author: EZELL, Judge. |T SULLIVAN, Judge,

text:
    APECK CONSTRUCTION, INC., Plaintiff-Appellant, v. Foster M. BOWERS, Defendant-Appellee.
    No. 03-486.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Rehearing Denied Jan. 21, 2004.

      W. Michael Stemmans, M. Todd Alley, Michael J. Taffaro, Stemmans & Alley, Baton Rouge, LA, for Plaintiff/Appellant, Apeck Construction, Inc.
    John K. (Mike) Anderson, Attorney at Law, Leesville, LA, for Defendant/Appel-lee, Foster M. Bowers, Jr.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   EZELL, Judge.

Apeck Construction, Inc. and Foster Bowers, Jr. appeal the judgment of the workers’ compensation judge (WCJ). For the following reasons, we affirm in part and reverse in part.

FACTS

Mr. Bowers went to work for Apeck on August 7, 2000. On January 7, 2001, he was injured while working. Apeck began paying him compensation benefits but terminated those benefits on April 7, 2001. It filed a disputed claim on July 2, 2001, denying any obligation to Mr. Bowers. Mr. Bowers filed a disputed claim on September 14, 2001, seeking compensation benefits, medical treatment, penalties, and attorney fees. Apeck deposed Mr. Bowers in December 2001 and questioned him about riding a horse in March 2001 and being thrown from or falling off of the horse. He denied having ridden a horse and being thrown or falling off. Thereafter, in January 2002, Apeck supplemented its original answer, alleging that Mr. Bowers made willful misrepresentations in violation of La.R.S. 23:1208, which forfeited “any and all” workers’ compensation benefits he may have been entitled to receive.

All issues were tried before a WCJ on October 22, 2002. At the conclusion of the trial, the WCJ held that Mr. Bowers did make willful misrepresentations in violation of La.R.S. 23:1208 and that he forfeited “any and all workers’ compensation benefits from December 3, 2001,” the date of his deposition. He was assessed a $2,000 civil penalty pursuant to La.R.S. 23:1208(D). With regard to Mr. Bowers’ claims against Apeck, the WCJ awarded him total temporary disability benefits for the period of April 8, 2001 until December 3, 2001. Additionally, the WCJ found that Apeck was arbitrary and capricious for terminating his benefits and awarded his attorney $7,500 in attorney fees. Mr. Bowers was also awarded a penalty of $2,000 and his attorney was awarded attorney fees of $2,500 for Apeck’s refusal to allow him to be evaluated by a physician of his choice.

ISSUES

Apeck appealed, and Mr. Bowers answered the appeal. The issues are whether Mr. Bowers’ misrepresentations meet the requirements of La.R.S. 23:1208; if so, whether forfeiture under La.R.S. 23:1208 affects his claims for indemnity benefits, penalties, and attorney fees which preceded the date of his misrepresentations; and whether a penalty should have been assessed against him.

LOUISIANA REVISED STATUTE 23:1208

Louisiana Revised Statute 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The supreme court first addressed La. R.S. 23:1208 in Resweber v. Haroil Constr. Co., 94-2708, p. 1 (La.9/5/95), 660 So.2d 7, 9, holding that it: “applies to any false statement or misrepresentation ... made specifically for the purpose of obtaining workers’ compensation benefits and therefore generally becomes applicable at the time of an employee’s accident or claim.” The court further explained:

Section 1208 is clear and unambiguous and as such will be applied as written. La.Civ.Code art. 9; La.R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining or defeating any benefit or payment.” Section 1208 has no language limiting it to only certain types of false statements ... The legislature has imposed no notice requirement in Section 1208, apparently being of the opinion that any claimant should be on notice that false statements made willfully for the purpose of obtaining workers’ compensation benefits will not be tolerated and will result in the forfeiture of those benefits. The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.
Our conclusion is further buttressed by the legislative history of Sections 1208 and 1208.1. The history of Section 1208 indicates a clear legislative intent to prevent and discourage fraud in relation to workers’ compensation claims, and Section 1208 should not be subjected to a strained interpretation which would undercut that legislative intent. ... The legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to make the penalties stiffer. It is clear from the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits, and this legislative intent cannot be ignored.

Id. at pp. 12-13.

The Misrepresentation

In March 2001, Apeck received information that Mr. Bowers had been horseback riding and was thrown from a horse. Apeck’s adjustor believed riding a horse was not an activity that Mr. Bowers, who was being treated for a back injury as a result of his January 7, 2001 work accident, would have or should have been doing if his back injury was genuine. His testimony at trial revealed he also believed that Mr. Bowers being thrown from a horse would have worsened his condition.

At trial, Apeck presented evidence that, one day in March 2001, five persons were barbequing at the home of Linda Boze-man, Mr. Bowers’ cousin, and that some of them went horseback riding. Everyone at the barbeque testified at trial. Mr. Bowers and Ms. Bozeman testified that Mr. Bowers did not ride a horse that day. Ms. Bozeman’s son, Terry, and Charles Gun-ter, Mr. Bowers’ co-employee who was also Ms. Bozeman’s boyfriend, testified that they did not see Mr. Bowers ride a horse that day. Kim Dantzler, the fifth person at the barbeque, testified that Mr. Bowers did go horseback riding and that he fell off a horse while riding. The WCJ discredited the testimony of Mr. Bowers, Ms. Bozeman, Mr. Bozeman, and Mr. Gunter and accepted Ms. Dantzler’s testimony and held that Mr. Bowers did make willful misrepresentations about riding a horse.

Mr. Bowers does not assign as error the WCJ’s credibility determination on this issue but argues that there is no indication from Ms. Dantzler’s testimony that any injury occurred as a result of his alleged horseback riding. However, Ms. Dantzler also testified:

When we had concluded our ride he did tell me that I shouldn’t say anything about that because he shouldn’t be riding a horse. Because of the accident he had previously had at Apeck.

Mr. Bowers’ comments to Ms. Dantzler make it clear that he did not want her to tell anyone that he had been horseback riding and had fallen off of a horse because he knew he should not have ridden a horse and that the information would adversely affect his claim. Furthermore, it reveals that his misrepresentations were willful and made to obtain compensation payments. Therefore, they satisfy the requirements of La.R.S. 23:1208.

The Forfeiture

Apeck argues that the WCJ’s determination that Mr. Bowers made willful misrepresentations in violation of La.R.S. 23:1208 rendered all other issues presented at trial moot because his misrepresentations forfeited his right to any other benefits available to him under the workers’ compensation statute. We disagree.

The supreme court recently addressed forfeiture under La.R.S. 23:1208 in St. Bernard Parish Police Jury v. Duplessis, 02-0632 (La.12/4/02), 831 So.2d 955. In Duplessis, the claimant, who began receiving compensation benefits in 1991, made misrepresentations in 1999 on mileage reimbursement requests. At issue in the case was whether the claimant forfeited only his right to mileage benefits or forfeited his right to all benefits, including disability benefits. The claimant did not deny the misrepresentations but argued “he should not be subjected to the forfeiture of benefits that are unrelated to the fraudulent statements.” Id. at 960. The supreme court reviewed its decision in Re-sweber and conflicting lower court determinations on the issue and concluded that the claimant’s misrepresentations resulted in forfeiture of his rights to all compensation benefits. The court explained:

As this court found in Resweber, [660 So.2d 7], LSA R.S. 23:1208 is unambiguous. The Louisiana Legislature has made it clear: false statements that are willfully made for the purpose of obtaining workers’ compensation benefits constitutes an attempt to defraud the workers’ compensation system. Therefore, once it is determined that a claimant has willfully made a false statement for the purposes of receiving any benefit or payment, the plain language of the statute mandates that the “right to compensation benefits” under the Workers’ Compensation Act are forfeited.

Id.

However, the supreme court never addressed the issue of when forfeiture begins. While a worker may forfeit the right to all types of workers’ compensation benefits when he violates La.R.S. 23:1208, we agree with the trial court that benefits are not forfeited until the misrepresentation occurs, in this case the date of the deposition when Mr. Bowers misrepresented the fact that he had ridden a horse.

Subsection D of La.R.S. 23:1208 (emphasis supplied) provides:

In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

As indicated by Subsection D, it is clear that the intent of the legislature was to punish claimants who make false statements or representations to obtain benefits. Otherwise, the legislature would have provided restitution for any workers’ compensation benefits that the employer paid before it became aware of the fraudulent conduct.

The reason for this is simple. Before the misrepresentation, there has been no punishable conduct. The triggering mechanism is the fraudulent conduct. Resweber, 660 So.2d 7, (See footnote 7). Once the misrepresentation occurs, the provisions of La.R.S. 23:1208 apply, and from that point the claimant’s right to benefits is forfeited. Any other interpretation would have the effect of promoting a system whereby the employers would fail to commence the payment of workers’ compensation benefits in the hope of a future false statement which would relieve it completely of the obligation of paying workers’ compensation benefits, including its own actions which would be punishable under the Workers’ Compensation Act. This would thwart the purpose of the Workers’ Compensation Act which “was passed for the joint benefit of labor and management in order to insure that employees who became disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families.” O’Regan v. Preferred Enters., Inc., 98-1602, p. 5 (La.3/17/00), 758 So.2d 124, 128 (quoting Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (1942)).

