sentences. He claims that, because his two convictions arose from a single course of action, he should have received concurrent sentences under LSA-C.Cr.P. art. 883. Defendant contends that, although the trial court has discretion to impose consecutive sentences, it failed to articulate particular justification for the consecutive sentences.

The imposition of consecutive sentences arising from a single course of conduct does require particular justification, but they are not necessarily precluded, particularly if the trial judge concludes that the defendant poses an unusual risk to public safety. State v. Johnson, 97-867 (La.App. 5 Cir.4/15/98), 711 So.2d 848, writ denied, 98-1293 (La.10/9/98), 726 So.2d 20.

In the instant case, the trial judge gave the following reasons for sentence:

Inasmuch as Mr. Walker was found guilty of conspiracy to commit armed robbery and attempted manslaughter and because the circumstances surrounding those offenses involved instances of acts of violence which may well have led to great bodily harm, if not death, and because those facts and circumstances were entered into and committed by Mr. Walker intentionally and knowingly and because this Court is persuaded by the facts and circumstances as were developed at trial and heard by the jury, that Mr. Walker is a dangerous person....

Initially, the trial judge ordered the sentences to run concurrently. However, when defense counsel asked the trial judge whether the 35 years imposed on count one was to run concurrent with the 15 years on count two, the trial judge stated:

I think that was the original sentence, no, I beg your pardon, I’m in error, no, and thank you for pointing it out.
That is to run consecutively with the fifteen[-]year sentence.
Let me go back to the original commitment, yes, consecutively with the fifteen years from count No. 3.
In other words, the total sentence is 50 years.
Does that clear it up?

|9The record reflects the trial judge provided particular justification for consecutive sentences, and that his justification was valid. He found that the offenses involved instances of acts of violence that may well have led to great bodily harm, if not death, that the offenses were committed by defendant intentionally and knowingly, and that defendant was a dangerous person. Based on the foregoing, we find that the trial court did not abuse its discretion in ordering the sentences to be served consecutive.

For the foregoing reasons, the defendant’s conviction as a multiple offender and enhanced consecutive sentence are affirmed.

AFFIRMED

      . State v. Walker, 01-348, (La.App. 5 Cir. 8/28/01), 795 So.2d 459.

      . LSA-C.Cr.P. art. 883 provides:
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.


source: Caselaw Access Project

author: I «THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Laura F. BRIGNAC v. Julian P. BRIGNAC, Jr.
    No. 02-CA-428.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      R. Scott Buhrer, Flanders, Flanders & Buhrer, Metairie, LA, for Plaintiff/Appel-lee.
    Frank P. Tranchina, Jr., Dutel & Tran-china, L.L.C., Metairie, LA, for Defendant/Appellant.
    Panel composed of SOL GOTHARD, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   I «THOMAS F. DALEY, Judge.

The defendant, Julian P. Brignac, Jr. has appealed the trial court’s award of permanent spousal support to his former wife, Laura F. Brignac. For the reasons that follow, we affirm in part and amend in part.

The parties were married on November 6, 1982 and separated in November 1999. Mrs. Brignac filed for divorce on January 31, 2000. The parties stipulated that Mrs. Brignac was free from fault in the breakup of the marriage. On March 21, 2000, Judge Jo Ellen Grant signed a consent judgment stipulating that Mr. Brignac’s income was $52,000.00 per year and Mrs. Brignac’s income was $10,000.00. The consent judgment provided among other things that Mr. Brignac pay Mrs. Brignac $1,400.00 interim spousal support. On June 20, 2000, Mr. Brignac filed a Motion to Reset Permanent Support. This rule was not heard. On September 8, 2000, Mr. Brignac filed a Motion to Determine Fault and/or Entitlement and to Determine if Final Periodic Support is Due. The parties were granted a judgment of divorce on September 15, [s2000. A hearing on Mr. Brignac’s Motion to Determine Fault and/or Entitlement and to Determine if Final Periodic Support is Due was held November 16, 2000. On December 1, 2000, Judge Grant signed an Interim Judgment of Final Periodic Support that adopted the recommendation of the hearing officer and ordered Mr. Brignac to pay Mrs. Brignac $225.00 per month effective November 16, 2000. The order further stated:

Said Interim Order is provisional in nature and without prejudice to either party and the issue of the specific amount of final periodic support, if any, shall be taken up by the Domestic Commissioner on February, 2001 at 1:30 p.m., along with the pending issues of contempt, interim child and spousal support.

The hearing in front of Domestic Commissioner Craig Cimo was held April 18, 2001 and August 14, 2001. At the conclusion of the hearing, Commissioner Cimo awarded Ms. Brignac interim spousal support in the amount of $1,400.00 per month until March 15, 2001 and permanent spousal support in the amount of $898.00 thereafter. This judgment was signed by the trial court. Mr. Brignac has appealed citing two Assignments of Error.

In his first Assignment of Error, Mr. Brignac argues that the trial court erred in continuing Ms. Brignac’s interim support until March 14, 2001 instead of terminating it on November 16, 2000 when Mr. Brignac’s Motion to Determine Permanent Support was set.

The Louisiana Civil Code sets forth the rules governing spousal support. La. C.C. art. Ill establishes that in a proceeding for divorce the court may award interim periodic support to a party or may award final periodic support to a party free from fault based on the needs of that party and the ability of the other party to pay.

La. C.C. art. 113 provides that when a demand for final support is pending, the court may award a party an interim spousal support allowance based on the needs of | ¿that party, the ability of the other party to pay, and the standard of living of the parties during the marriage. La. C.C. art. 113 goes on to state that an award of interim spousal support, “shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first.” La. C.C. art. 114 provides that an award of periodic support may be modified if the circumstances of either party materially changes and shall be terminated if it has become unnecessary.

Interim spousal support is measured based on the standard of living of the parties during the marriage. Fault is not a consideration. Final periodic support requires that the party seeking the support be free from fault and the court must evaluate the need of the party and consider the relevant factors enumerated in La. C.C. art. 112.

