text:
    STATE of Louisiana v. Davis WALKER.
    No. 2002-KA-1350.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.
    Harry F. Connick, District Attorney of Orleans Parish, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   1LEON A. CANNIZZARO, JR., Judge.

STATEMENT OF THE CASE

The defendant, Davis Walker, was convicted on two counts of first degree robbery and one count of attempted first degree robbery. The defendant was also convicted of being a multiple offender. He was found not guilty of a count of armed robbery. He is appealing his convictions on the grounds that he had ineffective assistance of counsel, that there was insufficient evidence to convict him, and that he should not have been convicted as a multiple offender. He has also raised the issue of the appellate court’s inability to review all the evidence presented at trial, because some of the physical evidence introduced at trial cannot now be located.

FACTS

On March 27, 1996, the defendant was arrested in Atlanta, Georgia as a result of information that had been transmitted from the New Orleans Police Department to the police department in Atlanta. The defendant was extradited to Orleans Parish where he was arraigned on June 11, 1997, on the following charges: (1) a charge of armed robbery at the E-Z Serve Store at 3434 St. Charles Avenue, |?New Orleans, Louisiana; (2) a charge of attempted first degree robbery at the Owl Food Mart on Chef Menteur Highway in New Orleans, Louisiana; (3) a charge of first degree robbery at a Texaco Gas Station convenience store at 9232 Chef Ment-eur Highway, New Orleans, Louisiana; and (4) a charge of first degree robbery at the E-Z Serve Store at 3340 Orleans Avenue, New Orleans, Louisiana. The defendant pleaded not guilty to all charges at the arraignment. Beginning on April 7, 1998, the defendant was tried on all four charges. On April 9, 1998, he was found not guilty on the armed robbery count, but he was convicted on the two counts of first degree robbery and the count of attempted first degree robbery.

The defendant was charged as a multiple offender, and on June 27, 2000, a hearing on the multiple bill was held. On January 30, 2002, the defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence as a triple offender on the conviction for attempted first degree robbery at the Owl Food Store, to ten years at hard labor on the conviction for first degree robbery at the Texaco Gas Station, and to twenty years at hard labor on the conviction for first degree robbery at the Orleans Avenue E-Z Serve Store. All sentences are to be served consecutively.

Count 1: Armed Robbery of St. Charles Avenue E-Z Serv: Violation of La. R.S. 14:64

On January 17, 1996, New Orleans Police Department Officer Andrew Rocca-forte responded to an armed robbery call at the E-Z Serve Store located at 3434 St. Charles Avenue, New Orleans, Louisiana. Officer Roccaforte Utestified at trial that he met with Ms. Nicole Harris, the cashier at the convenience store, who gave him a description of the perpetrator. At trial, Officer Roccaforte testified as to the description of the perpetrator, which he had written on a police report that was based on information received from Ms. Harris when he interviewed her.

Officer Roccaforte testified that Ms. Harris had described the perpetrator as being a black male with a brown complexion, who was approximately twenty-eight to thirty years old. He was described as being about five feet eight inches tall and weighing about one hundred and fifty pounds. He was wearing a green cap, a white bandanna underneath the cap, a gray and green sweater, and green pants.

The defendant was found not guilty on this count. Therefore, the jury’s determination on this count is not being appealed. Count 2: Attempted First Degree Robbery of Owl Food Mart: Violation of La. 14:(27)64.1

On January 17, 1996, New Orleans Police Department Officer Docia Bates responded to a call regarding an incident at the Owl Food Mart on Chef Menteur Highway in New Orleans, Louisiana. She testified at trial that when she went to the food mart, she interviewed a cashier at the store and prepared a police report that included a description of the perpetrator. Officer Bates testified that, according to the police report that she prepared, the perpetrator was a “black male, late twenties, five-foot-six, about a hundred and forty pounds” wearing “green pants, unknown type shirt, a beige or white dirty looking sweater”. He was also wearing “a dark-colored bandana”. Officer Bates also testified that she recovered from the security camera at the Owl |4Food Mart a videotape made the day the crime occurred. Finally, Officer Bates testified that the witness she interviewed when she initially investigated the robbery stated that the perpetrator drove away from the store in a “maroon or a burgundy Buick, a Buick Regal”.

Ms. Kathrin T. Pratt also testified in connection with the incident at the Owl Food Mart. Ms. Pratt stated at trial that she was working with Ms. Carol Ann Atkinson, who was being trained as a cashier by Ms. Pratt. Ms. Pratt had gone into the back of the store, when she heard Ms. Atkinson having trouble with the cash register. When Ms. Pratt went to the front of the store to assist Ms. Atkinson, there was someone else in the front of the store. Ms. Pratt assumed this person had a weapon or a gun based on the person’s appearance, and she testified that the person was asking Ms. Atkinson to give him money. Ms. Pratt testified that the person “was wearing a gray sweater with a large green stripe going across the front with a bandanna on his head and a baseball cap”. Ms. Pratt further testified that she had viewed the videotape recovered by Officer Bates from the store’s security camera and that it accurately depicted what had happened on January 17, 1996. The videotape was introduced into evidence as State’s Exhibit 3.

Ms. Pratt further testified that she had been shown a photo line-up and from the line-up she had been able to identify the perpetrator of the Owl Food Mart robbery. The photo line-up was introduced into evidence as State’s Exhibit 4.

The defendant was found guilty by the jury of an attempted first degree robbery at the Owl Food Mart. Although the jury viewed State’s [¡^Exhibit 3 and State’s Exhibit 4, these exhibits are unavailable for this Court to review on appeal.

Count 3: First Degree Robbery of Texaco Gas Station Convenience Store: Violation of La. R.S. 14:64.1

At trial, Ms. Deshawn George testified that on January 17, 1996, while she was working at a Texaco Gas Station, a man walked into the convenience store associated with the station. Ms. George said that the man put something against her back, and asked her to open the store cash register. She opened the cash register, and the man took the money in it and left. Ms. George testified that she thought the man had a gun, but she could only identify some of the clothing he was wearing and could not identify his face. Ms. George testified that the man was wearing a “gray sweater with a stripe going across” and that the stripe was green or blue. The defendant was found guilty of this robbery by the jury.

Count 4: First Degree Robbery of Orleans Avenue E-Z Serv: Violation of La. R.S. 14:64.1

On January 17, 1996, New Orleans Police Department Officer Roland J. Dou-cette, Sr. responded to a robbery call at the E-Z Serve Store located at 3340 Orleans Avenue, New Orleans, Louisiana. Officer Doucette testified at trial that he met with the victim, Ms. Darlene Fogan Jones, who gave him a description of the perpetrator. Officer Doucette testified at trial that the robbery victim described the perpetrator as “a black male about five foot seven, about a hundred forty pounds”. The perpetrator was further described as wearing “brown pants, beige shirt with blue wrap-around stripes” and black and white tennis shoes. Office Doucette also identified at trial a videotape made during the robbery by a security camera installed in the store, | f;and the videotape was introduced into evidence as State’s Exhibit 1. Ms. Jones testified at trial that the videotape accurately depicted what happened during the robbery. She testified that the perpetrator came into the store, walked past her to the store manager, then turned around and said, “Give me the money. I have a gun.”

At trial, Antoinette Ashford, the manager of the Orleans Avenue E-Z Serve on January 17, 1996, testified that the perpetrator walked into the store and immediately came up to her and asked for some money. He then took approximately $130.00 from the cashier. Ms. Ashford testified that the perpetrator was wearing “some brown pants, a sweater with a strip [sic] in it, and a T-shirt under the sweater”. She also testified that his clothes were not clean and that he wore a bandanna. Additionally, Ms. Ashford testified that she was able to identify one of the photographs in a photo line-up as the perpetrator’s photograph. The photo lineup was introduced into evidence at the trial as State’s Exhibit 2.

Mr. Walker was found guilty of this robbery by the jury. Although the jury viewed State’s Exhibit 1 and State’s Exhibit 2, these exhibits are unavailable for this Court to review on appeal.

Trial Testimony Regarding the Investigation

New Orleans Police Department Detective David Patrolia testified that he investigated the series of robberies with which the defendant was charged and that he developed the defendant as a suspect. Detective Patrolia testified that he noted similarities in the descriptions of the perpetrator that were given by the various victims. He also stated that he compared the perpetrator shown in the security camera videotapes to a photograph of the defendant and |7realized “there was no doubt it was him”. Detective Patrolia also testified that he recovered the defendant’s car from the residence of Aretha Cassimere Davis. Ms. Davis and the defendant had lived together at this residence, and Ms. Davis still lived there at the time the car was recovered. The car was a burgundy Buick Regal that fit the description of the car the perpetrator used to leave the Owl Food Mart.