We recognize that there are situations where an employee would forfeit the right to any payment of benefits, such as the case where the fraudulent conduct occurs when relaying a false history to an initial treating physician or on an application of employment. We are also mindful of the first circuit’s decision in LeBlanc v. Grand Isle Shipyard, Inc., 95-2452, p. 12 (La. App. 1 Cir. 6/28/96), 676 So.2d 1157, 1164, where the first circuit found that La.R.S. 23:1208 “does not limit the forfeiture of benefits to the time period after the claimant makes the false statements or misrepresentations.” We disagree with that statement and also note that the claimant in LeBlanc had made a false statement initially after his accident to two treating physicians in addition to lying on a pre-employment medical history questionnaire.

With this decision we keep in mind that forfeiture of benefits is a harsh remedy and the statute must be strictly construed. Wallace v. Lavergne Transp., 02-0123 (La.App. 3 Cir. 6/12/02), 819 So.2d 508, writ denied, 02-1896 (La.10/25/02), 827 So.2d 1176. Reading La.R.S. 23:1208 as a whole, we find that it was legislature’s intent to punish fraudulent conduct to obtain benefits from the time the fraudulent conduct occurs. It is at that time the worker forfeits his right to all types of benefits he may have been eligible to receive.

Therefore, we agree with the WCJ that Mr. Bowers did not forfeit benefits he was entitled to receive before he .made his willful misrepresentations because he did not commit any fraudulent conduct to obtain those benefits. The WCJ’s awards of indemnity benefits .for the period April 7, 2001 through December 3, 2001, is affirmed.

Civil Penalty

Pursuant to Subsection (D) of La. R.S. 23:1208, the WCJ assessed a $2,000 penalty against Mr. Bowers for his misrepresentations. Mr. Bowers contends that his misrepresentations were not made to obtain benefits; therefore, no penalty should have been assessed against him. For the reasons noted above, Mr. Bowers’ statements to Ms. Dantzler establish that his misrepresentations were made to obtain benefits. Accordingly, the WCJ did not err in assessing the $2,000 penalty against him.

PENALTY AND ATTORNEY FEES

Because we find that the misrepresentation by Mr. Bowers does not affect his right to any workers’ compensation benefits before he made the misrepresentation, we find it necessary to address Apeck’s argument that the WCJ erred in awarding a penalty and attorney fees for failure to allow Mr. Bowers an opportunity to be evaluated by his own choice of physician, which also occurred before the misrepresentation.

Pursuant to La.R.S. 23:1121(B), an employee has the “right to select one treating physician in any field or specialty.” Mr. Bowers testified that he asked to see Dr. David Steiner after the injury but Apeck told him no and sent him to another doctor. Apeck claims that this request was never made.

Obviously, the WCJ made a credibility determination that Mr. Bowers was telling the truth. However, we find this determination has no bearing on the facts of this case.

Pursuant to La.R.S. 23:1121, an employer’s or insurer’s consent is not required for the claimant to see his first choice of physician. It is only when the claimant makes a request to change physicians, that La.R.S. 23:1121 becomes applicable. Howard v. Our Lady of the Lake Reg'l Med. Ctr., 99-1826 (La.App. 1 Cir. 9/22/00), 768 So.2d 293. Mr. Bowers did not need Apeck’s permission to see Dr. Steiner as his first choice of an orthopedist because he has a statutory right to see a physician of his first choice in any field or specialty. Apeck’s refusal to allow Mr. Bowers to see Dr. Steiner did not trigger the provision of La.R.S. 23:1121 allowing an award of attorney’s fees. Thus, we reverse the award of a penalty and attorney fees based on Apeck’s refusal to allow Mr. Bowers to see Dr. Steiner.

DISABILITY

Apeck also argues that the trial court erred in finding that Mr. Bowers suffered any disability as a result of the accident. It claims that he was in poor health prior to the accident, having already suffered a back injury from an accident at a previous job.

A workers’ compensation claimant bears the burden of establishing by a preponderance of the evidence that he has received “personal injury by accident arising out of and in the course of his employment....” La.R.S. 23:1031(A).

The workers’ compensation judge’s determination as to whether the claimant’s testimony is sufficient to discharge the burden of proof constitutes a factual determination. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong.

LeBlanc v. Calcasieu Parish Sch. Bd., 02-728, p. 2 (La.App. 3 Cir. 12/30/02), 834 So.2d 1258, 1260 (citations omitted).

Dr. Douglas McKay, an orthopedic surgeon, treated Mr. Bowers three times, at which time Apeck discontinued Mr. Bowers’ benefits. Dr. McKay noted that Mr. Bowers’ back pain was a little higher in his back than his previous injury. This was confirmed by Mr. Bowers’ testimony. The results of a bone scan were normal, and an MRI indicated mild degenerative disc disease at L5-S1, but was otherwise normal. Dr. McKay testified that he did not know if the degenerative disc disease was aggravated by the accident, so he wanted to have additional tests performed on Mr. Bowers. Dr. McKay testified that a facet joint block and a MRI with contrast would help with his diagnosis. However, these tests were not performed because Apeck discontinued Mr. Bowers’ medical benefits.

While Dr. McKay agreed that most of Mr. Bowers’ complaints were subjective except for some muscle spasm, he stated that he would need to determine what is exactly wrong before he concluded whether the accident was causing Mr. Bowers’ problems. This is why he wanted to perform additional testing. At the time of the last visit on March 30, 2001, Dr. McKay had not released Mr. Bowers back to work.

With this evidence we do not find that the WCJ was clearly wrong in finding that Mr. Bowers suffered a disability as a result of the accident. Mr. Bowers’ benefits were terminated before a proper determination as to Mr. Bowers’ disability could be made, and as of the termination, Dr. McKay wanted to perform some additional testing.

TERMINATION OF BENEFITS

Mr. Bowers’ benefits were terminated on April 7, 2001. Louisiana Revised Statute 23:1201.2 provides that reasonable attorney fees are awarded as a penalty under the workers’ compensation law when an employer discontinues payment of benefits, and “such discontinuance is found to be arbitrary, capricious, or without probable cause.... ” Apeck claims that the WCJ erred in finding that its termination of Mr. Bowers’ benefits was arbitrary and capricious and granting attorney fees for such.

qArbitrary and capricious behavior is willful and unreasonable action, without consideration and regard for the facts and circumstances presented. An award of attorney’s fees in a workers’ compensation case is essentially penal in nature, as it is intended to discourage indifference and undesirable conduct by employers and insurers. Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative.

J.E. Merit Constr., Inc. v. Hickman, 00-943, p. 5 (La.1/17/01), 776 So.2d 435, 437-38 (citations omitted).

Reviewing the WCJ’s oral reasons for judgment, it appears that the WCJ was not too impressed with the insurance adjuster’s reasons for terminating benefits. Phil Moory was the insurance adjuster who terminated benefits. Mr. Moory testified that he terminated benefits because he had information that Mr. Bowers was not being truthful, that he had been thrown from a horse and he was not following doctor’s recommendations because he would show up at the office under the influence of alcohol. After agreeing that there was no recommendation from Dr. McKay that Mr. Bowers not consume alcohol, he testified that he terminated benefits primarily because he had information that Mr. Bowers was thrown from a horse. Mr. Moory opined that if Mr. Bowers was healthy enough to stand that trauma, he must be a “pretty tough guy.”

Mr. Moory admitted that at the time he terminated benefits, he had not even questioned Mr. Bowers about the horse incident. He had the opportunity to do so, having interviewed Mr. Bowers after he found out about the horse incident. Mr. Moory never investigated the situation any further, medically or otherwise, before he terminated benefits. We do not find that the trial court erred in finding that Apeck arbitrarily and capriciously terminated Mr. Bowers’ benefits, and therefore, an award of attorney fees was proper.

1 ^DECREE

The WCJ’s award of a $2,000 penalty and $2,500 attorney fees for Apeck’s refusal to allow him to be evaluated by a physician of his choice is reversed. In all other respects the judgment is affirmed. All costs of this appeal are assessed against Apeck Construction, Inc.

AFFIRMED IN PART AND REVERSED IN PART.

SULLIVAN, J., dissents and assigns written reasons.

|T SULLIVAN, Judge,

dissenting.

I would reverse the WCJ’s award of benefits to Mr. Bowers because I find the supreme court’s decisions in St. Bernard Parish Police Jury v. Duplessis, 02-0632 (La.12/4/02), 831 So.2d 955, and Resweber v. Haroil Construction Co., 94-2708 (La.9/5/95), 660 So.2d 7, and the construction of La.R.S. 23:1208 are clear that any misrepresentation, by a workers’ compensation claimant, regardless of when made, results in forfeiture of all benefits the claimant would otherwise be entitled to receive.

The WCJ’s awards of indemnity benefits for the period April 7, 2001 through December 3, 2001, penalties, and attorney fees are identical to the claimant’s position in Duplessis, 831 So.2d 955: Mr. Bowers did not forfeit benefits he was entitled to receive before he made his willful misrepresentations because they “are unrelated to the fraudulent statements.” Duplessis, 831 So.2d at 960. After Duplessis, I find this position untenable. If a claimant’s willful false statement regarding mileage reimbursement forfeits all of his compensation benefits, a claimant’s willful false [^statement regarding an activity or event that may have aggravated an existing injury or may have caused additional injury forfeits all of his benefits.