In his Reasons for Judgment, Commissioner Cimo stated that, “Mr. Brignac cannot interrupt Ms. Brignac’s entitlement to interim spousal support simply by requesting a hearing on permanent spousal support.” We disagree. Based on the clear language of La. C.C. art. 113 an, “award of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of the judgment of divorce, whichever occurs first.” La. C.C. art. 114 allows either party to bring a motion to modify or terminate support. La. C.C. art. 112 sets forth the criteria for determining final periodic support. Since the issue of fault and the criteria for determining final periodic support under La. C.C. art. 112 were not necessarily considered when setting interim spousal support, either party may move to have final support reviewed post divorce. In this case, Commissioner Cimo noted that since fault was not an issue Mr. Brignac had no basis for bringing the Motion to Set Final Periodic Support. We disagree. |BSince the interim periodic spousal support terminates upon the fixing of the final support, and since the legal criteria for establishing interim support and final support are different, Mr. Brignac had an interest to pursue.

According to the record Judge Grant signed an Order on December 1, 2000, which was a Judgment of Final Support. Therefore, the previous award of interim support terminated on December 1, 2000, when the Judgment of Final Support was rendered. Consequently, Commissioner Cimo’s order awarding the interim support of $1,400.00 per month until March 15, 2001, effectively one hundred eighty days after the judgment of divorce, was in error. The final support award of $898.00 becomes retroactive to December 1, 2000, the date the Judgment of Final Periodic Support was granted by Judge Grant. Accordingly, the judgment of the trial court awarding final support is amended to reflect this adjustment.

In his second Assignment of Error, Mr. Brignac argues the trial court erred in awarding final support of $898.00 because that amount exceeds Ms. Brignac’s needs for final support purposes. Specifically, Mr. Brignac contends that the $250.76 medical expenses, $704.00 housing expenses, $35.00 personal grooming, $340.00 auto expenses, and $383.00 minimum credit card payments are not supported by the record and are not allowed under the case law.

As in the case of interim support, a trial court is vested with great discretion in awarding permanent support and this award will not be disturbed absent manifest error. Falterman v. Falterman, 98-158 (La.App. 5 Cir. 1/13/99), 726 So.2d 1023. La. C.C. art. 112 states all “relevant factors” must be considered in determining the entitlement, amount, and duration of final support. These factors may include: income, means, and assets of both spouses, the liquidity of such assets, each spouses’ financial obligations and respective earing capacities, the time necessary for the | ^recipient to acquire appropriate education, training or employment, the health and age of the parties, their obligations to support or care for dependent children, the duration of the marriage, and any other relevant circumstances.

Regarding the medical expenses, the parties stipulated to Mrs. Brignac’s medical expenses of $185.76 per month. This amount did not include the $65.00 per month Mrs. Brignac spends on therapy. Mr. Brignac specifically claims that the $65.00 per month for therapy for Mrs. Brignac is not allowed. Mrs. Brignac testified that she sought therapy after Mr. Brignac left the family home and admitted to a long time affair with his secretary. Mrs. Brignac described her pain and feelings of abuse and stated that she had not been discharged from therapy after one and a half years. We find no abuse of discretion in the trial court’s award of $65.00 per month for therapy. See Thibodeaux v. Thibodeaux, 95-671 (La.App. 5 Cir. 1/30/96), 668 So.2d 1269.

The trial court awarded Mrs. Brignac $704.00 per month for housing expense. This does not include payment on the mortgage because Mrs. Brignac testified that the mortgage holder, Mr. Brignac’s father, informed her that as long as she and her son were living in the house, they would not have to pay the note. Mr. and Mrs. Brignac stipulated to housing expenses for utilities, taxes, insurance, and supplies in the amount of $452.00 per month. This amount does not include expenses for extensive repairs and maintenance. Mr. Brignac argues that half of this amount ($226.00) should be attributed to the child support he pays and the court should have only awarded $226.00. This argument is without merit because the parties stipulated to these expenses for the purpose of setting permanent support.

Mrs. Brignac testified extensively as to the condition of the family home. The parties were intending to tear the home down and build a new one, so maintenance and repairs had not been performed for several years. Mrs. Brignac testified that prior to 17the separation, the home flooded, ruining the carpet. She explained that the carpet was removed, but not replaced, leaving bare cement floors. She testified that the home had not been painted in several years and was cracking. There were major plumbing problems and the main sewer line under the house had to be replaced. She also had to replace the air conditioner, heating coils, and dishwasher. She stated that the house had termites, was settling, was cracking, needed a new garage door, and siding. This testimony was not refuted by Mr. Brignac. Mr. Brignac characterizes these repairs as a “home improvement frenzy.” We disagree, these are necessary repairs and maintenance that must be performed to keep the house habitable. We see no abuse of discretion in the trial court’s award, which includes amounts to repair the 40 year old home.

Mr. Brignac claims that the $35.00 per month personal grooming expense is not a necessity for financial support. Mrs. Brignac testified that she gets her hair cut and colored every five to six weeks at a cost of $98.00. We see no abuse of discretion in the award for personal grooming expense. See Thibodeaux, supra.

The court awarded Mrs. Brignac $340.00 for automobile expenses. The parties stipulated to a total of $140.00 for automobile expenses per month, which included insurance, oil changes, and tolls. They did not stipulate to expenses for maintenance and repairs on the car. Mrs. Brignac testified that she drives a 1993 Lexus within excess of 114,000 miles. Since the break up of the marriage, the car needed thousands of dollars worth of repairs, including repairs to the brakes, timing belt, fuel line, and vacuum system. Her testimony was supported by receipts for these repairs. Mrs. Brignac lives on the westbank of Jefferson Parish and works in uptown New Orleans. A car is required for her to get to work every day. Considering the age of her car, we |Rdo not find the trial court’s award of approximately $200.00 per month for maintenance to be an abuse of discretion.

Finally, Mr. Brignac complains that the trial court erred in awarding $383.00 per month for minimum credit card payments. Mrs. Brignac testified that there were balances on several credit cards when the parties separated. She stated that she had not used any credit cards after the termination of the community. She explained that after Mr. Brignac left, he stated he wanted the couple’s bedroom furniture, so she purchased new bedroom furniture. These minimum payments also include payments on a small business loan made by the parties in 1995. The monthly minimum amounts due were for balances incurred prior to filing the Petition for Divorce, therefore, they were properly included in Mrs. Brignac’s monthly expenses.

For the foregoing reasons, the judgment of the trial court is affirmed as amended. All costs, including the cost of this appeal, are assessed to appellant.

AFFIRMED AS AMENDED.


author: SOL GOTHARD, Judge.

text:
    Suzanne CRAVEN v. Clara CARTER and Allstate Insurance Company.
    No. 02-CA-441.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.
    Writ Denied Feb. 14, 2003.