Testimony for the Defense

The defendant testified at trial that he moved to Atlanta, Georgia in December of 1995, and that he was in Atlanta when the robberies occurred. He also testified that he was not the person seen on the security camera videotapes.

The defendant’s father also testified at trial that he took his son to the bus station on December 9, 1995, and bought him a Greyhound bus ticket to Atlanta. He further testified that he sent money to him in Atlanta through Western Union.

Ms. Davis testified that she was the defendant’s “common law” wife, that they had been living together for several years, but that he left in December of 1995. Ms. Cassimere testified that she knew the defendant was not in New Orleans on the date that the robberies occurred. She also stated that she was using the defendant’s car on that date. She further denied telling any New Orleans police officers that she had seen the defendant a day or two before January 17, 1996. On rebuttal, however, Detective Patrolia testified that when he talked with Ms. Cassimere on January 27 or 28, 1996, she told him that she had seen the defendant on January 15 or 16,1996, in New Orleans.

^ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. ONE: The Defendant was Denied Effective Assistance of Counsel at Both Trial and Pre-Trial Proceedings Pursuant to Strickland v. Washington.

Because this Court is remanding this case to the trial court for a new trial, this issue need not be addressed at this time. Additionally, with regard to the issue of effective assistance of counsel, the Louisiana Supreme Court stated in State v. Prudholm, 446 So.2d 729 (La.1984), that “defendant’s remedy is through post conviction relief in the trial court where the quality of the attorney’s assistance can be fully developed and explored”. Id. at 737.

ASSIGNMENT OF ERROR NO. TWO: The Jury Erred in Finding Defendant Guilty of Counts 2, 3, and 4 of the Bill of Information.

The defendant argues that he was convicted on insufficient evidence. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court discussed the standard to be used by an appellate court to evaluate whether the evidence is sufficient for a criminal conviction. That Court stated:

[t]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Woodby v. INS, 385 U.S., [276] at 282, 87 S.Ct. [483] at 486[, 17 L.Ed.2d 362 (1966)] (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S., [356] at 362, 92 S.Ct. [1620] at 1624-1625[, 32 L.Ed.2d 152 (1972)]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion 19that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law. 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (footnotes omitted and emphasis in original).

See also State v. Mussall, 523 So.2d 1305 (La.1988); State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99.

Because this Court is reversing the convictions on Counts 2 and 4, it is necessary to discuss the sufficiency of the evidence with respect to Count 3 only. The only evidence offered at trial in connection with Count 3 was the eyewitness testimony of Ms. George.

The only testimony Ms. George gave regarding the description of the perpetrator of the crime at the Texaco Gas Station convenience store was that he was wearing a gray sweater with a green or blue stripe. She also said that she could not identify his face. Although the description of the sweater generally matches the description of the sweater the perpetrator of the other robberies wore and the robbery at the Texaco Gas Station convenience store was located on the same highway as another of the robbery locations, this Court does not find that the evidence with respect to Count 3 meets the standard required by Jackson v. Virginia, discussed above. Even viewing the evidence in the light most favorable to the prosecution, this Court does not find that this evidence is a sufficient basis upon which to find the defendant guilty of Count 3 beyond a reasonable doubt. The evidence certainly suggests the defendant, but a suggestion is not enough to prove beyond a reasonable doubt that the defendant robbed Ms. George. Therefore, we vacate the defendant’s conviction and the sentence with respect to Count 3.

1-, (ASSIGNMENT OF ERROR NOS. THREE AND FOUR: Trial Court Erred in Denying Motions for a New Trial and Trial Court Erred in Finding Defendant a Multiple Offender Pursuant to La. R.S. 15:529.1

Because this Court is remanding this case to the trial court for a new trial, these issues need not be addressed.

SUPPLEMENTAL ARGUMENT

The defendant argues that his right to review on appeal has been compromised. He argues that he is entitled to have this Court review a complete transcript of the trial proceedings but that certain items are missing from the record that is available for this Court to review. A thorough search for these items was ordered by this Court, but the trial court, the clerk of that court, the prosecutor’s office, and the defense counsel have all certified that the missing items cannot be located after a diligent search.

The items that are missing from the record this Court has are (1) State’s Exhibit 1, the security camera videotape of the robbery at the Orleans Street E-Z Serve store, (2) State’s Exhibit 2, the photo lineup from which Ms. Ashford, one of the employees at the E-Z Serv, identified the defendant as the perpetrator of the crime at that store, (3) State’s Exhibit 3, the security camera videotape of the incident at the Owl Food Mart, and (4) State’s Exhibit 4, the photo lineup from which Ms. Pratt, the victim of the incident at the Owl Food Mart, identified the defendant as the perpetrator of the incident.

La. Const, art. 1, § 19 provides that “[n]o person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all the evidence upon which the judgment is | abased.” (Emphasis added.) In State v. Ford, 338 So.2d 107 (La.1976), the Louisiana State Supreme Court stated as follows:

Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial. Id. at 110.

See also State v. Bright, 2000-1255 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112.

This Court has reviewed its decision in State v. Tucker, 95-0030 (La.App. 4 Cir. 9/18/96), 682 So.2d 261, in which this Court stated that “where the missing portions of the trial record are not evidentiary, their absence does not compromise the defendant’s constitutional right to a judicial review of all evidence.” Id. at p. 4 and at 263. In Tucker, this Court affirmed the defendant’s conviction even though the photographs used in a photo line-up were missing and not included in the record that was available for this Court to review. In Tucker, unlike in the instant case, the photo line-up was not introduced into evidence at the trial. Therefore, the evidentiary portion of the trial was made part of the appellate record, and reversal was not mandated in Tucker. In the instant case, however, this Court does not have before it all of the evidentiary portion of the record.

In State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the Louisiana Supreme Court set forth guidelines to be used to determine whether missing portions of a transcript in a criminal trial require reversal on appeal. That Court stated:

Both this court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of l^the trial proceedings, particularly, where as here, appellate counsel was not counsel at trial. See Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); State v. Robinson, 387 So.2d 1143 (La.1980). Further, in Louisiana, a defendant is constitutionally guaranteed the right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” La. Const. Art. I, § 19. Thus, material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal....
On the other hand, inconsequential omissions or slight inaccuracies do not require reversal, as an incomplete record may nonetheless be adequate for appellate review. Id. at p. 10-11 and at 1234.

In the Demise case, the Court also stated that “a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts”. Id. at p. 11 and at 1234.

Applying the guidelines set forth in the Demise case to the instant case, this Court finds that the defendant is clearly prejudiced by not having the missing evidentia-ry exhibits that were introduced at trial. These exhibits were the critical evidence considered by the jury in finding the defendant guilty of first degree robbery of the Orleans Avenue E-Z Serv and attempted first degree robbery of the Owl Food Mart. The videotapes and the photographs relating to the Owl Food Mart incident constituted the physical evidence that resulted in the defendant being sentenced to life in prison without the possibility of parole, probation, or suspension of sentence. Not only does this Court not have available for review on appeal the critical evidence in the instant case, appellate counsel is also denied the opportunity to review the evidence that resulted in his client, the defendant, receiving a life sentence. In the instant case, appellate counsel is not the same as trial counsel, so appellate counsel has never had the opportunity to review the physical evidence upon which his client was convicted. This is clearly prejudicial to the defendant.

| ^Additionally, this case is one in which the defendant was convicted solely because he was identified from three types of evidence: videotapes of the crimes, photo line-ups, and testimony describing the perpetrator and his clothing. There was, however, no in court identification of the defendant by any of the witnesses. Any weapon the perpetrator may have had was never recovered, the perpetrator’s clothing was never recovered, the proceeds of the robbery were not recovered, and no fingerprints were recovered. The defendant was not arrested until more than two months after the crimes, and he was arrested in another state. The jury convicted the defendant based on his identity as the perpetrator determined from the missing videotapes, the missing photo line-ups, and the testimony at trial. The only portion of this evidence that is available for review on appeal is the testimony describing the perpetrator and his clothing. The perpetrator was described as a black man between five feet six and five feet eight inches tall weighing between one hundred forty and one hundred fifty pounds. The testimony identifying the clothing worn by the perpetrator described similar, but not identical, items of clothing, clothing that was never recovered and, therefore, not introduced at trial. Because this Court believes that the missing videotapes and the missing photo line-ups were very significant items of evidence, and we must assume that they were heavily relied upon by the jury to convict the defendant, it would be both grossly unfair and unconstitutional under Article 1, § 19 of the Louisiana Constitution for this Court to review the record in this case without all of the critical evidence.