The majority’s determination that Mr. Bowers did not forfeit benefits prior to his misrepresentation at his deposition is based in part upon La.R.S. 23:1208(D). This provision, which provides for restitution by a claimant to his employer when the claimant makes a misrepresentation which results in forfeiture of his benefits, supports my conclusion. The restitution provided for in Subpart D “may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.” (Emphasis added.) There is no reference or requirement that the claimant make a misrepresentation to the employer. Therefore, pursuant to Subpart D, if Apeck had continued paying benefits to Mr. Bowers after it learned of his actions at the March 2001 barbeque, it would have risked waiving its claim for restitution because the benefits would have been paid after it was “aware” of his “fraudulent conduct.” Additionally, there is no limiting language in Subpart E as in Subpart D. The legislature could have included such language in Subpart E but did not.

The majority asserts that any interpretation other than its interpretation would encourage employers not to pay benefits timely in hope of an employee making a false statement in the future. However, such an employer is subject to penalties and attorney fees. See La.R.S. 23:1201 and 23:1201.3. As noted by the majority, the intent of the workers’ compensation statute is to insure that employees injured while in the course and scope of their employment receive benefits during the time of their disability; it is intended to benefit both the employee and the employer. To award benefits to Mr. Bowers, whose comments to Ms. Dantzler make it clear that he | ..¡intended to deceive Apeck from the date of the incident, is in contravention of the statute.

In KLLM v. Reed, 00-295 (La.App. 3 Cir. 10/11/00), 771 So.2d 728, this court held that issues of penalties and attorney fees are moot once forfeiture under La. R.S. 23:1208 has been found applicable. Accordingly, I am of the opinion that the WCJ’s award of penalties and attorney fees was also error.

For these reasons, I respectfully dissent.

      . We do agree with Apeck that La.R.S. 23:1121 does not authorize a penalty award when an employer or insurer arbitrarily or capriciously withholds its consent to a change of treating physician. It only authorizes an award of attorney's fees. Smetak v. Louisiana Workers’ Compensation Corp., 97-1497 (La.App. 3 Cir. 4/15/98), 711 So.2d 417.


source: Caselaw Access Project

author: |tBROWN, C.J.

license: Public Domain

text:
    Margaret Robinson GRAY, et al., Plaintiffs-Appellants, v. Robert Wayne GRAY, Defendant-Appellee.
    No. 37,884-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2003.

      Sockrider, Bolin, Anglin & Batte by H.F. Sockrider, Jr., for Appellants.
    Jack W. Slaid, Minden, for Appellee.
    Before BROWN, WILLIAMS, and STEWART, JJ.
   |tBROWN, C.J.

Did the trial court err in finding provisions in two consent judgments that required the father to pay “monies necessary for the college education of the minor children of the marriage” to be so vague and indefinite that they were unenforceable? For the following reasons, we reverse and render.

Factual and Procedural History

Plaintiff, Margaret Lynn Robinson Gray (“Lynn”), and defendant, Robert Wayne Gray (“Robert”), were married in 1981. Two children, Robert Wesley Gray and Mary Michal Gray, were born to the parties on June 10, 1982, and December 5, 1983, respectively. Robert also had another son from a previous marriage, William Arthur Gray, born on March 10, 1977. Lynn legally adopted William shortly after her marriage to Robert.

On February 23, 1989, Lynn filed for divorce. A Stipulated Judgment on Rule was signed on October 13, 1989, granting joint custody of all three children in accordance with an “Implementation Plan of Joint Custody.” Thereafter, a judgment of divorce was rendered and signed on November 6, 1989. Both of these judgments are considered consent judgments and contained the following stipulation:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of MARGARET LYNN ROBINSON GRAY, and against ROBERT WAYNE GRAY recognizing and homologating the agreement of the parties and therefor ordering that ROBERT WAYNE GRAY provide monies necessary for the college education of the minor children of the | gmamage, same to be an enforceable obligation contractually even though the children have reached the age of majority prior to the completion of their educational endeavors.

On April 16, 2001, Lynn filed suit against Robert seeking a judgment declaring that the college education provisions were enforceable, and to order payment of such expenses; she also requested that Robert be held in contempt of court for his failure to comply with said provisions and sought an award of attorney fees. On May 29, 2001, this petition was amended to join as plaintiffs Wesley and Mary Michal Gray, who at this time were 19 and 18 years of age.

By written opinion issued on August 28, 2001, the trial court found that the provisions in both consent judgments were “part of the settlement of the community,” and that these provisions were in fact enforceable. A judgment to that effect was signed on October 15, 2001; however, Robert’s motion for new trial was granted. The matter was then resubmitted on briefs.

On February 6, 2003, the trial court reversed its prior holding and found:

[T]he contested provision is null and void as it is ambiguous and uncertain as to the expenses to be paid by Mr. Gray. To be enforceable, the agreement must contemplate definite obligations, and this provision fails to do so. The Court lacks authority to substitute its interpretation of what is “necessary” for the intention of the parties ... No contract can arise unless the parties have agreed and consented (to) its terms ... This Court does not believe that the parties could have reached an agreement because the terms are too indefinite.

Judgment was signed on March 21, 2003. From this judgment, Lynn and her two children have taken the instant devolu-tive appeal.

13Discussion

A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. It has binding force from the voluntary acquiescence of the parties, not from the court’s adjudication. Mobley v. Mobley, 37,364 (La.App.2d Cir.08/20/03), 852 So.2d 1136; Gulledge v. Gulledge, 32,561 (La.App.2d Cir.08/18/99), 738 So.2d 1229, and citations found therein.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046; Tolar v. Tolar, 25,935 (La.App.2d Cir.06/22/94), 639 So.2d 399. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051.

The record leaves no doubt that the parties intended that Robert pay for the college costs of all three children. Robert and Lynn reviewed and approved the provision on two separate occasions. We note that Robert provided his oldest son from a prior marriage, William, whom Lynn had previously adopted, with college education funds. He did not, however, provide his other two children, Wesley and Mary Mi-chal, with such monetary support for their respective higher educational endeavors.

An agreement between the parties is supposed to have the effect of law and must be performed in good faith. La. C.C. art.1983; Heck v. LaFourche Parish Council, (La.App. 1st Cir.11/14/03), 860 So.2d 595. Good faith performance is implied into all ^contracts. See La. C.C. art. 1759; Reed v. State Farm Mutual Auto. Ins. Co., 03-0107 (La.10/21/03), 857 So.2d 1012. It is not within the purview of this court to relieve an able party such as Robert of his obligation which he freely and voluntarily entered into absent evidence of a vice of consent. No such showing has been made. Consequently, he is bound by such responsibility to fund Wesley and Mary Michal’s college educations.

Nonetheless, the words in the provisions of the parties’ consent judgments need clarification. Before granting a new trial and reversing his opinion, the same trial court found that “[Tjhese parties freely entered into this whole agreement.” In resolving what was to be deemed necessary for the children’s college education, the trial court explained:

The word used is “necessary” which implies nothing not necessary. This Court believes a common sense interpretation of the agreement, utilizing the word “necessary” would mean that the expenses to be paid could include:

1. Tuition at any Louisiana state supported college or university;
2. Actual textbook and lab expenses;
3. Actual dormitory (not apartment) fees; and
4. Spending money:
a. Actual cost of meal ticket or if not available, $70 per week;
b. Laundry allowance or $10 per week; and
c. Transportation allowance of $10 per week (bus).
The Court would not include funds for a car, fraternity or sorority expenses; entertainment or “so-called” beer-drinking money. These are not necessary expenses.

We adopt the trial court’s initial determination of what are necessary expenses with the following modifications: that it applies to undergraduate |Rstudies only and that Robert is entitled to credit for any scholarship, grant, or other program that pays or has paid for any of these expenses.

Conclusion

Therefore, for the reasons stated above, we REVERSE the judgment of the trial court finding the contested provision to be null and void and enter judgment in favor of plaintiffs.

IT IS ORDERED, ADJUDGED AND DECREED that defendant, Robert Wayne Gray, pay past and future educational expenses as outlined in this opinion for Robert Wesley Gray and Mary Michal Gray. Costs are assessed to Robert Wayne Gray.

REVERSED AND RENDERED.

      . Pursuant to the Implementation Plan for Joint Custody filed on October 13, 1989, Robert received domiciliary custody of his oldest son, William. Lynn received domiciliary custody of their daughter, Mary Michal. The parties split domiciliary custody of their younger son Wesley, each having six months per year with the child.

      . For the foregoing reasons, we pretermit discussion of Lynn’s other assignments of error. Specifically, Lynn asserted that the trial court erred by declaring the two consent judgments null and void because an action of nullity is not available 12 years after these judgments. By her last assignment of error, Lynn cites Clay v. Clay, 358 So.2d 649 (La.App. 1st Cir. 1978), to argue that Robert essentially "ratified” the provisions in dispute by paying for his oldest son’s college expenses.


author: I,BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Robert Clansey STEWART, Appellant.
    No. 37,841-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2003.