      Robert J. Caluda, Stephen C. Juan, New Orleans, LA, for PlaintiffiAppellant.
    P.M. Donovan, Donovan & Lawler, Me-tairie, LA, for Defendants/Appellees.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   SOL GOTHARD, Judge.

Plaintiff, Suzanne Craven, appeals a Judgment Notwithstanding the Verdict, that confirmed the jury finding of no injury, but awarded damages for inconvenience. For reasons that follow, we reverse in part and affirm in part.

The facts in this matter are not disputed. A vehicle in which Suzanne Craven was a passenger was struck from the rear by a vehicle driven by defendant, Clara Carter, while stopped for a red light on Williams Boulevard in Kenner, Louisiana on May 5, 1998. Plaintiff filed this action against defendant, Clara Carter, and her insurance carrier, Allstate Insurance Company. The petition alleges damages for back injuries sustained in the accident. In a supplemental and amending petition, the damages prayed for were increased due to back surgery that plaintiff contends was necessary as a result of the accident.

At trial the jury heard evidence that shows the plaintiff sustained a back injury as a result of a 1982 automobile accident that resulted in surgery. There was medical evidence presented to show that plaintiff had chronic back problems until a second accident in 1995. After the 1995 accident, plaintiff complained of greater back pain, and maintained that she was disabled and in need of a second back surgery.

| ^Following the trial, the trial court granted a directed verdict on the issue of liability, and the issues of injury and damages went to the jury for determination. The jury found the plaintiff suffered no injuries as a result of the accident, and a judgment was rendered reflecting that finding on October 23, 2001. Subsequently, plaintiff filed a Motion for Judgment Notwithstanding the Verdict (J.N.O.V.) that was granted by the trial court. In that judgment the trial judge awarded $1,500.00 in general damages and $245.00 in medical expenses. In explanation of the judgment, the court stated:

... I’m going to award fifteen hundred dollars to the Plaintiff, plus the initial medical visit after the accident, and that’s all. I think the Jury found that the injury was not caused by the accident; however, the person was perfectly entitled to go to the doctor, and there was an inconvenience factor of having to go to the doctor after the accident. But, I’m going to buy into what the Jury found, and that is this accident did not cause her problem.

In brief to this court plaintiff argues the trial court erred in failing to perform an independent assessment of Suzanne Craven’s damages in the grant of the J.N.O.V. Further, plaintiff argues the damages assessed were unreasonably low and that the court costs should not have been assessed to plaintiffs.

Plaintiffs argument is based on a misreading of the trial court’s ruling. The trial court did not find error in the jury’s finding that there was no causal link between the accident and the injury. The trial court was clear in its decision not to overturn the jury on that issue. The trial court’s verdict did not change any factual finding made by the jury. The trial court merely considered the evidence that this plaintiff had serious back injuries and problems before the accident, and found that the plaintiff was justified in seeing a doctor to ensure that no further damage was done. Since liability for the accident was decided, the court was justified in finding that defendant should be responsible for that medical expense.

Such a ruling is not without precedent. In Coleman v. U.S. Fire Ins. Co., 571 So.2d 213 (La.App. 3 Cir.1990), the appellate court affirmed a jury finding Rthat, while the plaintiff sustained no injuries, she was justified in going to the hospital for an examination following the accident. See also, Olivier v. Sears Roebuck & Co., 499 So.2d 1058 (La.App. 3 Cir.1986); writ denied, 501 So.2d 198 (La.1986).

Plaintiff also asserts the trial court erred in ordering each party to bear their own costs. LSA-C.C.P. art.1920 provides that:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
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.

This article sets guidelines for the assessment of costs, while providing the trial court with some discretion. In support of this position, plaintiff cites Penton v. Schuster, 98-1068 (La.App. 5 Cir. 3/30/99), 732 So.2d 597 in which this court explained:

The prevailing party is not taxed with costs unless in some way he incurred additional costs pointlessly or engaged in other conduct which justified an assessment of costs against that litigant. That rule denies to a trial judge the power either to refuse to award his or her own costs to a prevailing party or to assess another party’s costs against a prevailing party unless some circumstances present in the case justify doing so. On review, a trial judge’s assessment of court costs can be reversed by this court only on a showing of abuse of discretion, (citations omitted)

732 So.2d at 602, 603.

Using that standard, we find that the trial court erred in taxing costs to both parties. Although the judgment of the trial court did not grant all the relief that plaintiff prayed for in her petition, the defendant was cast in judgment for liability and for damages. Further, the prevailing party did nothing to “incur additional costs pointlessly or engaged in other conduct which justified an assessment of costs against that litigant.”

1 ¡¡Accordingly, that portion of the judgment which taxes costs to the plaintiff, is reversed and all costs are assessed against defendant, including costs of this appeal. In all other respects, the verdict of the trial court is affirmed.

REVERSED IN PART; AFFIRMED IN PART.


author: I «SOL GOTHARD, Judge.

text:
    Diane DIOGUARDI v. HOLIDAY INN.
    No. 02-CA-470.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      William Ken Hawkins, Laplace, LA, for PlaintiffAppellant.
    Bradley P. Naccari, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   I «SOL GOTHARD, Judge.

In this workers’ compensation matter, the claimant, Diane Dioguardi, appeals an adverse decision from the Office of Workers’ Compensation. In the decision, the trial court found that claimant failed to meet her burden of proof that she was entitled to workers’ compensation as a result of a disability due to an occupational disease. Consequently, the court rendered a judgment in which it dismissed the disputed workers’ compensation claim with prejudice.

The only issue presented for our review by claimant is whether the trial court erred in allowing defendant’s expert witness to testify at trial.

The record shows that claimant filed a disputed claim for benefits with the Office of Workers’ Compensation on August 30, 2000. In the petition, claimant alleges she developed carpal tunnel syndrome as a result of her employment as a bartender at the Holiday Inn in Gretna, Louisiana. In due course, the matter went to trial and judgment was rendered in favor of defendant, employer.

Claimant, a thirty-two-year-old women who is married with two children, testified that she was employed as a bartender at the Holiday Inn in Gretna since June of 1996. She worked five or six days a week consistently from 1996 until June 2000. She stated that within a few months of her employment she began working ten to twelve hour shifts, in addition to private parties. She maintained |3that she repeatedly opened beer bottles with a twist of her wrist. During Super Bowl 2000, she began experiencing pain in her hands and arms, which made it difficult to do her job. The pain continued and grew worse.