Although this Court assumes that the jury was correct in its determination of the defendant’s guilt in the crimes that occurred at the two stores that had security cameras that videotaped the crimes, the Louisiana Constitution does not permit this luCourt to rely on the jury’s verdict without a review of the entire record of the trial. There were critical items of physical evidence introduced at the defendant’s trial, and it is this Court’s constitutional duty to review that evidence, as well as the rest of the record of the trial proceedings, to determine whether the defendant has received a fair trial that comports with the requirements of law, including the Louisiana Constitution and the United States Constitution. In this case, this Court cannot do this, because the critical evidence is missing. We are, therefore, bound to reverse the defendant’s convictions for attempted first degree robbery of the Owl Food Mart and for first degree robbery of the Orleans Avenue E-Z Serv. Because this Court is reversing the conviction of the crime for which the defendant was charged and convicted as a multiple offender, his adjudication as a multiple offender pursuant to La. R.S. 15:529.1 must be reversed, also.

CONCLUSION

The defendant’s conviction and sentence on Count 3 are vacated. His convictions on Count 2 and Count 4 are reversed, and this case is remanded to the trial court for a new trial on Count 2 and Count 4 and for further proceedings in accordance with this opinion.

CONVICTION AND SENTENCE VACATED ON ONE COUNT, REVERSED AND REMANDED FOR NEW TRIAL ON REMAINING COUNTS.

      . The Owl Food Mart is also referred to in the record as the Owel Food Mart.

      . In the original bill of information, the defendant was charged with five counts, but the first count was severed from the others prior to the trial. Therefore, in this opinion Count 1, Count 2, Count 3, and Count 4 are Count 2, Count 3, Count 4, and Count 5, respectively, in the original bill of information. The counts in the bill of information, as read at trial, however, match the counts as they are designated in this opinion.


source: Caselaw Access Project

author: 1DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Johnnie Mae WILLIAMS, Clinesta Williams and Connie Veal Williams v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2002-CA-1017.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Christopher J. Bruno, Bruno & Bruno, New Orleans, LA, for Plaintiff/Appellee.
    Henry P. Julien, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY).
   1DAVID S. GORBATY, Judge.

The Housing Authority of New Orleans (hereinafter HANO) appeals a judgment wherein it was held liable for the death of Phillip Williams, and ordered to pay damages to Mr. Williams’ widow and two daughters. HANO argues that the trial court erred in finding liability on its part, and in awarding excessive damages to the plaintiffs. For the following reasons, we affirm.

FACTS:

On August 6, 1995, Phillip Williams arrived at his wife’s home to visit. According to an eyewitness, before entering the house, located in the St. Bernard Housing Development, he kneeled down and leaned out of the opening in the third floor hallway. He then rose, pulled at the screen door, fell backwards, and tumbled out of the window opening. Mr. Williams hit an obstruction between the third and first floors, and then struck the pavement headfirst. He was transported to the Medical Center of Louisiana, where he was pronounced dead.

Mr. Williams’ widow, Johnnie Mae Williams, and his two daughters, Connie Williams Veal and Ginesta Williams, filed a petition for damages seeking | ¿to recover for Mr. Williams’ wrongful death. The petition alleged that HANO was strictly liable for creating an unreasonably dangerous condition. Alternatively, HANO was negligent for failing to repair the window and/or prevent persons from falling out of the opening. HANO answered the petition and filed a third-party demand against Mrs. Williams, the lessee of the apartment, for failing to notify HANO of the window’s condition, failing to place a barrier in the opening, and allowing the decedent to stand next to the opening.

After a bench trial, the district court found HANO one hundred percent at fault, and awarded Johnnie Mae $50,000, Connie $40,000, and Ginesta $25,000 for loss of love, affection and compensation.

DISCUSSION:

Assignments of Error 2, 3 and 4 are renewable pursuant to the manifest error/clearly wrong standard. Thus, unless this Court finds no reasonable basis in the record for the factual findings of the trial court, or that the factual findings are manifestly erroneous/clearly wrong, we must affirm. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Assignment of Error No. 1:

This assignment of error has not been briefed by HANO, and is thus considered abandoned. Uniform Rules — Courts of Appeal 212.4.

Assignment of Error No. 2:

HANO contends that it was error for the district court to determine that the window was the cause of Mr. Williams’ fall. Specifically, it was error for the court 13to determine that the window opening was defective in that the sill was only 27 inches from the ground.

The reasons for judgment indicate that the court found that the large opening in the common area wall was a defect that created an unreasonable risk of harm. The only reference to the sill is that the 3 by 5 foot opening in the wall was 27 inches above the ground. Indeed, it is apparent from the evidence that because there was no window at all in the opening, there also was no sill.

Plaintiffs’ expert testified that the building code at the time of the accident required that a window, railing or some type of guard be placed in the opening to prevent someone from falling through. Thus, because the district court found that the unreasonable risk of harm was created by the large opening in an exterior wall of a third floor hallway, and not just the bottom height of the opening, we find the argument based on the height of the sill to lack merit.

Assignment of Error No. 3:

HANO asserts that it was error for the trial court to determine that the “window” was the cause of Mr. Williams’ death. It argues that in this case, cause in fact had two applications. First, the trial court had to determine that but for the defect, Mr. Williams would not have fallen from the window. Second, the court had to determine that the fall was the cause in fact of decedent’s injuries and death.

HANO again argues that plaintiffs’ own expert could not say with any degree of certainty that if the sill had been higher, it would have prevented Mr. Williams’ fall. We must again point out that trial court found that the opening in |4the wall was the defect, not the height of the sill. Regardless of what caused Mr. Williams to fall, the fact remains that but for the opening in the wall, he would not have plummeted three stories to the ground.

HANO also argues that it was error for the trial court to determine that the fall from the window was a cause in fact of Mr. Williams’ death. Contrary to HANO’s assertion in the title of this assignment of error, the trial court did not find that the window caused the fall, but rather the defect in the building was a cause-in-fact of Mr. Williams’ death.

The trial court heard uncontradicted testimony from an eyewitness to the accident. Ms. Dionne Eley, who lived across the courtyard from Mrs. Williams’ apartment, testified that she witnessed the events before, during and after Mr. Williams’ fall. Ms. Eley was seated at her kitchen table talking on the telephone when she saw a man standing in the third floor hallway of the building across from hers. Ms. Eley testified that the man kneeled down at first, and leaned against the bottom of the opening. He then stood up, reached out, and pulled back on the screen door toward the opening. The man then tumbled from the window, hit an obstruction between the third floor and the ground, and then struck the pavement. HANO submitted no evidence to contradict Ms. Eley’s version of how the accident occurred.

Based on this record evidence, we cannot say that the trial court was manifestly erroneous/clearly wrong in its factual finding that the fall from the opening in the wall was the cause of Mr. Williams’ death.

[R Assignment of Error No. 4:

HANO argues that the trial court erred in concluding that the fall caused Mr. Williams’ death, absent any medical testimony. HANO contends that Mr. Williams could have suffered a stroke or heart attack causing him to stumble, or he could have been pushed from the window. HANO submits that plaintiffs’ testimony as to Mr. Williams’ pre-accident health is insufficient to prove he was in good health.

While it is accurate to state that plaintiffs’ did not offer any medical records to support their contentions, we must note that HANO likewise did not offer any evidence to disprove the plaintiffs’ testimony. Mr. Williams’ widow and two daughters all testified that they were unaware of any ailments, illnesses, or diseases suffered by Mr. Williams prior to this accident. Further, the eyewitness, Ms. Eley, did not witness the man having any type of seizure or attack, nor did she see anyone else in the hallway.

The medical records from the Medical Center of Louisiana indicate that Mr. Williams suffered a head trauma that lead to cardio-respiratory arrest.

Based on the above, we cannot say the trial court was manifestly erroneous/clearly wrong in this factual finding.

Assignment of Error No. 5:

In its last assignment of error, HANO asserts that the damage awards for loss of love, affection and compensation are excessive.

| fiIt is well settled that the trial court has vast discretion in setting the amount of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), and its progeny.

In its reasons for judgment, the trial court noted that the relationships between the deceased and his widow and daughters were not extremely close. However, the court also noted that the testimony supported the fact that Mr. Williams had attempted to rekindle his relationships with his family during the last years of his life. His widow testified that he visited with her at least three times a week, and although she would not allow him to live with her, the couple did enjoy each other’s companionship and engaged in intimate relations. Mrs. Williams testified that she lost her friend when her husband died.

Connie Williams Veal admitted that her father was not around when she was growing up, but testified that they began to develop a relationship when she was around 15 or 16. Ms. Veal was 35 at the time of trial. Mr. Williams had lived with Ms. Veal since 1987, and they frequently played dominoes and spades together. Ms. Veal testified that her father was close with her three children, and often took them to the playground or played ball with them. She did not expect her father to pay rent, but he insisted on buying things for her children whenever he could.