      Bertha Moseley Hillman, Louisiana Appellate Project, for Appellant.
    Robert Clansey Stewart, Pro Se.
    William R. Jones, District Attorney, for Appellee.
    Before BROWN, WILLIAMS and STEWART, JJ.
   I,BROWN, C.J.

Defendant, Robert Clansey “Rocky” Stewart, entered a guilty plea to first degree murder without capital punishment, reserving his right to appeal the denial of his motion to suppress his confession and the evidence seized as a result thereof. See State v. Crosby, 338 So.2d 584 (La. 1976), which held that a defendant may plead guilty while reserving his right to appeal an adverse pretrial ruling. A life sentence was imposed and this appeal followed. Finding that defendant’s statements were freely and voluntarily given, we affirm his conviction and sentence.

Facts

Wendi Long lived with her parents in the Martin Community in Red River Parish, Louisiana. Wendi was 21 years old when she was reported missing. She was last seen on April 14, 2001. Her disappearance was being investigated by the Red River Parish Sheriffs Office. Defendant and Wendi had attended a party on the night of April 13, 2001, and defendant had given law officers information that he had seen Wendi getting into a pickup truck with two men.

In October, November and December of 2001, while in custody in Natchitoches Parish on unrelated charges, defendant gave a series of statements to Danny Hall, an investigator with the Natchitoches Parish District Attorney’s Office, which led to the discovery of Wendi Long’s body in rural Red River Parish. In a statement made on December 4, 2001, defendant confessed to shooting Wendi twice in the back of the head after engaging in rough sex.

| ¡Discussion

Denial of Motion to Suppress Confession

Notwithstanding the presence of an attorney retained by his family to represent him, and the fact that he was advised of his Miranda rights, defendant argues that his confession was not free and voluntary because he was led to believe that he would receive a short sentence if he confessed. He contends that the investigator asked him whether he wanted to be an old man or a young man when he got out of prison; defendant claims that he understood this to mean that if he cooperated he would get a shorter sentence.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. La. R.S. 15:451; La. C. Cr. P. art. 703(C); State v. Hills, 354 So.2d 186 (La.1977); State v. George, 37,492 (La. App.2d Cir.09/24/03), 855 So.2d 861; State v. Roddy, 33,112 (La.App.2d Cir.04/07/00), 756 So.2d 1272, writ denied, 00-1427 (La.05/11/01), 791 So.2d 1288; State v. Rogers, 476 So.2d 942 (La.App. 2d Cir. 1985).

Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. George, supra; State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. Id.; State v. Walker, 28,577 (La.App.2d Cir.10/04/96), 681 So.2d 1023.

| The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless they are unsupported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983); State v. Roddy, supra; State v. Dailey, 607 So.2d 904 (La.App. 2d Cir. 1992). Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, supra; State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Trotter, 37,325 (La.App.2d Cir.08/22/03), 852 So.2d 1247; State v. Henderson, 31,986 (La.App.2d Cir.08/18/99), 740 So.2d 240.

At issue are four statements given by defendant on four separate occasions before he was arrested for Wendi Long’s murder. Defendant made these statements to Det. Hall while he was jailed in Natchitoches Parish on other unrelated felony charges.

Detective Danny Hall’s Testimony

(1) October 23, 2001. Detective Hall initiated this first meeting. Det. Hall testified that defendant would not allow the officer to advise him of his Miranda rights, and that defendant told him that he would talk to him as long as his rights were not read to him. Defendant did not seek to suppress what he and Det. Hall discussed, as he simply agreed to help in finding the two men he claimed Wendi left with.

(2) ^November 8, 2001. After the first interview, Det. Hall testified that defendant asked for another meeting. On November 8, 2001, Det. Hall met with defendant and his attorney, Laura Johnson. At that meeting, he advised defendant of his rights, although defendant refused to sign the advice of rights form. Defendant told Det. Hall that he had received a telephone call and that he knew where Wendi Long’s body could be found. Defendant then gave details and Det. Hall sketched a map of the location. Thereafter, the body was found at the site described by defendant.

(3)November 16, 2001. Detective Hall stated that he met with defendant and his attorney again on November 16, 2001. According to the detective, defendant again initiated the meeting. Det. Hall again read defendant his rights and once again defendant would not sign a waiver form. A taped statement was taken. The tape and transcript show that defendant was once more advised of his rights. This time, defendant signed to indicate that he had been read and understood the rights. Detective Hall further stated that he did not threaten defendant or make any promises or inducements and noted that defendant did not appear to be under any duress.

Defendant stated that he was driving Wendi back to Natchitoches from a party they had attended in Shreveport when they stopped at a gas station. Wendi spoke with two guys in a black Chevrolet truck. Wendi introduced them to defendant as Mike and Zant. Both trucks traveled down Highway 1 South and turned down a side road. Defendant claimed that all three guys had sex with Wendi.

1 sMike got a shiny pistol out of his truck and defendant produced his .25 caliber pistol. They began shooting. Wendi walked in front of the guns and when he fired, she hit the ground. Defendant said that the two other guys “freaked out and left.” Defendant stayed five or ten more minutes, by which time Wendi was no longer breathing. He left her lying there and drove back toward Shreveport. He threw his clip and pistol out of the truck about 15 miles from the crime scene. He then drove home, changed clothes and went to bed. In closing, Det. Hall reiterated that there had been no promises made and defendant acknowledged this to be true.

(4) November 20, 2001. Detective Hall testified that defendant was again read his rights at the November 20, 2001, interview, which was also taped. Present at this interview were Det. Hall, defendant, Laura Johnson, defendant’s attorney, and Deputy Tracy Scott, an investigator from Red River Parish. Defendant identified two photographs depicting the gun he had previously described and had thrown out of his truck the night that Wendi Long was shot.

(5) December 4, 2001. This interview was also taped by Detective Hall. Defendant was again advised of his rights. At this meeting, defendant’s attorney, Laura Johnson, was again present.

Defendant answered “yes” to this question asked by Det. Hall:

Okay. I spoke with your attorney, Ms. Johnson, yesterday and she has indicated to me that you were wishing to come and revisit with me concerning the case of Wendi Long, some concerns that you have had prior, uh, we’ve had three interviews and you were wishing to speak with me again, correct?

[(¡Defendant then recanted the portion of his previous statements regarding Mike and Zant and said that he made up these men and their alleged involvement in Wendi’s disappearance and death. Defendant indicated that he was driving Wendi to Natchitoches when they stopped on a side road so that he could use the restroom. While there, they had “rough sex,” during which he removed her panties with a knife.

They then began arguing. Wendi slapped defendant and he “flipped out” and shot her with the pistol that was in his back pocket. Defendant indicated that he shot Wendi in the back of her head and after she had fallen, he walked up to her and shot her again. He then dragged Wendi’s body to the spot where it was eventually found. Defendant said that he took off her boots and removed her jeans, which were a light color and could have been seen from the highway in the moonlight.

At the end of his statement, defendant admitted that he had not been promised anything and confirmed that he had been advised of his rights and that his attorney had been present.

Attorney Laura Johnson’s Testimony

The defense called defendant’s attorney, Laura Johnson, to testify. Her testimony refuted defendant’s argument concerning any promises.

Ms. Johnson stated that she was initially appointed to represent defendant on some forgery charges in August 2001. Thereafter, defendant’s mother retained her to represent defendant in the Wendi Long matter. Ms. 17Johnson stated that she was not representing defendant when he first met with Det. Hall in October. She was, however, representing defendant when he spoke with Det. Hall on November 8, 16 and 20, 2001, and December 4, 2001.

According to Ms. Johnson, she covered with defendant the potential charges and penalties, from manslaughter to murder with the possibility of the death penalty. On cross-examination, she clearly stated that no promises regarding the charge or possible punishment had been made to defendant prior to his making the statements. Ms. Johnson noted that plea discussions or sentence arrangements were not at issue, inasmuch as Det. Hall was from Natchitoches Parish and the case was being investigated by Red River Parish.

Ms. Johnson testified that her first impression of the case was that it was not a capital murder case. Such an impression would have been justified by defendant’s statements prior to the one made on December 4th. She invoked the attorney-client privilege, however, when any questions were posed regarding what defendant had told her or what she had discussed with him.

Defendant’s Testimony

The short direct examination did not adequately address the allegations in the motion to suppress. Defense counsel asked defendant questions designed to show that Det. Hall had promised that defendant would get neither a life sentence nor the death penalty if he cooperated with the investigation.

IsQ: Did he tell you ... did he give any indication to you about giving a statement or what would happen if you gave a statement?
A: Yes, sir.
Q: What did he say?
A: Well, whenever ... after I asked my second time in confession he told me that I would be a young man or old man when I got out. And he asked me which one did I choose. I told him I would choose to be a young man.