Claimant sought medical help and was diagnosed with carpal tunnel syndrome. She was treated with cortisone injections and splints and eventually underwent surgery. In her testimony, claimant explained that the right arm is worse than the left arm. She stated that she still experiences pain, numbness, and tingling in her right hand. On the left side, she has numbness in her elbow. At the time of trial, claimant was still unable to work. She stated that she is certain the repetitive motions related to her employment as bartender caused the carpal tunnel syndrome.

Claimant also introduced medical records that show her diagnosis and treatment for carpal tunnel syndrome. The records show that claimant sought medical treatment for numbness, pain, and tingling in her hands in July 2000. She was tested for arthritis and carpal tunnel syndrome. A general assessment of the claimant made by a treating physician states that the claimant has carpal tunnel syndrome on the right side. The assessment also states the opinion that the claimant’s generalized musculoskeletal symptoms indicate a systemic disorder, and suggested the need for a complete blood count and studies for a rheumatological evaluation, because of claimant’s complaint of pain from the shoulders down to the fingertips in both arms. There is no statement in any of the treating physicians’ reports to establish a causal link to claimant’s employment other than the claimant’s report to the doctors that the condition began after she worked as a bartender twisting off beer tops. Further, the medical records do not establish a disability as a result of the syndrome.

The medical records show that surgery was performed on the right wrist to relieve the condition in October 2000. Because claimant had no objective finding [4that would indicate compression of the left media nerve at the wrist, no surgery was performed on that side. Claimant received physical therapy that brought her range of motion back to normal and improved her grip strength. However, claimant continued to complain of numbness in both arms at the shoulders and continued to request left hand surgery. In one report dated January 15, 2001, one of the treating physicians, Dr. Kathleen Robertson, noted that her grip was still weak in both wrists after physical therapy and opined that, “I don’t think she is giving it her entire effort.” In the final report by Dr. Robertson dated April 28, 2001, she states that the claimant is still complaining that both upper extremities go totally numb and she cannot move her fingers. Claimant also complains that she “feels like somebody is squeezing her from the shoulders down to her fingers.” Dr. Robertson stated that there are no clinical findings to explain the pain. Dr. Robertson suggested ordering a complete blood count with platelets and a liver panel, along with other tests that might explain the chronic fatigue syndrome. The results of these tests are unknown from the record.

Defendant’s expert, Dr. Harold Stokes, examined claimant and reviewed her medical records during the course of the litigation. His written report was introduced into evidence and is contained in the record. In that report, Dr. Stokes opined that “it is highly unlikely that this patient’s carpal tunnel syndrome is related to her work as a bartender.” He further stated, “I would not consider carpal tunnel syndrome in a bartender a cumulative or repetitive trauma disorder as the actions that are performed are many and varied.” Dr. Stokes also stated that he found no clinical findings of carpal tunnel syndrome in the left hand. He stated that “many of her complaints were nonanatomic in nature and I suspect strong functional overlay in this patient.” Dr. Stokes opined that claimant was capable of unrestricted work.

|sAt trial, defendant sought to call Dr. Stokes to the stand. Claimant objected to the presentation of Dr. Stokes’ live testimony on the basis that he was not listed on the defendant’s pre-trial questionnaire. Claimant argued that Dr. Stokes’ report was not received in time to allow claimant’s expert to review the report, and claimant would be prejudiced by the inability to properly refute Doctor Stokes’ testimony.

Defendant admitted that Dr. Stokes’ report was received a few days before trial and immediately forwarded it to claimant’s counsel. Defendant maintains that he called claimant’s counsel to discuss settlement when the report was received, and in that conversation told opposing counsel that Dr. Stokes would testify at trial. Claimant made no objection at that time. Defendant further noted that, although opposing counsel knew for over a month that Dr. Stokes was the defendant’s expert witness and that his report would be used at trial, no objection or request for continuance was made by claimant.

The trial judge ultimately decided to allow Dr. Stokes to testify, after finding no prejudice to claimant, and noting that claimant could cross-examine Dr. Stokes on the witness stand. It is that decision which forms the main assignment of error in claimant’s brief to this court.

The record shows that the trial court rendered a Pre-Trial Order on March 20, 2001 after conducting a conference with both parties present. In that order the trial court stated “(M)edical testimony is to be by deposition unless you have specific orders to the contrary.” (emphasis in original). There is no indication in the record, or in defendant’s argument that any request was made to allow Dr. Stokes’ live testimony prior to the morning of trial. However, it is clear that Dr. Stokes was not a surprise witness, as claimant had submitted to an examination by Dr. Stokes on June 27th. Further, claimant admitted receiving a letter from defendant dated August 17th (seven days before trial) in which it was declared that | fiDr. Stokes’ written report would be admitted at trial. Also, Dr. Stokes was accepted by both parties as defendant’s expert, and his written report was offered into evidence without objection.

Whether or not expert witnesses are allowed to testify is within the trial court’s discretion, and absent an abuse of that discretion the decision will not be overturned on appellate review. Dufrene v. Willingham, 97-1239 (La.App. 5th Cir.10/28/98), 721 So.2d 1026, 1032; writ denied, (La.3/12/99), 739 So.2d 212. In the instant case we cannot say the trial court erred in allowing live medical testimony at trial in contradiction of its prior order.

We also note that even disregarding Dr. Stokes’ testimony, there is no manifest error in the trial court’s final ruling. LSA-R.S. 23:1031.1(B) provides that work-related carpal tunnel syndrome is an occupational disease. In Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1164 the Supreme Court explained:

LSA-RS 23:1031.1(A) entitles every employee who is disabled because of the contraction of an occupational disease to receive compensation benefits, provided that the employee’s illness arises out of and in the course and scope of his employment. LA. REV. STAT. ANN. 23:1031.1(A) (West 1985). LSA-RS 23:1031.1(B) defines an “occupational disease” as “that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such a disease.” LA. REV. STAT. ANN. 23:1031.1(B) (West Supp.1997). This causal link between the employee’s illness and work-related duties must be established by a reasonable probability. Once the employee has established the existence of an occupational disease, for his illness to be compensable, the employee must further establish that the illness is disabling. Id. (Citations omitted)

Carpal tunnel syndrome is a listed occupational disease. Nevertheless, it must be work-related to be compensable. Dvorak v. Melvin Jones Fram, Contractors., 96-701 (La-App. 5th Cir.1/15/97), 688 So.2d 94. Whether the claimant has a work-related condition is a question of fact to be decided by the trier of fact. Factual determinations made by the trier of fact will not be overturned |7absent a showing of manifest error. Id. Here there is no causal link established by the treating physician. Further, there are indications in the medical records that claimant’s arm pain is unrelated to the carpal tunnel syndrome. We also note that, with the exception of two no work slips early in the course of claimant’s treatment, no indication of disability was stated in the records of attending physicians. Under these facts, we cannot find manifest error in the trial court’s ruling. For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: laSOL GOTHARD, Judge.

text:
    In re MEDICAL REVIEW PANEL OF Keisha CONERLY.
    No. 02-CA-485.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.
    C.A. Fleming, III, Metairie, LA, for Plaintiff/Appellant.