Ginesta Williams also testified that she had no real memories of her father from her childhood. She understood as an adult that her mother was her sole source of support as a child. Howéver, she too began a new relationship with her father at around age 15 or 16. She was 36 at the time of trial. Ginesta lived across |7the river from her sister, but often visited her father at her sister’s house. She stated that her father would sometimes call her on the telephone just to see how she was doing.

Based on this testimony, we find no abuse of the trial court’s vast discretion in making the general damage awards.

Accordingly, we affirm the judgment of the trial court. All costs of this appeal are assessed to HANO.

AFFIRMED.


author: 1LEON A. CANNIZZARO, JR., Judge.

text:
    Laura MILLET v. Dr. Glenn SCHMIDT, D.D.S.
    No. 2002-CA-0756.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Frederick J. Gisevius, Jr., Jane M. Gi-sevius, Law Offices of Frederick J. Gisevi-us, Jr., New Orleans, LA, for Plaintiff/Ap-pellee.
    Richard G. Duplantier, Jr., Michael J. Ecuyer, Galloway, Johnson, Tompkins & Burr, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   1LEON A. CANNIZZARO, JR., Judge.

This case involves a dental malpractice claim by the plaintiff, Laura Millet, against the defendant, Glenn Schmidt, D.D.S. At trial, Dr. Schmidt stipulated to liability for breaching the standard of care in connection with a root canal procedure he performed on Ms. Millet, and the trial court awarded Ms. Millet actual damages plus $100,000.00 in general damages. Dr. Schmidt is appealing the trial court’s decision on the grounds that the amount of general damages awarded to Ms. Millet was excessive. For the reasons set forth below, this Court affirms the trial court decision.

FACTS AND PROCEDURAL HISTORY

On January 4, 1994, Ms. Millet was putting a collar on a dog at the veterinary clinic where she worked, when the dog hit her mouth and injured her upper front teeth. On January 5, 1994, Ms. Millet was treated by Dr. Schmidt for the injury to her teeth. Dr. Schmidt examined Ms. Millet’s teeth, took dental x-rays, and advised Ms. Millet that one of her front teeth, tooth number 8 (the “Tooth,”), needed a root canal. Ms. Millet consented to the root canal, and Dr. Schmidt began the procedure.

| ¡.During the course of the root canal, Dr. Schmidt perforated the Tooth. As a result, Ms. Millet suffered injuries to her gum and her lip, and an opening in the Tooth had to be sealed. Due to the complication that had occurred during the root canal procedure, Dr. Schmidt immediately referred Ms. Millet to Dr. David Toca, an endodontist, who saw Ms. Millet on an emergency basis. Dr. Toca temporarily repaired the Tooth, advised Ms. Millet that additional repair would be necessary, and told her to make another appointment.

Ms. Millet, who was a graduate student at Tulane University in New Orleans at the time, contacted her parents who lived in San Antonio, Texas. They decided that Ms. Millet should return home for further treatment. Upon Ms. Millet’s return to San Antonio, her mother took her to three dental specialists, all of whom advised Ms. Millet that the Tooth would have to be removed and that additional complex dental procedures would be needed.

Ms. Millet then sought treatment from Dr. Donald Masters, a periodontist, and Dr. Winston Bradley Woods, a general dentist, at the Master’s Dental Group in San Antonio. Ms. Millet first saw Dr. Woods on January 7, 1994, and on February 18, 1994, Dr. Masters performed oral surgery on Ms. Millet that revealed not only damage to the Tooth, gum, and lip but also extensive damage to the bone. During the gum surgery, Dr. Wood performed root canal surgery and restored the Tooth. After the gum surgery, Dr. Masters and Dr. Woods advised Ms. Millet that she would ultimately lose the Tooth, but they advised her to keep the Tooth as long as possible. A series of complex dental procedures would need to be performed to restore the Tooth permanently.

Pursuant to the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et. seq., Ms. Millet filed a claim against Dr. Schmidt. A medical review panel found |3that Dr. Schmidt had breached the standard of care by causing a perforation during the root canal that he attempted to perform and that Ms. Millet had suffered damages as a result of the breach.

STANDARD OF REVIEW

La. Civil Code art. 2324.1 provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to' the judge or jury.” The standard for appellate court review of a trial court’s award of general damages was discussed by the Louisiana Supreme Court in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). The Court stated:

“[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” 623 So.2d at 1261.

See also Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Merritt v. Karcioglu, 95-1335 (La.App. 4 Cir. 1/19/96), 668 So.2d 469.

DISCUSSION

In the instant case the trial court judge awarded Ms. Millet $100,000.00 in general damages. Dr. Schmidt contends that the amount of damages awarded to Ms. Millet is excessive and that she should have mitigated her damages for embarrassment and emotional distress by having the Tooth cosmetically restored.

This Court has reviewed the record and finds that the trial judge did not abuse her discretion in awarding general damages of $100,000.00 to Ms. Millet. |4There is ample evidence in the record to support this award. In addition to the embarrassment and emotional distress one would expect any attractive, young woman to suffer from having a discolored and misaligned front tooth, Ms. Millet suffered very serious bone damage from the root canal procedure performed by Dr. Schmidt. This bone damage is what necessitated the complex restorative procedures that Ms. Millet has undergone and will continue to undergo in the future. Because of Dr. Schmidt’s negligence Ms. Millet has had to undergo a number of dental procedures, including oral surgery, to determine the extent of the damage done by Dr. Schmidt, to prepare her mouth for the needed restoration, and to determine exactly what the best method of restoration is. At trial expert witnesses for both sides described restorative procedures that could take as long as one or two years to complete. The procedure preferred by Ms. Millet’s treating dentist involves gradually extruding or elongating the Tooth through orthodontia in the hope that the bone around the Tooth will regenerate to some extent. Then grafts and implants will be needed to replace lost bone and the root of the Tooth so that a crown, or false tooth, can be fitted in place of the Tooth, which the expert witnesses on both sides agreed had to be removed at some point in the restoration process.

The trial judge was able to view the Tooth, to view the Tooth’s appearance and its effect on Ms. Millet’s overall appearance, and to evaluate the credibility of the expert witnesses’ testimony regarding the bone loss that Ms. Millet suffered. We find that a reasonable trier of fact could have assessed $100,000.00 in general damages considering the particular facts in the instant case. In this case a young, attractive woman had a front tooth that was discolored and misaligned, and there had been a pronounced affect on her appearance. The most serious damage, | Rhowever, was the extensive bone loss that occurred as a direct result of Dr. Schmidt’s negligence. This bone loss was so serious that in order to artificially restore Ms. Millet’s front tooth a series of procedures that could take as long as two years to complete will be necessary. Additionally, according to the testimony of Ms. Millet’s treating dentist, there is a possibility that the restoration process will not produce the desired result. Therefore, the trial judge was acting within her discretion in awarding the general damages.

Dr. Schmidt cited in his brief several cases in which damages were awarded for dental malpractice. Dr. Schmidt suggested that, based on these cases, the general award of $100,000.00 in the instant case was excessive. In the Youn case, cited above, the Louisiana Supreme Court instructed that “[o]nly after such a determination of an abuse of discretion is a resort to prior awards appropriate.... ” Youn, 623 So.2d at 1260. This Court has not made a determination of abuse of discretion. On the contrary, this Court has determined that the trial court judge did not abuse her discretion. Therefore, this Court will not consider the cases cited by Dr. Schmidt for the purpose of determining the proper measure of damages in the instant case.

Dr. Schmidt also contends that Ms. Millet should have mitigated her damages for embarrassment and emotional damages by having the Tooth cosmetically restored as soon as possible. In Aisole v. Dean, 574 So.2d 1248 (La.1991), the Louisiana Supreme Court stated that “[o]ur jurisprudence has also recognized that an injured plaintiff has a duty to take reasonable steps to mitigate damages”. Id. at 1253. This Court has stated that “[t]he burden of proof is on the defendant to show to what extent plaintiffs damages should have been mitigated and the rule of mitigation of damages is to be applied with extreme caution.” Walton v. Cooper/T. Smith Stevedoring, 97-0100, p. 18 (La.App. 4 Cir.3/4/98), 709 So.2d 941, 950. In Leaman v. Continental Casualty Co., 2000-0292 (La.App. 4 Cir. 9/26/01), 798 So.2d 285, this Court additionally stated with respect to mitigation of damages that “[t]he accident victim need not make extraordinary or impractical efforts, but must undertake those which would be pursued by a person of ordinary prudence under the circumstances”. Id. at p. 11, 798 So.2d at 293.

Dr. Schmidt has suggested that Ms. Millet could have had a veneer placed on the Tooth to restore it to a more normal color. Therefore, he has argued that she could have mitigated the damages from her embarrassment and emotional distress that resulted from the discoloration of the Tooth.