While establishing that defendant, then 25 years old, had dropped out of high school and had not had a course in civics, the defense did not show how this lack of education rendered him incapable of understanding the choices he made. On cross-examination, defendant testified that his attorney was incorrect and that she did hear the investigator’s statement that defendant could choose whether he wanted to be a young man or an old man when he got out of prison. Defendant admitted, however, that he was not specifically told that he would not get the death penalty. Additionally, the state was able to elicit on cross-examination that defendant had signed a series of rights forms which he understood and waived. The state also established that defendant had a number of prior felony convictions which demonstrated his familiarity with the judicial process and his knowledge of the right to remain silent.

The best evidence in determining whether defendant’s statements were given voluntarily and knowingly and without any inducement, deceptions or “ploys” as alleged in the motion to suppress are the audio tapes themselves. After listening to the tapes, it is obvious that defendant wanted to dear his conscience by confessing what he had done.

|aThe trial court’s determination that all of defendant’s statements were free and voluntary is entitled to great weight. The tapes themselves are indicative of what transpired. Defendant failed to introduce anything of merit to justify disturbing the finding of the trial court. This assignment of error is meritless.

Denial of Motion to Suppress Evidence

According to defendant, any evidence obtained as a result of his statements is tainted as “fruits of the poisonous tree” and therefore inadmissible. In support, defendant relies upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and its progeny, which hold that evidence located as a result of information obtained from an illegal arrest, search or confession should be suppressed. Defendant’s confession(s) led to the discovery of the body of Wendi Long, as well as a .25 caliber pistol, bullet clip, bullets and a knife.

Because defendant’s statements were admissible, the evidence recovered as a result of defendant’s statements are also admissible. See State v. Williams, 420 So.2d 1116 (La.1982). This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are affirmed. AFFIRMED.

      . Ms. Johnson’s withdrawal from representation was based upon defendant's inability/unwillingness to compensate her. This point was emphasized at the hearing on the motion to suppress.


author: I .WILLIAMS, Judge.

text:
    Margaret FLUCK, et vir., Plaintiff-Appellant, v. Leslie R. COFFMAN, M.D., Defendant-Appellee.
    No. 37,739-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2003.

      John L. Hammons, Shreveport, Annis C. Flournoy, for Appellant.
    David H. Nelson, Monroe, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   I .WILLIAMS, Judge.

The plaintiffs, Margaret Fluck and Jack Fluck, appeal a judgment in favor of the defendant, Leslie Coffman, M.D., dismissing their medical malpractice claim. The trial court found that the plaintiffs failed to prove that defendant breached the standard of care. For the following reasons, we affirm.

FACTS

On November 8, 1994, Margaret Fluck underwent bladder suspension surgery by Dr. Leslie Coffman, an obstetrician/gynecologist. During the surgical procedure, Dr. Coffman inadvertently passed a suture through the patient’s catheter. Two days later, Bessie Herring, a registered nurse at Glenwood Regional Medical Center, was unable to remove the catheter and contacted Dr. Coffman, who went to see Fluck in the hospital.

At trial, the parties gave contrasting versions of the incident which had transpired. Dr. Coffman and Nurse Herring testified that he grasped the end of the catheter between his thumb and index finger and gently pulled once to try to remove the catheter. They both stated that the effort did not cause Fluck any pain and that they did not recall hearing the patient scream out in distress.

In contrast, Fluck testified that Dr. Coffman made multiple aggressive attempts to remove the sutured catheter and that his efforts caused her excruciating pain. Fluck testified that she screamed out in pain a number of times and that Coffman refused to discontinue his efforts even after she begged him to stop. Fluck’s two sisters and her husband, Jack, each testified that they were standing in the hall outside the door of the | .examining room and heard Fluck scream in pain a number of times.

When Dr. Coffman concluded that the catheter must have been sutured into place, he consulted with Dr. Edwin Edger-ton, a urologist, who removed the catheter the next day by performing a cystoscopy procedure. The nursing notes described bruises on Fluck’s lower abdomen on the day following Dr. Coffman’s attempts to remove the catheter.

Subsequently, the plaintiffs, Margaret and Jack Fluck, filed a complaint against Dr. Coffman with the Patient’s Compensation Fund. A medical review panel issued a unanimous opinion finding that Dr. Coff-man had not breached the applicable standard of care in his treatment of Fluck. The plaintiffs then filed a petition for damages against the defendant, Dr. Coffman, alleging that his negligence caused Fluck pain and suffering, mental anguish, sexual dysfunction and required further surgical intervention.

Initially, the district court granted defendant’s motion for summary judgment, which was affirmed by this court. Fluck v. Coffman, 32,100 (La.App.2d Cir.9/22/99), 742 So.2d 79. The supreme court reversed and remanded after finding that a genuine issue of material fact existed. Fluck v. Coffman, 99-3054 (La.1/7/00), 752 So.2d 171. The parties entered a consent judgment limiting plaintiffs’ claim to damages for the mistaken suturing of the catheter. After a bench trial, the court issued written reasons finding that the plaintiffs failed to establish that Dr. Coffman had breached the standard of care. The trial court rendered judgment dismissing the plaintiffs’ claims. Plaintiffs appeal the judgment.

| .DISCUSSION

In two assignments of error, the plaintiffs contend the trial court erred in finding that they did not meet their burden of proving that the defendant was negligent. Plaintiffs argue that the testimony supported a finding that defendant used excessive force in attempting to remove the catheter, thereby causing unnecessary pain to Margaret Fluck.

In a malpractice action based on the negligence of a physician licensed in Louisiana, where the defendant practices in a specialty and the alleged acts of medical negligence raise issues peculiar to that specialty, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the same medical specialty. The plaintiff must also prove that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence in applying that skill, and that defendant’s failure to exercise this degree of care caused plaintiff to suffer injuries that would not otherwise have occurred. LSA-R.S. 9:2794(A); Smith v. Lincoln General Hospital, 27,133 (La.App.2d Cir.6/21/95), 658 So.2d 256. The mere fact that an injury-occurred does not raise a presumption that the physician was negligent. LSA-R.S. 9:2794(C).

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

In the present case, Dr. Debora Murphy, a psychiatrist, testified that she first saw plaintiff in July 1995. After an initial evaluation, Dr. Murphy diagnosed plaintiff with a mood disorder due to surgical complications following bladder suspension surgery and ongoing medical problems. Dr. Murphy testified that plaintiff reported that the defendant had stitched in the catheter during bladder surgery, requiring a cystoscopy procedure to remove the suture. Dr. Murphy stated that regarding the catheter incident, plaintiff “felt she was being hurt” by defendant and she shouted because his act of pulling the catheter was so painful, but she said that defendant did not acknowledge he had caused her pain.

Nurse Herring testified that she attempted to remove the catheter by cutting the tube and draining the fluid from the catheter bulb, but it would not come out. Herring stated that she called the defendant and he instructed her to move the plaintiff to a treatment room and give her Valium. Herring testified that defendant first tried to push in the catheter to see if the bulb was stuck and then he “gently pulled” on the catheter, but he was unable to remove it and said that it must have been stitched in place. Herring did not recall hearing the plaintiff say anything, scream in pain or ask the defendant to stop in reaction to his efforts. According to Herring, the defendant could not have placed his hand on plaintiffs abdomen while pulling the catheter because he was sitting on a stool and plaintiff was in a raised examination chair with her body at his eye level. Herring testified that she did not notice any bruising on plaintiffs lower abdomen and did not see defendant do |5anything overly aggressive to plaintiff while trying to remove the catheter.

Two of plaintiffs sisters, Jane Smith and Diane Rizzo, testified that they were standing outside the treatment room door when defendant attempted to remove the catheter. Smith stated that after defendant entered the room, she heard plaintiff scream like a person in severe pain approximately three to five times and that plaintiff may have said “stop” or “don’t.” Rizzo testified that she had been in plaintiffs hospital room earlier when the nurse attempted to remove the catheter by gently pulling it and that plaintiff had winced in pain. Rizzo stated that while she was standing outside the treatment room, she heard plaintiff scream like someone in pain approximately seven or eight times and that she said “please stop.”

The plaintiffs husband, Jack Fluck, testified that he was in the hall outside the treatment room when he heard a “yell of pain” and several more screams from his wife. Fluck stated that he was shocked by the event because he was not told that removal of the catheter would cause such pain.

Dr. Ralph Armstrong, an obstetrician/gynecologist, testified that he was a member of the medical review panel which found that the defendant did not deviate from the standard of care in the treatment of plaintiff. Dr. Armstrong stated that if a catheter does not come out immediately, it is appropriate for a physician to manipulate the catheter with a certain amount of light tugging to determine the problem. Dr. Armstrong testified that the fact that a patient screams in pain does not necessarily indicate the physician has acted negligently, since individual patients have different thresholds of pain tolerance. Dr. Armstrong stated that the type of suture used in | (¡plaintiff s procedure can pull out easily, so that sometimes “a little strong tug” can break the stitch and release the catheter. Armstrong testified that the bruising on plaintiffs lower abdomen was caused by the surgical incision and not by pulling on the catheter. Dr. Armstrong opined that in this case, the defendant did not use excessive force in manipulating the catheter because he did not break or pull out the suture.