      Charles F. Gay, Jr., C. Byron Berry, Jr., Adams and Reese, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and WALTER J. ROTHSCHILD.
   laSOL GOTHARD, Judge.

This is an action for medical malpractice involving two blood transfusions in September and October 1979 that plaintiff received as an infant at Ochsner Foundation Hospital. Approximately eighteen years later plaintiff was diagnosed with hepatitis C virus, and was told by doctors that it was likely due to the blood transfused. Plaintiff filed a claim with the Patients’ Compensation Review Board in 1997, within one year from the discovery of the condition. Ochsner filed a petition to allot a number to the case, and urged an exception of prescription based on the prescriptive period for medical malpractice actions contained within LSA-R.S. 9:5628. The trial court granted the exception and dismissed plaintiffs claim. Plaintiff filed a motion for new trial, or in the alternative moved for a hearing on the constitutionality of LSA-R.S. 9:5628. Both motions were denied, and plaintiff appealed to this court.

In an unpublished opinion this court, relying on Boutte v. Jefferson Parish Hospital Service Dist. No. 1, 99-2402 (La.4/11/00), 759 So.2d 45, held that plaintiffs motion raising the constitutional issue by way of a written motion was sufficient to satisfy the requirement that unconstitutionality be specifically pleaded. The Boutte court noted that a successful challenge to the constitutionality of LSA-R.S. 9:5628 would eliminate the grounds for the exception of prescription. Given Dthat finding, the Boutte court remanded the matter for consideration of the constitutionality claim.

In the instant matter, this court followed Boutte. However, because plaintiff failed to serve the Attorney General as required, we remanded the matter to the trial court and ordered that plaintiff be given fifteen days to accomplish the service, before a hearing on the constitutionality.

After remand to the trial court, the plaintiff filed a motion for declaratory judgment in which she reasserted the claim of unconstitutionality and requested service on the Attorney General. However, before the matter was considered, plaintiff filed a “first supplemental memorandum” in which she cited Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921. Plaintiff argued that Williams overruled Boutte and found that a plaintiffs action in strict products liability arising out of a defective blood transfusion in not within the scope of LSA-R.S. 9:5628. Thus, the action does not prescribe in three years from the date of the transfusion in cases where the harm from the transfusion is discovered beyond the three years. As to the constitutional issue, plaintiff argued that the discrepancy in the treatment of victims of public mal-practitioners and the victims of private malpractitioners was a disparity of treatment in violation of the state constitutional guarantee of equal protection. After a hearing on the matter, the trial court rendered a judgment in which it denied plaintiffs motion to declare LSA-R.S. 9:5628 unconstitutional, granted the exception of prescription, and denied the motion for new trial. Plaintiff appeals.

In reasons for judgment, the trial court relied on Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992), in which the Louisiana Supreme Court held that strict liability for a defective bed was not covered under the Medical Malpractice Act. The Sewell court also noted that blood is one of the specifically enumerated potentially defective things that is covered by the act. Using that rational, the trial Rcourt found that an action for strict liability for tainted blood sounds in medical malpractice and it therefore prescribed according to the statute.

In deciding the issue, the trial court failed to consider the recent pronouncement of the Supreme Court on this issue that is found in Williams v. Jackson Parish Hospital, supra. In Williams the court overruled the holding in Boutte, which relied on Sewell, and held that all claims made against hospitals in strict products liability arising out of defective blood transfusions that arose before the blood shield statutes enacted in 1982 are governed by LSA-C.C. Article 3492 and not R.S. 9:5628. Williams, supra, 798 So.2d at 932. Thus, as the law stands now, plaintiffs claims of strict liability are not prescribed and the trial court was wrong in so ruling. Thus, we reverse the judgment as it relates to those claims. However, in accordance with Williams, we acknowledge that separate claims made by plaintiff on traditional medical malpractice grounds are prescribed. Id.

Because we have decided this matter on statutory and legal precedent grounds, we find it unnecessary to address constitutional issues raised by plaintiff. We do note, however, that the Williams court found that LSA-R.S.9:5628 is neutral on its face because it is placed as a Title 9 Civil Code ancillary and applies regardless of a provider’s status as qualified or unqualified medical provider under the Medical Malpractice Act. Williams, supra, 798 So.2d at 927.

For the reasons expressed in this opinion, the trial court’s judgment in so far as it grants the exception of prescription for strict liability claims is reversed, and the matter is remanded for further proceedings.

REVERSED IN PART AND REMANDED

      . In Re: Medical Review Panel of Keisha Conerly, 01-93 (La.App. 5 Cir 4/24/01), 793 So.2d 574.


author: I «SOL GOTHARD, Judge. 11ROTHSCHILD, Judge,

text:
    Robert R. ZELENAK and Mary E. Zelenak, v. Peter FAZZIO, Allstate Insurance Company and USAA Casualty Insurance Company.
    No. 02-CA-501.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      T. Gregory Schafer, Schafer & Schafer, New Orleans, LA, for Defendant/Appellant; United Services Automobile Association.
    G. Scott Vezina, J. Marc Vezina, Vezina & Gattuso, L.L.C., and Sherif K. Sakla, M.D., The Sakla Law Firm, Gretna, LA, for Plaintiffs/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   I «SOL GOTHARD, Judge.

Defendant, USAA Casualty Insurance Company, files this appeal from the decision of the trial court denying its motion to dismiss arbitration. We affirm the decision of the trial court.