Dr. Woods, one of Ms. Millet’s treating dentists, testified at trial as follows:

Well, it was always our opinion that anything we did to that tooth would run the risk of dislodging the material that was placed in that tooth back in 1994, and it was, it was my opinion that anything we did at that time, if we, dislodged that filling, we would have to surgically correct it, and in a cosmetic procedure such as this, the less surgery we could do until we could identify a definitive treatment plan, the better.

Because the treating dentist thought the Tooth should be subjected to as little additional dental work as possible until a definitive treatment plan could be identified, it is understandable that Ms. Millet did not want to have a veneer applied to the Tooth.

Dr. Schmidt also raised the possibility of bleaching the Tooth. Dr. Wood testified as follows with respect to bleaching the Tooth:

My concern with bleaching is that Laura always, she has one tooth that is darker than the other front 6 and if she goes through a bleaching process, one tooth, I believe will always be darker than the other 6 because all teeth are going to be bleached. It is very difficult to devise a tray where you’re going to bleach an isolated tooth |7without placing material inside the tooth. And anything that we tried to do, would try to do inside the tooth, I would fear would run the risk of dislodging the filling material that resides underneath the gum tissue. So I think that bleaching her teeth, yes, is possible, but do I think it is going to give her a significant benefit, further or long term benefit, no.

Based on Dr. Woods’ testimony, it is clear why Ms. Millet may have wanted to forgo bleaching the Tooth as a temporary cosmetic measure.

This Court does not find that a person of ordinary prudence under the circumstances in which Ms. Millet found herself would undergo a cosmetic procedure that might cause additional trauma to the Tooth or one that might result in additional cosmetic problems, such as uneven tooth color. We find that Ms. Millet was not required to mitigate her damages by either having a veneer applied to the Tooth or by bleaching the Tooth. Ms. Millet was acting as a person of ordinary prudence in foregoing temporary cosmetic procedures that could have jeopardized the permanent restoration of the Tooth. Dr. Schmidt has not met the burden of proof required to show that Ms. Millet failed to mitigate her cosmetic damages.

CONCLUSION

The judgment of the trial court is affirmed. The trial judge did not abuse her discretion is finding that the plaintiff was entitled to $100,000.00 in general damages.

AFFIRMED.


author: 1LEON A. CANNIZZARO, JR., Judge. 1ARMSTRONG, J., |! LOVE, J.,

text:
    STATE of Louisiana v. Gerald CAUSEY.
    No. 2002-KA-1848.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Harry F. Connick, Orleans Parish District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellant.
    Kevin V. Boshea, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   1LEON A. CANNIZZARO, JR., Judge.

The State of Louisiana appeals from a judgment of the trial court granting the defendant, Gerald Causey’s, motion to quash the bill of information. The State argues that the trial court erred in granting the motion because the statutory time limitations pursuant to La.C.Cr.P. articles 578 through 583 had been interrupted and, therefore, had not run. The defendant counters that his constitutional right to a speedy trial was violated, and, thus, the trial court properly quashed the bill of information.

On July 16, 1998, the defendant was charged by bill of information with possession of cocaine, in violation of La. R.S. 40:967(C). He pled not guilty at his arraignment on July 31, 1998. After a hearing on October -19, 1998, the trial court found probable cause and denied the motions to suppress the evidence and the confession. A six-member jury found the defendant guilty as charged after a trial on December 1, 1998. The defendant filed a motion for a new trial on December 10, 1998, which the trial court granted on January 25, 1999. The State objected and gave notice of its intent to file a writ application. This Court denied the writ on April 13, 1999, finding no abuse of the trial court’s discretion.

|?The following is a chronology of the case as set forth in the official minute entry notations of the Criminal District Court.

July 16, 1998 State filed bill of information charging Causey
December 1, 1998 Defendant found guilty as charged after jury trial
January 25,1999 Defendant’s motion for a new trial granted; State noted intent to file a writ application
April 13, 1999 State’s writ application denied
April 15, 1999 Status hearing reset to 5/10/99
May 10, 1999 Defendant appeared in court with counsel; status hearing set for 6/9/99
June 9, 1999 Defendant appeared in court with counsel; status hearing continued by court; reset for 7/8/99
July 8, 1999 Defendant appeared in court with counsel; status hearing continued by court for the State and reset for 7/15/99
July 15, 1999 Court reset status hearing for 8/10/99; defense attorney to notify defendant
August 10, 1999 No court held; matter reset for 9/01/99; notify defendant and attorney
September 1, 1999 Defendant appeared unattended by counsel; continued by the court and reset for 9/15/99
September 15, 1999 Court reset for trial on 9/27/99; notify all
September 27, 1999 Court continued matter for the State and reset for trial 10/13/99; notation to send notice to defendant at address on bond
October 13,1999 Court continued matter for State; trial set for 10/29/99; notation to send notice to defendant at the address on bond
October -29, 1999 Defendant appeared unattended by counsel for trial; court reset for 11/18/99
^November 18, 1999 Court continued due to the State proceeding with another trial and reset trial for 1/12/2000; notation to send notice to defendant at address on bond
January 12, 2000 Defendant failed to appear for trial; court checked the record which shows he was served; the court issued an alias capias for his arrest (Emphasis added)
January 26, 2000 Court reset for bond forfeiture hearing for 2/7/2000; court noted defendant had not been served
February 7, 2000 Court reset matter for status for 2/22/2000; notation to send notice to defendant at 3234 Burdette St., New Orleans, La.
February 22, 2000 Matter deferred because of trial in progress; court reset bond forfeiture hearing for 3/16/00; notation to send notice to defendant
April 18, 2000 Matter did not appear on court’s docket; court reset bond forfeiture hearing for 5/3/00
May 3, 2000 Court reset bond forfeiture hearing for 5/25/00; notify surety by mail; court noted no service on defendant
May 25, 2000 Court reset status hearing on 6/21/00; notation to send notice to defendant and attorney
June 21, 2000 Status hearing continued by the court and reset for 8/15/00
August 15, 2000 Status hearing continued by court and reset for 8/30/00; notation to send notice to defendant at address on bond
August 30, 2000 Status hearing continued by court and reset for 9/11/00; notation to send notice to defendant at address on bond
September 11, 2000 Court reset this matter for status on 9/21/00
September 21, 2000 Court set for trial on 10/19/00; notation to send notice to defendant
October 19, 2000 Defendant appeared in court attended by counsel; court continued due to another trial and reset for 11/21/00
November 21, 2000 Defendant and attorney not present; court reset for 12/20/00; notation to notify defendant at 3234 Burdette Street (Emphasis added)
| ¿December 20, 2000 Minute entry indicates no service on the defendant; status hearing set for 2/12/01; notation to notify defendant and attorney
February 12, 2001 Defendant did not appear; status reset for 3/01/01 (Emphasis added)
March 1, 2001 Status hearing set for 3/07/01
March 7, 2001 Defendant did not appear for status hearing because he was not served; defense attorney present; trial set for 4/11/01; notify defendant (Emphasis added)
April 11, 2001 Defendant not served; reset trial for 5/10/01
May 10, 2001 Defendant failed to appear; defense attorney present; court issued alias capias for arrest of defendant (Emphasis added)
March 20, 2002 Defendant appeared with counsel; trial set for 5/06/02
May 6, 2002 Defendant appeared with counsel for trial; trial continued on State’s motion. Reset for 6/13/02
June 4, 2002 Defense counsel appeared without defendant, filed a motion to quash the bill of information
June 11, 2002 Defendant appeared with counsel; motion to quash granted; State objected

At the hearing on the motion to quash, the defense attorney noted that four years had elapsed between the 1998 filing of the bill of information and the hearing on the motion to quash in 2002 and concluded that under La.C.Cr.P. art. 578(2) the case had prescribed. The defense also maintained that Causey’s right to a speedy trial was violated.

Causey was charged with a non-capital felony offense on July 16, 1998. Pursuant to La.C.Cr.P. art. 578, a trial had to be commenced within two years from the institution of prosecution. The trial was timely held on December 1, 1998. As noted previously, on January 25, 1999, Cau-sey’s motion for a new trial was granted J¿>y the trial court; the State sought supervisory review of that ruling, and on April 13, 1999, this Court denied the State’s writ. Pursuant to La.C.Cr.P. art. 582 when a defendant obtains a new trial, the State must commence the second trial within one year from the date the new trial is granted, or within the period established by article 578, whichever is longer. Thus, the State had until April or July of 2000— whichever is longer — to bring the defendant to trial. Clearly, the period for commencement of the trial had elapsed in June of 2002; thus, the defendant’s motion to quash is facially meritorious.

The State has a heavy burden of justifying the apparent untimely commencement of trial on the grounds that the time limits were either interrupted or suspended. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284; State v. Joseph, 93-2734, p. 1 (La.6/3/94), 637 So.2d 1032. When a defendant brings an apparently meritorious motion to quash based on prescription, the State must demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled.