The plaintiff testified that defendant performed the bladder suspension surgery on November 8, 1994. She stated that two days later, a nurse was unable to remove the catheter and moved her to an examination room. Plaintiff testified that defendant pressed down on her abdomen with one hand and pulled the catheter with the other. Plaintiff stated that after defendant pulled hard on the catheter several times causing her to scream in severe pain, he instructed the nurse to give her Valium through an IV. The plaintiff testified that defendant then resumed forcefully pulling the catheter several more times causing her pain, despite her screams and request that he stop. Plaintiff stated that after defendant’s attempts to remove the catheter, there were bruises on her abdomen in the shape of a hand and that a nurse noted this bruising in the hospital chart. Plaintiff acknowledged that she saw defendant for follow-up examinations following the bladder surgery.

Dr. Michael Cage, who was accepted as an expert in urology, testified that suturing the catheter during a bladder suspension surgery was not a breach of the duty of care because the procedure requires the surgeon to work very closely to the urethra. Dr. Cage stated that if a physician used excessive force to remove the catheter, he would either rip the suture loose l7from the catheter or rip the suture out of the urethra. He said there would be bleeding and the bladder repair would be ruined. Dr. Cage testified that the evidence indicated that defendant pulled enough to make sure the catheter would not come out and then appropriately consulted with Dr. Edgerton for removal of the suture. Dr. Cage stated that causing a patient to scream in apparent pain would not necessarily indicate that a physician violated the standard of care, because every patient has a different pain threshold. Dr. Cage opined that defendant did not use excessive force in manipulating the catheter because he did not pull out the suture. Dr. Cage testified that he was not trained to deflate and remove the catheter after placing sutures in a bladder suspension procedure, and did not know of anyone else who followed this procedure, because the abdomen would be open and removing the catheter would possibly cause contamination with the risk of urinary tract infection. Dr. Cage opined that defendant’s decision not to remove the catheter during surgery was “absolutely not” a breach of the standard of care.

Dr. Hoyet Chance, a board certified urologist, died before trial and his deposition was admitted into evidence. Dr. Chance testified that when performing bladder surgery and placing sutures near the urethra, the surgeon should remove and reinsert the catheter in the operating room when the procedure was finished to determine that the catheter had not been unintentionally sutured. Dr. Chance opined that defendant breached the standard of care because he did not deflate and remove the catheter after completing the procedure in this case. However, Dr. Chance acknowledged |sthat although such removal and reinsertion of the catheter was the practice in his operating room, he could not say that this method was the standard practice followed by urologists in this type of bladder surgery. Dr. Chance also opined that defendant deviated from the standard of care in preparing the discharge summary by stating that the inability to deflate the catheter bulb was the reason for the cystoscopy, when he knew that the plaintiff needed a suture cut from the catheter.

The defendant testified that he saw plaintiff in October 1994 with a complaint of urinary incontinence and he recommended bladder suspension surgery to correct the condition. Defendant stated that in this surgery, a Foley catheter is placed in the bladder to help locate the urethra. He explained that several sutures must be placed very close to the urethra on either side to support the bladder. Defendant testified that placing a suture in the catheter during this procedure is a complication, but not a breach of the standard of care. Defendant stated that Nurse Herring informed him of her inability to remove the catheter and he went to examine the plaintiff, who had been placed in an elevated examination chair. Defendant testified that he grasped the end of the catheter with his thumb and index finger and gave one “good pull,” but the catheter did not come out and it could not be pushed inward. Defendant stated that he told the nurse he had sutured the catheter in place and called Dr. Edgerton for a urological consult. The defendant testified that he did not have a specific recollection that plaintiff had screamed in pain, and could not say whether or not she had screamed. He asserted that plaintiff had always been difficult to examine because of | nher “exaggerated pain response.”

In their brief, the plaintiffs argue that the testimony presented concerning defendant’s attempt to remove the catheter was not credible because Nurse Herring could not correctly describe Margaret Fluck’s surgical incision and defendant’s discharge summary was inaccurate. However, the trial court considered the evidence, heard the conflicting testimony and was able to weigh the credibility of all of the witnesses.

As stated above, Dr. Armstrong opined that defendant had not used excessive force in pulling the catheter because the suture was not torn away from the tissue, as could have been done with fairly minimal effort. Although defendant wrote in the discharge summary that the complication involved the inability to deflate the catheter bulb, the attached consultation report described the actual problem of a sutured catheter, and defendant later wrote a letter to plaintiffs acknowledging his error. Based upon this record, the trial court could reasonably have found that although defendant’s manipulation of the sutured catheter caused plaintiff to feel pain, the force exerted by defendant was not unreasonable or excessive under the circumstances of this case.

In addition, plaintiffs contend defendant was negligent in failing to remove and reinsert the catheter during surgery to discover the inadvertent suturing. Contrary to plaintiffs’ contention, Dr. Cage opined that removal of the catheter during bladder surgery was not the applicable standard of care. Further, although Dr. Chance stated that such removal was his practice, he could not say that this method was the standard of care for linurologists or other surgeons performing this bladder suspension procedure.

Thus, the record supports the trial court’s implicit finding that the plaintiffs failed to establish that removal and reinsertion of the catheter during surgery was the applicable standard of care. Consequently, we cannot say the trial court was clearly wrong in its evaluation of the testimony or in finding that defendant was not negligent in his treatment of the plaintiff. The assignments of error lack merit.

Informed Consent

The plaintiffs contend the trial court erred in finding that defendant obtained their informed consent for the surgical procedure. Plaintiffs argue that defendant should have advised them that suturing of the catheter was a recognized risk of the bladder suspension surgery.

In a medical malpractice action based on inadequate disclosure of risk information by a physician, the patient bears the burden of proving the existence of a material risk unknown to the patient, a failure to disclose the risk by the physician, that disclosure of the risk would have led a reasonable patient in plaintiffs position to reject the medical procedure or choose a different course of treatment, and injury. Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988); Roberts v. Cox, 28,-094 (La.App.2d Cir.2/28/96), 669 So.2d 633.

In the present case, Drs. Armstrong and Cage testified that the consent form used by defendant complied with the standard of care since it warned of the more common and serious complications that could occur, such as paralysis or death. Dr. Cage testified that he did not inform his | ^patients of the risk of suturing the catheter because he had not made that mistake and he had seen it happen only twice in forty years of practice. Dr. Cage opined that such a risk was not sufficient to mention as a routine complication. Dr. Armstrong testified that the medical review panel found that plaintiffs were informed of the risks of the surgery and the possibility of complications.

The plaintiffs’ own expert, Dr. Chance, testified that he did not inform bladder surgery patients of the possibility of inadvertent suturing of the catheter in obtaining informed consent. The plaintiff acknowledged that she had signed the consent form for the bladder repair procedure.

Based upon the testimony presented, the trial court could have reasonably found that given plaintiffs’ awareness of serious risks such as loss of organs, brain damage or death, the disclosure of the risk of a sutured catheter would not have reasonably influenced plaintiff to reject the bladder repair procedure. After reviewing the record, we cannot say the trial court erred in finding that informed consent was obtained. The assignment of error lacks merit. Considering the above disposition, we pretermit discussion of the remaining assignment of error concerning damages.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Margaret and Jack Fluck.

AFFIRMED.


author: 1, GASKINS, J.

text:
    WISNER ELEVATOR COMPANY, INC., Plaintiff-Appellant, v. RICHLAND STATE BANK, Defendant-Appellee.
    No. 37,764-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2003.
    McGlinchey Stafford, PLLC, by James C. Grigler, Jr., New Orleans, for Appellant.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., by David P. Doughty, Rayville, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   1, GASKINS, J.

Wisner Elevator Company, Inc. (“Wis-ner”), appeals from a summary judgment in favor of the defendant, Richland State Bank. At issue is the deposit of a check with a typed statement on the back directing that a portion of the funds be paid to a third party. We affirm the trial court judgment.

FACTS

On July 13, 2001, the United States Treasury, through the Farm Service Agency, issued a check in the amount of $17,420.00, made payable to Chad E. Gill. On the back of the check the following was typed:

PAY TO THE ORDER OF RICH-LAND STATE BANK FOR ISSUANCE OF A CASHIER’S CHECK PAYABLE TO WISNER ELEVATOR IN THE AMOUNT OF $13,200.50 AND PAY THE BALANCE TO CHAD GILL IN THE AMOUNT OF $4,219.50.

On July 23, 2001, the check was deposited into Gill’s checking account at Richland State Bank. Gill’s signature is found on the back of the check below the typed paragraph. No cashier check to Wisner Elevator was issued; instead the entire amount was deposited into Gill’s checking account as per Gill’s deposit ticket.

On May 13, 2002, counsel for Wisner made amicable demand upon Richland State Bank. On May 28, 2002, Wisner filed suit against the bank, claiming that its failure to apply the funds as per the restrictive indorsement | ^constituted a conversion of the portion of the check due to Wisner under La. R.S. 10:3-206(c)(2).

On June 10, 2002, the bank filed peremptory exceptions of no right/cause of action and an answer. In its exceptions, it asserted that the indorsement on the back of the check was a conditional indorsement and ineffective under La. R.S. 10:3-206(b). The bank also argued that Wisner had no standing or right of action to sue because it was not a payee, indorsee or holder of the check. In its answer, the bank asserts the fault of the United States Treasury and/or the U.S. Department of Agriculture and/or the Farm Service Administration, in failing to make the check payable to both Gill and Wisner. To the extent that the indorsement was conditional, the bank contends that it was unenforceable; to the extent that it was restrictive, it maintains that the restrictions were waived by the indorser when he deposited the full amount of the check into his own checking account.