This suit arises out of an automobile accident. Plaintiffs, Robert R. Zelenak and Mary E. Zelenak, filed suit on November 7,1997, alleging that they were injured when their vehicle was rear-ended by a vehicle driven by defendant, Peter Fazzio. Also named as defendants in the suit were Allstate Insurance Company, the liability insurer for Fazzio, and USAA, plaintiffs’ uninsured/underinsured carrier. Fazzio and Allstate settled with the plaintiffs and were dismissed from the lawsuit on August 28,1998.

On June 25, 1999, plaintiffs filed a motion for stay and to enforce arbitration. The trial court denied the motion on July 15, 1999, finding that the plaintiffs had waived arbitration. Both this court, in writ application number 99-C-1099, 11/3/99, and the Louisiana Supreme Court, in writ application number 99-CC-3240, 11/17/99, denied relief.

|3On November 24,1999, plaintiffs filed a second petition to enforce arbitration. On December 15, 1999, the trial court granted the petition and ordered that the matter be referred for arbitration.

Defendants sought review with this court, alleging that the prior decision was law of the case. This court granted writs and remanded the matter to the lower court with instructions to conduct an evi-dentiary hearing on which version of the policy was in effect an the time of the accident, whether the clause providing for arbitration was properly deleted in the effective version and, if so, whether plaintiffs were properly notified of the deletion. We indicated that as these were new issues, law of the case did not apply. Writ application number 99-C-1418, 2/2/00.

A hearing was held and on May 24, 2000, the trial court rendered judgment on which policy was in effect. The court further found that the arbitration provision was not properly deleted. Again, both this court, in writ application number 00-C-1382, 8/14/00, and the Louisiana Supreme Court, in writ application number 2000-CC-2623,12/8/00, denied relief.

Thereafter, on December 28, 2000, defendant filed a motion to dismiss arbitration, alleging that any decision of the arbitration panel would necessarily be an advisory opinion, prohibited by law. This motion was denied on May 7, 2000. The trial court granted a partial new trial on August 22, 2000, to provide that the arbitration was to be conducted within six months. Thereafter, on October 11, 2001, defendants filed a motion for appeal.

In this appeal, defendants argue that the trial court erred in failing to dismiss arbitration on the ground that any decision of the panel would be an advisory one. Defendants further argue that the prior decision that plaintiffs waived their right to arbitration is law of the case, and therefore plaintiffs are not entitled to arbitration.

[4The USAA policy provision regarding arbitration provides that:

A decision agreed to by two of the arbitrators will be binding as to: The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the financial responsibility law of Louisiana. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within sixty days of the arbitrator’s decision. If this demand is not made, the amount of damages agreed to by the arbitrators will be binding.

Appellant states that under the clear wording of the policy, any decision in arbitration awarding either plaintiff damages over $10,000.00 is not binding if a demand for trial is made within sixty days. They further note that each plaintiff has already received $10,000.00 from Allstate, and that a tender of $14,000.00 was made to Dr. Zelenek. They state that any decision rendered by the arbitrator over $10,000.00 will immediately cause them to demand a trial. According, they argue to this court that any decision rendered by the advisory board would be purely advisory.

In Blanchard v. Petmecky, 97-659 (La.App. 5 Cir. 7/22/97), 709 So.2d 796, 797, writ denied, 97-2158 (La.11/14/97), 703 So.2d 633, this court noted the scope of the trial court’s supervision over arbitration matters:

Arbitration is a non-judicial method of resolving disputes and is favored as a matter of public policy, Cajun Electric Power Co-Op, Inc. v. Louisiana Power and Light Co., 324 So.2d 475 (La.App. 4th Cir.1975). Courts are not authorized to take part in arbitration proceedings except in three limited circumstances. First, where one party refuses to arbitrate, the other may seek a court determination of whether there is a valid arbitration agreement. If the court finds such a valid agreement, then it must order the parties to submit to arbitration, La. R.S. 9:4203; Bartley v. Jefferson Parish School Board, 302 So.2d 280 (La.1974). Second, where an arbitration agreement does not specify how the arbitrators shall be appointed, or if one party fails, or refuses to name an arbitrator as per the agreement, then the court may make such appointments, La. R.S. 9:4204. Third, after an award is made, any party may petition to have the agreement vacated or amended, La. R.S. 9:4210-4211. Beyond these matters, the courts have no jurisdiction to further interfere in arbitration proceedings, Spencer v. Hoffman, 392 So.2d 190 (La.App. 4th Cir.1980). To rule otherwise would defeat the purpose of arbitration, which is to provide a speedy settlement of disputes out of court, Bart-ley, supra.

|5In this case, the trial court found that there is a valid arbitration agreement. Once the court finds a valid and enforceable arbitration agreement, and a failure to comply therewith, the court shall order arbitration. Conagra Poultry Co. v. Collingsworth, 30,155 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280. We believe that where a valid and enforceable agreement is present, the trial court is not authorized to dismiss arbitration at the request of a party who announces that it does not intend to abide by the arbitration decision. We find no error in the trial court’s order compelling the parties to arbitration.

Appellants also assert that the trial court’s ruling of July 15, 1999 that plaintiffs had waived arbitration was “law of the case.”

Under the “law of the case” doctrine, an appellate court will not reconsider its own rulings of law in the same case. However, application of the principle is discretionary. Farinelli v. St. John the Baptist Parish School Bd., 97-57 (La.App. 5 Cir. 4/29/97), 694 So.2d 1073, writ denied, 97-1371 (La.9/5/97), 700 So.2d 514. In light of the fact that we declined to previously apply law of the case in this matter, we will not apply the doctrine now.

We further note that:

Questions regarding the interpretation and compliance of the procedures under the contract and whether a party waived its right to arbitrate under the terms of the contract are issues of procedural arbitrability that should not be decided by the courts, but rather by the arbitrator. (citations omitted.)
Conagra Poultry Co. v. Collingsworth, supra, 705 So.2d at page 1283.

Thus, appellants may raise the issue of waiver of arbitration at the arbitration proceedings.

For the above discussed reasons, we affirm the decision of the trial court ordering the parties to proceed with arbitration. All costs are assessed against appellants.

AFFIRMED.

ROTHSCHILD, J., dissents with reasons.

11ROTHSCHILD, Judge,

dissenting.

I have considered the opinion of the majority, and I respectfully disagree.

The arbitration provision at issue provides in pertinent part:

A decision agreed to by two of the arbitrators will be binding as to:

1. Whether the covered person is legally entitled to recover damages; and
2. The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the financial responsibility law of Louisiana. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrator’s decision. If this demand is not made, the amount of damages agreed to by the arbitrators will be binding.