In its brief, the State argues that the statutory time limitations were continually interrupted by the defendant’s failure to appear at court. La.C.Cr.P. art. 578 provides, in pertinent part:

Except as otherwise provided in this Chapter, no trial shall be commenced:
(2) In other [non-capital] felony cases after two years from the date of institution of the prosecution; ...

La.C.Cr.P. art. 579 provides, in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
|fi(2) The defendant cannot be tried because of insanity or became his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, the proof of which appears of record. (Emphasis added).

La.C.Cr.P. art. 582 provides:

When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.

La.C.Cr.P. art. 583 provides:

The period of limitation established by Article 582 shall be interrupted by any of the causes stated in Article 579. Where such interruption occurs, the state must commence the new trial within one year from the date the cause of interruption no longer exists.

The State maintains that the defendant could not be served because he gave an incorrect address. The defendant’s bond of June 21, 1998, showed his address as 3234 Burdette Street, New Orleans, La. 70125. A change of address addendum of June 11, 2002, indicated that Causey gave the address of 3001 Independence Street, Apt. D, Metairie, LA. 70006.

An interruption under La.C.Cr.P. art. 579 occurred on January 12, 2000, when the defendant failed to appear for trial; according to the transcript in the record, the trial court looked at the file and found that Causey received notice of the trial date. Causey was also sent notice of the bond forfeiture hearing set for February 7, 2000, at the address he had given on the bond on June 21, 1998. At the hearing on May 10, 2001, when Causey did not appear, the prosecutor stated that the defendant “probably didn’t get service to be here because he has an empty l7lot listed as his address.” Each of these non-appearances would extend the time limitations under La.C.Cr.P. art. 579 by one year from the time he reappeared. When he missed the date January 12, 2000, and did not reappear until October 19, 2000, the time limitation was extended for a year, i.e. until October 18, 2001. Similarly, when he did not appear at court on February 12, 2001, and did not reappear until March 20, 2002, the time to bring him to trial was extended until March 19, 2003.

The trial court recognized the State’s statutory argument that the time for trial had been interrupted by the defendant’s continual non-appearances. However, at the hearing on the motion to quash, the prosecutor stated that he was familiar with the case only since he came into that section of court in 2002. The court stated that during the time the case had been pending “a minimum” of twenty assistant district attorneys had served in his section of court and every time the case was docketed for trial the State requested that it be continued. Thus, the court found the State solely responsible for the delays, and granted the defendant’s motion to quash.

The findings of the trial court judge are not substantiated by the record. Beginning with the April 15, 1999 hearing after the State’s writ application was denied, the matter was set for status, trial, or bond forfeiture hearings thirty-four times. Of these thirty-four continuances, only seven are documented as attributable to the State. The delay in this case resulted primarily from the defendant’s failure to appear in court for ten months in 2000, during the entire year of 2001, and for almost three months in 2002. The failure to effect service on Causey at the Burdette Street | «address was entirely attributable to him. The State is correct that prescription was interrupted under La.C.Cr.P. art. 579(A)(2).

The defense argues that the defendant’s constitutional right to a speedy trial was violated. In State v. Brock, 99-2128 (La.App. 4 Cir. 6/14/00), 767 So.2d 130, writ denied, 2000-2147 (La.7/28/01), 797 So.2d 684, citing State v. Johnson, 622 So.2d 845, 848 (La.App. 4 Cir.1993), this Court noted:

The Sixth Amendment of the U.S. Constitution also provides a right to a speedy trial. This is a fundamental right which has been imposed on the states by the due process clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972). Whether this right has been violated is determined by a four-part test: the length of the delay, the reason for the delay, the defendant’s assertion of his or her right, and prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; State v. James, 394 So.2d 1197, 1200 (La.1981).
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court noted that the length of delay is a triggering mechanism, and the other three factors need not be addressed unless the court finds the length of delay to be presumptively oppressive given the circumstances of the case. See also Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

Considering the first factor under Barker, supra, the delay in the present case was almost four years between the institution of prosecution in July of 1998 and the filing of the motion to quash in June of 2002. This delay should be considered presumptively prejudicial, thereby triggering inquiry into the other Barker factors.

As to the reason for the delay in this case, the record reflects that the delay was primarily due to the fact that, through his own fault, the defendant’s presence for trial could not be obtained by legal process. Furthermore, the defendant never filed a motion for a speedy trial nor did he ever object to the repeated continuances, and it 13does not appear that he was incarcerated during the delay. Considering the totality of circumstances, the defendant’s right to a speedy trial under Barker, supra, was not violated.

Accordingly, the trial court erred in granting the defendant’s motion to quash. Therefore, the trial court judgment is reversed, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, J., CONCURS.

LOVE, J., DISSENTS WITH REASONS.

1ARMSTRONG, J.,

concurs.

I respectfully concur. Most of the delay in this case resulted from the defendant’s failure to appear in court for ten months in 2000, the entire year of 2001, and for approximately three months in 2002. Therefore, prescription was interrupted under La.C.Cr.P. art. 579(A)(2).

|! LOVE, J.,

dissents with reasons.

I respectfully dissent. On January 25, 1999, the trial court granted Gerald Cau-sey’s motion for a new trial. Under La. C.Cr.P. art. 582 the State had until July 2000, to commence the new trial. The State has a heavy burden of justifying the apparent untimely commencement of trial on the grounds that the time limits were either interrupted or suspended. State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284. The State did not carry its burden. Furthermore, I find that the evidence shows the delay in beginning the new trial is not attributable to the defendant but was in fact due to the numerous continuances granted to the State. Therefore, I would affirm the ruling of the trial court.

      . The facts of the case are not relevant here.

      . Several of the minute entry notations indicate the defendant was not served, which must mean that he could not be served (in a vacant lot); his address as listed on his bond was part of the minute entry notation in October of 1999 and was listed several times in other entries.

      . At the motion to quash hearing, the judge stated that when Causey was arrested on the capias "I released him as soon as I got him into court.”


author: 1JAMES F. McKAY III, Judge. 1TOBIAS, J.,

text:
    Traci I. DEUTSCHMANN v. Earl ROSIERE and Louisiana Health Service & Indemnity Company, Inc.
    No. 2002-CA-2002.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Richard T. Regan Regan & Post, L.L.P., Metairie, LA, for Plaintiff/Appellee.
    John E.W. Baay II, Lynn M. Terrebone, Gieger, Laborde & Laperouse, New Orleans, LA, for Defendant/Appellant, Louisiana Health Services & Indemnity Company.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MAX N. TOBIAS Jr.).
   1JAMES F. McKAY III, Judge.

The defendant, Louisiana Health Services & Indemnity Company, d/b/a Blue Cross and Blue Shield of Louisiana (Blue Cross), appeals a trial court judgment in favor of the plaintiff, Traci L. Deutsch-mann, which awarded the plaintiff her medical expenses as well as damages for the wrongful cancellation of her insurance policy plus attorney’s fees and interest. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 18, 1998, Ms. Deutsch-mann met with Earl Rosiere to apply for health insurance with Blue Cross. During this meeting, Mr. Rosiere asked Ms. Deutschmann questions from a standardized form supplied by Blue Cross and recorded her responses. When asked about any female reproductive problems, Ms. Deutschmann informed Ms. Rosiere that she suffered from irregular bleeding and irregular menstrual cycles; she also informed Mr. Rosiere that she was taking birth control pills to remedy the problem. On February 13, 1998, Ms. Deutschmann had consulted Dr. James Seese regarding her female reproductive problems. Dr. Seese diagnosed Ms. Deutschmann with dysmenorrhea and made a note in her chart to 12consider laparoscopic surgery in the future; however, Dr. Seese did not inform Ms. Deutschmann of this at the time. When asked whether there was “any departure from good health or any medical or surgical advice or treatment from any medical or surgical advice or treatment from any medical practitioner, medical doctor, surgeon, podiatrist, optometrist, chiropractor, dentist, oral surgeon, etc. in the last five years,” Ms. Deutsch-mann responded in the negative. Then Mr. Rosiere finished filling out the application form and Ms. Deutschmann reviewed and signed it.

Ms. Deutschmann continued to have female reproductive problems. Dr. Seese discussed the possibility of surgery with Ms. Deutschmann for the first time on May 19, 1998. On July 9, 1998, Ms. Deutschmann underwent laparoscopic surgery to determine the cause of her problems. As a result of the surgery, Ms. Deutschmann was diagnosed with salpin-go-oophoritis, more commonly known as pelvic inflammatory disease. Thereafter, Blue Cross retroactively terminated Ms. Deutsehmann’s medical coverage by a letter dated August 21,1998.