On June 26, 2002, Wisner filed a motion for summary judgment. Attached to the motion was an affidavit by Brad Terral, the president of UWisner, stating that Wis-ner was owed $13,200.50 by Gill for seeds, chemicals, crop supplies and agricultural seed technology fees. He further stated that Gill never paid the $13,200.50 he owed and that Wisner did not receive a cashier’s check issued in that amount by Richland State Bank.

On August 20, 2002, Richland State Bank filed a motion for summary judgment. Attached to the motion was an affidavit by Hettie Hastings, the bank teller who handled the transaction. According to her, Gill asked to deposit the entire amount in his account. She further stated that the bank was unaware that the in-dorsement was written by someone other than Gill.

The parties agreed that the facts were not in dispute and submitted the cross motions for summary judgment to the trial court on memorandums. The court found that the typed indorsement placed on the check was the indorsement of the maker, not Gill. However, when Gill signed below the indorsement, he made it his own in-dorsement. The court concluded that Gill had the legal power and authority to verbally instruct that the entire proceeds be deposited into his account. The court stated that as long as the indorsement was his own, whether it was restrictive or conditional, Gill had the power to ignore it, strike it out or give contrary instructions.

The court further concluded that the bank acted properly when it followed the verbal instructions given by Gill to the teller and the written instructions on his deposit slip to deposit the entire proceeds into Gill’s account. Consequently, the court gave summary judgment in favor of the | ¿bank. It pretermitted consideration of the bank’s exceptions. Judgment was signed March 24, 2003.

Wisner appeals.

LAW

Our review of a grant or denial of a motion for summary judgment is de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181 (La.2/29/00), 755 So.2d 226. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sunset Realty, Inc. v. Antonini, 36,788 (La. App.2d Cir.1/29/03), 836 So.2d 1173. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

DISCUSSION

Wisner contends that the trial court erred in holding that the bank could disregard what Wisner characterizes as a special and restrictive indorsement on the back of the check. It claims that under La. R.S. 10:3-206, the amount paid by the bank had to be “applied consistently with” the indorsement and that the bank’s failure to comply with the indorsement made it liable to Wisner. According to Wisner, Gill was not entitled to deposit the amount due to Wisner by virtue of his own special indorsement Land the bank converted the check under La. R.S. 10:3-420 by crediting the full amount to Gill’s account.

The bank argues that the indorsement was conditional and thus could be ignored pursuant to La. R.S. 10:3-206(b). It also asserts that nothing on the check indicated that the indorsement was written by someone other than Gill. Since the check was made payable to Gill, the indorsement was not necessary to his title and could be ignored, struck out or. simply waived. The bank also claims that Wisner had no ownership interest in the check, did not receive delivery of the check, and had no claim for conversion under La. R.S. 10:3-420.

We agree with the appellee that the true problem in this case is the failure of the government to issue the check jointly to Gill and Wisner as co-payees. Had the government done so, there would be no question as to Wisner’s entitlement to a portion of the proceeds from the check.

Although the writing on the back of the check is referred to as an indorsement, we note that, standing alone, it does not truly conform to the ^definition found in La. R.S. 10:3-204. This paragraph was placed on the back of the check by the government as the maker or drawer of the check. Consequently, the appellee argues that Gill as sole payee could waive, ignore or strike out the language.

Although the Louisiana jurisprudence contains no similar case dealing with the Uniform Commercial Code, we may look to other jurisdictions for guidance. Quantum Supplies Inc. v. Bank of the South, 544 So.2d 1 (La.App. 1st Cir.1989), unit denied, 550 So.2d 653 (La.1989); Sonnier v. Boudreaux, 95-2127 (La.App. 1st Cir.5/10/96), 673 So.2d 713.

In Silver Creations, Ltd. v. United Parcel Service, 133 N.J.Super. 543, 337 A.2d 641 (1975), the drawer of a check placed instructions on the backs of several checks (which were not post-dated) that the instruments not be deposited until a specific future date. However, the payee presented some of the checks prior to the date specified on the back. The court found that the drawer did not have the capacity to indorse the instruments; as a result the typed instructions on the backs of the checks could not be indorsements. Instead, they were “merely requests to plaintiff who may or may not comply at its own pleasure. The instructions are neither binding on |7plaintiff nor the subsequent holders.” In other words, the payee could ignore the instructions.

In the instant case, the payee did precisely that. Gill ignored the writing on the back of the check and instructed the teller at the defendant bank to do the same through verbal and written instructions.

Wisner argues that by affixing his signature under the writing on the back of the check, Gill made it his own indorsement. Furthermore, it asserts that it was a restrictive indorsement, not a conditional one which could be disregarded pursuant to La. R.S. 10:3-206. Wisner relies upon the provisions of La. R.S. 10:3-206 for the proposition that the check had a restrictive indorsement and that the bank converted the check because it failed to apply the amount it paid consistently with the in-dorsement. However, Comment 3 to La. R.S. 10:3-206 states, in pertinent part:

This Article does not displace the law of waiver as it may apply to restrictive indorsements. The circumstances under which a restrictive indorsement may be waived by the person who made it is not determined by this Article.

Not all jurisdictions recognize a doctrine of waiver of restrictive indorsements. See Rutherford v. Darwin, 95 N.M. 340, 622 P.2d 245 (App.1980), wherein the court rejected that doctrine after expressing concern that it could be used as a means of concealing embezzlement or misappropriation.

In the Rutherford case, Darwin was a general partner of two entities with full authority to manage funds of both entities with his signature alone. He took money from one entity, Rancho Village Partners, in the form of a money order made payable to that entity and indorsed it to be deposited in | ¡¡that entity’s account. However, he deposited the money into the account of the other entity, The Settlement, Ltd., with a deposit slip pre-printed for the account of The Settlement. The teller deposited the funds according to the deposit slip, not the indorsement. The bank argued that Darwin “waived” the restrictive indorsement.

The court held that New Mexico did not recognize any doctrine of the waiver of restrictive indorsements. It noted that such a doctrine of waiver was recognized in other jurisdictions under the Uniform Negotiable Instruments Law (NIL). However, the court was unaware of any case recognizing it since the UCC superseded the NIL. It held that the codification of the law of restrictive indorsements contained in the UCC was sufficiently comprehensive and detailed to exclude common law exceptions which were not mentioned. The court further stated:

The presence of an uncancelled restrictive endorsement on a negotiable instrument creates the legitimate expectation that it was negotiated in accordance with the restriction, and thus it would, at least in some cases, tend to conceal embezzlement or misappropriation to allow such endorsements to be waived without being physically struck from the instrument.
The circumstances of the transaction cry out for attention on the part of the bank. We hold, as a matter of law, that the bank had a duty to refuse to deposit the money to the account of The Settlement. The money order was restrictively endorsed to the account of an entity entirely different from that named, on the accompanying deposit slip. The trial court observed that, particularly in light of the sum involved, the bank had an obligation to be sure that the money went into the proper account.

In its discussion, the court referred to the official comment to Sec. 3-206 as “persuasive authority of the meaning of the section” and stated that it gave | ¡¡further indication that “the section was not to be encumbered with the common law accessories of the NIL” when it described the changes made by the new section as “completely revised” from the prior NIL provision. However, New Mexico has since amended this article and its comments, as has Louisiana, and the comments now state: “This Article does not displace the law of waiver as it may apply to restrictive indorsements. The circumstances under which a restrictive indorsement may be waived by the person who made it is not determined by this Article.”

In his dissent, Judge Sutin found that “the deposit slip was equivalent to a line drawn through the restrictive endorsement. The restrictive endorsement was cancelled.” He also cited New Mexico’s version of UCC 1-103 that stated that unless displaced by particular provisions of the UCC, the principles of law and equity would be supplementary. He asserted that waiver of restrictive indorsements was not displaced and was a supplement to the UCC recognized in New Mexico.

In O'Petro Energy Corporation v. Canadian State Bank, 837 P.2d 1391 (Okla. 1992), a corporation president indorsed a check to the corporation “for deposit only” and had the bank deposit the proceeds in his personal account. The Supreme Court of Oklahoma held that, under these circumstances, the bank could not be held liable for violating the provisions of Oklahoma’s version of 3-206 if the president had authority to indorse the check and deposit it in any account he chose, and if the bank acted in a commercially reasonable manner in inquiring into that authority. The court stated that the accompanying deposit slip cancelled the indorsement out the Imsame as if the president had drawn a line through the restriction and further negotiated it with his personal in-dorsement.

In Society National Bank v. Security Federal Savings and Loan, 71 Ohio St.3d 321, 643 N.E.2d 1090 (1994), Vedrody was the president and controlling shareholder of both Microtek and NovelTree; as such he was authorized to indorse checks for both companies. He indorsed a check to Microtek “for deposit only” and signed his name. However, he presented the check to the bank with a deposit slip for Novel-Tree upon which he had written instructions to give him $1,000 in cash and credit the rest to NovelTree’s account. The teller did as instructed by the deposit slip. A creditor of Microtek, as its successor in interest, sued the bank for applying the check inconsistently with its restrictive in-dorsement.