USAA contends that this matter should not proceed to arbitration because any decision awarding the Zelenaks over $10,000 (the minimum limit in LA) is not binding if a demand for a trial is made winthin 60 days of the arbitrators’ decision. The parties agree that the Zelenaks have each received $10,000 from Alstate and that Robert Zelenak has received $14,000 from USAA. Therefore, if the arbitrators determine that the damages are less than $10,000, the plaintiffs cannot recover because they have already received this amount. If the arbitrators determine that the damages exceed $10,000, the arbitration is not binding because USAA is entitled to a trial.

The plaintiffs argue that the arbitration provision is ambiguous L,because it indicates that arbitration is binding if two arbitrators agree, but it is silent regarding when all three arbitrators agree. However, I believe that this is a strained and distorted reading of the contract. The arbitration provisions provide that arbitration is binding if the decision is agreed to by 2 arbitrators, but the parties have a right to a trial if the damages exceed the minimum limit in LA. When three out of three arbitrators agree, that situation is covered by the phrase, “[a] decision agreed to by 2 of the arbitrators will be binding ....,” because when three agree, two agree. I do not believe that the arbitration provision in the contract is ambiguous, and I think that this argument by the plaintiffs is far-reaching and invalid.

I believe that arbitration would be futile and a decision by the arbitrators would be moot, because the plaintiffs have already received the minimum limit for bodily injury Lability in Louisiana and USAA wishes to exercise its right to a trial. Accordingly, I would reverse the trial court and dismiss the arbitration.


text:
    Bobby SPURLOCK and Dennis Kraft v. Walter E. BLESSEY and Crescent City Nissan, L.L.C.
    No. 02-CA-556.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      Triscelyn L. McDonald, New Orleans, LA, for Plaintiffs/Appellants.
    Robert S. Reich, Robert J. Ellis, Jr., Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   laSOL GOTHARD, Judge.

Plaintiffs, Bobby Spurlock and Dennis Kraft, appeal from the dismissal of their action against the defendant, Crescent City Nissan. For the following reasons, we affirm the decision of the trial court.

Plaintiffs filed this suit alleging that they had been terminated from their employment with Crescent City Nissan. They alleged that they were owed wages in the form of commissions and vacation pay, as well as penalties and attorney fees, for defendant’s failure to timely pay these wages.

Testimony at trial established that prior to May 31, 2000, Crescent City Nissan employed both plaintiffs. Plaintiff Bobby Spurlock was employed as a General Sales Manager, and plaintiff Dennis Kraft was employed as a Sales Manager. Shortly prior to the events described here, Crescent City Nissan’s General Manager, Jerry Moissant, and General Sales Manager, John Oliver, left their employ and went to work for a Chevrolet dealership.

At trial it was also established that the plaintiffs were paid commission, after subtracting of a base draw and any charge backs. They were paid a base draw of $1,000.00, on the first and the fifteenth of the month respectively, and they received the commission within a week of the last day of the month.

Bobby Spurlock testified that he worked on May 31, and it was a “normal” workday. When he went to work on June 1, he heard rumors that a new General Manager was coming and that he was to be replaced or fired. After work that 13evening, he stated that he went to the management company, where a Mr. Patrick Yoss told him he was to be fired. He then turned in a letter of resignation, effective June 1, 2000. His notice of separation sent by Crescent City Nissan states that his last day worked was May 31, 2000. Within the week, he was hired by the Chevrolet dealership that had hired his prior supervisors.

Mr. Voss testified that Spurlock came to see him on June 1. Voss introduced him to Mr. Lennon Lassiter and stated that he was the new General Manager of the dealership. At that time, Spurlock handed him a pre-drafted resignation letter. Mr. Voss testified that he did not terminate Spurlock’s employment; in fact, he wanted both Spurlock and Kraft to stay.

Spurlock testified that he had received his base draw on May 1 and May 15, and that he received his final checks three weeks after the cessation of employment. The checks, one for vacation pay and one for commissions, were dated June 16, 2000. Spurlock contended that the checks did not include vacation pay and commission to which he was entitled; however, he did not introduce any evidence to show the amount of the commission and vacation pay he alleges he was not paid.

Dennis Kraft testified that May 31 was a normal workday. On June 1, there was a meeting at the dealership with Walter Blessy, the owner. Bobby Spurlock was the only person not at that meeting. At that meeting, he was told that Moissant had resigned, and that there would be a possibility for promotion. That night, he received a telephone call that the supervisor positions were to be filled by two other persons. He was upset because he did not have a chance at promotion, and he never returned to the dealership. At trial, he admitted that he voluntarily left his employment. The separation notice he received from Crescent City Nissan stated a separation date of June 2, 2000, and that his last day worked was May 31, 2000. Kraft was also hired by the Chevrolet dealership within the week.

| JKraft testified that he received his base draw on May 1 and 15, and that he later received his final checks, which were dated June 16, 2000. Copies of the checks were introduced into evidence and they show that he was paid $3,000.00 vacation pay and $2,418.00 commission.

At trial Kraft first testified that vacation pay was calculated on the base draw and any moneys earned by the department. He then testified that he was told he was entitled to vacation pay based on the average of the last six months commission, but admitted he had never received such vacation pay in the past.

Mr. Voss testified that managers were entitled to three weeks vacation pay, which was calculated by the draw. He further stated that both Mr. Spurlock and Mr. Kraft received all the monies to which they were entitled, and that there were some charge backs which were not deducted.

In this appeal, plaintiffs allege that the trial court erred in finding that defendants complied with La. R.S. 23:631. They further allege that the trial court erred in finding that they had not been terminated from employment and that they were not entitled to additional commissions and vacation pay.

At the time of the filing of this suit, La. R.S. 23:631 provided in part that that:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge.
15(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.

La. R.S. 23:632 provides for penalties and attorney fees for any employer who fails or refuses to comply with the provisions of La. R.S. 23:631.

To recover past due wages under La. R.S. 23:631, three criterion must be met: 1) The employee must prove that wages were due and owing; 2) that demand for payment was made at the place where he was usually paid; and, 3) that the employer failed to pay upon demand. Sam v. Jhane Home Health Care Services, Inc., 95-0081 (La.App. 4 Cir. 6/07/95), 657 So.2d 559, 561.