On June 8, 1999, Ms. Deutschmann filed a petition for declaratory judgment, damages, and mandatory injunction against Blue Cross and Earl Rosiere. A trial on the merits was held on March 4, 2002. The trial court ruled in favor of Ms. Deutschmann and against Blue Cross but dismissed Earl Rosiere from this action. The trial court awarded Ms. Deutschmann $8,668.12 plus the sum of $8,668.12 for wrongful cancellation of plaintiffs health insurance contract in addition to | ¡¡attorney's fees in the amount of $1,000.00 for a total of $18,336.24 together with legal interest and costs. It is from this judgment that Blue Cross appeals.

DISCUSSION

On appeal, Blue Cross raises the following assignments of error: 1) the district court erred when it found that plaintiffs failure to disclose current symptoms noted during a doctor’s visit five days before applying for health insurance was insufficient to justify cancellation of coverage; 2) the district court erred when it imputed to Blue Cross the acts of an independent insurance broker representing the plaintiff with no ability to bind the insurer; and 3) the district court erred in awarding penalties and attorneys fees against Blue Cross when Blue Cross discovered current symptoms noted during a doctor’s visit five days before the date of the application which had not been disclosed on the application.

It is a well settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonable. The manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771. Furthermore, the appellate court evaluates the evidence in the record in a light that is supportive of the .judgment |4and most favorable to the appellee. Jeffers v. Hansen, 441 So.2d 283 (La.App. 4 Cir.1983).

The jurisprudence of Louisiana is clear that an insurer must meet a three-tiered burden of proof in an action for denial of coverage for misrepresentation. First, it must be shown that the applicant’s statements were false. Second, the insurer must establish that the misrepresentations were made with an actual intent to deceive. Third, the insurer must establish that these misstatements materially affected the risk assumed by the insurer. Johnson v. Occidental Life Ins. of Cal., 368 So.2d 1032 (La.1979).

The burden of proof on the insurer, as set forth above, is predicated on La. R.S. 22:619 which provides:

A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 22:692.1, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application of life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

In the instant case, Ms. Deutsch-mann advised Mr. Rosiere of her excessive and painful menstrual bleeding, her hospitalization in August of 1996 for ovarian cysts, as well as her subsequent treatment with birth control pills. Therefore, Mr. Rosiere completed Ms. Deutschmann’s insurance application by answering yes to question number fifteen which indicated that Ms. Deutschmann had “irregular or | Rexcessive menstrual bleeding or other female reproductive problems.” It was from these same types of problems that Ms. Deutschmann continued to suffer from when she was hospitalized in July of 1998 for an exploratory laparoscopy with a preoperative diagnosis of possible endomi-triosis. Both her treating physician, Dr. Seese, and her operating physician, Dr. George, were surprised to find salpingo-oophoritis. These facts indicate that Ms. Deutschmann was forthcoming about her female reproductive problems and that both she and her physicians were surprised to find salpingo-oophoritis. Accordingly, we find no error in the trial court’s finding that there was no intent to deceive and no material misrepresentation by Ms. Deutschmann.

Blue Cross contends that the trial court erred in holding that it is bound by the actions of an independent agent or broker who completes application forms furnished by the insurer. This however is not the case. The Louisiana Supreme Court has stated:

A broker who procures insurance which is accepted and issued by an insurance company pursuant to application forms furnished to the broker by the company is considered the agent of the company in the issuance of the policy. 3 Couch on Insurance 2d, Section 26:25 (1960); 16 Appleman on Insurance Law and Practice, Section 8731 (1968). As stated in the latter source, pp. 287-288, “The knowledge of such an agent or his mistake of fact may become that of the insurer.”

Tiner v. Aetna Life Ins. Co., 291 So.2d 774, 777-778 (La.1974). Accordingly, the trial court did not err in imputing the actions of Mr. Rosiere to Blue Cross.

Blue Cross contends that the trial court erred in finding that Blue Cross’ cancellation of Ms. Deutschmann’s policy was arbitrary and capricious and in awarding Ms. Deutschmann penalties and attorney’s fees. An insurer has an 1 fiaffirmative duty to verify, through a reasonable investigation, whether a claim was actually excluded from coverage and when an insurer chooses to resist its contractual obligation based upon a supposed defense, which a reasonable investigation would have proved to be without merit, it acts at its peril and renders itself liable for statutory penalties and attorney’s fees. Savarino v. Blue Cross and Blue Shield of Louisiana, Inc. 98-0635 (La.App. 1 Cir. 4/1/99), 730 So.2d 1083, 1090. In the instant case, Blue Cross cancelled Ms. Deutschmann’s policy without contacting Dr. Seese, Dr. George or Mr. Rosiere. Accordingly, we find no error in the trial court’s awarding penalties and attorney’s fees in this case.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of declaratory judgment, its award of general and special damages, and its award of attorney’s fees and interest.

AFFIRMED.

TOBIAS, J., concurs and assigns reasons.

1TOBIAS, J.,

concurs and assigns reasons.

I respectfully concur in order to address further why I find the majority to be correct in affirming the trial court’s award of attorneys’ fees and penalties. A reading of the majority’s opinion might cause one to conclude that an insurer, such as the appellant, would have no way to contest whether the insured lied or withheld material information when applying for health insurance coverage without incurring penalties and attorneys’ fees. The record in the case at bar discloses otherwise.

The application for insurance completed by Earl Rosiere, the independent insurance broker/agent, and Ms. Deutschmann, the appellee, on 18 February 1998 asked the question of the appellee whether she “HAD IN THE LAST FIVE YEARS ... Irregular or excessive menstrual bleeding or other female reproductive problems.” (Emphasis in original.) To that question, the appellee answered ‘Yes,” and provided the following additional explanation: “irregular menstral (sic) cycle 8/96”; she answered other questions related thereto, disclosing that she had been treated by a physician, had a hormone imbalance that caused the condition, that surgery was not recommended or performed, was taking birth control pills for the condition, and that “no further treatment” was indicated. It appears that the | ¡..appellant issued the insurance policy to the appellee, effective 15 March 1998, without further investigation.

Thereafter, as reflected by the trial testimony of the appellant’s treating physicians, Drs. James Seese and Frank George, following Ms. Deutschmann’s treatment and claims for benefits under the policy, the appellant’s claims representatives did not contact Dr. Seese or Dr. George prior to denying the claim for benefits. Based upon what they saw prior to the 9 July 1998 laparoscopic procedure on Ms. Deutschmann, neither of these doctors suspected that she had salpingo-oophoritis; that is, the thrust of their testimony was to effect that they thought the appellee merely had dysmenorrhea. A reasonable person would believe that the disclosure made on the application form submitted to the appellant was adequate to place the insurer on notice of her condition; salpingo-oophoritis was not suspected or anticipated. In the overall context of this case, the failure to inquire further of the doctors as to when they knew Ms. Deutschmann had salpingo-oophoritis has the appearance of arbitrariness, warranting the imposition of penalties and attorneys’ fees.

Prior to issuance of the policy, the appellant could have protected itself by investigating further as to the appellee’s precise health by contacting Ms. Deutsch-mann, obtaining the names of all of her then current physicians, and doing further investigation. The trial court apparently concluded that the appellant did not investigate fully and completely the nature of the appellee’s treatment received on R13 February 1998 prior to denying the appel-lee’s claims for benefits under the policy. Rather, they relied upon Dr. Seese’s note in his records relating to a second opinion.

The result is therefore not manifestly erroneous or clearly wrong.

      . Although we have found no error in the trial court’s factual findings, it is interesting to note that La. R.S. 22:250.12 guarantees availability of individual health insurance coverage to persons such as Ms. Deutschmann who had prior group coverage as well as individuals who had prior individual coverage.

      . The application is attached to the issued policy.

      . Dr. Seese was consulted by the appellee to give her a second opinion.

      . The insurance application attached to the issued insurance policy does not ask a question whether the proposed insured has seen a physician recently. Rather, the question asked is whether the proposed insured has had "Any departure from good health or any medical or surgical advice or treatment from any medical practitioner (medical doctor/surgeon, podiatrist, optometrist, chiropractor, dentists/oral surgeons, etc.) in the last 5 years.” The appellee answered "No” to the question. Read on a literal level and in the context of the earlier question in the application discussed above, the question is ambiguous and open to multiple interpretations. I find no question asked of the proposed insured to disclose the names and addresses of every health care professional consulted within the recent past (such as the last 5 years) for any medical condition and to disclose the condition for which consultation was sought; such a question is frequently asked in applications for life insurance.


author: 1DAVID S. GORBATY, Judge. 1JONES, J.,

text:
    David Anthony PAPE v. ODECO, INC., and Odeco (U.K.), Inc.
    No. 2002-CA-0474.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Aaron W. Guidry, Porter, Denton & Gui-dry, Lafayette, LA, for David Anthony Pape.
    James F. Shuey, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Odeco, Inc., and Odeco (U.K.), Inc.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, Jr.).
   1DAVID S. GORBATY, Judge.