The Ohio Supreme Court affirmed the appellate court decision that found the bank wrongfully paid the funds to a non-Microtek account inconsistently with the “for deposit only” indorsement. It held that the bank acted inconsistently with the indorsement by cashing or crediting the amount of the check to any account other than one held in the name of the payee. (Although it applied the former law, the court stated that it was consistent with what was then the newly enacted law in Ohio; the new law is comparable to the present Louisiana version of La. R.S. 10:3-206.) The. court stated:

The issue is whether [Vedrody’s] act of preparing a deposit slip on behalf of NovelTree instructing payment of the check in a manner contrary to the in-dorsement he had previously made on behalf of Microtek was an act sufficient to accomplish a modification of that in-dorsement. We find no statutory authority for the proposition that a depositary bank may disregard a restrictive indorsement baséd on the ^content of a deposit slip which is facially inconsistent with that restrictive' endorsement. On the contrary, the law compels the opposite conclusion. A deposit slip, which is neither attached to nor incorporated into the check itself, does not constitute an allonge, nor can a writing contained on a deposit slip serve as a restrictive in-dorsement, or a modification of a restrictive indorsement.

In dissent, Justice Wright found that, although the funds were applied inconsistently with the restrictive -indorsement, the bank had a valid defense. He utilized the Ohio version of UCC 1-103; it stated that, except where displaced by the UCC provisions adopted in Ohio, the principles of law and equity supplemented those provisions. He -wrote:

[T]he common-law principles relating to estoppel, waiver, and agency supplement the statutory provisions concerning restrictive indorsements. If the defenses of waiver and estoppel were not available, I could place a “for deposit only” restrictive indorsement upon a check payable to me, take the check to my bank, instruct the teller that I have changed my mind and want cash, and then sue the bank in conversion if it gives me the cash instead of depositing the check proceeds into one of my accounts.

In his dissent in Cairo Cooperative Exchange v. First National Bank of Cunningham , 228 Kan. 613, 620, 620 P.2d 805, 810-811 (1980), modified on rehearing, 229 Kan. 184, 624 P.2d 420 (1981), Justice McFarland expressed his concerns in a similar vein:

Certainly, when a person places a restrictive indorsement on a check, directing the bank to deposit the cheek in the person’s bank account, it is an instruction to the bank to do just that. K.S.A. 84-3-206. Simple, common sense reaches that result, with or without a code provision. But the Code does not state that failure to follow the instruction results in absolute liability to the bank in all circumstances.
Under the rationale of the majority opinion, if I take a check payable to me, with my restrictive “for deposit only” indorsement to the bank I regularly patronize, and advise the teller I have changed my mind 11?and want cash, then I must be paid twice for my check if the bank follows my instructions. This is not and cannot be the law.

He likewise referred to the Kansas version of UCC 1-103 in support of his position.

An important difference distinguishes the cases cited above from the one before us now. In the eases cited above, the payee and restrictive indorsement were generally consistent; the inconsistency arose from the verbal instruction or deposit slip. In the case at bar, the payee and the indorsement were inconsistent while the verbal and written deposit order were consistent with the payee.

La. R.S. 10:1-103 states that “[ujnless displaced by particular provisions of this Title, the other laws of Louisiana shall apply.” According to the Comment to La. R.S. 10:1-103, the purpose of this provision is to make clear that if a situation is not explicitly covered by the UCC provisions, the rest of Louisiana law applies without limitation.

In two cases arising under pre-UCC law, Louisiana recognized that indorsements could be ignored or struck out. In Succession of Leroy, 157 La. 1077, 103 So. 328 (1925), the Louisiana Supreme Court held that the holder of a check could erase or strike out a restrictive indorsement on a check that was not necessary to the holder’s title. In National Acceptance Company of America v. Wallace, 194 So.2d 194 (La.App. 2d Cir.1967), units refused, 250 La. 467, 196 So.2d 533 (1967), and 250 La. 470, 196 So.2d 534 (La.1967), the court stated that an erroneous indorsement could be ignored and even struck out as unnecessary to the plaintiffs title.

113Like the trial court, we find that when Gill affixed his signature under the writing-on the back of the check, he made it his own indorsement. We further find that the indorsement was restrictive, not conditional. As Gill’s own restrictive indorsement, he could waive it and direct that the check, upon which he was designated as the sole payee, be deposited in his account in its entirety.

Due to our resolution of this issue, we pretermit the issue of Wisner’s standing to bring the instant suit.

CONCLUSION

The trial court judgment granting summary judgment in favor of Richland State Bank is affirmed. Costs of this appeal are assessed against the appellant, Wisner Elevator Company, Inc.

AFFIRMED.

      . La. R.S. 10:3-206(c)(2) provides:
      (c) If an instrument bears an indorsement (1) described in R.S. 10:4-201(b), or (ii) in blank or to a particular bank using the words "for deposit,” "for collection,” or other words indicating a purpose of having the instrument collected by a bank for the indorser or for a particular account, the following rules apply:
      (2) A depositary bank that purchases the instrument or takes it for collection when so indorsed converts the instrument unless the amount paid by the bank with respect to the instrument is received by the indorser or applied consistently with the indorsement.

      . The provisions of La. R.S. 10:3-206(b) are:
      (b) An indorsement stating a condition to the right of the indorsee to receive payment does not affect the right of the indorsee to enforce the instrument. A person paying the instrument or taking it for value or collection may disregard the condition, and the rights and liabilities of that person are not affected by whether the condition has been fulfilled.

      . In pertinent part, La. R.S. 10:3-420 states:
      (a) An instrument is converted when
      (i) a drawee to whom it is delivered for acceptance refuses to return it on demand; or
      (ii) any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
      (iii) it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.
      (b) An action for conversion of an instrument may not be brought by (i) the issuer or acceptor of the instrument or (ii) a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or co-payee or (iii) by the drawer.

      . La.R.S. 10:3-204(a) states:
      "Indorsement” means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser's liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement. For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.

      . In Cairo, supra, the majority opinion held that good practice dictated that an agreement to vary a restrictive indorsement had to be in writing and noted on the instrument by a person with proper authority.


author: |, PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Aldric L. LATHEN, Appellant.
    No. 38,016-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2003.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Schuyler Marvin, District Attorney, R. Lane Pittard, C. Sherburne Sentell, III, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   |, PEATROSS, J.

Defendant, Aldric L. Lathen, and two accomplices were charged with two counts of first degree murder and one count of armed robbery, the latter being a violation of La. R.S. 14:64 punishable by imprisonment at hard labor without benefits for no less than 10 to no more than 99 years. The State agreed to accept Defendant’s guilty pleas to two counts of armed robbery in exchange for his agreement to testify truthfully at the trial of his accomplices. The trial court accepted Defendant’s guilty pleas and subsequently sentenced Defendant to serve 65 years at hard labor on each count, with the sentences to be served concurrently. Following the denial of his timely motion for reconsideration, Defendant argues that the sentences are excessive. For the reasons stated herein, we affirm.

DISCUSSION

On May 23, 1998, Defendant and two companions decided to rob a grocery store in Minden, Louisiana, and to leave no living witnesses. Defendant obtained a pistol and gave it to one of his companions before they entered the store where David An-stead, Sr. and his son, David Anstead, Jr., were working. Defendant acted as lookout while his companions shot and killed the Ansteads and took money from a cash register and a money box.

As previously stated, pursuant to a plea agreement, Defendant pled guilty to two counts of armed robbery and was sentenced to serve 65 years at hard labor on each count, to be served concurrently. He argues on appeal that his sentences are excessive.

LWhen, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional ex-cessiveness. State v. Mims, 619 So.2d 1059 (La.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992). A sentence violates La. Const. art. 1, § 20, if it is grossly out of propor tion to the seriousness of the offense or nothing more than a needless and purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. This inquiry depends on the circumstances of the case and the background of the defendant.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

Prior to imposing sentence in the case sub judice, the court reviewed a presentence investigation report. The court noted the reduction of the charges and gave consideration to Defendant’s agreement to cooperate with the authorities and to testify at the trials of his accomplices. The court then | ¡¡considered the facts of the case and noted that Defendant was a principal to the robberies and murders and knew, prior to going into the store, that the victims would be killed.. Although Defendant was a first-felony offender, the court was of the opinion that a lesser sentence would deprecate the seriousness of the offenses.

On this record, we do not find constitutional error. The sentences are legal. Considering the facts of the case, including that Defendant helped plan the crimes, provided the weapon used and knew ahead of time that the victims would be killed, the sentence imposed is not grossly disproportionate to the severity of the offense or shocking to the sense of justice. We also note that the offenses to which Defendant was allowed to plead guilty do not adequately describe his criminal conduct. There is no showing of an abuse of the trial court’s discretion in the imposition of these sentences which, under the facts and circumstances of the case, are not constitutionally excessive.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Aldric L. Lathen are affirmed.

AFFIRMED.

      . The trial court failed to state that the sentences will be served without benefits. This error will be corrected automatically by La. R.S. 15:301.1.