A trial court’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880; Lasyone v. Kansas City Southern R.R., 2000-2628 (La.4/3/01), 786 So.2d 682.

In this case, the trial court reviewed the evidence presented and found that both plaintiffs voluntarily resigned from employment, and that the plaintiffs were timely paid all wages, vacation pay, and commission due pursuant to La. R.S. 23:631. Our review of the record finds no manifest error in this determination.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against plaintiffs.

AFFIRMED.

      . La. R.S. 23:631(A)(1)(a) was amended by Acts 2001, 1171, § 1 and now provides that "Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharges, whichever occurs first.”


author: J^SOL GOTHARD, Judge.

text:
    Ray D. WISE v. Laura D. WISE.
    No. 02-CA-574.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2002.

      Daniel W. Nodurft, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and THOMAS F. DALEY.
   J^SOL GOTHARD, Judge.

Defendant, Ray Wise, appeals a judgment of the trial court that granted a protective order in favor of his former wife and plaintiff herein, Laura Wise. For reasons that follow, we affirm.

The record shows the parties were divorced by decree dated September 29, 1993. There were continuing acrimonious relations between the parties that resulted in the filing of a Petition for Protective Order pursuant to the Louisiana Domestic Abuse Assistance Act, dated December 18, 2001. In that petition, Mrs. Wise alleged she was slapped, choked, shoved and stalked by Mr. Wise, and that he threatened her with bodily harm and death. Mr. Wise had been confined to prison for the previous six months for failure to pay child support, and Mrs. Wise contended that upon his release she would not be safe. A temporary restraining order was issued the same day ordering Mr. Wise to refrain from any behavior listed in the petition and from coming any closer than one-hundred yards of Mrs. Wise’s residence. A hearing was set for the matter on January 10, 2002, after which the court issued the protective order as requested for a period of eighteen months. Mr. Wise appeals that judgment.

LSA-R.S. 46:2136 permits a court to grant a protective order to prevent the possibility of family violence, provided a petition is filed requesting the order and the defendant is afforded reasonable notice consistent with due process. Bays v. Bays, 2000-1727 (La.2/21/01), 779 So.2d 754. In the instant matter, there was a petition filed and a full hearing that afforded defendant due process. Further, the order was issued for eighteen months in accordance with the statute as revised. Thus, the only issue for our review is whether the trial court committed manifest error in granting the protective order after considering all of the testimony and evidence.

At the hearing Mrs. Wise testified that her husband had made prior threats. She also testified that Mr. Wise had spent six months in prison for failure to pay child support and he indicated to her he would extract revenge. She described prior physical violence she experienced during the marriage. She stated that Mr. Wise has hit her, put a belt around her neck and choked her. According to Mrs. Wise’s testimony, Mr. Wise has “on more than one occasion” placed a plastic bag over her head, holding it there until she stopped fighting to get free and laid still, pretending to be unconscious. Mrs. Wise testified that she feared for her life since her husband was released from prison. Mrs. Wise testified that during the marriage she spent six days in the hospital recovering from a physical attack by her husband. On cross-examination, she also admitted she endured another hospital stay for threatened suicide. She also admitted that, on a document she executed to report failure to pay child support, she did not report any violence. She explained that she did not wish to report the threats at that time because they were irrelevant to the issue of child support. Mrs. Wise also stated that after the divorce Mr. Wise would leave unsigned messages on her car windshield. She felt stalked by these actions, but never reported them to the police because she had no proof it was her husband who had left the notes.

The court also heard testimony from Sean Trouiet, who is both Mr. Wise’s sister, and Mrs. Wise’s step-sister. Ms. Trouiet testified that she has never known Ray to abuse his wife. On cross-examination, Ms. Trouiet admitted that, while she | ¿visited the Wise home on occasion, she never spent the night. She agreed that Mrs. Wise could have been terrorized and Ms. Trouiet would not know it. Ms. Trouiet stated that she wished to remain neutral and not get involved. She said, “I didn’t want to be on his side or her side. I have nothing to do with this.”

Janet Bradbury, Mrs. Wise’s sister, testified, although the Wises lived with her for two years, Ms. Bradbury did not see any physical or verbal abuse. Ms. Bradbury also testified that she has maintained contact with both parties after the divorce. She stated that Mrs. Wise has not told her of the abuse and Mr. Wise did not make any threats toward Mrs. Wise. On cross-examination, Ms. Bradbury admitted that she and Mrs. Wise have been estranged for several years. Ms. Bradbury was married about eighteen months before trial and Mrs. Wise has never met her husband. Ms. Bradbury also admitted that she was divorced in 1987 and did not discuss the matter with Mrs. Wise.

Mr. Wise testified at the hearing. He denied any physical or verbal abuse of his wife. Further, he denied any threats of retaliation for spending six months in jail as a result of failure to pay child support. He admitted calling Mrs. Wise’s home during the imprisonment, but explained it was only to speak to his daughter. He specifically denied hitting, choking, and stalking his wife. He did describe two occasions when he struck Mrs. Wise. The first was during an argument that happened while Mr. Wise was driving. He testified that Mrs. Wise struck him several times and he retaliated, hitting her on the shoulder. On a second occasion, Mr. Wise was speaking to his lawyer on the phone and Mrs. Wise became enraged and began hitting him. A fight ensued and Mr. Wise knocked Mrs. Wise to the ground, holding her legs so she could not kick him. Mr. Wise stated that he called 911 to get help, the operator told him “to get up off his wife and go outside.” When the officers arrived about five minutes later he allowed Mrs. Wise to get up. He explained that he did not do so earlier because he was afraid he would be 1 Bhit again. Mr. Wise also admitted he left notes on her car, along with flowers in hopes of reconciling shortly after the separation. He further stated that he left money in her car. He denied that he was stalking or threatening her.

After hearing all of the testimony, the trial judge gave extensive reasons for his decision to grant the protective order. He explained that observations of the witnesses, their demeanor and the reasonableness of what was said affected his decision. He also stated that the record corroborated Mrs. Wise’s testimony of pri- or violence, and “I quite candidly have no doubt that what Mrs. Laura Wise says to be truth is true. I think that the stuff that happened between her and Mr. Wise did happen.”

A reviewing court may not reverse a trial court’s finding of fact absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Though Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880. Given the above testimony and the trial court’s finding of facts, we cannot find manifest error in the decision to grant the protective order. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.