Appellants, Odeco, Inc., and Odeco (U.K.), Inc. (hereinafter Odeco), appeal a judgment of the trial court wherein a previously issued injunction was vacated. For the following reasons, we reverse, and reinstate the injunction.

FACTS AND PROCEDURAL HISTORY:

David A. Pape, a citizen and resident of the United Kingdom, was injured in an offshore accident in the North Sea while working for Odeco. Mr. Pape filed a maritime personal injury claim in Civil District Court. While his lawsuit was pending, Mr. Pape received benefits from the Department of Social Security in the United Kingdom. Under British law, the Department of Social Security is entitled to reimbursement for any portion of those benefits that overlap with a settlement received by an employee, in an amount to be fixed by the Department’s Compensation Recovery Unit (hereinafter CRU).

Prior to trial, Mr. Pape settled his personal injury claim with Odeco for $357,500. It was established between the parties that the settlement amount included monies that would be owed to the CRU, although at the time of settlement that amount had not been determined. Odeco agreed to tender the funds to Mr. Pape’s United States attorneys, with the understanding that the entire settlement 12amount would be held in escrow until Mr. Pape executed the settlement agreement and the amount owed the CRU was established.

After Odeco tendered the $357,000 to Mr. Pape’s United States attorneys and Mr. Pape signed the settlement agreement, it was determined that the amount paid to Mr. Pape in benefits totaled $51,954.17 in United States currency. Mr. Pape’s counsel thereafter released to him the difference between the $357,500 and the $51,954.17. Mr. Pape, however, demanded that the entire amount be released to him in violation of the settlement agreement.

Odeco sought and obtained a preliminary injunction from the district court, Judge Robert Katz presiding, prohibiting Mr. Pape’s attorneys from releasing the settlement funds to Mr. Pape until the amount owed the CRU was established and paid. Judge Katz also ordered that the funds be held in trust by Mr. Pape’s counsel in the United Kingdom. British counsel was expected to negotiate a discounted reimbursement; however, that obligation was not fulfilled, and Mr. Pape discharged his British counsel.

Mr. Pape thereafter filed a motion to amend the judgment in which the injunction was issued. After taking the matter under advisement, Judge Roland Belsome vacated the judgment on the court’s own motion. The trial court then ordered that the amounts being held in trust be disbursed to Mr. Pape.

It is from the judgment vacating the injunction that Odeco appeals.

DISCUSSION:

Odeco argues that the district court erroneously found that it discounted the settlement amount in contemplation of the amount Mr. Pape would owe in reimbursement to the CRU. Therefore, if Mr. Pape were ordered to pay the amount due the CRU once determined, it would constitute a double payment by | ¡¡him. Odeco also argues that the district court erred in relying on an affidavit executed by Odeco’s counsel, which was prepared to assist Mr. Pape’s British counsel in his negotiations with the CRU. Odeco explains that the affidavit was intended to reflect that Mr. Pape would have received the full $357,500 in settlement proceeds if he had not also received the Social Security benefits. The affidavit was not an expression of the parties’ intentions with regard to the settlement claims. Additionally, Odeco argues that there is no evidence to support the argument that the reimbursement to the CRU was deducted from the settlement amount and retained by Odeco. To the contrary, the evidence supports the finding that an amount was to be withheld from the total settlement for the purpose of reimbursing the CRU. Further, Odeco contends that once Mr. Pape’s British counsel refused to honor the injunction issued by Judge Katz, the other terms of the order should have been fulfilled requiring that the funds be paid directly to the CRU.

Odeco also argues that the district court erred in failing to consider or apply the law of contract to the settlement agreement executed between the parties. Ode-co argues that the language of the particular provision in question was “clear and explicit and lead to no absurd consequences .... ” La. Civ.Code arts.2045-2046. The provision in the settlement agreement clearly stated that of the money being tendered to Mr. Pape in settlement, a portion was to be withheld to satisfy the claim of the CRU.

Odeco further contends that the district court erred by failing to consider and apply the terms of the injunction. The injunction specified that $51,954.17 would be escrowed and forwarded to Mr. Pape’s solicitor in the United Kingdom to be held in trust pending the outcome of the negotiations with the CRU. Odeco argues |4that it was also the district court’s understanding that the parties never intended for Mr. Pape to receive the full $357,500, without satisfying the claim of the CRU.

Mr. Pape counters that Odeco discounted his settlement in anticipation of paying reimbursement to the CRU. He argues that the affidavit executed by Odeco’s counsel attests that the settlement took into consideration the amount received by Mr. Pape in medical and disability benefits. Based on that fact, Mr. Pape contends that under the Social Security Act of the United Kingdom, he was entitled to a reduction of compensation payments owed equal to the amount of the credit taken by Odeco. The affidavit by Odeco’s counsel was designed to assist him in challenging the amount owed the CRU. Mr. Pape also argues that the law of this circuit mandates the application of the law of the United Kingdom, which establishes that Odeco was afforded a credit in settling the claim. Therefore, the district court properly found that Odeco discounted Mr. Pape’s settlement amount in contemplation of the reimbursement amount due the CRU.

Additionally, Mr. Pape argues that the district court properly vacated the earlier judgment based on its finding that compliance with the judgment was no longer possible. The previous judgment required Mr. Pape’s counsel in the United States to transfer $51,954.17 to Mr. Pape’s British counsel to be held in trust. When British counsel refused to abide by the judgment, Mr. Pape fired him, thus making the transfer impossible. While Odeco argues that upon British counsel’s refusal to abide by the judgment, the funds should have been transferred directly to the CRU, Mr. Pape argues that the district court was precluded from making such a determination because it lacks jurisdiction to adjudicate the rights of a foreign governmental agency. Furthermore, Mr. Pape argues that such a judgment was prohibited because, pursuant to La.Code Civ. Proc. art. 1841, “[a] judgment is the | ¡^determination of the rights of the parties,” and the CRU is not a party to this litigation.

We agree with Odeco’s argument that the trial court erred in not considering the Receipt, Release and Hold Harmless Agreement executed by the parties. This agreement is a binding contract between the parties, and it was error for the trial court to disregard said contract in deciding to vacate the injunction.

The Receipt, Release and Hold Harmless Agreement specifically states:

It is expressly acknowledged and agreed that, of the amount that has been tendered [$857,500] to and accepted by David Anthony Pape in settlement of his claims, a portion is being -withheld by Odeco (U.K.), Inc. in order to make reimbursement of the sums paid to Mr. Pape as indicated on the “Certificate of Recoverable Benefits” that is attached to this Agreement, and that this reimbursement is being taken from the settlement proceeds with Mr. Pape’s full knowledge and consent.

The above language, relied on by Judge Katz in issuing the injunction, is the binding contract between the parties. The language is clear and concise. Mr. Pape cannot argue now that he did not understand that the reimbursement he would owe to the CRU was being withheld from the $357,500 settlement amount. He was represented by counsel at all times, both in the United States and the United Kingdom. The fact that defense counsel later executed an affidavit to assist Mr. Pape in negotiating a reduction in the amounts owed to the CRU is of no moment. Mr. Pape is bound by the terms of the Receipt and Release that he executed.

Originally, the total amount due Mr. Pape in settlement, $357,500, was held in a trust account maintained by his United States attorneys. Once the amount owed in reimbursement to the CRU was determined, the balance was released to Mr. Pape. Thus, the only amounts being held in trust are the amounts owed the |fiCRU. Should those funds be released to the CRU, it would not constitute a double payment by Mr. Pape.

We find no error in the issuance of the injunction by Judge Katz. Mr. Pape’s argument that the district court “lacks the jurisdiction to adjudicate the rights of a foreign governmental agency,” is not well reasoned. The injunction did not adjudicate the rights of the parties. Rather, it prohibited the parties from releasing the funds being held in trust until the rights of the parties were established. The parties to the injunction were Odeco, which would be obligated to reimburse the CRU once the amount of reimbursement was determined, and Mr. Pape, who was entitled to negotiate the amount owed in reimbursement. The injunction did not determine the rights of the CRU, a non-party.

Accordingly, the judgment of June 6, 2001, vacating the injunction issued on May 13, 1999, is reversed, and the injunction is reinstated.

REVERSED.

JONES, J., Dissents With Reasons.

1JONES, J.,

Dissents With Reasons.

The most salient point, which was revealed during oral argument and forms the basis for my dissent, is that Odeco failed to demonstrate that the Compensation Recovery Unit complained of a claim for reimbursement. Odeco argued that it frequently and repeatedly received demand letters from the CRU seeking reimbursement, however, Odeco failed to produce said letters to the district court. Thus, I respectfully dissent.